IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
LPA No. 64 of 2020 ------
Dr. Nutan Indwar @ Nutan Indwar … … Appellant Versus
The State of Jharkhand and others … … Respondents with
LPA No. 49 of 2020, LPA No.50 of 2020, LPA No. 74 of 2020, LPA No. 76 of 2020, LPA No. 77 of 2020, LPA No. 87 of 2020, LPA No. 88 of 2020, LPA No. 92 of 2020, LPA No. 103 of 2020, LPA No. 104 of 2020, LPA No.105 of 2020, LPA No. 114 of 2020, LPA No.115 of 2020, LPA No. 117 of 2020, LPA No.118 of 2020, LPA No. 125 of 2020, LPA No. 126 of 2020, LPA No.127 of 2020, LPA No. 128 of 2020, LPA No. 133 of 2020, LPA No. 183 of 2020, LPA No. 193 of 2020 and LPA No. 266 of 2020. -------
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA
------
For the Appellant(s) : Mr. Krishna Murari, Mr. M.K.Mehta; Prem Mardi; Mr. Amritansh Vats; Mr. Manoj
Tandon; Ms. Neha Bhardwaj; Mr. Adamya
Kerketta; Mr.Shresth Gautam, Mr.
Yogendra Yadav, Mr. Abhijeet Tushar,
Mr.Rajarshi Singh, Mr. Kumar Sundaram,
Advocates
For the State : Mrs. Vandana Singh, Sr. S.C.-III; Ms. Neha Pandey, AC to Sr.S.C.-III; Mr.
Devesh Krishna, SC Mines-III, Rukmini
Kumari, AC to SC Mines; Mr. Gaurang
Jajodia, AC to GP-II, Ms. Chaitali C. Sinha & Ms. Omiya Anusha, AC to AAG-IA, Mr.
Mithilesh Singh, GA-IV; Anoop Kumar
Agrawal, AC to GA-IV, Mr. Vishal Kumar
Rai, AC to GA-IV;Mr. Rohit, AC to AAG-I;
Mr. Ashok Kumar Yadav, Sr.SC-I; Mr.
Manish Kumar, Sr.SC-II, Ms. Sunita
Kumari, AC to Sr. SC-II; Ms. Divya, AC to
SC-III, Mr. Rishi Raj Verma, AC to SC-III
For the JPSC & JSSC : Mr. Sunil Kumar, Sr. Advocate; Mr. Sanjoy Piprawall, Advocate;
Mr. Prince Kumar, Advocate;
Mr. Rakesh Ranjan,Advocate
-------
Order No. 09/ Dated: 2 nd March 2023
This batch of Letters Patent Appeals has been heard in some detail.
2. As noticed in the order dated 22ndFebruary 2023, the appellant in LPA No. 64 of 2020 put forth a submission before the writ Court that she
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has secured maximum marks in her category but her candidature was rejected on the ground that the caste certificate produced by her was not in the proper format.
3. The other appellants have also raised a similar contention that in spite of all of them having secured marks more than cut-off marks in their respective caste category, they are not selected - for a similar reason.
4. In LPA No. 64 of 2020, the appellant has taken an additional plea that she was in possession of a caste certificate issued in the proper format but mistakenly she has entered details of another caste certificate which was also issued to her but was not in the proper format, as required under Clause 9 (gha) of the Advertisement No. 02 of 2016.
5. Some of the appellants in other Letters Patent Appeals have also pleaded somewhat a similar situation that: (i) may be they were not in possession of the caste certificate in proper format as on the last date for making the application, they had produced the required caste certificate at the time of verification of the documents, (ii) some of them were permitted to appear for the interview in their caste category, or (iii) their certificates were accepted at the time of verification of the documents.
6. Along with the other learned counsels, Mr. Shresth Gautam, the learned counsel who appears for some of the appellants has submitted that
"Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board" (2016)4 SCC 754 which lays down the law on the subject has been ignored by the writ Court. The learned counsel has brought to our attention the order dated 24thJanuary 2020 in Special Leave to Appeal (C) No. 14948 of 2016 [Karn Singh Yadav v. Govt. of NCT of Delhi and others] which is the order making reference to a larger Bench of three-Judges for re-consideration of
"Ram Kumar Gijroya".
