Jharkhand High Court
Mithlesh Kumar Aged About 27 Years vs The State Of Jharkhand Through The ... on 15 June, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 610 of 2019
Mithlesh Kumar aged about 27 years, Son of Shri Ashu Mahto,
resident of Q. No. 2480, Sector - 6/D, P.O. and P.S.-Sector-6, Bokaro
Steel City, District-Bokaro (Jharkhand).
... ... Petitioner/Appellant
Versus
1. The State of Jharkhand through the Secretary, Personnel
Administration Reforms and Rajbhasha Department, Government of
Jharkhand, having its office at Project Building, P.O.-Dhurwa, P.S.-
Jaganathpur, District-Ranchi (Jharkhand).
2. The Secretary, Forest, Environment & Climate Change Department
having office at Nepal House, Doranda, P.O. and P.S. Doranda,
District-Ranchi (Jharkhand).
3. The Jharkhand Staff Selection Commission through its Secretary,
having its office at Kalinagar, Chaibagan, Namkum, P.O. and P.S.
Namkum, District-Ranchi (Jharkhand).
4. The Controller of Examination, Jharkhand Staff Selection
Commission, having office at Kahnagar, Chaibagan, Namkum, P.O.
and P.S.-Namkum, District-Ranchi (Jharkhand).
... ... Respondents/Respondents
-------
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
-------
For the Appellant : Mr. Prem Pujari Roy, Advocate
For the State : Mr. Aditya Raman, AC to GA-III
For the JSSC : Mr. Sonjoy Piprawall, Advocate
Mr. Prince Kumar, Advocate
Mr. Rakesh Ranjan, Advocate
----------------------------
ORAL JUDGMENT
06/Dated 15th June, 2022
1. The instant intra-court appeal preferred under Clause 10 of the Letters Patent is directed against the order/judgment dated 29.07.2019 passed by the learned Single Judge of this Court in W.P.(S) No. 1286 of 2019, [2] whereby and whereunder, the learned Single Judge has refused to interfere with the order as contained in Memo No. 7137 dated 21.12.2018 by which the claim of the writ petitioner seeking recommendation for appointment to the post of Forest Guard has been rejected.
2. The brief facts as per the pleading made in the writ petition which require to be enumerated, read as hereunder:
The Jharkhand Staff Selection Commission, in short JSSC, had published an advertisement being Advertisement No. 03/2014, for conducting competitive examination for Forest Guard in the name of Jharkhand Forest Guard Competitive Examination, 2014, whereby online applications were invited from eligible candidates in which the writ-petitioner had applied under EBC-1 category bearing Registration No. 14243159 for District-Chatra and accordingly, admit card was issued in his favour and has been allowed to appear in preliminary examination wherein he was duly qualified. Thereafter, he was called for appearing in Mains examination in which he had participated and was declared successful.
It is the case of the writ-petitioner that after the Mains examination, he was called for the physical and medical test for which a fresh admit card was issued to him and accordingly, he came out successful and was called for verifications of certificates.
It is specific case of the writ-petitioner that after verification of documents, a notice was issued by JSSC in the website related to Jharkhand Forest Guard Competitive Examination-2014, wherein roll [3] number wise list of all such candidates was published, who have not submitted their caste certificates as per the requirement of the advertisement and as such, they were asked to submit their caste certificate and residential certificate latest by 15.03.2017, failing which their candidature will be rejected or their candidature will be treated under the Unreserved Category. However, since the roll number of the petitioner was not appearing in the said notice, he was of the impression that caste certificate submitted by him with the original application is accepted/verified without any objection by the respondents.
It is also the case of the writ-petitioner that though he had obtained much more marks than the last selected candidate in his category but the case of the writ-petitioner was not recommended for appointment.
