AARAV JAIN versus THE BIHAR PUBLIC SERVICE COMMISSION & ORS. on 23 May 2022

1. Leave granted in all the Special Leave Petitions.

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2. For recruitment of 349 posts of Civil Judge (Junior Division),the Bihar Public Service Commission issued an Advertisement No. 6 of2018, dated 23.8.2018 for conducting 30[th] Bihar Judicial ServicesExamination. The break-up of the 349 posts is as follows:

Di. General/unreserved (01) – 175 posts

ii. SC (02) – 56 posts

iii. SC (03) – 03 posts

iv. EBC (04) – 73 Posts

Ev. Backward Class (05) – 42 Posts

3. After conducting the Screening Test, Written Test and Interview,the Commission vide letter dated 02.12.2019 recommended names of349 candidates in order of merit. According to the figures available, outof the 349 recommended candidates, four candidates did not turn up forFcounselling. As such appointment letters were issued on different datesfrom January, 2020 to December, 2020 to 345 candidates. Further out ofthese 345 candidates, three candidates did not turn up for joining. Assuch the candidature of seven candidates was cancelled by the StateGovernment vide orders issued on different dates. The Appellants hadadmittedly secured higher marks than the last selected candidates inGtheir respective categories but the Commission had cancelled theircandidature for want of fulfilment of the conditions required as per theinterview call letter.

4. One of the conditions required was to submit the originals ofcertificates detailed therein which included educational certificates, CasteH

certificates if claiming any benefit of reservation, No ObjectionCertificates of previous employer, Character Certificate of the lastattended College/University and other certificates of residence etc. atthe time of interview. Some of the candidates could not produce theoriginal Certificates as required, as a result of which their candidatureswere cancelled by the Commission vide their meeting dated 27.11.2019.In its 102[nd] meeting of the Commission organised on 27.11.2019, theeligibility of the candidates on the basis of their educational certificates,mark sheets, documents etc. presented at the time of the interview whichwas conducted in between the dates of 21.10.2019 to 27.10.2019 underthe 30[th] Bihar Judicial Service Examination (Advertisement No. 06/2018),the Commission examined the short comings and the non-fulfilment ofthe requirement of the production of the original documents/certificatesat the time of the interview and after dealing with each of the candidates,found deficit in fulfilling the said requirement and cancelled thecandidature of as many as 58 candidates for different reasons.

5. Some of these candidates approached the Patna High Court byway of different Writ Petitions, either singly or jointly. Division bench ofthe Patna High Court vide Judgment impugned did not find favour withsuch candidates and dismissed their petitions. Aggrieved by the Judgmentof the Patna High Court, the present Special Leave Petitions have beenpreferred by eight candidates. It is not in issue that the ground for rejectionof the candidature of these candidates was only and only non-productionof the original Certificates. The Commission has admitted these eightAppellants before us have scored higher marks from the last selectedcandidates in their respective categories.

6. Out of these eight candidates, five namely Mayank KumarPandey (SLP (C) No. 15819/21), Aarav Jain (SLP (C) No. 10776/21),Ashish Chandra (SLP (C) No. 16198/21), Siddharth Sharma (SLP (C)No. 11089/21) and Sanjay Kumar Mishra (SLP (C) No. 11089/21) belongto the General/ Unserved Category. Sumit Kumar (SLP (C) No. 15809/21) belongs to the EBC Category, Anita Kumar (SLP (C) No. 809/22)belongs to SC Category and Anand Raj (SLP (C) No.15819/21) belongsto BC Category.

