Jharkhand High Court
The State Of Jharkhand Through The ... vs Sanjeet Kumar Tiwaryn And Others on 27 June, 2014
Equivalent citations: 2014 (3) AJR 403
Author: R.Banumathi
Bench: Chief Justice, S.Chandrashekhar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 10 of 2012
With
L.P.A. No. 11 of 2012
With
L.P.A. No. 13 of 2012
With
L.P.A. No. 14 of 2012
With
L.P.A. No. 187 of 2013
With
L.P.A. No. 189 of 2013
With
L.P.A. No. 190 of 2013
With
L.P.A. No. 191 of 2013
With
L.P.A. No. 192 of 2013
With
L.P.A. No. 182 of 2013
With
L.P.A. No. 183 of 2013
State of Jharkhand and Others (in all cases) ... ... Appellants
Vs.
Sri Anil Kumar Mehta (in L.P.A. No. 10 of 2012) ...... Respondent
Sri Ramdeo Oraon (in L.P.A. No. 11 of 2012) ...... Respondent
Sri Mithlesh Tiwari (in L.P.A. No. 13 of 2012) ...... Respondent
Sri Ravi Shankar Upadhyay (in L.P.A. No. 14 of 2012) ......Respondent
Basant Prasad and others (in L.P.A. No. 187 of 2013) ......Respondents
Md. Kudus Ansari & Anr. (in L.P.A. No. 189 of 2013) ...... Respondents
Satish Kumar Raukar & Ors. (in L.P.A. No. 190 of 2013)...... Respondents
Rabindra Ram & Ors (in L.P.A. No. 191 of 2013) ...... Respondents
Sanjeet Kumar Tiwari & Ors. (in L.P.A. No. 192 of 2013) ...... Respondents
Ramashray Prasad & Ors. (in L.P.A. No. 182 of 2013) ...... Respondents
Sanjeet Kumar Tiwari & Ors. (in L.P.A. No. 183 of 2013) ...... Respondents
CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR.JUSTICE S.CHANDRASHEKHAR
...
For the Appellants : M/s Ajit Kumar, AAG
K. Sunderam, JC to AAG
For Respondents : Mr. Ajay Kumar Pathak &
Mr. Ajit Kumar Dubey
CAV on 17.6.2014 Pronounced on _27.6.2014
R. Banumathi, CJ. These Letters Patent Appeals are directed
against the judgments passed by the learned Single Judge in
various writ petitions, in and by which the learned Single Judge
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has quashed the Clause in the Advertisement imposing a
condition that a candidate will be allowed to apply from only
one district and issued direction to the State of Jharkhand to
consider the case of respondents-writ petitioners for
appointment as Police Driver who were found disqualified on
the ground that they applied for the post of Police Driver in
more than one district.
2. The facts giving rise to these Letters Patent Appeals
are that Palamau Range Police Recruitment Board invited
applications for filling up the post of Police driver in three
districts of Palamau Range, namely, Palamau (48 vacancies),
Garhwa (60 vacancies) and Latehar (30 vacancies). In the
Advertisement, a restriction/condition was stipulated to the
effect that the applicant shall submit his/her application for
only one district and in case of submission of application for
more than one district, he/she shall be disqualified. As per the
Declaration Form contained in the Format of the application,
the candidates were to declare that they have submitted only
one application for the particular district only against the
advertisement and in case of finding anything incorrect the
candidature and appointment can be cancelled without any
notice.
3. In contravention of the condition stipulated in the
advertisement the writ petitioners/respondents filed
applications in more than one district. The details of writ
3
petitioners, who applied for more than one district are as
follows :
CASE NO. NAME OF THE APPLIED FOR
RESPONDNET DISTRICT(S)
LPA No. 10/2012 Anil Kumar Mehta Garhwa & Palamau.
{W.P.(S) NO. 2228/2011}
LPA No. 11/2012 Ramdeo Oraon Garhwa & Latehar.
{W.P.(S) NO. 1661/2011}
LPA No. 13/2012 Mithilesh TiwarI Garhwa & Palamau.
{W.P.(S) NO. 1658/2011}
LPA No. 14/2012 Ravi Shankar Latehar & Palamau.
{W.P.(S) NO. 16672011} Upadhyay
LPA No. 187/2013 Basant Prasad Garhwa & Palamau.
