Jharkhand High Court
Neeraj Nayan Choudhary vs The State Of Jharkhand Through The ... on 10 October, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.6558 of 2010
1. Neeraj Nayan Choudhary, son of Raj Kishore Choudhary, resident
of Village & P.O. & P.S. - Bangaon, District - Saharsa (Bihar)
2. Dharmendra Mohan Mishra, son of Ramendra Mohan Mishra,
resident of Nepal House, PHED Colony, P.O. & P.S. - Doranda,
District - Ranchi
3. Baby Kumari, daughter of Kameshwar Khan resident of Qr.
No.87/1, Road No.3, Bagbera Colony, P.O. & P.S. - Jamshedpur,
Town - Jamshedpur, District - Singhbhum East
4. Shankar Kumar son of Kameshwar Khan resident of Qr. No.87/1,
Road No.-3, Bagbera Colony, P.O. & P.S. - Jamshedpur, Town -
Jamshedpur, District - Singbhum East ... ... Petitioners
Versus
1. The State of Jharkhand through the Secretary, Department of
Home Affairs, Government of Jharkhand Ranchi having its office
at Project Building, P.O. & P.S. - Dhurwa, District - Ranchi
2. The Director General of Police, Government of Jharkhand, Ranchi
having its office at Project Building, P.O. & P.S. - Dhurwa,
District - Ranchi
3. The Deputy Inspector General of Police, South Chotanagpur,
Ranchi, P.O. + P.S. + District - Ranchi
4. Sri R.K. Mallick, son of not known to the petitioners presently
posted as Inspector General of Police (Operation), the then
Chairman, Selection Committee for the post of Lower Division
Clerk in Police Department, P.O. + P.S. + District - Ranchi
5. Abhiskek Anand, son of not known to the petitioners presently
working as Clerk in the office of Superintendent of Police, Ranchi
having its office at P.O. - G.P.O., P.S. - Kotwali, District - Ranchi
6. Deepak Kumar Tiwary, son of not known to the petitioner
presently working as Clerk in the office of Superintendent of
Police, Ranchi having its office at P.O. - G.P.O., P.S. - Kotwali,
District - Ranchi
7. Munika Khalkho daughter of not known to the petitioners
presently working as Clerk in the office of Superintendent of
Police, Ranchi having its office at P.O.- G.P.O., P.S.- Kotwali,
District- Ranchi.
8. Shyama Kant Mishra son of not known to the petitioner presently
working as Clerk in the office of Superintendent of Police, Gumla
having its office at P.O. & P.S.- Gumla, District- Gumla.
9. Randhir Kumar Verma son of not knwon to the petitioner presently
working as Clerk in the office of Superintendent of Police, Gumla
having its office at P.O. & P.S.- Gumla, District- Gumla.
10.Anmol Kachhap son of not known to the petitioners presently
working as Clerk in the office of Superintendent of Police, Gumla
having its office at P.O. & P.S.- Gumla, District- Gumla.
11.Uma Shankar Pandit son of not known to the petitioners presently
working as Clerk in the office of Superintendent of Police,
Simdega having its office at P.O. & P.S.- Simdega, District-
Simdega.
12.Aditya Gaurav son of not known to the petitioners presently
working as Clerk in the office of Superintendent of Police,
2
Simdega having its office at P.O. & P.S.- Simdega, District-
Simdega.
13.Gulshan Bhengra son of not known to the petitioners presently
working as Clerk in the office of Superintendent of Police,
Simdega having its office at P.O. & P.S.- Simdega, District-
Simdega.
14.Rintu Kumar son of not known to the petitioners presently working
as Clerk in the office of Superintendent of Police, Lohardaga
having its office at P.O. & P.S.- Lohardaga, District- Lohardaga.
15.Parikshit Kumar Chakravorty son of not known to the petitioners
presently working as Clerk in the office of Superintendent of
Police, Lohardaga having its office at P.O. & P.S.- Lohardaga,
District Lohardaga.
16.Virendra Kumar son of not known to the petitioner presently
working as Clerk in the office of Superintendent of Police,
Lohardaga having its office at P.O. & P.S.- Lohardaga, District
Lohardaga.
17.Vijendra Kumar Manglam son of not known to the petitioner
presently working as Clerk in the office of Superintendent of
Police, Khunti having its office at P.O. & P.S.- Khunti, District-
Khunti.
18.Uma Kant Prasad son of not known to the petitioner presently
working as clerk in the office of Superintendent of Police, Khunti
having its office at P.O. & P.S- Khunti, District- Khunti.
19.Avdhesh Kumar Thakur son of not known to the petitioners
presently working as Clerk in the office of Superintendent of
Police, Khunti having its office at P.O. & P.S.- Khunti, District-
Khunti.
20.Nitesh Kumar son of not known to the petitioners presently
working as Clerk in the office of Superintendent of Police, Khunti
having its office at P.O & P.S.- Khunti, District- Khunti.
21.Pankaj Kumar son of not known to the petitioners presently
working as Clerk in the office of Superintendent of Police, Khunti
having its office at P.O. & P.S.- Khunti, District- Khunti.
22.Geeta Minz daughter of not known to the petitioners presently
working as Clerk in the office of Superintendent of Police, Khunti
having its office at P.O. & P.S. - Khunti, District- Khunti.
23.Kumari Swarnlata daughter of not known to the petitioners
presently working as Clerk in the office of Superintendent of
Police, Khunti having its office at P.O. & P.S.- Khunti, District-
Khunti.
