Jharkhand High Court
Santosh Kumar vs The State Of Jharkhand & Ors on 5 August, 2020
Equivalent citations: AIRONLINE 2020 JHA 1207, 2021 (1) AJR 600
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.4489 of 2018
.....
1.Santosh Kumar
2.Pawan Kumar Roy
3.Karan Rajwar
4.Jagarnath Kumar Modi
5.Shankar Bediya ...... Petitioners Vs. The State of Jharkhand & Ors. ....... Respondents With W.P.(S) No. 1905 of 2019
1.Dhiraj Kumar
2.Sunil Kumar Yadav
3.Dharmendra Mahto
4.Amir Koiri
5.Sunil Oraon
6.Mithilesh Singh
7.Abhishek Kumar
8.Jitesh Kumar
9.Jay Nanda Bediya
10.Nandlal Mahto
11.Sunil Mahto
12.Mangra Gari
13.Kamlesh Mahto
14.Dhanraj Bediya
15.Anup Munda
16.Govind Yadav
17.Rajan Kumar Nayak
18.Pradeep Kumar
19.Ashish Kumar
20.Prem Prakash Nag
21.Niranjan Kumar
22.Arun Tirkey
23.Durga Kumar
24.Rajesh Kumar
25.Anshuman Kunal
26.Md. Salman Ansari
27.Ram Kishor Kallu
28.Alok Dungdung 2
29.Thomas Tiru
30.Parmeshwar Oraon ...... Petitioners Vs. The State of Jharkhand & Ors. ....... Respondents With W.P.(S) No.4351 of 2018
1.Deepak Kumar Rana
2.Deepak Kumar
3.Aslam Ansari
4.Raj Kumar
5.Rakesh Mahto
6.Dinkar Mahto
7.Mistri Kisku
8.Pankaj Kumar
9.Arjun Hansda
10.Sunil Kumar Sharma
11.Gangeshwar Pradhan
12.Falindra Oraon
13.Sanjay Kumar
14.Santu Kumar Ram
15.Shashikant Boypai
16.Pradeep Kumar Rajak
17.Somnath Rajak
18.Devendra Kumar Soren
19.Gobardhan Baraik
20.Shiv Oraon
21.Saheb Ali
22.Mukesh Kumar Singh
23.Anil Tirkey ...... Petitioners Vs. The State of Jharkhand & Ors. ....... Respondents With W.P.(S) No.4609 of 2018
1.Dheeraj Kumar
2.Anupam Kumar
3.Rohit Kumar
4.Om Prakash Kumar
5.Jitendra Kumar Yadav ...... Petitioners Vs. The State of Jharkhand & Ors. ....... Respondents 3 With W.P.(S) No.5001 of 2018 Srikant Ram ...... Petitioners Vs. The State of Jharkhand & Ors. ....... Respondents With W.P.(S) No.6359 of 2018
1.Vikram Munda
2.Rinki Kumari
3.Deepak Kumar Mahto
4.Abhishek Das
5.Manish Sahu
6.Jai Singh Purty
7.Bikas Ram
8.Anil Chik Baraik
9.Manoj Kumar Nag
10.Ravi Kumar Mahto
11.Amit Karmali
12.Lalu Oraon
13.Alexsius Aind
14.Panna Lal Oraon ...... Petitioners
--Vs.--
The State of Jharkhand & Ors. ....... Respondents PRESENT HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners : Mr. Anil Kumar Sinha, Sr. Advocate Mr. Abhishek Sinha, Advocate [WPS No.2609 of 2018] Mr. Ranjan Pd. Ram, Advocate [WPS No.5001 of 2018] Mr. A.K. Sahani, Advocate [WPS No.1905 of 2019] 4 Mr. Piyush Chitresh, Advocate [WPS No.6359 of 2018] For the Respondents : Mr. Sanjoy Piprawal, Advocate [Jhar.Staff Selection Commission] Mr. Manoj Kumar, G.A.-III [State] [All cases, except WPS 3239 of 17] Mr. P.A.S. Pati, SC-IV Mr. Rohan Kashyap, AC to SC-IV [For State in WPS No.3239 of 17]
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C.A.V. on 09.07.2020 PRONOUNCED ON 05/08/2020 All these writ petitions, along with W.P.(S) No.3239 of 2017 have been heard together.
