RAM MILAN THAKUR v. The State Of Bihar

3. Learned counsel for the petitioner has submitted that when the advertisement for the post of Assistant Prosecution Officer was issued on 28.03.2009, the petitioner being eligible had submitted his application claiming reservation in the backward category but the State Government subsequently on

25.03.2010 had declared the caste of the petitioner, Lohar and Karmakar as EBC (Extremely Backward Category) and as such after the certificate was issued to the petitioner on 10.07.2010 by the Competent authority declaring the petitioner belonging to EBC(Extremely Backward Category), he had filed an application in the office of Bihar Public Service Commission (hereinafter referred to as the Commission) for treating him as the candidate of E.B.C. Patna High Court CWJC No.23760 of 2012 (3) dt.29-01-2013 3

4. According to learned counsel for the petitioner, the petitioner had appeared in the Preliminary Test Examination for the post of Assistant Prosecution Officer on

21.07.2012 when the name of the petitioner did not find place among 1514 successful candidates screened Preliminary Test, he had made inquiry after downloading his marks of the Preliminary Test from the website of Bihar Public Service Commission on 30.10.2012, he came to know that though he had secured 137 marks in the Preliminary Test was not declared successful whereas the last cut-off for the candidate of EBC(Extremely Backward Category) was 124 marks.

5. Learned counsel for the petitioner has also explained that after acquiring knowledge of the last cut-off marks of the EBC(Extremely Backward Category), he had represented his case before the authorities of the Commission for declaring his result of Preliminary Test so as to enable him to appear in the Mains Examination but no action was taken on such request of the petitioner and an advertisement has been issued for Patna High Court CWJC No.23760 of 2012 (3) dt.29-01-2013 4 holding Mains Examination

12.11.2012 fixing Mains Examination as 21.12.2012, he had filed the present writ application on 19.12.2012.

6. According to the learned counsel for the petitioner the case of the petitioner is squarely covered by the judgment of the Apex Court in the case of Indira Sawhney etc. vs Union of India & others, reported in AIR 1993 SC 477 .

7. On the other hand learned counsel for the respondents have taken a plea that once the petitioner had filed his application claiming himself to be the Backward Category no change could have been made in his category only because after filing of the application the Government had put his caste from Backward Category to Extremely Backward Category. In this regard reliance has been placed by the respondents on a Full Bench judgment of this Court in the case of Braj Kishore Prasad & Ors. Vs State of Bihar and Ors reported in 1998(3) PLJR 35 as also on a judgment of this Court in the case of Vandana Govindam vs The State of Bihar and Ors, reported in 2011(2) PLJR 585. Patna High Court CWJC No.23760 of 2012 (3) dt.29-01-2013 5

8. In the considered opinion of this Court, the change of reservation category of the petitioner in the midst of selection process is not permissible for more than one reason. The advertisement as noted above was issued on 28.03.2009 and the last date of filing of the application was 27.04.2009. The petitioner therefore, application claiming reservation on the basis of his being Backward Caste. Thus, if the reservation category/class of the caste of the petitioner subsequently after one year had been changed by the Government resolution dated 25.03.2010 and his caste was brought into the fold of Extremely Backward Category, he could not have been allowed to claim the benefit of his changed caste in the on going selection process which had already commenced by issuance of the advertisement.

9. The petitioner also having taken part in such selection process on the basis of the rules of reservation which were in force on the date of commencement of the selection process has to be guided by the Rules which were in force on the date of advertisement. This aspect of the matter Patna High Court CWJC No.23760 of 2012 (3) dt.29-01-2013 6 stands well settled in a large number of decisions of the Apex Court and this Court including the case of P. Mahendran vs the State of Karnataka reported in AIR 1990 405, wherein, following the ratio laid down in the case of A. N Calton vs Director of Education reported in 1983 SC 1143, it has been held that the rules which were prevailing on the date of commencement of selection had to be followed and any amendment in the Rule could not have been taken into account after commencement of the process of selection.

