Jharkhand High Court

Sultan Singh vs The State Of Jharkhand Through The ... on 28 October, 2021

IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 1110 of 2020
1. Sultan Singh
2. Ashok Kumar
3. Suresh Kumar Saini
4. Manvendra Singh
5. Shyam Bihari Sharma
6. Anil Kumar Saini
7. Jogendra Singh
8. Rakesh Kumar
9. Balkrishna Parashar
10. Rajendra Kumar Meena
11. Moolchand
12. Jay Prakash Prajapati
13. Rakmkesh Meena
14. Rajesh
15. Ummed Singh gurjar
16. Lokesh Saini
17. Bheekam Saini
18. Rishikesh Meena
19. Vijendra Sabal
20. Arun Kumar
21. Rajendra Kumar Rathor
22. Binod Sharma
23. Bhuvnesh Kharedia
24. Namo Narayan Meena
25. Mahendra Kumar Jangid
26. Bhoor Singh Meena
27. Pooja Atal
28. Mahendra Beniwal
29. Vishnu Kumar Sharma
30. Mahaveer Bunker
31. Madhav Singh Bairwa
32. Rakesh Meena
33. Anil Kumar Sharma
34. Shivendra Kumar Chaturvedi
35. Mansingh Meena
36. Ravi Kumar Meena
37. Makkhan Lal Meena
38. Manoj Kumar Verma
39. Dharam Singh Meena
40. Hemraj Saini
41. Rakesh Kumar Bhadala
42. Hariom Choudhary
43. Khemraj Meena
44. Bikram Singh Yadav
45. Bankesh Meena
46. Mankesh Meena
47. Rajendra Kumar
48. Chandra Prakash
49. Prashant Vashisth
50. Lekharaj Sharma ... Petitioners
Vs.
1. The State of Jharkhand through the Principal secretary, Department of
Health, Medical Education & Family Welfare Department, Nepal House,
2

Doranda, Ranchi
2. The Mission Director, National Rural Health Mission Society, RCH
Namkum, Ranchi
3. The Deputy Secretary, Department of Health, Medical Education & Family
Welfare Department, Nepal House, Doranda, Ranchi
4. The Controller of Examination, Jharkhand Combined Entrance Competitive
Examination Board, Science & Technology Campus, Sirkhatoli, Namkum,
Ranchi
5. The Administrative Officer, National Rural Health Mission Society, RCH
Namkum, Ranchi
6. The Director, Information and Public Relation Department, Suchna Bhawan,
Meur's Road, Kachari, Ranchi. ... Respondents
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CORAM: THE HON'BLE MR. JUSTICE DR. S.N.PATHAK For the Petitioners : Mr. Prashant Pallav, Advocate For the Respondent-State : Mr. Rohit, AC to AAG-I For the Resp. No.4 : Mr. A.K. Mehta, Advocate

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10/ 28.10.2021 The petitioners have approached this Court with a prayer for quashing of the advertisement bearing No. JCEBEB/01/20-01 dated 01st January, 2020 (Annexure-1 to the writ petition ) specifically the condition that only the residents or the person domiciled in the State of Jharkhand can apply for the post of Community Health Officer as the same is in violation to the provisions of the Constitution. Further, prayer has been made for quashing of the Notification bearing No.9/RCH-611/2019-230 (MD) dated 27th February, 2020 and Notification bearing No.9/RCH-611/2019- 245(MD) dated 28th February, 2020, wherein the petitioners have not been allotted the Programme Study Cenre, despite the fact that the respondent-State has taken surety bond from the petitioners and affirmed the appointment of the petitioners. Further, prayer has been made for a direction upon the respondent-State to allot Programme Study Centre to the Petitioners and consequently appoint them to the post of Community Health Officers for which they were selected. Further, prayer has been made for quashing of the Advertisement No.JCECEB/28/20-42 dated 24.07.2020 as the appointment to the post of Community Health Officer pursuant to the aforesaid advertisement is reserved 100 % for those, who are domicile of the State of Jharkhand.

