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2013 DIGILAW 966 (JHR)

Gautam Kumar v. State of Jharkhand

2013-08-16

D.N.PATEL, SHREE CHANDRASHEKHAR

body2013
JUDGMENT 1. This appeal has been preferred against the judgment and order passed by the learned Single Judge in W.P. (S) No. 4301 of 2012 dated 2nd April, 2013, whereby the writ petition preferred by these petitioners have been dismissed. 2. Counsel appearing for the appellants (original petitioners) submitted that the appellants have applied for the post of a Driver Constable. The public advertisement which is at Annexure-2 series is dated 10.10.2009. The condition for eligibility was that an applicant should have a driving licence of a light motor vehicle or heavy motor vehicle atleast two years prior to the date of advertisement. The appellant no. 1 has a driving licence dated 07.11.2008 and the appellant no. 2 has a driving licence dated 23.08.2008. The respondent-State has taken the final examination in the year, 2012 and therefore, from the date of examination, if the period is reckoned then, both these appellants are eligible. These aspects of the matter have not been properly appreciated by the learned Single Judge and therefore, the judgment and order passed by the learned Single Judge dated 2nd April, 2013 in the W.P. (S) No. 4301 of 2012, deserves to be quashed and set aside. 3. We have heard the counsel for the respondent-State, who has submitted that both these appellants who are the original petitioners never challenged the condition imposed by the respondent-State in the advertisement and once the appellants have participated in the selection process, the rules of selection process cannot be challenged by these two appellants. The condition imposed in the advertisement was not fulfilled by both these appellants. In the advertisement dated 10.10.2009, there was a condition that the applicants should have driving licence atleast two years prior to the date of advertisement, whereas both these appellants have a driving licence of August, 2008 and November, 2008 and therefore, rightly the learned Single Judge has dismissed the writ petition preferred by both these petitioners. There is no error in the judgment by the learned Single Judge and hence, this Letters Patent Appeal may not be entertained by this Court. 4. There is no error in the judgment by the learned Single Judge and hence, this Letters Patent Appeal may not be entertained by this Court. 4. Having heard the counsel for both the sides and looking to the facts and circumstances of the case and looking to the order passed by the learned Single Judge in W.P. (S) No. 4301 of 2012, we see no reason to entertain this Letters Patent Appeal mainly for the following facts and reasons: (i) The respondent-State has invited applications for the post of Driver Police Constable vide public advertisement dated 10.10.2009, which is at Annexure-2 series of this Letters Patent Appeal and one of the conditions imposed by this advertisement was that the applicant should have a driving licence of light motor vehicle or heavy motor vehicle of at least two years prior to the date of advertisement. (ii) Both these appellants applied for the post of Driver Police Constable initially in the year, 2010 and while participating in the selection for the aforesaid posts, they never raised objection to the condition imposed by the respondent-State in the advertisement about the driving licence. Nor any letter was written that the condition imposed by the State was unreasonable condition. On the contrary, this condition about the driving licence was accepted by both these appellants and knowing fully well these conditions, both of them have participated in the selection process for the post of Driver Police Constable. (iii) The selection Committee/Board of the respondent-State have not selected the present appellants for the post of Driver Police Constable in comparison with other candidates mainly for the reason that the driving licence of both these appellant no. 1 and appellant no. 2 were not of two years prior to the date of advertisement. Appellant no. 1 is having a driving licence dated 7th November, 2008 and appellant no. 2 is having a driving licence dated 23rd August, 2008, whereas the date of public advertisement is 10.10.2009. Thus, the driving licence of both these appellants were not two years prior to the date of advertisement. Hence, both these appellants were not eligible for preferring their applications. This aspect of the matter has been properly appreciated by the learned Single Judge and no error has been committed by the learned Single Judge in dismissing the writ petition preferred by these appellants. Hence, both these appellants were not eligible for preferring their applications. This aspect of the matter has been properly appreciated by the learned Single Judge and no error has been committed by the learned Single Judge in dismissing the writ petition preferred by these appellants. (iv) Even, the respondents have taken the first examination in March, 2010. (v) Once both these appellants have participated in the selection process for the post in question, the rules of eligibility also cannot be challenged by them. 5. The Hon'ble Supreme Court in “Union of India & Ors. Vs. S. Vinodh Kumar & Ors.”, reported in (2007) 8 SCC 100 , in paragraph no. 16, has held as under: 16. “In any view of the matter, the respondents appeared in a competitive examination. The posts advertised were public posts. They did not have any vested right for appointment. It is well known that even selected candidates do not have legal right in this behalf.” 6. The Hon'ble Supreme Court in “K.A. Nagamani Vs. Indian Airlines & Ors.”, reported in (2009) 5 SCC 515 , in paragraph no. 54, has held as under: 54. “The Corporation did not violate the right to equality guaranteed under Articles 14 and 16 of the Constitution. The appellant having participated in the selection process along with the contesting respondents without any demur or protest cannot be allowed to turn round and question the very same process having failed to qualify for the promotion.” (Emphasis Supplied) 7. The Hon'ble Supreme Court in “Manish Kumar Shahi Vs. State of Bihar & Ors.”, reported in (2010) 12 SCC 576 , in paragraph no. 16, has held as under: 16. “We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in “Madan Lal Vs. State of J & K”, reported in (1995) 3 SCC 486 , “Marripati Nagaraja Vs. Govt. of A.P.”, reported in (2007) 11 SCC 522 , “Dhananjay Malik Vs. State of Uttaranchal”, reported in (2008) 4 SCC 171 , “Amlan Jyoti Borooah Vs. State of Assam”, reported in (2009) 3 SCC 227 and “K.A. Nagamani Vs. Indian Airlines & Ors.”, reported in (2009) 5 SCC 515 .” 8. In view of the aforesaid decisions, it is settled that once a candidate participated in the selection process, the selection cannot be challenged by the candidate. 9. In the light of the aforesaid facts and reasons, we see no justifiable reason to entertain this instant appeal and to interfere with the judgment delivered by the learned Single Judge. Hence, this Letters Patent Appeal is dismissed.