Jharkhand High Court
Court On Its Own Motion vs The State Of Jharkhand on 30 November, 2022
Author: Sanjay Kumar Dwivedi
Bench: Chief Justice, Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (PIL) No. 3515 of 2021
Court on its Own Motion ... Petitioner
Versus
The State of Jharkhand ... Respondent
With
W.P. (S) No.68 of 2022
1. Vimal Kumar Jha, aged about 38 years, son of Shiv Kumar Jha,
resident of Village Salaha, P.O. & P.S. Darbhanga, District-
Darbhanga, Bihar
2. Rakesh Kumar Choubey, aged about 38 years, son of Hari Shankar
Choubey, resident of Shanti Nagar, near Asha I.T.I., Solagidih,
Chas, P.O. & P.S. Chas, Bokaro, Jharkhand
3. Kumud Ranjan, aged about 38 years, son of Lakhan Oraon, resident
of Village Ganeshpur, Nawadih, P.O. Raghunathpur, P.S. Chanho,
District- Ranchi, Jharkhand
4. Kamlesh Kumar, aged about 35 years, son of Balmohan Prasad,
resident of Raja Bangla, near Nagar Bhawan Road, P.O. & P.S.
Lohardaga, District- Lohardaga, Jharkhand ... Petitioners
Versus
1. The State of Jharkhand through Chief Secretary, Project Building,
Dhurwa, P.O. Dhurwa, P.S. Jagannathpur, District- Ranchi
2. The Principal Secretary, Home, Jail and Disaster Management,
Govt. of Jharkhand, Project Building, Dhurwa, P.O. Dhurwa, P.S.
Jagannathpur, District- Ranchi
3. The Jharkhand Public Service Commission through its Secretary,
Circular Road, Ranchi, P.O. & P.S. Lalpur, District- Ranchi
4. The Controller, Jharkhand Public Service Commission, Ranchi,
Circular Road, Ranchi, P.O. & P.S. Lalpur, District- Ranchi
5. The Director of Prosecution, Prosecution Directorate, Government
of Jharkhand, Hinoo behind Indira Palace, P.O. Hinoo, P.S.
Doranda, District- Ranchi ... Respondents
With
W.P. (S) No.379 of 2022
Rakesh Kumar Singh, aged about 39 years, son of Sri Awadh Bihari
Singh, resident of Quarter No.4010, Sector 12E, P.O. & P.S. Sector
12, Bokaro Steel City, District- Bokaro ... Petitioner
Versus
1. The State of Jharkhand through its Chief Secretary, Project
Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagannathpur, District- Ranchi
2. The Principal Secretary, Department of Home, Jail and Disaster
Management, Project Building, Dhurwa, P.O. Dhurwa, P.S.
Jagannathpur, District- Ranchi
3. The Director of Prosecution, Prosecution Directorate, Government
of Jharkhand, Hinoo, Behind Indira Palace, P.O. Hinoo, P.S.
Doranda, District- Ranchi
4. The Jharkhand Public Service Commission through its Secretary,
officiating from JPSC Office, Circular Road, Ranchi, P.O. & P.S.
Lalpur, District- Ranchi ... Respondents
2
With
W.P. (C) No.449 of 2022
Sangam Kumar, aged about 30 years (male), son of Late Shri
Bandhu Mahto, Resident of Flat No.901, Shree Balaji Enclave,
Opposite Namkum Police Station, Namkum, Ranchi-834010
... Petitioner
Versus
1. The State of Jharkhand, through Principal Secretary, Department of
Home, Prison and Disaster Management, Government of
Jharkhand, Ranchi
2. The Jharkhand Public Service Commission through its Secretary,
P.O. & P.S. Circular Road, Ranchi-834001 ... Respondents
With
W.P.(C) No.773 of 2022
1. Dinesh Kumar Sahu, aged about 39 years, son of Mangal Prakash
Sahu, resident of H. No.382, Line No.13, Kashidih, Sakchi, P.O. &
P.S. Sakchi, Jamshedpur, District- East Singhbhum (Jharkhand)
2. Amjad Ali, aged about 37 years, S/o Abdul Rahman, resident of H.
No.93, Jamalpur, Satbohani, Gamharia, Near Basanti Mandir, P.O.
Gamharia, P.S. Adityapur, Dist. Seraikella Kharsawan (Jharkhand)
... Petitioners
Versus
1. State of Jharkhand through the Chief Secretary, Government of
Jharkhand, Project Building, Dhurwa, P.O. Dhurwa, P.S.
