Jharkhand High Court
Priyanka Rani vs The State Of Jharkhand Through Its ... on 26 September, 2024
Author: S.N. Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S). No. 173 of 2021
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Priyanka Rani .......... Petitioner
Versus
1. The State of Jharkhand through its Secretary-cum-Legal
Remembrancer, Department of Law, Ranchi.
2. The Principal Secretary, Personnel, Administrative Reforms and
Rajbhasa Department, Govt. of Jharkhand, Ranchi.
3. Jharkhand Public Service Commission through its Secretary,
Ranchi.
4. The Controller of Examination, Jharkhand Public Service
Commission, Ranchi.
.......... Respondents.
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CORAM: HON'BLE DR. JUSTICE S.N.PATHAK
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Petitioner : Mr. Manoj Tandon, Advocate
Mr. Adamya Kerketta, Advocate
For the Respondents : Mr. Gaurav Abhishek, AC to AG
Mr. Pravin Kumar Pandey, Advocate
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C.A.V. on 10/07/2024 Pronounced on 26/09/2024
Per: Dr. S.N. Pathak, J. Heard the parties.
Prayer
2. Instant writ application has been preferred by the petitioner for a
direction upon the respondents to consider the case of petitioner for
appointment to the post of Judicial Officer, Civil Judge (Jr. Div.) pursuant to
the Advt. No. 12/2018, issued by respondent No. 2 as one post in her
category is still vacant.
Facts of the Case
3. The Jharkhand Public Service Commission (for short "the JPSC")
floated an advertisement being Advt. No. 12/2018 for appointment of
Judicial Officers (Civil Judge, Junior Division). Altogether 107 posts were
advertised out of which 5 posts were reserved for Scheduled Caste
Category. The petitioner having the requisite qualification, applied for the
same under SC category and participated in the Preliminary Test, in which
petitioner was declared successful. Thereafter, she appeared in the Mains
Examination and successfully competed the same. Consequently, she was
called for interview and the petitioner appeared on the scheduled date i.e.
on 20.01.2020 at the office of respondent-JPSC. Thereafter, the respondent-
JPSC published the final result in which the name of petitioner did not
figure.
4. It is the case of petitioner that one Priyanka Kumari, who was at Sl.
No. 5 under SC Category did not appear for certificate verification and as
such, her candidature for appointment was rejected. Since the rank of
petitioner was not clear, she sought information under Right to Information
Act, in response to which vide letter dated 22.12.2020, it was informed by
the respondent-JPSC to the petitioner that her rank was 6th in SC Category.
It is the specific case of petitioner that since Priyanka Kumari, who was 5th
in rank under SC Category, failed to appear for certificate verification, the
petitioner ought to have been called for the same. But the same was not
done for the reasons best known to the respondents. Though petitioner
submitted representation on 19.10.2020 before the respondent No. 2 as also
to respondent No. 3 on 22.10.2020 requesting them to consider her case for
appointment but no heed has been paid to her such request.
Hence, the petitioner has been constrained to knock the door of this
Court.
Arguments advanced by learned counsel for the petitioner:
5. Learned counsel appearing for the petitioner submits that it is not a
case where the appointment letter has been served and somebody has not
joined but it is a case where during the selection process the 5th rank holder
did not appear for certificate verification and hence, the immediate next
candidate having 6th rank i.e. the petitioner ought to have been called for
certificate verification. Learned counsel further argues that the respondents
are duty bound to consider the case of petitioner for appointment pursuant
to Advt. No. 12/2018 in view of the fact that one post under SC Category to
which petitioner belongs is still vacant against which petitioner can be
accommodated. Learned counsel further argues that Priyanka Kumari (5th in
rank under SC Category) did not appear for certificate verification, the
respondents were duty bound to call the petitioner (who was 6 th in rank
under SC Category) for such certificate verification as she was the next
immediate candidate having 6th rank in the category of SC. The action of
respondents is violative of Articles 14 and 16 of the Constitution of India.
6. To buttress his arguments, learned counsel for the petitioner places
heavy reliance on the judgment of Hon'ble Apex Court in the following
cases:
(I) Munja Praveen Vs. State of Telangana, reported in (2017) 14 SCC
797.
