Shruti Suman vs The State Of Bihar & Ors.

Heard Mr. Siddhartha Prasad, learned Advocate for the petitioner along with Mr. Om Prakash Kumar, learned Advocate and Mr. Sanjay Pandey, learned Advocate for the B.P.S.C. with learned Advocates, Mr. Nishant Kumar Jha and Mr. Prabhakar Pahepuri. The State is also represented through Mr. Kumar Gangesh Gunjan, learned G.P.-7.

The petitioner, an aspirant for appointment on different posts/services in Government Departments in terms with advertisement for 64^th Combined (Pre) Competitive Examination, has approached this Court on being aggrieved by the Letter dated 24.07.2021 issued under the signature of the Joint Secretary-cum-Examination Controller, Bihar Public Service Commission (in short ‘Commission’), whereby and whereunder the candidature of the petitioner, which was earlier recommended by the BPSC vide result dated 06.06.2021 for the post of Section Officer, Bihar Legislative Assembly, has been cancelled on the ground of non-production of EBC Non-Creamy Layer Certificate at the time of interview. A prayer has also been made to direct the respondent authorities to appoint the petitioner on the post to which the petitioner was rightly recommended by the Commission vide result dated 06.06.2021, as she has secured 332 rank in merit list and 4^th rank in allotted reservation category and accordingly allotted the cadre of Section Officer, Bihar Legislative Assembly.

The undisputed facts, as culled out from the records, are reproduced briefly hereinbelow for proper adjudication of the matter:

Mr. Siddhartha Prasad, learned Advocate for the petitioner, adverting to the aforesaid facts, primarily submitted that it is not in dispute that the petitioner applied under the Extremely Backward Class category candidate with a duly issued caste certificate along with other necessary and requisite certificates/papers and on being found eligible, Admit Card was issued. The petitioner successfully passed the Preliminary and Main Examination and was allowed to participate in the interview. At the time of verification of the certificates, all the original certificates have been duly produced and at no point of time any objection has been raised.

The aforesaid facts also gets strengthened from a bare perusal of checklist dated 10.01.2021 which clearly demonstrates that the petitioner had submitted the caste certificate along with Non-Creamy layer caste certificate and after having received all the original documents and upon being satisfied, a copy of the checklist has been issued. The position is also admitted to the extent that without any demur, unconditionally the final result has been published and the petitioner was shown at 332^nd rank in the merit list and 4^th rank in the allotted reservation category. Consequent whereupon, she was allotted the cadre/post of Section Officer, Bihar Legislative Assembly. Had there been any shortcoming and deficiency in the application form or at the time of the scrutiny of the paper, the petitioner could have very well been informed but at no point of time, any objection has been raised, rather the petitioner has been declared successful and recommendation has been made for her appointment on the post of Section Officer.

It is argued that the entire submission also stands corroborated on a bare perusal of Annexure-P/4, the final merit list. It is discernible from the result that those candidates, who failed to submit their caste certificate, Non-Creamy Layer Certificate, Disability Certificate and Dependents of Freedom Fighter Certificate, their cases were duly considered by treating them General Category candidates and on being found that they failed to secure the cut-off marks under General Category, their candidature came to be rejected. However, the petitioner was not amongst those whose candidature was cancelled, rather on being satisfied in the interview and the verification of the certificates, her result has been published.

It is further argued that in the advertisement, there was no such stipulation that Non-Creamy Layer Certificate must be of the recent year and, thus, any subsequent notice before or at the time of interview that Non-Creamy Layer Certificate must have been issued within one year is wholly arbitrary and illegal and for the said reason, the petitioner cannot be held disentitled to get her appointment. It is fairly contended that the petitioner had given her Non-Creamy Layer Certificate of the year 2006 to the BPSC at the time of interview and on being satisfied with the Non-Creamy Layer Certificate, the result was published but, later on, after realizing that Non-Creamy Layer Certificate of the petitioner was an old one, the BPSC called the petitioner to submit a new Creamy Layer Certificate. Accordingly, the petitioner submitted the new Non-Creamy Layer Certificate dated 22.07.2021 in the office of the BPSC.

It is specifically contended that even in absence of recent Non-Creamy Layer Certificate, the petitioner had submitted her income certificate showing total income of her family to the tune of Rs. 90,000/-, which is less than the limit. The Non-Creamy Layer Certificate is made on the basis of income certificate. If the income of the petitioner's parents is Rs. 90,000/- or less than Rs. 90,000/-, then automatically she comes under Non-Creamy Layer. Hence, the impugned action/order of the Commission, withdrawing the earlier recommendation issued in favour of the petitioner, is wholly illegal, arbitrary, and unsustainable.

Per contra, learned Advocate for the Commission, Mr. Pandey, refuting the aforesaid contention, submitted that during re-checking of the documents of the petitioner along with other successful candidates upon publication of the result, it was found that the petitioner did not submit the Non-Creamy Layer Certificate for verification at the time of interview. The check list as contained in Annexure-F series, especially Column 5 thereof, clearly suggests that the petitioner failed to submit the Non-Creamy Layer Certificate. Therefore, she was not given the benefit of reservation. However, her candidature was considered under Unreserved Category and since the petitioner could not obtain the cut-off marks in Preliminary Examination under Unreserved Female Category, therefore she was declared failed and the Commission has published a corrigendum on 24.07.2021 in this regard.

