Jharkhand High Court
Chandan Kumar vs The State Of Jharkhand Through The ... on 16 December, 2022
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.790 of 2019
----
Chandan Kumar, Aged about 41 years, Son of Late Murari
Sharma, Resident of Q. No. 18/124, 56 Set, Doranda, P.O. P.S.
Doranda, District Ranchi.
... ... Petitioner
Versus
1. The State of Jharkhand through the Chief Secretary, Govt. of
Jharkhand, Ranchi, Officiating at Project Building, H.E.C.
Township, P.O. & P.S. Dhurwa, District Ranchi.
2. The Additional Chief Secretary, Personnel, Administrative
Reforms & Rajbhasha Department, Govt. of Jharkhand,
Ranchi, Officiating at Project Building, H.E.C. Township, P.O. &
P.S. Dhurwa, District Ranchi.
3. The Additional Chief Secretary, Finance Department, Govt. of
Jharkhand, Ranchi, Officiating at Project Building, H.E.C.
Township, P.O. & P.S. Dhurwa, District Ranchi.
4. The Secretary, Road Construction Department, Govt. of
Jharkhand, Ranchi, Officiating at Project Building, H.E.C.
Township, P.O. & P.S. Dhurwa, District Ranchi.
5. The Secretary, Department of Law (Justice), Govt. of
Jharkhand, Ranchi, Officiating at Project Building, H.E.C.
Township, P.O. & P.S. Dhurwa, District Ranchi.
6. The Jharkhand Public Service Commission through
Secretary officiating at JPJSC Office, Circular Road, P.O. & P.S.
Lalpur, District Ranchi.
... ... Respondents
With
W.P.(S) No.5259 of 2018
----
1. Rajesh Kumar Choudhary, Aged about 41 years, Son of
Radhey Shyam Choudhary, At & P.O. : Motia, P.S.:Godda
(Muffasil), District:Godda.
2. Shyam Lal Mahto, Aged about 44 years, Son of Babulal
Mahto, Resident of Village:Bhatin, P.O. & P.S.:Hansdiha,
District:Dumka. ... ... Petitioners
Versus
1. Jharkhand Public Service Commission, Circular Road,
Lalpur, P.O. & P.S.:Lalpur, District : Ranchi.
2. The Secretary, Jharkhand Public Service Commission,
Circular Road, Lalpur, P.O. & P.S.:Lalpur, District : Ranchi.
3. The State of Jharkhand through Secretary, Personnel,
Administrative Reforms & Raj Bhasha Department, At : Project
Building, Dhurwa, P.O. & P.S. : Dhurwa, Ranchi, District :
Ranchi. ... ... Respondents
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With
W.P.(S) No.5612 of 2018
----
1. Ramesh Pathak, aged about 34 years, son of Narad Pathak,
residing at KVEE, P.O. & P.S. - Manika, District - Latehar, PIN
822126 (Jharkhand).
2. Sukesh Ranjan, aged about 41 years, son of Ratnesh Kumar
Verma, residing at Singh More, P.O. & P.S. - Haria, District -
Ranchi (Jharkhand).
3. Kasif Raza, aged about 33 years, Md. Hakimuddin, resident
of Village - Dahuguttu, P.O. + P.S. & District - Khunti
(Jharkhand). ... ... Petitioners
Versus
1. The State of Jharkhand.
2. Secretary, Personnel, Administrative Reforms & Rajbhasha
Department, Government of Jharkhand, Project Bhawan, P.O. -
Dhurwa, P.S. - Jagarnathpur, District - Ranchi (Jharkhand).
3. Jharkhand Public Service Commission, P.O. - GPO, P.S. -
Lalpur, District - Ranchi (Jharkhand).
4. Secretary, Jharkhand Public Service Commission, P.O. -
GPO, P.S. - Lalpur, District - Ranchi (Jharkhand).
... ... Respondents
With
W.P.(S) No.5666 of 2018
----
Mukesh Kumar, aged about 47 years, son of Shri Parmanand
Singh, resident of Idira Nagar, Shrikant Road, P.O., P.S. &
District Deoghar. ... ... Petitioner
Versus
1. The State of Jharkhand through the Chief Secretary,
Government of Jharkhand, Project Bhawan, P.O. & P.S.
Dhurwa, District Ranchi.
2. The Secretary, Personnel, Administrative Reforms and
Rajbhasha Department, Government of Jharkhand, Project
Bhawan, P.O. & P.S. Dhurwa, District Ranchi.
3. The Jharkhand Public Service Commission through its
Secretary, Jharkhand Public Service Commission, at Circular
Road, Lalpur, P.O. & P.S. Lalpur, District Ranchi, Jharkhand.
... ... Respondents
With
W.P.(S) No.5966 of 2018
----
1. Rajesh Ranjan Dubey, aged about 40 years, son of Late
Triloki Nath Dubey, resident of C/o P.N. Singh, Hurhuru Road,
near New Kali Mandir, P.O. & P.S. + District Hazaribagh.
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2. Ashok Kumar Das, aged about 45 years, son of Shri Ram
Chandra Ram, resident of Singhani, near Reliance Tower, P.O.
Karra, P.S. 3No.TOP, District Hazaribagh.
3. Shashi Kumar Pandey, aged about 42 years, son of Late
Dhapu Pandey, rresident of Vishrambag, P.O. Jhumritalliya,
P.S. Tillaiya, District Koderma.
4. Tapan Kumar Singh, aged about 59 years, son of Late Lalit
Mohan Singh, resident of 4th „B‟, Om Shanti Tower, OCC, Main
Road, Ranchi, P.S. Daily Market, District Ranchi.
5. Ranjit Kumar, aged about 41 years, son of Sri Dhaneshwar
Yadav, resident of Village and P.O. Ghatiyari, P.S.
Sundarpahari, District Godda.
6. Manish Kumar Vishwakarma, aged about 40 years, son of
Late Ishwar Rana Vishwakarma, resident of Mohalla
Garikhana, P.O. Chaibasa, P.S. Sadar, District West
Singhbhum.
7. Parmeshwar Baraik, aged about 40 years, son of Ram Jitan
Baraik, resident of Village and P.O. Bansiya, P.S. Silli,
DistrictRanchi.
8. Susheel Kumar Khalkho, aged about 42 years, son of Ram
Chandra Khalkho, resident of Village Mandal Sai, P.O. & P.S. -
Chakradharpur, District West Singhbhum.
9. Shailendra Kumar Singh, aged about 43 years, son of
Jagnarayan Singh, resident of Chandandih, P.O., P.S. and
District Latehar.
10. Mrityunjay Kumar, aged about 45 years, son of Shri
Jagdish Singh, resident of Meenakshi Apartment, Kaju Bagan,
P.O. and P.S. Hehal, District Ranchi.
... ... Petitioners
Versus
1. The State of Jharkhand through the Chief Secretary,
Government of Jharkhand, Project Bhawan, P.O. & P.S.
Dhurwa, District Ranchi.
2. The Secretary, Personnel, Administrative Reforms and
Rajbhasha Department, Government of Jharkhand, Project
Bhawan, P.O. & P.S. Dhurwa, District Ranchi.
3. The Jharkhand Public Service Commission through its
Secretary, Jharkhand Public Service Commission, at Circular
Road, Lalpur, P.O. & P.S. Lalpur, District Ranchi, Jharkhand.
... ... Respondents
With
W.P.(S) No.6131 of 2018
----
1. Amitabh Kant, Aged about 43 years, Son of Late Uma Kant
Prasad, Resident of Upper Shivpuri, Kanke, P.O.:University,
P.s.:Sukhdeo Nagar, District:Ranchi.
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2. Ajay Kumar, Aged about 42 years, Son of Late Saryu Prasad,
Resident of Dela Toli, Upkar Nagar, Kadru, P.O.: Doranda,
P.S.:Argora, District:Ranchi. ... ... Petitioners
Versus
1. The Jharkhand Public Service Commission through its
Chairman, Circular Road, Lalpur, P.O. & P.S.:Lalpur, District :
Ranchi.
2. The Secretary, Jharkhand Public Service Commission,
Circular Road, Lalpur, P.O. & P.S.:Lalpur, District : Ranchi.
3. The State of Jharkhand through Secretary, Personnel,
Administrative Reforms & Raj Bhasha Department, At : Project
Building, Dhurwa, P.O. & P.S. : Dhurwa, Ranchi, District :
Ranchi. ... ... Respondents
With
W.P.(S) No.6679 of 2018
----
1. Chandra Kumar Pandey, Aged about 42 years, son of late
Indradeo Pandey, Resident of Village Mahuli Khurd, P.O.
Kocheya, P.S. Bishunpura, District-Garhwa.
2. Jayant Kumar, Aged about 42 years, son of Paras Nath Ram,
Resident of Flat No.1A, Block-B, Chatterjee Mansion, Church
Road, P.O. & P.S. Lower Bazar, District-Ranchi.
... ... Petitioners
Versus
1. State of Jharkhand.
2. Principal Secretary, Personnel, Administrative Reforms and
Rajbhasha, Govt. of Jharkhand, having office at Project
Building, P.O. & P.S. - Dhurwa, District - Ranchi.
3. Jharkhand Public Service Commission through its
Chairman, having office at Circular Road, P.O. G.P.O. P.S.
Lalpur, District - Ranchi. ... ... Respondents
With
W.P.(S) No.347 of 2019
----
Nitu Kumari aged about 41 yrs, wife of Sri Ashutosh, resident
of 139/C, Road No. - 4, Mandir Marg, Ashok Nagar, P.O. -
Doranda, P.S. - Argora, District - Ranchi.
... ... Petitioner
Versus
1. The State of Jharkhand.
2. The Secretary, Personnel, Administrative Reforms and
Rajbhasha Department, Govt. of Jharkhand, Project Building,
P.O. & P.S. - Dhurwa, District - Ranchi.
3. Jharkhand Public Service Commission through its
Chairman, Circular Road, P.O. - G.P.O. P.S. - Lalpur, District -
Ranchi. ... ... Respondents
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With
W.P.(S) No.137 of 2020
----
1. Vinay Kumar, aged about 44 years, son of Late Shiv Ram,
resident of Village Devri Kala, P.O. Japla, P.S. Husainabad,
District Palamau.
2. Kumar Gaurav, aged about 44 years, son of Ram Prasad,
resident of Village Tahle, P.O. Chinia, P.s. Chinia, District
Garhwa.
3. Mukesh Kumar, aged about 46 Years, son of Shyam Nandan
Tiwari, permanent resident of Village Tira, P.O. Dhawal Bigha,
P.S. Hulasganj, District Jahanabad, Bihar and presently
residing at Qr. No.B-2, Block Colony, P.O. & P.S. Garhwa,
District Garhwa.
4. Birju Choudhary, aged about 44 years, son of Girwar
Choudhary, resident of Village Bongasi, P.O. Bhikhi, P.S.
Danda, District Garhwa.
5. Pankaj Kumar, aged about 42 years, son of Lokmanya
Prasad, resident of 59 Marwari Mohalla, Chatra, P.O. P.S. and
District - Chatra, presently residing at Rani Bagicha,
Kathitand, P.O. and P.S. - Ratu, Ranchi.
... ... Petitioners
Versus
1. The State of Jharkhand, through the Chief Secretary,
Government of Jharkhand having its Office at Project Building,
Dhurwa, P.O. & P.S. Dhurwa, District Ranchi.
2. The Principal Secretary, Personnel, Administrative Reforms
and Rajbhasha Department, Government of Jharkhand having
its Office at Project Building, Dhurwa, P.O. & P.S. Dhurwa,
District Ranchi.
3. The Deputy Secretary, Personnel, Administrative Reforms
and Rajbhasha Department, having its Office at Project
Building, Dhurwa, P.O. & P.S. Dhurwa, District Ranchi.
4. Jharkhand Public Service Commission through its Secretary,
having office at JPSC Building near Circuit House, Jail Chowk,
P.O. & P.S. Lalpur, District - Ranchi.
... ... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
------
For the Petitioners : Mr. Rupesh Kumar Singh, Advocate
[W.P.(S) Nos. 5966/2018 & 137/2020]
Mr. Rajendra Krishna, Advocate
[W.P.(S) No.6679/2018]
Mr. Vishal Kumar Tiwari, Advocate
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Ms. Sunita Pandey, Advocate
[W.P.(S) No.5259/2018 & 6131/2018]
Mr. Rahul Kumar, Advocate
Ms. Apoorva Singh, Advocate
[W.P.(S) No.5666/2018]
Ms. Swati Shalini, Advocate
[W.P.(S) No.5612/2018]
Mr. Vikash Kumar, Advocate
[W.P.(S) No.790/2019]
Mr. Rajiv N. Prasad, Advocate
[W.P.(S) No.347/2019]
For the State : Mr. Rajiv Ranjan, Advocate General
Mr. P.A.S. Pati, G.A.-II
Mr. Piyush Chitresh, A.C. to A.G.
For the J.P.S.C. : Mr. Sanjoy Piprawall, Advocate
Mr. Prince Kumar, Advocate
Mr. Rakesh Ranjan, Advocate
Mr. A. Allam, Sr. Advocate [W.P.(S) No.347/2019]
Mr. Fahad Allam, Advocate
Md. Faizan, Advocate
--------
C.A.V. on 13.09.2022 Pronounced on 16.12.2022
Per Sujit Narayan Prasad, J.
All these writ petitions have been tagged together since the
provisions of Jharkhand Administrative Service Rules, 2015
(hereinafter to be referred to as the Rules, 2015) has been
challenged by different categories of candidates who have been
deprived from participating in the process of selection for the
post of Deputy Collector through Limited Competitive
Examination and, as such, these writ petitions have been
directed to be heard together and are being disposed of by this
common order.
2. The petitioners have challenged the provision of Rule
17(Ka)(ii) of the Rules, 2015 on different grounds and as such,
the prayer along with the facts and grounds are being referred
herein separately.
W.P.(S) No.790 of 2019, W.P.(S) No.5966 of 2018 & W.P.(S)
No.347 of 2019
3. PRAYER
(1) These writ petitions have been filed challenging part of
Rule 17(Ka)(ii) of Jharkhand Administrative Services Rules,
2015 mainly on two grounds that -
(i) The condition has been stipulated that a candidate
will be allowed to participate in the Limited Competitive
Examination if recruited through competitive examination.
(ii) The another condition as contained under Rule
17(Ka)(ii) of Jharkhand Administrative services Rule 2015,
whereby the Government servants serving on non-gazetted
sub-ordinate post as defined in Rule 30 Appendix 5 of the
Jharkhand Service Code holding the Group-Kha post have
only been made eligible to participate in the process of
selection.
(2) For quashing of clause 19 of the advertisement being
Advertisement No.11/2018 issued for conducting the 6th
Limited Deputy Collector Competitive Examination, which
contains a condition that if the candidates have been appointed
through competitive examination, then only such candidate will
be eligible for consideration of his candidature.