{W.P.(S) NO. 4623/2012}
LPA No. 189/2013 Md. Kudus Ansari Garhwa & Palamau
{W.P.(S) NO. 3594/2012}
LPA No. 190/2013 Satish Kumar Raukar Garhwa & Palamau
{W.P.(S) NO. 4698/2012}
LPA No. 191/2013 Rabindra Ram Garhwa and Palamau
{W.P.(S) NO. 109/2013}
LPA No. 192/2013 Sanjeet Kumar Tiwari Garhwa and Palamau
{W.P.(S) NO. 5483/2012}
LPA No. 182/2013 Ramashray Prasad Garhwa and Latehar
{W.P.(S) NO. 3950/2012}
LPA No. 183/2013 Sanjeet Kumar Tiwari Garhwa and Latehar
{W.P.(S) NO. 5347/2012}
4. All the writ petitioners/respondents participated in
the physical test and also in the written examination and
passed the examination. But all of them were disqualified on
the ground that they have submitted applications for more than
one district. Stating that they have secured marks more than
cut off marks of the selected candidates in the respective
district, the writ petitioners filed the writ petitions. The learned
Single Judge allowed the writ petitions, W.P(S) No.2228/2011
and other writ petitions, holding that no prejudice is caused to
the State even if the writ petitioners have applied for two
different districts especially when there is no rule prohibiting
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such type of application by a candidate. The learned Single
Judge further held that such condition cannot be imposed in
the public advertisement and that it tantamounts to arbitrary
condition. The learned Single Judge held that valuable rights
guaranteed under Articles 14 and 16 have been taken away by
inserting a condition in the advertisement which has no
backing or background of any rule or regulation nor any
executive instruction.
5. Some of the writ petitions, like
W.P(S) Nos.5347/2012, 3594/2012 were allowed by a brief
order by following the order passed in W.P(S) No.1459/2011
and W.P(S) No.2228/2011 and orders passed in similar other
writ petitions.
6. Being aggrieved by allowing of the writ petitions, the
State has preferred these Letters Patent Appeals.
7. The learned Additional Advocate General- Mr.Ajit
Kumar has drawn our attention to the advertisement and also
the format of application and submitted that there had been a
specific Clause in the advertisement stipulating the condition
that the candidate shall submit its application only for one
district and if the candidate has applied for more than one
district by submitting more than one application, his
candidature shall be cancelled and the respondents accepted
the said condition as laid down in the Advertisement but failed
to abide by the same. It was further submitted that the
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candidates had also given a false declaration before the
authorities at the time of submission of the form and in view of
the false declaration the respondents forfeited their candidature
and no right of appointment can be claimed by them. Learned
Additional Advocate General contended that the conduct of the
respondent in making such false declaration ought to have
been frowned upon and the learned Single Judge did not keep
in view the contravention of the condition in the advertisement
which the candidates have consciously acceded to. In support
of his contention, the learned Additional Advocate General
placed reliance upon the decision rendered in the case of
K.G.Ashok And Ors. v. Kerala Public Service Commission
And Ors. [(2001) 5 SCC 419].
8. Learned Senior Counsel, Mr.Pathak, at the outset
submitted that there is no wrong or illegality in the order
passed by the learned Single Judge. Learned Senior Counsel
contended that the respondents have secured more than the
cut-off marks secured by the selected candidates in the
respective district and while so, the respondents have been
unjustly deprived of the opportunity of getting selected and
such depriving of opportunity without any backing of statutory
rules or regulations is arbitrary and violative of Article 14 of the
Constitution of India and the learned Single Judge rightly
allowed the writ petitions and impugned orders warrant no
interference.
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9. Mr.Ajay Kumar Pathak, learned counsel appearing
for the some of respondents submitted that even though the
respondents applied for two districts, they have appeared in the
physical test, written test and also interview and obtained the
marks above the cut off marks in the respective district and
having allowed the respondents to participate in all the tests,
their candidature cannot be cancelled at a later stage. The
learned counsel further submitted that by preventing the
candidates from applying in more than one district, their
valuable rights guaranteed by Article 14 as well as 16 have
been taken away by inserting such a condition in the
advertisement.
10. We have carefully considered the submissions and
the orders of the learned Single Judge and the materials on
record.