Aggrieved by the same, the writ-petitioner has preferred a writ petition being W.P.(S) No. 385 of 2018 which was disposed of vide order dated 08.10.2018 with a direction to the writ-petitioner to file a fresh representation before the respondent authorities taking all the points and annexing the caste certificate of BC-I category issued prior to 15.03.2017, within a period of two weeks from the date of receipt of the said representation and the respondents were directed to consider the same and pass a reasoned order, in accordance with law within a period of four weeks. In compliance of the said order, the writ-
petitioner has represented before the respondent authorities along with sufficient, cogent and convincing documents in support of his claim but the same was not considered and rejected vide Memo No. 7137 dated 21.12.2018 on the ground that the caste certificate produced by the writ-[4]
-petitioner is not as per requirement, since the same was issued on 10.06.2017 and not prior to 15.03.2017. The writ-petitioner, aggrieved the said action of the respondent-authority, approached to this Court by filing writ petition being W.P.(S) No. 1286 of 2019 by taking the ground of arbitrariness committed on the part of the authority since the rejection of the claim of the writ-petitioner is based on imaginary cut- off date, i.e., 15.03.2017 fixed by the respondent with the entire examination was over and was not mentioned in the original advertisement and as such, inserting the said dated, i.e., 15.03.2017 by way of notice issued in the year 2017 amounts to altering the terms of advertisement after the selection process has been initiated, which is impressible in the eyes of law.
The writ-petitioner has also taken the ground of obtaining higher marks than the last selected candidate in his category.
3. The respondents have appeared and filed counter affidavit and disputed the claim of the writ-petitioner by taking the ground that the entire selection process was completed on 26.05.2017, as would appear from Annexure-E to the counter-affidavit and any certificate submitted subsequently, cannot be considered to be valid. It has been stated that the writ-petitioner in pursuance of the order passed by this Court in W.P.(S) No. 385 of 2018 has not submitted the caste certificate issued by the competent authority rather the certificate which was submitted by the writ-petitioner dated 09.11.2015 was issued by the Block Development Officer while as per the advertisement, the certificate issued by the Deputy Commissioner of the concerned District or the [5] Sub-Divisional Officer of the concerned sub-division can only be considered to be a valid certificate for consideration.
The learned Single Judge after appreciating the rival submission advanced on behalf of the parties, has dismissed the writ petition against which the instant intra-court appeal has been preferred.
4. Mr. Prem Pujari Roy, learned counsel for the appellant-writ petitioner has submitted that the order passed by the learned Single Judge is without consideration of the fact in right perspective since according to the learned counsel, caste certificate had been produced before the competent authority, however, the same was not issued prior to 15.03.2017 even in that case, the case of the writ-petitioner could not have been rejected since the writ petitioner has obtained much more marks than the last selected candidate.
Further, due opportunity which was granted to about 400 candidates to produce their caste certificates, if the same opportunity would have been granted to the writ-petitioner, the writ-petitioner would have come out with the caste certificate issued prior to 15.03.2017 but having not been granted such opportunity, the respondent authorities have acted arbitrarily and in this way, the writ petitioner has been treated differently to those candidates who have been granted opportunity to come out with their caste certificate.
According to the learned counsel, this aspect of the matter has not been considered, therefore, the order passed by the learned Single Judge suffers from material irregularity and hence, the same is not sustainable in the eyes of law.
[6]
5. Per contra, Mr. Sonjoy Piprawall, learned counsel for the JSSC has submitted that it is incorrect on the part of the writ petitioner to say that the opportunity which was granted to other candidates had not been granted to the writ-petitioner rather the writ-petitioner himself had approached to this Court by filing writ petition being W.P.(S) No. 385 of 2018 wherein vide order dated 08.10.2018, the writ-petitioner was given liberty to approach before the authority by raising the grievance and for consideration of caste certificate if issued prior to 15.03.2017 but the said caste certificate could not have been produced by the writ- petitioner, therefore, it is not available for the writ-petitioner to say that such opportunity has not been granted by the respondents to the writ- petitioner rather the writ-petitioner has himself not availed the same. Therefore, it is now not available to raise the issue that there is commission of arbitrariness on behalf of the respondents.
