Rajiv Kumar Vs Bhuwan Bhaskar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 24 of 2024

1.Santosh Kumar Singh, aged about 38, son of Sri Jitendra Singh, Resident of Qr. No.C1/12, Sector-II, Dhurwa, Ranchi. 2.Ratnesh Kumar, aged about 37 years, Son of Sri Ram Ratan Prasad resident of C/o RIMS staff Qr. No.91 P.O. & P.S. Bariatu District-Ranchi.

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… … Respondent/Appellant

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Versus

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1. Bhuwan Bhashker aged about 35 yr. son of Laxmi Narayan, resident of Village-Rusu P.O.&P.S. Kersai DistrictSimdega. … … Petitioner/ Respondent

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2. Rajendra Institute of Medical Sciences through its Director, having office at Bariatu P.O-RIMS., P.S Bariatu.

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3. Director Rajendra Institute of Medical Sciences through its Director, having office at Bariatu P.O-RIMS., P.S Bariatu ranchi

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4 . Shashi Ranjan Kumar, s/o Bikram Singh, R/o Hill view Road no.7 Bariatu P.O-RIMS., P.S Bariatu, Ranchi

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5. Rajiv Ranjan Kumar, s/o Yamuna Singh, R/o Qr. No. B- II,299, Sharma Road P.O.& P.S. Dhurwa Ranchi.

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6 . Deepak Kumar Pathak, S/o shri Sanjay Kumar Pathak R/o C/.o Rajeev Kumar Mishra Audrey House, Meyer's Road near RajBhawan Gate No.2 P.O.Ranchi University P.S. Gonda District Ranchi.

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7 . Binita Kumari W/o Sri Anand Kishore Yadav R/o R/o Hill view Road no.13 Bariatu P.O-RIMS., P.S Bariatu, Ranchi.

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8 . Amit Kumar Deepak S/o Shri Laxman Kumar Deepak R/o Vill-Surid, P.O. Landopath, P.S. Sonahatu Distt. Ranchi.

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9 . Sonal Singh D/o Jagat Kishore Singh R/o Near main road, Police Station, P.O.-Barwadih P.S. Main road, Distt- Latehar.

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10 .Afasna Ruhi D/o Sri Basir Ahemad R/o Vill and P.O. Boreya, P.S. –Kandi, District- Garhwa.

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Performa Respondents/Respondents with

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L.P.A. No. 47 of 2024

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1.Deepak Kumar Pathak, aged about 35 years, son of Late Sanjay Kumar Pathak, resident of C/o Rajeev Kumar Mishra, Audrey House, Meyer‟s Road, Near Raj Bhawan, Gate No. 2, P.O.:-Ranchi University, P.S. Gonda, District-Ranchi, Jharkhand.

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2.Afsana Ruhi, aged abut 30 years daughter of Bashir Ahmad Resident of village Boreya, P.O. Boreya, P.S. –Kandi, DistrictGarhwa, Jharkhand.

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3.Sonal Singh, aged about 40 years, daughter of Sri Jagat Kishore Singh, resident of Near Main Road, Police Station, Barwadih, P.O. Barwadih, P.S. Barwadih, District Latehar, Jharkhand.

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4.Binita Kumari, aged about 37 years, wife of Sri Anand Kishore Yadav, Resident of Hill View Road No. 13, Bariatu, P.O. Bariatu, P.S. Bariatu, District Ranchi, Jharkhand.

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...Respondents/Appellants.

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Versus

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1. Bhuwan Bhaskar son of Laxmi Narayan, resident of Village-Rusu P.O Kersai, P.S. Kersai District-Simdega, Jharkhand. ...Petitioner/Respondent no. 1.

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2. Rajendra Institute of Medical Sciences through its Director, having its office at Bariatu, RIMS, Ranchi, P.O. RIMS, P.S Bariatu, District Ranchi, Jharkhand.

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3. The Director Rajendra Institute of Medical Sciences, having its office at Bariatu RIMS., Ranchi, P.O.-RIMS, P.S Bariatu, District Ranchi, Jharkhand.

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...Respondents/Respondents

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4 . Shashi Ranjan Kumar, son of Bikram Singh, Resident of Hill view Road no.7 Bariatu P.O-RIMS, P.S Bariatu, DistrictRanchi, Jharkhand.

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5 .Santosh Kumar Singh, son of Sri Jitendra Singh, Resident of Qr. No.C1/12, Sector-II, Dhurwa, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi, Jharkhand.

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6 .Ratnesh Kumar, Son of Sri Ram Ratan Prasad resident of C/o RIMS staff Qr. No.91 P.O. Bariatu, P.S. Bariatu, DistrictRanchi, Jharkhand.

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7. Amit Kumar Deepak, son of Sri Laxman Kumar Deepak, resident of village Surid, P.O.- Landopath, P.S. – Sonahatu, District Ranchi, Jharkhand.

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8. Rajiv Kumar, aged about 40 yers, son of Sri Yamuna Singh, Resident of Qr. No. B-II,299, Sharma Road P.O Dhurwa, P.S. Dhurwa, District Ranchi, Jharkhand.

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Respondents /Proforma Respondents with

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L.P.A. No. 84 of 2024

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1. Shankar Oraon, aged about 36 years, son of Birsa Oraon, resident of village Chamguru, P.O. Gagi, P.S. Kanke, District

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Ranchi, Jharkhand.

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2. Hitesh Kumar, aged about 32 years, son of Gopal Marik, resident of Ward No.2, Haripur, P.O. Deoghar, P.S. Deoghar, District Ranchi, Jharkhand.

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Ramchandra Seth, aged about 37 years, son of Late Vijay Seth, resident of village Oredaru, P.O. Landupdih, P.S. Sonahatu, District Ranchi, Jharkhand.

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Mukesh Harijan, aged about 36 years, son of Shukdeo Harijan, resident of village Khiraundhi, P.O. Godda, P.S. Godda, District Godda, Jharkhand.

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Anand Oraon, aged about 33 years, son of Sera Oraon, resident of H. No.1, Mandana Toli, Gurgain, Gurgaon, P.O. Burmu, P.S. Burmu, District Ranchi, Jharkhand.

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Anita Toppo, aged about 41 years, daughter of Late Alexius Toppo, resident of New Area Morabadi, P.O. Ranchi University, P.S. Eadalhatu, District Ranchi, Jharkhand.

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Nitesh Kumar Satyam, aged about 32 years, son of Lebu Mahato, resident of village Nagarikala, P.O. Sijua, P.S. Tetulmari, District Dhanbad, Jharkhand.

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Poonam Kumari, aged about 35 years, daughter of Basant Munda, resident of village Bsuatoli, P.O. Chakla, P.S. Ormanjhi, District Ranchi, Jharkhand.

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... Appellants .

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Versus

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1.Bhuwan Bhaskar, son of Laxmi Narayan, resident of village Rusu, P.O. Kersai, P.S. Kersai, District Simdega, Jharkhand.

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...Petitioner / Respondent No.1.

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Rajendra Institute of Medical Sciences through its Director, having its office at Bariatu, RIMS, Ranchi, P.O. Bariatu, P.S. Bariatu, District Ranchi, Jharkhand.

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The Director, Rajendra Institute of Medical Sciences, having its office at Bariatu, RIMS, Ranchi, P.O. Bariatu, P.S. Bariatu, District Ranchi, Jharkhand.

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...Respondents/Respondents.

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Shashi Ranjan Kumar, son of Bikram Singh, Resident of Hill View Road No. 7, Bariatu, P.O.-RIMS, P.S. Bariatu, District Ranchi, Jharkhand.

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Rajiv Kumar, son of Sri Yamuna Singh, Resident of Qr.No. B-II, 299, Sharma Road, P.O. Dhurwa, P.S. Dhurwa, District Ranchi, Jharkhand.

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Deepak Kumar Pathak, son of Late Sanjay Kumar Pathak, resident of C/o Rajeev Kumar Mishra, Audrey House, Meyer's Road, Near Raj Bhawan Gate No.2, P.O.- Ranchi University, P.S. Gonda, District - Ranchi, Jharkhand.

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Santosh Kumar Singh, son of Sri Jitendra Singh, Resident of Qr. No. C1/12, Sector- II, Dhurwa, P.O. Dhurwa, P.S. Dhurwa, District Ranchi, Jharkhand.

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Binita Kumari, wife of Sri Anand Kishore Yadav, Resident of Hill View Road No. 13, Bariatu, P.O. Bariatu, P.S. Bariatu, District Ranchi, Jharkhand.

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Ratnesh Kumar, son of Sri Ram Ratan Prasad, resident of C/o. RIMS Staff Qr. No. 91, P.O. Bariatu, P.S. Bariatu, District-Ranchi, Jharkhand.

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Amit Kumar Deepak, son of Sri Laxman Kumar Deepak, resident of village Surid, P.O. Landopath, P.S. Sonahatu, District Ranchi, Jharkhand.

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Sonal Singh, daughter of Sri Jagat Kishore Singh, resident of Near Police Station, Main Road, Barwadih, P.O. Barwadih, P.S. Barhwadih, District Latehar, Jharkhand

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Afsana Ruhi, daughter of Bashir Ahmad, resident of village Arsande Boreya, Kanke, P.O. Boreya, P.S. Kanke, District Ranchi, Jharkhand.

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...Respondents/ Proforma Respondents. with L.P.A. No. 116 of 2024

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Rajiv Kumar, aged about 40 years, son of Sri Yamuna Singh, Resident of Qr. No. B-II,299, Sharma Road P.O & P.S. Dhurwa, District- Ranchi, Jharkhand.

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… … Appellant/ Respondent no. 4 Versus 1. Bhuwan Bhaskar, son of Laxmi Narayan, resident of Village-Rusu, P.O. & P.S. Kersai, District-Simdega, Jharkhand

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… … Respondent no. 1/ Petitioner

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2. Rajendra Institute of Medical Sciences through its Director, having office at Bariatu P.O-RIMS., P.S Bariatu, District – Ranchi, Jharkhand.

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3. The Director, Rajendra Institute of Medical Sciences, office at Bariatu P.O-RIMS., P.S Bariyatu, District – Ranchi, Jharkhand.

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4 . Shashi Ranjan Kumar, S/o Bikram Singh, R/o Hill view Road no.7 Bariatu P.O-RIMS., P.S Bariatu, District – Ranchi, Jharkhand.

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5. Deepak Kumar Pathak, S/o Shri Sanjay Kumar Pathak R/o C/o Rajeev Kumar Mishra Audrey House, Meyer's Road near Raj Bhawan Gate No.2, P.O. Ranchi University, P.S. Gonda District Ranchi, Jharkhand.

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6 . Santosh Kumar Singh, son of Sri Jitendra Singh, Resident of Qr. No. C1/12, Sector- II, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi, Jharkhand.

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7 . Binita Kumari, wife of Sri Anand Kishore Yadav, Resident of Hill View Road No. 13, Bariatu, P.O. Bariatu, P.S. Bariatu, District Ranchi, Jharkhand.

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8 . Ratnesh Kumar, son of Sri Ram Ratan Prasad, resident of C/o. RIMS Staff Qr. No. 91, P.O. Bariatu, P.S. Bariatu, District-Ranchi, Jharkhand.

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9 . Amit Kumar Deepak, son of Sri Laxman Kumar Deepak, resident of village Surid, P.O. Landopath, P.S. Sonahatu, District Ranchi, Jharkhand.

