Ranjan Kumar Aged About 43 Years vs The State Of Jharkhand
2021 Latest Caselaw 377 Jhar

                                     1



IN THE HIGH COURT OF JHARKHAND AT RANCHI

                    L.P.A No. 96 of 2019
                            with

                    I.A No.2141 of 2019
Ranjan Kumar aged about 43 years, son of Shri Bijoy Krishna Choudhary,
Resident of Plot No.352, Bari Co-operative Colony, P.O-Siwandih, Bokaro
Steel City, P.S-Sector-12, District- Bokaro, at present resident of Ranjan
Kumar C/o A.K. Choudhary, Quarter No.3211, Sector-11 C, P.O + P.S-
Sector- 9, Bokaro Steel City, District-Bokaro.          ...... Appellant
                            Versus

1.The State of Jharkhand.
2.Secretary, (Higher Education) Human Resource Development Department,
Government of Jharkhand, P.O. & P.S-Dhurwa, Project Building, Ranchi.
3. Director, (Higher Education) Human Resource Development Department,
Government of Jharkhand, Project Building, P.O. & P.S-Dhurwa, Ranchi.
4. Jharkhand Public Service Commission, through its Chairman, Circular
Road, P.O and District-Ranchi, P.S-Kotwali.
5.Secretary, Jharkhand Public Service Commission, Circular Road, P.O and
District-Ranchi, P.S-Kotwali.               .....             Respondents
                          ---------

CORAM:             HON'BLE THE CHIEF JUSTICE
              HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                          ----------
For the Appellant           : Mr. Peeyush Krishna Choudhary, Advocate
For the Respondents         : Ms. Shruti Shrestha, A.C to Sr. S.C-II.
For the JPSC                : Mr. Ashok Kumar Singh, Advocate
                            -----------
Oral Judgment:
Order No.10/Dated: 27th January, 2021

1. With consent of the parties, hearing of the matter has been done

through video conferencing and there is no complaint whatsoever regarding

audio and visual quality.

I.A. No.2141 of 2019

2 This interlocutory application has been preferred under Section 5 of

the Limitation Act for condoning the delay of 193 days in preferring this

Letters Patent Appeal.

3. Heard.

4. In view of the submissions made on behalf of the parties and the

averments made in the interlocutory application, we are of the view that the

appellant was prevented by sufficient cause in preferring the appeal within

the period of limitation.

5. Accordingly, I.A. No.2141 of 2019 is allowed and delay of 193 days

in preferring the appeal is condoned.

L.P.A. No.96 of 2019

6. This instant intra-court appeal is directed against the order/judgment

dated 22.06.2018 passed by the learned Single Judge of this Court in

W.P.(S) No.2385 of 2009, whereby and whereunder the writ petition has

been dismissed, declining to interfere with the order as contained in letter no.

5/Ni 1-02/07/198 dated 05.06.2008 issued by the Director (Higher

Education) Human Resource Development Department, Government of

Jharkhand, Ranchi.

7. The brief fact of the case, which requires to be referred herein, reads

hereunder as:

The writ petitioner is M.Com 1st Class and has qualified the Jharkhand

State Eligibility Test for Lecturership held on 12.11.2006 in the subject of

Commerce conducted by the Jharkhand Public Service Commission

(hereinafter referred to as the 'J.P.S.C.').

One advertisement was published being Advertisement No.01/2007

dated 30.01.2007 by the J.P.S.C., inviting applications for appointment of

Lecturers in the various colleges of the different universities of the State of

Jharkhand. The said advertisement was published for filling up of 1045

numbers of vacancies in the various colleges. The writ petitioner being

eligible in all respects made his application for appointment to the post of

'Lecturer' in Commerce Department. The J.P.S.C has called upon the writ

petitioner to appear in the interview, in which the writ petitioner participated,

but he was not found fit to be recommended in the list of the successful

candidates for such appointment. The writ petitioner obtained information

under Right to Information Act and came to know about the cut off marks in

the Commerce subject as also about his marks. The writ petitioner was

informed that he has obtained 54 marks in the academic eligibility and 25

marks in the interview and the cut off marks for the General Category in

Commerce subject is 80. Since the writ petitioner has obtained 79 marks

which is less than the cut off marks of 80 and as such, he has not been

recommended for such selection.

