Jharkhand High Court
Vivek Harsil Aged About 33 Years ... vs Jharkhand Public Service ... on 16 September, 2023
-1- LPA No.126/2022 & analogous cases
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.126 of 2022
----
Vivek Harsil aged about 33 years Son of Shri Suresh Kumar,
Resident of Flat No.303, Ganga-5, Trivenipuran, Dumardagga,
Near Booty More, NH-33, P.O. Booty & P.S. Sadar Dist.
Ranchi ... ... petitioner/Appellant
Versus
1. Jharkhand Public Service Commission through its
Secretary, Circular Road, P.O. & P.S. Lalpur, Ranchi,
Jharkhand
2. Controller of Examination, Jharkhand Public Service
Commission, Circular Road, P.O. & P.S. Lalpur, Ranchi,
Jharkhand
3. State of Jharkhand ... ... Respondents/Respondents
With
W.P.(S) No.5366 of 2021
----
1. Vivekanand Bhuinya, aged about 40 years, son of Late
John Bhuinya, resident of Village-Kantingkel, P.O. & P.S.-
Goilkera, District-West Singhbhum.
2. Binita Xalxo, aged about 34 years, daughter of Late
Fabianus Xalxo, resident of Village-Banari Linetoli, P.O. &
P.S.-Bishunpur, District-Gumla. ... ... Petitioners
Versus
1. The State of Jharkhand through the Chief Secretary,
having office at Project Building, Dhurwa, P.O. & P.S.-
Dhurwa, Town & District-Ranchi.
2. The Secretary/Principal Secretary, Urban Development
and Housing Department, Govt. of Jharkhand, having
office at Project Building, Dhurwa, P.O. & P.S.-Dhurwa,
Town & District-Ranchi.
... ... Respondents
3. Payal, D/o Sunil Kumar Srivastava, Resident of D-131,
Saraswati Nilyam, Harmu Housing Colony, Ranchi, P.O.-
-2- LPA No.126/2022 & analogous cases
Doranda, P.S.-Argora, District-Ranchi, Pin-834002,
Jharkhand
4. Vivek Harsil aged about 33 years Son of Shri Suresh
Kumar, Resident of Flat No.303, Ganga-5, Trivenipuram,
Dumardagga, Near Booty More, NH-33, P.O. Booty & P.S.
Sadar Dist. Ranchi ... ... Intervener/Respondent
With
L.P.A. No.129 of 2022
----
Swapnil Mayuresh, aged about 29 years, son of Shri Ram
Kumar Singh, Resident of Flat No.6A, Solitaire Apartment,
Opposite D.A.V. Nandraj, Bariatu, P.O. & P.S. Bariatu,
District Ranchi, Jharkhand ... ...
Petitioner/Appellant
Versus
1. Jharkhand Public Services Commission through its
Secretary, Circular Road, P.O. & P.S. Lalpur, District-
Ranchi.
2. Controller of Examination, Jharkhand Public Services
Commission through its Secretary, Circular Road, P.O.
& P.S. Lalpur, District-Ranchi.
3. State of Jharkhand.
4. Principal Secretary Urban Development and Housing
Development Department, Govt. of Jharkhand, Project
Building H.E.C. Dhurwa P.O. & P.S. Dhurwa District
Ranchi.
5. Anushree Darshana
6. Kolli Rajesh
7. Nishtha Saha
8. Kailashpati Maurya
9. Aman Singh Rajput
10. Gaurav Thapak
11. Apoorv Prasad
-3- LPA No.126/2022 & analogous cases
12. Rohit Ranjan
13. Radhika Goel
14. Srishti Shubh
15. Jyoti Sharma
16. Vallary Gupta
17. Ankush Mishra
18. Debasmita Basu
19. Ankita Shanbhogue
20. Swati Pradhan
21. Krishan Swradeep
22. Ayush Jain
23. Amit Kumar
24. Manohar Kumar Gupta
... ... Respondents/Respondents
With
L.P.A. No.135 of 2022
----
Payal, aged 30 Years D/o Sunil Kumar Srivastava, Resident of
D-131, Saraswati Nilyam, Harmu Housing Colony, Ranchi,
P.O.-Doranda, P.S.-Argora, District-Ranchi, Pin-834002,
Jharkhand. ... ... Appellant/Appellants
Versus
1. Jharkhand Public Service Commission through its
Secretary, Circular Road, P.O. & P.S.-Lalpur, Ranchi,
Jharkhand.
2. Controller of Examination, Jharkhand Public Services
Commission, Circular Road, P.O. & P.S. Lalpur, Ranchi.
3. State of Jharkhand.
... ... Respondent/Respondents
With
W.P.(S) No.889 of 2022
----
1. Savitri Kumari, aged about 28 years, Daughter of Mr.
Ramesh Prasad Singh, resident of GH-34, Gayatri Nagar,
-4- LPA No.126/2022 & analogous cases
Sector-II, H.E.C, Dhurwa, P.O. and P.S. Jagannathpur,
District Ranchi-834004.
2. Pallavi Tiwari, aged about 31 years, Daughter of Mr. P.D.
Tiwari, resident of HIG-8, Amer Complex, near Anurag
Photo Lab Zone 2, M.P. Nagar, Bhopal, P.O. Shikha
Mandal, P.S. M.P. Nagar District Bhopal-462011 (Madhya
Pradesh).
3. Vashudha Sharma, aged about 26 years, Daughter of Mr.
Neeraj Sharma, resident of E-244, Greater Kailash-2 near
Savitri Cinema, P.O. Greater Kailash, P.S. C.R. Park, New
Delhi-110048.
4. Anwesha Aditi, aged about 27 years, Daughter of Mr. Tarun
kumar Sinha, resident of 79, Anugrah Puri Colony, Gaya,
P.O. A.P. Colony, P.S. Rammpur, District Gaya-823001.
5. Apurva Tomar, aged about 32 years, Daugher of Mr.
Surendra Singh Tomar, resident of Flat No.404, Parikalp
Tarris, D-12, I Block, Gandhi Nagar, Gwalior, P.O. Defense
Colony, P.S. Padav, District Gwalior-474002 (Madhya
Pradesh)
6. Rahul Ganguly, aged about 31 years, Son of Mr. Amitava
Ganguly, resident of 5/12, Maxmuller Path, City Centre,
Durgapur, P.O. City Centre, P.S. Durgapur, District
Durgapur-713216 (West Bengal)
... ... Petitioners
Versus
1. The State of Jharkhand through the Chief Secretary,
Government of Jharkhand, having its office at Project
Bhawan, Dhurwa, P.O. Dhurwa, P.S. Jagannathpur,
District Ranchi.
2. The Secretary, Urban Development & Housing
Department, Government of Jharkhand, having its office
at Project Bhawan, Dhurwa, P.O. Dhurwa, P.S.
Jagannathpur, District Ranchi.
-5- LPA No.126/2022 & analogous cases
3. Jharkhand Public Service Commission, through its
Chairman, having its office at Circular Road, P.O.
G.P.O, P.S. Kotwali, District Ranchi
... ... Respondents
4. Vivek Harsil aged about 33 years Son of Shri Suresh
Kumar, Resident of Flat No.303, Ganga-5, Trivenipuram,
Dumardagga, Near Booty More, NH-33, P.O. Booty & P.S.
Sadar Dist. Ranchi
5. Swapnil Mayuresh aged about 30 years Son of Shri Ram
Kumar Singh Resident of Flat No.6A, Solitaire Apartment,
opposite D.A.V. Nandraj, Bariatu, P.O. & P.S. Bariatu,
District Ranchi, Jharkhand
... ... Intervener/Respondent
With
W.P.(S) No.1007 of 2022
----
1. Chandan Bhagat, S/O Jageshwar Bhagat, age 36 Yrs, R/o
H.No.798/M6, Near RIMS, Kokar Tunki Toli, PO-Bariatu,
PS-Sadar, Ranchi, Jharkhand-834009.
2. Gitika Bhagat, D/O Narayan Bhagat, Age 31 Yrs, R/o Road
No.9, Kusum Vihar, Morabadi, PO+PS-Bariatu, Ranchi,
Jharkhand-834009.
3. Ravi Shankar Banra, S/O Mahendra Banra, Age 30 Yrs,
R/o PO- Bara Chiru, PS-Muffasil Chaibasa, Bara Chiru,
Paschimi Singhbhum, Jharkhand-833201.
4. Amrit James Tete, S/O Ambrose Tete, Age 37 Yrs, R/o
House No.141, Zone No.4, Birsanagar, Near Police Station,
PO & PS-Birsanagar, Jamshedpur, Birsanagar, Chotta
Gobindpur, Telco, East Singhbhum, Jharkhand-831004.
5. Alain Anlish Canute Ekka, S/O Hubert Ekka, Age 33 Yrs,
R/o House No.3, Gali No.6, Lalpur Peace Road, Ranchi
GPO, PS-Lalpur, Ranchi, Jharkhand-834001.
6. Subir Kumar Mukhi, S/O Bimal Mukhi, Age-34 Yrs, R/o
House No.229, Zone 5 , Birsanagar, Near Docomo Tower,
-6- LPA No.126/2022 & analogous cases
PO-Birsanagar BO, PS-Birsanagar, Jamshedpur, Hullung,
East Singhbhum, Jharkhand-831004.
... ... Petitioners
Versus
1. State of Jharkhand through Chief Secretary,
Government of Jharkhand, Project Building, PO-
Dhurwa, PS-Jagannathpur, Dhurwa, Dist-Ranchi-
834004
2. State of Jharkhand through Secretary, Urban &
Housing Development Department, 4th Floor, Project
Building, PO-Dhurwa, PS-Jagannathpur, Ranchi-
834004
3. Department of Personnel, Administrative Reforms and
Rajbhasa, Government of Jharkhand, through
Secretary, Project Building, PO+PS-Dhurwa, Ranchi-
834004.
4. Jharkhand Public Service Commission through its
Secretary, Circular Road, PO & PS-Lalpur, Ranchi,
Jharkhand-834001
5. Controller of Examination, Jharkhand Public Service
Commission, Circular Road, PO & PS-Lalpur, Ranchi,
Jharkhand-834001
6. Union of India through Secretary, Ministry of Housing
and Urban Affairs, C-Wing, Nirman Bhawan, PO-South
Avenue, PS-Tughlak Road Police Station, Or. Maulana
Azad Road, New Delhi-1100011
... ... Respondents
7. Vivek Harsil aged about 33 years Son of Shri Suresh
Kumar, Resident of Flat No.303, Ganga-5, Trivenipuram,
Dumardagga, Near Booty More, NH-33, P.O. Booty & P.S.
Sadar Dist. Ranchi
8. Swapnil Mayuresh aged about 30 years Son of Shri Ram
Kumar Singh Resident of Flat No.6A, Solitaire Apartment,
-7- LPA No.126/2022 & analogous cases
opposite D.A.V. Nandraj, Bariatu, P.O. & P.S. Bariatu,
District Ranchi, Jharkhand
... ... Intervener/Respondent
With
W.P.(S) No.1351 of 2022
----
1. Kumar Chetan Lal, aged about 31 years, Son of Gopal
Prasad Lal, Resident of-Flat No.104, Parmarth Nagar, Near
Adwitya Swarup Ashram, P.O.-Hatia, P.S.-Dhurwa, Pin
Code-834003, District-Ranchi.
2. Richa Shivika, aged about 29 years, D/o of J.M.
Choudhary, Resident of-237/B3C, Dhawan Nagar, P.O.-
Gandhi Nagar, P.S.-Gonda, Kanke Road, Pin Code-834008,
District-Ranchi. ... ... Petitioners
Versus
1. The State of Jharkhand through the Chief Secretary
Government of Jharkhand, having its office at Project
Bhawan, Dhurwa, P.O.-Dhurwa, P.S.-Jagannathpur,
District-Ranchi.
2. The Secertary, Urban Development & Housing
Department, Government of Jharkhand, having its office
at Project Bhawan, Dhurwa, P.O.-Dhurwa, P.S.-
Jagannathpur, District-Ranchi.
3. Jharkhand Public Service Commission through its
Secretary, having its office at Circular Road, P.O.-
G.P.O., P.S.-Kotwali, District-Ranchi.
... ... Respondents
With
W.P.(S) No.1781 of 2022
----
1. Rohit Ranjan, aged about 32 years, Son of Ram Pratap
Prasad Singh, resident of 303, Laxmi Apartment Road
No.15 Patel Nagar, OPP. NIFFT, P.O & P.S-Hatia, District-
Ranchi.
2. Srishti Shubh, aged about 30 years, daughter of Om
-8- LPA No.126/2022 & analogous cases
Prakash Srivastava, resident of Tripti Narendra Kutir, Sreeji
Tower, Near Bata, Circular Road, P.O. & P.S.-Lalpur,
District-Ranchi.
3. Ankush Mishra, aged about 29 years, Son of Ashok Mishra,
resident of 52, Deepak Society, Chuna Bhatti, P.O. & P.S.-
Kolar Road, District-Bhopal, Madhya Pradesh 462016.
4. Apoorv Prasad, aged about 26 years, S/o-Vinod Prasad
resident of 144, BT Ganj, Near PNB, P.O. & P.S-Roorkee,
District-Roorkee, Uttarkhand 247667.