2. These writ petitions have been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVIC-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent these matters had been heard on merits.
3. Since all these matters, except in W.P.(S) No.3239 of 2017, the challenge is of dismissal from service by the petitioners that is why the Court thought it proper to pass separate order in all these writ petitions.
4. The facts of all these writ petitions, except W.P.(S) No.3239 of 2017, are almost the same and that is why W.P.(S) No.4489 of 2018 is being taken as a lead case.
5. The petitioners have preferred these writ petitions for quashing the order dated 03.07.2018, 27.07.2018 and 01.08.2018.
6. Pursuant to Advertisement No.4 of 2015 issued by the 5 Jharkhand Staff Selection Commission [JSSC] for appointment on the post of constable, Jharkhand Armed Police, the petitioners applied and they have been issued Admit Card. The petitioners were declared successful in the preliminary test examination, main examination and the result was also published in which the petitioners were declared successful. The petitioners appeared for verification of the documents. The roll numbers of the petitioners were disclosed in paragraph no.12 of the writ petition. After verification of the documents, the final merit list was prepared and the roll number of the petitioners mentioned in the final merit list.
The petitioner nos. 1 to 5 have been medically examined by the Civil Surgeon and they have been declared as medically fit for appointment. The petitioner no.5 was also examined on 07.01.2015 and declared medically fit for appointment. The appointment letter issued in favour of the petitioners by order dated 30.03.2017, 28.04.2017 and 23.05.2017 respectively. The petitioners were declared medically fit by the Civil Surgeon. Thereafter, the petitioners were sent for the training. The petitioners have been dismissed from service by order dated 03.07.2018, 27.07.2018 and 01.08.2018.
7. Aggrieved with this, the petitioners have moved before this Court in these writ petitions challenging the dismissal order with a prayer therein to reinstate the petitioners.
8. Mr. Anil Kumar Sinha, the learned Senior counsel appearing for the petitioners has submitted that the petitioners were twice examined by the medical board and thereafter the petitioners 6 were appointed. He submitted that the petitioners were sent for the training and they have passed their hard training of 169 days. He further submitted that in absence of any departmental proceeding and any show cause the petitioners have been dismissed from service. He further submitted that in view of Annexure-"A" series of the counter affidavit filed on behalf of the respondent no.6, the petitioners were said to be not medically fit. He submitted that these are the documents of certificate of medical fitness issued by the apex medical board constituted in terms of the order of this Court dated 11.08.2017passed in W.P.(S) No.3239 of 2017 for the sake of convenience, the said order is quoted hereinbelow:
"Heard Mr. Shresth Gautam, learned counsel appearing on behalf of the petitioners, learned Advocate General, appearing on behalf of the State and Mr. Sanjay Piprawal, learned counsel appearing on behalf of Jharkhand Staff Selection Commission.
In this writ petition, the petitioners have prayed for a direction upon the respondents to declare the 36 writ petitioners as medically fit and to be considered for appointment to the post of Constable in Jharkhand Armed Police (JAP).
The petitioners claims that they have passed the preliminary test as well as the main examination and their respective roll numbers have been reflected in the merit list, which was prepared after the main examination. The petitioners thereafter, were sent for medical test and they were declared successful but their appointments were not made. The petitioner could come to know that they were found physically fit but were declared medically unfit by the Medical Board, constituted as per the Rules, as such, their names were not recommended for appointment.
It is the case of the petitioners that they could come to know that on the ground of knock-knee or flat feet etc., they were disqualified. The counsel for the petitioners 7 submits and pleads that the petitioners were forced to sign on blank sheets, which were converted into their acknowledgment of the Medical Board. The petitioners then got themselves suo motu medically examined by Civil Surgeon, Sadar Hospital, Ranchi. It was found that the petitioners do not suffer from the aforesaid infirmity and on this ground, the petitioners have moved this Court.
Counter affidavit was filed by the State and also by the Jharkhand Staff Selection Commission.
The medical board was constituted as per Rules for the medical examination of the petitioners. The report of the Medical Board was brought on record in respect of these present 36 petitioners by the respondents. This report suggests that these 36 petitioners were declared medically unfit. Since, there were two divergent views; one by the Medical Board and one by the Medical Officer of the Sadar Hospital (both being the Government Servants), this Court vide order dated 7th July, 2017 requested the Assistant Solicitor General of India to assist this Court in getting these 36 petitioners examined by a Neutral Medical Board. The Assistant Solicitor General of India suggested that these 36 petitioners should be got examined by the DIG, Medical, C.R.P.F., Ranchi Composite Hospital, Sambo, Ranchi.
