Jharkhand High Court
[Sanjay Kumar And Others vs . The State Of Jharkhand And Others] on 12 September, 2018
Author: S.N. Pathak
Bench: S. N. Pathak
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 6709 OF 2017
[Sanjay Kumar and others Vs. The State of Jharkhand and others]
With
W.P.(S) No. 789 OF 2018
[Sanjay Prasad and others Vs. The State of Jharkhand and others]
With
W.P.(S) No. 1257 OF 2018
[Mohd. Imtiyaz Ansari Vs. The State of Jharkhand and others]
With
W.P.(S) No. 1278 OF 2018
[Javed Alam and others Vs. The State of Jharkhand and others]
With
W.P.(S) No. 1342 OF 2018
[Jai Prakash Tiwari and others Vs. The State of Jharkhand and others]
With
W.P.(S) No. 1638 OF 2018
[Dharmendra Kumar and others State of Jharkhand and others]
With
W.P.(S) No. 1757 OF 2018
[Jwala Prasad and others Vs The State of Jharkhand and others]
With
W.P.(S) No. 544 OF 2018
[Shambhu Paswan and others Vs. The State of Jharkhand and others]
With
W.P.(S) No. 1007 OF 2018
[Ganesh Kumar and others Vs. The State of Jharkhand and others]
With
W.P.(S) No. 1915 OF 2018
[Upendra Kumar Chourasia and others Vs. The State of Jharkhand and others]
With
W.P.(S) No. 1926 OF 2018
[Janeshwar Kumar and others Vs. The State of Jharkhand and others]
With
W.P.(S) No. 1893 OF 2018
[Manoj Kumar and others Vs. The State of Jharkhand and others]
With
W.P.(S) No. 7047 OF 2017
[Anil Kumar Das and others Vs. The State of Jharkhand and others]
RC
2
CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
For the Petitioners : Mr. Rajiv Ranjan, Sr. Advocate.
Mr. Manoj Tandon, Advocate
Mr. Jai Shankar Tripathi, Advocagte
Mr. Shray Mishra, Advocate
Mr. Ashutosh Kumar Singh, Advocate
Mr. Piyush Chitresh, Advocate
Mr. Tejo Mistri, Advocate
For Respondents-State: Mr. H.K. Mehta, AAG
Mr. K.M. Verma, GP-I Mr. L.C.N. Shahdeo, GP-IV Ms. Richa Sanchita, SC-V Mr. Shadab Bin Haque, AC to GP-I Mr. Vishal Kumar Rai, AC to SC-IV Ms. Chaitali C. Sinha, AC to AAG Mr, Kaustav Panda, AC to GA Mr. Vineet Prakash, AC to SC (L & C) Ms. Kanchan Kumari, AC to AAG Ms. Shrestha Mehta, AC to AAG AC to Mr. Sumir Prasad.
12/12.09.2018 Since all these writ petitions raise a common question of law, the same are being heard and disposed of by this common Judgment.
2. With a common grievance, petitioners have approached this Court mainly with a prayer to immediately and forthwith stop counselling of the candidates who have been called and appeared for Class-IV posts of Anusevak and further prayed for quashing the press release issued vide Memo No. 842, dated 09.11.2017.
3. The fact of the case giving rise to the instant writ petitions is that a press release in respect of Advertisement No. 01/2010, dated 26.07.2010 was issued by the Deputy Commissioner, Palamau on 22.07.2017 and 31.08.2017 regarding holding of the examination which was earlier postponed, asking all eligible candidates to give their consent for appearing in the examination. Petitioners appeared in the written examination conducted for the Class-IV post of Anusevak held on 05.11.2017. After the examination, there was a press release vide memo no. 842, dated 09.11.2017, asking all the successful candidates to come for counselling on various dates and the counselling was to start from 12.11.2017.
