Arun Kumar vs The State Of Jharkhand Through The ...
2021 Latest Caselaw 831 Jhar

                              [1]


    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        W.P.(S) No.799 of 2012
   Arun Kumar, son of Sri Jaleshwar Ram, resident of 'Bharat Kuti',
   Bharatpur, Kali Mandir Road, Gumla, P.O., P.S. & District-Gumla.
                                                            ... Petitioner
                                    Versus

1. The State of Jharkhand through the Secretary, department of
   Personnel, Administrative Reforms and Rajbhasha, having office at
   Project Building, P.O. & P.S.-Dhurwa, Town and District-Ranchi.

2. The Jharkhand Public Service Commission through its Chairman,
   having office at Circular Road, P.O. & P.S.-Lalpur, Town and
   District-Ranchi.

3. The Examination Controller, Jharkhand Public Service Commission,
   having office at Circular Road, P.O. & P.S.-Lalpur, Town and
   District-Ranchi.

4. The High Court of Jharkhand at Ranchi through its Registrar General,
   having office at Doranda, P.O. and P.S.-Doranda, Town and District-
   Ranchi.

5. The Deputy Commissioner, Seraikela-Kharsawan, having office at
   D.C. Office, P.O., P.S.-Seraikela, District-Seraikela.

6. The Deputy Commissioner, Palamau, having office at D.C. Office,
   P.O. and P.S.-Daltonganj, District-Palamau.

7. The Deputy Commissioner, Hazaribagh, having office at D.C. Office,
   P.O., P.S. & District-Hazaribagh.

8. Shri Abhisek Prasad, son of not known to the petitioner through the
   Registrar General, Jharkhand High Court, Ranchi, having office at
   Doranda, P.O. and P.S.-Doranda, Town and District-Ranchi.

9. Sri Ajay Shankar Prasad, son of not known to the petitioner through
   the Registrar General, Jharkhand High Court, Ranchi, having office at
   Doranda, P.O. and P.S.-Doranda, Town and District-Ranchi.
                                        [2]


   10. Sri Pratap Chandra, son of not known to the petitioner through the
         Registrar General, Jharkhand High Court, Ranchi, having office at
         Doranda, P.O. and P.S.-Doranda, Town and District-Ranchi.

                                                                         ... Respondents
                                     -------

    CORAM :              HON'BLE THE CHIEF JUSTICE
                  HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                                     -------
    For the Petitioner        : Mr. Rahul Kumar, Advocate
    For the State             : Mr. Rohan Kashyap, AC to SC-IV

For the Resp. Nos.2 & 3 : Mr. Sanjay Piprawall, Advocate For the Resp. Nos.8 & 10 : Ms. Lavanya Gadodia, Advocate

----------------------------

ORAL JUDGMENT

13/Dated 22nd February, 2021

1. The matter has been heard through video conferencing with the

consent of the learned counsel for the parties. They have no

complaint about any audio and visual quality.

2. The instant writ petition is under Article 226 of the Constitution of

India for grant of following reliefs:

"(a) To hold and declare the appointment of respondents No.8 to 10 as Civil Judge, Junior Division (Munsif) illegal inasmuch as admittedly these respondents did not submit the proper residential / caste certificates along with their application.

(b) To hold an declare that the action of respondents 1, 2 and 3 in appointing respondents 8 to 10 as arbitrary, illegal, void and in violation of Article 16 of the Constitution of India inasmuch as when the advertisement duly prescribed that a candidate was required to submit the proper certificates (including caste and residential) failing which the application shall be rejected and the request made later on would not be accepted; the respondents-Commission was bound to follow the same and reject the application of respondents 8 to 10 outrightly without giving them any chance to correct the same.

[3]

(c) To direct the respondents 5 to 7 to verify and inform this Hon'ble Court as to whether respondents 8, 9 and 10 are original residents of Seraikela, Hazaribagh and Palamau districts respectively and the residential / caste certificates have been issued to them properly after verifying that their ancestors are Khatiyani raiyats of 1932.

(d) To direct the respondents 1 to 4 to consider the case of the petitioner for appointment on the post of Civil Judge, Junior Division (Munsif) inasmuch as the petitioner appeared pursuant to advertisement no.13/2008 and has finally secured 64.33 marks."