7. With respect to these 8 candidates named above, the followingshortcomings/deficiencies were noticed by the Commission in its meetingdated 27.11.2019:

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Ai.Aarav Jain failed to produce the original character certificatefrom the last attended College/University (his name findsplace at Sr. No. 1 in the list of decision dated 27.11.2019).

ii.Anand Raj also failed to submit the original character certificateissued from the College/University last attended (his nameBfinds place at Sr. No. 10 in the list of decision dated 27.11.2019).

iii. Sumit Kumar failed to produce the original copy of degree oflaw (his name finds place at Sr. No. 19 in the list of decisiondated 27.11.2019).

iv. Sanjay Kumar Mishra failed to produce the original of the NoCObjection Certificate from his previous employer (his namefinds place at Sr. No. 26 in the list of decision dated 27.11.2019).

v.Anita Kumar although had applied under the category of SC(female) but she submitted the caste certificate issued in theyear 2002 which contained the name of her husband, at theDtime of the interview, however, later on she sent the castecertificate mentioning the name of her father also on 13.11.2019(her name finds place at Sr. No. 29 in the list of decision dated27.11.2019).

vi. Siddharth Sharma failed to produce the original certificateErelating to affiliation of his educational institution last attendedwith the Bar Council of India and secondly, the original of thecharacter certificate issued from the College/University lastattended (his name finds place at Sr. No. 36 in the list ofdecision dated 27.11.2019).

Fvii. Ashish Chandra did not submit the original character certificateand the certificate related to the affiliation of the educationalinstitution last attended (his name finds place at Sr. No. 55 inthe list of decision dated 27.11.2019).

viii. Mayank Kumar Pandey did not submit original characterGcertificate and certificate of affiliation of the last attendedCollege/University. He had, however, submitted the charactercertificate issued by the Additional Commissioner, CommercialTax (his name finds place at Sr. No. 56 in the list of decisiondated 27.11.2019).

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8. A perusal of the minutes of the meeting dated 27.11.2019 andthe specific averments contained in the respective petitions, it is evidentthat self-attested copies of the certificates required were submitted bythe appellants at the time of their interview and even the originals werelater on submitted within a few days and in any case before the meetingof the Commission took place on 27.11.2019. These facts are not disputedor denied by the respondents.

9. It would be worthwhile to mention here that as per the conditionsmentioned in the advertisement for any government employment, thereis always a clause that in the certificate/testimonies, if informationfurnished by any candidate is found to be incorrect at a later stage,during any enquiry, the candidature for such candidates is liable to becancelled. It is not the case of the respondent that any of these certificatesreferred to in the decision dated 27.11.2019 have been found to beincorrect. It is only this technical ground of not producing the originalcertificate at the time of the interview that the candidature of theseappellants had been rejected even though they had scored higher marksin their respective category from the marks obtained by the last selectedcandidate.

10. We had required the Commission and the State to place onrecord the number of available vacancies in different categories, so asto consider in case the appellants succeed whether they could be placedin their respective categories. The information which has been placedon record by the State of Bihar reflects that there are 5 vacant posts inthe General Category and that there are no vacancies in EBC, SC andBC categories as against the Advertisement No. 6 of 2018.

11. In so far as the remaining two vacances were concerned,they had been filled up by two candidates viz. Swati Chaturvedi (fromthe wait list) and Rakesh Kumar (who could not join within the timeallowed) under orders passed by the High Court and this Court. Thewrit petition of Swati Chaturvedi being CWJC No.3952 of 2020 wasallowed by the Division Bench of the High Court vide judgment dated01.03.2021 and the SLP (C) No.11174 of 2021 filed by the State ofBihar was dismissed by this Court on 30.07.2021. In so far as RakeshKumar is concerned, his petition being CWJC No.3835 of 2021 wasdismissed by the High Court on 26.10.2021. This Court, however, allowedhis Civil Appeal No.1517 of 2022 vide judgment dated 18.02.2022.

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A12. The submission advanced on behalf of the appellants is thatall the Appellants had supplied attested true copies of the certificates/documents as required. However, it was only the original of the samewhich could not be provided in time. It is further submitted that forsubmission of the originals, time was sought and later on the originalshave been submitted. But despite the same, the Commission proceededBto reject their candidature.

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13. Another submission advanced on the behalf of the appellantsis that the requirement to submit the originals is neither related toqualification or eligibility and in any case before appointment or duringthe course of probation a verification and vigilance report is alwaysCobtained by the State. Therefore, non-furnishing of the original certificateat the time of interview cannot be held to be mandatory or in otherwords nothing turned upon it. Even if the original certificates/documentswere not submitted at the time of interview, the government would stillbe getting a vigilance/verification check carried out.

