Jharkhand High Court
Arbind Kumar vs Jharkhand Public Service Commission on 3 May, 2018
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (S) No. 2302 of 2008
...
Arbind Kumar, S/o Shri Amrendra Kumar 'Amar', resident of-Near Birsa
Stadium, Morabadi, P.O.-Ranchi University, P.S.-Lalpur, District-Ranchi.
... ... Petitioner
-V e r s u s-
1.Jharkhand Public Service Commission, through its Chairman, Circular
Road, Ranchi-834001.
2.Secretary-cum-Examination Controller, Jharkhand Public Service
Commission, Circular Road, Ranchi-834001.
3.State of Jharkhand, through the Secretary, Department of Science &
Technology, Government of Jharkhand, Ranchi.
4.Shailendra Kumar, S/o Sri Kulbhushan Prasad, r/o Krishnapuri, Korrah,
Dist.Hazaribagh - 825301
5.Mujahidul Islam, S/o Sri Md Hajizullah, Ward no. 7, Dist-Gopalganj
(Bihar)-841428.
6.Mukesh Kumar Rajan, S/o Sri Umesh Rajak, r/o Qr. No. 1178, Street-37,
Sector 9-D, District-Bokaro-827009. ... Respondents
...
CORAM: - HON'BLE MR. JUSTICE PRAMATH PATNAIK.
...
For the Petitioner : - Mr. Pandey Neeraj Roy, Advocate.
For the Respondent-State : - Mr. Ajit Kumar, A.C. to S.C. (L&C).
For the Respondent J.P.S.C. : - Mr. Sanjay Piprawall, Advocate.
...
C.A.V. On : - 15.09.2017 Delivered On :- 03/05/2018
...
Per Pramath Patnaik, J.
Challenging the selection process with respect to the posts advertized vide Advertisement (Annexure-1) and the results of the written test vide Annexure-4 and the notice dated 06.06.2007 by the J.P.S.C., whereby the vacancies in Mechanical Engineering have been reduced from 25 to 22 vide Annexure-3 to the writ application, the instant writ petition has been filed by the petitioner, inter alia, praying for direction to the respondents to start the fresh selection process.
2. The brief facts leading to filing of the writ application are that the petitioner applied for the post of the Mechanical Engineer in pursuance to the Advertisement published by the Jharkhand Public Service Commission for different posts vide Annexure-1 to the writ petition. The petitioner appeared in the preliminary examination. On 06.06.2007, J.P.S.C. published a notice in the newspaper revising the vacancy in different subjects and the vacancies in Mechanical Engineering were 2 reduced from 25 to 22 vide Annexure-3 to the writ petition. The name of the petitioner did not find place in the result of the preliminary examination. Thereafter, the petitioner applied under the Right to Information Act and the information was supplied to the petitioner by the J.P.S.C.'s Public Information Officer vide Annexure-7 to the writ petition. The petitioner being aggrieved by the reply, preferred a complaint before the Information Commissioner vide letter dated 15.01.2008. The Chief Information Commissioner allowed three weeks' time to the J.P.S.C. Consequent to the Hon'ble High Court's order dated 07.02.2008 dismissing W.P. (S) No. 446 of 2008 filed by the J.P.S.C. The copies of the order dated 03.03.2008 and the details provided by the J.P.S.C. regarding the marks obtained by all the candidates have been enclosed as Annexure-9 and 10 to the writ petition and the copy of the Disclosure made in the Website regarding correct answers has been given in Annexure-11 to the writ petition. It has been averred in the writ application that from the complete disclosure of the marks determined by each candidates, the petitioner conceived the tabular analysis and from the Tabular Analysis, it appears that while the petitioner, an OBC candidate, with 56 marks has not qualified, the candidates in general category with lesser marks (in 8 candidates with 54 marks and 6 candidates with 52 marks have been shown as successful besides 4 candidates with equal marks (56) as that of the petitioner. The petitioner ought to have been treated as equivalent with candidates, who secured 56 marks in general category, which has resulted in hostile discrimination, thereby violating Articles 14 and 16 of the Constitution of India. It has further been submitted that the criteria and Rules cannot be altered to the prejudice of the candidates, after they have applied pursuant to the Advertisement, therefore, it has been contended that the final results has got tainted with illegality. Being aggrieved by the aforesaid action of the respondents, the petitioner has been compelled to knock the doors of this Court, under Articles 226 of the Constitution of India for redressal of his grievances.
