Dilip Kumar Thakur vs The State Of Jharkhand ...
2023 Latest Caselaw 3190 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
         W.P.(S) No. 2379 of 2014

Dilip Kumar Thakur               ...  ...    ...   Petitioner
                         Versus
1. The State of Jharkhand represented through Secretary, Home
   Department, Ranchi
2. Director General of Police, Govt. of Jharkhand, Ranchi
3. Superintendent of Police-cum-Chairman, Police Selection Board,
   Hazaribagh
4. Superintendent of Police, Hazaribag
                                      ...      ...    ...     Respondents
                         ---------
CORAM:         SRI SANJAYA KUMAR MISHRA, C.J.
                    SRI ANANDA SEN, J.
                         ---------
For the Petitioner:      Mr. Pankaj Shrivastava, Advocate
                         Mr. Ravi, Advocate
For the Respondents: Mr. Devesh Krishna, S.C.(Mines)-III
                         Mr. Nitesh Kumar, A.C. to S.C.(Mines)-III
                         ---------

15/Dated: 28.08.2023

      Upon hearing the learned counsel for the parties, this Court

passed the following, (Per, Sanjaya Kumar Mishra, C.J.)

                    ORDER

1. The petitioner being an applicant for selection and appointment

as a Constable in the Police Department of Hazaribagh has filed this

writ application with a prayer for quashing Memo No. 775/Ra.Ka.

dated 22.02.2013 annexed as Annexure-7 to the writ application,

issued by the Superintendent of Police, Hazaribagh on the ground

that this is ultra vires to the constitutional scheme of equality and

fundamental rights guaranteed under Article 14, 15 and 16 of the

Constitution of India and also right to life under Article 21 of the

Constitution of India.

2. The facts of the case at present are not disputed. The petitioner

is a member of Extremely Backward Class, E.B.C. (B.C.-1) of

Jharkhand and a permanent resident of village-Karuakhurd, P.O.

Ranka Bouliya, P.S. and District-Garhwa. He completed his

secondary education in the year 2001 and higher secondary

education in the year 2004 from Jay Kay Nagar High School,

Raniganj, West Bengal and he secured second division in the said

examinations.

An advertisement was issued in daily newspaper on

25.03.2010, inviting applications for appointment of constables

against 6796 vacant sanctioned posts in the district of Ranchi,

Hazaribag, Dhanbad, Bokaro, Palamau, Garhwa, Latehar, Koderma

and all other districts of the State of Jharkhand. The petitioner

participated in the examination and as per the result published on

03.06.2012 in the said daily newspaper, the petitioner bearing Roll

No. 15391 was placed at Serial No. 18 in the group of Non-Home

Guards, Extremely Backward Class- E.B.C. (B.C.-1). The respondent

no.4-Superintendent of Police, Hazaribagh, vide Memo No. 3502/

Ra.Ka. dated 09.06.2012 (Annexure-5 to the writ application) in the

light of Memo No. 368/Ba.Ko. dated 31.05.2012 of respondent no. 3

called the petitioner with all the original documents regarding

educational, caste, residential, birth certificates, etc., along with four

copies of passport size photos for verification in his office on

25.06.2012, but he was not given appointment and, therefore, the

petitioner made representation before respondent no. 4 and in

response to his representation, respondent no. 4 on 22.02.2013

informed that the eligibility of the petitioner has been cancelled on the

ground of his passing such examination from the West Bengal Board

of Secondary Education and West Bengal Council of Higher

Secondary Education. Thereafter, the petitioner made several

attempts to convince the authorities to act upon the eligibility to give

him appointment, but as he was not given the appointment, he filed

the present writ application.

3. The matter was originally placed before the learned Single

Judge and the learned Single Judge vide the order passed on

06.01.2017 referred the matter to the Division Bench and after

obtaining consent from the then Acting Chief Justice, the matter was

placed before the Division Bench.

4. The central question that arises in this case is regarding the

restriction provided in the Jharkhand State Police Recruitment Rules,

2014. It provides that the candidates should have passed 10th from

educational institutions of the State of Jharkhand. Such clause was

taken into consideration while refusing appointment to the petitioner.

5. In course of hearing, learned counsel for the State raised two

objections. The preliminary being the maintainability of the writ

application in view of the fact that the petitioner has appeared in the

examination and after being declared unsuccessful has challenged

the conditions therein. We are of the opinion that the petitioner was

not unsuccessful in the examination, rather his application was

accepted by the authorities and the selection authority conducted

examination wherein the petitioner was allowed to compete with other

candidates and was declared successful. The cause of action arose

when his credentials/certificates were verified by respondent no.4 and

they found that he has passed out from the schools and Inter college

from the State of West Bengal, which is violative of Clause (ii) as

referred to above. Thus, we are of the opinion that it is not the case of

the respondents that the petitioner actually failed in the examination or

the selection process, rather he was declared successful, but on the

ground that he has obtained his matriculation and Inter College from

West Bengal, he was not given the appointment.

