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2023 DIGILAW 1091 (JHR)

Dilip Kumar Thakur v. State of Jharkhand

2023-08-28

ANANDA SEN, SANJAYA KUMAR MISHRA

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ORDER : 1. The petitioner being an applicant for selection and appointment as a Constable in the Police Department of Hazaribagh has filed this writ application with a prayer for quashing Memo No. 775/Ra.Ka. dated 22.02.2013 annexed as Annexure-7 to the writ application, issued by the Superintendent of Police, Hazaribagh on the ground that this is ultra-vires to the constitutional scheme of equality and fundamental rights guaranteed under Article 14, 15 and 16 of the Constitution of India and also right to life under Article 21 of the Constitution of India. 2. The facts of the case at present are not disputed. The petitioner is a member of Extremely Backward Class, E.B.C. (BC-1) of Jharkhand and a permanent resident of village-Karuakhurd, P.O. Ranka Bouliya, P.S. and District-Garhwa. He completed his secondary education in the year 2001 and higher secondary education in the year 2004 from Jay Kay Nagar High School, Raniganj, West Bengal and he secured second division in the said examinations. An advertisement was issued in daily newspaper on 25.03.2010, inviting applications for appointment of constables against 6796 vacant sanctioned posts in the district of Ranchi, Hazaribag, Dhanbad, Bokaro, Palamau, Garhwa, Latehar, Koderma and all other districts of the State of Jharkhand. The petitioner participated in the examination and as per the result published on 03.06.2012 in the said daily newspaper, the petitioner bearing Roll No. 15391 was placed at Serial No. 18 in the group of Non-Home Guards, Extremely Backward Class-E.B.C. (BC-1). The respondent no. 4-Superintendent of Police, Hazaribagh, vide Memo No. 3502/ Ra.Ka. dated 09.06.2012 (Annexure-5 to the writ application) in the light of Memo No. 368/Ba.Ko. dated 31.05.2012 of respondent no. 3 called the petitioner with all the original documents regarding educational, caste, residential, birth certificates, etc., along with four copies of passport size photos for verification in his office on 25.06.2012, but he was not given appointment and, therefore, the petitioner made representation before respondent no. 4 and in response to his representation, respondent no. 4 on 22.02.2013 informed that the eligibility of the petitioner has been cancelled on the ground of his passing such examination from the West Bengal Board of Secondary Education and West Bengal Council of Higher Secondary Education. Thereafter, the petitioner made several attempts to convince the authorities to act upon the eligibility to give him appointment, but as he was not given the appointment, he filed the present writ application. Thereafter, the petitioner made several attempts to convince the authorities to act upon the eligibility to give him appointment, but as he was not given the appointment, he filed the present writ application. 3. The matter was originally placed before the learned Single Judge and the learned Single Judge vide the order passed on 06.01.2017 referred the matter to the Division Bench and after obtaining consent from the then Acting Chief Justice, the matter was placed before the Division Bench. 4. The central question that arises in this case is regarding the restriction provided in the Jharkhand State Police Recruitment Rules, 2014. It provides that the candidates should have passed 10th from educational institutions of the State of Jharkhand. Such clause was taken into consideration while refusing appointment to the petitioner. 5. In course of hearing, learned counsel for the State raised two objections. The preliminary being the maintainability of the writ application in view of the fact that the petitioner has appeared in the examination and after being declared unsuccessful has challenged the conditions therein. We are of the opinion that the petitioner was not unsuccessful in the examination, rather his application was accepted by the authorities and the selection authority conducted examination wherein the petitioner was allowed to compete with other candidates and was declared successful. The cause of action arose when his credentials/certificates were verified by respondent no. 4 and they found that he has passed out from the schools and Inter college from the State of West Bengal, which is violative of Clause (ii) as referred to above. Thus, we are of the opinion that it is not the case of the respondents that the petitioner actually failed in the examination or the selection process, rather he was declared successful, but on the ground that he has obtained his matriculation and Inter College from West Bengal, he was not given the appointment. 6. Similar issue arose before the Hon’ble Supreme Court in the case of Dr. (Major) Meeta Sahai vs. State of Bihar and Others, (2019) 20 SCC 17 wherein, the Hon’ble Supreme Court examined the issue and decided that in case there are illegalities in the process itself, the principle of estoppel will not be applicable. We consider it appropriate to take note of the exact language used by the Hon’ble Supreme Court in preliminary objection to the writ application: “15. We consider it appropriate to take note of the exact language used by the Hon’ble Supreme Court in preliminary objection to the writ application: “15. Furthermore, before beginning analysis of the legal issues involved, it is necessary to first address the preliminary issue. The maintainability of the very challenge by the appellant has been questioned on the ground that she having partaken in the selection process cannot later challenge it due to mere failure in selection. The counsel for the respondents relied upon a catena of decisions of this Court to substantiate his objection. 