(II) W.P.(S). No. 2361 of 2023 [Ram Prakash Ram Vs. the State of
Jharkhand & Ors.] along with W.P.(S). No. 2394 of 2023 [Hare
Ram Singh Vs. the State of Jharkhand & Ors.], disposed of on
26.06.2024
Arguments advanced by learned counsel for the respondents
7. Learned counsel for the respondent-JPSC and State jointly submit
that as per Clause 14 of the Jharkhand Judicial Service (Recruitment)
Regulation, 2013 and Clause-14 of the Advertisement No. 12/2018,
petitioner did not fall within the zone of consideration and as such, her
result was not published. Learned counsel submits that as per normal
practice, the final merit list used to be prepared on the basis of marks
obtained in Main Examination and Viva Voca Test both. Since the petitioner
has obtained 199.6 marks and the last selected candidate under SC Category
has obtained 200.69 marks, rightly her candidature was not considered by
the respondents. Learned counsel further argued that as per Clause 3(xv) of
the Circular issued by the Department of Personnel, Administrative
Reforms and Rajbhasha, Ranchi dated 26.11.2012, it is stated that if the
posts remains vacant due to non-joining of the candidates or any reason,
such vacancy shall be carried forward for the next advertisement. Learned
counsel further argues that the petitioner had appeared in the examination
process and when she was not selected finally, she filed the instant writ
application before this Court with a prayer for consideration of her
candidature against the one post lying vacant under SC Category.
8. In support of their contention, learned counsel placed reliance on the
judgment passed by this Court in the case of Surbhi Saxena Vs. State of
Jharkhand [W.P.(S). No. 297 of 2021] disposed of on 28.06.2021 and
affirmed by the Hon'ble Apex Court in Special Leave to Appeal (C) No(s).
No. 15967 of 2021, disposed of on 16.11.2021.
Findings of the Court
9. Heard the parties at length.
10. Before delving deep into the matter it would be apposite to examine
the following issues:
I) Whether the case of the petitioner ought to have been considered
as at the relevant time appointment letters were not issued to the
last selected candidate?
II) Since the candidate ranked just above the petitioner did not
present herself for documents verification, whether it was not
incumbent upon the respondents to call the candidate next in Rank
for documents verification if he/she falls within the zone of
consideration fulfilling the requisite criteria?
III) Whether the respondent-authorities at all considered the legal
proposition set at rest in the case of Munja Praveen Vs. State of
Telangana & Ors. [(2017) 14 SCC 797]?
IV) Whether the reliance of the respondent-JPSC and State in the case
of Surbhi Saxena Vs. State of Jharkhand & Ors. [W.P.(S). No.
297 of 2021] can be distinguished as in that case ratio laid down
in the case of Munja Praveen (supra) was not considered?
V) Whether even if vacancies are available, the case of petitioner can
be considered and she can be accommodated or remaining
vacancies shall be carried forward to the next calendar year?
VI) Whether Para-3(xiii) of circular dated 27.11.2012 comes to the
rescue of petitioner or it supports the case of the respondent-
JPSC?
VII) Whether right has accrued in favour of the petitioner for
consideration of her case for appointment though she has not been
recommended for appointment to the post of Civil Judge (Jr.
Div.)?
VIII) Even if the petitioner has secured 199.67 and the cut-off marks
under her category was 200.67, whether her case can be
considered for appointment after issuance of call letter for
document verification?
IX) Whether the petitioner can be considered for appointment when
the recruitment process itself has come to an end and the
candidates have already joined their respective posts?
11. The admitted facts pleaded in the writ petition and not denied by the
respondents is that petitioner having requisite qualification, participated in
the Preliminary Test in which she was declared successful. Thereafter, she
appeared in the Mains Examination successfully competed the same and
called for interview in which petitioner appeared on the scheduled date on
20.01.2020 at the office of respondent-JPSC. Thereafter, final result was
published in which name of petitioner did not figure. Admittedly, one
Priyanka Kumari, who had secured 5th rank under SC Category did not
appear for certificate verification and as such, her candidature for
appointment was rejected. In reply to the RTI application preferred by the
petitioner, the respondents vide its letter dated 22.12.2020 informed the
petitioner that her rank is 6th in SC Category and that one Priyanka Kumari,
who was 5th in rank in the same Category did not appear for certificate
verification and as such, one seat is still vacant under her category.