6. Similar issue arose before the Hon'ble Supreme Court in the

case of Dr. (Major) Meeta Sahai Vs. State of Bihar and others,

(2019) 20 SCC 17 wherein, the Hon'ble Supreme Court examined the

issue and decided that in case there are illegalities in the process

itself, the principle of estoppel will not be applicable. We consider it

appropriate to take note of the exact language used by the Hon'ble

Supreme Court in preliminary objection to the writ application:-

"15. Furthermore, before beginning analysis of the legal issues involved, it is necessary to first address the preliminary issue. The maintainability of the very challenge by the appellant has been questioned on the ground that she having partaken in the selection process cannot later challenge it due to mere failure in selection. The counsel for the respondents relied upon a catena of decisions of this Court to substantiate his objection.

16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi Vs. State of Bihar, (2010) 12 SCC 576 observing as follows:

"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."

The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.

18. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a

situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.

18. The question of permissibility of giving weightage for 'work experience' in government hospitals is also not the bone of contention in this case. Medicine being an applied science cannot be mastered by mere academic knowledge. Longer experience of a candidate adds to his knowledge and expertise. Similarly, government hospitals differ from private hospitals vastly for the former have unique infrastructural constraints and deal with poor masses. Doctors in such non-private hospitals serve a public purpose by giving medical treatment to swarms of patients, in return for a meagre salary. Hence, when placing emphasis on the requirement of work experience, there is no dispute on such recognition of government hospitals and private hospitals as distinct classes. Instead such recognition ensures that the doctors recruited in not-so-rich States like Bihar have the requisite exposure to challenges faced in those regions.

19. The appellant has thus rightly not challenged the selection procedure but has narrowed her claim to only against the respondents' interpretation of 'work experience' as part of merit determination. Since interpretation of a statute or rule is the exclusive domain of Courts, and given the scope of judicial review in delineating such criteria, the appellant's challenge cannot be turned down at the threshold. However, we are not commenting specifically on the merit of appellant's case, and our determination is alien to the outcome of the selection process. It is possible post what is held hereinafter that she be selected, or not."

7. Thus, it is clear that the petitioner was not only successful in the

examination, but also there is illegality in the selection process itself,

which cannot be allowed to be perpetuated.

8. The issue before us has already been decided by the Division

Bench of this Court in a bunch of writ applications, the lead case

being W.P.(C) No. 3894 of 2021 with analogous cases, Ramesh

Hansda Vs. The State of Jharkhand and others wherein, similar

question arose before the Division Bench of this Court headed by the

then Chief Justice. This Court after taking into consideration various

facts and legal positions came to the conclusion that the impugned

Rules, as contained under Rules, 2021 are discriminatory on the

touchstone of Article 14 of the Constitution of India and is not based

on intelligible differentia rather are unreasonable, and such Rules 2

and 7 of the Rules, 2021 were held to be invalid, as the same are in

the teeth of Article 14 of the Constitution of India.

9. Since the petitioner is guided under the Police Manual, we had

occasion to examine the Police Manual. It is brought to our notice that

as per Rules 663 of the Police Manual, there is no requirement of the

candidate passing from educational institutions situated in the State of

Jharkhand. However, a notification was brought out in the year 2014,

i.e., Notification No. 16/Ni.-04/2013-6992 dated 20.10.2014 whereby,

the eligibility criteria prescribed in Clause (ii)) of the Educational

Qualification to be 10th pass educational institute situated in

Jharkhand, which has already been held to be violative of Article 14 of

the Constitution of India.

10. In that view of the matter, we allow the writ application and

issue a writ of certiorari for quashing of memo dated 22.02.2013,

annexed as Annexure-7 to the writ petition. A mandamus is issued to

give appointment to the petitioner. It is otherwise, eligible to be

appointed. The process of recruitment should be completed within a

period of 45 days of communication of this order to respondent no. 4.

11. We further make it clear that this judgment shall not be in any

way affect the rights of those candidates, who have already been

recruited and discharging their duties. This order shall also not be

treated as a precedent for any fence sitter, who has not filed any writ

application or approached the authority and he or she should not be

extended the benefit. The seniority, financial benefits etc. shall be

accrued to the petitioner only from the date of his joining without any

orders regarding seniority or arrears due before his joining.

12. There shall be no orders as to costs.

13. Pending application, if any, stands disposed of.

14. Grant urgent certified copy of this order as per the Rules.

(Sanjaya Kumar Mishra, C.J.)

(Ananda Sen, J.)

A.F.R.

APK/VK