Anamika Asana vs The State Of Bihar
2021 Latest Caselaw 4108 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.13107 of 2021
     ======================================================

Anamika Asana D/o Ratan Kumar, W/o Pramod Kumar, r/o Mai, Post Mai, P.S. Hilsa, District Nalanda.

... ... Petitioner Versus

1. The State of Bihar through its Chief Secretary, Govt. of Bihar, Patna.

2. Chief Secretary, Govt. of Bihar, Patna.

3. Principal Secretary, Road Construction Department, Govt. of Bihar, Patna.

4. Principal Secretary, Public Health Engineering Department, Govt. of Bihar, Patna.

5. Principal Secretary, Water Resources Department, Govt. of Bihar, Patna.

6. Principal Secretary, Building Construction Department, Govt. of Bihar, Patna.

7. Principal Secretary, Rural Works Department, Govt. of Bihar, Patna.

8. Principal Secretary, Planning and Development Department, Govt. of Bihar, Patna.

9. The Bihar Public Service Commission through its Chairman, Patna.

10. The Secretary, Bihar Public Service Commission, Patna.

11. The Joint Secretary cum Controller of Examination, Bihar Public Service Commission, Patna.

12. B.I.T. Sindri through its Principal, Dhanbad Road, Town Sindri, P.S. Sindri, District Dhanbad (Jharkhand).

13. Vinoba Bhave University through its Vice Chancellor, Vinoba Bhave University Road, P.S. Hazaribagh, District Hazaribagh (Jharkhand).

14. Pooja Kumari, D/o (not known), R/o (not known), Roll No. 206061, Backward Class (Female), Merit Serial 2849, Advertisement No. 02/2017 published by BPSC, Patna.

... ... Respondents ====================================================== with Civil Writ Jurisdiction Case No. 13421 of 2021 ======================================================

1. Nishu Kumari D/o Anil Kumar R/o Makhdumpur, Post Kaliyachak, P.S.-

Hilsa, District- Nalanda.

2. Vineet Kumar S/o Sri Birendra Kumar R/o Village- Srichandpur, Post-

Asthawan, P.S.- Asthawan, District- Nalanda.

... ... Petitioners Versus

1. The State of Bihar Through its Chief Secretary, Govt. of Bihar, Patna.

2. Chief Secretary, Govt. of Bihar, Patna.

Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

3. Principal Secretary Road Construction Department, Govt. of Bihar, Patna.

4. Principal Secretary Public Health Engineering Department, Govt. of Bihar, Patna.

5. Principal Secretary Water Resources Department, Govt. of Bihar, Patna.

6. Principal Secretary Building Construction Department, Govt. of Bihar, Patna.

7. Principal Secretary Rural Works Department, Govt. of Bihar, Patna.

8. Principal Secretary Planning and Development Department, Govt. of Bihar, Patna.

9. The Bihar Public Service Commission Through its Chairman, Patna.

10. The Secretary Bihar Public Service Commission, Patna.

11. The Joint Secretary cum Controller of Examination Bihar Public Service Commission, Patna.

12. B.I.T. Sindri (affiliated to Vinoba Bhave University) Through its Principal, Dhanbad Road, Town Sindri, P.S.- Sindri, District- Dhanbad (Jharkhand).

13. Ramgovind Institute of Technology (affiliated to Vinoba Bhave University) P.S.- Koderma, District- Koderma (Jharkhand).

14. Vinoba Bhave University Through its Vice Chancellor, Vinoba Bhave University Road, P.S.- Hazaribagh, District- Hazaribagh (Jharkhand).

15. Pooja Kumari D/o (not known) R/o (not known), Roll No. 206061, Backward Class (Female), Merit Serial 2849, Advertisement No. 02/2017 published by BPSC, Patna.

16. Praveen Kumar S/o (Not known) R/o (not known), Roll No. 210461, Backward Class, Disavled (VI), Merit Serial 2930, Advertisement No. 02/2017 published by BPSC, Patna.