12. Similar issue fell for consideration before a Co-ordinate Bench of this
Court arising out of same advertisement in case of Surbhi Saxena Vs.
State of Jharkhand & Ors. [W.P.(S). No. 297 of 2021], disposed of on
28.06.2021 and the same has been affirmed by the Hon'ble Apex Court in
SLP No. 15967 of 2021 (Surbhi Saxen Vs. the State of Jharkhand &
Ors.). The Division Bench of this Court in the said case observed that the
case of petitioner has rightly not been considered for appointment as even if
remaining vacancies were there they ought to have been filled-up by way of
fresh advertisement and not from the remaining list of candidates even if
they fell vacant. Dismissing the Writ Petition, the Court observed as under:
"This Court is further of the view that the writ petitioner
has failed to make out a specific case because it is the
specific case of the writ petitioner that she has not been
selected and as such there cannot be any direction by this
Court under Article 226 of the Constitution of India for
the purpose of 'chance' to see as to whether the writ
petitioner is going to be selected or not rather the writ
petitioner ought to have approach this Court with the
specific cause of action.
22. This Court on the basis of discussions made herein
above and in the entirety of facts and circumstances of
the case, is of the view that the writ petitioner has failed
to make out a case for interference so as to pass any
positive direction."
13. Mr. Manoj Tandon, learned counsel for the petitioner to buttress his
arguments places heavy reliance on the judgment of the Hon'ble Apex
Court in the case of Munja Praveen (supra) and argues that the same was
not placed before the Co-ordinate Bench of this Court and as such, the
judgment delivered in the case of Surbhi Saxena (supra) is per incuriam
as the legal proposition laid has not at all been appreciated.
14. For better appreciation, the view of the Hon'ble Apex Court has to be
examined. The Hon'ble Apex Court in the case of Munja Praveen (supra)
held as under:
"9. According to us, the High Court has totally
misconstrued the above GOMs. The portion of the GOMs
quoted above clearly lays down that there shall be no
waiting list and the selection shall be made equal to the
number of posts notified. The purpose was that the
vacancies arising due to people leaving the posts must be
filled up by subsequent selection and not on the basis of a
waiting list. It was clarified that after selection of the
candidates and after issue of appointment orders, if the
candidate fails to join within the stipulated period, that
vacancy should be notified again. This portion of the
GOMs admits of only one interpretation that after
appointment order is issued and the person appointed
does not join, then the vacancy cannot be filled up on the
basis of the waiting list or by operating the merit list
downwards. This is also clear from Clause 9 of the
GOMs, which also clarifies that fallout vacancies due to
relinquishment or non-joining of the selected candidates
may be notified in the next recruitment. This obviously
means that the clause will apply after issue of letter of
appointment. There can be no relinquishment and non-
joining unless an appointment letter is issued.
12. Even otherwise also, we are of the view that this is the
only logical way to interpret the GOMs. The GOMs
obviously has been issued, keeping in mind a single
selection process. Here, we are dealing with a multiple
selection process for different Corporations. The more
brilliant candidates were selected in more than one of the
Corporations. They obviously cannot join in more than
one Corporation. Therefore, if the top four candidates
have been selected in all four Corporations, they could
only join one of the Corporations and twelve posts would
remain vacant, if the interpretation given by the High
Court is accepted. This would lead to a position where
large number of vacancies would not be filled up."
The interpretations of learned counsel for the petitioner in view of
Surbhi Saxen (supra) and Munja Praveen (supra) that since letter of
appointment was not issued and petitioner was not called for document
verification, if vacancies arises, the same has to be considered by the
respondent-JPSC. The contention of learned counsel for the petitioner is not
at all acceptable to this Court in view of para-3(xiii) of the circular dated
27.11.2012, it is very much clear that there cannot be any exception to that
effect that recommendation made by the respondent-JPSC may be amended.
