Patna High Court
Sudhir Kumar Jha And Ors vs The State Of Bihar And Ors on 24 June, 2019
Equivalent citations: AIRONLINE 2019 PAT 1904
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9521 of 2008
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1. Sudhir Kumar Jha son of Surendra Mohan Jha, resident of village-
Murlichand, PO-Udakishunganj, District-Madhepura.
2. Anjani Kumar S/o Ram Kishore Sharma, resident of village + PO-
Salempur, via-Mow, District-Gaya, Pin 824235.
3. Ashok Pandey son Brij Bihari Pandey, resident of village-Sapahi, PO-
Nimez, District-Buxar, Pin-802130.
... ... Petitioner/s
Versus
1. The State of Bihar through Principal Home Secretary, Govt. of Bihar.
2. The Director General of Police, Bihar, Patna
3. The Inspector General of Police, Saran Range, Chhapra
4. The Inspector General of Police, Tirhut Range, Muzaffarpur
5. The Inspector General of Police, Darbhanga Range, Darbhanga.
6. The Inspector General of Police, Purnea Range, Purnea
7. The Inspector General of Police, Koshi Range, Saharsa
8. The Inspector General of Police, Munger Range, Munger
9. The Inspector General of Police, Gaya Range, Gaya
10. The Inspector General of Police, Sahabad Range, Dehri-on-Sone
11. The Inspector General of Police, Central Range-I & II, Patna
12. Staff Selection Commission through its Secretary, Bihar, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : M/s Rajeev Kumar Singh and Mukesh Kr. Singh, Advs.
For the B.S.S.C. : Mr. S.S. Sundaram, Adv.
For the State : Mr. Anjani Kumar, AAG 4
Mr. S. Prasad, AC to AAG 4
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL JUDGMENT
Date : 24-06-2019 Heard learned counsel for the petitioners and learned counsel for the State.
2. In this case, the petitioners are making prayer for quashing the entire process of selection for appointment of Sub- Inspector of Police in pursuance of Advertisement No.704/2004 issued by the Bihar Staff Selection Commission, further for quashing of recommendation of the Bihar Staff Selection Patna High Court CWJC No.9521 of 2008 dt.24-06-2019 2/17 Commission published in daily newspaper of the State of Bihar dated 30.05.2008 and further for giving direction to the respondents to take step to initiate a fresh process for selection in de novo further for restraining the Respondents-State for appointing the candidates whose roll numbers having been published in the daily newspaper as recommended candidates for appointment on the post of Sub-Inspector of Police on 30.05.2008 published in the newspaper and further for issuance of appropriate writ/direction to respondents to appoint the petitioner to the post of Sub-Inspector of Police.
3. The short fact of this case is that the advertisement was published on 21st September 2004 (Annexure-2) vide Advertisement no. 704 of 2004, later on, another Advertisement no. 804 of 2004 for Urdu Knowing applicants, in total 1501 posts were advertised against the advertisement No.704/2004, graduation or its equivalent qualification recognised by the State of Bihar was the minimum qualification. As per clause 10 of the Advertisement, it has been stipulated, the candidate while applying must attach the essential Certificate of qualification, such as, Matriculation Certificate, Graduation Certificate, Mark-sheet, Caste Certificate if he claims the reservation. One of the condition has been stipulated, in the event permanent and Patna High Court CWJC No.9521 of 2008 dt.24-06-2019 3/17 temporary residential address, the candidate will confine his candidature from singular place, either from the permanent address or the temporary address, filing of application form from both the places have not been approved. The stipulation mentioned above in clause 9 to 11 of the Advertisement are as follows:-
"9- vkosnu djus dh fof/k &¼1½ vPNs lknk dkxt ¼65 th- ,l- ,e-½ ij layXu vkosnu i= ds izi= ds Øekad 1 ls 10 rd vafdr lwpukvksa dks LrEHkokj Vafdr djk;s vkSj Øekad 11 ls 20 dks mlh dkxt dh ihB ij Vafdr djk;saA vkosnu ds Åij v|ru ikliksVZ lkbt dh QksVks fpidk nsa ¼ nksuks LFkkuksa ij½A blh izdkj vU; dkxt ij mifLFkfr i=d ds layXu izi= esa vafdr lwpuk,a LrEHkokj Vafdr djk;sa vksj ml ij QksVks fpidk,aa lHkh lwpukvksa dks izi= esa fn;s x;s funsZ"kksa ds vuqlkj lkQ&lkQ vaxzsth esa HkjsaA vkosnu i= esa fd;s x;s nksuksa LFkkuksa ij iwjk gLrk{kj djsaA v/kwjk ;k viw.kZ Hkjk x;k vkosnu i= ljljh rkSj ij vLohd`r dj fn;k tk;sxkA vkosnd ;fn dksbZ xyr lwpuk Hkjrk gS vFkok dksbZ lwpuk Nqikrk gS rks mldh mEehnokjh jÌ dj nh tk;sxhA 10- vuqlaXyd% vkosnu