Respondents no.5 to 23 have been impleaded as respondents vide
order dated 18.12.2012 passed in I.A. No.1961 of 2011
... ... Respondents
With
W.P.(S) No. 6423 of 2010
Manoranjan Kumar, son of Late Patiram Singh, resident of Quarter
No.D.T. 2269, H.E.C. P.O. & P.S. Dhurwa, District Ranchi
... ... Petitioner
Versus
1. The State of Jharkhand
3
2. The Director General of Police, Jharkhand, having its office at
Jharkhand Police House, H.E.C. Campus, P.O. Dhurwa, P.S.
Jagannathpur, District Ranchi.
3. The Deputy Inspector General of Police, South Chhotanagpur
Range, Ranchi-cum- Chairman, Clerks Appointment Selection
Board having its office at Jharkhand Police House, H.E.C.
Campus, P.O. Dhurwa, P.S. Jagannathpur, District Ranchi.
4. Abhishek Anand, son of not known to the petitioner, presently
working as Clerk in the office of Superintendent of Police, Ranchi
having its office at P.O.-G.P.O., P.S. Kotwali, District Ranchi.
5. Deepak Kumar Tiwary, son of not known to the petitioner,
presently working as Clerk in the office of Superintendent of
Police, Ranchi having its office at P.O.-G.P.O., P.S. Kotwali,
District Ranchi.
6. Munika Khalkho, daughter of not known to the petitioner,
presently working as Clerk in the office of Superintendent of
Police, Ranchi having its office at P.O.-G.P.O., P.S. Kotwali,
District Ranchi
7. Shyama Kant Mishra, son of not known to the petitioner, presently
working as Clerk in the office of Superintendent of Police, Gumla
having its office at P.O. & P.S. Gumla, District Gumla.
8. Randhir Kumar Verma, son of not known to the petitioner,
presently working as Clerk in the office of Superintendent of
Police, Gumla having its office at P.O. & P.S. Gumla, District
Gumla.
9. Anmol Kachhap, son of not known to the petitioner, presently
working as Clerk in the office of Superintendent of Police, Gumla
having its office at P.O. & P.S. Gumla, District Gumla.
10.Uma Shankar Pandit, son of not known to the petitioner, presently
working as Clerk in the office of Superintendent of Police,
Simdega having its office at P.O. & P.S. Simdega, District
Simdega.
11.Aditya Gaurav, son of not known to the petitioner, presently
working as Clerk in the office of Superintendent of Police,
Simdega having its office at P.O. & P.S. Simdega, District
Simdega.
12.Gulshan Bhengra, son of not known to the petitioner, presently
working as Clerk in the office of Superintendent of Police,
Simdega having its office at P.O. & P.S. Simdega, District
Simdega.
13.Rintu Kumar, son of not known to the petitioner, presently
working as Clerk in the office of Superintendent of Police,
Lohardaga having its office at P.O. & P.S. Lohardaga, District
Lohardaga.
14.Parikshit Kumar Chakravorty, son of not known to the petitioner,
presently working as Clerk in the office of Superintendent of
Police, Lohardaga having its office at P.O. & P.S. Lohardaga,
District Lohardaga.
15.Virendra Kumar, son of not known to the petitioner, presently
working as Clerk in the office of Superintendent of Police,
Lohardaga having its office at P.O. & P.S. Lohardaga, District
Lohardaga.
16.Vijendra Kumar Manglam, son of not known to the petitioner,
presently working as Clerk in the office of Superintendent of
4
Police, Khunti having its office at P.O. & P.S. Khunti, District
Khunti.
17.Uma Kant Prasad, son of not known to the petitioner, presently
working as Clerk in the office of Superintendent of Police, Khunti
having its office at P.O. & P.S. Khunti, District Khunti.
18.Avdhesh Kumar Thakur, son of not known to the petitioner,
presently working as Clerk in the office of Superintendent of
Police, Khunti having its office at P.O. & P.S. Khunti, District
Khunti.
19.Nitesh Kumar, son of not known to the petitioner, presently
working as Clerk in the office of Superintendent of Police, Khunti
having its office at P.O. & P.S. Khunti, District Khunti.
20.Pankaj Kumar, son of not known to the petitioner, presently
working as Clerk in the office of Superintendent of Police, Khunti
having its office at P.O. & P.S. Khunti, District Khunti.
21.Geeta Minz, daughter of not known to the petitioner, presently
working as Clerk in the office of Superintendent of Police, Khunti
having its office at P.O. & P.S. Khunti, District Khunti.
22.Kumari Swarnlata, daughter of not known to the petitioner,
presently working as Clerk in the office of Superintendent of
Police, Khunti having its office at P.O. & P.S. Khunti, District
Khunti. ... ... Respondents
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioners : Mr. Abhay Kumar Mishra, Advocate
: Mr. Arpan Mishra, Advocate
: Ms. Sonal Jaiswal, Advocate
For the Resp.-State : Mr. Rahul Saboo, Advocate
For the Private Respondents: Mr. Ajit Kumar, Senior Advocate
: Mr. Rajeev Ranjan Tiwary, Advocate
Mr. Ranjit Kumar Tiwari, Advocate
: Mr. Shiv Prasad, Advocate
---
24/10.10.2022 Heard Mr. Abhay Kumar Mishra, learned counsel appearing on
behalf of the petitioners along with Mr. Arpan Mishra, Advocate and
Ms. Sonal Jaiswal, Advocate.
2. Heard Mr. Rahul Saboo, learned counsel appearing on behalf of
the respondent - State.
3. Heard Mr. Ajit Kumar, learned Senior counsel appearing on
behalf of the private respondents along with Mr. Rajeev Ranjan
Tiwary, and Mr. Ranjit Kumar Tiwari, Advocates in W.P.(S).
No.6423 of 2010.
4. Heard Mr. Shiv Prasad, learned counsel appearing on behalf of
private respondent nos.5 to 8, 10 to 12, 14, 15 and 17 to 23 in W.P.(S).
No.6558 of 2010.