16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576 observing as follows: “16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.” The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance. 18. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process. 18. The question of permissibility of giving weightage for ‘work experience’ in government hospitals is also not the bone of contention in this case. Medicine being an applied science cannot be mastered by mere academic knowledge. Longer experience of a candidate adds to his knowledge and expertise. Similarly, government hospitals differ from private hospitals vastly for the former have unique infrastructural constraints and deal with poor masses. Doctors in such non-private hospitals serve a public purpose by giving medical treatment to swarms of patients, in return for a meagre salary. Hence, when placing emphasis on the requirement of work experience, there is no dispute on such recognition of government hospitals and private hospitals as distinct classes. Instead such recognition ensures that the doctors recruited in not-so-rich States like Bihar have the requisite exposure to challenges faced in those regions. 19. The appellant has thus rightly not challenged the selection procedure but has narrowed her claim to only against the respondents’ interpretation of ‘work experience’ as part of merit determination. Since interpretation of a statute or rule is the exclusive domain of Courts, and given the scope of judicial review in delineating such criteria, the appellant’s challenge cannot be turned down at the threshold. However, we are not commenting specifically on the merit of appellant’s case, and our determination is alien to the outcome of the selection process. It is possible post what is held hereinafter that she be selected, or not.” 7. Thus, it is clear that the petitioner was not only successful in the examination, but also there is illegality in the selection process itself, which cannot be allowed to be perpetuated. 8. It is possible post what is held hereinafter that she be selected, or not.” 7. Thus, it is clear that the petitioner was not only successful in the examination, but also there is illegality in the selection process itself, which cannot be allowed to be perpetuated. 8. The issue before us has already been decided by the Division Bench of this Court in a bunch of writ applications, the lead case being W.P. (C) No. 3894 of 2021 with analogous cases, Ramesh Hansda vs. State of Jharkhand and Others wherein, similar question arose before the Division Bench of this Court headed by the then Chief Justice. This Court after taking into consideration various facts and legal positions came to the conclusion that the impugned Rules, as contained under Rules, 2021 are discriminatory on the touchstone of Article 14 of the Constitution of India and is not based on intelligible differentia rather are unreasonable, and such Rules 2 and 7 of the Rules, 2021 were held to be invalid, as the same are in the teeth of Article 14 of the Constitution of India. 9. Since the petitioner is guided under the Police Manual, we had occasion to examine the Police Manual. It is brought to our notice that as per Rules 663 of the Police Manual, there is no requirement of the candidate passing from educational institutions situated in the State of Jharkhand. However, a notification was brought out in the year 2014, i.e. Notification No. 16/NI-04/2013-6992 dated 20.10.2014 whereby, the eligibility criteria prescribed in Clause (ii) of the Educational Qualification to be 10th pass educational institute situated in Jharkhand, which has already been held to be violative of Article 14 of the Constitution of India. 10. In that view of the matter, we allow the writ application and issue a writ of certiorari for quashing of memo dated 22.02.2013, annexed as Annexure-7 to the writ petition. A mandamus is issued to give appointment to the petitioner. It is otherwise, eligible to be appointed. The process of recruitment should be completed within a period of 45 days of communication of this order to respondent no. 4. 11. We further make it clear that this judgment shall not be in any way affect the rights of those candidates, who have already been recruited and discharging their duties. It is otherwise, eligible to be appointed. The process of recruitment should be completed within a period of 45 days of communication of this order to respondent no. 4. 11. We further make it clear that this judgment shall not be in any way affect the rights of those candidates, who have already been recruited and discharging their duties. This order shall also not be treated as a precedent for any fence sitter, who has not filed any writ application or approached the authority and he or she should not be extended the benefit. The seniority, financial benefits etc. shall be accrued to the petitioner only from the date of his joining without any orders regarding seniority or arrears due before his joining. 12. There shall be no orders as to costs. 13. Pending application, if any, stands disposed of. 14. Grant urgent certified copy of this order as per the Rules.