The case of the petitioners lies in a narrow compass. An advertisement being Advertisement No.JCECEB/01/20-01 dated 01.01.2020 for recruitment /selection to the post of Community Health Officer was floated by the respondents. Pursuant to the same, the petitioner being eligible in all respect, applied and thereafter, appeared in the competitive examination. The results were published vide Notification dated 05.02.2020, wherein the petitioners were declared successful. Thereafter, vide Notification dated 05.02.2020, all the successful candidates were called for verification of their documents. It is specific case of the petitioners that after the

verification of the documents, they were directed to execute a surety-bond agreement, to the effect that the petitioners would pursue a course as organized by IGNOU and thereafter they would be undergoing training, wherein they would be entitled for a sum of Rs.10,000/- as stipend. Subsequent to the training exercise, an examination would be held and upon passing the said exam, they would be entitled to a sum of Rs.15,000/- and such, the surety-bonds were filed and executed by the petitioners. Thereafter, vide Letters bearing No.9/RCH-611/2019-230(MD) dated 27th of February, 2020 and Notification bearing No.9/RCH-611-2019-245(MD) dated 28th of February, 2020, the list of the candidates, who have been allotted the Programme centre and waitlist of the candidates respectively were issued by the respondents, in which the names of the petitioners were missing. On enquiry, it was informed to the petitioner that as they were not the resident of State of Jharkhand, their names are not there in the final list issued vide aforesaid Notification/Letter dated 27.02.2020. As the names of the petitioners were not in the final selection list/waiting list as published vide letter dated 27.02.2020 & 28.02.2020, the petitioners have approached this Court for redressal of their grievances.

Mr. Prashant Pallav, learned counsel appearing on behalf of the petitioners submits that the action of the respondent-State is illegal and arbitrary by not appointing the petitioners only because they were not the resident of State of Jharkhand. The respondent-State is not empowered to provide 100% reservation to the domicile or resident of the State of Jharkhand and as such, there is a violation of Article 14, 16, 19 & 21 of the Constitution of India. He further submits that the condition prescribed in the advertisement, whereby only the resident or the persons domicile of State of Jharkhand could participate in the selection process is in gross violation of the principle of reservation and the Constitution of India. It is the respondents, who issued admit card/rank card for appearing in the recruitment process in which the category of the petitioners were mentioned as General Category and also after verification of their documents, a surety-bond agreement was executed between the petitioners and respondents and as such, there is legitimate expectation of the petitioners, now it is not open for the respondents to provide 100 % reservation to a particular State. He further submits that appointment is made under the Scheme of the Central Government 'Ayushman Bharat', even otherwise, the post cannot be reserved only for the domicile of the State of Jharkhand. The selection of the candidates was carried out in accordance with law and they were also selected however, they have not been appointed. No official communication is given by the respondent No.4 assigning any reason as to why the petitioners have not been appointed, but there is an oral murmuring in the office of the respondent No.4 that the petitioners, not being the

domicile of the State of Jharkhand, are not entitled for appointment. He further submits that earlier vide Annexure-7 and 7/A, similar advertisements were published by the respondent-State, wherein those candidates who were not domicile/resident of State of Jharkhand, have been allotted Programme Study Centres and have also been issued appointment letter without any objection and there has not been any change in the policy of the State of Jharkhand after the last advertisement. This is clear cut case of discrimination and such, impugned Letters/Notification /Advertisement are liable to be quashed and set aside. There is no clear-cut stipulation in the Advertisement that the outsider candidates are not allowed to fillup the application form. He further argues that the SANKALP No. 3854 dated 01.06.2018 derive its power from the Notification No.5938 dated 14.07.2016, which has already been struck down by this Hon'ble Court vide order dated 21.09.2020 in W.P.(C) No. 1387/2017.

Per contra, counter-affidavit has been filed.

Mr. Rohit, learned counsel for the respondent-State vehemently opposes the contention of the learned counsel for the petitioners and submits that there has been a provision to consider only the resident of the State of Jharkhand for future appointments to the Non-Gazetted Grade 'B', 'C' and 'D' post at State level vide Letter No.8468 dated 20.11.2018 and SANKALP No. 3854 dated 01.06.2018 by the Department of Personnel, Administrative Reforms and Rajbhasha, Govt. of Jharkhand and in view of the aforesaid, this condition was also implied in the said Advertisement that 'suitable candidates, who are citizens of India as well as permanent/local residents of the State of Jharkhand are eligible. He further submits that during the selection process, it has come to notice that the candidates from other State are also included in the Unreserved Category and as such, after scrutiny of the same, the candidates fulfilling the conditions contained in the advertisement were selected and the Programme Study Centres was accordingly, allotted for training. The merit list was made available to the National Health Mission, Jharkhand by completing the recruitment process through the Jharkhand Combined Entrance Competitive Examination Board on the requisition of the National Health Mission, Jharkhand. In the light of the above, the merit list obtained from the selected candidates for the demand of Bond Paper and necessary papers, according to the vacancy, the formal result was published vide office order dated 20.02.2020. The candidates, who submitted the entire paper according to the terms and conditions contained in the published advertisement, were allotted the Programme Study Centre were prepared /allotted according to the expression of wish received vide Office Order No.320 (MD) dated 27.02.2020.