5. W.P.(S). No.6558 of 2010 has been filed for the following
reliefs:
"(a) For the issuance of an appropriate writ/writs,
order/orders, direction/directions in the nature of certiorari for
quashing the final result of Lower Division Clerks in Police
Department as published in the daily newspaper "Hindustan"
dated whereby and whereunder 19 persons have been finally
declared as selected for the post of Lower Division Clerk vide
Advertisement No. 01/2008 as the final result has been published
in complete violation of the Rules and Regulations and also in
complete violation of the Jharkhand Police Manual and also in
complete deviation of the terms and conditions of the
advertisement as published in the newspaper for appointment of
Lower Division Clerks.
And/or
(b) The petitioner further prays for the issuance of an
appropriate writ(s)/order(s)/direction(s) in the nature of certiorari
for quashing the merit list prepared by the Selection Committee
which was supplied to the petitioner under Right to Information
Act, whereby and whereunder the total marks as obtained by the
petitioners in Hindi and General Knowledge has been reduced
and also without any basis 100 marks has been added towards
typing test, which is in complete violation of Appendix-51 of the
Jharkhand Police Manual and also the same is in complete
violation of the advertisement and rules prescribed in the selection
process for appointment of Lower Division Clerk it has
categorically been prescribed that the appointment process will be
followed in terms of Appendix-51 of the Jharkhand Police Manual
and the merit obtained in Hindi and General Knowledge and also
after preparation of the merit list in terms of the marks obtained in
Hindi and General Knowledge, if the candidate will qualify in
typing test in terms of Appendix-51 of the Jharkhand Police
Manual a final merit list will be prepared but in complete go-bye
of the rules and regulations and in terms of the advertisement to
favour the persons of their own choice, merit list has been
prepared without following the aforesaid conditions.
And/Or
(c) The petitioners further prays that after quashing the
aforesaid final result, a fresh merit list be directed to be prepared
in accordance with Appendix-51 of the Jharkhand Police Manual
and also in accordance with the advertisement and thereby as the
petitioners have obtained more marks with respect to the last
selected candidate in general category they may be appointed on
the post of Lower Division Clerk.
And / or
(d)The petitioners further pray to declare the entire
action of the respondents in adopting a shortcut method to give
favour to the persons of their choice as it would apparent that to
appoint the persons of their choice they have given 100 marks in
typing test which is impossible and thereby the entire selection
process to the effect with the respect to the preparation of merit
list is wholly illegal and thus liable to be set aside."
6. W.P.(S). No. 6423 of 2010 has been filed for the following
reliefs:
"(i) An appropriate writ/order or direction commanding
upon the concerned respondents to show cause as to how and
under what authority they have allocated 200 marks towards
typing test in the selection process conducted pursuant to
Advertisement No.01/2008 for appointment of clerks in the
district police force of Ranchi, Gumla, Simdega, Lohardaga and
khunti under South Chhotanagpur Range, Ranchi without there
being any provision in the rules or any stipulation to that effect
in the newspaper;
(ii) For issuance of further writ for quashing of final
result published under Reference No. P.R. 33919 (Police) 10-11
pursuant to Advertisement No.01/2008 in Prabhat Khabar daily
hindi newspaper on 12/1/08 by the office of Deputy Inspector
General of Police, South Chhotanagpur Range, Ranchi;
(iii) Upon quashing of final result published under
Reference No. P.R. 33919 (Police) 10-11 in Prabhat Khabar
daily hindi news paper on 26/4/2010 issued by the office of
Deputy Inspector General of Police, South Chhotanagpur
Range, Ranchi, further writ or direction be issued commanding
upon the concerned respondents to consider the candidature of
petitioner and to issue appointment letter to him."
Arguments of the Petitioners.
7. Learned counsel for the petitioners, while assailing the
impugned selection process, has submitted that the advertisement as
contained in Annexure- 1 was to be in the line of Rule 863 (kha) read
with Appendix 51 of Jharkhand Police Manual but the same is not in
consonance. The learned counsel has also submitted that after issuance
of the advertisement, the respondent authorities have changed the rule
of the game.
8. While referring to the advertisement, learned counsel for the
petitioners submits that 100 marks was to be given for General Hindi
and 100 marks for General Knowledge, but no marks was allocated so
far as typing test is concerned. However, there was a qualifying mark
of 25 words per minute in Hindi typing and speed of 30 words per
minute in English was to be considered as additional qualification.
Learned counsel submits that the respondents, while publishing the
result, have allocated 100 marks for typing test although the same was
not contemplated in the advertisement. He has also submitted that as
per police manual, no marks could be allocated to typing test.
9. Learned counsels appearing for the petitioners further submit
that the respondents have taken the average marks obtained in General
Hindi and General Knowledge and thereby reduced the full marks
allocated to each subject i.e. General Hindi and General Knowledge to
50% i.e. 50 marks each which as per the advertisement is not
permissible. No reason is discernible for taking average of General
Hindi and General Knowledge (which was total of 200) and reducing
the total full marks from 200 to 100 marks only. Learned counsel has
referred to the result published and also the proceeding sheet dated
12.01.2008 just prior to publication of result which is at page 67 of
W.P.(S). No.6558 of 2010 and submits that the decision to do as
aforesaid is reflecting from the said proceedings.
10. The learned counsel has submitted that the entire selection is fit
to be set aside on account of aforesaid two illegalities committed by
the respondents not only while issuing the advertisement but also
while evaluating and publishing the result.
11. The learned counsel has also submitted that similar
recruitments were carried out in other districts and he has obtained
information under Right to Information Act which indicates that the
typing test was taken as qualifying only and no marks as such was
allocated for typing test.
12. The learned counsel for the petitioners has relied upon the
following judgments:
(i) 2006 (2) JCR 399 (Jhr) (Anil Kumar Vs. State of Jharkhand
and Ors.)