7. In the order dated 24thJanuary 2020, the Hon'ble Supreme Court has observed as under:
"We have heard learned counsel on both sides and perused the record including the judgment of this Court in the case of Ram Kumar Gijroya (supra). In the case of Ms. Pushpa (supra), which was referred to in Ram Kumar Gijroya (supra) though the applicant had moved an application much prior to the date of the advertisement, the office of the competent authority took considerable time to make the required OBC certificate available. It was in such circumstances that the learned Single Judge of the Delhi High Court held that the applicant cannot be made to suffer for lapse on part of the SDM office in issuing the OBC certificate.
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In the case of Gaurav Sharma v. State of U.P. & Ors. reported in AIR 2017 All 116, a Full Bench of Allahabad High Court disagreed with the view expressed in the case of Ms. Pushpa (supra) and held that even claims made under OBC category are to be made before the cut-off date prescribed in the advertisement. In the case of Rakesh Kumar Sharma v. State (NCT of Delhi) & Ors., [(2013) 11 SCC 58], this Court has held that eligibility criteria/conditions are to be considered on the last date of receipt of applications. …...................................................................................................... In practice, for every advertisement, there are such belated claims
claiming reservation, though the candidates did not submit
certificate from the competent authority, before the cut-off date. In
view of the general importance of the question, we are of the view
that the issue which fell for consideration in the case of Ram
Kumar Gijroya (supra) requires to be considered by a larger
Bench of three-Judges."
8. The aforesaid reference has been answered by the larger Bench of the Hon'ble Supreme Court in "Karn Singh Yadav v. State (NCT of Delhi)" 2022 SCC OnLine SC 1341, holding as under:
"5. It must be stated here that an identical fact situation came up for consideration before this Court in Ram Kumar Gijroya v. Delhi Subordinate Services Selection Board, (2016) 4 SCC 754, wherein this Court ruled in favour of the concerned candidate. The instant matter is thus completely covered by said decision."
9. Mr. Shresth Gautam, the learned counsel would further submit that the law as enunciated in "Ram Kumar Gijroya" has its genesis in
"Charles K. Skaria and others v. Dr. C. Mathew and others" (1980)2 SCC 752, wherein the Hon'ble Supreme Court has held as under:
"..... ….. ….. What is essential is the possession of a diploma before the given date; what is ancillary is the safe mode of proof of the qualification. To confuse between a fact and its proof is blurred perspicacity. To make mandatory the date of acquiring the additional qualification before the last date for application makes sense. But if it is unshakeably shown that the qualification has been acquired before the relevant date, as is the case here, to invalidate this merit factor because proof, though indubitable, was adduced a few days later but before the selection or in a manner not mentioned in the prospectus, but still above-board, is to make procedure not the handmaid but the mistress and form not as subservient to substance but as superior to the essence. "
10. The judgment in "Union Public Service Commission v. Gyan Prakash Srivastava ."(2012)1 SCC 537 has also been placed on behalf of the appellants to submit that even though a candidate may not have produced a copy of the Degree/Diploma in a particular subject which is an essential qualification, his application cannot be rejected provided he has produced other certificates/documents to show that he possessed the requisite qualification.
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11. In the aforesaid background, the appellants have challenged dismissal of the writ petitions by a common order dated 20 thDecember 2019 wherein the writ Court has held as under:
"In view of the facts and circumstances stated above and in view of the settled principles of law, this Court is of the considered view that prayer as made by the petitioners in the aforesaid cases, cannot be accepted in view of the fact that the same will amount to violation of provisions of Articles 14 and 16 of the Constitution of India in view of the fact that other candidates who could not submit their online application forms due to non-availability of the requisite Caste Certificates, as per the terms and conditions of the advertisement, up to the last date of submission of online application forms, will be discriminated, as equal opportunity has to be given to all the candidates. It is not case of the petitioners that any candidate securing lesser marks than the petitioners, have been selected under unreserved category. Since petitioners failed to fulfill requisite conditions stipulated in the advertisement and could not submit valid caste certificate issued by competent authority within stipulated period, their candidatures under respective reserved categories have rightly been rejected. There is no case that any person having lesser marks than the petitioners have been declared successful under unreserved category ignoring the petitioners. Petitioners have been considered under unreserved category and no person below the rank of petitioners have been considered under unreserved category No ground for any interference is made out."