3. The brief facts of the case as per the pleadings made in the writ

petition reads as hereunder:

The respondent-Jharkhand Public Service Commission

came out with an advertisement being Advertisement No.13/2008

on 31.03.2008 inviting applications for appointment to the post of

Civil Judge, Junior Division (Munsif) to fill up the 65 posts. Out of

65 posts, 6 posts were meant for Scheduled Caste category

candidates.

The petitioner finding himself eligible had participated in

the process of selection and was provisionally declared successful

in the main exam and accordingly, he was asked to appear before

the interview board on 15.07.2010 in which he appeared and was

awarded 7.33 marks. The petitioner secured 57 marks in the main

exam and in interview 7.33 marks totaling to 64.33 marks.

According to the petitioner, last cut off marks for the scheduled

caste category was 69.67 as per the information furnished by the

Jharkhand Public Service Commission.

[4]

It is the case of the petitioner that the name of the

respondent Nos.8, 9 & 10 figured under the heading "RESULTS

PENDING DUE TO WANT OF PROPER RESIDENTIAL

CERTIFICATES." However, later on these respondents have been

appointed to the post of Civil Judge, Junior Division (Munsif) by

the J.P.S.C. The petitioner has questioned the selection and

appointment of respondent Nos.8, 9 & 10 on the ground that the

residential certificates have not been submitted by them as per the

prescribed date contained in the advertisement, therefore, their

selection and appointment is contrary to the terms and conditions of

the advertisement, hence, not sustainable in the eye of law and is fit

to be cancelled.

4. Counter affidavit has been filed on behalf of the State of Jharkhand

through Personnel, Administrative Reforms and Rajbhasha

Department inter alia taking stand therein that Sri Ajay Shankar

Prasad (Roll No.100014665) who qualified under Scheduled Caste

category has submitted temporary residential certificate of the State

of Jharkhand. However, he has submitted the certified copy of his

father's service book and temporary residential certificate of the

State of Jharkhand and as per the resolution of Government of India

bearing Letter No.B.C.-16014/1/82, dated 22.02.1985 Sri Ajay

Shankar Prasad was not liable to get benefit of reservation in this

State, since his permanent residence is of Bihar. The J.P.S.C.

requested to enquire in this matter and take decision on the basis of

its finding and as such, after verification, issuance of his

appointment letter has been kept at hold. The name of the petitioner [5]

was including in the provisional recommendation of eight

candidates. Finally recommendation of 65 candidates in all was

submitted by J.P.S.C. and Sri Ajay Shankar Prasad's appointment

remained pending due to non-submission of proper permanent

residential certificate issued by the State of Jharkhand.

The respondent No.8, Shri Abhishek Prasad has

submitted his residential certificate and also caste certificate before

the J.P.S.C. However, he has submitted two residential certificates,

one issued for the purpose of employment and the other for

educational purpose.

The respondent No.10, Sri Pratap Chandra has submitted

his residential and caste certificate to J.P.S.C. along with an

affidavit to substantiate about his permanent resident.

5. The Jharkhand Public Service Commission has filed counter

affidavit inter alia stating therein that the last recommended

candidate in the category of the petitioner got 69.67 marks whereas

the petitioner has secured 64.33 marks, as such, the petitioner was

declared unsuccessful. So far as the claim of the petitioner about the

alleged illegality committed in the appointment of respondent

Nos.8, 9 & 10 is concerned, it is stated that they belong to

Scheduled Caste category but have not submitted their residential

certificates in time as per the requirement of the advertisement.

Refuting the same it has been stated that they were not

recommended for appointment and their result were kept pending

due to want of proper residential certificates as per the decision of

the Commission.

[6]

It has further been stated that respondent Nos.8, 9 & 10

have secured 81.17, 81.50 & 85.67 marks respectively which is

much more than the cut off marks fixed, therefore, the Commission

decided to call for the required certificates, i.e., residential

certificates by 15.09.2010 and pursuant thereto, respondent No.8

and 10 have submitted their residential certificates before the

J.P.S.C. within time whereas respondent No.9 submitted temporary

residential certificate. The same were examined by the office as

well as by the J.P.S.C. also and the following observations were

made:

Res. No.8      Abhishek Prasad        He has submitted local residential

               (Roll No.100014636)    certificate (for employment) issued
                                      by       Sub-Divisional        Officer,
                                      Saraikela and Caste certificate also
                                      issued by Sub-Divisional Officer,
                                      Saraikela.

Res. No.9      Ajay Shankar Prasad    He    has      submitted     temporary

               (Roll No.100014665)    residential certificate and in support
                                      of his caste certificate he has
                                      submitted a Xerox copy of service
                                      book of his father.