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10 . Sonal Singh, daughter of Sri Jagat Kishore Singh, resident of Near Main Road, Police Station, P.O. Barwadih, P.S. Main Road, District Latehar, Jharkhand

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11 . Afasna Ruhi, daughter of Sri Basir Ahmad, resident of village and P.O. Boreya, P.S. Kandi, District Garhwa, Jharkhand.

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… … Respondents/ Respondents

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------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI

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For the Appellant	------ : Mr. Krishna Kumar, Advocate Mr. Indrajit Sinha, Advocate Mr. Ankit Vishal, Advocate Mr. Abhijeet Kr. Singh, Advocate Mr. Harsh Chandra, Advocate Mr. Shashank Kumar, Advocate Mr. Surya Harsh Mishra, Advocate
For the Respondent	: Mr. Sameer Saurabh, Advocate Mr. Vishal Kumar, Advocate Dr. A.K. Singh, Adv. Mr. Sharon Toppo, Adv Ms. Divya, Adv
	Ms. Isha Kaushik, Advocate --------

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C.A.V. on 07/08/2025 Pronounced on 02/09/2025 Per Sujit Narayan Prasad, J.:

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1. All the appeals have been listed together for analogous hearing since all the appeals arise out of the common order/judgment dated 09.01.2024 passed in W.P. (S) No. 393 of 2020. Therefore, they have heard together and are being disposed of by this common order/judgment.

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Prayer:

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2. The instant intra-court appeals, under Clause 10 of the Letters Patent, have been directed against order dated 09.01.2024 passed in W.P.(S) No. 393 of 2020, whereby and whereunder while disposing of the writ petition following direction has been passed as under paragraphs 18 to 20:

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“ 18 .Since the persons who does not deserve to be appointed are enjoying the fruits of appointment and those who deserves to be appointed, have been thrown on road, this Court is of the view that the panel prepared for appointment of Laboratory Technician is fit to be scrapped and set aside. The merit list prepared taking into account the marks obtained in the Skill Test is also not tenable and hence the said merit list does not have legs to stand and any appointment from the said merit list is dehors the rule. However, instead of quashing the entire selection process, I, hereby, direct the respondents to prepare a fresh merit list on the basis of marks obtained in the written test and the marks awarded for experience. The respondents are further directed to prepare the panel/ merit list as per the observations and findings made hereinabove and make appointment to the post of Laboratory Technician

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in accordance with law. Earlier appointment to the post of Laboratory Technician based on the previous merit list prepared on the basis of the marks obtained in the written test as well as the skill test, in connection with list of candidates issued vide letter no. RIMS/Admn./No. 77, Dated 27.01.2020, is hereby quashed and set aside and any appointment based on that is also hereby quashed and set aside.

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19 . Let fresh appointment be made on the post of Laboratory Technician considering the fresh merit list prepared on the basis of written marks and experience. Let the entire exercise be concluded within a period of twelve weeks from the date of receipt/ production of a copy of this order.

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20 . The writ petition stands allowed with

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aforementioned observations and directions.” 3. Thereafter, one C.M.P. No. 112 of 2024 was filed for modification of order dated 09.01.2024 passed in W.P.(S) No. 393 of 2020 to the extent that in place of letter no. „RIMS/Admn. No. 77, dated 27.01.2020‟, final list of selected candidates as contained in „Memo No. 4046/ RIMS, dated 20.10.2020‟, may be quashed and set aside. The learned Single Judge, considering the submission advanced by learned counsel for the parties, allowed the application. For ready reference, order passed in C.MP. No. 112 of 2024 is quoted as under:

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“1.Heard learned counsel for the parties.

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2. Instant application has been filed by the petitioner with a prayer for modification of order dated 09.01.2024, passed by this Court in W.P.(S) No. 393 of 2020 to the extent that in place of letter no. RIMS/Admn. No. 77, Dated

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27.01.2020, final list of selected candidates as contained in Memo No. 4046/ RIMS, Dated 20.10.2020, may be quashed and set aside.

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3. Mr. Sameer Saurabh, learned counsel representing the petitioner strenuously urges that initially writ petition was filed for quashing part of list of selected candidates issued vide letter no. RIMS/Admn. No. 77, Dated 27.01.2020 [Annexure-11 to the writ petition]. However, during pendency of the writ petition, final list of selected candidates was published vide Memo No. 4046/ RIMS, Dated 20.10.2020 and as such an interlocutory application/amendment petition was filed vide I.A. No. 5706 of 2020, which was allowed vide order dated 05.11.2020 but the same has not been quashed in the order dated 09.01.2024, passed in W.P.(S) No. 393 of 2020. Learned counsel further argues that no appointment has been made on the basis of list of selected candidates issued vide letter no. RIMS/Admn./ No. 77, dated 27.01.2020 and as such it would be expedient in the interest of justice to modify the order dated 09.01.2024 to the extent that in the place of “RIMS/Admn. No. 77, Dated 27.01.2020”, final list of selected candidates as contained in “Memo No. 4046/ RIMS, Dated 20.10.2020” be quashed in para-2 and para-18 of the order dated 09.01.2024, passed in W.P.(S) No. 393 of 2020.

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4. Dr. Ashok Kumar Singh, learned counsel representing RIMS very candidly submits that in the original writ petition and amendment petition, such prayer has been made and it is upon this Court to pass order on modification though intent of the order is very clear. Learned counsel further argues that the order passed by this Court has been challenged before the Hon‟ble Division Bench but he is not able to give case number or present status.

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5. Having heard counsel for the parties and considering fact and circumstances of the case, this petition is allowed. The order dated 09.01.2024, passed by this Court in W.P.(S) No. 393 of 2020 is modified to the extent that to the extent that in the place of “RIMS/Admn. No. 77, Dated 27.01.2020”, final list of selected candidates as contained in “Memo No.

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4046/ RIMS, Dated 20.10.2020” be quashed in para-2 and para-18 of the said order. The dated 09.01.2024, passed in W.P.(S) No. 393 of 2020 is modified to the extent indicated above.

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6. This CMP is accordingly allowed.”

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Factual Matrix :

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4. Brief facts of the case, as per the pleadings made in the writ petition and incorporated in the impugned order, reads as under:

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5. An advertisement no. 955(A), dated 08.03.2019 was published for appointment on various Grade-III posts including the post of Laboratory Technician in RIMS followed by Corrigendum no. 1097, dated 16.03.2019. The maximum age prescribed for unreserved category was fixed as 35 years and the essential qualification was I.Sc./10+2 (Science) with Degree/ Diploma in Laboratory Technician and the candidate must be registered with State Paramedical Council. Petitioner, a local resident of State of Jharkhand, was fulfilling all the requisite criteria and as such submitted duly filled up application form in prescribed format within the prescribed time. On 16.09.2019, a list of eligible candidates for the post of Laboratory Technician was published and the candidates were instructed to appear in the written exam scheduled to be held on 21.09.2019. After the examination, the result was published on 30.12.2019. Thereafter, pursuant to the office order dated 30.12.2019, objections

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were invited from the aggrieved candidates relating to marks obtained by them till 04.01.2020 and the dates were also announced for documents verification and skill test. Subsequently, the notice dated 06.01.2020 was issued showing petitioner at Sl. No. 14 in general category with 47.5 marks. After verification of documents, petitioner was found fit for appointment and the list of candidates were issued on 08.01.2020 again showing petitioner at serial no. 14. Thereafter, petitioner appeared in the skill test on 09.01.2020. However, it is alleged that instead of skill test, interview was conducted by the respondents. Thereafter, provisional merit list of selected candidates for appointment to the post of Laboratory Technician was published for which notice was issued vide RIMS/Admn./ No. 77 dated 27.01.2020. From the provisional merit list dated 27.01.2020, it is apparent that the candidates at Sl. No. 7, 10 to 17 under the General Category have secured less marks than the petitioner but they have been selected provisionally for appointment to the post of Laboratory Technician. The name of respondent no. 3 appears at serial no. 17 under General category, although said respondent no. 3 had secured 33.5 and was at serial no. 40, which is apparent from the notice dated 08.01.2020 whereas petitioner had secured 47.5 marks and was placed at serial no. 14 but was

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not selected for appointment. Respondents published fresh list of selected candidates as contained in Memo NO. 4046/ RIMS, dated 20.10.2020. Grievance of the petitioner is that out of the selected candidates, the candidates namely Rajiv Kumar, Deepak Kumar Pathak, Santosh Kumar Singh, Binita Kumari, Ratnesh Kumar, Amit Kumar Deepak, Sonal Singh and Afsana Ruhi had got marks lesser than the petitioner and despite that their names find place in the final list dated 20.10.2020. In the said list, name of respondent no. 3 Shashi Ranjan in writ petition is not there. The final list selecting candidates having secured marks lesser than the petitioner is bad, illegal and as such, petitioner has approached the writ court by invoking the writ jurisdiction of this Court conferred under Article 226 of the Constitution of India.

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6. The learned writ court, after hearing the parties, allowed the writ petition and quashed the list of selected candidate issued vide memo/letter no. RIMS/Admn./No. 77 dated 27.01.2020, and held any appointment based on that is also hereby quashed and set aside; and further direction was given that let fresh appointment be made on the post of Laboratory Technician considering the fresh merit list prepared, on the basis of written marks and experience, within a period of twelve weeks from the date of receipt/production of a copy of this order.

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7. It needs to refer herein that during pendency of the said writ petition i.e. W.P. (S) No. 393 of 2020, final list of selected candidates was published vide Memo No. 4046/ RIMS dated 20.10.2020 by the Respondent, thereafter an interlocutory application/amendment petition was filed vide I.A. No. 5706 of 2020, which was allowed vide order dated 05.11.2020 but the same has not been quashed in the order dated 09.01.2024, passed in W.P.(S) No. 393 of 2020.

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8. Thereafter, one C.M.P. No. 112 of 2024 was filed for modification of order dated 09.01.2024 passed in W.P.(S) No. 393 of 2020 to the extent that in place of letter no. „RIMS/Admn. No. 77, dated 27.01.2020‟, final list of selected candidates as contained in „Memo No. 4046/ RIMS, dated 20.10.2020‟, may be quashed and set aside.

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9. The learned writ court, while considering the submission advanced by learned counsel for the petitioner that no appointment has been made on the basis of list of selected candidates issued vide letter no. RIMS/Admn./ No. 77, dated 27.01.2020 and as such it would be expedient in the interest of justice to modify the order dated 09.01.2024 to the extent that in the place of “RIMS/Admn. No. 77, Dated 27.01.2020”, final list of selected candidates as contained in “Memo No. 4046/ RIMS, Dated 20.10.2020” be quashed, has

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allowed the CMP and accordingly modify the para-2 and para-18 of the order dated 09.01.2024.

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10. In the instant appeal the order dated 09.01.2024 has been assailed.

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Submission of the appellants :

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11. Learned counsel for the appellants has submitted that as per Rules formulated by the State Government under Department of Health, Medical Education and Family Welfare, Government of Jharkhand vide notification as contained in memo no. 192 (11) dated 31.07.2015, the recruitment of Paramedical Staffs including Laboratory Technician was conducted by the Five Member Selection Committee constituted by the Director, RIMS, in which, the appellants along with the private respondents and other eligible candidates participated and after going through the due selection process, the appellants were appointed on the post of Laboratory Technician in RIMS, Ranchi and since then they are discharging their duty with utmost satisfaction to the authority concerned.