This Court vide order dated 7th July, 2017 thus directed the petitioners to appear before the DIG, Medical, C.R.P.F., Ranchi Composite Hospital, Sambo, Ranchi, with a request to the DIG to get these petitioners medically examined and submit a report to this Court.
Pursuant to the direction of this Court, 35 petitioners, appeared before the Medical Board, constituted by the DIG, Medical, C.R.P.F., Ranchi Composite Hospital, Sambo, Ranchi. The said Medical Board was constituted of three Medical Officers of C.R.P.F. presided over by Dr. M.K. Sinha, CMO(SG), (Ortho Specialist), CH, CRPF, Neemuch, Dr. Bithika Singh, CMO (SG), CH, CRPF BBSR and Dr. S.K. Parimal, Eye Specialist (Cont.), CH, CRPF, Ranchi. The Medical Board of CRPF found that 30 petitioners out of 35 petitioners were found medically fit. One petitioner i.e. petitioner No. 11 has not appeared before the Board and rest five petitioners, whose names are appearing at Sl. Nos. 18, 19, 22, 24 and 36 were found medically unfit.8
In view of the report of the Medical Board of the CRPF, this Court, prima facie, expressed opinion that large scale wrong/illegalities/irregularities have been committed by the Medical Board in relation to the appointment of constables and an order was passed on 28.7.2017 to this effect, as the total number of vacancies were approximately 7000 in the advertisement.
Mr. Ajit Kumar, the learned AAG (as he then was) on 28.7.2017 prayed to defer the matter for seeking instructions from the State as to what action can be taken in this case and to suggest how the wrong/illegalities/irregularities can be undone. Today, the State has filed a counter affidavit suggesting remedial measures, which the State intends to take in this matter.
This Court has taken note of the fact notes that the State has not questioned the report of the medical Board of CRPF in respect of 30 petitioners, who appeared before the Board. Mr. Ajit Kumar (now the Advocate General of the State) submits that the State has got no intention to challenge the findings of the Medical Board of CRPF so far as these 36 petitioners are concerned.
The learned A.G. refers to paragraph 14 of the counter affidavit, filed today, which is sworn by one Chandra Prakash Pandey, Under Secretary, Department of Home, Prisons and Disaster Management, Govt. of Jharkhand, Ranchi, and submits the measure which the State intends to take to remedy the illegalities. It is necessary to quote paragraph 14 of the said affidavit, which reads as under:-
"14. That it is further submitted that the office of the answering respondent also issued letter No. 4193 dated 29.7.17 to the DGP seeking a report with opinion with respect to the direction's contained in the aforementioned order of this Hon'ble Court in the captioned matter. The Chairman, JSSC and the DGP, Jharkhand, sent their response vide letter No. 1482 dated 2.8.2012 and letter No. 1074 dated 2.8.2017 respectively.
In the light of the report/opinion of the Jharkhand Staff Selection Commission and the Police Head Quarters, the State Government has approved following course of action:-
(i) An Appellate/Apex Medical Board may be constituted 9 comprising a specialists/Senior Medical Officer for medical test.
(ii) Since this matter is related to competitive Examination conducted by Jharkhand Staff Selection Commission, remedical examination of those candidates, who secured higher marks in the merit list than that of category wise the recommended candidates,may be conducted.
(iii) The candidates fulfilling the criteria at serial (ii) of the decision shall submit their earlier medical report to the appellate/Apex Medical Board and the said Board shall submit its opinion/report after examining the candidates afresh.
The Appellate/Apex Medical Board shall also examine the records/medical reports issued by the earlier medical Board. The said Board shall also report as to whether any false report has been submitted by the earlier constituted medical Board.
The Appellate/Apex Medical Board shall identify such medical officers submitting false report and shall forward the same to the department of Health, Medical Education and Family Welfare and the said department in turn, would proceed with disciplinary and legal actions against the erring medical officer.
