Jharkhand High Court

Vivek Kachhap vs The State Of Jharkhand on 4 October, 2024

Author: Deepak Roshan

Bench: Deepak Roshan

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      W.P.(S) No.781 of 2022
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1. Vivek Kachhap, S/O - Jitrahan Kachhap Age 25 Yrs R/O Village - Kesaro P.O. & P.S - Nagri

2. Subhas Oraon, S/O Etwa Oraon Age 30 Yrs, R/O Village Sugda, P.O. & P.S - Itki

3. Anil Tirkey, S/O - Mangra Tirkey Age 27 Yrs, R/O Village Lalgutawa P.O. & P.S - Nagri

4. Uday Oraon, S/O - Bhaiya Oraon Age 25 Yrs, R/O Village

- Lalgutawa P.O. & P.S - Nagri

5. Kishor Munda, S/O - Mani Munda Age 27 Yrs, R/O Village - sugda, P.O. & P.S - Itki

6. Akeel Ansari,S/O Amanat Ansari Age 25 Yrs, R/O village Turuguru, P.O. & P.S - Itki,

7. Digvijay Kumar S/O Ram Eqbal Sharma Age 30 Yrs, R/O Village Thakurgaon, P.O. & P.S - Itki,

8. Ajay Kumar shah, S/O Nanda Shah Age 30 Yrs, R/O Village - Anandhpur, P.O. & P.S itki

9. Madan Tirkey, S/O Budgaw Tirkey, Age 27 Yrs, R/O Village - Singhpur, P.O. & P.S - Nagri

10. Ebrahim Ansari S/O Manir Ansari Age 29 Yrs, R/O Village Turuguru, P.O. & P.S Itki

11. Jawed Ansari, S/O - Muslam Ansari Age 25 Yrs, R/O Village - Turuguru P.O. & P.S - Itki

12. Waseem Ansari, S/O - Arsad Ansari Age 26 Yrs, R/O Village Turuguru, P.O. & P.S - Itki

13. Barkha Ghadi, D/O-Etwa Munda, Age 28 Yrs R/O Village

- Nayasarai, P.O. & P.S-Nagri

14. Reena Kumari, D/o Santu Baitha, Age 30 Yrs, R/o Village - Naya Sarai (Kute) P.O. & P.S - Nagri,

15. Nurmhmad Ansari, S/O Yusuf Ansari Age 25 Yrs, R/O Village -Turuguru, P.O. & P.S - Itki

16. Taramani Lakra, D/O Somra Lakra Age 30 Yrs, R/O Village Kanke P.O. & P.S-Nagri

17. Mahadev Dhan, S/O Noga Dhan Age 26 Yrs, R/O Village

- Turuguru P.O. & P.S-Itki

18. Royal Tirkey, S/O Jatru Tirkey Age 28 Yrs, R/O Village Turuguru, P.O. & P.S-Itki

19. Amin Ansari, S/O Asgar Ansari Age 25 Yrs, R/O Village Turuguru, P.O. & P.S-Itki

20. Vashi Ansari, S/O Jibral Ansari Age 29 Yrs, R/o Village Turuguru. P.O. & P.S-Itki

21. Pradeep Minz, S/O Jattu Minz Age 27 Yrs, R/O Village - Ladda, P.O. & P.S - Nagri,

22. Emtiyaz Ansari, S/O - Habil Ansari Age 30 Yrs, R/O Village Turuguru P.O. & P.S-Itki

23. Sunita Minj, D/O - Budhwa Minj Age 27 Yrs, R/O Village

- Bhandra, P.O. & P.S - Itki

24. Sajan Munda, S/O Shyamdeo Munda, R/O Village - Daladili P.O. & P.S - Nagri

25. Anup Irkan Tigga, S/o Masih Charan Tigga Age 28 Yrs, R/o Village -Saparon, P.O. & P.S - Nagri,

26. Ankit Lakra S/o Patras Lakra Age 27 Yrs, R/o village Saparon, P.O. & P.S - Nagri,

27. Imtiyaz Ansari, S/O - Majlum Ansari Age 25 Yrs, R/O Village - Turuguru P.O. & P.S-Itki

28. Deepak Khalkho, S/o Laxman Khalkho Age 27 Yrs, R/o Village - saparon P.O. & P.S-Nagri,

29. Sahil Ansari, S/O Moin Ansari Age 28 Yrs, R/O Village - Turuguru, P.O. & P.S-Itki

30. Mohammad Ansar, S/O Jamiruddin Ansari Age 30 Yrs, R/O Village -Edchoro,P.O. & P.S - Nagri,