The grievance of the writ petitioner is that still several vacancies have

been left out which ought to have been filled up and if decision would have

been taken, the writ petitioner, who is short of only one marks from the list

of selected candidates, ought to have been recommended for such

appointment.

The State-respondent appeared and filed counter affidavit, inter alia,

stating therein that against the recommendation process of the J.P.S.C.,

Ranchi, large number of malpractices has been conducted in making

recommendation of the teachers and the State Government was also reported

about such irregularities, hence the matter was referred for enquiry by the

Central Bureau of Investigation which is going on. Further, it has been

contended therein that the process of recommendation has stood completed

and as such, it is not proper for the Commission to initiate fresh process for

recommendation of the candidate for appointment. Further it has been stated

that as per the provision under Section 57(2) (b) of the Jharkhand State

Universities Act, 2000 (Adapted), the merit list prepared by the Commission

remains valid only for a period of one year from the date of its approval,

hence as per the aforesaid provision of law, the merit list is not valid after

expiry of one year from the date of its approval.

The contention about the case of Smt. Bharti Singh has been referred

by taking plea that her case is not identical to the writ petitioner, as because

the said Bharti Singh had obtained more marks than the cut off marks of the

General Category candidate, whereas in the case of the writ petitioner, he

has obtained less marks than the cut off marks and hence the writ petitioner

has been found less meritorious and has not been found fit to be

recommended for such selection.

The respondent nos.4 and 5-J.P.S.C has filed counter affidavit,

wherein plea has been taken that the record pertaining to selection of

Lecturers, is not available in the office of the J.P.S.C, since the record has

been now in possession of the Central Bureau of Investigation. However, it

has been averred that in pursuant to the provision of Section 57(2) (b) of the

Jharkhand State Universities Act, 2000 the selection was to be made only on

the basis of interview. The candidates have been called upon, respective

merits of one or other candidates have been assessed and as per the policy

decision, cut off marks has been fixed, but the petitioner has been found to

have secured less marks than the cut off marks. Further, it has been stated

that since the appointment was for the Session 2007-08 which has already

been completed and the transaction has also been closed with an intimation

to the office of J.P.S.C by the State Government that fresh requisition shall

be sent, in that view of the matter, at this stage no direction can be given to

the respondents for the said post.

8. Mr. Peeyush Krishna Choudhary, learned counsel for the appellant-

writ petitioner has submitted by refuting the contention of the respondents,

putting reliance upon the communication dated 05.06.2008, whereby and

whereunder the life of the panel has been said to be closed before completion

of the period of one year and as such, the plea of the closure of the panel for

the period of one year is not fit to be accepted.

The writ Court has considered the rival submission advanced on

behalf of the parties and dismissed the writ petition on the following reasons,

which reads hereunder as:

(i) As per the provision made in Section 57(2) (b) of the Jharkhand State

Universities Act, 2000 (Adapted) the merit list prepared by the Commission

remains valid only for a period of one year from the date of its approval.

Hence, as per the provisions of the Jharkhand State Universities Act, 2000,

the merit list is not valid after expiry of one year from the date of its

approval.

(ii) The State Government has already closed the selection process.

(iii) The case of Smt. Bharti Singh is not identical to the case of the

petitioner, as Smt. Bharti Singh had obtained more marks than the last cut-

off marks of general category candidates, whereas in the case of the

petitioner, the petitioner has obtained less marks than the cut-off marks and

from the aforesaid facts, it is crystal clear that the case of the petitioner is

without merit, which is the subject matter of present intra-court appeal.