Jagarnathpur, District- Ranchi
2. The Principal Secretary, Home, Jail and Disaster Management
Department, Government of Jharkhand, Project Building, Dhurwa,
P.O. Dhurwa, P.S. Jagarnathpur, District- Ranchi
3. Jharkhand Public Service Commission having its office at Circular
Road, P.O. & P.S. Lalpur, District- Ranchi
4. Controller, Jharkhand Public Service Commission, Ranchi, Circular
Road, P.O. & P.S. Lalpur, District- Ranchi
5. Director of Prosecution, Prosecution Directorate, Government of
Jharkhand, Hinoo Behind Indira Palace, P.O. Hinoo, P.S. Doranda,
District- Ranchi ... Respondents
With
W.P. (PIL) No.869 of 2022
Court on its Own Motion ... Petitioner
Versus
The State of Jharkhand ... Respondent
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
------
3
For the Petitioners : Mr. Anil Kumar Sinha, Sr. Advocate
Mrs. Ritu Kumar, Advocate
Mr. Saurabh Shekhar, Advocate
Mr. Amit Kumar Sinha, Advocate
Mr. Anurag Kashyap, Advocate
For the State : Mr. Sachin Kumar, A.A.G.-II
Mr. Gaurav Raj, A.C. to A.A.G.-II
Mr. Ashutosh Anand, A.A.G.-III
Mr. Binit Chandra, A.C. to A.A.G.-III
For the J.P.S.C. : Mr. Sanjoy Piprawall, Advocate
Mr. Abhay Prakash, Advocate
------
C.A.V. on 25.08.2022 Pronounced on 30.11.2022
Per Sanjay Kumar Dwivedi, J.
We have heard Mr. Anil Kumar Sinha, learned Senior counsel for the petitioner in W.P.(C) No.449 of 2022, Mrs. Ritu Kumar, learned counsel for the petitioner in W.P.(S) No.379 of 2022, Mr. Saurabh Shekhar, learned counsel for the petitioners in W.P.(S) No.68 of 2022, Mrs. Ritu Kumar along with Mr. Anurag Kashyap, learned counsel for the petitioners in W.P.(C) No.773 of 2022, Mr. Sachin Kumar, learned A.A.G.-II along with Mr. Gaurav Raj, learned A.C. to A.A.G.-III and Ashutosh Anand, learned A.A.G.-III along with Mr. Binit Chandra, learned A.C. to A.A.G.-III on behalf of the respondent-State and Mr. Sanjoy Pirprawall and Mr. Abhay Prakash, learned counsel for the respondent-Jharkhand Public Service Commission.
2. W.P.(PIL) No.3515 of 2021 and W.P.(PIL) No.869 of 2022 have been registered on Court on its own motion as Public Interest Litigations. The argument was concluded on 25.08.2022 and the judgment was reserved.
3. A coordinate Bench of this Court received a letter dated 22.02.2022, sent by the District Bar Association, Koderma, jointly signed by the President and the General Secretary of the District Bar 4 Association, Koderma, which was brought to the notice of the learned Single Judge wherein it has been stated that there was only one Public Prosecutor, who was catering to the four Sessions Courts and said Public Prosecutor superannuated on 31st December, 2021, hence, from then there was no Public Prosecutor to cater to the Session Courts in the district of Koderma and in that view of the matter, the learned Single Judge has treated that letter as Public Interest Litigation and directed to place before the Hon'ble Chief Justice, that is how W.P.(PIL) No.869 of 2022 was registered. Since the Division Bench of this Court was in seisin of the matter related to appointment of the Assistant Public Prosecutors (A.P.Ps.), the learned Single Judge vide order dated 15.06.2022 referred the matters being W.P.(S) No.68 of 2022, WP.(S) No.4073 of 2021, W.P.(S) No.379 of 2022 and W.P.(C) No.773 of 2022 to the Division Bench of this Court and that is how, all these petitions have been heard together.
4. In W.P.(S) No.68 of 2022, the prayer has been made for direction upon the respondents to publish the final result of interview conducted from 04.10.2021 to 06.10.2021 in Advertisement No.03 of 2018 for appointment to the post of Assistant Public Prosecutor. The further prayer is made for direction to finalize the selection process by publication of result pending with respondent no.3. The further prayer is made for quashing of letter dated 21.01.2022 (Annexure-7) issued by respondent no.3 by which the decision of the State Government has been withdrawn by which it has been decided to withdraw the requisition of the vacancies pursuant to Advertisement No.03/2018. The prayer is also made for quashing of order dated 13.12.2021 (Annexure-8) whereby requisition for 143 vacancies to 5 the post of Assistant Public Prosecutor, in relation to Advertisement No.03/2018 has been recalled.