12. On behalf of the Jharkhand Public Service Commission (in short, 'JPSC') and Jharkhand Staff Selection Commission (in short, 'JSSC'), the order passed by a coordinate Bench in LPA No. 91 of 2020 has been relied upon to submit that the present batch of Letters Patent Appeals is liable to be dismissed; as LPA No. 91 of 2020 also arises out of the common judgment dated 20thDecember 2019 passed in WP(S) No.5572 of 2017 and analogous cases - the appellant in LPA No. 91 of 2020 was the petitioner in WP(S) No. 3152 of 2018.
13. Clause 9 (gha) of the Advertisement No. 02 of 2016 provides as under:
"9 (घ) झरखण रज क उम दवर, ज अन सचत जचत / अन सचत जनजचत / च छड वर -I (B.C.-I) च छड वर - II (B.C.-II) क ह , क आरकण क लभ पप करन क चलए झरखण रजनर त उ य क / अन म-डल दच.कर सर स कमश2 कचम क, पशसचनक स .र तथ रजभष चवभर, झरखण सरकर क ज -क- 5682, चदन-क - 22.10.2008 एव- ज -क- 10007, चदन-क- 29.08.2012 दर चनर त चन. ररत चवचहत प त-I अथव प त - II क चववरण ऑनलईन आव दन त म; पचवष कर;र । अनथ अभथ@ अनरचकत कचA क मन जय;र । चन. ररत प त आयर क ब वसईA - www.jpsc.gov.in र उ लब हD ।"
14. In LPA No. 91 of 2020, the Hon'ble Division Bench has referred to several judgments of the Hon'ble Supreme Court to hold that a candidate who has failed to submit the caste certificate in proper format must suffer the
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consequences, as provided in the advertisement itself.
15. However, the learned counsels appearing for the appellants have strenuously argued that the decision rendered in LPA No. 91 of 2020 shall not create a legal bar for deciding the present batch of Letters Patent Appeals as merits of the individual cases have not been gone into by the writ Court and, moreover, the appellant in LPA No. 91 of 2020 was a candidate for the post of Dental Doctor under the Advertisement No. 02 of 2016. The submission made on behalf of the appellants is that LPA No. 91 of 2020 has been dismissed primarily on the ground that the subject-advertisement required submission of "caste certificate in proper format" and the consequence of non-furnishing of that document was provided therein but other issues which may arise in the present batch of Letters Patent Appeals have not been dealt with by the Hon'ble Division Bench.
16. We are not inclined to accept this proposition for the reason that judicial discipline and propriety require that the decision of a co-ordinate Bench must be accepted as binding on a Bench of co-equal strength. This is really necessary for maintaining a just legal system by ensuring consistency in the judicial approach. The law on the subject is very clear that a co-ordinate Bench shall not comment upon the judgment by a Bench of co-equal strength, irrespective of having some doubt about the judgment. It has been held by the Hon'ble Supreme Court that a plea that the previous matter was not argued so well or an important issue in law was not brought to the notice of the former Bench are not the grounds to challenge the former judgment on the same issue and the co-ordinate Bench of equal strength shall not look into or comment upon the previous judgment on the same subject.