... ... Petitioners
Versus
1. The State of Jharkhand through the Chief Secretary
Government of Jharkhand, having its office at Project
Bhawan, Dhurwa, P.O.-Dhurwa, P.S.-Jagannathpur,
District-Ranchi.
2. The Secretary, Urban Development & Housing
Department, Government of Jharkhand, having its office
at Project Bhawan, Dhurwa, P.O.-Dhurwa, P.S.-
Jagannathpur, District-Ranchi.
3. Jharkhand Public Service Commission through its
Secretary, having its office at Circular Road, P.O.-
G.P.O., P.S.-Kotwali, District-Ranchi.
4. Union of India through Ministry of Housing and Urban
Affairs through its Secretary, having office at Nirman
Bhawan, New Delhi, P.O and P.S-New Delhi, District-
New Delhi-110001 ... ... Respondents
-------
CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR JUSTICE NAVNEET KUMAR
------
For the Appellants\Petitioners : Mr. Ajit Kumar, Sr. Advocate
Mr. Siddhartha Ranjan, Adv.
Mrs. Shipra Shalini, Adv.
(In LPA Nos.126 & 129 of 2022)
: Mr. Arun, Advocate
-9- LPA No.126/2022 & analogous cases
Mrs. Amrita Vijai, Advocate
(In LPA No.135 of 2022)
: Mr. Shubhashis Rasik Soren, Adv.
Mrs. Shobha G. Lakra, Advocate
[In WP(S) Nos.5366/2021 & 1007/2022]
: Mr. Amritansh Vats, Advocate
[In WP(S) Nos.1351/2022 & 1781/2022]
For the State : Mr. Rajiv Ranjan, Advocate General
Mr. Mohan Kr. Dubey, AC to AG
For the Resp.-JPSC : Mr. Sanjoy Piprawall, Advocate
: Mr. Abhay Prakash, Advocate
: Mr. Amritanshu Singh, Advocate
For the U.O.I. : Mrs. Leena Mukherjee, CGC
For the Private-Respondents : Mr. Anoop Kr. Mehta, Advocate
: Mr. Arun, Advocate
[In W.P.(S) No.5366 of 2021]
: Mr. Siddhartha Ranjan, Advocate
: Mr. Saurav Arun, Advocate
Mrs. Sharon Kerketta, Advocate
Mrs. Oishi Das, Advocate
[In LPA No.129/2022 & W.P(S) No.889/2022
: Mr. Amritansh Vats, Advocate
--------
C.A.V. on 16.08.2023 Pronounced on: 16/09/2023
Per Sujit Narayan Prasad, J.
I.A. Nos.3427 of 2022 & 4060 of 2022 in W.P.(S) No.5366 of 2021
I.A. Nos.3050 of 2022 & 3072 of 2022 in W.P.(S) No.889 of 2022
I.A. Nos.4056 of 2022 & 4057 of 2022 in W.P.(S) No.1007 of 2022
1. The appellants of LPA Nos.126 of 2022, 129 of 2022 and 135 of
2022 have filed interlocutory applications for their impleadment, since,
they are necessary party and having the interest with the order of the
State Government, by which, the recommendation made by the JPSC
has been rejected.
2. Mr. Ajit Kumar, learned Senior Counsel appearing for the
appellants has submitted that the interveners are required to be
- 10 - LPA No.126/2022 & analogous cases
impleaded as party to the proceeding, since they are the interested
party.
3. Further, since, the intra-court appeals and these five writ
petitions have been directed to be heard together, as such, they since
are the interested party, hence, they are necessary to be impleaded as
party to the writ petitions.
4. This Court, after taking into consideration the grounds as also
the submission made on behalf of the parties and considering the fact
that the impugned decision of the State Government is in continuation
to the decision taken in terms of the advertisement having the same
subject issue and the consequence of the prayer sought for by the writ
petitioners in these writ petitions are co-related with the prayer sought
for in the writ petitions from which, the intra-court appeals being L.P.A.
Nos.126 of 2022, 129 of 2022 and 135 of 2022 arise, therefore, deems
it fit and proper to allow the instant interlocutory applications.
5. Accordingly, I.A. Nos.3427 of 2022 & 4060 of 2022 [In W.P.(S)
No.5366 of 2021], I.A. Nos.3050 of 2022 & 3072 of 2022 [In W.P.(S)
No.889 of 2022], I.A. Nos.4056 of 2022 & 4057 of 2022 [In W.P.(S)
No.1007 of 2022] stand allowed.
6. Accordingly, office is directed to make necessary correction in
the cause title of the writ petitions.
L.P.A. No.126 of 2022, W.P.(S) No.5366 of 2021, L.P.A. No.129 of
2022, L.P.A. No.135 of 2022, W.P.(S) No.889 of 2022, W.P.(S)
No.1007 of 2022, W.P.(S) No.1351 of 2022 & W.P.(S) No.1781 of
7. It appears from the order passed on 21.06.2023 that the letters
- 11 - LPA No.126/2022 & analogous cases
patent appeals being L.P.A. Nos.126 of 2022, 129 of 2022 and 135 of
2022 were directed to be listed side by side writ petitions being W.P.(S)
Nos.889/2022, 1007/2022, 1351/2022 and 5366 of 2021 by the
coordinate Division Bench of this Court on the prayer being made on
behalf of the appellants and accordingly, letters patent appeals being
L.P.A. Nos.126 of 2022, 129 of 2022 and 135 of 2022 and the writ
petitions being W.P.(S) Nos.889/2022, 1007/2022, 1351/2022 and
5366 of 2021 have been listed together for analogous hearing.
8. Since identical issues are involved in all the appeals and the writ
petitions, therefore, the same are being heard together with the
consent of the parties.
9. The intra-court appeals preferred under Clause-10 of Letters
Patent is directed against the common order/judgment dated
04.03.2022 passed by the learned Single Judge of this Court in
W.P.(S) Nos.1516 of 2021, 1413 of 2021 and 1517 of 2021
respectively, by which, the learned Single Judge has refused to
interfere with the final result published on 18.03.2021 as also refused
to pass positive direction, so far as the following reliefs sought for on
behalf of the writ petitioners:-
(i) for quashing the result dated 18.03.2021 published under the
signature of Controller of Examination, Jharkhand Public Service
Commission uploaded on the website on 18.03.2021 related to those
candidates who though being not qualified and eligible having not the
Associate Membership from the Institute of Town Planners (India) on
the date of Advertisement No.04 of 2020 for the appointment on the
post of Assistant Town Planner under the Urban Development and
- 12 - LPA No.126/2022 & analogous cases
Housing Department but were declared successful because of the
anomalous situation created by the J.P.S.C.
(ii) The further direction upon the respondents to issue the
modified results after considering the candidature of only those
candidates who were duly qualified having the Associate Membership
from the Institute of Town Planners (India) on the date of issuance of
Advertisement No.04/2020 by the J.P.S.C for the post of Assistant
Town Planner under the Urban Development Department and also to
issue appointment letter in favour of the petitioners since they were
qualified in all respect on the date of the said advertisement.
10. The writ petitions being W.P.(S) Nos.5366 of 2021, 889 of 2022,
1007 of 2022, 1351 of 2022 and 1781 of 2022 have also been directed
to be listed to be heard along with the letters patent appeal being
L.P.A. Nos.126 of 2022, 129 of 2022 and 135 of 2022, which have
been filed subsequent to filing of the instant appeals for quashing of
the order dated 07.02.2022, since, in the meanwhile, the respondent-
State of Jharkhand has come out with an order being order no.18
dated 07.02.2022, by which, the recommendation made by the
J.P.S.C. for appointment to the sanctioned and 77 vacant posts of the
Assistant Town Planner vide letter no.943 dated 05.04.2021, has been
rejected as also for a direction to immediately and forthwith accept the
recommendation made by the respondent-JPSC vide letter no.943
dated 05.04.2021 and forthwith provide letter of appointment to the
petitioners on the sanctioned and vacant posts of Assistant Town
Planner after considering the cases of the petitioners.
11. The brief facts of the cases, as per the pleading made in the writ
- 13 - LPA No.126/2022 & analogous cases
petitions, are required to be enumerated which read as under :-
12. It is the cases of the writ petitioners that in pursuant to the
requisition sent by the Urban Development Department for direct
appointment on the post of the Assistant Town Planner, the Jharkhand
Public Service Commission issued a Press Release on 14.07.2020 on
its Website intimating the candidates about the appointment to the said
post.
13. As per Advertisement, the Compulsory Educational Qualification
was Graduate in Architecture, Bachelor of Planning, Civil Engineering
and Post Graduate in Master of Planning with specialization in either of
(i) Urban Planning (ii) Transport Planning (iii) Housing (iv)
Environmental Planning (v) Regional Planning and also candidate
must possess certificate of Associate Member from the Institute of
Town Planners (India). The date to fill up the Online Application was
from 15.07.2020 to 10.08.2020. As per Condition No.11(b) of the
advertisement, the candidature of the candidate was to be ascertained
as per the information given by the candidate.
14. Further, the Condition no. 11(n) stated that for the purpose of
verification of documents for appearing in interview, the required
certificates of the claims made in the online application were to be
submitted.
15. The Condition no.11(m) stated that if it was found that wrong
information was given by the candidate in the application, the
Commission was at liberty to cancel the candidature of such
candidates. Subsequently, the J.P.S.C. issued a Press Release on
26.08.2020 asking the candidates whose application was provisionally
- 14 - LPA No.126/2022 & analogous cases
accepted, to submit their certificates as per their claims made in the
online application in accordance with the condition 11(n) stipulated in
the Advertisement from 27.08.2020 to 08.09.2020.
16. Through this Press Release, the list of candidates whose online
applications were accepted or rejected has also been mentioned.
17. It is the case of the writ petitioners that they being qualified and
eligible in all respects as per the Advertisement, applied online for the
Post in question, sent the requisite certificates as was demanded
within the time prescribed. The interviews of the candidates were
conducted from 06.01.2021 to 08.01.2021 and a startling result was
published on 18.03.2021.
18. The results indicated that the Jharkhand Public Service
Commission had allowed to appear in the interview even those
candidates who were not having the Associate Membership from the
ITPI on the cut of date, i.e., on 10.08.2020 as the said Institute in its
meeting held on 22.08.2020, gave Associate Membership to a number
of persons including the private respondents.
19. During pendency of the writ petitions, an information vide Letter
No.1958 dated 06.09.2021 was issued by the Public Information
Officer (Annexure R/7 to the writ petition) that a Scrutiny Committee
was constituted by the Commission to verify the certificates and
documents of the candidates. Upon verification, the Scrutiny
Committee submitted its Report as (i) May be accepted (130
candidates) (ii) Doubtful cases regarding required qualification (19
Candidates) (iii) List of those candidates who obtained ITPI
membership after last date of online application (186 candidates) (iv)
- 15 - LPA No.126/2022 & analogous cases
may be rejected (188 Candidates).
20. The Scrutiny Committee was of the considered view that
candidature of only 130 candidates may be accepted and candidature
of 188 candidates may be rejected that included 186 Candidates who
obtained ITPI membership after last date of submission of online
applications but the Commission by-passed report of the Scrutiny
Committee and instead of rejecting candidature of these 186
candidates, allowed them to participate in the interview even when
they received the Associate Membership Certificate from ITPI after the
last date of submission of online application, i.e., on 10.08.2020.
21. The private respondents and other candidates total 186 in
numbers who were not having the Certificate of the Associate
Membership of ITPI before 10.08.2020, made a wrong entry in the
online application and got their application provisionally accepted.
22. Though, upon verification, it was found that their Associate
Membership had been obtained after 10.08.2020, i.e., after the cut-off
date, instead of rejecting their candidature as per Condition 11(m) of
the advertisement, Commission allowed them to participate in the
interview and made a selective favour.
23. It appears from the factual aspects that the appellants being
aggrieved with the decision of the Jharkhand Public Service
Commission (in short 'JPSC') by entertaining the candidature of the
private respondents, i.e., respondent nos.5 to 24, even though, as on
the date of the advertisement, they were not having the minimum
eligibility criteria of the members of the Institute of Town Planner
(India), New Delhi as required under condition/clause no.5 of the
- 16 - LPA No.126/2022 & analogous cases
advertisement being Advertisement No.04 of 2020.
24. It is the contention of the appellants that instead of cancelling the
candidature of private respondents on the ground that they are not
eligible on the date of making application, since, they were not having
I.T.P. certificate, but only in order to accommodate such candidates,
the JPSC has accepted their candidature after receiving the I.T.P.
certificate issued by the concerned Institute, which admittedly was
issued on 22.08.2020, which was after the last date of submission of
application, i.e., 10.08.2022, even though, at the initial stage, their
candidature were rejected, who were 186 in numbers but
subsequently, by accommodating them, not only their candidature
have been accepted, rather, their names have also been
recommended for providing appointment to the post of Assistant Town
Planner.
25. It is the contention of the learned Senior Counsel appearing for
the appellants that since, the candidature of the private respondents,
who are amongst 186 candidates, have not submitted I.T.P. certificate,
as per the stipulation made in the advertisement, rather, they had
given wrong declaration of being members of Institute Town Planner,
which would be evident from the online application form, thereby, their
candidature have been accepted, even though, they have submitted
the certificate issued from the concerned Institute subsequent to
closure of the acceptance of application form in terms of the date
stipulated in the advertisement.