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12. Submission has been made that the writ petitioner participated in the selection process without any demur or raising any objection or protest and when he failed to secure place in the final merit list, he approached this Court by filing writ petition being W.P. (S) No. 393 of 2020, which was

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allowed vide order dated 09.01.2024, directing to prepare fresh merit list, even most of the appellants herein were neither impleaded in the writ petition nor any opportunity of hearing was granted to the appellants. In this regard, submission has been made that list of all those candidates was on public domain and not it was a large number of successful candidates, so it was obligatory upon the writ petitioner to make all successful candidates party before the learned writ Court but purposely all the appellants [successful candidates] were not made party.

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13. Submission has been made that appointment on the post in question has been made in strict compliance of the Statute and Regulations of RIMS by the five-members Selection Committee duly constituted by the Director, RIMS, who is appointing and administrative authority of Class III and Class IV in RIMS.

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14. Learned counsel for the appellants further submits that respondent no. 1 (writ petitioner) once participated in the process of selection and on being declared unsuccessful cannot turn around and challenge the selection process since once participated in the selection process, the writ petitionerprivate respondent shall be deemed to have accepted the selection process, which is in terms of the Statute and Regulations of RIMS, Ranchi. Therefore, the principle that

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„ once the game is over , the rule cannot be changed‟ will be applicable in the case at hand but that aspect of the matter has not been appreciated by learned Single Judge.

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15. The learned Single Judge has also failed to consider that the provision of Skill Test in appointment on the post of Laboratory Technician was recommended by the five-member selection committee duly constituted by the competent authority and the skill test so conducted cannot be treated to be interview as skill test relates to the ability to use and handle complex laboratory equipment, as such the skill test was necessitated to be conducted for the post of Laboratory Technician.

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16. Further submission has been made that criteria for evaluation of the candidates performance in the selection process for a particular post is the prerogative of the appointing authority and under domain of the employer considering the nature of work to be performed by the successful candidate.

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17. Learned counsel for the appellants submits that so far enquiry which was conducted on the allegation of irregularities committed in the process of selection is concerned, in which, it is nowhere stated that there was any illegalities committed in the process of selection, rather some irregularities were pointed out and in a suggestive measure, it

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has been directed by the State to publish fresh merit list so far the post of Laboratory Technician is concerned but the learned Single Judge without considering the content of the enquiry report has given finding that it smacks of favouritism and nepotism but in the entire enquiry report there is no such finding. Therefore, submission has been made that the learned Single Judge has erred in coming to such conclusion, which requires interference by this Court.

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18. Submission has been made it is not a case where any allegation either has been made upon the selection committee or on the candidates of malpractice or else, rather, some procedural irregularities has been pointed out, which cannot be said to be illegalities.

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19. Learned counsel for the appellant has further submitted that now the appellants have served for more than 5 years in service and even accepting there was any lacuna in selection process, then also for the fault of others, the appellants cannot be made to suffer.

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20. Further, submission has been made that as of now even some of the appointees have crossed the maximum age, as such, after serving for a long period of more than five years, if any adverse order would be passed, they would render jobless and would lost their future prospect also.

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21. Learned counsel for the appellants in support of their

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submission has relied upon the following judgments :

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State of Assam and Others Versus Arabinda Rabha and Other reported in 2025 SCC OnLine SC 523

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Ashok Kumar and Another Versus State of Bihar and Others reported in (2017) 4 SCC 357

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Poonam Versus State of Uttar Pradesh and Others reported in (2016) 2 SCC 779

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Vikas Pratap Singh and Others Versus State of Chhattisgarh and Others reported in (2013)14 SCC 94

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Submissions on behalf of Private Respondent(s) :

¶158

22. Learned counsel for the private respondent has defended the order passed by the learned Single Judge and submitted that respondent no.1/writ petitioner secured more marks than the selected candidate(s) but was not selected for appointment only because the respondent-authorities had conducted skill test, which was in the form of interview, and the same was added with the marks obtained in the written test as well as marks secured against the experience and after adding the same, final merit list was prepared.

¶159

23. It has been submitted that the said action of the respondents-authorities is not permissible in terms of the guidelines of Government of India adopted by the State of Jharkhand issued vide Letter No. F. No. 39020/09/2015 – Estt. B, issued by the Ministry of Personnel, Public Grievance and Pensions (Department of Personnel & Training),

¶160

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¶162

Government of India, wherein it has clearly been mentioned that interview will not be conducted for appointment against the Grade-B, C and D (Non-gazetted) posts.

¶163

24. Further submission has been made that the skill test is different from interview and even the same may be conducted by the recruiting agencies but these tests are of qualifying in nature and assessment ought not be done on the basis of marks obtained by a candidate in the skill test. But, the respondents-RIMS, in deviation to the relevant rules and terms of advertisement conducted skill test only in order to make favour of the candidates of its choice.

¶164

25. Further submission has been made that even there is no provision of skill test neither in the rule nor in the advertisement but in the midst of selection process the provision of skill test has been made which is against the principle that the „ rules of game cannot be changed when game is over‟ . But, here in utter violation of the said principal skill test has been conducted and marks of which has been added in the final merit list, only with a view to oust the writ petitioner –respondent no. 1 and select the candidates of the choice of the respondents-authorities.

¶165

26. Learned counsel for respondent no. 1 in support of his case has relied upon following judgment:

¶166

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¶168

 Ajay Kumar Shukla and Others Versus Arvind Rai

¶169

and Others reported in (2022)12 SCC 579

¶170

Submission on behalf of respondent-RIMS

¶171

27. Learned counsel for the respondents-RIMS has submitted that as per Regulations, 2014, the Director, RIMS is the appointing authority of Class-III and Class IV posts in RIMS. There is no provision in RIMS Act/Rules/Regulations with regard to qualifications and procedure to be followed for the appointment of Class III and Class IV staff. In such a situation, the Director, RIMS has all power and authority to law down the qualifications and procedure for the appointment of Class III and IV posts.

¶172

28. It has been submitted that though in the case at hand i.e., for appointment on the post of Lab Technician, skill test is necessary and even if it is treated to be interview, then also it would not render the selection process invalid and illegal. Under Section 29 of the RIMS Act, 2008, the State Government has authority to issue directives/guidelines to RIMS for attainment of its goal but the State has not issued any instruction/guideline/directive for not holding interview/skill test as part of selection process.

¶173

29. Submission has been made that the Director, RIMS constituted a committee to make recommendation with regard to procedure to be followed for the

¶174

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¶175

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¶176

selection/recruitment of Class III staffs in RIMS and they have recommended that the merit be prepared on the basis of – Written Test: 50 marks; For experience: 30 marks; Skill test: 20 marks i.e., in total 100 marks .

¶177

30. Further submission has been made that the writ petitioner-respondent no. 1 took part in the skill test without making any protest and after being declared unsuccessful and got lesser marks in skill test, it is not left open for him to turn around questioning the legality and validity of skill test or process of selection.

¶178

31. Further submission has been made that in the skill test held on 09.01.2020, the candidates were awarded marks ranging from 01 to 18.5 out of total 20 marks and for this several complaints were made by the candidates concerned. Therefore, the State Government conducted an enquiry by appointing enquiry officer, who conducted enquiry and submitted its report. Accordingly, the State Government directed the respondent-RIMS to take certain corrective measures with regard to the alleged irregularities.

¶179

32. Pursuant thereto, the Selection Committee of RIMS, in its meeting dated 10.07.2020, has realized that the marks awarded on 09.01.2020 require moderation and revision in view of norms in such matters followed by Uttar Pradesh

¶180

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¶182

Public Service Commission and Jharkhand Public Service Commission.

¶183

33. To ensure fairness to the appearing candidates and reduce the element of subjectivity it was resolved to moderate the marks in Skill Test awarded on 09.01.2020 and limit it between 25% (5) and 75% (15) out of the total marks of 20 in the skill test. Accordingly, the marks awarded earlier on 09.01.2020 were moderated and revised and accordingly final list of selected candidates as contained in “Memo No. 4046/ RIMS, dated 20.10.2020 was published. As a result of such moderation even the marks of writ petitioner-respondent no. 1 was revised from 02 to 05 but even then, he did not reach to the merit.

¶184

34. Further submission has been made that it is not a case that where even any illegality has been pointed out rather some irregularities have been pointed out, which have been cured and after that final result was published, as such the appointment made in favour of the appellants requires no interference by this Court.

¶185

Analysis

¶186

35. Heard learned counsel for the parties, gone through the finding recorded by learned Single Judge as also the pleadings available on record and annexure appended therewith.

¶187

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¶189

36. However, before entering into the legality and propriety of the impugned order, it needs to refer herein the admitted factual aspect of the matter.

¶190

37. The „ Rajendra Institute of Medical Sciences, Ranchi‟ is an autonomous institute under the Department of Health, Medical Education and Family Welfare, Government of Jharkhand. The recruitment/ appointment, promotions of staffs are regulated by the provisions as contained in the RIMS Act, 2002; RIMS Rules, 2002 and RIMS Regulations, 2014.

¶191

38. In exercise of powers vested under Section 31 read with Section 29 of the RIMS Act, 2002, the State Government has made Para Medical Staff Appointment Promotion and Service Condition Rules, 2015 [Rules, 2015] and notified the same vide Memo No. 192(ii) dated 29.07.2015.

¶192

39. The qualification, procedure and modality for appointment of all Para Medical Staff, including the Laboratory Technician i.e. the post in question, has been spelt out in Clause No. 4 of the Rules, 2015. The clause 4(III) delineates the procedure for selection of Para Medical Staff including Laboratory Technician. For ready reference, clause 4 of the Rules, 2015 is quoted as under:

¶193

4- HkÙkhZ@fu;qfDr

¶194

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¶195

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¶196

lh/kh HkÙkhZ ,oa izksUufr }kjk fu;qfDr gsrq 'kS{kf.kd ;ksX;rk ikjkesfMdy dkWmafly vkWQ >kj[k.M] QkesZlh dkmafly] >kj[k.M] }kjk fu/kkZfjr gSA mlds vkyksd esa laoxZ esa fu;qfDr izfØ;k fuEu izdkj gksxh%& ikjkesfMdy dfeZ;ksa ¼;Fkk&iz;ksx'kkyk izkoSf/kd] QkekZflLV] 'kY; d{k lgk;d] ifj/kkid½ ds inksa ij lafonk ds vk/kkj ij fu;qDr lHkh dehZ ml in ij fu;fer fu;qfDr ds fy;s ik= gksxk] ;fn %&

¶197

I) mlus bl fu;e ds v/khu fu;qfDr dh frfFk dks ikjkesfMdy dfeZ;ksa ¼;Fkk&iz;ksx'kkyk izkoSf/kd] QkekZflLV] 'kY; d{k lgk;d] ifj/kkid½ ds in ij fu;qfDr fu;ekoyh ;Fkk >kj[k.M jkT; iz;ksx'kkyk izkoSf/kd ¼HkÙkhZ] izksUufr ,oa vU; lsok 'kÙkZ½ fu;ekoyh] 2013 >kj[k.M jkT; QkekZflLV laoxZ ¼HkÙkhZ] izksUufr ,oa vU; lsok 'kÙkZ½ fu;ekoyh] 2013 vFkok ,rn~ fo’k;d vkns'k ds v/khu fu;qfDr ds fy;s vkisf{kr vgÙkkZ ds lkFk&lkFk foKkiu ds vkyksd esa vgÙkkZ izkIr dj yh gksA

