Jharkhand High Court
Baikunth Kumar Yadav vs Jharkhand Staff Selection Commission ... on 17 May, 2018
Author: S.N. Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S).No. 6604 of 2017
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1. Baikunth Kumar Yadav.
2. Manish Kumar.
3. Ranjeet Kumar Saw.
4. Dharmendra Prasad.
5. Motilal Vishwakarma.
6. Anil Kumar Yadav.
7. Vikash Kumar.
8. Parshuram Mehta. ... ... ... ...Petitioners
-Versus-
1. Jharkhand Staff Selection Commission through Examination Controller, Ranchi.
2. State of Jharkhand through Principal Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Ranchi.
... ... ... ....Respondents
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
For the Petitioners : Mr. Rajiv Kumar, Advocate
For the Respondents: Mr. Sanjoy Piprawall, Advocate
Mr. Sunil Singh, AC to SC (Mines)
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08/ 17.05.2018 Heard learned counsel for the petitioners and learned counsel for the
respondents.
2. The petitioners have approached this Court with a prayer for a direction upon the respondent concerned to declare the minimum cut-off marks for the candidates belonging to Other Backward Class (OBC)/ Most Backward Class (MBC) so as to be declared successful in the examination held for the post of Sub-Inspector of Police for vacancies advertised vide Advt. No. 05/2017, since no cut-off marks has been fixed for the aforesaid reserved category and as such, many candidates of reserved category, who could have been successful in their respective categories, have been ousted from the zone of consideration.
Further prayer has been made for a direction upon the respondents to publish category wise result, so that there may not be ousted from zone of consideration before holding the main examination on 17.11.2017.
3. The factual exposition as has been delineated in the writ petition is that Jharkhand Staff Selection Commission (for short "JSSC") published an advertisement being Advt. No. 05/2017 for appointment of Sub-Inspector of 2 Police to be recruited on the basis of marks obtained by the candidates in Preliminary Test, Mains Examination as well as in Physical Test. In Clause-11 of the Advertisement it was mentioned that preliminary and mains examination shall be computer based test. In the said clause it was also mentioned that in case examination is held in different batches, normalization formulae shall be adapted, according to which the batch mean for each of the batch shall be determined and for that purpose marks obtained by each candidate in each batch, will be divided by the total number of the candidates appeared in the examination and thereafter, it shall be multiplied with the standard deviation after deducting from the average marks obtained by the candidates. The said normalization formulae was published after issuance of Admit Cards to the aspirants. The preliminary examination was held in three sittings at each of the centre. The question booklets were one and same in all the centres in each sitting. Thereafter, the answer key of preliminary examination was published but the marks obtained by the last candidate shortlisted in OBC/MBC category was not published. It is the specific case of the petitioners that in advertisement it was clearly mentioned that the result of preliminary examination shall be published five times of the vacancies advertised but it has been submitted by the respondent No. 1 that as candidates in a particular category was not available, five times of the vacancies has been made from the merit list in ascending order. However, the vacancies in all categories were clubbed and multiplied by five and then, the results of preliminary examination was published for 1995 candidates meaning thereby that general category candidates were selected more than five times of vacancies which was not only against Clause-11 of the Advertisement but also against the constitutional mandate under Article 16(4) of the Constitution. Aggrieved by the said arbitrary and illegal action of respondents, the petitioner have knocked the door of this Hon'ble Court for redressal of their grievances.
4. Mr. Rajiv Kumar, learned counsel appearing for the petitioners throwing challenge to the recruitment process, argues that roll number wise publication of results without showing the exact and actual marks obtained by the candidates in each category was against Clause-11 of the Advertisement. The marks of last selected candidates in general category was published, whereas, this could have been done only after disclosing the number of candidates who had 3 appeared and how many of such candidates were below or above marks in a particular batch. Learned counsel further argues that only those candidates from reserved category, who have scored more marks than the last selected candidate in general category were selected, though their selection/ rejection was shown in their respective category. The respondents are bound to disclose the batch mean of each of the batch so that standard deviation for each of the candidate may be discovered in view of normalization scaling method adopted in the evaluation of marks. The ground of insufficient candidates in a particular category cannot be termed to a genuine ground for not providing the cut off marks/ marks obtained by the last selected candidate. Learned counsel further argues that State as a Model Employer should have uniform reservation policy. However, in the instant case the State has not come-out with category wise result and same has not been published. Learned counsel emphatically argues that the action of respondent- State as well as JSSC is discriminatory on the ground that if the candidates can avail the fruit of reservation in Jharkhand Public Service Commission (in short "JPSC"), why not the same can be given and considered by the JSSC. Learned counsel further argues that had the cut-off marks separately been given, the petitioners would have qualified and had there been 15 times more number of candidates in BC category, the petitioners would have comfortably find place in the merit list. In view of the aforesaid facts and circumstances, a direction be given to the JSSC and to the State to consider the case of the petitioners, as has been considered in the recruitment process conducted by the JPSC.