... ... Respondents ====================================================== Appearance :

(In Civil Writ Jurisdiction Case No. 13107 of 2021) For the Petitioner : Mr.Harsh Singh For the B.P.S.C. : Mr.Lalit Kishore (Sr. Advocate) with : Mr.Sanjay Pandey For the State : Mr.Anjani Kumar (AAG 4) (In Civil Writ Jurisdiction Case No. 13421 of 2021) For the Petitioners : Mr.Harsh Singh : Mr.Tej Pratap Singh For the B.P.S.C. : Mr.Lalit Kishore (Sr. Advocate) with : Mr.Sanjay Pandey For the State : Mr.P.K. Verma (AAG 3) with : Ms.Divya Verma (AC to AAG 3) ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 16-08-2021 Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

This matter has been taken up for hearing online because

of COVID-19 pandemic restrictions.

2. Since both the cases involve common issue and are

based on identical facts, they have been heard together with the

consent of the parties and are being disposed of by present

common judgment and order.

3. I have heard Mr. Harsh Singh, learned counsel for the

petitioners and Mr. Lalit Kishore, learned Accountant General as

Senior counsel assisted by Mr. Sanjay Pandey, learned counsel for

the Bihar Public Service Commission (B.P.S.C. in short) in both

the cases. Mr. Anjani Kumar, learned AAG-4 and Mr. P.K. Verma,

learned AAG-3 assisted by Ms. Divya Verma, learned AC to AAG-

3 have represented the State of Bihar in C.W.J.C. No.13107 of

2021 and C.W.J.C. No. 13421 of 2021 respectively.

4. Considering the nature of controversy involved in

these matters, it is deemed beneficial to narrate, albeit briefly, the

basic undisputed facts before noticing the relief which the

petitioners have sought and rest of the matter.

5. These applications made under Article 226 of the

Constitution of India arise out of a recruitment process for

appointment as Assistant Engineers (civil engineering) pursuant to

an advertisement issued by the B.P.S.C. vide Advertisement No. Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

02/2017. Clause 1 of the advertisement prescribed the educational

qualification, which required that an aspirant must possess a

degree qualification of any Indian University in civil engineering

or diploma qualification from any Indian engineering college. The

advertisement laid down the procedure for recruitment, clause 7 of

which inter alia required an aspirant to enclose amongst other

documents, self-attested photo copy of the certificate relating to

B.Tech/B.E. qualification along with the application. The

candidates were required to retain the originals of such certificates

mentioned in the clause 7 of the advertisement.

6. The petitioner in C.W.J.C. No. 13107 of 2021 is said

to have secured B.Tech (civil engineering examination) held by

Vinoba Bhave University, Hazaribagh (Jharkhand) in the month of

May, 2011 as a student of B.I.T. Sindri, Sindri in the State of

Jharkhand. Petitioner no. 1 of C.W.J.C. No. 13421 of 2021 claims

that she obtained the B.Tech qualification in civil engineering after

having passed the final B.Tech (civil engineering examination) of

the same Vinoba Bhave University, Hazaribagh held in the month

of May, 2016, as a student of Ram Govind Institute of Technology.

Petitioner no. 2 of C.W.J.C. No. 13421 of 2021claims that he

passed B.Tech (civil engineering examination) of the same

University held in the month of May, 2015, as a student of B.I.T. Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

Sindri. It is accordingly their case that on the date of publication of

the advertisement, they held the educational qualification of

degree in civil engineering from an Indian University viz. Vinoba

Bhave University, Hazaribagh. In response to the said

advertisement, they applied. Along with their application forms,

the petitioners enclosed their respective provisional certificates

relating to B.Tech issued by their respective institutions viz. B.I.T.