31. Anand Kumar, S/O Lachand Sahu Age 25 Yrs, R/O Village - Edchoro P.O. & P.S-Nagri

32. Saddam Hussain, S/O Imam Ali Age 27 Yrs, R/O Village

- Edchoro Р.О. &, P.S - Nagri

33. Ajay Kumar Thakur, S/O Mahendra Thakur Age 25 Yrs, R/O Village -Itki Teli Tola, P.O. & P.S-Itki

34. Sikandar Bhagat, S/O Bindeshwar Bhagat Age 26 Yrs, R/O Village - Itki P.O. & P.S - Itki

35. Piyush Kacchap, S/O Michael Kachhap Age 27 Yrs Age, R/O Village - Pamchdiha P.O. & P.S-Nagri,

36. Anand khalkho, S/O Gyan Khalkho Age 25 Yrs, R/O Village - Saharam, P.O. & P.S - Nagri,

37. Wasim Ansari, S/O Suleman Ansari Age 30 Yrs, R/O Village - Turuguru. P.O. & P.S-Itki,

38. Sanjay Kumar Shah, S/O Nanda Shah Age 26 Yrs, R/O Village - Anandhur P.O. & P.S - Itki

39. Lakhan Tirkey, S/O Aryan Tirkey Age 25 Yrs, R/O Village

-Singhpur, P.O. & P.S-Nagri

40. Birsa Oraon, S/O Budhwa oraon Age 29 Yrs, R/O Village Panchdiha, P.O. & P.S-Nagri

41. Rani Khess. D/o Etwa Khess Age 27 Yrs, R/o Village - Kulli, P.O. & P.S - Itki,

42. Nilam Oraon, D/O Mangra Oraon Age 27 Yrs, R/O Village Ranikhatanga P.O. & P.S - Itki

43. Litu Oraon, S/O - Sukra Oraon Age 25 Yrs, R/O Village Palma, P.O. & P.S-Itki

44. Jyoti Minj, D/O Sudhir Minj Age 30 Yrs, R/O Village Kulli, P.O. & P.S-Itki,

45. Shila Minz, D/O Esthhen Minz Age 27 Yrs, R/O Village - Ranikhatamga, P.O. & P.S-Itki,

46. Mojahid Ansari, S/O Asmuddhin Asari Age 25 Yrs, R/O Village - Turuguru P.O. & P.S - Itki,

47. Santosh Toppo, S/O Joseph Toppo Age 27 Yrs, R/O Village - Daladidi, P.O. & P.S - Nagri,

48. Sumit Minj, S/O Gansu Minj Age 26 Yrs, R/O Village Ranikhatnga P.O. & P.S-Itki,

49. Pinki Lakra, D/O Bikhu Oraon Age 28 Yrs, R/O Village - Labed, P.O. & P.S - Nagri

50. Bimal Subash S/O Harun Kujur Age 30 Yrs, R/O Village

- Kurgi, P.O. & P.S - Itki.

51. Niru Khalkho, D/O Irush Khalkho Age 27 Yrs, R/O Village - Turuguru, P.O. & P.S - Itki,

52. Silbya Kachhap, D/O Dayadham Kachhap Age 28 Yrs, R/O Village - Tilak Suti P.O. & P.S. Itki,

53. Sandip Minz, S/O Sunil Minz Age 25 Yrs, R/O Village - Ranikhatanga P.O. & P.S - Itki,

54. Rani Toppo, D/O-Soma Oraon, Age 27 Yrs R/O Ranikhantanga P.O. & P.S - Nagri

55. Meena Kujur, D/O Birsa Oraon Age 30 Yrs, R/O Village - Kurgi P.O. & P.S-Itki

56. Reena Minz D/O Zacharius minz, Age 28 Yrs, R/O Village Nachiyatu P.O. & P.S- Nagri

57. Sita Kumari Kachhap D/O Etwa Kachhap Age 29 Yrs, R/O Village - Pandu Toli Piska P.O. & P.S - Nagri

58. Asfaque Ansari, son of Hassan Ansari, Age 27 Yrs, R/O Village - Edchoro P.O. &, P.S - Nagri

All 1 to 58 are of District -Ranchi.

... Petitioners Versus

1. The State of Jharkhand

2. The Secretary, Home Government of Jharkhand, project Building, P.O. & P.S.- Dhurwa, District. Ranchi.

3. The Deputy Commissioner, Ranchi, Samaharnalaya Building, Kutchery Road, P.O. G.P.O. (Main) Ranchi, P.S.- Kotwali, District. - Ranchi.

