Manoj KumarversusThe State of Bihar

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.10262 of 2024
     ======================================================
     Manoj Kumar S/O Arjun Sah @ Arjun Kumar Resident of Mohalla-Near
     Shitla Sthan Lalkothi, P.O.- Naya Bazar, P.S.- Tatarpur, District- Bhagalpur.

                                                                ... ... Petitioner/s
                                        Versus

1.   The State of Bihar through Chief Secretary, Government of Bihar, Patna.
2.   The Principal Secretary, General Administration Department, Government
     of Bihar, Patna.
3.   The Principal Secretary, Education Department, Government of Bihar,
     Patna.
4.   The Director, Higher Education, Government of Bihar, Patna.
5.   The Bihar State University Service Commission, Patna through its Secretary.
6.   The Chairman, Bihar State University Service Commission, Patna, Bihar.
7.   The Secretary, Bihar State University Service Commission, Patna, Bihar.
8.   The Tilka Manjhi Bhagalpur University, Bhagalpur through its Registrar.
9.   Sri Ranjit Kumar Ranjan, S/o Not known Through the Vice Chancellor Tilka
     Manjhi Bhagalpur University.
10. Sri Vivekanand Kumar, S/o not known Through the Vice Chancellor Tilka
    Manjhi Bhagalpur University.

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Petitioner/s   :      Mr. Y. V. Giri, Sr. Adv.
                                   Mr. Ranjan Kumar Sinha, Adv.
     For the State          :      Mr. Sunil Kr. Mandal, SC 3
                                   Ms. NeelamKumari, AC to SC 3
     For the BSUSC          :      Mr. Tuhin Shankar, Adv.
                                   Mr. Gopal Kumar, Adv.
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
                         ORAL JUDGMENT
      Date : 05-01-2026

                     Heard Mr. Y. V. Giri, learned Senior Advocate with

      Mr. Ranjan Kumar Sinha, learned Advocate for the petitioner

      and Mr. Tuhin Shankar, learned Advocate for the Bihar State
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         University Service Commission as well as Mr. Arjun Prasad,

         learned Advocate for the State.

                     2. The petitioner, an aspirant for the post of Assistant

         Professor in the subject of Psychology in connection with

         Advertisement No. AP-PSYC-16/20-21, has invoked the

         jurisdiction of this Court seeking issuance of writ in the nature

         of    mandamus         directing     the      respondent   authorities   to

         accommodate him under Extremely Backward Class category

         for his selection and appointment on the post of Assistant

         Professor in terms with the afore noted advertisement with

         respect to the subject of Psychology published by the Bihar

         State    University      Service      Commission,      Patna    (in   short

         ‘Commission’). The petitioner also sought a direction upon the

         respondent authorities to admit his claim/objection dated

         27.12.2022 against the provisional merit list.

                     3. The short facts, which led to filing of the present

         writ petition, are that the petitioner having degree of M.A.,

         Ph.D. in the subject of Psychology submitted his application, in

         pursuant to the caption advertisement dated 21.09.2020 under

         the category of Extremely Backward Class. The respondent

         Commission after completing all the paraphernalia published a

         list of provisional eligible/ineligible candidates on 24.12.2022.
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         The name of the petitioner figured at Sl No. 408 as elegible

         candidate under Unreserved category for the reason stating

         therein that Non Creamy Layer certificate was not submitted

         with the caste certificate. The respondent Commission invited

         objection on or before 05.01.2023 against the said provisional

         list. In pursuance thereof, the petitioner made an application

         along with requisite fee of Rs.225 and NCL certificate through

         Speed Post on 27.12.2022. Subsequently, the Commission also

         came out with a notice dated 19.01.2023 where the name of the

         petitioner was placed at Sl No. 207 but under Unreserved

         category candidate. The petitioner immediately rushed to the

         respondent Commission with a request to consider his claim

         under EBC category. However, the Commission did not

         consider his case favourably and issued Call Letter for interview

         by treating him as a candidate under General category on

         29.01.2023.

