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2019 DIGILAW 1305 (JHR)

State Of Jharkhand v. Hari Kujur

2019-07-18

DEEPAK ROSHAN, H.C.MISHRA

body2019
JUDGMENT Deepak Roshan, J. - All these appeals arise out of common judgment dated 12.08.16 passed by the learned Single Judge in batch of cases filed by the respondent-petitioners for quashing the revised result of different posts pursuant to the Advertisement dated 08.08.2009 and for quashing the order passed by the Appellant-State pertaining to removal from their services in purported exercise of power under Rule 668 (Ka) of the Jharkhand Police Manual. 2. The facts of the case is that an advertisement was published in the local newspaper inviting applications from eligible candidates being Advertisement No.1 of 2008 for appointment of Sub-Inspector/Sergeant and Company Commander. Clause-7 of the Advertisement stipulates that the candidates opting for Sub-Inspector/Sergeant/Company Commander have to indicate their preference. Clause-9 of the said Advertisement lays down the physical eligibility criteria for the posts, whereby the post of Sub-Inspector and Company Commander was the same, while the physical eligibility criteria for sergeant was more rigorous. Clause-13 of the Advertisement stipulates that inter se seniority of two candidates having scored same marks shall be decided on the basis of their performance in the written examination. The respondent-petitioners had been issued admit cards in which their preferences mentioned for the post of Sub-Inspector, Company Commander and Sergeant. The respondent-petitioners as per their preference and on the basis of their performances were selected and appointed in different category. It has been stipulated in the appointment letter that the respondent-petitioners would be sent for training for one year, which may be extended or curtailed. It was also indicated that the respondent-petitioners shall be on probation for two years and if their services are found unsatisfactory, they would be removed. It was further stipulated in the letter of appointment of the respondent-petitioners that if the candidates were found engaged in any misconduct, their services could be terminated without any show cause notice and similarly, if they had furnished any wrong or misleading information, then also, their services shall be terminated. After the appointment of the respondent-petitioners on different posts, an inquiry had been conducted in relation to their selection on the ground that the erstwhile Chairman of the Selection Committee, headed by the Director General of Police, had made selection on the basis of preference and not on merit. Thereafter, a decision had been taken to rectify earlier selection list and to revise the same. Thereafter, a decision had been taken to rectify earlier selection list and to revise the same. In pursuance of the decision of the State Government, a committee was constituted headed by the Director General of Police to go into the entire aspect of the matter and come to the finding of any illegality or irregularity committed in the preparation of the merit list and also come out with a revised merit list. Since the Committee found certain lacunae in the preparation of the merit list, by virtue of the revised merit list, 42 candidates including the respondent-petitioners were recommended to be removed from service and in their places, 43 other persons, in order of merit, have been recommended to be appointed. 3. After publication of the revised result and decision to remove the respondent petitioners, show cause notices were served upon them and they were removed from their services in purported exercise of power under Rule 668 (Ka) of the Police Manual, and consequently 43 persons have been appointed as per the revised merit list. This led to the respondent-petitioners to move this Hon''ble Court for quashing the revised result and for quashing the order passed by the Appelant-State pertaining to removal from their services 4. The Hon''ble Single Judge vide common order dated 12.08.2016 passed in W.P.(S) No. 1562 of 2014 and analogous cases inter-alia pleased to quash and set aside the impugned order of termination of service of the respondent-petitioners and further directed the Appellant-State for reinstatement of the respondent-petitioners in service against the existing/anticipated or future vacancies treating it to be fresh appointments and placing them at the bottom of seniority list of the revised merit list. 5. In the instant batch of Letters Patent Appeals, one batch of appeals have been preferred by the appellant-State of Jharkhand whereby they have challenged the impugned order on the ground that if the State will proceed to implement the impugned order it will open floodgate for all those persons who appeared in the examination. Another set of appellants in the batch of Letters Patent Appeal are the interveners-appellants who have also challenged the impugned order making a grievance that the intervener-appellants should be given preference over, or treated at par with the respondent-petitioners as their cases are on better footing having been placed above the respondent-petitioners in the revised merit list. 6. Another set of appellants in the batch of Letters Patent Appeal are the interveners-appellants who have also challenged the impugned order making a grievance that the intervener-appellants should be given preference over, or treated at par with the respondent-petitioners as their cases are on better footing having been placed above the respondent-petitioners in the revised merit list. 6. The learned Advocate General appearing on behalf of the Appellant-State of Jharkhand has contended that as per the advertisement dated 08.08.2009, many candidates applied for the post of Sub-Inspector, Company Commander and Sergeant and the eligible candidates appeared in the written and physical tests. Accordingly, a merit list was prepared and some of the candidates who were not successful in the said selection, approached this Court in W.P.