Dr. Sushma Sharan vs The State Of Bihar
2023 Latest Caselaw 761 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.18940 of 2019
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Dr. Sushma Sharan, Daughter of Late M.C. Ram Resident of C/C-56, PC Colony, Kankarbagh, P.S.- Kankarbagh, District- Patna.

... ... Petitioner/s Versus

1. The State of Bihar

2. The Principal Secretary Medical, Education and Family Welfare Department of Health, Government of Bihar, New Secretariat, Patna.

3. The Secretary Bihar Public Service Commission, Bailey Road, Patna.

4. Joint Secretary-cum- Examination Controller Bihar Public Service Commission, Bailey Road, Patna.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Y. V. Giri, Sr. Advocate Mr.Prabhu Nath Pathak, Advocate For the Respondent/s : Mr.Ajay Bihari Sinha, Advocate ( GA8 ) Mr. Lipendra Kumar Singh, Ac to GA-8 For B.P.S.C. : Mr. Ashok Kumar Choudhary, Sr. Advocate Mr. Akshansh Ankit, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE SANJEEV PRAKASH SHARMA ORAL JUDGMENT Date : 14-02-2023

The petitioner by way of this writ petition assailed the

action of the respondent - Commission in treating her as a

general candidate and denying her appointment on the post of

Assistant Professor in department of Obstetric and Gynecology

under the SC category.

2. The petitioner applied under the advertisement no.

20/2017 for the post of Assistant Professor in department of

Obstetric and Gynecology and was shortlisted for interview Patna High Court CWJC No.18940 of 2019 dt.14-02-2023

under the SC category. She appeared for interview and as has

come on record, scored 29 marks. However, the PAC in its Full

Commission meeting held on 08.08.2019 rejected her

candidature in the SC category and shifted her to open category

on the ground that the certificate issued by the respondent -

State was in the name of her husband and not in the name of her

father.

3. Learned counsel appearing for the Commission has

stated that the State Government vide its order dated 8.03.2011

and 06.08.2012 had directed that the reservation would be

available to ST/SC candidates whose creamy lawyer certificate

and ST/SC certificate is in the name of father and not in the

name of husband. Accordingly, they issued a notice on 14 th of

July, 2018 asking the candidates to submit a fresh certificate in

the name of father alone. The last date was fixed as 7 th of

August, 2018 for the purpose.

4. It is the case of the petitioner that she had applied

for a certificate in the name of her father which was issued to

her on 17th August, 2019 and she should not be deprived of her

status as a ST candidate. It is also informed that there were 4

posts of SC category in the subject of Assistant Professor,

Gynecology which have remained vacant in the selection Patna High Court CWJC No.18940 of 2019 dt.14-02-2023

process while the petitioner was duly entitled having scored

more marks than the last candidate who was selected was

having 17 marks.

5. The learned counsel for the State has supported

their action of issuing directions for certificate to be in the name

of father/parents instead of husband of a married SC/ST

candidate.

6. As pointed out by learned counsel for the petitioner

a similar issue came up before the Supreme Court in Special

Leave Petition (Civil) No. 10776 of 2021 (Civil Appeal No.4242

of 2022) titled as Aarav Jain Vs. the Bihar Public Service

Commission & Ors. and connected civil appeals where one of

the petitioner Anita Kumar (Civil Appeal No. 4247 of 2022) had

applied under the category of SC female but at the time of

interview, she submitted the cast certificate which contained the

name of her husband. Later on, she submitted the cast certificate

mentioning name of her father on 13.11.2019, but was not

considered under the said category. The Apex Court held as

under :-

"16. Considering the facts and circumstances of the case, without entering into the respective argument we are of the considered view that the rejection of the candidates was improper, unjustified and not Patna High Court CWJC No.18940 of 2019 dt.14-02-2023

warranted. We have also taken note of the fact that there are vacancies available which if filled up by meritorious candidates would only be an asset for the institution helping in disposal of cases pending in huge numbers."

7. It is to be noticed that the aforesaid judgment was

considering matter relating to appointments in judicial services

and as the vacancies for EBC, SC and BC category had already

been fulfilled for the said year, it was directed to adjust the said

candidates of SC, EBC and BC category against future

vacancies by borrowing three from future vacancies.

8. Thus, this Court finds that the action of the

concerned selecting bodies in denying status to a particular

category candidate was found to be wrongful. In the case of

Dolly Chandra Vs. Chairman Jee and Others reported in (2005)

9 SCC 779 wherein the Apex Court has held as under :-

"7. The general rule is that while applying for any course of study or a post, a person must possess the eligibility qualification on the last date fixed for such purpose either in the admission brochure or in application form, as the case may be, unless there is an express provision to the contrary.

There can be no relaxation in this regard i.e. in the matter of holding the requisite eligibility qualification by the date fixed. This has to be established by producing the necessary certificates, degrees or marksheets. Similarly, in order to avail of the benefit of reservation or weightage, etc. Patna High Court CWJC No.18940 of 2019 dt.14-02-2023

necessary certificates have to be produced. These are documents in the nature of proof of holding of particular qualification or percentage of marks secured or entitlement to benefit or reservation. Depending upon the facts of a case, there can be some relaxation in the matter of submission of proof and it will not be proper to apply any rigid principle as it pertains in the domain of procedure. Every infraction of the rule relating to submission of proof need not necessarily result in rejection of candidature."

9. Thus, status of a SC/ST and OBC candidate cannot

be denied and cannot be forced to be treated as a General

category candidate. The action of the BPSC in treating the

petitioner as General category candidate is found to be therefore

wrongful.

10. Before parting with this case, this Court notices

that, it is the State Government which issues certificates to the

persons belonging to SC, ST, EBC, BC and other categories.

The responsibility lies with their officers to issue certificates

which are acceptable to the employee units and to the selecting

bodies who follow their instructions. A certificate issued

wrongfully would amount to denying the said candidate from

participation and consideration for appointment which itself per

se amounts to committing atrocitiy on such deprived persons.

Officers who issue recklessly certificates without application of Patna High Court CWJC No.18940 of 2019 dt.14-02-2023

mind and without following the guidelines issued by the State

Government themselves should be held personally accountable

for creating unnecessary litigation before this Court. At the same

time, it is to be noticed that the appointing authorities should

give due weightage to a cast certificate issued by the authorities.

If an earlier certificate is not in conformity with the latest

guidelines, it does not mean that the candidate has lost its status

of being from SC category or ST category or from EBC or other

reserved categories. On account of such reasons, a candidate

cannot be denied his/her rightful claim in his/her own category.

11. Accordingly, the respondents are directed to

consider the case of the petitioner for appointment on the post of

Assistant Professor in the department of Obstetrics and

Gynecology under the SC category on the basis of her merit, if

she is found otherwise suitable she shall be offered appointment

from the date similarly placed persons having lower merit than

her have been appointed without all consequential benefits. The

salary, of course, shall not be paid for the intervening period

which shall be treated notionally but her pay fixation shall be

done from the date the persons junior to her have been

appointed and she will also maintain her seniority as per merit.

12. Exercise to be done positively within a period of Patna High Court CWJC No.18940 of 2019 dt.14-02-2023

one month from the date of submission of a copy of this order.

13. Writ petition is allowed. Cost of writ petition is

awarded of ₹ 20,000 to be paid by the State authorities.

(Sanjeev Prakash Sharma, J) Ashwini/-

AFR/NAFR                 NAFR
CAV DATE                 NA
Uploading Date           16.02.2023
Transmission Date        NA