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2010 DIGILAW 183 (JHR)

Dhaneshwar Paswan v. State of Jharkhand

2010-02-01

D.N.PATEL

body2010
JUDGMENT : D.N. PATEL, J. 1. The present petition has been preferred against an order, passed by the Superintendent of Police, Koderma, dated 5th March, 2008, at Annexure 7 to the memo of petition, whereby the candidature of the present petitioner for the post of Constable has been rejected. 2. Learned Counsel for the petitioner vehemently submitted that the petitioner is a citizen of India and is entitled to the fundamental rights, guaranteed under Article 16 of the Constitution of India i.e. the petitioner has a right of equal opportunity in public employment. In pursuance of a public advertisement bearing Advertisement No. 1/04, published on 13th January, 2004, for appointment to the post of Police Constable, an application was preferred by the petitioner and the petitioner became a successful candidate in all types of tests i.e. written as well as physical tests. the petitioner is a reserved category candidate, especially of a Scheduled Caste and has secured 16 marks, as per the method of allotment of marks prescribed by the respondents and a candidate having 14 marks in a Scheduled Caste category has been appointed as a Constable and the only reason given by the Superintendent of Police, Koderma, in the impugned order dated 5th March, 2008, which is at Annexure 7 to the memo of petition, is that in some Master Chart, prepared by the Government officials, there is some over-writing, so far as the height is concerned and, therefore, the petitioner has been made ineligible and incompetent for appointment to the post of Constable. This reason is no reason in the eyes of law. There is no allegation against the petitioner that the petitioner has done the over-writing in the Master Chart. There us not a single allegation against the petitioner by the respondents. Even otherwise also, the so called Register and Master Chart etc. are being maintained by the respondents-police authorities. Petitioner is not even allowed to touch those Registers or Master Chart. If there is my over-writing, the petitioner is not at all aware of the fact that what is over writing and whether it is because of any manipulation. Even otherwise also, the so called Register and Master Chart etc. are being maintained by the respondents-police authorities. Petitioner is not even allowed to touch those Registers or Master Chart. If there is my over-writing, the petitioner is not at all aware of the fact that what is over writing and whether it is because of any manipulation. Neither any show cause notice nor an opportunity of being heard has been given to the petitioner and, in fact, by the impugned order, the Superintendent of Police, Koderma, has not even put any allegation against the petitioner that the said Master Chart was in possession of the petitioner and the petitioner has manipulated the Master Chart of the Government. 3. It is also vehemently submitted by the learned Counsel for the petitioner that a valuable right, conferred by Article 16 of the Constitution of India, cannot be taken away by this type of letter/order. In fact, there is no error on the part of the petitioner, in maintaining the Master Chart and even if there is any over-writing in the Master Chart, the Government itself is responsible for it. It is also submitted by the learned Counsel for the petitioner that the impugned order is thoroughly non-application of mind and reveals nothing else, but, an arbitrary action. Assuming, without admitting, that there is some error in measurement of the height of a candidate, then the police department ought to have thought twice before taking away the right under Article 16 of the Constitution of India that the height is not such a factor, which can be manipulated by anybody. Height can be re-measured also. If there is any doubt about the height of the petitioner, the high ranking police officers could have appointed a doctor to measure the height and, therefore, the reason, which has been given in the impugned order, is no reason in the eyes of law, especially when the petitioner has not manipulated the Master Chart, maintained by the respondent-authorities and, therefore, the order at Annexure 7 to the memo of petition, passed by Superintendent of Police, Koderma, dated 5th March, 2008 deserved to be quashed and set aside. 4. 4. I have heard learned Counsel for the respondents, who has submitted that looking to the impugned order, it appears that there is over-writing, so far as the height of the petitioner is concerned, in the Master Char prepared by the respondents and, therefore, his candidature has been rejected. There was also a direction by the Selection Board and, therefore, this decision has been taken by the Superintendent of Police, Koderma. It has also been submitted by the learned Counsel for the respondents that initially in a writ petition bearing W.P.(S) No. 1242 of 2006, vide order dated 10th November, 2006, which has been reported in Krishnaji and Others, Brajesh Kumar Singh and Others, Dhirendra Kumar Singh and Others and Jai Siya Ram Singh and Others Vs. State of Jharkhand and Others, (2007) 1 JCR 1 , it has been held by this Court 932 candidates may not be appointed as Constables, pursuance of some manipulations and, therefore, this decision has been taken at Annexure 7 to the memo of petition and, therefore, this writ petition deserves to be dismissed. 