Jharkhand High Court
Gyan Gautam vs The State Of Jharkhand on 17 April, 2023
1 W.P.(S) No.4073 of 2021 &
W.P.(S) No.3145 of 2021
IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(S) No.4073 of 2021
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1.Gyan Gautam, aged about 36 years, S/o Sri Permeshwar Mandal, r/o
Village Ghormara, P.O. Ghormara, P.S. Mohanpur, District Deoghar (PIN-
814120), Jharkhand
2.Chandra Kishore Yadav, aged about 34 years, s/o Chaman Yadav, R/o
Village Aragaro, P.O. Chandwara, P.S. Chandwara, District Koderma, PIN
825409, Jharkhand
3.Bablu Choudhary, aged about 31 years, S/o Ram Prakash Choudhary,
R/o Village Gouri Karma, P.O. Gouria Karma, P.S.-Barhi, District -
Hazaribagh (Pin- 825 405) .... Petitioners
-- Versus --
1.The State of Jharkhand, through the Chief Secretary, Government of
Jharkhand, having office at Project Building, P.O. Dhurwa, P.S.
Jagarnathpur, District Ranchi
2.Principal Secretary, Department of Personnel, Administrative Reforms
and Rajbhasha, having office at Project Building, P.O. Dhurwa, P.S.
Jagarnathpur, District Ranchi
3.Home Secretary, Department of Home, having office at Project Building,
P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi
4.The Chairman, Jharkhand Public Service Commission, having office at
Circular Road, P.O. and P.S. Lalpur, District-Ranchi
5.The Secretary, Jharkhand Public Service Commission, having office at
Circular Road, P.O. and P.S. Lalpur, District Ranchi
6.Controller of Examination, Jharkhand Public Service Commission, having
office at Circular Road, P.O. and P.S. Lalpur, District Ranchi
.... Respondents
With
W.P.(S) No.3145 of 2021
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1.Rishi Chandan, aged about 36 years, son of Sri Sanjeev Kumar Singh,
resident of M.I.G. /D-24, Harmu Housing Colony, Ranchi, P.O. Harmu, P.S.
Argora, District Ranchi (Pin -834002) Jharkhand
2.Aman Kumar Rahul, aged about 31 years son of Sri Nand Kishore Ram,
resident of behind Sati Mandir, Dhobi Mohalla, Moti Street, Ratu Road,
P.O.G.P.O., Ranchi and P.S. Sukhdeo Nagar, District Ranchi Pin-834001,
Jharkhand
3.Harish Dubey, aged about 31 years, son of Sri Ram Daras Dubey,
resident of Sainik Colony, Booty More, P.O. Booty P.S. Sadar, District Ranchi
(Pin-835217) Jharkhand
4.Shashi Shekhar, aged about 31 years, son of Sri Krishna Prasad Singh,
resident of C/o Sri Krishna Prasad Singh, Village Barwadih, P.O. and P.S.
Mandro, District Giridih Pin-815314, Jharkhand
2 W.P.(S) No.4073 of 2021 &
W.P.(S) No.3145 of 2021
5.Digambar Oraon, aged about 33 years, son of Dr. Birsa Oraon, resident
of House No.52, Sadma Hochai, Sadma, P.O. and P.S. Ormanjhi, District
Ranchi (Pin 835219)
6.Ganesh Prasad, aged about 34 years, son of Sri Bhuneshwar Thakur,
resident of New Colony, Haider Ali Road, Kokar, PO Kokar, P.S Sadar,
District Ranchi, Pin 834001, Jharkhand
7.Kiran Dhan, aged about 35 years wife of Sri Ajay Tirkey, resident of
village Piska Nagri, Oraon Toli, P.O. Nagri, P.S. Nagri, District Ranchi Pin-
835303
8.Rohan Thakur, aged about 33 years, son of Rameshwar Thakur, resident
of Morabadi, Opp. Tagore Hill, PO and p.S. Bariatu District Ranchi, Pin
834001. .... Petitioners
-- Versus --
1.The State of Jharkhand, through the Chief Secretary, Government of
Jharkhand, having office at Project Building, P.O. Dhurwa, P.S.
Jagarnathpur, District Ranchi
2.Principal Secretary, Department of Personnel, Administrative Reforms
and Rajbhasha, having office at Project Building P.O. Dhurwa, P.S.
Jagarnathpur, District Ranchi
3.Home Secretary, Department of Home, having office at Project Building,
P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi
4.The Chairman, Jharkhand Public Service Commission, having office at
Circular Road, P.O. and P.S. Lalpur, District-Ranchi
5.The Secretary, Jharkhand Public Service Commission, having office at
Circular Road, P.O. and P.S. Lalpur, District Ranchi
6.Controller of Examination, Jharkhand Public Service Commission, having
office at Circular Road, P.O. and P.S. Lalpur, District Ranchi
.... Respondents
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CORAM: MR. S. K. MISHRA, C. J.