                     4. The petitioner appeared in the interview but with a

         further request to treat him under EBC category and submitted

         all the requisite certificates; however no heed was paid to the

         request of the petitioner and the Commission has published the

         result of the selected candidates. It is the specific contention of

         the petitioner that the cut off marks for EBC candidates was 67
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         whereas the petitioner has obtained more than 82.26 marks, out

         of 100 marks. Had the petitioner been rightly treated under EBC

         category, he would have certainly qualified, but on account of

         inaction and arbitrariness at the hands of the Commission, he

         has    been      treated     as    a     General   category   candidate;

         notwithstanding, the fact he has submitted NCL certificate in

         response to the objection invited by the Commission.

                     5. Mr. Y. V. Giri, learned Senior Advocate for the

         petitioner taking this Court through the terms of the

         advertisement submitted that the application form was required

         to be filled up by the applicant, wherein it has been only asked

         the name of the caste in reservation category related to the

         candidate. The petitioner duly submitted his caste certificate of

         EBC issued by the competent authority. Even if, for the sake of

         argument, it is admitted that Non Creamy Layer certificate was

         not attached or downloaded along with the application form, the

         same would not at all render the candidature of the petitioner as

         defective or he shall be treated as General category candidate

         once the petitioner has finally submitted the NCL certificate

         when objection was raised with the provisional list of the

         candidate. Referring to the Important Notice dated 24.12.2022,

         Mr. Giri, learned Senior Advocate further contended that
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         Clause-6 thereof clearly stipulates that the objection was invited

         for rectification of the mistake within prescribed time. The

         petitioner in pursuance thereof submitted his NCL certificate

         and, thus, in no circumstances, the petitioner can be treated as

         General category candidate irrespective of the fact that he has

         submitted his caste certificate as well as NCL certificate within

         the time prescribed. Referring to the decision rendered by the

         Apex Court in the case of Ram Kumar Gijroya vs Delhi

         Subordinate Services Selection Board & Anr. [(2016) 4 SCC

         754], wherein the Court ruled in favour of the candidate

         concerned, has submitted that the instant matter is completely

         covered by the said decision.

                     6. Reliance has also been placed on the decision of

         Ramesh Chandra Sankla Etc. vs Vikram Cement Etc. reported

         in (2008) 14 SCC 58 to buttress his submission that the

         jurisdiction of the High Court under Articles 226 and 227 of the

         Constitution of India is discretionary and equitable and it can be

         exercised ex debito justitiae, i.e. to meet the ends of justice. It is

         equitable in nature. While exercising supervisory jurisdiction, a

         High Court not only acts as a court of law but also as a court of

         equity. Hence, Mr. Giri, learned Senior Advocate urged that the

         Court ought to ensure its power and exercise the jurisdiction to
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         advance the ends of justice and uproot injustice.

                     7. On the other hand, Mr. Tuhin Shankar, learned

         Advocate for the Commission refuted the afore noted contention

         and submitted that the petitioner had admittedly not submitted

         the requisite Non Creamy Layer certificate along with his

         application form before the cut off date and, thus, he was treated

         as a General category in terms of the advertisement for

         appointment to the post of Assistant Professor. As per Clause

         8.3.5 and 11.1 of the Advertisement, the applicant was required

         to submit various documents specified therein, including Non

         Creamy Layer Certificate, if claiming reservation under the

         Extremely Backward Class category. The last date for

         submission of online application along with documents

         prescribed was 02.11.2020, which was extended to 10.12.2020

         till 5:00 pm and further by 30.12.2020 till 5:00 pm for

         submission of hard copy. The petitioner did not submit the NCL

         certificate and he faced the interview as a General category

         candidate. Moreover, the result in the subject of Psychology

         was published on 30.05.2024 and the select list has also been

         published and sent to the Education Department whereafter

         appointments of successful candidates have also undertaken.

