Sweety Kumari vs The State Of Bihar

2023INSC853 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6072 OF 2023 [ARISING OUT OF S.L.P. (C) NO. 9964 OF 2022]

SWEETY KUMARI …APPELLANT(S)

VERSUS

THE STATE OF BIHAR AND OTHERS ...RESPONDENTS

WITH

CIVIL APPEAL NO. 6073 OF 2023 [ARISING OUT OF S.L.P. (C) NO. 12637 OF 2022

WITH

CIVIL APPEAL NO. 6074 OF 2023 [ARISING OUT OF S.L.P. (C) NO. 16749 OF 2023]

JUDGMENT

J. K. MAHESHWARI, J.

1. Leave granted.

2. In the instant three appeals, the judgments passed by the Signature Not Verified High Court of Judicature at Patna (hereinafter referred to as “High Digitally signed by Nidhi Ahuja Date: 2023.09.22 17:36:15 IST Reason:

Court”) in Sweety Kumari v. State of Bihar and Others (CWJC No.

1 18038/2021) dated 03.11.2021; Vikramaditya Mishra v. State of

Bihar and Others (CWJC No. 3707/2020) dated 04.09.2021; and

Aditi v. Bihar Public Service Commission Patna and Others. (CWJC

No. 15325/2022) dated 19.04.2023 are under challenge. By the said

judgments, the High Court upheld the decision of the official

Respondents. The candidature of appellants was rejected by the

official respondents on account of non-furnishing of original

character certificates (in case of Sweety Kumari and Vikramaditya

Mishra) and law degree (in case of Aditi) respectively.

3. The High Court in the first two cases dismissed the writ

petitions relying upon the order passed in the case of a similarly

situated candidate titled as Aarav Jain v. The Bihar Public Service

Commission and Ors. (CWJC No. 24282/2019) decided on

04.05.2021. Whereas in the third case, the High Court while dealing

with the case of the appellant Aditi and one similarly placed

candidate named Ankita, through a common order found that

though the appellant Aditi has her case on merits at par with Ankita,

but due to non-availability of the vacancy in EWS category the relief

as granted to Ankita cannot be extended to appellant Aditi.

4. The appellants Sweety Kumari, a candidate of Scheduled

Caste (SC) category and Vikramaditya Mishra, unreserved category 2 candidate, appeared in 30th Bihar Judicial Service Competitive

Examination (hereinafter referred to as “30th Examination”)

conducted for selection of Civil Judge (Junior Division) pursuant to

an Advertisement No. 6 of 2018 dated 21.08.2018/23.08.2018. Both

the candidates have been declared successful in the preliminary

examination vide the results declared on 07.01.2019 and main

examination vide result declared on 05.10.2019 after obtaining more

marks than the cut-off for their respective category. Pursuant to this,

they were called for interview vide letter dated 15.12.2019.

5. The candidature of the appellants Sweety Kumari and

Vikramaditya Mishra was rejected on account of not producing the

original character certificates at the time of interview. True

photocopies were produced. However, while declaring the result on

27.11.2019/29.11.2019, the candidature of the present two

appellants as well as of one, Aarav Jain were rejected by a common

communication.

6. On other hand, appellant Aditi applied in the Economically

Weaker Section (EWS) category in furtherance to the 31st Bihar

Judicial Service Competitive Examination (hereinafter referred to as

“31st Examination”). She secured 501 marks, whereas cut-off was

499. Her candidature was rejected on the ground of not having the 3 law degree certificate on the date of interview. The candidature of

the similarly situated candidate Ankita was also cancelled on the

same ground. However, on the filing of separate writ petitions which

was disposed of by a common order, Ankita was granted relief by the

High Court due to availability of vacancy in SC category, but Aditi

was denied relief due to non-availability of the vacancy in the EWS

category.

7. In view of the foregoing factual scenario, the questions that

fall for consideration before us are as under:

i) Whether the rejection of the candidatures of the

appellants due to non-production of the original

certificate at the time of interview by the Bihar Public

Service Commission (hereinafter referred to as “BPSC”)

is justified?

ii) In the facts and circumstances of the case, what relief

can be granted to the appellants?