i= ds lkFk fuEukafdr dkxtkr fuEu Øe esa layXy djsa%& 1- lcls igys vkosnu i=A 2- mlds ckn fofgr izi= esa vyx iUus ij mifLFkfr i=dA 3- mlds eSfVªd@led{k ijh{kk izek.k i= dh vfHkizekf.kr izfrA ¼tUe frfFk ds fy,½ 4- mlds Lukrd @led{k ijh{kk izek.k i= dh vfHkizekf.kr izfrA 5- mlds Lukrd @led{k ijh{kk vad i= dh vfHkizekf.kr izfrA Patna High Court CWJC No.9521 of 2008 dt.24-06-2019 4/17 6- mlds tkfr vFkok vks-ch-lh- izek.k i= dh vfHkizekf.kr izfrA ¼;fn ykxw gks rks½ 7- mlds **mnwZ tkudkj vkj{kh voj fujh{kd** ds in ds mEehnokj bUVjehfM,V vFkok lerqY; ijh{kk ds vad i= dh vfHkizekf.kr izfr Hkh layXu djsA 8- mlds 7-5 **x 4-5** vkdkj dk lk/kkj.k fyQkQk A fyQkQs ds vUnj v|ru ikliksVZ lkbZt dk nks QksVks j[k nsaA fyQkQs ds Åij i=kpkj dk irk fy[k nsaA 9- mlds ijh{kk "kqYd ds fy, fu/kkZfjr jkf"k dk iksLVy vkMZjA 10- ;fn vki Mkd ls vkosnu i= Hkst jgs gSa rks ¼vU;Fkk ugha½ Mkd?kj ls 5 #i;k dk fyQkQk [kjhndj vkSj ml ij viuk i=kpkj dk irk fy[kdj layXu djsaA 11- lHkh ek;us esa iw.kZ vkosnu i= lHkh vuqyXudksa lfgr ,d vU; fyQkQs esa can dj lacaf/kr {kss=h; vkj{kh mi egkfujh{kd dk;kZy; esa tek djsaA fyQkQs ds Åij **voj fujh{kd ¼lkekU; vFkok mnwZ tks ykxw gksrk gks fy[ksa½ dh fu;qfDr** vo"; fy[k nsaA fcgkj ds fuoklh mEehnokj viuk vkosnu i= vius LFkk;h vFkok orZeku voklh; irs ds {ks=h; vkj{kh mi egkfujh{kd fdlh ,d ds ¼nksuksa ugha½ dk;kZy; esa gkFkksa gkFk vFkok fo"ks'k nwr ds ek/;e ls tek djsaxsA jkT; ds ckgj ds fuoklh mEehnokj viuk vkosnu {ks=h; vkj{kh mi egkfujh{kd] dsUnzh; {ks= iVuk dk;kZy; esa tek djsaA mEehnokj vk;ksx dk;kZy; esa vkosnu i= ugha Hkstsa cfYd lacaf/kr {ks=h; vkj{kh mi egkfujh{kd dk;kZy; esa tek djsaA ogka ls vkidks vkosnu dh izkfIr jlhn feysxh] ftl ij jkSy uEcj Hkh vafdr gksxkA tks mEehnokj Mkd ls vkosnu lacaf/kr vkj{kh mi egkfujh{kd dks Hkstsa] os dafMdk&10 esa vafdr dkxtkrksa ds lkFk Mkd?kj ls 5 #- dk fyQkQk [kjhndj layXu djsa vkSj mlds mij viuk i=kpkj dk irk fy[k nsa rkfd mlesa vkidks izkfIr jlhn jkSy uEcj lfgr Hkst nh tk ldsaA tgka rd gks vkosnu gkFkksa&gkFk fo"ks'k nwr }kjk tek djsa rkfd Mkd ls Hkstus dh Patna High Court CWJC No.9521 of 2008 dt.24-06-2019 5/17 t:jr ugha iMs-A Mkd ls vkosnu Hkstus dh ftEesokjh mEehnokj dh gksxhA"
4. All petitioners had applied for the post of Sub-Inspector against the aforesaid advertisement. The petitioner no. 1 was not given the Admit-card to participate in the physical test on the ground that he did not attach the Graduation Certificate with his application form, accordingly, he was not allowed to participate in the recruitment process by allowing him, participation in the physical test. As per the petitioners, it has been stated that at the relevant time, graduation certificate was not in his possession but the petitioner has raised grievance, alike the petitioner large number of candidates failed to attach their respective certificates but certain persons were allowed to participate in the physical test, inasmuch as those succeeded in physical test, were called upon by notice (Annexure-4) to remove the defects or error in the application. It appears from notice (Annexure-4), either few candidates did not attach the Creamy Layer Certificate or Graduation Certificate or Matriculation Certificate showing the date of birth but they were allowed to rectify the defects in their respective application. As the petitioner was not granted the Admit-card, was not allowed to participate in the physical test, thereby he was illegally deprived of participation in recruitment to the post of A.S.I. Patna High Court CWJC No.9521 of 2008 dt.24-06-2019 6/17
5. Learned counsel for the petitioners submits, the petitioner no. 1 was wrongly treated in the sense that large number of persons, who failed to attach the necessary certificate as mentioned in advertisement, were allowed to participate in the selection process, inasmuch as those, who cleared the physical test successfully, were allowed to make necessary rectification in the application form by supplying the necessary documents such as educational certificate hence it has been submitted that the act of respondents is a nothing but an act of hostile discrimination and mala fide, in debarring the petitioner to participate in the recruitment process. For petitioner nos. 2 and 3, he submits that both of them have applied from two different ranges i.e. from permanent address as well as from temporary address, illegally both were not allowed to participate in written test as their applications were rejected on the ground of violation of clause 11 of