26. The appellants contend that if 186 candidates would not have
been accommodated, then the appellants would have been selected
- 17 - LPA No.126/2022 & analogous cases
on the basis of their position in the merit list as also on the ground that
they were having the requisite criteria, as per the stipulation made in
the advertisement/rules of recruitment.
27. The appellants-writ petitioners, on the aforesaid premise, have
approached to this Court by filing writ petitions being W.P.(S) Nos.1413
of 2021, 1516 of 2021 and 1517 of 2021 seeking therein the directions
as referred hereinabove.
28. The learned Single Judge, has not agreed to the ground, rather,
the plea of the Covid-19 Pandemic was taken by the JPSC and the
candidature of private respondents who amongst 186 candidates, has
been accepted by the learned Single Judge and has found no illegality
in the process of selection and as such, the writ petitions were
dismissed, against which, the present appeals.
Argument advanced on behalf of the appellants
29. Mr. Ajit Kumar, learned Senior Counsel appearing for the
appellants in all these appeals has taken the following grounds that:-
(i) As per the settled position of law, the requirement is to
be made on the basis of the recruitment rule and as per the
condition stipulated in the advertisement which contains the
condition as under clause/condition-5 under the head
"Mandatory educational qualifications, under which, the
minimum education qualification has been prescribed, i.e., for
the post of Assistant Town Planner to the effect that a
candidate is to be appointed as Assistant Town Planner in the
Urban Planning will have to possess Post-Graduation along
with associate member certificate to be issued by the Institute
- 18 - LPA No.126/2022 & analogous cases
of Town Planner (India), New Delhi. The 186 candidates
amongst whom the private respondents were not possessing
the certificate of the members of the concerned institute, i.e.,
Institute of Town Planner (India), New Delhi, which would be
evident from the fact that the said certificate was issued on
22.08.2020, while the last date of submission of application
was 10.08.2020. Therefore, the candidature of all 186
candidates was to be rejected at the threshold.
(ii) The ground of mis-representation/commission of fraud
has been taken that even though, all the 186 candidates
amongst which, the private respondents have mis-
represented in submitting the application form which would
be evident from the online application form as has been
appended with the paper book, wherefrom, it is evident that in
the column made for the purpose by seeking declaration that
'Have you obtained Associate Membership of Institute of
Town Planners (India), New Delhi?, wherein, the declaration
has been given as "yes".
The said application form was submitted prior to the last
date of submission of the application form, i.e., prior to
10.08.2020 but the said membership certificate was only
issued in favour of the private respondents on 22.08.2020, as
would appear from the said certificate having been made part
of the paper book, then on what basis the declaration to have
the said certificate has been furnished, the day when the
applications were filled up disclosing therein that the private
- 19 - LPA No.126/2022 & analogous cases
respondents were possessing the said certificate. As such,
fraud has been committed by the private respondents and in
that view of the matter, the law is settled that in case of
commission of fraud, the candidature ought to have been
rejected, but no decision has been taken to that effect.
(iii) It is the ground that instead of taking any decision for
cancellation of candidature of the private respondents, the
JPSC has made a correspondence to the Principal Secretary,
Urban Development and Housing Department, Government
of Jharkhand, Ranchi on 21.07.2020 issued under the
signature of Secretary, JPSC, Ranchi by making a request
that the equivalent educational qualification and the eligibility
to possess the membership certificate of the Institute of Town
Planner (India), New Delhi may be considered for its deletion
based upon the request made in this regard on behalf of the
candidates who were having no such certificate as on the
date of submission of application form in terms of the
advertisement. The reference of communication dated
29.07.2020 has been made which was in response to the
communication dated 21.07.2020 issued under the signature
of the Secretary to the Government addressed to the
Secretary, Jharkhand Public Service Commission that there is
no need to make any amendment in the Town Planner
Service (Recruitment, Promotion and other Service) Rules,
2014 (amended 2019) and has requested the commission to
make recommendation for making appointment. But even in
- 20 - LPA No.126/2022 & analogous cases
spite of the aforesaid fact, the decision was taken by the
commission in its Board Meeting dated 07.12.2020 and as
per the agenda no.3 thereof, the decision was taken to accept
the candidature of such candidates who had not submitted
the application form along with the certificate of the
concerned institute due to Covid-19 Pandemic.
The commission, thereafter, has accepted the
candidature of 186 candidates which includes the private
respondents and accordingly, recommendations have been
made for filling up of the 77 posts as notified by way of
advertisement.
(iv) The ground, therefore, has been taken that once the
State has refused to accept the proposal of the commission
to modify the recruitment rules and has requested to
recommend the name of the successful candidates so that
the post be filled up but ignoring the same, the commission
on its own, has taken decision for relaxation of such
conditions and accordingly, their candidature have been
accepted and thereafter, the recommendations have been
made.
The question has been raised, therefore, that the
commission while doing so, has exceeded its jurisdiction in
taking its own decision contrary to the condition stipulated in
the advertisement coupled with the condition as under
condition no.11(m) which speaks that in case if it has been
found at any time that wrong information or the fact has been
- 21 - LPA No.126/2022 & analogous cases
suppressed then the commission will cancel the candidature
of such candidates.
Condition no.11(n) also refers that the certificate of
the Institute of Town Planner (India), New Delhi will have to
be submitted mandatorily.
The reference of the condition as contained under
condition no.11(b) has also been taken, wherein, it has been
stipulated that on the basis of information furnished by one or
the other candidates on online application and once the
declaration is being furnished in the online application, then
there will be no change therein and the application so
received after the due date, will not be acceptable.
(v) The commission without adhering to the condition
stipulated in the advertisement and in excess to its jurisdiction
not only accepted the candidature of respondents concerned,
but has also considered the certificate which was issued
subsequent to the last date of submission of application form
and has recommended their names for appointment.
(vi) The appellants' grievance is that they are eligible
candidates and their applications were in order but only in
order to accommodate the private respondents, their names
have not come in the list of successful candidates for the
purpose of recommendation and if the candidature of the
private respondents would not have been accepted, in that
eventuality, the appellants will have their names in the list of
successful candidates for the purpose of recommendation.
- 22 - LPA No.126/2022 & analogous cases
But due to illegal action of the commission in the
process of selection, the appellants have been declared to
be un-successful.
30. The contention on the aforesaid premise, has been made that
the learned Single Judge has not appreciated the facts as also the
legal position, rather, the contention which was raised on behalf of the
commission and the private respondents, has dismissed the writ
petitions by taking into consideration the ground of Covid-19
Pandemic, due to which reason, certificate of the concerned institute
could not be obtained and as such, could not be submitted along with
the application form within the due date of filling up of the application.
31. Learned Single Judge, according to the appellants, has
committed error in passing the impugned judgments without taking into
consideration that in the matter of public employment, the fairness and
transparency in the public employment is of paramount consideration
so as to achieve the object and intent of Article 14 and 16 of the
Constitution of India, therefore, the instant appeals.
Argument advanced on behalf of the JPSC
32. Per contra, Mr. Sanjoy Piprawall, learned counsel appearing for
the respondent-JPSC has contended that it is not a case where the
date has been extended for the purpose of accepting the certificate
issued by the concerned Institute, rather, the decision has been taken
by the Board of the Commission taken into consideration the
extraordinary situation of Covid-19 Pandemic.
33. The decision, since, has been taken by the commission
considering the reason of Covid-19 Pandemic during the relevant
- 23 - LPA No.126/2022 & analogous cases
period and if on that consideration, the candidature of 186 candidates
which includes the private respondents had been considered, it cannot
be said that same is for extraneous purposes.
34. Learned counsel appearing for the JPSC has submitted that
admittedly the request was made to the State Government for
amendment of the recruitment rule but the same has not been
accepted.
35. Thereafter, the Board was constituted by the Commission based
upon the representation received on behalf of the private respondents
through e-mail for acceptance of the certificate, since, the certificate
could not be obtained prior to cut of date of submission of application
form and as such, considering the declaration given by the private
respondents in this regard in affirmative, the applications have been
accepted and since, the certificate issued from the concerned institute
has been submitted for its verification at the stage of interview, the
same has been accepted and in consequence thereof, the names of
the private respondents have been accepted, hence, there is no
illegality in the process of selection.
36. It has been contended that the appellants since has got lesser
marks in comparison to the private respondents and as such, their
names have not been recommended and in that view of the matter, the
learned Single Judge has also taken ground that once the candidate is
declared to be unsuccessful, the unsuccessful candidate has got no
right to take U-turn and question the selection process, which
according to the learned counsel, is applicable herein, since, the
appellants have also been declared to be unsuccessful in the process
- 24 - LPA No.126/2022 & analogous cases
of selection and it is only thereafter, they have challenged the entire
process of selection.
37. Learned counsel for the respondent-Commission on the
aforesaid premise, has submitted that the learned Single Judge has
taken into consideration these aspects of the matter while dismissing
the writ petitions, therefore, the same requires no interference.
Argument advanced on behalf of Private Respondents
38. Mr. Anoop Kr. Mehta, Mr. Arun, Mr. Siddhartha Ranjan, Mr.
Saurav Arun, and Mr. Amritansh Vats, learned counsel appearing for
the private respondents, who are amongst the 186 candidates, have
submitted the application form along with the certificate to be issued
from the concerned institute prior to the last date of submission of the
application form, have jointly submitted that it is not the case that the
private respondents who are not having with the certificate of the
concerned institute, rather, the provisional certificate was there, as
would appear from the documents as available with them, therefore,
the same will be construed to be the provisional certificates and the
declaration has been given that the private respondents were having
the certificate from the concerned institute in affirmative, hence, there
is no mis-representation or suppression of fact as is being taken as a
ground to interfere with the impugned order passed by the learned
Single Judge.
Argument advanced on behalf of the State
39. Learned Advocate General has appeared on behalf of the State
and has submitted that the illegality has been committed by the
commission in accepting the candidature of 186 candidates who, were
- 25 - LPA No.126/2022 & analogous cases
not having with the certificate of the concerned institute prior to the last
date of submission of application form, therefore, conscious decision
has been taken by the State on 07.02.2022 issued under the signature
of the Secretary of the Urban Development and Housing Department
and taking the reason of acceptance of candidature of 186 candidates
who are not having with the required certificate of the concerned
institute, has cancelled the recommendation so made by the
Commission.
40. The learned Advocate General, in view of the aforesaid decision
of the concerned Secretary, has submitted that the recommendation
so made on behalf of the Commission, has been rejected by the
concerned Department of the State of Jharkhand, therefore, no cause
of action now arose in favour of the appellants.
41. The further submission has been made that the implied meaning
of rejection of the recommendation by the concerned Department of
the State that the entire selection process will be commenced afresh.
Response of the appellants to the argument advanced on behalf
of the State
42. Mr. Ajit Kumar, learned Senior Counsel for the appellants, in
response to the aforesaid submission, has submitted that once the
State has admitted the error committed on the part of the commission
while not accepting the recommendation so made by the commission
by taking the ground which is the basis of filing the writ petitions, now
nothing remains to be decided, save and except that the candidature
of 186 candidates is fit to be rejected and fresh recommendation is to
be made on the basis of the eligibility of one or the other candidates so
- 26 - LPA No.126/2022 & analogous cases
as to fill up the post at an early date.
43. It has been contended that there is no reason for initiating the
fresh process of recruitment, in view of the fact that there is no fault
lies on the part of the appellants and if any laches/erroneous decision
has been taken by the commission which ought not to have been
taken by the commission being the constitutional body then the
question is why the genuine candidate is allowed to suffer.
Argument advanced in the writ petitions
44. The writ petitions have also been filed being W.P.(S) Nos.889 of
2022, 1007 of 2022, 1351 of 2022 and 1781 of 2022, praying therein
the prayers for quashing of the order no.18 dated 07.02.2022, whereby
and whereunder, the recommendation made by the JPSC for
appointment of the private respondents, has been rejected.
45. The ground has been taken in these writ petitions that once their
candidature has been accepted by the commission on close scrutiny
and by taking the decision by the Board constituted by the
commission, there is no reason not to accept the recommendation by
the State Government and in that view of the matter, the writ petitions
have been filed.
46. The appellants of L.P.A. Nos.126 of 2022, 129 of 2022 and 135
of 2022 have filed intervention applications in these writ petitions and
have raised the ground as has been agitated while pressing the intra-
court appeals as referred hereinabove.
47. Mr. Ajit Kumar, learned Senior Counsel appearing for the
appellants in LPA Nos.126 of 2022 and 129 of 2022 has reiterated his
argument as has been argued and referred hereinabove by making
- 27 - LPA No.126/2022 & analogous cases
addition that the writ petitions are fit to be dismissed, the moment the
State, employer has taken a decision of non-acceptance of their
candidature in absence of non-compliance of the mandatory condition
of submission of certificate to be issued from the concerned institute
which suggests that the irregularity/illegality has been committed by
the commission and in that view of the matter, rejection of
recommendation taken by the Secretary of the concerned Department,
cannot be said to suffer from an error.
48. The learned Senior Counsel has further submitted that the
argument which has been advanced as above is being taken herein is
not being repeated.
49. Learned Advocate General has submitted that he has already
argued that the recommendation of the commission has not been
accepted on the basis of the reason that the irregularity/illegality has
been committed by accepting the candidature of 186 candidates, even
though, they were not having the membership certificate prior to the
date of submission of the application form.