(iv) For the aforementioned medical reexamination a committee may be constituted by the Department of Health, Medical Education and Family Welfare comprising Director-in-Chief of Health Services with Officer of the rank of Additional Secretary/Joint Secretary in order to ensure transparent and fair medical test.
(v) Digital Camera/CCTV may be installed at the place of Medical Test in order to maintain transparent and fair Medical Test.
Medical Test of the candidates shall be conducted after due physical verification through Biometric System.
(vi) For such type of competitive examination for appointment in different cadres to be held in future a provision may be made for appeal before the Appellate/Apex Medical Board for such candidates who fail in medical test by the medical board wherever medical test is mandatory for selection of candidates.
(vii) A fresh revised merit list may be prepared after the 10 candidates are declared fit by the Appellate/Apex Medical Board and accordingly selected candidates may be appointed against the vacancies."
From perusal of paragraph 14 of the counter affidavit, this Court feels that the State has intention to correct the wrong/ illegalities/ irregularities committed by the Medical Board.
Thus, keeping in view of paragraph 14 of the counter affidavit, I direct the State to take appropriate action in terms of their undertaking given in the said paragraph within three months from today. After completing the fresh medical examination, the State will prepare a fresh Merit list. After preparing the fresh merit list of each category, the State will also issue fresh appointment letter to the selected candidates as per the fresh merit list and the State will also take an appropriate action to remove the candidates who are found medically unfit in reexamination and have been appointed. Also the persons whose name will not find place in the fresh merit list, prepared after medical reexamination, if already appointed, will also be removed, as their appointment will be illegal and void. So far as fresh medical examination is concerned, the State undertakes to conduct the same in terms of paragraph 14 of the counter affidavit, filed today. This Court also directs that 30 petitioners, except the petitioners whose names are appearing at Sl. Nos. 11, 18, 19, 22, 24 and 36, will be treated to be medically fit and they will not be subject to medical reexamination.
The State will also give notice to the last selected candidates of each category to be medically re-examined because there is possibility that after conducting fresh medical re- examination, the position in the merit list and the cut off marks may change in each category. The State is also directed to declare the marks of the last selected candidate, as per statement given in paragraph 14 of the said counter affidavit. After completing the entire process, the State will file an affidavit, which must be sworn by the Secretary of the Department. The affidavit will suggest about the action which has been taken or intended to be taken against the Medical Board, who have wrongly disqualified these 30 petitioners.
Let a copy of this order be handed over to Mr. Vikash Kumar, learned J.C. to A.G. for necessary 11 communication.
List this case after three months."
9. Referring to the said order passed in W.P.(S) No.3239 of 2017 Mr. Sinha, the learned Senior counsel has submitted that there was no occasion to pass such order against the petitioners as the petitioners were not party in that writ petition. He further submitted that as there is the order of the High Court in that view of the mater, the petitioners appeared in the re-constituted medical board. He further submitted that without any show cause and departmental proceeding the petitioners' services have been terminated ignoring the fact that they have completed police training and they have been declared medically fit by the board. Referring to different paragraphs of the counter affidavit of the Jharkhand Staff Selection Commission, he submitted that the fact has been admitted by the JSSC about constituting medical board, appointment of the petitioners, training and continuing in service. By way of referring to paragraph no.22 of the writ petition, he submitted that there is averment that no show cause has been issued to the petitioners. He referred to counter affidavit and submitted that this fact has been admitted in the counter affidavit that no show cause has been issued to the petitioners. He further submitted that the counter affidavit of the State and the JSSC are contradictory. Mr. Sinha, the learned Senior counsel, to substantiate his arguments, relied in the case of "Ratnesh Kumar Choudhary v. Indira Gandhi Institute of Medical Sciences, Patna, Bihar & Ors." reported in AIR 2016 SC 467. Paragraph nos.27 and 28 of the said judgment is quoted hereinbelow:
12"27. In the facts of the case, the Court proceeded to state that there is a marked distinction between the concepts of satisfactory completion of probation and successful passing of the training/test held during or at the end of the period of probation, which are sine qua non for confirmation of a probationer and the Bank's right to punish a probationer for any defined misconduct, misbehaviour or misdemeanour. In a given case, the competent authority may, while deciding the issue of suitability of the probationer to be confirmed, ignore the act(s) of misconduct and terminate his service without casting any aspersion or stigma which may adversely affect his future prospects but, if the misconduct/misdemeanour constitutes the basis of the final decision taken by the competent authority to dispense with the service of the probationer albeit by a non-stigmatic order, the Court can lift the veil and declare that in the garb of termination simpliciter, the employer has punished the employee for an act of misconduct.
