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Jharkhand High Court · body

2008 DIGILAW 1105 (JHR)

Sanjay Kumar Sinha v. State of Jharkhand through the Chief Secretary, Government of Jharkhand, Ranchi

2008-09-10

D.G.R.PATNAIK

body2008
Order Petitioner's prayer in this writ application is for quashing the final results of the Second Combined Civil Services Examinations published in the local newspaper on 13.4.2008 (Annexure-6) by the Jharkhand Public Service Commission Ranchi (respondent no. 5) and also a direction upon the respondents to produce before this Court the answer sheets of the petitioner bearing roll no. 1181100 and that of two other candidates namely, Rupesh Kumar Sinha bearing roll no. 1116172 and Ritesh Kumar Singh bearing roll no 1102684 and to stay issuance of appointment letters, pursuant to the impugned results dated 13.4.2008, during the pendency of this writ application. 2. The case of the petitioner in brief is that he is physically handicapped to the extent of 65%. In response to the advertisement issued by the respondent no. 5 inviting applications for the Second Combined Civil Services Examinations for recruitment in public service under the State of Jharkhand, petitioner has submitted his application and he was allotted roll no. 1181100 in the general category. He competed in the preliminary examination and thereafter, he appeared and qualified in the mains examination as a general category candidate, in the results published on 9.10.2007. The cut-off marks for the general category candidates as declared in the results of the mains examination, was 717. A revised result of the mains examination was published on 13.12.2007 wherein the petitioner was shown to have qualified as a physically handicapped general category candidate. The petitioner was called upon and faced interview on 30.1.2008, whereafter he faced medical examination on 27.2.2008. However, when the final result of the Second Combined Civil Services Examinations was published on 13.4.2008, the petitioner was not shown to have been selected. The petitioner found that the above named two candidates were shown in the final results, have been selected as physically handicapped general category candidates, although one of them namely, Ritesh Kumar Singh was not shown as one of the selected candidates in the earlier results of the mains examination published on 9.10.2007. The petitioner thereafter applied for information under the Right to Information Act on 16.4.2008 seeking details of the marks obtained by them and by the aforenamed two candidates. The petitioner thereafter applied for information under the Right to Information Act on 16.4.2008 seeking details of the marks obtained by them and by the aforenamed two candidates. On perusal of the marks sheet which was supplied to him, the petitioner found that he was shown to have secured total number of 675 marks and in the interview, he was given 83.33 marks making the total of 758.33 marks, while the other candidate namely Ritesh Kumar was shown to have secured higher marks. 3. Assailing the impugned results, Shri P.K. Prasad, learned counsel for the petitioner, submits that the impugned result is grossly illegal and arbitrary and is against the reservation policy and the petitioner has been illegally deprived of the benefit of the reservation. Learned counsel explains that in the results of the mains examination published on 9.10.2007 wherein the cut-off marks was declared 717, the names of the other candidate namely, Ritesh Kumar Singh, though under the physically handicapped general category candidates, was not declared as a successful candidate, indicating thereby that the marks secured by him in the mains examination was certainly below the cut-off marks of 717 and that of the petitioner's marks was certainly above. Under such circumstances, the declaration in the marks sheet that the petitioner had secured only 675 marks in the mains examination, has to be considered as totally misleading, incorrect and arbitrary. Learned counsel argues further that admittedly, in the result of the mains examination published on 13.12.2007 the petitioner was acknowledged as physically handicapped candidate under the general category and therefore, the petitioner also comes within the zone of consideration under the reservation policy, but the petitioner has been arbitrarily denied the benefit. Referring to the reservation policy, learned counsel explains that as per the reservation policy, 50% of vacancies have to be allocated to the candidates under the reserved category and the remaining 50% to the general category. The percentage of reservation for the handicapped persons is 3%. Referring to the reservation policy, learned counsel explains that as per the reservation policy, 50% of vacancies have to be allocated to the candidates under the reserved category and the remaining 50% to the general category. The percentage of reservation for the handicapped persons is 3%. As per the list of selected candidates, the total number of vacancies was 172, out of which, 86 vacancies corresponding to 50%, are to be filled up by the general category candidates and reservation for physically handicapped persons had to be provided to the extent of 3% which works out to 2.58% against which, only 2 candidates namely, Rupesh Kumar Sinha and Ritesh Kumar Singh, were appointed to the Administrative Services and Finance Services respectively, although as per the stipulated percentage, three vacancies in the handicapped general category ought to have been filled up. Referring to and relying upon the judgment of the Supreme Court in the case of State of U.P. and Another vs. Pawan Kumar Tiwari and Others, (2005) 2 SCC 10 , learned counsel explains that since reservation of 3% of the vacancies meant for physically handicapped persons works out to 2.58%, the benefit of rounding it up on the higher side to 3, should have been given to the handicapped - candidates in the general category and the petitioner should also have been given the benefit of appointment. Learned counsel adds that as per the petitioner's information, against the total number of 172 vacancies, 171 only have been filled up leaving one vacancy, yet to be filled up. 4. A counter affidavit has been filed on behalf of the respondent-Jharkhand Public Service Commission (Respondents 5 and 6). Shri A.K. Sinha, learned Senior Advocate representing the respondents, takes a preliminary objection to