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2016 DIGILAW 804 (JHR)

Saheb Ram Mahto v. State of Jharkhand

2016-05-09

ANANDA SEN, D.N.PATEL

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ORDER : 1. This Letters Patent Appeal has been preferred against the judgment and order dated 5th May, 2014 delivered by the learned Single Judge in W.P. (S) No. 2062 of 2013, whereby the writ petition preferred by this appellant was dismissed and hence original petitioner preferred this Letters Patent Appeal. 2. Counsel appearing for the appellant submitted that for the post of Constable/Home Guard, Advertisement No. 3 of 2007 was published by the State, district wise. For the district of Bokaro, the total vacancy was 176 and for Dhanbad it was 188 etc. 3. It appears from the facts of the case that this appellant has applied with respect to district Bokaro. It is submitted by the counsel for the appellant that the appellant, who had acquired 12 marks, was not selected because for the district of Bokaro candidates acquiring not below 13 marks have been selected. Actually, different cut off marks were fixed for different districts. For the district of Bokaro cut of marks was 13, whereas in other districts candidates acquiring 12 marks have also been selected. In fact, no particular minimum cut off mark has been fixed for the entire selection process at all and different cut off marks have been prescribed by the Selection Committees whimsically which led to this discrimination. It is also submitted by the counsel for the appellant that if the cut off mark had been fixed as per law, this appellant would have been selected on the post of Constable-Home Guard. This aspect of the matter has not been properly appreciated by the learned Single Judge while dismissing the writ petition and hence, this Letters Patent Appeal was preferred. 4. Counsel for the respondents submitted that in the police manual there are specific rules guiding the selection procedure and eligibility of the candidates etc. Constable/Home Guard is not a transferable post from one district to another. Every district has a separate Selection Committee. Even if the petitioner had acquired one more mark, i.e. 13, there are 42 candidates above this appellant and the posts which are left out to be filled up are 37 out of total 176. Thus, even otherwise also, there was no chance for this appellant for his selection on the post of a Constable-Home Guard. Even if the petitioner had acquired one more mark, i.e. 13, there are 42 candidates above this appellant and the posts which are left out to be filled up are 37 out of total 176. Thus, even otherwise also, there was no chance for this appellant for his selection on the post of a Constable-Home Guard. This aspect of the matter has been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant. Moreover, the public advertisement in question is of the year 2007. By now the selection procedure is already over and the selected candidates have already joined the services. Even subsequent advertisement for the post of constable has been published carrying forward the vacancies. 5. Having heard counsel for both sides and looking to the facts and circumstances of the case, there is no ground to entertain this Letters Patent Appeal for the following facts and reasons: (i) For the post of Constable, Advertisement No. 3 of 2007 was published district wise. The vacancies for district Bokaro and Dhanbad were 176 and 188 respectively. (ii) This appellant-original petitioner applied for the post of constable for the District of Bokaro. He participated in the process of selection. The selection committee had fixed 13 as the cut off mark. As this petitioner could not get minimum qualifying marks he was not selected. It further appears from facts of the case that even if cut of mark had been decreased from 13 to 12, then also there are 42 candidates above this appellant and the vacant posts left out are only 37 and hence also this candidate would not have been selected for the post in question. This matter is properly appreciated by the learned Single Judge while dismissing the writ petition. (iii) It further appears from the facts of the case that there is no legal obligation on the part of the State to fill up all the posts advertised. This matter is properly appreciated by the learned Single Judge while dismissing the writ petition. (iii) It further appears from the facts of the case that there is no legal obligation on the part of the State to fill up all the posts advertised. It may happen that lesser number of posts will be filled up compared to what has been advertised because post advertised may be more but the performance of the candidates is so poor that there bound to be a cut off mark fixed by the selection committee to maintain a particular standard, candidates falling below which may not be appointed and therefore, in the facts of the present case, for the District of Bokaro, though 176 posts were advertised, 37 posts are not filled up. It is the prerogative power of the State not to select all the candidates even though posts are available. Suitability of the candidates and not filling up of all the vacant posts is the point to be focused. If the candidates are below average as per Selection Committee, they may not be selected even though the posts are available. (iv) Counsel appearing for the appellant submitted that 37 posts were left vacant out of the advertised 176 posts and therefore, the criteria for selection should have been lowered by the Selection Committee and the cut of mark should not have been fixed. We are not accepting this contention because what should be the minimum standard of the candidates to be selected for the post in question that can always be decided by the Selection Committee, otherwise, e.g. for 100 posts advertised if the number of candidates applying are only 80 that does not mean that all 80 candidates could be appointed because out of these 80 candidates only 20 or 25 may be held average and hence, those who are below average must be weeded out and they cannot be given appointment even though the posts are available. This is a prerogative power of the State and once there is a prerogative power of the State, there is no corresponding public duty nor any corresponding right vested in anyone and hence, there is no breach of any public duty by the State and therefore, no writ of mandamus can be issued upon the State for filling up all the advertised posts. (v) Even otherwise also advertisement was of the year 2007 and selection process even for the successive year has been complete. Vacancies have been carried forward, as submitted by the counsel appearing for both sides and hence also we see no reason to entertain this Letters Patent Appeal at this belated stage. 6. As a cumulative effect of the aforesaid facts and reasons, there is no substance in this Letters Patent Appeal as no error has been committed by the learned Single Judge in dismissing W.P. (S) No. 2062 of 2013 vide Order dated 5th May, 2014, hence, this Letters Patent Appeal is, hereby, dismissed. LPA dismissed.