Jharkhand High Court
Vivek Harsil Aged About 33 Years Son Of ... vs Jharkhand Public Service Commission ... on 16 September, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
-1- LPA No.126/2022 & analogous cases
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.126 of 2022
----
Vivek Harsil aged about 33 years Son of Shri Suresh Kumar,
Resident of Flat No.303, Ganga-5, Trivenipuran, Dumardagga,
Near Booty More, NH-33, P.O. Booty & P.S. Sadar Dist.
Ranchi ... ... petitioner/Appellant
Versus
1. Jharkhand Public Service Commission through its
Secretary, Circular Road, P.O. & P.S. Lalpur, Ranchi,
Jharkhand
2. Controller of Examination, Jharkhand Public Service
Commission, Circular Road, P.O. & P.S. Lalpur, Ranchi,
Jharkhand
3. State of Jharkhand ... ... Respondents/Respondents
With
W.P.(S) No.5366 of 2021
----
1. Vivekanand Bhuinya, aged about 40 years, son of Late
John Bhuinya, resident of Village-Kantingkel, P.O. & P.S.-
Goilkera, District-West Singhbhum.
2. Binita Xalxo, aged about 34 years, daughter of Late
Fabianus Xalxo, resident of Village-Banari Linetoli, P.O. &
P.S.-Bishunpur, District-Gumla. ... ... Petitioners
Versus
1. The State of Jharkhand through the Chief Secretary,
having office at Project Building, Dhurwa, P.O. & P.S.-
Dhurwa, Town & District-Ranchi.
2. The Secretary/Principal Secretary, Urban Development
and Housing Department, Govt. of Jharkhand, having
office at Project Building, Dhurwa, P.O. & P.S.-Dhurwa,
Town & District-Ranchi.
... ... Respondents
3. Payal, D/o Sunil Kumar Srivastava, Resident of D-131,
Saraswati Nilyam, Harmu Housing Colony, Ranchi, P.O.-
-2- LPA No.126/2022 & analogous cases
Doranda, P.S.-Argora, District-Ranchi, Pin-834002,
Jharkhand
4. Vivek Harsil aged about 33 years Son of Shri Suresh
Kumar, Resident of Flat No.303, Ganga-5, Trivenipuram,
Dumardagga, Near Booty More, NH-33, P.O. Booty & P.S.
Sadar Dist. Ranchi ... ... Intervener/Respondent
With
L.P.A. No.129 of 2022
----
Swapnil Mayuresh, aged about 29 years, son of Shri Ram
Kumar Singh, Resident of Flat No.6A, Solitaire Apartment,
Opposite D.A.V. Nandraj, Bariatu, P.O. & P.S. Bariatu,
District Ranchi, Jharkhand ... ...
Petitioner/Appellant
Versus
1. Jharkhand Public Services Commission through its
Secretary, Circular Road, P.O. & P.S. Lalpur, District-
Ranchi.
2. Controller of Examination, Jharkhand Public Services
Commission through its Secretary, Circular Road, P.O.
& P.S. Lalpur, District-Ranchi.
3. State of Jharkhand.
4. Principal Secretary Urban Development and Housing
Development Department, Govt. of Jharkhand, Project
Building H.E.C. Dhurwa P.O. & P.S. Dhurwa District
Ranchi.
5. Anushree Darshana
6. Kolli Rajesh
7. Nishtha Saha
8. Kailashpati Maurya
9. Aman Singh Rajput
10. Gaurav Thapak
11. Apoorv Prasad
-3- LPA No.126/2022 & analogous cases
12. Rohit Ranjan
13. Radhika Goel
14. Srishti Shubh
15. Jyoti Sharma
16. Vallary Gupta
17. Ankush Mishra
18. Debasmita Basu
19. Ankita Shanbhogue
20. Swati Pradhan
21. Krishan Swradeep
22. Ayush Jain
23. Amit Kumar
24. Manohar Kumar Gupta
... ... Respondents/Respondents
With
L.P.A. No.135 of 2022
----
Payal, aged 30 Years D/o Sunil Kumar Srivastava, Resident of
D-131, Saraswati Nilyam, Harmu Housing Colony, Ranchi,
P.O.-Doranda, P.S.-Argora, District-Ranchi, Pin-834002,
Jharkhand. ... ... Appellant/Appellants
Versus
1. Jharkhand Public Service Commission through its
Secretary, Circular Road, P.O. & P.S.-Lalpur, Ranchi,
Jharkhand.
2. Controller of Examination, Jharkhand Public Services
Commission, Circular Road, P.O. & P.S. Lalpur, Ranchi.
3. State of Jharkhand.
... ... Respondent/Respondents
With
W.P.(S) No.889 of 2022
----
1. Savitri Kumari, aged about 28 years, Daughter of Mr.
Ramesh Prasad Singh, resident of GH-34, Gayatri Nagar,
-4- LPA No.126/2022 & analogous cases
Sector-II, H.E.C, Dhurwa, P.O. and P.S. Jagannathpur,
District Ranchi-834004.
2. Pallavi Tiwari, aged about 31 years, Daughter of Mr. P.D.
Tiwari, resident of HIG-8, Amer Complex, near Anurag
Photo Lab Zone 2, M.P. Nagar, Bhopal, P.O. Shikha
Mandal, P.S. M.P. Nagar District Bhopal-462011 (Madhya
Pradesh).
3. Vashudha Sharma, aged about 26 years, Daughter of Mr.
Neeraj Sharma, resident of E-244, Greater Kailash-2 near
Savitri Cinema, P.O. Greater Kailash, P.S. C.R. Park, New
Delhi-110048.
4. Anwesha Aditi, aged about 27 years, Daughter of Mr. Tarun
kumar Sinha, resident of 79, Anugrah Puri Colony, Gaya,
P.O. A.P. Colony, P.S. Rammpur, District Gaya-823001.
5. Apurva Tomar, aged about 32 years, Daugher of Mr.
Surendra Singh Tomar, resident of Flat No.404, Parikalp
Tarris, D-12, I Block, Gandhi Nagar, Gwalior, P.O. Defense
Colony, P.S. Padav, District Gwalior-474002 (Madhya
Pradesh)
6. Rahul Ganguly, aged about 31 years, Son of Mr. Amitava
Ganguly, resident of 5/12, Maxmuller Path, City Centre,
Durgapur, P.O. City Centre, P.S. Durgapur, District
Durgapur-713216 (West Bengal)
... ... Petitioners
Versus
1. The State of Jharkhand through the Chief Secretary,
Government of Jharkhand, having its office at Project
Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagannathpur,
District Ranchi.
2. The Secretary, Urban Development & Housing
Department, Government of Jharkhand, having its office
at Project Bhawan, Dhurwa, P.O. Dhurwa, P.S.
Jagannathpur, District Ranchi.
-5- LPA No.126/2022 & analogous cases
3. Jharkhand Public Service Commission, through its
Chairman, having its office at Circular Road, P.O.
G.P.O, P.S. Kotwali, District Ranchi
... ... Respondents
4. Vivek Harsil aged about 33 years Son of Shri Suresh
Kumar, Resident of Flat No.303, Ganga-5, Trivenipuram,
Dumardagga, Near Booty More, NH-33, P.O. Booty & P.S.
Sadar Dist. Ranchi
5. Swapnil Mayuresh aged about 30 years Son of Shri Ram
Kumar Singh Resident of Flat No.6A, Solitaire Apartment,
opposite D.A.V. Nandraj, Bariatu, P.O. & P.S. Bariatu,
District Ranchi, Jharkhand
... ... Intervener/Respondent
With
W.P.(S) No.1007 of 2022
----
1. Chandan Bhagat, S/O Jageshwar Bhagat, age 36 Yrs, R/o
H.No.798/M6, Near RIMS, Kokar Tunki Toli, PO-Bariatu,
PS-Sadar, Ranchi, Jharkhand-834009.
2. Gitika Bhagat, D/O Narayan Bhagat, Age 31 Yrs, R/o Road
No.9, Kusum Vihar, Morabadi, PO+PS-Bariatu, Ranchi,
Jharkhand-834009.
3. Ravi Shankar Banra, S/O Mahendra Banra, Age 30 Yrs,
R/o PO- Bara Chiru, PS-Muffasil Chaibasa, Bara Chiru,
Paschimi Singhbhum, Jharkhand-833201.
4. Amrit James Tete, S/O Ambrose Tete, Age 37 Yrs, R/o
House No.141, Zone No.4, Birsanagar, Near Police Station,
PO & PS-Birsanagar, Jamshedpur, Birsanagar, Chotta
Gobindpur, Telco, East Singhbhum, Jharkhand-831004.
5. Alain Anlish Canute Ekka, S/O Hubert Ekka, Age 33 Yrs,
R/o House No.3, Gali No.6, Lalpur Peace Road, Ranchi
GPO, PS-Lalpur, Ranchi, Jharkhand-834001.
6. Subir Kumar Mukhi, S/O Bimal Mukhi, Age-34 Yrs, R/o
House No.229, Zone 5 , Birsanagar, Near Docomo Tower,
-6- LPA No.126/2022 & analogous cases
PO-Birsanagar BO, PS-Birsanagar, Jamshedpur, Hullung,
East Singhbhum, Jharkhand-831004.
... ... Petitioners
Versus
1. State of Jharkhand through Chief Secretary,
Government of Jharkhand, Project Building, PO-
Dhurwa, PS-Jagannathpur, Dhurwa, Dist-Ranchi-
834004
2. State of Jharkhand through Secretary, Urban &
Housing Development Department, 4th Floor, Project
Building, PO-Dhurwa, PS-Jagannathpur, Ranchi-
834004
3. Department of Personnel, Administrative Reforms and
Rajbhasa, Government of Jharkhand, through
Secretary, Project Building, PO+PS-Dhurwa, Ranchi-
834004.
4. Jharkhand Public Service Commission through its
Secretary, Circular Road, PO & PS-Lalpur, Ranchi,
Jharkhand-834001
5. Controller of Examination, Jharkhand Public Service
Commission, Circular Road, PO & PS-Lalpur, Ranchi,
Jharkhand-834001
6. Union of India through Secretary, Ministry of Housing
and Urban Affairs, C-Wing, Nirman Bhawan, PO-South
Avenue, PS-Tughlak Road Police Station, Or. Maulana
Azad Road, New Delhi-1100011
... ... Respondents
7. Vivek Harsil aged about 33 years Son of Shri Suresh
Kumar, Resident of Flat No.303, Ganga-5, Trivenipuram,
Dumardagga, Near Booty More, NH-33, P.O. Booty & P.S.
Sadar Dist. Ranchi
8. Swapnil Mayuresh aged about 30 years Son of Shri Ram
Kumar Singh Resident of Flat No.6A, Solitaire Apartment,
-7- LPA No.126/2022 & analogous cases
opposite D.A.V. Nandraj, Bariatu, P.O. & P.S. Bariatu,
District Ranchi, Jharkhand
... ... Intervener/Respondent
With
W.P.(S) No.1351 of 2022
----
1. Kumar Chetan Lal, aged about 31 years, Son of Gopal
Prasad Lal, Resident of-Flat No.104, Parmarth Nagar, Near
Adwitya Swarup Ashram, P.O.-Hatia, P.S.-Dhurwa, Pin
Code-834003, District-Ranchi.
2. Richa Shivika, aged about 29 years, D/o of J.M.
Choudhary, Resident of-237/B3C, Dhawan Nagar, P.O.-
Gandhi Nagar, P.S.-Gonda, Kanke Road, Pin Code-834008,
District-Ranchi. ... ... Petitioners
Versus
1. The State of Jharkhand through the Chief Secretary
Government of Jharkhand, having its office at Project
Bhawan, Dhurwa, P.O.-Dhurwa, P.S.-Jagannathpur,
District-Ranchi.
2. The Secertary, Urban Development & Housing
Department, Government of Jharkhand, having its office
at Project Bhawan, Dhurwa, P.O.-Dhurwa, P.S.-
Jagannathpur, District-Ranchi.
3. Jharkhand Public Service Commission through its
Secretary, having its office at Circular Road, P.O.-
G.P.O., P.S.-Kotwali, District-Ranchi.
... ... Respondents
With
W.P.(S) No.1781 of 2022
----
1. Rohit Ranjan, aged about 32 years, Son of Ram Pratap
Prasad Singh, resident of 303, Laxmi Apartment Road
No.15 Patel Nagar, OPP. NIFFT, P.O & P.S-Hatia, District-
Ranchi.
2. Srishti Shubh, aged about 30 years, daughter of Om
-8- LPA No.126/2022 & analogous cases
Prakash Srivastava, resident of Tripti Narendra Kutir, Sreeji
Tower, Near Bata, Circular Road, P.O. & P.S.-Lalpur,
District-Ranchi.
3. Ankush Mishra, aged about 29 years, Son of Ashok Mishra,
resident of 52, Deepak Society, Chuna Bhatti, P.O. & P.S.-
Kolar Road, District-Bhopal, Madhya Pradesh 462016.
