Jharkhand High Court

Dheeraj Kumar Prabhakar vs State Of Jharkhand on 6 May, 2025

Author: Deepak Roshan

Bench: Deepak Roshan

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
             W.P.(S) No.2253 of 2019
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1. Dheeraj Kumar Prabhakar, aged about 27 years, son of Narendra Kumar R/O Rekha Klan, Rehala Bishrampur, PO. And P.S Palamu, District- Palamu, Jharkhand.

2. Chandra Shekhar Kumar Singh aged about 30 years S/O Sri Prithvi Singh R/o Bhojpur Village Dhandiha Post office Dhandiha, PS. Koliwar, District Ara, State: Bihar.

3. Anoj Kumar, aged about 23 years S/o Vanshi Yadav, R/0 village Madhuban, P.O. Berokala, P.S. Barkatha, District Hazaribagh, Jharkhand:

4. Pradeep Kumar Singh, aged about 32 years S/O Sri Ramjiwan Singh, R/0 Padariya,, P.O. Basariya, P.S. Chuparan, District Hazaribagh, Jharkhand.

5. Santosh Kumar aged about 26 years Son of Kishun Mahto, R/O village Kapka, P.O.Kapka, P.S. Barkatha, District Hazaribagh, Jharkhand.

6. Pawan Kujur, aged about 28 years, son of Shivraj Bhagat, resident of Near Awantika Bhawan, Block Colony, Lohardaga, Lohardaga, Jharkhand-835302

7. Anand Kumar Verma, aged about 29 years, son of Shankar Prasad, resident of Moti Sahu Street, Kailash Nagar, Irgu Roda, Ranchi, Ranchi, Jharkhand -834001

8. Amit Kumar, aged about 25 years, son of Ramdev Prasad Yadav, resident of Bishnupur Road, Naresh Nagar, W.No. 1, P.O. Jhumri Telaiya, P.S. Telaiya, Jhumri Telaiya, Koderma, Jharkhand - 825409. ...... Petitioner Versus

1. State of Jharkhand

2. The Secretary, Jharkhand Staff Selection Commission, Govt. of Jharkhand having office at Chaibagan Gali, Kali Nagar, P.O. & P.S. Namkum, District -Ranchi

3. The Secretary, Jharkhand Revenue Department, Govt. of Jharkhand, having office at Project Bhawan, P.O. & P.S. Dhurwa, District- Ranchi

4. The Principal Secretary, Department of Personnel, Administrative reforms and Rajbhasha, Govt. of Jharkhand, Ranchi, having office at Project Bhawan, P.O. & P.S-Dhurwa, 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 Res. State : Mr. Sanjoy Piprawal, Adv.

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CAV ON: 21.04.2025 Pronounced On:-6/05/2025

Heard learned counsel for the parties.

2. The instant writ petition has been preferred by the Petitioners for following reliefs:-

(i) For issuance of an appropriate writ for quashing the Merit List published on 15/10/2018 pursuant to Advertisement No. 3/2017 on the basis of which the Respondents have made appointments for the post of Revenue Clerks in all the Districts.

(ii) A further Writ/order/ direction be issued commanding upon the Respondents to revise the Merit List on the basis of uniform cutoff marks for all the districts

(iii) Upon preparation of such revised list if the petitioners are found eligible, their name should be recommended and considered for appointment to the post of Revenue Clerk.

(iv) In the Alternative, consider the name of Petitioners against the vacant seats for the post of revenue clerk that have remained vacant after the issuance of merit list published on 15/10/2018 pursuant to Advertisement No. 3/2017.

3. The brief facts of the case are that an Advertisement bearing No. 03/2017 was published by the Jharkhand Staff Selection Commission (in short JSSC) for the posts of Amin, Revenue Clerk/Revenue Sub Inspector, Junior Division Clerk, Junior Field Investigator and Clerk /Ganak in the Department of Revenue, Registration and Land Reforms in the State of Jharkhand. The total vacancy for the post of Revenue Clerk/Revenue Sub Inspector was 557 posts.