50. The submission, therefore, has been made on behalf of the State
that the writ petitions are fit to be dismissed.
51. We have heard the learned counsel for the parties, perused the
documents available on record as also considered the finding recorded
by the learned Single Judge in the impugned order.
52. Further, we have appreciated the argument advanced on behalf
of the parties so far as the relief sought for in the writ petitions are
concerned.
53. The issues which require consideration in these cases are:-
- 28 - LPA No.126/2022 & analogous cases
(i) Whether the litigation filed by the appellants can be held to
be not maintainable merely because they have been
declared to be unsuccessful in the facts and circumstances
of the case.
(ii) Whether the JPSC, a constitutional body, has got any
jurisdiction to relax the condition stipulated in the
advertisement;
(iii) Whether the acceptance of candidature of such candidates
who have not submitted the application form said to be in
order due to want of the conditions, subsequently,
acceptance of their candidature and recommending their
names for appointment can be said to be justified;
(iv) Whether the ground, upon which, the commission has
taken decision to relax the condition can be said to be
justified instead of taking appropriate remedy by the
concerned candidate for seeking remedy of extension of
time by invoking the jurisdiction of the Court.
(v) Whether the conditions stipulated in the advertisement
under the educational qualification as referred in condition
no.5 read with condition nos.11(b), 11(m) and 11(n), can be
said to be directory or obligatory.
(vi) Whether in the facts and circumstances of the case making
communication dated 21.07.2020 to the State by the
commission for making amendment in the recruitment rule
by the JPSC, can be said to be proper and within the
jurisdiction of the JPSC.
- 29 - LPA No.126/2022 & analogous cases
(vii) Whether furnishing the wrong information in the online
application form to have the certificate which is mandatorily
to be submitted along with the application form prior to the
cut-off date is not amounting to commission of fraud.
(viii) Whether the acceptance of candidature of 186 candidates,
amongst which, the private respondents and the writ
petitioners are the candidates and at their cost, the
candidature of genuine candidate can be allowed to be
rejected.
(ix) Whether the rejection of recommendation so made by the
commission warrants for preparation of the fresh list
including the name of the genuine candidates instead of
going for fresh recruitment process by issuing fresh
advertisement in view of the urgent need on the post of the
Assistant Town Planner as per the Government of India
letter dated 07.02.2022.
54. This Court, before answering the said issues, needs to refer
herein the recruitment rules, whereby and whereunder, the following
conditions have been made:-
"Recruitment by Selection:
(1) Where recruitment to a service or a post is to be
made by selection, the Commission, after receiving
requisitions from the department concerned, shall
announce the number of vacancies and invite
applications in accordance with the details given in the
requisitions.
(2) (a) Applications received in response to such
advertisements shall be scrutinized in the office by an
officer not below the rank of the Deputy Secretary of
- 30 - LPA No.126/2022 & analogous cases
the Commission and thereafter put up before the
Member whom the subject has been allotted vide Rule
(4) of Chapter II for vindication, who will refer it to a
Chairman after having satisfied himself with their
validity.
(b) The Chairman may endorse it to another Member
for his comment and in case of difference of opinion
shall refer the matter to the Commission for resolution.
Explanation I - It is hereby added for the purpose of
clarification that in absence of any difference of opinion
between the Members, the selection made shall be
construed to have been made by the Commission.
(3) If the number of applicants in response to an
advertisement is rather large, the Commission
prescribes the following criteria for short-listing of the
candidates for being called for interview.
(a) The candidates shall be selected for interview on
the basis of the career marks to be calculated on the
basis of percentage of marks obtained in each
examination from Matriculation upto the level of
minimum qualification required. The percentage of
marks shall be added together and divided by the
number of examinations and a merit list accordingly
prepared.
(b) The number of candidates to be called for interview
category wise will be five times.
(c) Not-with-standing anything contained in clause (b)
Commission may opt for holding an objective type
screening test to short-list the candidates.
(d) Where the number of candidates exceeds 500, the
candidates shall be short-listed for Interview through a
screening test to be conducted on the basis of
objective type questions and the evaluation thereof
shall be done in the premises of the Commission by
OMR
(4) The appointment of question setters (Objective
Type) and Moderators etc. shall be made by the
- 31 - LPA No.126/2022 & analogous cases
Chairman in the like manner as prescribed in Sub-Rule
(viii) of Chapter-III.
(5) After the screening test is complete, all other related
and consequential works in this regard will be done by
the Controller of the Examination with the approval of
the Chairman.
(6) After the evaluation of the answer sheets, a merit
list shall be prepared on the basis of minimum
qualifying marks as fixed by the Commission and
candidates thus short-listed shall be called for
interview/viva voce test, where necessary. Interview
Boards for viva voce/personality test shall be
constituted as per the assignment made in the
'Schedule'.
(7) Marks to be awarded in the interview/viva voce test
shall be in the ratio of 100 (hundred) marks for
academic achievement and 100 (hundred) marks for
interview/viva voce test.
(8) Mode of distribution of marks of academic
achievement shall be decided by a Committee of
Members including the Chairman. Members of the
Committee shall be nominated by the Chairman.
Decision of the Committee shall be deemed to be
decision of the Commission.
(9) The final merit list shall be prepared and put up
before a Committee of Members for scrutiny and after
approval of the Chairman, recommendation shall be
forwarded to the department concerned by the
Secretary of the Commission/Officer or Controller of
Examinations.
(10) Final merit list scrutinized by the committee of the
Members and approved by the Chairman shall be
authenticated by Controller of Examination and
Secretary of the Commission and the committee of
members nominated by the Chairman.
(11) All documents pertaining to Recruitment by
Selection shall be preserved for the period as
- 32 - LPA No.126/2022 & analogous cases
mentioned in APPENDIX-2 of these Rules."
55. The advertisement has been issued being Advertisement No.04
of 2020 wherein, the last date of submission of application form was
10.08.2020.
56. It appears from the advertisement that under condition no.5, the
mandatory educational qualification has been referred therein which
reads as under:-
5- vfuok;Z 'kS{kf.kd vgZÙkk %&
in U;wure 'kS{kf.kd ;ksX;rk
Lukrd LukrdksÙkj lEc)rk
fuEukafdr esa ls fdlh bfULVV~;wV
A ,d fo'k; esa vkWQ
lgk;d fof'kf'Vdj.k ds lkFk Vkmu IykulZ
(i) okLrqdyk
uxj ekLVj vkWQ Iykfuax%& ¼bafM;k½] ubZ
(ii) ch0 Iykfuax
fuos'kd (i) vcZu Iykfuax fnYyh ls
(iii) vlSfud vfHk;a=.k
(ii) VªkUliksVZ Iykfuax lkgp;Z
(iii) gkmflax lnL;rk izkIrA
(iv) i;kZoj.k Iykfuax
(v) {ks=h; Iykfuax
57. It is, thus, evident that the minimum educational qualification for
the post in question on post-graduation with the certificate of being
associate member to be obtained from the Institute of Town Planner
(India), New Delhi is required.
58. The condition no.11(b) provides that the application is to be
submitted through online. The candidature of one or the other
candidates is to be determined on the basis of the information
furnished on online application.
59. The instruction has been given therein that the candidates are to
fill up their applications forms strictly in accordance with the provision
of the advertisement and the instruction.
- 33 - LPA No.126/2022 & analogous cases
60. The further instruction is that entry once made in online
application will not be altered in any circumstances.
61. The condition no.11(m) provides that the information so furnished
in online application form if found to be based upon the wrong
information or the evidence of suppression of fact if found, the
commission will be free to reject the candidature of such candidates.
62. The condition no.11(n) provides that the certified copy is to be
provided as under condition no.(11)(n)(v), the certificate pertaining to
the concerned Institute is also to be appended with the application
form, for ready reference, condition no.11(b), 11(m) and 11(n) are
being referred as under:-
"11- vkosnu i= Hkjus gsrq vko";d 'krZ ,oa funsZ'k %&
¼b½ Online Application esa vH;FkhZ }kjk nh xbZ lwpuk ds vk/kkj ij
mudh vH;fFkZrk lqfuf"pr dh tk;sxhA vH;FkhZ Online Application
Hkyh&Hkk¡fr foKkiu esa fufgr izko/kku ,oa funsZ"k ds vuqlkj gh HkjsaA
,d ckj Online Application esa dh x;h izfof'V ¼Entry½ ds ckn
mlesa fdlh Hkh rjg ds ifjorZu dk vuqjks/k vkosnu izkfIr dh vafre
frfFk ds i"pkr Lohdk;Z ugha gksxkA
¼m½ vkosnd }kjk vius vkosnu esa nh xbZ lwpukvksa ,oa fdlh Hkh Lrj
ij tk¡p ds Øe esa dksbZ xyr lwpuk ;k rF; fNikus dk izek.k
feyrk gS] rks vk;ksx ,sls vkosndksa dh vH;fFkZrk jn~~n djus ds fy,
Lora= gksxkA
¼n½ lk{kkRdkj gsrq vfHkys[k lR;kiu ds le; vkWuykbu vkosnu esa
fd;s x;s nkoksa ds vuq:i lHkh okafNr fuEu izek.k i=ksa dh
LovfHkizekf.kr izfr ewy izfr lfgr izLrqr djuk vfuok;Z gksxk %&
¼i½ eSfVªd izek.k i= ,oa vadi= dh Nk;kizfrA
¼ii½ baVjehfM,V izek.k i= ,oa vadi= dh Nk;kizfrA
¼iii½ ekU;rk izkIr laLFkku ls okLrqdyk@ch0 Iykfuax@vlSfud
vfHk;a=.k esa Lukrd mÙkh.kZrk dk izek.k i= ,oa vad i=A
¼iv½ ekU;rk izkIr laLFkku ls vcZu Iykfuax@VªkUliksVZ
- 34 - LPA No.126/2022 & analogous cases
Iykfuax@gkmflax@i;kZoj.k Iykfuax@{ks=h; Iykfuax esa ls fdlh ,d
fo'k; esa fof'kf'Vdj.k ds lkFk ekLVj vkWQ Iykfuax dh mikf/k izek.k
i= ,oa vad i=A
¼v½ bfULVV~~;wV vkWQ Vkmu IykulZ ¼bf.M;k½] ubZ fnYyh ls lkgp;Z
lnL;rk laca/kh izek.k i=A
¼vi½ tkfr izek.k [email protected]. izek.k i= ¼tgk¡ ykxw gks½A
¼vii½ esfMdy cksMZ }kjk fuxZr fodykaxrk izek.k i= ¼tgk¡ ykxw gks½A
¼viii½ vukifÙk izek.k i= ¼tgk¡ ykxw gks½A"
63. The admitted case herein is that as this Court has gathered from
the argument and the documents that as on the date of last date of
submission of application form, the private respondents were not
having with the requisite certificate issued from the concerned
Institute, since, it was only issued on 22.08.2020.
64. However, it appears from the online application form that the said
certificate has been shown to be possessed by giving the answer as
'yes' under the column that have you possessed the certificate of the
concerned institute.
