Amit Oraon Vs State of Jharkhand through the Chief Secretary, Government of Jharkhand

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IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 14 of 2025

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Amit Oraon, aged about 34 years, Son of Sri Hit Narayan Oraon, Resident of at House No. 185, Village Nigani, P.O. & P.S. Nigani, District - Lohardaga, Jharkhand.

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Ajay Das, aged about 33 years, Son of Sunil Das, Resident of Village Lokania, P.O.-Pabia, P.S. Narayanpur, DistrictJamtara, Jharkhand … … Appellants Versus

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State of Jharkhand through the Chief Secretary, Government of Jharkhand, having office at Project Building, Dhurwa, Р.О. Dhurwa, P.S.-Jagarnathpur, District - Ranchi.

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The Principal Secretary, Personnel, Administrative Reforms & Rajbhasha Department, Government of Jharkhand, having office at Project Building, Dhurwa, P.O. - Dhurwa, P.S. Jagarnathpur, District - Ranchi, Jharkhand.

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Jharkhand Staff Selection Commission through its Secretary, having office at Chai Bagan Namkum, P.O. & P.S. Namkum, District Ranchi.

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Controller of Examination, Jharkhand Staff Selection Commission through its Secretary, having office at Chai Bagan Namkum, P.O. & P.S. Namkum, District – Ranchi. … … Respondents

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With

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L.P.A. No. 59 of 2025

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The State of Jharkhand through the Principal Secretary, Department of Personnel, Administrative Reforms and, Rajbhasha, Government of Jharkhand, having its office at Project Building, P.O. Dhurwa, P.S. Dhurwa, District Ranchi.

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The Principal Secretary, Department of Home, Prison and Disaster Management, Government of Jharkhand, having office at Project Building, Dhurwa, P.O. & P.S.- Dhurwa, Town and District-Ranchi.

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… … Respondent nos. 1 & 2/ Appellants Versus

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Shyamal Rathaur, son of Sri Ramesh Kumar, resident of Ujjwal Bihar, near SBP School, P.O. Mahilong, P.S. Tatisilway, District Ranchi.

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Jawed Ansari, aged about 24 years, son of Md. Rajomat Ansari, resident of Bargari, P.O.- Bargari, P.S.- Mandar, District- Ranchi.

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Arvind Vishwakarma, aged about 37 years, son of Sri Nand Kishor Vishwakarma, resident of Bariatu Road,

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near S.D.A. Mission Hospital, Garigaon, P.O.- RMCH, P.S.- Sadar, District- Ranchi.

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… … Petitioner/ Respondents

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Jharkhand Staff Selection Commission, through its Secretary, having office at Chaibagan, Kalinagar, P.O. & P.S.- Namkum, Town and District- Ranchi.

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The Examinations Controller, Jharkhand Staff Selection Commission, having office at Chaibagan, Kalinagar, P.O. & P.S.- Namkum, Town and District Ranchi. … …Respondent nos. 3 & 4/ Performa 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 Appellants	------- : Mr. Amritansh Vats, Advocate [in L.P.A. No. 14 of 2025] : Mr. Sachin Kumar, AAG-II [in L.P.A. No. 59 of 2025]
For the State	: Mr. Ashok Kumar Yadav, Sr. SC-I : Mr. Ranjan Kumar, A.C. to Sr. SC-I
For the JSSC	: Mr. Sanjoy Piprawall, Advocate : Mr. Prince Kumar, Advocate : Mr. Rakesh Ranjan, Advocate : Mr. Jay Prakash, Advocate
For the Pvt. Resp.	: Mr. Manoj Tandon, Advocate : Ms. Akanksha Priya, Advocate : Mr. Karamjit S. Chhabra, Advocate : Ms. Neha Bhardwaj, Advocate ------

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C.A.V. on 08.08.2025 Pronounced on 04/09/2025

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Per Sujit Narayan Prasad, J.

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1. In both the appeals since similar issues are involved, as such, listed together and taken up together with the consent of learned counsel for the parties.

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Prayer made in L.P.A. No.14 of 2025

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2. The instant appeal under Clause 10 of the Letters Patent is directed against the order dated 04.10.2024 passed by learned Single Judge in W.P.(S) No. 5635 of 2021, whereby and where under the learned Single Judge has

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refused to interfere with impugned notice dated 01.11.2021 whereby and where under, several advertisements for appointment in different posts, bearing Advertisement No. 04 of 2018 and 05 of 2018 have been cancelled. Further, the learned Single Judge has also refused to interfere with the Memo No. 821, dated 05.02.2021 whereby and whereunder a decision has been taken to cancel all those advertisements where appointment letters have not been issued.