It has been contended that the learned Single Judge after taking into consideration the specific condition stipulated in the advertisement that the caste certificate either been issued by the Deputy Commissioner of the concerned district or Sub-Divisional Officer of the concerned sub-division prior to 15.03.2017 will only be admissible for consideration of his candidature but it is the admitted case of the writ petitioner that the caste certificate has been issued much after 15.03.2017, therefore, the same has not been considered hence, it cannot be said that there is any illegal action on the part of the respondent in not considering the case of the writ-petitioner under the reserved category.
[7]
6. According to the learned counsel, the learned Single Judge after taking into consideration the aforesaid aspect of the matter since has not interfered with the impugned decision of the administrative authority, therefore, it cannot be said that the order impugned suffers from illegality.
He has relied upon the judgment passed by this Court in L.P.A. No.91 of 2020 disposed of on 27.10.2021 wherein while deciding the issue as to whether the condition stipulated in the advertisement, if not followed, what would be its consequence.
7. This Court has laid down the law that in case of non-compliance of the statutory condition as referred under the advertisement, the candidature of such candidates cannot be considered. Herein also, the specific condition has been stipulated in the advertisement of producing caste certificate duly been issued by the Deputy Commissioner of the concerned district or the Sub-Divisional Officer of the concerned sub- division but admittedly, the caste certificate has not been submitted duly been issued by the competent authority rather the caste certificate has been submitted on behalf of the writ-petitioner issued by the Block Development Officer of the concerned Block, therefore, the caste certificate being issued by the incompetent authority has rightly not been taken into consideration.
8. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge.
[8]
9. The undisputed fact in this case is that the one advertisement was published by the JSSC inviting applications for appointment of Forest Guard. The specific stipulation has been made in the advertisement as under condition no. 7(III)(ii) that for getting the benefit of reservation the caste certificate duly been issued by the Deputy Commissioner of the concerned district or the Sub-Divisional Officer of the concerned sub-division will only be applicable.
10. It further appears from the condition no. 7(III)(iii) that the caste certificate for getting the benefit of reservation for the extreme backward category Schedule-I and the backward category Schedule-II will have to be issued in the due format on or after 31.03.2014. The aforesaid condition reads as under:
"7- vkj{k.k%& ¼I½ -------------
¼II½ -------------
¼III½ >kj[k.M ljdkj }kjk ykxw vkj{k.k lEcU/kh lHkh fu;e izHkkoh gksaxsA vkj{k.k dk nkok djus okys >kj[k.M ds LFkkuh; fuoklh mEehnokj dks fuEu izek.k&i= vk;ksx }kjk izek.k&i=ksa dh tk¡p ds volj ij lefiZr djuk vfuok;Z gksxk%& ¼i ½ LFkkuh; fuoklh izek.k i= ¼fu;kstu ds fy,½&ftyk@vuqeaMy ds mik;[email protected] inkf/kdkjh ls fofgr&izi= esa v|ru fuxZr LFkkuh; fuoklh izek.k i=A ¼ifjf'k'V&I ij vafdr izi=½ ¼ii½ tkfr izek.k i=&ftyk@vuqeaMy ds mik;[email protected] inkf/kdkjh ls fofgr&izi= {vuqlwfpr tkfr@vuqlwfpr tutkfr ds fy, ifjf'k'V&II ij vafdr izi= rFkk vR;ar fiNM+k oxZ ¼vuqlwph&1½@fiNM+k oxZ ¼vuqlwph&2½ ds fy, ifjf'k'V&III ij vafdr izi=} esa v|ru fuxZr tkfr izek.k&i=A ¼iii½ vR;ar fiNM+k oxZ ¼vuqlwph&1½ rFkk fiNM+k oxZ ¼vuqlwph&2½ ds fy, fnukad&31- 03-2014 ds i'pkr~ fofgr&izi= ¼ifjf'k'V&III ij vafdr izi=½ esa fuxZr tkfr izek.k i= ekU; gksxkA [9] LFkkuh; fuoklh izek.k i= ,oa tkfr izek.k i= dk izi= ifjf'k'V ds :i esa foojf.kdk esa layXu gSA fu/kkZfjr izi= esa gha izek.k i= ekU; gksaxsA fdlh vU; izi= eas izek.k i= ekU; ugha gksaxsA"
It further appears from a document under caption heading "Important Notice" appended as Annexure-5, wherein, the Commission, after finding the fact that several candidates have not submitted their caste certificates in terms of Clause 7 (III) of the advertisement, has granted an opportunity to such candidates to submit their caste certificates up to 15.03.2017 making it clear that if by 15.03.2017 such caste certificates will not be submitted, the candidature of such candidates will be rejected.
