Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 279 (PAT)

Jyoti Kumar v. Union Of India

2013-03-01

BIRENDRA PRASAD VERMA

body2013
ORDER Heard learned Senior counsel appearing on behalf of the petitioner and learned Senior Central Government counsel Mr. Mithilesh Kumar Rai, duly assisted by Mr. Kumar Priya Ranjan, learned Central Government Counsel appearing on behalf of the respondents 1 to 4. 2. Unfortunately, despite issuance of notice to the private respondent no.5 by an order dated 15.10.2008 and despite valid service of notice upon him, he has chosen not to appear and contest this matter. 3. The petitioner has approached this Court under Article 226 of the Constitution of India with a prayer for issuance of a direction upon respondents 1 to 4 for consideration of his case for his appointment on the post of Constable ( Fire) of Central Industrial Security Force (in short ‘CISF’). For deciding the issues involved in this case, brief facts are required to be noticed. 4. On 19.8.2005, an advertisement was issued in Rozgar Career India, inviting applications from eligible male Indian citizens for appointment on the post of constable (GD) and constable (Fire) in the prescribed pay scale for CISF only. Appointments on the post of constables were required to be made for different States including the state of Bihar mentioned in the said advertisement dated 19.8.2005, brought on record as Annexure-1 to the writ petition. Apart from general vacancies for the post of Constable (GD) and Constable (Fire), certain additional posts were also notified by the said advertisement, which were required to be filled up by the persons belonging to Naxal/Militancy affected areas, as shown against each State as per the Government instructions. For the State of Bihar, apart from 100 posts of Constable (GD), only two posts of constable (Fire) were notified, which were required to be filled up from the persons belonging to Naxal/Militancy affected areas. Out of those two posts one post was earmarked for general category candidate and other post was reserved for Scheduled Caste category candidate. The candidates belonging to the District of Aurangabad, Gaya, Jehanabad, Rohtas, Nalanda, Patna, Bhojpur and Kaimur only were shown to be eligible to apply for this category of posts of Constable being the Naxal/Militancy affected Districts in the State of Bihar. District of Arwal was not shown as the Naxal/Militancy affected District. As per the advertisement, last date for submission of applications was 31.8.2005. District of Arwal was not shown as the Naxal/Militancy affected District. As per the advertisement, last date for submission of applications was 31.8.2005. The petitioner, a resident of District of Aurangabad, claims to have applied with all required documents for solitary post of Constable (Fire) belonging to General Category and earmarked for the candidates belonging to Naxal/Militancy affected areas. The respondent no. 5 belongs to the District of Arwal. 5. It is the case of the petitioner that in view of submission of application by him, he was issued interview letter dated 19.12.2005 (Annexure-2). The petitioner claims to have appeared for interview and produced all the relevant documents as per requirements indicated in the advertisement as also the call letter for interview dated 19.12.2005. It is also the case of the petitioner that though he was at the top of the merit list for the purpose of appointment on the post of Constable (Fire) belonging to general category candidate, and hailing from Naxal/Militancy affected areas, yet he was not appointed. Therefore, he filed a representation before respondent no.3. Since the valid grievance of the petitioner was not redressed, he filed the present writ petition before this Court seeking direction to the official respondents for his appointment on the post of Constable (Fire). 6. A counter affidavit on behalf of the respondent Nos. 1 to 4 was filed as far back as on 15.2.2007. Subsequently, when the matter was heard by this Bench on previous occasion, then in order to satisfy the query made by the Court a supplementary counter affidavit has also been filed on their behalf on 26.2.2013 and both the counter affidavits are available on the record. As indicated earlier, despite issuance and valid service of notice, there is neither any appearance on behalf of respondent no.5 nor there is any counter affidavit on his behalf resisting the claim made on behalf of the petitioner. 7. In the counter affidavit filed on behalf of respondent Nos. 1 to 4, in paragraph 6, it has been clearly stated that after physical measurement and written test conducted by the Recruitment Board, the petitioner was empanelled at Serial No.1 amongst general category candidates to be called for medical examination. 7. In the counter affidavit filed on behalf of respondent Nos. 1 to 4, in paragraph 6, it has been clearly stated that after physical measurement and written test conducted by the Recruitment Board, the petitioner was empanelled at Serial No.1 amongst general category candidates to be called for medical examination. However, in paragraph 7, it has been stated that the District of Arwal in the State of Bihar was part and parcel of the District of Jehanabad and by a notification dated 20.8.2001 District of Jehanabad was bifurcated and separate District of Arwal was created. It is the case of the respondents Nos.1 to 4 that the District of Arwal is also Naxal affected District. Therefore, candidates belonging to District of Arwal were also allowed to apply and their case was considered for such appointment. According to the respondent Nos. 1 to 4, claim of respondent no. 5 belonging to the District of Arwal was also considered, and Recruitment Board proceedings was prepared afresh, and thereafter, name of respondent no.5 was at Serial No.1 and that of the petitioner was at Serial No. 2. According to them, since respondent no.5 had secured higher marks than the petitioner, therefore, finally respondent no.5 was appointed and claim of the petitioner could not be considered for his medical examination for appointment on the post of Constable (Fire), as there was only one post of Constable (Fire) as per the aforesaid advertisement. In support of their above contentions respondent Nos. 1 to 4 have brought fax communications dated 16.12.2005 issued by the respondent Deputy Inspector General, Eastern Zone of CISF and the fax communication dated 21.12.2005 granting approval by the competent authority for inclusion of District of Arwal of State of Bihar amongst Naxal affected areas for the purpose of recruitment of Constable (G.D. & Fire). The aforesaid documents have been brought on record as Annexure-C series along with the supplementary counter affidavit filed on behalf of the respondent Nos. 1 to 4. 