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Prayer made in L.P.A. No.59 of 2025

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3. The instant appeal under Clause 10 of the Letters Patent is directed against the order dated 04.10.2024 passed by learned Single Judge in W.P.(S) No. 1856 of 2021, whereby and where under while allowing the writ petition filed by the writ petitioner, the learned Single Judge has quashed the State Government's resolution contained in Memo No. 821 dated 05.02.2021 whereby the State Government had taken a decision to rescind its earlier notification issued vide Memo No. 3854 dated 01.06.2018 and also to cancel all such advertisements which were issued under the provisions of Notification No. 3854 dated 01.06.2018 under which appointment process were incomplete.

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4. The factual matrix of both cases are being dealt with separately since in one of the orders which is the subject matter of L.P.A. No.59 of 2025, the cancellation of

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advertisement No.3/2018 has been quashed and set aside with a direction to the respondents to proceed in accordance with law by recommending the names of the successful candidates to the State respondent who shall proceed further by issuing appointment letters to the successful candidates including these petitioners strictly in accordance with law.

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5. While in L.P.A. No.14 of 2025, which has been filed by the candidates, the writ petition has been dismissed by holding therein that the recruitment process is in the initial stage.

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6. Since two different views on the same issue have been taken and, as such, the factual aspect of both these appeals is being referred herein separately.

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Facts in L.P.A. No.14 of 2025

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7. The brief facts of the case as per the pleading made in the writ petition, which are required to be enumerated, read as under :-

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The case of the writ petitioners/appellants is that the respondent-JSSC has floated an advertisement for filling up of the post of Excise Constable being Advertisement No. 04 of 2018 and another advertisement was floated being advertisement No. 05 of 2018 for appointment on the post of Special Branch Constable (Close Cadre).

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8. The appellants, being eligible candidates in terms of the advertisements, have filled-up the application forms and

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pursuant thereto, Admit Cards were issued to the appellants for appearing in the said examinations. Pursuant thereto, the appellants have appeared in the said examinations.

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9. Pursuant to the said examinations, answer keys were also published by the respondent-JSSC for both the examinations. Thereafter, the appellants were waiting for the publication of final results and recommendations but the respondents were sitting tight over it even after lapse of three years of time from the date of the examinations.

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10. The appellants and the other similarly situated candidates have made several representations before the respondents for publication of final results, but the result was not published.

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11. Thereafter, suddenly through notice dated 01.11.2021 published in the website of the respondent JSSC, whereby and whereunder, a decision has been taken by the respondent no. 4 cancelling both the examinations pursuant to Advertisement No. 04/2018 and 05/2018 including several other advertisements.

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12. In the said notice dated 01.11.2021 it has been mentioned that all the advertisements have been cancelled except where the appointment letters have been issued to candidates.

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13. It is the further case of the writ petitioners/appellants that surprisingly from the same

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advertisement and examination process where appointment has been given to several candidates, their appointment has not been disturbed whereas several candidates who are waiting for their appointment/final result, their appointment has been declared as null and void.

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14. The learned Single Judge, after hearing the parties, has refused to interfere with the impugned notice, against which the present appeal has been filed.

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Facts in L.P.A. No.59 of 2025

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15. It is the case of the writ petitioners that Advertisement No. 03/2018 was issued by Jharkhand Staff Selection Commission for appointment on the post of Vehicle Driver (Heavy Motor Vehicle) and Vehicle Driver (Light Motor Vehicle). The qualification for appointment was 10^th (Matric) pass with driving license.

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16. Since the petitioners were eligible for appointment on the post of Vehicle Driver (Light Motor Vehicle), they applied for appointment in the prescribed format as prescribed by the Jharkhand Staff Selection Commission.

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17. The applications of the petitioners were found to be in order and hence, the admit cards were issued to them.

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18. The petitioners appeared in the written test, which was scheduled on 20.1.2019. The writ petitioners were declared successful in the written test and were called for medical test.

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19. The petitioners appeared on the date, time and venue for medical test and on being found medically fit, the petitioners were called for driving test vide notice dated 14.09.2019. As per the direction contained in Notice dated 14.9.2019, all the petitioners appeared on the time, date and venue for driving test.