(3) For quashing of clause 22 of the advertisement being
Advertisement No.11/2018 issued for conducting the 6th
Limited Deputy Collector Competitive Examination, wherein it
has been made mandatory for a candidate to disclose at on
which date the candidate has submitted his first joining on the
post as defined as non-gazetted Clerical Cadre in Rule 30 and
Appendix 5 of the Jharkhand service Code as also for quashing
of the entire selection process initiated in pursuance to the
Advertisement No.11/2018.
4. FACTS
The facts of the case as per the pleading made in the
aforesaid writ petitions read as hereunder :-
It is the case of the writ petitioners that they have been
appointed on Class-III post in different departments in the
Government of Jharkhand on compassionate ground.
The State of Bihar, having been bifurcated, the State of
Jharkhand has adopted the Bihar Civil Services (Executive
Branch) and Bihar Junior Civil Services Recruitment Rules,
1951, as amended till 14.11.2000 vide Notification No.6184
dated 09.11.2002 which consequently has been termed as
"Jharkhand Administrative Services (appointment by limited
competitive examination) Rules, 2002" (hereinafter to be
referred to as Rules, 2002).
On 29.11.2004, an amendment was inserted in Rule
5(Ka)(II) of Rules, 2002 by which the work experience in the
Government services was reduced from 10 years to 5 years,
known as "Kalawdhi".
Subsequent thereto, the Personnel, Administrative
Reforms and Rajbhasa Department, Government of Jharkhand
vide notification no. 3747 dated 23.04.2015, has come out with
a rule, in exercise of power conferred under proviso to Article
309 of the Constitution of India, wherein under Chapter 4 rule
has been framed as under Rule 16 and 17 which provides
recruitment through Limited Competitive Examination.
Rule 17 of Rules, 2015 provides eligibility for appointment
and as per Rule 17(Ka)(ii), such Government servant will
participate in the Limited Competitive Examination who has
been appointed through competitive examination and working
in Non-gazetted ministerial cadre (Group Kha) defined in Rule
30 Appendix- 5 of Jharkhand Service Code. For ready
reference, Rule 17 is quoted as hereunder :-
"17- fu;qDr ds fy, ;ksX;rk,¡ %&
¼d½ (i) %& fdlh ekU;rk izkIr fo"ofo|ky; ls U;wure Lukrd
mÙkh.kZ gksx
a As
(ii) lhfer izfr;ksfxrk ijh{kk esa oSls ljdkjh lsod Hkkx ysx
a ]s ftudh fu;qfä
izfr;ksfxrk ijh{kk ds ek/;e ls gqbZ gS rFkk vjktif=r vuqlfpoh; laoxZ ¼xzqi [k½]
tSlk fd >kj[k.M lsok lafgrk ds fu;e 30] ifjf"k'V & 5 esa ifjHkkf'kr gS] esa
dk;Zjr gks ,oa lsok mRd`'V dksfV dh gks rFkk /kkfjr in dk xzsM osru mi lekgrkZ
ds fy, Lohd`r xzsM osru ls de gksA lEcfU/kr dehZ fuyfEcr ugha gks]a muds
fo:) foHkkxh; dk;[email protected]/kd dk;Zokgh lapkfyr ugha gksa rFkk lsokdky esa
dksbZ n.M vf/kjksfir ugha fd;k x;k gSAa
(iii) ftl cSp dh ijh{kk gS mlds fy, fu/kkZfjr vgZrk dh [email protected] frfFk
ml o'kZ dh ¼igyh vxLr½ dks 45 o'kZ ls vf/kd mez dk ugha gksA
¼[k½ fdUrq og lhfer izfr;ksfxrk ijh{kk esa rhu ls vf/kd voljksa esa Hkkx ugha
ys ldsxkA
¼x½ & mi lekgrkZ lhfer
izfr;ksfxrk ijh{kk dk ikB~;Øe fuEuor~ gksxk%&
¼d½ & General Studies Paper-I ¼oLrqfu'B½ & 100 vad
¼i½ History of India and Indian national movement
(ii) India and world Geography
- 10 -
(iii) India Polity and Economy
(iv) History, Geography, Economy and Culture of Jharkhand
([k½ & General Studies Paper-II ¼oLrqfu'B½ & 100 vad
¼i½ General Science
(ii) General mental Ability
(iii) Current Events of State, National and International importance
(x½ & ¼fo'k;fu'B½ &
100 vad
¼1½ >kj[k.M lsok lafgrk ¼6½ >kj[k.M jkT; ljdkjh lsod vkpkj
fu;ekoyh
¼2½ >kj[k.M isa'ku fu;ekoyh ¼7½ >kj[k.M dks'kkxkj lafgrk
¼3½ >kj[k.M lkekU; Hkfo'; fuf/k ¼8½ >kj[k.M foÙkh; fu;ekoyh
fu;ekoyh
¼4½ lfpoky; vuqns'k ;k cksMZ izdh.kZ ¼9½ >kj[k.M vlSfud lsok ¼oxhZdj.k]
fu;ekoyh fu;a=.k ,oa vihy fu;ekoyh
¼5½ >kj[k.M ;k=k HkÙkk fu;ekoyh
]
¼?k½ & lhfer izfr;ksfxrk ijh{kk esa ekSf[kd vUrohZ{kk ugha gksxhA
¼M½ & lhfer izfr;ksfxrk ijh{kk
esa mEehnokjksa dks lQy gksus ds fy, fyf[kr ijh{kk ds iw.kkZad dk U;wure pkyhl
izfr"kr vgZrkad izkIr djuk vfuok;Z gS] ftlesa vuqlwfpr tkfr rFkk vuqlwfpr
tutkfr ds mEehnokjksa ds fy, ikap izfr"kr rd dh NwV nh tk ldsxhA
ijUrq ;g fd U;wure vgZrkad izkIr djus okys lQy mEehnokjksa ls ml o'kZ
dh lEiw.kZ fjfä;ksa dks Hkjs ugha tk ldus dh fLFkfr esa "ks'k fjfä;ksa dks vxys o'kZ
dh fjfä;ksa esa tksM+ fn;k tk;sxkA"
The respondent State of Jharkhand has come out with an
advertisement published by the Jharkhand Public Service
Commission (hereinafter to be referred to as JPSC) on
27.09.2018 being Advertisement No.11/2018 for conducting 6th
Limited Competitive Examination to fill up the post of Deputy
Collector, which is in pursuance to the provisions of Rules,
2015. But the writ petitioners have been deprived from
participating in the process of selection since, by virtue of the
provision of Rule 17(Ka)(ii) which contains a provision that the
mode of induction in the Government service should be through
direct recruitment and not by way of compassionate
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appointment. Since the writ petitioners have been appointed on
compassionate ground and, as such, they became ineligible to
participate in the process of selection, therefore, instant writ
petitions have been preferred.
5. CONTENTION OF THE PETITIONERS
It has been contended on behalf of the writ petitioners that
merely because the writ petitioners have been appointed on
compassionate ground, they cannot be made ineligible for
participating in the process of selection for consideration of
their candidature in view of Rule 17 (Ka)(ii) of the Rules, 2015
which contains a condition that a candidate, if appointed
through direct recruitment, will only be eligible to participate in
the process of selection.
The contention has been made that merely because the
writ petitioners have been appointed on compassionate ground,
there cannot be any discrimination if the writ petitioners are in
Group-Kha posts and making such discrimination on the basis
of mode of recruitment, the same is piece of unreasonable
classification since there cannot be any discrimination on the
basis of mode of appointment.
It has further been contended that once the dependent of
the deceased employee has been appointed on compassionate
ground under the scheme floated by the State Government,
they will be said to be in the cadre in which they have been
appointed and thereafter there cannot any distinction in
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between the appointees appointed on compassionate ground
and the appointees inducted in service through direct
recruitment, reason being that the moment a candidate having
been appointed on compassionate ground, will have similar
status as of the appointees through direct recruitment and
hence, there cannot be any discrimination and, therefore,
depriving the writ petitioners by inserting a clause that a
candidate appointed through direct recruitment will only be
eligible to participate in the Limited Competitive Examination,
cannot be considered to be a reasonable classification, rather it
is unreasonable classification and the same is in the teeth of
Article 14 of the Constitution of India.
The contention has been raised that insertion of a
provision under Clause 17(Ka)(ii) of the Rules, 2015 to the effect
that in-service candidate, if in the Group-Kha, mentioned in
Rule 30 and Appendix-5 of the Jharkhand Service Code, will
only be eligible to participate in the Limited Competitive
Examination, which is also a unreasonable classification by
making distinction on the basis of the grade pay even though
the writ petitioners are in Group-Kha which is also under
Category-III.
It has been contended, on this issue, that the moment the
impugned rule refers about the provision of Rule 30 of the
Jharkhand Service Code, it implies that the said rule, if read
with Appendix-5 of the Jharkhand Service Code, no difference
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has been made in category-III, rather, the implied meaning of
insertion of Rule 30 and Appendix-5 of the Jharkhand Service
Code will be that irrespective of the grade pay and the
candidate, if holding the post as mentioned under Rule 30 of
the Jharkhand Service Code, will be eligible to participate in the
process of selection. But, in the impugned rule, insertion of a
condition to the effect that a candidate will only be allowed to
participate in the process of selection if holding Group-Kha post
having the specific grade pay is also a piece of unreasonable
classification and hence not sustainable in the eyes of law.
Learned counsel for the petitioners has vehemently
submitted that insertion of these two clauses has no nexus
with the object sought to be achieved and, as such, on this
ground also the impugned rule is required to be declared
invalid.
The contention, therefore, has been raised on behalf of the
petitioner that since the rule having been inserted, as has been
impugned, as per the discussion made in the preceding
paragraph, since is in the teeth of Article 14 of the Constitution
of India, basis upon which the advertisement being
Advertisement No.11/2018 has been published, by which the
writ petitioners have been deprived from participating in the
process of selection, needs to be interfered with holding it
unreasonable and arbitrary.
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6. PLEA TAKEN BY THE RESPONDENTS
Counter affidavit has been filed on behalf of Respondent
No.2, the contesting respondent, on 01.05.2019 in W.P.(S)
No.790 of 2019 wherein it has been stated that it is the
employer‟s prerogative to fix the eligibility criteria for
appointment on any post as per its requirement. Therefore, if a
condition has been inserted that only the direct recruit in
Class-III service will be eligible to participate in the process of
selection, it cannot be said to suffer from any irregularity since
the same is matter of policy decision and once the policy
decision has been taken, the same cannot be interfered with by
the High Court sitting under Article 226 of the Constitution of
India in exercise of power of judicial review.
It has also been contended that by virtue of the impugned
rule, the State Government has taken policy decision to allow
only such candidate who is in Group-Kha under category-III,
therefore, if the Government has taken such decision, it cannot
be said to suffer from an error, reason being that the State
being the employer and, as such, it is the prerogative of the
State Government to fix the eligibility criteria depending upon
the best potential which is to be taken from the candidates if
selected through the Limited Competitive Examination to the
post of Deputy Collector.
It has been contended that the Group-Kha employees
working under category-III is having higher experience in
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comparison to that of the employee who is having Group-Ga
post under category-III.
It has been contended by rebutting the argument
advanced on behalf of the writ petitioners that there is no
nexus with the object to be achieved is not worth to be
considered, reason being that the nexus is to achieve the
object, i.e., to induct the more experienced persons having more
experience in the higher cadre. Since, in-service candidate in
the category-III if holding „Group-Kha‟ post is considered to be
more experienced in comparison to that of the candidate
holding the post of „Group-Ga‟ in the category-III. Therefore,
there is reasonable nexus to achieve the object since by doing
so, the more experienced person will be inducted on the post of
Deputy Collector who will be able to discharge its duty more
efficiently due to holding of the higher post with higher
experience.
It has further been contended that so far as the contention
of the petitioners that there is reference in the impugned rule
about Rule 30 with Appendix-5 of the Jharkhand Service Code,
which does imply that there cannot be any discrimination
amongst the candidates depriving one or the other candidate
from participating in the process of selection since, under Rule
30, which defines ministerial cadre, which includes the
employees who are discharging the clerical duties and apart
from that if the Government notifies any employee to be under
- 16 -
ministerial work and as per Appendix-5 which contains a
schedule wherein there is reference of different posts but there
is no reference of pay scale, therefore, the impugned legislation
making discrimination on the ground of grade pay and the
hierarchy of the cadre, is contrary to the Rule 30 of the
Jharkhand Service Code, is concerned, submission has been
made that once the new rule has come into being in the year
2015, knows as Jharkhand Administrative Service Rule, 2015,
which contains a specific provision in this regard wherein
under the classification of posts, different categories of the
posts have been notified with the grade pay and the pay scale
which contains the „Group-Ga‟ and „Group-Kha‟ having
different pay slab with different grade pay. Since the 6 th Limited
Competitive Examination is being conducted on the basis of
Rule, 2015 and as such, whatever classification contained
therein will only to be considered and not the nomenclature of
the post as furnished under Appendix-5 of the Jharkhand
Service Code.
Counter affidavit has also been filed on behalf of
Respondent No.6 on 24.03.2022 in W.P.(S) No.790 of 2019
wherein it has been stated that in pursuance to the requisition
sent by the Personnel, Administrative Reforms and Rajbhasha
Department, Government of Jharkhand vide letter No.10248
dated 05.12.2016, the Jharkhand Public Service Commission
(JPSC) has started the process of selection by publishing
- 17 -
advertisement being Advertisement No.11/2018 by which the
applications have been invited from the eligible candidates for
consideration of their candidature for appointment against the
post of Deputy Collector. The JPSC conducted the examination
for the aforesaid post on 10.10.2020 and 11.10.2020.
W.P.(S) No.5612 of 2018, W.P.(S) No.5666 of 2018 & W.P.(S)
No.137 of 2020
7. PRAYER
(1) These writ petitions have been filed challenging part of
Rule 17(Ka)(ii) of Jharkhand Administrative Services Rules,
2015 -
(i) For declaring Rule 17 of the Jharkhand
Administrative Rule, 2015 as unconstitutional and ultra
vires to the extent it permits only such Government
servants to apply for the Limited Competitive Examination
who belongs to Non-Gazetted Cadre Group-Kha.
(ii) For quashing of advertisement being Advertisement
No.11/2018 wherein the respondents have prescribed the
eligibility criteria restricting only the candidates of Non-
Gazetted Cadre Group-Kha to apply for the post of Deputy
Collector.
8. FACTS
The facts of the case as per the pleading made in the
aforesaid writ petitions read as hereunder :-
The writ petitioners have been appointed through direct
- 18 -
recruitment in different departments of the Government of
Jharkhand.