4. Apoorv Prasad, aged about 26 years, S/o-Vinod Prasad
resident of 144, BT Ganj, Near PNB, P.O. & P.S-Roorkee,
District-Roorkee, Uttarkhand 247667.
... ... Petitioners
Versus
1. The State of Jharkhand through the Chief Secretary
Government of Jharkhand, having its office at Project
Bhawan, Dhurwa, P.O.-Dhurwa, P.S.-Jagannathpur,
District-Ranchi.
2. The Secretary, Urban Development & Housing
Department, Government of Jharkhand, having its office
at Project Bhawan, Dhurwa, P.O.-Dhurwa, P.S.-
Jagannathpur, District-Ranchi.
3. Jharkhand Public Service Commission through its
Secretary, having its office at Circular Road, P.O.-
G.P.O., P.S.-Kotwali, District-Ranchi.
4. Union of India through Ministry of Housing and Urban
Affairs through its Secretary, having office at Nirman
Bhawan, New Delhi, P.O and P.S-New Delhi, District-
New Delhi-110001 ... ... Respondents
-------
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR JUSTICE NAVNEET KUMAR
------
For the Appellants\Petitioners : Mr. Ajit Kumar, Sr. Advocate
Mr. Siddhartha Ranjan, Adv.
Mrs. Shipra Shalini, Adv.
(In LPA Nos.126 & 129 of 2022)
: Mr. Arun, Advocate
-9- LPA No.126/2022 & analogous cases
Mrs. Amrita Vijai, Advocate
(In LPA No.135 of 2022)
: Mr. Shubhashis Rasik Soren, Adv.
Mrs. Shobha G. Lakra, Advocate
[In WP(S) Nos.5366/2021 & 1007/2022]
: Mr. Amritansh Vats, Advocate
[In WP(S) Nos.1351/2022 & 1781/2022]
For the State : Mr. Rajiv Ranjan, Advocate General
Mr. Mohan Kr. Dubey, AC to AG
For the Resp.-JPSC : Mr. Sanjoy Piprawall, Advocate
: Mr. Abhay Prakash, Advocate
: Mr. Amritanshu Singh, Advocate
For the U.O.I. : Mrs. Leena Mukherjee, CGC
For the Private-Respondents : Mr. Anoop Kr. Mehta, Advocate
: Mr. Arun, Advocate
[In W.P.(S) No.5366 of 2021]
: Mr. Siddhartha Ranjan, Advocate
: Mr. Saurav Arun, Advocate
Mrs. Sharon Kerketta, Advocate
Mrs. Oishi Das, Advocate
[In LPA No.129/2022 & W.P(S) No.889/2022
: Mr. Amritansh Vats, Advocate
--------
C.A.V. on 16.08.2023 Pronounced on: 16/09/2023
Per Sujit Narayan Prasad, J.
I.A. Nos.3427 of 2022 & 4060 of 2022 in W.P.(S) No.5366 of 2021 I.A. Nos.3050 of 2022 & 3072 of 2022 in W.P.(S) No.889 of 2022 I.A. Nos.4056 of 2022 & 4057 of 2022 in W.P.(S) No.1007 of 2022
1. The appellants of LPA Nos.126 of 2022, 129 of 2022 and 135 of 2022 have filed interlocutory applications for their impleadment, since, they are necessary party and having the interest with the order of the State Government, by which, the recommendation made by the JPSC has been rejected.
2. Mr. Ajit Kumar, learned Senior Counsel appearing for the appellants has submitted that the interveners are required to be
- 10 - LPA No.126/2022 & analogous cases impleaded as party to the proceeding, since they are the interested party.
3. Further, since, the intra-court appeals and these five writ petitions have been directed to be heard together, as such, they since are the interested party, hence, they are necessary to be impleaded as party to the writ petitions.
4. This Court, after taking into consideration the grounds as also the submission made on behalf of the parties and considering the fact that the impugned decision of the State Government is in continuation to the decision taken in terms of the advertisement having the same subject issue and the consequence of the prayer sought for by the writ petitioners in these writ petitions are co-related with the prayer sought for in the writ petitions from which, the intra-court appeals being L.P.A. Nos.126 of 2022, 129 of 2022 and 135 of 2022 arise, therefore, deems it fit and proper to allow the instant interlocutory applications.
5. Accordingly, I.A. Nos.3427 of 2022 & 4060 of 2022 [In W.P.(S) No.5366 of 2021], I.A. Nos.3050 of 2022 & 3072 of 2022 [In W.P.(S) No.889 of 2022], I.A. Nos.4056 of 2022 & 4057 of 2022 [In W.P.(S) No.1007 of 2022] stand allowed.
6. Accordingly, office is directed to make necessary correction in the cause title of the writ petitions.
L.P.A. No.126 of 2022, W.P.(S) No.5366 of 2021, L.P.A. No.129 of 2022, L.P.A. No.135 of 2022, W.P.(S) No.889 of 2022, W.P.(S) No.1007 of 2022, W.P.(S) No.1351 of 2022 & W.P.(S) No.1781 of 2022
7. It appears from the order passed on 21.06.2023 that the letters
- 11 - LPA No.126/2022 & analogous cases patent appeals being L.P.A. Nos.126 of 2022, 129 of 2022 and 135 of 2022 were directed to be listed side by side writ petitions being W.P.(S) Nos.889/2022, 1007/2022, 1351/2022 and 5366 of 2021 by the coordinate Division Bench of this Court on the prayer being made on behalf of the appellants and accordingly, letters patent appeals being L.P.A. Nos.126 of 2022, 129 of 2022 and 135 of 2022 and the writ petitions being W.P.(S) Nos.889/2022, 1007/2022, 1351/2022 and 5366 of 2021 have been listed together for analogous hearing.
8. Since identical issues are involved in all the appeals and the writ petitions, therefore, the same are being heard together with the consent of the parties.
9. The intra-court appeals preferred under Clause-10 of Letters Patent is directed against the common order/judgment dated 04.03.2022 passed by the learned Single Judge of this Court in W.P.(S) Nos.1516 of 2021, 1413 of 2021 and 1517 of 2021 respectively, by which, the learned Single Judge has refused to interfere with the final result published on 18.03.2021 as also refused to pass positive direction, so far as the following reliefs sought for on behalf of the writ petitioners:-
(i) for quashing the result dated 18.03.2021 published under the signature of Controller of Examination, Jharkhand Public Service Commission uploaded on the website on 18.03.2021 related to those candidates who though being not qualified and eligible having not the Associate Membership from the Institute of Town Planners (India) on the date of Advertisement No.04 of 2020 for the appointment on the post of Assistant Town Planner under the Urban Development and
- 12 - LPA No.126/2022 & analogous cases Housing Department but were declared successful because of the anomalous situation created by the J.P.S.C.
(ii) The further direction upon the respondents to issue the modified results after considering the candidature of only those candidates who were duly qualified having the Associate Membership from the Institute of Town Planners (India) on the date of issuance of Advertisement No.04/2020 by the J.P.S.C for the post of Assistant Town Planner under the Urban Development Department and also to issue appointment letter in favour of the petitioners since they were qualified in all respect on the date of the said advertisement.
10. The writ petitions being W.P.(S) Nos.5366 of 2021, 889 of 2022, 1007 of 2022, 1351 of 2022 and 1781 of 2022 have also been directed to be listed to be heard along with the letters patent appeal being L.P.A. Nos.126 of 2022, 129 of 2022 and 135 of 2022, which have been filed subsequent to filing of the instant appeals for quashing of the order dated 07.02.2022, since, in the meanwhile, the respondent- State of Jharkhand has come out with an order being order no.18 dated 07.02.2022, by which, the recommendation made by the J.P.S.C. for appointment to the sanctioned and 77 vacant posts of the Assistant Town Planner vide letter no.943 dated 05.04.2021, has been rejected as also for a direction to immediately and forthwith accept the recommendation made by the respondent-JPSC vide letter no.943 dated 05.04.2021 and forthwith provide letter of appointment to the petitioners on the sanctioned and vacant posts of Assistant Town Planner after considering the cases of the petitioners.
11. The brief facts of the cases, as per the pleading made in the writ
- 13 - LPA No.126/2022 & analogous cases petitions, are required to be enumerated which read as under :-
12. It is the cases of the writ petitioners that in pursuant to the requisition sent by the Urban Development Department for direct appointment on the post of the Assistant Town Planner, the Jharkhand Public Service Commission issued a Press Release on 14.07.2020 on its Website intimating the candidates about the appointment to the said post.
13. As per Advertisement, the Compulsory Educational Qualification was Graduate in Architecture, Bachelor of Planning, Civil Engineering and Post Graduate in Master of Planning with specialization in either of
(i) Urban Planning (ii) Transport Planning (iii) Housing (iv) Environmental Planning (v) Regional Planning and also candidate must possess certificate of Associate Member from the Institute of Town Planners (India). The date to fill up the Online Application was from 15.07.2020 to 10.08.2020. As per Condition No.11(b) of the advertisement, the candidature of the candidate was to be ascertained as per the information given by the candidate.
14. Further, the Condition no. 11(n) stated that for the purpose of verification of documents for appearing in interview, the required certificates of the claims made in the online application were to be submitted.
15. The Condition no.11(m) stated that if it was found that wrong information was given by the candidate in the application, the Commission was at liberty to cancel the candidature of such candidates. Subsequently, the J.P.S.C. issued a Press Release on 26.08.2020 asking the candidates whose application was provisionally
- 14 - LPA No.126/2022 & analogous cases accepted, to submit their certificates as per their claims made in the online application in accordance with the condition 11(n) stipulated in the Advertisement from 27.08.2020 to 08.09.2020.
16. Through this Press Release, the list of candidates whose online applications were accepted or rejected has also been mentioned.
17. It is the case of the writ petitioners that they being qualified and eligible in all respects as per the Advertisement, applied online for the Post in question, sent the requisite certificates as was demanded within the time prescribed. The interviews of the candidates were conducted from 06.01.2021 to 08.01.2021 and a startling result was published on 18.03.2021.
18. The results indicated that the Jharkhand Public Service Commission had allowed to appear in the interview even those candidates who were not having the Associate Membership from the ITPI on the cut of date, i.e., on 10.08.2020 as the said Institute in its meeting held on 22.08.2020, gave Associate Membership to a number of persons including the private respondents.
19. During pendency of the writ petitions, an information vide Letter No.1958 dated 06.09.2021 was issued by the Public Information Officer (Annexure R/7 to the writ petition) that a Scrutiny Committee was constituted by the Commission to verify the certificates and documents of the candidates. Upon verification, the Scrutiny Committee submitted its Report as (i) May be accepted (130 candidates) (ii) Doubtful cases regarding required qualification (19 Candidates) (iii) List of those candidates who obtained ITPI membership after last date of online application (186 candidates) (iv)
- 15 - LPA No.126/2022 & analogous cases may be rejected (188 Candidates).
20. The Scrutiny Committee was of the considered view that candidature of only 130 candidates may be accepted and candidature of 188 candidates may be rejected that included 186 Candidates who obtained ITPI membership after last date of submission of online applications but the Commission by-passed report of the Scrutiny Committee and instead of rejecting candidature of these 186 candidates, allowed them to participate in the interview even when they received the Associate Membership Certificate from ITPI after the last date of submission of online application, i.e., on 10.08.2020.
21. The private respondents and other candidates total 186 in numbers who were not having the Certificate of the Associate Membership of ITPI before 10.08.2020, made a wrong entry in the online application and got their application provisionally accepted.
22. Though, upon verification, it was found that their Associate Membership had been obtained after 10.08.2020, i.e., after the cut-off date, instead of rejecting their candidature as per Condition 11(m) of the advertisement, Commission allowed them to participate in the interview and made a selective favour.
23. It appears from the factual aspects that the appellants being aggrieved with the decision of the Jharkhand Public Service Commission (in short 'JPSC') by entertaining the candidature of the private respondents, i.e., respondent nos.5 to 24, even though, as on the date of the advertisement, they were not having the minimum eligibility criteria of the members of the Institute of Town Planner (India), New Delhi as required under condition/clause no.5 of the
- 16 - LPA No.126/2022 & analogous cases advertisement being Advertisement No.04 of 2020.
24. It is the contention of the appellants that instead of cancelling the candidature of private respondents on the ground that they are not eligible on the date of making application, since, they were not having I.T.P. certificate, but only in order to accommodate such candidates, the JPSC has accepted their candidature after receiving the I.T.P. certificate issued by the concerned Institute, which admittedly was issued on 22.08.2020, which was after the last date of submission of application, i.e., 10.08.2022, even though, at the initial stage, their candidature were rejected, who were 186 in numbers but subsequently, by accommodating them, not only their candidature have been accepted, rather, their names have also been recommended for providing appointment to the post of Assistant Town Planner.
25. It is the contention of the learned Senior Counsel appearing for the appellants that since, the candidature of the private respondents, who are amongst 186 candidates, have not submitted I.T.P. certificate, as per the stipulation made in the advertisement, rather, they had given wrong declaration of being members of Institute Town Planner, which would be evident from the online application form, thereby, their candidature have been accepted, even though, they have submitted the certificate issued from the concerned Institute subsequent to closure of the acceptance of application form in terms of the date stipulated in the advertisement.