11. In the Advertisement No.1/2010 dated 17.2.2010
(Annexure-1 to the writ petition), for recruitment of Police
Driver in Palamau Range, there had been a specific clause in
the advertisement that the candidate shall submit the
application only from one district and the candidature shall be
cancelled if more than one application is submitted by a
candidate. The said clause reads as under :
vkosnd viuk vkosnu ,d gh ftyk esa lefiZr djsaxsA ,d ls
vf/kd vkosnu nsus ij mUgsa v;ksX; djkj fn;k tk;sxkA
12. As per the above condition in the advertisement, the
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application to be submitted to only one District and if the
application is submitted to more than one District, the
candidature shall be cancelled. The candidates including the
respondents accepted the above condition in the advertisement
and applied thereafter but failed to abide by the same. It may
be noted that before applying for the post, none of the
candidate had chosen to challenge the said condition stipulated
in the advertisement.
13. The format of the application also contains a
declaration as per which a candidate has to declare that he has
submitted only one application for one district and in case it is
found incorrect his candidature and appointment shall be
cancelled without further notice. The copy of the application
forms submitted by the respondent- Md.Kudus Ansari
(respondent in LPA No.189 of 2013) for two districts i.e.
Palamau and Garhwa were produced before us which we have
perused. All the respondents had submitted their application
forms in more than one district with the said declaration. The
Hindi version of the said declaration reads as under:
"eSa djrk gwWa fd Åij nh xbZ lHkh lwpuk,a rFkk layXu
izek.k&i= lgh gSA eSa ;g Hkh izekf.kr djrk gwWa fd bl foKkiu ds
rgr eSaus dsoy blh ftyk esa dsoy ,d gh vkosnu i= fn, gSaA eSa ;g
ekeyk yafcr ugha gSA feF;k ik;s tkus ij esjh mEehnokjh ,oa fu;qfDr
fcuk fdlh lwpuk ds jn~n dh tk ldrh gSA"
14. Since the writ petitioners/respondents applied in
more than one district and submitted double forms, they have
8
failed to abide by the condition stipulated in the advertisement,
apart from making false declaration before the authorities at
the time of submission of the application that they have applied
for only one district, their candidature was cancelled.
15. Disqualification of the respondents for the post of
police driver was due to reason that they have submitted
double Forms and applied in two different districts in violation
of the condition stipulated in the advertisement and also for
the reason that although they had applied in more than one
district but made false declaration in the application form that
he had not so applied.
16. Learned Single Judge did not consider that there had
been a condition both in the advertisement as well as in the
application form that a candidate shall not apply for more than
one district. The writ court failed to consider that the
respondents are bound by the condition stipulated in the
advertisement which they have willingly accepted. While
submitting two applications for two different districts, the
respondents have made false declarations that they have
applied for only one district and such declaration is a false one.
When the candidates applied for the post of Police Driver, which
is a part of the disciplined force, the candidates were expected
to be truthful in making the declaration. Since the respondents
have violated the condition stipulated in the advertisement and
also made false declaration, their candidature/selection was
9
rightly cancelled by the authorities.
17. Similar factual situation arose in the judgment
reported in (2001) 5 SCC 419 [ K.G. Ashok and ors. vs.
Kerala Public Service Commission and ors.], wherein Kerala
Public Service Commission invited applications for a certain
number of posts of Junior Health Inspector
Grade-II in 14 districts of the State and application could be
filed by a candidate in any one of the 14 districts of his choice;
but if he applied for more than one district his application was
liable to be rejected on that ground alone. Similarly, application
of a person was liable to be rejected if he had applied in more
than one district but had made false declaration in the
application form that he had not so applied. The writ petitions
filed by the candidates who were disqualified on the ground
that they have applied for more than one district and made
false declaration was dismissed by the Kerala High Court. In
the appeal preferred by candidates, rejecting the contention of
the candidates, the Hon'ble Supreme Court held that the
restriction that the application should not be sent for more
than one district does not tantamount to denial of opportunity.
The Hon'ble Supreme Court in paragraphs- 12 and 13
held as follows :
"12. It appears that the Government introduced
decentralisation of recruitment to the lower ministerial
cadre in various departments and teaching posts in the
Education Department to district level vide GO (MS) No.
