Alka Toppo vs State of Jharkhand And Ors

Heard Mr. Shresth Gautam, learned counsel for the petitioner, Mr. Gaurav Abhishek, learned counsel for the respondent-State and Mr. Sanjay

Piprawal, learned counsel for the respondent-JSSC.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising

due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been

heard.

The petitioner has preferred this writ petition for quashing of letter dated 09.10.2018 whereby the claim of the petitioner with respect to reservation

in ST. category has been repudiated.

An Advertisement No. 08 of 2017 was published by the Jharkhand Staff Selection Commission for recruitment of Constables under Home, Prison

and Disaster Management Department, Government of Jharkhand. In view of aforesaid advertisement, the petitioner being eligible in terms of having

requisite qualification under S.T. category applied for the post of constable. The petitioner was required to disclose caste in the application format and

to produce caste certificate which was done by the petitioner at the time of verification of caste certificate but the case of the petitioner has been

rejected on the ground that the caste certificate has been issued by the Block Development Officer which is not in terms of advertisement which was

required to be issued by the officer not below the rank of Sub-divisional Officer.

Mr. Shresth Gautam, learned counsel for the petitioner submits that earlier caste certificate has been submitted by the petitioner issued by the Block

Development Officer but it has been certified by the Sub-divisional Officer. He submits that later on again the petitioner submitted caste certificate

which was issued by the Office of the Deputy Commissioner. He submits that in view of this as caste certificate is already there, the case of the

petitioner was arbitrarily rejected by the respondent-Jharkhand Staff Selection Commission. He submits that the case of the petitioner is covered with

the judgement rendered by the Hon'ble Supreme Court in the case of ""Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board and

Another"" reported in (2016) 4 SCC 754. He fairly submits that so far as the case of ""Ram Kumar Gijroya"" is concerned that has been referred to a

larger Bench of the Hon'ble Supreme Court however, larger Bench judgement is awaited and there is no stay.

Mr. Sanjay Piprawal, learned counsel for the respondent-JSSC submits that in view of the matter the petitioner was required to submit caste

certificate issued by the officer not below the rank of Sub-divisional Officer. He submits that in view of Clause 8 of the advertisement it was condition

precedent to submit caste certificate by the officer not below the rank of Sub-divisional Officer. He submits that the petitioner has got less marks in

unreserved category. He submits that the caste certificate of the petitioner has not been issued by the competent authority that is why the case of the

petitioner was considered in general category. He submits that the petitioner has got lesser marks that is why the case of the petitioner has been

rejected. He submits that so far as judgment relied by the learned counsel for the petitioner in the case of "" Ram Kumar Gijroya"" (supra) is concerned

that has been considered by a Co-ordinate Bench of this Court in W.P.(S) No. 5572 of 2017 alongwith other analogous writ petitions decided on

20.12.2019. He submits that entire aspect has been considered by the Co-ordinate Bench of this Court and all the writ petitions were dismissed. He

further submits that in that view of the matter the case of the petitioner is fit to be rejected.

Having heard the learned counsel for the parties and after going through the materials on record, it appears that it is an admitted position that in the

advertisement condition was prescribed in Clause-8 and in what manner caste certificate was required to be produced at the time of verification. The

caste certificate of the petitioner was issued by the Block Development Officer and not by the Sub-divisional Officer. So far as case of ""Ram Kumar

Gijoroya"" (supra) is concerned that has been considered by a Co-ordinate Bench of this Court. Para 24 of the judgment of the Co-ordinate Bench is

quoted here-in-below:-

Instant writ applications have been filed by the Petitioners on the ground that in view of the Judgment passed in the case of Ram Kumar Gijroya,

the Commission is bound to accept the caste certificate issued after the last date of submission of the online application form.

This prayer of the Petitioners is not acceptable on the ground that Petitioners were well aware about the terms and condition of the Advertisements

and there after only they have submitted their online application form before the Commission for consideration of their candidature. The Petitioners

were well aware that they are not possessing the valid caste certificates in terms of the Advertisement upto the last date of submission of online

application form, in spite of that they mentioned wrong information about caste certificate number and date in their online application form. When it

has been detected by the Commission that Petitioners are not possessing the valid caste certificate as mentioned by them in their online application

form and they have made wrong declaration in their online application form and as such benefits of reservation cannot be extended to them, thereafter

Petitioners have filed instant writ applications and as such the same are not maintainable and fit to be dismissed for the following facts and reasons.

(i) After appearance in the examination, terms and condition of the Advertisement cannot be challenged by the unsuccessful candidates.

(ii) Selection process has to be completed strictly in terms of the Advertisement.

(iii) After starting the selection process the terms and condition of the advertisement cannot be changed.

(iv) That if the prayer of the Petitioners is allowed, the same will amount to change of terms and conditions of the Advertisement, which is not

permissible in the eyes of law.