Sindri and Ram Govind Institute of Technology. They participated

in the preliminary test and the mains examinations held by the

B.P.S.C. and were declared successful. They appeared for

interview, as per the schedule fixed by the B.P.S.C. The

programme for interview and the guidelines in that regard issued

by the B.P.S.C. (Annexure 4 to the writ application) required the

candidates to present original certificate(s) in relation to their

education qualification. It further required that only such

certificates in relation to educational qualification of a candidate

shall be considered by the B.P.S.C., which were mentioned in

his/her provisional application. It further required that such

certificates in relation to educational qualification must have been

issued before the last date of submission of application form i.e.

12.04.2017.

Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

7. As the petitioners had submitted their provisional

certificates issued by their respective colleges, as mentioned

above, with their original applications, they presented original

copies of their provisional certificate at the time of interview.

8. Final result was published on 14.07.2021 by the

B.P.S.C., in which, the roll numbers of these petitioners do not

figure.

9. This is an admitted fact that their candidature itself

has been cancelled by the B.P.S.C. on the ground that the

certificates in support of their educational qualification of degree

from an Indian University were not found to have been issued by

the University. The action of the B.P.S.C. to cancel candidature of

the petitioners on the ground that the certificates relating to

educational qualification were not issued by the University, in the

absence of any such specific stipulation in the advertisement, has

given the petitioners a cause of action to prefer these writ

applications seeking quashing of the final result published by the

B.P.S.C. on 14.07.2021 and for a direction to the B.P.S.C. to re-

publish the final result after considering the candidature of these

petitioners to be valid, on the basis of their score in appropriate

category. It is also apt to mention here that following has been Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

mentioned in the certificates in support of their educational

qualification presented by the petitioners:-

"The degree shall, however, be conferred at the next

convocation of Vinoba Bhave University, Hazaribagh."

10. This is also admitted that after filing of the writ

application, the B.P.S.C. has cancelled candidature of eight other

candidates by a separate corrigendum issued on 02.08.2021, who

were earlier declared successful in the result published on

14.07.2021. All such eight candidates are said to have submitted

their certificates in support of their educational qualification issued

by the institution/engineering college and not by a University. It

has been mentioned in the said corrigendum dated 02.08.2021 that

the B.P.S.C. shall take further action apropos cancellation of

candidature of such eight candidates after disposal of writ

applications, which are pending before this Court. All the aforesaid

eight candidates also claim to have passed their B.Tech (civil

engineering examination) of Vinoba Bhave University, Hazaribagh

and the provisional certificates in their cases were also issued by

the respective institutions under the said University.

11. Mr. Harsh Singh, learned counsel appearing on

behalf of the petitioners has submitted that as per the norm of

Vinoba Bhave University, Hazaribagh, provisional certificates are Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

issued by the institutions and degrees are conferred at the

convocation of the University. He contends that there was no

requirement in the advertisement inviting applications that the

certificates in support of educational qualification stipulated under

the advertisement must have been issued by the University and,

therefore, the action of the respondent Commission to cancel their

candidature itself amounts to deviation from the terms of

advertisement. He has drawn my attention to the statements made

in the writ application to the effect that the B.P.S.C. had earlier

accepted such provisional certificates issued by the institutions and

not by the University, as valid certificate in support of educational

qualification in the selection process conducted in pursuance to

Advertisement No. 02/2011, in which, the petitioner's husband had

qualified and is presently working in the Water Resources

Department, Government of Bihar. Referring to the statement

made in paragraph 17 of C.W.J.C. No. 13107 of 2021, he has

argued that the petitioner knows about at least eight candidates,

whose provisional certificate of B.Tech issued by the colleges have

been considered to be valid in support of educational qualification

in the selection process initiated with the issuance of

Advertisement no. 02/2011 by the B.P.S.C. all of whom are

working in various departments of the Government of Bihar, to the Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

best of the petitioner's knowledge. He has accordingly submitted

that the action of the B.P.S.C. in cancelling candidature of the

petitioners on specious ground that the certificates of their

educational qualification were issued by the respective institutions

and not by the University is arbitrary, discriminatory and,

therefore, violative of Articles 14 and 16 of the Constitution of

India.