4. The Director General - Cum - Commandant General, Home Guard Battallion, Ranchi, Rajendra Chowk, Doranda, P.O. & P.S. Doranda, District. - Ranchi.

5. The Senior Superintendent of Police, Ranchi, Samaharnalaya Building, Kutchery Road, P.O. G.P.O. (Main) Ranchi, P.S.- Kotwali, District. - Ranchi.

6. The District Commandant, Home Guard, Harmu, P.O. Doranda, P.S.- Argora, District. - Ranchi .......Respondents

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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Indrajit Sinha, Adv.

: Mr. Arpan Mishra, Adv.

For the Respondents: Mr. Divyam AC to SC-IV

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CAV ON:23.08.2024 Pronounced On:-04/10/2024

Heard Mr. Indrajit Sinha, learned counsel for

the petitioners assisted by Mr. Arpan Mishra and Mr.

Divyam AC to SC-IV appearing for the respondent-State.

2. The instant writ application has been preferred

by the petitioners praying therein for a direction upon

the respondent no.4 and 6 to consider the

representation dated 02.02.2022 (Annexure-4), and

consequently allow the petitioners for training as

directed by the respondent no.3 (Annexure-3).

3. An advertisement bearing Advertisement No.

01 /2016 was published by the State Government for

appointment on the post of Home Guards in 18 Blocks

in the District of Ranchi. As per the terms and

conditions of the Advertisement, the candidates should

be the local resident of concerned Block/Village, where

appointment was sought to be made. The date for filing

up the application forms was in between 15.05.2016 to

30.05.2016. The written examination was held on

28.01.2017 and physical efficiency test was also

conducted on 09.02.2017 in Jharkhand Armed Police 1,

Doranda, Ranchi.

4. The petitioners who are 58 in numbers have

applied under the Bero and Ratu Block. The petitioners

are the resident of Itki and Nagri Block. The Itki and

Nagri blocks were carved out of Ratu and Bero blocks,

but, in the advertisement, no recruitment for Itki and

Nagri blocks were to be made, and hence, the petitioners

bonafidely believed that they would be covered under

the Ratu and Bero blocks and accordingly participated

in the selection process. Even the respondents have

declared the results of the petitioners on their being

successful.

However, it is only at the time of sending the

candidates for training, that they on the basis of this

discrepancy of their not being local residence of the Ratu

and Bero blocks, did not send them up for training,

which gave rise to the cause of action to file the present

petition.

5. The issues which fall for consideration before

this Hon'ble Court are:

(i) Whether the candidates after participating in the

selection process can challenge the same ?

(ii) Whether there can be reservations on the basis of

local residence ?

(iii) Whether in absence of challenge to the

advertisement, the High Court under Article 226 of the Constitution

of India would ignore an unconstitutional clause in the

advertisement ?

6. Issue No.1

So far as in absence of challenge to the clause

in the advertisement which provides for 100 %

reservation for local resident of concerned

blocks/villages is concerned, there can be no estoppel.

Reference may be made in this regard to the judgment

passed by the Hon'ble Supreme Court of India reported

in (2019) 20 SCC 17 in the case of Dr. (Major) Meeta

Sahai Vrs. State of Bihar And Others; wherein at

paragraph-17 the Hon'ble Apex Court has held that:-

"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."

In the advertisement published by the State

Government, it is clear that it has reserved the post on

the basis of the residence. A candidate being a local

resident of the concerned blocks/villages would only get

employment and the candidates from other

blocks/villages would be left out. The same is in

violation of Article 16 of the Constitution of India as it

restricts from providing equal opportunity to the

candidates from participating in the selection process.

Similar issue fell for consideration before the

Hon'ble Supreme Court in a judgment rendered in

Satyajit Kumar and Ors. Versus The State of

Jharkhand & Ors. reported in 2022 SCC OnLine SC

954 wherein it has been held at paragraph 97 to 100 as

under:-

"97. Even otherwise, it is to be noted that it may be true that so far as basic education (at the level of primary section) is concerned, it may help student at the primary level (while providing basic education) to be taught in their own tribal language. But the same principle may not be applicable when question is of providing education at higher level viz. above 5th standard. Therefore, if the candidates belonging to other areas (non- Scheduled Areas/Districts) are given an opportunity to impart education (who may be more meritorious than the candidates belonging to the Scheduled Areas/Districts) than it will be more beneficial to the students belonging to the Scheduled Areas and their quality of the education shall certainly improve. The quality of education of the school-going children cannot be compromised by giving 100% reservation in favour of the teachers of the same/some districts and prohibiting the appointment to more meritorious teachers.

