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Jharkhand High Court · body

2018 DIGILAW 1171 (JHR)

Eqbal Ahmad v. State Of Jharkhand

2018-05-18

S.N.PATHAK

body2018
JUDGMENT S. N. Pathak, J. – Let the defects, if any, in the aforesaid cases, be ignored for the present. 2. In this batch of writ petitions, the prayer has been made to allow the petitioners to appear in Jharkhand Finance Service (Limited) Competitive Examination, which is scheduled to be held on 20th May, 2018, pursuant to Advertisement No. 10/2010, read with Press Communique, dated 06.02.2017 issued by Jharkhand Public Service Commission for appointment to the post of Commercial Tax Officer. Further prayer has been made to treat the date of confirmation of the petitioners issued /made prior to 30.11.2010 i.e. before the cutoff date in view of the confirmation of the services issued retrospectively. 3. An advertisement being Advertisement No. 10/2010 was floated by the Jharkhand Public Service Commission, published in daily Hindustan Times, Ranchi edition, Ranchi on 09.10.2010 for appointment to the post of Commercial Tax Officer through Limited Departmental Examination. As per this Advertisement, a candidate having Graduate or equivalent degree from a recognized University is entitled to participate, provided he is working for more than five years in Government Service on a Class- III post. The petitioners having the requisite qualifications in pursuant to said advertisement, applied for the said post. The applications of the petitioners were forwarded through proper channel to J.P.S.C and the same were received in the office of Jharkhand Public Service Commission well within the last date of submission of application form. It is the specific case of the petitioners that Jharkhand Public Service Commission published a Press Communique, which was placed on the website of JPSC and candidatures of 908 candidates were rejected, but the name of the petitioners did not find place in the said list of rejected candidates. It was assumed that the case of petitioners have been accepted for participating in the exams. The petitioners were hopeful for participating in the said examinations but, a Press Communique was issued by JPSC, on 6th February, 2017, whereby the candidates have been asked to submit on or before 20.02.2017, the certified copy of the entries made in the service book, relating to confirmation of his/her services. It is further stipulated that the entries related to confirmation must have been made prior to cut-off date i.e. 01.04.2005. In pursuance thereto, all these petitioners submitted their confirmation letter related to confirmation of services before the JPSC. It is further stipulated that the entries related to confirmation must have been made prior to cut-off date i.e. 01.04.2005. In pursuance thereto, all these petitioners submitted their confirmation letter related to confirmation of services before the JPSC. The said press release was challenged before this Court by way of writ petitions and this Court vide order dated 10.05.2017 passed in W.P.(S) No.1094 of 2017 and other analogous cases made clarification to the above mentioned press release that no exception can be taken to the press release dated 06.02.2017 requiring the candidates to produce his/her service-book evidencing confirmation in service as on 01.04.2005. The affidavit filed by the respondent-State makes the candidates eligible, even if their order of confirmation in service is issued on the last date of application, however, it relates back to on or before 01.04.2005. The Commission shall accept the application of those candidates who has completed 5 years of continuous service as on 01.04.2005 and their service has been confirmed w.e.f. 01.04.2005 or from a prior date. Subsequently, a press release has been issued by JPSC in which the examination for Commercial Tax Officer (Limited ) Competitive Examination is scheduled to be held on 20.05.2018 and also whereby and whereunder a rejection list was published and the petitioners'' application for appointment to the post of Commercial Tax Officer Limited Examination (Advertisement No. 10/10) has been rejected on the ground that the confirmation order was issued after 30.11.2010 i.e. the last date of submission of application form irrespective of the fact that the petitioners fulfilled all eligibility criteria, though their confirmation letters were issued after 30.11.2010 but the services of the petitioners were confirmed w.e.f retrospective dates that falls well before the cut off date i.e. 01.4.2005. 