Jharkhand High Court
Prerna vs Jharkhand State Electricity Board (Now ... on 22 December, 2021
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.512 of 2018
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1. Prerna, aged about 36 years, daughter of Late Lalan
Prasad, resident of Qtr. No.E.O/80, Block No.7, Janta
Nagar, PTPS, Patratu, P.O. and P.S. Patratu, District
Ramgarh (Jharkhand).
2. Amar Kumar, aged about 37 years, son of late Parash
Nath Sharma, resident of Kusai Colony, Qr. No. F/111,
Doranda, P.O. & P.S. Doranda, District Ranchi.
3. Ranjeet Kumar aged about 34 years, son of late Rabindra
Lal Karan, resident of C-105, Narayan Tower, Mahuwa
Toli, near Gas Godown Namkum, P.O. & P.S. Namkum,
District Ranchi.
4. Pradeep Kumar Chatterjee, aged about 48 years, son of
late Panchanan Chatterjee, resident of Kusai Colony, Qr.
No. F/110, Doranda, P.O. & P.S. Doranda, District
Ranchi.
5. Rajesh Kumar Singh, aged about 36 years, son of late
Harakh Narayan Singh, resident of Kusai Colony, Qr. No.
F/110, Doranda, P.O. & P.S. Doranda, District Ranchi.
6. Pawan Kumar Tiwary, aged about 34 years, son of late
Radha Kant Tiwary, resident of 33/11 KV Power Sub
Station, Ratu, P.O. & P.S. Ratu, District Ranchi.
7. Ram Prakash Raj Sinku, aged about 35 years, son of late
Shailesh Kumar Raj Sinku, C/o Sanjay Ming, Bara
Ghagra, near Shanti Rani School, Doranda, P.O. & P.S.
Doranda, District Ranchi.
8. Hemant Kumar Choubey, aged about 44 years, son of late
Subhash Choubey, resident of Kusai Colony, Qr. No.F/99,
Doranda, P.O. & P.S. Doranda, District Ranchi.
9. Kashi Nath Kumhar, aged about 35 years, son of late
Suken Kumhar, resident of Qr. No.F/2, Grid Sub Station
Colony, Adityapur near Sudha Dairy, P.O. & P.S.
Gamharia, District Seraikella Kharsawan.
... ... Appellants
Versus
1. Jharkhand State Electricity Board (now Jharkhand Urja
Vikas Nigam Limited), through its Chairman, Jharkhand
State Electricity Board, Engineering Building, HEC,
Dhurwa, P.O. and P.S. Dhurwa, District Ranchi
(Jharkhand).
2. The Chairman, Jharkhand State Electricity Board (now
Jharkhand Urja Vikas Nigam Limited), Engineering
Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District
Ranchi (Jharkhand).
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3. The Secretary, Jharkhand State Electricity Board (now
Jharkhand Urja Vikas Nigam Limited), Engineering
Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District
Ranchi (Jharkhand).
4. The Director, Personnel, Jharkhand State Electricity Board
(now Jharkhand Urja Vikas Nigam Limited), Engineering
Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District
Ranchi (Jharkhand).
5. The Joint Secretary (IV), Jharkhand State Electricity Board
(now Jharkhand Urja Vikas Nigam Limited), Engineering
Building, HEC, Dhurwa, P.O. and P.S. Dhurwa, District
Ranchi (Jharkhand).
6. Manoj Kumar, Son of Late Jag Narayan Rai, resident of Jag
Narayan Bhawan, Road No. 3, Prem Nagar, P.O. Hatia, P.S.
Jagarnathpur, District Ranchi.
7. Sohrai Kachhap, Son of Late Bandhu Kachhap, resident of
Bara Ghagra (Nichay Toli), Doranda P.O., and P.S.
Doranda, District Ranchi.
8. Ajay Kumar Jha, Son of Late Sudhir Jha, resident of
J.S.E.B. Colony near Shiv Mandir, Kokar, P.O. and P.S.
Kokar, District Ranchi.
9. Hemant Kumar, Son of Late Ram Bilas Sah, resident of Qr.
No.E/79, Road No. 12, Patratu, P.O. and P.S. Patratu,
District Ramgarh.
10. Subhash Rawani, Son of Late Moti Rawani, resident of
Patel Nagar, Road No.6B, P.O. Hatia, P.S. Jagarnathpur,
District Ranchi.
11. Ranjeet Kumar Gupta, Son of Sri Balram Prasad Gupta,
resident of Qr. No.B/100, Sector-II H.E.C., P.O. and P.S.
Jagarnathpur, Dhurwa, District Ranchi.