17. In "State of Bihar v. Kalika Kuer alias Kalika Singh and others" (2003) 5 SCC 448 the Hon'ble Supreme Court has held as under:
"10. Looking at the matter, in view of what has been held to mean by per incuriam, we find that such element of rendering a decision in ignorance of any provision of the statute or the judicial authority of binding nature, is not the reason indicated by the Full Bench in the impugned judgment, while saying that the decision in the case of Ramkrit Singh was rendered per incuriam. On the other hand, it was observed that in the case of Ramkrit Singh the Court did not consider the question as to whether the Consolidation Authorities are courts of limited jurisdiction or not. In connection with this observation, we would like to say that an earlier decision may seem to be incorrect to a Bench of a coordinate jurisdiction considering the question later, on the ground that a possible aspect of the matter was not considered or not raised before the court or more aspects should have been gone into by the court deciding the matter earlier
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but it would not be a reason to say that the decision was rendered per incuriam and liable to be ignored. The earlier judgment may seem to be not correct yet it will have the binding effect on the later Bench of coordinate jurisdiction. Easy course of saying that earlier decision was rendered per incuriam is not permissible and the matter will have to be resolved only in two ways - either to follow the earlier decision or refer the matter to a larger Bench to examine the issue, in case it is felt that earlier decision is not correct on merits. Though hardly necessary, we may however, refer to a few decisions on the above proposition."
18. However, the matter does not end here. What has been next argued by the learned counsels for the appellants is that there are conflicting views of the other co-ordinate Division Benches of this Court in almost a similar fact-situation.
19. On behalf of the appellants, the judgment in LPA Nos. 610 of 2017 and 618 of 2017 has been referred to wherein relying on the judgment in "Ram Kumar Gijroya" a Division Bench of this Court has approved the writ Court's direction to accept caste certificate and domicile certificate of the successful candidates who were denied appointments on the ground that they had failed to submit the requisite certificates before the date notified for document verification.
20. On the other hand, Mr. Sunil Kumar, the learned senior counsel appearing for the JPSC and JSSC has referred to the orders passed by other co-ordinate Benches in LPA Nos. 469 of 2015 and 57 of 2018 to submit that once a candidate has failed to comply with the requirements under the advertisement for appointment inasmuch as caste certificate was not furnished in proper format within the stipulated time or a different caste certificate was produced at the time of verification of the documents, his candidature shall be treated under unreserved category. The learned senior counsel for the JPSC and JSSC has also referred to the order passed in WP(S) No.1921 of 2018 in which insistence of the JPSC on adherence to the conditions prescribed under the advertisement has been approved by the Hon'ble Division Bench.
21. From the decisions rendered by different coordinate Benches of this Court, the following facts are emerging : (i) "Ram Kumar Gijroya" has been followed or distinguished and thus not relied upon in some cases, having regard to the facts and circumstances in that particular case; (ii) in LPA No. 91 of 2020, a coordinate Bench of this Court has held that in cases of non compliance of a condition wherever consequence has been provided
6
that must ensue, and; (iii) direction has been issued by this Court to the Commission to grant appointment to a candidate who was denied appointment for not producing the caste certificate, even after the selection process was complete.
22. Though it has been contended by the learned senior counsel for the JPSC and JSSC that the decision in "Ram Kumar Gijroya" has been rendered in the peculiar fact-circumstance wherein no cut-off date was mentioned in the advertisement, we are of the opinion that the issue which falls for consideration in this batch of Letters Patent Appeals requires an authoritative pronouncement by a larger Bench of this Court.
23. This seems to be a matter of records that the appellant in LPA No. 64 of 2020 has secured maximum marks in her caste category. However, on account of the aforesaid mistake she was treated as a general category candidate in which category she could not secure the cut-off mark. There is another candidate who has secured marks almost double the cut-off mark but his candidature has also been considered under the unreserved category. In our opinion, this issue is important and of greater significance as well as in the public interest, having regard to the mandate of the Constitution of India under Articles 14 and 16. Simultaneously, the constitutional mandate under Article 335 shall also be attracted in the facts and circumstances of these cases inasmuch as all these appellants have secured more marks than cut-off marks in their respective category.
24. The learned counsels appearing for the appellants and Mr. Sanjoy Piperwall, the learned counsel for the JPSC and JSSC have prepared a chart indicating the marks secured by each appellant and the cut-off mark in their category.