MR. SANJAY KUMAR DWIVEDI, J.
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For the Petitioners :- Mr. Rishi Chandan, In person
Mr. Sanjay Prasad, Advocate
For the State :- ---
For the J.P.S.C. :- Mr. Sanjoy Piprawal, Advocate
Mr. Abhay Prakash, Advocate
----
12/17.04.2023 Upon hearing the learned counsel, the Court made the
following order, (Per S. K. Dwivedi, J.) :-
A coordinate Bench of this Court received a letter dated
22.2.2022 sent by the District Bar Association, Koderma jointly signed by
the President and the General Secretary of the District Bar Association,
Koderma which was brought to the notice of the learned Single Judge
wherein it was stated that there was only one Public Prosecutor who was
W.P.(S) No.3145 of 2021
catering to the four Sessions Court and the said Public Prosecutor
superannuated on 31.12.2021, hence then there was no Public
Prosecutor to cater to the Sessions Court in the District of Koderma and
in that view of the matter the learned Single Judge has treated that letter
as Public Interest Litigation and directed to place it before the Hon'ble
The Chief Justice and that is how W.P.(PIL) No.869 of 2020 was
registered. Since the Division Bench of this Court was in seisin of the
matter related to the appointment of the Assistant Public Prosecutor a
number of writ petitions were referred by the learned Single Judge
before the Division Bench and how all those petitions have been heard
together. A number of petition was decided by the judgment dated
30.11.2022 passed in Court in its Own Motion versus The State of
Jharkhand in W.P.(PIL) No.3515 of 2021 along with other writ petitions
referred by the learned Single Judge. These two petitions are also on the
Board and on request of learned counsel appearing for the petitioners
these two matters were detached from the said cases which has been
decided by the judgment dated 30.11.2022 and that is how these two
petitions have been heard today.
2. In W.P.(S) No.4073 of 2021 the prayer is made to cancel the
result of main examination with regard to appointment of the Assistant
Public Prosecutor held against the advertisement no.3/18 and re-publish
the same in accordance with the terms and conditions as well as the
provisions to conduct the examination provided under the advertisement
no.3/2018 issued by the Jharkhand Public Service Commission. The
prayer is also made for direction upon the respondent no.4 and 5 to not
change the policy or the terms and condition for conducting the
examination and during the period the process of recruitment was
initiated. The prayer is also made to reduce the cut-off marks in regional
languages and re-fix the same in parallel to the other compulsory
W.P.(S) No.3145 of 2021
subjects.
3. In W.P.(S) No.3145 of 2021 the prayer is made for
commanding upon the respondents to declare the result of written test of
Assistant Public Prosecutor strictly in terms of Clause 9(9) of
advertisement no.3/2018. The further prayer is made for quashing of the
part of the advertisement issued by advertisement no.3/2018 by the
Jharkhand Public Service Commission to the extent under Clause (8) of
the advertisement. The minimum qualifying passing marks assigned for
regional language is not inconsonance with the law since for minimum
qualifying marks in other two compulsory subjects mainly Hindi and
English is 30.
4. Heard Mr. Rishi Chandan, the petitioner appearing in person
and Mr. Sanjay Prasad, the learned counsel appearing on behalf of the
petitioners, Mr. Sanjoy Piprawal and Mr. Abhay Prakash, the learned
counsels appearing on behalf of the respondent Jharkhand Public Service
Commission. On repeated call, nobody has responded on behalf of the
respondent State.
5. The petitioner appearing in person orally submits that the
age relaxation may kindly be allowed in favour of the petitioners in the
future advertisement for such post.
6. The learned counsel appearing on behalf of the petitioner in
W.P.(S) No.4073 of 2021 submits that the advertisement no.3 of 2018 for
examination and recruitment of Jharkhand Assistant Public Prosecutor
was published. The petitioner has applied. He submits that the policy of
giving the benefit to the local candidates of Jharkhand by introducing
regional language such as Khortha, Nagpuria, Panchpargania, Kurmaliat
were introduced for the first time. He submits that from the result of
main examination only 13 candidates have qualified for interview against
ST category against 42 seats which should have been atleast 126. He
W.P.(S) No.3145 of 2021
submits that it leads to a serious question that the locals do not know
local language and the said result has been published in contravention of
examination process. He further submits that the selection criteria
whereas the minimum qualifying marks of Hindi, English and G.K. is 30
% but regional language require for the 40% to pass and such action is
wholly illegal, arbitrary and unconstitutional. On these grounds he
submits that the entire result may kindly be cancelled and the petitioner
has already applied and he is entitled for the selection.