Further, no ground or occasion has been made for deviating from para-
3(xiii) of the circular dated 27.11.2012 referred below:
"3(xiii)
"
15. The second issue is as to whether petitioner fulfills the requisite
qualification and whether her case fall within the zone of consideration for
calling her for document verification is also negated in view of the fact that
cut-off marks for appointment under SC category was 200.67 and petitioner
has secured only 199.67 marks which is less than the cut-off marks fixed by
the respondent-JPSC for SC category's candidates. Hence, petitioner cannot
claim to be called for documents verification also when the recruitment
process is over.
16. It is settled proposition of law that even if name of the candidates is
in the select list and some vacancies exist that does not give any
indefeasible right to the selected candidate, as has been decided by Hon'ble
Apex Court in case of Shankaran Das Vs. Union of India [(1991) 3 SCC
47]. Since the name of petitioner did not find place in the select list as she
has secured less marks than the last selected candidate under SC category,
there is no question of any consideration of the case of Writ Petitioner by
issuing direction to the respondent-JPSC to call the petitioner for document
verification and thereafter to appoint her.
17. The case of the respondent-JPSC is further fortified in view of
Clause-3(xv) of the Resolution issued vide Memo No. 13026 dated
27.11.2012 issued by the Department of Personnel, Administrative Reforms
and Rajbhasha, Government of Jharkhand, , which reads hereunder as:
"(xv) fdlh mEEkhnokj ;k mEehnokjksa }kjk fu/kkZfjr le; &lhek ds
vUnj ;ksxnku ugha nsus ;k vU; dkj.kksa ls fjfDr;k¡ Hkjh ugha tk
ldus dh fLFkfr esa ,slh fjfDr;k¡ vxyh vf/k;kpuk ds fy, vxz.khy
dh tk;sxhA"
18. Since the recommendation has already been made by respondent-
JPSC on 26.02.2020 and selection process has already been completed, at
this stage it would not be proper and appropriate to allow the relief as has
been sought for by the petitioner.
19. Admittedly, it is settled legal propositions that even if the name of the
candidate is selected and vacancies exist, it does not give an indefeasible
right to the selected candidate for being appointed. But there is always a
right of consideration. Here petitioner is not claiming appointment rather,
she is only claiming that she should be allowed to appear for document
verification and thereafter, if she is found fit, the respondent-JPSC
recommend her case for appointment.
20. Now, it has to be decided that once the merit of the candidates have
been prepared by the respondent-JPSC and petitioner has been found to be
less meritorious on the ground that she has secured less marks than the last
selected candidate whether Court can interfere under Article 226 of the
Constitution of India and if at all judicial review is permissible?
21. As far as power of judicial review is considered, there is no quarrel to
the legal proposition that judicial review is an appeal from a decision to a
review in which the decision was made. The said issue fell for consideration
before the Hon'ble Apex Court in the case of Syed TA Naqshbandi and
Ors. vs. State of J&K and Ors., [(2003) 9SCC 592], wherein the Hon'ble
Court has observed as under:
"Judicial review is permissible only to the extent of finding
whether the process in reaching the decision has been
observed correctly and not the decision itself, as such.
Critical or independent analysis or appraisal of the
materials by the Courts exercising powers of judicial review
unlike the case of an appellate court, would neither be
permissible nor conducive to the interests of either the
officers concerned or the system and institutions......"
Further reference in this regard be made to the judgment rendered in Tata
Cellular v. Union of India, [(1994) 6 SCC 651, wherein the Hon'ble Court
at paragraphs 72-75 and 77 held as under:
72. Lord Scarman in Nottinghamshire County
Council v. Secretary of State for the Environment [1986
AC 240, 251 : (1986) 1 All ER 199] proclaimed:
" 'Judicial review' is a great weapon in the hands of
the judges; but the judges must observe the constitutional
limits set by our parliamentary system upon the exercise
of this beneficial power."