5. In W.P.(S) No.379 of 2022, the prayer is made for quashing the letter dated 13.12.2021 (Annexure-5) whereby the vacancies related to Advertisement No.03/2018 related to the direct recruitment of 143 Assistant Public Prosecutor have been recalled. The prayer is also made for quashing the notification/press release issued by the JPSC on its official website on 21.01.2022 related to cancellation of Advertisement No.03/2018. The direction in the nature of mandamus upon respondent no.4 has also been prayed to continue with the recruitment process related to Advertisement No.03/2018 and to publish the final result.
6. In W.P.(C) No.449 of 2022, the prayer is made for quashing the press release dated 21.01.2022 whereby Advertisement No.03/2018 for the recruitment of 143 Assistant Public Prosecutor has been cancelled. The further prayer is made for quashing the letter dated 13.12.2021 whereby the requisition sent in February, 2018 for recruitment of 143 Assistant Public Prosecutor has been recalled. The prayer is also made for publication of final result pursuant to completion of process.
7. In W.P.(C) No.773 of 2022, the prayer is made for quashing the letter dated 21.01.2022 whereby Advertisement No.03/2018 has been withdrawn. The prayer is also made for direction to publish final result related to Advertisement No.03/2018 for appointment to the post of Assistant Public Prosecutor.
8. Mr. Anil Kumar Sinha, learned senior counsel appearing for the petitioner in W.P.(C) No.449 of 2022 submitted that entire action 6 of the respondents is arbitrary. He submitted that the interview has been completed and the documents were being examined by the JPSC and thereafter entire exercise has been withdrawn, which is arbitrary in nature. He further submitted that other examinations held by the JPSC have not been cancelled and only this has been cancelled on the ground of Economically Weaker Section (EWS) reservation. He submitted that 103rd Amendment in the Constitution of India was gazetted on 14.01.2019 and in view of that the provision for reservation for EWS has come into effect on that date. The Advertisement No.03/2018 was published on 23.02.2018. He submitted that the advertisement has already been published before that and prevailing rule at the time of advertisement will apply and there was no reason to recall the advertisement as process has already been completed. He further submitted that reasoning is not correct. There is complete non-application of mind. He submitted that in absence of the Assistant Public Prosecutors, the criminal courts are on the verge of closure. On these grounds, he submitted that the prayer made in the petition is fit to be allowed.
9. Mrs. Ritu Kumar, learned counsel for the petitioners in W.P.(S) No.379 of 2022 and W.P.(C) No.773 of 2022 along with Mr. Anurag Kashyap adopted the arguments of learned senior counsel Mr. Anil Kumar Sinha and further added by way of submitting that the impugned letter dated 13.12.2021 has been issued on the ground that the appointment process has not been completed as yet and four years have lapsed and the amendment of EWS has taken place and on that ground this letter has been issued. She submitted that there was Corona for two years and the process has already been 7 completed, even the interview has also taken place and, therefore, there was no occasion to cancel the said advertisement. She further submitted that notification of Economically Weaker Section (EWS) came into effect from 15.02.2019, whereas the publication of advertisement is of earlier period and on that ground, recalling was not warranted. She also submitted that the notification of EWS has been brought on record by way of Annexure-6 in the petition. On this ground, she submitted that entire process is required to be completed and result is also required to be published so that criminal courts may function properly. She further submitted that the case of the petitioner is fully covered in light of the judgment passed by the Hon'ble Supreme Court in the case of Asha Kaul & another v. State of Jammu and Kashmir & another, reported in (1993) 2 SCC 573.
10. Paragraph 8 of the said judgment is quoted herein below:
"8. It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment (State of Haryana v. Subhash Chander Marwaha; Mani Subrat Jain v. State of Haryana; State of Kerala v. A. Lakshmikutty) but that is only one aspect of the matter. The other aspect is the obligation of the Government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Commission to select a particular number of candidates for a particular category, -- in pursuance of which the Commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the Government -- the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any Government can adopt such a stand with any justification today. This aspect has been dealt with by a Constitution Bench of this Court in Shankarsan Dash v. Union of India where the earlier decisions of this Court are also noted. The following observations of the Court are apposite:
"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 8 the vacancies or any of them are filled up, the State is bound 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 Chander Marwaha, Neelima Shangla v. State of Haryana or Jatendra Kumar v. State of Punjab."