12. Rishikesh Son of Late Sudama Singh, resident of behind
Dr.Shyam Homeo Clinic, Purulia Road, Old Lowadih, P.O.
and P.S. Namkum, District Ranchi.
... ... Respondents
With
L.P.A. No. 647 of 2018
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1. Jharkhand State Electricity Board (now Jharkhand Urja
Vikas Nigam Limited), through its Chairman, Jharkhand
State Electricity Board, Engineering Building, HEC,
Dhurwa, P.O. & P.S. Dhurwa, Dist.-Ranchi.
2. The Chairman, Now known as Chairman CUM Managing
Director, JUVNL, Jharkhand State Electricity Board,
Engineering Building, H.E.C., Dhurwa, P.O. & P.S.
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Dhurwa, Dist.- Ranchi.
3. The Secretary, Now known as General Manager [P & GA],
JUVNL, Jharkhand State Electricity Board, Engineering
Building, H.E.C., Dhurwa, P.O. & P.S. Dhurwa, Dist.-
Ranchi.
4. The Director, Now known as Dy. General Manager [P],
JUVNL, Jharkhand State Electricity Board, Engineering
Building, H.E.C., Dhurwa, P.O. & P.S. Dhurwa, Dist.-
Ranchi.
5. The Joint Secretary (IV), Jharkhand State Electricity Board,
Engineering Building, H.E.C., Dhurwa, P.O. & P.S.-
Dhurwa, Dist.-Ranchi.
... ... Appellants
Versus
1. Manoj Kumar, Son of Late Jag Narayan Rai, resident of Jag
Narayan Bhawan, Road No. 3, Prem Nagar, P.O. Hatia, P.S.
Jagarnathpur, Dist.-Ranchi.
2. Sohrai Kachhap, Son of Late Bandhu Kacchap, resident of
Bara Ghagra (Nichay Toli), Doranda P.O. & P.S. Doranda,
Dist.-Ranchi.
3. Prerna, daughter of Late Lalan Prasad, Resident of Qr.
No.E.O/80, Block No.7, Janta Nagar, P.T.P.S., Patratu, P.O.
& P.S. Patratu, Dist. Ramgarh.
4. Amar Kumar, Son of Late Parash Nath Sharma, Resident of
Kusai Colony, Qr. No. F/111, Doranda, P.O. & P.S.
Doranda, Dist. Ranchi.
5. Ranjeet Kumar, Son of Late Rabindra Lal Karan, resident of
C-105, Narayan Tower, Mahuwa Toli, Near Gas Godown
Namkum, P.O. & P.S. Namkum, Dist. Ranchi.
6. Pradeep Kumar Chatterjee, Son of Late Panchanan
Chatterjee, resident of Kusai Colony, Qr. No. F/110,
Doranda, P.O. & P.S. Doranda, Dist.- Ranchi.
7. Rajesh Kumar Singh, Son of Late Harakh Narayan Singh,
Resident of Kusai Colony, Qr. No. F/110, Doranda, P.O. &
P.S.- Doranda, Dist.- Ranchi.
8. Pawan Kumar Tiwary, Son of Late Radha Kant Tiwary,
Resident of 33/11 KV, Power Sub-Station, Ratu, P.O. &
P.S. Ratu, Dist. Ranchi.
9. Ram Prakash Raj Sinku, Son of Shailesh Kumar Raj Sinku,
C/o Sanjay Ming, Bara Ghagra, Near Shanti Rani School,
Doranda, P.O. & P.S. Doranda, Dist. Ranchi.
10. Hemant Kumar Choubey, Son of Late Subhash Choubey,
resident of Kusai Colony, Qr. No.F/99, Doranda, P.O. &
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P.S. Doranda, Dist.-Ranchi.
11. Kashi Nath Kumhar, Son of Late Suken Kumhar, Resident
of Qr. No.F/2, Grid Sub-Station Colony, Adityapur near
Sudha Dairy, P.O. & P.S. Gamharia, Dist. Seraikella
Kharsawan.
12. Ajay Kumar Jha, Son of Late Sudhir Jha, resident of
J.S.E.B. Colony near Shiv Mandir, Kokar, Ranchi P.O. &
P.S. Kokar, Dist. Ranchi.
13. Hemant Kumar, Son of Late Ram Bilas Sah, resident of Qr.
No.E/79, Road No. 12, Patratu, P.O. and P.S. Patratu, Dist.
Ramgarh.
14. Subhash Rawani, Son of Late Moti Rawani, resident of
Patel Nagar, Road No.6B, P.O. - Hatia, P.S. - Jagarnathpur,
Dist. Ranchi.
15. Ranjeet Kumar Gupta, Son of Sri Balram Prasad Gupta,
resident of Qr. No.B/100, Sector-II H.E.C., P.O. & P.S.