(ii) (2014) 5 SCC 774 (Bishnu Biswas and Ors. Vs Union of India
and Ors.)
(iii) AIR 2020 SC 2060 (Ramjit Singh Kardam and Ors. Vs.
Sanjeev Kumar and Ors.)
13. The learned counsel for the petitioners submits that under
similar circumstances, this Court as well as Hon'ble Supreme Court
has interfered with the selection process.
14. During the course of arguments, the learned counsel for the
petitioners has also referred to various earlier orders passed by this
court in this case and submits that the petitioners have demonstrated
vide affidavit dated 08.04.2022 that the merit position changes when
the actual marks are taken for General Hindi and General Knowledge.
Arguments of the Respondents.
15. Learned counsel appearing on behalf of the respondents, on the
other hand, while opposing the prayer of the petitioners has submitted
that no irregularity has been committed in publication of result. The
advertisement is not under challenge in the present proceedings. The
petitioners have participated in the selection process and ultimately
when they were not selected, they have challenged the publication of
result. The learned counsel has submitted that since the condition for
advertisement is not under challenge, it is not open to the petitioners to
say that the advertisement was not in consonance with Appendix 51 of
Jharkhand Police Manual. The learned counsel further submits that as
per the advertisement, the typing test had the qualifying speed of 25
words per minute and pursuant to order passed by this Court, the
records of the typing test conducted by the respondents has been
produced. He submits that for the purposes of typing test, a passage of
125 words was given for typing in five minutes and it was scaled to
total 100 marks and each correct word was allocated 0.8 marks and
consequently, if the candidate would have correctly typed the entire
passage, he would have scored 100 marks. He submits that the correct
typing was counted word wise and marks was accordingly given. He
has submitted that this process was uniformly applied to all the
persons and the method of evaluation of the candidate is within the
exclusive domain of the recruitment agency and typing by itself is a
field of expert, the expert has evaluated the candidates in a uniform
manner and therefore, no interference is called for under Article 226
of the Constitution of India.
16. Learned counsel has also submitted that as per the
advertisement, it is very clear that the final merit list was to be
prepared on the basis of the marks obtained in General Knowledge,
General Hindi and typing test. Although, no specific marks were
allocated for typing test in the advertisement, but the method for
evaluation was certainly to be adopted by the recruitment agency and
the method has been adopted which is a method devised by the experts
of the recruitment agency and therefore there is no fault in the
allocation of 100 marks for typing test and evaluation of the
candidates uniformly on that basis.
17. Learned counsels have also submitted that the information
which the petitioners have gathered with regard to recruitment process
in other districts, the petitioners have referred only to that of Chaibasa.
They submit that Chaibasa district is not covered by the advertisement
involved in the present case and the petitioners have not brought on
record the advertisement relating to Chaibasa for consideration by this
Court. Learned counsel submits that no incidence of discrepancy or
inconsistency has been brought on record by the petitioners while
comparing the districts which were covered under the recruitment
process pursuant to the advertisement involved in the present case.
18. Learned counsel has referred to judgment reported in (2015) 11
SCC 493 (Pradeep Kumar Rai and Ors. Vs. Dinesh Kumar Pandey
and Ors.) para 15 to 21 to submit that the petitioners having
participated in the proceedings cannot be permitted to challenge the
proceedings after having failed.
19. Learned counsel has also referred to the judgment passed by
Hon'ble Supreme Court reported in (1999) 1 SCC 729 (Union of
India and Ors. Vs. Kishorilal Bablani) para 6 to submit that opinion
of experts cannot be lightly interfered. The learned counsel has
referred to the judgment passed by Hon'ble Supreme Court reported in
(1990) 1 SCC 305 (Dalpat Abasaheb Solunke and Ors. Vs. Dr. B.S.
Mahajan and Ors.) para 12 to submit that the evaluation of the
candidates is within the domain of the expert body and their decision
should not be lightly interfered. Learned counsel has lastly referred to
judgment passed by Hon'ble Supreme Court reported in (2022) 1 SCC
294 (Mohd. Mustafa Vs. Union of India and Ors.) para 15 to 18 and
34 to 37 to submit that para 15 to 18 deals with scope of judicial
review of the action of other branches or levels of Government and it
is submitted that the decision of the expert body in the matter of
selection process does not call for any interference. He has also
referred to para 34 to 37 to submit that it has been held that the
incumbent having participated, cannot be permitted to challenge the
selection process after being declared unsuccessful.
20. Learned counsels have also referred to the fact that the private
respondents have been in service since 2010 and they have relied upon
the judgment passed by Hon'ble Supreme Court reported in (2013) 14
SCC 494 (Vikas Pratap Singh and Ors. Vs. State of Chhattisgarh
and Ors.) para 23 to 27 and also judgment reported in (2021) 5 SCC
424 (Anmol Kumar Tiwari and Ors. Vs. State of Jharkhand and
Ors.) (para 11) to submit that the private respondents having settled in
service for a long time, may not be disturbed after lapse of time.
Learned counsels submit that there has been no fault on the part of the
private respondents and no role as such has been assigned to the
private respondents in the matter of the selection process.
Rejoinder arguments of the petitioners.
21. In response, the Learned counsels for the petitioners have
submitted that the writ petitions were filed in 2010 and the petitioners
have taken appropriate steps at the earliest possible opportunity and
therefore merely because 10 or 12 years have elapsed from the date of
recruitment, the same may not be a ground not to interfere in the
selection process if otherwise this Court finds fault in the selection
process.
Findings of this Court.
22. Before proceeding, it would be relevant to refer to a few earlier
orders passed by this court in the present cases.