26. The appellants contend that if 186 candidates would not have been accommodated, then the appellants would have been selected
- 17 - LPA No.126/2022 & analogous cases on the basis of their position in the merit list as also on the ground that they were having the requisite criteria, as per the stipulation made in the advertisement/rules of recruitment.
27. The appellants-writ petitioners, on the aforesaid premise, have approached to this Court by filing writ petitions being W.P.(S) Nos.1413 of 2021, 1516 of 2021 and 1517 of 2021 seeking therein the directions as referred hereinabove.
28. The learned Single Judge, has not agreed to the ground, rather, the plea of the Covid-19 Pandemic was taken by the JPSC and the candidature of private respondents who amongst 186 candidates, has been accepted by the learned Single Judge and has found no illegality in the process of selection and as such, the writ petitions were dismissed, against which, the present appeals. Argument advanced on behalf of the appellants
29. Mr. Ajit Kumar, learned Senior Counsel appearing for the appellants in all these appeals has taken the following grounds that:-
(i) As per the settled position of law, the requirement is to be made on the basis of the recruitment rule and as per the condition stipulated in the advertisement which contains the condition as under clause/condition-5 under the head "Mandatory educational qualifications, under which, the minimum education qualification has been prescribed, i.e., for the post of Assistant Town Planner to the effect that a candidate is to be appointed as Assistant Town Planner in the Urban Planning will have to possess Post-Graduation along with associate member certificate to be issued by the Institute
- 18 - LPA No.126/2022 & analogous cases of Town Planner (India), New Delhi. The 186 candidates amongst whom the private respondents were not possessing the certificate of the members of the concerned institute, i.e., Institute of Town Planner (India), New Delhi, which would be evident from the fact that the said certificate was issued on 22.08.2020, while the last date of submission of application was 10.08.2020. Therefore, the candidature of all 186 candidates was to be rejected at the threshold.
(ii) The ground of mis-representation/commission of fraud has been taken that even though, all the 186 candidates amongst which, the private respondents have mis- represented in submitting the application form which would be evident from the online application form as has been appended with the paper book, wherefrom, it is evident that in the column made for the purpose by seeking declaration that 'Have you obtained Associate Membership of Institute of Town Planners (India), New Delhi?, wherein, the declaration has been given as "yes".
The said application form was submitted prior to the last date of submission of the application form, i.e., prior to 10.08.2020 but the said membership certificate was only issued in favour of the private respondents on 22.08.2020, as would appear from the said certificate having been made part of the paper book, then on what basis the declaration to have the said certificate has been furnished, the day when the applications were filled up disclosing therein that the private
- 19 - LPA No.126/2022 & analogous cases respondents were possessing the said certificate. As such, fraud has been committed by the private respondents and in that view of the matter, the law is settled that in case of commission of fraud, the candidature ought to have been rejected, but no decision has been taken to that effect.
(iii) It is the ground that instead of taking any decision for cancellation of candidature of the private respondents, the JPSC has made a correspondence to the Principal Secretary, Urban Development and Housing Department, Government of Jharkhand, Ranchi on 21.07.2020 issued under the signature of Secretary, JPSC, Ranchi by making a request that the equivalent educational qualification and the eligibility to possess the membership certificate of the Institute of Town Planner (India), New Delhi may be considered for its deletion based upon the request made in this regard on behalf of the candidates who were having no such certificate as on the date of submission of application form in terms of the advertisement. The reference of communication dated 29.07.2020 has been made which was in response to the communication dated 21.07.2020 issued under the signature of the Secretary to the Government addressed to the Secretary, Jharkhand Public Service Commission that there is no need to make any amendment in the Town Planner Service (Recruitment, Promotion and other Service) Rules, 2014 (amended 2019) and has requested the commission to make recommendation for making appointment. But even in
- 20 - LPA No.126/2022 & analogous cases spite of the aforesaid fact, the decision was taken by the commission in its Board Meeting dated 07.12.2020 and as per the agenda no.3 thereof, the decision was taken to accept the candidature of such candidates who had not submitted the application form along with the certificate of the concerned institute due to Covid-19 Pandemic.
The commission, thereafter, has accepted the candidature of 186 candidates which includes the private respondents and accordingly, recommendations have been made for filling up of the 77 posts as notified by way of advertisement.
(iv) The ground, therefore, has been taken that once the State has refused to accept the proposal of the commission to modify the recruitment rules and has requested to recommend the name of the successful candidates so that the post be filled up but ignoring the same, the commission on its own, has taken decision for relaxation of such conditions and accordingly, their candidature have been accepted and thereafter, the recommendations have been made.
The question has been raised, therefore, that the commission while doing so, has exceeded its jurisdiction in taking its own decision contrary to the condition stipulated in the advertisement coupled with the condition as under
condition no.11(m) which speaks that in case if it has been found at any time that wrong information or the fact has been
- 21 - LPA No.126/2022 & analogous cases suppressed then the commission will cancel the candidature of such candidates.
Condition no.11(n) also refers that the certificate of the Institute of Town Planner (India), New Delhi will have to be submitted mandatorily.
The reference of the condition as contained under condition no.11(b) has also been taken, wherein, it has been stipulated that on the basis of information furnished by one or the other candidates on online application and once the declaration is being furnished in the online application, then there will be no change therein and the application so received after the due date, will not be acceptable.
(v) The commission without adhering to the condition stipulated in the advertisement and in excess to its jurisdiction not only accepted the candidature of respondents concerned, but has also considered the certificate which was issued subsequent to the last date of submission of application form and has recommended their names for appointment.
(vi) The appellants' grievance is that they are eligible candidates and their applications were in order but only in order to accommodate the private respondents, their names have not come in the list of successful candidates for the purpose of recommendation and if the candidature of the private respondents would not have been accepted, in that eventuality, the appellants will have their names in the list of successful candidates for the purpose of recommendation.
- 22 - LPA No.126/2022 & analogous cases But due to illegal action of the commission in the process of selection, the appellants have been declared to be un-successful.
30. The contention on the aforesaid premise, has been made that the learned Single Judge has not appreciated the facts as also the legal position, rather, the contention which was raised on behalf of the commission and the private respondents, has dismissed the writ petitions by taking into consideration the ground of Covid-19 Pandemic, due to which reason, certificate of the concerned institute could not be obtained and as such, could not be submitted along with the application form within the due date of filling up of the application.
31. Learned Single Judge, according to the appellants, has committed error in passing the impugned judgments without taking into consideration that in the matter of public employment, the fairness and transparency in the public employment is of paramount consideration so as to achieve the object and intent of Article 14 and 16 of the Constitution of India, therefore, the instant appeals. Argument advanced on behalf of the JPSC
32. Per contra, Mr. Sanjoy Piprawall, learned counsel appearing for the respondent-JPSC has contended that it is not a case where the date has been extended for the purpose of accepting the certificate issued by the concerned Institute, rather, the decision has been taken by the Board of the Commission taken into consideration the extraordinary situation of Covid-19 Pandemic.
33. The decision, since, has been taken by the commission considering the reason of Covid-19 Pandemic during the relevant
- 23 - LPA No.126/2022 & analogous cases period and if on that consideration, the candidature of 186 candidates which includes the private respondents had been considered, it cannot be said that same is for extraneous purposes.
34. Learned counsel appearing for the JPSC has submitted that admittedly the request was made to the State Government for amendment of the recruitment rule but the same has not been accepted.
35. Thereafter, the Board was constituted by the Commission based upon the representation received on behalf of the private respondents through e-mail for acceptance of the certificate, since, the certificate could not be obtained prior to cut of date of submission of application form and as such, considering the declaration given by the private respondents in this regard in affirmative, the applications have been accepted and since, the certificate issued from the concerned institute has been submitted for its verification at the stage of interview, the same has been accepted and in consequence thereof, the names of the private respondents have been accepted, hence, there is no illegality in the process of selection.
36. It has been contended that the appellants since has got lesser marks in comparison to the private respondents and as such, their names have not been recommended and in that view of the matter, the learned Single Judge has also taken ground that once the candidate is declared to be unsuccessful, the unsuccessful candidate has got no right to take U-turn and question the selection process, which according to the learned counsel, is applicable herein, since, the appellants have also been declared to be unsuccessful in the process
- 24 - LPA No.126/2022 & analogous cases of selection and it is only thereafter, they have challenged the entire process of selection.
37. Learned counsel for the respondent-Commission on the aforesaid premise, has submitted that the learned Single Judge has taken into consideration these aspects of the matter while dismissing the writ petitions, therefore, the same requires no interference. Argument advanced on behalf of Private Respondents
38. Mr. Anoop Kr. Mehta, Mr. Arun, Mr. Siddhartha Ranjan, Mr. Saurav Arun, and Mr. Amritansh Vats, learned counsel appearing for the private respondents, who are amongst the 186 candidates, have submitted the application form along with the certificate to be issued from the concerned institute prior to the last date of submission of the application form, have jointly submitted that it is not the case that the private respondents who are not having with the certificate of the concerned institute, rather, the provisional certificate was there, as would appear from the documents as available with them, therefore, the same will be construed to be the provisional certificates and the declaration has been given that the private respondents were having the certificate from the concerned institute in affirmative, hence, there is no mis-representation or suppression of fact as is being taken as a ground to interfere with the impugned order passed by the learned Single Judge.
Argument advanced on behalf of the State
39. Learned Advocate General has appeared on behalf of the State and has submitted that the illegality has been committed by the commission in accepting the candidature of 186 candidates who, were
- 25 - LPA No.126/2022 & analogous cases not having with the certificate of the concerned institute prior to the last date of submission of application form, therefore, conscious decision has been taken by the State on 07.02.2022 issued under the signature of the Secretary of the Urban Development and Housing Department and taking the reason of acceptance of candidature of 186 candidates who are not having with the required certificate of the concerned institute, has cancelled the recommendation so made by the Commission.
40. The learned Advocate General, in view of the aforesaid decision of the concerned Secretary, has submitted that the recommendation so made on behalf of the Commission, has been rejected by the concerned Department of the State of Jharkhand, therefore, no cause of action now arose in favour of the appellants.
41. The further submission has been made that the implied meaning of rejection of the recommendation by the concerned Department of the State that the entire selection process will be commenced afresh. Response of the appellants to the argument advanced on behalf of the State
42. Mr. Ajit Kumar, learned Senior Counsel for the appellants, in response to the aforesaid submission, has submitted that once the State has admitted the error committed on the part of the commission while not accepting the recommendation so made by the commission by taking the ground which is the basis of filing the writ petitions, now nothing remains to be decided, save and except that the candidature of 186 candidates is fit to be rejected and fresh recommendation is to be made on the basis of the eligibility of one or the other candidates so
- 26 - LPA No.126/2022 & analogous cases as to fill up the post at an early date.
43. It has been contended that there is no reason for initiating the fresh process of recruitment, in view of the fact that there is no fault lies on the part of the appellants and if any laches/erroneous decision has been taken by the commission which ought not to have been taken by the commission being the constitutional body then the question is why the genuine candidate is allowed to suffer. Argument advanced in the writ petitions
44. The writ petitions have also been filed being W.P.(S) Nos.889 of 2022, 1007 of 2022, 1351 of 2022 and 1781 of 2022, praying therein the prayers for quashing of the order no.18 dated 07.02.2022, whereby and whereunder, the recommendation made by the JPSC for appointment of the private respondents, has been rejected.
45. The ground has been taken in these writ petitions that once their candidature has been accepted by the commission on close scrutiny and by taking the decision by the Board constituted by the commission, there is no reason not to accept the recommendation by the State Government and in that view of the matter, the writ petitions have been filed.
46. The appellants of L.P.A. Nos.126 of 2022, 129 of 2022 and 135 of 2022 have filed intervention applications in these writ petitions and have raised the ground as has been agitated while pressing the intra- court appeals as referred hereinabove.
47. Mr. Ajit Kumar, learned Senior Counsel appearing for the appellants in LPA Nos.126 of 2022 and 129 of 2022 has reiterated his argument as has been argued and referred hereinabove by making
- 27 - LPA No.126/2022 & analogous cases addition that the writ petitions are fit to be dismissed, the moment the State, employer has taken a decision of non-acceptance of their candidature in absence of non-compliance of the mandatory condition of submission of certificate to be issued from the concerned institute which suggests that the irregularity/illegality has been committed by the commission and in that view of the matter, rejection of recommendation taken by the Secretary of the concerned Department, cannot be said to suffer from an error.
48. The learned Senior Counsel has further submitted that the argument which has been advanced as above is being taken herein is not being repeated.
49. Learned Advocate General has submitted that he has already argued that the recommendation of the commission has not been accepted on the basis of the reason that the irregularity/illegality has been committed by accepting the candidature of 186 candidates, even though, they were not having the membership certificate prior to the date of submission of the application form.
50. The submission, therefore, has been made on behalf of the State that the writ petitions are fit to be dismissed.
51. We have heard the learned counsel for the parties, perused the documents available on record as also considered the finding recorded by the learned Single Judge in the impugned order.