It is the case of the writ petitioners that at the time of
appointment of petitioners, the applicable Rules permitted all
class-III employees to apply and appear in the Limited
Competitive Examination held by the JPSC for the post of
Deputy Collector. In the earlier examinations also, the
Jharkhand public Service Commission had prescribed the
eligibility criteria permitting all Non-gazetted employees of
class-III to apply for the Limited Competitive Examination.
Later on the Personnel, Administrative Reforms and
Rajbhasa Department, Government of Jharkhand, vide
notification no. 3747 dated 23.04.2015 in terms of proviso to
Article 309 of the Constitution of India came out with the
Jharkhand Administrative Services Rule, 2015 wherein chapter
4, containing Rule 16 and 17, provides recruitment through
Limited Examination.
Rule 17 of Rules, 2015 provides eligibility for appointment
on the post of Deputy Collector through Limited Competitive
Examination and as per Rule 17 only such Government
servants can apply and participate in the Limited Examination
who are holding the non-Gazetted post in the pay scale
prescribed for Group-Kha.
Further, in consonance of Rule 2015, Clause no.6 was
inserted in the Advertisement No. 11/2018 wherein it has been
- 19 -
provided that only such Government servants are eligible to
participate in the selection process of 6th Limited Competitive
Examination who are holding Non-gazetted Group-Kha post.
9. CONTENTION OF THE PETITIONERS
It has been contended on behalf of the petitioners that
State of Bihar had framed regulations namely Bihar
Administrative Service Limited Examination Rules 1991 for
appointment of employees serving on class III post through
Limited Examination on the post of Deputy Collector and the
said Rules were duly adopted in the State of Jharkhand and
Limited Examination has been conducted by JPSC.
It has further been contended that Govt. of Jharkhand
vide resolution no. 5216 dated 27.8.2010 has classified the
posts on the basis of the of Fitment Committee and as per
which employees were working in pay scale of Rs. 9300-34800
shall be Class B employees whereas employees working under
pay scale of Rs. 5200-20200 shall be Class C employee.
Therefore, petitioner having qualification of graduation and
requisite experience of working in class B/C post, are eligible
for appearing in Limited Examination.
It is contended that the Jharkhand Administrative Service
Rules, 2015 changed the prevalent eligibility criteria and only
allowed the non - gazetted ministerial service employee (Group
B) as defined under Appendix-5 of Rule 30 of the Jharkhand
Service Code to be eligible to appear in Limited Examination.
- 20 -
However, it is evident from resolution dated 27.8.2010 that the
Group B and Group C posts are classified on the basis of pay
scale and thus, created a bar and embargo on Group C
employees from appearing in Limited Examination which is in
violation of article 14 and 16 of the Constitution of India as it
creates class within class and since Advertisement No. 11/2018
is in accordance with Rule 2015 which only allows Non-
gazetted ministerial cadre (Group B) employees to participate in
the selection process, thus it is also in violation of Article 14
and 16 of Constitution of India and ultra vires.
It has been contended by some of the petitioner that they have
appointed through competitive examination and belong to
Group B but do not complete his 5 years‟ experience in Group
B cadre though if experience in Group B post and Group C post
is taken into account, they are eligible to appear in the
examination.
10. PLEA TAKEN BY THE RESPONDENTS
Respondents have filed counter affidavit taking the plea
that it is well settled principle of law that it is prerogative of the
employer to fix/ change the criteria/ eligibility condition as per
requirement of the post concerned. Therefore, keeping in mind
the aforesaid facts the provisions for determining the eligibility
criteria have been laid down in Rule 17 of the Jharkhand
Administrative Service Rule 2015.
It has been contended that for the purpose of
- 21 -
appointment, promotion and to regulate other service condition
of the Jharkhand Administrative Service, the Governor of
Jharkhand, in exercise of their powers conferred under Article
309 of the constitution of India, framed a new rule under the
Personnel, Administrative Reforms and Rajbhasa Department,
Government of Jharkhand .i.e. Jharkhand Administrative
Service Rule 2015 and the aforesaid Rule has been notified by
the personnel, Administrative Reforms and Rajbhasa
Department Government of Jharkhand through its notification
issued vide memo no. 3747 dated 23.04.15.
It is further submitted that the eligibility criteria as has
been mentioned by the JPSC is in terms of the requisition of
the State Government and the petitioners are not fulfilling the
requisite criteria as per impugned Rule 17(ka)(ii).
It has been categorically stated that it the employer‟s
prerogative to fix the eligibility criteria for appointment on any
post as per its requirement and clause 17(k)(ii) of the Rule 2015
allows only those candidates who are working on class "B" post
and have been appointed through competitive examination.
It has further been contended that after framing of Rule
2015 the Personnel, Administrative Reforms and Rajbhasa
Department, Government of Jharkhand vide its letter no.
10248(Anu) dated 05.12.2016 sent requisition before JPSC for
starting selection process for appointment of Deputy Collectors
by way of Limited Competitive Examination. Consequently the
- 22 -
JPSC started the selection process and issued Advertisement
No.11/2018 by which application were invited from the eligible
candidates for considering their candidature for appointment
against the post of Deputy Collector through 6th Limited
Competitive Examination and accordingly JPSC conducted the
examination for the aforesaid post on 10.10.2020 and
11.10.2020.
The petitioners are not fulfilling the requisite criteria as
per impugned rule. The JPSC has taken the stand that the
eligibility criteria as has been mentioned in the advertisement is
in terms of the requisition of the State Government and the
17(k) (ii).
W.P.(S) No.5259 of 2018 & W.P.(S) No.6679 of 2018
11. PRAYER
The instant writ petition has been filed for quashing of
Clause 6 of the Advertisement No. 11/2018 issued by the JPSC
on the ground that the teachers, even though are otherwise
eligible for appearing in the Limited Competitive Examination
for appointment to the post of Deputy Collector, has been
rendered ineligible in view of Rule 30 Appendix-5 thereof.
Further direction has been sought for upon the
respondents not to take examination for 6th Limited Competitive
Examination till the final outcome of the instant writ petition as
in the earlier examination the Government teachers were
eligible for taking examination of the Limited Competitive
- 23 -
Examination for the post of Deputy Collector.
12. FACT
The writ petitioners have been appointed as Assistant
Teacher by virtue of examination conducted by the Bihar Public
Service Commission and are working as Teacher in different
schools situated within the territory of the State of Jharkhand.
It is the case of the writ petitioners that the JPSC has
issued three advertisements being Advertisement No. 09/2018,
10/2018 and 11/2018 for appointment against the post of
Deputy Collector through 5th and 6th Limited Competitive
Examination. The Clause 6 of the Advertisement No. 09/2018
and 10/2018 wherein eligibility criteria for selection against the
aforesaid post have been mentioned which are similar in nature
wherein all the Class -III Govt. Employees who working for last
5 years in the Government of Jharkhand are eligible for
aforesaid examination.
But clause 6 of Advertisement No. 11/2018 which deals
with eligibility criteria for appointment to the post of Deputy
Collector has been changed and as per Clause 6 of the
aforesaid advertisement the employees who come under Rule
30 read with appendix 5 of Jharkhand service code are only
eligible for appearing in the aforesaid examination.
The writ petitioners, since have been deprived from the
chance of consideration as they are holding the post of
Assistant Teacher, therefore, they have been discriminated by
- 24 -
being not similarly treated with other ministerial employees,
therefore, the same being unfair and unjust, hence this writ
petition.
13. CONTENTION OF THE PETITIONERS
It has been contended on behalf of the petitioners that the
teachers cannot be discriminated from participating in the
process of selection, through Limited Competitive Examination,
hence Clause 6 of advertisement, which contains a condition
that the employees who come under Rule 30 Appendix-5 of the
Jharkhand Service Code are only eligible for appearing in the
aforesaid examination, cannot be construed to be justified
decision since, a class who are working as teachers, have been
deprived from the chance of consideration.
The further contention has been raised that the writ
petitioners have been transferred on mutual basis from the
existing State of Bihar to the State of Jharkhand by virtue of
different orders but the service rendered by such petitioners
prior to their mutual transfer has not been taken into
consideration, therefore, they became ineligible since they have
not completed five years of service as per the condition
stipulated in the advertisement as under Clause 6(ii) which
provides that the candidate who have rendered continuous
service for five years in the State of Jharkhand as on
01.08.2013 will only be eligible to participate in the process of
selection since the writ petitioners have come on mutual
- 25 -
transfer either in the year 2012 or 2014, therefore, they have
been found to be ineligible for consideration since they have not
completed five years of continuous service as on 01.08.2013.
14. PLEA TAKEN BY THE RESPONDENTS
Counter affidavit has been filed on behalf of the
Respondent No.3 on 12.12.2018 wherein stand inter alia has
been taken that for the purpose of appointment, promotion and
to regulate other service condition of the Jharkhand
Administrative Service, the State of Jharkhand, in exercise of
power conferred under proviso to Article 309 of the
Constitution of India, framed a new rule by the Personnel,
Administrative Reforms and Rajbhasa Department Government
of Jharkhand known as the Jharkhand Administrative Service
Rules, 2015, which has been notified on 23.04.15.
The rule does not provide any provision that teachers will
also be eligible for participation in the process of selection, as
per the provision contained under Rule 17(Ka) (ii) of the Rules,
2015.
It has further been contended that the requisition has
been sent to the JPSC for starting selection process for
appointment of Deputy Collectors by conducting Limited
Competitive Examination based upon the provision of the
Rules, 2015, since the teachers are not included in the
provision of Rule 17(Ka)(ii), therefore, the writ petitioners
- 26 -
cannot be considered to be eligible to participate in the process
of selection and, as such, the relief sought for in the writ
petition is not worth to be considered.
The State, based upon the stand taken in the counter
affidavit, has contended that the writ petition is fit to be
dismissed since the rule unless challenged which contains
eligibility criteria that a candidate who sought to be considered
in the process of selection is required to come under the
purview of Rule 30 read with Appendix-5 of the Jharkhand
Service Code. Since the condition under Clause 6 has been
inserted in the advertisement on the basis of the provision of
rule as under Rule 17(Ka)(ii) of the Rules, 2015, but, in the writ
petition, there is no challenge to the validity of the aforesaid
provision.
It has been contended that it is settled position of law that
any recruitment process is required to be initiated on the basis
of the rule in-vogue. Since the advertisement being
Advertisement No.11/2018 contains a clause containing
therein that the employees who come under the fold of Rule 30
read with Appendix-5 are only eligible for appearing in the
examination since the writ petitioners who are working as
teacher are not coming under the fold of Rule 30 read with
Appendix-5, therefore, they are not at all entitled for
consideration of their candidature.
The State has contended so far as argument advanced on
- 27 -
behalf of the petitioners to the effect that the writ petitioners
have been transferred on mutual basis from the existing State
of Bihar to the State of Jharkhand by virtue of different orders
but the service rendered by such petitioners prior to their
mutual transfer has not been taken into consideration,
therefore, they became ineligible since they have not completed
five years of service as per the condition stipulated in the
advertisement as under Clause 6(ii) which provides that the
candidate who have rendered continuous service for five years
in the State of Jharkhand as on 01.08.2013 will only be eligible
to participate in the process of selection is concerned, such
relief for counting the period which the writ petitioners have
rendered in the existing State of Bihar prior to their mutual
transfer, cannot be considered in the writ petition since, no
such relief has been sought for, as would appear from the
prayer made in the writ petition being W.P.(S) No.5259 of 2018.
W.P.(S) No. 6131 of 2018
15. PRAYER
The instant writ petition has been filed for quashing of
Clause 6 (Kha)(i)(ii) of the advertisement being Advertisement
No. 11/2018 by which the cut-off date, so far as the maximum
age is concerned, has been fixed as on 01.08.2015, which is
required to be shifted to 01.08.2016 so as to make the
petitioners eligible to participate in the process of selection for
consideration of their candidature for appointment of Deputy
- 28 -
Collector through 6th Limited Competitive Examination as also
not to take examination till the pendency of the writ petition.
16. FACT
The writ petitioners have joined as Assistant in Group- B
at Grade Pay of Rs 4600 in the office of Lokayukta on
25.07.2011 and 20.07.2011 respectively.
The advertisement being Advertisement No. 11/2018
contains a clause as under Clause 6 (Kha)(i), which stipulates a
condition fixing a cut-off date as on 01.08.2015 for having
minimum five years of service in the State Government but the
same is not justified, since the cut-off date has been fixed as on
01.08.2016 for counting the minimum as for Joint Civil
Services Competitive Examination, 2016 being notified by virtue
of Advertisement No.23/2016, therefore, the cut-off date as was
fixed in the advertisement No.23/2016 is also required to be
fixed for counting of minimum five years of service as on
01.08.2016 instead of 01.08.2015 as has been fixed in 11/2018
for conducted 6th Limited Competitive Examination.
17. CONTENTION OF THE PETITIONERS
It has been contended on behalf of the petitioners that the
cut-off date for counting the minimum age is 01.08.2016 in the
Advertisement No.23/2016 whereas the cut-off date in
Advertisement No.11/2018 is 01.08.2015 which is not in
consonance with the gazette notification dated 13th May 2015.
It has further been contended that both the Examination
- 29 -
is for 6th JPSC, one is for direct recruitment and another is for
25% posts of total vacancy by way of Limited Examination of
Government employees and, therefore, the minimum cut-off
date for counting the age of the candidates or for counting of
minimum service should be one and the same.
18. PLEA TAKEN BY THE RESPONDENTS
Counter affidavit has been filed, inter alia therein, the plea
has been taken that the advertisement being Advertisement
No.23/2016 contains a condition to recon the minimum age as
on 01.08.2016 as would appear from condition No.4 of the
aforesaid advertisement, therefore, the said date is for counting
the minimum age as on 01.08.2016. But, in the Advertisement
No.11/2018 the subject matter of the examination in question
herein contains the condition of having five years of minimum
service as on 01.08.2015, therefore, the experience of minimum
of five years of service, as is required in the Advertisement
No.11/2018 is having no nexus with the cut-off date which has
been fixed for reckoning the minimum age. Therefore, the
contention with respect to the issue is not worth to be
considered since in both the advertisements the cut-off date is
for different purposes.
19. We have heard learned counsel for the parties and
appreciated their rival submissions.
20. This Court, before considering the rival submission, deems
- 30 -
it fit and proper to refer the background of the issue.
The erstwhile State of Bihar has come out with a rule in
the year 1951 known as Bihar Junior Civil Services
Recruitment Rules, 1951 which provides direct recruitment in
accordance with the rule in civil services.
Later on, the erstwhile State of Bihar has come out with a
specific rule to fill up the post under the State Administrative
Service by incorporating a separate rule in the year 1991,
making therein provision that 75% post of the total vacancy is
to be filled up through direct recruitment on the basis of
provision of Rule, 1951. The 25% of the vacancy is to be filled
up through limited competitive examination. The aforesaid rule
has been carried out by the State of Jharkhand after coming
into effect Bihar Reorganization Act, 2000. However, the
aforesaid rule has been amended in the year 2015 in exercise of
power conferred under the proviso to Article 309 of the
Constitution of India to be known as Jharkhand Administrative
Service Rules, 2015. The said Rule contains under Chapter-2
the Process of Recruitment/Appointment. Chapter pertains to
Direct Recruitment. Chapter-4 provides the Recruitment
through Limited Competitive Examination to fill up 25% of the
basic cadre post of the Jharkhand Administrative Service.