4. Learned counsels appearing for the petitioners submit that there is no provision for holding interviews/ counselling for the class-IV posts. Pursuant to the Office Memorandum dated 29.12.2015, it has already been decided by the Government of India, Ministry of Personnel, Public Grievances and RC 3 Pension, Department of Personnel and Training not to hold interviews/ counselling for all junior level posts and the same has already came into force with effect from 01.01.2016. Learned counsels further submit that even in other States like the State of Himachal Pradesh, decision has already been taken to discontinue the process of holding interviews in respect of making direct recruitment to Class-III and IV posts. Learned counsels submit that petitioners have already cleared their written examination and are liable to be appointed on the basis of the marks obtained by them. Only in order to harass the petitioners and others who have obtained appropriate marks for selection, the impugned Memo No. 842, dated 09.11.2017 has been issued by the respondents in order to accommodate the persons of their choice and as such, the decision of the respondents to conduct counselling is bad in eyes of law and is liable to be set aside.
5. On the other hand, Mr. H.K. Mehta, learned AAG appearing on behalf of respondents-State submits that the instant cases have a chequered history. Pursuant to Advertisement No. 01/2010 for appointment to the Class- IV posts in Palamau Collectorate, the examinations were held on 05.11.2017. However, after the complaints regarding irregularities committed in the examination, it was decided to hold counseling for final selection amongst the candidates who had obtained higher marks. Upon enquiry, many candidates accepted their indulgence in leak of question papers and other irregularities and thereafter, FIR was lodged against the examination conducting agency, coaching institutions and candidates indulged in committing irregularities. The decision to hold counselling has been done just to verify the irregularities and complaints. Learned counsel further submits that the action of the respondents would also help in verification of institution of criminal cases, if any, against any candidates as the persons having criminal background/history cannot be appointed in a government service.
6. Mr. K.M. Verma, learned GP-I representing respondents - State very fairly submits that admittedly some irregularities were there and on a complaint regarding irregularities committed in the examination it was decided to hold Counselling for final selection amongst the candidates who had obtained higher marks. It has further been submitted by learned GP-I that there is a provision for Counselling and in view of that provision, Counselling was held to verify the documents/ testimonials of the candidates. The selection of candidates are to be made only on the basis of written examination and the candidates who have obtained higher marks and in RC 4 Counselling, upon verification, if their certificates are found to be genuine and there is no other legal impediments, their cases shall be considered for appointment in accordance with law. Learned GP-I further argues that there is no provision for awarding marks in Counselling. There is a difference between 'Counselling' and 'Interview'. In 'Interview' marks are awarded which becomes the basis for appointment as total marks awarded in the written as well as in interview are taken into consideration for final selection. In case of Counselling, no marks can be awarded and appointment is done on the basis of marks obtained in the written examination subject to verification of the certificates in the counselling.
7. Be that as it may having gone through rival submissions of the parties, this Court is of the considered opinion that case of the petitioners need consideration. From perusal of the records, it transpires that examination for appointment to Class-IV posts in Pamamau Collectoriate in pursuant to Advertisement No. 1/2010 were held on 05.11.2017. The said Advertisement no. 01/2010 nowhere speaks about holding of any Interview. Admittedly, as per the settled principles of law, the appointments are to be carried out in accordance with terms and conditions of the advertisement. Once the respondents have floated advertisement and process of appointments have started, the terms and conditions of the advertisement cannot be altered or changed as per wishes of the respondents. The law is well settled. Once the game has started or is over, rules cannot be changed. In the instant case, examination is already over and only appointments were to be made after verification of documents.
8. It is settled proposition of law, as has already been held by Courts that once a process of selection starts, the prescribed selection criteria cannot be changed. Hon'ble Supreme Court in the case of K. Manjushree V. State of Andhra Pradesh reported in (2008) 3 SCC 512 has clearly held that it was not permissible to the employer to change criteria of selection in the midst of selection process. The same view was reiterated in the case of Himani Malhotra Vs. High Court of Delhi reported in (2008) 7 SCC 11. In A.P. Public Service Commission v. B. Swapna, (2005) 4 SCC 154, it has been held that there are two principles in service laws which are indisputable - Firstly, there cannot be appointment beyond the advertised number and secondly norms of selection cannot be altered after the selection process has started. The view was recently reiterated in State of J&K v. Sanjeev Kumar reported in (2005) 4 SCC 148.