65. It appears from the communication dated 21.07.2020 which is
the communication issued by the Secretary, Jharkhand Public Service
Commission addressed to the Principal Secretary, Urban Development
and Housing Department that a request was made based upon the
representation made through e-mail by the candidates who are having
no certificate of the concerned Institute for relaxation of the said rule,
for ready reference, the content of the letter dated 21.07.2020 is being
referred as under:-
la0la0% @ijh0&ts0ih0,l0lh0&56@2014@1481
>kj[k.M yksd lsok vk;ksx]
- 35 - LPA No.126/2022 & analogous cases
ldqZyj jksM] jk¡ph&834001
>kj[k.M yksd lsok vk;ksx] jk¡phA
lsok esa]
iz/kku lfpo]
uxj fodkl ,oa vkokl foHkkx]
>kj[k.M] jk¡phA
fo"k;%&lgk;d uxj fuos"kd ds in ij fu;qfDr gsrq izdkf"kr
foKkiu la[;k&04@2020 ds laca/k esaA
egk"k;]
funs"kkuqlkj mi;qZDr fo'k; ds lac/a k esa dguk gS fd
lgk;d uxj fuos"kd ds fjDr inksa ij fu;qfDr gsrq izkIr
foHkkxh; vf/klwpuk ,oa fu;qfDr fu;ekoyh ds izko/kkuksa ds
vkyksd esas vk;ksx }kjk foKkiu la[;k&04@2020 izdkf"kr
dj vkWuykbu vkosnu&i= vkeaf=r fd;k x;k gSA
mDr foKkiu esa mYysf[kr "kS{kf.kd vgZÙkk ds vkyksd
esa led{k "kS{kf.kd vgZÙkk/kkjh vH;fFkZ;ksa dks Hkh vkosnu
djus dk volj nsus ,oa bfULV;wV vkWQ Vkmu IykulZ
¼bf.M;k½] ubZ fnYyh ls lkgp;Z izkIr djus dh vgZÙkk dks
gVkus ds laca/k esa dfri; vH;fFkZ;ksa ls email ¼bZesy½ izkIr
gq, gSa] ftldh izfr;k¡ layXu gSaA
vr,o vuqjks/k gS fd vH;fFkZ;ksa ls izkIr bZesy ds
vkyksd esa led{k "kS{kf.kd vgZÙkkZ ,oa bfULV;wV vkWQ
Vkmu IykulZ ¼bf.M;k½] ubZ fnYyh ls lkgp;Z izkIr djus
dh vgZÙkk ds fcUnq ij foHkkxh; lqLi'V earO; vfoyEc
miyC/k djkus dh d``ik dh tk;A
fo"oklHkktu
lfpo]
>kj[k.M yksd lsok vk;ksx] jk¡phA
66. It further appears that the Secretary of the concerned
Department has refused to accept such request vide communication
- 36 - LPA No.126/2022 & analogous cases
dated 29.07.2020, for ready reference, the relevant part of the
communicated dated 29.07.2020 is being referred as under:-
i=kad & 1@LFkk0@"k0LFkk0fu0¼vf/k0½&05@2016@u0fo0 1927
>kj[k.M ljdkj
uxj fodkl ,oa vkokl foHkkx
izs"kd]
fou; dqekj pkScs]
ljdkj ds lfpoA
lsok esa]
lfpo]
>kj[k.M yksd lsok vk;ksx] jk¡phA
jk¡ph] fnukad
%&29@07@20
fo"k;%&lgk;d uxj fuos"kd ds in ij fu;qfDr gsrq izdkf"kr foKkiu
la[;k&04@2020 ds laca/k esaA
egk"k;]
mi;ZqDr fo'k;d vkids i=kad&1481 fnukad&21-07-2020 ds izlax esa dguk gS
fd uxj fuos"ku lsok ¼HkÙkhZ] izksUufr ,oa vU; "kÙksZa½ fu;ekoyh] 2014 ¼;Fkk la"kksf/kr]
2019½ esa lgk;d uxj fuos"kd ds in gsrq fu/kkZfjr "kS{kf.kd ;ksX;rk rFkk Institute
of Town Planners of India, New Delhi (ITPI) ls lkgp;Z lnL;rk izkIr djus dh
vgZrk dk fu/kkZj.k foHkkx Lrj ij lE;d fopkjksijkar fu/kkZfjr djrs gq, foÙk foHkkx]
fof/k foHkkx ,oa dkfeZd] iz"kklfud lq/kkj rFkk jktHkk'kk foHkkx ls lgefr@fof/k{kk
izkIr dj jkT; eaf=ifj'kn dh Lohd``fr mijkar vf/klwfpr fd;k x;k gSA
vr,o mi;qZDr rF; ds vkyksd esa uxj fuos"ku lsok fu;ekoyh esa lgk;d
uxj fuos"kd ds in ij fu;qfDr gsrq fu/kkZfjr "kS{kf.kd ;ksX;rk ,oa vU; vgZrk esa
fdlh izdkj dh la"kks/ku dh vko";drk ugha gSA
vuqjks/k gS fd uxj fuos"ku lsok ¼HkÙkhZ] izksUufr ,oa vU; "kÙksZa½ fu;ekoyh]
2014 ¼;Fkk la"kksf/kr] 2019½ ,oa bl Øe esa uxj fodkl ,oa vkokl foHkkx }kjk
lgk;d uxj fuos"kd ds in ij fu;qfDr gsrq izsf'kr vf/k;kpuk ds vkyksd esa fu;qfDr
dh vuq"kalk foHkkx dks miyC/k djkus dh d``ik djsaA
fo"oklHkktu
29@07@2020
¼fou; dqekj pkScs½
ljdkj ds lfpo
67. Thus, it is evident that the commission has acted to take initiation
to accommodate such candidates who were having no certificate of
the concerned Institute and it was also known to the private
respondents that the such conditions of appending the certificate of the
Institute is mandatory and that is the reason, the request through e-
mail was made to the commission for amendment in the rule.
68. The commission was also knowing that the said condition is
- 37 - LPA No.126/2022 & analogous cases
mandatory and therefore, a correspondence was made to the
Secretary of the concerned Department for amendment in the said
rule.
69. The Jharkhand Public Service Commission, thereafter, has
proceeded to somehow accommodate these appellants by convening
a Board's Meeting which was held on 07.12.2020, by assigning the
reason of Covid-19, the decision was taken for acceptance of the
candidature of the candidates, as would appear from the extracts of
the Minutes of Meeting dated 07.12.2020, for ready reference, the
same is being referred as under:-
"xksiuh; fnukad 07-12-2020 dks gqbZ vk;ksx dh cSBd dh dk;Zokgh
Ø0 l0 fo"k; vk;ksx ds fu.kZ;
03 2@ijh0&ts0ih0,l0lh0&56@2014 uxj fodkl ,oa vkokl foHkkxkUrxZr
uxj fodkl ,oa vkokl foHkkxkUrxZr lgk;d uxj fuos"kd ds dqy&77 fjDr inksa
lgk;d uxj fuos"kd dh fu;qfDr ij fu;fer fu;qfDr gsrq vf/k;kpuk dkfeZd]
gsrq vH;fFkZrk fu/kkkZj.k ds laca/k esaA iz"kklfud lq/kkj rFkk jktHkk'kk foHkkx ds
i=kad&474] fnukad&24-01-2020 ds }kjk
vk;ksx dks izkIr gqvk gSA izdkf"kr foKkiu
la[;k&04@2020 dh fjfDr;ksa ds fo:) izkIr
vkosnu i=ksa dh laoh{kksijkUr LØwVuh lfefr
}kjk lefiZr izfrosnu dh lwph ds vuqlkj
Lohd``fr ;ksX; vkosnuksa dh la[;k&130 o No.
of Candidates who obtained ITPI
membership after last date of Online
Application-186 n"kkZ;h xbZ gSA ;g Hkh
mYys[kuh; gS fd bl foKkiu ds fo:)
dfri; vH;fFkZ;ksa }kjk Covid-19 fo"oO;kih
egkekjh ds dkj.k bfULVV~~;Vw vkWQ Vkmu
IykulZ ¼bafM;k½] ubZ fnYyh ls lkgp;Z
lnL;rk izkIr djus esa dfBukbZ dk mYys[k
djrs gq, blds fy, vfrfjDr le; nsus dk
vuqjks/k fd;k x;k gSA rnkyksd esa fuEukafdr
izLrko ij vk;ksx dk fu.kZ; izkfFkZr gS%&
- 38 - LPA No.126/2022 & analogous cases
¼i½ lfefr ds izfrosnu dh lwph&dafMdk&8]
Øekad&3 ¼No. of Candidates who obtained
ITPI membership after last date of Online
Application½ ds dqy&186 vH;fFkkZ;ksa ls izkIr
Institute of Town Planners (India), New
Delhi ls lkgp;Z lnL;rk izek.k i= tks
muds }kjk vkWuykbZu vkosnu djus dh vafre
frfFk ds i'pkr izkIr fd;k x;k gS] dks
lk{kkRdkj gsrq lfEefyr fd;k tk ldrk gSA
¼ii½ lfefr ds izfrosnu dh lwph&dafMdk&8]
Øekad&2 (Doubtful cases regarding
required qualification) ds dqy&19
vH;fFkZ;ksa dh vH;fFkZrk fo'k;&fo"ks'kKksa ds
izfrosnu ds vuq:i fu/kkZfjr dh tk ldrh
gSA
pw¡fd dfri; vH;fFkZ;ksa }kjk Covid-19
fo"oO;kih egkekjh ds dkj.k ITPI ls lkgp;Z
lnL;rk izkIr djus esa dfBukbZ dk mYys[k
djrs gq, blds fy, vfrfjDr le; nsus dk
vuqjks/k fd;k x;k gS] vr,o bl ij xaHkhjrk
ls fopkj djrs gq, mi;qZDr izLrko ij lgefr
iznku dh tkrh gSA"
70. The candidature of the private respondents, thereafter, has been
accepted and their names have been recommended.
Issue No.(i)
71. The first question which requires consideration as per the ground
taken by the learned Single Judge in dismissing the writ petitions that
once the writ petitioners have been declared to be un-successful in the
process of selection, it is not available for the appellants to take turn
around and challenge the entire selection process.
72. The law is well settled that the principle of estoppel prevents a
candidate from challenging the selection process after being un-
- 39 - LPA No.126/2022 & analogous cases
successful.
73. The underlined objective of the principle is to prevent candidates
from trying another chance of consideration, reference in this regard,
may be made to the judgment rendered by the Hon'ble Apex Court in
the case of Manish Kumar Shahi Vrs. State of Bihar, reported in
(2010) 12 SCC 576, wherein, at paragraph-16, it has been held as
under:-
"16. We also agree with the High Court [Manish Kumar
Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2008)
4 PLJR 93] 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." [ See also: Madan Lal v. State of
J&K, (1995) 3 SCC 486 : 1995 SCC (L&S) 712, Marripati
Nagaraja v. State of A.P., (2007) 11 SCC 522 : (2008) 1
SCC (L&S) 68, Dhananjay Malik v. State of Uttaranchal,
(2008) 4 SCC 171 : (2008) 1 SCC (L&S) 1005 and K.A.
Nagamani v. Indian Airlines, (2009) 5 SCC 515 : (2009) 2
SCC (L&S) 57].
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.
74. However, the aforesaid principle will be not applicable in a
- 40 - LPA No.126/2022 & analogous cases
situation where the candidates alleges mis-construction of statutory
rules and discriminating consequences, the same cannot be condoned
merely because the candidate has taken part in it.
75. The aforesaid aspect of the matter has been considered by the
Hon'ble Apex Court in the case of Dr. (Major) Meeta Sahai Vrs. State
of Bihar & Ors., reported in (2019) 20 SCC 17, the relevant
paragraphs of the said judgment are being referred as under:-
"Preliminary issues
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 v. State of Bihar [Manish
Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 : (2011) 1
SCC (L&S) 256] , observing as follows: (SCC p.584, para 16)
"16. We also agree with the High Court [Manish Kumar
Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2008)
4 PLJR 93] 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." [ See also: Madan Lal v. State of J&K, (1995)
3 SCC 486 : 1995 SCC (L&S) 712, Marripati Nagaraja v.
State of A.P., (2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68,
Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC
- 41 - LPA No.126/2022 & analogous cases
171 : (2008) 1 SCC (L&S) 1005 and K.A. Nagamani v.
Indian Airlines, (2009) 5 SCC 515 : (2009) 2 SCC (L&S)
57].
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.
17. 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
- 42 - LPA No.126/2022 & analogous cases
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
the 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.
Statutory Interpretation
20. It is a settled canon of statutory interpretation that as a
first step, the courts ought to interpret the text of the provision
and construct it literally. Provisions in a statute must be read
in their original grammatical meaning to give its words a
common textual meaning. However, this tool of interpretation
can only be applied in cases where the text of the enactment
is susceptible to only one meaning. [Nathi Devi v. Radha Devi
Gupta, (2005) 2 SCC 271, para 13.] Nevertheless, in a
situation where there is ambiguity in the meaning of the text,
the courts must also give due regard to the consequences of
the interpretation taken.
21. It is the responsibility of the courts to interpret the text in a
manner which eliminates any element of hardship,
inconvenience, injustice, absurdity or anomaly. [G.P. Singh on
Principles of Statutory Interpretation, 14th Edn., 2016, pp.
145-170.] This principle of statutory construction has been
approved by this Court in Modern School v. Union of India
[Modern School v. Union of India, (2004) 5 SCC 583, para 62:
2 SCEC 577], by reiterating that a legislation must further its
objectives and not create any confusion or friction in the
system. If the ordinary meaning of the text of such law is non-
conducive for the objects sought to be achieved, it must be
interpreted accordingly to remedy such deficiency.
22. There is no doubt that executive actions like
advertisements can neither expand nor restrict the scope or
object of laws. It is therefore necessary to consider the
interpretation of the phrase "government hospital" as
appearing in the Rules. Two interpretations have been put
forth before us which can be summarised as follows:
- 43 - LPA No.126/2022 & analogous cases
(a.) Only hospitals run by the Government of Bihar.
(b). Hospitals run by the Bihar Government or its
instrumentalities, as well as any other non-private
hospital within the territory of Bihar.
The former interpretation to the term, as
accorded to it by the respondents, forms a narrower
class whereas the latter interpretation used by the
appellant is broader and more inclusive."
76. It is equally settled that the eligibility and suitability are to be
considered on the last date of receiving application unless the
notification specify such date, reference in this regard, may be made to
the judgment rendered by the Hon'ble Apex Court in the case of Dr.
M.V. Nair Vrs. Union of India & Ors., reported in (1993) 2 SCC 429,
wherein, at paragraph-9, it has been held as under:-
"9. In the above situation, it was necessary for the Tribunal
to have recorded a finding on the correctness or otherwise
of the above submission of the Union of India and Dr Nair.
Without doing so, the Tribunal could not have set aside the
appointment of Dr Nair to the said post. The Tribunal was
also not justified in holding that Dr Bhatnagar was also
equally qualified and eligible for the said post like Dr Nair
when Dr Bhatnagar had himself come forward with the
plea that he was not eligible and asked for grant of
relaxation to make him eligible. The Tribunal, in our
opinion, was also not justified in stating, in the direction
granted by it, that inasmuch as Dr Bhatnagar "has by now
become eligible in all respects under the recruitment rules,
his suitability should be considered along with other eligible
candidates and if he is found suitable for the appointment
he should be appointed to the said post". It is well settled
that suitability and eligibility have to be considered with
reference to the last date for receiving the applications,
unless, of course, the notification calling for applications
itself specifies such a date."
