Jharkhand High Court
Sudhir Kumar Choubey vs Union Of India on 19 January, 2018
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 1870 of 2012
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Sudhir Kumar Choubey, Son of Sri Satya Narayan Choubey,
resident of village - Amroha, P.O - Amroha, P.S. - Bhawanathpur,
District - Garhwa. ... Petitioner
Versus
1.Union of India, through the Secretary, Department of Home
Affairs at R.K. Puram, East Block-5, New Delhi -110066.
2.Director General, Special Service Bureau now Shashastra Seema
Bal, at R.K. Puram, East Block-5, New Delhi -110066.
3.Deputy Inspector General (Personnel), Office of Shashastra
Seema Bal, at R.K. Puram, East Block-5, New Delhi -110066.
... ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE PRAMATH PATNAIK
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For the Petitioner : Mr. Rajeev Kumar, Advocate.
Mr. Ram Lakhan Yadav, Advocate
Mr. Naiyer Eqbal, Advocate
For the Respondents : Mr. Rajiv Sinha, A.S.G.I
Mr. B.K. Prasad, J.C to A.S.G.I
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C.A.V on 01.09.2016 Delivered on 19/01/2018
Per Pramath Patnaik, J.:
Facts and circumstances giving rise to filing of present writ application, as delineated in the writ applications, are that the petitioner participated in the recruitment process for the post of Ct/GD held at Ranidanga on 07.12.2002 and was selected by the recruitment Board after passing through written, physical and medical test. But the said recruitment was cancelled by FHQ on the basis of some irregularities in recruitment process, which was communicated to the petitioner vide letter dated 06.02.2007. Being aggrieved by such communication, the petitioner approached this Court by filing W.P. (S) No. 2581 of 2007, which was disposed of vide order dated 11.12.2008 with an observation that since the petitioner has been kept waiting for years without 2 any information with regard to cancellation of his selection; as such a direction was issued to the respondents to give age relaxation for the period counted from the date of advertisement of the post till the date he was informed about the cancellation of selection for the future vacancy. By passage of time, when again advertisement was published for recruitment of Constable (GD) in Employment News dated 24/30.10.2009, the petitioner applied for the same but the respondents found him over-age by 01 years 02 months after giving him age relaxation as directed by this Court and accordingly his candidature was cancelled, which was communicated to the petitioner vide memo dated 23.04.2010. Aggrieved thereof, the petitioner approached this Court by filing Cont. Case (Civil) No. 527 of 2010, wherein the contemnor submitted that in compliance of the direction given by this Court age relaxation has been given and for further age relaxation, the Central Government is the competent authority. Accordingly, the contempt proceeding was disposed of vide order dated 13.06.2011 with liberty to the petitioner to file appropriate application before the Secretary, Ministry of Home, Govt. of India. With the liberty aforesaid, the petitioner submitted a representation dated 30.06.2011, which was disposed of vide order dated 05.10.2011 stating therein that it is not possible to consider age relaxation on a case by case basis, any further age relaxation beyond the direction of Hon'ble High Court will not be possible.
2. Thereafter, the petitioner applied for the information under Right to Information Act vide application dated 13.01.2012 as to what was precise ground on which selection was cancelled 3 and sought copy of the preliminary enquiry report, on which, the authority-concerned communicated vide letter dated 15.02.2012 that "It is informed that under Section 24 of the Right to Information Act, 2005, SSB is exempted from the provision of the said Act except in cases pertaining to corruption and Human Rights violation is involved in the instant case on the part of the Department." Being dissatisfied with the information given vide letter dated 15.02.2002, the petitioner filed appeal before Central Information Commission on 12.05.2012, during pendency of the present writ application, which was disposed of vide order dated 23.07.2013 observing that no case amounting to corruption is made out. Hence, the appellant (petitioner herein) has been appropriately replied in response to his RTI application.
3. In the backdrop of aforesaid facts, the petitioner has approached this Court for the following relief:
(i).For declaration that Section 24 of the Right to Information Act, 2005 does not prohibit the information pertaining to mass irregularity in selection process leading to cancellation of appointment and is impliedly covered under the definition of 'corruption' as mentioned in proviso to sub-section (1) of Section 24A;
(ii).For quashing the reasoning as contained in letter dated 15.02.2012 passed by respondent no. 3 with regard to information under RTI Act and also to quash order dated 23.07.2013, the order passed under appeal; 4
(iii).For direction upon the respondents to provide copy of enquiry report basing on which his appointment was cancelled; and
(iv).For quashing order dated 05.10.2011 whereby it is alleged that contrary to their own undertaking as given before Hon'ble Court refused to give further age relaxation.