25. In view of the importance of the matter, we would extract the charts so prepared by the learned counsels appearing for the parties in a tabular format hereinbelow:
Advertisement No.02/2016 (JPSC) Dental Doctor
Case No. Appellants Category Marks Obtained Cut-Off Marks
| 1.LPA No.64/2020 |
Dr. Nutan Indwar |
ST |
120 |
95 |
| 1. Anshika Priya |
EBC-II |
135 |
116 |
2. Devendra Kumar EBC-I 133 110
3. Manoj Mahato EBC-I 125 110
7
|
4. Sugandha Verma |
EBC-I |
122 |
110 |
| 5. Kumar Gaurav |
EBC-II |
144 |
116 |
| 6. Niharika Singh |
EBC-I |
132 |
110 |
3.LPA No.117/2020 Neha Nupur SC 118 97
Advertisement No.05/2017 (Combined Examination) (Jharkhand Combined Police Sub Inspector) Competitive Exam
Case No.
Appellants
Category
Marks Secured Cut-Off Marks
1. LPA No. 1. Pawan Kumar Sahu EBC-I 683.8876791900 382.6272072900 76/2020 521.7066980250
628.1317652550
350.0272223250
2. Jitendra Gope EBC-II 701.7710859300 492.6349012050
652.7455052400
382.6272072900
3. Sanjay Kumar EBC-I 628.75838331150 521.7066980250
628.1317652550
4. Janmejay Kumar EBC-I 447.7804461150 382.6272072900
521.7066980250
628.1317652550
5. Rajdeep Yadav EBC-II 476.8760496750 350.0272223250
492.6349012050
652.7455052400
6. Arbind Kumar EBC-II 354.1780394850 350.0272223250
492.6349012050
652.7455052400
2. LPA No. 1. Pradeep Kumar Mahto EBC-I 655.4397635400 382.6272072900 77/2020 521.7066980250
628.1317652550
350.0272223250
2. Akhilesh Kumar EBC-II 680.7050114550 492.6349012050
652.7455052400
382.6272072900
3. Sikandar Alam EBC-I 467.720100400 521.7066980250
628.1317652550
4. Sanjeet Rana EBC-I 424.5326182500 382.6272072900
521.7066980250
628.1317652550
5. Yugesh Prasad EBC-I 515.9304924300 382.6272072900
521.7066980250
628.1317652550
8
6. Nitesh Kumar EBC-II 354.2676860850 350.0272223250
492.6349012050
652.7455052400
7. Meenakshi Kumari EBC-II 362.1272841300 350.0272223250
492.6349012050
652.7455052400
3. LPA No. Shrawan Kumar SC 395.6708015400 240.0762118950 87/2020
241.9548357750
555.8427631800
4.LPA No. Prity Kachhap ST 315.41 240.0434055750 88/2020 268.3534546500
441.0277850550
5.LPA No. 1. Sanjay Kumar SC 461.21 240.0762118950 92/2020 241.9548357750
555.8427631800
2. Ameet Singh EBC-II 502.89 350.0272223250
492.6349012050
652.7455052400
6. LPA No. Rashmi Oraon ST 317.1437472000 240.0434055750 104/2020 268.3534546500
441.0277850550
7. LPA No. Saheb Ali EBC-I 393.537547335 382.6272072900 128/2020 521.7066980250
628.1317652550
8. LPA No. Sunny Kumar Verma EBC-II 359.21 350.0272223250 133/2020 492.6349012050
652.7455052400
9. LPA No. Raju Kumar Choudhary EBC-I 431.09958813 382.6272072900 183/2020 521.7066980250
628.1317652550
10. LPA No. Pankaj Das EBC-I 396.5794224 382.6272072900 193/2020 521.7066980250
628.1317652550
11. LPA No. Sonu Priya EBC-II 353.030579745 350.0272223250 266/2020 492.6349012050
652.7455052400
Advertisement No.21/2016 (Combined Graduate Trained Teacher)
| Case No. |
Appellants |
Category |
Marks Obtained |
Cut-Off Marks |
| 1. Manoj Kumar Gupta |
EBC-II (Geography), Dhanbad |
168 |
160 |
2. Sandhya Kumari EBC-II 154 150 (Maths & Physics)
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|
|
Dhanbad |
|
|
| 1. Pinku Kumar |
EBC-II (Physics & Maths) Ramgarh |
172 |
150 |
| 2.Anita Kumari |
SC (History/Civics) Hazaribagh |
228 |
186 |
| 3. Hanspal Kumar |
EBC-I (English) Chatra |
180 |
150 |
| 4. Pramod Kumar |
EBC-I (English) Ramgarh |
180 |
150 |
| 5. Nisha Kumari |
EBC-II (Economics)Bokaro |
156 |
150 |
| 6. Panneshwari |
EBC-I (Hindi) Ramgarh |
230 |
188 |
7. Deepak Kumar EBC-I 208 164 (Economics) Chatra