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14. Upon such submissions, it has been submitted that the decisionof the Commission rejecting their candidature was per se illegal,unwarranted, unreasonable and too harsh. All the eight appellants whowere duly qualified and duly selected have been deprived of theirappointment as Judicial Officers. Admittedly, all the Appellants had securedEmore marks than the last selected candidate in their respective category.It is further submitted that even the High Court committed an error indismissing their petitions.

15. On the other hand, it has been submitted on behalf of theBPSC and the State that they could not relax any of the condition whichwere mentioned in the advertisement or their brochure or the interviewcall letter at different stages. Any such relaxation would amount to notfollowing their own prescribed procedure which was not within theirdomain. It is also submitted that appellants knowing fully well the conditionregarding submission of the original Certificates/Documents at the timeof interview having failed to do so, their candidature was rightly rejected.

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16. Considering the facts and circumstances of the case, withoutentering into the respective argument we are of the considered viewthat the rejection of the candidates was improper, unjustified and notwarranted. We have also taken note of the fact that there are vacanciesavailable, which if filled up by meritorious candidates would only be an H

asset for the institution helping in disposal of cases pending in hugenumbers.

17. The next aspect which needs to be considered is with respectto the adjustment of eight appellants against the vacancies of theAdvertisement No. 6 of 2018. In so far as the five candidates of theunreserved categories are concerned namely, Mayank Kumar Pandey,Aarav Jain, Ashish Chandra, Siddharth Sharma and Sanjay KumarMishra, (according to the state five vacancies are available), they maybe adjusted against these vacancies. The issue now remains with respectto the three candidates belonging to EBC, SC and BC category. Forthese three candidates, in the facts and circumstances of the case theState may either adjust them against future vacancies which we are toldare available at present or the State may borrow three posts from futurevacancies, one each in respective categories for the Advertisement No.06of 2018. This would amount to varying the vacancies of the saidadvertisement which power always vests in the employer. We furtherleave it to the wisdom and discretion of the State to deal with the aboveaspect either in the manner mentioned above or any other mode which itmay deem fit in order to accommodate the three appellants belonging tothe EBC, SC and BC categories.

18. In the above arrangement, we make it clear it would not affectthe appointment/selection of already serving Judicial officers appointedagainst Advertisement No. 6 of 2018.

19. The eight appellants would be entitled to their respectiveseniority as per their merit; however, they would not be entitled to anyarrears of salary for the intervening period, but would be entitled to thesame from the date of their joining. They would be forthwith allowed tojoin. All incremental and other benefits of the intervening period wouldbe notionally available to them, but no arrears would be paid.

20. The appeals are accordingly allowed as above. The impugneddecision of the Commission dated 27.11.2019 qua these appellants andthe impugned judgments of the High Court are set aside. There shall beno order as to costs.

21. Pending application(s), if any, shall stand disposed of.

I.A. Nos. 54711 & 54713 of 2022

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A22. I.A.No.54711 is allowed. The intervenor Jyoti Joshi has prayedfor directions to the effect that this Court may issue appropriate directionsrequiring the Respondents to give effect to the appointment of the applicantin pursuance of the judgment and order dated 09.02.2022 passed by theHigh Court of Judicature at Patna in CWJC No. 7751 of 2020 and forfurther direction to clarify that the order dated 23.07.2021 passed by thisBHon’ble Court in SLP (C) No. 10776 of 2021 has not interfered with theprocess of appointment of applicant. In order to deal with this application,some additional facts need to be noted.

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23. After the appointment letters were issued and 7 vacancieshaving fallen vacant against the Advertisement No. 6 of 2018 for theCreason that 4 candidates did not participate in the counselling and 3candidates did not join pursuant to their appointment, the State Governmenthad cancelled candidature of these 7 candidates. In effect, out of 349vacancies only 342 were filled up.