9. Learned counsel for the appellant-writ petitioner has reiterated the

ground about the communication dated 05.06.2008, in response to the plea

taken by the respondents about closure of the selection process due to lapse

of the period of one year and the case of Smt. Bharti Singh in parity to the

writ petitioner as also contention has been raised that still the vacancies are

there, therefore, a direction is required to be passed upon the authority to fill

up entire vacancies and in that view of the matter the cut off marks of 80 will

be reduced to the lesser marks, making the writ petitioner fit to be

recommended for such selection. According to him, this aspect of the matter

has not rightly been appreciated by the learned Single Judge by dismissing

the writ petition.

10. Per contra, Ms. Shruti Shrestha, learned A.C to Sr. S.C-II as also Mr.

Ashok Kumar Singh, learned counsel for the J.P.S.C have defended the order

passed by the writ Court on the ground that when the J.P.S.C has fixed the

cut off marks by taking a policy decision in this regard and hence, if any

candidate obtains marks less than the cut off marks, the candidate will be

treated to be not fit to be recommended and taking that view of the matter

into consideration, the writ petitioner since has obtained only 79 marks,

therefore, he has rightly not been recommended for the said post.

Further, it has been contended by refuting the argument advanced by

the learned counsel for the appellant about the communication dated

05.06.2008 by which the panel which has been closed during the period of

one year and as such, the validity of the panel said to have been expired after

lapse of one year is not correct, as because it would be evident from the

communication dated 05.06.2008 that the selection process shall be closed

within the period of one year. But, the aforesaid contention cannot be said to

be acceptable in view of the fact that when the respondent-J.P.S.C has fixed

the cut off marks of 80, any candidate securing less than the said marks

cannot have a right to claim for recommendation for appointment on such

post. It has further been submitted that even if the vacancies are there and if

the cut off marks has been fixed, there cannot a direction be given to fill up

candidates by reducing the cut off marks since the merit is the paramount

consideration for selection to the teaching posts.

According to the learned counsel for the respondents, learned Single

Judge after taking into consideration this aspect of the matter, is right in

dismissing the writ petition, which requires no interference.

11. We have heard learned counsel for the parties, perused the materials

available on record and also the finding recorded by the learned Single Judge

in the impugned order.

The admitted facts herein, is that the writ petitioner has participated in

the process of selection as Lecturer in Commerce Department for different

colleges situated within the State of Jharkhand, in pursuant to the

Advertisement No.01/2007. The writ petitioner has also participated in the

interview and on production of merit list of one or the other candidates, he

secured 79 marks. The J.P.S.C has fixed a parameter for making

recommendation by way of policy decision, wherein 80 marks has been

fixed as cut off marks for general category candidate.

Admittedly, the writ petitioner has secured 79 marks, which is

less than the cut off marks of 80 and therefore, he has been found not fit to

be recommended for such post. The writ petitioner has agitated the aforesaid

ground by filing writ petition before this Court, invoking the jurisdiction

conferred under Article 226 of the Constitution of India, raising the point

about arbitrariness and discrimination.

While on the other hand, the respondent-State as also the J.P.S.C have

contested the case by taking the plea about securing less marks and lapse of

the validity of the panel since long.

12. This Court on the basis of the admitted fact as discussed hereinabove,

is of the view that a candidate merely on account of submitting application

for consideration of candidature has got no indefeasible right to claim

appointment on such post. Reference in this regard may be made to the

judgment rendered in the case of State of Orissa and Anr. vs. Rajkishore

Nanda and Ors. reported in (2010) 6 SCC 777 wherein by taking aid of the

Constitution Bench judgment of the Hon'ble Apex Court rendered in the

case of Shankarsan Dash vs. Union of India reported in (1991) 3 SCC 47

by holding therein that mere inclusion of the candidate's name in the select

list does not confer any right to be selected, even if some of the vacancies

remain unfilled.