Clause-3(ii) of the Advertisement provides that in 13 Scheduled Districts of the State namely Ranchi, Khunti, Lohardaga, Gumla, Simdega, Latehar, East Singhbhum, West Singhbum, Saraikella-Kharsawan, Sahebganj, Dumka, Pakur and Jamtara, the local residents of the concerned districts only shall be eligible for submitting the application for the posts Amin and Revenue Sub-Inspector in view the Notification No. 5938 dated 14.07.2016 issued by the Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand.

Clause 15 of the Advertisement provides that there should be publication of the common merit list in their respective

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categories in terms of the marks obtained in Paper-2 and Paper-3 in terms of Clause 13.5 of the Advertisement.

4. The Petitioners had applied on the posts of Revenue Clerk / Revenue Sub Inspector, Junior Field Investigator and Ganak by indicating the posts of Revenue Clerk/Revenue Sub Inspector as a first preference. The Petitioners had applied in the open Districts consisting of Hazaribag, Palamau, Garhwa, Giridih, Chatra, Ramgarh, Koderma, Godda, Dhanbad, Deoghar and Bokaro. The Petitioner had also given the district-wise preference.

The Petitioners appeared in the examination and the result of the examination was declared and the Petitioners were found to be qualified. The Petitioners were called for the verification of the certificates in between 02.05.2018 to 05.05.2018. The Petitioners submitted their respective certificates. The final merit list was published on 08.11.2018 and the JSSC published different cut-off marks for different districts within the State of Jharkhand for the same posts for which the Petitioners had appeared.

The Petitioners have pleaded at pargraph-19 of the writ petition that out of 557 posts of Revenue Clerk/Revenue Sub Inspector, the recruitments were made for only 400 posts and the rest of the post were kept vacant. Further, at paragraph-24 of the writ petition the Petitioners have pleaded that more than 150 posts are unfilled. The common merit list in their respective categories were not prepared and further the Petitioners have obtained more marks than the last selected candidate in the 13 Scheduled Districts which gave rise to the cause of action to file the present writ petition.

5. The issues which fall for consideration before this 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 the Clause in the Advertisement?

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IV. Whether there should have been a common cut-off marks or district-wise cut-off marks?

V. Whether the left-over vacancy has to be carried forward in the next recruitment process?

6. Issue No. I. So far as in absence of challenge to the Clause-3(ii) in the advertisement which provides for 100 % reservation for local resident of concerned districts, 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 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."

7. Issue No. II.

In the advertisement published by the JSSC, the State Government has reserved the post on the basis of the residence. A candidate being a local resident of the concerned 13 scheduled districts would only get employment and the candidates from other districts would be left out in view of the Clause 3(ii) of the Advertisement.

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 Apex Court in a judgment rendered in Satyajit Kumar and Ors. Versus The State of Jharkhand & Ors. reported in (2022) 18 SCC 284 SC 954 has held at paragraph 96 to 99 :-

"96. 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

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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.

97. 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.

98. 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.

99. Applying the law laid down by this Court in the case of Chebrolu Leela 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 13 Scheduled Districts have

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been declared as ultra-vires by the Hon'ble Apex Court in the judgment rendered in Satyajit Kumar (supra).

In view of the aforesaid judgment passed by the Hon'ble Supreme Court of India, the clause in the advertisement which provides for 100% reservation for local resident of 13 Scheduled districts and providing employment on the basis of local residence is arbitrary and ultra vires and consequently cannot be enforced. It has to be ignored.

8. Issue No. III.

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 relief sought for to strike down or declared 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 held that:-

"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. Issue No. IV The Petitioners have applied for the post of Revenue Clerk/Revenue Sub Inspector in the open districts. The Petitioners could not apply in the Scheduled Districts due to the prohibition made at Clause 3(ii) of the Advertisement as Clause 15 of the Advertisement clearly provides that there should be publication of the common merit list. There is no clause under the relevant

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recruitment rules which provides for preparation of district wise merit list.

On perusal of Annexure-7 and 8 of the main writ petition, it transpires that the Petitioners have obtained more marks in their respective categories than the last selected candidates in the 13 Scheduled Districts.