11. Mr. Saurabh Shekhar, learned counsel for the petitioners in W.P.(S) No.68 of 2022 submitted that the petitioners have obtained the entire documents with regard to notification of EWS w.e.f. 15.01.2019 and advertisement process started prior to that with respect to Advertisement No.03/2018 under Right to Information Act which is annexed as Annexure-9 in the petition. He submitted that it has been noted that against 395 posts of Assistant Public Prosecutor, only 127 are working and that is why speedy recruitment was recommended. It has also been disclosed that for recruitment of 143 Assistant Public Prosecutor, advertisement has been issued which was numbered as 03/2018 and interview has been completed by the JPSC, however recommendation is awaited. He further submitted that by noting of the Joint Secretary to the Government dated 02.12.2021, it has been noted that four years have lapsed and process has not been completed as yet and therefore requisition can be taken back and notice has been extended by the concerned Secretary to the concerned Department which was under the Chief Minister. He submitted that the State has taken stand that four years have lapsed and, therefore to continue the recruitment process, is not in accordance with law and on this ground the process of recruitment has been recalled. By way of referring the impugned letter dated 13.12.2021, he submitted that apart from delay, additional ground has also been taken that for the vacancies of earlier period, the 9 Economically Weaker Section is required to be implemented and the Hon'ble Supreme Court has held that it is correct. He submitted that EWS has been gazetted on 14.01.2019. Thus, the ground taken of this is erroneous. On these grounds, he submitted that entire action of the respondents is arbitrary and once the process has been completed, there was no occasion to recall the advertisement. He drawn attention of the Court to paragraph 20 of the amended writ petition and submitted that the respondents cannot undertake to apply pick and choose, as for few selection process, they have advanced with the selection process and concluded, without any interruption under the similar circumstances and appointment was also be made. He submitted that by way of example, some of the selection processes have been disclosed in paragraph 20 of the amended writ petition. He further submitted that the last stage of selection process gives rise to doubt and suspicion since the interview was already conducted from 04.10.2021 to 06.10.2021 and only in haste, the decision has been taken by the respondents. He submitted that the Public Service Commission is a constitutional and independent authority and it is not subservient to the directions of the Government unless such directions are permissible by law. He submitted that at the time of advertisement, the rule applicable is required to be looked into. To buttress this argument, he relied upon the judgment passed by the Hon'ble Supreme Court in the case of State of U.P. v. Rafiquddin, reported in 1987 (Supp) SCC 401.
12. Paragraph 14 of the said judgment is quoted herein below:
"14. We are surprised that the Chief Justice, Chief Minister as well as the Chairman of the Commission agreed to adopt this procedure which was contrary to the Rules. The high level committee even though 10 constituted by highly placed persons had no authority in law to disregard the Rules and to direct the Commission to make recommendation in favour of unsuccessful candidates disregarding the minimum marks prescribed for the viva voce test. The high level committee's view that after the amendment of Rule 19, the minimum qualifying marks fixed for viva voce could be ignored was wholly wrong. Rule 19 was amended in January 1972, but before that 1970 Examination had already been held. Since the amendment was not retrospective the result of any examination held before January 1972 could not be determined on the basis of amended Rules. The Public Service Commission is a constitutional and independent authority. It plays a pivotal role in the selection and appointment of persons to public services. It secures efficiency in the public administration by selecting suitable and efficient persons for appointment to the services. The Commission has to perform its functions and duties in an independent and objective manner uninfluenced by the dictates of any other authority. It is not subservient to the directions of the government unless such directions are permissible by law. Rules vest power in the Commission to hold the competitive examination and to select suitable candidates on the criteria fixed by it. The State Government or the high level committee could not issue any directions to the Commission for making recommendation in favour of those candidates who failed to achieve the minimum prescribed standards as the Rules did not confer any such power on the State Government. In this view even if the Commission had made recommendation in favour of the unplaced candidates under the directions of the government the appointment of the unplaced candidates was illegal as the same was made in violation of the Rules"
13. Relying on this judgment, he submitted that in spite of the settled provisions of law, entire selection process has been recalled, which is not sustainable in the eyes of law. He further submitted that in such a way the public cause cannot be allowed to be suffered and public time be wasted in re-doing of what had once been done, that was unwarranted. He relied upon the judgment passed by the Hon'ble Supreme Court in the case of Anamica Mishra v. U.P. Public Service Commission, reported in 1990 (Supp) SCC 692.
14. Paragraphs 5 and 6 of the said judgment are quoted herein below:
"5. We allow the appeals, set aside the judgment of the High Court and direct that the order of the Public Service Commission cancelling the written examination shall stand vacated. In lieu thereof we direct that the results of the written examination shall stand sustained and shall form the basis for the interview part of the recruitment and on the basis of the two examinations and in terms of the recruitment rules fresh selections shall be made. We would clarify that with the dismissal of the special leave petitions the selection of the two scheduled caste candidates and five backward class candidates has become final and would not be disturbed.
