Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 2467 (JHR)

Santosh Kumar Singh v. State of Jharkhand

2018-11-05

PRAMATH PATNAIK

body2018
JUDGMENT : Pramath Patnaik, J. In the captioned writ application, prayer has been made for direction upon the respondent no.3 for appointment of the petitioner in the post of constable under 50% reserve quota for the Home Guard in the district of Chatra since respondent nos.4 and 5 having secured less marks in the merit list have been appointed from district Koderma and Giridih. 2. The brief facts of the case, as has been delineated in the writ petition is that the petitioner having passed Intermediate Science in the 1st division from the Bihar Intermediate Council, Patna joined Home Guard Army in the year 2003 and did requisite training in the year 2003. The petitioner was issued identity card as Home Guard Army No.1319 and thereafter Home Guard Certificate was issued to the petitioner by the prescribed authority on 30.01.2004. Respondent nos. 4 and 5 also completed Home Guard training along with the petitioner during the same session. In the year 2004 an advertisement was published in the newspaper and in pursuance to the said advertisement the petitioner applied for the post of Constable in which 50% was reserved for the Home Guards. In pursuance to the application submitted by the petitioner, petitioner appeared in the physical test and thereafter written test was held. Having been duly qualified in the physical and written test the petitioner was expecting to be appointed on the post of Constable under Home Guard category. But to the utter surprise, the respondent nos.4 and 5 having secured less marks compared to the petitioner, were given appointment to the post of Constable under Home Guard category. Therefore, the petitioner submitted representation before the respondent no.3 but the said representation seems to have fallen on the deaf ears. Thereafter another reminder was also submitted by the petitioner but the respondents sat over the matter which compelled the petitioner to approach this Court under Article 226 of the Constitution of India for redressal of his grievances. 3. During pendency of the writ application I.A No.6974 of 2017 has been filed on behalf of the petitioner to bring on record certain documents obtained by the petitioner under Right to Information Act, 2005. Advertisement No.01 of 2004 has been published in the newspaper on 13.01.2004 vide Annexure-11 to the said interlocutory application and Clause-9 (Kha) of the said advertisement envisages that 50% quota is available for the Home Guards. Advertisement No.01 of 2004 has been published in the newspaper on 13.01.2004 vide Annexure-11 to the said interlocutory application and Clause-9 (Kha) of the said advertisement envisages that 50% quota is available for the Home Guards. As per the Clause-7 of the said advertisement last date for submission of application is 15.02.2004. It has further been submitted that respondent nos.4 and 5 who have been selected, submitted their certificate of Home Guard issued on 24.11.2004 i.e. after the last date. It has further been submitted that under the Bihar Home Guards Act, 1947 only Schedule II provides for the form of certificate of appointment and no other form is provided for appointment and the petitioner submitted his Home Guard certificate dated 30.01.2004. 4. Controverting the averments made in the writ application, a counter affidavit dated 15.09.2009 has been filed wherein it has been submitted that the petitioner applied for the post of Constable in pursuance to Advertisement no.1 of 2004 as Home Guard trained under General category. The petitioner obtained altogether 16 marks in test, but his name has not been considered for appointment because the minimum cut off marks is fixed at 19. Further, it has been submitted that the petitioner completed the Home Guard training in the year 2004 which is after the date of advertisement no.01/2004, therefore, he was not considered as Home Guard trained candidate. 5. Counter affidavit dated 31.08.2015 has been filed by the respondent no.2, stating therein that since the petitioner applied under the Male General, None Home Guard category and the last selected candidate secured 19 marks and the petitioner has secured 18 marks, therefore, the petitioner could not be selected for the said post, as evident from Master Chart prepared during selection process. 