¶198

1- iz;ksx'kkyk izkoSf/kd ds fy;s eSfVªd@vkbZ0 ,l0 lh0 ds lkFk jkT; ljdkj ¼>kj[k.M@fcgkj½ ds izf'k{k.k laLFkku vFkok Hkkjr ljdkj ls ekU;rk izkIr fdlh laLFkkuksa ls iz;ksx'kkyk izkoSf/kd izf'k{k.k mÙkhZ.k gksuk vko';d gSA Hkkjr ljdkj ds ekuo lalk/ku fodkl ea=ky; }kjk ekU;rk izkIr laLFkku ls ftlus esfMdy ySc Vsdfuf'k;u dk U;qure ,d o’kZ dk izf'k{k.k izkIr fd;k gks os Hkh iz;ksx'kkyk izkoSf/kd ds in ds fy;s mEehnokj gks ldrs gSaA ,sls mEehnokj tks >kj[k.M ds fuoklh gksa ijUrq lafonk ij fu;qfDr fd;s x;s gksa rks oks Hkh fu;fer fu;qfDr ds ik= gks ldrs gSaA fdUrq ;g ubZ fu;qfDr ekuh tk,xh ,oa iwoZ dh lsok dh x.kuk fdlh foÙkh; ykHk vFkok izksUufr ds iz;kstukFkZ ugha dh tk,xhA fu;fer fu;qfDr dh dkjZokbZ [kqys foKkiu ds ek/;e ls dh tk,xhA

¶199

2- QkekZflLV ds fy;s eSafVªd@vkbZ0 ,l0 lh0 ds lkFk jkT; ljdkj ds QkesZlh laLFkku ls fMIyksek bu QkesZlh dh 'kS{kf.kd ;ksX;rk vko';d gS rFkk QkesZlh dkmafly] >kj[k.M ls fucaf/kr gksuk vko';d gSA

¶200

3- 'kY; d{k lgk;d ds fy;s eSfVªd@vkbZ0 ,l0 lh0 ,oa ifj/kkid ds fy;s eSfVªd ds lkFk jkT; ljdkj ds izf'k{k.k laLFkku ls izf'k{k.k vko';d gSA

¶201

4- vkosnd dks Medically Fit/Physically Sound gksuk vko';d gS] vkSj

¶202

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¶204

II) bl fu;ekoyh ds izo`Ùk gksus ds ckn izFke fu;qfDr esa fjEl 'kklh ifj’kn~ dks mez {kkUr djus dk vf/kdkj gksxk ¼dk;Zjr izR;sd o’kZ ds fy, ,d o’kZ dh NwV rFkk ikjkesfMdy dfeZ;ksa dks iwoZ ls dk;Zjr vuqHko ds vk/kkj ij vad nsus dk izko/kku dj ldsxh½

¶205

III) ikjkesfMdy dfeZ;ksa ds fofHkUu inksa ij [kqys foKkiu ds vk/kkj ij lh/kh HkÙkhZ jktsUnz vk;qfoZKku laLFkku] jk¡ph ds xfBr p;u lfefr }kjk vk;ksftr vUrohZ{kk ds fy, dqy vadksa dh la[;k ¼ekSf[kd@lk{kRdkj esa 50 vad] 'kS{kf.kd ;ksX;rk esa 30 vad rFkk vuqHko ds fy, 20 vad½ ds vk/kkj ij dh tk,xhA mlesa jkT;Lrjh; vkj{k.k jksLVj ykxw gksxk] tks jkT; ljdkj }kjk fu/kkZfjr gSA

¶206

40. Clause 9 of the said Rules, 2015 says that the Director, RIMS will be the administrative authority of the Para Medical Cadre. Further, at clause 11, it has been stated that any condition which is not mentioned in this Rule then in that situation, the direction of Governing Body will be effective and it will be treated to be part of the Rule. For ready reference, the clause 9 and 11 are quoted as under:

¶207

9- iz'kklfud fu;a=.k %& ikjkesfMdy laoxZ ds lHkh inksa ij iz'kklfud fu;a=.k funs'kd] fjEl] jk¡ph dk jgsxk ,oa os gh buds laoxZ fu;a=.k izkf/kdkj gksaxsA

¶208

11izdh.kZ %&

¶209

1- vU; ekeys ftuds laca/k esa mij ds [k.Mksa esa dksbZ mica/k ugha fd;k x;k gS ml ekeys esa 'kklh ifj’kn~ }kjk fn;k x;k funsZ'k izHkkoh gksxkA

¶210

2- 'kklh ifj’kn~ }kjk fuxZr dksbZ Li’Vhdj.k ;k dk;Zikyd vkns'k bl fu;ekoyh dk vax ekuk tk;sxk

¶211

41. In the definition Clause of the Rule, it is mentioned that

¶212

the Director, RIMS would be the appointing authority of the Para Medical Cadre.

¶213

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¶214

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¶215

42. Accordingly, an advertisement no. 955(A) dated 08.03.2019 was published for appointment on various GradeIII and Grade IV posts, including the post of Laboratory Technician in RIMS followed by Corrigendum no. 1097, dated 16.03.2019.

¶216

43. The eligibility criteria of the post in question i.e.,

¶217

„ Laboratory Technician’ has been mentioned at serial no. 34, which reads as under:

¶218

“Laboratory Technician

¶219

I. Essential Qualification: Matric/Diploma/Degree Course in Medical Lab Technician.

¶220

Candidate must be registered in State paramedical council. II. Desirable Qualification & Experience At least 5 years experience in 500 hundred bedded hospital.”

¶221

44. However, the same was modified vide corrigendum no.

¶222

1097 dated 16.03.2019, and the essential qualification was changed to the effect that „I.Sc/10+2 (Science) with Degree/Diploma in Laboratory Technician. Candidate must be registered in State paramedical council.‟

¶223

45. The Director, RIMS vide memo no. 4073 dated 26.07.2019 constituted a Screening Committee for the selection of the suitable candidate. Pursuant thereto, the petitioners along with the private respondents participated in process of selection. On 16.09.2019, a list of candidates for the post of Laboratory Technician was published and the candidates were directed to appear for the written test

¶224

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¶226

scheduled to be held on 21.09.2019. Thereafter, on 30.12.2019, a list was published showing the marks obtained by the candidates in written examination as well as marks obtained on the basis of experience.

¶227

46. The respondent-RIMS vide office order dated 30.12.2019 invited objections from the aggrieved candidates relating to the marks obtained till 04.01.2020 and it is stated that after deciding the claim of one or the other candidates, the list of eligible candidates shall be published on the website. Further in the said letter, the date for verification of document was fixed on 08.01.2020 and date of skill test was scheduled on 09.01.2020.

¶228

47. Pursuant, thereto the writ petitioner along with other candidates appeared for document verification and also appeared for „Skill Test‟ on 09.01.2020. However, the writ petitioner-respondent no.1 disputes and submits that it was not skill test rather it was in the form of interview against the condition as stipulated in the advertisement and rules of recruitment.

¶229

48. Pursuant thereto, a final list of selected candidates for appointment on the post of Laboratory Technician was published vide letter dated 27.01.2020, in which, the name of the writ petitioner-respondent does not find place.

¶230

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¶232

49. Aggrieved thereof, the writ petitioner approached this Court by invoking the writ jurisdiction of this Court conferred under Article 226 of the Constitution of India and filed the writ petition on 04.02.2020.

¶233

50. In the meantime, several complaints were received by the State Government with respect to the irregularities committed by the respondents-RIMS in the appointment made on different post of para medical staffs advertised by Advertisement No. 955(A) and 955(B) including the post of Laboratory Technician.

¶234

51. Accordingly, the State Government got an enquiry conducted by the enquiry officer, who submitted report pointing out certain irregularities alleged to have been committed by RIMS in the matter of appointment . For ready reference, the relevant portion of the enquiry report is quoted as under:

¶235

foHkkxh; Kkikad 64¼11½ fnukad 19-02-2020 ls fjEl] jk¡ph ds foKkiu la[;k 955¼ A ½ ,oa 955 ¼ B ½ }kjk r`rh; Js.kh ds rduhdh ,o xa j rduhdh inkS ij dh x;h fu;qfDr esa vfu;ferk lsa ls ca f/kr a tkp izfro¡ nuAs

¶236

mDr ds vkyksd esa fjEl] jkaph ds i=kad 704 fnukad 26-022020 ds }kjk lanfHkZr fu;qfDr ls lacaf/kr dkxtkr dqy 133 i’B ¼Nk;kizfr layXu½ esa izkIr gqvkA izkIr dkxtkr ,oa lwpuk ds voyksdu ds i'pkr fu;qfDr ls lacaf/kr izkIr rF; ds vkyksd esa iqu% i=kad 126¼3½ fnukad 06-05-2020 }kjk funs'kd fjEl] jk¡ph ls lwpuk ekaxk x;kA ftlds vkyksd esa fjEl jk¡ph ds i=kad 225 fnukad 13-05-2020 }kjk dqy 59 i’B ¼Nk;kizfr layXu½ esa lwpuk

¶237

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¶239

miyC/k djk;h x;h] izkIr lwpuk ds voyksdu ,oa tk¡p ls fuEukafdr rF; lkeus vk;k gS %&

¶240

35- Laboratory Technician ds in ij fu;qfDr gsrq jktsUnz vk;qfoZKku laLFkku] jk¡ph ikjkesfMdy dfeZ;ksa dh fu;qfDr] izksUufr ,oa lsok 'krZ fu;ekoyh 2015 xfBr gSA fu;ekoyh esa fu/kkZfjr ;ksX;rk ls fjEl] jk¡ph ds foKkiu esa fuEuor~ fHkUu ik;k x;k%&

¶241

,El }kjk fu/kkZfjr ;ksX;rk fjEl] jk¡ph ds foKkiu esa vafdr ;ksX;rk

¶242

iz;ksx'kkyk izkoSf/kd ds fy;s	Essential Qualification:-
eSfVªd@vkbk0,l0lh0 ds lkFk jkT;	1. I.Sc./10+2 (Science) with
ljdkj ¼>kj[k.M@fcgkj½ ds izf'k{k.k	Degree/Diploma in Laboratory
laLFkku vFkok Hkkjr ljdkj ls ekU;rk	Technician.
izkIr fdlh laLFkkuksa ls iz;ksx'kkyk izkoSf/kd izf'k{k.k mrhZ.k gksuk vko';d	2. Candidate must be registered in State Paramedical Council.
gSA Hkkjr ljdkj ds ekuo lalk/ku	Desirable Qualification &
fodkl ea=ky; }kjk ekU;rk izkIr	Experience:-At Least 5 years
laLFkku ls ftlus esfMdy ySc Vsdfuf'k;u dk U;qure ,d o’kZ dk izf'k{k.k izkIr fd;k gks os Hkh iz;ksx'kkyk izkoSf/kd ds in ds fy;s mEehnokj gks ldrs gSaA	experience in 500 Hundred Bedded hospital.