(v) If submission of the Petitioners as made during course of hearing to the effect that even if there is criteria mentioned in the Advertisement about

submission of the caste certificate issued in Proforma by an officer not below the rank of Sub Divisional Officer before the last date of the submission

of the Online application form is not mandatory in view of the judgments of the Hon'ble Supreme Court is accepted, the same will amount to

challenging the terms and conditions of the advertisement after appearance in the examination and same will also amount to change the terms and

conditions of the Advertisement which is not permissible in the eyes of Law. 23 RC

(vi) The submission of the Petitioners to the effect that once the petitioners have been allowed to appear in the Examination as a reserved category

candidate there after their candidature cannot be considered in unreserved category, the aforesaid submission of the Petitioners is also not correct and

cannot be accepted in view of the law laid down by the Hon'ble Supreme Court that candidature of the reserved category candidate on the ground of

having no valid caste certificate cannot be rejected rather their candidature has to be considered in unreserved category.

(vii) Ratio as laid down by the Hon'ble Supreme Court in Ram Kumar Gijroya case is not applicable in these cases in view of the fact that in Ram

Kumar Gijroya case, the submission of OBC certificate was introduced at the time of publication of the result where as in the present case the

specific criteria has been mentioned in the Advertisement that reserved categories candidates will have to obtained the caste certificate first and there

after only they will submit their online application form mentioning therein the caste certificate number and date of issue and caste certificate must be

issued before the last date of submission of online application form i.e.15.03.2016 in proforma mentioned in the Advertisement issued by an officer not

below the rank of Sub Divisional Officer.

(viii) The order dated 21.01.2016 as passed by the Hon'ble Kerala High Court in W.P(C) 39210/2015 (A) and order dated 12.07.2017 passed by

Hon'ble Kerala High writ appeal No. 655 of 2016 are not applicable in view of the fact that facts of the aforesaid case is different which would be

evident from perusal of Para-4 of the Order dated 21.01.2016 passed in W.P(C) 39210/2015 (A) which is quoted below:-

the learned counsel for the Petitioner raises two ground of challenge against Ext-P10. First, that the OBC certificate could be produced even at the

time of the Interview since there is no specific date of issuance of the OBC certificate prescribed in the Notification. The requirement, it is argued ,

was only for production of the certificate at the time of interview for document verification. The other ground is that the choices / option made by the

Petitioners were unilaterally varied by the Respondents."" In Para -8 it has further been held that ""learned CGSC would refer to Annexure-R3 (c) a

circular issued by the Department of Personnel and Training, which mandates that OBC Certificate in prescribed format issued up to 180 days from

the closing date of application alone could be accepted. First of all the internal communication issued cannot be relied on to restrict a benefits given to

a person under the Notification.

(ix) In the facts and circumstances of the instant cases, the Order dated 18.05.2019 passed by Hon'ble Division Bench of this Hon'ble Court in

W.P(S)1921/2018 Rohan Thakur -vs- State of Jharkhand and Ors is applicable in which the ratio laid down by the Hon'ble Supreme Court in Ram

Kumar Gijroya Case and order dated 12.10.2018 passed in L.P.A No. 610/2017 Anil Tanti case have been considered in terms of Advertisement of

aforesaid cases.

(x) The law laid down by Hon'ble Supreme Court in Ram Kumar Gijroya Case is not applicable in the instant case. In the said case of Ram Kumar

Gijroya, requirement of submission of O.B.C. certificate was not mentioned in the Advertisement and requirement of the submitting of the O.B.C

certificate before the cut-off date of the application was introduced by the respondents, which would be evident from perusal of Para-08 and 14 of the

order of the Hon'ble Supreme Court.

Para-8 and 14 of the judgment are being quoted herein below:- ""8. the requirement of submitting the O.B.C certificate before the cut-off date of the

application was introduced by the respondent D.S.S.S.B only while declaring the result on 15.12.2008 holding that appellant was not eligible for

selection to the post of Staff Nurse as the O.B.C certificate was received after the cut-off date"". ""14. the learned single judge of the High Court has

rightly held that the Petitioners therein were entitled to submit the O.B.C certificate before the provisional selection list was published to claim the

benefits of reservation of O.B.C category.

The Co-ordinate Bench has considered the judgement rendered by the Division Bench in L.P.A. No. 610 of 2017 with L.P.A. No. 618 of 2017. In

para 27 of the judgment, L.P.A. No. 610 of 2017 and L.P.A. No. 618 of 2017 was considered. In para 28 of the judgment terms and conditions have

been considered. The case of petitioner is fully covered with the judgment of the Co-ordinate Bench in W.P.(S) No. 5572 of 2017 along with

analogous writ petitions. Reference in this regard may be made to the case of ""Bedanga Talukdar Vs. Saifudaullah Khan and Others "" reported in

(2011) 12 SCC 85 wherein para 29 the Hon'ble Supreme Court has held as under:

We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public

office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any

undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection

procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be

any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the

relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such

power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This

would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and

compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14

and 16 of the Constitution of India.

In view of the aforesaid facts as the petitioner was aware of the terms and conditions of the advertisement, he needs to comply with the said

requirement. The caste certificate was not issued by the competent authority as prescribed in the advertisement. Thus, no relief can be extended to

the petitioner. Accordingly, this writ petition is dismissed. I.A., if any stands disposed of.