Amit Kumar vs State Of Bihar Through District Magistrate And Ors

Heard learned counsel for the petitioner, learned counsel representing the Bihar State Board of Religious Trust, learned counsel representing the B.N.

Mandal University, Madhepura as also learned counsel for the State and respondent no. 7.

Petitioner in the present case is aggrieved by the order dated 28.09.2018 passed by the Administrator, Bihar State Board of Religious Trust, Patna as

contained in Annexure ‘15’ to the writ application by which the appointment of private respondent no. 7 on the post of Manager in the Trust in

question has been upheld and the objection of the petitioner has been rejected.

It is the case of the petitioner that in terms of the advertisement issued by the concerned Trust, the candidates desirous of being considered for the

post of Manager had to be a graduate on the date of filling up of the application form. In this regard he has relied upon the advertisement (Annexure

1) which specifically states that the applicant should apply through registered post in the office of the Secretary, Singheshwar Asthan Nyas Samiti by

20.07.2015 by way of an application along with his educational qualification and experience certificates which should be self attested. The interview

for the said post was fixed on 02.08.2015. It is submitted that the private-respondent no. 7 in this case was not having his graduation certificate on

20.07.2015 because his result of the second year graduation was yet not published. The final result declaring the respondent no. 7 a pass in graduation

was published only on 05.03.2016, therefore, the consideration of the candidature of the private-respondent is not in accordance with the terms of the

advertisement.

It is submitted that once the advertisement has placed a condition with regard to availability of the educational certificate while applying latest by

20.07.2015, no application could have been submitted without certificates. It is submitted that many a candidates who were in identical position with

that of the private respondent, it is possible having taken a fair view did not apply, therefore, it would be a totally unreasonable and arbitrary act on the

part of the respondent trust to consider the application of the respondent no. 7 for appointment on the post of Manager even though he was unable to

submit his application together with the essential educational qualification certificate. It is submitted that if this practice is allowed to exist then there

will be possibility of unfairness and favoritism in the matter of appointment. An employer may then get a person of his choice applied without

certificate and can delay the process of appointment for such time as may be required to accommodate his choice of candidate to enable him to obtain

the certificate. This according to him would not be a fair play in action.

Learned counsel for the Religious Trust Board as well as the University have not disputed the fact that even though the private respondent had

appeared and passed in the third year graduation examination of the year 2013 of the University, his result was pending because he had failed in the

second year of the graduation but was promoted in IIIrd year. It is an admitted position that subsequently the private respondent appeared in his

second year exam in the year 2014 but for certain reasons his result was not published and it was published only on 05.03.2016. On record there is an

admitted fact that in terms of the advertisement, as on 20.07.2015 the private respondent was not possessing the educational qualification certificate.

The reasons and the explanations have been sought to be advanced on behalf of respondent no. 7.

Learned counsel for the respondent no. 7 has made a submission that the respondent had passed out the entire papers in the year 2014 but the result

was not published due to some mis-match in his admit card and the same came to be published only on 05.03.2016. There was a submission that for

no fault on the part of the petitioner, the petitioner cannot be deprived from being appointed.

By filing a counter affidavit respondent no. 7 has come out with a plea that he was appointed on the said post of Manager by the then Chairman of the

Trust Committee vide Memo No. 3878 dated 26.02.2016 which was objected to by the Secretary of the Trust, therefore, the petitioner moved this

Court in C.W.J.C. No. 6673 of 2016 which was disposed off with a direction, as contained in Annexure ‘B/1’ to the counter affidavit of

respondent no. 7, directing the Administrator/Chairman of the Board to take a decision in accordance with law. Pursuant to the said direction the

Administrator/Board vide his order dated 28.09.2018 (the impugned order) decided it in his favour. The Administrator has taken note of the letter

dated 05.03.2016 written by the Examination Controller of the University wherein it is stated that there was some technical issue in the admit card of

the private respondent no. 7 because of which his result was kept pending and after removal of the technical difficulty his result had been published on

05.03.2016 hence the private respondent has been declared pass, he had passed the graduation third part examination of 2013 in second division.

Submission is that the respondent no. 7 will be taken to be a graduate of 2013 batch.