12. The facts noted above are not in dispute.

13. Mr. Lalit Kishore, learned Senior counsel appearing

on behalf of the B.P.S.C. has submitted that in Clause-4 of the

interview programme and Clause-2 of the interview letter, it was

clearly specified that the candidates must bring their original

certificates for verification, as stated in the original advertisement,

along with two self-attested copies thereof on the date of interview

and in case they fail to do so, no further time would be allowed

and the Commission would be free to take appropriate decision in

respect of the eligibility of such candidates. He has further

submitted that Clause-6 of the interview programme contained that

the candidature of candidates called for interview was purely

provisional and only appearance in the interview would not

amount to confirmation of the candidature of a candidate. The

B.P.S.C. had reserved its rights to take necessary decision in Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

respect of eligibility of the candidates at the time of interview or

thereafter, he contends.

14. The copies of the interview letters have been brought

on record by way of Annexures to the counter affidavit. It has been

stated in the counter affidavit that candidature of eight other

candidates, who had not produced their original degree certificates

issued by the concerned University for verification at the time of

interview has also been cancelled by the Commission and decision

in respect of eight vacancies, consequent upon cancellation of

candidature of eight candidates would be taken after disposal of

cases involving the controversy in question, which are pending

before this Court and this aspect has been mentioned in the

corrigendum notice published on 02.08.2021. Mr. Lalit Kishore

has argued that as the advertisement specifically mentioned that an

aspirant must have acquired degree qualification from an Indian

University, as a result of natural corollary, the aspirants were

required to furnish certificates in support of their educational

qualification issued by an Indian University. He has submitted that

the B.P.S.C. has rightly rejected the candidature of the petitioners,

as the certificates which were presented by them in support of their

educational qualification were not found to have been issued by

the University. He has relied on decisions of this Court in case of Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

Kumari Pushpanjali Bala v. The State of Bihar and Others dated

29.01.2020 passed in C.W.J.C. No. 23248 of 2019, Pankaj Kumar

v. The State of Bihar and Others dated 04.01.2021 passed in

C.W.J.C. No. 7661 of 2020, Asha Kumari v. The State of Bihar

and Others dated 21.01.2021 passed in C.W.J.C. No. 7205 of

2020, Ajit Anand v. The Bihar Public Service Commission and

Others dated 29.06.2017 passed in L.P.A. No. 11 of 2017 and

Aarav Jain and Others v. The Bihar Public Service Commission

and Others dated 04.05.2021 passed in C.W.J.C. No. 24282 of

2019 to bolster his submission. Referring to the said decisions, he

has submitted that as the petitioners did not have the certificates

issued by the University in relation to their educational

qualification, as on the last date fixed for submission of

application and even on the dates fixed for their interview,

rejection of their candidature by the B.P.S.C. is wholly justified.

15. On the basis of pleadings and rival submissions

made on behalf of the petitioners and the respondents, in the

Court's opinion, the only question which this Court is required to

answer is, as to whether rejection of candidature of the petitioners

by the B.P.S.C. on the ground of their certificates in support of

educational qualification having not been issued by the

Universities is sustainable or not. There is absolutely no quarrel Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

over the legal proposition that the terms of advertisement are

required to be strictly adhered to in the process of selection and

eligibility or otherwise of an aspirant will have to be tested on the

touchstone of the prescriptions in the advertisement inviting

applications for selection to post under the State or its

instrumentality within the meaning of Article 12 of the

Constitution of India. It is equally well settled that in case of any

deviation in the advertisement inviting applications from the

statutory rules governing the process of selection, the statutory

rules shall prevail. In other words, an advertisement inviting

applications for filling a post under State within the meaning of

Article 12 of the Constitution of India is subservient to the

statutory rules governing the process of selection.