¶243

fjEl] jk¡ph }kjk vius Lrj ls Desirable Qualification & Experience: - “At Least 5 year‟s experience in 500 hundred Bedded hospital.” tksM+k x;kA

¶244

52. Pursuant thereto, the Principal Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Jharkhand vide letter no. 153(11) dated 15.06.2020 issued directives to RIMS to take certain corrective measures with regard to alleged irregularities. The relevant portion of letter is quoted as under:

¶245

izs’kd]

¶246

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MkW0 furhu dqyd.khZ]

ljdkj ds iz/kku lfpo

lsok esa]

funs'kd]

fjEl] jk¡phA

jk¡ph] fnukad&15-06-20

¶254

fo’k;&fjEl] jk¡ph }kjk izdkf'kr foKkiu la0 955 ¼,½ ,oa ¼ch½ }kjk r`rh; ,oa prqFkZ oxhZ; inksa ij dh xbZ fu;qfDr esa vfu;ferrk cjrus ds laca/k esaA

¶255

egk'k;]

¶256

mi;qZDr fo’k; ds laca/k esa fofHkUu L=ksrksa ls dbZ ifjokn i= i= gksus ds dkj.k foHkkxh; vkns'k Kkikad 64 ¼11½ fnukad 19-02-2020 }kjk foHkkxh; fo'ks’k lfpo dh v/;{krk esa tk¡p lfefr dk xBu fd;k x;k gSA tkp lfefr }kjk izfro¡ fnr fd;k s x;k g fd fjS El e foKkiu lsa 0 955 ¼,½ ,oa ¼ch½ }kjk r`rh; ,oa a prqFk oxhZ ; inkZ ij dh xbsa fu;qfDr eZ leqfpr izfØ;kvksa dk ikyu sa ugh fd;k x;k ga AS lkFk gh jkT; ljdkj }kjk fu/kkZfjr fu;eksa dk Hkh mYya?ku fd;k x;k gSA mDr ds vkyksd esa fuEufyf[kr fcUnqvksa ij dkjZokbZ visf{kr gS%&

¶257

1- loZizFke fjEl ds 'kklh ifj’kn~ ds vuqeksnu ls lewg ^x* ,oa ^?k* ds inksa ij fu;qfDr gsrq fu;ekoyh xfBr dh tk; rFkk ftu inksa ds fy, fu;ekoyh miyC/k gS] mDr fu;ekoyh ds vkyksd esa gh fu;qfDr dh dkjZokbZ dh tk;A

¶258

2- oxZ&3 ,oa 4 ds inksa ij LFkkuh; O;fDr;ksa dh fu;qfDr;ksa ds fu;kstu ls lacaf/kr jkT; ljdkj ds ladYi ds vkyksd esa dkjZokbZ dh tk;A

¶259

3- ftu Js.kh esa vHkh rd fu;qfDr ugha gqbZ gS] mudh p;u izfØ;k dks rRdky izHkko ls jn~n djrs gq, iqu% dkjZokbZ izkjaHk dh tk;A

¶260

4- ftu inksa ij fu;qfDr dh tk pqdh gS] muds laca/k esa fjEl fu;ekoyh rFkk jkT; ljdkj ds vkns'kksa ds vkyksd esa iqu% leh{kk djrs gq, dkjZokbZ dh tk;A

¶261

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¶262

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¶263

5- mDr vfu;ferrkvksa ds vkyksd esa lHkh nks"kh inkf/kdkfj;ksa dks fpfUgr dj fu;ekuqlkj dkjZokbZ lqfuf'pr fd;k tk;A

¶264

mijksDr fcUnqvksa ij dkjZokbZ lqfuf'pr dh tk; rFkk d`r dkjZokbZ ls foHkkx dks voxr djk;k tk;A

¶265

53. In the light of said letter no. 153(11) dated 15.06.2020,

¶266

a meeting of the Selection Committee was convened on 10.07.2020, in which the selection committee realized that the marks awarded on 09.01.2020 in the skill test require moderation and revision in view of norms followed by Uttar Pradesh Public Service Commission and Jharkhand Public Service Commission in such matters.

¶267

54. To ensure fairness to the appearing candidates and reduce the element of subjectivity, it was resolved to moderate the marks in Skill Test awarded on 09.01.2020 and limit it between 25% (5) and 75% (15) out of the total marks of 20 in the skill test. For ready reference, the proceeding of the meeting held on 10.07.2020, is quoted as under:

¶268

r`rh; oxhZ; p;u lfefr dh cSBd fnukad 10-07-2020 dh xbZ ftlesa fuEukafdr lnL; mifLFkr gq, %&

¶269

01 MkW0 eatq xkM+h] Mhu] lg&izk/;kid ,oa foHkkxk/;{k] QkekZdksykWth foHkkx] fjEl] jk¡ph & v/;{k 02 fpfdRlk v/kh{kd] fjEl] jk¡ph & lnL; 03 Jh tsBk ukx lnL; 'kklh ifj’kn~] fjEl] jk¡ph lg vuqlwfpr & lnL; tkfr@vuqlwfpr tutkfr ds izfrfuf/kA 04 rduhdh in ds ekeys esa lacaf/kr foHkkx ds lg&izk/;kid@ & lnL; lgk;d izk/;kid] xSj rduhdh inksa ds fy, funs'kd }kjk euksfurA

¶270

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¶271

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¶272

cSBd dk mn~ns'; r`rh; oxhZ; foKkiu 955¼ A ½ fnukad 08-03-2019 dks es/kk lwph ij fopkj.k %&

¶273

cSBd dh dk;kZoyh%&

¶274

dk;kZoyh la0 1- LokLF; foHkkx ds i=kad 153 ¼11½ fnukad 15-062020 ds vkyksd ,oa funs'kd ds ekSf[kd vkns'kkuqlkj n{krk eqY;kadu dfefV ds }kjk fn;s x;s Skill Test ds vad dk iquvZoyksdu djus ij fopkj.kA

¶275

fu.kZ; %n {krk eqY;kadu ds nkSjku fn, x;s vad dk iquvZoyksdu fnukad 10-07-2020 dks fd;k x;kA n{krk eqY;kadu lfefr }kjk ySc Vsdfuf'k;u ds p;u ds ekeys esa fn, x;s vadksa ds voyksdu ftlesa fofnr gqvk fd dqN izfrHkkxh dks iw.kkZad 20 esa ls U;wure 01 vkSj vf/kdre 18-5 vad fn, x;s gsSaA

¶276

bl ckjs esa ;g rgdhdkr dh xbZ fd vU; Js’B laLFkkuksa ;Fkk >kj[k.M yksd lsok vk;ksx] mÙkj izns'k yksd lsok vk;ksx] la?k yksd lsok vk;ksx vkfn esa varohZ{kk esa U;wure ,oa vf/kdre dh D;k dksbZ lhek gksrh gS \ nwjHkk’k ij izkIr izR;qÙkj esa irk pyk fd mÙkj izns'k yksd lsok vk;ksx esa varohZ{kk esa vf/kdre 75% ,oa U;wure 25% vad nsus dk izko/kku gS vkSj vU; vk;ksx ds varohZ{kk esa Hkh ;|fi U;wure vf/kdre vad dh dksbZ lhek ugha gS ijUrq mu LFkkuksa ij Hkh ;g [;ky j[kk tkrk gS fd U;wure&vf/kdre 25% ls 75% ds chp esa gh jgsA

¶277

mijksDr rF;ksa ds vkyksd esa iquvZoyksdu ds le; ls ¼vFkkZr 20 vad esa ls 05 ls 15½ ds U;wure&vf/kdre vad dks vk/kkj ekurs gq;s lHkh vH;fFkZ;ksa dks iznÙk vad dh leh{kk dj ml gn rd mls la'kksf/kr fd;k tk;sA rnuqlkj final list rS;kj fd;k tk;sA dk;kZoyh la0 2- Jharkhand Para Medical Council ls ek¡xs x, Registration dk lR;kiu~ vkosnu ij fopkj.kA fu.kZ; %p;fur vH;fFkZ;ksa dk Jharkhand Para Medical Council ls Registration dk lR;kiu~ ugha gks ik;k mu vH;kfFkZ;ksa dks p;u ls ckgj fd;k x;kA

¶278

dk;kZoyh la0 3 - vkosndksa dk vkoklh;] tkfr] vuqHko] izek.k&i= dh iqu% tk¡p ds voyksdu ij fopkj.kA

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fu.kZ; %ftu p;fur vH;kfFkZ;ksa dk vkoklh; izek.k&i= izLrqr ugha dj ik;s mUgsa p;u ls ckgj fd;k x;k] tkfr] vuqHko] izek.k&i= dh tk¡p iqu% dfefV ds }kjk djk;k tkus dk fu.kZ; loZ lEefr ls fy;k x;kA dk;kZoyh la0 4-Jh Hkqou HkkLdj] ySc VsDfuf'k;u ds vH;fFkZrk ij fopkjA

¶282

fu.kZ; %fnukad 04-01-2020 dks Jh Hkqou HkkLdj ds 'kS{kf.kd@vkoklh; rFkk vU; vfHkys[kksa ds lR;kiu ds }kjk Jh HkkLdj }kjk jktsUnz vk;qfoZKku laLFkku ds QkekZdkyksth foHkkx ds izk/;kid lg nLrkost lR;kiu lfefr ds lnL;] MkW0 jktho dqekj] ds lkFk fd, x;s nqO;Zogkj ds vkyksd esa loZ lEefr ls ;g fu.kZ; fy;k x;k fd Jh HkkLdj tSls O;fDr dks laLFkku esa fu;ksftr fd;k tkuk mfpr ugha gSA ftlds dkj.k Hkqou HkkLdj dks U;wure 05 vad nsus dk fu.kZ; fy;k x;kA vr% Hkqou HkkLdj dks p;u ls ckgj j[kus dk fu.kZ; fy;k x;kA MkW0 jktho dqekj dh fVIi.kh dh izfr layXu gSA

¶283

55. In the light of the above-mentioned decision, the marks of skill test awarded earlier were subjected to moderation and revision by the Screening Committee, a comparing chart of marks obtained earlier before moderation and after moderation in the skill, has been annexed as SC/I to the affidavit filed by the respondents-RIMS.

¶284

56. Accordingly, during pendency of the writ petition, final list was published vide Memo No. 4046 dated 20.10.2020, which the petitioner challenged by filing I.A. No. 5706 of 2020. The said Interlocutory Application was allowed vide order dated 05.11.2020 and amended writ petition, as directed, was filed accordingly.

¶285

57. During pendency of the writ petition, specific stand was taken by learned counsel for the writ petitioner that two

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different marks in the skill test have been shown by the respondent-RIMS, in Annexure C of the counter-affidavit and in the information supplied to the petitioner under Right to Information Act. Therefore, direction passed upon the respondents-RIMS to file reply vide order dated 29.07.2021.

¶289

“(I) What is their stand regarding marks shown in AnnexureC to the counter-affidavit and marks shown in the information supplied to the petitioner in reply to his application under Right to Information Act?

¶290

(II) As to why not the final merit list of selected and appointed candidates for the post of Lab. Technician be cancelled.

¶291

(III) Under what circumstances the corrigendum to the earlier advertisement was issued by the respondent-RIMS and that too without informing the participants/ candidates. Respondent-RIMS is further directed to file reply to Annexure12 of the writ application and bring on record the entire documents pertaining to appointment of Lab. Technician including the enquiry report and other documents which are relevant for proper adjudication of this case.