10. Reliance placed by learned counsel for the petitioner on the following portion of the advertisement:- (i) vkosnu esa fu;r dzekad ds v/khu bafxr vkj{k.k dk nkok ugha djus ij vkj{k.k dk ykHk ugha feysxk A vkj{k.k dh lqfo/kk mUgha mEehnokjksa dks feysxh] ftudk LFkk;h fuokl fcgkj jkT; esa gS vFkkZr tks fcgkj ds ewyoklh gSa A fcgkj jkT; ds ckgj ds fuoklh vH;FkhZ vkj{k.k ds ykHk gsrq nkok ugha djsaxs A (ii) vkjf{kr mEehnokj ds fy, fiNM+k oxZ ,oa vR;Ur fiNM+k oxZ dh n’kk esa vius LFkk;h vf/kokl ftyk ds ftykf/kdkjh }kjk gLrk{kfjr ;k izfrgLrk{kfjr vFkok muds }kjk izkf/kd‘r vij lekgrkZ }kjk fuxZr dzhehys;j izek.k i= ,oa vuqlwfpr tkfr@ vuqlwfpr tutkfr dh n’kk esa vius LFkk;h vf/kokl ftyk ds vuqeaMy inkf/kdkjh }kjk fuxZr tkfr izek.k i= ekU; gksxk A fofgr vkj{k.k izek.k i= izLrqr djus ds fy, mEehnokj ds lk{kkRdkj dh frfFk vafre frfFk gksxh] mDr frfFk ds Ik’pkr~ izLrqr fd;k x;k tkfr izek.k i= vekU; gksxk vkSj lacaf/kr mEehnokj lkekU; …vukjf{kr‰ dksfV esa vafdr fd;s tk;saxs A (underlining for emphasis) is also wholly misplaced, inasmuch the , underlined portion of the aforementioned Patna High Court CWJC No.23760 of 2012 (3) dt.29-01-2013 7 terms and conditions of the advertisement clearly refers to the category of reservation which has been mentioned by the candidate in his application form. In other words, if the petitioner had declared himself to be of backward category in his application for that he had the liberty to produce his caste certificate even up to the date of interview.

11. That is how this Court will have to read the aforesaid terms and conditions of the advertisement, inasmuch as, if the other portions of the same advertisement is taken into account, it becomes more than clear that not only the Rules of reservation in force at the time of advertisement was made applicable for the selection process undertaken for the post of Assistant Prosecution Officer but even the cut-off marks for the different category of reservation were provided, wherein, a candidate of general category was required to secure at least 40 per cent marks whereas a candidate of backward category had to secure at least 36.5 per cent marks and the candidate of Extremely Backward Category was required to secure at least 34 per cent marks whereas the candidate of SC and ST and Patna High Court CWJC No.23760 of 2012 (3) dt.29-01-2013 8 Female of the backward category had to secure 32 per cent marks as laid down in the Government resolution no. 15838

22.12.1990.

12. In the light of the aforementioned discussion there would be no difficulty in accepting the submission of Mr. Ashok Kumar Singh, learned senior counsel appearing on behalf of Bihar Public Service Commission that the petitioner could not have been treated to be the candidate of Extremely Backward Category after filing of the application by the petitioner. Mr. Singh infact is also correct in placing his reliance on the decision taken by a Full Bench of the Commission on 11.10.2012 relevant portion whereof reads as follows:- xq:okj] fnukad 11-10-2012 dks 04-00 cts vijkg~u vkgwr vk;ksx dh iw.kZ ihB dh o"kZ 2012 dh lrkbloha cSBd dh dk;Zokgh dk;kZoyh la[;k 04% vk;ksx }kjk izdkf’kr foKkiu la[;k & 39@3009] lgk;d vfHk;kstu inkf/kdkjh izfr;ksfxrk ijh{kk ds vUrxZr dfri; mEehnokjksa ls izkIr vkosnuksa ds lUnHkZ esa mudh vkj{k.k lEcU/kh ik=rk ds lEcU/k esa …lafpdk la[;k& 7 lh@ ijh{kk&01&01@2009 ‰ A ladYi % mi;qZDr ,rn~fo"k;d lays[k ,oe~ layXu dkxtkr ds voyksdu ,oe~ mu ij fopkjksijkUr vk;ksx dks Li"V gqvk fd vk;ksx }kjk izdkf’kr foKkiu la[;k 39@2009] lgk;d vfHk;kstu inkf/kdkjh izfr;ksfxrk ijh{kk ds vUrxZr dfri; oSls mEehnokjksa ls vkosnu i= izkIr gq, gSa]ftudh vkj{k.k dh fLFkfr esa lkekU; iz’kklu foHkkx] fcgkj ds i=kad & 11@fo0&2&fi0o0vk0&06@2005] lk0&2927] fnukad 21-07- 2010 ds vkyksd esa ifjorZu gks x;k gS vFkkZr~ mudh vkj{k.k dksfV fiNM+k oxZ …vuqlwph&02‰ ls ifjofrZr gksdj vR;Ur fiNM+k oxZ …vuqlwph&01‰ gks xbZ gS A Patna High Court CWJC No.23760 of 2012 (3) dt.29-01-2013 9 02- mi;qZDr lEcU/k esa vk;ksx }kjk lE;d~ fopkjksijkUr fu.kZ; fy;k x;k fd pwWafd foKkiu la[;k & 39@2009 ds vUrxZr vkosnu izkfIr dh vfUre frfFk 27-04-2009 rd mDr vH;kosndksa dh vkj{k.k dksfV fiNM+k oxZ …05‰ dh Fkh] vr% mUgsa fiNM+k oxZ …05‰ vkj{k.k dksfV ds vUrxZr gh ekudj vxzrj dkjZokbZ dh tk;A