4. Aggrieved thereby, the petitioners have represented before the respondent- JPSC stating therein that their services have been confirmed with retrospective date i.e. prior to the cut-off date i.e. on 01.04.2005 and as such, their applications for appointment on the post of Commercial Tax Officer may be considered and they may be permitted to appear in the examination, which has to be held on 20.05.2018, but the respondents are sitting tight over the matter. Left with no other efficacious, alternative and speedy remedy, the petitioners have been constrained to approach this Court invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India for redressal of their grievances. 5. Mr. Rajiv Ranjan, Sr. Advocate, learned counsel appearing on behalf of the petitioners strenuously urges that the petitioners are fully entitled for appearing in the examination pursuant to Advertisement No. 10/2010 as they fulfill all the eligibility criteria and requisite qualification for the same. Learned counsel further argues that services of the petitioners were not confirmed due to the fault of the respondents and petitioners cannot be made to suffer because of the fault of the respondents. Learned counsel further argues that even their services have been confirmed with retrospective date i.e after 2010 but they have submitted service book, evidencing confirmation in service as on 01.04.2005, much prior to 20.02.2017 and as such, very comfortably, it can be said that on the cut-off date, their services were duly confirmed and they are fully eligible for appearing in the exams pursuant to advertisement No. 10/2010. It is not a case that the petitioners were not eligible, but only requirement was for submitting the service book, evidencing confirmation in service as on 01.04.2005 and from the documents it is crystal clear that the petitioners were confirmed with a retrospective date and have five years experienced before the cut off date as per the press communique dated 20.02.2017 and as such, the services of the petitioners were duly confirmed and they were eligible for appearing in the said exam pursuant to Advertisement No. 10/10. Learned counsel further argues that a direction may be given upon the respondents to allow the petitioners to appear in the said exam. 6. To strengthen his argument, learned counsel for the petitioners places reliance on para 4 & 5 of reported Judgment of Hon''ble Apex Court in case of Md. Muzaffar Alam Vs. State of Bihar & Ors. , (2001) 10 SCC 169 and argues that the case is fully applicable in the instant cases and as such, petitioners are entitled for appearing in the exams as their order of confirmation in service have been issued with retrospective effect and on the cut-off date as per the press release, their services were fully confirmed. , (2001) 10 SCC 169 and argues that the case is fully applicable in the instant cases and as such, petitioners are entitled for appearing in the exams as their order of confirmation in service have been issued with retrospective effect and on the cut-off date as per the press release, their services were fully confirmed. Learned counsel further argues that the having the conscious of the fact that earlier this Hon''ble Court taking into consideration the entire facts had dismissed W.P.(S) No. 938 of 2017 in case of Ajay Kumar Singh Vs. the State of Jharkhand & Ors. vide its order dated 24.04.2018. Learned counsel distinguishing the order passed in case of Ajay Kumar Singh submits that in the aforesaid case, the petitioner had no confirmation order on the date of press communique and he could not submit the same but in the instant cases, the services of the petitioners were confirmed though with a retrospective date and they have submitted the service book, evidencing the confirmation in service before the cut off date i.e. 20.02.2017 as per press communique. 7. Mr. Indrajit Sinha, learned counsel appearing on behalf of the petitioners also supports the contention of Mr. Rajiv Ranjan, Sr. Advocate and submits that even in the case of Ram Kumar Gijroya Vs. Delhi Subordinate Services Selection Board , (2016) 4 SCC 754 , the Hon''ble Apex Court has held that if the petitioner fulfills all the requisite criteria, the cut off date cannot come in the way. In the instant case, evidences of eligibility was sought for, which was submitted before the cut off date as per the press communique, the petitioners are entitled to appear in the said examination, which is going to be held on 20.05.2018. 8. Mr. P.P.N. Roy, learned Sr. counsel appearing on behalf of the petitioner in W.P.(S) No. 2388 of 2018 argues that the petitioner has already confirmed services of five years and certificate to the same was issued in year, 2015 itself, which was much prior to press communique and as such, he was fully entitled for the same. Learned counsel places heavy reliance on para 39 of a reported Judgment of Hon''ble Apex Court in case of S.B. Patwardhan Vs. State of Maharashtra , (1977) AIR SC 2051. 9. Mr. Learned counsel places heavy reliance on para 39 of a reported Judgment of Hon''ble Apex Court in case of S.B. Patwardhan Vs. State of Maharashtra , (1977) AIR SC 2051. 