Prakash Paswan vs The Secretary
2021 Latest Caselaw 52 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        W.P. (S) No.1721 of 2020
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1. Prakash Paswan, aged about 27 years, S/o Uday Paswan, R/o Village Ichak, P.O. Gangpur, P.S. Giddhaur, District Chatra, Jharkhand

2. Thakur Dayal Bhokta, aged about 26 years, S/o Sambhu Ganju, R/o Village Hahe, P.O. Piri, P.S. Simariya, District Chatra, Jharkhand .... .... .... Petitioners Versus

1. The Secretary, Staff Selection, Block No.12, CGO Complex, P.O. & P.S. Lodhi Road, District New Delhi, New Delhi-110003

2. The Director General, CRPF (Recruitment Branch), East Block-07 Level-4, Sector-1, R.K. Puram, P.O. & P.S. R.K. Puram, District New Delhi, New Delhi-110066

3. The Deputy Secretary, Staff Selection Commission, Eastern Region, at MSO Building, 8th Floor, Nizam Palace, 234/4, Acharya Jagdish Chandra Bose Road, P.O. & P.S. Mallick Bazar, Kolkata, West Bengal-700020 .... .... .... Respondents

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

For the Petitioners : Mr. Rajeev Kumar, Advocate For the Respondent-Union of India : Mr. Rajiv Sinha, ASGI

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05/06.01.2021 Heard Mr. Rajeev Kumar, learned counsel for the petitioners and Mr. Rajiv Sinha, learned counsel for the respondent-Union of India.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

The petitioners have preferred this writ petition for direction upon the respondent to make correction in the domicile of the petitioners from District Hazaribagh to Chatra.

Staff Selection Commission, New Delhi published the notice of examination for recruitment of Constables (GD) in Central Armed Police Forces (CAPFs), National Investigation Agency (NIA), Secretariat Security Force (SSF) and Rifleman (GD) in Assam Rifle on 21.07.2018 in Employment News/Rozgar Samachar. The name of examination is Constables (GD) in CAPFs, NIA & SSF and Rifleman (GD) in Assam Rifles Exam, 2018 (hereinafter referred to Constable GD Examination, 2018) The said notice was also uploaded in the SSC website on 25.07.2018.

Pursuant thereto, the petitioners applied for appointment on the post of Constables. The petitioners filled up on line application Form as well as in the drop down menu. The petitioners were allowed to appear in the

said examination. At the time of document verification and verification of Form, it was detected that the petitioners have wrongly filled domicile of District as Hazaribagh in place of Chatra. Thereafter, the candidature of the petitioners were cancelled. Aggrieved with this, the petitioners have approached this Court praying therein to correct the District of domicile in their online application Form as well as drop down menu.

Mr. Rajeev Kumar, learned counsel for the petitioners assailed the impugned action on the ground that the petitioners have bonafidely and mistakably fill up the Form wherein they have indicated domicile of District Hazaribag in place of Chatra. The petitioners are having domicile certificate of Chatra but that has not been filled and the petitioners were allowed to participate in the examination and they have been selected and at the time of verification of credentials, it was detected. Thereafter, the candidature of petitioners were rejected. He submits that it was bonafide mistake and that can be corrected at this stage also. To buttress his argument, by way of relying one order of Madras High Court passed in W.P. No.5205 of 2020 he submits that the Madras High Court has allowed the correction of domicile of District in that case and the case of the petitioner is on the similar footing. He submits that in the light of the same, the prayer of the petitioner may kindly be allowed. He further relied the order of High Court of Judicature at Bombay at Aurangabad Bench in Writ Petition No.4761 of 2020 and submits the Bombay High Court has allowed the petitioner of those case to correct the application Form with regard to District of domicile. He submits that the case of the petitioner is fully covered in view of two orders of Madras High Court and the order of Bombay High Court respectively.

Per contra, Mr. Rajiv Sinha, learned counsel for the respondent- Union of India submits that the case of the petitioners is fit to be rejected only on the ground that in the advertisement the entire procedure has been reflected wherein so many times in so many columns, it has been stated that after online application Form, no correction will be allowed to be done. He refers to column no.17 and submits that candidates were required to select their domicile District from the drop down menu as well as on line and in the next column, they were again required to verify the domicile District from the drop down menu. He submits that both entries were independent of each other and the system would accept information about the domicile District of the candidates only if the information given in both these columns matched perfectly. He submits that it is not only on-line Form. The

procedure prescribes about filling of two Forms and the systems accepts the domicile if the domicile State is stated correctly disclosed in both Forms. He further submits that the terms and conditions of notice of examination are binding both on the Commission as well as on the applicant. He submits that the petitioners have admitted that they have provided wrong domicile of District. By way of referring several clauses, he submits that at various stages it has been disclosed that how the application Form is to be filled up and caution has also been highlighted in the said notice, in spite of that the petitioners have filled wrong information. He further submits that the procedure has been prescribed in advertisement that there is no reason for a particular candidate the said procedure shall be changed. That is violation of Article 14 and 16 of Constitution of India. To buttress his argument, he relied in the case of Bedanga Talukdar Versus Saifudaullah Khan & Others reported in (2011) 12 SCC 85 particularly para 25, 29 and 30 which is quoted hereinbelow:-

25. It was further the case of Respondent 1 that he had produced the necessary documents in support of his claim of locomotor disability to the extent of 50% along with the other certificates and testimonials at the time of interview. However, when the select list was published on 15-6-2009, the name of Respondent 1 was not included therein. It was in fact the appellant, who had been selected for appointment. It was also the case of Respondent 1 that the appellant had scored 695 marks whereas Respondent 1 had scored 817 marks in the examination. In spite of having scored higher marks, he was illegally and arbitrarily not selected

29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.