Jagarnathpur, Dhurwa, Dist.- Ranchi.
16. Rishikesh Son of Late Sudama Singh, Resident of behind
Dr. Shyam Homeo Clinic, Purulia Road, Old Lowadih, P.O.
& P.S. Namkum, Dist.- Ranchi.
... ... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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L.P.A. No.512 of 2018
For the Appellants : Mr. Roshan Kashyap, Advocate
For the JUVNL : Mr. Sachin Kumar, Sr. Standing Counsel
For Resp. No.10 : Mr. Debesh Chandra Ghose, Advocate
For Resp. Nos. 13&14 : Mr. Jai Shankar Tiwari, Advocate
L.P.A. No.647 of 2018
For the Appellants : Mr. Sachin Kumar, Sr. Standing Counsel
For Resp. Nos.4, 13&15 : Mr. Roshan Kashyap, Advocate
For Resp. Nos. 1 & 16 : Mr. Kripa Shankar Nanda, Advocate
For Resp. Nos. 17 & 18 : Mr. Jai Shankar Tiwari, Advocate
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C.A.V. on 09.08.2021 Pronounced on 22.12.2021
Per Sujit Narayan Prasad, J.
With consent of the parties, hearing of the matter was done through video conferencing and there was no complaint whatsoever regarding audio and visual quality.
2. Both these appeals arise out of common order dated -5- 14.08.2018 passed in W.P.(S) No.1248 of 2010 and W.P.(S) No. 1269 of 2010 by invoking the jurisdiction conferred under Clause 10 of the Letters Patent whereby and whereunder the learned Single Judge has quashed and set aside the impugned orders (reverting the writ petitioners) with a direction to the respondents to issue fresh order of appointment on their promotional post, on which they were earlier promoted/decision was taken to promote, whichever is applicable.
3. The brief facts of the case which are required to be enumerated reads as under :-
It requires to refer herein that L.P.A. No. 512 of 2018 has been preferred by the writ petitioners while L.P.A. No. 647 of 2018 has been preferred by the JUVNL.
The writ petitioners were appointed on Class IV posts in Jharkhand State Electricity Board (hereinafter to be referred to as J.S.E.B.), now Jharkhand Urja Vikas Nigam Limited (hereinafter to be referred to as JUVNL). The JUVNL came out with a Standing Order No. No.812 dated 07.01.1999 providing therein the process of appointment on non-technical Class-III posts through internal advertisement. The JUVNL decided to fill up the vacant posts of non-technical Class-III post vide Resolution No.7305 dated 02.12.1998 against the sanctioned strength through internal advertisement in pursuance to the decision of the Apex Board and the percentage of vacancies in -6- non-technical Class-III posts would be filled up by the departmental candidates through selection as shown against each post.
The Director, Personnel, J.S.E.B. (now JUVNL) issued a letter being letter No.1341 dated 25.06.2008 for appointment on the post of Junior Accounts Clerk, Lower Division Assistant and Routine Clerks and other posts through internal process who are having the qualification of Matriculation and above;
and minimum educational qualification for Junior Accounts Clerk and Lower Division Assistant is Graduate (Science/Arts/Commerce) and for Routine Clerk, it is Matriculation. It has further been stated that application from interested persons having requisite qualification should be forwarded to the office of Director, Personnel by 31.08.2008 in prescribed format enclosed with the letter.
Subsequently, vide letter No.144 dated 19.01.2009 it has been notified that the candidates who have applied for Correspondence Clerk/Junior Accounts Clerk, if interested, they may also apply for appointment on the post of Lower Division Assistant.
Thereafter, the writ petitioners, claiming themselves to be eligible, applied in prescribed format for the posts of Junior Accounts Clerk, Lower Division Assistant and Routine Clerk. In the examination they had appeared and after being declared successful in the result published on 15.02.2009, they were -7- issued the Offer of Appointment and accordingly they joined on the respective posts at the place and started working but the J.S.E.B. cancelled the order of appointment vide order No. 860 dated 07.05.2009 whereby implementation of different orders by which the persons appointed on the post of Junior Accounts Clerk, Lower Division Assistant and Routine Clerks including the petitioners, without assigning any reason.
The Association made due representation protesting against such decision of the Board/Nigam but to no effect and, therefore, the aggrieved appointees approached this Court by filing writ petitions being W.P.(S) Nos. 1248 of 2010 and 1269 of 2010.
The respondents-appellants, JUVNL appeared and contested the case by filing counter affidavit taking the plea that -
(i) The posts have been filled up without following the circular dated 07.01.1999 as the posts have been filled up beyond the sanctioned strength earmarked to be filled up from amongst the in-service candidates and thereby encroaching the quota of the post to be filled up through direct recruitment by inviting applications from open market.