52. Further, we have appreciated the argument advanced on behalf of the parties so far as the relief sought for in the writ petitions are concerned.
53. The issues which require consideration in these cases are:-
- 28 - LPA No.126/2022 & analogous cases (i) Whether the litigation filed by the appellants can be held to
be not maintainable merely because they have been declared to be unsuccessful in the facts and circumstances of the case.
(ii) Whether the JPSC, a constitutional body, has got any jurisdiction to relax the condition stipulated in the advertisement;
(iii) Whether the acceptance of candidature of such candidates who have not submitted the application form said to be in order due to want of the conditions, subsequently, acceptance of their candidature and recommending their names for appointment can be said to be justified;
(iv) Whether the ground, upon which, the commission has taken decision to relax the condition can be said to be justified instead of taking appropriate remedy by the concerned candidate for seeking remedy of extension of time by invoking the jurisdiction of the Court.
(v) Whether the conditions stipulated in the advertisement under the educational qualification as referred in condition no.5 read with condition nos.11(b), 11(m) and 11(n), can be said to be directory or obligatory.
(vi) Whether in the facts and circumstances of the case making communication dated 21.07.2020 to the State by the commission for making amendment in the recruitment rule by the JPSC, can be said to be proper and within the jurisdiction of the JPSC.
- 29 - LPA No.126/2022 & analogous cases
(vii) Whether furnishing the wrong information in the online application form to have the certificate which is mandatorily to be submitted along with the application form prior to the cut-off date is not amounting to commission of fraud.
(viii) Whether the acceptance of candidature of 186 candidates, amongst which, the private respondents and the writ petitioners are the candidates and at their cost, the candidature of genuine candidate can be allowed to be rejected.
(ix) Whether the rejection of recommendation so made by the commission warrants for preparation of the fresh list including the name of the genuine candidates instead of going for fresh recruitment process by issuing fresh advertisement in view of the urgent need on the post of the Assistant Town Planner as per the Government of India letter dated 07.02.2022.
54. This Court, before answering the said issues, needs to refer herein the recruitment rules, whereby and whereunder, the following conditions have been made:-
"Recruitment by Selection:
(1) Where recruitment to a service or a post is to be made by selection, the Commission, after receiving requisitions from the department concerned, shall announce the number of vacancies and invite applications in accordance with the details given in the requisitions.
(2) (a) Applications received in response to such advertisements shall be scrutinized in the office by an officer not below the rank of the Deputy Secretary of
- 30 - LPA No.126/2022 & analogous cases the Commission and thereafter put up before the Member whom the subject has been allotted vide Rule (4) of Chapter II for vindication, who will refer it to a Chairman after having satisfied himself with their validity.
(b) The Chairman may endorse it to another Member for his comment and in case of difference of opinion shall refer the matter to the Commission for resolution.
Explanation I - It is hereby added for the purpose of clarification that in absence of any difference of opinion between the Members, the selection made shall be construed to have been made by the Commission. (3) If the number of applicants in response to an advertisement is rather large, the Commission prescribes the following criteria for short-listing of the candidates for being called for interview.
(a) The candidates shall be selected for interview on the basis of the career marks to be calculated on the basis of percentage of marks obtained in each examination from Matriculation upto the level of minimum qualification required. The percentage of marks shall be added together and divided by the number of examinations and a merit list accordingly prepared.
(b) The number of candidates to be called for interview category wise will be five times.
(c) Not-with-standing anything contained in clause (b) Commission may opt for holding an objective type screening test to short-list the candidates.
(d) Where the number of candidates exceeds 500, the candidates shall be short-listed for Interview through a screening test to be conducted on the basis of objective type questions and the evaluation thereof shall be done in the premises of the Commission by OMR (4) The appointment of question setters (Objective Type) and Moderators etc. shall be made by the
- 31 - LPA No.126/2022 & analogous cases Chairman in the like manner as prescribed in Sub-Rule
(viii) of Chapter-III.
(5) After the screening test is complete, all other related and consequential works in this regard will be done by the Controller of the Examination with the approval of the Chairman.
(6) After the evaluation of the answer sheets, a merit list shall be prepared on the basis of minimum qualifying marks as fixed by the Commission and candidates thus short-listed shall be called for interview/viva voce test, where necessary. Interview Boards for viva voce/personality test shall be constituted as per the assignment made in the 'Schedule'.
(7) Marks to be awarded in the interview/viva voce test shall be in the ratio of 100 (hundred) marks for academic achievement and 100 (hundred) marks for interview/viva voce test.
(8) Mode of distribution of marks of academic achievement shall be decided by a Committee of Members including the Chairman. Members of the Committee shall be nominated by the Chairman. Decision of the Committee shall be deemed to be decision of the Commission.
(9) The final merit list shall be prepared and put up before a Committee of Members for scrutiny and after approval of the Chairman, recommendation shall be forwarded to the department concerned by the Secretary of the Commission/Officer or Controller of Examinations.
(10) Final merit list scrutinized by the committee of the Members and approved by the Chairman shall be authenticated by Controller of Examination and Secretary of the Commission and the committee of members nominated by the Chairman.
(11) All documents pertaining to Recruitment by Selection shall be preserved for the period as
- 32 - LPA No.126/2022 & analogous cases mentioned in APPENDIX-2 of these Rules."
55. The advertisement has been issued being Advertisement No.04 of 2020 wherein, the last date of submission of application form was 10.08.2020.
56. It appears from the advertisement that under condition no.5, the mandatory educational qualification has been referred therein which reads as under:-
5- vfuok;Z 'kS{kf.kd vgZÙkk %& in U;wure 'kS{kf.kd ;ksX;rk Lukrd LukrdksÙkj lEc)rk fuEukafdr esa ls fdlh bfULVV~;wV A ,d fo'k; esa vkWQ lgk;d fof'kf'Vdj.k ds lkFk Vkmu IykulZ
(i) okLrqdyk uxj ekLVj vkWQ Iykfuax%& ¼bafM;k½] ubZ
(ii) ch0 Iykfuax fuos'kd (i) vcZu Iykfuax fnYyh ls
(iii) vlSfud vfHk;a=.k
(ii) VªkUliksVZ Iykfuax lkgp;Z
(iii) gkmflax lnL;rk izkIrA
(iv) i;kZoj.k Iykfuax
(v) {ks=h; Iykfuax
57. It is, thus, evident that the minimum educational qualification for the post in question on post-graduation with the certificate of being associate member to be obtained from the Institute of Town Planner (India), New Delhi is required.
58. The condition no.11(b) provides that the application is to be submitted through online. The candidature of one or the other candidates is to be determined on the basis of the information furnished on online application.
59. The instruction has been given therein that the candidates are to fill up their applications forms strictly in accordance with the provision of the advertisement and the instruction.
- 33 - LPA No.126/2022 & analogous cases
60. The further instruction is that entry once made in online application will not be altered in any circumstances.
61. The condition no.11(m) provides that the information so furnished in online application form if found to be based upon the wrong information or the evidence of suppression of fact if found, the commission will be free to reject the candidature of such candidates.
62. The condition no.11(n) provides that the certified copy is to be provided as under condition no.(11)(n)(v), the certificate pertaining to the concerned Institute is also to be appended with the application form, for ready reference, condition no.11(b), 11(m) and 11(n) are being referred as under:-
"11- vkosnu i= Hkjus gsrq vko";d 'krZ ,oa funsZ'k %& ¼b½ Online Application esa vH;FkhZ }kjk nh xbZ lwpuk ds vk/kkj ij mudh vH;fFkZrk lqfuf"pr dh tk;sxhA vH;FkhZ Online Application Hkyh&Hkk¡fr foKkiu esa fufgr izko/kku ,oa funsZ"k ds vuqlkj gh HkjsaA ,d ckj Online Application esa dh x;h izfof'V ¼Entry½ ds ckn mlesa fdlh Hkh rjg ds ifjorZu dk vuqjks/k vkosnu izkfIr dh vafre frfFk ds i"pkr Lohdk;Z ugha gksxkA ¼m½ vkosnd }kjk vius vkosnu esa nh xbZ lwpukvksa ,oa fdlh Hkh Lrj ij tk¡p ds Øe esa dksbZ xyr lwpuk ;k rF; fNikus dk izek.k feyrk gS] rks vk;ksx ,sls vkosndksa dh vH;fFkZrk jn~~n djus ds fy, Lora= gksxkA ¼n½ lk{kkRdkj gsrq vfHkys[k lR;kiu ds le; vkWuykbu vkosnu esa fd;s x;s nkoksa ds vuq:i lHkh okafNr fuEu izek.k i=ksa dh LovfHkizekf.kr izfr ewy izfr lfgr izLrqr djuk vfuok;Z gksxk %& ¼i½ eSfVªd izek.k i= ,oa vadi= dh Nk;kizfrA ¼ii½ baVjehfM,V izek.k i= ,oa vadi= dh Nk;kizfrA ¼iii½ ekU;rk izkIr laLFkku ls okLrqdyk@ch0 Iykfuax@vlSfud vfHk;a=.k esa Lukrd mÙkh.kZrk dk izek.k i= ,oa vad i=A ¼iv½ ekU;rk izkIr laLFkku ls vcZu Iykfuax@VªkUliksVZ
- 34 - LPA No.126/2022 & analogous cases Iykfuax@gkmflax@i;kZoj.k Iykfuax@{ks=h; Iykfuax esa ls fdlh ,d fo'k; esa fof'kf'Vdj.k ds lkFk ekLVj vkWQ Iykfuax dh mikf/k izek.k i= ,oa vad i=A ¼v½ bfULVV~~;wV vkWQ Vkmu IykulZ ¼bf.M;k½] ubZ fnYyh ls lkgp;Z lnL;rk laca/kh izek.k i=A ¼vi½ tkfr izek.k [email protected]. izek.k i= ¼tgk¡ ykxw gks½A ¼vii½ esfMdy cksMZ }kjk fuxZr fodykaxrk izek.k i= ¼tgk¡ ykxw gks½A ¼viii½ vukifÙk izek.k i= ¼tgk¡ ykxw gks½A"
63. The admitted case herein is that as this Court has gathered from the argument and the documents that as on the date of last date of submission of application form, the private respondents were not having with the requisite certificate issued from the concerned Institute, since, it was only issued on 22.08.2020.
64. However, it appears from the online application form that the said certificate has been shown to be possessed by giving the answer as 'yes' under the column that have you possessed the certificate of the concerned institute.