A. Order dated: 05.04.2022
1. Heard Mr. Abhay Kumar Mishra, learned counsel
appearing on behalf of the petitioners along with Mr. Arpan
Mishra, learned counsel for the petitioners.
2. Heard Mr. Ajit Kumar, learned Senior counsel appearing
on behalf of the private respondents along with Mr. Rajeev
Ranjan Tiwary, Advocate.
3. Nobody appears on behalf of the State.
4. The learned counsel for the petitioners submits that in the
entire selection process, the mandate of Rule 863(Kha)
Appendix 51 of the Police Manual has not been followed and
the allocation and the manner of marking has been changed
contrary to what has been prescribed in the advertisement. The
learned counsel submits that the 'typing' was only an eligibility
criteria, but the respondents have allocated hundred marks for
'typing' and added the same to the average of marks obtained
in General Knowledge and Hindi. He has referred to the merit
list prepared. The learned counsel submits that if the total
marks obtained in General Knowledge and Hindi, instead of
their average were to be taken into consideration, the merit list
would have changed. This submission has been made in
addition to the objection regarding allocation of marks in
'typing' test.
5. The learned counsel for the petitioners further submits
that arising out of the same advertisement, recruitment process
in other district particularly Saraikela Kharsawan was also
conducted and in the said district, no marks for 'typing' has
been allocated. He submits that the recruitment process in
Saraikela Kharsawan was in consonance with the
advertisement. Thus, in different districts, different method of
marking has been adopted.
6. At the request of this Court and for the interest of the
case, the learned counsel for the petitioners has undertaken to
provide a calculation chart by taking into consideration the
total marks obtained in Hindi and General Knowledge instead
of taking their average to figure out as to whether such
calculation will have any bearing on the merit list and also to
figure out the position of the present petitioners as compared to
those who have become successful.
7. Since nobody is appearing on behalf of the State in this
case, Mr. Rahul Saboo, Advocate who is a state counsel and
present in the Court is directed to take steps so that the
concerned counsel for the State appears for assisting this court
on the next date. Mr. Rahul Saboo, Advocate, has heard the
arguments, therefore he shall also brief the concerned counsel
regarding the points argued by the petitioner.
B. Order dated: 06.04.2022
1. Learned counsel for the parties are present.
2. Learned counsel appearing on behalf of the learned
Advocate General submits that file is to be transferred to some
other law officer and accordingly he seeks adjournment.
3. Learned counsel appearing on behalf of the petitioner
Mr. Abhay Mishra submits that he has prepared a chart
pursuant to the order passed yesterday and he further submits
that if the full marks obtained in the written examination is
taken into consideration for the purposes of preparing the
merit list, then the merit position would change. He submits
that he will bring on record the chart prepared by him so that
the respondents may also file their counter affidavit to that
effect.
4. Upon this, learned counsel for the respondents has
submitted that as per the advertisement, 50% marks is
required to be obtained and there is no condition that in each
subject 50% marks is required. Accordingly, he submits that
there is no impediment or violation of any rule in taking
average of the marks.
5. At the request of learned counsel for the parties, matter is
adjourned and is directed to be posted on 12.04.2022.
6. Let this matter be treated as part heard.
C. Order dated: 11.05.2022
1. Learned counsel for the respondents submit that they
have received instructions from their respective clients that they
would be relying upon the materials already on record and no
further affidavit is required to be filed from their end pursuant
to order dated 06.04.2022.
2. Counsel for the parties submit that the pleadings are
complete and the matter may be posted after ensuing summer
vacation.
3. The learned counsel for the petitioners submits that the
short synopsis of arguments, list of dates and judgement on
which they seek to rely upon, have been already been filed from
the side of the petitioners in W.P.(S) No. 6558 of 2010 vide
filing dated 01.04.2022. However, the same has not been filed
from the side of the respondents.
4. The respondents may file their respective short synopsis
of arguments, list of dates and the judgements on which they
seek to rely upon, by 06.06.2022.
D. Order dated: 28.06.2022
1. Learned counsel for the parties are present.
2. During the course of hearing of this case, it is found that
marks were allocated in the typing test and the minimum speed
for Hindi Typing was prescribed as 25 words per minute. It is
not clear as to how the respondents have arrived at marks for
typing test and what was the speed of typing for the persons who
had scored 100 marks in the typing test.
3. Accordingly, the respondent-State is directed to produce
the records of the selection process and explain to this Court as
to the method by which marks have been allocated for typing
test and added to the total marks.
23. In both the cases, the recruitment to the post of Lower Division
Clerk in the office under different districts of Jharkhand Police under
the Department of Home Affairs, Government of Jharkhand, Ranchi
pursuant to advertisement no. 01/2008 is under challenge. It is not in
dispute that the petitioners had participated in the selection process
and ultimately, they were declared unsuccessful in the final select list.
As per the prayer made in the writ petitions, the petitioners have
challenged the process adopted by the respondents in declaring the
final result and consequently, the declaration of the final result is
under challenge. As per the prayer made in the writ petitions,
apparently, the advertisement is not under challenge, rather the
petitioners are aggrieved by the selection of the private respondents
and are seeking a direction upon the respondents to prepare a fresh
select list upon quashing of impugned merit list/ select list.
Challenge to Advertisement
24. The learned counsel for the petitioners, while advancing his
argument, has assailed the selection process by submitting that the
advertisement as contained in Annexure- 1, is not in consonance and
in line with Rule 863(Kha) read with Appendix 51 of Jharkhand
Police Manual. Their grievance is that the typing test was only a
qualifying test and no marks or weightage could have been allocated
to typing test.
25. The respondents have raised serious objection in connection
with the challenge to the advertisement on the ground that the
advertisement has not been challenged by the petitioners in the present
proceedings and therefore, it is not open to the petitioners to challenge
the advertisement itself.