77. Further, the Hon'ble Apex Court in the case of Harpal Kaur
Chahal (Smt.) Vrs. Director, Punjab Instructions, Punjab & Anr.,
- 44 - LPA No.126/2022 & analogous cases
reported in (1995) Suppl. 4 SCC 706, has held at paragraph-2 as
under:-
"2. It is contended for the appellant that since the
appellant had been appointed by the duly constituted
Departmental Selection Committee and as on the date
of interview since the appellant had the qualification, her
selection and appointment cannot be said to be illegal.
We find no force in the contention. It is to be seen that
when the recruitment is sought to be made, the last date
has been fixed for receipt of the applications. Such of
those candidates who possessed of all the qualifications
as on that date alone are eligible to apply for and to be
considered for recruitment according to rules. Since the
appellant had not possessed the Physical Training
Instructor qualifications as on that date, her illegal
consideration by the Board and recommendation for
appointment and the appointment made in furtherance
thereof are illegal. Therefore, we cannot accept the
contention of the learned counsel in that behalf."
78. Further, the Hon'ble Apex Court in the case of Ashok Kumar
Sharma and Ors. Vrs. Chander Shekhar & Anr., reported in (1997) 4
SCC 18, has held at paragraph-6 as under:-
"6. The review petitions came up for final hearing on 3-3-
1997. We heard the learned counsel for the review
petitioners, for the State of Jammu & Kashmir and for
the 33 respondents. So far as the first issue referred to
in our Order dated 1-9-1995 is concerned, we are of the
respectful opinion that majority judgment (rendered by
Dr T.K. Thommen and V. Ramaswami, JJ.) is
unsustainable in law. The proposition that where
applications are called for prescribing a particular date
as the last date for filing the applications, the eligibility of
the candidates shall have to be judged with reference to
that date and that date alone, is a well-established one.
- 45 - LPA No.126/2022 & analogous cases
A person who acquires the prescribed qualification
subsequent to such prescribed date cannot be
considered at all. An advertisement or notification
issued/published calling for applications constitutes a
representation to the public and the authority issuing it is
bound by such representation. It cannot act contrary to
it. One reason behind this proposition is that if it were
known that persons who obtained the qualifications after
the prescribed date but before the date of interview
would be allowed to appear for the interview, other
similarly placed persons could also have applied. Just
because some of the persons had applied
notwithstanding that they had not acquired the
prescribed qualifications by the prescribed date, they
could not have been treated on a preferential basis.
Their applications ought to have been rejected at the
inception itself. This proposition is indisputable and in
fact was not doubted or disputed in the majority
judgment. This is also the proposition affirmed in Rekha
Chaturvedi v. University of Rajasthan [1993 Supp (3)
SCC 168 : 1993 SCC (L&S) 951 : (1993) 25 ATC 234] .
The reasoning in the majority opinion that by allowing
the 33 respondents to appear for the interview, the
recruiting authority was able to get the best talent
available and that such course was in furtherance of
public interest is, with respect, an impermissible
justification. It is, in our considered opinion, a clear error
of law and an error apparent on the face of the record. In
our opinion, R.M. Sahai, J. (and the Division Bench of
the High Court) was right in holding that the 33
respondents could not have been allowed to appear for
the interview."
79. Likewise, the judgment rendered by the Hon'ble Apex Court in
the case of State of Orissa & Anr. Vrs. Mamta Mohanty, reported in
(2011) 3 SCC 436, wherein, at paragraph-43(B), it has been held as
under:-
- 46 - LPA No.126/2022 & analogous cases
"43(B). The candidates selected must be qualified as on
the last date for making applications for the posts in
question or on the date to be specifically mentioned in the
advertisement/notification for the purpose. ..."
80. Here, in the given facts of the case that admittedly the writ
petitioners had participated in selection process and when the
recommendation was made of the candidates whose candidature was
fit to be rejected at the threshold but the same was considered and the
recommendations have been made and when the said fact came to
the notice of the Appellants, they have approached this Court by filing
the writ petitions.
81. The question of taking turn around so as to apply the principle of
estoppel in the facts and circumstances of the given case will not be
applicable for the reason that the candidature of the private
respondents admittedly ought to have been rejected but only in order
to accommodate them, first the JPSC has made a correspondence to
the State authority for making recommendation for amendment in the
rule so as to accommodate them and further when, the State has not
acceded then, the commission itself has taken decision by granting
relaxation.
82. These internal affairs cannot be known to the appellants and the
same had only known to the appellants the day when the
recommendation was made. Therefore, it is a question where the
entire process of selection has been challenged after the decision of
recommendation taken by commission and hence, the principle of
taking turn around will not be applicable herein, rather, as per the ratio
laid down by the Hon'ble Apex in the case of Dr. (Major) Meeta Sahai
- 47 - LPA No.126/2022 & analogous cases
Vrs. State of Bihar & Ors. (supra) will govern the case wherein the
candidate alleges mis-construction and exceeding the jurisdiction by
the commission for the purpose of discriminating the appellants.
Issue No.(ii), (iii)& (iv)& (vi)
83. There is no dispute that the world has faced the trauma of the
Covid-19 Pandemic and the Hon'ble Apex Court has taken care of and
so many orders have been passed for arresting the period of limitation
too.
84. But the question is that whether the commission has got any
power to take such decision with respect to the question of concern
herein.
85. The power of the Public Service Commission is the advisory
power. It is empowered to give advice to the Governor of any State on
the following affairs:-
(i) On all matters related to the appointment of civil
services of the Government.
(ii) The evaluation of efficiency and standard of
candidates for appointment, promotion and transfer
on all civil posts.
(iii) On all matters regarding the discipline and
punctuality of the employees of the civil services.
(iv) The matters associated with the demands and
benefits of employees working under the civil
services and employees injured while on duty.
(v) It also has power to deal with the matters related to
punishment majors of those employees who have
- 48 - LPA No.126/2022 & analogous cases
violated the discipline or with all matters related to
the interest of the government employees.
86. Thus, the Constitution of India has simply made the State Public
Service Commission as advisory institution which provides advice on
the subject sent to it by the Governor of the State. But acceptance or
denial of advice is to absolute discretion of the Government.
87. This is because we are living in the democratic set up by
adopting a responsible self-governing government wherein the powers
and responsibilities of the council of the Ministers cannot be delegated
to its employees or any other organization.
88. Admittedly, the State Commission is the creation of Article 315 of
the Constitution of India and being a constitutional body, the
commission is not supposed to take any decision regarding relaxing
the condition of advertisement which is based upon the rule, since, the
power to relax the rule is only upon the State and not upon the
Commission, reference in this regard be made to the judgment
rendered by the Hon'ble Apex Court in the case of Delhi Subordinate
Services Selection Board Vrs. Praveen Kumar, reported in (2016)
SCC Online SC 1549, wherein, at paragraph-8, it has been held as
under:-
"8. The High Court in Sachin Gupta case [Sachin Gupta
v. Delhi Subordinate Services Selection Board, 2008 SCC
OnLine Del 989 also accepted the well-recognised
principle 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, any challenge to the same, merely
- 49 - LPA No.126/2022 & analogous cases
because it renders some candidates ineligible, ought to
be rejected. Fixing of such age-limit for a given post is a
matter of policy as held by this Court in Union of India v.
Shivbachan Rai [Union of India v. Shivbachan Rai, (2001)
9 SCC 356."
89. Further, the Hon'ble Apex Court in the case of Ashok Kumar
Uppal And Ors. Vs. State of J & K & Ors., (1998) 4 SCC 179,
wherein, it has been observed that power to relax the recruitment rules
or any other rules made by the State Government under Article 309 of
the Constitution etc. is conferred to meet any emergent situation where
injustice might have been caused or is likely to be caused to any
individual or class of employees and where working of a rule might
become impossible. The said power, in service jurisprudence and in
administrative law is necessarily and should be conceded to the
employer, particularly in the case of the Government, a model
employer, who has to deal with hundreds of employees.
90. The Hon'ble Apex Court further in the case of J.C. Yadav v.
State of Haryana, [(1990) 2 SCC 189 : 1990 SCC (L&S) 218],
wherein, it has been held as under:-
"The relaxation of the Rules may be to the extent the State
Government may consider necessary for dealing with a
particular situation in a just and equitable manner. The scope
of Rule is wide enough to confer power on the State
Government to relax the requirement of Rules in respect of
an individual or class of individuals to the extent it may
consider necessary for dealing with the case in a just and
equitable manner. The power of relaxation is generally
contained in the Rules with a view to mitigate undue hardship
or to meet a particular situation. Many a time strict application
of service rules create a situation where a particular
- 50 - LPA No.126/2022 & analogous cases
individual or a set of individuals may suffer undue hardship
and further there may be a situation where requisite qualified
persons may not be available for appointment to the service.
In such a situation the Government has power to relax
Requirement of Rules. The State Government may in
exercise of its powers issue a general order relaxing any
particular rule with a view to avail the services of requisite
officers. The relaxation even if granted in a general manner
would ensure to the benefit of individual officers."
91. Herein, the Commission being the constitutional body was only
to accept the requisition and to proceed for the process of selection
based upon the recruitment rules but instead of doing so, the
commission has exercised the power as if that, the commission has
got administrative power to make relaxation, which according to our
considered view, is not available with the commission.
92. So far as the question of Covid-19 Pandemic is concerned,
reference is need to be made regarding granting relaxation in age in
the judicial service examination of the NCT, Delhi and when it was not
acceded to, the concerned candidates had preferred writ petition
before the Delhi High Court. The matter has travelled to the Hon'ble
Apex Court and Hon'ble Supreme Court has considered the ground of
Pandemic Covid-19 to be a genuine ground, due to that reason, the
process of selection could not be initiated for two years and in the
meanwhile, the age of the candidates had expired and in that view of
the matter, it is the Court of law wherein the direction was issued for
relaxing the age, reference in this regard be made to the Judgment
rendered by the Hon'ble Apex Court in the case of High Court of
Delhi Vrs. Devina Sharma, reported in (2022) 4 SCC 643, wherein, at
paragraphs-17 and 18, it has been held as under:-
- 51 - LPA No.126/2022 & analogous cases
"17. The time schedule for conducting the recruitment
process to the judicial service has been stipulated by the
judgment of this Court in Malik Mazhar Sultan (3) v. U.P.
Public Service Commission [Malik Mazhar Sultan
(3) v. U.P. Public Service Commission, (2008) 17 SCC
703 : (2010) 1 SCC (L&S) 942] . The object and purpose
of the directions of this Court has been to ensure that
the recruitment process for the judicial service is
conducted on schedule every year, subject to the rules
of each High Court. The High Court of Delhi held its last
examination for recruitment to DJS in 2019. Admittedly,
no examination has been held in 2020 or in 2021. The
examination for 2020 could not be conducted since the
process for 2019 was still to be completed. The
examination for 2020 could not be held due to the onset
of the COVID-19 Pandemic. In this backdrop, since the
examination was not conducted for two recruitment
years, the High Court has after considering the issue
stated before this Court through the learned Senior
Counsel that as a one-time measure, this Court may
accept the suggestion that candidates who would have
qualified for the examinations were they to be held on
schedule for recruitment years 2020 and 2021 in terms
of the rules as they then stood, may be permitted to
appear for the ensuing examinations.
18. Having regard to the fact that the recruitment
examination for DJS has been last held in 2019 and two
recruitment years have elapsed in the meantime, we are
of the view that the suggestion of the High Court should
be accepted for this year. The consequence of the
acceptance of the suggestion by this Court, would be
that candidates who would have fulfilled the upper age
limit of 32 years, for the recruitment years 2020 and
2021 would be eligible to participate in the examination
for the ensuing recruitment year 2022. The age bar
which they would now encounter is not of their own
volition. The real element of hardship faced by such
- 52 - LPA No.126/2022 & analogous cases
candidates has been remedied by the High Court and
there is no reason for this Court not to accept the
suggestion. The examination cannot however, be
postponed indefinitely nor can the candidates who have
applied be left in a state of uncertainty. The existing
candidates can have no grievance by the widening of
the competition. In order to facilitate this exercise, we
accept the suggestion of the High Court that the last
date for the receipt of application forms shall be
extended to 3-4-2022 and the examination shall be held
on 24-4-2022. We direct that no impediment shall be
caused in the conduct of the examination and no court
shall issue any order of stay at variance with or contrary
to the above directions of this Court."
93. The purpose of referring this judgment is that exactly on the
similar ground of Covid-19 Pandemic, the affected person had
approached the Court of law for seeking such relief, but herein, the
private respondents have not approached any Court of law for seeking
direction in this regard instead they have approached the commission
basis upon which, the commission has taken decision.
94. This Court, therefore, is of the view that the ground as has been
taken of Covid-19 Pandemic is considered to be genuine ground but
the approach which has been adopted by the private respondents, is
not proper.
95. The Commission, even though, having no jurisdiction to relax the
rule but conducted a meeting and granted relaxation, the question
arises herein that under which provision the relaxation has been
provided?
96. This Court has posed a pin-pointed question upon Mr. Sanjoy
Piprawall, learned counsel appearing for the JPSC as to under which
- 53 - LPA No.126/2022 & analogous cases
provision of law, the candidature of such candidates was accepted by
granting relaxation in the mandatory condition.