the Advertisement, which specifically prohibits for filing an application from more than one ranges, but it has been submitted that the certain persons, who have applied from more than one place, were allowed to participate in the physical test and written test, inasmuch as some of them having been appointed. The entire action of the Commission in rejecting the claim of the petitioner no. 1 having want of the necessary qualification and petitioner nos. Patna High Court CWJC No.9521 of 2008 dt.24-06-2019 7/17 2 and 3 applying from two ranges, is completely illegal as some of the candidates, who failed to attach the necessary documents at the time of filing of the application, were allowed to participate in physical test, whoever were declared successful, they were called upon for rectification of the defect in their respective forms. Further submitted that though clause 11 specifically stipulates that the candidate was to apply for the said post confining from one range only, not from two ranges, is a cause for debarring and declaring the candidature of the petitioner nos. 2 and 3 requires interference.
6. The learned counsel for the petitioners submits that admittedly the petitioner no. 1 was wrongly deprived of participating in the process of recruitment, hence the entire process of selection is bad and all the persons, who have been selected, their candidature should be cancelled. In support of submission, he has placed reliance on the judgment reported in (2015) 6 SCC 573.
7. On the other hand, the counsel for the Staff Selection Commission has not disputed the fact that the certain persons, who were selected in physical test, were allowed to make necessary correction and supply necessary documents with respect to respective deficiency, but he submits that this writ application has been filed after long delay, as the situation has changed, in such Patna High Court CWJC No.9521 of 2008 dt.24-06-2019 8/17 circumstance, this Court should not entertain the application of the petitioner no.1 because entire process of selection has already completed, result has been published much earlier, large number of candidates having been appointed, so in such circumstance, the relief which has been sought, should not be granted. It has been submitted by the learned counsel for the Staff Selection Commission that the issue of rejection of application opting to file from more than one range has been dealt with in the judgment reported in (2015) 6 SCC 573 (Tanvi Sarwal vs. Central Board of Secondary Education and others). The Division Bench in L.P.A. No.139 of 2008 reported in 2008 (2) PLJR 526, Mohan Kumar vs. State of Bihar has dealt with the issue of single application as stipulated in clause no.11 mentioned in the Advertisement, stipulates for filing application from one range only, and those who applied from two ranges, rejection of their application has been approved, that judgment was challenged before the Hon'ble Supreme Court in S.L.P. No. 10020 of 2008 and Hon'ble Supreme Court has approved the view. As the issue of single application has been decided in favour of Commission, so in such situation, the application of petitioner nos. 2 and 3 who applied from two ranges, as per the clause 11, they were rightly debarred from participation in the selection process in written test. He has further Patna High Court CWJC No.9521 of 2008 dt.24-06-2019 9/17 submitted that those candidates, who have filed two applications from the same range that anomaly has been ignored and the candidates were allowed to participate in the recruitment process. He has further submitted that not a single application of a candidate applied from two ranges for the post of A.S.I., was accepted rather all were rejected except those applied twice from one range, so in the present case, the question with respect to petitioner no. 1 is that as to whether delay and laches will be fatal for consideration of the recruitment of petitioner no. 1 in view of the fact that he had applied for the post of A.S.I., but failed to attach the graduation certificate and thereby he has been debarred to participate in the physical test and finally the fate of the petitioner no. 1 was closed whereas petitioner nos. 2 and 3 they have applied from the two ranges, as per clause 11, their applications were rejected on the ground of violation of terms of clause 11 of the Advertisement and if the petitioner succeeds, the question would arise, what relief can be granted to the petitioners.