65. It appears from the communication dated 21.07.2020 which is the communication issued by the Secretary, Jharkhand Public Service Commission addressed to the Principal Secretary, Urban Development and Housing Department that a request was made based upon the representation made through e-mail by the candidates who are having no certificate of the concerned Institute for relaxation of the said rule, for ready reference, the content of the letter dated 21.07.2020 is being referred as under:-
la0la0% @ijh0&ts0ih0,l0lh0&56@2014@1481 >kj[k.M yksd lsok vk;ksx]
- 35 - LPA No.126/2022 & analogous cases ldqZyj jksM] jk¡ph&834001 >kj[k.M yksd lsok vk;ksx] jk¡phA lsok esa] iz/kku lfpo] uxj fodkl ,oa vkokl foHkkx] >kj[k.M] jk¡phA fo"k;%&lgk;d uxj fuos"kd ds in ij fu;qfDr gsrq izdkf"kr foKkiu la[;k&04@2020 ds laca/k esaA egk"k;] funs"kkuqlkj mi;qZDr fo'k; ds lac/a k esa dguk gS fd lgk;d uxj fuos"kd ds fjDr inksa ij fu;qfDr gsrq izkIr foHkkxh; vf/klwpuk ,oa fu;qfDr fu;ekoyh ds izko/kkuksa ds vkyksd esas vk;ksx }kjk foKkiu la[;k&04@2020 izdkf"kr dj vkWuykbu vkosnu&i= vkeaf=r fd;k x;k gSA mDr foKkiu esa mYysf[kr "kS{kf.kd vgZÙkk ds vkyksd esa led{k "kS{kf.kd vgZÙkk/kkjh vH;fFkZ;ksa dks Hkh vkosnu djus dk volj nsus ,oa bfULV;wV vkWQ Vkmu IykulZ ¼bf.M;k½] ubZ fnYyh ls lkgp;Z izkIr djus dh vgZÙkk dks gVkus ds laca/k esa dfri; vH;fFkZ;ksa ls email ¼bZesy½ izkIr gq, gSa] ftldh izfr;k¡ layXu gSaA vr,o vuqjks/k gS fd vH;fFkZ;ksa ls izkIr bZesy ds vkyksd esa led{k "kS{kf.kd vgZÙkkZ ,oa bfULV;wV vkWQ Vkmu IykulZ ¼bf.M;k½] ubZ fnYyh ls lkgp;Z izkIr djus dh vgZÙkk ds fcUnq ij foHkkxh; lqLi'V earO; vfoyEc miyC/k djkus dh d``ik dh tk;A fo"oklHkktu lfpo] >kj[k.M yksd lsok vk;ksx] jk¡phA
66. It further appears that the Secretary of the concerned Department has refused to accept such request vide communication
- 36 - LPA No.126/2022 & analogous cases dated 29.07.2020, for ready reference, the relevant part of the communicated dated 29.07.2020 is being referred as under:-
i=kad & 1@LFkk0@"k0LFkk0fu0¼vf/k0½&05@2016@u0fo0 1927 >kj[k.M ljdkj uxj fodkl ,oa vkokl foHkkx izs"kd] fou; dqekj pkScs] ljdkj ds lfpoA lsok esa] lfpo] >kj[k.M yksd lsok vk;ksx] jk¡phA jk¡ph] fnukad %&29@07@20 fo"k;%&lgk;d uxj fuos"kd ds in ij fu;qfDr gsrq izdkf"kr foKkiu la[;k&04@2020 ds laca/k esaA egk"k;] mi;ZqDr fo'k;d vkids i=kad&1481 fnukad&21-07-2020 ds izlax esa dguk gS fd uxj fuos"ku lsok ¼HkÙkhZ] izksUufr ,oa vU; "kÙksZa½ fu;ekoyh] 2014 ¼;Fkk la"kksf/kr] 2019½ esa lgk;d uxj fuos"kd ds in gsrq fu/kkZfjr "kS{kf.kd ;ksX;rk rFkk Institute of Town Planners of India, New Delhi (ITPI) ls lkgp;Z lnL;rk izkIr djus dh vgZrk dk fu/kkZj.k foHkkx Lrj ij lE;d fopkjksijkar fu/kkZfjr djrs gq, foÙk foHkkx] fof/k foHkkx ,oa dkfeZd] iz"kklfud lq/kkj rFkk jktHkk'kk foHkkx ls lgefr@fof/k{kk izkIr dj jkT; eaf=ifj'kn dh Lohd``fr mijkar vf/klwfpr fd;k x;k gSA vr,o mi;qZDr rF; ds vkyksd esa uxj fuos"ku lsok fu;ekoyh esa lgk;d uxj fuos"kd ds in ij fu;qfDr gsrq fu/kkZfjr "kS{kf.kd ;ksX;rk ,oa vU; vgZrk esa fdlh izdkj dh la"kks/ku dh vko";drk ugha gSA vuqjks/k gS fd uxj fuos"ku lsok ¼HkÙkhZ] izksUufr ,oa vU; "kÙksZa½ fu;ekoyh] 2014 ¼;Fkk la"kksf/kr] 2019½ ,oa bl Øe esa uxj fodkl ,oa vkokl foHkkx }kjk lgk;d uxj fuos"kd ds in ij fu;qfDr gsrq izsf'kr vf/k;kpuk ds vkyksd esa fu;qfDr dh vuq"kalk foHkkx dks miyC/k djkus dh d``ik djsaA fo"oklHkktu 29@07@2020 ¼fou; dqekj pkScs½ ljdkj ds lfpo
67. Thus, it is evident that the commission has acted to take initiation to accommodate such candidates who were having no certificate of the concerned Institute and it was also known to the private respondents that the such conditions of appending the certificate of the Institute is mandatory and that is the reason, the request through e- mail was made to the commission for amendment in the rule.
68. The commission was also knowing that the said condition is
- 37 - LPA No.126/2022 & analogous cases mandatory and therefore, a correspondence was made to the Secretary of the concerned Department for amendment in the said rule.
69. The Jharkhand Public Service Commission, thereafter, has proceeded to somehow accommodate these appellants by convening a Board's Meeting which was held on 07.12.2020, by assigning the reason of Covid-19, the decision was taken for acceptance of the candidature of the candidates, as would appear from the extracts of the Minutes of Meeting dated 07.12.2020, for ready reference, the same is being referred as under:-
"xksiuh; fnukad 07-12-2020 dks gqbZ vk;ksx dh cSBd dh dk;Zokgh Ø0 l0 fo"k; vk;ksx ds fu.kZ;
03 2@ijh0&ts0ih0,l0lh0&56@2014 uxj fodkl ,oa vkokl foHkkxkUrxZr uxj fodkl ,oa vkokl foHkkxkUrxZr lgk;d uxj fuos"kd ds dqy&77 fjDr inksa lgk;d uxj fuos"kd dh fu;qfDr ij fu;fer fu;qfDr gsrq vf/k;kpuk dkfeZd] gsrq vH;fFkZrk fu/kkkZj.k ds laca/k esaA iz"kklfud lq/kkj rFkk jktHkk'kk foHkkx ds i=kad&474] fnukad&24-01-2020 ds }kjk vk;ksx dks izkIr gqvk gSA izdkf"kr foKkiu la[;k&04@2020 dh fjfDr;ksa ds fo:) izkIr vkosnu i=ksa dh laoh{kksijkUr LØwVuh lfefr }kjk lefiZr izfrosnu dh lwph ds vuqlkj Lohd``fr ;ksX; vkosnuksa dh la[;k&130 o No. of Candidates who obtained ITPI membership after last date of Online Application-186 n"kkZ;h xbZ gSA ;g Hkh mYys[kuh; gS fd bl foKkiu ds fo:) dfri; vH;fFkZ;ksa }kjk Covid-19 fo"oO;kih egkekjh ds dkj.k bfULVV~~;Vw vkWQ Vkmu IykulZ ¼bafM;k½] ubZ fnYyh ls lkgp;Z lnL;rk izkIr djus esa dfBukbZ dk mYys[k djrs gq, blds fy, vfrfjDr le; nsus dk vuqjks/k fd;k x;k gSA rnkyksd esa fuEukafdr izLrko ij vk;ksx dk fu.kZ; izkfFkZr gS%&
- 38 - LPA No.126/2022 & analogous cases ¼i½ lfefr ds izfrosnu dh lwph&dafMdk&8] Øekad&3 ¼No. of Candidates who obtained ITPI membership after last date of Online Application½ ds dqy&186 vH;fFkkZ;ksa ls izkIr Institute of Town Planners (India), New Delhi ls lkgp;Z lnL;rk izek.k i= tks muds }kjk vkWuykbZu vkosnu djus dh vafre frfFk ds i'pkr izkIr fd;k x;k gS] dks lk{kkRdkj gsrq lfEefyr fd;k tk ldrk gSA ¼ii½ lfefr ds izfrosnu dh lwph&dafMdk&8] Øekad&2 (Doubtful cases regarding required qualification) ds dqy&19 vH;fFkZ;ksa dh vH;fFkZrk fo'k;&fo"ks'kKksa ds izfrosnu ds vuq:i fu/kkZfjr dh tk ldrh gSA pw¡fd dfri; vH;fFkZ;ksa }kjk Covid-19 fo"oO;kih egkekjh ds dkj.k ITPI ls lkgp;Z lnL;rk izkIr djus esa dfBukbZ dk mYys[k djrs gq, blds fy, vfrfjDr le; nsus dk vuqjks/k fd;k x;k gS] vr,o bl ij xaHkhjrk ls fopkj djrs gq, mi;qZDr izLrko ij lgefr iznku dh tkrh gSA"
70. The candidature of the private respondents, thereafter, has been accepted and their names have been recommended. Issue No.(i)
71. The first question which requires consideration as per the ground taken by the learned Single Judge in dismissing the writ petitions that once the writ petitioners have been declared to be un-successful in the process of selection, it is not available for the appellants to take turn around and challenge the entire selection process.
72. The law is well settled that the principle of estoppel prevents a candidate from challenging the selection process after being un-
- 39 - LPA No.126/2022 & analogous cases successful.
73. The underlined objective of the principle is to prevent candidates from trying another chance of consideration, reference in this regard, may be made to the judgment rendered by the Hon'ble Apex Court in the case of Manish Kumar Shahi Vrs. State of Bihar, reported in (2010) 12 SCC 576, wherein, at paragraph-16, it has been held as under:-
"16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2008) 4 PLJR 93] 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 appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] 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 appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition." [ See also: Madan Lal v. State of J&K, (1995) 3 SCC 486 : 1995 SCC (L&S) 712, Marripati Nagaraja v. State of A.P., (2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68, Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC 171 : (2008) 1 SCC (L&S) 1005 and K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515 : (2009) 2 SCC (L&S) 57].
The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.
74. However, the aforesaid principle will be not applicable in a
- 40 - LPA No.126/2022 & analogous cases situation where the candidates alleges mis-construction of statutory rules and discriminating consequences, the same cannot be condoned merely because the candidate has taken part in it.
75. The aforesaid aspect of the matter has been considered by the Hon'ble Apex Court in the case of Dr. (Major) Meeta Sahai Vrs. State of Bihar & Ors., reported in (2019) 20 SCC 17, the relevant paragraphs of the said judgment are being referred as under:-
"Preliminary issues
15. Furthermore, before beginning analysis of the legal issues involved, it is necessary to first address the preliminary issue. The maintainability of the very challenge by the appellant has been questioned on the ground that she having partaken in the selection process cannot later challenge it due to mere failure in selection. The counsel for the respondents relied upon a catena of decisions of this Court to substantiate his objection.
16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar [Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256] , observing as follows: (SCC p.584, para 16) "16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2008) 4 PLJR 93] 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 appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] 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 appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition." [ See also: Madan Lal v. State of J&K, (1995) 3 SCC 486 : 1995 SCC (L&S) 712, Marripati Nagaraja v. State of A.P., (2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68, Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC
- 41 - LPA No.126/2022 & analogous cases 171 : (2008) 1 SCC (L&S) 1005 and K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515 : (2009) 2 SCC (L&S) 57].
The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.
17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.
18. The question of permissibility of giving weightage for "work experience" in government hospitals is also not the bone of contention in this case. Medicine being an applied science cannot be mastered by mere academic knowledge. Longer experience of a candidate adds to his knowledge and expertise. Similarly, government hospitals differ from private hospitals vastly for the former have unique infrastructural constraints and deal with poor masses. Doctors in such non- private hospitals serve a public purpose by giving medical treatment to swarms of patients, in return for a meagre salary. Hence, when placing emphasis on the requirement of work experience, there is no dispute on such recognition of government hospitals and private hospitals as distinct classes. Instead such recognition ensures that the doctors recruited in not-so-rich States like Bihar have the requisite exposure to challenges faced in those regions.
19. The appellant has thus rightly not challenged the selection procedure but has narrowed her claim to only against the respondents' interpretation of "work experience"
as part of merit determination. Since interpretation of a
- 42 - LPA No.126/2022 & analogous cases statute or rule is the exclusive domain of courts, and given the scope of judicial review in delineating such criteria, the appellant's challenge cannot be turned down at the threshold. However, we are not commenting specifically on the merit of the appellant's case, and our determination is alien to the outcome of the selection process. It is possible post what is held hereinafter that she be selected, or not. Statutory Interpretation
20. It is a settled canon of statutory interpretation that as a first step, the courts ought to interpret the text of the provision and construct it literally. Provisions in a statute must be read in their original grammatical meaning to give its words a common textual meaning. However, this tool of interpretation can only be applied in cases where the text of the enactment is susceptible to only one meaning. [Nathi Devi v. Radha Devi Gupta, (2005) 2 SCC 271, para 13.] Nevertheless, in a situation where there is ambiguity in the meaning of the text, the courts must also give due regard to the consequences of the interpretation taken.
21. It is the responsibility of the courts to interpret the text in a manner which eliminates any element of hardship, inconvenience, injustice, absurdity or anomaly. [G.P. Singh on Principles of Statutory Interpretation, 14th Edn., 2016, pp. 145-170.] This principle of statutory construction has been approved by this Court in Modern School v. Union of India [Modern School v. Union of India, (2004) 5 SCC 583, para 62:
2 SCEC 577], by reiterating that a legislation must further its objectives and not create any confusion or friction in the system. If the ordinary meaning of the text of such law is non-
conducive for the objects sought to be achieved, it must be interpreted accordingly to remedy such deficiency.
22. There is no doubt that executive actions like advertisements can neither expand nor restrict the scope or object of laws. It is therefore necessary to consider the interpretation of the phrase "government hospital" as appearing in the Rules. Two interpretations have been put forth before us which can be summarised as follows:
- 43 - LPA No.126/2022 & analogous cases (a.) Only hospitals run by the Government of Bihar.
(b). Hospitals run by the Bihar Government or its instrumentalities, as well as any other non-private hospital within the territory of Bihar.
The former interpretation to the term, as accorded to it by the respondents, forms a narrower class whereas the latter interpretation used by the appellant is broader and more inclusive."
76. It is equally settled that the eligibility and suitability are to be considered on the last date of receiving application unless the notification specify such date, reference in this regard, may be made to the judgment rendered by the Hon'ble Apex Court in the case of Dr. M.V. Nair Vrs. Union of India & Ors., reported in (1993) 2 SCC 429, wherein, at paragraph-9, it has been held as under:-
"9. In the above situation, it was necessary for the Tribunal to have recorded a finding on the correctness or otherwise of the above submission of the Union of India and Dr Nair. Without doing so, the Tribunal could not have set aside the appointment of Dr Nair to the said post. The Tribunal was also not justified in holding that Dr Bhatnagar was also equally qualified and eligible for the said post like Dr Nair when Dr Bhatnagar had himself come forward with the plea that he was not eligible and asked for grant of relaxation to make him eligible. The Tribunal, in our opinion, was also not justified in stating, in the direction granted by it, that inasmuch as Dr Bhatnagar "has by now become eligible in all respects under the recruitment rules, his suitability should be considered along with other eligible candidates and if he is found suitable for the appointment he should be appointed to the said post". It is well settled that suitability and eligibility have to be considered with reference to the last date for receiving the applications, unless, of course, the notification calling for applications itself specifies such a date."