(S) No.5609 of 2012 and batch of cases, alleging certain illegality and irregularity in the selection process and that the merit list was not prepared in a proper manner due to lack of fairness, transparency and credibility. It has further been submitted by the learned Advocate General that during the pendency of the said writ applications, the State Government constituted a Committee headed by the Director General of Police to go into the entire aspect of the matter. Subsequently, the Committee found certain lacunae in the preparation of the previous merit list. The report submitted by the committee was duly approved by the Director General of Police of Jharkhand pointing out certain irregularities whereby it was brought to the notice that the selection had been done solely on the basis of preferences given by the respective candidates overlooking the merits of the candidates. The Director General of Police, Jharkhand in view of the report, recommended the Government to prepare a fresh selection list based upon the merit-cum-preference. Thereafter, the Home Department, Government of Jharkhand vide letter dated 25.10.2013 has informed the Director General of Police, Jharkhand about the State Government''s decision regarding the selection process. In the letter dated 25.10.2013, it has been observed that the selections were done overlooking the set rules and procedures and selections were made on the basis of preference only and not on the basis of merit. Subsequently, a revised merit list had been prepared by a fresh selection board vide its meeting dated 23.12.2013. In the letter dated 25.10.2013, it has been observed that the selections were done overlooking the set rules and procedures and selections were made on the basis of preference only and not on the basis of merit. Subsequently, a revised merit list had been prepared by a fresh selection board vide its meeting dated 23.12.2013. As a result thereof, some candidates who were appointed erroneously, as they were below the last candidate selected on the basis of merit in different categories, were given show-cause and their services were terminated in terms of Rule 668 (Ka) of the Police Manual. The learned Advocate General has vehemently argued that the learned Single Judge has failed to take into consideration that the action of the appellant-State in terminating the service of the respondent-petitioners after preparation of the revised merit list was justified since the respondent-petitioners'' name do not find place because of securing less marks compared to the candidates who were appointed by the revised merit list. He further argued that the act of the appellant-State cannot be faulted on the ground that the issuance of show cause is a mere formality and eye-wash or a camouflage because without adhering to Rule 828 of the Police Manual, the State could not have invoked Rule 668 (a) of the Jharkhand Police Manual. He further argued that due to the error committed by the State in the earlier selection process, they have prepared a revised merit list by rectifying those errors committed earlier and the action of the appellant-State cannot be construed to be an arbitrary exercise of power. The learned Single Judge has failed to consider that in the absence of any clear-cut vacancies, existing or anticipated vacancies, the direction of Hon''ble Single Judge will open flood gate and a chaos will be created. He finally concluded his argument by submitting that since there is no clear cut vacancy existing or anticipated and as such the order passed by the learned Single Judge should be set aside especially in view of the fact that the error committed by the earlier selection Committee was rectified and the genuine candidates were selected in the revised selection process who were having much more marks than the respondent-petitioners. 7. A battery of lawyers argued on behalf of the intervener-appellants. 7. A battery of lawyers argued on behalf of the intervener-appellants. The main argument of the intervener-appellants was that they need to be equally considered for being appointed on account of higher marks obtained by them than the respondent-petitioners. They further argued that if the learned Single Judge was gracious enough to allow the respondentpetitioners, then their cases for appointment may also be considered on the ground of equity and fair play and for preventing discrimination as they have secured higher marks than the respondent-petitioners in the selection exercise and they are more suitable than the respondent-petitioners for being considered for appointment in accordance with the terms and conditions of the advertisement and the rules and regulations and they may be adjusted as against the rest of the available vacancies. The counsel for the interveners further contended that the Hon''ble Single Judge failed to appreciate that once it arrived at a conclusion that after committing an error apparent on the face of record, there were no clear cut vacancies existing or anticipated, there was no rationale in passing the order for reinstatement of the respondent-writ petitioners in services against existing/anticipated vacancies. They further contended that the Hon''ble Single Judge failed to appreciate that direction to reinstate the respondent-writ petitioners against future vacancies is unconstitutional and illegal as it is barred in accordance with the pronouncements of law better clarified by the Hon''ble Apex Court in the case of Prem Singh and Ors. Vs. Haryana State Electricity Board and Ors, (1996) 4 SCC 319 . The appellant-interveners further argued that the Hon''ble Single Judge has failed to appreciate the fact that where the entire exercise itself came into question on account of non-transparent selection process, majority of the members not taking part in selection exercise except the then DGP, there was no occasion to examine the eligibility or otherwise of respondent-writ petitioners as to whether fraud or misrepresentation was committed by them or not and if an effort was made by the State to root out the illegalities by an enquiry, it does not give a cause of action to the respondent-writ petitioners to legalize their illegal appointment. Learned counsel for the appellant-intervener concluded their arguments by submitting that in view of the facts and circumstances, in the event of the respondent-writ petitioners getting appointed by virtue of the order dated 12.08.2016 passed by the Hon''ble Single Judge, the case of intervener-appellants may also be considered for appointment and their case should also be treated at least at par with the respondent-writ petitioners even though they have secured better marks in the examination as appointing the respondent-petitioners, ignoring the claims of the interveners shall be violation of Articles 14 and 16 of the Constitution of India. 