(ii) As per the advertisement, two years‟ experience was required to be possessed by one or the other candidates for their appointment through promotion.
(iii) The entire appointment is without any approval by the -8- Board and even the posts have been filled up beyond the sanctioned strength of the posts of entire cadre irrespective of the vacancies to be filled up by way of promotion or through direct recruitment.
(iv) Immediately after the aforesaid filling up of the posts through promotion, an enquiry committee was constituted which has submitted its report alleging serious irregularities/illegalities in such appointment and, therefore, the filling up of the post by way of promotion has been held to be illegal and accordingly, they have been reverted to their original posts.
Learned Single Judge, after hearing the learned counsel for the parties, has quashed the impugned decision of the authority pertaining to their reversion from service with a direction to come out with a fresh order of appointment which is the subject matter of instant intra-court appeals.
4. L.P.A. No.512 of 2018, which has been preferred by the writ petitioners, is against part of the order passed by the learned Single Judge to the effect to that their appointment will be treated as fresh appointment holding them not entitled for any back wages, seniority or other benefit on their earlier appointment/promotion.
L.P.A. No.647 of 2018 has been preferred by the J.S.E.B. (now JUVNL) against the impugned order in entirety.
5. This Court, after considering the factual aspects, deems it -9- fit and proper to first consider L.P.A. No. 647 of 2018 as the outcome of L.P.A. No. 647 of 2018 will ultimately affect the issue involved in L.P.A. No.512 of 2018 for the reason that if L.P.A. No.647 of 2018 goes in favour of the appellants-J.S.E.B., the order passed by the learned Single Judge will be held to be illegal and in that circumstance, there will be no consideration of the claim of the writ petitioners, who are appellants in L.P.A. No. 512 of 2018, treating the past services rendered by them to be part of service to the promoted post along with all consequential benefits but certainly if the result of L.P.A. No.647 of 2018 goes against J.S.E.B., then certainly the issue involved in L.P.A. No. 512 of 2018 requires consideration and, therefore, this Court is considering the issue involved in L.P.A. No. 647 of 2018 first.
6. Mr. Sachin Kumar, learned counsel appearing for the appellants in L.P.A. No. 647 of 2018, submits that the entire selection process is illegal on the following grounds :-
(i) The posts have been filled up without following the circular dated 07.01.1999 as the posts have been filled up beyond the sanctioned strength earmarked to be filled up from amongst the in-service candidates and thereby encroaching the quota of the post to be filled up through direct recruitment by inviting applications from open market.
(ii) As per the advertisement, two years‟ experience was required to be possessed by one or the other candidates for
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their appointment through promotion.
(iii) The entire appointment is without any approval by the Board and even the posts have been filled up beyond the sanctioned strength of the posts of entire cadre irrespective of the vacancies to be filled up by way of promotion or through direct recruitment.
(iv) Immediately after the aforesaid filling up of the posts through promotion, an enquiry committed was constituted which has submitted its report alleging serious irregularities/illegalities in such appointment and, therefore, the filling up of the post by way of promotion has been held to be illegal and accordingly, they have been reverted to their original posts.
7. Per contra, Mr. Indrajit Sinha, learned counsel appearing for some of the writ petitioners, submits that such appointees, who have been appointed as per circular dated 07.01.1999 and if it is found that their appointment is in consonance with the circular dated 07.01.1999 and they have been appointed within the strength earmarked for in-service candidates, their appointments may be saved.
He further submits by referring to the enquiry report which has been appended as Annexure-13/1 to the L.P.A. No.647 of 2018 which contains the details of the posts to be filled up by way of promotion/appointment given in a tabular chart that the post of Routine Clerk (Dincharya Lipik) is having
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total strength of 23 posts, vacant is 22 out of which 50% is required to be filled up from in-service candidates and only 11 candidates have been appointed through promotion which is within the 50% posts of total strength earmarked for in-service candidates. The aforesaid appointment, according to him, cannot be said to be illegal as has been contended by learned counsel appearing the appellant-JUVNL.
He fairly admits that so far as the appointments on the other posts are concerned, the illegality which has been alleged, is not in dispute as per the settled legal position that there cannot be appointment beyond the sanctioned strength.
8. In response, Mr. Sachin Kumar, learned counsel appearing for the JUVNL, submits that when the learned counsel for the respondents - writ petitioners is admitting about the illegality committed in filling up the posts from in- service candidates which is beyond the sanctioned strength, as such, no further argument is being advanced but so far as the argument advanced by Mr. Indrajit Sinha pertaining to appointment of Routine Clerk which according to him, is required to be saved, is not acceptable in view of the fact that in the advertisement there is specific condition that in-service candidates are required to be considered if having two years of work experience but admittedly herein, all 11 candidates who have been appointed by way of promotion as Routine Clerk are not having two years‟ experience as would be evident from the
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enquiry report.