154/71 dated 27-5-1971 with a view to avoid administrative
inconvenience caused due to dearth of recruits in such
cadres in the northern districts of Kerala. It was with this
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intention that the Government stipulated conditions
restricting inter-district transfers vide government order
dated 27-5-1971. However, while implementing the
decentralisation, a lot of practical problems cropped up
before the Commission. If candidates are allowed to apply to
more than one district in response to the same notification,
they have to be allowed to appear in the tests to be
conducted in different districts on different dates and
subsequently, if they find a berth in the ranked list relating
to more than one district, they will have to be advised for
recruitment from more than one district if the occasion
arises. A candidate who is appointed in one district will
have to forego appointment in another district and the same
defeats the very purpose of the aforementioned government
order. The circumstances as detailed above would put the
Commission in an embarrassing situation and cause
administrative difficulties. The situation would assume
fresh dimensions if it is allowed to prevail in the present-
day districtwise selections. Therefore, the candidates are
permitted to apply for one district only in one notification.
It is in order to avoid such exigencies and to facilitate a
feasible selection process, the Commission issued orders to
the effect that candidates are prohibited from applying to
more than one district for the post notified in one and the
same notification. Accordingly, in the notification inviting
applications for districtwise selection, specific instructions
are incorporated to the effect that a candidate should not
send applications for the post in more than one district and
his failure to observe the same would entail rejection of
application of such a person apart from taking other
actions enumerated above."
"13. Though a candidate is prohibited from applying in more
than one district, he is free to choose any district of his
choice and thus the only thing is that the candidate is not
entitled to apply for the same post in more than one district
at a time. Here, the right of the candidate is not curtailed
as he/she is not prevented from choosing the district of
his/her choice. At the same time, if every person is permitted
to apply for all districts the number of applications received
by the Commission will be 14 times the number of
applications now being received with the result that the
Commission will be doing a futile exercise of selection work
in the other 13 districts, as a candidate can after all accept
appointment in only one district. Considering all these
aspects the Commission has imposed the restriction on
candidates from applying in more than one district in
response to one and the same notification. The restriction
does not tantamount to the denial of opportunity to a
candidate for applying to any post."
(Underlining added)
18. In so far as the candidates making false declaration
that they are not entitled for consideration on equitable
grounds, in K.G.Ashok's case in paragraphs-22 and 23 the
Hon'ble Supreme Court held as under :
"22. .......In our view, though in the present case written
test was conducted in all the 14 districts on one day but
that cannot be a ground for making any distinction.
Applications of some of the appellants have been rejected
on the ground that though they had applied for
appointment in more than one district but made a false
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declaration that they had applied in one district only
whereas in other cases they did apply in more than one
district and stated in the application that they had so
applied. According to the gazette notification both the
grounds were independently sufficient for rejection of
candidature of a candidate. It appears that the
Commission has been liberal in simply rejecting their
candidature for the time being and had not debarred them
from applying for any public post either for a specified
period or permanently inasmuch as for making a false
declaration though the appellants were liable to be
criminally prosecuted but no such steps have been taken
against them."
"23. Learned counsel for the appellants lastly submitted that
as number of appellants had crossed the upper age limit and
number of vacancies are available, without disturbing the
already selected candidates, the appellants can be considered
for selection on the basis of their placement in the merit list.
In our view seeing the conduct of the appellants in making
false declaration and applying in more than one district in
contravention of the gazette notification, it is not possible to
accede to their prayer even on equitable grounds. "
19. Learned Senior Counsel for the respondents
submitted that the respondents secured more marks than the
lastly selected candidates and thus, better qualified candidates
have been discriminated by depriving them of the opportunity.
It was submitted that in respect of the public employment,
there could be no discrimination among the candidates and the
learned Single Judge rightly held that the conditions stipulated
in the advertisement restricting the candidate from applying in
more than one district is arbitrary and violative of Articles 14
and 16 of the Constitution of India. It was further submitted
that the very valuable rights guaranteed under Articles 14 and
16 have been taken away from the respondents by inserting a
condition in the advertisement, which has no backing of any
rule or regulation.
20. Learned Single Judge was not right in observing that
the candidates were deprived of the opportunity of applying for
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more than one district and that their rights were curtailed.