13. This Court would also find that the Government decision dated 28.11.2012 as contained in Annexure-B to the counter affidavit of the Commission supports the view taken by the full bench of the Commission and for the sake of clarity and convenience, the Government decision dated 28.12.2012 is also quoted hereinbelow:- i=kad&11@vk0 uh0&I&01@2012lk0 ---------------------------------------@ fcgkj ljdkj lkekU; iz’kklu foHkkx isz"kd] lsok esa] uohu pUnz >k] ljdkj ds la;qDr lfpo A lHkh foHkkx] lHkh foHkkxk/;{k] lHkh izeaMyh; vk;qDr] fuca/kd] lHkh fo’ofo|ky;] lHkh ftyk inkf/kdkjh] lfpo] fcgkj yksd lsok vk;ksx] lfpo] fcgkj la;qDr izos’k izfr;ksfxrk ijh{kk Ik"kZn] lfpo] fcgkj deZpkjh p;u vk;ksx] lfpo] dsUnzh; p;u Ik"kZn~ …flikgh HkrhZ‰] iVuk As iVuk&15] fnukad uoEcj] 2012 fo"k;%&fu;qfDr@izksUufr@ukekadu dh tkjh izfdz;k ds chp vkj{k.k dksfV esa lq/kkj ugha djus ds laaca/k esa A egk’k;] mi;qZDr fo"k; ds lanHkZ esa funs’kkuqlkj dguk gS fd jkT; ljdkj dh fofHkUu fuf;qfDr;ksa gsrq vk;ksx }kjk foKkiu ds izdk’ku ,oa vkosnu izkfIr ds ckn jkT; ljdkj }kjk dfri; tkfr;ksa dh vkj{k.k dksfV esa ifjorZu fd;s tkus dh fLFkfr esa vkosnd ds vkj{k.k dksfV esa rnuqlkj lq/kkj djus ds fcUnq ij fcgkj deZpkjh p;u vk;ksx }kjk bl foHkkx ls ;kfpr eUrO; ds izlax esa fof/k foHkkx dk ijke’kZ izkIr fd;k x;k A vr% fof/k foHkkx ls izkIr fof/kd ijke’kZ ds vkyksd esa lalwfpr fd;k tkrk gS fd fdlh Hkh fu;qfDr@ izksUufr@ ukekadu dh fu/kkZfjr izfdz;k dks ’kq: djus ds ckn iwoZ ls ykxw fdlh fu;e@ fu;ekoyh esa tcrd dksbZ la’kks/ku fdlh Hkwrkis{kh frfFk ls ykxw ugha gks] rc rd tkjh fu;qfDr@ izksUufr @ ukekadu dh Patna High Court CWJC No.23760 of 2012 (3) dt.29-01-2013 10 izfdz;k ds chp esa fdlh izdkj dk la’kks/ku ugha fd;k tk ldrk gS A ,rn~laca/kh iwoZ fuxZr vkns’k …;fn dksbZ gks‰] ds vlaxr va’k bl gn rd la’kksf/kr le>s tk;saxs A vuqjks/k gS fd vius v/khuLFk dk;kZy;ksa dks bl vkns’k dh izfr ifjpkfjr djus dh d‘ik dh tk, A fo’oklHkktu] g0@& …uohu pUnz >k‰ ljdkj ds la;qDr lfpo Kkikad&11@ vk0uh0& I&01@2012lk0 ---------@iVuk&15] fnukad uoEcj 2012 izfrfyfi %& lfpo] fcgkj deZpkjh p;u vk;ksx] iksLV&osVujh dkWyst] ’ks[kiqjk]iVuk&14 dks muds i=kad 875 fnukad 24-02-2012 ds izlax esa lwpuk ,oa vko’;d dkjZokbZ gsrq izsf"kr A g0@& ljdkj ds la;qDr lfpo Kkikad&11@vk0uh0&I&01@2012lk0 16144@iVuk&15]fnukad & 28 uoEcj]2012 izfrfyfi %& vkbZ0 Vh0 eSustj] lkekU; iz’kklu foHkkx dks foHkkxh; osclkbZV ij viyksM djus gsrq izsf"kr A (underlining for emphasis) ljdkj ds la;qDr lfpo