It is settled position of law that the recruiting agency has got power by

way of policy decision for making such selection, as has been settled in the

case of Chandigarh Administration through the Director Public

Instructions (Colleges), Chandigarh vs. Usha Kheterpal Waie and Ors.

reported in (2011) 9 SCC 645 wherein at para 22 it has been held as under:

"22. It is now well settled that it is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. The courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the authority concerned so long as the qualifications prescribed by the employer is reasonably relevant

and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of the Constitution, statute and rules. (See J. Ranga Swamy v. Govt. of A.P. and P.U. Joshi v. Accountant General) In the absence of any rules, under Article 309 or statute, the appellant had the power to appoint under its general power of administration and prescribe such eligibility criteria as it is considered to be necessary and reasonable. Therefore, it cannot be said that the prescription of PhD is unreasonable."

The J.P.S.C on the basis of aforesaid settled position of law has taken

a policy decision by fixing cut off marks of 80 for general category

candidate. The writ petitioner has secured 79 marks, hence not found fit to

be recommended for such selection. The contention of the writ petitioner that

vacancies are available and if aforesaid vacancies would be filled up,

automatically the cut off marks of 80 will reduce to lesser marks and in that

case the writ petitioner will be selected.

This contention is not acceptable to this Court for the reason that when

the J.P.S.C has fixed a policy decision for the cut off marks, the same cannot

be directed to be reduced, otherwise the same will lead to compromising

with the merit of selection and further, for the reason that such policy decision

taken by the recruiting agency cannot be interfered by

this Court, the said policy decision has not been assailed by

the writ petitioner.

Further contention of the appellant-writ petitioner is that the validity

period of the panel as has been said to be a reason for dismissal of the writ

petition in view of the provision of Section 57(2) (b) of the Jharkhand State

Universities Act, 2000, cannot be said to be a proper ground in view of the

communication dated 05.06.2008.

We have examined the communication dated 05.06.2008, wherefrom

we have found that the requisition was sent by the State Government for the

Session 2007-08 for filling up of vacancies in the teaching faculty of

different universities situated in the State Government, wherein it has been

stated that the process of selection has already been completed and therefore,

the transaction of selection is closed and in that view of the matter, if any

requisition will again be sent new process will be initiated. The content of

the aforesaid communication dated 05.06.2008 suggests that the process of

selection has been closed and once the recruitment process has been closed,

there cannot be a situation to say about the validity of the panel to remain in

force for a period of one year. Even, accepting the aforesaid argument of the

writ petitioner then also the writ petitioner has failed to make out a case,

since he has obtained 79 marks, while the cut of marks has been fixed 80

which cannot be reduced, compromising with the merit of one or other

candidates.

The writ petitioner is claiming about the validity of panel, but here the

said contention is not of any relevance as the question of validity of panel

will only arise, if the panel has been made on the basis of the merit list,

awaiting for the vacancies to be arises in case of non-joining of the post or

any other valid reason. But, we have gathered from the materials available

on record that it is not a case of preparation of panel and hence there is no

question of keeping the life of panel for a period of one year as would appear

from the communication dated 05.06.2008 wherefrom it is evident that the

recruitment process has already been closed.

Further contention of the writ petitioner is that the vacancies are

available, so if a direction would have been issued by the writ Court, in that

view of the matter, the cut off marks will be reduced.

This argument is also not acceptable for the reason that even if for the

notified vacancy, there cannot be a direction by the writ Court in exercise of

power of judicial review to fill up entire posts since the same depends upon

the question of merit of one or other candidates and the policy decision of

the recruiting agency, so there cannot be compromise in efficiency of the

candidate. If the contention of the writ petitioner would be accepted, in that

condition, the cut off marks which has been fixed by way of policy decision

by the recruiting agency-J.P.S.C, would have to be directed to be reduced

which cannot be allowed by passing a direction by the writ Court sitting

under Article 226 of the Constitution of India.

13. This Court, after considering the facts in entirety, as discussed

hereinabove, and taking into consideration the reasons assigned in the order

impugned for dismissal of the writ petition, is of the view that no error has

been committed by the writ Court, requiring interference by this Court

in this intra-court appeal.

14. Accordingly, the instant appeal fails and is dismissed.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Saket/-

A.F.R.