Mr. A.K. Mehta, learned counsel for the respondent No.4 submits that the petitioners are not the resident of State of Jharkhand and as such, they were not appointed/selected. In the advertisement itself, there is a condition that the applicant apart from being a Citizen of India was also required to be a permanent/local resident of the Jharkhand State. The respondent No.4 has published advertisement based upon the requisition of respondent-State. It has also held examination and prepared a merit list of candidates and has forwarded to the same the respondent No.2 for needful action at his end. Therefore, the action of respondent No.4 is neither illegal nor bad in law. It is the policy decision of the State Government that Class-III & IV posts will be filled up by the resident of Jharkhand.

Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, it appears that for appointment to the post of Community Health Centres, a candidate must be a citizens of India as well as permanent/local residents of the State of Jharkhand in terms of the Advertisement, but as the petitioners are outsider from the State of Jharkhand, their cases have not been considered. Law is well settled that recruitment process must be completed as per terms and conditions of the advertisement and as per rules existing when the recruitment process began. The Hon'ble Apex Court in case of Prakash Chand Meena & Ors. Vs. the State of Rajasthan & Ors., reported in (2015) 8 SCC 484 has held that:

"8. Having heard the parties, we have also perused the written submissions filed on behalf of some of them and have perused the judgment of the learned Single Judge and the impugned judgment of the Division Bench. In our considered view, the issue noticed at the outset must be decided on the basis of settled law noticed by learned Single Bench that recruitment process must be completed as per terms and conditions in the advertisement and as per rules existing when the recruitment process began. In the present case, the Division Bench has gone to great lengths in examining the issue whether B.P.Ed. and D.P.Ed. qualifications are equivalent or superior to C.P.Ed. qualification but such exercise cannot help the cause of the respondents who had the option either to cancel the recruitment process if there existed good reasons for the same or to complete it as per terms of advertisement and as per rules. They chose to continue with the recruitment process and hence they cannot be permitted to depart from the qualification laid down in the advertisement as well as in the rules which were suitably amended only later in 2011. In such a situation, factual justifications cannot change the legal position that respondents acted against law and against the terms of advertisement in treating such applicants successful for appointment to the post of PTI Gr.III who held other qualifications but not the qualification of C.P.Ed. Such candidates had not even submitted separate OMR application form for appointment to the post of PTI Gr.III

which was essential as per the terms of advertisement.

9. The candidates who were aware of the advertisement and did not have the qualification of C.P.Ed. also had two options, either to apply only for PTI Gr.II if they had the necessary qualification for that post or to challenge the advertisement that it omitted to mention equivalent or higher qualification along with qualification of C.P.Ed. for the post of PTI Gr.III. Having not challenged the advertisement and having applied for the other post, they could not have subsequently claimed or be granted eligibility on the basis of equivalence clarified or declared subsequently by the State Government. In the matter of eligibility qualification, the equivalent qualification must be recognized as such in the recruitment rules or Government order existing on or before the initiation of recruitment process. In the present case, this process was initiated through advertisement inviting application which did not indicate that equivalent or higher qualification holders were eligible to apply nor the equivalent qualifications were reflected in the recruitment rules or Government Orders of the relevant time."

Further, it is the policy decision of the State that the local resident of Jharkhand only will be benefitted for appointment to the post of Class-III & Class-IV in the State of Jharkhand and this Court sitting under Article 226/227 of the Constitution of India, cannot interfere in the matter of policy decision unless the same is mala fide or against the established rules/laws and also in violation of the constitutional mandate as envisaged in Article 14 & 16 of the Constitution of India. So far as the contention of the learned counsel for the petitioners that pursuant to earlier advertisement dated 13.05.2019, outsiders were also appointed to the said post, but only to discriminate the present petitioners, they have not been appointed though they are on similar footing is concerned, this Court is of the view that illegality, if any, once committed cannot be allowed to be perpetuated and the respondent authorities have every right to correct the same. The guarantee of equality before law is a positive concept and cannot be enforced in a negative manner. If an illegality or an irregularity has been committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction of the Courts and Tribunal to require the State to commit the same irregularity or illegality in their favour on the reasoning that they have been denied the benefits which have been illegally or arbitrarily extended to others.

As a sequel to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the instant writ petition merits dismissal and the same is hereby dismissed.

(Dr. S.N. Pathak, J.) punit/-