8. The learned counsel for the Staff Selection Commission submits that at this stage, even though the petitioner no. 1 succeeds, no relief can be granted to him as the entire process of selection has been completed and the persons have been appointed and joined, so it cannot be turned turtle for the purpose Patna High Court CWJC No.9521 of 2008 dt.24-06-2019 10/17 of granting relief to petitioner no. 1, placing reliance on the delay and laches and in support of submission, he has placed reliance on the judgment reported in 2009 (2) SCC 479 (S.S. Balu and another vs. State of Kerala and others) in view of fact that final result has been published on 30.05.2008.
9. It will be relevant to take up the case of petitioner nos. 2 and 3, the case of petitioner no.1 would be dealt with separately at later stage. It is not in dispute that petitioner nos. 2, Anjani Kumar and petitioner no. 3, Ashok Pandey have applied for the post of A.S.I. from two places. Anjani Kumar, Petitioner no. 2, Roll No. P-27136 had applied from Magadh Range Board also Roll No. G-1561 whereas Ashok Pandey, petitioner no. 3, Roll No.P-46823 had also applied from Shahabad Range. As per clause 11 of the Advertisement, option for applying has been limited from one place. Though petitioner nos. 2 and 3 were declared successful in the physical test, but both were not allowed to appear in the written test. This issue is no longer in res integra, the same issue with regard to restriction for applying from one place, came for consideration in the judgment reported in the case of Mohan Kumar vs. State of Bihar and in clause 11, restriction imposed for applying from only one place and in the event, application filed more than one place will lead to rejection of the application has Patna High Court CWJC No.9521 of 2008 dt.24-06-2019 11/17 been approved. This Court has held that the candidates were not entitled to submit their application at two different ranges and the restriction mentioned in advertisement has been approved as has been held to be reasonable to avoid the chance of Range hunting They were deprived of the right to appear in the written test on the ground that they failed to observe the condition mentioned above.
10. It will be relevant to quote paragraph 8 to 12 of the said judgment, which are as follows:-
"8. In my opinion, the issue is not as to whether Clause 11 of the advertisement is directory or mandatory. It does not put any eligibility criteria but confines the right of a candidate to apply before the Deputy Inspector General of Police of Range based on the permanent or temporary residence of the candidate. In view of aforesaid Clause of the advertisement a candidate, resident of the State of Bihar, has been given choice either to apply before the Deputy Inspector General of Police of the Range where his permanent or temporary residence is located. The advertisement has dearly stated that a candidate can apply before one of the such Range-Boards and not more than one. The Bihar Staff Selection Commission has chosen to put this condition so that a candidate may not take chance at two Range Boards or more. The Commission consciously has incorporated this Clause in the advertisement and confined the choice of the Patna High Court CWJC No.9521 of 2008 dt.24-06-2019 12/17 candidates in order to avoid "Range-hunting", an expression borrowed from the law Courts of "Bench hunting". It was reasonable for the Commission to confine the choice to one Range Board, so as to avoid multiplicity of applications. Altogether approximately one lakh eighty thousand candidates have offered their candidature at different Range- Boards and had the Commission not confined the choice, all such candidates could have applied to all Range-Boards. It would have been difficult for the Range-Boards to handle such large-number of applications. Bearing in mind this also commission had limited the choice of the candidates. The Commission emphatically confined the choice of filing the application before one Range Board and not more than one Board which discretion the Commission possesses.
9. Clause 9 of the advertisement has clearly provided that if a candidate gives wrong information or conceals information, his candidature shall be cancelled. The fact that the Petitioner had applied before two Range Boards has not been disclosed in either of the application. In that view of the matter, I am of the opinion that the Commission possessed the right to cancel the candidature of such candidates who had made applications at two places in teeth of the condition laid down in Clause 11 of the advertisement, in my opinion, Clause 11 of the advertisement restricting submission of application before one Range Board Patna High Court CWJC No.9521 of 2008 dt.24-06-2019 13/17 being later than Clause 9 providing for rejection of the candidature at an earlier place in the advertisement shall have no bearing at all.