16. The B.P.S.C. has not specifically disputed that the

petitioners do not hold B.Tech degree in civil engineering after

having passed examination from Vinoba Bhave University,

Hazaribagh, which came into existence with enactment of Bihar

Act 3 of 1990, which has now fallen within the territories of State

of Jharkhand. The B.P.S.C. has also not disputed the assertion

made in the writ application that in past, in 2011-12 it had treated

as valid, similar certificates issued by the institutions under the

said University in support of educational qualification of having Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

passed B.Tech (civil engineering) examination. Mr. Lalit Kishore

has, however, strenuously argued that the matter would have been

entirely different, had the petitioners submitted their provisional

certificates issued by the University because it is the University

which holds the examination and, therefore, only such certificates

which are issued by the University have been treated to be valid by

the B.P.S.C. He has accordingly submitted that admittedly, as on

the last date of submission of application forms, the petitioners did

not possess any certificate issued by the University and, therefore,

the B.P.S.C. was wholly justified in cancelling their candidature, as

they did not fulfill the requirements under the advertisement, the

interview programme published by the B.P.S.C. and the interview

letter.

17. The legality of cancellation of the candidature of

these petitioners on the ground that copies of the certificates which

they enclosed at the time of submission of application forms and

the original certificate which they produced at the time of

interview were not issued by the concerned University and were

rather issued by the institutions in question, is the only question

which needs to be looked into in these two matters. For answering

this question, one needs to examine, as to whether there was any

clear stipulation in the advertisement requiring the candidates to Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

submit certificate of having passed B.Tech (civil engineering)

examination issued by the University only and not by the

institutions. The answer to the first question lies in the answer to

the second question and the answer to the second question can be

determined on examining the terms of stipulations of the

advertisement. As has already been noticed, the advertisement

prescribes that an aspirant must possess degree qualification in

civil engineering/mechanical engineering. There is no finding

recorded by the B.P.S.C. that the petitioners do not possess such

qualification. At this juncture, the submission made by Mr. Lalit

Kishore for the B.P.S.C. that the B.P.S.C. reserved its rights to

cancel candidature of a candidate, as stipulated in the interview

programme and in the interview letter needs to be addressed.

Clause-6 of the interview letter contain that the candidature of

candidates invited for interview was only provisional. Further, by

appearing at the interview, their candidature did not stand

confirmed. Thirdly and most importantly, jurisdiction to take

necessary decision, as far as possible, on the question of

qualification of a candidate 'at the time of interview' or 'thereafter'

would be reserved with the B.P.S.C. By invoking Clause-6 of the

interview letter, the B.P.S.C. could have taken a decision on the

question of "educational qualification of the petitioners". For the Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

benefit of quick reference, relevant portion of Clause-6 of the

interview letter is being quoted hereinbelow:-

"साकातकार के ललए बु लाये जा रहे आवे दको

की अभयरीरथा पूरररः औपबं लधक है I

साकातकार मे शालमल होने से उनकी अहररा

समपु षट नहीं होरी है I साकातकार के समय

या उसके बाद उनके अहररा पर यथासं भव

आवशयक लनररय ले ने का अलधकार आयोग

के पास सु रलकर रहे गा I"

18. Without questioning the educational qualification of

the petitioners, clause-6 of the interview letter could not have been

invoked. It, however, goes without saying that the jurisdiction of

the B.P.S.C. to take a decision on the question of

qualification/eligibility of a candidate is reserved with the B.P.S.C.

in terms of the interview letter, during or after the interview.

19. Coming now to clause-7 of the advertisement; it

evidently required submission of self-attested copy of, inter alia,

'certificate relating to B.Tech/B.E.'. There was no requirement that

such certificates must have been issued by a University. Had the

same been specifically mentioned in the advertisement, the matter

would have been different and in such circumstance either the

petitioners could have questioned the justification of such

requirement or would not have applied at all. Further, in the Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

programme and the guidelines issued by the B.P.S.C. for interview,

it was clearly mentioned in clause-4 that only such certificates of

qualification would be accepted, which had been mentioned by the

candidate in his original application. In the interview letter also,

there was similar prescription to the effect that only such

certificates of educational qualification would be accepted, which

had been referred to at the time of submission of his/her

application for preliminary test. Apparently, thus there was no

specific requirement for an aspirant to submit a certificate

essentially issued by the University in support of their educational

qualification.