9. In response, Mr. Indrajit Sinha, learned counsel appearing for the writ petitioners-respondents, submits that such condition about possessing of two years‟ experience by in- service candidates is not the requirement under the circular dated 07.01.1999 and merely on the ground that such condition is available in the advertisement does not debar the writ petitioners from consideration on the principle that in case of any discrepancy in between the Rules of Recruitment or the advertisement, the Rule of Recruitment will prevail and thereby even though such experience is not available, the appointment made to the post of Routine Clerk cannot be held to be illegal.
10. We have heard the learned counsel for the parties, perused the documents available on record and the findings recorded by the learned Single Judge in the impugned order.
11. This Court, before delving upon the legality and propriety of the impugned order, deems it fit and proper to refer certain undisputed facts arise from the bare perusal of the documents available on record.
(i) The whole issue involved in this case is as to whether the recruitment of the in-service candidates by way of promotion to the different posts can be held to be illegal due to appointment beyond the sanctioned strength?
(ii) The condition, although not stipulated in the Rules of Recruitment but stipulated in the advertisement pertaining to
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possessing two years of experience before consideration to the post in question, if not fulfilled, such appointment can be held to be illegal?
(iii) The entire selection process claimed to be based upon the circular dated 07.01.1999 which pertains to appointment in non-technical Class-III posts through internal advertisement which provides that the process to fill up the vacant posts of non-technical Class-III posts against the sanctioned strength through internal advertisement by the Board.
(iv) Percentage of vacancy in non-technical posts would be filled up by the departmental candidates through selection as shown against such post, after observing following formalities :-
(a) The percentage of vacancies against sanctioned posts to be filled up by the departmental candidates by making internal advertisement, should not exceed the percentage as indicated against each of the posts.
The internal advertisement will be issued centrally by the Board.
(b) The vacant post would be filled up by the departmental candidates through internal advertisement on the basis of vacancy at the first instance and the same will be adjusted in due course.
(c) The reservation policy must be adhered to strictly. In the aforesaid circular, the percentage of the posts to be
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filled up by departmental candidates through internal advertisement has also been earmarked which reads as under:-
Sl. Name of the Post Percentage to be filled by No. departmental candidates through internal advertisement by selection.
A. Routine Clerk (Sectt. Cadre) 50%
B. Lower Division asstt. 1. 10% by departmental
candidate through selection.
2. 20% by R.C. (through
promotion after passing the
prescribed deptt.
Examination).
C. J.A.C./Bill Clerk 20%
D. Clerical grade-IV as C.C., 20%
S.C., S.D.C. Record Keeper,
Diarist, Typist cum-clerk
Dispatcher (Field Cadre),
Typist (Field Cadre) etc.
E. Typist Grade-II (Sectt. Cadre) 20%
F. Store Asstt. 20%
G. Time Keeper 20%
(v) Rest vacancies as against the sanctioned strength in each
cadre will be filled up by direct recruitment from the open market centrally by the apex Board. There shall be written test of 80 marks and viva voce of 20 marks for Class-IV departmental candidates for the post of Class-III non-technical posts.
Thus, it is evident that the process of selection provides two modes of selection to the non-technical Class-III posts.
First is through direct recruitment and the second by way of promotion from amongst the in-service candidates on the basis of the quota fixed as referred and quoted hereinabove.
The advertisement as contained under Annexure-2 to the memo of appeal inviting applications from one or the other in-
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service candidates providing therein the minimum educational eligibility condition which was mandatorily to be possessed by the in-service candidates with the further stipulation that such candidates who have completed two years of service as on 30th September, 2008 will only be eligible to make application in the internal recruitment process.
The writ petitioners have applied and after having been selected, offer of appointment was issued and they have started discharging their duty but the Board, after finding violation of the Rules of Recruitment as contained in the Standing Order dated 07.01.1999, has set up a committee to find out as to whether any illegality has been committed in the matter of appointment or not. The committee has considered the entire aspect of the matter including the process of selection and the conditions stipulated in the advertisement and has found by going through the details of posts filled up from amongst the in-
service candidates and making its comparison with the sanctioned strength to be filled up from amongst the quota of in-service candidates which requires to be referred herein, the same is quoted as under:-
No. of Posts to Percentage of appointment.