14. As a matter of fact this aspect has also been decided by this Court in the case of Vandana Govindam(supra) wherein after following the law laid down by a Full Bench of this Court in the case of Braj Kishore Prasad(supra) it was held as follows:- and/or "By now it is well settled that every candidate seeking employment in public service has to abide by the terms and conditions of the advertisement and here in this case either Clause-3 of the advertisement of Clause-6 of the interview call letter speculation that a subsequent caste certificate could not have been entertained for giving the selection Patna High Court CWJC No.23760 of 2012 (3) dt.29-01-2013 11 benefit of the extremely backward category. It is this aspect of the matter which was decided by the Full Bench of this Court in the Kishore Prasad(supra), wherein, it was held that the supporting documents cannot be received after the last date fixed by the selecting authority." Braj

15. The reliance placed by learned counsel for the petitioner on the judgment of the Apex Court in the case of Indira Sawhney(supra) with specific reference to paragraph no. 121 seems to be wholly mis- conceived. Paragraph no. 121 of the judgment only says about the enforcement of Government decision regard scheme reservation. There is no doubt that the petitioner’s caste came to be included in the Extremely Backward Category on 25.03.2010 but then the benefit of the same could not have been given to an advertisement and selection process undertaken on 28.03.2009. In this regard, it is also relevant to mention here that the aforementioned executive decision dated 25.03.2010 with regard to inclusion of the caste of the petitioner in the Extremely Backward Category has not been given retrospective operation and therefore, the judgment in the case of Indira Sawhney Patna High Court CWJC No.23760 of 2012 (3) dt.29-01-2013 12 (supra) will be of no avail to the petitioner.

16. Thus the long and short of the case of the petitioner is that though in future, he may be entitled to claim his reservation as Extremely Backward Caste but he cannot claim such benefit of reservation of Extremely Backward Category for the selection process undertaken for the post of Assistant Prosecution Officer which as noted above had commenced on 28.03.2009 much before the order of the State Government was issued bringing the caste of the petitioner in the Extremely Backward Category. There is also nothing on record to show that the petitioner on the basis of his reservation of backward caste as declared by him in his application filed in the year 2009, having failed to secure the minimum cut off marks i.e. 154 while he had secured only 137 marks as shown in Annexure-6 to the writ application could have qualified for Written Test. Thus Court therefore will have no difficulty in holding that the decision of the Commission in not declaring the petitioner to have passed in the Preliminary Test is correct both on fact Patna High Court CWJC No.23760 of 2012 (3) dt.29-01-2013 13 and in law.

17. That being so, this application is wholly misconceived and is, accordingly, dismissed. (Mihir Kumar Jha, J) Patna High Court Dated the 29th January 2013 A.F.R./Ranjan