¶292

58. In pursuance thereto, affidavit has been filed by the respondents-RIMS stating therein that the skill test was held on 09.01.2020, the candidates were awarded marks ranging from 01 to 18.5 out of total 20 marks, based upon that merit list dated 27.01.2020 was published. However, several complaints were made by the candidates concerned regarding

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some irregularities in the selection process. Therefore, the State got an enquiry conducted, who submitted its report and directed the RIMS to take certain corrective measures with regard to the alleged irregularities.

¶296

59. Accordingly, the Selection Committee of RIMS, in its meeting dated 10.07.2020, has realized that the marks awarded on 09.01.2020 require revision in view of norms in such matters followed by Uttar Pradesh Public Service Commission and Jharkhand Public Service Commission. To ensure fairness to the appearing candidates and reduce the element of subjectivity it was resolved to moderate the marks in Skill Test awarded on 09.01.2020 and limit it between 25% (5) and 75% (15) out of the total marks of 20 in the skill test. Accordingly, the marks awarded earlier on 09.01.2020 were moderated and revised. As a result of such moderation even the marks of writ petitioner-respondent no. 1 were revised from 02 to 05 and revised merit list dated 20.10.2020 was published. In the light of aforesaid, averment has been made that there was two merit-list and the first was scrapped for the reasons aforesaid.

¶297

60. The learned Single Judge heard learned counsel for the parties and allowed the writ petition vide order dated 09.01.2024, against which, the instant intra-court appeals have been preferred.

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61. The ground has been taken by the writ petitioner in the writ petition that respondent-RIMS instead of conducting skill test has taken interview, which is not permissible, and the marks obtained therein has been added in the final merit list though neither in the advertisement nor in the relevant rules/regulation, it has been stated that marks obtained in the skill test would be added for final merit list but the respondent-RIMS added the marks of skill test, which was taken in the form of interview, while preparing final merit list. Therefore, the entire selection process vitiates on the ground that „rules of game cannot be changed once the game is started‟.

¶301

62. While on the other hand, the appellants herein have taken the ground that once the writ petitioner participated in the process of selection without any protest, and on being declared unsuccessful it is not available for him to challenge the same.

¶302

63. This Court, considering the submissions advanced on behalf of the parties and on the strength of aforesaid factual aspect, is of the view that following issues are required to be answered to adjudicate the lis :

¶303

“I. Whether the principle that „the rules of game cannot be changed once the game is started‟ as the ground has been taken on behalf of writ petitioner

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before the writ court, can be said to be applicable herein?

¶307

II . Whether it is available for the writ petitioner to accept the part of the decision taken by the selection committee, which suits him and criticize the other part of the decision by the same selection committee and while doing so will it not be contrary to the principle that there cannot be approbate and reprobate?

¶308

III . Whether it is justified on the part of the writ petitioner that once he participated in the process of selection without any demur, can he raise the same after being declared unsuccessful?

¶309

IV. Whether the process of selection on its conclusion can be allowed to subsist in view of enquiry report of State, which is having the evasive control, to judge the element of illegality/irregularity in the process of selection?

¶310

64. Since, all the issues are inter-linked, as such they are taken up together for its consideration

¶311

65. The question of „rules of games cannot be changed when game is started‟ is no more res integra in view of judgment passed by Hon‟ble Apex Court in the Case of Tej Prakash

¶312

Pathak. Vs. Rajasthan High Court & Ors [in Civil Appeal

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No. 2634/2013 with Civil Appeal No.2635/2013 and Civil Appeal No.2636/2013, 2024 INSC 847, wherein law has been laid down that recruitment process commences from the issuance of the advertisement calling for applications and ends with filling up of vacancies and further it has been held that eligibility criteria for being placed in the Select List, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution of India and satisfy the test of non-arbitrariness. However, it has been concluded that the recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, non-discriminatory/ non-arbitrary and has a rational nexus to the object sought to be achieved. Further, conclusion has been arrived at that to that extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. However, where the Rules are non-existent, or silent, administrative

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instructions may fill in the gaps. Relevant paragraphs of the judgment is quoted as under:

¶319

30. What is clear from above is that the object of any process of selection for entry into a public service is to ensure that a person most suitable for the post is selected. What is suitable for one post may not be for the other. Thus, a degree of discretion is necessary to be left to the employer to devise its method/ procedure to select a candidate most suitable for the post albeit subject to the overarching principles enshrined in Articles 14 and 16 of the Constitution as also the Rules/ Statute governing service and reservation. Thus, in our view, the appointing authority/ recruiting authority/ competent authority, in absence of Rules to the contrary, can devise a procedure for selection of a candidate suitable to the post and while doing so it may also set benchmarks for different stages of the recruitment process including written examination and interview. However, if any such benchmark is set, the same should be stipulated before the commencement of the advertisement inviting applications empower the competent authority to set benchmarks at different stages of the recruitment process, then such benchmarks may be set any time before that stage is reached so that neither the candidate nor the evaluator/ examiner/ interviewer is taken by surprise. The decision in K. Manjusree (supra) does not proscribe setting of benchmarks for various stages of the recruitment process but mandates that it should not be set after the stage is over, in other words after the game has already been played. This view is in consonance with the rule against arbitrariness enshrined in Article 14 of the Constitution and meets the legitimate expectation of the candidates as also the requirement of transparency in recruitment to public services and thereby obviates mal practices in preparation of select list.

¶320

42. We, therefore, answer the reference in the following terms:

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(1) Recruitment process commences from the issuance of the advertisement calling for applications and ends with filling up of vacancies;

¶324

(2) Eligibility criteria for being placed in the Select List, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness;

¶325

(3) The decision in K. Manjusree (supra) lays down good law and is not in conflict with the decision in Subash Chander Marwaha (supra). Subash Chander Marwaha (supra) deals with the right to be appointed from the Select List whereas K. Manjusree (supra) deals with the right to be placed in the Select List. The two cases therefore deal with altogether different issues;

¶326

(4) Recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, non-discriminatory/ nonarbitrary and has a rational nexus to the object sought to be achieved.

¶327

(5) Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. However, where the Rules are non-existent, or silent, administrative instructions may fill in the gaps;

¶328

(6) Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list”

¶329

66. Another position of law which is also require to refer

¶330

herein is that since the ground has been taken to turn

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¶333

around after participating in the process of selection by the writ petitioner-respondent no. 1 and thereafter challenged the recruitment process.

¶334

67. There is no doubt that once the candidate has participated in the process of selection and declared to be unsuccessful, it is not available for such candidate to turn around and question the selection process. Reference in this regard be made to the judgment rendered in the case of Manish Kumar Shahi Vrs. State of Bihar, (2010) 12 SCC

¶335

576 , wherein, at paragraph-16, it has been held as under:-

¶336

"16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2008) 4 PLJR 93] that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition." [ See also: Madan Lal v. State of J&K, (1995) 3 SCC 486 : 1995 SCC (L&S) 712, Marripati Nagaraja v. State of A.P., (2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68, Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC 171 : (2008) 1 SCC (L&S) 1005 and K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515 : (2009) 2 SCC (L&S) 57].

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68. The underlying objective of the aforesaid principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.

¶340

69. However, the aforesaid principle will be not applicable in a cases situation where the candidates allege misconstruction of statutory rules and discriminating consequences, the same cannot be condoned merely because the candidate has taken part in it.

¶341

70. The aforesaid aspect of the matter has been considered by the Hon'ble Apex Court in the case of Dr. (Major) Meeta Sahai Vrs. State of Bihar & Ors., reported in (2019) 20

¶342

SCC 17, the relevant paragraphs of the said judgment are being referred as under:-

¶343

“Preliminary issues

¶344

15. Furthermore, before beginning analysis of the legal issues involved, it is necessary to first address the preliminary issue. The maintainability of the very challenge by the appellant has been questioned on the ground that she having partaken in the selection process cannot later challenge it due to mere failure in selection. The counsel for the respondents relied upon a catena of decisions of this Court to substantiate his objection.

¶345

16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar [Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 :

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(2011) 1 SCC (L&S) 256] , observing as follows: (SCC p.584, para 16)

¶349

“16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 : (2008) 4 PLJR 93] that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.” [ See also: Madan Lal v. State of J&K, (1995) 3 SCC 486 : 1995 SCC (L&S) 712, Marripati Nagaraja v. State of A.P., (2007) 11 SCC 522 : (2008) 1 SCC (L&S) 68, Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC - 171 : (2008) 1 SCC (L&S) 1005 and K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515 : (2009) 2 SCC (L&S) 57]. The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.

¶350

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

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the provisions of the Constitution, unless he/she participates in the selection process.

¶354

18. The question of permissibility of giving weightage for “work experience” in government hospitals is also not the bone of contention in this case. Medicine being an applied science cannot be mastered by mere academic knowledge. Longer experience of a candidate adds to his knowledge and expertise. Similarly, government hospitals differ from private hospitals vastly for the former have unique infrastructural constraints and deal with poor masses. Doctors in such non private hospitals serve a public purpose by giving medical treatment to swarms of patients, in return for a meagre salary. Hence, when placing emphasis on the requirement of work experience, there is no dispute on such recognition of government hospitals and private hospitals as distinct classes. Instead such recognition ensures that the doctors recruited in not-so-rich States like Bihar have the requisite exposure to challenges faced in those regions. 19. The appellant has thus rightly not challenged the selection procedure but has narrowed her claim to only against the respondents' interpretation of “work experience” as part of merit determination. Since interpretation of a statute or rule is the exclusive domain of courts, and given the scope of judicial review in delineating such criteria, the appellant's challenge cannot be turned down at the threshold. However, we are not commenting specifically on the merit of the appellant's case, and our determination is alien to the outcome of the selection process. It is possible post what is held hereinafter that she be selected, or not. Statutory Interpretation

¶355

20. It is a settled canon of statutory interpretation that as a first step, the courts ought to interpret the text of the provision and construct it literally. Provisions in a statute must be read in their original grammatical meaning to give its words a common textual meaning. However, this tool of interpretation can only be applied in cases where the text of the enactment is susceptible to only one meaning. [Nathi Devi v. Radha Devi Gupta, (2005) 2 SCC 271, para 13.]

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Nevertheless, in a situation where there is ambiguity in the meaning of the text, the courts must also give due regard to the consequences of the interpretation taken. 21. It is the responsibility of the courts to interpret the text in a manner which eliminates any element of hardship, inconvenience, injustice, absurdity or anomaly. [G.P. Singh on Principles of Statutory Interpretation, 14th Edn., 2016, pp. 145-170.] This principle of statutory construction has been approved by this Court in Modern School v. Union of India [Modern School v. Union of India, (2004) 5 SCC 583, para 62: 2 SCEC 577], by reiterating that a legislation must further its objectives and not create any confusion or friction in the system. If the ordinary meaning of the text of such law is non conducive for the objects sought to be achieved, it must be interpreted accordingly to remedy such deficiency.

¶359

22. There is no doubt that executive actions like advertisements can neither expand nor restrict the scope or object of laws. It is therefore necessary to consider the interpretation of the phrase “government hospital” as appearing in the Rules. Two interpretations have been put forth before us which can be summarised as follows: (a.) Only hospitals run by the Government of Bihar. (b). Hospitals run by the Bihar Government or its instrumentalities, as well as any other non-private hospital within the territory of Bihar. The former interpretation to the term, as accorded to it by the respondents, forms a narrower class whereas the latter interpretation used by the appellant is broader and more inclusive.”

¶360

71. 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

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condoned merely because a candidate has part 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.

