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2020 DIGILAW 744 (JHR)

Sanjeet Kumar Singh v. State of Jharkhand

2020-07-09

RAVI RANJAN, SUJIT NARAYAN PRASAD

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JUDGMENT : The matter has been heard through video conferencing with the consent of the learned counsel for the parties. None of the parties has raised any complaint regarding audio and visual quality. 2. This intra court appeal is directed against the order/judgment dated 25.02.2019 passed by learned Single Judge in W.P. (S) No. 1770 of 2009, whereby and whereunder the relief sought for by the writ petitioner-appellant for his appointment as constable has been declined by dismissing the writ petition. 3. The brief facts of the case, which are required to be referred herein for proper adjudication of the lis, are as hereunder: The State of Jharkhand had come out with an advertisement, being Advertisement No. 01/2004 dated 13.01.2004 inviting applications for appointment on the post of police constables in different district of the State of Jharkhand including the district of Hazaribagh, Koderma, Giridih and Chatra. The writ petitioner-appellant applied for consideration of his case for appointment on the post of police constable. His application was found in order, accordingly he was called for to participate in the selection process, in which, he was found successful having his name reflected at serial no. 515 of the merit list with his height measured as 179.50 cm, under the general category candidate. Thereafter, he was called for verification of documents at Police Line, Hazaribagh, for which he appeared and submitted all the relevant documents, even though offer of appointment was not issued in his favour. It is the case of the writ petitioner-appellant that since he was intermediate, as such his case ought to have been considered taking into consideration the marks of the intermediate and the fact that his name finds mention in the merit list but the Selection Committee has taken into consideration his height as 177.50 cm, though in the master chart his height was measured as 179.50 cm, as also his educational qualification as matriculate. It is further stated before the writ Court that date of birth of the writ petitioner is 13.09.1975 whereas the date of birth of the last selected candidate was 16.05.1984. It has further been stated that persons having lesser marks in comparison to the writ petitioner, viz. Vijay Kumar Sharma and Sanjay Kumar Roy, have been appointed but the writ petitioner-appellant, though obtained higher marks than that of those candidates, was not given offer of appointment. It has further been stated that persons having lesser marks in comparison to the writ petitioner, viz. Vijay Kumar Sharma and Sanjay Kumar Roy, have been appointed but the writ petitioner-appellant, though obtained higher marks than that of those candidates, was not given offer of appointment. Being aggrieved thereof, the writ petitioner-appellant has ventilated his grievance by filing due representation before the respondents-authorities but got no response. As such the writ petitioner-appellant invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India by filing writ petition, being W.P. (S) No. 1770 of 2009, which was dismissed vide order dated 25.02.2019, against which, the present intra-court appeal, has been filed inter alia on the ground that the writ petitioner-appellant has been subjected to hostile discrimination. Further ground has been agitated that two persons, namely, Vijay Kumar Sharma and Sanjay Kumar Roy, who have got lesser marks than the petitioner have been selected but writ petitioner-appellant has not been selected and the writ Court, without appreciating this aspect of the matter, has dismissed the writ petition. 4. Mr. Diwakar Upadhyay, learned counsel for the writ petitioner-appellant refers the provisions of Police Manual and submits that in case of parity of marks, candidate having higher age in comparison to other candidates, who have got equal marks, ought to have been given priority in the matter of selection. According to learned counsel for the writ petitioner-appellant, the date of birth of the last selected candidate is 16.05.1984 whereas the date of birth of the writ petitioner-appellant is 13.09.1975. Thus, on the ground of writ petitioner-appellant being older than the last selected candidate, the writ petitioner-appellant ought to have been considered for appointment but having not done so, material irregularity has been committed, however, this fact has not been appreciated by learned Single Judge. 5. Per contra, Mr. Thus, on the ground of writ petitioner-appellant being older than the last selected candidate, the writ petitioner-appellant ought to have been considered for appointment but having not done so, material irregularity has been committed, however, this fact has not been appreciated by learned Single Judge. 