8. Mr. Anil Kumar Sinha learned Senior Advocate appeared for the respondent-petitioners. He contended that no rules for appointment were framed either under proviso to Article 309 of the Constitution of India or under any Act and the selection process and the recruitment was to be done on the basis of advertisement itself. He has further submitted that no clear-cut stipulation was made in the advertisement as to how the recommendation had to be made for appointment to the post of Sub-inspector, Sergeant and Company commander. He has further submitted that prior to issuance of appointment letter, another letter was issued wherein it had been stipulated that if any candidate is working under any Government Department or any Public Sector then the candidate will have to bring relieving letter from his earlier employer otherwise appointment shall be cancelled. He has further submitted that the probation period of the respondent-petitioners was only for one year and therefore, there was deemed confirmation of respondent-petitioners on the post of Sub-inspector, Sergeant and Company Commander. The respondent-petitioners have completed their probation of one year successfully and they were given three days show-cause notice which was nothing but an eye-wash in flagrant violation of principle of natural justice and, therefore, the respondent-petitioners were dismissed from service under Rule 668 (Ka) of the Police Manual. He further submitted that Rule 668 (Ka) deals with removal or reversion of officers on probation and as they have completed one year of satisfactory service as per the stipulation made in Rule 668 (Ka) itself, the appellants-State have invoked a wrong power, which is not vested in them while terminating the service of the respondent-petitioners. He further submitted that Rule 668 (Ka) deals with removal or reversion of officers on probation and as they have completed one year of satisfactory service as per the stipulation made in Rule 668 (Ka) itself, the appellants-State have invoked a wrong power, which is not vested in them while terminating the service of the respondent-petitioners. He further submitted that since the services of the respondent-petitioner were confirmed by deeming provisions after expiry of one year, dismissal from service amount to major punishment for which Rule 828 of Police Manual had to be invoked after full fledged departmental proceeding which has not been done in the present case. It is crystal clear from the advertisement that no clear cut procedure for appointment had been provided in the advertisement neither any rules for appointment were in place and, therefore, the earlier selection committee adopted a criteria for giving weightage to preference and thereafter giving weightage to total marks obtained. It is not a case here that any pick and choose or discrimination has been done in the earlier selection while making preference as the basis for selection and marks obtained as consequential, therefore, no mala-fide could be attributed to the earlier selection committee. He has submitted that admittedly the respondent-petitioners belong to different class than the appellant-interveners on the basis of classification as they were appointed and underwent training and remained in service for about two years, whereas the intervener-appellants might have secured higher marks, but were not given any appointment letter neither they underwent any training. As such, the basis of the interveners claiming appointment on the basis of higher marks than the respondent-petitioners is misplaced and admittedly the respondent-petitioners and appellant-interveners belong to two different distinctly separate classes. He concluded the argument by submitting that even in the wildest imagination the appellant-interveners cannot be equated with the respondent-petitioners and the Hon''ble Single judge has rightly held the case of respondent-petitioners on a better footing vis-`-vis appellant-interveners and there is no error whatsoever in the order impugned and the Hon''ble Single Judge has rightly followed the decision of Hon''ble Apex Court in the case of Vikash Pratap Singh and Others Vs. State of Chhattisgarh and Others, (2013) 14 SCC 494 directing the Appellant-State to pass an order of reinstatement of the respondent-petitioners in service against existing/anticipated or future vacancies treating it to be a fresh and upon their reinstatement, they shall be placed at the bottom of the seniority list of the revised merit list. The Hon''ble Single judge has rightly observed that in absence of any clear-cut vacancies existing/anticipated, the Court was not in a position to direct the State to consider the case of interveners for appointment in the respective different posts. Learned senior counsel has also pointed out that some of the respondent-petitioners had been serving in different armed forces, and they joined the service after being relieved from their earlier services. 