The aforesaid provision provides that in the Limited
Competitive Examination such Government servants will be
allowed to participate who have completed minimum five years
- 31 -
of service and have been confirmed in the cadre.
The provision has been made under Clause 17 prescribing
therein the eligibility for appointment. The provision 17(Ka)(i)
thereof provides for educational qualification by which the
requirement has been made that one or the other candidate is
required to have the minimum educational qualification of
graduation passed from the recognized university.
The provision of 17(Ka)(ii) thereof provides that such
Government servants will be allowed to participate in the
Limited Competitive Examination who have been appointed
through the Competitive Examination and in the Group-Kha
under the Non-gazetted ministerial cadre, as has been defined
under Rule 30, Appendix-5 of the Jharkhand Service Code and
the service should be utmost satisfactory and the grade pay of
the holding post be lesser than the sanctioned grade pay of the
post of Deputy Collector.
The aforesaid provision is being referred herein in Hindi
since, as has been informed to this Court, there is no English
version of the aforesaid provision, the same reads as
hereunder:-
"17- fu;qDr ds fy, ;ksX;rk,¡ %&
¼d½ ... ... ...
(ii) lhfer izfr;ksfxrk ijh{kk esa oSls ljdkjh lsod Hkkx ysx a ]s
ftudh fu;qfä izfr;ksfxrk ijh{kk ds ek/;e ls gqbZ gS rFkk vjktif=r
vuqlfpoh; laoxZ ¼xzqi [k½] tSlk fd >kj[k.M lsok lafgrk ds fu;e
30] ifjf"k'V & 5 esa ifjHkkf'kr gS] esa dk;Zjr gks ,oa lsok mRd`'V dksfV
dh gks rFkk /kkfjr in dk xzsM osru mi lekgrkZ ds fy, Lohd`r xzsM
osru ls de gksA lEcfU/kr dehZ fuyfEcr ugha gks]a muds fo:)
foHkkxh; dk;[email protected]/kd dk;Zokgh lapkfyr ugha gksa rFkk lsokdky
- 32 -
esa dksbZ n.M vf/kjksfir ugha fd;k x;k gSAa"
The Chapter-5 provides the classification of service, which
reads as hereunder :-
Ø0 inuke ,oa osrueku
(i) fo"ks'k lfpo Lrj ¼osrueku&37400&[email protected]:0xzsM is& 8900 :0½
oxZ&d
vij lfpo Lrj ¼osrueku&37400&[email protected]:0 xzsM is& 8700 :0½
(ii)
la;qDr lfpo ¼osrueku&37400&[email protected]:0 xzsM is& 8700 :0½
(iii)
vij lekgrkZ ,oa led{k Lrj ¼osrueku&15600&[email protected]:0 xzsM
(iv) is& 7600 :0½
vuqe.My inkf/kdkjh ,oa led{k Lrj ¼osrueku&15600&[email protected]& :0 xzsM
is&6600:0½
(v)
ewy dksfV ds [email protected] lekgrkZ ;Fkk iz[k.M fodkl inkf/kdkjh] vapy
vf/kdkjh ,oa dk;Zikyd n.Mkf/kdkjh rFkk vU; oxZ&[k
(vi)
¼osrueku PB-II 9300&[email protected]& xzsM is&5400 :0½
The Personnel, Administrative Reforms and Rajbhasha
Department of the State of Jharkhand has come out with the
classification of the Government service/post vide Circular
No.5216 dated 27.08.2010 on the basis of the recommendation
of the Fitment Committee which has been constituted in
pursuance to the recommendation of the 6th Pay Revision
Committee. The posts have been classified in four categories,
i.e., Group-ka, Group-kha, Group-ga and Group-Gha with the
description of the post along with pay scale and pay band. For
ready reference, the same is being reproduced hereinbelow :-
>kj[k.M lfoZl eSuqvy v/;k; &III
¼ii½ >kj[k.M ljdkj] dkfeZd] iz"kklfud lq/kkj rFkk jktHkk'kk foHkkx ladYi la[;k&5216 fnukad
27]08]2010 ds }kjk jkT; ds ljdkjh [email protected] dk oxhZdj.k fd;k x;k gS ] ftldh izfrfyfi
uhps nh tk jgh gS ] tks Lor% Li'V gSA
fo'k; %& jkT; ds ljdkjh [email protected] dk oxhZdj.k A
- 33 -
fQVesaV dfefV dh vuq"kalk ds ifjizs{; esa jkT;feZ;ksa ds NBs osru iqujh{k.k ls lacaf/kr
foÙk foHkkx }kjk fuxZr ladYi la[;k&660] fnukad 28]02]2009 ds vkyksd esa dsUnz ds vuq:Ik jkT;
ds ljdkjh [email protected] dks fuEukafdr :i ls oxhd`r fd;k tkrk gS %&
Ø0 Iknksa dk fooj.k Iknksa dk oxhZdj.k
1 fuEufyf[kr xzsM osruksa okyk in & Lkewg ^d*
37]400&67][email protected]&# osrueku esa
osru cSaM&IV esa 10][email protected]�]
8][email protected]� ,oa 8][email protected]� rFkk
15]600&39][email protected]� esa osru cSaM&III esa
7][email protected]& #0 6][email protected]& #0 ,oa 5][email protected]�
2 fuEufyf[kr xzsM osruksa okyk in & Lkewg ^[k*
9]300&34][email protected]� ds osrueku esa osru
cSaM&II esa 5][email protected]� ] 4][email protected]� ,oa
4][email protected]� ,oa 4]200�
3 fuEufyf[kr xzsM osruksa okyk in & Lkewg ^x*
5]200]&20][email protected]&# osrueku esa osru cSaM& I
esa 2][email protected]�] 2][email protected]� ,oa
2][email protected]� ]a 1][email protected]& #0 ,oa
1][email protected]�
4 fuEufyf[kr xzsM osruksa okyk in & Lkewg ^?k*
4]440]&7][email protected]&# osrueku esa ,l0 osru
cSaM esa 1][email protected]� ] 1][email protected]� ,oa
1][email protected]� ]a ,oa 1][email protected]�
2] vf[ky Hkkjrh; lsokvksa ds lHkh in lewg ^d* ds le>s tk;saxsA
3] ;fn fdlh [email protected] dh fu;ekoyh esa oxhZdj.k laca/kh dksbZ izko/kku u gks rks
iz"kklh foHkkx mls rnuqdqy la"kksf/kr dj ysxkA
4] ;g rRdky izHkko ls ykxw gksxkA
vkns"k %& vkns"k fn;k tkrk gS fd bl ladYi dks >kj[kaM jkti= ds vlk/kkj.k vad esa
loZ lk/kkj.k dh tkudkjh ds fy, izdkf"kr fd;k tk, vkSj bldh izfr;ka lHkh [email protected]
foHkkxk/;{[email protected] izeMa yh; vk;[email protected] mik;qDr dks lwpukFkZ Hksth tk;A
>kj[k.M jkT;iky ds vkns"k ls
[email protected]&27-08-2010
¼vkfnR; Lo:i½
Lkjdkj iz/kku lfpo
It is evident that the posts have been classified in four
groups, of the category-III with the different pay scale and the
grade pay. It appears from the description of the post along
with pay scale as furnished in the tabular chart hereinabove,
that the pay scale of Group-kha is on different slab with
different pay band. The pay scale of the Group-kha is under
Pay Band-II having the Grade Pay of Rs.5400 - 4800 - 4600 -
4200/-, while the post of Group-ga, i.e., Band-I is having
- 34 -
different pay band, i.e., Rs.2800 - 2400 - 2000 - 1900 - 1800/-
All the posts of All India Services have been grouped in the
post of Group-ka. It further appears that by virtue of the
aforesaid circular, all the earlier rules for classification of any
service/cadre is required to be amended. The said circular has
been notified by the order of the Governor of the State having
been published in the Jharkhand gazette.
The State has made requisition to JPSC to fill up the post
of Deputy Collector, falls under the category of Jharkhand
Administrative Service, by publishing advertisement being
Advertisement No.11/2018, strictly in pursuance to the
provision of Rules, 2015. The aforesaid advertisement contains
the condition that a candidate is required to have five years
continuous service in the State of Jharkhand as on 01.08.2013
in the Group-kha category.
21. The writ petitioners of the different categories, as per the
fact narrated hereinabove, have found themselves not eligible
so far as on the basis of the condition stipulated under
17(Ka)(ii) wherein insertion has been made that a candidate
under Group-kha will only be eligible to participate in the
process of selection. However, the description of ministerial
cadre as provided under Rule 30 read with Appendix-5, who
have been appointed through direct recruitment, has also been
inserted.
The petitioners who are under Group-ga, appointed on
- 35 -
compassionate ground, have challenged the impugned
provision by which they have been debarred from participating
in the process of selection. However, some of the candidates,
who are holding the post of Assistant Teacher, have been
deprived from participating in the selection process since the
Teacher has not been referred under Clause 17(Ka)(ii) of the
Rules, 2015.
The writ petitioners, in consequence of the insertion of the
aforesaid provision under Rule 17(Ka)(ii) by which they have
been deprived from participating in the process of selection, so
far as the candidates who are working in the Group-ga in the
category-III and appointees on compassionate ground and the
candidates who are working as Teacher, have challenged the
validity of the provision of Rule 17(Ka)(ii) by which they have
been debarred from participating in the process of selection on
the following grounds :-
(i) Some of the petitioners are under Group-ga, therefore,
they are being deprived as there is reference in the provision of
Rule 17(Ka)(ii) that only the Group-kha employees working
under category-III will be eligible to participate in the process of
selection.
(ii) The Rule 17(Ka)(ii) contains a provision that only the
direct recruit in Group-kha will be eligible to participate in the
process of selection.
(iii) The teachers have not been included under the aforesaid
- 36 -
provision and, as such, they have also been deprived from
participating in the process of selection.
22. The writ petitioners, after having challenged the validity of
the aforesaid provision, have also questioned the clause about
cut-off date wherein the cut-off date for counting the maximum
age has been fixed as on 01.08.2016 while the said cut-off date
has been fixed for the Combined Competitive Examination in
terms of the Advertisement No.23/2016 to be 01.08.2015, so
far as it relates to writ petition being W.P.(S) No.6131 of 2018.
The grounds have been raised that such classification as
has been made in the provision of Rule 17(Ka)(ii) is in the teeth
of Article 14 of the Constitution of India since the same seems
to be unreasonable classification and, as such, the same is fit
to be held invalid and thereby the writ petitioners may be
allowed to participate in the process of selection.
23. The State has argued that such condition has been
inserted in the impugned provision by way of policy decision of
the State Government and since the State being the employer,
is having prerogative to fix the eligibility criteria by making rule
in order to select more meritorious candidates having more
experience and hence the same cannot be allowed to be
questioned by the petitioners according to their suitability.
24. This Court, after considering the aforesaid
grounds/submissions, is required to consider and answer the
following issues :-
- 37 -
(i) Whether the provision of Section 17(Ka)(ii) of Rules, 2015
is in the teeth of Article 14 of the Constitution of India being an
unreasonable classification?
(ii) Whether there can be any discrimination on the ground of
mode of appointment by making discrimination amongst the
candidates who have been appointed and inducted in service on
compassionate ground and such candidates who have been
appointed through direct recruitment?
(iii) Whether the teachers can be allowed to participate in the
process of selection for appointment to the post of Deputy
Collector?
25. All the three issues, the ground has been taken of
unreasonable classification and, as such, the same hit Article
14 of the Constitution of India, therefore, this Court, in order to
consider as to whether the decision of the State Government
will fall under unreasonable classification or not, deems it fit
and proper to refer about the principle laid down under Article
14 of the Constitution of India as to in which circumstances the
classification will be said to be reasonable and unreasonable.
26. The Hon‟ble Apex Court while dealing with the concept of
Article 14 of the Constitution of India in the case of Chiranjit
Lal Chowdhuri v. Union of India & Ors. [AIR 1951 SC 41]
has held that the law will be constitutional even though it
relates to a particular individual differently under specific
circumstances and in order to challenge the constitutionality of
- 38 -
law one has to show that the law is unreasonable and arbitrary
in its application in that particular case.
The issue of reasonable classification also fell for
consideration before the Hon‟ble Apex Court in the case of
State of West Bengal v. Anwar Ali Sarkar [AIR 1952 SC 75]
wherein it has been held that differentia between the basis of
classification and the object of the Act are two different things.
It is important that there must be nexus between the basis of
classification with the object of the Act.
In Shri Ram Krishna Dalmia & Ors v. Shri Justice
S.R. Tendolkar & Ors. [AIR 1958 SC 538], the Hon‟ble Apex
Court, taking into consideration catena of judgments rendered
by the Hon‟ble Apex Court, has held that Article 14 forbids
class legislation, it does not forbid reasonable classification for
the purposes of legislation. In order, however, to pass the test of
permissible classification two conditions must be fulfilled,
namely, (i) that the classification must be founded on an
intelligible differentia which distinguishes persons or things
that are grouped together from others left out of the group, and
(ii) that differentia must have a rational relation to the object
sought to be achieved by the statute in question. The
classification may be founded on different bases, namely,
geographical, or according to objects or occupations or the like.
What is necessary is that there must be a nexus between the
basis of classification and the object of the Act under
- 39 -
consideration. It is also well established by the decisions of this
Court that Article 14 condemns discrimination not only by a
substantive law but also by a law of procedure.
Relevant passage of paragraph 11 of the said judgment is
quoted as under:
"11. ...(a).That a law may be constitutional even
though it relates to a single individual if, on account of
some special circumstances or reasons applicable to him
and not applicable to others, that single individual may
be treated as a class by himself;
(b).That there is always a presumption in favour of the
constitutionality of an enactment and the burden is upon
him who attacks it to show that there has been a clear
transgression of the constitutional principles;
(c).That it must be presumed that the legislature
understands and correctly appreciates the need of its
own people, that its laws are directed to problems made
manifest by experience and that its discriminations are
based on adequate grounds;
(d).That the legislature is free to recognise degrees of
harm and may confine its restrictions to those cases
where the need is deemed to be the clearest;
(e).That in order to sustain the presumption of
constitutionality the court may take into consideration
matters of common knowledge, matters of common report,
the history of the times and may assume every state of
facts which can be conceived existing at the time of
legislation; and
(f).That while good faith and knowledge of the existing
conditions on the part of a legislature are to be presumed,
if there is nothing on the face of the law or the
surrounding circumstances brought to the notice of the
court on which the classification may reasonably be
regarded as based, the presumption of constitutionality
cannot be carried to the extent of always holding that
there must be some undisclosed and un-known reasons
- 40 -
for subjecting certain individuals or corporations to hostile
or discriminating legislation...."