28. In the case at hand, it is clear as crystal that on the basis of a complaint made by a member of the Legislative Assembly, an enquiry was directed to be held. It has been innocuously stated that the complaint was relating to illegal selection on the ground that the appellant did not possess the requisite qualification and was appointed to the post of Chest Therapist. The report that was submitted by the Cabinet (Vigilance) Department eloquently states about the conduct and character of the appellant. The stand taken in the counter affidavit indicates about the behaviour of the appellant. It is also noticeable that the authorities after issuing the notice to show cause and obtaining a reply from the delinquent employee did not supply the documents. Be that as it may, no regular enquiry was held and he was visited with the punishment of dismissal. It is well settled in law, if an ex parte enquiry is held behind the back of the delinquent employee and there are stigmatic remarks that would constitute foundation and not the motive. Therefore, when the enquiry commenced and thereafter without framing of charges or without holding an enquiry the delinquent employee was dismissed, definitely, there is clear violation of principles of natural justice. It cannot be equated with a situation of dropping of the disciplinary proceedings and passing an 13 order of termination simpliciter. In that event it would have been motive and could not have travelled to the realm of the foundation. We may hasten to add that had the appellant would have been visited with minor punishment, the matter possibly would have been totally different. That is not the case. It is also not the case that he was terminated solely on the ground of earlier punishment. In fact, he continued in service thereafter. As the report would reflect that there are many an allegation subsequent to the imposition of punishment relating to his conduct, misbehaviour and disobedience. The Vigilance Department, in fact, had conducted an enquiry behind the back of the appellant. The stigma has been cast in view of the report received by the Central Vigilance Commission which was ex parte and when that was put to the delinquent employee, holding of a regular enquiry was imperative. It was not an enquiry only to find out that he did not possess the requisite qualification. Had that been so, the matter would have been altogether different. The allegations in the report of the Vigilance Department pertain to his misbehaviour, conduct and his dealing with the officers and the same also gets accentuated by the stand taken in the counter affidavit. Thus, by no stretch of imagination it can be accepted that it is termination simpliciter. The Division Bench has expressed the view that no departmental enquiry was required to be held as it was only an enquiry to find out the necessary qualification for the post of Chest Therapist. Had the factual score been so, the said analysis would have been treated as correct, but unfortunately the exposition of factual matrix is absolutely different. Under such circumstances, it is extremely difficult to concur with the view expressed by the Division Bench.
10. By way of referring to this judgment, he further submitted that in absence of show cause, the impugned orders are not tenable and are fit to be quashed by this Court. Mr. Sinha, the learned Senior counsel further relied in case of "Commissioner of Police, Delhi & Ors. v. Jai Bhagwan" reported in (2011) 6 SCC 376. By way of referring to the said judgment, Mr. Sinha, has submitted that in 14 absence of any departmental proceeding and without following that procedure and the principles of natural justice, the impugned order cannot sustain and accordingly are fit to be quashed. He further relied in the case of "Mahesh Chandra Verma Vs. State of Jharkhand" reported in 2018 (3) JLJR 5 (SC). By relying on this judgment, he further submitted that the Court has been pleased to interfere and quashed the impugned order.
11. The learned counsels appearing in the rest of the cases have adopted the argument of Mr. Anil Kumar Sinha, the learned Senior counsel mutatis mutandis.