The Petitioner No.1 under Scheduled Caste category had obtained 398 marks whereas in the district of Saraikella- Kharsawan, Gumla, Simdega, Pakur, Sahebganj and West Singhbhum, the last selected candidate under Scheduled Caste category had obtained 292, 368, 346, 347, 360 and 384 marks respectively.

The Petitioner No.2 and 3 had obtained 461 and 459 marks respectively under the Un-reserved category; whereas the last selected candidates in the districts of Ranchi, Gumla, Khunti, Simdega, Lohardga, Dumka, Pakur, Jamtara, West Singhbhum, East Singhbhum and Saraikella Kharsawan had obtained 460, 442, 438, 403, 429, 453, 443, 446, 410, 419 and 415 marks respectively under the Unreserved category.

The Petitioner No.4, 7 and 8 have obtained 439, 456 and 459 marks respectively under the BC-II category; whereas the last selected candidates in the districts of East Singhbhum, Saraikella-Kharsawan, Pakur, Palamau and Garhwa had obtained 397, 368, 440, 457 and 459 marks respectively under BC-II category.

The Petitioner No.5 had obtained 449 marks under the BC-I category; whereas the last selected candidates in the districts of Pakur, Sahebganj, East Singhbhum and Saraikella-Kharsawan had obtained 440, 435, 405 and 227 marks respectively under BC-I category.

The Petitioner No.6 had obtained 377 marks under the ST category; whereas the last selected candidates in the districts of Dumka, Pakur, Jamtara and Saraikella-Kharsawan had obtained 339, 377, 374, and 364 marks respectively under ST category.

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10. As a matter of fact, the district-wise merit list was prepared for each district is discriminatory in nature as by resorting to this procedure, the objective of selecting the best possible candidates was defeated. The petitioners have successfully demonstrated that as a result of publication of district-wise Merit List, more meritorious candidates were denied employment and candidates with low merit were selected. Consequently, the Issue No. IV is answered in favour of the Petitioners.

11. Issue No. V. The Petitioners have pleaded at paragraph-19 and 24 of the writ petition that more than 150 posts are lying vacant. This Court vide order dated 07.12.2023 has directed the JSSC to file a specific affidavit as to whether pursuant to Advertisement No. 03 of 2017 and on the recommendation being made by the JSSC, any vacancy still exists. The JSSC has filed the affidavit which was sworn on 16.02.2024 and has stated that vacancies still exist in all the districts.

12. Ld. Counsel of the JSSC has relied upon a judgment rendered by the Division Bench of this Court in L.P.A. No. 308 of 2015 (Prabhat Kumar Singh Vrs. State of Jharkhand & Ors.) in which the issue was whether when some of the appointed candidates did not join, a person can seek appointment on the basis of non-joining of three appointed candidates. The Division Bench has relied upon a Resolution dated 27.11.2012 of the State Government that unfilled vacancies are to be carried over to the next examination and that the unfilled vacancies would not be available retrospectively to the examination process initiated under Advertisement to take away vested rights.

13. Ld. Counsel for the Petitioners has relied upon a judgment rendered by the Hon'ble Supreme Court of India in the

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case of Munja Praveen & Ors. Versus State of Telangana & Ors. reported in (2017) 14 SCC 797 wherein it has been held at paragraphs-9 to 13 as follows:-

"9. ...According to us, the High Court has totally misconstrued the above G.O.Ms. The portion of the G.O.Ms. 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 G.O.Ms. 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 G.O.Ms., which also clarifies that fall out 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.

10. The position before us is totally different. As pointed out earlier, some of the candidates, who got selected in more than one of the Corporations, were called for verification of their certificates. No appointment order had been issued till this stage. In the meantime, the State issued a clarification, as set out in the letter dated 01.06.2016, relevant portion of which reads as under:

".......I am to invite attention to the above subject and reference cited and inform the Government after careful examination of the matter hereby relaxes the provision, as a special case under the circumstances, of calling for the candidate on basis for verification of certificates as contained in their notifications as one time option and permits the TRANSCO, TS SPDCL and TS NPDCL to fill up the left over notified (advertised) vacancies of Assistant Engineers of their respective utility duty operation the merit list downwards for each category by following other rules prescribed in their respective notification...."