No. of vacant Vacant Posts appointment Name of the Sanctioned filled up by be filled up sanctioned posts to be posts to be Remarks filled up through internal internal against Sl. No. Posts posts Post 1. Routine 23 22 50% 11 11 Clerk
2. Correspo- 598 372 20% 120 -49 Vide Board‟s ndence Office order Clerk No.1312 dated 27.07.07 the posts of 169
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Corresponde nce Clerk have already been filled up under internal quota.
3. Junior 398 262 20% 80 1 Vide Board‟s Accounts Office order Clerk No.1313 dated 27.07.07 the post of 79 Junior Accounts Clerk have already been filled up under internal quota
4. Meter 274 157 0% 0 0 As per Reader Standing Order No.812 dated 07.01.99, to be filled up from open market.
Thus, it is evident that total sanctioned post of Routine Clerk is 23 and, therefore, 50% of the same i.e., 11 posts, is to be filled up from amongst the in-service candidates, however, only 11 candidates have been appointed as Routine Clerk.
So far as Correspondence Clerk is concerned, the total sanctioned post is 598, vacant post has been shown to be 372 out of which 20% i.e., 120 posts, is to be filled up from amongst the in-service candidates.
It further appears that by virtue of the Board‟s order dated 27.07.2007, 169 Correspondence Clerks have already been appointed from amongst the in-service candidates and as such, under the aforesaid category 49 posts are excess to the strength to be filled up from amongst in-service candidates.
Likewise, the total sanctioned strength shown against the post of Junior Accounts Clerks is 398 and the 20% of the total sanctioned post to be filed up from amongst in-service
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candidates comes to 80 but as per the report, 79 posts of Junior Accounts Clerks has been shown to be occupied by the in-service candidates and as such, only 01 post was required to be filled up.
The total sanctioned strength of Meter Reader has been shown to be 274 showing vacancy of 157 posts and the entire posts are to be filled up through direct recruitment but it has been shown to be filled up from amongst the in-service candidates.
It appears from the enquiry report that the Enquiry Committee has considered the total sanctioned strength on the basis of the quota to be filled up from amongst the in-service candidates and through the direct recruitment and found that the appointment has been made excess to the sanctioned strength. It has further been considered that they are not possessing the eligibility criteria of having two years working experience as required in the advertisement and there was no approval from the Board.
The appointment to the post of Branch Clerk, total 194 in number, has been made without any advertisement and without conducting any examination. 36 Meter Readers and 158 Correspondence Clerks have been appointed against the post of Branch Clerk while against 51 vacant post of Lower Division Assistant, which are having total strength of 52 posts, appointment of 52 persons has been made thereby the total
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strength of Lower Division Assistant has been enhanced to 53.
The Committee has also considered that gross irregularity has been committed in allotting marks in the written examination and calculating the marks on the basis of the tenure of service rendered and appointments have been made without seeking the approval from the competent authority.
It is, thus, evident that the appointments have been made beyond the sanctioned strength based upon the quota to be filled up from direct recruitment or in-service candidates.
It has also transpired from the enquiry report that even taken together the entire strength to be filled up from direct recruitment and in-service candidates, the appointment have been made beyond the total sanctioned strength.
12. It is no more res integra that the appointment made beyond the sanctioned strength is construed to be illegal appointment and once the appointments are illegal, it cannot be legalized. The difference in between illegal appointment and irregular appointment has been discussed by the Hon'ble Apex Court in State of Karnataka and Others v. M.L.Kesari and Others [(2010) 9 SCC 247], also in the context of the regularization of ad hoc employees but if the interpretation of illegal appointment will be seen it would be evident that that illegal appointments are such appointments where the candidates are not having the eligibility criteria or the appointments have been made beyond the sanctioned strength.
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Herein, the fact as would be evident from the tabular chart contained in enquiry report as quoted and referred hereinabove, that the appointments to the posts from amongst the in-service candidates have been made beyond the total sanctioned strength and the sanctioned strength of the category to be filled up from amongst the in-service candidates and once the appointment has been made beyond the sanctioned strength, such appointment will be held to be illegal appointment.
13. So far as the contention raised by Mr. Indrajit Sinha, learned counsel appearing for the appellants in L.P.A. No.512 of 2018, that only 11 candidates have been appointed to the post of Routine Clerk and they are within the sanctioned strength as such, their appointment cannot be construed to be illegal appointment but we are not in agreement with such submission as he is admitting the fact that the appointees are required to possess two years‟ working experience as per the condition stipulated in the advertisement which is mandatory for every candidates even for the port of Routine Clerk.