3. Learned counsel for the petitioner has strenuously urged that the action of the respondents in not treating the petitioner as successful 3 candidates in spite of the facts that the persons securing less marks have been selected and the action of the respondents smacks of colourable exercise of power. Learned counsel further submits that the entire selection process has got vitiated due to mala fide, illegal and unconstitutional action of the respondents in changing the criteria and Rules for selection. Learned counsel further submits that the selection process has been rendered illegal in view of the reduction of the vacancies made by the respondents for the posts of Mechanical Engineering from 25 to 22 vide Notice dated 06.06.2007 (Annexure-3) during pendency of the selection process. In this respect, learned counsel for the petitioner submits that there is a long line of decisions by the Hon'ble Supreme Court that the rules of the game cannot be changed in the midst of selection and referred to the following decisions : -
(i) in the case of Ritesh R. Sah-vs.-Dr. Y. L. Yamul &
Ors. reported in (1996) 3 SCC 253
(ii) in the case of R. K. Sabharwal & Ors.-vs.-State of
Punjab reported in (1995) 2 SCC 745 para 4,
(iii) in the case of Rajesh Kumar Daria-vs.-Rajastan Public Service Commission & Ors. reported in AIR 2007 SC 3127 para 7 and 7 and
(iv) in the case of Sonia-vs.-Oriental Insurance Co. Ltd. and Ors. reported in (2007) 10 SCC 627.
4. Controverting the averments made in the writ application, a counter affidavit on behalf of the respondent nos. 1 and 2 has been filed. In the counter affidavit, it has been, inter alia, stated that the Department of Science and Technology, Govt. of Jharkhand sent requisition to the Jharkhand Public Service Commission, Ranchi (hereinafter called as 'the J.P.S.C.') for starting selection process for the appointment on the post of Lecturers in different branches in Govt. Polytechnic and Mining institute situated within the State of Jharkhand. The J.P.S.C. after receiving requisition, published the Advertisement by which applications were invited from eligible candidates for considering their candidature on the post of Lecturer. The J.P.S.C. has been provided power by virtue of Rules of Procedure, 2002 for short-listing the candidates, if in response to 4 Advertisement, the numbers of applicant is large. It has been further stated that since the numbers of candidates exceeded more than 500 in technical side, i.e. for the post of Lecturer in Civil, Electrical, Mechanical, electronics and tele-communicaion etc., the J.P.S.C. decided to short-list the candidates for calling in the interview on the basis of screening test. Accordingly, the candidates were informed by way of press-communique that J.P.S.C. has decided to conduct screening test for short-listing the candidates for calling in interview for the appointment of Lecturers in technical side. Thereafter, the candidates were issued Admit- cards for their appearance in the said Screening test and accordingly, on 11.3.2007, the screening test was conducted at different centres. It has been further stated that from perusal of Annexure-A, it would be evident that initially the Department had requisitioned 25 posts for different categories of candidates and thereafter, the concerned Department had reduced the number of vacancies from 25 to 22 and just after receiving the said instruction, immediately informed the concerned candidates by way of Press-communique that the Department had reduced the number of vacancies. It has been further stated that from each category, candidates were called for interview 3 times of the posts and as such, the J.P.S.C. decided to call the aforesaid numbers of candidates from different category, i.e. General, S.T., S.C. and O.B.C. from the top of the list and for the 7 posts of S.T. Category candidates, only 13 candidates were found to have scored 30 per cent marks in screening test and as such only those candidates were decided to be called in interview and for the one post of B.C. category 4 candidates were decided to be called in view of the fact that 2 candidates have secured same marks and for the General category vacancy of 12 posts, 38 candidates were decided to be called in view of the fact that 4 candidates have secured same marks and for 2 posts of S.C. category 6 candidates were decided to be called and on the basis of the aforesaid ratio the J.P.S.C. Published the result of the screening test, in which 61 candidates were declared successful. It has been further stated that the petitioner belongs to B.C. Category and has secured only 56 marks in