No relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved with concern authority: Patna High Court.
The selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in a announcement, the same must be scrupulously sustained. There can be no relaxation in the terms and conditions of the advertisement, unless such power is specifically reserved. The petitioner filed a writ petition to directed respondent to treat petitioner under reserved category. The judgment was given by the High court of Bihar on the 23.08.2021 in the case of Kumari Anita vs. The State Of Bihar through the Principal Secretary, Department of Health, and others. Case No.[24816 of 2018.]
By the Hon’ble Mr. Justice Anil Kumar Sinha. The counsel for petitioner was Mr. Ajay Kumar Thakur, Advocate Mr. Nilesh Kumar, Advocate Mr. Pravin Kumar, Advocate Mr. Shashank Shekhar, Advocate Mr. Udbhav, Advocate and counsel for respondent represented by Mr. Satyam Shivam Sundaram, Advocate.
The petitioner has completed her revised auxiliany nurse midwifery course from Tirhut A.N.M training school Muzaffarpur and start workings as A.N.M at primary health center, Dariyapur. The Bihar governments give an advertisement for the appointment of A.N.M in the department of health government. The petitioner applied for this post under E.B.C category along with requisite certificates including caste certificate of E.B.C and petitioner belong to the “LOHARA” caste which come under E.B.C. The petitioners call for interview on 30.11.2016 and before appearance for interview, obtained caste certificate from competent authority. The petitioner name was not on final list of ST & E.B.C whereas the cut-off makes for ST was 39.28 and M.B.C 45.82 and petitioner obtain 59.67. The reservation clause of advertisement stated that the no change in the reservation category will be allowed subsequently once a candidate has claimed a particular reservation category.
The counsel for petitioner said that the commission has acted arbitrarily not declaring the result of the petitioner for the post of A.N.M under reserved category of ST. Further it was stated that before appearing for interview, the petitioner submitted caste certificate on said date. The counsel submitted that the State government comes out with some changes in caste category due to which, caste category of petitioner also changed. Counsel stated that the concerned authority refused to give non creamy layer certificate to the person belonging to “LOHARA”. And as per term of the advertisement the caste certificate/non creamy layer certificate was required to be produced at the time of interview and the caste category of the petitioner had changed from E.B.C/M.B.C to ST, so petitioner had no option but to produce caste certificate only not non creamy layer certificate. The state government made the changes in caste category therefore the caste category of petitioner also changed and petitioner cannot be penalized for that.
The counsel for the respondent submitted that the petitioner had applied under E.B.C which would be evident from the application form and the petitioner failed to submit the non creamy layer certificate at the time of interview. And it is settled law that the terms of advertisement has to be followed strictly. The counsel stated that in clause (ii) and (iii) of the reservation clause clearly mention that the candidate was required to excise his/her option of reservation category at the time of filling of application form & under no circumstance a candidate shall be allowed to change the category of reservation.
The high court of Bihar relied upon a division bench of the Patna High court in judgment of Vandana Govindam vs. the State of Bihar and Ors. (2011 (2) PLJR 585) was held that “every candidate seeking employment in Public Service has to abide by the terms and conditions of the advertisement and / or selection”
The Court relied upon Supreme Court on judgment of Harpal Kaur Chahal v. Director, Punjab Instructions held that “it is to be seen that when the recruitment is sought to be made, the last date has been fixed for receipt of the applications. Such of those candidates, who possessed of all the qualifications as on that date, alone are eligible to apply for and to be considered for recruitment according to Rules.”
The court after considered entire matter and heard both the counsel, stated that the petitioner had submitted application form for the post of A.N.M under E.B.C/M.B.C candidate & on the date of interview the petitioner failed to produce certificate of non creamy layer therefore the respondent have a right to not treat the petitioner to be E.B.C candidate and decided to treat him in general category. It is also admitted position that the Government letter was issued much after the last date of submission of the application form for appointment on 08.08.2016. There is no plea in the writ application that the petitioner had taken any step to obtain non creamy layer certificate at the time of submission of the application form or just thereafter. This shows the callous attitude of the petitioner and the petitioner was not diligent enough to obtain the requisite non-creamy layer certificate at the time of submission of the application form or just thereafter. The law is well settled that any change in status or caste will take effect prospectively and cannot relate back to a date specially when the notification does not indicate so. The Schedule Tribe certificate dated 11-11-2016 produced by the petitioner at the time of the interview would be amount of incompatibility between the statement made by the petitioner in the online application form and the change of category that the petitioner claimed at the time of the interview that is not permitted under the terms and conditions of the advertisement. Therefore, the court did not find any merit in the writ application and the same is dismissed.