12. The learned counsels appearing in other writ petitions only added the fact that the vacancies are still there.
13. Mr. Manoj Kumar, the learned State counsel has submitted that in light of the order of this Court in W.P.(S) No.3239 of 2017 dated 11.08.2017, the medical board was re-constituted. He submitted that in view of paragraph no.14 of the counter affidavit of respondent no.6 the Court has been pleased to direct to re-
constitute the expert medical board and pursuant thereto the expert medical board was constituted and thereafter the impugned order has been passed in terms of the said order. He submitted that the process has already been completed. Thus, there is no illegality in the impugned order as the petitioners have not been found medically fit by the re-constituted apex medical board. He relied in the case of "Madan Lal & Ors. v. State of Jammu & Kashmir" reported in (1995) 3 SCC 486. Paragraph no.9 of the said judgment is quoted 15 hereinbelow:
9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner.16
14. He further relied in the case of "K.H. Siraj v. High Court of Kerala & Ors." reported in (2006) 6 SCC 395. He further relied in the case of "K.A. Nagamani v. Indian Airlines & Ors." reported in (2009) 5 SCC 515. He further relied in the case of "State of Jharkhand & Ors. v. Ashok Kumar Dangi & Ors." reported in (2011) 13 SCC 383. He further relied in the case of "D. Saroja Kumari v. R. Helen Thilokam & Ors." reported in (2017) 9 SCC 478. He further relied in the case of "Ashok Kumar & Anr. v. State of Bihar" & Ors.
reported in (2017) 4 SCC 357. Paragraph nos.12 to 22 of the said judgment are quoted hereinbelow :
"12. The appellants participated in the fresh process of selection. If the appellants were aggrieved by the decision to hold a fresh process, they did not espouse their remedy. Instead, they participated in the fresh process of selection and it was only upon being unsuccessful that they challenged the result in the writ petition. This was clearly not open to the appellants. The principle of estoppel would operate.
13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla, this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna 17 therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar, this Court held that: (SCC p. 107, para 18) "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. (See Munindra Kumar v. Rajiv Govil and Rashmi Mishra v. M.P. Public Service Commission.)"
14. The same view was reiterated in Amlan Jyoti Borooah wherein it was held to be well settled that the candidates who have taken part in a selection process knowing fully well the procedure laid down therein are not entitled to question it upon being declared to be unsuccessful.
15. In Manish Kumar Shahi v. State of Bihar, the same principle was reiterated in the following observations: (SCC p. 584, para 16) "16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may 18 be made to the judgments in Madan Lal v. State of J&K, Marripati Nagaraja v. State of A.P., Dhananjay Malik v. State of Uttaranchal, Amlan Jyoti Borooah v. State of Assam and K.A. Nagamani v. Indian Airlines."
16. In Vijendra Kumar Verma v. Public Service Commission, candidates who had participated in the selection process were aware that they were required to possess certain specific qualifications in computer operations. The appellants had appeared in the selection process and after participating in the interview sought to challenge the selection process as being without jurisdiction. This was held to be impermissible.
17. In Ramesh Chandra Shah v. Anil Joshi, candidates who were competing for the post of Physiotherapist in the State of Uttarakhand participated in a written examination held in pursuance of an advertisement. This Court held that if they had cleared the test, the respondents would not have raised any objection to the selection process or to the methodology adopted. Having taken a chance of selection, it was held that the respondents were disentitled to seek relief under Article 226 and would be deemed to have waived their right to challenge the advertisement or the procedure of selection. This Court held that:
(SCC p. 318, para 18)
"18. It is settled law that a person who consciously takes part in the process of selection cannot, thereafter, turn around and question the method of selection and its outcome."
18. In Chandigarh Admn. v. Jasmine Kaur, it was held that a candidate who takes a calculated risk or chance by subjecting himself or herself to 19 the selection process cannot turn around and complain that the process of selection was unfair after knowing of his or her non-selection. In Pradeep Kumar Rai v. Dinesh Kumar Pandey, this Court held that: (SCC p. 500, para 17) "17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants did not challenge it at that time. This, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted."
This principle has been reiterated in a recent judgment in Madras Institute of Development Studies v. K. Sivasubramaniyan.
19. In the present case, regard must be had to the fact that the appellants were clearly on notice, when the fresh selection process took place that written examination would carry ninety marks and the interview, ten marks. The appellants participated in the selection process. Moreover, two other considerations weigh in balance. The High Court noted in the impugned judgment that the interpretation of Rule 6 was not free from vagueness. There was, in other words, no glaring or patent illegality in the process adopted by the 20 High Court. There was an element of vagueness about whether Rule 6 which dealt with promotion merely incorporated the requirement of an examination provided in Rule 5 for direct recruitment to Class III posts or whether the marks and qualifying marks were also incorporated. Moreover, no prejudice was established to have been caused to the appellants by the 90 : 10 allocation.