screening test and as such he was not declared successful for the interview in view of the fact that in B.C. Category only 5 one post was requisitioned and only 4 candidates were called from top of the list, who have secured 76, 68 and 62 marks, i.e. more marks than the petitioner and it is a settled principle of law that required number of the candidates should be taken from the top of the list. It has been further stated that from the aforesaid facts, the present classification is based on intelligible differentia with a fair nexus to object sought to be achieved and does not fall under the vice of inequality. It has been further stated that the contention of the petitioner that the General category candidates, who have secured less marks than the petitioner, have been declared successful in the screening test, is not maintainable in view of the fact that the petitioner had secured less marks than the candidates in his category, who have been declared successful in the screening test and secondly in each category, the candidates have been declared successful from the top of list according to the vacancy, so that sufficient number of candidates from each category may qualify for the interview. It has been further stated that reservation system is generally followed during the declaration of main result and in the main result, the benefit of reservation has been extended to the candidates and in view of the aforesaid facts as well as in view of non-joinder of necessary parties, since all the selected candidates are necessary parties, the present writ application is not maintainable. It has been further stated that the written test examination was a screening test for short-listing the candidates and that the final result has been published on the basis of assessment made by the High Power Interview Board. In view of the provisions of R.T.I. Act, 2005, information about 3rd party cannot be provided and as such in reply to the information no. 2, the J.P.S.C. had informed the petitioner about the marks secured by the petitioner and the marks secured by last successful candidates in his category and so far as information no. 1 is concerned, it was informed to the petitioner that preparation is being made to place the sample answer on the web-site of the J.P.S.C. and after the order of this Court, the petitioner has been provided entire information, as demanded by him. Initially, the petitioner had only demanded sample answer which was provided to him, but, after receiving the same, after thought, he again demanded that he may also be 6 provided questions by enlarging the scope of his original application and as such it was protested by the J.P.S.C. In the light of provisions of R.T.I. Act, 2005 and that he cannot enlarge the scope of original application, apart from other grounds and the learned State Information Commissioner without considering the facts and circumstances of the case, has been pleased to pass the order dated 31.3.2008, whereby direction was made to provide questions also and the said order was challenged vide W.P. (C) No. 1923 of 2008 and this Court has stayed the operation of the said order. It has been further stated that the petitioner has been provided information in accordance with law and there is no illegality in the selection process.
5. A supplementary counter affidavit has been filed on behalf of the respondent no. 1, wherein, it has been, inter alia, submitted that the final position of the vacancies were as follows:-
Unreserved - 12
ST - 7
SC - 2
OBC - 1
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Total - 22
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On the basis of above stated facts, the Commission had to call three times candidates for interview from each category and accordingly the Commission called three times candidates for interview category wise from top of the list. It is relevant to state here that for the 7 posts of ST Category candidates, only 13 candidates were found who secured 30 % marks in screening test and as such only those candidates were decided to be called for interview and for unreserved candidates, 38 candidates were decided to be called in interview for 12 posts because of the fact that four candidates secured same marks and for 2 post of S.C. category candidates, 6 candidates were decided to be called in interview. It has been further stated that in OBC category only one post was requisitioned and the Commission called 4 candidates from top of the list, who have secured 76, 68 and 62 marks respectively and the 7 petitioner belongs to BC category and he has secured only 56 marks in screening test.
