Jharkhand High Court

Ganesh Mahato vs The State Of Jharkhand Through Home ... on 7 May, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   L.P.A. No. 531 of 2018
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Ganesh Mahato, 38, Son of Sri Chandreshwar Mahato (Chouhan), resident of village-Bhuda, P.O. Dhanbad, P.S. Dhansar, District-Dhanbad (Jharkhand) ... ... Petitioner/Appellant Versus

1.The State of Jharkhand through Home Secretary, Department of Home Affairs, Government of Jharkhand, having its office at Project Building, Dhurwa, P.O. & P.S. Dhurwa, District-Ranchi.

2.The Director General of Police, Government of Jharkhand, Ranchi, having its office at Police House near Project Building, Dhurwa, P.O. & P.S. Dhurwa, District-Ranchi.

3.The Deputy Inspector General of Police, North Chotanagpur Region, Hazaribagh-cum-Chairman, Police Selection Committee, Bokaro Board, Bokaro, P.O. P.S. and District- Bokaro.

4.The Senior Superintendent of Police, Dhanbad, P.O., P.S. and District-Dhanbad.

5.The Superintendent of Police, Dhanbad, P.O., P.S. and District-Dhanbad.

                           ...     ... Respondents/Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE ARUN KUMAR RAI

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For the Appellant : Mr. Ramchander Sahu, Advocate For the Respondent : None

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th Order No. 07 : Dated 7 May, 2024 Sujit Narayan Prasad, J:

1. The instant application has been filed for condonation of

delay of 44 day in filing the present petition.

2. Heard learned counsel for the appellant.

3. In view of reason assigned in the application, the delay

in filing the petition is condoned.

4. Accordingly, I.A. No. 1999 of 2024 stands disposed of.

5. The instant appeal, under clause 10 of the Letters

Patent, is directed against order dated 06.07.2018 passed in

W.P. (S) No. 52 of 2018 by learned Single Judge whereby and

whereunder the writ petition has been dismissed by declining

to pass positive direction in favour of writ petitioner.

6. The brief facts of the case, as per the pleading made in

the writ petition, reads as under:

7. On 13.01.2004, an advertisement being Advertisement

No. 01 of 2004 was published by the State of Jharkhand

inviting application for appointment on the post of non-

matric police in the Dhanbad District Police Force. The

appellant fulfilling all the eligibility criteria submitted

application for appointment on the post of non-matric police

in Dhanbad District Police Force. The appellant participated

in the process of selection and after selection he was directed

to appear physically along with all the original certificates on

25.09.2008. Accordingly, he appeared and submitted his

certificates etc.

8. Thereafter vide memo no. 3403 dated 06.11.2008,

issued from the office of Superintendent of Police, Dhanbad,

the petitioner was informed that in course of verification of

home address and character, it was found that the petitioner

is named accused in Dhanbad (Dhansar) P.S. Case No. 156 of

2008 and in course of investigation, the case against the

petitioner was found to be true. It has been stated that since

the petitioner did not inform about the pendency of the

criminal case, as such his candidature was cancelled.

9. However, later on, after full-fledged trial, the appellant

was acquitted in the said criminal case being Dhanbad

(Dhansar) P.S. Case No. 156 of 2008 vide judgment dated

18.09.2017 in S.T. No. 406 of 2011.

10. Pursuant thereto, he submitted representations before

the respondents-authorities but it did not evoke any

response, as such he filed writ petition being W.P. (S) No. 52

of 2018 which was dismissed by declining to pass positive

direction in favour of writ petitioner, against which, the

instant intra-court appeal has been filed.

11. It is evident from the factual aspect involved in the

present writ petition that in pursuance to advertisement

being Advertisement No. 01 of 2004 published by the State of

Jharkhand inviting application for appointment on the post of

non-matric police in the Dhanbad District Police Force, the

petitioner-appellant applied and in course of documents

verification, it was found that since he is named in a criminal

case, as such his candidature was cancelled.

12. However, in the said criminal case, later on he was

acquitted vide judgment dated 18.09.2017 passed in S.T. No.

406 of 2011. Thereafter, he approached this Court by filing

writ petition being W.P. (S) No. 52 of 2018 which was

dismissed by declining to pass positive direction in favour of

writ petitioner, against which, the instant intra-court appeal

has been filed.

13. Learned counsel for the appellant has submitted that

the very basis of cancellation of his candidature is the

pending criminal case, in which, he was subsequently

acquitted hence his candidature is fit to be considered for

appointment on the post of constable in terms of the

advertisement of the year 2004.