RC 5 "14. The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by learned counsel for Respondent 1 applicant it was the unamended rule which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only. (See P. Mahendran v. State of Karnataka3 and Gopal Krushna Rath v. M.A.A. Baig)
15. Another aspect which this Court has highlighted is scope for relaxation of norms. Although the Court must look with respect upon the performance of duties by experts in the respective fields, it cannot abdicate its functions of ushering in a society based on rule of law. Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification, the entire process of selection so far as the selected candidate is concerned gets vitiated. In P.K. Ramachandra Iyer v. Union of India this Court held that once it is established that there is no power to relax essential qualification, the entire process of selection of the candidate was in contravention of the established norms prescribed by advertisement. The power to relax must be clearly spelt out and cannot otherwise be exercised.
16. In State of U.P. v. Rafiquddin it was inter alia, held as follows: (SCC p. 428, para 30) "30. Before we close we would like to refer certain aspects which came to our notice during the hearing of the case relating to the functioning of the Public Service Commission, selection of candidates and their appointment to the judicial service. We were distressed to find that the Public Service Commission has been changing the norms fixed by it for considering the suitability of candidates at the behest of the State Government after the declaration of results. We have noticed that while making selection for appointment to the U.P. Judicial Service the Commission had initially fixed 40 per cent aggregate marks and minimum 35 per cent marks for viva voce test and on that basis it had recommended list of 46 candidates only. Later on at the instance of the State Government it reduced the standard of 40 per cent marks in aggregate to 35 per cent and on that basis it forwarded a list of 33 candidates to the Government for appointment to the service. Again at the RC 6 behest of the State Government and with a view to implement the decision of the high-level committee consisting of Chief Justice, Chief Minister and the Chairman of the Commission forwarded names of 37 candidates in 1974 ignoring the norms fixed by it for judging the suitability of candidates. The Commission is an independent expert body. It has to act in an independent manner in making the selection on the prescribed norms. It may consult the State Government and the High Court in prescribing the norms for judging the suitability of candidates if no norms are prescribed in the Rules. Once the Commission determines the norms and makes selection on the conclusion of the competitive examination and submits list of the suitable candidates to the Government it should not reopen the selection by lowering down the norms at the instance of the Government. If the practice of revising the result of competitive examination by changing norms is followed there will be confusion and the people will lose faith in the institution of Public Service Commission and the authenticity of selection."
17. In Maharashtra SRTC v. Rajendra Bhimrao Mandve it was held as under: (SCC pp. 55-56, para 5) "It has been repeatedly held by this Court that the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced. Therefore, the decision of the High Court, to the extent it pronounced upon the invalidity of the circular orders dated 24-6-1996, does not merit acceptance in our hand and the same are set aside."
18. In Krushna Chandra Sahu (Dr.) v. State of Orissa it was held as under: (SCC p. 13, paras 34-36) "34. The Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In P.K. Ramachandra Iyer v. Union of India it was observed: (SCC pp. 180-81, para
44) 'By necessary inference, there was no such power in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm."
Similarly, in Umesh Chandra Shukla v. Union of India it was observed that the Selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the Rules. Both these decisions were followed in Durgacharan Misra RC 7 v. State of Orissa and the limitations of the Selection Committee were pointed out that it had no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva voce.
It may be pointed out that rule-making function under Article 309 is legislative and not executive as was laid down by this Court in B.S. Yadav v. State of Haryana. For this reason also, the Selection Committee or the Selection Board cannot be held to have jurisdiction to lay down any standard or basis for selection as it would amount to legislating a rule of selection.