5. Having heard learned Counsel for both the sides and looking to the facts and circumstances of the case, I hereby quash and set aside the impugned order, passed by Superintendent of Police, Koderma, dated 5th March, 2008, which is at Annexure 7 to the memo of petition, mainly for the following facts and reasons: (i) The petitioner has applied for appointment to the post of Constable, in pursuance of a public advertisement, issued by the State of Jharkhand bearing Advertisement No. 1/04; (ii) The petitioner is a citizen of India and is entitled to the fundamental rights, guaranteed by Article 16 of the Constitution of India i.e. the right of equal opportunity in a public employment. The petitioner is a Scheduled Caste category candidate, who has secured 16 marks as per the method of allotment of marks, finalized by the respondents, and a candidate, having 14 marks from Scheduled Caste category, has already been appointed as Constable; (iii) It appears that the petitioner has successfully cleared written test as well as physical test for the post of Constable as held by the respondents; (iv) It also appears that the Superintendent of Police, Koderma, has issued, thereafter, the impugned order dated 5th March, 2008, which, is at Annexure to the memo of petition, where by it has been pointed our to the petitioner that his candidature for appointment to the post of Constable has been rejected, because there is some overwriting in the Master Chart, prepared by the Government, about the height. This is the only reason, given in the impugned order. Now, looking closely to Annexure 7 to the memo of petition, it appears that there is no allegation against the petitioner that the petitioner has manipulated the Master Chart, prepared by high ranking officer of the Government. There is also nothing in the impugned order that whether there is over-writing of measurement of a height of the petitioner or not. There might have been over writing as to the measurement of the height of some other candidate in the Master Chart. Nothing has been clarified in the impugned order. Moreover, no notice has been given to the petitioner that he has done this over-writing or manipulation and a most valuable right, guaranteed under Article 16 of the Constitution of India, has been taken away, in a most perfunctory manner; (v) Looking to the impugned order, at Annexure 7 to the memo of petition, dated 5th March, 2008, if appears that the Superintendent of Police, Koderma, who has withdrawn the candidature of the petitioner for appointment to the post of Constable, has relied upon some decision, taken by a Selection Board, but, never a copy of such decision/letter has been given to the petitioner or has been annexed with the counter affidavit, thus, even on today, the respondents have not annexed with their counter affidavit, what is the Selection Board's opinion or report about the petitioner. The Superintendent of Police, Koderma, who has heavily relied upon the opinion, given by the Selection Board, has not supplied a copy of this opinion by the Selection Board, to the petitioner. In the counter affidavit also, no such decision, taken by the Selection Board, is being annexed. Thus, nobody knows what is the report or opinion of the Selection Board; it is dated what and what are the allegations against the petitioner. Before taking away the valuable right, guaranteed under Article 16 of the Constitution of India, the State authorities ought to have supplied, at least, the documents, which are relied upon by them to the present petitioner; (vi) Learned Counsel for the respondent has relied upon the decision in a writ petition bearing W.R(S) No. 1242 of 2006 dated 10th November, 2006, as reported in 2007 (1) J.C.R. 1 (Jhr.) (Krishnaji v. State of Jharkhand). Relevant part of the said decision, as replied upon the learned Counsel for both thee sides, especially paragraph No. 11, reads as under: 11. There is nothing in the report of the Inquiry Officer or material on record to the affect that the written test conducted is vitiated in any manner. Therefore, the irregularities that have come to light are either in the recording of the physical standards of the candidates or their date of birth and Home Guard/Sports Certificate. Inquiry Officer has identified all such persons numbering 932 in whose favour such manipulations have been made. The total number of candidates in all the districts being much large, the identified candidates constitutes only a small proportion of the total candidates. In view of the dictum of the judgment of the Apex Court noticed above, we are of the opinion that doctrine of proportionality envisaged by the Apex Court in the above referred judgment is attracted in the facts and circumstances of this case. Such of the candidates who have successfully qualified and secured places in the final merit/select list without indulging in any misconduct or being beneficiary of any manipulation cannot and should not suffer. We, therefore, allow these writ petitions with the following directions: (a) Order impugned dated 10.12.2005 and Notification No. 106 dated 16.1.2006 cancelling the selection of the candidates for the post of Constables for districts of Hazaribagh, Koderma, Chatra and Giridih initiated pursuant to the advertisement notice No. 01/04 are hereby quashed. We, therefore, allow these writ petitions with the following directions: (a) Order impugned dated 10.12.2005 and Notification No. 106 dated 16.1.2006 cancelling the selection of the candidates for the post of Constables for districts of Hazaribagh, Koderma, Chatra and Giridih initiated pursuant to the advertisement notice No. 01/04 are hereby quashed. Memo No. 43/P dated 16.1.2006 for fresh physical and educational test is also quashed. (b) Respondents are directed to make appointment according to select/merit list of successful candidates declared successful in the four districts of the State, namely, Hazaribah, Koderma, Chatra and Giridih against the advertised vacancies excluding 932 candidates identified by the Inquiry Officer and found to be beneficiaries of malpractices during the selection. Let the appointments of such candidates be made within two months. (c) Respondents are further directed to complete the inquiry/departmental proceedings against Shri C.P. Kiran, the then Superintendent of Police, Chatra-cum-Chairman, Constable Recruitment Committee-3 or any other officer involved in malpractice in the recruitment of constables, within a period or three months if not already concluded and take appropriate action in accordance with rules