                     8. Mr. Tuhin Shankar further urged that the judgments
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         rendered by the Full Bench of this Court in the case of Braj

         Kishore Prasad vs. The State of Bihar & Ors., reported in

         1998(3)PLJR 34 (F.B.) and that of the Hon’ble Supreme Court

         in Bedanga Talukdar vs Saifudaullah Khan & Ors reported in

         (2011) 12 SCC 85 have duly emphasized that where the

         advertisement specifies the last date for filing of supporting or

         other documents that date must be given effect to and any

         document received after such date shall be rejected by the

         selecting authority and no application/document shall be

         entertained by the Commission if the same is filed after the last

         date specified in the advertisement. It is further contended that

         the identical matter has come up for consideration before this

         Court in Bedanand Sharma Vs. The State of Bihar (CJWC No.

         11093 of 2024) wherein this Court placing reliance upon the

         above referred cases as well as               coordinate Bench and the

         Division Bench of this Court did not interfere in the writ

         petition as the candidate failed to submit his certificate in a

         detailed prescribed format within the prescribed date.

                     9. At this juncture, Mr. Y. V. Giri, learned Senior

         Advocate for the petitioner submits that the order of this Court

         passed in Bedanand Sharma (supra) is per incurium as the

         Court has failed to consider other decisions of the Apex Court,
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         including the decision rendered in the case of Ram Kumar

         Gijroya (supra). It is further contended that the order of this

         Court is sub silentio and the issue as has has been raised before

         this Court has not been considered in the case of Bedanand

         Sharma (supra), the candidate had not submitted his application

         in the prescribed format, inasmuch as the experience certificate

         was not duly countersigned by the Registrar of the University as

         was required under the advertisement. However, in the case at

         hand, the petitioner had submitted his caste certificate along

         with application form and subsequently also Non Creamy Layer

         certificate when objection was invited; hence, the case of the

         petitioner is on different footing. To strengthen the aforesaid

         contention, reliance has been placed on the decisions rendered

         by the Apex Court in the case of Dr. Shah Faesal and Ors. v.

         Union of India and Anr. [(2020) 4 SCC 1] and further in the

         case of Municipal Corporation Of Delhi vs Gurnam Kaur

         [(1989) 1 SCC 101].

                     10. Before parting with the present case, it would be

         pertinent to consider the submission of the learned Senior

         Advocate representing the petitioner with regard to his plea

         regarding the order of this Court passed in Bedanand Sharma

         (Supra) is per incurium as the Court has failed to consider the
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         other decisions of the Apex Court rendered in the case of Ram

         Kumar Gijroya (supra). The Court in a series of decisions held

         with unequivocal terms that the doctrine of per incurium is a

         narrow exception to Article 141 of the Constitution of India and

         applies only to the ratio decidendi not to obiter dicta. A

         judgment can be termed per incurium only if it is rendered in

         ignorance of a binding statute or precedent or where its ratio is

         irreconcilable with that of a coordinate or larger Bench. Mere

         non reference to an earlier decision does not automatically

         render a later judgment per incurium; there must be a clear and

         direct conflict in the ratios of the two decisions.

                     11. In the case of Dr. Shah Faesal (supra), a batch of

         petitions, including Dr. Shah Faesal v. Union of India,

         challenged the presidential orders and legislative measures

         relating to Article 370 and the reorganization of the former State

         of Jammu & Kashmir. During the proceedings, the petitioner

         sought a reference to a large Bench contending that the earlier

         Constitution Bench decision in Sampat Prakash v. State of

         Jammu & Kashmir was rendered per incuriam as it allegedly

         failed to consider the earlier ruling in Prem Nath Kaul v. State of

         Jammu & Kashmir. The Court having considered that in the

         decision of Prem Nath Kaul, Article 370 treated as a temporary
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         provision requiring the concurrence of the J & K Constituent

         Assembly for its continuation, whereas in Sampat Prakash held

         that the Article 370 continued to operate even after the

         Constituent Assembly ceased to exist, permitting ongoing

         presidential action under it. Upon a bare examination, the Court

         found no irreconcilable inconsistency between their ratio

         decidendi on the interpretation and operation of Article 370.