¶364

72. It also requires to refer herein that there cannot be approbate and reprobate. Reference in this regard be made to the judgment rendered in the case of R. N. Gosain vs. Yashpal Dhir, (1992) 4 SCC 683 . Paragraph-10 of the said judgment is being reproduced as hereunder:

¶365

"10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage". [See : Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd. [(1921) 2 KB 608, 612 (CA)] , Scrutton, L.J.] According to Halsbury's Laws of England, 4th Edn., Vol. 16, "after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside". (para 1508)

¶366

73. In the aforesaid backdrop of settled position of law, this

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Court is now proceeding to consider the issues as has been formulated hereinabove.

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¶370

74. It is evident from the factual aspect that as per Rule 4 (III) of Rule, 2015 as formulated by the State, the appointment for para medical staffs was made by the Selection Commission constituted by RIMS, in which total 100 marks of examination was decided to be held; out of which 50 marks for oral/interview; educational qualification 30 and 20 marks for experience. Further, the roster reservation as per State Government was made applicable. Rule 11 of Rules, 2015 speaks that if any of the provisions is not mentioned in the Rules, then the directives of Governing Body of RIMS will be effective.

¶371

75. A five-member Technical Skill Screening Committee under the chairmanship of Dean, RIMS was constituted vide order dated 26.07.2019 by the Director, RIMS. The Director, RIMS vide decision dated 22.07.2019, laid down the norms and modalities to be followed for appointment on Class III posts, wherein at Clause 2(ka), it has been averred that in the meeting held on 20.07.2019, it has unanimously decided that if application is received more than that of vacant posts then in that situation a „Screening Test‟ will be held of the concerned subject of 100 marks of multiple choice question, weightage of which in the merit will be 50%.

¶372

76. Further, at clause 4(kha) it has been stated that since in the medical field there is importance of experience as such

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maximum 30 marks will be for experience. Further, at clause 4(ga), it has been decided that since interview has been abolished by the Government of India, so far posts of Class III and Class IV posts are concerned and since there is importance of „ accuracy of data‟ in medical science, as such decision was taken to conduct „skill test‟ of 20 marks. Thereby, the merit will be prepared of 50 marks for written; 30 marks for experience and 20 marks for skill test.

¶376

77. On the aforesaid backdrop, the appellants, writ petitioner and other eligible candidates participated in the selection process and final list of selected candidates for appointment on the post of Laboratory Technician was published vide letter dated 27.01.2020, in which, the name of the writ petitioner does not find place, against which, the writ petitioner preferred writ petition being W.P. (S) No. 393 of 2020.

¶377

78. From perusal of documents available on record, it is evident that decision to conduct screening test or provision of screening test, was neither available in the recruitment rule nor in the advertisement, rather, the decision to conduct the screening test was taken by the selection committee of RIMS. 79. It is also admitted fact that both the writ petitionerrespondent no. 1 and the appellants have participated in screening test without any protest. On the basis marks

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obtained in screening test along with the marks obtained in written and experience, the appellants were selected for the post in question whereas the writ petitioner having scored less marks in screening test could not find his name in the final select list. Criticizing the decision to have the skill test of the selection process by the writ petitioner, according to our considered view, is not acceptable reason being that if the document/process is to be criticized, the same is to be criticized in entirety and not in part, as is being done by the writ petitioner.

¶381

80. The writ petitioner has challenged the part of the policy decision for conducting skill test and addition of its mark in final merit list, though he participated in the skill test without raising any protest. The same is not acceptable in view of the principle that there cannot be probate and reprobate.

¶382

81. We have considered the factual aspect and found therefrom that the writ petitioner participated in the process of selection without any protest, as would appear from the marks obtained by them in the tabular chart submitted by the respondents-RIMS. But the writ petitioner did not question the decision of the committee to have a skill test rather he participated without any protest.

¶383

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82. The final result published in which the writ petitioner was found to be not successful and only thereafter the writ petitioner challenged the decision of committee for conducting screening test.

¶386

83. This Court, in view of the aforesaid admitted fact, is of the view, as has been held by Hon‟ble Apex Court, that once the candidate participated in the process of selection, it is not available for such candidate to turn around and challenge the process as is being done by the petitioner.

¶387

84. However, exception to the said judgment is there as has been referred hereinabove of the judgment rendered in the case of Dr. (Major) Meeta Sahai Vrs. State of Bihar & Ors (supra) but the factual aspect of the said case is quite distinct from the present case.

¶388

85. Accordingly, issue nos. I to III are answered.

¶389

86. This Court has also perused the marks as obtained in written, experience and in particular the marks obtained skill test as depicted in the tabular chart(s) and it appears that in two tabular charts appended with the paper book, the marks obtained in the skill test either has been increased and decreased of one or the other candidates.

¶390

87. The learned counsel for the respondents-RIMS has submitted that the same is in consequence of principle of

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moderation. Upon which, this Court has posed a question that what was the occasion to take a decision for moderation. 88. Learned counsel for the respondents-RIMS has submitted that since there was large gap of marks in the skill tests ranging from 01 to 18.5 out of 20 and several complaints were made in this regard and in pursuance thereto, enquiry was conducted by the enquiry officer by the State Government, and accordingly enquiry report was submitted by the enquiry officer and directives were given by the Department of Health, Medical Education and Family Welfare, Government of Jharkhand.

¶394

89. Pursuant thereto, the Selection Committee of RIMS, in its meeting dated 10.07.2020, has realized that the marks awarded on 09.01.2020 require moderation and revision in view of norms in such matters followed by Uttar Pradesh Public Service Commission and Jharkhand Public Service Commission.

¶395

90. To ensure fairness to the appearing candidates and reduce the element of subjectivity it was resolved to moderate the marks in Skill Test awarded on 09.01.2020 and limit it between 25% (5) and 75% (15) out of the total marks of 20 in the skill test.

¶396

91. Accordingly, the marks awarded earlier on 09.01.2020 were moderated and revised. As a result of such moderation

¶397

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even the marks of writ petitioner-respondent no. 1 were revised from 02 to 05 and revised merit list dated 20.10.2020 was published. In the light of aforesaid, averment has been made that there was two merit-lists and the first was scrapped for the reasons aforesaid.

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92. This Court is of the view that the moderation and scaling system can be adopted by the recruiting agency but it depends upon the situation.

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93. The moderation or scaling system can be adopted in order to treat the candidates on equal footing. For example, the principle which is being followed in selection process in UPSC where the scaling process is being followed that is for the purpose of maintaining the parity in marks in different subjects, since there is chance of obtaining higher marks in comparison to other subjects but that is not available so far present case is concerned since herein the skill test has been conducted for a particular post of „Laboratory Technician‟ for performing a particular task.

¶402

94. It needs to refer herein that Scaling is a statistical method used to adjust raw scores from different subjects to a common scale. This ensures fairness when candidates are tested in various subjects, allowing for comparison across different papers. For example, if one subject is considered harder and naturally yields lower scores, scaling

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compensates by adjusting the scores to reflect comparable performance levels across subjects. Other hand Moderation involves adjusting scores to account for variations in examiner strictness or leniency. It ensures that the final results are consistent and fair, especially when multiple examiners grade different parts of the exam. Moderation typically involves reviewing a sample of answer sheets to standardize marking practices.

¶406

95. Like UPSC, most examining authorities like state commissions appear to take the view that moderation is the appropriate method to bring about uniformity in valuation where several examiners manually evaluate answer-scripts of descriptive/conventional type question papers in regard to same subject; and that scaling should be resorted to only where a common merit list has to be prepared in regard to candidates who have taken examination in different subjects, in pursuance to an option given to them. Reference in this regard be made to Sanjay Singh v. U.P. Public Service Commission , (2007) 3 SCC 720 wherein the Hon‟ble Apex Court has observed which reads as under:

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23. When a large number of candidates appear for an examination, it is necessary to have uniformity and consistency in valuation of the answer-scripts. Where the number of candidates taking the examination are limited and only one examiner (preferably the papersetter himself) evaluates the answer-scripts, it is to be assumed that there will be uniformity in the valuation.

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But where a large number of candidates take the examination, it will not be possible to get all the answerscripts evaluated by the same examiner. It, therefore, becomes necessary to distribute the answer-scripts among several examiners for valuation with the papersetter (or other senior person) acting as the Head Examiner. When more than one examiners evaluate the answer-scripts relating to a subject, the subjectivity of the respective examiner will creep into the marks awarded by him to the answer-scripts allotted to him for valuation. Each examiner will apply his own yardstick to assess the answer-scripts. Inevitably therefore, even when experienced examiners receive equal batches of answer-scripts, there is difference in average marks and the range of marks awarded, thereby affecting the merit of individual candidates. This apart, there is “hawkdove” effect. Some examiners are liberal in valuation and tend to award more marks. Some examiners are strict and tend to give less marks. Some may be moderate and balanced in awarding marks. Even among those who are liberal or those who are strict, there may be variance in the degree of strictness or liberality. This means that if the same answer-script is given to different examiners, there is all likelihood of different marks being assigned. If a very well-written answer-script goes to a strict examiner and a mediocre answer-script goes to a liberal examiner, the mediocre answer-script may be awarded more marks than the excellent answer-script. In other words, there is “reduced valuation” by a strict examiner and “enhanced valuation” by a liberal examiner. This is known as “examiner variability” or “hawk-dove effect”. Therefore, there is a need to evolve a procedure to ensure uniformity inter se the examiners so that the effect of “examiner subjectivity” or “examiner variability” is minimised. The procedure adopted to reduce examiner subjectivity or variability is known as moderation. The classic method of moderation is as follows:

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(i) The paper-setter of the subject normally acts as the Head Examiner for the subject. He is selected from amongst senior academicians/scholars/senior civil servants/judges. Where the case is of a large number of candidates, more than one examiner is appointed and each of them is allotted around 300 answer-scripts for valuation.

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(ii) To achieve uniformity in valuation, where more than one examiner is involved, a meeting of the Head Examiner with all the examiners is held soon after the examination. They discuss thoroughly the question paper, the possible answers and the weightage to be given to various aspects of the answers. They also carry out a sample valuation in the light of their discussions. The sample valuation of scripts by each of them is reviewed by the Head Examiner and variations in assigning marks are further discussed. After such discussions, a consensus is arrived at in regard to the norms of valuation to be adopted. On that basis, the examiners are required to complete the valuation of answer-scripts. But this by itself, does not bring about uniformity of assessment inter se the examiners. In spite of the norms agreed, many examiners tend to deviate from the expected or agreed norms, as their caution is overtaken by their propensity for strictness or liberality or erraticism or carelessness during the course of valuation. Therefore, certain further corrective steps become necessary.

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(iii) After the valuation is completed by the examiners, the Head Examiner conducts a random sample survey of the corrected answer-scripts to verify whether the norms evolved in the meetings of examiner have actually been followed by the examiners. The process of random sampling usually consists of scrutiny of some top level answer-scripts and some answer books selected at random from the batches of answer-scripts valued by each examiner. The top level answer books of each examiner are revalued by the Head Examiner who

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carries out such corrections or alterations in the award of marks as he, in his judgment, considers best, to achieve uniformity. (For this purpose, if necessary certain statistics like distribution of candidates in various marks ranges, the average percentage of marks, the highest and lowest award of marks, etc. may also be prepared in respect of the valuation of each examiner.)