6. Learned senior counsel for the respondents-JPSC apartfrom reiterating the submissions made in the counter affidavit has submitted that being a participant in the selection process, the petitioner could not have challenged the selection and the learned counsel for the respondents has referred to the decision of the Hon'ble Apex Court reported in (2007) 8 SCC 100 (Union of India and Ors. vs. S. Vinodh Kumar and Ors.), more particularly to paragraph 18. Learned counsel for the respondents has also referred to the decision dated 07.07.2017 rendered in W.P. (S) No. 6427 of 2016 with W.P. (S) No. 6482 of 2016. Learned counsel for the respondents has also referred to the decision rendered in L.P.A. No.467 of 2015, wherein, the Division Bench of this Court, has been pleased to hold that no direction can be issued upon to evolve any policy by changing the existing policy for extending the benefit of reservation.
7. Having heard learned counsel for the respective parties and on consideration of the relevant materials, including the Rules of Procedure, 2002 and the procedure adopted by the J.P.S.C., which does not appear to suffer from vice of discrimination or any unfairness. Since JPSC is supposed to act with all fairness and transparency, and in case if the action of the Commission is fraught with any arbitrary exercise of power, in that eventuality the Court under Article 226 of the Constitution can step into exercise power of judicial review.
8. In the instant case, shortlisting of the candidates has been made in consonance to the Rules of Procedure, 2002 and the petitioner whose name does not find place in shortlisting of the candidates, do not have any indefeasible right to challenge the selection procedure as has been held by the Hon'ble Apex Court reported in (2007) 8 SCC 100 (Union of India and Ors. vs. S. Vinodh Kumar and Ors.), more particularly to paragraph 18, wherein the Hon'ble Apex Court has been pleased to hold that:
"18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same."8
9. The Hon'ble Apex Court in its decision in the case of Andhra Pradesh Public Service Commission vs. Baloji Badhavath and Ors. reported in (2009) 5 SCC 1 at paragraph 25 has been pleased to hold that:
"25. How the Commission would judge the merit of the candidates is its function. Unless the procedure adopted by it is held to be arbitrary or against the known principles of fair play, the superior courts would not arbitrarily interfere therewith. The State framed Rules in the light of the decision of the High Court in S. Jaffer Saheb. Per se, it did not commit any illegality. The correctness of the said decision, as noticed hereinbefore, is not in question having attained finality. The matter, however, would be different if the said Rules per se are found to be violative of Article 16 of the Constitution of India. Nobody has any fundamental right to be appointed in terms of Article 16 of the Constitution of India. It merely provides for a right to be considered therefor. A procedure evolved for laying down the mode and manner for consideration of such a right can be interfered with only when it is arbitrary, discriminatory or wholly unfair."
10. Therefore, in view of the aforesaid factual and legal position, since the petitioner has failed to make out a case that he has been subjected to discrimination or he has been singled out as the JPSC has not adopted a uniform procedure, it would be apposite to refer to the decision in the case of Shankarsan Das-Vs.-Union of India reported in (1991) 3 SCC 47, wherein, it has been held as under by the Hon'ble Apex Court:-
"It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation 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 the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bond to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash 9 Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatendra Kumar v. State of Punjab."
11. Mere participation in recruitment does not confer an indefeasible right to be appointed on the post unless the action of the State is found to be arbitrary and contrary to the rules.
12. In the instant case, obviously due to not securing the requisite marks in the Backward Caste category, the petitioner could not claim any right much less a vested right to be selected and appointed to such post.
13. Under the circumstances, this Court is not inclined to interfere in the matter under Article 226 of the Constitution of India. Since, no ground for interference is made out as the petitioner has failed to demonstrate any arbitrariness or hostile discrimination in the selection process by the JPSC or infraction of Rules of Procedure, 2002 so as to warrant interference by this Court.
14. Resultantly, the writ petition sans merit is, hereby dismissed.
(Pramath Patnaik, J.) APK