The aforesaid principle can further be found from The
Special Courts Bill, 1978, which contains that:
(1).The basic principle of Article 14 is that the persons in
similar circumstances shall be treated similarly both in
privileges conferred and liability imposed.
(2).The State shall have the power to determine with
regard to the process of classification, which should be
regarded as a class for the purpose of legislation and in relation
to a law enacted on a particular subject.
(3).The classification does not mean arbitrary application
of law to certain person instead it means segregation in classes
which had a systematic relation, usually found common
property and characteristics.
(4).The law can make and set apart the classes according
to the needs and exigencies of the society and suggested by
experience. It can even recognize „degrees of evil‟ but the
classification should never be arbitrary, or artificial.
A mere assumption that the authority which has been
conferred with the discretion by law, would act arbitrarily in
exercising such law, would not be determinative of the
constitutionality of law.
Discretionary power does not necessarily mean
discriminatory power. Inequality in the application of law may
- 41 -
not question the constitutionality of such law.
A practical evaluation of operation of law in particular
circumstances is necessary. A rule of procedure laid down by
law derived as much within the purview of Article 14 as in the
rule of substantive law.
In R.K. Garg v. Union of India & Ors [(1981) 4 SCC
675], the Hon‟ble Apex Court has held that Article 14 forbids
class legislation but does not forbid reasonable classification.
In V. Markandeya & Ors. v. State of Andhra Pradesh
& Ors [(1989) 3 SCC 191], the Hon‟ble Apex Court has held
that in view of the discussion, we are of the opinion that where
two classes of employees perform identical or similar duties and
carrying out the same functions with the same measure of
responsibility having same academic qualifications, they would
be entitled to equal pay. If the State denies them equality in
pay, its action would be violative of Articles 14 and 16 of the
Constitution and the court will strike down the discrimination
and grant relief to the aggrieved employees. But before such
relief is granted the court must consider and analyse the
rationale behind the State action in prescribing two different
scales of pay. If on an analysis of the relevant rules, orders,
nature of duties, functions, measure of responsibility, and
educational qualifications required for the relevant posts, the
court finds that the classification made by the State in giving
different treatment to the two classes of employees is founded
- 42 -
on rational basis having nexus with the objects sought to be
achieved, the classification must be upheld. Principle of equal
pay for equal work is applicable among equals, it cannot be
applied to unequals. Relief to an aggrieved person seeking to
enforce the principles of equal pay for equal work can be
granted only after it is demonstrated before the court that
invidious discrimination is practised by the State in prescribing
two different scales for the two classes of employees without
there being any reasonable classification for the same. If the
aggrieved employees fail to demonstrate discrimination, the
principle of „equal pay for equal work‟ cannot be enforced by
court in abstract. The question what scale should be provided
to a particular class of service must be left to the executive and
only when discrimination is practised amongst the equals, the
court should intervene to undo the wrong, and to ensure
equality among the similarly placed employees.
It is, thus, evident that Article 14 prohibits discriminatory
legislation against an individual or against a class of individual
but it does prohibit reasonable classification.
Reference in this regard be made to the judgment
rendered by Hon‟ble Apex Court in D.S. Nakara & Ors v.
Union of India [(1983) 1 SCC 305], wherein at paragraph 11,
it has been held as under:
"11. The decisions clearly lay down that though Article
14 forbids class legislation, it does not forbid
reasonable classification for the purpose of legislation.
- 43 -
In order, however, to pass the test of permissible
classification, two conditions must be fulfilled viz. (i)
that the classification must be founded on an
intelligible differentia which distinguishes persons or
things that are grouped together from those that are
left out of the group; and (ii) that that differentia must
have a rational relation to the objects sought to be
achieved by the statute in question (see Ram Krishna
Dalmia v. Justice S.R. Tendolkar [AIR 1958 SC 538]).
The classification may be founded on differential basis
according to objects sought to be achieved but what is
implicit in it is that there ought to be a nexus i.e.
causal connection between the basis of classification
and object of the statute under consideration. It is
equally well settled by the decisions of this Court that
Article 14 condemns discrimination not only by a
substantive law but also by a law of procedure."
In the case of State of West Bengal v. Anwar Ali Sarkar
(supra) the Hon‟ble Apex Court has held that to pass the test,
two conditions must be fulfilled, namely, (1) that the
classification must be founded on an intelligible differentia
which distinguishes those that are grouped together from
others; and (2) that differentia must have a rational relation to
the object sought to be achieved by the Act. Thus, the
differentia which is the basis of the classification and the object
of the Act are distinct things and what is necessary is that
there must be a nexus between them. The test must be
reasonable and not the arbitrary and irrational.
27. It is, thus, evident from the judgments rendered by
Hon‟ble Apex Court referred hereinabove that Article 14
- 44 -
granting the fundamental right to equality to every citizen in
the country which provides equality to all the people
irrespective of religion, race, caste, sex, descent, place or birth,
residence or any of them.
28. There are two aspects under Article 14 i.e., „equality
before the law‟ and „equal protection of the laws‟ and to test the
constitutionality in order to know the reasonable classification
under which it was tested whether there was a reasonable
classification in the legislation. There is no absolute bar in
making classification but classification must be based upon the
rationality; meaning thereby there must be classification based
upon the intelligible differentia.
29. This Court, on the basis of principle laid down by Hon‟ble
Apex Court to adjudge the discrimination to be hit by Article 14
of the Constitution of India only in a case where classification is
unreasonable, is now proceeding to determine the
abovementioned issues in the instant case.
It cannot be denied that the object of recruitment to any
service or post is to appoint most suitable person who answers
the demands of the requirement of the job. In the case of public
employment it is necessary to eliminate arbitrariness and
favouritism and introduce the uniformity of standards, as has
been held by Hon‟ble Apex Court in the judgment rendered in
Union of India v. N. Hargopal & Ors [(1987) 3 SCC 308]
wherein dealing with principle to be followed in the matter of
- 45 -
filling up of the public posts, it has been held that the main
object of recruitment is to choose the suitable person so that
the condition of merit be allowed to be prevailed for the better
functioning of the public administration.
"9. The further question is whether the instructions
issued by the government that in the case of
government departments the field of choice should, in
the first instance, be restricted to candidates
sponsored by the Employment Exchanges offend
Articles 14 and 16 of the Constitution. Shri P.
Parmeshwara Rao, learned Counsel appearing for
some of the respondents strenuously urged that such
a restriction would offend the equality clauses of the
Constitution, namely, Articles 14 and 16. He urged
that when Parliament had gone into the question and
decided that there should be no compulsion in the
matter of appointment by way of restriction of the field
of choice, it was not open to the Government to impose
such compulsion. He argued that it would be
unreasonable to restrict the field of choice to those
sponsored by the Employment Exchanges. In a
country so vast as India, in a country where there was
so much poverty, illiteracy and ignorance, it was not
right that employment opportunities should
necessarily be channelled through the Employment
Exchanges when it is not shown that the network of
Employment Exchanges is so wide, that it reaches all
the corners of this vast country. He argued that it is
futile to expect that persons living in distant places
could get themselves registered with Employment
Exchanges situated far away. The submission of Shri
Parmeshwara Rao is indeed appealing and attractive.
Nonetheless, we are afraid we cannot uphold it. The
object of recruitment to any service or post is to secure
the most suitable person who answers the demands of
the requirements of the job. In the case of public
- 46 -
employment, it is necessary to eliminate arbitrariness
and favouritism and introduce uniformity of standards
and orderliness in the matter of employment. There
has to be an element of procedural fairness in
recruitment. If a public employer chooses to receive
applications for employment where and when he
pleases, and chooses to make appointments as he
likes, a grave element of arbitrariness is certainly
introduced. This must necessarily be avoided if Articles
14 and 16 have to be given any meaning. We,
therefore, consider that insistence on recruitment
through Employment Exchanges advances rather than
restricts the rights guaranteed by Articles 14 and 16 of
the Constitution. The submission that Employment
Exchanges do not reach everywhere applies equally to
whatever method of advertising vacancies is adopted.
Advertisement in the daily press, for example, is also
equally ineffective as it does not reach everyone
desiring employment. In the absence of a better
method of recruitment, we think that any restriction
that employment in government departments should
be through the medium of employment exchanges does
not offend Articles 14 and 16 of the Constitution. With
this modification of the judgment of the High Court,
the appeals and the special leave petitions are
disposed of. No orders are necessary in the writ
petition."
30. Article 14 provides that there must be a reasonable
classification but there cannot be an unreasonable
classification.
This Court requires to refer herein the judgment rendered
by the Hon‟ble Apex Court in Kailash Chand Sharma v. State
of Rajasthan & Ors. [(2002) 6 SCC 562], while dealing with
the situation as to whether awarding bonus marks for the
- 47 -
residents of districts and rural areas within the district is
constitutionally valid, when tested on the touchstone of Article
16 read with Article 14 of the Constitution of India in the
matters of employment, has been pleased to hold that the said
condition of awarding bonus marks amounts to impermissible
discrimination.
For ready reference, relevant paragraphs of the judgment
as under paragraph nos. 13, 14, 28, 31 and 33 are quoted
hereunder as:
"13. Before proceeding further we should steer clear of
a misconception that surfaced in the course of
arguments advanced on behalf of the State and some of
the parties. Based on the decisions which countenanced
geographical classification for certain weighty reasons
such as socio-economic backwardness of the area for
the purpose of admissions to professional colleges, it
has been suggested that residence within a
district or rural areas of that district could be a
valid basis for classification for the purpose of
public employment as well. We have no doubt that
such a sweeping argument which has the
overtones of parochialism is liable to be rejected
on the plain terms of Article 16(2) and in the light
of Article 16(3). An argument of this nature flies in
the face of the peremptory language of Article
16(2) and runs counter to our constitutional ethos
founded on unity and integrity of the nation.
Attempts to prefer candidates of a local area in
the State were nipped in the bud by this Court
since long past. We would like to reiterate that
residence by itself -- be it within a State, region,
district or lesser area within a district cannot be a
ground to accord preferential treatment or
- 48 -
reservation, save as provided in Article 16(3). It is
not possible to compartmentalize the State into
districts with a view to offer employment to the
residents of that district on a preferential basis.
At this juncture it is appropriate to undertake a
brief analysis of Article 16.
14. Article 16 which under clause (1) guarantees
equality of opportunity for all citizens in matters relating
to employment or appointment to any office under the
State reinforces that guarantee by prohibiting under
clause (2) discrimination on the grounds only of religion,
race, caste, sex, descent, place of birth, residence or any
of them. Be it noted that in the allied article -- Article 15
-- the word "residence" is omitted from the opening
clause prohibiting discrimination on specified grounds.
Clauses (3) and (4) of Article 16 dilute the rigour of
clause (2) by (i) conferring an enabling power on
Parliament to make a law prescribing the residential
requirement within the State in regard to a class or
classes of employment or appointment to an office under
the State, and (ii) by enabling the State to make a
provision for the reservation of appointments or posts in
favour of any backward class of citizens which is not
adequately represented in the services under the State.
The newly introduced clauses (4-A) and (4-B), apart
from clause (5) of Article 16 are the other provisions by
which the embargo laid down in Article 16(2) in
somewhat absolute terms is lifted to meet certain
specific situations with a view to promote the overall
objective underlying the article. Here, we should make
note of two things : firstly, discrimination only on the
ground of residence (or place of birth) insofar as
public employment is concerned, is prohibited;
secondly, Parliament is empowered to make the
law prescribing residential requirement within a
State or Union Territory, as the case may be, in
relation to a class or classes of employment. That
means, in the absence of parliamentary law, even
- 49 -
the prescription of requirement as to residence
within the State is a taboo. Coming to the first
aspect, it must be noticed that the prohibitory
mandate under Article 16(2) is not attracted if the
alleged discrimination is on grounds not merely
related to residence, but the factum of residence is
only taken into account in addition to other
relevant factors. This, in effect, is the import of
the expression "only".
28. The justifiability of the plea stemming from the
premise that uplifting the rural people is an affirmative
action to improve their lot can be tested from the
concrete situation which confronts us in the present
cases. We are here concerned with the selections to the
posts of teachers of primary schools, the minimum
qualification being SSC coupled with basic training
course in teaching. Can the Court proceed on the
assumption that the candidates residing in the town
areas with their education in the schools or colleges
located in the towns or its peripheral areas stand on a
higher pedestal than the candidates who had studied in
the rural area schools or colleges? Is the latter
comparatively a disadvantaged and economically
weaker segment when compared to the former? We do
not think so. The aspirants for the teachers' jobs in
primary schools -- be they from rural area or town area
-- do not generally belong to the affluent class.
Apparently they come from the lower middle class or
poor background. By and large, in the pursuit of
education, they suffer and share the same handicaps as
their fellow citizens in rural areas. It cannot be said that
the applicants from non-rural areas have access to the
best of schools and colleges which the well-to-do class
may have. Further, without any data, it is not possible
to presume that the schools and colleges located in the
towns -- small or big -- and their peripheral areas are
much better qualitatively, that is to say, from the point
of view of teaching standards or infrastructure facilities
- 50 -
so as to give an edge to the town candidates over the
rural candidates.
31. The two grounds pleaded in justification of
preferential treatment accorded to rural area candidates
found favour with the Division Bench of the High Court
in Baljeet Kaur case [1992 Raj WLR 83] and Arvind
Kumar Gochar case (decided on 6-4-1994). Shri Rajeev
Dhavan appearing for the selected candidates who have
filed SLP (C) No. 10780 of 2001, did his best to support
the impugned circular mainly on the second ground,
namely, better familiarity with the local dialect. The
learned counsel contends that when the teachers are
being recruited to serve in Gram Panchayat area falling
within the Panchayat Samiti concerned, those hailing
from the particular district and the rural areas of that
district are better suited to teach the students within
that district and the Panchayat areas comprised therein.
He submits that the local candidates can get themselves
better assimilated into the local environment and will be
in a better position to interact with the students of
primary level. Stress is laid on the fact that though the
language/mother tongue is the same, the dialect varies
from district to district and even within the district. By
facilitating selection of local candidates to serve the
Panchayat-run schools, the State has not introduced
any discrimination on the ground of residence but acted
in furtherance of the goal to impart education. Such
candidates will be more effective as primary school
teachers and more suitable for the job. It is therefore
contended that the classification is grounded on
considerations having nexus with the object sought to be
achieved and is not merely related to residence. We find
it difficult to accept this contention, though plausible it
is. We feel that undue accent is being laid on the dialect
theory without factual foundation. The assertion that
dialect and nuances of the spoken language vary
from district to district is not based upon
empirical study or survey conducted by the State.
- 51 -
Not even specific particulars are given in this regard.