depending upon the outcome of the inquiry. (Emphasis supplied) (vii) In view of the aforesaid decision, it is contended by the learned Counsel for the respondents that the Court has permitted certain candidates, who have applied for the post of Constables, not to give them appointment and, therefore, the impugned order at Annexure 7 to the memo of petition has been passed by the Superintendent or Police, Koderma. This contention is also not accepted by this Court, mainly for the reason that looking closely the aforesaid observations of this Court in the aforesaid decision, it appears that only those candidates, who have been identified by the Inquiry Officer and found to be beneficiaries of the malpractices during selection, should be excluded and they are 932 candidates. Thus there is an inbuilt mechanism pointed out by this Court to the Government that these 932 candidates ought to be identified by the Inquiry Officer. In the facts of the present case the present petitioner has neither been given any notice, nor any inquiry has been held against this petitioner and, as stated hereinabove, from the impugned order it appears that there is ho allegation even against the petitioner and nobody knows what is the Selection Board's opinion, so far as the present petitioner is concerned. Thus, the facts of the aforesaid are different from the facts of the present case and, therefore, the aforesaid decision is not applicable to the present petitioner; (viii) It has been held by this Court in the case of Ranjay Kumar Singh v. State of Jharkhand and Ors. as reported in 2009 (4) JLJR 543 , especially at paragraph nos.7, 8, 9 and 10, which read as follows: 7. The aforesaid judgment was delivered on 10.11.2006. It was only after the aforesaid judgment, since the appellant was not identified to be in the category of 932 persons, he was allowed to join the post of constable vide letter dated 10.4.2007. Pursuant to the aforesaid letter, the appellant submitted his joining and he was allowed to join on the post of constable. Surprisingly, the appellant was again dismissed from service on the basis of same inquiry report dated 31.10:2005 which is evident from the impugned order of dismissal. All these facts have not been considered by the learned Single Judge and the writ petition was dismissed in limine. 8. Besides the above, several writ petitions were filed being W.P.S. No. 4351 of 2007, W.P.S. No. 5906 of 2007 and W.P.S. No. 6041 of 2007 by other persons and those writ petitions were allowed and cancellation of appointments were quashed by a Bench of this Court. 9. Considering the entire facts of the case discussed hereinabove, the impugned order of dismissal of the appellant from service cannot be sustained in law. 10.. For the reasons aforesaid, this appeal is allowed and the impugned judgment passed by the learned Single Judge as also the impugned order of dismissal of the appellant from service is set aside. We further direct the respondents to allow the appellant to join the post of constable, but it is made clear that the appellant shall not be entitled to any back wages from the date of dismissal till the date of reinstatement. We further direct the respondents to allow the appellant to join the post of constable, but it is made clear that the appellant shall not be entitled to any back wages from the date of dismissal till the date of reinstatement. (Emphasis supplied) (ix) In view of the aforesaid decision, it his been held by this Court that the petitioner in the aforesaid case was not identified to be in the category of 932 persons by any inquiry and, therefore, he was not falling within cluster of 932 candidates and, therefore, in the aforesaid reported decision, the Division Bench of this Court has quashed and set aside the order of termination of that petitioner, (x) Looking to the facts of the present case also, the petitioner is not identified to be in the category of 932 persons, who has done the manipulation in the Master Chart, prepared, preserved and maintained by the Government itself. In fact, nobody allowed a new candidate, fresh or raw, to touch even Master Chart. Only the Government is preparing and maintaining such Master Chart and if there is any over-writing, Government should have taken action against its own police officer(s), who is/are in-charge of that Master Chart and not the fresh new comers, especially when there is not an iota of an evidence against the petitioner. In the facts of the present case, as stated hereinabove, there is not a whisper against the present petitioner that the petitioner has manipulated or has done any over-writing in the Master Chart, prepared, preserved and maintained by the Government itself, (xi) The impugned order at Annexure 7 to the memo of petition talks about the over-writing of the height in the Master Chart. This hue and cry, made by the Government, is baseless, because the Master Chart was prepared, maintained and preserved by the Government itself. Overwriting done, if any, it is by the officers of the Government and it is to be kept in mind that height cannot be manipulated and if there is any error, as per the opinion of the high ranking police; officer of the Government, in writing of the measurement of the height of the candidate, it could have been re-measured, but, nobody can increase or decrease the height. 6. 6. As a cumulative effect of the aforesaid facts and reasons and the judical pronouncements, I hereby, quash and set aside the impugned order, passed by the Superintendent of Police, Koderma. dated 5th March, 2008, at Annexure 7 to the memo of petition and I hereby direct the State of Jharkhand and/or respondent No. 4 to appoint the petitioner on the post of Constable, as he has secured higher marks than the last selected candidate, as early as possible and practicable, preferably within a period of four weeks from the date of receipt of a copy of the order, passed by this Court. 7. This writ petition is, accordingly, allowed and disposed, in view of the aforesaid observations.