         Accordingly, the decision rendered in Sampat Prakash was held

         not per incurium and continued to retain its precedential value

         under Article 141. The Court further observed that the rule of

         per incurium given its impact on legal certainty and stability of

         precedent, must be applied sparingly and with caution.

                     12. Further in the case of Gurnam Kaur (supra), a

         subordinate Judge’s unappealed decree protected pavement

         squatters from eviction except by due process under the Delhi

         Municipal Corporation Act. In the case of Jamna Das, the

         Hon’ble Supreme Court expressly stated that it should not be

         treated as precedent and with the consent of the parties, directed

         rehabilitation of certain squatters. Relying on Jamna Das, the

         High Court directed the Municipal Corporation to construct or

         permit construction of a stall for the respondent. The Municipal

         Corporation aggrieved, preferred appeal. The Hon'ble Supreme
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         Court held that the rights of the parties stood crystallized by the

         un-appealed decree of the Subordinate Judge. However, the

         High Court erred in relying on Jamna Das to issue a mandamus

         contrary to Sections 320 and 322 of the Delhi Municipal

         Corporation Act, as the respondent had no enforceable statutory

         right to rehabilitation or alternative accommodation. The Court

         further held that the directions in Jamna Das had no binding

         force under Article 141 because they were made by consent of

         parties, with an express reservation that they would not operate

         as precedent. Additionally, the Apex Court concluded that the

         decision given in ignorance of binding statutory provisions is

         per incuriam and lacks precedential value; the High Court's

         order based on such a decision could not be sustained.

                     13. Now coming to the case of Ram Kumar Gijroya

         (supra), where the question of law that arose for consideration

         was whether a candidate, who appears in examination under

         OBC category and submits certificate after the last date

         mentioned in the advertisement is eligible for selection to the

         post under OBC category or not in terms with the advertisement

         published in the news paper for selection to the post of Staff

         Nurse in the Department of Health and Family Welfare,

         Government of NCT of Delhi. In the afore noted case, the
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         appellant submitted his application form before the due date and

         was subsequently issued the Admit Card. After examination, he

         was shortlisted for selection but his name did not figure in the

         final list of selected candidates. On enquiry, he was informed

         that since he had failed to submit OBC certificate issued by the

         appropriate authority along with application form before the last

         date of submission of application form, hence his name did not

         figure in the final list. Aggrieved with the action of the

         respondents, approached before the learned Single Judge of the

         High Court of Delhi. The appellant also relied upon the decision

         dated 11.02.2009 passed in Pushpa v. Government of NCT of

         Delhi, whereby the High Court had granted OBC benefit to the

         petitioner therein. The learned Single Judge held that the

         respondent did not cite any other authority to distinguish the

         decision in Pushpa’s case and thus directed the respondent to

         reconsider the application of the appellant and the other

         aggrieved candidates. The matter came up for consideration

         before the learned Division Bench of the Delhi High Court and

         the Court held that the appellant had applied for the O.B.C.

         certificate ten days before the cut off date, which was not the

         fact in Pushpa’s case, where the application for the O.B.C.

         certificate had been filed much before the date of advertisement.
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         Hence, no case for grant of relief in favour of the appellant was

         made out. The matter has finally came up for consideration

         before the Apex Court. Referring to the decisions rendered in

         the case of Indra Sawhney & Ors. v. Union of India & Ors.

         [(1992) supp 3 SCC 214] and Mrs. Valsamma Paul vs Cochin

         University and Others [(1996) 3 SCC 545] as also the case of

         Ms. Pushpa vs Government, NCT of Delhi & Ors. [2009 SCC

         OnLine Del 281], the Court held that the Division Bench of the

         High Court erred in reversing the judgment and the order passed

         by the learned Single Judge, without noticing the binding

         precedent on the question laid upon by the Constitution Bench

         of this Court.

                     14. Coming to the case at hand, under the caption

         advertisement, there is specific stipulation under Clause 8.3.5

         and 11.1 of the Advertisement that the applicant was required to

         submit documents specified therein including Non Creamy

         Layer certificate by those candidates who were claiming

         reservation under the Extremely Backward Class category.