6. The State Public Service Commission should have been more careful in dealing with the matter so that four years in the process of recruitment 11 would not have been lost and the public cause would not have suffered; public time would not have been wasted in requiring re-doing of what had once been done and the litigation could have been avoided. We have also not been able to appreciate the justification for cancellation of the written part of the recruitment examination and drive the candidates to litigation. On the facts alleged we direct that the recruitment which is now to be re- done by completing the interview examination should be finalised within four months hence"
15. He submitted that entire selections were not found to be in any way vitiated for anyone or other reasons and applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that was unwarranted. To buttress this argument, he relied upon the judgment passed by the Hon'ble Supreme Court in the case of Union of India v. Rajesh P.U., reported in (2003) 7 SCC 285.
16. Paragraph 6 of the said judgment is quoted herein below:
"6. On a careful consideration of the contentions on either side in the light of the materials brought on record, including the relevant portions of the report said to have been submitted by the Special Committee constituted for the purpose of inquiring into the irregularities, if any, in the selection of candidates, filed on our directions -- which report itself seems to have been also produced for the perusal of the High Court -- there appears to be no scope for any legitimate grievance against the decision rendered by the High Court. There seems to be no serious grievance of any malpractices as such in the process of the written examination -- either by the candidates or by those who actually conducted them. If the Board itself decided to dictate the questions on a loudspeaker in English and Hindi and none of the participants had any grievance in understanding them or answering them, there is no justification to surmise at a later stage that the time lapse in dictating them in different languages left any room or scope for the candidates to discuss among them the possible answers. The posting of invigilators for every ten candidates would belie any such assumptions. Even that apart, the Special Committee constituted does not appear to have condemned that part of the selection process relating to conduct of the written examination itself, except noticing only certain infirmities only in the matter of evaluation of answer-sheets with reference to correct answers and allotment of marks to answers of some of the questions. In addition thereto, it appears that the Special Committee has extensively scrutinized and reviewed the situation by re-evaluating the answer-sheets of all the 134 successful as well as the 184 unsuccessful candidates and ultimately found that except 31 candidates found to have been declared successful though they were not really entitled to be so declared successful and selected for appointment there was no infirmity whatsoever in the selection of the other successful candidates than the 31 identified by the Special Committee. In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an all-pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries 12 of one or the other irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or the other reasons. Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go-by to contextual considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation. In short, the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational."
17. On these grounds, learned counsel for the petitioners vehemently submitted that the process is required to be completed and this Court may issue direction for completion of the said process.
18. Per contra, Mr. Sachin Kumar, learned A.A.G.-II submitted that the petitioners are knowing that requisition of the said advertisement has been withdrawn by the JPSC in view of the request of the State Government. He further submitted that requisition of the said appointment was sent by the Department of Home vide letter dated 29.12.2017. However, till the end of 2021, the process of appointment could not be completed by the JPSC, even after lapse of four years and subsequent developments have taken place so far as the number of vacancies has been increased and the State Government has taken a policy decision to provide reservation to Economically Weaker Sections of the society. He submitted that since the requisition was sent in the year 2017, there was no provision for providing reservation to the Economically Weaker Sections and in terms of the changed scenario, the requisition sent by the Department had to be changed and provision for reservation to Economically Weaker Sections had to be provided. In that view of 13 the matter, the Department of Home, Prison and Disaster Management issued memo dated 13.12.2021 requesting the JPSC to return the requisition so that a modified requisition could be sent and the JPSC has issued letter of cancelling the Advertisement No.03/2018 and returned the requisition to the Department of Home, Prison and Disaster Management. He further submitted that since the advertisement has already been withdrawn by the JPSC, the prayers made in the writ petitions cannot be allowed. He also submitted that the respondents have every right to withdraw the advertisement till such time the process of appointment is not completed. He further submitted that EWS was the subject matter in one of the writ petition before this Court, which was allowed by the learned Single Judge in W.P.(S) No.53 of 2020 holding that for the earlier vacancies, the reservation for EWS cannot be allowed. He further submitted that the said order passed by the learned Single Judge was challenged by the JPSC and the State of Jharkhand in L.P.A. No. 82 of 2021 and L.P.A. No.85 of 2021 respectively, which were allowed by the Division Bench of this Court and the order passed by the learned Single Judge was set aside vide order dated 10.09.2021 and the direction was issued to the JPSC to expedite the process of selection. He submitted that the order passed by the Division Bench of this Court in the said L.P.As. was challenged before the Hon'ble Supreme Court by the petitioners of the writ petition and the S.L.P. was dismissed vide order dated 02.12.2021. Relying on this judgment, he submitted that there is no illegality in recalling the advertisement on the ground of reservation for Economically Weaker Section (EWS). He further submitted that merely on participation of 14 the selection process and even on the merit list, the candidates do not have any vested right to seek appointment only for the reason that their names appear on the merit list. He relied upon the judgment passed by the Hon'ble Supreme Court in the case of Mohd. Rashid v. Director, Local Bodies, New Secretariat & others, reported in (2020) 2 SCC 582.