8. Undisputed facts of the case succinctly put are that the

appellants Sweety Kumari and Vikramaditya Mishra appeared in

30th Examination in furtherance to the advertisement No. 6 of 2018

published on 21.08.2018/23.08.2018 by the BPSC to fill up the 349

4 vacancies. The said advertisement was issued in furtherance of the

Bihar Civil Service (Judicial Branch) Recruitment Rules, 1955

(hereinafter referred to as “the Rules”). Appellant Sweety Kumari

applied in SC category while appellant Vikramaditya Mishra applied

in the un-reserved category. Aarav Jain along with seven other

candidates also applied in the unreserved, SC, EBC and BC

categories respectively. Their candidature had also been rejected on

similar grounds. On challenging the said rejection, the High Court

passed a detailed order in CWJC No. 24282 of 2019 titled as ‘Aarav

Jain v. The Bihar Public Service Commission and others’ and

dismissed the said petition by upholding the rejection by the BPSC.

9. By the impugned orders dated 03.11.2021 and 04.09.2021,

the writ petitions filed by Sweety Kumari and Vikramaditya Mishra

respectively, have been rejected relying upon judgment dated

04.05.2021 passed in the case of Aarav Jain.

10. Aarav Jain and seven others similarly placed candidates filed

their respective petitions before this Court in Civil Appeal No. 4242

of 2022 titled Aarav Jain v. The Bihar Public Service Commission

and Ors. as the leading matter which were decided by a common

judgment dated 23.05.2022. By the said judgment this Court

repelled the contention of BPSC regarding cancellation of the 5 candidature due to non-submission of the originals at the time of the

interview as their true photocopies were on record and subsequently,

the originals were also submitted before BPSC. This Court was of the

opinion that the plea of non-submission of the originals at the time

of interview is neither related to the qualification nor eligibility and a

verification and vigilance report is anyway obtained by the State

during probation. Therefore, the production of the original was not

a mandatory condition. The stand of the BPSC had materially

resulted in the dis-qualification of candidates who were otherwise in

the merit list. Therefore, in the facts and circumstances of the case,

this Court directed that the rejection of candidature was improper,

unjustified and not warranted.

11. This Court granted relief to the eight candidates in the civil

appeal of Aarav Jain (supra) by adjusting the available five

vacancies in the unreserved category and for the other three

candidates belonging to EBC, SC and BC category, it was directed to

the State to either adjust them against future vacancies which were

stated to be available at that time or the State was permitted to

borrow three posts from future vacancies, one each in respective

categories. It was also held that the power to vary the vacancies of

the said advertisement always vests in the employer under the

6 wisdom and discretion of the State. This Court gave weight to the

fact that all the candidates secured marks more than the cut-off and,

therefore, such meritorious candidates would only be an asset for

the institution helping in disposal of cases. This Court further

directed to allow to all these eight candidates the benefits of

increment and other notional benefits at par to other selected

candidates as per their merits without arrears of salary.

12. In the said appeal, one Jyoti Joshi filed an application for

intervention seeking directions for her appointment in

implementation of judgment dated 09.02.2022 passed in CWJC No.

7751 of 2020 by the High Court and also sought clarification to the

effect that the interim order dated 23.07.2021 passed in Aarav Jain

(supra) has not interfered with her appointment. This Court

dismissed the said intervention application vide the judgment passed

in Aarav Jain (supra) and denied her the benefit because she was

in the waiting list and not in the merit list. More so, the interim

orders dated 23.02.2021, 08.10.2021 and 07.02.2022 passed in

Aarav Jain (supra), keeping the posts vacant, being prior in time,

have also not been brought to the notice of the High Court, before

passing of the final order dated 09.02.2022. It is apparent that the

civil appeals filed in the case of Aarav Jain (supra) have been

7 decided in favour of the candidates and against the employer and the

said order was already implemented.

13. We have heard learned counsel for the parties and have

perused the Bihar Civil Service (Judicial Branch) (Recruitment),

Rules, 1955 (hereinafter referred to as the ‘Rules’) and the

Advertisement No. 6 of 2018. Rule 7(b) of the Rules contemplates

that a candidate must satisfy BPSC that his character is such as to

qualify him for appointment to the service. Rule 9 prescribes that

the candidate should submit evidence as to educational

qualifications; certificate of character from the Heads of the Colleges,

where he/she has studied; the reference of two known persons;

certificate of medical practitioner in prescribed form; and the

certificate of the duration of practice from the respective authorities.

The second note to Rule 9 indicates that the certificates and other

documents required should be true copies of the originals and each

of them should be certified by a gazetted officer, specifying that after

seeing the original, he certified the true copy of the same. The

candidate may be required to produce the original before BPSC at

the time of viva voce test.