Even though a candidate was prohibited from applying for more
than one district, he was free to choose any district of his
choice. Hence, the right of a candidate was not curtailed as he
was not prevented from choosing the district of his choice.
21. Observing that such condition restricting the
candidates not to apply for more than one district would not
amount to discrimination or violation of Article 14 of the
Constitution of India, in paragraph-18 the Hon'ble Supreme
Court in (2001) 5 SCC 419 [ K.G. Ashok and ors. vs. Kerala
Public Service Commission and ors.] held as follows :
"18. None of the aforesaid decisions has any application to
the facts of the present case as it has been simply
pleaded that Note (2) of the gazette notification was
violative of Article 14 of the Constitution. Neither before
the High Court nor before this Court necessary facts
showing discrimination have been pleaded inasmuch as
there is nothing to show that more meritorious persons
have been deprived of employment whereas persons of
inferior merit have been selected. Apart from the fact that
the necessary facts leading to discrimination have not
been pleaded, there is absolutely no material to show that
a case of discrimination is made out and accordingly the
submission of learned counsel is devoid of any
substance."
22. The ratio of the decision rendered in
K.G. Ashok's case (supra) squarely applies to the case on
hand. The judgment rendered in (2001) 5 SCC 419 [ K.G.
Ashok and ors. vs. Kerala Public Service Commission and
ors.] has not been placed before the writ Court.
23. It is also pertinent to note that before applying for
selection for the post of the Police Driver, none of the
candidates challenged the condition stipulated in the
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advertisement that the candidates shall submit their
applications only for one district and the candidature of a
candidate shall be cancelled, if more than one application is
submitted by a candidate. When the respondents and other
candidates have willingly accepted the said condition stipulated
in the advertisement, the respondents are bound by the same
and that they cannot raise the plea of discrimination or
violation of Article 14.
24. Learned Single Judge held that the condition
stipulated in the advertisement restricting a candidate to apply
only for one district and not allowing for two districts is
arbitrary and that it has no backing or background of any rule
or regulation, nor executive instruction.
25. In this regard, the learned Additional Advocate
General has drawn our attention to the Bihar Police Manual as
adopted by the State of Jharkhand and submitted that the
appointment of a constable is only district-wise and the
appointing authority is the respective Superintendent of Police
of the districts and the application can be made only for a
district. Placing reliance upon the case Ashwani Kumar and
Ors. v. State of Bihar & Ors. [(1996) 7 SCC 577], it was
contended that power to prescribe condition of service can be
exercised either by making rules or in absence of such rules, by
issuing executive instructions in exercise of executive power. It
was submitted that when the recruitment is district-wise and
14
the appointing authority is the Superintendent of Police of the
respective districts, the authorities cannot be alleged to have
violated the Article 14 by stipulating a restriction that the
candidates shall submit application only for one district.
26. Learned Senior Counsel submitted that the State of
Jharkhand adopted the Bihar Police Manual with certain
amendments by Memo No.3300 dated 12.11.2001. It was
contended that as per the Police Manual, constable shall be
appointed by the District Superintendent of Police and without
any amendment being done by the State Government in
exercise of its power under Article 309 of the Constitution of
India, the condition stipulated prohibiting the candidates from
applying in more than one district, has no backing of any rule
or regulation and the restriction is arbitrary and violative of
Articles 14 and 16 of the Constitution of India. It was also
submitted that the respondents cannot be deprived of their
valuable right to get public employment by inserting a condition
which has no backing of any rule or regulation, nor any
executive instruction.
27. The Bihar Police Manual with certain amendment
was adopted by the State of Jharkhand. Rule 661 of the
Jharkhand Police Manual deals with classes of Constables and
recruitment. As per Rule 661(b), the Constable shall be
appointed by district Superintendent of Police for which a list
will be prepared by the selection Board duly constituted for the
15
purpose. Rule 663 deals with selection of recruits. As per Rule
663(b), recruits shall be measured by the reserve inspector in
the presence of Superintendent of Police at the time of
enlistment. Rule 661 and 663 make it clear that the
recruitment of Constables is only district-wise and
Superintendent of Police is the appointing authority.
