Jharkhand High Court

Ms. Shilpa Dalmia vs Jharkhand Public Service ... on 18 June, 2021

                            1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
               W.P. (S) No. 1954 of 2020
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Ms. Shilpa Dalmia, aged about 32 years, D/o Mr. Yash Pal Dalmia, R/o 1/276, Shri Ram Nagar, G.T. Road, Shahdra, Delhi -110032. .. ... ... Writ Petitioner Versus

1.Jharkhand Public Service Commission through its Chairman having its office at Circular Road, Ahirtoli, Ranchi, P.O Ranchi, P.S. - Kotwali.

2.The State of Jharkhand through the Secretary (Law), having its office at Project Bhawan, Ranchi, Jharkhand.

3.Secretary, Personnel and Administrative Reforms having its office at Nepal House, Ranchi, Jharkhand.

4.Jharkhand High Court through its Registrar General having its office at Doranda, Ranchi, Jharkhand, P.O + P.S. Doranda. ... .... Respondents

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CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Writ Petitioner : Md. Mokhtar Khan, Advocate For the State : Mr. Piyush Chitresh, A.C to A.G. For the J.P.S.C. : Mr. Navin Kumar Pandey, Advocate

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Oral Judgment Order No. 04 : Dated 18th June, 2021:

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.

2. The instant writ petition has been filed under

Article 226 of the Constitution of India seeking following

reliefs:

(i).For issuance of writ, order(s), direction(s) in the nature of Certiorari or any other appropriate Writ thereby directing the Respondents to issue the Appointment to Petitioner under the Horizontal Reservation of Sports Quota.

(ii).To stay the Issuance of Appointments letters to the Finally Selected Candidates and Reserve One (1) Seat for the Petitioner as the Final Result declares the selection of 107 Candidates in total, until the Final Disposal of the Writ and the Ascertainment of Petitioners Right.

(iii).To Quash Non-Acceptance or Rejection of Petitioner's Candidature as an "Outstanding Sports Person", pursuant to Horizontal Reservation of Sports Quota under the Advertisement - 12/2018, as claimed by the Petitioner and duly acknowledged by the Respondent no. 1 JPSC.

(iv).To direct the Respondents to Consider the Sports Certificate of the Petitioner, under the Point No. (ii) and Point No. (iii) of the Sports Standard Parameters of the Advertisement 12/18, published by Respondent No. 1 JPSC and the Sports Memo No. 1709 dated 12-09-2007 of the Government of Jharkhand.

(v).To Direct the Respondents to Engage the Sports Officials/Experts for the Correct/True Interpretation of the Certificates of the Petitioner in accordance with the parameters of discipline/sports of Lawn Tennis in the light of the Standards under Point No. (ii) and Point No.

(iii) of Sports Quota Recruitment as given under the advertisement itself.

3. The brief facts of the case, as per the pleadings

made in the writ petition, which are required to be

enumerated herein, read under as:

In pursuance to the advertisement being

Advertisement No. 12/2018 floated by Jharkhand Public

Service Commission (in short 'JPSC'), for direct

appointment of Civil Judge (Junior Division) under

Jharkhand Judicial Service, the writ petitioner applied for

the said post and participated in the process of selection.

She was declared successful in Preliminary Entrance Test

and Main Examination (Written Test) and was

provisionally selected for interview in which she appeared

but was not finally selected.

It is the case of the writ petitioner that she applied

for the said post claiming Horizontal Reservation of 3%

under 'Sports Quota' , being a meritorious sports person

for the sports of 'Lawn Tennis', as mentioned in Column

1(d) of the advertisement, but her candidature has not

been considered by the JPSC under Sports Quota in spite

of the fact that she has been awarded medal and

certificate at national and university level for the sports of

'Lawn Tennis'; hence the present writ petition.