5. Per contra, counter-affidavit has been filed by the respondents. Mr. Sanjoy Piprawall, learned counsel appearing for the respondents-JSSC vehemently opposes the contention of the learned counsel for the petitioners. Mr. Piprawall argues that main issue in the present writ petition is of non-publication of minimum cut-off marks of BC-I and BC-II categories in the result of Preliminary Test and also grievances about the normalization formulae. Learned counsel submits that from the materials available on record it would be evident that the State Govt. has sanctioned 209 posts for EBC-I and 172 posts for BC-II categories for the post of Sub-Inspector of Police and equivalent posts. It is further submitted that the Commission conducted the Preliminary Test of Jharkhand Combined Sub-Inspector Competitive Exam., 2017 from 25.08.2017 4 to 06.09.2017 at different centres within the State of Jharkhand as per Computer Based Test (CBT) mode, in which the petitioners also appeared on the scheduled date mentioned in their Admit Cards. After conducting the preliminary test, taking into account the provisions made in Clause-11 (iii) of the Advertisement, the Commission published the results on 30.10.2017, in which against the requisitioned vacancies of 3019, 15095 candidates were shortlisted from different categories for Mains Examination. Mr. Piprawall draws the attention of the Court towards para-14 of the counter-affidavit and argues that against the 209 vacancies of EBC-I category, 1364 candidates have been declared successful in the Preliminary Test and in similar manner, against 172 vacancies of BC-II category, 1670 candidates have been declared successful in the results of Preliminary Test published on 30.10.2017. The last successful candidates of EBC-I and BC-II categories have secured 335.8122013800 and 335.8122013800 marks respectively and as the petitioners have secured less marks than the last selected candidates in their respective categories, they have not been declared successful in the Preliminary Examination. Mr. Piprawall further argues that the allegations of the petitioners about deviation of basic essential component for normalization of formulae is misleading, misconceived, not correct and as such strongly denied by the respondents. It is well settled law that after appearance in the examination process, the selection process cannot be challenged by the unsuccessful candidates. Learned counsel further submits that from the facts stated above, it would be evident that there is no illegality in conducting the examination and publishing the results and as such, the instant writ petition is not maintainable and the same is fit to be dismissed by this Hon'ble Court. Learned counsel further submits that the instant writ petition is also not maintainable and fit to be dismissed by this Hon'ble Court in view of the fact that Mains Examination for appointment of sub-inspector of Police and on equivalent posts in pursuance to Advt. No. 5 of 2017 has been started from 17.11.2017 and is already concluded.
6. Be that as it may, having gone through the rival submissions of the learned counsel for the parties, this Court is of the considered view that no case is made out for interference in the instant writ petition on the following grounds:-
(i) The petitioners have approached this Court after publication of the results and after duly participating in the selection process challenging the entire 5 results as well as the selection process. The same is not permissible in the eyes of law.
(ii) It is settled principles of law that the entire examination does not deserves to be derailed only because some of the candidates are dissatisfied with the results, when the selection process is concluded and the writ petitioners cannot succeed in getting the relief.
(iii) The candidates who have participated in the selection process cannot challenge the validity of the said selection process after appearing in the said selection process and taking opportunity of being selected. It was only after the petitioners were not selected for appointment they have thrown challenge to the very selection process.
(iv) No direction can be given to evolve a policy which as stated herein above is a complex decision to be taken by the State and no writ of mandamus can be issued upon the State to evolve a new policy by changing the existing policy. Already the results have been published in view of policy decision of the State and at this stage, the same cannot be allowed to be challenged only on the ground that it does not suits to some of the candidates who had not been declared successful after embracing the said policy and appearing in the selection process.
7. The Hon'ble Apex Court in case of Madras Institute of Development Studies v. K. Sivasubramaniyan, reported in (2016) 1 SCC 454 has held that, "without raising any objection to the alleged variations in the contents of the advertisement and the Rules, submitted his application and participated in the selection process by appearing before the Committee of Experts. It was only after he was not selected for appointment that he turned around and challenged the very selection process, which is not permissible in the eyes of law."
Similarly, in para-16 in case of Manish Kumar Shahi v. State of Bihar, reported in (2010) 12 SCC 576, the Hon'ble Apex Court has held as under:-
"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.6
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."
Same view was reiterated in case Vijendra Kumar Verma v. Public Service Commission, reported in (2011) 1 SCC 150, in which the Hon'ble Apex Court has held that once the petitioners have participated in the selection process, they cannot challenge the validity of the same.
The Hon'ble Apex Court in case of G. Sarana (Dr.) v. University of Lucknow, reported in (1976) 3 SCC 585, wherein also a similar stand was taken by the candidates and in that context the Hon'ble Apex Court declared that the candidates who participated in the selection process cannot challenge the validity of the selection process after appearing in the selection process and taking opportunity of being selected.
Similar issue fell for consideration before this Court in W.P.(S). No. 4721 of 2017 (Ranjan Kumar & Anr. Vs. State of Jharkhand & Ors.) and vide its order dated 20.11.2017, this Court dismissed the writ petition on the ground that this Court sitting under Article 226 of the Constitution is not inclined to interfere in the policy decision of the State and also in view of the fact that already the process of recruitment has started and preliminary exams are over and as such, no case is made out for interference in the writ petition and accordingly dismissed the writ petition.
The Division Bench of this Hon'ble Court while dismissing the L.P.A. No. 467 of 2015 (Lakshman Toppo & Ors. Vs. State of Jharkhand & Ors.) vide its judgment dated 23.09.2015, has observed that "no writ of mandamus can be issued upon the State to evolve a new policy by changing the existing policy".
8. Similarly, the Hon'ble Apex Court in case of Andhra Pradesh Public Service Commission Vs. Baloji Badhavath and Others, reported in (2009) 5 SCC 1, in para-32 has held that:-
7"32. Judging of merit may be at several tiers. It may undergo several filtrations. Ultimately, the constitutional scheme is to have the candidates who would be able to serve the society and discharge the functions attached to the office. Vacancies are not filled up by way of charity. Emphasis has all along been made, times without number, to select candidates and/ or students based upon their merit in each category. The disadvantaged group or the socially backward people may not be able to compete with the open category people but that would not mean that they would not be able to pass the basic minimum criteria laid down therefor."
9. As a cumulative effect of the aforesaid observations, rules, guidelines and judicial pronouncements, I do not find any reason to interfere in the instant writ petition and hence, the writ petition warrants dismissal and accordingly, this writ petition stands dismissed.
(Dr. S.N. Pathak, J.) kunal/-