26. After hearing the learned counsel for the parties on the point of
challenge to advertisement, this Court is of the considered view that
the advertisement is not under challenge in the present proceedings,
rather, the petitioners are challenging the method of preparation of
final select list and they are also seeking a direction for preparation of
fresh select list.
27. In such circumstances, the argument of the petitioners
challenging the advertisement is not only beyond the prayer made in
the writ petitions, but is also in conflict with their prayer seeking a
direction upon the respondents to prepare the final select list pursuant
to the same advertisement in which the petitioners had also
participated and were finally not selected. Accordingly, the argument
of the petitioners regarding challenge to the advertisement is not
maintainable and hence, rejected.
Challenge to evaluation of candidates (allocation of 100 marks to
Hindi typing test) .
28. So far as the evaluation of the candidates is concerned, it is the
specific case of the petitioners that as per the advertisement 100 marks
was given each for General Hindi and General Knowledge, but no
marks were allocated so far as typing test is concerned. It is also their
case that there was a qualifying mark of 25 words per minute in Hindi
typing and no marks could be allocated to Hindi typing and added to
aggregate marks. Thus, the petitioners have challenged the allocation
of 100 marks to Hindi typing test.
29. From the perusal of the advertisement (Annexure-1), it has been
clearly stipulated that it would be compulsory to have Hindi typing at
the rate of 25 words per minute. So far as English typing is concerned,
it was clearly stipulated that speed of 30 words per minute will be
considered as additional qualification. The advertisement clearly
provides that the written examination for 100 marks will be taken for
General Hindi and written examination for 100 marks will be taken for
General Knowledge. The advertisement further stipulates that those
candidates who secure 50% or above marks in the written
examination, will be subjected to typing test. It has also been
stipulated in the advertisement that the marks obtained in written
examination will be added to the marks obtained in typing test and
thereafter, the final merit list will be prepared. Thus, the advertisement
clearly depicts written examination of total of 200 marks i.e. 100
marks each for General Hindi and General Knowledge; persons who
secure more than 50% marks in written examination would be
subjected to Hindi typing test and the final merit list will be prepared
after adding marks of the written examination and the Hindi typist
test.
30. The petitioners have challenged the allocation of 100 marks to
typing test and have submitted that the typing test was only of
qualifying nature and could not have been added to the written test
marks for preparation of final select list. They have also submitted that
no marks as such was allocated to typing test in the terms of
advertisement and consequently, allocation of 100 marks to typing test
is arbitrary and amounts to change of rule of game after
advertisement.
31. From the perusal of the advertisement, it is clear that the merit
list was to be prepared after adding the marks of the written
examination with that of the typing test. The respondents have filed
detailed counter-affidavit in the present case and have also produced
the typing test sheets before this Court. It has been found on the basis
of the arguments advanced by the respondents that the qualified
candidates were subjected to typing 125 words in five minutes so that
the minimum speed requirement for Hindi Typing at the rate of 25
words per minute could be considered. The candidates had typed the
full passage, but the errors in typing were required to be evaluated by
allocation of marks which could be added to the written test marks.
Consequently, in order to translate the efficiency in typing into marks,
the respondents allocated 0.8 marks for each word correctly typed and
thus, any person who could type out 125 words correctly in five
minutes, he would have obtained 100 marks and for error of typing of
each word, the total marks obtained would get reduced by 0.80 marks.
32. This Court is of the considered view that the advertisement has
clearly contemplated addition of marks of typing test to the marks
obtained in written examination and in order to do so, marks was
required to be allocated for typing test. The aforesaid method was
uniformly adopted for all the participants. The evaluation of typing
test is itself a technical matter. The petitioners have not been able to
point out any arbitrariness in the aforesaid method adopted by the
respondents to evaluate the typing test and the only grievance is that
no marks could have been allocated to typing test as no such
allocation of marks was there in the advertisement.
33. This Court is also of the considered view that in absence of
evaluation of typing test in terms of marks, the same could not have
been added to the marks obtained in the two written tests. The
evaluation of typing test is of a technical character and no illegality or
arbitrariness as such has been pointed out by the petitioners in
adopting the aforesaid procedure. A bald statement has been made in
the writ petitions that allocation of marks to typing test was done to
select the favourites of the respondents, but no specific instance has
been given to substantiate such a plea. During the course of arguments
also, no such instance was cited showing any favouritism to any of the
candidates. As a cumulative effect of the aforesaid findings, the
arguments of the petitioners on the point of evaluation of typing test
and allocation of marks to typing test is devoid of any merits, hence
rejected.
Challenge to evaluation of candidates (allocation of average marks
to written examinations of Hindi and General Knowledge, thereby
reducing the total allocated marks from 200 to 100. )
34. The further grievance of the petitioners is that while publishing
the result, the respondents have arbitrarily and illegally taken average
marks obtained in two subjects, namely, General Hindi and General
Knowledge and thereby, reducing the total of marks for General Hindi
and General Knowledge from 200 to 100. Consequently, they have
reduced the marks of General Hindi and General Knowledge to 50
each. It is the case of the petitioners that such course was not available
to the respondents as specific marks was allocated to each subject as
per the advertisement.
35. As recorded in the order dated 06.04.2022, it was submitted by
the learned counsel appearing on behalf of the petitioners that he has
prepared a chart taking full marks obtained in written examinations
and upon giving full marks, the merit position changes. The chart
taking full marks with respect to the written examinations has been
filed by the petitioners vide affidavit dated 08.04.2022 and it has been
submitted by referring to the chart that if the full marks with regard to
written examination of each subject is taken into consideration, then
the merit position of the petitioner no. 4 in W.P.(S) No. 6558 of 2010
would change. As per the fresh chart, petitioner no. 4 has obtained
total marks of 236.50 (67.50+85+84= 236.50) and his rank is 7th
amongst all selected candidates which is greater than the selected
candidate namely Nitesh Kumar whose total marks comes to 226.90
(53.50+75+98.4 = 226.9), but the petitioner no. 4 in W.P.(S) No. 6558
of 2010 has not been selected due to the process adopted by the
respondents.