4. Md. Mokhtar Khan, learned counsel appearing for

the petitioner has submitted that even though as per the

condition stipulated in the advertisement, i.e. Condition

No. 1 (d), which speaks about the 'level of competition'

and 'achievement in sports' in case of seeking reservation

by the candidates under Sports Quota, the petitioner had

submitted certificate showing that the writ petitioner had

participated at national and university level for the sports

of 'Lawn Tennis', which fulfills the condition nos. 1(d) (ii)

and 1(d) (iii) for getting Horizontal Reservation of 3%

under Sports Quota, but she was not declared successful

on the ground that 'sports certificate not produced as per

advertisement'.

Learned counsel for the writ petitioner has further

submitted that the respondent-JPSC has violated the

terms of Horizontal Reservation against Sports Quota by

denying the candidature of the petitioner as the petitioner

had submitted all relevant sports certificates to establish

her claim as per advertisement. Learned counsel for the

petitioner further submits that the petitioner secured first

position at National Level championship in Lawn Tennis

at 'XXXIV National Sports Festival For Women, Group -

III' held at Hamirpur, Himachal Pradesh held from 26th to

29th December, 2008 which was organized by Sports

Authority of India under the aegis of 'Ministry of Youth

Affairs and Sports, Government of India", but without

considering the aforesaid certificate which fulfills the

criteria as mentioned in the advertisement her

candidature was rejected; therefore, non-selection of the

petitioner under Sports Quota extending benefit of

Horizontal Reservation is nothing but an arbitrary

exercise of respondent-JPSC and hence, the prayer made

by the writ petitioner is fit to be allowed.

5. Per contra, Mr. Navin Kumar Pandey, learned

counsel for the respondents-JPSC has submitted that the

case of the petitioner has got no merit as the writ

petitioner has been found to be not eligible to be

considered for appointment under Sports Quota, as per

the condition no. 1(d) of the advertisement, as would be

evident from the certificates attached at Annexure 5 and

Annexure 19 series to the writ petition. It has further

been contended that the benefit of Horizontal Reservation

by treating a candidate under Sports quota is required to

be granted by virtue of circular issued by Government of

Jharkhand vide memo no. 1709 dated 12.09.2007 based

upon which advertisement has been issued. The

examining body-JPSC after taking into consideration the

eligibility criteria, as prescribed in the advertisement, and

after scrutinizing the certificate submitted by the writ

petitioner in order to extend the benefit of Horizontal

Reservation under Sports Quota to the extent of 3%, has

found the petitioner to be not eligible to get such benefit

and, therefore, she has not been finally selected. Hence, it

cannot be said that there is any illegality in the process of

selection and therefore, prayer made by the writ

petitioner is not fit to be allowed.

6. Mr. Piyush Chitresh, A.C to learned A.G, appearing

for the respondents-State adopted the argument

advanced by learned counsel for the respondent-JPSC.

7. We have heard learned counsel for the parties and

perused the materials available on record along with

annexures appended thereto.

The admitted facts of the case are that the writ

petitioner has offered her candidature for consideration of

appointment to the post of Civil Judge (Junior Division) in

pursuance to the advertisement floated by JPSC vide

Advertisement No. 12/2018 under 'Sports Quota',

stipulation to that effect has been made in the

advertisement to appoint the candidates having the

eligibility under the 'Sports Quota' by extending the

benefit of Horizontal Reservation to the extent of 3%.

Further admitted fact is that though the writ petitioner

was declared successful in 'Preliminary Entrance Test' as

well as in 'Main Examination' (Written Test), and

thereafter was called for Interview and document

verification, but after publication of final result, she was

declared unsuccessful with the remark "Sports certificate

not produced as per advertisement", as would be evident

from Annexure 18 to the writ petition.