11. The writ-petitioner applied for the aforesaid post and was declared successful in the written examination. Thereupon, he had been called for verification of documents. The writ-petitioner submitted the caste certificate which was issued by the Block Development Officer of the concerned Block but the admitted fact herein is that as per the condition no. 7(III) , the caste certificate is to be accepted if issued by the Deputy Commissioner of the concerned district or by the Sub-Divisional Officer of the concerned sub-division. Admittedly herein, the writ petitioner has submitted the caste certificate issued by the Block Development Officer which cannot be considered to be a valid document in terms of the condition stipulated under the advertisement. However, the writ-petitioner at that juncture had preferred a writ petition being W.P.(S) No. 385 of 2018 for consideration of his caste certificate and the co-ordinate learned Single Judge of this Court while disposing of the writ petition on 08.10.2018 granted liberty to the writ- [10] petitioner to make a representation along with caste certificate duly been issued prior to 15.03.2017 for its consideration but the writ- petitioner has not produced the said caste certificate before the concerned authority.
The Commission, in consequence thereof, has considered the candidature of the writ petitioner under the unreserved category and has been declared unsuccessful. The writ-petitioner approached this Court by filing writ petition being W.P.(S) No. 1286 of 2019 on the ground that he has obtained much more marks than the last selected candidate under his category.
12. The learned Single Judge has considered the case of the writ-petitioner as also the case of the Commission and considering the fact that the writ-petitioner has not produced the caste certificate in terms of the condition stipulated under the advertisement as under condition no. 7(III), has rightly held to be considered under the unreserved category and as such, the writ petition has been dismissed.
13. Learned counsel for the writ petitioner has taken the ground of treating the writ-petitioner discriminately since according to the learned counsel, about 400 candidates had been provided opportunity to produce their caste certificate to be submitted by 15.03.2017 wherein roll numbers of all such candidates have been mentioned but in the said list as under
Annexure-5 the roll number of the writ-petitioner was not reflected.
14. According to the learned counsel, if the roll number of the writ- petitioner would have been mentioned, then certainly, the writ- petitioner would have produced the caste certificate, as such, [11] submission has been made that it is the laches committed on the part of the commission in not reflecting the roll number of the writ petitioner, as such, the writ-petitioner has been made to suffer for the laches committed on the part of the commission.
15. While on the other hand, Mr. Sonjoy Piprawall, learned counsel has submitted on this issue that it is incorrect on the part of the writ- petitioner to make submission that such opportunity had not been granted to the writ-petitioner rather it is the writ-petitioner who had moved before this Court by filing writ petition being W.P.(S) No. 385 of 2018 wherein he was accorded liberty to submit his caste certificate before the concerned authority prior to 15.03.2017 but no such caste certificate has been submitted, therefore, the case of the writ-petitioner has considered under the unreserved category.
According to him, since there is already a liberty granted by this Court but the said liberty has not been availed by the writ-petitioner, as such, it is not available for the writ-petitioner to raise the issue of discriminatory attitude committed on the part of the respondents.
16. We have appreciated the rival submissions advanced on behalf of the parties and found from the factual aspect of the given case that there is no dispute about the fact that notice as under Annexure-5 had been issued in order to provide an opportunity to such candidates who have not submitted their caste certificates in terms of the advertisement with a direction that the caste certificate be submitted prior to 15.03.2017.
