Md. Arman Son of Hafiz Aftab Ahmad Vs. the State of Bihar Through the Director Geneal of Police and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/849605
SubjectService
CourtPatna High Court
Decided OnJul-20-2009
Case NumberCWJC No. 2327 of 2009
Judge V.N. Sinha, J.
Reported in2009(57)BLJR3046
AppellantMd. Arman Son of Hafiz Aftab Ahmad
RespondentThe State of Bihar Through the Director Geneal of Police and ors.
Appellant Advocate Shakeel Ahmad Khan, Sr. Adv. and; Zeyaul hoda, Adv.
Respondent Advocate Ritesh Kr., A.C to AAGI,; P.K. Shahi, A.G. and; S.S. Sun
Excerpt:
service law-appointment-benefit of reservation-appellant's case not considered because certificate submitted before commission did not indicate 'mbc' while mentioning caste 'kasab'-candidate in his application in omr form did mention caste and mbc category-mistake committed by district magistrate and his office while issuing caste certificate as certificate did not indicate whether kasab caste is mbc-commission directed to consider petitioner as kasab in mbc category and to recommend his case for appointment. - v.n. sinha, j.1. heard the learned counsel for the petitioner and the learned advocate general for the bihar staff selection commission (hereinafter referred to as the commission). in compliance of my order dated 7.7.2009, learned counsel for the commission has produced the copy of the newspaper in which notice dated 13.10.2007 was published which is taken on record.2. petitioner has filed this writ application for a direction to the commission to consider his case as a most backward class (annxure-1) candidate for appointment on the post of sub inspector of police pursuant to advertisement no. 704 of 2004. such prayer is being refuted by the commission on the ground that while applying for the post in response to the advertisement petitioner had indicated in the application form his reservation category b.c. i.e. backward class. in support of such fact, petitioner filed certificate dated 24.7.2002 of the sub divisional officer which indicated that he is kasab by caste. the application form and the caste certificate submitted by the petitioner before the commission is contained in annexure a/1 and a/2 to the counter affidavit filed on behalf of the commission. it is further submitted that in response to the notice dated 13.10.2007 published in the newspaper, petitioner filed certificate dated 8.11.2007 of the district magistrate which also indicate that he is kasab by caste. the certificate however did not indicate whether kasab is mbc annexure-1 or b.c annexure-2 category. the copy of the certificate dated 8.11.2007 filed by the petitioner before the commission is at annexure-b to the counter affidavit of the commission. perusal of annexure-b would indicate that the certificate is issued under the signature of the district magistrate but the certificate does not indicate whether kasab caste is amongst mbc annexure-1 or bc annexure-2, as the district magistrate, for the reasons best known to him, failed to strike out one of the two category which was irrelevant in the certificate dated 8.11.2007 (annexure-b).3. learned advocate general with reference to the aforesaid two certificates submitted that as the petitioner himself had indicated in the application form that he is b.c., he could not be considered as m.b.c. i.e. annexure-1. he further submitted that the prayer made in the writ application is fit to be rejected as the petitioner has not approached this court with clean hands as along with the writ petition he has not annexed the copy of the certificate dated 8.11.2007 (annexure-b), which he had filed before the commission pursuant to notice dated 13.10.2007. the copy of the certificate dated 8.11.2007 filed before this court is contained in annexure-2 to this application, perusal whereof would indicate that there under district magistrate has struck off annexure-2 meaning thereby that petitioner by caste kasab is mbc annexure-1. such fact was not indicated by the district magistrate in copy of the certificate dated 8.11.2007 annexure-b which was filed by the petitioner before the commission. highlighting the difference between the copy of the certificate dated 8.11.2007 as contained in annexure-b filed before the commission and annexure-2 filed before this court, learned advocate general submitted that this court should dismiss the writ application.4. learned counsel for the petitioner in response to the aforesaid submission of the learned advocate general has submitted that along with the original application form petitioner had filed caste certificate granted by the sub divisional magistrate which indicated that he is kasab by caste but such certificate could not be relied upon as in terms of the notice dated 13.10.2007 petitioner and the other applicants were directed to fill up omr form indicating caste status as also to produce caste certificate granted by the district magistrate or authority duly authorized by him. petitioner in response to the notice dated 13.10.2007 filled up omr form indicating that he is kasab by caste which is in the mbc annexure-1 category and to establish such fact produced the caste certificate dated 8.11.2007 granted by the district magistrate which indicated that petitioner is kasab by caste. the certificate however did not clarify whether kasab caste is amongst mbc annexure-1 or bc annexure-2 category. omission to indicate the category of kasab caste in the certificate dated 8.11.2007 annexure-b was by the district magistrate and this court appreciating such mistake/omission directed the district magistrate under orders dated 24.3.2009 to file counter affidavit explaining the circumstance in which the other copy of the certificate dated 8.11.2007 annexure-2 filed by the petitioner with the writ petition indicated that petitioner is kasab by caste which is amongst mbc annexure-1 category. in response to such direction, the district magistrate has filed affidavit which is dated 14.5.2009 and in the said affidavit, the district magistrate has admitted that in the office copy of the certificate dated 8.11.2007 correction has already been made but the correction is not authorized by the competent authority and appears to have been made by taking the office in collusion.5. having heard learned counsel for the parties, it appears that under notice dated 13.10.2007, the commission called upon the applicants to fill up omr form indicating their caste and category as also to file fresh caste certificate of the district magistrate or person authorized by him. in view of the contents of the subsequent notice dated 13.10.2007 information furnished by the petitioner about his caste status in the original application form became irrelevant. in compliance of the notice dated 13.10.2007 petitioner filled up omr form indicating that he is by caste kasab which is amongst mbc annexure-1 category and to corroborate his caste status as was required under clause-6 of the notice dated 13.10.2007 submitted certificate dated 8.11.2007 annexure-b granted by the district magistrate. the certificate however did not indicate whether kasab caste is amongst annexure-1 or annexure-2. omission not to provide the category of kasab caste in certificate dated 8.11.2007 annexure-b was by the district magistrate which appears to have been noticed by the petitioner after he had filed the certificate along with the omr form. having noticed the omission, petitioner appears to have invited the attention of the office of the district magistrate towards the omission/mistake in the certificate dated 8.11.2007 annexure-b. the office of the district magistrate it appears thereafter without obtaining the orders of the district magistrate corrected the office copy and the personal copy of the petitioner's certificate dated 8.11.2007 by striking out the irrelevant clause in both the copy indicating that kasab is amongst mbc annexure-1 category which was filed in this court with the writ petitioner as annexure-2. in view of my consideration above, petitioner himself appears to be a victim of the mistake/omission committed by the district magistrate and his office while issuing certificate dated 8.11.2007. accordingly, i direct the commission to consider petitioner as kasab in the most backward class (annexure-1) category and if he is within the striking distance and purview of appointment then recommend his case for appointment on the post of the sub inspector of police. the learned advocate general however submitted that the vacancies which were notified in the advertisement have already been filled up. in the facts and circumstances of the case, the commission is directed to issue notice to the last selectee in the mbc annexure-1 category and after hearing the last selectee the commission shall pass orders for his removal so that petitioner who has secured higher marks than the last selectee in the mbc annexure-1 category is given offer of appointment.6. necessary exercise in compliance of this order be made as early as possible in any case within one month from the date of receipt/production of a copy of this order.
Judgment:

V.N. Sinha, J.

1. Heard the learned Counsel for the petitioner and the learned Advocate General for the Bihar Staff Selection Commission (hereinafter referred to as the Commission). In compliance of my order dated 7.7.2009, learned Counsel for the Commission has produced the copy of the newspaper in which notice dated 13.10.2007 was published which is taken on record.

2. Petitioner has filed this writ application for a direction to the Commission to consider his case as a most backward class (Annxure-1) candidate for appointment on the post of Sub Inspector of Police pursuant to Advertisement No. 704 of 2004. Such prayer is being refuted by the Commission on the ground that while applying for the post in response to the advertisement petitioner had indicated in the application form his reservation category B.C. i.e. backward class. In support of such fact, petitioner filed certificate dated 24.7.2002 of the Sub Divisional Officer which indicated that he is Kasab by caste. The application form and the caste certificate submitted by the petitioner before the Commission is contained in Annexure A/1 and A/2 to the counter affidavit filed on behalf of the Commission. It is further submitted that in response to the notice dated 13.10.2007 published in the newspaper, petitioner filed certificate dated 8.11.2007 of the District Magistrate which also indicate that he is Kasab by caste. The certificate however did not indicate whether Kasab is MBC Annexure-1 or B.C Annexure-2 category. The copy of the certificate dated 8.11.2007 filed by the petitioner before the Commission is at Annexure-B to the counter affidavit of the Commission. Perusal of Annexure-B would indicate that the certificate is issued under the signature of the District Magistrate but the certificate does not indicate whether Kasab caste is amongst MBC Annexure-1 or BC Annexure-2, as the District Magistrate, for the reasons best known to him, failed to strike out one of the two category which was irrelevant in the certificate dated 8.11.2007 (Annexure-B).