In the backdrop of these facts, it would be apt to

first go through the details of eligibility under 'Sports

Quota" as has been incorporated under Clause 1(d) of the

advertisement, which reads under as:

"1.(d) [ksydwn dksVk ds vUrxZr vkj{k.k ds nkos dh fLFkfr esa dyk] laLd`fr] [ksydwn ,oa ;qok dk;Z foHkkx] >kj[k.M ljdkj ds Kkikad&1709 fnukad&12-09- 2007 }kjk Js.kh&II ds inksa ij lh/kh fu;qfDr gsrq fu/kkZfjr fuEu ekud ds vuqlkj vuqekU; gksxk & izfr;ksfxrk dk Lrj miyfC/k

(i) vUrjkZ"Vªh; vksyfEid dfeVh vFkok muls lacaf/kr esMy QsMjs'kuksa }kjk vk;ksftr izfr;ksfxrkA

(ii) Hkkjrh; vksyfEid la?k vFkok mlls lEc) izFke LFkku QsMjs'kuksa }kjk vk;ksftr jk"Vªh; pSfEi;u'khi Lrj dh izfr;ksfxrkA

(iii) jk"Vªh; Lrj dh izfr;ksfxrkA fo'o fjdkMZ

8. The writ petitioner has questioned the rejection of

her candidature by putting reliance upon Merit Certificate

of Sports, annexed at Annexure 5 and 19 series to the

writ petition. According to writ petitioner since due sports

certificates for getting benefit of Horizontal Reservation by

treating the candidature of the writ petitioner under

Sports Quota has been submitted before the examining

body-JPSC, the said certificates ought to have been taken

into consideration by considering the candidature of writ

petitioner under 'Sports Quota' and thereby the writ

petitioner ought to have been given benefit of Horizontal

Reservation but having not done so, gross illegality has

been committed by the examining body-JPSC.

9. On the other hand, Mr. Navin Kumar Pandey,

learned counsel for the respondent-JPSC on the strength

of counter affidavit filed by the respondent-JPSC has

submitted that the writ petitioner is not eligible to be

extended the benefit of Horizontal Reservation by treating

her candidature under Sports Quota as the candidature

of the writ petitioner has not been found to be considered

under Sports Quota since she is not fulfilling the

condition as stipulated in condition no. 1(d) of the

advertisement and, therefore, her candidature under

Sports Quota has been rejected.

It has further been contended that when the sports

certificate of the petitioner was not found fit in

consonance with the condition as stipulated in the

advertisement, then the candidature of the petitioner was

considered under unreserved category but she had

secured lesser marks than that of the last selected

candidate under unreserved candidate and as such she

was declared unsuccessful.

10. We in order to appreciate the aforesaid argument

has considered the advertisement as also the condition

stipulated in the advertisement to provide benefit of

Horizontal Reservation to the candidates belonging to the

Sports Quota and vis-à-vis as the Government Circular

issued vide Memo No. 1709 dated 12.09.2007 as also the

certificate produced by the writ petitioner for getting such

benefit as appended under Annexures 5 and 19 series to

the writ petition.

It is evident from Condition No. 1(d) of the

advertisement, as has been quoted and referred

hereinabove, that the candidate who is claiming benefit of

Horizontal Reservation under 'Sports Quota' to the extent

of 3 % in the light of circular issued by Govt. of

Jharkhand vide Memo No. 1709 dated 12.09.2007, is

required to fulfill any of the three conditions as

mentioned in the advertisement at Condition No. 1(d) i.e.

either candidate has achieved 'Medal' in the competition

organized by International Olympics Committee or

Competition organized by Federation attached with it; OR

has secured 'First Position' in the competition organized

at National Level by Indian Olympic Association or

Federation attached with it; OR has 'World Record' in the

competition organized at National Level; meaning thereby,

in either of the three situations the candidate would be

given the benefit of Horizontal Reservation to the extent of

3 % under Sports Quota.

The writ petitioner has sought for Horizontal

Reservation under Sports quota on the basis of

certificates annexed at Annexures 5 and 19 series to the

writ petition.