28. Rule 662 deals with recruitment in a foreign district,
which reads as under :
"662. Recruitment in a foreign district- When in any
district able candidates are not available for scheduled
castes and tribes whose quota is given in Appendix 40, the
concerned Superintendent shall request his Deputy
Inspector-General for selection of recruits from those
districts where there is possibility of availability of required
number of candidates. The selection board for the recruiting
district, after satisfying themselves that the candidates are
qualified as regards health and character and that they are
willing to go to the district for which they are required, shall
ask the Superintendent concerned to enlist them and send
them to the requisitioning district."
29. By a reading of Rules 661, 662 and 663, it is seen
that the rules are framed for the recruitment of constables for
the "recruiting district". The words, "recruiting district" and
„recruitment in a foreign district‟ clearly show that the
recruitment of constables is only district-wise and the
appointing authority is the Superintendent of Police. The
applicants were required to submit their application only for
one district in their respective district office of the respective
Superintendent of Police. We are of the view that the words,
"recruiting district" occurring in the Manual clearly stipulates
that the recruitment is district-wise and that the application
could only be for one district.
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30. Assuming that there are no rules, it is well settled
that creation and abolition of post is the prerogative of the
executive and power to prescribe the condition of service can
be exercised either by making rules under proviso to Article
309 of the Constitution or in the absence of any rules, by
issuing rules/instruction in exercise of its executive power. In
the case of Ashwani Kumar [(1996) 7 SCC 577], Hon‟ble
Supreme Court held as under:-
"9. In T. Cajee v. U. Jormanik Siem[(1961) 1 SCR 750] (SCR at p.
764) a Constitution Bench of this Court held that the Government
has the power to carry on the administration including the power
to appoint and remove the personnel for carrying on the
administration. It is not necessary that there should exist
statutory regulations so made or the laws so passed. The
authorities concerned would at all relevant times have the power
to appoint or remove the personnel under the general power of
administration vested in them.
10. In B.N. Nagarajan v. State of Mysore [(1966) 3 SCR 682],
another Constitution Bench of this Court held that it was not
obligatory under proviso to Article 309 of the Constitution to
make rules of recruitment etc. before a service could be
constituted or a post created or filled. Consequently, the State
Government has executive power, in relation to all matters with
respect to which the Legislature of the State had power to make
laws and its power under Article 162, without a law, was not a
breach.
11. In P.C. Sethi v. Union of India [(1975) 4 SCC 67] a three-Judge
Bench of this Court held that in the absence of any statutory rules
prior to the Central Secretariat Service Rules, 1962, it was open to
the Government, in exercise of its executive power, to issue
administrative instructions with regard to constitution and
reorganisation of the Service as long as there was no violation of
Articles 14 and 16 of the Constitution.
12. In Ramesh Prasad Singh v. State of Bihar [(1978) 1 SCC 37]
(SCC at p. 41) a two-Judge Bench of this Court held that in the
absence of rules, qualifications for a post can validly be laid down
in the selfsame executive order creating the service or post and
filling it up according to those qualifications.
13. In Kamal Kanti Dutta v. Union of India [(1980) 3 SCR 811]
(SCR at p. 849) yet another Constitution Bench observed that the
Government would prescribe procedure to fill up any particular
vacancy or vacancies as may be required during any particular
period. In State of Haryana v. Piara Singh [(1992) 4 SCC 118] a
three-Judge Bench of this Court held in para 21 at p. 134 that
"creation and abolition of a post is the prerogative of the
Executive. It is the Executive again that lays down the
conditions of service subject, of course, to a law made by
the appropriate legislature. This power to prescribe the
conditions of service can be exercised either by making
rules under the proviso to Article 309 of the Constitution
or (in the absence of such rules) by issuing
rules/instructions in exercise of its executive power. The
court comes into picture only to ensure observance of
fundamental rights, statutory provisions, rules and other
17
instructions, if any, governing the conditions of service."
This Court laid down elaborate procedure for regularisation of ad
hoc employees etc.
14. It would thus be settled law that existence of law or statutory
rules made under proviso to Article 309 of the Constitution is not
a precondition either to create a post or to fill up that post;
Government having legislative backing on the subject, has
executive power to lay down the conditions of service and
prescribe procedure for appointment to the post or vacancies in
accordance therewith. Simultaneously, the Government would be
entitled to create posts. The instructions and the procedure thus
laid down would be subject to law made by the Legislature or rules
made under proviso to Article 309. They could be amended by
subsequent instructions. They may supplant the rules. But they
should be consistent with the rights guaranteed under Articles 14
and 16(1) of the Constitution."