97. The learned counsel for the JPSC has failed to point out any
conferment of power.
98. There cannot be any conferment of power to the commission,
since, the Commission is only to recommend the suitable candidate
after conducting the recruitment process based upon the recruitment
rules formulated by the State Government.
Issue No.(v)
99. The next question will be that whether the condition stipulated
under the education qualification read with condition no.11(b), 11(m) &
11(n), can be considered to be directory or mandatory.
100. This Court after going through the condition as referred together,
is of the view that the submission of the certificate obtained from the
concerned Institute is a mandatory condition keeping the fact into
consideration that the condition as referred in condition no.11(v) that
certificate of concerned institute is mandatorily to be submitted along
with the application form coupled with reference to the condition that in
case of any incomplete application form, the application of such
candidate is to be rejected.
101. The law is well settled that if any condition is there showing the
consequence in adverse then such condition will be said to be
mandatory, reference in this regard may be made to the judgment
rendered by the Hon'ble Apex Court in the case of Dalchand Vrs.,
Municipal Corporation, Bhopal & Anr., reported in (1984) 2 SCC
486, wherein, it has been held as under:-
- 54 - LPA No.126/2022 & analogous cases
".... .... ....There are no ready tests or invariable
formulae to determine whether a provision is mandatory
or directory. The broad purpose of the statute is
important. The object of the particular provision must be
considered. The link between the two is most important.
The weighing of the consequence of holding a provision
to be mandatory or directory is vital and, more often than
not, determinative of the very question whether the
provision is mandatory or directory. Where the design of
the statute is the avoidance or prevention of public
mischief, but the enforcement of a particular provision
literally to its letter will tend to defeat that design, the
provision must be held to be directory, so that proof of
prejudice in addition to non-compliance of the provision
is necessary to invalidate the act complained of. It is well
to remember that quite often many rules, though couched in
language which appears to be imperative, are no more than
mere instructions to those entrusted with the task of
discharging statutory duties for public benefit. The negligence
of those to whom public duties are entrusted cannot by
statutory interpretation be allowed to promote public mischief
and cause public inconvenience and defeat the main object
of the statute. It is as well to realise that every prescription of
a period within which an act must be done, is not the
prescription of a period of limitation with painful
consequences if the act is not done within that period. Rule
9(j) of the Prevention of Food Adulteration Act, as it then
stood, merely instructed the Food Inspector to send by
registered post copy of the Public Analyst's report to the
person from whom the sample was taken within 10 days of
the receipt of the report. Quite obviously the period of 10
days was not a period of limitation within which an action was
to be initiated or on the expiry of which a vested right
accrued. The period of 10 days was prescribed with a view to
expedition and with the object of giving sufficient time to the
person from whom the sample was taken to make such
arrangements as he might like to challenge the report of the
- 55 - LPA No.126/2022 & analogous cases
Public Analyst, for example, by making a request to the
Magistrate to send the other sample to the Director of the
Central Food Laboratory for analysis. Where the effect of
non-compliance with the rule was such as to wholly deprive
the right of the person to challenge the Public Analyst's report
by obtaining the report of the Director of the Central Food
Laboratory, there might be just cause for complaint, as
prejudice would then be writ large. .Where no prejudice was
caused there could be no cause for complaint. I am clearly of
the view that Rule 9(j) of the Prevention of Food Adulteration
Rules was directory and not mandatory. The decisions
in Public Prosecutor v. Murlidhar [1977 Cr LJ 1634 (AP) :
1977 Andh LT 34 : 1977 MLJ (Cri) 205] and Bhola
Nath v. State [1977 Cr LJ 154 (Cal) : (1977) 1 FAC 38] to the
extent that they hold that Rule 9(j) was mandatory are not
good law. The petition is dismissed.
102. Likewise, the Hon'ble Apex Court in the case of Patil
Automation (P) Ltd. & Ors. Vrs. Rakheja Engineers (P) Ltd.,
reported in (2022) 10 SCC 1, wherein, it has been held at paragraph-
34, which reads as under:-
34. In Bhikraj Jaipuria v. Union of India [Bhikraj
Jaipuria v. Union of India, AIR 1962 SC 113] , a Bench of
five learned Judges dealt with the question arising out of
Section 175(3) of the Government of India Act, 1935. The
Court, inter alia, had to deal with the question, whether
enactment should be considered directory or obligatory :
(AIR p. 119, para 17)
"17. The question still remains whether the purchase
orders executed by the Divisional Superintendent but
which were not expressed to be made by the Governor-
General and were not executed on behalf of the
Governor-General, were binding on the Government of
India. Section 175(3) plainly requires that contracts on
behalf of the Government of India shall be executed in
the form prescribed thereby; the section however does
- 56 - LPA No.126/2022 & analogous cases
not set out the consequences of non-compliance. Where
a statute requires that a thing shall be done in the
prescribed manner or form but does not set out the
consequences of non-compliance, the question whether
the provision was mandatory or directory has to be
adjudged in the light of the intention of the legislature as
disclosed by the object, purpose and scope of the statute.
If the statute is mandatory, the thing done not in the
manner or form prescribed can have no effect or validity :
if it is directory, penalty may be incurred for non-
compliance, but the act or thing done is regarded as
good. As observed in Maxwell on Interpretation of
Statutes, 10th Edn., p. 376:
'It has been said that no rule can be laid down for
determining whether the command is to be considered as
a mere direction or instruction involving no invalidating
consequence in its disregard, or as imperative, with an
implied nullification for disobedience, beyond the
fundamental one that it depends on the scope and object
of the enactment. It may perhaps be found generally
correct to say that nullification is the natural and usual
consequence of disobedience, but the question is in the
main governed by considerations of convenience and
justice, and when that result would involve general
inconvenience or injustice to innocent persons, or
advantage to those guilty of the neglect, without
promoting the real aim and object of the enactment, such
an intention is not to be attributed to the legislature. The
whole scope and purpose of the statute under
consideration must be regarded.'
Lord Campbell in Liverpool Borough
Bank v. Turner [Liverpool Borough Bank v. Turner, (1860)
30 LJ Ch 379 : 45 ER 715] observed : (ER p. 718)
'... No universal rule can be laid down ... as to
whether mandatory enactments shall be considered
directory only or obligatory with an implied nullification for
- 57 - LPA No.126/2022 & analogous cases
disobedience. It is the duty of courts of justice to try to get
at the real intention of the legislature by carefully
attending to the whole scope of the statute to be
construed.' "
103. Further, the Hon'ble Apex Court in the case of Bhavnagar
University v. Palitana Sugar Mill (P) Ltd. and Others, reported in
(2003) 2 SCC 111, wherein, at paragraph-42 and 43, it has been held
as under:-
"42. We are not oblivious of the law that when a public
functionary is required to do a certain thing within a specified
time, the same is ordinarily directory but it is equally well
settled that when consequence for inaction on the part of the
statutory authorities within such specified time is expressly
provided, it must be held to be imperative.
43. In Sutherland's Statutory Construction, 3rd Edn., Vol. 3,
at p. 102 the law is stated as follows:
"... unless the nature of the act to be
performed, or the phraseology of the statute is
such that the designation of time must be
considered a limitation of the power of the
officer".
At p. 107 it is pointed out that a statutory direction to
private individuals should generally be considered as
mandatory and that the rule is just the opposite to that which
obtains with respect to public officers. Again, at p. 109, it is
pointed out that often the question as to whether a mandatory
or directory construction should be given to a statutory
provision may be determined by an expression in the statute
itself of the result that shall follow noncompliance with the
provision. At p. 111 it is stated as follows:
"As a corollary of the rule outlined above, the
fact that no consequences of non-compliance
are stated in the statute, has been considered
as a factor tending towards a directory
- 58 - LPA No.126/2022 & analogous cases
construction. But this is only an element to be
considered, and is by no means conclusive."
104. This Court, on the basis of the condition as stipulated in
condition no.11(v) and taking together the condition stipulated under
condition no.11(b), 11(m) & 11(n) of the Advertisement No.04/2020 is
of the view that the condition so stipulated is mandatory.
105. Further, it would be evident from the action of the JPSC that the
condition as reflected in the rule has been sought to be amended and
when it was not amended then decision was taken to grant relaxation
which also suggests and clarifies that the said condition was
mandatory.
Issue No.(vii)
106. In the online application form, the declaration has been given
that the private respondents were having the certificate but admittedly,
no certificate was there issued from the concerned institute prior to
10.08.2020, since, it was issued only on 22.08.2020.
107. The question is that on what basis, the declaration has been
given of having the said certificate by making reference of 'yes' in the
online application form. Is it not fraud/mis-representation on the part of
the concerned candidates?
108. The answer of this Court is that it is active concealment of fact.
Therefore, it needs to refer herein the definition of 'fraud' as has been
defined under Section 17 of the Contract Act which means that any
active concealment of fact will be treated to be fraud, for ready
reference, Section 17 of the Contract Act reads as under:-
"17. "Fraud" means and includes any of the following
acts committed by a party to a contract, or with his
connivance, or by his agent, with intent to deceive
- 59 - LPA No.126/2022 & analogous cases
another party thereto of his agent, or to induce him to
enter into the contract:--
(1) the suggestion, as a fact, of that which is not true,
by one who does not believe it to be true;
(2) the active concealment of a fact by one having
knowledge or belief of the fact;
(3) a promise made without any intention of performing
it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially
declares to be fraudulent.
Explanation.--Mere silence as to facts likely to affect
the willingness of a person to enter into a contract is
not fraud, unless the circumstances of the case are
such that, regard being had to them, it is the duty of the
person keeping silence to speak2 , or unless his silence
is, in itself, equivalent to speech."
109. It is the settled position of law that the fraud vitiates the very
solemnity of the act, in case of the fraud, the entire action will be said
to be suffer from impropriety, reference in this regard may be made to
the judgment rendered by the Hon'ble Apex Court in the case of
Devendra Kumar vs. State of Uttaranchal and Ors., reported in
(2013) 9 SCC 363 wherein it has been held at paragraphs-13, 14, 15,
16, 17 & 18, which reads hereunder as :
"13. It is a settled proposition of law that where an applicant
gets an office by misrepresenting the facts or by playing
fraud upon the competent authority, such an order cannot
be sustained in the eye of the law. "Fraud avoids all judicial
acts, ecclesiastical or temporal." (Vide S.P. Chengalvaraya
Naidu v. Jagannath.) In Lazarus Estates Ltd. v. Beasley the
Court observed without equivocation that: (QB p. 712) "...
No judgment of a court, no order of a Minister can be
allowed to stand if it has been obtained by fraud, for fraud
unravels everything."
14. In A.P. State Financial Corpn. v. GAR Re-Rolling Mills
and State of Maharashtra v. Prabhu this Court has observed
that a writ court, whileexercising its equitable jurisdiction,
- 60 - LPA No.126/2022 & analogous cases
should not act to prevent perpetration of a legal fraud as
courts are obliged to do justice by promotion of good faith.
"Equity is, also, known to prevent the law from the crafty
evasions and subtleties invented to evade law."
15. In Shrisht Dhawan v. Shaw Bros., it has been held as
under: (SCC p. 553, para 20)
"20. Fraud and collusion vitiate even the most
solemn proceedings in any civilised system of
jurisprudence. It is a concept descriptive of human
conduct."
16. In United India Insurance Co. Ltd. v. Rajendra Singh this
Court observed that "fraud and justice never dwell together"
(fraus et jus nunquam cohabitant) and it is a pristine maxim
which has not lost temper over all these centuries. A similar
view has been reiterated by this Court in M.P. Mittal v. State
of Haryana.
17. In Ram Chandra Singh v. Savitri Devi this Court held
that "misrepresentation itself amounts to fraud", and further
held: (SCC p. 327, para 18)
"18. A fraudulent misrepresentation is called deceit
and consists in leading a man into damage by wilfully
or recklessly causing him to believe and act on
falsehood. It is a fraud in law if a party makes
representations which he knows to be false, and
injury ensues therefrom although the motive from
which the representations proceeded may not have
been bad." The said judgment was reconsidered and
approved by this Court in Kendriya Vidyalaya
Sangathan v. Girdharilal Yadav.
18. The ratio laid down by this Court in various cases is that
dishonesty should not be permitted to bear the fruit and
benefit those persons who have frauded or misrepresented
themselves. In such circumstances the court should not
perpetuate the fraud by entertaining petitions on their
behalf. In Union of India v. M. Bhaskaran this Court, after
placing reliance upon and approving its earlier judgment in
Vizianagaram Social Welfare Residential School Society v.
- 61 - LPA No.126/2022 & analogous cases
M. Tripura Sundari Devi, observed as under: (M. Bhaskaran
case, SCC p. 104, para 6)
If by committing fraud any employment is
obtained, the same cannot be permitted to be
countenanced by a court of law as the
employment secured by fraud renders it voidable
at the option of the employer."
110. Herein, since, the private respondents were not having the
certificate since was issued only on 22.08.2020, while the last date of
submission of application form was 10.08.2020, therefore, the
declaration so given of possessing the said certificate prior to
submission of application form, i.e., 10.08.2020, according to our
considered view, a wrong declaration and as such, as per the condition
stipulated under condition no.11(m), the candidature of such
candidates ought to have been rejected but instead of doing so, their
candidature has been accepted by relaxing the mandatory condition
on the basis of the decision taken by the commission in order to meet
out the mandatory condition stipulated in the advertisement.
