Aarav Jain vs The Bihar Public Service … on 23 May, 2022


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Supreme Court of India

Aarav Jain vs The Bihar Public Service … on 23 May, 2022

Author: Vikram Nath

Bench: S. Abdul Nazeer, Pamidighantam Sri Narasimha

                                                                Reportable
                               IN THE SUPREME COURT OF INDIA
                                 CIVIL APPELLATE JURISDICTION


                               CIVIL APPEAL NO. 4242   OF [email protected]
                      SPECIAL LEAVE PETITION (CIVIL) NO. 10776 OF 2021)

                      AARAV JAIN                         ...APPELLANT(S)
                                           VERSUS
                      THE BIHAR PUBLIC
                      SERVICE COMMISSION
                      & ORS.
                                                    ...RESPONDENT(S)
                                            WITH


                               CIVIL APPEAL NO. 4243   OF [email protected]
                      SPECIAL LEAVE PETITION (CIVIL) NO. 11089 OF 2021)

                      SANJAY KUMAR MISHRA & ANR. ...APPELLANT(S)
                                           VERSUS
                      THE STATE OF BIHAR AND ORS.      ...RESPONDENT(S)


                                             AND


                               CIVIL APPEAL NO. 4244   OF [email protected]
                      SPECIAL LEAVE PETITION (CIVIL) NO. 15809 OF 2021)

Signature Not VerifiedSUMIT KUMAR                        ...APPELLANT(S)
Digitally signed by
Charanjeet kaur
Date: 2022.05.23
16:45:36 IST
Reason:
                                           VERSUS
                      THE STATE OF BIHAR AND ORS.      …RESPONDENT(S)

                                              1
                       AND




        CIVIL APPEAL NO. 4246        OF [email protected]
SPECIAL LEAVE PETITION (CIVIL) NO. 15819 OF 2021)

MAYANK KUMAR PANDEY @
MAYANK & ANR                           ...APPELLANT(S)
                     VERSUS
THE STATE OF BIHAR AND ORS.          …RESPONDENT(S)


                       AND


        CIVIL APPEAL NO. 4245        OF [email protected]
SPECIAL LEAVE PETITION (CIVIL) NO. 16198 OF 2021)

ASHISH CHANDRA                   ...APPELLANT(S)
                     VERSUS
THE STATE OF BIHAR AND ORS.          …RESPONDENT(S)


                      AND


       CIVIL APPEAL NO.       4247   OF [email protected]
SPECIAL LEAVE PETITION (CIVIL) NO. 809 OF 2022)

ANITA KUMAR                            ...APPELLANT(S)
                     VERSUS
THE STATE OF BIHAR AND ORS.          …RESPONDENT(S)


                          2
                              JUDGMENT


VIKRAM NATH, J.

Leave granted in all the Special Leave Petitions.

2. For recruitment of 349 posts of Civil Judge (Junior

Division), the Bihar Public Service Commission issued an

Advertisement No. 6 of 2018, dated 23.8.2018 for

conducting 30th Bihar Judicial Services Examination. The

break-up of the 349 posts is as follows:

     i.       General/unreserved (01) – 175 posts
     ii.      SC (02) – 56 posts
     iii.     SC (03) – 03 posts
     iv.      EBC (04) – 73 Posts
     v.       Backward Class (05) – 42 Posts

3. After conducting the Screening Test, Written Test and

Interview, the Commission vide letter dated 02.12.2019

recommended names of 349 candidates in order of merit.

According to the figures available, out of the 349

recommended candidates, four candidates did not turn up

for counselling. As such appointment letters were issued on

different dates from January, 2020 to December, 2020 to
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345 candidates. Further out of these 345 candidates, three

candidates did not turn up for joining. As such the

candidature of seven candidates was cancelled by the State

Government vide orders issued on different dates. The

Appellants had admittedly secured higher marks than the

last selected candidates in their respective categories but

the Commission had cancelled their candidature for want of

fulfilment of the conditions required as per the interview call

letter.

4. One of the conditions required was to submit the

originals of certificates detailed therein which included

educational certificates, Caste certificates if claiming any

benefit of reservation, No Objection Certificates of previous

employer, Character Certificate of the last attended

College/University and other certificates of residence etc. at

the time of interview. Some of the candidates could not

produce the original Certificates as required, as a result of

which their candidatures were cancelled by the Commission

vide their meeting dated 27.11.2019. In its 102 nd meeting

of the Commission organised on 27.11.2019, the eligibility

of the candidates on the basis of their educational

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certificates, mark sheets, documents etc. presented at the

time of the interview which was conducted in between the

dates of 21.10.2019 to 27.10.2019 under the 30 th Bihar

Judicial Service Examination (Advertisement No. 06/2018),

the Commission examined the short comings and the non-

fulfilment of the requirement of the production of the

original documents/certificates at the time of the interview

and after dealing with each of the candidates, found deficit

in fulfilling the said requirement and cancelled the

candidature of as many as 58 candidates for different

reasons.