4. Heard Mr. Rajeev Kumar, learned counsel for the petitioner and Mr. Rajiv Sinha, learned A.S.G.I for the respondents.
5. Learned counsel for the petitioner submitted that the petitioner, who was a young boy in early twenties hailing from remote village tried his luck with Special Service Bureau and was selected but after four years of his selection for no reason or fault on his part he was denied appointment basing on the findings recorded in preliminary enquiry. Thereafter, the petitioner knocked every possible door, by way of filing application under R.T.I. Act to know the exact reason for cancellation of his selection as the same has also tarnished his reputation also; and to get a copy of that enquiry report, but the respondents-authorities using the cloak of Section 24 of the R.T.I Act refused to supply the same saying that it is not a case of corruption, which is contrary to the stand taken by them in the counter affidavit filed before this Court. Referring to paragraph 6 and 7 of counter affidavit dated 20.03.2008 filed in W.P. (S) No. 2581 of 2007, learned counsel for the petitioner submitted with vehemence that the respondents have categorically stated that on the allegation of corruption, nepotism, favoritism as well as by the selection board, the matter 5 was enquired into, in which various irregularities were noticed in the recruitment process and it was noticed that cuttings and alterations were also made in the marks by the officers of the Board. In view of repeated admittance by the respondents and in view of the fact for such irregularities, the corrupt officers of the board were awarded punishment by the respondents-authorties, it is case where corruption was prevalent in selection which resulted in issuance of cancellation letter of selectees. Hence, the denial of giving information in the garb of Section 24 of the RTI Act is arbitrary and colourable exercise on the part of respondents. Learned counsel for the petitioner further submitted that denial of appointment by the respondents-authorities for the undisclosed reason, or even due to irregularities committed by the selection board, eroded his dignity, which amount to violation of human right as defined in Section 2(1)(d) of the Protection of Human Right Act, 1993 and also caused erosion of Fundamental Right to live with dignity as guaranteed under Article 21 of the Constitution of India.
6. Learned counsel for the petitioner submitted that to unearth the truth, contents of enquiry report is required to be seen but neither it was supplied to petitioner nor the same was produced before this Court. Learned counsel for the petitioner submitted that it would have been more logical for the department to weed out grain from chaff and would have separated such candidates. In support of his submission, learned counsel for the petitioner referred to the decision rendered in the case of Union of India & Ors Vs. Rajesh P.U., Pathuvalnikathu & Anr as reported 6 in (2003) 7 SCC 285, wherein the Hon'ble Court has held that even in face of irregularities of favouritism etc in the matter of selection were allowed to be cancelled only in reported tainted candidates and not by cancellation of the entire selectees.
7. As against this, learned A.S.G.I at the very outset raised the question of maintainability of the writ application and submitted that the petitioner has directly approached this Court instead of preferring an appeal before the appropriate authorities under RTI Act, 2005. On factual and legal points, learned counsel for the respondents submitted that since many complaints were received from the candidates about the irregularities committed during the recruitment test against the board members, the Director General, SSB ordered cancellation of entire recruitment proceedings on administrative ground and also ordered for internal enquiry to unearth the wrong. Pursuant thereto, an enquiry was done, in which, the enquiry officer submitted enquiry report and basing on such enquiry report the erring members of the board was suitably punished/penalized. Learned counsel for the respondents further submitted that so far refusal for providing copy of enquiry report to the petitioner is concerned, according to Section 24 of the Right to Information Act, 2005, SSB is exempted from furnishing such information, except cases pertaining to corruption, Human Rights. It has further been submitted that the learned C.I.C has elaborately dealt with and appropriately replied the petitioner on his application under R.T.I Act and reached at a conclusive finding that since for procedural irregularities the Board Members have been suitably punished, no case amounting 7 to any corruption is made out. So far producing/supplying copy of preliminary enquiry to the petitioner is concerned, the same was placed before the Central information Commissioner for scrutiny and after going through the materials available on record, the petitioner was suitably replied, which needs no interference by this Court. It has further been submitted that in the case at hand, the entire process of recruitment was cancelled and not a single individual has been appointed making a case of mala fide.