The Administrator has, thus, relied upon the said letter and held that because the result of the respondent was not published due to some technical

reasons, it cannot be said that he had not passed the graduation examination.

Having heard learned counsel for the parties and on perusal of the records this Court finds that there are some admitted facts in this case. The

advertisement (Annexure ‘1’) was published on 22.06.2015 calling upon the applicants to apply for the post of Manager if they possess the

requisite qualification of being a graduate from a recognized institution and has got an experience of working in office management, and maintenance

of account for a period of five year. The applicants had to submit their application together with all educational certificates and the experience

certificates which were to be self attested. The last date for making the application was 20.07.2015. The applications were to be examined and

interview was fixed on 02.08.2015 in the office of the Trust.

It is an admitted position that the respondent no. 7 was a student of Graduation in 2010-2013 batch, in the second year though he had failed in a paper

but was promoted to IIIrd year. He had though passed out the graduation third year examination of 2013 but because earlier he had failed in

graduation second part examination, he sat in that examination in the year 2014. Because of some technical reasons his result was not published. From

the counter affidavit of the private respondent it would appear that his marksheet of three year degree (Honors) course was issued vide Certificate

No. 12767 on 05.03.2016 only. He, however, while filling up his application for the post of Manager in the Trust declared himself a graduate of the

year 2013. It is evident that even on the date of his interview on 17.01.2016 and selection/appointment on 26.02.2016 the respondent no. 7 was not

having his educational certificate of graduation. The advertisement talks of experience of five years in office management and maintenance of

accounts in a recognized institution. Although this issue is not specifically pleaded, however, while considering the writ application this Court cannot be

a totally oblivion or a sleep to the facts appearing from the records. If five years period of experience is counted from the date of making of the

application (20.07.2015), it will relate back to 20.07.2010 meaning thereby that the candidate making application for the post must have got experience

of five years working in a recognized institution in office management and maintenance of account since 20.07.2010. The private respondent who

claims to have passed his graduation third part in the year 2013 as a regular student being in the batch of the year 2010-2013, if claimed his five years

experience as working in office Management, the impugned order at least nowhere take notes of that. This Court has indicated this only with a view

to take note of the entire facts and circumstances of the case.

The fact remains that neither on the date of application nor on the date of interview or his appointment (26.02.2016) the petitioner was having his

marksheet of the graduation and the certificate of passing graduation examination. The result was published only on 05.03.2016, therefore, this Court

has reasons to believe that the private respondent no. 7 was shown undue favour by the Selection Committee and later on by the Administrator.

A sympathetic view of the matter could have led to a conclusion that petitioner being in possession of the graduation certificate now his appointment

should not be interfered with. This Court has considered this aspect of the matter as well but in order to maintain the sanctity of the procedures of

appointment and to avoid any chance of favouritism, the Court is of the considered opinion that the terms of the advertisement are to be strictly

adhered to. A large number of eligible unemployed youth are waiting for a fair chance to get an employment. Whenever an advertisement for

appointment is published many eligible candidates or those who are about to be eligible go through the same but finding the terms of the advertisement

which require submissions of the educational certificate many a prospective candidates who may become eligible after the date of interview fixed in

the advertisement would restrain themselves under a bonafide belief that they are not eligible to apply as they do not possess the requisite educational

certificate. If one candidate makes an application without the educational certificate and his application is entertained despite the fact that he was not

able to produce his educational certificate with his application form and even at the time of interview, it would amount to altering the level playing field

and thereby it would be a case of discrimination.

In the present case, this Court is convinced that the respondent No. 7 was not possessing the educational certificate such as Marksheet and the

passing out certificate of Graduation because his result was not published until 05.03.2016, therefore, acceptance of his application and consideration

thereof for selection was not in accordance with the terms of advertisement and hence cannot be allowed to sustain. The impugned order dated

28.09.2018 as contained in Annexure ‘15’ to the writ application is, therefore, set aside. The concerned respondents are directed to consider the

case of the petitioner for appointment on the post of Manager of Singheshwar Temple Trust Committee, Singheshwar, Madhepura.

The writ application is, thus, allowed.