         There is no iota or confusion that for the purposes of benefit

         under the reservation category BC/EBC a certificate of Non

         Creamy Layer          is sine qua non because it proves that the

         candidate belongs to economically disadvantaged section and
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         not in the creamy layer within the OBCs. Without production of

         NCL certificate, the candidate must lose his eligibility for

         getting his candidature considered for reserved category. It is

         needless to observe that the Non Creamy Layer certificate is

         essential to get the reservation benefit for those who genuinely

         needed to overcome socio-economically disadvantages,          by

         distinguishing from more affluent within their own class. Thus,

         once a candidate files an application form along with caste

         certificate without Non Creamy Layer certificate, the selection

         authorities are obliged to treat him under the General Category

         candidate for all purposes.

                     15. It would be relevant to take note of Clause 15 of

         the Advertisement which categorically mandates that the

         candidate should make all entries in the online application form

         with due care. Any change or modification subsequently will not

         be acceptable and for any subsequent negative consequence,

         candidate will himself be responsible. Clause 8.3.2 of the

         advertisement in no uncertain terms stipulates that the

         candidates of Backward Class and Extremely Backward Class

         will be required to submit the following certificates, i.e., (a)

         Caste Certificate, (b) Domicile Certificate and (c) Non Creamy

         Layer Certificate. Clause 8.3.5 further mandates that the
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         candidates of reserved categories will mark the relevant column

         of the Online Application Form after fully satisfying themselves

         about their caste. At the time of filling the application form, the

         certificates relevant to the category of their reservation must be

         available with them. In case of any error, the claim of

         reservation will not be tenable. After filing the application any

         claim for change in reservation will not be entertained.

                     16. The Apex Court in the case of Bedanga Talukdar

         (supra) has emphasized and underscored that if a particular

         schedule is mentioned in the advertisement, the same has to be

         scrupulously maintained. There cannot be any relaxation in the

         terms and conditions of the advertisement unless such power is

         specifically reserved. It would be apt and proper to encapsulate

         paragraph-29 of the afore noted decision, which reads as

         follows:

                       “ 29. We have considered the entire matter in
                       detail. In our opinion, it is too well settled to
                       need      any     further        reiteration    that   all
                       appointments to public office have to be made in
                       conformity with Article 14 of the Constitution of
                       India. In other words, there must be no
                       arbitrariness resulting from any undue favour
                       being shown to any candidate. Therefore, the
                       selection process has to be conducted strictly in
                       accordance        with     the     stipulated    selection
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                       procedure. Consequently, when a particular
                       schedule is mentioned in an advertisement, the
                       same has to be scrupulously maintained. There
                       cannot be any relaxation in the terms and
                       conditions of the advertisement unless such a
                       power is specifically reserved. Such a power
                       could be reserved in the relevant statutory rules.
                       Even if power of relaxation is provided in the
                       rules, it must still be mentioned in the
                       advertisement. In the absence of such power in
                       the rules, it could still be provided in the
                       advertisement. However, the power of relaxation,
                       if exercised, has to be given due publicity. This
                       would be necessary to ensure that those
                       candidates who become eligible due to the
                       relaxation, are afforded an equal opportunity to
                       apply and compete. Relaxation of any condition
                       in advertisement without due publication would
                       be contrary to the mandate of equality contained
                       in Articles 14 and 16 of the Constitution of
                       India.”