14. Learned counsel for the appellant, based upon the

aforesaid ground, has submitted that the same since has not

been taken into consideration by the learned Single Judge,

hence, the present appeal.

15. None is present to represent the respondents-State.

16. However, it appears from the impugned order that

before the writ Court ground inter alia has been taken by the

State that the offer of appointment was made in the year

2008 and the writ petition has been filed in the year 2018,

i.e. after 10 years long delay and it has been contended that

on this ground itself, the writ petition deserves to be

dismissed in limine.

17. It has been further argued that even if the petitioner has

been acquitted in the criminal case, no right has been

accrued to him for his appointment to the post of Police

Constable. At the time of appointment, a criminal case was

pending against the petitioner and admittedly, though he has

been acquitted but that order of acquittal was passed after

eight years i.e. in 2017. Furthermore, the recruitment

process with respect to Advt. No. 01/2014 are already over

and after the aforesaid advertisement, many advertisements

have been issued and floated by the respondent-State and at

present, appointments are being done by the Jharkhand Staff

Selection Commission and now the Home Department has no

role in the matter of selection process of Police Constables.

18. It has also been brought to the notice of the Court that

in view of policy decision of the State Government the

recruitment process with respect to Advt. No. 1/2004 has

already come to an end.

19. The learned Single Judge, taking into consideration the

submission advanced by learned counsel for the parties,

dismissed the writ petition, which is the subject matter of

instant intra-court appeal.

20. This Court, upon hearing learned counsel for the

appellant and after going through the pleading available on

record, has found that the candidature of the petitioner for

the purpose of consideration of appointment on the post of

constable in terms of the advertisement of the year 2004 was

rejected on the ground that at the time of verification of

document he did not disclose about the fact of pending

criminal case against him.

21. The petitioner, however, was acquitted in the said

criminal case vide judgment dated 18.09.2017 passed in S.T.

No. 406 of 2011 and thereafter, he made an application for

consideration of his claim. The respondents-authorities has

since passed no order and consequent upon the same the

writ petition was filed seeking direction for appointment on

the post of constable but the learned Single Judge has

dismissed the writ petition, hence, the present appeal.

22. The moot question which arises for consideration is as

to whether in the facts and circumstances of the case any

right has been accrued upon the petitioner to claim

appointment on the post of constable.

23. Here it would be relevant to deal with the

vested/accrued right. Rights are „vested‟ when right to

enjoyment, present or prospective, has become property of

some particular person or persons as present interest mere

expectancy of future benefits, or contingent interest in

property founded on anticipated continuance of existing laws,

does not constitute vested rights.

24. The word „vested‟ is normally used where an immediate

fixed right in present or future enjoyment in respect of a

property is created. With the long usage the said word „vest‟

has also acquired a meaning as "an absolute or indefeasible

right". It had a „legitimate‟ or "settled expectation" to obtain

right to enjoy the property etc. Such "settled expectation" can

be rendered impossible of fulfilment due to change in law by

the legislature. Besides this, such a "settled expectation" or

the so-called "vested right" cannot be countenanced against

public interest and convenience which are sought to be

served by amendment of the law.

25. Thus, "vested right" is a right independent of any

contingency. Such a right can arise from a contract, statute

or by operation of law. A vested right can be taken away only

if the law specifically or by necessary implication provide for

such a course.

26. In the light of the definition of the "vested right", it is

evident that right accrues to person or persons attached to an

institution or building or anything whatsoever, meaning

thereby, if an incumbent is claiming a vested right, he is to

substantiate before the court of law that the right has been

created in his favour by an order passed by the competent

authority in accordance with law.

27. Reference in this regard may be taken from the

judgment as rendered by the Hon‟ble Apex Court in the case

of MGB Gramin Bank v. Chakrawarti Singh [(2014) 13

SCC 583] wherein at paragraph 11, 12 and 13,the Hon‟ble

Apex Court has observed as follows:

"11. The word "vested" is defined in Black's Law Dictionary (6th Edn.) at p. 1563, as:

"Vested.--fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are „vested‟ when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute „vested rights‟.

12.In Webster's Comprehensive Dictionary (International Edition) at p. 1397, "vested" is defined as law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest.

13. Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision/scheme could be changed."

28. The admitted case of the writ petitioner is that his

candidature was rejected at the time of verification of

documents. The law is well settled that once candidature has

been rejected no right of such person will be there for re-

consideration of his candidature after the recruitment

process having been concluded.