He has defended such appointment on the ground that such condition about possessing two years‟ working experience was not available in the Rules of Recruitment as contained in Standing Order dated 07.01.1999 but such argument is not acceptable to this Court on the ground that while making such application which was in pursuance to the condition of advertisement, the candidates have seen such condition with
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naked eyes and thereafter made their applications and since they were not possessing the required eligibility criteria, as per advertisement, their candidature ought to have been rejected at the threshold on the ground of non-fulfilment of condition as has been stipulated in the advertisement but it has not been done. However, if the candidates who have been appointed as Routine Clerks were at all aggrieved with such condition they ought to have questioned such condition at the threshold raising the issue as to how such condition can be inserted contrary to rules of recruitment but they have chosen not to do so rather they made application even though they were not having such eligibility criteria and as such, at this stage they cannot be allowed to turn around and question such condition before a court of law as per the ratio propounded to the effect that once a candidate has participated in the process of selection he cannot turn around and question the terms and conditions of the advertisement as has been laid down by Hon'ble Apex Court in Dr. G. Sarana Vs. University of Lucknow & Ors. [(1976) 3 SCC 585]. For ready reference, paragraph 15 of the said judgment is quoted hereunder:-
"15.We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable
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recommendation from it. Having done so, it is not now open to him to turn round and question the Constitution of the Committee. This view gains strength from a decision of this court in Manak Lal's case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting:
It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with unfavourable report, he adopted the device of raising the present technical point."
Likewise, the Hon‟ble Apex Court in Omprakash Shukla Vs. Akhilesh Kumar Shukla and Ors. [(1986) (supp) SCC 285], has held that if a candidate had appeared in the examination without protest, he cannot invoke the jurisdiction of the High Court under Article 226 realizing that he would not succeed in the examination.
Further reference in this regard is made to the judgment rendered by the Hon‟ble Supreme Court in Marripati Nagaraja and Others Vs. Govt of Andhra Pradesh and Ors. [(2007) 11 SCC 522] wherein it has been held that if the appellants had appeared at the examination without any demur, they did not question the validity of fixing of the said date before the appropriate authority, therefore, they were estopped and precluded from questioning the selection process.
Therefore, on this ground, the contention raised by Mr. Sinha to save the appointment of Routine Clerk is not fit to be accepted. Accordingly, such submission is rejected.
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14. We, after having discussed the fact in entirety, have gone across the impugned order and found therefrom that the learned Single Judge has gone into different aspect on commission of illegality and fraud if committed by the litigants/writ petitioners. According to learned Single Judge, when there is no element of fraud by one or the other candidate, they cannot be allowed to suffer. The learned Single Judge has further gone into the fact of violation of principle of natural justice.
We, on consideration of the aforesaid facts, are of the view that so far as the view taken by learned Single Judge about no element of fraud rather it is the fault on the part of the respondent-employer, are of the view that even though there is no element of fraud but if the process of selection has been found to suffer from unfairness and malpractice, the entire selection process is required to be cancelled irrespective of the fact of commission of fraud by one or the other appointees, it is for the reason that the appointment itself has been held to be illegal since the appointment is beyond sanctioned strength, as per the discussion made hereinabove, there is no question of consideration of the element of fraud rather it would be considered that if the appointments are illegal, it cannot be legalized and if it will be retained, it will be nothing but perpetuating the illegality which is not permissible as has been held by Hon'ble Apex Court in State of Orissa and Anr. vs.
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Mamata Mohanty, [(2011) 3 SCC 436], wherein the Hon‟ble Apex Court has been pleased to hold that if any illegality has been committed, the same is to be rectified the moment it came to the notice of the authorities and if such exercise would not be resorted, it will amount to perpetuating the illegality. The Hon‟ble Apex Court in the said judgment, at paragraphs 56 and 57 has been pleased to hold:-
"56. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Admn. v. Jagjit Singh, Yogesh Kumar v. Govt. of NCT of Delhi, Anand Buttons Ltd. v. State of Haryana, K.K. Bhalla v. State of M.P., Krishan Bhatt v. State of J&K, Upendra Narayan Singh and Union of India v. Kartick Chandra Mondal.)
57. This principle also applies to judicial pronouncements. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same. While dealing with a similar issue, this Court in Hotel Balaji v. State of A.P. observed as under: (SCC p. 551, para
12) "12. ... „2. ... To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v.
Delameter at p. 18:
"a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors".
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The Hon‟ble Apex Court in the case of Union of India & Anr. v. Narendra Singh, [(2008) 2 SCC 750], wherein at paragraph 32 it has been laid down, which reads hereunder as:
"32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In ICAR v. T.K. Suryanarayan it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules."