The stand in the counter-affidavit (extracted supra) is
that "each zone has its distinct language". If that is
correct, the Zila Parishad should have mentioned in the
notification that the candidates should know a
particular language to become eligible for consideration.
We are inclined to think that reference has been made in
the counter to "language" instead of "dialect" rather
inadvertently. As seen from the previous sentence, the
words dialect and language are used as
interchangeable expressions, without perhaps
understanding the distinction between the two. We
therefore take it that what is meant to be conveyed in
the counter is that each zone has a distinct dialect or
vernacular and therefore local candidates of the district
would be in a better position to teach and interact with
the students. In such a case, the State Government
should have identified the zones in which
vernacular dissimilarities exist and the speech
and dialect vary. That could only be done on the
basis of scientific study and collection of relevant
data. It is nobody's case that such an exercise was
done. In any case, if these differences exist
zonewise or regionwise, there could possibly be no
justification for giving weightage to the
candidates on the basis of residence in a district.
The candidates belonging to that zone, irrespective of
the fact whether they belong to X, Y or Z district of the
zone could very well be familiar with the allegedly
different dialect peculiar to that zone. The argument
further breaks down, if tested from the standpoint
of award of bonus marks to the rural candidates.
Can it be said reasonably that candidates who have
settled down in the towns will not be familiar with the
dialect of that district? Can we reasonably proceed on
the assumption that rural area candidates are more
familiar with the dialect of the district rather than the
town area candidates of the same district? The answer
- 52 -
to both the questions in our view cannot but be in the
negative. To prefer the educated people residing in
villages over those residing in towns -- big or
small -- of the same district, on the mere
supposition that the former (rural candidates) will
be able to teach the rural students better would
only amount to creating an artificial distinction
having no legitimate connection to the object
sought to be achieved. It would then be a case of
discrimination based primarily on residence
which is proscribed by Article 16(2).
33. The above discussion leads us to the
conclusion that the award of bonus marks to the
residents of the district and the residents of the
rural areas of the district amounts to
impermissible discrimination. There is no rational
basis for such preferential treatment on the material
available before us. The ostensible reasons put forward
to distinguish the citizens residing in the State are either
non-existent or irrelevant and they have no nexus with
the object sought to be achieved, namely, spread of
education at primary level. The offending part of the
circular has the effect of diluting merit, without in any
way promoting the objective. The impugned circular
dated 10-6-1998 insofar as the award of bonus marks
is concerned, has been rightly declared to be illegal and
unconstitutional by the High Court."
[Emphasis supplied]
The Hon‟ble Apex Court in the judgment rendered in State
of Maharashtra v. Raj Kumar [(1982) 3 SCC 313] while
testing as to whether rule framed by the government and
followed by the Public Service Commission for selecting officers
laying additional conditions that rural candidates who passed
S.S.C. examination from village or „C‟ type Municipal towns to
- 53 -
be awarded a weightage of 10 per cent marks in each subject by
Public Service Commission is legally permissible or not, has
been pleased to hold that such condition is violative of Article
14 and 16.
For ready reference, paragraph 2 of the judgment is
quoted hereunder as:
"2. We have gone through the Rules framed by the
government and adopted by the Public Service
Commission and we find that the Rules framed suffer
from clear and serious constitutional infirmities as a
result of which the impugned Rules have been rightly
struck down by the High Court. In the first place the
object of the rule was to take officers who had full
knowledge of rural life, its problems, aptitudes, working
of the people in villages and the suitability for working
as officers in the rural areas so as to be materially
useful and in order to make a constructive contribution
to the upliftment of rural life. In order to achieve this
purpose a rule was made that a candidate coming from
the rural areas will be a rural candidate and he must
have passed SSC examination which is held from a
village or a town having only a „C‟ type Municipality.
This rule, however, when translated into action does not
seem to fulfil or carry out the object sought to be
achieved because as the rule stands any person who
may not have lived in a village at all can appear for SSC
examination from a village and yet become eligible for
selection in the competitive examination. Thus there is
no nexus between the classification made (assuming for
the purpose of this case that such a classification is
unreasonable) and the object which is sought to be
achieved as a result of which the rule is clearly violative
of Articles 14 and 16 of the Constitution of India.
Another infirmity from which the Rules suffer is that any
person who has passed the SSC examination and is
- 54 -
supposed to be a rural candidate has to be given
particular weightage by the Public Service Commission
who has to award 10 per cent marks in each subject for
such a candidate. The Rules also provide that Viva Voce
Board would put relevant questions to judge the
suitability of candidate for working in rural areas and to
test whether or not they have sufficient knowledge of
rural problems, and this no doubt amounts to a
sufficient safeguard to ascertain the ability of the
candidate regarding his knowledge about the affairs of
the village. In such a situation there was absolutely no
occasion for making an express provision for giving
weightage which would virtually convert merit into
demerit and demerit into merit and would be per se
violative of Article 14 of the Constitution as being an
impermissible classification. The rule of weightage as
applied in this case is manifestly unreasonable and
wholly arbitrary and cannot be sustained. The High
Court has fully elaborated these points and has aptly
observed thus:
On the contrary, it places a rural candidate in an
advantageous position by a sheer accident of his
passing the SSC examination from rural area.
Here we are faced with a problem that a
candidate by sheer chance of his appearing and
passing the examination from rural area gets an
advantage over all others by arbitrary addition of 10 per
cent of marks which, as we have indicated above, has
no reasonable nexus or connection with the object of
getting the best candidates suitably adapted to rural
life."
In the judgment rendered in V.N. Sunanda Reddy & Ors
v. State of A.P. & Ors [ 1995 Supp (2) SCC 235], the Hon‟ble
Apex Court while testing a rule, which provides to award
additional 5% of the total aggregate maximum marks to the
- 55 -
candidates who obtained basic educational qualification in
Telugu language, has been pleased to hold the said rule
violative of Article 14 of the Constitution of India.
The Delhi High Court while dealing with issue of
discrimination based upon the institutions, in the judgment
rendered in Iqbal Hussain & Ors Vs. MCD & Anr. [2005 SCC
Online Del 1009] wherein the issue of consideration was the
rule as contained in Note 8 of the Rules, which confines
consideration of candidates, who have completed their 10th
and 12th Examinations from Delhi, has been to hold that the
said Rule (Note 8) is violative of Article 14 of the Constitution of
India as the same is not coming under the fold of reasonable
classification.
For ready reference, paragraph nos. 4, 9, 10, 11, 14, 16,
21, 23, 25 and 27:
4. All the petitioners are aggrieved by Note 8,
which confines consideration of candidates, who
are qualified, but completed their 10th and 12th
Examinations from Delhi. These petitioners have
completed their 10th and/or 12th Examinations
from outside Delhi; some of them are Delhi
candidates, who finished their schooling from outside;
others are candidates hailing from different regions, but
living in Delhi, some have completed their teachers'
training qualifications from Delhi; all of them allege that
they are registered with the Employment Exchanges in
Delhi. The impugned restrictive condition has been
attacked as discriminatory and arbitrary.
9. Mr. Alok Sangwan, appearing for the
petitioners, submitted that the impugned
- 56 -
condition violates Articles 14 and 16 of the
Constitution of India. Once the essential
qualifications relatable to the post are prescribed,
the superimposition of a condition that the
selected candidate should have graduated his
10th and 12th from Delhi is impermissible in law.
It amounts to an irrational, geographical criteria,
bearing no nexus with the object of the
recruitment. ..........
10. Learned counsel for the petitioner relied upon
the decision reported as Kailash Chand Sharma
etc., etc., v. State of Rajasthan and Ors., 2002 (6)
SCC 562 to submit that similar criteria, based
purely on geographical or residential
considerations, has been declared
unconstitutional. .......
11. Mr. V. Sudheer, learned counsel for the
petitioner, besides reiterating the above
submissions, also stated that only Parliament
could legislate the conditions, under which, and
the category of posts, for which, residence based
qualifications could be legitimately imposed, by
virtue of Aritlce 16(3) of the Constitution of India.
This meant that all other authorities, including
State legislatures, were denuded the right to make
reservations and prescribe residence based
employment conditions.
14. Learned counsel for the respondents submitted
that the condition was not an impermissible
classification, but an instance of institutional
preference, which is permissible under the
Constitution of India. ...
16. Articles 14 and 16 have been interpreted to permit
reasonable classification. Article 16(2) forbids
discrimination on the ground, inter alia, of residence, in
matters of public employment. This bar is to an extent
lifted, by Article 16(3), which enables the parliament to
make a law prescribing a residential requirement within
- 57 -
the State in regard to a classes of employment or
appointment to an office under the State. Residence
based classification, in matters of public
employment, is therefore, clearly discriminatory,
unless it has the sanction of Parliament, under
Aritcle 16(3). The issue is whether the impugned
condition is a residential condition, falling within the
prohibited zone, or a permissible classification, under
Article 14 and 16(1).
21. The plea of institutional preference cannot
also be taken, to justify a reservation, in public
employment, as in the present case. Institutional
preference, as understood, is a term used in the
context of admissions to educational, often,
professional educational institutions. It implies a
preference to the students of a particular state.
The Supreme Court has recognized this
preference, as a constitutionally permissible
mechanism. However, "institutional preference"
cannot be used in public employment. If the MCD
were of the view that all schools and institutions in
Delhi offering 10th and 12th standard are a separate
and distinct class, and therefore constitute a separate
category, it should have supported that conclusion on
the basis of objective material. It is not as if all such
institutions are homogenous; all kinds of schools,
affiliated to different Boards (CBSE, ICSE,
National Open Schools, etc) exist in Delhi. There
are private schools, (both aided and unaided);
Schools managed by autonomous bodies, the MCD,
the Government of NCT, etc. Hence, the mere
description of schools on the basis of their
location does not set them apart from schools in
the rest of the country. The plea of institutional
preference here, therefore, cannot stand scrutiny
as a distinct class or category, justifying a valid
classification.
23. There is yet another reason why Note 8 cannot
- 58 -
be sustained. Even if it were to be assumed, that it
is based upon an intelligible differentia, there is
no attempt to show how that has a rational nexus
with the object sought to be achieved, viz
appointment of most suitable candidates to the
post. The rule, one of exclusion, on the contrary
works to eliminate potentially merited candidates,
who might possess better academic qualifications
and also might perform well in the interview as per
the MCD'S yardsticks. Hence, the geographical basis
of the qualification has no nexus with the object of
the recruitment process; it even defeats the object.
25. India is one country with one Constitution,
which outlines equal rights, and assures equal
opportunities to all. Every citizen is a citizen of
the whole country. We are not a confederation of
city-states, each of which fiercely guard their
independent status, and jealously protect their
citizens' local rights. Conceived as the
quintessentially Indian metropolis, a microcosm
reflecting aspirations of the people of India, Delhi
attracts talent from all over the country, and is
the beneficiary of vast Union expenditure.
Protectionism is not a known trait characterizing
the national capital.
27. The impugned note is but a masked residential
requirement, which falls foul of Article 16(2) to the
extent it insists that the student must have
completed 10th and 12th standard from Delhi,
thereby implying that for that duration, residence
is deemed essential; it is also violative of Article
14 as not amounting to reasonable classification,
as the MCD has. not shown the basis of the
differentia, and how it furthers the object of the
recruitment process. In view of these findings, the
impugned note cannot be sustained.
[Emphasis supplied]
31. It is also equally settled that while testing the validity of
- 59 -
the legislation/rule, is required to see its nexus with the object
to be achieved, as has been held by Hon'ble Apex Court in
Dharam Dutt and Others v. Union of India and Others
[(2004) 1 SCC 712] at para 56 which is quoted hereunder :
"56. Article 14 of the Constitution prohibits class
legislation and not reasonable classification for the
purpose of legislation. The requirements of the validity
of legislation by reference to Article 14 of the
Constitution are : that the subject-matter of legislation
should be a well-defined class founded on an
intelligible differentia which distinguishes that subject-
matter from the others left out, and such differentia
must have a rational relation with the object sought to
be achieved by the legislation. The laying down of
intelligible differentia does not, however, mean that the
legislative classification should be scientifically perfect
or logically complete."
32. It also requires to refer herein the limited scope of judicial
review in the matter of policy decision since the policy decision,
if framed by the State, is least to be interfered with by the court
of law sitting under Article 226 of the Constitution of India,
subject to certain exceptions, if such policy decision suffers
from malice/arbitrariness/unreasonableness/irregularity.
In the judgment rendered by Hon'ble Apex Court in
K.Nagaraj and Others v. State of Andhra Pradesh and
Another [(1985) 1 SCC 523] wherein the issue was regarding
reduction of the age of retirement from 58 to 55 years. The
Hon'ble Apex Court has been pleased to hold that the same was
taken by virtue of policy decision in order to provide
- 60 -
employment opportunity to the younger sections of the society
and the need to open up promotional opportunities to
employees at the lower levels early in their career and since it is
based upon reasonable consideration, it was declined to be
interfered with.
In the case of State of Jharkhand and Others v. Ashok
Kumar Dangi and Others [(2011) 13 SCC 383], the Hon'ble
Apex Court has been pleased to hold at paragraph 17 and 18
which are quoted hereunder :-
"17. The High Court has found that the Government
of Jharkhand, till date, had not framed any policy
regarding the number of posts to be filled by physical
trained candidates. How many posts of primary
school teachers be filled up by physical trained
candidates, in our opinion, is essentially a question
of policy for the State to decide. In framing of the
policy, various inputs are required and it is neither
desirable nor advisable for a court of law to direct or
summarise the Government to adopt a particular
policy which it deems fit or proper. It is well settled
that the State Government must have liberty and
freedom in framing policy. Further, it also cannot be
denied that the courts are ill-equipped to deal with
competing claims and conflicting interests. Often,
the courts do not have the satisfactory and effective
means to decide which alternative, out of the many
competing ones, is the best in the circumstances of
the case.
18. One may contend that providing primary
education to the children is essential for the
development of the country. Whereas others argue
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that physical training of the children in the primary
schools is must as that would make the nation
healthy. As in the present case, the candidates
trained in teaching claim that the posts of primary
school teachers be filled by them and physical
trained candidates be considered for posts of
physical trained teachers only as they in the absence
of any training in education are not equipped to
teach in primary schools, whereas physical trained
teachers contend that they should be considered for
appointment against both the posts. These
competing claims, in our opinion, need to be
addressed by the policy-makers. Further, we do not
have the statistics as regards to the number of
primary schools, the resources which the
Government can spend for providing physical trained
teachers and their need. In such a situation, any
direction in matters of policy is uncalled for."
Thus, it has been laid down that the State Government
must have liberty and freedom in framing policy and further, it
has been held that the courts are ill-equipped to deal with
competing claims and conflicting interests. Often, the courts do
not have the satisfactory and effective means to decide which
alternative, out of the many competing ones, is the best in the
circumstances of the case.