5. Some of these candidates approached the Patna High

Court by way of different Writ Petitions, either singly or

jointly. Division bench of the Patna High Court vide

Judgment impugned did not find favour with such

candidates and dismissed their petitions. Aggrieved by the

Judgment of the Patna High Court, the present Special Leave

Petitions have been preferred by eight candidates. It is not

in issue that the ground for rejection of the candidature of

these candidates was only and only non-production of the

original Certificates. The Commission has admitted these

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eight Appellants before us have scored higher marks from

the last selected candidates in their respective categories.

6. Out of these eight candidates, five namely Mayank

Kumar Pandey (SLP (C) No. 15819/21), Aarav Jain (SLP (C)

No. 10776/21), Ashish Chandra (SLP (C) No. 16198/21),

Siddharth Sharma (SLP (C) No. 11089/21) and Sanjay Kumar

Mishra (SLP (C) No. 11089/21) belong to the General/

Unserved Category. Sumit Kumar (SLP (C) No. 15809/21)

belongs to the EBC Category, Anita Kumar (SLP (C) No.

809/22) belongs to SC Category and Anand Raj (SLP (C)

No.15819/21) belongs to BC Category.

7. With respect to these 8 candidates named above, the

following shortcomings/deficiencies were noticed by the

Commission in its meeting dated 27.11.2019:

i. Aarav Jain failed to produce the original character

certificate from the last attended College/University

(his name finds place at Sr. No. 1 in the list of decision

dated 27.11.2019).

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ii. Anand Raj also failed to submit the original character

certificate issued from the College/University last

attended (his name finds place at Sr. No. 10 in the list

of decision dated 27.11.2019).

iii. Sumit Kumar failed to produce the original copy of

degree of law (his name finds place at Sr. No. 19 in the

list of decision dated 27.11.2019).

iv. Sanjay Kumar Mishra failed to produce the original of

the No Objection Certificate from his previous

employer (his name finds place at Sr. No. 26 in the list

of decision dated 27.11.2019).

v. Anita Kumar although had applied under the category

of SC (female) but she submitted the caste certificate

issued in the year 2002 which contained the name of

her husband, at the time of the interview, however,

later on she sent the caste certificate mentioning the

name of her father also on 13.11.2019 (her name finds

place at Sr. No. 29 in the list of decision dated

27.11.2019).

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vi. Siddharth Sharma failed to produce the original

certificate relating to affiliation of his educational

institution last attended with the Bar Council of India

and secondly, the original of the character certificate

issued from the College/University last attended (his

name finds place at Sr. No. 36 in the list of decision

dated 27.11.2019).

vii. Ashish Chandra did not submit the original character

certificate and the certificate related to the affiliation

of the educational institution last attended (his name

finds place at Sr. No. 55 in the list of decision dated

27.11.2019).

viii. Mayank Kumar Pandey did not submit original

character certificate and certificate of affiliation of the

last attended College/University. He had, however,

submitted the character certificate issued by the

Additional Commissioner, Commercial Tax (his name

finds place at Sr. No. 56 in the list of decision dated

27.11.2019).

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8. A perusal of the minutes of the meeting dated

27.11.2019 and the specific averments contained in the

respective petitions, it is evident that self-attested copies of

the certificates required were submitted by the appellants

at the time of their interview and even the originals were

later on submitted within a few days and in any case before

the meeting of the Commission took place on 27.11.2019.

These facts are not disputed or denied by the respondents.

9. It would be worthwhile to mention here that as per the

conditions mentioned in the advertisement for any

government employment, there is always a clause that in

the certificate/testimonies, if information furnished by any

candidate is found to be incorrect at a later stage, during

any enquiry, the candidature for such candidates is liable to

be cancelled. It is not the case of the respondent that any

of these certificates referred to in the decision dated

27.11.2019 have been found to be incorrect. It is only this

technical ground of not producing the original certificate at

the time of the interview that the candidature of these

appellants had been rejected even though they had scored

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higher marks in their respective category from the marks

obtained by the last selected candidate.

10. We had required the Commission and the State to

place on record the number of available vacancies in

different categories, so as to consider in case the appellants

succeed whether they could be placed in their respective

categories. The information which has been placed on

record by the State of Bihar reflects that there are 5 vacant

posts in the General Category and that there are no

vacancies in EBC, SC and BC categories as against the

Advertisement No. 6 of 2018.