Commenting upon this Michael Supperstone and James
Goudie in their work Judicial Review (1992 Edn.) at p. 16
say:
"If anyone were prompted to dismiss this sage warning
as a mere obiter dictum from the most radical member of
the higher judiciary of recent times, and therefore to be
treated as an idiosyncratic aberration, it has received the
endorsement of the Law Lords generally. The words of
Lord Scarman were echoed by Lord Bridge of Harwich,
speaking on behalf of the Board when reversing an
interventionist decision of the New Zealand Court of
Appeal in Butcher v. Petrocorp Exploration Ltd. 18-3-
1991."
73. Observance of judicial restraint is currently the
mood in England. The judicial power of review is
exercised to rein in any unbridled executive functioning.
The restraint has two contemporary manifestations. One is
the ambit of judicial intervention; the other covers the
scope of the court's ability to quash an administrative
decision on its merits. These restraints bear the hallmarks
of judicial control over administrative action.
74. Judicial review is concerned with reviewing not
the merits of the decision in support of which the
application for judicial review is made, but the decision-
making process itself.
75. In Chief Constable of the North Wales
Police v. Evans [(1982) 3 All ER 141, 154] Lord
Brightman said:
"Judicial review, as the words imply, is not an appeal
from a decision, but a review of the manner in which the
decision was made.
***
Judicial review is concerned, not with the decision,
but with the decision-making process. Unless that
restriction on the power of the court is observed, the
court will in my view, under the guise of preventing the
abuse of power, be itself guilty of usurping power."
...... ...... ....
77. The duty of the court is to confine itself to the
question of legality. Its concern should be:
1. Whether a decision-making authority
exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural
justice,
4. reached a decision which no reasonable
tribunal would have reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether a
particular policy or particular decision taken in the
fulfilment of that policy is fair. It is only concerned with
the manner in which those decisions have been taken.
The extent of the duty to act fairly will vary from case to
case. Shortly put, the grounds upon which an
administrative action is subject to control by judicial
review can be classified as under:
(i) Illegality : This means the decision-maker must
understand correctly the law that regulates his
decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury
unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not
rule out addition of further grounds in course of time. As
a matter of fact, in R. v. Secretary of State for the Home
Department, ex Brind [(1991) 1 AC 696] , Lord Diplock
refers specifically to one development, namely, the
possible recognition of the principle of proportionality.
In all these cases the test to be adopted is that the court
should, "consider whether something has gone wrong of
a nature and degree which requires its intervention".
(emphasis supplied)
Further, when the Writ Petitioner has not been declared successful,
the Court cannot issue any direction for filling-up the vacant seat by
appointing the petitioner when the process of selection is already over.
22. From perusal of both the judgments, i.e. Surbhi Saxena (supra) and
Munja Praveen (supra), it appears that ratio laid down in the case of
Surbhi Saxena (supra) is applicable in the case of petitioner and the ratio
laid down in the case of Munja Praveen (supra) does not come to her
rescue.
23. Further, reliance has been made by the petitioner in the case of
Akhilesh Prasad Vs. Jharkhand Public Service Commission & Ors.,
reported in 2022 SCC Online SC 510 : 2022 (2) JBCJ 206 (HC).
24. This Court takes no other view than what has been taken in the case
of Surbhi Saxena (supra) and the case laws relied upon by the petitioner
does not come to her rescue and is accordingly distinguished. All the issues
since interconnected are answered accordingly.
25. This Court is of the view that even if sympathetic consideration is
given to the petitioner for consideration of her case for document
verification, at this stage the same cannot be done as the process of
appointment is already over and has come to an end and petitioner has not
secured equal or more marks than the last selected candidate. Any selection
has to be made as per the terms and conditions of the advertisement and
recruitment rules and no deviation at any cost should be made and as such,
in view of the terms and conditions of the advertisement in question, the
case of the petitioner cannot be reconsidered.
26. As a sequitur to the aforesaid observations, rules, guidelines and
judicial pronouncements, the writ petition being devoid of any merit is
hereby dismissed.
(Dr. S.N. Pathak, J.)
Arun Kumar Rai, J.: I agree.
(Arun Kumar Rai, J.)
kunal/-