Referring to Clause 13(ii) of the Advertisement dated 02.08.2018, it is further contended that the said Clause clearly stipulates that the candidature of the candidate shall be cancelled if any infirmity is found during cross check of information provided by the candidate in the application form with the original certificates/marks sheet. Clause 4 of the Advertisement further stipulates that the candidates claiming for benefit of reservation must have certificates, including the Non-Creamy Layer Certificate at the time of filling up of the application form. It is also stated in unambiguous terms that the last date for producing the said certificates will be the date of interview and after that no certificate(s) shall be accepted.

Drawing the attention of this Court to the copy of the interview program and interview letter, the copy of which is placed on record as Annexure-E series to the counter affidavit, Mr. Pandey further argued that the candidates were directed to bring original certificates for verification along with two self-attested copies of the same on the date of interview, including the Non-Creamy Layer Certificate. Clause 5 and Clause 6 of the said interview program and interview letter, respectively made it clear that the candidature of the candidates called for interview is fully provisional. Since the petitioner failed to submit her Non-Creamy Layer Certificate for verification, the candidature of the petitioner has been cancelled in terms with the conditions as stipulated in the Advertisement. Placing reliance upon a Bench decision of this Court in the case of Pankaj Kumar Vs. The State of Bihar and Others [CWJC No. 7661 of 2020], it is submitted that in an identical situation, the Court, while considering the question as to whether the petitioner’s claim could be considered under the EBC category even in absence of the requisite certificate, has categorically held that a candidate cannot claim the benefit of reservation under the EBC category if he or she does not possess a Non-Creamy Layer Certificate, contrary to the provisions contained in the advertisement.

Upon meticulously hearing the learned Advocates for the respective parties and after going through the materials available on record, the question for consideration that arises before this Court is as to whether the respondent authorities are justified in canceling the appointment of the petitioner for want of submitting the Non-Creamy Layer Certificate for the period duly specified in the subsequent notice, after the result having been published and the petitioner being declared successful and allotted the post of Section Officer.

Apropos, the advertisement of 64^th Combined (Pre) Competitive Examination does not prescribe the date under which the certificate, much less Non-Creamy Layer Certificate, must have been issued. Undoubtedly, the caste must be identified as a Backward Class but the Creamy Layer ought to be excluded as the said strata is neither socially nor economically backward. The inclusion of castes in the backward classes list requires relevant data and must avoid extraneous factors. In proper inclusion of forward castes or failure to exclude the creamy layer undermines the system, depriving the genuinely disadvantaged of benefit.

In the aforesaid premise, the submission of NCL certificate was introduced since the benefit of OBC/MBC reservation in a public service is contingent on having been issued an NCL certificate, which varies time to time as per the income of the family of a candidate. Thus, the submission of the NCL certificate is sine qua non in order to get reservation. Clause 4 of the advertisement in question clearly suggests that in order to claim reservation under Backward Category or Extremely Backward Category, a candidate is mandatorily required to submit caste certificate, permanent residential certificate, creamy layer and non-creamy layer certificate (in case of female candidate it must be issued on the address of her father). Clause 4 of the said advertisement, inter alia, made it clear that all the certificates must have been published before the last date of the interview of the candidate and thereafter no certificates shall be accepted.

Though there is a clear stipulation in the advertisement itself in unambiguous terms, that the last date for producing the certificate would be the date of interview. However, in absence thereof the Hon’ble Supreme Court time and again made it clear that where no specific date is provided for document submission, the cut-off date for application submission is applicable. In the case of Ashok Kumar Sonkar v. Union of India and Others, (2007) 4 SCC 54 followed by Rakesh Kumar Sharma v. State (NCT of Delhi) and Others, (2013) 11 SCC 58, reiterated the aforesaid proposition of law and affirmed the necessity of certificates by the cut-off date.

A bare perusal of the checklist, especially Columns 4 and 5 thereof (Annexure F series), it is evident that in the Column ‘Non-Creamy Layer Certificate of the candidate of EBC’, the candidate has written "Yes", whereas in Column 5 which stipulates a declaration of Non-Creamy Layer Certificate of EBC candidate, the petitioner has stated "No". Even if for the sake of argument, this Court accepts the contention of the petitioner that at the time of verification of certificate, she produced Non-Creamy Layer Certificate of the year 2006, in no circumstances it can be treated to be a valid certificate for the purposes of consideration, as we have discussed hereinabove that Non-Creamy Layer Certificate varies time to time on the basis of income of the family of a candidate. Hence, in order to extend the benefit of reservation, what is necessary is to be looked into that the candidate must fall within the category of Non-Creamy Layer. It is in this premise, when the Commission has come out with the schedule of the interview along with the guidelines, it clearly directed to all the candidates to come along with all the original certificates at the time of interview along with two self-attested photocopies of the same.