9. After hearing leaned counsels for the parties and perusing the impugned order, it appears that while quashing the termination letter of the respondent-petitioners the Hon''ble Single Judge has placed reliance upon the ratio laid down in case of Vikash Pratap Singh and Others Vs. State of Chhatisgarh and Others, (2013) 14 SCC 494 and the ratio has been laid down in paragraph 26, 27, 28 and 29 of the aforesaid judgment. For better appreciation of the instant case paragraph 26, 27, 28 and 29 of the aforesaid judgment are hereby quoted hereinbelow: 26. In our considered view, the appellants have successfully undergone training and are efficiently serving the respondent-State for more than three years and undoubtedly their termination would not only impinge upon the economic security of the appellants and their dependants but also adversely affect their careers. This would be highly unjust and grossly unfair to the appellants who are innocent appointees of an erroneous evaluation of the answer scripts. However, their continuation in service should neither give any unfair advantage to the appellants nor cause undue prejudice to the candidates selected qua the revised merit list. 27. Accordingly, we direct the respondent-State to appoint the appellants in the revised merit list placing them at the bottom of the said list. The candidates who have crossed the minimum statutory age for appointment shall be accommodated with suitable age relaxation. 28. We clarify that their appointment shall for all intents and purpose be fresh appointment which would not entitle the appellants to any back wages, seniority or any other benefit based on their earlier appointment. 29. The candidates who have crossed the minimum statutory age for appointment shall be accommodated with suitable age relaxation. 28. We clarify that their appointment shall for all intents and purpose be fresh appointment which would not entitle the appellants to any back wages, seniority or any other benefit based on their earlier appointment. 29. The order passed by the High Court shall stand modified to the above extent. Appeals disposed of. In paragraph-26 it has been specifically mentioned by the Hon''ble Apex Court inter-alia that since the appellants have successfully undergone training and are efficiently serving the respondent-State for more than three years, it would be highly unjust and grossly unfair that their services are terminated. Accordingly, direction was given for appointing appellants in the revised merit list placing them at the bottom of the said list. 10. The Hon''ble Apex Court has also observed that there was no fraud or misrepresentation on the part of appellant and error was committed by the respondent-Board. The instant case is similar to the case of Vikash Pratap Singh (Supra) as here also, there was no misrepresentation or fraud on the part of the respondent-petitioners and they successfully completed their probation period of one year and have undergone training of all varieties and therefore, for no fault on their part it would be highly unjust and unfair to terminate their services for any irregularity committed by the selection committee, for which the respondent-petitioners were not at all responsible in any manner whatsoever. It is also on record that though the petitioners have completed their probation of one year but they were given only 3 days show-cause notice which was obviously nothing but eyewash in flagrant violation of principles of natural justice. The respondent-petitioners were dismissed from services under Rule 668 (Ka) of the Police Manual which deals with removal or reversion of officers on probation and since the respondent-petitioners were not on probation as they have completed one year satisfactory service as per stipulation made in Rule 668 (Ka) itself, the appellant-State has invoked a wrong power which is not vested while terminating the services of the petitioners and there can be no deeming confirmation. As such dismissal from service amounts to major punishment for which Rule 828 of Police Manual have to be invoked by full-fledged departmental proceeding which has not been done in the present case. As such dismissal from service amounts to major punishment for which Rule 828 of Police Manual have to be invoked by full-fledged departmental proceeding which has not been done in the present case. The Hon''ble Single Judge has rightly not equated the respondent-writ petitioners vis-a-vis appellants-interveners. In para14 of the impugned judgment, the Hon''ble Single Judge has clearly distinguished the case of the respondent-petitioners vis-a-vis appellant-interveners and directed the Appellant-State to pass orders for reinstatement of the respondent-petitioners in services against existing/anticipated or future vacancies treating it to be fresh appointments and on their reinstatement, they shall be placed at the bottom the seniority list of the revised merit list. The Hon''ble Single Judge has rightly held that in absence of any clear-cut vacancies it was not possible to direct the appellant-State to consider the case of interveners for appointment. Though, the Hon''ble Single Judge has categorically directed the Appellant-State that in case any selection is made on the post in question, the State would be obligated to consider the case of the interveners in relaxing the age of in appropriate cases in accordance with law but we are afraid that we cannot subscribe to that view, being violative of Articles 14 and 16 of the Constitution of India vis-a-vis the fresh candidates making applications in any such future selection process. 11. In our considered opinion, the Appellant-State as well as the Appellant-interveners have failed to point out any error in the impugned order so far as the writ applications of respondent-petitioners were allowed. As a matter of fact, the impugned order has considered every aspect of the case and based its judgment in the ratio laid down by the Hon''ble Apex Court. In view of the aforesaid discussions, we are not inclined to interfere with the impugned order and as a result, all appeals filed by the State of Jharkhand as well as intervener are hereby dismissed. 12. In view of the judgment passed in respective Letters Patent Appeals, the pending interlocutory applications, if any, stand disposed of.