9. Mr. Rajendra Krishna, learned counsel for the petitioners also submits that the services of the petitioners were confirmed from retrospective date though the confirmation orders were issued after the year, 2010, but the services of the petitioners were confirmed prior to 01.04.2005 with retrospective effect. It is further argued that there is no cut-off date mentioned in the main advertisement and on the date of press release i.e. on 06.02.2017, the petitioners were in possession of confirmation order, therefore, their candidature has to be accepted. 10. Mr. Indrajit Sinha, learned counsel for the petitioner in W.P.(S) No. 2407 of 2018 very fairly submits that in the instant case, the petitioner failed to submit any document regarding confirmation of services prior to press release. Learned counsel further submits that similar issue fell for consideration before a coordinate Bench of this Court and the Hon''ble Court has directed the respondents to consider the case of the petitioners, who had submitted the service book, evidencing confirmation in service as on 01.04.2005. 11. Mr. Sanjoy Piprawall, learned counsel appearing on behalf of the respondent-JPSC very fairly submits that no counter-affidavit has been filed in these cases as the same and similar issue has already been decided by this Hon''ble Court vide order dated 24.04.2018 in case of Ajay Kumar Singh Vs. State of Jharkhand & Ors., passed in W.P.(S) No. 938 of 2017. Learned counsel for the respondents vehemently opposes the contention advanced by the learned counsels for the petitioners and submits that the only issue, which has to be considered in these cases has already been decided by this Hon''ble Court as to whether the petitioners are fulfilling the eligibility criteria as mentioned in the advertisement i.e. whether the petitioners are eligible as per the advertisement on or before the 30.11.2010. Admittedly, the order of confirmation of services of the petitioners were issued after the last date of submission of application forms i.e. on 30.11.2010, granting confirmation with effect from retrospective date. In view of that, whether the petitioners are made eligible for consideration of their candidature. Admittedly, the order of confirmation of services of the petitioners were issued after the last date of submission of application forms i.e. on 30.11.2010, granting confirmation with effect from retrospective date. In view of that, whether the petitioners are made eligible for consideration of their candidature. Learned counsel for the respondents further argues that candidates must have fulfilled the requisite eligibility criteria by the last date of submission of the application form and a candidate acquiring the eligibility criteria indicated in the advertisement after the last date of the submission of the application form is not eligible for consideration for appearance in the exam. It is further argued that as per the requirement to submit relevant letters/service excerpts regarding confirmation of services as well as completion of five years of services with confirmation of services up to the cut-off date in terms of advertisement/ press communique, the Commission will have no option except to reject the candidature of such candidate in terms of the advertisement. Learned counsel further argues that as per Clause 3 of the said advertisement, candidates who have completed five years of continuous services with confirmation order issued prior to the cut off date i.e prior to 01.04.2005, are only eligible, and in all the cases, the services of the petitioners have been confirmed after the last date of submission of Application Form i.e. 30.11.2010. Learned counsel for the respondents further submits that the clarification regarding the press communique has already been clarified in para 6 to 8 of order passed in W.P.(S) No. 1094 of 2017 along with other analogous cases, which was disposed of vide order dated 10.05.2017, para 8 of the said judgment reads as under :- 8. No exception can be taken to the press release dated 06.02.2017 requiring the candidates to produce his/her service-book evidencing confirmation in service as on 01.04.2005. The affidavit filed by the respondent-State makes the candidates eligible, even if their order of confirmation in service is issued on the last date of application, however, it relates back to on or before 01.04.2005. The Commission shall accept the application of those candidates who has completed 5 years of continuous service as on 01.04.2005 and their service has been confirmed w.e.f. 01.04.2005 or from a prior date. 12. The Commission shall accept the application of those candidates who has completed 5 years of continuous service as on 01.04.2005 and their service has been confirmed w.e.f. 01.04.2005 or from a prior date. 12. To buttress his argument, learned counsel for the respondents places reliance on a reported Judgment of Hon''ble Apex Court in case of Rakesh Kumar Sharma Vs. State (NCT of Delhi) & Ors. , (2013) 11 SCC 58 . Learned counsel further relied upon a judgment of this Court in case of Bimal Bihari Sinha Vs. State of Jharkhand & Ors. [W.P.