6. Counter affidavit dated 04.01.2018 has been filed on behalf of respondent no.3, more or less reiterating the earlier submissions. Further, ground has been taken in the counter affidavit that during process of selection the petitioner did not show that he is trained Home Guard, which is evident from the Master Chart rather he produced a certificate issued as per 2nd schedule Section 33 of Bihar Home Guard Act, 1947, which fact is visible from the Master Chart and it appears that he has appeared under General Category as per Annexure-A to the counter affidavit. Further, it has been submitted that the Director General of Police, Ranchi has declared the appointment procedure against Advertisement no.01/2004 as time barred stating therein that no appointment should be made from the waiting list prepared against Advertisement no.01 of 2004. 7. Learned counsel for the petitioner has strenuously urged that the respondents ought to have considered the petitioner’s case under Home Guard category since he secured more marks than the respondent nos.4 and 5 and the non-consideration of the case of the petitioner amounts to violation of Article 14 and 16 of the Constitution of India. 8. As against the submission of the learned counsel for the petitioner, learned counsel for the State submits that the process of selection has reached its finality after issuance of letter dated 18.08.2010 by the Deputy Inspector General of Police (Personnel) Jharkhand, whereby the S.P., Hazaribagh, Giridih, Chatra, Koderma and Ramgarh have been directed not to appoint from the merit list issued by the North Chhotanagpur Regional Selection Board, Hazaribagh, since process of Advertisement no.01.2004 has become time barred. 9. Learned counsel for the respondent no.5 has submitted that respondent no.5 has been duly selected by the selection board and there is absolutely no infirmity or illegality in the process of selection. 10. Having heard learned counsel for the respective parties and on perusal of the records, it appears that the petitioner has made out a case for interference due to the following facts and reasons: (I) As per the Advertisement no.1 of 2004, Clause-9 (Kha) of the said advertisement 50% post is reserved for the Home Guard category and the last date of submission of application is 15.02.2004. The petitioner applied for the post of Constable on 13.02.2004 by referring to Home Guard Registration No.1319 of Dhanbad, as evident from Annexure-B to the counter affidavit filed by the respondent no.2 dated 31.08.2015. Therefore, there is no shade of doubt or debate that application of the petitioner for consideration under Home Guard Category was made. It is not in dispute that the petitioner obtained 18 marks and the last candidate under Non-Home Guard secured 19 marks but the last candidate under Home Guard category having secured 6 marks has been selected. The cut of marks has been fixed for Home Guard category is 6 as evident from Annexure-A series to the counter affidavit dated 31.08.2015. It is not in dispute that the petitioner obtained 18 marks and the last candidate under Non-Home Guard secured 19 marks but the last candidate under Home Guard category having secured 6 marks has been selected. The cut of marks has been fixed for Home Guard category is 6 as evident from Annexure-A series to the counter affidavit dated 31.08.2015. Had the petitioner been considered under Home Guard category certainly the petitioner would have been selected. (II) Due to non-selection, the petitioner approached this Court in the year 2008, prior to the decision dated 18.08.2010 of the respondents to treat the advertisement as time barred, vide Annexure-B to the counter affidavit dated 04.01.2018. Therefore, the case of the petitioner ought to have considered in the right prospective by considering his candidature under Home Guard category. Though, in the meantime, more than one decade has elapsed from the filing of the writ application but the petitioner has been subjected to gross injustice by the respondents in not considering the case of the petitioner under Home Guard Category, as per the Advertisement No.01 of 2004. 11. Therefore, in the fitness of things, taking into consideration the overwhelming facts and circumstances, the writ petition is disposed of in the interest of justice to direct the respondents to consider the case of the petitioner for appointment under Home Guard category in pursuance to Advertisement No.01 of 2004 within a period of 8 weeks from the date of receipt/communication of the order, provided the petitioner comes within the zone of consideration and there is no other legal impediments or complication. This case may not be cited as a precedent and due to peculiar facts and circumstances, this Court being conscious and mindful of the fact that the process of selection has become time barred in the year 2010, since gross injustice has been caused to the petitioner, in the fitness of things this order has been passed. 12. With the aforesaid direction, the writ petition stands disposed of. 13. Accordingly, I.A. No.6974 of 2017 also stands disposed of.