7. The petitioner appearing in person in W.P.(S) No.3145 of
2021 also taken the ground of fixing 40 % marks in the regional
language viz-a-viz qualifying marks in the compulsory subjects is only to
the effect 30%. Thus, he has also adopted the argument of the learned
counsel for the petitioner appearing in W.P.(S) No.4073 of 2021 so far as
these points are concerned. He further submits that 157 candidates have
been selected against 73 seats in general category which should have
been around 219 and only 8 candidates have been selected in ST
category against the 16 seats which should have been around 48 and 10
candidates have been selected in BC-I category against 7 seats which
should have been around 21 and only 6 candidates have been selected in
B.C-II category against 5 seats which should have been around 15
candidates. He submits that the ratio is not proportionate and more
candidates were required to be qualified and on these grounds the entire
process is required to be rectified and on these grounds he submits that
the entire process is bad in law. On these grounds he submits that he is
entitled for selection.
8. On the other hand, Mr. Piprawal and Mr. Abhay Prakash the
learned counsels appearing for the Jharkhand Public Service Commission
submits that the interview of the candidates were completed and other
necessary steps were taken by the Commission before publishing the
W.P.(S) No.3145 of 2021
final result. However, the Department of Home, Prison and Disaster
Management Government of Jharkhand vide its letter no.4596 dated
13.12.2021 requested the Jharkhand Public Service Commission to return
the requisition for the post of Assistant Public Prosecutor in original to
the Department and in view of that, the Commission by letter no.223
dated 20.01.2022 returned the original requisition for the post of
Assistant Public Prosecutor to the Department of Home, Prison and
Disaster Management, Government of Jharkhand. He submits that the
said advertisement was cancelled. He submits that in the counter
affidavit filed by the JPSC, it has been stated that the result of the main
examination was declared in terms of the condition as mentioned in the
advertisement. No condition or terms of the examination has been
changed during the amidst of the examination process. He submits that
the minimum marks to be obtained in regional language paper was based
on the decision of the concerned administrative department and the
Commission had no role for the said decision and he submits that in view
of paragraph 19 of the writ petition the Jharkhand Prosecution Service
Rules 2011 its subsequent amendment categorically provides for passing
minimum qualifying marks in the regional language. On these grounds,
he submits that there is no illegality in fixing of minimum marks with
regard to the regional languages. He further submits that the petitioner
has already participated in the examination without any objection to any
term and conditions of the advertisement no.3/2018. On these grounds,
he submits that there is no merit in the writ petition. He further submits
that in light of the judgment dated 30.11.2022 passed in W.P.(PIL)
No.3515 of 2021 and Government decision on the result pursuant to
advertisement no.03/2018 have already been published.
9. In view of the above submission of the learned counsel
appearing on behalf of the parties we have gone through the materials
W.P.(S) No.3145 of 2021
on record. We have discussed hereinabove about the judgment dated
30.11.2022 passed in W.P.(PIL) and another analogus cases. By the said
judgment, the Division Bench considering that the process has already
been completed and only result is required to be published and due to
Covid-19 delay has occurred which has also been accepted in the counter
affidavit of the JPSC and particularly considering that the dispensation of
criminal justice system is on the verge of collapse in the State of
Jharkhand due to non-appointment of Assistant Public Prosecutor, the
impugned letter dated 21.01.2022 and order dated 13.12.2021 was
quashed and the respondent State and the respondent JPSC were
directed to complete the process of appointment pursuant to
advertisement no.3 of 2018 within a period of two months from the date
of receipt/production of the copy of that order. We have been informed
by the learned counsel appearing for the JPSC that the said judgment of
the Division Bench has attained finality and nobody has challenged that
order before the Apex Court. In that view of the matter, we find that no
case of cancellation of the examination is made out as prayed in the writ
petition particularly that when no cogent reason has been brought before
us for cancellation of the examination. With regard to the lessor number
of the candidates appointed the Division Bench of this Court in Writ
Petition (PIL) in paragraph no.35 has held as under:
"35. The contention of the learned counsel for the
respondent State that sufficient numbers of
candidates have not qualified is not acceptable. It is
settled that if the candidates, who have qualified in
the examination only can be allowed to be appointed
and on that ground that sufficient number of
candidates have not qualified, the process cannot be
allowed to be withdrawn. The competent authority
completely misdirected itself in taking such an
extreme and unreasonable decision of cancelling the
entire selection, is wholly unwarranted and
unnecessary even on the factual foundation too and
entirely in excess of the nature and gravity of what
W.P.(S) No.3145 of 2021
was at stake, thereby virtually rendering such decision
to be irrational."