The Certificate annexed at Annexure 5 to the writ

petition, which has been mentioned by the writ petitioner

while filling up the on-line application form, shows that in

'XXXIV National Sports Festival for Women Group-III'

organized by 'Sports Authority of India' in collaboration

with Directorate of Youth Services and Sports, Himachal

Pradesh, for the discipline of Tennis, the petitioner has

secured 'First' position'.

The other Merit Certificates of sports have been

annexed by the writ petitioner at Annexure 19 series to

the writ petitioner, first three certificates have been

issued by 'School Games Federation of India', which is

recognized by Ministry of Youth Affairs & Sports, Govt. of

India, in which, in the first certificate shows that the writ

petitioner had secured first position whereas rest two

certificates shows that she secured second position;

fourth and fifth Merit Certificates show that in 'XXXII

National Sports Festival for Women Group-II' organized

by 'Sports Authority of India' in collaboration with

Directorate of Youth Services and Sports, Maharashtra in

the discipline of Tennis (Doubles) and Tennis (Team), she

secured second position; the next two certificates

annexed with the writ petition show that they have been

issued by the University of Delhi and Jamia Milia Islamia

respectively. Two more certificates have been annexed at

Annexure 19 one is of participation certificate in 'XXXIII

National Sports Festival for Women Group -1' and

another is the certificate issued by Directorate of

Education, Govt. of National Capital Territory of Delhi in

which she has secured first position.

11. We have compared the aforesaid certificates with

the conditions as stipulated in Condition no. 1 (d) of the

advertisement.

It appears that none of the certificates produced by

the petitioner has recognition by 'International Olympic

Committee or its concerned federations' meaning thereby

the case of the petitioner does not fall under condition no.

1(d) (i), which says that achievement of 'Medal' in the

competition having recognition by 'International Olympics

Committee or its Federation'. Likewise none of the

certificates submitted by the petitioner shows that the

petitioner had secured First position in the competition

having recognition by 'Indian Olympics Association or the

Federations attached thereto, as such the case of the

petitioner does not fall under condition no. 1(d)(ii).

Moreover, none of the certificate of the petitioner shows

that she has made 'World Record' in the competition

organized at 'National Level', hence case of the petitioner

also does not fall under last condition, i.e. condition no.

1(d)(iii) for getting benefit of Horizontal Reservation of 3 %

under Sports Quota.

12. This Court, after going through the counter affidavit

filed by the respondent-JPSC has found therefrom that

for the reasons aforesaid her candidature has not been

considered for extending benefit of Horizontal Reservation

to the extent of 3 % under Sports Quota since she was

not fulfilling any of the conditions, as stipulated under

Condition No. 1(d) of the advertisement. However, her

candidature was considered under unreserved category

but in this category, she was found to be securer of lesser

marks than that of last selected candidates. Hence, she

was not given offer of appointment.

13. This Court on the basis of facts, as discussed

herein above, is of the view that there is no error in the

process of selection and it is settled position of law that

scope of judicial review in the case of

selection/appointment is only required to be invoked if

there is error in decision making process.

Reference in this regard may be made to the

judgment rendered by Hon'ble Apex Court in Syed TA

Naqshbandi and Ors. vs. State of J&K and Ors.,

[(2003) 9SCC 592], wherein the Hon'ble Supreme Court

has observed as under: ―

"Judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision itself, as such. Critical or independent analysis or appraisal of the materials by the Courts exercising powers of judicial review unlike the case of an appellate court, would neither be permissible nor conducive to the interests of either the officers concerned or the system and institutions......"

Further reference in this regard be made to the

judgment rendered in of Tata Cellular v. Union of

India, reported in (1994) 6 SCC 651, wherein the

Hon'ble Court at paragraphs 72-75 and 77 held as under:

"72. Lord Scarman in Nottinghamshire County Council v. Secretary of State for the Environment [1986 AC 240, 251 : (1986) 1 All ER 199] proclaimed:

" 'Judicial review' is a great weapon in the hands of the judges; but the judges must observe the constitutional limits set by our parliamentary system upon the exercise of this beneficial power."