30. A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing in the preliminary examination could be relaxed in the case of Respondent 1. Such a

course would not be permissible as it would violate the mandate of Articles 14 and 16 of the Constitution of India.

He further submits that it is well settled proposition of law that candidates who has already appeared in the examination and had participated, are not allowed. They are estopped from raising any grievance. For ready reference, he relied in the case of Nitish Kumar Pandey Versus State of Madhya Pradesh & Others reported in (2020) 4 SCC 70 particularly para 14 which is quoted hereinbelow:-

14. The learned Senior Advocate for the appellants while contending that the writ petitioners having participated in the computer efficiency test are estopped from raising any grievance subsequently has placed strong reliance on the decision of the Supreme Court in Ashok Kumar v. State of Bihar wherein it is held as hereunder: (SCC p. 363, para 13) "13. The law on the subject has been crystallised in several decisions of this Court. In Chandra Prakash Tiwari v. Shakuntala Shukla, this Court laid down the principle that when a candidate appears at an examination without objection and is subsequently found to be not successful, a challenge to the process is precluded. The question of entertaining a petition challenging an examination would not arise where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein, merely because the result is not palatable. In Union of India v. S. Vinodh Kumar, this Court held that: (SCC p. 107, para 18) '18. It is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. (See Munindra Kumar v. Rajiv Govil and Rashmi Mishra v. M.P. Public Service Commission.)'"

In that light it is further contended that the Supreme Court in Subhash Chandra v. Delhi Subordinate Services Selection Board has held that a decision rendered in ignorance of a binding precedent will have to be held as a decision rendered per incuriam.

In reply, Mr. Rajeev Kumar, learned counsel for the petitioners submits that the two High Courts of India have directed and if the petitioners of those cases have given benefit, the petitioners herein are also entitled for the same benefit. He submits that if those persons have been provided employment after the intervention of Hon'ble Madras High Court and Bombay High Court and if the petitioners are not allowed, the Article 14 and 16 of Constitution of India is being attracted in the case of the petitioners and on these grounds arguments of Mr. Rajiv Sinha, learned counsel for the respondent-Union of India are fit to be rejected.

In the light of above facts and submission of learned counsel for the parties, the Court has gone through the materials on record. It is an admitted position that the petitioners have filled up wrong domicile in the

application Form on line as well as in drop down menu. The examination has already been over and during the document verification, it was detected that they have wrongly filled up the domicile. In the advertisement notice, it has been clearly stated that the candidates were cautioned to fill up the application Form very carefully. The detailed guidelines has been provided in the notice as to how to fill up the application Form. The scheme of examination has also been disclosed in the said notice. It has been indicated in column 17 of the said notice which is quoted hereinbelow:-

"Candidates are advised to be very careful and should exercise due diligence while providing information about domicile state and district in the online application form. No request for change of domicile state and district will be entertained by the commission after submission of application form under any circumstances. If there is any variation of district and/ or state mentioned by the candidate in the online application form and the domicile certificate submitted by them at the time of DME, their candidature will be cancelled forthwith and they will not be allowed to participate in DME."

Caution has been made therein and it has been clearly indicated that if the domicile is wrongly indicated, the candidature will be cancelled forthwith. In plethora of judgment, the Hon'ble Supreme Court has held that once the procedure for appointment has been indicated, that needs to be followed and one of the judgment relied by Mr. Rajiv Sinha, learned counsel for the respondent-Union of India in the case of Bedanga Talukdar (supra) is on the same line. It is also well settled provision of law that once a candidate appeared after knowing the entire criteria of appointment and participated in the examination, he is estopped from raising any grievance. Subsequently, the judgment relied by Mr. Rajiv Sinha, learned counsel for the respondent-Union of India in the case of Nitish Kumar Pandey (supra) is also on the same line. So far the judgment relied by Mr. Rajeev Kumar, learned counsel for the petitioners of Madras High Court is concerned that order has been passed on the concession provided by the learned counsel appearing for the Central Government. So far the judgment relied by Mr. Rajeev Kumar, learned counsel for the petitioners of Bombay High Court is concerned on the ground of bonafide mistake, that has been allowed by Bombay High Court, however, this aspect of the matter has not been considered in that judgment as to whether procedure has been prescribed in the advertisement that will govern or any concession can be granted under Article 226 of Constitution of India. Thus, these two judgments relied

by Mr. Rajeev Kumar, learned counsel for the petitioners is not helping the petitioners. The argument of Mr. Rajeev Kumar, learned counsel for the petitioners that Articles 14 and 16 is also not being accepted by the Court in view of the fact that negative equality cannot be allowed in favour of any person. Reference in this regard may be made in the case of State of Orissa v. Mamata Mohant reported in (2011) 3 SCC 436 particularly para 56 which is quoted hereinbelow:-

56. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief. (Vide Chandigarh Admn. v. Jagjit Singh, Yogesh Kumar v. Govt. of NCT of Delhi, Anand Buttons Ltd. v. State of Haryana, K.K. Bhalla v.

State of M.P., Krishan Bhatt v. State of J&K, Upendra Narayan Singh and Union of India v. Kartick Chandra Mondal.)

As a cumulative effect of the aforesaid discussion, no relief can be extended to the petitioners.

The writ petition stands dismissed.

(Sanjay Kumar Dwivedi, J.)

Anit