11. In so far as the remaining two vacances were

concerned, they had been filled up by two candidates viz.

Swati Chaturvedi (from the wait list) and Rakesh Kumar

(who could not join within the time allowed) under orders

passed by the High Court and this Court. The writ petition

of Swati Chaturvedi being CWJC No.3952 of 2020 was

allowed by the Division Bench of the High Court vide

judgment dated 01.03.2021 and the SLP (C) No.11174 of

2021 filed by the State of Bihar was dismissed by this Court

on 30.07.2021. In so far as Rakesh Kumar is concerned, his

10
petition being CWJC No.3835 of 2021 was dismissed by the

High Court on 26.10.2021. This Court, however, allowed his

Civil Appeal No.1517 of 2022 vide judgment dated

18.02.2022.

12. The submission advanced on behalf of the appellants is

that all the Appellants had supplied attested true copies of

the certificates/documents as required. However, it was only

the original of the same which could not be provided in

time. It is further submitted that for submission of the

originals, time was sought and later on the originals have

been submitted. But despite the same, the Commission

proceeded to reject their candidature.

13. Another submission advanced on the behalf of the

appellants is that the requirement to submit the originals is

neither related to qualification or eligibility and in any case

before appointment or during the course of probation a

verification and vigilance report is always obtained by the

State. Therefore, non-furnishing of the original certificate at

the time of interview cannot be held to be mandatory or in

other words nothing turned upon it. Even if the original

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certificates/documents were not submitted at the time of

interview, the government would still be getting a

vigilance/verification check carried out.

14. Upon such submissions, it has been submitted that the

decision of the Commission rejecting their candidature was

per se illegal, unwarranted, unreasonable and too harsh. All

the eight appellants who were duly qualified and duly

selected have been deprived of their appointment as

Judicial Officers. Admittedly, all the Appellants had secured

more marks than the last selected candidate in their

respective category. It is further submitted that even the

High Court committed an error in dismissing their petitions.

15. On the other hand, it has been submitted on behalf of

the BPSC and the State that they could not relax any of the

condition which were mentioned in the advertisement or

their brochure or the interview call letter at different stages.

Any such relaxation would amount to not following their

own prescribed procedure which was not within their

domain. It is also submitted that appellants knowing fully

well the condition regarding submission of the original

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Certificates/Documents at the time of interview having

failed to do so, their candidature was rightly rejected.

16. Considering the facts and circumstances of the case,

without entering into the respective argument we are of the

considered view that the rejection of the candidates was

improper, unjustified and not warranted. We have also

taken note of the fact that there are vacancies available,

which if filled up by meritorious candidates would only be an

asset for the institution helping in disposal of cases

pending in huge numbers.

17. The next aspect which needs to be considered is with

respect to the adjustment of eight appellants against the

vacancies of the Advertisement No. 6 of 2018. In so far as

the five candidates of the unreserved categories are

concerned namely, Mayank Kumar Pandey, Aarav Jain,

Ashish Chandra, Siddharth Sharma and Sanjay Kumar

Mishra, (according to the state five vacancies are available),

they may be adjusted against these vacancies. The issue

now remains with respect to the three candidates belonging

to EBC, SC and BC category. For these three candidates, in

13
the facts and circumstances of the case the State may

either adjust them against future vacancies which we are

told are available at present or the State may borrow three

posts from future vacancies, one each in respective

categories for the Advertisement No.06 of 2018. This would

amount to varying the vacancies of the said advertisement

which power always vests in the employer. We further leave

it to the wisdom and discretion of the State to deal with the

above aspect either in the manner mentioned above or any

other mode which it may deem fit in order to accommodate

the three appellants belonging to the EBC, SC and BC

categories.

18. In the above arrangement, we make it clear it would

not affect the appointment/selection of already serving

Judicial officers appointed against Advertisement No. 6 of

2018.

19. The eight appellants would be entitled to their

respective seniority as per their merit; however, they would

not be entitled to any arrears of salary for the intervening

period, but would be entitled to the same from the date of

14
their joining. They would be forthwith allowed to join. All

incremental and other benefits of the intervening period

would be notionally available to them, but no arrears would

be paid.

20. The appeals are accordingly allowed as above. The

impugned decision of the Commission dated 27.11.2019

qua these appellants and the impugned judgments of the

High Court are set aside. There shall be no order as to costs.

21. Pending application(s), if any, shall stand disposed of.

I.A. Nos. 54711 & 54713 of 2022

22. I.A.No.54711 is allowed. The intervenor Jyoti Joshi has

prayed for directions to the effect that this Court may issue

appropriate directions requiring the Respondents to give

effect to the appointment of the applicant in pursuance of

the judgment and order dated 09.02.2022 passed by the

High Court of Judicature at Patna in CWJC No. 7751 of 2020

and for further direction to clarify that the order dated

23.07.2021 passed by this Hon’ble Court in SLP (C) No.