                     17. Further the Full Bench of this Court in the case of

         Braj Kishore Prasad (supra) while emphasizing the relevance

         of the date prescribed in the advertisement and strict adherence

         to the terms and conditions in its penultimate paragraph No. 26

         held as follows:

                      “26.      Having       regard    to   all   these
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                      considerations, I hold that:
                      (a) Where the advertisement specifies the
                      last date for filing of supporting or other
                      documents, that date must be given effect
                      to, and any document received after such
                      date shall be rejected by the selecting
                      authority.
                      (b) In appropriate cases where the selecting
                      authority is of the view that the time for
                      furnishing       of     documents     should    be
                      extended, it may grant such extension by
                      issuing a public notice to this effect so that
                      all candidates may get the benefit of such
                      extension. In the absence of any such
                      extension       granted       by    the   selecting
                      authority, the date/dates mentioned in the
                      advertisement should be treated to be the
                      last date for filing of documents, and no
                      document shall be accepted thereafter.
                      (c) No application/ document shall be
                      entertained by the Commission if the same
                      is filed after the last date specified in the
                      advertisement, or the extended date notified
                      by the commission, even if the same is filed
                      before the finalisation of the select list.
                      (d) In appropriate cases where this Court is
                      satisfied that a case of extreme hardship or
                      injustice has resulted on account of factors
                      beyond the control of the concerned
                      candidate, this Court in exercise of its writ
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                      jurisdiction may grant relief in deserving
                      cases. But in doing so, the Court must be
                      satisfied that the candidate concerned has
                      acted diligently, and is not guilty of delay or
                      laches in taking necessary steps for
                      procuring the requisite certificates, etc.
                      However, no relief shall be granted where
                      the requisite certificate is produced for the
                      first time after the process of selection is
                      complete and the selecting authority has
                      made its recommendation.”

                     18. It would also be relevant to take note of the fact

         that the identical issues have also come up for consideration

         before the coordinate Bench of this Court in the case of Neetu

         Kumari vs. The Bihar State University Service Commission

         [CWJC No. 10202 of 2024] and further in the case of Prabhu

         Kumar vs. The State of Bihar & Ors. [CWJC No. 10853 of

         2024], wherein the learned Court taking note of the terms of the

         advertisement did not find merit in the writ petition and rejected

         the claim of the petitioners, who had submitted their NCL

         certificate after the cut off date. Indubitably, the petitioner failed

         to summit Non Creamy Layer certificate along with his

         application within the stipulate time as prescribed in the

         advertisement. In absence thereof, the petitioner has been

         treated to be a candidate under General Category. Moreover, the
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         submission of the petitioner that in the light of the subsequent

         notice, the petitioner has submitted his NCL certificate would

         certainly not come to his rescue as the caption advertisement

         specifically prohibits receipt of NCL certificate after the cut off

         date.

                     19. Before concluding the lis, with all humility, this

         Court further observes that in the case of Ram Kumar Gijroya

         (supra), there was no stipulation in the advertisement restricting

         the candidates to submit the caste certificate, rather the

         requirement of submitting the OBC certificate before the cut off

         date of application was introduced by the respondent-DSSSB

         only while declaring the result on 15.12.2008. All the more, in

         similar set of facts in connection with same advertisement,

         others have been allowed to submit the caste certificate even

         after the cut off date. In the aforesaid premise, the learned

         Single Judge of the High Court has extended the liberty to the

         candidates, who have been declared non-suited because of non

         submission of the caste certificate. Such action of the

         respondent authority was found to be in violation of the Article

         14 of the Constitution. In the case at hand, the term and

         condition of the advertisement clearly excludes the claim of the

         petitioner for treating him to be a candidate of reserved category
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                      since he failed to produce the Non Creamy Layer certificate

                      within the time prescribed.

                                  20. In view of the aforesaid facts and discussions made

                      hereinabove, the decision passed by this Court in Bedanand

                      Sharma (supra), in the opinion of this Court, cannot be termed

                      as per incurium, Ram Kumar Gijroya (supra). In the instant

                      case, the submission of the caste certificate as well as the NCL

                      certificate before the cut off date was sine qua non in terms with

                      the prescription of the caption advertisement, failing which the

                      candidate was not eligible to get the benefit of reservation.

                      Accordingly, this Court does not find any merit in the writ

                      petition. Hence, the present application stands dismissed.


                                                        (Harish Kumar, J)

Anjani/-
AFR/NAFR
CAV DATE
Uploading Date            13 .01.2026
Transmission Date