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2012 DIGILAW 683 (JHR)

State of Jharkhand v. Ravi Kumar Kujur

2012-05-02

JAYA ROY, PRAKASH TATIA

body2012
JUDGMENT I.A. No. 137 of 2012 Heard learned counsel for the applicant namely Priety Kiskoo who has moved this I.A. No. 137 of 2012, L.P.A., No. 254 of 2011, L.P.A. No. 255 of 2011 and L.P.A. No. 247 of 2011 and prayed for recall/modify of the order dated 8th November, 2011 passed by this Bench. 2. this application was submitted on 16th January, 2012. It will be relevant to mention here that four writ petitions being W.P.(S) No. 5885 of 2010, W.P.(S) No. 4332 of 2010, W.P.(S) No. 6167 of 2010, W.P.(S) No 6672 of 2010 were filed in this Court to challenge the order dated 10th August, 2010 passed by the Principal Secretary, Department of Home, Government of Jharkhand, Ranchi terminating the services of the petitioners of these writ petitions who at the relevant time were on probation and were continuing with their training after their selection for the services of Deputy Collector and Deputy Superintendent of Police. The process of selection was conducted and completed by the Jharkhand Public Service 90mmission. The above writ petitions were allowed vide judgment dated 8.7.2011. It appears that the said order of termination of services of the petitioners was quashed by impugned judgment after taking note of the allegations levelled against the entire process of selection as well as after taking note of the fact of lodging of the F.I.R. against the persons who were involved in the selection process whereby petitioners and others got appointments. The learned Single Judge also took note of allegations of bribing and manipulation and interpolation in the marks etc. in the examination conducted in this process of selection. 3. The judgment dated 8th July, 2011 delivered in above writ petitions has been challenged by preferring present L.P.A. No. 254 of 2011, L.PA No. 255 of 2011 and L.P.A. No. 247 of 2011, wherein after hearing the learned counsel for the appellant and learned counsel for the respondents, on 8th November, 2011 this Court directed to issue notices to all those selected and appointed candidates, whose services have not been terminated and who were appointed alongwith the writ petitioners. The reasons for issuance of show cause notices, have been given in detail in order dated 8th November, 2011. Reasons, we may narrate here again in brief. The reasons for issuance of show cause notices, have been given in detail in order dated 8th November, 2011. Reasons, we may narrate here again in brief. It was noticed by this Court that due to complaint leveling serious allegations of favoritism, violation of rules and procedure and allegation of taking bribe by selectors, enquiry was conducted wherein number of illegalities and irregularities were found and the copy of the enquiry report was placed on the record as the writ petition alongwith contents of Annexure-A which is dated 26th May, 2010. In the enquiry, it has been opined that in the process of selection and appointment on posts for the State services of the State namely; Jharkhand State Police Services, Jharkhand State Finance Services, Jharkhand State Co-operative Services, Jharkhand State Administrative Services, a large number of irregularities and illegalities and manipulation and interpolation were made wherein several candidates numbers were reduced and several candidates' numbers were increased. This Court also took the note of the fact of the finding of those irregularities and allegations of the monetary- benefits, one F.I.R. was lodged, under Sections 420/423/427/ 467/468/469/471/477A1120B/109/201 of the I.P.C. read with Section 13(2) and Section 13(1)(d)(e) of Prevention of Corruption Act, 1988. Even after the said report about entire selection, appointment of only nineteen candidates were cancelled vide order dated 10th August, 2010. At page No. 3 of the order dated 8th Nov., 2011, this Court observed as under:- "Be that as it may be, the enquiry was not with respect to the particular candidate and it appears that the enquiry was with respect to the entire process of selection and prima facie, we are of the opinion that enquiry was against the entire selection process with allegation of corruption, malpractice, favoritism, manipulation and forgery and we are of the considered opinion that in the process of selection, forgery, manipulation, interpolation and taking bribe is normally not from all the candidates and when large scale favoritism, illegal gratification or even substantial number of such activities are found, then in such circumstances the entire process should have been cancelled. We are also having doubt, that the impugned order may have been passed so as to project that cases agains certain individuals have been made out and, therefore, they only have been punished and the Government acted fairly to remove those persons who got appointment through illegal mode and manner but in our opinion, it may also be a case of protecting other persons for whom no order has been passed and no action' has been taken and even if those 19 persons individually, (individually against whom no enquiry was conducted, nor they were heard), may be guilty and were, therefore, removed, that does not make the entire selection process clean and pure which was in the hands of such type of persons who can appoint persons in the State Administrative Service in all fields like State Administrative Service, State Police Service, State Co-operative Service, State Finance Service so as to permit them to eat out the entire State. We are of the considered opinion that it is a fit case for giving notice to the State Government as well as to all selected candidates as to why their selection, as a whole, may not be cancelled and therefore, issue notice to the State Government to show cause as to why the selection process started by issuing advertisement No. 7 of 2005, in pursuance of which appointments have been given by the State Government and have been continued in spite of the enquiry report referred