Res. No.10     Pratap Chandra         The candidate has submitted local

               (Roll No.100014817)    residential certificate issued by
                                      Deputy       Commissioner,    Palamau
                                      and caste certificate issued by Sub-
                                      Divisional     Officer,    Hussainabad
                                      (Palamau).

Thereafter, the matter was placed before the Commission

which was approved by the Commission for appointment of the

candidates except Sri Ajay Shankar Prasad, respondent No.9 who

had not submitted proper caste and residential certificates.

[7]

The Commission further expressed its view that the name

of Sri Ajay Shankar Prasad may be recommended with a condition

that if he comes within the purview of Scheduled Caste category as

per rules and regulations then only appointment letter to this

candidate may be issued and it is only thereafter private respondents

were appointed.

6. Mr. Sanjay Piprawall, learned counsel for the J.P.S.C. has submitted

that the Personnel, Administrative Reforms and Rajbhasha

Department has replied by way of counter affidavit on the basis of

non-recommendation having been made by J.P.S.C. with respect to

respondent Nos.8, 9 and 10 but the J.P.S.C. being the recruiting

agency after taking into consideration the performance of the

candidates who have been found to have got much more marks than

the cut off marks, thought it proper to provide an opportunity to

substantiate as to whether they actually belong to scheduled caste

category or not and to that effect when they came out with the caste

/ residential certificates it has been found by the Commission that

they actually belong to schedule caste category, therefore, the

declaration furnished by them in the application form was found to

be correct and as such, they were considered fit to be appointed.

7. So far as the contention of the petitioner is concerned that the

candidature of respondent Nos.8, 9 and 10 ought to have been

rejected, even if the same would be rejected, the petitioner is going

to get no relief as in between the last selected candidate and the

petitioner, there are other 5 candidates.

[8]

Furthermore, the appointment pertains to advertisement

of the year 2008 of which selection process had already been

concluded and several examinations have been commenced and

concluded. In view thereof, on hyper-technical ground if the

appointment of respondent Nos.8, 9 and 10 would be cancelled, the

same cannot be said to be appropriate and the Commission after

taking into consideration the technical aspect and considering the

fact that the information furnished by them in the application form

is no way misleading, had thought it proper to appoint these

respondents which suffers from no infirmity.

8. The respondent Nos.8 and 10 have also filed counter affidavit

stating inter alia therein that they belong to schedule caste category

being permanent resident of the State of Jharkhand and as such,

they became entitled for the benefit of reservation under the

reservation policy of the State of Jharkhand. It has been contended

that the caste certificate which has been produced by them has been

issued by the authority of the State of Jharkhand not below the rank

of Sub-Divisional Officer. According to them, they have furnished

due caste/residential certificates but the same have been found not

in requisite format by the J.P.S.C. since the same were issued for

the educational purpose as would appear from the format but

subsequent thereto, residential certificates have been submitted in

due format within time as per the extended time granted by the

J.P.S.C., thereafter, the appointments have been made.

Their submission is that since they actually belong to

schedule caste community and the caste/residential certificates were [9]

already on record, however, not issued by the competent authority

but subsequently, the same have been furnished having been issued

by the competent authority, therefore, if the same has been accepted

by the Commission, the same cannot be said to be an improper

decision.

9. We have heard the learned counsel for the parties and perused the

documents available on record. The admitted fact herein is that the

petitioner had participated in the process of selection in pursuance

to the Advertisement No.13/2008 for appointment to the post of

Civil Judge, Junior Division (Munsif). The petitioner got 64.33

marks in the final merit list. The petitioner has approached this

Court by filing writ petition questioning the selection of respondent

Nos.8, 9 and 10 who according to the petitioner have not submitted

residential certificates as per the stipulated date provided in the

advertisement.

10. The J.P.S.C., who is the nodal agency to initiate selection process,

has contended for justifying their action that however these

respondents have not furnished residential certificates issued by the

competent authority as per the date prescribed in the advertisement

but the Commission after taking into consideration the fact that they

have secured much more marks than the cut off marks, therefore,

instead of going into hyper-technicality have granted some time to

produce the residential certificates for the purpose of availing the

benefit of reservation. The Commission has further considered the

residential certificates submitted by the respondent Nos.8, 9 and 10

as also considered the documents furnished at the time of [10]

submission of application form and after being satisfied about their

caste category, results have been published and their names have

been recommended for appointment.