19. Paragraph 14 of the said judgment is quoted herein below:
"14. Since the selection process has not been completed and keeping in view the mandate of the statutory rules, we find that the appellants have no right to dispute the action of the municipal bodies to fill up the posts either by way of promotion or by deputation as such posts are being filled up in terms of mandate of the Rules. It is always open to the municipal bodies to fill up the vacant posts by way of direct recruitment after the posts by way of promotion and/or deputation quota are not filled up either on the basis of recruitment process already initiated or to be initiated afresh"
20. Relying on this judgment, he submitted that the petitioners have no right for appointment even if they have come in the merit list.
21. He further submitted that sufficient numbers of candidates have not been found eligible and on that ground also, the impugned orders are sustainable.
22. Mr. Sanjoy Piprawall and Mr. Abhay Prakash, learned counsel for the JPSC submitted that requisition was received from the Home, Prison and Disaster Management Department vide letter dated 24.08.2017 for filling up the post of Assistant Public Prosecutor for Jharkhand Prosecution Services and pursuant to that Advertisement No.03/2018 was published and application was invited from the eligible candidates. The applications were to be submitted online from 23.02.2018 to 08.04.2018. In terms of the advertisement, total 14504 applications were received, out of which 15 6487 applications were found valid as per online data. The press release dated 16.04.2019 was issued regarding the list of valid applications and rejected applications. Again the Commission screened the application and found only 6163 application to be valid application. The Preliminary Examination was notified and the exam was held on 28.07.2019. On 08.08.2019, the model answer key of the Preliminary Examination was issued. The objections so received were considered by the Expert Committee and accordingly a revised model answer key was issued on 13.09.2019, which was further amended on 27.09.2019. The result of the Preliminary Examination was published on 23.10.2019 and 1528 candidates were declared successful. The Main Examination was held between 05.01.2020 and 09.01.2020 and thereafter the Commission released the result of Main Examination on 28.05.2021 in which 194 candidates were found successful. The candidates, who were succeeded in the Main Examination, were called for interview which was held between 04.10.2021 and 06.10.2021. The interview of the candidates was completed and other necessary steps were taken by the Commission before publishing final result. However, the Department of Home, Prison and Disaster Management, Government of Jharkhand vide letter dated 13.12.2021 requested the JPSC to return the requisition for the post of Assistant Public Prosecutor in original to the Department. In terms of the said letter, the Commission vide letter dated 20.01.2022 returned the original requisition of Assistant Public Prosecutor to the Department of Home, Prison and Disaster Management, Government of Jharkhand. They submitted that 16 the Commission has acted in terms of Clause 13(Da) of the Advertisement and accordingly cancelled the said Advertisement No.03/2018. They further submitted that in view of the said Clause, the right was preserved with the Commission to withhold the recruitment process at any point of time. They also submitted that due to rising cases of COVID-19 and as per the SOP issued by the Government, the result of the Main Examination could only be published on 28.05.2021.The result of the Main Examination was declared in terms of the conditions as mentioned in the advertisement. They also submitted that it is settled law that the candidate who had participated in the selection process and was fully aware about the selection conditions, cannot be allowed to raise objections to selection process.
23. In light of the above submissions of the learned counsel appearing for the parties, the Court has gone through the materials on the record and considered the submissions of the learned counsel appearing for the parties. In one of the writ petition, it has been disclosed that last selection process to the post of Assistant Public Prosecutor has taken place in the year 2012 vide Advertisement No.25 of 2012, where after the selection process got completed in the year 2013. It has been disclosed in paragraph 8 of W.P.(S) No. 68 of 2022 that only 60 A.P.Ps. are functioning and, therefore, the concerned Department has issued Advertisement No.03/2018 for filling up 143 vacancies for appointment of Assistant Public Prosecutor. The Advertisement No.03/2018 has been published on 23.02.2018. The Preliminary Examination was conducted on 28.07.2019, in which each paper was of 2 hours sitting. The 17 Main Examination was conducted from 05.01.2020 to 09.01.2020 in the following schedule, which has been disclosed in paragraph 13 of W.P.(S) No.68 of 2022:
Sl. Date of Examination Subject Timing
Nos.