111. The further law is that if any condition is there in the
advertisement, the same is strictly to be adhered to, reference in this
regard may be made to the judgment rendered by the Hon'ble Apex
Court in the case of Ramesh Kumar Vrs. High Court of Delhi & Anr.,
reported in AIR 2010 SC 3714, wherein, at paragraph-13, it has been
held as under:-
"13. In Durgacharan Misra v. State of Orissa [(1987) 4 SCC
646 : 1988 SCC (L&S) 36 : (1987) 5 ATC 148 : AIR 1987 SC
2267] this Court considered the Orissa Judicial Service Rules
which did not provide for prescribing the minimum cut-off
marks in interview for the purpose of selection. This Court held
that in absence of the enabling provision for fixation of
- 62 - LPA No.126/2022 & analogous cases
minimum marks in interview would amount to amending the
Rules itself. While deciding the said case, the Court placed
reliance upon its earlier judgments in B.S. Yadav v. State of
Haryana [1980 Supp SCC 524 : 1981 SCC (L&S) 343 : AIR
1981 SC 561] , P.K. Ramachandra Iyer v. Union of
India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214 : AIR 1984 SC
541] and Umesh Chandra Shukla v. Union of India [(1985) 3
SCC 721 : 1985 SCC (L&S) 919 : AIR 1985 SC 1351] ,
wherein it had been held that there was no "inherent
jurisdiction" of the Selection Committee/Authority to lay down
such norms for selection in addition to the procedure
prescribed by the Rules. Selection is to be made giving strict
adherence to the statutory provisions and if such power i.e.
"inherent jurisdiction" is claimed, it has to be explicit and
cannot be read by necessary implication for the obvious
reason that such deviation from the Rules is likely to cause
irreparable and irreversible harm."
112. Further, the Hon'ble Apex Court in the case of Yogesh Kumar &
Ors. Vrs. Govt. of NCT, Delhi & Ors., reported in (2003) 3 SCC 548,
wherein, at paragraph-8, it has been held as under:-
"8. .... .... .... Deviation from the rules allows entry to
ineligible persons and deprives many others who could
have competed for the post. Merely because in the past
some deviation and departure was made in considering the
BEd candidates and we are told that was so done because
of the paucity of TTC candidates, we cannot allow a patent
illegality to continue. .... .... ...."
113. Likewise, the Hon'ble Apex Court in the case of Chief Manager,
Punjab National Bank & Anr. Vrs. Anit Kumar Das, reported in
(2021) 12 SCC 80, has held at paragraph-17.1 as under:-
"17.1. In Yogesh Kumar [Yogesh Kumar v. State (NCT of
Delhi), (2003) 3 SCC 548 : 2003 SCC (L&S) 346] , it is
observed and held by this Court that recruitment to public
service should be held strictly in accordance with the terms of
- 63 - LPA No.126/2022 & analogous cases
advertisement and the recruitment rules, if any. Deviation
from the rules allows entry to ineligible persons and deprives
many others who could have competed for the post."
Issue No.(viii) & (ix)
114. The further question is that when the State has accepted the
irregularity/illegality committed by the commission, basis upon which,
the recommendation so made by the commission, has been rejected
vide communication dated 07.02.2022, therefore, there is now no
dispute that the commission has not acted with fairness and
transparency so as to meet out the principle laid down under Article 14
and 16 of the Constitution of India, for ready reference and in order to
avoid any confusion, the decision so taken by the State rejecting the
recommendation dated 07.02.2022, is being referred as under:-
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115. Now, further issue is that as to whether at the cost of the genuine
candidate will it be proper for this Court to pass direction for a fresh
selection by notifying the advertisement.
116. The law is well settled that for some of the candidates who have
committed any malpractices or any irregularities by coming in the way
of process of selection, the genuine candidates cannot be allowed to
suffer, reference in this regard may be made to the judgment rendered
by the Hon'ble Apex Court in the case of Sachin Kumar & Ors Vs.
Delhi Subordinate Service Selection Board (DSSSB) & Ors.,
reported in [(2021) 4 SCC 631], wherein, at paragraph-35, it has been
held as under:-
"35.The rival submissions now needs to be analysed.
F. The position in law
35. In deciding this batch of SLPs, we need not
reinvent the wheel. Over the last five decades,
several decisions of this Court have dealt with the
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fundamental issue of when the process of an
examination can stand vitiated. Essentially, the
answer to the issue turns upon whether the
irregularities in the process have taken place at a
systemic level so as to vitiate the sanctity of the
process. There are cases which border upon or cross
over into the domain of fraud as a result of which the
credibility and legitimacy of the process is denuded.
This constitutes one end of the spectrum where the
authority conducting the examination or convening the
selection process comes to the conclusion that as a
result of supervening event or circumstances, the
process has lost its legitimacy, leaving no option but
to cancel it in its entirety. Where a decision along
those lines is taken, it does not turn upon a fact-
finding exercise into individual acts involving the use
of malpractices or unfair means. Where a recourse to
unfair means has taken place on a systemic scale, it
may be difficult to segregate the tainted from the
untainted participants in the process. Large-scale
irregularities including those which have the effect of
denying equal access to similarly circumstanced
candidates are suggestive of a malaise which has
eroded the credibility of the process. At the other end
of the spectrum are cases where some of the
participants in the process who appear at the
examination or selection test are guilty of
irregularities. In such a case, it may well be possible
to segregate persons who are guilty of wrongdoing
from others who have adhered to the rules and to
exclude the former from the process. In such a case,
those who are innocent of wrongdoing should not pay
a price for those who are actually found to be involved
in irregularities. By segregating the wrongdoers, the
selection of the untainted candidates can be allowed
to pass muster by taking the selection process to its
logical conclusion. This is not a mere matter of
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administrative procedure but as a principle of service
jurisprudence it finds embodiment in the constitutional
duty by which public bodies have to act fairly and
reasonably. A fair and reasonable process of selection
to posts subject to the norm of equality of opportunity
under Article 16(1) is a constitutional requirement. A
fair and reasonable process is a fundamental
requirement of Article 14 as well. Where the
recruitment to public employment stands vitiated as a
consequence of systemic fraud or irregularities, the
entire process becomes illegitimate. On the other
hand, where it is possible to segregate persons who
have indulged in malpractices and to penalise them
for their wrongdoing, it would be unfair to impose the
burden of their wrongdoing on those who are free
from taint. To treat the innocent and the wrongdoers
equally by subjecting the former to the consequence
of the cancellation of the entire process would be
contrary to Article 14 because unequals would then
be treated equally. The requirement that a public body
must act in fair and reasonable terms animates the
entire process of selection. The decisions of the
recruiting body are hence subject to judicial control
subject to the settled principle that the recruiting
authority must have a measure of discretion to take
decisions in accordance with law which are best
suited to preserve the sanctity of the process. Now it
is in the backdrop of these principles, that it becomes
appropriate to advert to the precedents of this Court
which hold the field.
117. Recently, the Hon‟ble Court further in the case of Tanvir Singh
Sodhi & Ors. Vs. State of Jammu and Kashmir & Ors., [2023 SCC
OnLine SC 344], similar view was taken, relevant paragraph of which
is quoted as under:
"78. In light of the pertinent selection procedure that was
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followed, we are unable to hold that the same was
mechanical or casual or suffered from irregularities
which were so grave or arbitrary in nature so as to justify
quashing the entire selection process. Further, we are
unable to trace the requirement of individual rolls being
signed and verified by the members of the Selection
Board, to any statute or rule. Therefore, we cannot
sustain the finding of the High Court that the entire
selection process was vitiated by such irregularity. The
High Court was not justified in quashing and setting
aside the entire selection process, more so when sixty-
four candidates including the appellants had been serving on
the said post for over a decade."
118. Here, in the facts and circumstances of the case that when the
State has admitted the fact and based upon the documents that the
illegality has been committed in accepting the candidature of the
private respondents which is the decision taken only when the writ
petitions again filed before this Court, meaning thereby, the
acceptance of candidature of the writ petitioners who even though
were not eligible to be considered by rejecting their candidature at the
threshold, in view of the mandatory condition as stipulated under
condition no.11(b)(m)(n) of the advertisement/rule but they have been
accommodated and not only accommodated, rather, their names have
also been recommended for appointment.
119. The said recommendation is in conflict with the interest of the
appellants, since, the claim of the appellants is that if the private
respondents have not been recommended, rather, if their candidature
would have been rejected at the threshold then, certainly the
candidature of the appellants would have been recommended.
- 68 - LPA No.126/2022 & analogous cases
120. This Court, therefore, is of the view that for the irregularity
committed on the part of some of the candidates, based upon which, if
any illegality has been committed by the constitutional functionary, as
is being admitted by the State, then question is why the fresh process
is to be initiated by issuing the advertisement and why at the cost of
the genuine candidates.
121. There is no dispute that while making the public employment, the
object of Article 16(1) coupled with the principle laid down under Article
14 of the Constitution of India, is required to be followed. But the
commission, a constitutional body has failed to discharge its
constitutional obligation by exceeding its jurisdiction in taking decision
of relaxing the condition of rule/advertisement and thereby, the entire
process of selection has been delayed for its illegal action.
122. This Court, based upon the aforesaid reasoning, is of the view
that the candidature of private respondents including all 186
candidates who were not found to be eligible on the day when the
application form was submitted, is required to be rejected due to not
possessing the certificate which is mandatory condition and thereafter,
the candidature of genuine candidates is required to be considered
and fresh recommendation is required to be made.
123. Accordingly, all the issues as referred hereinabove are being
answered.
124. Accordingly, this Court after having discussed the factual aspect
as above and coming to the order passed by the learned Single Judge,
which is the subject of the instant appeals, has found therefrom that
the principle of turn around has not properly been applied by taking
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into consideration the facts and circumstances.
125. Further, the learned Single Judge has also not appreciated the
fact that the JPSC has got no jurisdiction to relax the rules of
recruitments/conditions of advertisement.
126. Therefore, the order impugned so far as it relates to showing no
interference with the acceptance of candidature of private
respondents, is hereby quashed and set aside.
127. In consequence thereof, direction is being issued upon the
Commission to prepare a fresh recommendation after weeding out the
candidature of those 186 candidates who have obtained the required
certificate from I.T.P.I., New Delhi after the last date of submission of
form, i.e., 10.08.2020 and refer the same to the State Government.
128. Accordingly, the order passed by the learned Single Judge in
W.P.(S) Nos.1413 of 2021, 1516 of 2021 and 1517 of 2021 is hereby
quashed and set aside.
129. In the result, the instant letters patent appeal being L.P.A.
Nos.126 of 2022, 129 of 2022 and 135 of 2022 stand allowed.
130. The candidature of such candidates who are having the Institute
of Town Planner (India) certificate prior to 10.08.2020 and whose
application form is in consonance with the condition stipulated under
condition no.5 of the advertisement, needs to be accepted.
131. In view thereof, W.P.(S) Nos.5366 of 2021, 889 of 2022, 1007 of
2022, 1351 of 2022 and 1781 of 2022 stand disposed of with the
direction upon the Commission to prepare fresh list on scrutinizing the
candidature of writ petitioners of these writ petitions. If they are not in
the list of 186 candidates, rather, they are having the Institute of Town
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Planner (India) membership certificate prior to 10.08.2020, their
candidature needs to be considered for the purpose of preparing a
panel of recommendation.
132. The Commission is further directed to scrutinize the application
form of the candidates for the purpose of acceptance of their
candidature and if it is found that the candidates had submitted their
application form along with the certificate of Institute of Town Planner
which has been issued prior to 10.08.2020, their cases is to be
considered.
133. Further, the Commission is directed to reject the candidature of
such candidates whose application form is not in order, i.e., without
any required certificate issued by the concerned department or issued
after the cut-off date, i.e., last date of submission of application form.
134. The Chairman, Jharkhand Public Service Commission is directed
to conclude the selection process by constituting a fresh Committee by
taking care of the fact that the earlier member of the Committee may
not be the member of fresh one.
135. Before parting with the order, this Court is constrained to observe
herein that the Jharkhand Public Service Commission has exceeded
its jurisdiction and as per the discussion made hereinabove, is for
extraneous reason that is only to accommodate the candidates who
have not approached the Commission with the clean hands.
136. The J.P.S.C., while doing so, has not even considered its
domain, due to which, the entire selection process has lingered.
137. The genuine candidates have been made to suffer for no fault of
their own. Due to non-selection of the Town Planner, the public utility
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service has also been made to suffer.
138. This Court, in view of the aforesaid fact, is of the view that the
Chairman, Jharkhand Public Service Commission is to fix
accountability upon the members of the Committee, who had assigned
the duty for making recommendation for selection to the post of Town
Planner.
139. The State is also directed to look into the matter, so that, the very
majesty of the constitution of the Commission, as per the
Constitutional requirement, be maintained.
140. Let such exercise be completed within the period of two months
from the date of receipt/production of copy of this order.
141. In consequent to disposal of these appeals as also the writ
petitions, pending Interlocutory Application(s), if any, also stands
disposed of.
(Sujit Narayan Prasad, J.)
I agree (Navneet Kumar, J.)
(Navneet Kumar, J.)
Rohit/- A.F.R.
