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2019 DIGILAW 1557 (JHR)

Prakash Kumar v. State of Jharkhand

2019-09-06

SANJAY KUMAR DWIVEDI

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ORDER : 1. Heard Mr. Rajendra Krishna, learned counsel appearing for the petitioners and Mr. Anup Kumar Agrawal, learned A.C to G.A.-V for the respondent-State of Jharkhand. 2. In all these writ petitions the common question of facts and law are involved and that is why they have been heard together and are being disposed of by a common order. 3. The petitioners have preferred this writ petitions for a direction upon the respondents to consider the case of the petitioners for appointment to the post of Police Constable for Jharkhand Armed Police, as the petitioners fall within the zone of consideration and also in view of the fact that around 200 seats are still vacant from the advertised vacancy bearing Adv. No. 02/11. There is no prayer of quashing of any order. 4. Mr. Rajendra Krishna, learned counsel appearing for the petitioners submit that pursuant to an advertisement published vide Advertisement No. 02/11 for appointment of 1020 Police Constable in Jharkhand Armed Police (JAP), wherein the educational qualification was fixed for 7th pass, the petitioners applied for appointment to the post of Police Constable. The petitioners were provided Roll Numbers, Admit Cards etc., and thereafter, the petitioners appeared for physical test in which they have qualified and they have been asked to appear in the written test. 5. Mr. Rajendra Krishna, learned counsel appearing for the petitioners submit that surprisingly the result was not published, as the petitioners filed representation before the authorities but nothing has been communicated in this regard. Some other aggrieved persons namely, Rajesh Kumar Chaubey and 10 other candidates filed a writ petition before this Court bearing W.P.(S) No. 5561 of 2014, which was disposed of vide order dated 16.12.2014, with an observation that the respondents should publish the merit list as per rule expeditiously after approval by the competent authority. Pursuant to that the results with regard to certain persons have been published and they have been appointed but the name of the petitioners did not figure in the result so published. 6. Mr. Rajendra Krishna, learned counsel appearing for the petitioners submit that till date around 200 seats are still vacant on which no appointment has been made from the advertised vacancy bearing Adv. No. 02/11. 6. Mr. Rajendra Krishna, learned counsel appearing for the petitioners submit that till date around 200 seats are still vacant on which no appointment has been made from the advertised vacancy bearing Adv. No. 02/11. He further submits that as the results were declared after at least four years of the examination, the petitioners have now become overage and they are not eligible to apply for any other posts also. He further submits that in the panel the petitioners are supposed to be there as around 200 seats are still vacant. By referring to Annexure-D of the counter-affidavit, learned counsel submits that this has to come into effect as the new rule has been framed in the year 2014 whereby, subsequent amendment for appointment on the post of Police Constable has been effected. The petitioners appeared in view of earlier advertisement. He further submits that in view of Annexure-D of the counter-affidavit not considering the case of the petitioners for appointment is arbitrary. To substantiate his argument, he further refers to clause 13 of the Police Manual. He further submits that in view of clause 13 of Police Manual where the seats remained vacant in those cases the second merit list shall be published and all the vacancies must be filled within six months from the publication of first merit list. 7. Based on these learned counsel further argues that the result of the petitioners need to be published in view of this rule also within the six months as the first merit list has already been published on 21st November, 2015. He further submits that the contention of the respondent-State, so far as the life of the board is concerned, is also not tenable pursuant to the order of this Court in W.P.(S) No. 5561 of 2014. The first merit list has been published on 21st November, 2015 whereas, the second merit list was not published. He relied upon a decision rendered by the Hon’ble Apex Court in the case of Shankarsan Dash vs. Union of India, reported in (1991) 3 SCC 47 . Relevant paragraph no.7 of the said judgment is quoted here-in-below:- “7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Relevant paragraph no.7 of the said judgment is quoted here-in-below:- “7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. SubhashChander Marwaha, NeelimaShangla v. State of Haryana, or Jatendra Kumar v. State of Punjab.” 8. He further submits that in view of the judgment in Shankarsan Dash (supra) the State is bound to respect the comparative merit of candidates as reflected at the recruitment test and no discretion can be permitted. 9. As per contra, Mr. Anup Kumar Agrawal, learned counsel appearing for the respondent-State submits that in the advertisement it is the condition precedent that one has to obtain 30 marks in two subjects i.e. Hindi and Regional language. He further submits that in paragraph Nos. 12, 13, 14 15 and 16 of the counter-affidavit, it is disclosed that some of the petitioners have not obtained the minimum qualifying marks and accordingly, the case of the petitioners cannot be considered. He further refers to Annexure-C to the counter-affidavit which is a chart of the marks obtained by different candidates. 10. Mr. Agrawal, learned counsel further submits that Annexure-D which is issued pursuant to amendment of 2014 whereby it is said that no further appointment on the basis of earlier advertisement can be carried forward and this letter is not under challenge in this writ petition. 10. Mr. Agrawal, learned counsel further submits that Annexure-D which is issued pursuant to amendment of 2014 whereby it is said that no further appointment on the basis of earlier advertisement can be carried forward and this letter is not under challenge in this writ petition. Thereafter, he further submits that in the year 2015, another advertisement with regard to appointment of Police Constable have already effected whereby 850 posts have been published in which these 200 posts are also included and process of that examinations has already been completed. In view of these facts, no case of interference by this Court is made out. He further refers to a judgment rendered in the case of Kerala State Road Transport Corporation &Anr. vs. Akhilesh V.S. &Ors, as reported in 2019 (2) JBC 219 [SC]. Paragraph 5 of the said judgment is quoted herein below:- “5. We have heard the counsel for the parties and opine that the order of the High Court is unsustainable. The cadre strength has rightly been held not to be a relevant consideration. The High Court has erred in issuance of mandamus to fill up a total of 97 vacancies, including those arising subsequently but during the life of the rank list. Vacancies which may have arisen subsequently could not be clubbed with the earlier requisition and necessarily had to be part of another selection process. The law stands settled that mere existence of vacancies or empanelment does not create any indefeasible right to appointment. The employer also has the discretion not to fill up all requisitioned vacancies, but which has to be for valid and germane reasons not afflicted by arbitrariness. The appellant contends a financial crunch along with a skewed staff/bus ratio which are definitely valid and genuine grounds for not making further appointments. The court cannot substitute its views over that of the appellant, much less issue a mandamus imposing obligations on the appellant corporation which it is unable to meet.” 11. He submits that it is the discretion of the State not to fill up all requisitioned vacancies. 12. Having heard learned counsel for the parties, this Court finds that the petitioners are not qualified as they have not obtained the minimum qualifying marks, which is a condition precedent in the advertisement. In view of the Police Manual the life of the Board expires after one year. 12. Having heard learned counsel for the parties, this Court finds that the petitioners are not qualified as they have not obtained the minimum qualifying marks, which is a condition precedent in the advertisement. In view of the Police Manual the life of the Board expires after one year. It is not the case of the petitioners that their name have been included in the selected candidates and they were included in a panel. The another advertisement in the year 2015 has already been effected and process of appointment pursuant to that advertisement has already completed. The law stands settled that mere existence of vacancies or empanelment does not create any indefeasible right to appointment. It depends upon Government of the State not to fill up all requisitioned vacancies. No case of arbitrary action is made out. Moreover, the letter dated 04.12.2015 contained in Annexure-D of the counter-affidavit is not under challenge in these writ petitions. 13. As a cumulative effect of above facts, discussions and reasons, the writ petitions fail and accordingly, these writ petitions stand dismissed.