1. 05.01.2020 General Hindi 10:00 AM to 01:00 PM
(3 hours paper)
2. 05.01.2020 English 02:00 PM to 05:00 PM
(3 hours paper)
3. 06.01.2020 Essay 10:00 AM to 01:00 PM
(3 hours paper)
4. 06.01.2020 General Studies 02:00 PM to 05:00 PM
(3 hours paper)
5. 07.01.2020 Evidence and 10:00 AM to 01:00 PM
Criminal Procedure
(3 hours paper)
6. 07.01.2020 Indian Penal Code 02:00 PM to 05:00 PM
(3 hours paper)
7. 08.01.2020 Indian Constitutional 10:00 AM to 01:00 PM
Law
(3 hours paper)
8. 08.01.2020 Criminal Minor Act 02:00 PM to 05:00 PM
(3 hours paper)
9. 09.01.2020 Regional Language 10:00 AM to 01:00 PM
Papers
(3 hours paper)
24. The result of Main Examination was published on 28.05.2021. The interview letter was issued to the respective candidates. The candidates participated in the interview and the interview was completed and thereafter the JPSC has ceased further formality. The different examinations have been mentioned in paragraph 20 of W.P.(S) No.68 of 2020, that have been allowed to continue and recruitment process has been allowed to be completed, which are quoted herein below:
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Sl. Advertisement No. Date of Advertisement Stage of selection process Nos.
1. 03/2015, for appointment 31.07.2015 Result published on to the post of Assistant 20.12.2021 Director/ Sub-Divisional Agricultural Officer and equivalent Recruitment
2. 12/2018, for appointment 12.11.2018 Entire processes have of Civil Judge (Jr. been completed (final Division) result published on 11.02.2020)
3. 23/2016, 6th JPSC 04.10.2016 Entire processes have Combined Civil Service been completed (final Exam. of 2016 result published on 21.04.2020)
4. 05/2018, Recruitment of 16.07.2018 Result published on Assistant Professor 23.12.2021
5. 03/2018, Recruitment of 23.02.2018 Interview conducted from Assistant Public 04.10.2021 to 06.10.2021, Prosecutor final result awaited
25. Looking into this example, it appears that at least the advertisement of two of the examination was of the year 2015 and 2016 and the result of 2015 advertisement was published on 20.12.2021 and the result of 2016 advertisement was published on 21.04.2020. The question remains that the State, which is having the responsibility of providing Assistant Public Prosecutors for the criminal cases, was justified in applying the reasons of impugned orders on pick and choose basis, the answer is negative considering that the State is not permitted to act discriminatorily. The reason assigned in the impugned order that since there was delay in publishing the result that is why the process has been withdrawn, which appears to be misnomer in view of the fact that two years have lapsed due to COVID-19 and all the offices were working restrictly under the SOP of the Government and other institutions. These facts have also been accepted by the JPSC in its counter affidavit. Thus, it 19 was not a valid reason to recall the process which has already been completed and only the result was required to be published. The second reason of implementation of reservation for EWS is also not tenable as it is an admitted fact that 103rd Amendment Act, 2019 in the Constitution of India was made effective w.e.f. 14.01.2019. The Government of Jharkhand by way of resolution dated 15.02.2019 has also adopted the said amendment. In view of Clause 11 of the resolution dated 15.02.2019, it is clear that the reservation will be effective w.e.f. 15.01.2019 in subsequent advertisement. Thus, the reservation cannot be allowed to be made effective with retrospective effect, which is against the mandate of the Constitution of India. The learned Single Judge in W.P.(S) No.53 of 2020 quashed the advertisement considering that the advertisement of the year 2013 and 2015 was cancelled and thereafter the advertisement of 2019 was published and vacancies were amalgamated in Advertisement No.05/2019. The learned Single Judge has also held that since EWS reservation was not there in the advertisements of 2013 and 2015, which was subsequently cancelled so far as that period is concerned, the benefit of reservation for EWS cannot be permitted and therefore directed to conduct the examination of the year 2013 and 2015 separately and of the year 2019 separately. It was also directed that in the 2013 and 2015, the reservation of EWS was not provided, however the Government may provide reservation to EWS in the advertisement of the year 2019 and on that background, the learned Single Judge has passed the order. Subsequently, the Division Bench of this Court in L.P.A. No.82 of 2021 and L.P.A. No.85 of 2021 held that carrying forward the vacancies of the advertisements of the year 20 2013 and 2015 and incorporating the same in Advertisement No.05/2019 is prerogative of the State and prospective application of 10% for EWS quota on the merger of the vacancy as per advertisement has been rightly adopted in that contents, the Division Bench of this Court set aside the order passed by the learned Single Judge. The Division Bench of this Court has not held that the reservation for EWS will apply retrospectively and only as the vacancy was merged and published in the year 2019, on that ground the Division Bench has held that the direction of the learned Single Judge was not correct. The order passed by the Division Bench of this Court was affirmed by the Hon'ble Supreme Court and S.L.P., preferred by the petitioners of the writ petition was dismissed. Thus, the fact of that case on which Mr. Sachin Kumar, learned counsel for the State has vehemently relied is different. In the case in hand, the process has already been completed and the advertisement is of the year 2018 and at that time reservation for the EWS was not there, which was made effective w.e.f. 15.01.2019. It is well settled that at the time of advertisement the rule which was prevailing, will apply for completion of process of examination. Thus, the contention of Mr. Sachin Kumar, learned counsel for the State with regard to EWS is not tenable. Thus, both the grounds taken in the impugned order are not tenable.