Advertisement No. 06/2017(JSSC) (Combined Police Radio Operator Competitive Exam)
| Case No. |
Appellants |
Category |
Marks secured |
Cut-Off Marks |
Remark |
| 1. LPA No. 49/2020 |
Sabita Kumari |
EBC-II |
450.6190608960 |
370.4618073960 |
Female |
| 2. LPA No. 74/2020 |
Subhash Sharma |
EBC-I |
681.9443939880 |
654.2751498480 |
Male |
3. LPA No. Ganesh Shankar EBC-I 664.3769464080 654.2751498480 Male 103/2020 Mahto
Advertisement No. 07/2017 (Jharkhand Police Radio Sub-Inspector Wireless Competitive Examination)
| Case No. |
Appellants |
Category |
Marks secured |
Cut-Off Marks |
Remark |
| LPA No.105/2020 |
Md. Parvez Hussain |
EBC-I |
554.7070262800 |
510.2822637480 |
|
Advertisement No. 10/2017 (Post Graduate Trained Teacher Competitive Examination) Case No. Appellants Category Marks Cut-Off Marks
Remark secured
| 1. LPA No. 50/2020 |
Mona Kumari |
EBC-I |
242 |
206 |
|
| 2. LPA No. 125/2020 |
Kushma Kumari |
EBC-II (Sanskrit) |
236 |
206 |
|
| 3. LPA No. 126/2020 |
Kumari Punam Jyoti |
EBC-II (Maths) |
154 |
150 |
|
4. LPA No. Neha Kumari EBC-II 194 178 127/2020 (Chemistry)
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26. In our opinion, the following issues call for an authoritative pronouncement by a Larger Bench of this Court:
A. Whether "Ram Kumar Gijroya" must be applied in every case irrespective of the facts of the case, provided the caste certificate is produced at the time of verification of the documents?
B. Whether Clause 9(gha) in the Advertisement No. 2 of 2016 and a similar stipulation in the other advertisements run contrary to the Constitutional mandate under Article 14, 16 and 335 of the Constitution of India?
C. Whether providing a condition in the
advertisement that the caste certificate in the proper format should be in possession of the candidate on the last date for making the application failing which his/her candidature shall be considered under unreserved category is an exercise of excessive delegation of power and/or beyond the powers conferred upon the
Commission?
27. We may however indicate that the parties shall be at liberty to make a prayer before the Larger Bench for including any other issue in law which may be required to be answered for a conclusive decision in these matters?
28. Our attention has been drawn to the order dated 25 thJune 2018 passed by the writ Court in WP(S) No.2398 of 2018 whereby the appointments made have been made subject to outcome of the writ petition.
29. In view of the questions involved in this batch of the Letters Patent Appeals, we are inclined to maintain the order passed by the writ Court.
30. Ordered accordingly.
31. An objection has been taken on behalf of the JPSC and JSSC that the selected candidates in the respective category were not made parties before the writ Court. On the other hand, the learned counsels for the appellants have submitted that this mistake on the part of the appellants can
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be rectified by permitting them to file applications for impleadment of all such selected candidates.
32. Having regard to the general laws for appointment on a public post that irrespective of caste category merit should be given preference, the learned counsels for the appellants are permitted to file an application for impleadment of all such selected candidates within a period of two weeks.
33. Registry to place the records before Hon'ble the Chief Justice.
34. Liberty to mention.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.)
SB/Nibha
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