In the notice as under Annexure-5, there is no reference of the roll number of the writ petitioner, as such, plea is being taken that if the [12] roll number of the writ-petitioner would have been mentioned, then the writ-petitioner would have submitted the caste certificate but such submission, according to our considered view, is not fit to be accepted due to the reason that it is not a case that the writ-petitioner has not been provided with the opportunity to submit his caste certificate rather the writ-petitioner had approached to this Court by filing writ-petition being W.P.(S) No. 385 of 2018 by invoking the jurisdiction of this Court conferred under Article 226 of the Constitution of India wherein liberty was granted to the writ-petitioner to produce the caste certificate issued prior to 15.03.2017.
It would be evident from the material available on record that even in spite of such liberty, the writ-petitioner has not submitted the caste certificate issued prior to 15.03.2017 reason being that the caste certificate which was issued in his favour prior to 15.03.2017 was issued by the Block Development Officer, who is not the competent authority as per the condition stipulated under the advertisement.
However, he has submitted the caste certificate issued by the Deputy Commissioner of the concerned district but the same was issued after 15.03.2017.
17. The question of consideration of the caste certificate which was submitted by the writ-petitioner issued prior to 15.03.2017 since was issued by the Block Development Officer, cannot be said to be an admissible document since this Court has already decided the issue of consideration of such certificate issued by the incompetent authority below the rank of Deputy Commissioner which fell for consideration in L.P.A. No. 91 of 2020 disposed of on 27.10.2021 wherein this Court [13] has laid down by considering the condition of advertisement holding therein that the certificate issued by the authority lower in rank is not admissible as would appear from paragraph-8 of the said order/judgment. Paragraph-8 of the said judgment reads as under:
"8. The admitted fact in this case is that the writ petitioner while submitting the online application has submitted the caste certificate dated 10.10.2014 issued by the SDO, Giridih as would be evident from annexure-3 appended to the writ petition.
The candidature of the writ petitioner has been considered by allowing her to participate in the written examination and subsequent thereto on being successful in written examination, she has been allowed to participate in the interview but simultaneously the document has also been verified as also the caste certificate, the writ petitioner has produced the different caste certificate having been issued after the cut- off date of submission of online application which was to be submitted in between the period of 10.02.2016 to 29.02.2016, meaning thereby, the cut-off date as per the advertisement to submit online application along with the document was 29.02.2016, therefore, the caste certificate which has been submitted by the writ petitioner through online mode since was dated 10.10.2014, which was prior to the cut-off date of submission of online application i.e., prior to 29.02.2016.
The writ petitioner, at the time of interview has submitted the caste certificate as has been annexed as annexure-6/1 appended to the writ petition which was issued on 05.03.2018 by the SDO, Giridih.
This Court, has compared the caste certificate which was submitted by the writ petitioner through online mode as under annexure- 3 and certificate produced by the writ petitioner at the time of interview for scrutiny of the document which is under annxure-6/1 and in comparative assessment of the same, it has been found that the caste certificate which was submitted through online mode dated 10.10.2014 which contains a reference of sentence as under para-2 i.e., "applicable in the case of Scheduled Castes/Scheduled Tribes persons who have migrated from one State/Union Territory Administration." Further, it has been stipulated therein that the certificate is issued on the basis of the Scheduled Castes/Scheduled Tribes Certificate declaring the writ petitioner belonging to „Dhobi‟ caste and has been issued on the basis of the certificate issued by the BDO, Giridih bearing no.2127 dated 20.08.2014.
Thus, it is evident that the certificate, as appended as annexure- 3 which, was submitted by the writ petitioner at the time of submission of application through online mode is under the format which is applicable in the case of Scheduled Castes/Scheduled Tribes persons who have migrated from one State/Union Territory Administration. But herein, the case of the writ petitioner is not of migration. Further, the said certificate was issued on the basis of the report of BDO, Giridih dated 20.08.2014.