8. After having heard the parties, and on consideration of materials on record, this Court comes to the following factual conclusions:- A. The advertisement for appointment on the post of Constable (Fire) from amongst the candidates belonging to Naxal/Militancy affected Districts was issued on 19.8.2005 and last date for submission of application was 31.8.2005. 1 to 4. 8. After having heard the parties, and on consideration of materials on record, this Court comes to the following factual conclusions:- A. The advertisement for appointment on the post of Constable (Fire) from amongst the candidates belonging to Naxal/Militancy affected Districts was issued on 19.8.2005 and last date for submission of application was 31.8.2005. B. The District of Arawal in the State of Bihar had already been created as far back as on 20.8.2001 vide notification as contained in Annexure ‘A’ to the counter affidavit, yet Arwal District was not included in the advertisement amongst the Naxal/Milaitancy affected Districts. C. The candidates belonging to the District of Arwal were not eligible to apply for the post in question. D. Respondent No. 5 belonging to District of Arwal was not eligible for submission of his application for the post in question. E. The Clarification by the respondent No.3, Deputy Inspector General of CISF for the purpose of inclusion of District of Arwal was sought by fax communication dated 16.12.2005 and fax communication by the competent authority granting such approval was issued on 21.12.2005 i.e. after expiry of last date for submission of applications. If the District of Arwal was included in December, 2005 amongst the Naxal affected Districts for the purpose of appointment on the posts advertised, then any application filed by respondent no.5 for the purpose of appointment on the post of Constable (Fire) was obviously after expiry of last date for submission of such application, and as such it could not have been entertained by the Recruitment Board. F. No corrigendum/advertisement was ever issued by respondents 1 to 4 for the purpose of inclusion of District of Arwal also for selection on the post in question. The application submitted by respondent no.5 appears to have been accepted after the communication dated 21.12.2005 i.e. after expiry of last date of submission of applications, through some backdoor method. Therefore, the respondent no. 5 was not at all eligible for consideration for appointment on the post in question. 9. The application submitted by respondent no.5 appears to have been accepted after the communication dated 21.12.2005 i.e. after expiry of last date of submission of applications, through some backdoor method. Therefore, the respondent no. 5 was not at all eligible for consideration for appointment on the post in question. 9. In view of the factual conclusions recorded above, and in absence of any corrigendum for modification/correction of the advertisement dated 19.8.2005 (Annexure-1), this Court is of the considered opinion that respondents 1 to 4 were not legally authorized to change the rules of game in the midst of selection process and that too without giving any information/knowledge to all the candidates including the petitioner. It is true that as per averment made in the counter affidavit, respondent no.5 had secured higher marks than the petitioner, but since the respondent no. 5 was not eligible for the post in question in view of terms and conditions in the advertisement (Annexure-1), therefore, his claim could not have been considered by the respondents. If the respondent No.5 is excluded from the merit list due to his ineligibility, then apparently the petitioner was at the top of the merit list. The action of respondents 1 to 4 in considering the claim of respondent no.5 and his subsequent appointment on the post of Constable ( Fire) and non-consideration of the claim of the petitioner appear to be wholly arbitrary, illegal and on certain extraneous considerations for reasons best known to them, which cannot not be sustained in the eye of law. 10. For the reasons recorded above, this writ petition succeeds and is, accordingly, allowed. The appointment of respondent no. 5 on the post of Constable (Fire) pursuant to advertisement dated 19.8.2005 (Aannexure-1) is hereby set aside. Respondents 1 to 4 are hereby directed to consider the case of the petitioner for his appointment on the post of Constable (Fire), and if he is found medically fit, then they must appoint the petitioner on the post of Constable (Fire). Entire exercise must be completed by the official respondents within a period of three months from the date of receipt/production of a copy of this order. 11. It is clarified that the petitioner shall not be entitled to claim any back wages or any other related claim with respect to the period prior to his appointment to be made by the respondents pursuant to this order. 11. It is clarified that the petitioner shall not be entitled to claim any back wages or any other related claim with respect to the period prior to his appointment to be made by the respondents pursuant to this order. It is further clarified that since respondent no.5 has discharged his duties on the post in question, the respondents shall not pass any order for recovery of salary and other benefits given to him for the period during which he has discharged his duty as Constable (Fire)