11. We, after going through the stand inter alia taken by the J.P.S.C.,

are of the view that even though stipulation has been made in the

advertisement about submission of residential certificate to be

issued by the competent authority and in due format and to submit it

before the date prescribed which the respondent Nos.8, 9 and 10

have not submitted but can that be a ground for cancellation of their

appointment on the premise of the fact that they have secured much

more marks than the cut off marks and further, on scrutiny of the

caste certificate, subsequently submitted in pursuance to the

decision of the Commission, no discrepancy with respect to the

same have been found by the Commission.

12. It requires to refer herein the judgment rendered by Hon'ble Apex

Court in Ram Kumar Gijroya vs. Delhi Subordinate Services

Selection Board and Another, (2016) 4 SCC 754 wherein it has

been held that the claim for inclusion in OBC category can be

considered even in cases where certificate were not produced by the

candidates before the cut-off date notified in the advertisement.

It further requires to refer herein that the judgment

rendered in Ram Kumar Gijroya (supra) fell for consideration

before the Division Bench of the Hon'ble Apex Court in Karn

Singh Yadav vs. Govt. of NCT of Delhi & Ors. in Special Leave to

Appeal (C) No.14948 of 2016 wherein the Hon'ble Apex Court has

taken contrary view to that of the ratio laid down in Ram Kumar [11]

Gijroya (supra) by referring the matter for consideration by a larger

Bench of three Judges.

Now the question would be that the matter on the same

issue is pending for consideration before the larger Bench of three

Judges of the Hon'ble Apex Court and in that circumstances,

whether the ratio laid down by Hon'ble Apex Court in Ram Kumar

Gijroya (supra), pending for consideration by the larger Bench, will

have binding precedence upon this Court or not?

It is the settled position of law that the judgment rendered

by the larger Bench having decided the ratio will have the binding

precedence. Further it is also settled that the judgment rendered by

the Hon'ble Apex Court is having binding precedence under Article

144 of the Constitution of India. The admitted fact is that the ratio

laid down in Ram Kumar Gijroya (supra) is pending for

consideration before the larger Bench as would be evident from

order dated 24.01.2020 passed in Special Leave to Appeal (C)

No.14948 of 2016 and, the ratio laid down by Hon'ble Apex Court

in Ram Kumar Gijroya (supra) has not yet been reversed, therefore,

the ratio laid down in Ram Kumar Gijroya (supra) is having

binding precedence upon this Court under Article 144 of the

Constitution of India.

13. It also requires to refer herein that the matter would have been

deferred awaiting for the outcome of the reference made to the

larger Bench but even if it would be done, no purpose would be

served due to the reason that the principle of prospective over-ruling

of a judgment will prevail which speaks that any judgment passed [12]

by the Court of Law will have prospective over-ruling. Here, we are

considering the case on the basis of the situation as existing today

with respect to the judgment rendered in Ram Kumar Gijroya

(supra) which will be treated to be a good law until reversed by the

larger Bench, as such, we thought it proper to consider the ratio laid

down therein as on date. The principle of prospective over-ruling

has been dealt with by Hon'ble Apex Court in Ashok Kumar Gupta

& Anr. vs. State of U.P. & Ors., (1997) 5 SCC 201 wherein at

paragraph-54 it has been held that any judgment will have

prospective over-ruling.

14. We are of the considered view in the backdrop of this fact that since

the respondent Nos.8, 9 and 10 have been appointed pursuant to the

advertisement of the year 2008 and are working since 2010 and it

has not been alleged by the petitioner and has also not come on

record that these respondents do not come under the category of

schedule caste rather they on confirmation have been found to be

under the category of schedule caste, therefore, have been extended

with the benefit of reservation while making recommendation for

appointment.

15. The respondent Nos.8, 9 and 10 thus have continued in service for

about 11 years and even though the appointment of the respondents

would be cancelled and the writ petition would be allowed, the

petitioner is going to get no relief since as per the information

furnished by Mr. Sanjay Piprawall, learned counsel for the J.P.S.C.

that in between the respondent Nos.8, 9 and 10 and the petitioner,

there are other 5 candidates.

[13]

16. This Court, in the entirety of the facts and circumstances as

discussed hereinabove in the backdrop of these aspects, is of the

view that no relief is fit to be granted in favour of the petitioner by

cancelling the appointment of respondent Nos.8, 9 and 10.

Accordingly, the writ petition fails and is dismissed.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Saurabh

A.F.R.