14. In view of this position in the rules it can safely be perceived

that the candidate must be of good character so as to satisfy BPSC 8 in this regard by submitting true photocopies and upon requirement

by BPSC, the original may be produced at the time of viva voce test.

Therefore, it is clear that the candidate should possess the character

certificate and if required, it may be made available at the time of

interview. The said language makes it clear that the production of

the original certificates at the time of interview is not mandatory but

directory. This is apparent from the language of second note to Rule

9 which uses the word “may be required to produce the originals

before commission at the time of viva-voce test”.

15. In furtherance to the Rules, the advertisement No. 6 of 2018

was issued. Clause 7(ii) of the said advertisement is regarding online

applications which prescribes that for any defects in entry made by

candidate in the course of filling the online application, the

commission shall not be responsible, and correction and change in

this regard shall not be permissible. As per Clause 8(1) of the

advertisement, the documents attached to the online application

form may be produced when the commission demands at the time of

the interview or at any point of time. As per Clause 9, the certificates

regarding qualification is required to be possessed prior to the last

date. As per Clause 10, all the certificates and marksheets are

required to be submitted at the time of interview and the commission

9 shall have discretion to take a decision regarding eligibility of

candidates not complying with the said directions. Clause 11 of the

advertisement relates to the fact that the candidate shall ensure that

he has all the required certificate in original at the time of filling of

application form.

16. In view of the various clauses, as referred to hereinabove,

even going by the advertisement, the certificates of educational

qualification and other required documents on the date of the

submission of the online application form must be necessarily

possessed but its production is not mandatory. In clause 3 of the

interview letter sent to the candidates, indeed it was mentioned that

they shall be present with the certificates, mark-sheet and other

documents including character certificate, in original form and its

self-attested photocopies in two numbers. Appellant Sweety Kumari

has averred in the writ petition and the Special Leave Petition that

her original character certificate was submitted in the State Bar

Council and the same was not made available to her within the

stipulated deadline despite her best attempts. On the other hand,

appellant Vikramaditya Mishra has averred that the department of

his Law College has sent the original character certificate to the

Controller of Examination, BPSC by post which was dispatched on

10 25.11.2019 and delivered to BPSC on 27.11.2019. Despite, the same,

their candidature was rejected for want of original copies of the

character certificate.

17. In the case of Aarav Jain (supra), this Court has not

accepted the plea taken by BPSC that production of original

certificate was mandatory because the candidates possessed such

certificates on the date of submission of the application form. This

Court was of the opinion that once such a condition is not

mandatory, then non-production of original copies at the time of

interview would not be sufficient to reject the candidature of a

candidate who was placed in the merit.

18. The view taken by this Court is fortified by the analogy drawn

in the case of Charles K. Skaria and Others vs. Dr. C. Mathew

and Others (1980) 2 SCC 752 whereby Justice Krishna Iyer

speaking for the Court held that the factum of eligibility is different

from factum of proof thereof. This Court held that if a person

possesses eligibility before the date of actual selection, he cannot be

denied benefit because its proof is produced later.

19. In the present case, the proof is available and true

photocopies were on record. The appellants’ candidature could not

11 have been rejected merely because the original was not produced

before the Commission at the time of interview in particular when

such requirement was not mandatory, in view of the manner in

which the Rules are couched.

20. Now, coming to the case of appellant Aditi in SLP (Civil) No.

16749/2023, she has passed the final examination but the

certificate of law degree was not issued to her. The High Court in the

impugned order dated 19.04.2023 has relied upon the judgment of

Charles K. Skaria (supra) to support her contention and observed

that when the candidate possesses the required essential

qualification on the date on which it was required, then there cannot

be any justification in not accepting the late arrival of the certificate

because of the pandemic. However, the High Court has declined to

grant the relief on the pretext that she had applied under EWS

category for which 23 posts were earmarked and those posts have

already been filled up. The High Court also observed that though she

has secured 501 marks which was 2 marks more than the cut off

for the EWS category, but it was not known as to who may be the

last successful candidate in the EWS category. Also at the time of

passing of impugned order those posts had already been filled. Thus

due to non-availability of posts, the relief was denied. 12

21. As per the directions issued by this Court vide order dated

14.8.2023, the Registrar General of the High Court of Judicature at

Patna filed an affidavit after perusing the documents produced before

him by the State of Bihar and the BPSC. In the said affidavit, it is

admitted that the case of the appellants Sweety Kumari and

Vikramaditya Mishra is similar to the case of Aarav Jain (supra).