Clause 4 (v) of the Notice dated 11.11.2020 further prescribed declaration regarding Non-Creamy Layer for Backward Class/Extremely Backward Class certificate, a candidate must have Non-Creamy Layer Certificate which must have been issued within last one year. The Notice further stipulates that if any candidate fails to do so on the date of interview, no additional time will be given for the same as mentioned above. The subsequent notice and the guidelines for interview, as referred herein above issued by the Commission, cannot be said to be arbitrary since the advertisement mandatorily required a candidate to possess eligibility up to the cut-off date. The requirement of submission of NCL certificate, as clarified by the aforesaid notice that certificate must have been issued within a year is in consonance with law and as per the advertisement.

The case of the petitioner is admitted to the extent that she had submitted an NCL certificate of 2006, that is of no importance for the purposes of consideration of her candidature in the absence of a recent NCL certificate, as directed under the advertisement and the subsequent notice issued by the Commission with respect to prescribing the schedule and guidelines of the interview. The selection process has to be conducted strictly in accordance with the stipulated selection procedures, which needs to be scrupulously maintained, as mandated in the case of Bedanga Talukdar v. Saifudaullah Khan & Ors. [(2011) 12 SCC 85]. The Full Bench of this Court in the case of Braj Kishore Prasad & Ors. v. State of Bihar & Ors., 1998 (3) PLJR 34 (F.B.) has also ruled and held in its paragraph no. 26 as follows:

A Three-Judge Bench of the Hon’ble Supreme Court in the case of Sakshi Arha v. the Rajasthan High Court & Ors. [2025 LiveLaw (SC) 405], while considering the validity of OBC Non-Creamy Layer/Most Backward Classes Non-Creamy Layer Certificate, held that in the absence of specified cut-off date in the recruitment advertisement, the last date for application submission is the default date for assessing the eligibility, including the validity of reserved category certificates. The Court, taking note of the relevant rules/circulars, has further held that Non-Creamy Layer certificates are valid for one year, extendable to three years with an affidavit as per the State circulars. Certificates issued beyond this period are invalid for claiming reservation benefits. Subsequent notice clarifying the cut-off date, aligning with existing rules and judicial precedents, is held to be not arbitrary. The Court further cautioned that no relaxation is permissible in the absence of a discretionary clause in rules. It would be worth beneficial to recapitulate the relevant paragraphs:

Now coming to the decision of this Court in case of Pankaj Kumar (supra), where a similar was raised that whether the petitioner’s claim to be considered as EBC category candidate even in absence of the certificate, the Court gainfully observed the principle that the caste status of a person is a consistent factor, but his creamy layer status varies based on numerous factors, such as family income, members of the family of a designated backward class becoming members of IAS, IPS and consequent rise of status in the society, etc. A candidate was required to submit his non-creamy layer certificate on the basis of his status, as on the date of his application. The Court further observed that had it been a case of denial of candidature on the ground of delayed submission of caste certificate, a question of appreciation of the principle laid down in Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board & Ors. [(2016) 4 SCC 754], would have arisen. No claim of reservation against posts under the State, reserved for Other Backward Classes, can be accepted in the absence of a Non-Creamy Layer Certificate.

Admittedly, in the case at hand, the petitioner, at the time of interview, could not produce the Non-Creamy Layer Certificate, as required in terms of the advertisement and the notice published at the time of interview. Nonetheless, she has been declared successful and recommendation has been made for her appointment to the post of Section Officer under Bihar Legislative Assembly.

At this juncture, it would be pertinent to answer, as to whether a mistake committed by the respondent authorities at the time of verification of the certificate, can give an indefeasible right in favour of the candidate to be appointed. The law is well settled that the Government would not be bound by the act of its officers and agents, who acts beyond the scope of their authority, and the person dealing with the agent of the Government must be held to have noticed of the limitation of his authority. A mere recommendation by the recruiting agency, in no circumstances, can extend any right in favour of a candidate, contrary to the prescription of the advertisement, as such action clearly violates the mandate of Articles 14 and 16 of the Constitution of India. In the opinion of this Court, a mistake or lapse on the part of the authorities cannot take away or deprive a person of his right and entitlement; however, simultaneously, such lapse or mistake does not create a right in favour of a person where such right is otherwise not permissible in law.

In Bedanga Talukdar (supra), the Hon’ble Supreme Court has categorically ruled that appointments to public office have to be made in conformity with Article 14 of the Constitution of India and to ensure fairness and to obliterate arbitrariness, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. The Court cautioned that there cannot be any relaxation in terms and conditions of the advertisement unless such a power is specifically reserved. It would be beneficial to reproduce paragraph nos. 29 and 30 of the said judgment:

After careful consideration of the facts of the case at hand, in the light of the aforesaid settled legal position, this Court is of the considered opinion that since the petitioner failed to produce the requisite Non-Creamy Layer (NCL) Certificate within the prescribed date, especially at the time of verification of the documents in terms of the advertisement and subsequent notice/guidelines in relation to interview dated 11.11.2020, this Court has no hesitation to hold that the cancellation of recommendation issued in favour of the petitioner by the Commission for want of valid NCL Certificate cannot be faulted or interfered with.

Accordingly, this Court does not find any merit in the present writ petition, and the same stands dismissed.