11. We see nothing wrong in this letter. In fact, this is in consonance with the G.O.Ms. dated 22.02.1997. The State and the Corporations have supported the case of the appellants. Their stand is that a large number of posts are lying vacant and if fresh selection have to be made, the filling up of the posts shall be delayed. We may also note that the original writ petitioners are obviously below the appellants in the merit list. They cannot be selected in this selection even if the merit list is operated downwards. They cannot be permitted to urge that persons, who are more meritorious than them should not be selected and fresh selection should be made. When the entire G.O.Ms. of 1997 is read as a whole, it is amply clear that it will have application only after appointment orders are issued and the posts not filled up after issue of appointment letters shall be notified in the next recruitment.

12. Even otherwise also, we are of the view that this is the only logical way to interpret the G.O.Ms. The G.O.Ms. 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

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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.

13. On a conjoint reading of clause 8 and 9 of the G.O.Ms. dated 22.02.1997, we are clearly of the view that this was not the purpose of the G.O.Ms. According to us, the G.O.Ms. would come into operation only after appointment letters were issued and, therefore, if a person, who is at number one position, goes to one of the Corporations and is given the appointment letter, he may not go to other three Corporations for verification of the certificate. That does not mean that the first post in all the Corporations should now lie vacant.

14. The Resolution dated 27.11.2012 also fell for consideration before this Court in W.P.(S) No. 2361 of 2023 and analogues cases (Ram Prakash Ram Vrs. The State of Jharkhand & Ors.) wherein this Court has interpreted the Resolution dated 27.11.2012 and has held that the Circular of the State of Jharkhand dated 27.11.2012 would apply only in a case where the appointment letters were issued and thereafter the candidates resigned or do not join.

There is nothing on record placed by JSSC that the appointment letters were issued and the persons have not joined and therefore, such vacancy shall be carried out to next selection process. Thus, it is held that in view of the judgment rendered by the Hon'ble Apex Court in the case of Munja Praveen (supra), the Petitioners can be adjusted against the unfilled posts.

15. Therefore, the issues framed have been answered accordingly.

16. The State Government has filed the affidavit dated 27.09.2019 wherein they have stated at paragraph-6 that the district-wise Merit list has been prepared by the JSSC in pursuant to Rules of Reservation and Domicile Policy prevalent in the different districts of the State. Further, the JSSC has filed the affidavit dated 18.10.2019 wherein they have stated at paragraph- 13 that the Petitioners have secured less marks than the last successful candidates in their respective categories and opted districts and as such the Petitioners have not been declared successful.

17. Having regard to the aforesaid facts and in the line of the judgment passed by the Hon'ble Supreme Court of India in

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Satyajit Kumar (supra) and also the fact that the Petitioners have obtained more marks than the last selected candidates in the Scheduled districts, details of which has been indicated in Paragraph-9 hereinabove; and further, the posts are also lying vacant and the appointments already made are not being disturbed and there would be no complication which would not be in the larger public interest; hence, this a fit case to mould the relief claimed by the Petitioners.

18. Accordingly, it is ordered that instead of quashing the merit list published on 15.10.2018 pursuant to Advertisement No. 03 of 2017 issued by JSSC, the merit list should be revised in view of the judgment passed by the Hon'ble Supreme Court of India in Satyajit Kumar (supra) and the appointments of the selected candidates may not be disturbed, and the appointments may be limited to the Petitioners and they may be adjusted by including their names in the revised merit list as the Petitioners who have obtained more marks than the last selected candidates in their respective categories under 13 Scheduled districts.

19. With the aforesaid observation and directions, the instant writ petition is allowed in the manner indicated hereinabove. Needless to say, the entire exercise shall be completed by the respective Respondents within a period of 12 weeks from the date of receipt of copy of this order.

(Deepak Roshan, J.)

Fahim/-

AFR