36. The respondents have not filed any counter-affidavit to the
affidavit dated 08.04.2022 in spite of having granted opportunity to do
so and ultimately, vide order dated 11.05.2022, the learned counsel for
the respondents had submitted that they have received instructions
from their respective clients that they would be relying upon the
materials already on record and no further affidavit is required to be
filed at their end. Accordingly, it was submitted by the learned counsel
for the parties on 11.05.2022 that the pleadings are complete and it
was prayed that the matter be posted after ensuing summer vacation.
Consequently, the matter was finally heard.
37. In the meeting conducted by the officers of the State
respondents as contained in Annexure-6 to W.P.(S) No. 6558 of 2010,
the matter regarding declaration of result was considered. As per the
said proceedings, it was considered that in terms of para 4(2) of
advertisement no. 1/2008, marks obtained in written examination is to
be added to the marks obtained in typing test and the written
examination of General Hindi and General Knowledge of total of 200
marks was conducted in terms of the advertisement. It was decided
that in order to keep the total marks at 200, the marks allocated in
written examination of both the papers be reduced from 200 to 100 by
taking average of marks obtained in two written papers and so far as
the typing test is concerned, it was decided to allocate 100 marks for
nil error in typing test so that the total marks remained as 200 i.e. 100
for written examinations of two papers and 100 for typing test.
38. Consequently, the merit list was prepared by adding the average
marks of two papers of written test and marks obtained in typing test.
The merit list was also a part of the said proceedings which was
ultimately published. The name of the petitioner nos. 1, 2, 3 and 4 in
in W.P.(S) No. 6558 of 2010 were at Sl. Nos. 35, 44, 28 and 15
respectively. The names of all the petitioners were much below in the
merit list. The finally selected candidates were total 19 in number and
so far as the petitioner no. 4 in W.P.(S) No. 6558 of 2010 is
concerned, he was amongst the general category candidates and
ultimately, he was also not selected from amongst his category.
39. It further appears that one Nitesh Kumar whose merit position
was at 12, was also a general category candidate, but he was above the
petitioner no. 4. As per the merit list, which was prepared, the
following total marks was allocated:
Sl No. Roll Name Category Typing Average Total
Merit No. Marks marks of marks
position written
examination
35 1765 Neeraj General 89.6 64.63 154.23
Nayan
Choudhary
44 1239 Dharmendra General 78.4 73.38 151.78
Mohan
Mishra
28 1768 Baby General 87.2 68.88 156.08
Kumari
15 1767 Shankar General 84 76.25 160.25
Kumar
12 1145 Nitesh General 98.4 64.25 162.65
Kumar
16 790 Manoranjan General 89.6 70.25 159.85
Kumar
40. As per the chart annexed by the petitioners through the
supplementary-affidavit dated 08.04.2022, if the actual marks
obtained in the written examination is added to the marks obtained in
typing test, the total marks obtained by the petitioner no. 4 would be
236.5 and that of one Nitesh Kumar would be 226.9 both being under
the General Category and thus, the total marks of the petitioner no. 4
would exceed as compared to that of Nitesh Kumar. However, in case
where average marks of Hindi and General Knowledge keeping the
total of the two as 100 is taken into consideration, the petitioner no. 4
gets 160.25 marks and Nitesh Kumar gets 162.65 i.e. the position
higher in rank than that of petitioner no. 4.
41. The entire position can be well explained by an illustration as
follows:-
Marks in Marks in Total in Average in Typing test Total
paper 1 paper 2 written written 3+5
out of 100 out of 100 exam exam And
4+5
Thus, the total marks as well as merit position of A and B is the same
when their actual score is taken. However, when average of marks in
written exam is taken into consideration the merit position changes,
the total marks of B come to 145 and that of A comes to 150. The
advertisement contemplates addition of marks obtained in written
exams to the marks obtained in typing test and the result has been
published by adding average marks of two written exams to marks
obtained in typing test which is a material deviation from the manner
of marking and preparation of merit list as clearly mentioned in the
advertisement resulting in deviation in the merit position. Such
deviation is completely irrational and has adverse impact on more
meritorious candidates. Such action of taking average marks and
thereby reducing the total marks of two papers to 100 instead of 200 is
also contrary to Rule 863(Kha) read with Appendix 51 of Jharkhand
Police Manual which clearly provides that written exam for General
Hindi and General Knowledge will be taken for 100 marks each.
42. In the judgement passed by the Hon'ble Supreme court in the
case of "Mohd. Mustafa v. Union of India" reported in (2022) 1 SCC
294 it has been held as under:-
"15. Judicial review may be defined as a Court's power to
review the actions of other branches or levels of Government;
especially the Court's power to invalidate legislative and
executive actions as being unconstitutional. Power of judicial
review is within the domain of the judiciary to determine the
legality of administrative action and the validity of legislations
and it aims to protect citizens from abuse and misuse of power
by any branch of the State. The power of judicial review is a
basic feature of the Constitution of India. Judicial review has
certain inherent limitations. However, it is suited more for
adjudication of disputes other than for performing
administrative functions. It is for the executive to administer
law and the function of the judiciary is to ensure that the
Government carries out its duties in accordance with the
provisions of the Constitution.
16. The grounds on which administrative action is subject to
judicial review are illegality, irrationality and procedural
impropriety. The following observations made by Lord Diplock
in Council of Civil Service Unions v. Minister for Civil Service
are apt: (AC pp. 410-11)
"By "illegality" as a ground for judicial review I mean
that the decision-maker must understand correctly the
law that regulates his decision-making power and must
give effect to it. Whether he has or not is par excellence a
justiciable question to be decided, in the event of dispute,
by those persons, the Judges, by whom the judicial power
of the State is exercisable.