5. Per contra, Mr. Devesh Krishna, learned S.C. (Mines) III appearing for the respondents-State of Jharkhand has defended the order passed by the learned Single Judge inter alia on the ground that the claim of the writ petitioner-appellant that his height is 179.50, which according to him has wrongly been reduced to 177.50, has been considered by the learned Single Judge, as would be evident from order dated 29.02.2012 passed in W.P. (S) No. 1770 of 2009, whereby the writ Court directed the Civil Surgeon, Hazaribagh to remeasure the height of the writ petitioner-appellant and submit a report of this Court. Pursuant thereto, the height of the writ petitioner-appellant was re-measured and it was found that the height of the writ petitioner-appellant is 177.50 cm. Taking into consideration the aforesaid height of the writ petitioner-appellant, he has not been found to be within the list of appointed candidate on the basis of merit position of the one or the other candidate, as such there is no infirmity in the process of selection. 6. This Court, having heard learned counsel for the parties and on perusal of the materials available on record as also the findings recorded by the learned Single Judge, has found the fact that in pursuance to the advertisement the writ petitioner-appellant participated in the process of selection for appointment on the post of constable in the district of Hazaribagh. The advertisement in question reflects various criteria for consideration of candidature of one or the other candidates, viz., ‘Physical Measurement’, wherein minimum height for the general category candidate, in which the writ petitioner falls, is 160 cm and minimum measurement of chest for the same category is 81 cm. The said advertisement further mentions that if a candidate is found to be physically fit on the basis of minimum height and minimum measurement of chest, he will be invited to participate in the written examination. The minimum ‘Educational Qualification’ has been mentioned as 7th Pass or above. The said advertisement further mentions that if a candidate is found to be physically fit on the basis of minimum height and minimum measurement of chest, he will be invited to participate in the written examination. The minimum ‘Educational Qualification’ has been mentioned as 7th Pass or above. The candidate who would be found to be successful in the written examination, which has been decided to be only qualifying in nature and marks of which shall not be calculated for the purpose of preparation of the merit list, shall be called in the next level. The writ petitioner-appellant had participated in the process of selection and on being found successful his name appeared in the merit list and, accordingly, he was informed vide letter dated 02.04.2007 of the Superintendent of Police, Hazaribagh to appear with all original certificates at Police Line, Hazaribagh for verification of certificates, measurement and medical test, pursuant to which the writ petitioner-appellant appeared and thereafter list of appointed candidate was published, in which, his name did not find mentioned. Aggrieved thereof, the writ petitioner-appellant had represented before the respondents-authorities ventilating his grievance but having found no response, he filed writ petition, being W.P. (S) No. 1770 of 2009, which was dismissed, against which, the present intra-court appeal has been filed. 7. The respondents-State has filed the counter affidavit before the writ Court stating, inter alia, that the name of writ petitioner-appellant appeared at serial no. 515 of the merit list after being successful in the written test and thereafter, he was called for to appear before the Superintendent of Police, Hazaribagh for verification of the certificates and remeasurement of height and on re-measurement his height, it was found to be 177.50 cm whereas the height recorded in the master chart was 179.50 and for this reason, he was disqualified therefore, writ petitioner-appellant was never under the zone of consideration. So far the claim of the writ petitioner-appellant that the height which has been mentioned by him in the application form as 179.50 is correct one, it has been submitted that the learned Single Judge vide order dated 29.02.2012 has passed an order directing the writ petitioner to deposit Rs. 1000/-before this Court and thereafter Civil Surgeon, Hazaribagh was directed to re-measure the height of the writ petitioner-appellant and submit a report before the next date of hearing. 1000/-before this Court and thereafter Civil Surgeon, Hazaribagh was directed to re-measure the height of the writ petitioner-appellant and submit a report before the next date of hearing. Pursuant thereto, the height of the writ petitioner-appellant was re-measured and his height was found to be 177.50 cm and in that view of the matter, the learned Single Judge has refused to show any interference and accepted the plea of the State-respondent to the effect that since the height of the writ petitioner-respondent has been assessed on re-measurement as 177.50 cm, hence, he is not under the zone of consideration. 