In the case of Census Commissioner and Others v.
R.Krishnamurthy [(2015) 2 SCC 796], Their Lordships at the
Hon'ble Apex Court have been pleased to hold at paragraph 25
as hereunder :-
"25. Interference with the policy decision and issue of a
- 62 -
mandamus to frame a policy in a particular manner are
absolutely different. The Act has conferred power on the
Central Government to issue notification regarding the
manner in which the census has to be carried out and
the Central Government has issued notifications, and the
competent authority has issued directions. It is not
within the domain of the court to legislate. The courts do
interpret the law and in such interpretation certain
creative process is involved. The courts have the
jurisdiction to declare the law as unconstitutional. That
too, where it is called for. The court may also fill up the
gaps in certain spheres applying the doctrine of
constitutional silence or abeyance. But, the courts are
not to plunge into policy-making by adding something to
the policy by way of issuing a writ of mandamus. There
the judicial restraint is called for remembering what we
have stated in the beginning. The courts are required to
understand the policy decisions framed by the executive.
If a policy decision or a notification is arbitrary, it may
invite the frown of Article 14 of the Constitution. But
when the notification was not under assail and the same
is in consonance with the Act, it is really unfathomable
how the High Court could issue directions as to the
manner in which a census would be carried out by
adding certain aspects. It is, in fact, issuance of a
direction for framing a policy in a specific manner."
In Delhi Subordinate Services Selection Board v.
Praveen Kumar [2016 SCC OnLine SC 1549], it has been
held that it is the employer's prerogative to decide the age-limit
and academic suitability of candidates which they wish to
employ and so long as the same are not contradictory to the
academic eligibility as prescribed by the NCTE Act.
In the case of Chandigarh Administration through the
Director Public Instructions (Colleges), Chandigarh v. Usha
- 63 -
Kheterpal Waie and Others [(2011) 9 SCC 645], the Hon'ble
Apex Court has held at paragraph 22 and 23 which read as
hereunder :-
"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. [(1990) 1 SCC 288]
and P.U. Joshi v. Accountant General [(2003) 2 SCC
632].) 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.
23. The Tribunal and the High Court have held that in
the years 1989 and 1991, the Tribunal had accepted
that the earlier administrative instructions dated 20-8-
1987 which required the UT cadre employees to be
considered for the post have to be followed. The fact that
at that time PhD degree was not insisted upon, does not
mean that for all times to come, PhD degree could not be
insisted. PhD degree was made a qualification because
UGC guidelines required it for direct recruitment post
and the UPSC approved the same. Therefore, merely
because on some earlier occasions, the posts of Principal
were filled by UT cadre lecturers without PhD degree, it
cannot be argued that the PhD degree cannot be
prescribed subsequently."
Thus, it is evident that the interference by way of exercise
- 64 -
of power under judicial review is only to the extent if it has been
found that the action of the State is arbitrary and suffers from
the vice or malice.
33. All the issues which are being answered since are inter-
linked, the same are being discussed and answered together.
It is evident from the judgment rendered by Hon'ble Apex
Court regarding the difference in between the reasonable and
unreasonable classification. There is no dispute about the fact
that Article 14 of the Constitution of India states that the State
shall not deny to any person equality before the law or the
equal protection of law within the territory of India. But this
rule is not absolute and is subject to limitation. The rule of law
cannot prevent a certain class of persons from being subject to
special laws, hence, the State has the power to make laws of
operating on different classes of people in a way that the
principle of equality of civil rights and equal protection of law is
followed. This is being known as the doctrine of reasonable
classification.
Article 14 of the Constitution of India permits reasonable
classification but not class legislation. Class legislation means
making of improper discrimination by conferring certain
privileges upon a class or person arbitrarily selected from a
huge number of people. Thus, class legislation violates equal
protection whereas reasonable classification is always based on
real and substantial distinction which we have gathered from
- 65 -
the position of law settled by Hon'ble Apex Court in the
judgment referred hereinabove while discussing the principle of
Article 14 of the Constitution of India.
It is also settled that if the policy decision has been made
but it does not suffer from class legislation, i.e., being not
improper discrimination by violating equal protection, the same
is least to be interfered by the court of law, as has been held by
Hon'ble Apex Court in the judgment referred hereinabove
pertaining to scope of judicial review in the matter of policy
decision.
34. This Court is to examine on the touchstone of the
principle laid down by Hon'ble Apex Court about the plea which
has been taken while challenging the validity of the provision of
Rule 17(Ka)(ii) of Rules, 2015.
The main ground taken on behalf of the petitioners that
excluding the Group-ga employees from participating in the
process of selection is by way of carving out a class amongst
class since they also belong to category-III while the employees
working in the Group-kha although in the higher grade pay, are
under category-III but they have been allowed to participate in
the process of selection by making them eligible which,
according to the petitioners, is unreasonable classification.
35. As has been held by Hon'ble Apex Court the reasonable
and unreasonable classification, as referred hereinabove, this
Court, therefore, is now proceeding to examine as to whether
- 66 -
non-insertion of the Government servant working in the State
of Jharkhand in the Group-ga service is by way of
unreasonable classification?
The fact is not in dispute that the provision of Rule 30 of
Jharkhand Service Code has been referred which defines the
meaning of ministerial staff, which reads as hereunder:-
"30. Ministerial servant means a Government servant
of a subordinate, service whose duties are entirely
clerical, and any other class of servants specially
defined as such by general or special order of the State
Government."
The aforesaid provision contains that apart from the
employees who are performing the clerical nature of work, the
Government can also declare the other employees to be under
the ministerial cadre. Under the note, the reference of
Appendix-5 has been given. Appendix-5 stipulates about the
description of different posts which requires to be referred
herein, which reads as hereunder :-
APPENDIX-5
LIST OF GOVERNMENT SERVANTS SPECIALLY CLASSED
AS MINISTERIAL SERVANTS
[See Rule 30]
(1) Finance Department (1) Audit Assistant of
Commercial Taxes
Department.
(2) Time-keeper, Paper
Issuer, Store keeper,
Assistant Store-keeper,
Task clerk, Assistant
paper issuer and
Computors including
Head Computor in
Government presses.
- 67 -
(2) Development and (1) Milk-writer and Store-
Employment Department keeper of the
Government Cattle Far.
(2) Artist, Photographer and
Librarian of the Bihar
Veterinary College.
(3) Public Works : Store-keeper, Computors,
Department Draftsman, Tracers and
Blus-Printers.
(4) Irrigation Department : Tool Collectors (Irrigation
Department)
It is further admitted that the State of Jharkhand through
the Personnel, Administrative Reforms and Rajbhasha
Department has come out with a resolution being Resolution
No. 5216 dated 27.8.2010 whereby and whereunder the cadres
have been classified, as has been shown by way of a tabular
chart hereinabove by which it is evident that the posts have
been classified in four categories, i.e., Group-ka, Group-kha,
Group-ga and Group-gha and all the posts are having different
pay scale with different grade pay.
36. The petitioners have made emphasis on their argument
that there is no classification of Category-III posts in Rule 30 of
the Jharkhand Service Code but the provision of Rule 30 along
with Appendix-5 has been inserted, therefore, the said rule
cannot be said to be valid, since by virtue of insertion therein,
the writ petitioners, who are holding category-III posts, they are
also eligible.
But the question would be that when the Government has
- 68 -
come out with a resolution on 27.08.2010 classifying the posts,
then what would be the effect of the description of posts shown
in the tabular chart as under Appendix-5?
It is evident from Appendix-5 that there is no classification
based upon the pay scale or the grade pay, rather the names of
the different departments have been given. The further question
would be that what would be the consequence of the
description of the post shown in the Appendix-5 after coming
into the effect of the resolution dated 27.08.2010 classifying the
posts showing therein the pay scale with the grade pay.
Admittedly, Resolution No. 5216 dated 27.08.2010 has not
been challenged. It appears from resolution dated 27.08.2010,
which has been notified by the order of the Governor, having
been notified for people in general by publishing in the gazette
which contains a condition as under Condition No.3 that all the
earlier classifications made, will stand superseded which means
that after coming into effect of Resolution No. 5216 dated
27.08.2010, the classification of posts of category-III will only
prevail and not the description of post as under Appendix-5.
Further, it is evident from Appendix-5 that the same
contains the list of Government service separately classed as
ministerial service by giving the names of the post of different
departments, however, with no pay scale and no classification
in the ministerial cadre. Even if the provision of Rule 30 will be
taken into consideration, the same confers power upon the
- 69 -
State Government to specially define the other class of servants
by general or special order to be under the category of
ministerial servant. The resolution has come carving out the
classification of posts even in the category-III by classifying in
two categories, i.e., Group-ga and Group-kha having the
different pay scales.
It is evident from the slab of the pay scale that Group-kha
service is having higher pay scale than the employees working
under Group-ga, meaning thereby, the employees working
under Group-kha is having more experience on the ground of
rendering continuous service and is a upgraded post either to
be filled up by way of promotion or through direct recruitment.
37. The Rules, 2015 has been carved out by inserting a
provision under 17(ka)(ii) wherein the insertion of Group-kha
posts have been made but with the reference of Rule 30 read
with Appendix-5. The reference of Rule 30 has been made for
the specific purpose since the said provision defines ministerial
cadre while the reference of Appendix-5 has been made with the
specific purpose which is in order to insert in the Appendix-5
the classification based upon the pay scale. Therefore, merely
because in the impugned rule there is insertion of Rule 30 read
with Appendix-5 does not entitle the writ petitioners to be
considered eligible to participate in the process of selection.
The reference of Rule 30 has been made since the same
defines the ministerial staff. The aforesaid definition of
- 70 -
ministerial staff is now required to be read with Appendix-5 of
the Jharkhand Service Code with the Resolution No. 5216
dated 27.08.2010 by which the Category-III posts have been
classified in two groups, i.e., Group-ga and Group-kha having
different pay scale.
The question of declaring the provision as contained under
Rule 17(Ka)(ii) to be invalid, according to our considered view,
will not arise, reason being that the State Government, by
taking into consideration the fact that since the category-III
posts have been classified in two groups on the basis of higher
grade pay and the hierarchy, the Group-kha post is higher in
hierarchy in comparison to that of Group-ga posts. If the State
Government has taken a decision to allow such candidates,
who are above in hierarchy by holding the post in Group-kha in
the ministerial cadre having more experience on the basis of
rendering their service and being in the higher grade pay, to
participate in the process of selection to be appointed to the
post of Deputy Collector under the Jharkhand Administrative
Cadre, it cannot be said to be under the fold of unreasonable
classification. Since the aforesaid classification is based upon a
valid reason by carving out two groups in the category-III and
admittedly, the employees working in Group-ga under the
ministerial cadre cannot compare themselves with the
employees working in the Group-kha under the ministerial
cadre who admittedly are more senior, more experienced and in
- 71 -
the higher pay scale by virtue of the hierarchy.
The 25% posts is to be filled up strictly on merit by
conducting Limited Competitive Examination, by appointing
ministerial cadre directly to the Class-II service of the State
Government. The State has taken decision to select such
candidates who are having more experience by virtue of holding
higher post, which cannot be said to be a wrong policy decision
of the State Government since, it is the State, being the
employer, is the competent body to fill up the posts with the
persons having more experience of the higher post for their
performance to the higher post in which they are to be directly
recruited from in-service candidate to take maximum potential
from them in order to maintain efficiency on the basis of such
experience and holding of such posts.
38. It also requires to refer herein that if any legislation/rule
is to be made by the State, presumption is to treat such
legislation to be valid unless the same is otherwise illegal on the
basis of any ground whatsoever, as has been held by Hon'ble
Apex Court in Jigya Yadav (Minor) (Through Guardian/Father
Hari Singh) v. Central Board of Secondary Education and
Others [(2021) 7 SCC 535] at paragraph 121, which is quoted
as under :-
"121. We say so because there is an evolving body of
jurisprudence enunciating that the principle of
presumption of constitutionality attached with statutes
ought not to be extended to subordinate legislations
- 72 -
with the same vigour. For, the legislature enjoys the
sacred backing of people's will and naturally, every act
of legislature is presumed to be constitutional. In other
words, the courts generally do not look upon duly
enacted laws with suspicion at the first glance as they
enjoy legal presumption of its validity. Nevertheless,
circumspect intervention on the part of the court is to
advance constitutional protection for guarantees under
Part III of the Constitution."
39. This Court, in view of the aforesaid discussion and taking
into consideration the principle laid down by Hon'ble Apex
Court about the unreasonable classification, is of the view that
making of such discrimination does not fall under the category
of unreasonable classification and, as such, is not in the teeth
of Article 14 of the Constitution of India.
40. The question has been raised that teachers have not been
inducted in the eligibility criteria to participate in the process of
selection and, therefore, the provision of Rule 17(k(ii) is invalid
also on that ground that the teachers have been discriminated
by not allowing them to participate in the process of selection.
41. Learned Advocate General has submitted that the teacher
is squarely different category to be governed by different rules
having their promotional avenues.
The aforesaid aspect of the matter has not been disputed
on behalf of the petitioners. It has also been pointed out by
making reference of the provision of Bihar (now Jharkhand)
Taken Over Elementary Schools Teachers Promotion Rules,
1993 which contains provision for promotion of the teachers
- 73 -
from Grade-I up to Grade-VII having the different pay scales.
Therefore, when the teachers are having separate cadre
and are being governed with different rules and hierarchy for
promotion and further, they are not under the ministerial
cadre, therefore, non-inclusion of the teachers in the aforesaid
rule, cannot be construed to be an act of unreasonable
classification.
Accordingly, the plea which has been taken that since the
teachers have not been included in the eligibility criteria to
participate in the process of selection although the teachers
were included on earlier occasion, that cannot be a valid
ground to declare the aforesaid provision invalid, reason being
that it is the State who is to make policy decision depending
upon the promotional avenues of the in-service candidates.
The State has taken such decision to carve out the
provision of Rules, 2015 in furtherance of the provisions or
Rule, 1991 wherein 25% posts of the State Administrative
Service is to be filled up by way of Limited Competitive
Examination, i.e., for the purpose of giving impetus to the in-
service candidates who are working in the ministerial cadre.
Since the teachers are not coming under the ministerial cadre,
they are having least chance of promotion but in the case of
teachers there are wide chance of avenues for promotion, as per
Rules, 1993.
42. This Court, on the basis of the aforesaid reasoning, is of
- 74 -
the considered view that the plea taken by the teachers about
their non-inclusion in the impugned rule, cannot be considered
to be unreasonable classification and, as such, on this ground
the impugned rule cannot be held to be invalid.
43. The question has been raised that as to whether
discrimination can be made on the basis of mode of
appointment since some of the petitioners in writ petition
W.P.(S) No.5966 of 2018, W.P.(S) No.790 of 2019 and W.P.(S)
No.347 of 2019 have been appointed on compassionate ground
but there is insertion made in the impugned rule that only
direct recruits will be eligible to participate in the process of
selection.