10. In view of what I have found, the Petitioner was not entitled to submit applications to two different Range Boards and admittedly he having done so shall not clothe him with the right to appear in the written test only on the ground that he appeared in the physical test at one Range Board. Appearance of the candidates before his chosen Range Board, if considered decisive, may lead to an absurd result, not contemplated by the advertisement and a candidate may choose to apply before all the Range Boards, which I am told are 12 in number and thereafter, decide to appear before one Range Board of his choice and then contend that he having appeared from one Range Board had the right to appear in the written test. Taking into account the underlying object in confining the choice of the candidate to one Range Board, I am of the opinion that any consideration other than the aforesaid shall erode the credibility of the Commission, for preservation whereof Clause 11 of the advertisement was incorporated.
11. In view of what I have found above, I am of the opinion that the learned Single Judge did not err in dismissing the writ application.
12. In the result, I do not find any error in the Order of the learned Single Judge and the appeal is Patna High Court CWJC No.9521 of 2008 dt.24-06-2019 14/17 dismissed accordingly, but without any Order as to cost"
11. The aforesaid judgment has been approved by the Hon'ble Supreme Court in S.L.P. No. 10020 of 2008, in such view of the matter, petitioner nos. 2 and 3 do not have any case for consideration for selection to the post of A.S.I., hence this petition with respect to petitioner nos. 2 and 3 is dismissed.
12. So far petitioner no. 1, Sri Sudhir Kumar Jha, let take up his case as he has made a complaint that he was not allowed to participate in the physical test on account of failure to attach the graduation certificate with his application form, it has been submitted similar to the petitioner no. 1, many applicants though they failed to attach the requisite certificate, but they were allowed to participate not only in the physical test but they were allowed to participate in the written test, out of them some, even having been selected as A.S.I. and in support of his submission, he has placed reliance on the notice issued by the Staff Selection Commission, Annexure-4, on perusal of the said notice it appears that the persons, who have failed to attach the caste certificate, graduation certificate including matriculation certificate, were called upon to remove the defects and supply the necessary documents. In support of claim, the Commission as well as the State has filed respective counter affidavits, but in nowhere such Patna High Court CWJC No.9521 of 2008 dt.24-06-2019 15/17 averment made in the writ application has been challenged and the notice attached as Annexure-4 having been contradicted that those, who have failed to attach the certificates by issuance of notice, were called upon to remove the defects by supplying the necessary documents, so in that circumstances, this Court is of the view that the Commission has wrongly denied the petitioner no. 1 to appear in the physical test, consequence followed that there was no occasion for the petitioner no. 1 to qualify in the physical test and to appear in the written test, thereby he has been deprived of the right to appear in the physical test and followed by the written test, so there is no dispute that the petitioner no. 1 has wrongly and arbitrarily been deprived to participate in the selection process.
13. Learned counsel for the Staff Selection Commission has not denied the submission of the petitioner that some of the candidates, who have failed to attach their educational certificate as well as caste certificate, were allowed to participate in the physical test and later on, they were asked to supply the necessary documents and remove the defects as has been pointed out of the notice of Staff Selection Commission by issuance of notice as Annexure-4 of the writ application, but he has raised question that as it is a very old matter which relates to recruitment and appointment to the post of A.S.I., for that, advertisement was Patna High Court CWJC No.9521 of 2008 dt.24-06-2019 16/17 published in 2004 and the petitioner had approached this Court in 2008 and this petition remained pending before this Court, so it will not be prudent and equitable to grant relief, to give direction, to issue a mandamus, to cancel the entire process of selection and start fresh selection process merely on account of the fact that the petitioner and some other persons were wrongly deprived to participate in the selection process, as some persons having been declared successful, have already joined their services are not party before this Court, so in such circumstance, it will not be appropriate to interfere with the recruitment of A.S.I. It is a matter of recruitment of 2004 and now we are in 2019, the result has already published in 2008, though the candidates who were seeking appointment as A.S.I., approached this Court and Hon'ble Supreme Court in more than one occasion some time with positive result but after delay of about 14 years, it will not be equitable or prudent to quash the entire process of selection. In the intervening period, it has been informed that the recruitment for A.S.I. has been completed and already persons are working.
14. In such view of the matter, after delay of 14 years, this Court should not exercise its discretionary jurisdiction and quash the entire process of selection and ask the Commission for starting de novo selection process from the stage of the physical Patna High Court CWJC No.9521 of 2008 dt.24-06-2019 17/17 test, but it will be in the interest of justice and equity that the petitioner should be allowed to participate in the recruitment of A.S.I. granting age relaxation if any.
15. Accordingly, this petition is dismissed with the observation as stated herein above.
(Shivaji Pandey, J) mkchy/-
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