10776 of 2021 has not interfered with the process of

15
appointment of applicant. In order to deal with this

application, some additional facts need to be noted.

23. After the appointment letters were issued and 7

vacancies having fallen vacant against the Advertisement

No. 6 of 2018 for the reason that 4 candidates did not

participate in the counselling and 3 candidates did not join

pursuant to their appointment, the State Government had

cancelled candidature of these 7 candidates. In effect, out

of 349 vacancies only 342 were filled up.

24. On the one hand, some of the candidates whose

candidature was cancelled by the Commission vide its

resolution dated 27.11.2019 had approached the High Court

of Patna by way of different petitions. At the same time,

another candidate from the waiting list namely Swati

Chaturvedi filed a writ petition before the Patna High Court

registered as CWJC No. 3952 of 2020 praying for

appointment against the vacancies which had fallen vacant

she being a candidate from the unreserved category in the

waiting list. The Division Bench of the High Court vide

judgement dated 01.03.2021 allowed the petition of Swati

Chaturvedi and directed the State Government to send

16
requisition for one post to the BPSC for recommending her

name for appointment on the post of Civil Judge (Junior

Division).

25. The State of Bihar filed SLP (C) No. 11174 of 2021

against the judgment and order dated 01.03.2021 in the

case of Swati Chaturvedi which was dismissed in limine by

this Court on 30.07.2021.

26. The Division Bench of the Patna High Court in the

meantime on 04.05.2021 dismissed the petition of some of

the present appellants and later on following the same other

petitions of the other appellants were dismissed. In the

present appeals, this Court while issuing notice in the first

case i.e. SLP (C) No. 10776 of 2021 filed by Aarav Jain

connected with SLP (C) No. 11089 of 2021 passed an

interim order dated 23.07.2021 providing that 3 posts of

Civil Judge (Junior Division) in the category to which the

petitioners belong were to remain vacant till the disposal of

the instant petition. Further, similar interim orders followed

on 08.10.2021 in SLP (C) No. 15809 of 2021, SLP (C) No.

16198 of 2021 and SLP (C) No. 15819 of 2021 providing for

keeping 4 posts of Civil Judge (Junior Division) vacant till the

17
disposal of the matter. And lastly on 07.02.2022, similar

orders were passed in SLP(C) No. 809 of 2022 filed by Anita

Kumar by keeping 1 post of Civil Judge (Junior Division)

vacant till the disposal of the present petition in the

category in which the petitioners belong.

27. The intervenor Jyoti Joshi filed a writ petition before the

Patna High Court registered as CWJC No. 7751 of 2020. This

petition was finally decided vide judgement of the Division

Bench dated 09.02.2022 at a time when there were interim

orders already passed by this Court right from 23.07.2021

till 07.02.2022. The Division Bench of the Patna High Court

vide judgment dated 09.02.2022 allowed the said writ

petition and directed the State Government to send the

requisition for all the posts which have remained vacant due

to non-joining of the recommended candidates and the

BPSC was directed to recommend the name of the

candidates from the combined merit list in order of merit for

appointment against Advertisement No. 6 of 2018. The

operative portion of the said judgment as contained in

paragraph 62 thereon is reproduced below:

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“62. In result, I direct the State Government to
send the requisition for all the posts which have
remained vacant due to non-joining of the
recommended candidates and the Bihar Public
Service Commission (3rd Respondent) and it’s
authorities are directed to recommend the name of
the candidates from the combined merit list/select
list in order of merit for appointment on the post of
Civil Judge (Junior Division) against Advertisement
No.06 of 2018.”

28. This Judgment dated 09.02.2022 and the directions

contained therein were in direct conflict to the interim

orders passed by this Court on 23.07.2021, 08.10.2021 and

07.02.2022. Apparently, these orders were not placed

before the Division Bench, and in ignorance of the same the

directions were issued. As such the BPSC has already

moved an application to modify the judgment and order

dated 09.02.2022 taking into consideration the interim

order passed by this court referred to above. The said

modification application is still pending before the High

Court.

29. Thus, the application for directions filed by Jyoti Joshi

seeking the directions as such cannot be granted nor can

she claim parity or any benefit from the judgment of Swati
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Chaturvedi which was passed much before the impugned

judgment of the Division Bench of the Patna High Court or

the interim orders passed by this Court. Accordingly, the

Interlocutory Application for directions stands rejected.

………………………………..J.

[S. ABDUL NAZEER]

……………………………….J.

[VIKRAM NATH]
NEW DELHI
May 23, 2022.

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