By "irrationality" I mean what can by now be succinctly
referred to as "Wednesbury unreasonableness". It
applies to a decision which is so outrageous in its
defiance of logic or of accepted moral standards that no
sensible person who had applied his mind to the question
to be decided could have arrived at it. Whether a decision
falls within this category is a question that Judges by
their training and experience should be well equipped to
answer, or else there would be something badly wrong
with our judicial system. To justify the court's exercise of
this role, resort I think is today no longer needed to
Viscount Radcliffe's ingenious explanation in Edwards v.
Bairstow, of irrationality as a ground for a court's
reversal of a decision by ascribing it to an inferred
though unidentifiable mistake of law by the decision-
maker. "Irrationality" by now can stand on its own feet
as an accepted ground on which a decision may be
attacked by judicial review.
I have described the third head as "procedural
impropriety" rather than failure to observe basic rules of
natural justice or failure to act with procedural fairness
towards the person who will be affected by the decision.
This is because susceptibility to judicial review under this
head covers also failure by an Administrative Tribunal to
observe procedural rules that are expressly laid down in
the legislative instrument by which its jurisdiction is
conferred, even where such failure does not involve any
denial of natural justice. But the instant case is not
concerned with the proceedings of an Administrative
Tribunal at all."
17. The discretionary power vested in an administrative
authority is not absolute and unfettered. In Wednesbury, Lord
Greene was of the opinion that discretion must be exercised
reasonably. Explaining the concept of unreasonableness, Lord
Greene stated that a person entrusted with discretion must direct
himself properly in law and that he must call his own attention
to the matter which he is bound to consider. He observed that
the authority must exclude from his consideration matters which
are irrelevant to the matter he is to consider. Lord Greene
concluded that if an authority does not obey aforementioned
rules, he may truly be said, and often is said, to be acting
unreasonably.
18. Conditions prompted by extraneous or irrelevant
considerations are unreasonable and liable to be set aside by
Courts in exercise of its power under judicial review. (See State
of U.P. v. Raja Ram Jaiswal, Sheonandan Paswan v. State of
Bihar, Sant Raj v. O.P. Singla, Padfield v. Minister of
Agriculture, Fisheries & Food.) A decision can be arrived at by
an authority after considering all relevant factors. If the
discretionary power has been exercised in disregard of relevant
consideration, the Court will normally hold the action bad in
law. Relevant, germane and valid considerations cannot be
ignored or overlooked by an executive authority while taking a
decision. It is trite law that Courts in exercise of power under
judicial review do not interfere with selections made by expert
bodies by reassessing comparative merits of the candidates.
Interference with selections is restricted to decisions vitiated by
bias, mala fides and contrary to statutory provisions. (See
Dalpat Abasaheb Solunke v. B.S. Mahajan, Badrinath v. State
of T.N., National Institute of Mental Health & Neuro Sciences v.
K. Kalyana Raman, I.P.S. Dewan v. Union of India, UPSC v.
Hiranyalal Dev, M.V. Thimmaiah v. UPSC and UPSC v. M.
Sathiya Priya.)"
43. Thus, this Court finds that when average of marks obtained in
General Hindi and General Knowledge is taken into consideration,
keeping the total marks of both the subjects taken together as 100, the
merit position changes, and is different from the situation when the
actual marks obtained in both the papers in written examination of 100
marks each, is taken into consideration. The advertisement clearly
provides that the total marks obtained in the written examination
would be added to the marks obtained in the typing test. Therefore,
there was no occasion for the respondents to take the average marks of
the two papers of written test keeping the total of both at 100 and then
adding it to the marks obtained in typing test. There was neither any
compulsion nor any requirement nor any justification on the part of
the respondents to cap the total marks to 200 while taking into account
the written examination of two papers and the typing test. Such act on
the part of the respondents in taking average marks of the two papers
of written test and then adding it to the marks obtained in typing test
has direct impact on the merit list as demonstrated by the petitioners
vide supplementary-affidavit dated 08.04.2022 to which no reply has
been filed by the respondents in spite of opportunity granted for the
same. Thus, the process adopted by the respondents in preparation of
the final select list by reducing the total marks of written examination
from 200 to 100 is ex-facie illegal, irrational and suffers from patent
material irregularity and serious procedural impropriety and also
contrary to Rule 863(Kha) read with Appendix 51 of Jharkhand Police
Manual, which cannot be sustained in the eyes of law and calls for
interference under Article 226 of the constitution of India.
Plea of estoppel raised by the Respondents.
44. So far as the plea of estoppel raised by the respondents by
stating that the petitioners having participated in the selection process
cannot be permitted to challenge the same after having failed, is
concerned, such plea has no merits under the facts and circumstances
of this case. The petitioners have challenged the manner of preparation
of the merit list by stating that the same is contrary to Rule 863(Kha)
read with Appendix 51 of Jharkhand Police Manual and contrary to
the advertisement also and rules of the game have been altered after
commencement of the selection process and at the time of preparation
of the final select list. The petitioners have taken steps to challenge the
select list at the earliest possible opportunity and there has been no
delay and laches on their part and they cannot be held responsible for
the fact that the writ petitions remained pending before this court since
2010.
45. As a cumulative effect of the aforesaid findings, the merit list
so prepared, is set-aside and the respondents are directed to prepare
fresh merit list on the basis of the actual marks obtained in each of the
papers in written examination adding to the marks obtained in typing
test and proceed accordingly.
46. These writ petitions are disposed of in the aforesaid terms.
47. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.)
Saurav/Pankaj