to above and in spite of the fact that State itself has acted on that report and lodged F.I.R, be not cancelled. Notices may also be issued to all the selected candidates who have been selected and given appointment in pursuance of the said advertisement. The State shall submit notices for all those candidates within two weeks from today with their latest address and notices be given dasti to learned counsel for the State and it will be the responsibility of the State Government to serve those selected candidates/officers through their own means to avoid any delay. The above notice is also given to the writ petitioners so that all selected candidates including the writ petitioners may show cause learned counsel for the writ petitioners accept notice on behalf of the writ petitioners. Therefore, there is no need to issue notices to the writ petitioners. The above notice is also given to the writ petitioners so that all selected candidates including the writ petitioners may show cause learned counsel for the writ petitioners accept notice on behalf of the writ petitioners. Therefore, there is no need to issue notices to the writ petitioners. The State is directed to also submit status report with respect to criminal case, whether investigation has been completed or not and if completed, whether charge sheet has been filed and if investigation has not been completed, why it has not been completed?" 4. In view of the above, this Court directed to issue show cause notice to the 172 candidates, who were selected in above selection process and are in service. In response to the notices served upon these candidates, they have put in their appearance and submitted their pleadings. Thereafter, the matter was 11eard in part by the another Bench and according to the counsel for the parties, the applicants and respondents both have advanced their arguments and thereafter, the prayer was made by the present applicant that his Interlocutory Application for modifying the order dated 8.11.2011 may be decided first. In this situation, this matter has again come up before this Bench by virtue of the order dated 17.4.2012 for considering the I.A. No. 137 of 2012. 5. Heard learned counsel for the applicant. Learned counsel for the applicant vehemently submitted that this Court exceeded its jurisdiction while passing the order dated 8.11.2011 because in the Letters Patent Appeal, the Court's jurisdiction is very limited and the Court cannot travel beyond the pleadings and the points raised nor can enlarge the scope and can grant relief which was not claimed. It is submitted that this Court in the case of Central Provident Fund Commissioner and Anr. vs. Sk. Nasiruddin Beedi Merchant Ltd. reported in 1998(1) PLJR 687 , in the case of Stephan Murmu VS. Chandra Mohan Bhandari and Ors. reported in 2009(3) JCR 709 [ : 2009(1) JLJR 42 ], in the case of Surendra Prasad Singh vs. State of Jharkhand through Engineer-in-Chief-cum-Special Secretary, PWD (Road), reported in 2010(2) JCR 669 [ : 2010(3) JLJR 623 ]. Nasiruddin Beedi Merchant Ltd. reported in 1998(1) PLJR 687 , in the case of Stephan Murmu VS. Chandra Mohan Bhandari and Ors. reported in 2009(3) JCR 709 [ : 2009(1) JLJR 42 ], in the case of Surendra Prasad Singh vs. State of Jharkhand through Engineer-in-Chief-cum-Special Secretary, PWD (Road), reported in 2010(2) JCR 669 [ : 2010(3) JLJR 623 ]. has clearly held that the jurisdiction of the Court in the L.P.A. is limited to the pleadings and the reliefs claimed and if any relief has not been sought by the parties, in the writ then, they cannot claim for such relief in the L.P.A. It is submitted that the point which has not been raised in the writ petition, that point also cannot be raised in the L.P.A. Further, it is submitted that the scope of the writ cannot be enlarged in the L.P.A. and it is also submitted that since there is no pleadings of any of the parties and the before, the consequentially and otherwise also, there is no allegation against the applicant. It is also submitted that the applicant was duly selected and appointed and therefore, he could have been removed only after conducting tile departmental proceeding against him by following the principle of the natural justice and by following the procedures as provided in the Rules. 6. It is submitted that the Court cannot assume the jurisdiction of the disciplinary authority so as to pass any order under Rule 55. It is also submitted that the applicants are not aware of the allegation made against them and in fact there are no allegations against the applicants which applicants require to answer. In view of the above, the order dated 8.11.2011, needs to be recalled and set aside. 7. Learned counsel for the applicant has further submitted that in fact by the order dated 8.11.2011, this Court has already decided some of the vital issues and, therefore, nothing is left to be decided, and now the applicant has been served with the notice after taking a decision on the issues. Therefore, the show cause notice itself is nothing but only a notice for post facto hearing. In view of the above reasons, the order dated 8.11.2011 be quashed as by this order issues have already been decided without giving any opportunity of hearing to the applicant. 8. Therefore, the show cause notice itself is nothing but only a notice for post facto hearing. In view of the above reasons, the order dated 8.11.2011 be quashed as by this order issues have already been decided without giving any opportunity of hearing to the applicant. 