77. Further, the Hon'ble Apex Court in the case of Harpal Kaur Chahal (Smt.) Vrs. Director, Punjab Instructions, Punjab & Anr.,
- 44 - LPA No.126/2022 & analogous cases reported in (1995) Suppl. 4 SCC 706, has held at paragraph-2 as under:-
"2. It is contended for the appellant that since the appellant had been appointed by the duly constituted Departmental Selection Committee and as on the date of interview since the appellant had the qualification, her selection and appointment cannot be said to be illegal. We find no force in the contention. It is to be seen that when the recruitment is sought to be made, the last date has been fixed for receipt of the applications. Such of those candidates who possessed of all the qualifications as on that date alone are eligible to apply for and to be considered for recruitment according to rules. Since the appellant had not possessed the Physical Training Instructor qualifications as on that date, her illegal consideration by the Board and recommendation for appointment and the appointment made in furtherance thereof are illegal. Therefore, we cannot accept the contention of the learned counsel in that behalf."
78. Further, the Hon'ble Apex Court in the case of Ashok Kumar Sharma and Ors. Vrs. Chander Shekhar & Anr., reported in (1997) 4 SCC 18, has held at paragraph-6 as under:-
"6. The review petitions came up for final hearing on 3-3- 1997. We heard the learned counsel for the review petitioners, for the State of Jammu & Kashmir and for the 33 respondents. So far as the first issue referred to in our Order dated 1-9-1995 is concerned, we are of the respectful opinion that majority judgment (rendered by Dr T.K. Thommen and V. Ramaswami, JJ.) is unsustainable in law. The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well-established one.
- 45 - LPA No.126/2022 & analogous cases A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan [1993 Supp (3) SCC 168 : 1993 SCC (L&S) 951 : (1993) 25 ATC 234] . The reasoning in the majority opinion that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and an error apparent on the face of the record. In our opinion, R.M. Sahai, J. (and the Division Bench of the High Court) was right in holding that the 33 respondents could not have been allowed to appear for the interview."
79. Likewise, the judgment rendered by the Hon'ble Apex Court in the case of State of Orissa & Anr. Vrs. Mamta Mohanty, reported in (2011) 3 SCC 436, wherein, at paragraph-43(B), it has been held as under:-
- 46 - LPA No.126/2022 & analogous cases "43(B). The candidates selected must be qualified as on the last date for making applications for the posts in question or on the date to be specifically mentioned in the advertisement/notification for the purpose. ..."
80. Here, in the given facts of the case that admittedly the writ petitioners had participated in selection process and when the recommendation was made of the candidates whose candidature was fit to be rejected at the threshold but the same was considered and the recommendations have been made and when the said fact came to the notice of the Appellants, they have approached this Court by filing the writ petitions.
81. The question of taking turn around so as to apply the principle of estoppel in the facts and circumstances of the given case will not be applicable for the reason that the candidature of the private respondents admittedly ought to have been rejected but only in order to accommodate them, first the JPSC has made a correspondence to the State authority for making recommendation for amendment in the rule so as to accommodate them and further when, the State has not acceded then, the commission itself has taken decision by granting relaxation.
82. These internal affairs cannot be known to the appellants and the same had only known to the appellants the day when the recommendation was made. Therefore, it is a question where the entire process of selection has been challenged after the decision of recommendation taken by commission and hence, the principle of taking turn around will not be applicable herein, rather, as per the ratio laid down by the Hon'ble Apex in the case of Dr. (Major) Meeta Sahai
- 47 - LPA No.126/2022 & analogous cases Vrs. State of Bihar & Ors. (supra) will govern the case wherein the candidate alleges mis-construction and exceeding the jurisdiction by the commission for the purpose of discriminating the appellants. Issue No.(ii), (iii)& (iv)& (vi)
83. There is no dispute that the world has faced the trauma of the Covid-19 Pandemic and the Hon'ble Apex Court has taken care of and so many orders have been passed for arresting the period of limitation too.
84. But the question is that whether the commission has got any power to take such decision with respect to the question of concern herein.
85. The power of the Public Service Commission is the advisory power. It is empowered to give advice to the Governor of any State on the following affairs:-
(i) On all matters related to the appointment of civil services of the Government.
(ii) The evaluation of efficiency and standard of candidates for appointment, promotion and transfer on all civil posts.
(iii) On all matters regarding the discipline and punctuality of the employees of the civil services.
(iv) The matters associated with the demands and benefits of employees working under the civil services and employees injured while on duty.
(v) It also has power to deal with the matters related to punishment majors of those employees who have
- 48 - LPA No.126/2022 & analogous cases violated the discipline or with all matters related to the interest of the government employees.
86. Thus, the Constitution of India has simply made the State Public Service Commission as advisory institution which provides advice on the subject sent to it by the Governor of the State. But acceptance or denial of advice is to absolute discretion of the Government.
87. This is because we are living in the democratic set up by adopting a responsible self-governing government wherein the powers and responsibilities of the council of the Ministers cannot be delegated to its employees or any other organization.
88. Admittedly, the State Commission is the creation of Article 315 of the Constitution of India and being a constitutional body, the commission is not supposed to take any decision regarding relaxing the condition of advertisement which is based upon the rule, since, the power to relax the rule is only upon the State and not upon the Commission, reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in the case of Delhi Subordinate Services Selection Board Vrs. Praveen Kumar, reported in (2016) SCC Online SC 1549, wherein, at paragraph-8, it has been held as under:-
"8. The High Court in Sachin Gupta case [Sachin Gupta v. Delhi Subordinate Services Selection Board, 2008 SCC OnLine Del 989 also accepted the well-recognised principle that it is the employer's prerogative to decide the age-limit and academic suitability of candidates which they wish to employ and so long as the same are not contradictory to the academic eligibility as prescribed by the NCTE Act, any challenge to the same, merely
- 49 - LPA No.126/2022 & analogous cases because it renders some candidates ineligible, ought to be rejected. Fixing of such age-limit for a given post is a matter of policy as held by this Court in Union of India v. Shivbachan Rai [Union of India v. Shivbachan Rai, (2001) 9 SCC 356."
89. Further, the Hon'ble Apex Court in the case of Ashok Kumar Uppal And Ors. Vs. State of J & K & Ors., (1998) 4 SCC 179, wherein, it has been observed that power to relax the recruitment rules or any other rules made by the State Government under Article 309 of the Constitution etc. is conferred to meet any emergent situation where injustice might have been caused or is likely to be caused to any individual or class of employees and where working of a rule might become impossible. The said power, in service jurisprudence and in administrative law is necessarily and should be conceded to the employer, particularly in the case of the Government, a model employer, who has to deal with hundreds of employees.
90. The Hon'ble Apex Court further in the case of J.C. Yadav v. State of Haryana, [(1990) 2 SCC 189 : 1990 SCC (L&S) 218], wherein, it has been held as under:-
"The relaxation of the Rules may be to the extent the State Government may consider necessary for dealing with a particular situation in a just and equitable manner. The scope of Rule is wide enough to confer power on the State Government to relax the requirement of Rules in respect of an individual or class of individuals to the extent it may consider necessary for dealing with the case in a just and equitable manner. The power of relaxation is generally contained in the Rules with a view to mitigate undue hardship or to meet a particular situation. Many a time strict application of service rules create a situation where a particular
- 50 - LPA No.126/2022 & analogous cases individual or a set of individuals may suffer undue hardship and further there may be a situation where requisite qualified persons may not be available for appointment to the service. In such a situation the Government has power to relax Requirement of Rules. The State Government may in exercise of its powers issue a general order relaxing any particular rule with a view to avail the services of requisite officers. The relaxation even if granted in a general manner would ensure to the benefit of individual officers."
91. Herein, the Commission being the constitutional body was only to accept the requisition and to proceed for the process of selection based upon the recruitment rules but instead of doing so, the commission has exercised the power as if that, the commission has got administrative power to make relaxation, which according to our considered view, is not available with the commission.
92. So far as the question of Covid-19 Pandemic is concerned, reference is need to be made regarding granting relaxation in age in the judicial service examination of the NCT, Delhi and when it was not acceded to, the concerned candidates had preferred writ petition before the Delhi High Court. The matter has travelled to the Hon'ble Apex Court and Hon'ble Supreme Court has considered the ground of Pandemic Covid-19 to be a genuine ground, due to that reason, the process of selection could not be initiated for two years and in the meanwhile, the age of the candidates had expired and in that view of the matter, it is the Court of law wherein the direction was issued for relaxing the age, reference in this regard be made to the Judgment rendered by the Hon'ble Apex Court in the case of High Court of Delhi Vrs. Devina Sharma, reported in (2022) 4 SCC 643, wherein, at paragraphs-17 and 18, it has been held as under:-
- 51 - LPA No.126/2022 & analogous cases "17. The time schedule for conducting the recruitment process to the judicial service has been stipulated by the judgment of this Court in Malik Mazhar Sultan (3) v. U.P. Public Service Commission [Malik Mazhar Sultan (3) v. U.P. Public Service Commission, (2008) 17 SCC 703 : (2010) 1 SCC (L&S) 942] . The object and purpose of the directions of this Court has been to ensure that the recruitment process for the judicial service is conducted on schedule every year, subject to the rules of each High Court. The High Court of Delhi held its last examination for recruitment to DJS in 2019. Admittedly, no examination has been held in 2020 or in 2021. The examination for 2020 could not be conducted since the process for 2019 was still to be completed. The examination for 2020 could not be held due to the onset of the COVID-19 Pandemic. In this backdrop, since the examination was not conducted for two recruitment years, the High Court has after considering the issue stated before this Court through the learned Senior Counsel that as a one-time measure, this Court may accept the suggestion that candidates who would have qualified for the examinations were they to be held on schedule for recruitment years 2020 and 2021 in terms of the rules as they then stood, may be permitted to appear for the ensuing examinations.
18. Having regard to the fact that the recruitment examination for DJS has been last held in 2019 and two recruitment years have elapsed in the meantime, we are of the view that the suggestion of the High Court should be accepted for this year. The consequence of the acceptance of the suggestion by this Court, would be that candidates who would have fulfilled the upper age limit of 32 years, for the recruitment years 2020 and 2021 would be eligible to participate in the examination for the ensuing recruitment year 2022. The age bar which they would now encounter is not of their own volition. The real element of hardship faced by such
- 52 - LPA No.126/2022 & analogous cases candidates has been remedied by the High Court and there is no reason for this Court not to accept the suggestion. The examination cannot however, be postponed indefinitely nor can the candidates who have applied be left in a state of uncertainty. The existing candidates can have no grievance by the widening of the competition. In order to facilitate this exercise, we accept the suggestion of the High Court that the last date for the receipt of application forms shall be extended to 3-4-2022 and the examination shall be held on 24-4-2022. We direct that no impediment shall be caused in the conduct of the examination and no court shall issue any order of stay at variance with or contrary to the above directions of this Court."
93. The purpose of referring this judgment is that exactly on the similar ground of Covid-19 Pandemic, the affected person had approached the Court of law for seeking such relief, but herein, the private respondents have not approached any Court of law for seeking direction in this regard instead they have approached the commission basis upon which, the commission has taken decision.
94. This Court, therefore, is of the view that the ground as has been taken of Covid-19 Pandemic is considered to be genuine ground but the approach which has been adopted by the private respondents, is not proper.
95. The Commission, even though, having no jurisdiction to relax the rule but conducted a meeting and granted relaxation, the question arises herein that under which provision the relaxation has been provided?
96. This Court has posed a pin-pointed question upon Mr. Sanjoy Piprawall, learned counsel appearing for the JPSC as to under which
- 53 - LPA No.126/2022 & analogous cases provision of law, the candidature of such candidates was accepted by granting relaxation in the mandatory condition.
97. The learned counsel for the JPSC has failed to point out any conferment of power.
98. There cannot be any conferment of power to the commission, since, the Commission is only to recommend the suitable candidate after conducting the recruitment process based upon the recruitment rules formulated by the State Government.
Issue No.(v)
99. The next question will be that whether the condition stipulated under the education qualification read with condition no.11(b), 11(m) & 11(n), can be considered to be directory or mandatory.
100. This Court after going through the condition as referred together, is of the view that the submission of the certificate obtained from the concerned Institute is a mandatory condition keeping the fact into consideration that the condition as referred in condition no.11(v) that certificate of concerned institute is mandatorily to be submitted along with the application form coupled with reference to the condition that in case of any incomplete application form, the application of such candidate is to be rejected.