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(iv) After ascertaining or assessing the standards adopted by each examiner, the Head Examiner may confirm the award of marks without any change if the examiner has followed the agreed norms, or suggests upward or downward moderation, the quantum of moderation varying according to the degree of liberality or strictness in marking. In regard to the top level answer books revalued by the Head Examiner, his award of marks is accepted as final. As regards the other answer books below the top level, to achieve maximum measure of uniformity inter se the examiners, the awards are moderated as per the recommendations made by the Head Examiner.

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(v) If in the opinion of the Head Examiner there has been erratic or careless marking by any examiner, for which it is not feasible to have any standard moderation, the answer-scripts valued by such examiner are revalued either by the Head Examiner or any other examiner who is found to have followed the agreed norms.

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(vi) Where the number of candidates is very large and the examiners are numerous, it may be difficult for one Head Examiner to assess the work of all the examiners. In such a situation, one more level of examiners is introduced. For every ten or twenty examiners, there will be a Head Examiner who checks the random samples as above. The work of the Head Examiners, in turn, is checked by a Chief Examiner to ensure proper results.

¶422

The above procedure of “moderation” would bring in considerable uniformity and consistency. It should be noted that absolute uniformity or consistency in

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valuation is impossible to achieve where there are several examiners and the effort is only to achieve maximum uniformity.

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96. It requires to refer herein that the method of awarding of moderation marks was found to be illegal by the Hon‟ble Apex Court in the case of Umesh Chandra Shukla v. Union of India and others AIR 1985 SC 1351 wherein while considering the fixation of such minimum marks for filling the posts in the Delhi Judicial services in the year 1984, the Apex Court at paragraph 13 has observed that since the High Court has no power of moderation under the Rules as such the list prepared by the High Court after adding the moderation marks is liable to be struck down, for ready reference the relevant paragraph is being quoted as under:

¶427

"In a competitive examination of this nature the aggregate of the marks obtained in the written papers and at the viva voce test should be the basis for selection. On reading R.16 of the Rules which merely lays down that after the written test the High Court shall arrange the names in order of merit and these names shall be sent to the Selection Committee, we are of the view that the High Court has no power to include the names of candidates who had not initially secured the minimum qualifying marks by resorting to the devise of moderation, particularly when there was no complaint either about the question papers or about the mode of valuation. Exercise of such power of moderation is likely to create a feeling of distrust in the process of selection to public appointments which is intended to be fair and impartial. It may also result in the violation of the

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principle of equality and may lead to arbitrariness. The cases pointed out by the High Court are no doubt hard cases, but hard cases cannot be allowed to make bad law. In the circumstances, we lean in favour of a strict construction of the Rules and hold that the High Court has no such power under the Rules. We are of the opinion that the list prepared by the High Court after adding the moderation marks is liable to be struck down. The first contention urged on behalf of the petitioners has, therefore, to be upheld. We, however, make it clear that the error committed by the High Court in this case following its past practice is a bona fide one and is not prompted by any sinister consideration."(emphasis supplied by us)

¶431

97. Herein, there is no reference as to why the moderation/revision principle has been adopted by RIMS/Exam Governing Body, even though as per the admitted case all the candidates are having the equal qualification with minimum desired experience then where is the question of moderation rather the marks should have been allotted strictly on the basis of allotment of marks based upon the skill test, which has been assessed by the Board/Committee in course of assessing the skill.

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98. Accordingly, the issue no. IV is decided.

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99. After answering these issues, as above, this Court has gone through the judgment passed by learned Single Judge and found therefrom that the reference made at paragraph 10 onwards particularly 11 wherein finding has been recorded that there is no provision for Skill Test either in the

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advertisement or in the Rules and on the basis of marks obtained in the skill test as well as in written test and experience the final merit list was prepared.

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100. We are not disputing the aforesaid fact and it has rightly been observed by learned Single Judge that there is no provision for Skill Test either in the advertisement but while considering the aforesaid aspect, the learned Single Judge ought to have taken into consideration the fact that there was no reference to have the screening test in the advertisement or in the rule but there is no consideration of the aforesaid aspect of the matter.

¶438

101. The question of moderation of marks has also been taken as a ground, which according to learned Single Judge has been found to be not taken approval by the Governing Body or the State. But the aforesaid finding cannot be approved reason being that once the advertisement has been notified and selection committee has been formulated there is no provision under the RIMS Act, 2002 or Regulation, 2014 that the recruitment process is to be approved either by the Governing Body or the State. The aforesaid aspect of the matter will be clear from the reference of some of the provisions of the RIMS Act, 2002 and Regulation, 2014 wherein it has been provided that the State will have evasive

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control over the RIMS and having no control over the administration of RIMS on day to day affairs.

¶442

102. So far as the approval of the Governing Body is concerned, there is also no provision to that effect either in the Rules, 2002 or Regulations, 2014 since the statute confers power upon the Governing Body only to formulate policy decision in absence of rule in the recruitment rules.

¶443

103. But there is no consideration either of Rules, 2002 or Regulation, 2014, the approval of any decision by the appointing authority is to be considered on the basis of the conferment of power under the statute and if the statute does not contain any provision by conferring the power then there cannot be any approval either of the Governing Body or the State, but this aspect of the matter has not been taken into consideration.

¶444

104. Learned Single Judge has relied upon the enquiry report of the Additional Secretary, Department of Health, Govt. of Jharkhand giving the finding at paragraph 12 of the impugned judgment that after going through the affidavit filed by the Health Secretary, it appears that the illegalities cannot be routed out. In view of affidavit filed by the Health secretary and the Enquiry Report brought on record, it smacks of favouritism and nepotism, then the big question arises – why the entire selection process be not cancelled.

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105. Therefore, the question arises that if the entire selection of process suffers from unfairness, and further during selection procedure proper procedure has not been followed then what would be the course of decision.

¶448

106. It cannot be disputed that in making the public employment the element of fairness and transparency is paramount so as to achieve the object and intent of Article 14 and 16 of the Constitution of India. The appointing authority while dealing with the issue of public employment has to be more cautious in filling the vacancy of public employment or even employment in the public sector, so as to have the trust of the people at large.

¶449

107. It appears from the impugned judgment and the based upon the affidavit filed on behalf of State that the issue of illegalities said to be committed in the selection process has thoroughly been enquired which has been communicated to the respondents-RIMS vide letter dated 15.06.2020, stating that “ tkp lfefr }kjk izfro¡ fnr fd;k x;k gs fd fjS El e foKkiu lsa 0 955 ¼,½ a

¶450

,o ¼ch½ }kjk r`rh; ,oa prqFka oxhZ ; inkZ ij dh xbsa fu;qfDr eZ leqfpr izfØ;kvksa sa dk ikyu ugh fd;k x;k ga AS lkFk gh jkT; ljdkj }kjk fu/kkZfjr fu;eksa dk Hkh mYya?ku fd;k x;k gSA”. From this, it is apparent that there was violation of rules while making public employment.

¶451

108. The question, therefore, is that if the competent authority of the State government is having its opinion of

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commission of unfairness, and non-adherence of the proper procedure then whether the appointment so made can be allowed to subsist. The answer of this question would be in „ negative‟ for the reason that if the element of arbitrariness and non-adherence of proper procedure is there, as found by the enquiry officer, then allowing to subsist such appointment will certainly hit Article 14 and 16 of the Constitution of India.

¶455

109. If the learned Single Judge has considered the enquiry report which according to our considered view cannot be said to suffer from an error on the principle that the fairness and transparency is paramount bearing in the matter of public employment and based upon this, if the learned Single Judge has come to the conclusive finding that there is element of unfairness, nepotism and favourtism then entire selection process ought to have been cancelled but instead of doing so the learned Single Judge has sustained the selection process, however, with direction to issue fresh appointment letters considering the fresh merit list prepared on the basis of written marks and experience. The aforesaid part of the direction cannot be approved reason being that if the entire selection process is found to suffer from an error and illegality has been carried out as per the enquiry report then the process of recruitment which also includes the entire

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process either of screening test, as the case herein, is required to be quashed and set aside.

¶459

110. If the rule does not provide to have the screening test or the written marks obtained in the said screening test then such performance based upon the written examination also cannot be said to stand rather the same will be said to be contrary to the recruitment rule.

¶460

111. We are of the view that if the rules of recruitment, as formulated the appointing authority, is to strictly go by the statutory provision without deviating from the same.

¶461

112. The law is well settled that if any statutory provision is there, the same is to be complied with in its strict sense and the action is to be taken based upon the statutory provision without any deviation, reference in this regard made to Judgment rendered in the case of State of Uttar Pradesh v. Singhara Singh , reported in AIR 1964 SC 358 , wherein it has been held at paragraph 8 as under:

¶462

"....its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted...."

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113. Reference has also made to the judgment rendered by the Hon'ble Apex Court in the case of Babu Verghese v. Bar

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Council of Kerala, reported in (1999) 3 SCC 422 , wherein

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it has been at paragraphs 31 & 32 as under:

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"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under:

¶469

"[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."

¶470

32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-judge bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognized as a statutory principle of administrative law.

¶471

114. Reference to the judgment rendered by the Hon'ble Apex Court also needs to be made in the case of Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala, reported in (2002) 1 SCC 633, wherein it has been held at paragraph 27 as under:

¶472

"..... it is a normal rule of consideration that when a statute vests certain power in an authority to be exercised in a particular manner then the said

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authority has to exercise it only in the manner provided in the statute itself...."

¶476

115. This Court in view of the aforesaid is of the view that direction as contained in paragraph 19 of the impugned judgment to the effect “Let fresh appointment be made on the post of Laboratory Technician considering the fresh merit list prepared on the basis of written marks and experience. Let the entire exercise be concluded within a period of twelve weeks from the date of receipt/ production of a copy of this order.” also needs to be quashed and set aside. Accordingly, the direction, as given at paragraph 19 of the impugned judgment requires interference and as such the same is quashed and set aside.

¶477

116. The respondent-RIMS is directed to conduct fresh selection process strictly in accordance with the recruitment rules and complete the entire exercise within a period of three months from the date of receipt of copy of this order.

¶478

117. Accordingly, issue no. IV is answered and decided against both the parties.

¶479

118. At this stage, it would be worthwhile to mention herein the submission advanced by learned counsel for the parties that as of now some of the appointees [the appellants and respondents] have crossed the maximum age for participation in the process of selection, as such, after serving for a long period of more than five years, if any adverse order would be

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passed, they would render jobless and would lost their future prospect also.

¶483

119. This Court, considering the submissions advanced by learned counsel for the parties and discussions made hereinabove, is of the view that since this Court has directed for fresh selection and both the parties i.e., the appellants and the private respondent(s) have participated in the process of selection and as has been submitted on behalf of parties that they have crossed the maximum age limit as of now, as such by way of one time measure, the respondentsauthorities are directed to extend the benefit of age relaxation to the parties [appellants and private respondent(s)] only so that they may participate in the process of selection.

¶484

120. Before parting with the order, it needs to refer herein that since the appellants are working as a laboratory technician which is the vital man power resource in the institute like RIMS, hence, this Court is of the view that they will continue in the service till the appointment to the post in question is made afresh, as directed hereinabove i.e., within a period of three months making it clear that there will no extension of service beyond the period of three months.

¶485

121. It is made clear that if in case, the selection process is not completed within a period of three months then the continuation of the appellants in service and the similarly

¶486