20. The decision in Raj Kumar v. Shakti Raj (which was relied upon by the appellants) involved a case where the Government was found to have committed glaring illegalities in the procedure. Hence, it was held that the principle of estoppel by conduct or acquiescence had no application. The decision is distinguishable.
21. In this view of the matter, the Division Bench cannot held to be in error in coming to the conclusion that it was not open to the appellants after participating in the selection process to question the result, once they were declared to be unsuccessful. During the course of the hearing, this Court is informed that four out of six candidates, who were ultimately selected, figured both in the first process of selection as well as in the subsequent selection. One candidate is stated to have retired.
22. The apprehension now is of the remaining candidate being reverted as a result of the judgment of the Division Bench of the High Court. In our view, it would be appropriate if the equities are duly adjusted by a suitable direction. We are of the view that the ends of the justice would be met by a direction that in the event that there is any existing vacancy, the appellant who 21 has still continued in service, may be allowed to continue to work on the Class III post in which he is currently working on a provisional basis until the next round of selection process takes place. The appellant would be at liberty to participate in the selection process that may be held in future and in the event he is declared successful, he would be at liberty to make a representation to the competent authority for consideration of the period spent by him on the Class III post for the purpose of fixation of seniority.
15. Mr. Sanjoy Piprawal, the learned counsel appearing on behalf of Jharkhand Staff Selection Commission [JSSC] has submitted that the apex medical board was constituted pursuant to the order of this Court supra. The petitioners participated in the medical board without any protest. The petitioners did not challenge the order of this Court nor tried to get modified the order by the Court which has attained the finality. The petitioners have not intervened in that writ petition inspite of knowing the fact that they were called for medical board pursuant to the order of this Court. The further recommendation has already been made by the Jharkhand Staff Selection Commission in view of reconstituted medical board.
16. On the premise of the above arguments of the learned counsel appearing for the parties, the Court proceeded to examine the grounds taken by the petitioners as well as the respondent-State and the Jharkhand Staff Selection Commission. It is an admitted fact that the petitioners in all these cases were selected and they have been appointed on the post of constable. Pursuant to the order of 22 this Court dated 11.08.2017 passed in W.P.(S) No.3239 of 2017 the apex medical board was constituted. The petitioners appeared before the apex medical board without any protest. The petitioners have not challenged the order dated 11.08.2017 passed in W.P.(S) No.3239 of 2017 which has attained finality. The petitioners have not tried to get themselves impleaded in W.P.(S) No.3239 of 2017. In one of the writ petition further medical examination of some of the petitioners examined by some other doctors of RIMS have been enclosed. The Court is not in a position to accept that document as valid examination that in view of the fact that this has been suo-muto on the part of some of the petitioners in one of the writ petition. The Court is not an expert of medical examination which is in the domain of medical board. The apex medical board is constituted by highly qualified persons of CRPF and in that view of the matter the Court is not in a position to doubt the same. The illegality has been admitted by the respondent State of Jharkhand as indicated in order dated 11.08.2017.
17. In the light of these findings, the question remains as to whether in absence of any departmental proceeding and without any show cause the dismissal of the petitioners is justified or not. Had it been a case that the petitioners were objected to the further board pursuant to order of this Court which has not been challenged and tried to be got impleaded in W.P.(S) No.3239 of 2017, the matter would have been different but on all these aspects the petitioners failed to do so. There may be situations where in for the some 23 reasons perhaps because the evidence against the individual is thought to be utterly compelling and it is felt that fair hearing would not change the ultimate conclusion reached by the decision maker.
In this aspect the reference be made to the judgment of Hon'ble Supreme Court in "Dharampal Satpal Ltd. v. Deputy Commissioner, Central Excise, Gauhati & Ors." reported in (2015) 8 SCC 519.
Paragraph nos. 30 and 39 of the said judgment are quoted hereinbelow:
"30. Wade also emphasises that principles of natural justice operate as implied mandatory requirements, non- observance of which invalidates the exercise of power.
39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasising that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given. We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason--perhaps because the evidence against the individual is thought to be utterly compelling--it is felt that a fair hearing "would make no difference"--meaning that a hearing would not change the ultimate conclusion reached by the decision-maker--then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v. Aberdeen Corpn., who said that: (WLR p. 1595 : All ER p. 1294) "... A breach of procedure ... cannot give [rise to] a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain."
