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2020 Supreme(Pat) 601
IN THE HIGH COURT OF JUDICATURE AT PATNA
RAJEEV RANJAN PRASAD, J.
(25.9.2020)
CWJC No. 5727 of 2020
Kusum Kumari : Petitioner
Vs.
State of Bihar & Ors. : Respondents
For the Petitioner: Mr.Sanjay Kumar Sharma.
For the State : Mr. Gyan Prakash Ojha.
For the Commission : Mr. Kumod Kumar Srivastava.
Headnote:
Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act 1991 – Section 7 – Appointment on post of Auxiliary Nurse Midwifery – In advertisement it is clearly provided that claim of reservation made in online application shall not be allowed to be changed in any circumstance and in any circumstance in this respect no application shall be considered, therefore, at best Commission could have rejected change sought to be incorporated by petitioner in respect of her reservation category but as a consequence thereof Commission cannot proceed to place candidate in General Category – There cannot be any appointment in violation of Rules and qualification of a candidate is to be seen with respect to rules and not advertisement inviting applications – Petitioner had claimed her reservation in MBC category post on a valid cast certificate and then she had changed her category from MBC to Scheduled Tribe after getting a certificate in light of letter of General Administration Department – In terms of Act of 1991, petitioner is entitled to be treated under reserved category and she cannot be deprived of by putting any condition in advertisement de hors provisions of Act of 1991 – Change with regard to caste category from 'MBC' to 'ST' was only a bonafide act of petitioner and that would not take away her right to get reservation as Most Backward category candidate in accordance with provisions of Act of 1991 – Respondents directed to consider case of petitioner treating her name in Most Backward Class and make recommendation to Department for consideration of her name for appointment as A.N.M. (Paras 17, 18, 20, 21, 22, 23 and 24)
(2017) 4 SCC 568 – Relied.
RAJEEV RANJAN PRASAD, J.:–Heard learned counsel for the parties.
2. Learned counsel for the petitioner undertakes to remove all the defects within four weeks after start of normal functioning of this Court.
3. This writ application has been preferred seeking a direction to the respondents to consider the case of the petitioner for appointment on the post of Auxiliary Nurse Midwifery (hereinafter referred to as ‘A.N.M.’) in various departments.
4. It is the case of the petitioner that pursuant to the advertisement bearing no. 03010216 dated 27.02.2016 (Annexure ‘1’) she had submitted her online application for the post of A.N.M. The petitioner claims that she possessed the qualification required for that purpose and being a candidate in the category of Most Backward Class (‘MBC’) at the relevant time she had also disclosed her reservation category as ‘MBC’. She had obtained a caste certificate as non-creamy layer issued by the Circle Officer, Phulwarishariff vide certificate letter no. C-16/2191/9883 dated 15.09.2016 (Annexure ‘3’).
5. It is her further case that on receipt of the call letter for counseling-cum-interview, she had appeared in the counseling on 25.11.2016 in the office of the Bihar Staff Selection Commission (hereinafter referred to as the ‘Commission’) at Patna. She had submitted all the necessary documents as demanded by the Commission and had also submitted her noncreamy layer caste certificate of the category of Most Backward Caste.
6. In fact the difficulty arose for the petitioner because of the subsequent developments after filling up of the online application form. Online application in this case was submitted pursuant to the advertisement issued on 27.02.2016 and as the petitioner was awaiting receipt of her call letter, the Government of India came out with the Repealing and Amendment Act, 2016 and by virtue of the same the Constitution (Scheduled Tribes) Order Amendment Act, 2006 came to be repealed as a whole.
7. It is the case of the petitioner that the Government of Bihar in its General Administration Department vide letter no. 108/8 dated 08.08.2016 (Annexure ‘5’ series) informed all the departments of the Government that in respect of ‘Lohara’ (yksgkj) caste may be issued a certificate of Scheduled Tribe. Thus, because of Annexure ‘5’ series to the writ application the caste of the petitioner fell in the Scheduled Tribe category, therefore, she obtained a certificate of Scheduled Tribe and along with the noncreamy layer caste certificate of the category of Most Backward Caste, she also produced the ‘ST’ certificate before the Commission.
8. It is submitted that after the counseling was over, the Commission gave an opportunity to the candidates to file objection online if any correction was wanted by the candidate(s) in respect of his/her claim in the column as displayed by the Commission online. A copy of the notice regarding filing of objection is available on the record as Annexure ‘5’ series. The relevant part of the notice reads as under:—
^^3- ;fn fdlh vH;FkhZ dk 'kS{kf.kd vad@vuqHko vad@vkj{k.k Js.kh Hkwyo'k okLrfod ls vfèkd ;k fHkUu vafdr gks x;k gks] rks bldh lwpuk vkifÙk ds :i esa ntZ djuk vfuok;Z gksxk vU;Fkk Hkfo"; esa mudh vuq'kalk fu;qfDr fcuk dkj.k crk, jí dh tk ldrh gSA**
9. It is the case of the petitioner that under a bonafide belief and in good faith she corrected her reservation category from the Most Backward Class to Scheduled Tribe. She believed that because of the Government’s notification no. 108/18 dated 08.08.2016, now she is required to disclose her correct caste category. At the time of counseling she had already submitted both the certificates. Subsequently when the result was published by the Commission, name of the petitioner was not found in the list of successful candidates. Petitioner demanded her marks as well as cut-off marks of the various categories which were fixed by the Commission. The cut-off marks for ‘MBC’ candidates was 45.82. Petitioner got details of her mark