26. In the criminal justice system, Assistant Public Prosecutors are having very important role. How the PIL has been registered by the order of the learned Single Judge has been disclosed supra. Only 60 A.P.Ps. are working in the State of Jharkhand and that is the concerned of the Court. If sufficient numbers of Assistant Public 21 Prosecutors are not appointed, justice would not be available to the people thereby undermining the basis structure. It is well known that justice delayed is justice denied.
27. For a public law remedy enforceable under Article 226, the actions of the authority need to fall in the realm of public law be it a legislative act of the State, an executive act of the State or an instrumentality or a person or authority imbued with public law element. The question is required to be determined in each case having regard to the nature and extent of authority vested in the State. It is not possible to generalize the nature of the action which would come either under public law remedy or private law field nor is it desirable to give an exhaustive list of such actions.
28. The impact of every State action is also on public interest. It is really the nature of its personality as State which is significant and must characterize all its actions, in whatever field, and not the nature of function, contractual or otherwise, which is decisive of the nature of scrutiny permitted for examining the validity of its act. The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act, even in contractual matters.
29. Every holder of a public office is a trustee whose highest duty is to the people of the country and, therefore, every act of the holder of a public office, irrespective of the label classifying that act, is in discharge of public duty meant ultimately for the public good.
With the diversification of State activity in a welfare State requiring the State to discharge its wide ranging functions even through its several instrumentalities.
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30. A perception of the cause for delay at the trial and in conclusion of criminal proceedings is necessary so as to appreciate whether setting up bars of limitation entailing termination of trial or proceedings can be justified.
31. The Court is of concerned that several criminal cases are pending in the State of Jharkhand and in absence of the Assistant Public Prosecutors, criminal dispensation justice is badly affected.
32. The judgment relied by the learned counsel for the State in the case of Mohd. Rashid (supra) is not in dispute. It is well settled that merely on appearing in examination and even appearing the name in merit list, a person is not having right, that is not in dispute. However in the case in hand, the selection process has been completed and only it is required to publish the result by the JPSC. In none of the petitions, it has been prayed that the petitioner be directed to be appointed pursuant to that advertisement. Thus, the judgment relied by the learned counsel for the State is not helping the respondent-State.
33. The duty of the Public Service Commission to finalize the process of recruitment has been considered by the Hon'ble Supreme Court in the case of Anamica Mishra (supra). The Public Service Commission is a constitutional and independent authority which plays pivotal role in selection and appointment of persons to public services. It secures efficiency in public administration by selecting suitable and efficient persons for appointment to the services.
34. When there was no infirmity with the examination, the decision was nothing but total disregard of relevancies and not allowing to be carried out by irrelevancies, giving a complete go-by 23 to contextual consideration throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation.
35. The contention of the learned counsel for the respondent- State that sufficient numbers of candidates have not qualified is not acceptable. It is settled that if the candidates, who have qualified in the examination only can be allowed to be appointed and on that ground that sufficient number of candidates have not qualified, the process cannot be allowed to be withdrawn. The competent authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selection, is wholly unwarranted and unnecessary even on the factual foundation too and entirely in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational.
36. In view of the above discussions, reasons and analysis and considering that process has already been completed and only result is required to be published and due to COVID-19, delay has occurred, which has also been accepted in the counter affidavit of the JPSC and particularly considering that dispensation of criminal justice system is on the verge of collapse in the State of Jharkhand due to non-appointment of Assistant Public Prosecutor, the impugned orders cannot be sustained in the eyes of law. Accordingly, the letter dated 21.01.2022 and order dated 13.12.2021 are, hereby, quashed. The respondent-State and the respondent-JPSC are directed to complete the process of appointment pursuant to Advertisement No.03/2018 within a period of two months from the date of receipt/production of a copy of this order. 24
37. Accordingly, these petitions stand allowed and disposed of.
38. Pending I.As., if any, also stand disposed of.
(Dr. Ravi Ranjan, C.J.) I agree (Dr. Ravi Ranjan, C.J.) (Sanjay Kumar Dwivedi, J.) Ajay/ A.F.R.