10. Thus, contention of the petitioners with regard to
appointment of the lesser number of the candidates in particular
category is not accepted by us. The petitioners have already appeared in
the said examination and they are now harping on to change of certain
condition of the said advertisement which is not acceptable to us as it is
well settled that once the candidate has appeared in the examination and
thereafter has challenged the condition of the advertisement the same is
fit to be rejected. A reference may be made to the case of Nitesh Kumar
Pandey versus State of Madhya Pradesh, (2020) 4 SCC 70. Paragraph
no.14 of the said judgment is quoted below:
"14. The learned Senior Advocate for the appellants
while contending that the writ petitioners having
participated in the computer efficiency test are estopped
from raising any grievance subsequently has placed strong
reliance on the decision of the Supreme Court in Ashok
Kumar v. State of Bihar [Ashok Kumar v. State of Bihar,
(2017) 4 SCC 357 : (2017) 1 SCC (L&S) 822] wherein it is held
as hereunder : (SCC p. 363, para 13)
"13. The law on the subject has been crystallised in
several decisions of this Court. In Chandra Prakash
Tiwari v. Shakuntala Shukla [Chandra Prakash
Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127 : 2002
SCC (L&S) 830] , this Court laid down the principle that
when a candidate appears at an examination without
objection and is subsequently found to be not
successful, a challenge to the process is precluded. The
question of entertaining a petition challenging an
examination would not arise where a candidate has
appeared and participated. He or she cannot
subsequently turn around and contend that the process
was unfair or that there was a lacuna therein, merely
because the result is not palatable. In Union of
India v. S. Vinodh Kumar [Union of India v. S. Vinodh
Kumar, (2007) 8 SCC 100 : (2007) 2 SCC (L&S) 792] , this
Court held that : (SCC p. 107, para 18)
'18. It is also well settled that those candidates who
had taken part in the selection process knowing fully
well the procedure laid down therein were not entitled
W.P.(S) No.3145 of 2021
to question the same. (See Munindra Kumar v. Rajiv
Govil [Munindra Kumar v. Rajiv Govil, (1991) 3 SCC 368
: 1991 SCC (L&S) 1052] and Rashmi Mishra v. M.P.
Public Service Commission [Rashmi Mishra v. M.P.
Public Service Commission, (2006) 12 SCC 724 : (2007) 2
SCC (L&S) 345] .)'"
In that light it is further contended that the Supreme
Court in Subhash Chandra v. Delhi Subordinate Services
Selection Board [Subhash Chandra v. Delhi Subordinate
Services Selection Board, (2009) 15 SCC 458 : (2010) 2
SCC (L&S) 147] has held that a decision rendered in
ignorance of a binding precedent will have to be held as
a decision rendered per incuriam."
11. So far as the prayer of the petitioner appearing in person
for relaxation of age in future examination is concerned, that can be only
if the Court comes to the conclusion that the decision of the State
Government suffers from malice and based upon such finding the said
order can be passed in appropriate cases. Reference may be made to the
case of Rajasthan Public Service Commission versus Smt. Anand Kunwar
and Others, 1995 (3) LKL 192. The relevant passage therefrom is
extracted and quoted hereinbelow:
"3. 23 are of the view that the High Court fell into
patent error bordering on perversity in issuing the
mandamus on the reasoning quoted above. It is settled
proposition of law that the eligibility of a candidate has
to be determined on the basis of the terms and
conditions of the advertisement in response to which
the candidate applies. There is nothing on the record to
show that the State Government was in any manner
negligent or at fault in not making the direct
recruitment during the period 1983-89. Be that as it
may the High Court was not justified in taking the clock
back to the period when unfilled vacancies were
existing and holding that since the respondent was
eligible on the date when vacancies fell vacant, she
continues to be so till the time the vacancies are filled.
Due to inaction on the part of the State Government in
W.P.(S) No.3145 of 2021
not filling the posts year wise, the respondent cannot
get a right to participate in the selection despite being
over-aged."
12. Thus, it has been decided in the case as aforesaid that
passing direction for relaxation in age by the High Court sitting under
Article 226 of the Constitution of India would be incorrect even in a case
where due to inaction of the State the vacancies could not be filled up.
13. In view of the discussion made hereinabove, we are of the
view that the writ petitioners have failed to establish any case of malice
on the part of the State Government and in that view of the matter, we
are not inclined to pass any order so far as the age relaxation is
concerned.
14. The result has already been published pursuant to the
judgment passed in the Writ Petition (PIL) as we have discussed
hereinabove. The grounds taken herein for appointment are fit to be
rejected for the reason as stated hereinabove, and accordingly, we
dismiss the instant writ petitions.
15. However, the petitioners are at liberty to apply in the next
advertisement for the post of Assistant Public Prosecutor subject to
fulfillment of the terms and conditions of that advertisement. Apart from
that, we have not given any relaxation in favour of the petitioners.
( Sanjaya Kumar Mishra, C. J.)
( Sanjay Kumar Dwivedi, J.)
SI/,,