Further, the Article 14 does not envisage negative equality which has already been rendered by the Hon‟ble Apex Court in State of Bihar & Ors. Vs. Kameshwar Prasad Singh & Anr., [AIR 2000 Supreme Court 2306], wherein at paragraph- 30 it has been laid down hereunder as:-
"The concept of equality as envisaged under Art. 14 of the Constitution of India is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits."
Further, in the case of Basawaraj & Anr. Vs. Special Land Acquisition Officer, [(2013) 14 SCC 81], wherein at paragraph 8, which reads hereunder as:
"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in
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other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible."
Likewise, the Hon'ble Apex Court in Kulwinder Pal Singh & Anr Vs. State of Punbaj & Ors, [(2016) 6 SCC 532] at paragraph 16 held hereunder as:
"16.The learned counsel for the appellants contended that when the other candidates were appointed in the post against dereserved category, the same benefit should also be extended to the appellants. Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage negative equalities. In State of U.P. v. Rajkumar Sharma it was held as under:
"15.Even if in some cases appointments have been made envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake."
Further, the ground of natural justice is also not applicable on the facts of this case because the question of illegality which is now crept up from the enquiry report and we have accepted the same on the basis of discussion made hereinabove, therefore, the principle of natural justice having no straightjacket formula rather that would be applicable in the case where there is chance of the change in the result on the
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fact then only the principle of natural justice will have its applicability but where the chance in the change in result is not possible rather it is impossible as the case herein since the appointment has been held to be illegal on the ground of appointment having been made excess to the sanctioned strength, it cannot be defended by any means and in that circumstances there will be no application of principle of natural justice otherwise it will be an empty formality and futile exercise as has been held by Hon'ble Apex Court in Escorts Farms Ltd. v. Commissioner, Kumaon Division, Nainital, U.P. & others, [(2004) 4 SCC 281] at paragraph-64 which is being quoted herein below:
"64. ... ... ... 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 Dharampal Satyapal Ltd. v. Deputy Commissioner of Central Excise, Gauhati and others, [(2015) 8 SCC 519] wherein their Lordships have held at paragraph-39 which is being quoted herein below:
"39. We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing 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
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that a fair hearing "would make no difference"- meaning that a hearing would not change the ultimate conclusion reached by the decision-maker."
15. This Court, therefore, is of the view that the learned Single Judge has not appreciated the facts in right perspective rather made applicability of the judgment rendered in Vikas Pratap Singh & Others v. State of Chhattisgarh & Others [(2013) 14 SCC 494] where the Hon'ble Apex Court has enunciated that where a wrongful or irregular appointment is made without any mistake on the part of the appointee and upon discovery of such error or irregularity, the appointee is terminated, taking a sympathetic view, order of termination ought to be quashed and appointee should be reinstated but on the fact, this judgment will not be applicable because herein the appointment cannot be said to be a wrongful or irregular rather the appointment herein is illegal appointment which cannot be legalized since made beyond the sanctioned strength of quota or even the entire working strength irrespective of quota.
16. The learned Single Judge has not appreciated the fact that appointment made beyond the sanctioned strength will be illegal since herein it is not that it is encroachment upon the quotas of posts to be filled up either by way of promotion by overreaching to the vacancies to be filled up from direct recruitment rather even as per the enquiry report the appointments have been made much much beyond the sanctioned strength and, therefore, the appointment made
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beyond the sanctioned strength cannot be said to be legal.
Further, the learned Single Judge has not appreciated the fact about non-fulfilment of eligibility criteria of having two years of work experience as stipulated in the advertisement.
The learned Single Judge has further not appreciated the fact by going into the issue of commission of fraud without verifying the aspect of the matter on the angle of appointment made beyond the sanctioned strength and once the appointment is made beyond the sanctioned strength irrespective of the fact that there are no laches on the part of the appointees rather there is laches on the part of the respondents but even though said appointment cannot be said to be legal in nature.
It ought to have been considered by the learned Single Judge that in a case of public employment, fairness and transparency is of paramount consideration and that is the intent and spirit of Article 14 and 16 of the Constitution of India.
Learned Single Judge has also not appreciated the fact that the enquiry report, by which the entire selection process has been held to be illegal, has never been questioned by the appointees and once the opinion of the enquiry report has been accepted, it is not available to the appointees to save their appointment.
17. Therefore, this Court is of the considered view that the
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order passed by the learned Single Judge suffers from infirmity. Accordingly, the same is quashed and set aside.
18. In the result, L.P.A. No. 647 of 2018 is allowed and L.P.A. No. 512 of 2018 is dismissed. In consequence thereof, writ petition being W.P.(S) No. 1248 of 2010 is dismissed.
19. Pending interlocutory applications also stand disposed of.
(Dr. Ravi Ranjan, C.J.) I agree (Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Birendra/ A.F.R.