44. The question arises that whether on the basis of mode of
entry in service can there be any discrimination and if made,
will it not hit the principle of Article 14 of the Constitution of
India to be treated as the piece of unreasonable classification?
It is not in dispute that appointment on compassionate
ground is to be made on the basis of the policy decision of the
State Government by carving out a separate scheme in this
regard.
In the State of Jharkhand, the scheme for appointment on
compassionate ground has been carved out by the erstwhile
State of Bihar by notifying a scheme vide circular dated
05.10.1991. The same has been continued to be in existence till
the new rule has been framed in the year 2015 wherein specific
- 75 -
provision has been made to appoint the dependent of the
deceased employee on compassionate ground as would appear
from the provision of Rules, 2015, which reads as hereunder :-
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¼iii½ vuqdEik ds vk/kkj ij fu;qDr dfeZ;ksa dh fu;qfDr fu;fer fu;qfDr ekuh tk;sxhA bl
izdkj vuqdEik ds vk/kkj ij fu;qDr O;fDr dh lsokdky esa e`R;q gksus ij muds vkfJr
vuqdEik dk ykHk izkIr dj ldsxa As
fdUrq ykirk ljdkjh lsod ds vkfJr dk vuqdEik ds vk/kkj ij fu;qfDr gsrq
nkok ekU; ugha gksxkA
?
Lkjdkjh lsod ds fuEufyf[kr lnL; lh/ks vkfJr ekus tk;saxs %&
¼i½ [email protected] %& ;Fkk fLFkfr A
¼ii½ [email protected]/kok iq=o/kw A
¼iii½ [email protected]/[email protected]"[email protected];Drk iq=h ,oa fookfgr iq=h tks ljdkjh
lsod dh e`R;q ds le; mlij iw.kZr;k vkfJr jgh gksAa
¼iv½ nÙkd [email protected]Ùkd vfookfgr iq=h ¼fgUnq ,MkI"ku ,.M esaVsusUl ,DV 1956 ds
izko/kku ds vuqlkj½
vfookfgr ljdkjh lsod ds ekeys esa %&
¼i½ [email protected]
¼ii½ vfookfgr [email protected] cgu
?
vuqdEik ds vk/kkj ij fu;qfDr gsrq vkosnd ls rkRi;Z ml O;fDr ls gksxk] tks
e`r ljdkjh lsod ds vkfJr lnL;ksa esa ls fuEu vf/kekurk Øe esa p;fur gks ldsaxs%&
¼i½ [email protected] %& ;Fkk fLFkfrA
- 76 -
¼ii½ [email protected]/kok iq=o/kw A
¼iii½ [email protected]/[email protected]"[email protected];Drk iq=h ,oa fookfgr iq=h tks ljdkjh
lsod dh e`R;q ds le; mlij iw.kZr;k vkfJr jgh gksAa
¼iv½ nÙkd [email protected]Ùkd vfookfgr iq=h ¼fgUnq ,MkI"ku ,.M esVa susUl ,DV 1956 ds
izko/kku ds vuqlkj½
vfookfgr ljdkjh lsod ds ekeys esa %&
¼i½ [email protected] ¼;fn mudh vk;q 50 o'kZ ds vUnj gks½
¼ii½ vfookfgr [email protected] cgu
?
vuqdEik ds vk/kkj ij fdlh vkfJr dh fu;qfDr ds fy, U;wure mez
izLrkfor lsok esa izos"k ds fy, fu;qfDr fu;ekoyh esa fofgr izko/kku ds vuq:Ik gksxkA
blh izdkj vkfJr dh fu;qfDr ds fy, vf/kdre mez lhek ogh jgsxh
tks le;≤ ij ljdkjh lsok esa izos"k ds fy, jkT; ljdkj }kjk fu/kkZfjr gksA
vuqdEik ds vk/kkj ij fu;qfDr ds fy, vf/kdre mez lhek ek=
[email protected] [email protected] vfookfgr [email protected]/kok iq=o/kw] fo/[email protected]"[email protected];Drk
[email protected] iq=h ds ekeys esa izLrkfor in ls lEcfU/kr [email protected]/;{k lsok lafgrk
ds fu;e&54 ¼d½ ds rgr iznr "kfDr dk iz;ksx dj {kkUr dj ldsx a As
?
fu;qfDr gsrq izLrkfor in ds HkrhZ fu;ekoyh esa fofgr fu;qfDr izkf/kdkj
vuqdEik ds ekeys esa Hkh fu;qfDr izkf/kdkj gksaxsA
?
vuqdEik ds vk/kkj ij fu;qfDr osrueku (PB-1, 5200-20200, xzsM osru
[email protected] rd lewg ^x* ds lHkh izdkj ds inksa ij rFkk lewg ^?k* ds vf/kdre 1800
xzsM osru rd ds lHkh izdkj ds inksa ij dh tk ldrh gSA
ijUrq ;fn ljdkjh lsod dh e`R;q dh frfFk dks ifr ;k iRuh ¼tks Hkh ykxw gks½
ljdkjh lsok esa gks ] rks e`r ljdkjh lsod ds vkfJr dks vuqdEik dk ykHk vuqekU; ugha
gksxkA
fdUrq ifr vkSj iRuh nksuksa ljdkjh lsok esa jgs gksa vkSj muesa ls fdlh ,d
ljdkjh lsod dh e`R;[email protected]`fÙk iwoZ esa gks x;h gks rks lsokdky esa e`r ljdkjh lsod ds
vkfJr dks vuqdEik dk ykHk ns; gksxkA
^^ijUrq ;g vkSj fd ljdkjh lsod ds lsokfuo`fÙk ds ckn iqufuZ;kstu vFkok
lafonk ds vk/kkj ij dk;Zjr dehZ ds e`R;q ds mijkUr vuqdEik ds vk/kkj ij fu;qfDr dk
nkok ekU; ugha gksxk**A"
45. The Government, if has formulated a scheme by framing
rule in exercise of power conferred under proviso to Article 309
of the Constitution of India to provide appointment to the
dependent of the deceased employee and basis upon which if
the dependent of the employee has been appointed on the basis
of the decision taken by the competent body/authority, the
moment the dependent of the deceased employee has been
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inducted in service and started discharging his duty in a
particular cadre, it will be treated that he has taken birth in
that cadre. The moment the birth has been taken in the cadre
even on compassionate ground, such appointees cannot be
discriminated with the appointees who have been appointed
through direct recruitment. If any discrimination will be allowed
to be there, the same will lead to unreasonable classification on
the ground that when the State Government, by virtue of policy
decision, by way of rule carved in exercise of proviso to Article
309 of the Constitution of India, providing there to appoint the
dependent of the deceased employee on compassionate ground
and if such nature of appointment will be treated differently,
the implied meaning would be that the State Government itself
is questioning their own decision then the question will arise
that why such appointment by the State Government is made?
46. Therefore, this Court is of the view that there cannot be
any discrimination on the ground of recruitment if made on
compassionate ground. The only requirement will be that such
appointees appointed on compassionate ground if have reached
to the stage of Group-kha, depriving them from participating in
the process of selection will be nothing but will be arbitrary and
a piece of unreasonable classification.
Such policy decision of the State Government cannot be
said to be proper and the same cannot be protected on the
ground that the same is the piece of policy decision and, as
- 78 -
such, cannot come under the power of judicial review of this
Court to consider its validity in exercise of power conferred
under Article 226 of the Constitution of India.
The position of law is well settled that the policy decision,
if it is contrary to the principle laid down under Article 14 of the
Constitution of India being unreasonable, it is required to be
looked into in exercise of power of judicial review.
47. This Court, on the basis of the aforesaid fact and taking
into consideration the fact that there cannot be any
discrimination on the ground of mode of appointment, as per
the discussion made hereinabove, is of the considered view that
such classification is declared to be a piece of unreasonable
classification. Therefore, depriving the petitioners who have
been appointed on compassionate ground to participate in the
process of selection through the Limited Competitive
Examination, even though is/are in Group-kha of the
ministerial cadre, cannot be considered to be proper.
Accordingly, this Court hereby holds such writ petitioners to be
eligible to participate in the process of selection.
48. The next issue is about the cut-off date. The argument has
been advanced that the cut-off date which has been fixed to
calculate minimum age for appearing in the 6th Combined
Competitive Examination by the JPSC as 01.08.2016 is
required to be there also for the 6th Limited Competitive
Examination wherein the cut-off date has been fixed as
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01.08.2015.
The writ petitioners have tried to impress upon the Court
that whatever date has been fixed by way of cut-off date to
reckon the minimum age for the Combined Competitive
Examination to be conducted to fill up 75% of the total vacancy
is also required to be followed for the examination to be
conducted by way of Limited Competitive Examination to fill up
25% of the total vacancy.
The aforesaid argument is not worth to be considered,
reason being that the selection process for both the
examinations, i.e., post to be filled up through direct
recruitment or through Limited Competitive Examination, are
being governed through different rules and different policy
decisions. The writ petitioners since are eligible on the basis of
the cut-off date as on 01.08.2016, that does not mean that for
accommodating such candidates, like the writ petitioners, the
cut-off date is to be shifted to 01.08.2016. This is the only
ground taken by the writ petitioners to shift the cut-off date
from 01.08.2015 to 01.08.2016.
The position of law is settled that any policy decision is
not to be considered invalid since it does not suit the candidate.
49. This Court, on the basis of the aforesaid discussion, is of
the view that the writ petitioners have failed to make out a case
for passing positive direction.
50. So far as the issue agitated on behalf of the petitioners in
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W.P.(S) No.5259 of 2018 that the period of service rendered by
one or the other employees working in the State of Jharkhand
before mutual transfer is required to be calculated for the
purpose of counting five years continuous service is concerned,
this Court, on the basis of the prayer made in the writ petition,
has found that no such prayer seeking a direction upon the
State to count the experience of the period rendered by them
before their mutual transfer in the existing State of Bihar has
been made.
The position of law is settled that in the writ petition if
specific prayer has not been made, there cannot be any
direction by way of mandamus for its consideration, as has
been held by Hon'ble Apex Court in State of Madhya Pradesh
and Another v. Kedia Great Galeon Limited and Another
[(2017) 13 SCC 836], at paragraph 38 which is quoted and
referred as under :-
"38. ... ... ... We are, thus, of the
considered opinion that the something which the writ
petitioner never intended or prayed for cannot be
looked into in this appeal."
51. This Court, therefore, on the basis of the aforesaid
position of law is of the view that in absence of such prayer no
relief can be granted in favour of the writ petitioners.
52. This Court, in consequence of the discussions made
hereinabove, hereby found the writ petition being W.P.(S)
- 81 -
No.5259 of 2018, W.P.(S) No.5612 of 2018, W.P.(S) No.5666 of
2018, W.P.(S) No.6131 of 2018, W.P.(S) No.6679 of 2018 and
W.P.(S) No.137 of 2020 are hereby dismissed.
53. The writ petition being W.P.(S) No.5966 of 2018, W.P.(S)
No. 790 of 2019 and W.P.(S) No.347 of 2019 is/are hereby
allowed to the extent by holding the writ petitioners who have
been appointed on compassionate ground and are in „Group-
kha‟ post under the ministerial cadre, eligible to participate in
the process of selection.
54. Accordingly, pending interlocutory applications also stand
disposed of.
55. Since this Court has come out with the considered view
that there cannot be any discrimination on the ground of mode
of recruitment as is being done by allowing the in-service
candidates to participate in the limited competitive examination
who have directly been recruited leaving apart the appointees
who have been appointed on compassionate ground under the
Government Scheme and, as such, we have considered it
violative of the principle of Article 14 of the Constitution of
India reason being that there cannot be discrimination on the
ground of mode of recruitment. But the question arises that the
selection process has already commenced and as has been
informed to this Court on behalf of the Jharkhand Public
Service Commission that the examination has been conducted
but result has not yet been published.
- 82 -
56. Since this Court has considered that the candidature of
appointees on compassionate ground is also required to be
considered at par with the direct recruit, therefore, opportunity
is required to be provided to such appointees to participate in
the process of selection.
If such direction will not be passed by this Court, the
appointees on compassionate ground will be meted out with
great injustice which will not be compensated in future since in
the given facts of the case, the writ petitioners in W.P.(S)
No.5966 of 2018, W.P.(S) No. 790 of 2019 and W.P.(S) No.347 of
2019 are having 40 - 41 years of age as on the date of filing the
writ petition and, as such, they will not have a chance to
participate in the future selection process in a situation if the
State authority will come out with fresh notification for filling
up of the post earmarked to be filled up through Limited
Competitive Examination since the writ petitioners of the
aforesaid cases will cross the maximum age limit of 45 years as
has been prescribed in the Rule for consideration of
candidature of one or the other candidates.
57. This Court is further of the view that when the aforesaid
provision making discrimination on the ground of mode of
recruitment is being laid down, along with the writ petitioners
of W.P.(S) No.5966 of 2018, W.P.(S) No. 790 of 2019 and W.P.(S)
No.347 of 2019, the other similarly situated candidates who
have been appointed on compassionate ground, if otherwise
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eligible for consideration of the candidature, are also required
to be considered.
Therefore, this Court is of the view that appropriate
direction is required to be issued upon the concerned
respondent, both State as well as JPSC, to notify the
advertisement as per the provision made in the statute by
inviting application of such candidates who have been
appointed on compassionate ground in order to consider the
candidature of one or the other candidates including the writ
petitioners of W.P.(S) No.5966 of 2018 (Petitioner Nos. 1 & 6),
W.P.(S) No. 790 of 2019 and W.P.(S) No.347 of 2019.
58. In view thereof, the respondent State is directed to notify
the advertisement for acceptance of application of the
candidature of the candidates who have been appointed on
compassionate ground and for consideration of their
candidature, if they are otherwise eligible.
Since the process of selection has already commenced and
assessment of one or the other candidates has already been
made but the result has not been published though the
advertisement was issued in the year 2018, therefore, much
delay has already caused, but even then, consideration of one
or the other candidates who have been appointed on
compassionate ground is required to be made, as has been held
by this Court hereinabove.
Therefore, this Court is of the view that such exercise is
- 84 -
required to be conducted/concluded by the respondent State of
Jharkhand and the JPSC within earliest possible time.
59. In view thereof, the respondents, both the State and the
JPSC, are directed to notify the advertisement for acceptance of
application of such candidates who have been appointed on
compassionate ground, if they are otherwise eligible, by taking
sincere endeavor for conclusion of the process of selection
within a period of three months from the date of receipt of copy
of the order.
60. The JPSC, in that pretext, is hereby directed not to
publish the result of the candidates who have already
participated in the written examination so as to publish the
result cumulatively after assessing the candidature of one or
the other candidates who have been appointed on
compassionate ground.
(Dr. Ravi Ranjan, C.J.)
I agree
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.)
Birendra/ A.F.R.