8. Considering the submissions of the learned counsel for the applicant and after perusal of the order dated 8.11.2011 and after considering the judgment relied by the learned counsel for the applicant, we are of the considered opinion that the law which has been laid down, in the judgments referred above, and relied by the counsel for the applicants is concerned, there is no quarrel. It is settled law that the Court can decide the issue on the basis of pleadings and on the basis of the grounds raised in any petition and can grant relief which has been claimed It is also settled law that the new quest on of the fact, normally may not be allowed to be raised for the first time in appellate jurisdiction. It is also settled law that the appellate Court has the jurisdiction to decide the appeal and for that purpose can examine the legality and validity of the order impugned. How far above law affects the order dated 8.11.2011 is the issues for determination before us. 9. So far as the present matter is concerned, it originated from the writ petition preferred under Article 226 of the Constitution of India which is entertained by High Court in its original jurisdiction. The appeal is continuation of original proceedings. In the writ petition itself there were facts and material, which have been taken note of in detail, by this Court in order dated 8.11.2011, which we have already referred above, and from that, it is very clear that in the documents annexed with the counter that the allegation of unfair process of selection were already there. The enquiry report was also submitted by the State. The State's contention was that upon finding that a large scale manipulation and allegation of taking bribe have been made, an F.I.R. for the offences punishable under the Indian Penal Code as well as under the provisions of the Prevention of Corruption Act was lodged. The enquiry report was also submitted by the State. The State's contention was that upon finding that a large scale manipulation and allegation of taking bribe have been made, an F.I.R. for the offences punishable under the Indian Penal Code as well as under the provisions of the Prevention of Corruption Act was lodged. Therefore, the fact with respect of the allegation of totally faulty and manipulated processes of selection was on record of the writ petition and these allegations and facts have not been produced before us in appellate jurisdiction as some new facts. 10. It will be relevant to mention here that the writ jurisdiction is not the jurisdiction confined by the strict procedure as prescribed in the C.P.C. However, the principle of the Civil Procedure Code is normally applied. In the writ jurisdiction normally as per the procedure and practice, the issues are not framed as such. The oral evidence is also not taken and the court decides the issues raised in the writ petition on the basis of the materials on record. In the writ rule of admissibility of the documents, in evidence is not applied in strict sense. The writ jurisdiction is extraordinary equitable jurisdiction wherein the Courts have the power to take the cognizance of the relevant facts and grant relief which was not claimed provided the facts are on record and the parties are given opportunity of hearing before granting any such relief. Because of this reason, the High Court can deny the relief to party, if such party has not come with clean hands, which may not be granted in civil matters and party can be punished for his conduct but once such party established his legal right, the relief cannot be denied in civil case in Civil Courts. In writ jurisdiction, writs of several nature can be issued and in that one of the writ is the writ of Quo Warranto, wherein the court can question and quash the appointment of any Government servant. In the writ of Quo Warranto, question of the locus standi is also not given much importance. 11. In writ jurisdiction, writs of several nature can be issued and in that one of the writ is the writ of Quo Warranto, wherein the court can question and quash the appointment of any Government servant. In the writ of Quo Warranto, question of the locus standi is also not given much importance. 11. In view of the above reasons, if the facts constitute and reasons are available for passing the appropriate order, the High Court may in equitable jurisdiction, while considering the matter, can pass appropriate order subject to the condition referred above as well as subject to basic conditions of formulating the points and giving the reasons and making it clear to parties so that parties interested may answer those issues. Therefore, we are not in agreement that the arguments of the learned counsel for the applicants that by order dated 8.11.2011 passed in L.P.A the court has passed the order dated 8.11.2011 exceeding jurisdiction. 12. In the judgment referred above and relied upon by the learned counsel for the applicants the issues were narrow and in the fact situation of those cafes more relief than relief claimed was no allowed and parties were not allowed to raise new plea for the first time in L.P.A. Here in this case, serious allegations of forgery, manipulation and interpolation in the process of the selection as well as the allegation of bribe is supported by the documentary evidence and F.I.R. also has been lodged. Those allegations are yet to be examined. This Court also took note of the facts that there is a possibility that instead of quashing the entire selection process, 19 persons may have been removed, but there is also a possibility that so has been done to protect other persons. This Court also observed that the process of appointment itself has not only been questioned but "some of the actions have already been taken by the State itself on the basis of the findings recorded in the inquiry. 13. This Court also observed that the process of appointment itself has not only been questioned but "some of the actions have already been taken by the State itself on the basis of the findings recorded in the inquiry. 