20. The petitioners claim that they have passed B.Tech

examination in civil engineering of Vinoba Bhave University,

Hazaribagh and they had submitted certificates issued by their

respective institutions to the aforesaid effect. The practice of

issuance of certificates by the institutions imparting engineering

courses under Vinoba Bhave University, Hazaribagh is not

disputed. The certificates clearly mention that the degree shall,

however, be conferred at the next convocation of the University.

This Court takes judicial notice of the fact that convocations are

not held in the University for years together. Reliance placed by

Mr. Lalit Kishore on decisions referred to hereinabove is of no Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

consequence for the purpose of the present case. The petitioner in

case of Kumari Pushpanjali Bala (supra) had left behind the

original provisional certificate of graduation while going for an

interview, production of which was found to be an essential

requirement at the time of interview. In such circumstance, a Co-

ordinate Bench of this Court refused to interfere with the decision

of the B.P.S.C. rejecting the candidature, the same having been

found to be the only consequence of such lapse. In case of Pankaj

Kumar (supra), this Court refused to interfere with the decision of

the B.P.S.C., as the petitioners had failed to produce original

certificates for claiming reservation at the time of interview.

Noticing specific requirement in the advertisement, this Court had

refused to interfere with the action of the B.P.S.C. in relation of

candidature. Similarly, in case of Asha Kumari (supra) noticing

clear stipulation in the interview letter that certificates relating to

educational qualification to be submitted at the time of interview

must have been issued on or before the last date of submission of

application forms, this Court refused to interfere with the rejection

by the B.P.S.C. of candidature of the candidate, as the certificates

produced by the petitioner of that case were found to have been

issued on a date subsequent to last date of submission of

application form. For similar reasons, the Division Bench Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

decisions in case of Ajit Anand (supra) and Aarav Jain (supra)

have no application in the facts and circumstances of the present

case, there being no clear stipulation in the advertisement in

question that candidates must produce certificate issued by the

University. As a matter of fact, the B.P.S.C. has not raised any

specific plea that as on the last date of submission of application

forms, the petitioners did not hold the minimum educational

qualification.

21. In view of the above discussions and in the absence

of any clear stipulation in the advertisement that the aspirants must

have produced certificates issued by the University, cancellation of

candidature of the petitioners by the B.P.S.C. is unjustified and,

therefore, unsustainable. The impugned action of the Commission,

therefore, requires interference.

22. Accordingly, the decision of the Commission to

cancel candidature of these petitioners is set aside. The

consequence of setting aside the decision of the B.P.S.C. shall

follow. The Court expects that the Commission shall proceed

accordingly in respect of other candidates also, whose candidature

has been cancelled in similar circumstance. The Commission is

directed to decide on publication of result of these petitioners and

similarly situated persons accordingly.

Patna High Court CWJC No.13107 of 2021 dt.16-08-2021

23. Before parting with the present order, it must be

clarified that in view of clear prescription in the interview letter,

rights of the B.P.S.C. to decide, as to whether a candidate holds

requisite educational qualification or not is reserved with the

B.P.S.C. even after the interview. Exercising such

right/power/jurisdiction, the B.P.S.C. will be at liberty to decide, as

to whether the petitioners hold qualification of B.Tech (civil

engineering) or not, as on the last date of submission of application

form.

24. In any case, their candidature could not have been

cancelled on the ground that they failed to produce certificates

issued by the University.

25. These writ applications are accordingly allowed.

26. There shall be no orders as to costs.

(Chakradhari Sharan Singh, J)

AKASH/-

AFR/NAFR               AFR
CAV DATE               N/A
Uploading Date         17.08.2021
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