101. The law is well settled that if any condition is there showing the consequence in adverse then such condition will be said to be mandatory, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Dalchand Vrs., Municipal Corporation, Bhopal & Anr., reported in (1984) 2 SCC 486, wherein, it has been held as under:-
- 54 - LPA No.126/2022 & analogous cases ".... .... ....There are no ready tests or invariable formulae to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very question whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. It is as well to realise that every prescription of a period within which an act must be done, is not the prescription of a period of limitation with painful consequences if the act is not done within that period. Rule 9(j) of the Prevention of Food Adulteration Act, as it then stood, merely instructed the Food Inspector to send by registered post copy of the Public Analyst's report to the person from whom the sample was taken within 10 days of the receipt of the report. Quite obviously the period of 10 days was not a period of limitation within which an action was to be initiated or on the expiry of which a vested right accrued. The period of 10 days was prescribed with a view to expedition and with the object of giving sufficient time to the person from whom the sample was taken to make such arrangements as he might like to challenge the report of the
- 55 - LPA No.126/2022 & analogous cases Public Analyst, for example, by making a request to the Magistrate to send the other sample to the Director of the Central Food Laboratory for analysis. Where the effect of non-compliance with the rule was such as to wholly deprive the right of the person to challenge the Public Analyst's report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ large. .Where no prejudice was caused there could be no cause for complaint. I am clearly of the view that Rule 9(j) of the Prevention of Food Adulteration Rules was directory and not mandatory. The decisions in Public Prosecutor v. Murlidhar [1977 Cr LJ 1634 (AP) :
1977 Andh LT 34 : 1977 MLJ (Cri) 205] and Bhola Nath v. State [1977 Cr LJ 154 (Cal) : (1977) 1 FAC 38] to the extent that they hold that Rule 9(j) was mandatory are not good law. The petition is dismissed.
102. Likewise, the Hon'ble Apex Court in the case of Patil Automation (P) Ltd. & Ors. Vrs. Rakheja Engineers (P) Ltd., reported in (2022) 10 SCC 1, wherein, it has been held at paragraph- 34, which reads as under:-
34. In Bhikraj Jaipuria v. Union of India [Bhikraj Jaipuria v. Union of India, AIR 1962 SC 113] , a Bench of five learned Judges dealt with the question arising out of Section 175(3) of the Government of India Act, 1935. The Court, inter alia, had to deal with the question, whether enactment should be considered directory or obligatory :
(AIR p. 119, para 17) "17. The question still remains whether the purchase orders executed by the Divisional Superintendent but which were not expressed to be made by the Governor-
General and were not executed on behalf of the Governor-General, were binding on the Government of India. Section 175(3) plainly requires that contracts on behalf of the Government of India shall be executed in the form prescribed thereby; the section however does
- 56 - LPA No.126/2022 & analogous cases not set out the consequences of non-compliance. Where a statute requires that a thing shall be done in the prescribed manner or form but does not set out the consequences of non-compliance, the question whether the provision was mandatory or directory has to be adjudged in the light of the intention of the legislature as disclosed by the object, purpose and scope of the statute. If the statute is mandatory, the thing done not in the manner or form prescribed can have no effect or validity :
if it is directory, penalty may be incurred for non- compliance, but the act or thing done is regarded as good. As observed in Maxwell on Interpretation of Statutes, 10th Edn., p. 376:
'It has been said that no rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no invalidating consequence in its disregard, or as imperative, with an implied nullification for disobedience, beyond the fundamental one that it depends on the scope and object of the enactment. It may perhaps be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is in the main governed by considerations of convenience and justice, and when that result would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the legislature. The whole scope and purpose of the statute under consideration must be regarded.' Lord Campbell in Liverpool Borough Bank v. Turner [Liverpool Borough Bank v. Turner, (1860) 30 LJ Ch 379 : 45 ER 715] observed : (ER p. 718) '... No universal rule can be laid down ... as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for
- 57 - LPA No.126/2022 & analogous cases disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.' "
103. Further, the Hon'ble Apex Court in the case of Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Others, reported in (2003) 2 SCC 111, wherein, at paragraph-42 and 43, it has been held as under:-
"42. We are not oblivious of the law that when a public functionary is required to do a certain thing within a specified time, the same is ordinarily directory but it is equally well settled that when consequence for inaction on the part of the statutory authorities within such specified time is expressly provided, it must be held to be imperative.
43. In Sutherland's Statutory Construction, 3rd Edn., Vol. 3, at p. 102 the law is stated as follows:
"... unless the nature of the act to be performed, or the phraseology of the statute is such that the designation of time must be considered a limitation of the power of the officer".
At p. 107 it is pointed out that a statutory direction to private individuals should generally be considered as mandatory and that the rule is just the opposite to that which obtains with respect to public officers. Again, at p. 109, it is pointed out that often the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by an expression in the statute itself of the result that shall follow noncompliance with the provision. At p. 111 it is stated as follows:
"As a corollary of the rule outlined above, the fact that no consequences of non-compliance are stated in the statute, has been considered as a factor tending towards a directory
- 58 - LPA No.126/2022 & analogous cases construction. But this is only an element to be considered, and is by no means conclusive."
104. This Court, on the basis of the condition as stipulated in condition no.11(v) and taking together the condition stipulated under condition no.11(b), 11(m) & 11(n) of the Advertisement No.04/2020 is of the view that the condition so stipulated is mandatory.
105. Further, it would be evident from the action of the JPSC that the condition as reflected in the rule has been sought to be amended and when it was not amended then decision was taken to grant relaxation which also suggests and clarifies that the said condition was mandatory.
Issue No.(vii)
106. In the online application form, the declaration has been given that the private respondents were having the certificate but admittedly, no certificate was there issued from the concerned institute prior to 10.08.2020, since, it was issued only on 22.08.2020.
107. The question is that on what basis, the declaration has been given of having the said certificate by making reference of 'yes' in the online application form. Is it not fraud/mis-representation on the part of the concerned candidates?
108. The answer of this Court is that it is active concealment of fact. Therefore, it needs to refer herein the definition of 'fraud' as has been defined under Section 17 of the Contract Act which means that any active concealment of fact will be treated to be fraud, for ready reference, Section 17 of the Contract Act reads as under:-
"17. "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive
- 59 - LPA No.126/2022 & analogous cases another party thereto of his agent, or to induce him to enter into the contract:--
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent.
Explanation.--Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak2 , or unless his silence is, in itself, equivalent to speech."
109. It is the settled position of law that the fraud vitiates the very solemnity of the act, in case of the fraud, the entire action will be said to be suffer from impropriety, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Devendra Kumar vs. State of Uttaranchal and Ors., reported in (2013) 9 SCC 363 wherein it has been held at paragraphs-13, 14, 15, 16, 17 & 18, which reads hereunder as :
"13. It is a settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of the law. "Fraud avoids all judicial acts, ecclesiastical or temporal." (Vide S.P. Chengalvaraya Naidu v. Jagannath.) In Lazarus Estates Ltd. v. Beasley the Court observed without equivocation that: (QB p. 712) "... No judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything."
14. In A.P. State Financial Corpn. v. GAR Re-Rolling Mills and State of Maharashtra v. Prabhu this Court has observed that a writ court, whileexercising its equitable jurisdiction,
- 60 - LPA No.126/2022 & analogous cases should not act to prevent perpetration of a legal fraud as courts are obliged to do justice by promotion of good faith.
"Equity is, also, known to prevent the law from the crafty evasions and subtleties invented to evade law."
15. In Shrisht Dhawan v. Shaw Bros., it has been held as under: (SCC p. 553, para 20) "20. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct."
16. In United India Insurance Co. Ltd. v. Rajendra Singh this Court observed that "fraud and justice never dwell together"
(fraus et jus nunquam cohabitant) and it is a pristine maxim which has not lost temper over all these centuries. A similar view has been reiterated by this Court in M.P. Mittal v. State of Haryana.
17. In Ram Chandra Singh v. Savitri Devi this Court held that "misrepresentation itself amounts to fraud", and further held: (SCC p. 327, para 18) "18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad." The said judgment was reconsidered and approved by this Court in Kendriya Vidyalaya Sangathan v. Girdharilal Yadav.
18. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit those persons who have frauded or misrepresented themselves. In such circumstances the court should not perpetuate the fraud by entertaining petitions on their behalf. In Union of India v. M. Bhaskaran this Court, after placing reliance upon and approving its earlier judgment in Vizianagaram Social Welfare Residential School Society v.
- 61 - LPA No.126/2022 & analogous cases M. Tripura Sundari Devi, observed as under: (M. Bhaskaran case, SCC p. 104, para 6) If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a court of law as the employment secured by fraud renders it voidable at the option of the employer."
110. Herein, since, the private respondents were not having the certificate since was issued only on 22.08.2020, while the last date of submission of application form was 10.08.2020, therefore, the declaration so given of possessing the said certificate prior to submission of application form, i.e., 10.08.2020, according to our considered view, a wrong declaration and as such, as per the condition stipulated under condition no.11(m), the candidature of such candidates ought to have been rejected but instead of doing so, their candidature has been accepted by relaxing the mandatory condition on the basis of the decision taken by the commission in order to meet out the mandatory condition stipulated in the advertisement.
111. The further law is that if any condition is there in the advertisement, the same is strictly to be adhered to, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Ramesh Kumar Vrs. High Court of Delhi & Anr., reported in AIR 2010 SC 3714, wherein, at paragraph-13, it has been held as under:-
"13. In Durgacharan Misra v. State of Orissa [(1987) 4 SCC 646 : 1988 SCC (L&S) 36 : (1987) 5 ATC 148 : AIR 1987 SC 2267] this Court considered the Orissa Judicial Service Rules which did not provide for prescribing the minimum cut-off marks in interview for the purpose of selection. This Court held that in absence of the enabling provision for fixation of
- 62 - LPA No.126/2022 & analogous cases minimum marks in interview would amount to amending the Rules itself. While deciding the said case, the Court placed reliance upon its earlier judgments in B.S. Yadav v. State of Haryana [1980 Supp SCC 524 : 1981 SCC (L&S) 343 : AIR 1981 SC 561] , P.K. Ramachandra Iyer v. Union of India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214 : AIR 1984 SC 541] and Umesh Chandra Shukla v. Union of India [(1985) 3 SCC 721 : 1985 SCC (L&S) 919 : AIR 1985 SC 1351] , wherein it had been held that there was no "inherent jurisdiction" of the Selection Committee/Authority to lay down such norms for selection in addition to the procedure prescribed by the Rules. Selection is to be made giving strict adherence to the statutory provisions and if such power i.e. "inherent jurisdiction" is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the Rules is likely to cause irreparable and irreversible harm."
112. Further, the Hon'ble Apex Court in the case of Yogesh Kumar & Ors. Vrs. Govt. of NCT, Delhi & Ors., reported in (2003) 3 SCC 548, wherein, at paragraph-8, it has been held as under:-
"8. .... .... .... Deviation from the rules allows entry to ineligible persons and deprives many others who could have competed for the post. Merely because in the past some deviation and departure was made in considering the BEd candidates and we are told that was so done because of the paucity of TTC candidates, we cannot allow a patent illegality to continue. .... .... ...."
113. Likewise, the Hon'ble Apex Court in the case of Chief Manager, Punjab National Bank & Anr. Vrs. Anit Kumar Das, reported in (2021) 12 SCC 80, has held at paragraph-17.1 as under:-
"17.1. In Yogesh Kumar [Yogesh Kumar v. State (NCT of Delhi), (2003) 3 SCC 548 : 2003 SCC (L&S) 346] , it is observed and held by this Court that recruitment to public service should be held strictly in accordance with the terms of
- 63 - LPA No.126/2022 & analogous cases advertisement and the recruitment rules, if any. Deviation from the rules allows entry to ineligible persons and deprives many others who could have competed for the post."