31. The existence of a law or statutory rule for
prescribing such restriction is not a pre-condition. The
condition mentioned in the advertisement stipulating that a
candidate can apply only for one district is a pre-requisite for
appointment of Police Driver. It is for the executive to prescribe
conditions of service either by rules or by issuing administrative
instructions. Having accepted the condition stipulated in the
advertisement, the respondents have submitted their
applications making declaration that they have applied for only
one district. The respondents, who have violated the stipulated
condition in the advertisement, cannot contend that the
restriction is not supported by any rules.
32. While allowing the writ petitions, learned Single
Judge observed that even if a candidate applied for two or more
districts and appeared in examination in both or more districts
and also selected in more than one district, it will not cause
any prejudice to the State since the candidate has to select one
district for employment and that the candidates will join service
18
only in one district and in those districts where the selected
candidates have not joined, waiting list can be made operative
and the candidates who are in waiting list can be appointed.
While observing that the candidates‟ selection in more than one
district will not cause any prejudice to the State, the learned
Single Judge did not keep in view the administrative difficulties.
33. Learned Additional Advocate General- Mr.Ajit Kumar
has submitted that in order to avoid administrative
inconvenience, the Government has introduced decentralization
i.e. district-wise selection and permitting the candidates to
apply for more than one district defeats the very purpose of
decentralization of the selection process.
34. As rightly submitted by the appellant-State, if the
candidates are allowed to submit application in more than one
District, they are to appear in the test to be conducted in the
different districts on different dates and if their names are listed
in more than one district, they will have to forego appointment
in any one of the district/districts. This would defeat the very
purpose of the decentralization of the recruitment. If the
selected candidates forego appointment in any of the district, it
would cause administrative inconvenience apart from causing
dearth of recruits in such cadre. If the candidates are allowed to
apply for more than one district by submitting more than one
application, there would be multiplicity of applications and that
would cause administrative difficulties in the Department and
19
that was the reason there was condition restricting the
candidates from applying for more than one district. The
learned Single Judge did not keep in view the administrative
difficulties caused by such applying for more than one district.
35. Learned Senior Counsel for the respondents placed
reliance upon the judgment passed in W.P (S) No.3241/2007
(dated 20.3.2012), in and by which learned Single Judge
allowed the writ petition quashing the order of cancellation of
selection of the candidates whose selection was cancelled for
the post of constable in respect of recruitment of the year 2007
on the ground that they applied for more than two districts. The
order of the learned Single Judge in W.P(S) No.3241/2007 was
confirmed by the Division Bench of this Court in LPA
No.263/2012 dated 6th March, 2013. On behalf of the
respondents, it was submitted that earlier judgment of the
Division Bench of this Court is binding upon the State and
while so, the respondents in these appeals who are similarly
situated cannot be denied appointment on the ground that they
have applied for the post of Police Driver in more than one
district.
36. W.P(S) No.3241/2007 relates to the advertisement for
the post of Constable in 2007 for the districts of Hazaribagh,
Koderma and Giridih (all the three districts constituting one
Range). The selection of those candidates thereof was cancelled
on the ground that they have applied for more than one district.
20
W.P(S) No.3241/2007 was allowed mainly on the ground that
similarly situated persons (relating to advertisement of 2007),
who applied for two districts have been given appointment by
the authorities and that the State was not in a position to
controvert and deny the said fact in its counter-affidavit. Since
similarly situated persons were given appointment, learned
Single Judge allowed W.P(S) No.3241/2007 and the same was
affirmed by a brief order in LPA No.263/2012, vide order dated
6th March, 2012.
37. The present cases relate to the advertisement of 2010
for recruitment of Police Drivers in respect of Palamau Range
(constituting Palamau, Latehar and Garhwa districts). Learned
Additional Advocate General has produced the chart showing
that the selection/candidature of about 156 candidates has
been cancelled on the ground that they have applied for more
than one district. It was submitted that out of those 156
candidates only 11 candidates who applied for more than one
district have been appointed. Learned Additional Advocate
General further submitted that after the learned Single Judge
allowed the writ petitions, under the threat of contempt these
11 persons were appointed and therefore, the present batch of
cases stand on a different footing than the earlier writ petition,
W.P(S) No.3241/2007, which related to the advertisement of
2007 for a different Range.