8. Having heard learned counsel for the parties at length and on perusal of record, it would be apt to first decide the question of maintainability of the writ application before delving into the merit of the case. It is no more res integra that alternative remedy is not a bar for entertaining a writ application filed under Section 226 of the Constitution of India nor there is any straight jacket formula for deciding the issue alternative remedy as it depends on facts of each and every case. View of this Court gets fortified by the decision rendered in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors as reported in AIR 1999 SC 22. There is no gainsaying of the fact that this Court cannot sit or is not sitting as an appellate Court to C.I.C and Section 23 of the RIT Act, 2005, which expressly dealt with Bar of jurisdiction of Courts, implicitly ousted the jurisdiction of Court by its express language. But, it is settled principles of law that despite such exclusion provision, the extraordinary jurisdiction of writ Court conferred under Articles 226 of the Constitution of India cannot be divested and orders passed by the Tribunals, C.I.C undoubtedly is subject to judicial review under 8 Article 226 of the Constitution of India. View of this Court gets fortified by the decision rendered in the case of Namit Sharma Vs. Union of India as reported in (2013) 1 SCC 745. In the circumstances of the case, and by long passage of time, this Court deems it proper to entertain writ application against the order passed by C.I.C.
9. On perusal of record, it appears that the petitioner initially participated in the recruitment process for the appointment on the post of Ct/GD on 07.12.2002 and after going through the selection process he was selected, but after a lapse of about five years on his representation vide communication dated 6.02.2007, he was informed that recruitment process has been cancelled. Aggrieved thereof, he knocked the door of this Court by filing W.P. (S) No. 2581 of 2007, which was disposed of vide order dated 11.12.2008 giving age relaxation for future vacancy for the period counted from the date of advertisement till the date he was informed about the cancellation of his representation. It appears being fully satisfied with the order dated 11.12.2008 passed in W.P. (S) No. 2581 of 2007, as no appeal was preferred by him, applied in next vacancy, but, he was declared over-age by 01 year and 02 months. Again he filed Contempt petition, which was disposed of with liberty to approach the Central Government for age relaxation, as it is stated to be competent authority to give age relaxation beyond such period. With the liberty aforesaid, the petitioner approached Central Government but his prayer was turned down vide letter dated 05.10.2011. From perusal of order dated 05.10.2011, it appears that the respondents-authorities 9 have thoroughly dealt with the matter and thereafter passed the order. Besides, it is an admitted fact that he was not given appointment letter, hence mere finding place his name in select list, does not give any indefeasible right to get appointment and on this score alone, the petitioner cannot claim his right of appointment. Empanelment, at best, is a condition of eligibility for the purpose of appointment. View of this Court gets fortified by the decision rendered by Hon'ble Apex Court in the case of Salam Samarjeet Singh Vs. High Court of Manipur at Imphal & Anr as reported in (2016) 10 SCC 484. Under the circumstances, no substantial relief can be granted to the petitioner. Hence, no interference is warranted to quash order dated 05.10.2011 whereby respondents have refused to give age-relaxation beyond the period this Court has given.
10. Now coming to the second part of prayer whereby the petitioner prayed for quashing orders whereby he was been refused to copy of enquiry report and further direction to provide copy of enquiry report is concerned; on scruitizing the pleadings available on record coupled with the relevant provisions of R.T.I Act as also the impugned orders; it appears that the learned C.I.C has elaborately dealt with every aspect of the matter and was very much conscious about the information sought for by the applicant-petitioner vis-a-vis relevant provisions of RTI, in particular, the Act which exempts the SSB from furnishing such information, and only thereafter came at a concrete finding at paragraph 5 that "In view of above submissions of the respondent- CPIO,the commission is of the view that for procedural 10 irregularities the aforementioned three Board Members for the Recruitment test for selection of Constable (GD) in SSB, have since been panelized no case amounting to any corruption has been made out against the public authority. The appellant has been appropriately replied to in response to his RTI application."
11. Hence, in spite of the fact that this Court has every sympathy with the petitioner, as for no fault of his has to suffer a lot though this Court to fill up vacuum gave age relaxation in earlier round of litigation, but it also did not help the petitioner and furthermore, the impugned orders do not appear to be tainted with arbitrariness or infirmity or violative of any Constitutional rights; no relief can be granted to the petitioner.
12. Accordingly, the writ application sans merit is dismissed.
(Pramath Patnaik, J.) Alankar/-