Commenting upon this Michael Supperstone and James Goudie in their work Judicial Review (1992 Edn.) at p. 16 say:

"If anyone were prompted to dismiss this sage warning as a mere obiter dictum from the most radical member of the higher judiciary of recent times, and therefore to be treated as an idiosyncratic aberration, it has received the endorsement of the Law Lords generally. The words of Lord Scarman were echoed by Lord Bridge of Harwich, speaking on behalf of the Board when reversing an interventionist decision of the New Zealand Court of Appeal in Butcher v. Petrocorp Exploration Ltd. 18-3-1991."

73. Observance of judicial restraint is currently the mood in England. The judicial power of review is exercised to rein in any unbridled executive functioning. The restraint has two contemporary manifestations. One is the ambit of judicial intervention; the other covers the scope of the court's ability to quash an administrative decision on its merits. These restraints bear the hallmarks of judicial control over administrative action.

74. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself.

75. In Chief Constable of the North Wales Police v. Evans [(1982) 3 All ER 141, 154] Lord Brightman said:

"Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. *** Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

.... ... ... ...

77. The duty of the court is to confine itself to the question of legality. Its concern should be:

1.Whether a decision-making authority exceeded its powers?

2.Committed an error of law,

3.committed a breach of the rules of natural justice,

4.reached a decision which no reasonable tribunal would have reached or,

5.abused its powers.

         Therefore,           it   is       not    for    the    court     to
determine          whether             a     particular         policy    or

particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:

(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety.

The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind [(1991) 1 AC 696], Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention".

(own emphasis)

Similar principle has been laid down in the cases of

H.S. Sidhu v. Devendra Bapna, [(2016) 1 SCC 495]

and U.V. Mahadkar v. Subhash Anand Chavan,

[(2016) 1 SCC 536].

14. Learned counsel for the petitioner has tried to

impress upon this Court that since the writ petitioner is

active sports woman and as such the Commission ought

to have shown sympathy as also this Court may pass

appropriate order for consideration of her candidature,

but such argument is not fit to be accepted and if such

submission would be accepted it will amount to giving

relaxation in the condition of the advertisement, which

cannot be said to be under purview of writ Court in view

of Article 226 of the Constitution of India and otherwise

also there cannot be a direction for relaxation in the

condition stipulated in the advertisement as it is the

settled position of law that the conditions stipulated in

the advertisement are to be complied with in letter and

spirit.

Reference in this regard be made to the judgment

rendered by Hon'ble Apex Court in Bedanga Talukdar

vs. Saifudullah Khan & Ors. [(2011) 12 SCC 85]

wherein it has been held that the conditions stipulated in

the advertisement are strictly to be adhered to.

For ready reference, relevant paragraph 29, 30 and

32 of the said judgment is quoted hereunder as:

"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.

32. In the face of such conclusions, we have little hesitation in concluding that the conclusion recorded by the High Court is contrary to the facts and materials on the record. It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved in the relevant rules and/or in the advertisement. Even if there is a power of relaxation in the rules, the same would still have to be specifically indicated in the advertisement. In the present case, no such rule has been brought to our notice. In such circumstances, the High Court could not have issued the impugned direction to consider the claim of Respondent

1 on the basis of identity card submitted after the selection process was over, with the publication of the select list.

Similar principle has been hold by the Hon'ble Apex

Court in the case of Ramana Dayaram Shetty vs.

International Airport Authority of India and Ors.

reported in (1979) 3 SCC 489 as also the judgment

rendered by the Hon'ble Apex Court in the case of Air

India Ltd. vs. Cochin International Airport Ltd.

reported in (2000) 2 SCC 617.

15. Thus it is evident from the proposition laid down by

Hon'ble Apex Court in the cases, referred hereinabove,

that the scope of judicial review is only limited to the

extent if there is any error in decision making process as