98. At this stage, it is required to be noted that even the impugned Order/Notification dated 14.07.2016 and the advertisement providing 100% reservations for local residents of concerned Scheduled Areas/Districts can be said to be violative of Article 13 of the Constitution of India also. As observed herein above, the impugned Order/Notification making 100% reservation for the local resident of the concerned Scheduled Districts/Areas is violative of Article 16(2) of the Constitution of India as it affects the fundamental rights guaranteed to the candidate belonging to the non-Scheduled Areas guaranteed under part III of the Constitution of India. As per Article 13 of the Constitution of India, the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of Article 13(2) shall to the extent of the contravention, be void. Therefore, also impugned Notification/Order/Advertisement making 100% reservation for the local

resident of the concerned Scheduled Areas/Districts shall be ultra vires Article 13 of the Constitution of India and shall be void.

99. Even under Article 16(3) of the Constitution of India, it is the Parliament alone, which is authorized to make any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State of Union Territory, any requirement as to residence within the State or Union territory prior to such employment or appointment. As per Article 35 of the Constitution of India, notwithstanding anything contained in the Constitution, the Parliament shall have and the Legislature of a State shall not have the power to make laws with respect to any of the matters which, under clause (3) of Article 16 may be provided for law made by Parliament. Therefore, impugned Notification/Order making 100% reservation for the local resident of the concerned Scheduled Area/Districts (reservation on the basis of resident) is ultra vires to Article 35 r/w Article 16(3) of the Constitution of India.

100. Applying the law laid down by this Court in the case of ChebroluLeela Prasad Rao (supra) and in view of the above discussion and for the reasons stated above, the High Court has not committed any error in concluding and holding that the Notification No. 5938 and Order No. 5939 dated 14.7.2016 issued by the State Government providing 100% reservation for the local residents of concerned Scheduled Districts/Areas as being unconstitutional and ultra vires Articles 14, 13(2), 15 and 16(2) of the Constitution of India. It is rightly observed and held that said Notification and Order would also violate Articles 16(3) and 35(a-i) of the Constitution of India. The High Court has also rightly observed and held that aforesaid Notification and Order is ultra vires to paragraph 5(1) of the Fifth Schedule of the Constitution of India. We are in complete agreement with the view taken by the High Court."

Thus, the Clause in the Advertisement relating

to 100% reservations for local residence of the

concerned Blocks/ Villages/ Districts have been

declared to be ultra-vires by the Hon'ble Supreme Court

of India in view of the judgment rendered in Satyajit

Kumar (supra).

In view of the aforesaid judgment passed by

the Hon'ble Apex Court, the clause in the advertisement

which provides for 100% reservation for local resident of

concerned blocks/village and providing employment on

the basis of local residence, is arbitrary and ultra vires

and consequently cannot be enforced. It has to be

ignored.

Although the petitioners have not challenged

the Advertisement in the writ petition, the High Court

under Article 226 of the Constitution of India cannot

enforce an unconstitutional clause. It is well settled that

the conditions which are un-constitutional are bound to

be ignored by the Courts when the question of their

enforcement arises and the mere facts that there is no

specific reliefs sought for to strike down or declare them

ultra vires would not stand in the Court's way of not

enforcing them. Reference may be made to the judgment

passed by Hon'ble Supreme Court of India in Shree

Bhagwati Steel Rolling Mills Versus Commissioner

of Central Excise And Another reported in (2016) 3

SCC 643 wherein paragraph-29 which reads as under:-

"29. It would be seen that Shri Aggarwal is on firm ground because this Court has specifically stated that rules or regulations which are in the nature of subordinate legislation which are ultra vires are bound to be ignored by the courts when the question of their enforcement arises and the mere fact that there is no specific relief sought for to strike down or declare them ultra vires would not stand in the court's way of not enforcing them. We also feel that since this is a question of the very jurisdiction to levy interest and is otherwise covered by a Constitution Bench decision of this Court, it would be a travesty of justice if we would not allow Shri Aggarwal to make this submission."

9. The State Government has filed an Affidavit

dated 13.08.2024 wherein they have stated at

paragraphs-6 and 7 that in the Block of Bero, 43 seats

are vacant whereas in Ratu Block, 36 seats are vacant.

10. Having regard to the aforesaid facts and in the

line of the judgments passed by the Hon'ble Supreme

Court of India in Satyajit Kumar (supra) it is held that

since in the present case, the advertisement was

published in the year 2016 and the cause of action for

filing the present writ petition arose in the year 2022,

when the petitioners were not sent up for training and in

the facts and circumstances of the case, the