Issue No.(viii) & (ix)
114. The further question is that when the State has accepted the irregularity/illegality committed by the commission, basis upon which, the recommendation so made by the commission, has been rejected vide communication dated 07.02.2022, therefore, there is now no dispute that the commission has not acted with fairness and transparency so as to meet out the principle laid down under Article 14 and 16 of the Constitution of India, for ready reference and in order to avoid any confusion, the decision so taken by the State rejecting the recommendation dated 07.02.2022, is being referred as under:-
>kj[k.M ljdkj uxj fodkl ,oa vkokl foHkkx vkns"k la0& 01@LFkk0@"k0LFkk0fu0 ¼fu;qfDr½&30@2015 u0fo0vk0 18 jk¡ph] fnukad 07@02@22 uxj fuos"ku lsok varxZr lgk;d uxj fuos"kd ds 77 fjDr inksa ij fu;qfDr dh vuq"kalk miyC/k djkus gsrq vf/k;kpuk dkfeZd] iz"kklfud lq/kkj rFkk jktHkk'kk foHkkx] >kj[k.M] jk¡ph ds ek/;e ls >kj[k.M yksd lsok vk;ksx] jk¡ph dks Hksth x;h FkhA 2- mDr vkyksd esa >kj[k.M yksd lsok vk;ksx] jk¡ph ds i=kad&943 fnukad& 05-04-2021 ds }kjk 43 vH;fFkZ;ksa dh vuq"kalk foHkkx dks lefiZr dh x;hA 3- bl Øe esa dfri; vH;fFkZ;ksa }kjk lgk;d uxj fuos"kd ds in gsrq >kj[k.M yksd lsok vk;ksx }kjk tkjh es/kk lwph ds fo:) ekuuh; >kj[k.M mPp U;k;ky;] jk¡ph esa ;kfpdk nk;j dh xbZ gSA lkFk gh] vH;fFkZ;ksa }kjk foHkkx esa ifjokn i= lefiZr djrs gq, dgk x;k fd lgk;d uxj fuos"kd ds in ij fu;qfDr gsrq izdkf"kr foKkiu la[;k&04@2020 ds vuqlkj vH;fFkZ;ksa ds ikl Associate Membership of Institute of Town Planners (India), New Delhi dk izek.k i= gksuk vfuok;Z "kS{kf.kd ;ksX;rk Fkh] ijUrq Form Apply djus dh vafre frfFk rd Hkh ftu vH;fFkZ;ksa ds ikl ITPI dk Associate Membership ugha Fkk] mudk Hkh vafre :i ls p;u lgk;d uxj fuos"kd ds in ij dj fy;k x;k gSA mi;qZDr vafdr ifjokn i= ds vkyksd esa foHkkxh; i=kad&1462 fnukad& 13-04-2021 ds }kjk >kj[k.M yksd lsok vk;ksx ls fLFkfr Li'V djus dk funs"k fn;k x;kA 4- >kj[k.M yksd lsok vk;ksx ds i=kad&2442 fnukad&25-10-2021 ds
- 64 - LPA No.126/2022 & analogous cases }kjk ifjokn i= ij fLFkfr Li'V djrs gq, dgk x;k fd vk;ksx }kjk vH;fFkZ;ksa ls izkIr i=ksa ds vkyksd esa Covid-19 egkekjh ls mRiUu ifjfLFkfr ij xaHkhjrkiwoZd fopkj djrs gq, ;g fu.kZ; fd;k x;k fd dqy 186 oSls vH;fFkZ;ksa ftudk ITPI, New Delhi ls lkgp;Z lnL;rk izek.k&i= vkWuykbZu vkosnu djus dh vafre frfFk&10-08-2020 ds i"pkr ,oa vk;ksx }kjk fu/kkZfjr vfHkys[k dh vafre frfFk 08-09-2020 ds iwoZ izkIr fd;k x;k gS] mUgsa Hkh vkSicaf/kd :i ls lk{kkRdkj esa lfEefyr fd;k tk;A 5- mYYks[kuh; gS fd vk;ksx ds }kjk vkosnu izkIr djus dh vafre frfFk 10-08-2020 ds i'pkr vH;fFkZ;ksa ls vfHkys[k izkIr fd;k x;k] ftlls oSls vH;FkhZ] tks vkosnu Hkjus dh vafre frfFk rd U;wure "kS{kf.kd ;ksX;rk@vgÙkkZ /kkfjr ugha djrs Fks] og Hkh vk;ksx }kjk vk;ksftr lk{kkRdkj esa lfEefyr gks x;sA ifj.kkeLo:i bl folaxfr ds fo:) dbZ ekeys ekuuh;
mPp U;k;ky; esa nk;j fd;s x;s gSaA 6- vr,o lE;d fopkjksijkar lgk;d uxj fuos"kd ds in ij >kj[k.M yksd lsok vk;ksx ds i=kad&943 fnukad&05-04-2021 ds }kjk dh xbZ vuq"kalk dks vLohd`r fd;k tkrk gSA g0 07@02@22 ¼fou; dqekj pkScs½ ljdkj ds lfpoA
115. Now, further issue is that as to whether at the cost of the genuine candidate will it be proper for this Court to pass direction for a fresh selection by notifying the advertisement.
116. The law is well settled that for some of the candidates who have committed any malpractices or any irregularities by coming in the way of process of selection, the genuine candidates cannot be allowed to suffer, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Sachin Kumar & Ors Vs. Delhi Subordinate Service Selection Board (DSSSB) & Ors., reported in [(2021) 4 SCC 631], wherein, at paragraph-35, it has been held as under:-
"35.The rival submissions now needs to be analysed. F. The position in law
35. In deciding this batch of SLPs, we need not reinvent the wheel. Over the last five decades, several decisions of this Court have dealt with the
- 65 - LPA No.126/2022 & analogous cases fundamental issue of when the process of an examination can stand vitiated. Essentially, the answer to the issue turns upon whether the irregularities in the process have taken place at a systemic level so as to vitiate the sanctity of the process. There are cases which border upon or cross over into the domain of fraud as a result of which the credibility and legitimacy of the process is denuded. This constitutes one end of the spectrum where the authority conducting the examination or convening the selection process comes to the conclusion that as a result of supervening event or circumstances, the process has lost its legitimacy, leaving no option but to cancel it in its entirety. Where a decision along those lines is taken, it does not turn upon a fact- finding exercise into individual acts involving the use of malpractices or unfair means. Where a recourse to unfair means has taken place on a systemic scale, it may be difficult to segregate the tainted from the untainted participants in the process. Large-scale irregularities including those which have the effect of denying equal access to similarly circumstanced candidates are suggestive of a malaise which has eroded the credibility of the process. At the other end of the spectrum are cases where some of the participants in the process who appear at the examination or selection test are guilty of irregularities. In such a case, it may well be possible to segregate persons who are guilty of wrongdoing from others who have adhered to the rules and to exclude the former from the process. In such a case, those who are innocent of wrongdoing should not pay a price for those who are actually found to be involved in irregularities. By segregating the wrongdoers, the selection of the untainted candidates can be allowed to pass muster by taking the selection process to its logical conclusion. This is not a mere matter of
- 66 - LPA No.126/2022 & analogous cases administrative procedure but as a principle of service jurisprudence it finds embodiment in the constitutional duty by which public bodies have to act fairly and reasonably. A fair and reasonable process of selection to posts subject to the norm of equality of opportunity under Article 16(1) is a constitutional requirement. A fair and reasonable process is a fundamental requirement of Article 14 as well. Where the recruitment to public employment stands vitiated as a consequence of systemic fraud or irregularities, the entire process becomes illegitimate. On the other hand, where it is possible to segregate persons who have indulged in malpractices and to penalise them for their wrongdoing, it would be unfair to impose the burden of their wrongdoing on those who are free from taint. To treat the innocent and the wrongdoers equally by subjecting the former to the consequence of the cancellation of the entire process would be contrary to Article 14 because unequals would then be treated equally. The requirement that a public body must act in fair and reasonable terms animates the entire process of selection. The decisions of the recruiting body are hence subject to judicial control subject to the settled principle that the recruiting authority must have a measure of discretion to take decisions in accordance with law which are best suited to preserve the sanctity of the process. Now it is in the backdrop of these principles, that it becomes appropriate to advert to the precedents of this Court which hold the field.
117. Recently, the Hon‟ble Court further in the case of Tanvir Singh Sodhi & Ors. Vs. State of Jammu and Kashmir & Ors., [2023 SCC OnLine SC 344], similar view was taken, relevant paragraph of which is quoted as under:
"78. In light of the pertinent selection procedure that was
- 67 - LPA No.126/2022 & analogous cases followed, we are unable to hold that the same was mechanical or casual or suffered from irregularities which were so grave or arbitrary in nature so as to justify quashing the entire selection process. Further, we are unable to trace the requirement of individual rolls being signed and verified by the members of the Selection Board, to any statute or rule. Therefore, we cannot sustain the finding of the High Court that the entire selection process was vitiated by such irregularity. The High Court was not justified in quashing and setting aside the entire selection process, more so when sixty- four candidates including the appellants had been serving on the said post for over a decade."
118. Here, in the facts and circumstances of the case that when the State has admitted the fact and based upon the documents that the illegality has been committed in accepting the candidature of the private respondents which is the decision taken only when the writ petitions again filed before this Court, meaning thereby, the acceptance of candidature of the writ petitioners who even though were not eligible to be considered by rejecting their candidature at the threshold, in view of the mandatory condition as stipulated under condition no.11(b)(m)(n) of the advertisement/rule but they have been accommodated and not only accommodated, rather, their names have also been recommended for appointment.
119. The said recommendation is in conflict with the interest of the appellants, since, the claim of the appellants is that if the private respondents have not been recommended, rather, if their candidature would have been rejected at the threshold then, certainly the candidature of the appellants would have been recommended.
- 68 - LPA No.126/2022 & analogous cases
120. This Court, therefore, is of the view that for the irregularity committed on the part of some of the candidates, based upon which, if any illegality has been committed by the constitutional functionary, as is being admitted by the State, then question is why the fresh process is to be initiated by issuing the advertisement and why at the cost of the genuine candidates.
121. There is no dispute that while making the public employment, the object of Article 16(1) coupled with the principle laid down under Article 14 of the Constitution of India, is required to be followed. But the commission, a constitutional body has failed to discharge its constitutional obligation by exceeding its jurisdiction in taking decision of relaxing the condition of rule/advertisement and thereby, the entire process of selection has been delayed for its illegal action.
122. This Court, based upon the aforesaid reasoning, is of the view that the candidature of private respondents including all 186 candidates who were not found to be eligible on the day when the application form was submitted, is required to be rejected due to not possessing the certificate which is mandatory condition and thereafter, the candidature of genuine candidates is required to be considered and fresh recommendation is required to be made.
123. Accordingly, all the issues as referred hereinabove are being answered.
124. Accordingly, this Court after having discussed the factual aspect as above and coming to the order passed by the learned Single Judge, which is the subject of the instant appeals, has found therefrom that the principle of turn around has not properly been applied by taking
- 69 - LPA No.126/2022 & analogous cases into consideration the facts and circumstances.
125. Further, the learned Single Judge has also not appreciated the fact that the JPSC has got no jurisdiction to relax the rules of recruitments/conditions of advertisement.
126. Therefore, the order impugned so far as it relates to showing no interference with the acceptance of candidature of private respondents, is hereby quashed and set aside.
127. In consequence thereof, direction is being issued upon the Commission to prepare a fresh recommendation after weeding out the candidature of those 186 candidates who have obtained the required certificate from I.T.P.I., New Delhi after the last date of submission of form, i.e., 10.08.2020 and refer the same to the State Government.
128. Accordingly, the order passed by the learned Single Judge in W.P.(S) Nos.1413 of 2021, 1516 of 2021 and 1517 of 2021 is hereby quashed and set aside.
129. In the result, the instant letters patent appeal being L.P.A. Nos.126 of 2022, 129 of 2022 and 135 of 2022 stand allowed.
130. The candidature of such candidates who are having the Institute of Town Planner (India) certificate prior to 10.08.2020 and whose application form is in consonance with the condition stipulated under condition no.5 of the advertisement, needs to be accepted.
131. In view thereof, W.P.(S) Nos.5366 of 2021, 889 of 2022, 1007 of 2022, 1351 of 2022 and 1781 of 2022 stand disposed of with the direction upon the Commission to prepare fresh list on scrutinizing the candidature of writ petitioners of these writ petitions. If they are not in the list of 186 candidates, rather, they are having the Institute of Town
- 70 - LPA No.126/2022 & analogous cases Planner (India) membership certificate prior to 10.08.2020, their candidature needs to be considered for the purpose of preparing a panel of recommendation.
132. The Commission is further directed to scrutinize the application form of the candidates for the purpose of acceptance of their candidature and if it is found that the candidates had submitted their application form along with the certificate of Institute of Town Planner which has been issued prior to 10.08.2020, their cases is to be considered.
133. Further, the Commission is directed to reject the candidature of such candidates whose application form is not in order, i.e., without any required certificate issued by the concerned department or issued after the cut-off date, i.e., last date of submission of application form.
134. The Chairman, Jharkhand Public Service Commission is directed to conclude the selection process by constituting a fresh Committee by taking care of the fact that the earlier member of the Committee may not be the member of fresh one.
135. Before parting with the order, this Court is constrained to observe herein that the Jharkhand Public Service Commission has exceeded its jurisdiction and as per the discussion made hereinabove, is for extraneous reason that is only to accommodate the candidates who have not approached the Commission with the clean hands.
136. The J.P.S.C., while doing so, has not even considered its domain, due to which, the entire selection process has lingered.
137. The genuine candidates have been made to suffer for no fault of their own. Due to non-selection of the Town Planner, the public utility
- 71 - LPA No.126/2022 & analogous cases service has also been made to suffer.
138. This Court, in view of the aforesaid fact, is of the view that the Chairman, Jharkhand Public Service Commission is to fix accountability upon the members of the Committee, who had assigned the duty for making recommendation for selection to the post of Town Planner.
139. The State is also directed to look into the matter, so that, the very majesty of the constitution of the Commission, as per the Constitutional requirement, be maintained.
140. Let such exercise be completed within the period of two months from the date of receipt/production of copy of this order.
141. In consequent to disposal of these appeals as also the writ petitions, pending Interlocutory Application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
I agree (Navneet Kumar, J.)
(Navneet Kumar, J.)
Rohit/- A.F.R.