38. By perusal of the judgment passed in W.P(S)
21
No.3241/2007, we find that the learned Single Judge allowed
the writ petition mainly on the ground that similarly situated
persons, who applied for more than one district, were given
appointment. In this batch of cases, none of the similarly
situated persons was appointed except those 11 cases, who
were appointed either under the order of the court or under the
threat of contempt. The ratio decidendi in the earlier judgment
will apply only if the facts are same. When the facts are
materially different, the earlier decision may not be binding on
the courts and therefore, order passed in LPA No.263/2012
cannot be taken to be a binding precedent.
39. Even assuming that some other similarly situated
persons have been appointed, since Article 14 contains a
positive concept, no benefit can be extended to the respondents.
In the case of State of Orissa And Ors. v. Prasana Kumar
Sahoo [(2007) 15 SCC 129], Hon‟ble Supreme Court held as
under:-
20. It may be that some other persons similarly situated have been
appointed. But Article 14 as is well known contains a positive
concept. A writ of mandamus can be issued by the High Court only
when there exists a legal right in the writ petitioner and
corresponding legal obligation in the State. Only because an
illegality has been committed, the same cannot be directed to be
perpetuated by a court of law.
21. It is also well settled that there cannot be equality in illegality.
See Sushanta Tagore v. Union of India [(2005) 3 SCC 16], State v.
Sashi Balasubramanian [(2006) 13 SCC 252] and U.P. State Sugar
Corpn. Ltd. v. Sant Raj Singh [(2006) 9 SCC 82].
40. Even though some of the respondents are stated to
be working pursuant to appointment orders issued, their cases
cannot be considered to be on a different footing. As pointed
out earlier, the candidature of 156 applicants were cancelled on
22
the ground that they have applied for more than one district. If
any direction is issued in respect of the respondents, who were
given the order of appointment either by virtue of the order of
the court or under the threat of contempt proceedings, it will
cause serious prejudice to all other candidates who have not
approached the court and it will open Pandora‟s box. Therefore,
in our view, it is not possible to accede to the prayer of the
respondents even on equitable grounds.
41. Learned Single Judge failed to consider that the
respondents were bound by the condition laid down in the
advertisement as they have willingly accepted the same and if
the candidates are bound by the same, no right of appointment
can be claimed by them and they have no right of appointment.
Learned Single Judge was not right in saying that the
restriction is arbitrary and violative of Articles 14 and 16 of the
Constitution of India. The learned Single Judge did not keep in
view the false declaration made by the candidate as also the
administrative difficulties of the authorities caused by the
candidates by submitting application for more than one district.
Therefore, the impugned orders of the learned Single Judge are
liable to be set aside.
42. The order dated 22.9.2011 passed in W.P(S)
No.2228/2011 (LPA No.10/2012), order dated 23.9.2011
passed in W.P(S) No.1661/2011 (LPA No.11/2012), order dated
23.9.2011passed in W.P(S) No.1658/2011 (LPA No.13/2012), 23 order dated 23.9.2011 passed in W.P(S) No.1667/2011 (LPA No.14/2012), order dated 23.8.2012 passed in W.P(S) No.3950/2012 (LPA No.182/2013), order dated 21.3.2013 passed in W.P(S) No.5347/2012 (LPA No.183/2013), order dated 18.3.2013 passed in W.P(S) No.4623/2012 (LPA No.187/2013), order dated 16.1.2013 passed in W.P(S) No.3594/2012 (LPA No.189/2013), order dated 7.1.2013 passed in W.P(S) No.4698/2012 (LPA No.190/2013), order dated 20.3.2013 passed in W.P(S) No.109/2013 (LPA No.191/2013) and order dated 21.9.2012 passed in W.P(S) No.5483/2012 (LPA No.192/2013) are set aside and these Letters Patent Appeals are allowed. In so far as the candidates who were appointed, the appellant is at liberty to act in accordance with law.
(R.Banumathi, CJ) (Shree Chandrashekhar,J) Jharkhand High Court, Ranchi Dated the 27th June, 2014 AFR/ G.Jha/dey