the maintainability of the writ application on two grounds. Firstly, that by the nature of relief claimed and for the grounds stated, the present writ application is in the nature of anticipatory writ application" for stay of issuance of appointment letters pursuant to the impugned results dated 13.4.2008 and secondly, since by implication, appointment of the two other candidates particularly Ritesh Kumar Singh has also been challenged, this writ application cannot be held to be maintainable in absence of impleading the said candidates a necessary party. Learned counsel submits that it is settled principle of law that no order to the detriment of a person can be passed without hearing him. Learned counsel argues further that contention of the learned counsel for the petitioner that since the calculation on the basis of 3% for the physically handicapped candidates figures at 2.58%, it should be rounded up to 3 vacancies, is not tenable, since the selection process is already over and for eking out a third vacancy under the physically handicapped general category, one vacancy from the reserved category has to be curtailed. Such an action would certainly be arbitrary and would deprive the benefits which have already been extended to the selected candidates. Learned counsel submits further that tile contention of the petitioner that one vacancy out of the total 172 remains still not filled up, cannot be affirmed without verification. Referring to the purported anomaly regarding the marks secured by the petitioner in the mains examination in the light of the marks declared earlier in the results of the mains examination published on 9.10.2007, learned counsel explains that in the result dated 9.10.2007, some clerical error (reservation, roaster, category, etc.) vias detected by the Commission and as such, the Commission had decided to revise the result and accordingly, a revised result after necessary corrections, was published on 13.12.2007. 5. From above submissions of the learned counsel for the parties, an inference which can be reasonably drawn is that in the final result published on 13.12.2007 (Annexure-3), the petitioner was found not selected on the ground that two other candidates had secured more marks than the petitioner and they were placed above the petitioner in the merit list. As explained by the respondents, the results of the mains examination published on 9.10.2007 was cancelled on detection of certain clerical errors relating to the reservation, roaster, category, etc. The petitioner cannot take any benefit of the earlier results which were found incorrect and cancelled. The grounds pleaded by the petitioner on the basis of earlier result of the mains examination published on 9.10.2007, cannot therefore be accepted. 6. Next, the contention of the learned counsel for the petitioner that the benefit of reservation under the physically handicapped category candidate should have been extended to the petitioner by computing the total number of 3 vacancies under this category. 7. In the case of State of U.P. VS. 6. Next, the contention of the learned counsel for the petitioner that the benefit of reservation under the physically handicapped category candidate should have been extended to the petitioner by computing the total number of 3 vacancies under this category. 7. In the case of State of U.P. VS. Pawan Kumar Tiwari (supra), while considering the provisions for reservation mandated for filling handicapped persons in the general category and the reservation meant for the members of the scheduled castes, scheduled tribes and other backward classes, the Supreme Court has observed in the following terms:- "The rule of rounding off based on logic and common sense is: if part is one-half or more, its value shall be increased to one and if part is less than half, then its value shall be ignored "However, in case of reserved vacancies if conversion of one half or more into one, leads to the reserved vacancies exceeding 50% of the total vacancy, it would be unconstitutional and so has to be ignored. Hence, on the facts of the present case, such conversion is allowed for the general category, but not for the reserved category". 8. The ratio in the judgment of the Supreme Court in Pawan Kumar Tiwari's case (supra) is squarely applicable to the case of the petitioner. It is not disputed that by computing percentage of reservations for the SC, ST and other backward classes, total number of three vacancies have been given to the candidates in the reserved category i.e. SC, ST and other backward classes category and 86 vacancies which constitute 50% of the total vacancy, have been allotted to the members of the SC, ST, etc. The petitioner can certainly claim benefits of reservation for handicapped persons under general category in terms of the judgment of the Supreme Court in Pawan Kumar Tiwari's case (supra). Computation of 3% of the vacancies for handicapped candidates under general category ought to have been considered by rounding off the fraction of 2.58% to three vacancies. Thus, the petitioner's grievance has a reasonable basis. However, considering the fact that the benefit of appointment pursuant to the selection, has already been given to the candidates both in the general and reserved category, such appointments cannot now be disturbed in absence of opportunity given to all such candidates of being heard in this writ application. 9. Thus, the petitioner's grievance has a reasonable basis. However, considering the fact that the benefit of appointment pursuant to the selection, has already been given to the candidates both in the general and reserved category, such appointments cannot now be disturbed in absence of opportunity given to all such candidates of being heard in this writ application. 9. Learned counsel for the petitioner points out that one out of total number of vacancies is still running vacant. This statement is however subject to verification and confirmation by the respondents. 10. In the light of the above discussions, the respondent-State shall consider the possibility of absorbing the petitioner by appointing him against any existing vacancy, if the petitioner is found eligible, in accordance with the merit list and if such vacancy does not exist, then to Consider the petitioner's candidature against the future vacancies on the basis of the same merit list, if it still survives. With these observations, this writ application is disposed of.