Relying on these comments, Brandon L.J. opined in 24 Cinnamond v. British Airports Authority that: (WLR p. 593 :
All ER p. 377) "... no one can complain of not being given an opportunity to make representations if such an opportunity would have availed him nothing."
In such situations, fair procedures appear to serve no purpose since the "right" result can be secured without according such treatment to the individual."
18. The Hon'ble Supreme Court in a case of "Escorts Farms Ltd. v. Commr., Kumaon Division,, Nainital, U.P." reported in (2004) 4 SCC 281. Paragraph no.64 of the said judgment is quoted hereinbelow:
64. Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice.
In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we, therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India."
19. Question of prejudice if the enquiry is conducted what prejudice is caused to the petitioners since there is no other chance of other outcome in a proceeding the chance of prejudice is not in 25 favour of the petitioners in these writ petitions.
20. In the light of the above discussions and considering the judgment of Hon'ble Supreme Court in case of "Escorts Farms Ltd. vs. Commr. Kumaon Division, Nainital, U.P." supra even assuming that for following the principles of natural justice the matter is remanded back to the authorities concerned, it will be a futile exercise in the facts and circumstances of the case as the entire exercise has been made pursuant to the order of this Court dated 11.08.2017 which has not been challenged and has attained finality and thereafter only the impugned orders of dismissal have been passed.
21. The judgment relied by Mr. Anil Kumar Sinha, the learned Senior counsel in the case of "Ratnesh Kumar Choudhary" supra the Hon'ble Supreme Court was examining the non-supply of certain documents in the enquiry proceeding and considering the principles of natural justice the fact of this case is different from the case in hand as the petitioners have failed to raise objection at the appropriate time. The judgment relied by Mr. Sinha in the facts of "Commissioner of Police, Delhi & Ors." supra is also of no help in the present facts and circumstances of this case as in that case, the Hon'ble Supreme Court was examining the proceeding in the departmental proceeding on the alleged mis-conduct of taking gratification of Rs.100/- from the complainant. In the present case the petitioners have accepted the order of this Court dated 11.08.2017 as discussed hereinabove. Thus, this judgment is also not 26 helping the petitioners. The judgment relied by the petitioners in case of "State of Jharkhand & Ors. v. Ashok Kumar Dangi & Ors." supra is also different. The parameters in that case is that at the fag end of service the dispute arises in that view of the matter the Court passed the order. The fact of this case is also different and not helping the petitioners. The judgments relied by the learned counsel for the respondent State are not relevant in the facts and circumstances of this case, except in the case of "Ashok Kumar & Anr. v. State of Bihar & Ors." supra. It appears from this case that the other cases relied by the learned counsel for the respondent State are different. It is well settled proposition of law that once a person participated in the proceeding, they are not allowed to challenge the same. The facts of this case from the present case are different. Thus, the cases relied by the Mr. Kumar, the learned State counsel except in the case of Ashok Kumar & Anr. v. State of Bihar & Ors." supra are not applicable. The petitioners participated in the fresh process in terms of the order of the Court. If they were aggrieved by the decision to hold a fresh medical examination they were bound to explore the remedy in the law instead they participated in the fresh process of selection and upon being unsuccessful and dismissal they challenged in these writ petitions. This was clearly not open to the petitioners.
The principles of estoppel would operate. The case relied by the learned counsel for the respondent State is applicable in the facts and circumstances of the case of Ashok Kumar & Anr. v. State of Bihar & Ors." supra. Moreover, the Medical Board reports are not under 27 challenge in these writ petitions. The JSSC has already issued the appointment letters in view of further medical board report. The illegality has been admitted by the State as indicated in order dated 11.08.2017.
22. As a cumulative effect of above discussions and findings, the Court comes to a definite conclusion that no relief can be extended to the petitioners in these writ petitions.
23. Accordingly, these writ petitions being W.P.(S) No.4489 of 2018, W.P.(S) No. 1905 of 2019, W.P.(S) No. 4351 of 2018, W.P.(S) No.4609 of 2018, W.P.(S) No.6359 of 2018 and W.P.(S) No.5001 of 2018 are dismissed.
24. I.A., if any, also stand disposed of.
( Sanjay Kumar Dwivedi, J) Jharkhand High Court ,Ranchi Dated 05/08/2020 AFR/ SI,,