(S) No. 1094 of 2017 and other analogous cases]. Learned counsel lastly argues that the cases are squarely covered by the order passed by this Hon''ble Court in W.P.(S) No. 938 of 2017, which was dismissed on 24.04.2018. On such grounds, learned counsel for the respondentJPSC prays that these cases are also liable to be dismissed. 13. Learned Associate Counsels appearing on behalf of the respondentState adopt the argument of the learned counsel for the respondent-JPSC. 14. Be that as it may, having gone through the rival submissions of the parties and perusal of the records, this Court is of the considered view that law is very well settled regarding the acceptance of application form or allowing the candidate to appear in the exams after the cut-off date. The issues to be decided in the instant cases are as follows :- 1. Whether the petitioners were at all eligible for appearing in the said examinations though they did not meet the requirement as per Clause 3 of the Advertisement No. 10/2010. 2. Whether the petitioners fulfilled the eligibility criteria as per the requirement of Clause 3 of the Advertisement though their services were confirmed after the cut of date i.e. 31.10.2011. 3. Whether the press communique extended the cut-off date for submission of the confirmation order/service excerpts. 15. Admittedly, from perusal of the documents brought on records, it appears that the services of the petitioners were confirmed after the last date of submission of application form i.e. 30.11.2010. The services of none of the petitioners were confirmed prior to the last date of submission of the application form, meaning thereby the petitioners were not eligible as on last date of submission of Application form and they do not fulfill the eligibility criteria as per the requirement of Clause 3 of the said advertisement. The services of none of the petitioners were confirmed prior to the last date of submission of the application form, meaning thereby the petitioners were not eligible as on last date of submission of Application form and they do not fulfill the eligibility criteria as per the requirement of Clause 3 of the said advertisement. Though the services of the petitioners were confirmed from the date of initial appointment / after three years of service but admittedly, the said confirmation order was issued only after the submission of application form i.e. on 30.11.2010, even in view of the press communique, the documents evidencing confirmation in services were to be of prior to 01.04.2005. The press communique does not come to rescue of the petitioners and it never says that the evidencing confirmation documents were to be accepted prior to 20.02.2017, it clearly said that such documents of confirmation had to be of prior to 01.04.2005 which was required to be submitted by the candidates by 20.02.2017, it is not that documents had to be of prior to 20.02.2017. Admittedly, the petitioners did not fulfill the eligibility criteria/ requisite qualification on the cut-off date/ last date of submission of application form. May be the services of the petitioners were not confirmed due to the laches on the part of the respondents but admittedly, as on the cut-off date, the petitioners did not fulfill the eligibility criteria of confirmation, which was a part of the advertisement/ press Communique. The reliance of the learned counsel for the petitioners in case of Md. Muzaffar Alam Vs. State of Bihar & Ors. is no help to him. In Md. Muzzaffar Allam , the Hon''ble Apex Court was of the view that similarly situated persons have already been given the benefit of due consideration, excluding the appellant would be discriminatory and unreasonable. In the aforesaid case, the petitioner had appeared in the examinations and faced the interview but the results were not declared and as such, in the aforesaid premises, exclusion of the appellant from consideration cannot be sustained. In the instant case, the facts are completely different. 16. It has been held by the Hon''ble Apex Court in case of Harpal Kaur Chahal Vs. Director, Punjab Instructions , (1995) Supp4 SCC 706, in para 2, which reads as under:- 2. In the instant case, the facts are completely different. 16. It has been held by the Hon''ble Apex Court in case of Harpal Kaur Chahal Vs. Director, Punjab Instructions , (1995) Supp4 SCC 706, in para 2, which reads as under:- 2. " It is to be seen that when the recruitment is sought to be made, the last date has been fixed for receipt of the applications. Such of those candidates, who possessed of all the qualifications as on that date, alone are eligible to apply for and to be considered for recruitment according to the rules." 