As per the information furnished by the High Court, appellant

Sweety Kumari in SC category secured 414 marks when the cut-off

was 405 marks and the appellant Vikramaditya who applied under

unreserved category secured 543 marks whereas the cut off under

the unreserved category was 517. It is also fairly stated that in the

30th Examination, the total vacancies were 349 but after issuing of

the directions by this Court, the State appointed 351 candidates

deducting one post each of EWS and SC category from the future

vacancies which were to be advertised under the 32nd Examination.

22. Learned counsel for the appellant Sweety Kumari has fairly

stated before this Court that she got selected in the 31st Examination

under the SC category and joined the service. In view of the

discussion made hereinabove and the affidavit filed by the Registrar

General, it is clear that the case of appellant Sweety Kumari and

appellant Vikramaditya Mishra are at par with the case of Aarav Jain

13 and other seven candidates who were appointed in furtherance of the

judgment of this Court dated 23.05.2022 in Aarav Jain (supra).

23. Appellants in Aarav Jain (supra) have been appointed by the

State Government extending the number of vacancies advertised in

the 30th Examination by borrowing those extra vacancies from the

32nd Examination. The vacancies notified for the 32nd Examination

are in process of being filled. The case of appellants Sweety Kumari

and Vikramaditya Mishra were dismissed by the High Court relying

upon its earlier judgment dated 04.05.2021 in Aarav Jain v. The

Bihar Public Service Commission (CWJC No. 24282/2019). The said

judgment dated 04.05.2021 was challenged by Aarav Jain and seven

other candidates by filing special leave petitions. The said special

leave petitions were converted into civil appeals and this Court vide

judgment dated 23.05.2022 set-aside the judgment dated

04.05.2021 of the High Court.

24. Therefore, there cannot be any reason to deny similar benefits

to the present two appellants at par with Aarav Jain and seven other

candidates as ordered by this Court in Aarav Jain (supra). We are

of the considered view that present aforesaid two appellants (Sweety

Kumari, Vikramaditya Mishra) cannot be discriminated by not

granting relief merely because of non-availability of vacancies in the 14 30th Examination.

25. Reverting to the case of appellant Aditi, which is related to

the 31st Examination, as per the affidavit submitted by the Registrar

General, it is apparent that out of 221 vacancies advertised, only 214

candidates were recommended for appointment and seven vacancies

have been carried forward to the 32nd Examination. Thus, there are

vacancies, which are yet to be filled up for the 32nd Examination. The

process of selection is not yet complete. Learned counsel appearing

on behalf of the State of Bihar and BPSC, in the peculiar facts of the

case, have fairly stated that because of the directions issued by this

Court in the case of Aarav Jain (supra), the other candidates who

secured more marks than the cut-off in the merit of the respective

categories, can be accommodated. However, upon issuance of

directions by this Court, the State Government is ready to

accommodate all the three candidates (namely Sweety Kumari,

Vikramaditya Mishra and Aditi) who have also secured more marks

than cut-off for their respective categories.

26. In view of the discussion made hereinabove, because Sweety

Kumari secured 414 marks though cut off in SC category was 405

and Vikramaditya Mishra secured 543 marks, though cut off was

517 in the unreserved category in the 30th examination and they were 15 candidates of merit, they be extended the benefit at par with the

Aarav Jain (supra) and others.

27. The appellant Aditi appeared in 31st Examination, and

secured 501 marks, whereas cut off was 499 in EWS category.

Therefore, the respondents are directed to adjust one vacancy of

EWS for the same examination or from the next examination and

extend similar benefits to Aditi, in view of the ratio of Aarav Jain

(supra).

28. Accordingly, we set-aside the impugned judgments dated

03.11.2021, 04.09.2021 and 19.04.2023 passed by the High Court.

The appellants Sweety Kumari and Vikramaditya Mishra be

accommodated being successful candidate in the 30th Examination

and appellant Aditi be accommodated being a successful candidate

in the 31st Examination.

29. We clarify that this judgment is passed in the peculiar facts

of the case to mitigate the plea of discrimination to candidates who

are before us and who knocked the door of the court well within time.

It is made clear here that similarly situated candidates would not be

entitled to claim the same benefit further, because they have not

come before this Court within a reasonable time.

16

30. In view of above, the appeals are allowed. Pending

application, if any, stands disposed of. No order as to costs.

..……..……..........…......J. (J.K. MAHESHWARI)

……….……...................J. (K.V. VISWANATHAN) NEW DELHI;

SEPTEMBER 22nd, 2023.

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