3. Learned Advocate General with reference to the aforesaid two certificates submitted that as the petitioner himself had indicated in the application form that he is B.C., he could not be considered as M.B.C. i.e. Annexure-1. He further submitted that the prayer made in the writ application is fit to be rejected as the petitioner has not approached this Court with clean hands as along with the writ petition he has not annexed the copy of the certificate dated 8.11.2007 (Annexure-B), which he had filed before the Commission pursuant to notice dated 13.10.2007. The copy of the certificate dated 8.11.2007 filed before this Court is contained in Annexure-2 to this application, perusal whereof would indicate that there under District Magistrate has struck off Annexure-2 meaning thereby that petitioner by caste Kasab is MBC Annexure-1. Such fact was not indicated by the District Magistrate in copy of the certificate dated 8.11.2007 Annexure-B which was filed by the petitioner before the Commission. Highlighting the difference between the copy of the certificate dated 8.11.2007 as contained in Annexure-B filed before the Commission and Annexure-2 filed before this Court, learned Advocate General submitted that this Court should dismiss the writ application.

4. Learned Counsel for the petitioner in response to the aforesaid submission of the learned Advocate General has submitted that along with the original application form petitioner had filed caste certificate granted by the Sub Divisional Magistrate which indicated that he is Kasab by caste but such certificate could not be relied upon as in terms of the notice dated 13.10.2007 petitioner and the other applicants were directed to fill up OMR Form indicating caste status as also to produce caste certificate granted by the District Magistrate or authority duly authorized by him. Petitioner in response to the notice dated 13.10.2007 filled up OMR Form indicating that he is Kasab by caste which is in the MBC Annexure-1 category and to establish such fact produced the caste certificate dated 8.11.2007 granted by the District Magistrate which indicated that petitioner is Kasab by caste. The certificate however did not clarify whether Kasab caste is amongst MBC Annexure-1 or BC Annexure-2 category. Omission to indicate the category of Kasab caste in the certificate dated 8.11.2007 Annexure-B was by the District Magistrate and this Court appreciating such mistake/omission directed the District Magistrate under orders dated 24.3.2009 to file counter affidavit explaining the circumstance in which the other copy of the certificate dated 8.11.2007 Annexure-2 filed by the petitioner with the writ petition indicated that petitioner is Kasab by caste which is amongst MBC Annexure-1 category. In response to such direction, the District Magistrate has filed affidavit which is dated 14.5.2009 and in the said affidavit, the District Magistrate has admitted that in the office copy of the certificate dated 8.11.2007 correction has already been made but the correction is not authorized by the competent authority and appears to have been made by taking the office in collusion.

5. Having heard learned Counsel for the parties, it appears that under notice dated 13.10.2007, the Commission called upon the applicants to fill up OMR Form indicating their caste and category as also to file fresh caste certificate of the District magistrate or person authorized by him. In view of the contents of the subsequent notice dated 13.10.2007 information furnished by the petitioner about his caste status in the original application form became irrelevant. In compliance of the notice dated 13.10.2007 petitioner filled up OMR form indicating that he is by caste Kasab which is amongst MBC Annexure-1 category and to corroborate his caste status as was required under Clause-6 of the notice dated 13.10.2007 submitted certificate dated 8.11.2007 Annexure-B granted by the District Magistrate. The certificate however did not indicate whether Kasab caste is amongst Annexure-1 or Annexure-2. Omission not to provide the category of Kasab caste in certificate dated 8.11.2007 Annexure-B was by the District Magistrate which appears to have been noticed by the petitioner after he had filed the certificate along with the OMR form. Having noticed the omission, petitioner appears to have invited the attention of the office of the District magistrate towards the omission/mistake in the certificate dated 8.11.2007 Annexure-B. The office of the District Magistrate it appears thereafter without obtaining the orders of the District Magistrate corrected the office copy and the personal copy of the petitioner's certificate dated 8.11.2007 by striking out the irrelevant clause in both the copy indicating that Kasab is amongst MBC Annexure-1 category which was filed in this Court with the writ petitioner as Annexure-2. In view of my consideration above, petitioner himself appears to be a victim of the mistake/omission committed by the District Magistrate and his office while issuing certificate dated 8.11.2007. Accordingly, I direct the Commission to consider petitioner as Kasab in the most backward class (Annexure-1) category and if he is within the striking distance and purview of appointment then recommend his case for appointment on the post of the Sub Inspector of Police. The learned Advocate General however submitted that the vacancies which were notified in the advertisement have already been filled up. In the facts and circumstances of the case, the Commission is directed to issue notice to the last selectee in the MBC Annexure-1 category and after hearing the last selectee the Commission shall pass orders for his removal so that petitioner who has secured higher marks than the last selectee in the MBC Annexure-1 category is given offer of appointment.

6. Necessary exercise in compliance of this order be made as early as possible in any case within one month from the date of receipt/production of a copy of this order.