Anamika Asana vs State Of Bihar

This matter has been taken up for hearing online because of COVID-19 pandemic restrictions.

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.

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.

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.

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. 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.

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. 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.

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.

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.

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

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.â€​

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.

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 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 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.

The facts noted above are not in dispute.

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 respect of

eligibility of the candidates at the time of interview or thereafter, he contends.

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 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.

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 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.

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 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.

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 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 petitionersâ€. For the benefit of quick reference, relevant portion of Clause-6 of the

interview letter is being quoted hereinbelow:-

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.

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 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.

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 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 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.

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.

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.

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.

In any case, their candidature could not have been cancelled on the ground that they failed to produce certificates issued by the University.

These writ applications are accordingly allowed.

There shall be no orders as to costs.