29. It is settled position of law that till the date of offer of

appointment candidate has got no indefeasible right to claim

such appointment merely on the basis of recommendation of

their name in the final select list. Reference in this regard be

made to the judgment rendered in the case of Shankarsan

Dash v. Union of India [(1991) 3 SCC 47], wherein at

paragraph 7, it has been held as under:

"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha, Neelima Shangla v. State of Haryana or Jatinder Kumar v. State of Punjab."

30. Likewise the hon‟ble Apex Court in the case of State of

Orissa v. Rajkishore Nanda reported in (2010) 6 SCC

777 wherein by taking aid of the Constitution Bench

judgment of the Hon'ble Apex Court rendered in the case

of Shankarsan Dash v. Union of India (supra) has

observed that mere inclusion of the candidate's name in the

select list does not confer any right to be selected and If the

selection process is over, select list has expired and

appointments had been made, no relief can be granted by the

court at a belated stage. For ready reference the relevant

paragraph of the aforesaid Judgment is being quoted as

under

15. A Constitution Bench of this Court in Shankarsan Dash v. Union of India [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95 : AIR 1991 SC 1612] held that appearance of the name of a candidate in the select list does not give him a right of appointment. Mere inclusion of the candidate's name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination. (See also Asha Kaul v. State of J&K [(1993) 2 SCC 573 : 1993 SCC (L&S) 637 : (1993) 24 ATC 576] , Union of India v. S.S. Uppal [(1996) 2 SCC 168 : 1996 SCC (L&S) 438 : (1996) 32 ATC 668 : AIR 1996 SC 2340] , Bihar Public Service Commission v. State of Bihar [(1997) 3 SCC 198 : 1997 SCC (L&S) 775 : AIR 1997 SC 2280] , Simanchal Panda v. State of Orissa [(2002) 2 SCC 669 : 2002 SCC (L&S) 369] , Punjab SEB v. Malkiat Singh [(2005) 9 SCC 22 : 2006 SCC (L&S) 235] , Union of India v. Kali Dass Batish [(2006) 1 SCC 779 :

2006 SCC (L&S) 225 : AIR 2006 SC 789] , Divisional Forest Officer v. M. Ramalinga Reddy [(2007) 9 SCC 286 : (2007) 2 SCC (L&S) 410 : AIR 2007 SC 2226] , Subha B. Nair v. State of Kerala [(2008) 7 SCC 210 : (2008) 2 SCC (L&S) 409]

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, Mukul Saikia v. State of Assam [(2009) 1 SCC 386 : (2009) 1 SCC (L&S) 186 : AIR 2009 SC 747] and S.S. Balu v. State of Kerala [(2009) 2 SCC 479 : (2009) 1 SCC (L&S) 388] .

16. A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required.

It is the settled legal proposition that no relief can be granted to the candidate if he approaches the court after the expiry of the select list. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the court at a belated stage. (Vide J. Ashok Kumar v. State of A.P. [(1996) 3 SCC 320 :

1996 SCC (L&S) 707] , State of Bihar v. Mohd. Kalimuddin [(1996) 2 SCC 7 : 1996 SCC (L&S) 389 : (1996) 32 ATC 821 : AIR 1996 SC 1145] , State of U.P. v. Harish Chandra [(1996) 9 SCC 309 : 1996 SCC (L&S) 1240 : AIR 1996 SC 2173] , Sushma Suri v. Govt. of NCT of Delhi [(1999) 1 SCC 330 : 1999 SCC (L&S) 208] , State of U.P. v. Ram Swarup Saroj [(2000) 3 SCC 699] , K. Thulaseedharan v. Kerala State Public Service Commission [(2007) 6 SCC 190 : (2007) 2 SCC (L&S) 427] , Deepa Keyes v. Kerala SEB [(2007) 6 SCC 194 : (2007) 2 SCC (L&S) 430] and Subha B. Nair [(2008) 7 SCC 210 :

(2008) 2 SCC (L&S) 409] .)

31. It is evident from the aforesaid judgment that even on

the basis of recommendation made no right will be said to be

accrued for the purpose of appointment to the post rather

right will be said to be created only after issuance of

appointment letter in favour of one or the other but herein

admitted position is that no appointment letter was ever

issued rather in course of document verification the

candidature of the writ petitioner was cancelled.

Subsequently based upon the acquittal of the petitioner in

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the criminal case, the petitioner has made prayer for

consideration of his candidature for appointment on the post

in question but by efflux of time i.e., after lapse of 10 years

the recruitment process has already been concluded as also

in absence of any accrued right, after having been cancelled

his candidature during the course of document verification,

no consideration can be given for acceptance of his

candidature for appointment to the post in question.

32. Learned Single Judge, taking into consideration these

facts into consideration, has declined to pass positive