The norms or rules as existing on the date when the process of selection begins, any alteration to such norms would not affect the continuing process, unless specifically the same were given retrospective effect. While a person may not acquire an indefeasible right to appointment merely on the basis of selection, in the instant case the fact situation is different since the claim of the respondent to be appointed had been negated by a change in policy after the selection process had begun. Recruitment to a post must be made strictly in terms of the Rules operating in the field as has been held in the case of Rajasthan Public Service Commission v. Kaila Kumar Paliwal, (2007) 10 SCC 260 . The recruitment to a post must be made strictly in terms of the Rules operating in the field.
9. The sole disputes and challenge is regarding holding of Interview and awarding marks. The respondents are permitted to hold Counselling for verification of certificates/ testimonials, which is as per rules. In every selection process, Counselling are done for verification of the certificates but that does not mean that extra marks are awarded in Counselling. The Counselling can be done as it is a process of recruitment for verification of certificates. The respondents are very much permitted to go for counselling and verification of certificates but simultaneously the respondents cannot be allowed to hold the interview in the garb of Counselling and awarding extra marks as it was never the terms and conditions of the advertisement. The counselling cannot be termed as an interview. There is difference between counselling and interview.
According to Merriam-Webster's Collegiate Dictionary, Eleventh Edition the term Counseling means 'professional guidance of the individual by utilizing psychological methods esp. in collecting case history data, using various techniques of the personal interview and testing interests and aptitudes." The terms "Interview" has been defined as "a formal consultation to evaluate qualifications".
RC 8
10. As regards institution of criminal case, altogether it is a separate proceeding. The respondents are free to take action in the criminal proceeding. Admittedly no right has accrued to the petitioners to get themselves appointed even if their names find place in the panel as has been held in the case of Sankarsan Das Vs. Union of India reported in (1991) 3 SCC 47 "It is not correct to say that if the number of vacancies are enough for appointment and adequate number of candidates are found fit, the successful candidates acquires an indivisible right to be appointed which cannot be legitimately denied. Ordinarily, the Notification merely amounts to an intimation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that State has the license of acting in an arbitrarily manner. The decision not to fill up the vacancies have to be taken bonafide or appropriate reasons and if the vacancies or any of them are filled up, the State is bound to respect the comparative merits of the candidates as reflected at the recruitment test and no discrimination can be permitted."
11. In view of facts and circumstances narrated hereinabove, the respondents are directed to appoint the petitioners on the basis of marks obtained in the written examination. No additional marks can be allotted in counselling. Counselling is permitted in accordance with law as per terms and conditions of the advertisement for verification of certificates. If the candidates who have appeared in the written examination and have been declared successful and are eligible for appointments after verification of certificates and testimonials, it is open for the respondents to prepare a list for appointment in accordance with law.
12. In the instant case, admittedly examinations were held on 05.11.2017 pursuant to Advertisement No. 01/2010 for appointment to the Class-IV posts in Palamau Collectorate. Said Advertisement No. 01/2010 nowhere speaks about the holding of any interview or re-test. The appointment has to be carried out in accordance with the advertisement notice. Once the respondents have floated the advertisement and process of appointment has started, it cannot change the rules of the game once the game has started. In the instant case examination is already over and merit list has been prepared. Once the process is over, how can the respondents change the rules for such appointment. There cannot be a doubt that it is the absolute discretion of the employer to make or not to make appointments, even after RC 9 an advertisement has been issued for inviting applications for appointment but the respondents cannot be allowed to change rule for such appointment.
13. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncements, all these writ petitions are allowed. Respondents are directed to prepare merit list as per the marks obtained in the written examination conducted by them on 05.11.2017. It is open for the respondents after preparation of the merit list to go for appointments of the candidates as per the rules laid down in accordance with law subject to verification of certificates in the counselling. Let the entire exercise be completed within a period of 12 weeks from the date of receipt/ production of a copy of this order. Needless to say, if petitioners are found fit for appointment as per marks obtained in the written test and upon verification of the certificates in the counselling and if there is no other legal impediments, the appointments shall be made within a period of four weeks thereafter.
14. As a sequel of disposal of the instant writ petitions, all pending Interlocutory Applications, if any, also stand disposed of.
(Dr. S.N. Pathak, J.) RC