8. This Court, therefore, is of the view that since the writ petitioner-appellant was not under the zone of consideration on the ground of height, which subsequently on remeasurement has been found to be 177.50 cm in place of 179.50 cm, as such the decision of the Selection Committee in not keeping the writ petitioner-appellant under the zone of consideration of appointment on the assessment of the merit of one or the other candidate, cannot be faulted with, therefore, the stand inter alia taken by the respondents-State to that effect suffers from no infirmity. 9. In course of hearing, learned counsel for the writ petitioner-appellant has taken another plea which was not taken before the writ Court that his case ought to have been considered on the basis of provision of the Police Manual, which contains a provision of assessing the candidature of two candidates who found to have obtained equal marks. In that circumstance, the candidate who is senior in age to the other candidate who has got equal marks would be given priority and further he has also raised the point about consideration of his case on account of he possessing higher qualification of Intermediate. However, since we are sitting in the intra-court appeal and not under the powers of review of the order passed by the learned Single Judge, therefore, the question would be that the plea which has not been agitated before the learned Single Judge to the effect as indicated herein above will it be permitted to be raised in intra-court appeal ? Our answer in this regard is in negative, which is for the reason that in intra-court appeal the legality and propriety of the order is to be looked into on the basis of aforesaid aspects agitated before it and as such the plea which has not been agitated before the learned Single Judge if it would be appreciated by the intra court appeal, the same would lead to entertaining new plea in the intra-court appeal. As such, when the ground that has not been agitated before the learned Single Judge, the higher forum will not be in a position to assess the legality and propriety of the order impugned. It further appears that even these two grounds have not been taken in the memo of appeal. 10. However, he has made statement both in the writ as well as in the memo of appeal about his date of birth, which is 13.09.1975 and date of birth of the last selected candidate is 16.05.1984, but the question is that if that is to be considered then the candidate who has got equal marks and has been selected even though he has got lesser marks then, according to our considered view, the said candidate will be a necessary party for the reason that if any direction would be passed in favour of the writ petitioner, the ultimate sufferer would be the said candidate but very surprisingly the said candidate has not been impleaded as party before the writ Court. Moreover, these facts could not be considered by the learned Single Judge since it was not agitated before it. 11. So far as contention of the writ petitioner-appellant that one Vijay Kumar Sharma who has got lesser marks has been appointed is concerned, it is apparent from the supplementary counter affidavit, as has been referred by learned Single Judge in the impugned order, that the case of the writ petitioner cannot be considered in the light of the selection of the said Vijay Kumar Sharma because said Vijay Kumar Sharma comes under the BC-II category whereas the writ petitioner was a general category candidate as also his height is more than the writ petitioner’s height. 12. 12. So far as the instance of selection of Sanjay Kumar Roy is concerned, we, on the assessment of the advertisement has found therefrom that since the appointment was to be made of the constable district-wise, as such the selection list was required to be prepared district-wise, hence candidate of one district cannot be compared with the candidate of other district. In the case in hand, the writ petitioner-appellant had made application for appointment in the district of Hazaribagh whereas said Sanjay Kumar Roy had applied for consideration of his appointment in the district of Giridih. Hence, this argument of the learned counsel for the writ petitioner-appellant would be of no help to the writ petitioner-appellant. 13. This Court, after discussing the factual aspect as above, even those grounds that were not agitated before the writ Court, is of the considered view that the learned Single Judge has considered mainly the issue of height of the writ petitioner-appellant, as only that issue was raised which was not found tenable even after re-measurement. As such, the learned Single Judge declined to interfere into the decision of the Selection Committee. Therefore, we are of the view that the selection committee’s decision of not appointing the writ petitioner-appellant upon the assessment of his position in the merit list, cannot be said to suffer from any infirmity. The learned Single Judge has taken into consideration the aforesaid aspect of the matter, hence the same cannot be faulted with. We are further of the view that, for the reasons mentioned above, the case of the writ petitioner cannot be compared either with Vijay Kumar Sharma or with Sanjay Kumar Roy also. In view thereof, the order passed by the learned Single Judge requires no interference. 14. Accordingly, the appeal fails and is dismissed.