24. On the one hand, some of the candidates whose candidatureDwas cancelled by the Commission vide its resolution dated 27.11.2019had approached the High Court of Patna by way of different petitions.At the same time, another candidate from the waiting list namely SwatiChaturvedi filed a writ petition before the Patna High Court registeredas CWJC No. 3952 of 2020 praying for appointment against the vacanciesEwhich had fallen vacant she being a candidate from the unreservedcategory in the waiting list. The Division Bench of the High Court videjudgement dated 01.03.2021 allowed the petition of Swati Chaturvediand directed the State Government to send requisition for one post to theBPSC for recommending her name for appointment on the post of CivilJudge (Junior Division).F

25. The State of Bihar filed SLP (C) No. 11174 of 2021 againstthe judgment and order dated 01.03.2021 in the case of Swati Chaturvediwhich was dismissed in limine by this Court on 30.07.2021.

26. The Division Bench of the Patna High Court in the meantimeGon 04.05.2021 dismissed the petition of some of the present appellantsand later on following the same other petitions of the other appellantswere dismissed. In the present appeals, this Court while issuing notice inthe first case i.e. SLP (C) No. 10776 of 2021 filed by Aarav Jainconnected with SLP (C) No. 11089 of 2021 passed an interim orderdated 23.07.2021 providing that 3 posts of Civil Judge (Junior Division)H

in the category to which the petitioners belong were to remain vacant tillthe disposal of the instant petition. Further, similar interim orders followedon 08.10.2021 in SLP (C) No. 15809 of 2021, SLP (C) No. 16198 of2021 and SLP (C) No. 15819 of 2021 providing for keeping 4 posts ofCivil Judge (Junior Division) vacant till the disposal of the matter. Andlastly on 07.02.2022, similar orders were passed in SLP(C) No. 809 of2022 filed by Anita Kumar by keeping 1 post of Civil Judge (JuniorDivision) vacant till the disposal of the present petition in the category inwhich the petitioners belong.

27. The intervenor Jyoti Joshi filed a writ petition before the PatnaHigh Court registered as CWJC No. 7751 of 2020. This petition wasfinally decided vide judgement of the Division Bench dated 09.02.2022at a time when there were interim orders already passed by this Courtright from 23.07.2021 till 07.02.2022. The Division Bench of the PatnaHigh Court vide judgment dated 09.02.2022 allowed the said writ petitionand directed the State Government to send the requisition for all theposts which have remained vacant due to non-joining of the recommendedcandidates and the BPSC was directed to recommend the name of thecandidates from the combined merit list in order of merit for appointmentagainst Advertisement No. 6 of 2018. The operative portion of the saidjudgment as contained in paragraph 62 thereon is reproduced below:

“62. In result, I direct the State Government to send the requisitionfor all the posts which have remained vacant due to non-joining ofthe recommended candidates and the Bihar Public ServiceCommission (3[rd] Respondent) and it’s authorities are directed torecommend the name of the candidates from the combined meritlist/select list in order of merit for appointment on the post of CivilJudge (Junior Division) against Advertisement No.06 of 2018.”

28. This Judgment dated 09.02.2022 and the directions containedtherein were in direct conflict to the interim orders passed by this Courton 23.07.2021, 08.10.2021 and 07.02.2022. Apparently, these orders werenot placed before the Division Bench, and in ignorance of the same thedirections were issued. As such the BPSC has already moved anapplication to modify the judgment and order dated 09.02.2022 takinginto consideration the interim order passed by this court referred to above.The said modification application is still pending before the High Court.

29. Thus, the application for directions filed by Jyoti Joshi seekingthe directions as such cannot be granted nor can she claim parity or any AB

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Abenefit from the judgment of Swati Chaturvedi which was passed muchbefore the impugned judgment of the Division Bench of the Patna HighCourt or the interim orders passed by this Court. Accordingly, theInterlocutory Application for directions stands rejected.

BAnkit Gyan(Assisted by : Rahul Rathi, LCRA)

Appeals allowed.

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