13. We are consciously repeating our those observations which are in the order dated 8.11.2011 and that too, after considering the arguments raised by the learned counsel for the applicant that in the order dated 8.11.2011, this Court has already decided the issues, therefore, nothing now remained to be decided and the order dated 8.11.2011 has been passed by this Court 'without affording opportunity of hearing to the applicant and the show cause notices for the post facto hearing of the decided case. So far as this argument is concerned, if this impression may be formed where the show cause notice is given to the party to explain the allegation then it happens because of the mis-understanding only. The show cause notice when required, gives the facts and the reasons for proposed action, then instead of understanding that the show cause notice issued or the detail reasoned order has been passed for issuing show cause so that concerned party may adequately reply to the facts and the reasons and the grounds for the proposed action the party may develop an impression the reasons are the findings. In law, such impressions are not accepted as legal ground. In this matter, in the order dated 8.11,2011 as well as in the present order, only observations have been made which are the observation only and have been made only to make the facts clear and the reasons obvious and the grounds known to all those persons against whom there was no pleadings in the writ petition. Therefore, there is no reason to have any apprehension that this Court has recorded any finding against any of the candidates or against his candidature or his appointment. This Court has only taken note of the fact and made it clear to the applicants and other similarly situated persons that they have to answer these facts, reasons and the grounds. 14. Learned counsel for the applicants contention that the facts which we have referred above have came for the first time in appeal is factually wrong. This Court has only taken note of the fact and made it clear to the applicants and other similarly situated persons that they have to answer these facts, reasons and the grounds. 14. Learned counsel for the applicants contention that the facts which we have referred above have came for the first time in appeal is factually wrong. These facts on the basis of which order dated 8.11.2011 was passed are already part and parcel of the record of the writ petition itself which came in reply to the writ petition, therefore, the contentions, of the learned counsel for the applicant is based on assumption that these facts and reasons and evidence were allowed to be taken at appellate stage and by the order dated 8.11.2011, scope has been enlarged without there being any foundational fact is factually wrong. It may be true that there is no relief claimed by the respondent-State in the writ petition but the Court has the jurisdiction to correct illegality and grant appropriate relief under Article 226 of the Constitution of India, if facts and reasons are on record and party is given opportunity of hearing. 15. There is yet another argument of the learned counsel for the applicant that the applicant could have been removed only by initiating disciplinary proceedings under the Rules and by passing order under Rule 55 for dismissal/removal or termination from the services of the appellant and other similarly situated persons. We do not find any force in this plea. The disciplinary proceedings can be initiated in the case where any misconduct is committed by employee while he is in service. The issues before this Court is not of any of allegation of misconduct of the employees because of their conduct while they were discharging the duties in service. In departmental proceeding, the only misconduct of employees can be examined. The misconduct, which have been conducted by other Government officials who were part and parcel of an absolutely manipulated and forged selection process (subject to proof), against those persons, the departmental action can be taken separately and they can be punished in their 8ases. Any punishment to such guilty person cannot make wrong committed by them right. The misconduct, which have been conducted by other Government officials who were part and parcel of an absolutely manipulated and forged selection process (subject to proof), against those persons, the departmental action can be taken separately and they can be punished in their 8ases. Any punishment to such guilty person cannot make wrong committed by them right. Such F.I.R. against those persons, who in the opinion of the State Government were responsible for the manipulation in the process of the selection for the post of high ranking posts i.e., the State services like Jharkhand Police Services, Jharkhand State Finance Services, .Jharkhand State Co-operative Services and Jharkhand State Administrative Services and conviction or acquittal of such officers may not validate the appointment legal if, upon proving said appointments are found to be illegal. In the case of grave illegality in the selection of candidates for appointment and manipulation of record and non-constitution of appropriate committee and in the case of bribe and where it is difficult to identify wrongly benefited candidates and their number may substantial, even if there is no fault of some of candidates, or fault of some of the candidates cannot be traced out even then complete selection, without examining the case of individual, can be quashed and set aside. The questioning the appointment, because of the reasons mentioned above, can be examined in writ jurisdiction and also specifically under the writ of quo warranto wherein the Court can examine the legality and validity of the appointment. .. 16. In view of the above reasons, we do not find merit in the I.A. No. 137 of 2012 which is liable to be dismissed. However, we are making it very specific and very clear that by earlier order dated 8th November, 2011 or by this order, we have not observed anything against any of the candidates to whom the show cause notice has been issued and we have made it clear by this order also that issues with respect to the procedure of appointment of candidates, the Bench hearing the matter will decide the issues and therefore, the Bench hearing the matter obvious1y cannot feel influenced by any of the observations made in any of the orders, either in order dated 8.11.2011 or by this order. 17. In view of the above reasons, the I.A. No. 137 of 2012 is dismissed. 17. In view of the above reasons, the I.A. No. 137 of 2012 is dismissed. Matters may be placed before the Bench hearing the L.P.As tomorrow i.e., on 3rd May, 2012.