The certificate which has been submitted by the writ petitioner at the time of its scrutiny i.e., at the time of interview as has been appended as annexure-6/1 dated 05.03.2018. The content of the said certificate is that the same has been issued on the basis of the report received from the Circle Officer of the concerned circle holding the writ petitioner to be a member of „Dhobi caste/Sub-Caste‟ under Scheduled [14] Caste which is approved as Scheduled Caste for the State of Jharkhand and professes Hinduism.
Thus, there is material difference in between the contents of FormI/Form-II if assessed with the annexure-3 to the effect that annexure-3 is to be applicable in the case of migration of member of the reserved category from one State to another or Union Territory Administration and the said caste certificate is based upon the report of the BDO, Giridih while Form-I contains the content for issuance of caste certificate which is to be based upon the report of the Circle Officer.
The respondent JPSC at the time of scrutiny of the original document including the caste certificate has found that the caste certificate which was submitted through online mode at the time of submission of online application is different to that of the caste certificate issued at the time of scrutiny of the document including the caste certificate i.e., at the stage of the interview, therefore, the candidature of the writ petitioner has not been considered under Scheduled Caste category by taking into consideration the specific condition stipulated under condition no.9(gha) to the effect that if the caste certificate duly been issued by the Deputy Commissioner/Sub Divisional Officer of the concerned district or Sub Division under form-I/form-II will not be produced, the candidature of such candidate is decided to be considered under the un-reserved category and accordingly, the candidature of the writ petitioner has been considered under the un-reserved category and on comparative assessment of marks taking the marks of the last selected candidate, the writ petitioner has found to be unsuccessful as she has obtained lesser marks in comparison to that of the marks of the last selected candidate under the un-reserved category."
18. Admittedly, the writ petitioner has not produced the caste certificate issued prior to 15.03.2017 by the competent authority and now the writ- petitioner is seeking relaxation to such condition for acceptance of the caste certificate which has been issued by the Block Development Officer of the concerned Block as an admissible document, which according to our considered view, cannot be exceeded to as per the finding recorded by this Court in L.P.A. No. 91 of 2020 wherein while answering the question as to whether the condition stipulated in the advertisement, if not followed, what would be its consequence.
19. This Court after taking into consideration the content of the judgment rendered by the Hon'ble Apex Court came to the conclusive finding that there cannot be any deviation from the condition stipulated in the advertisement. Relevant part of the order passed in L.P.A. No. 91 of 2020 reads as under:
[15]
"...........
The question herein is that whether the condition stipulated in the advertisement if not been followed, what would be its consequence.
It is the settled position of Law that the condition stipulated in the advertisement is strictly to be adhered to, reference in this regard may be made to the judgment rendered by the Hon‟ble Apex Court in Ramana Dayaram Shetty Vrs. International Airport Authority of India & Ors., (1979) 3 SCC 489 as also the judgment rendered by the Hon‟ble Apex Court in Air India Ltd. Vrs. Cochin International Airport Ltd., (2000) 2 SCC 617.
Similar view has been taken by the Hon‟ble Apex Court in Bedanga Talukdar Vrs. Saifudullah Khan & Ors., (2011) 12 SCC 85. Paragraph29 from the aforesaid judgment is quoted as under :-
"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 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.""
20. This Court, having discussed the factual aspect as well as the legal position, has travelled to the impugned order wherefrom it is evident that the learned Single Judge has considered the fact about admissibility of the caste certificate which was issued by the incompetent authority, i.e., Block Development Officer, as also considered the fact that opportunity was granted to the writ-petitioner by the co-ordinate learned Single Judge of this Court, however, since the same was not been availed, it is not available for the writ-petitioner to seek any relief by getting relaxation for acceptance of caste certificate issued by the Block Development Officer of the concerned Block.
[16]
21. This Court, in view of the discussion made hereinabove as also taking into consideration the fact in entirety, is of the view that the appellant/writ-petitioner has failed to make out a case for interfering with the impugned order. Accordingly, the instant appeal fails and is dismissed.
22. Pending interlocutory application, if any, also stands disposed of.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Saurabh/ A.F.R.