17. The Hon''ble Apex Court in case of State of Gujarat Vs. Arvindkumar T. Tiwari , (2012) 9 SCC 545 has held in para 14, as under:- 14. "A person who does not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules, and would therefore, be void in law. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegality and not mere irregularity. Such a person cannot approach the Court for any relief for the reason that he does not have a right which can be enforced through Court." 18. The Hon''ble Apex Court in case of Rakesh Kumar Sharma Vs. State (NCT of Delhi) & Ors. , (2013) 11 SCC 58 has been held :- There could be a large number of candidates, who were not eligible as per the requirement of rules/advertisement since they did not possess the required eligibility on the last date of submission of the application forms. Granting any benefit to the petitioner would be violative of the doctrine of equality, a backbone of the fundamental rights under our Constitution. A large number of such candidates may not have applied considering themselves to be ineligible adhering to the statutory rules and the terms of the advertisement. Usurpation of a post by an ineligible candidate in any circumstance is impermissible. 19. It has been held by the Hon''ble Apex Court in case of Yogesh Kumar & Ors. Vs. Govt. of NCT, Delhi & Ors. , (2003) 3 SCC 548 which reads as under :- ''Recruitment to public services should be made strictly in accordance with the terms of advertisement and recruitment rules. 19. It has been held by the Hon''ble Apex Court in case of Yogesh Kumar & Ors. Vs. Govt. of NCT, Delhi & Ors. , (2003) 3 SCC 548 which reads as under :- ''Recruitment to public services should be made strictly in accordance with the terms of advertisement and recruitment rules. Deviation from the rules allows entry to ineligible persons and deprives many others who could have competed for the post.'' 20. The Hon''ble Apex Court in case of Ritesh Tiwari Vs. State of Uttar Pradesh , (2010) 10 SCC 677 , para 26 has held that :- "26. The power under Article 226 of the Constitution is discretionary and supervisory in nature. It is not issued merely because it is lawful to do so. The extraordinary power in the writ jurisdiction does not exist to set right merely errors of law which do not occasion any substantial injustice. A writ can be issued only in case of a grave miscarriage of justice or where there has been a flagrant violation of law. The writ court has not only to protect a person from being subjected to a violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the Court. However, being that the power is discretionary, the Court has to balance competing interests, keeping in mind that the interests of justice and public interest coalesce generally. A court of equity, when exercising its equitably jurisdiction must act so as to prevent perpetration of a legal fraud and promote good faith and equity. An order in equity is one which is equitable to all the parties concerned. The petition can be entertained only after being fully satisfied about the factual statements and not in a casual and cavalier manner." 21. Similar issue fell for consideration before this Court in case of Ajay Kumar Singh and the same was dismissed vide order dated 24.04.2018 with an observation that cut off date cannot vary as per the suitability of the candidates. As the candidates were not eligible and fulfill the eligibility criteria, their candidature cannot be acceptable. The same view is reiterated in the instant cases also. 22. The distinguish feature as demonstrated by the learned Sr. As the candidates were not eligible and fulfill the eligibility criteria, their candidature cannot be acceptable. The same view is reiterated in the instant cases also. 22. The distinguish feature as demonstrated by the learned Sr. counsel, is not at all acceptable to this Court, cut off date is for all candidates and it cannot be changed. The reliance of the learned Sr. counsel, Mr. P.P.N. Roy in para 39 in case of S.B. Patwardhan Vs. State of Maharashtra is not applicable in the instant case, as para 39 of the said Judgment relates to promotion in which it was held that confirmation cannot come in way of promotion, if not specifically mentioned in the rules and it also related to seniority. 23. As the petitioners did not fulfill the requisite qualification/ eligibility criteria as on or before the cut-off date, no interference is warranted in the instant writ applications. In view of the aforesaid judicial pronouncements, legal propositions, rules and guidelines, there is no illegality or infirmity in not entertaining the candidature of the petitioners by the respondents. The instant writ petitions are devoid of any merit. 24. Resultantly, the writ petitions stand dismissed.