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20. It is the case of the writ petitioners that when everything was at final stage, the respondent no.1 has issued the impugned Resolution contained in Memo No. 821 dated 05.02.2021, whereby, in Clause 4 (Kha), it is provided that all advertisements, in which, appointment letters have not been issued and are covered by Resolution No. 3854 dated 01.06.2018 and Resolution No.8468 dated 20.11.2018 stand canceled.

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21. After issuance of aforesaid resolution, the writ petitioners approached this Court by filing writ petition being W.P.(S) No.1856 of 2021 challenging Clause 4 (Kha) of the resolution as contained in Memo No. 821 dated 05.02.2021.

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22. The respondents appeared before the learned writ court and filed counter affidavit.

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23. The learned Single Judge, after hearing the parties, has allowed the writ petition by quashing Annexures-9 (Resolution dated 05.02.2021) & 10 (Information dated 01.11.2021).

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24. So far as Advertisement No.03/2018 is concerned, the learned Single Judge has observed that the entire process of appointment was on the verge of completion, the Respondent JSSC is directed to proceed in accordance with law by recommending the names of the successful candidates to the State Respondent who shall proceed further by issuing appointment letters to the successful candidates including these petitioners strictly in accordance with law.

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25. Aggrieved by the aforesaid order passed by the learned Single Judge, the State has filed the instant appeal.

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26. It is evident from the factual aspect that the occasion to approach this court on behalf of the petitioners who are the candidates participated in the process of selection in terms of advertisement No.3/2018, subject matter of LPA No. 59 of 2025 and advertisement No.4 & 5 of 2018, subject matter of LPA No. 14 of 2025, having not been appointed, even, as per the writ petitioners, the process of recruitment was at the verge of completion. But the advertisements, being Advertisement No.3/2018, 4/2018 and 5/2018 have been cancelled by the State by virtue of issuance of fresh advertisement.

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27. The ground has been taken before the learned Single Judge that once the process of selection has begun and it has been allowed to proceed and at very advanced stage, as

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such, at that juncture, cancellation of the advertisements cannot be said to be proper.

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28. The ground has been taken that while cancelling the Advertisement No.3/2018, 4/2018 and 5/2018, the State has taken the ground of observing the direction passed by Hon'ble Apex Court in the case of Satyajit Kumar & Others v. State of Jharkhand & Others [(2022) 18 SCC 284] as per the cause title of the litigation upholding the view taken in the case of Soni Kumari v. The State of Jharkhand and Others [W.P.(C) No.1387 of 2017 and Analogous matters] by the Hon'ble Apex Court.

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29. The State has taken the ground that the advertisement No.3/2018, 4/2018 and 5/2018 have rightly been cancelled since restrictions have been imposed for not accepting the application of the candidates outside the State of the Jharkhand.

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30. The ground has been taken that there cannot be any such restriction which is in the teeth of Article 14 and 16 of the Constitution of India.

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31. Moreover, the identical issues putting restriction upon acceptance of the application of the candidates for the post of (1) Lower Division Clerks (Collectorate Cadre, District Level Posts), (2) Panchayat Secretary (District Level Posts), (3) Lower Divisional Clerks- State Level Posts and (4) State Stenographer- State Level Posts in terms of the application

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invited in advertisement Nos.1/2017 and 2/2017 have been quashed and set aside.

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32. However, in the said judgment, the issue of selection process to the said posts has been directed to be concluded, which is by taking into consideration the fact that the advertisement so issued for these posts are having restrictions in acceptance of application, restricting it to only the locals of the State of Jharkhand on the basis of the residential certificate of the State of Jharkhand.

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33. The learned Single Judge while disposing the writ petition being W.P.(S) No. 1856 of 2021 with W.P.(S) No. 5068 of 2021 has given the reason that a blanket decision cannot be taken to cancel all the appointments process where appointment letter was not issued, that too only in the garb of any order of the Hon'ble Apex Court which does not appear to be fair on the part of the State and further reason has been assigned that the process of recruitment pertaining to Advertisement No.3/2018, since was at the verge of completion, and as such, cancellation of the advertisement cannot be said to be just and proper and accordingly the order cancelling the said advertisement has been quashed and set aside with the direction to issue appointment letters, which is the subject matter of the appeal.

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Argument on behalf of State in both the appeals:

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34. Learned counsel for the State appellant in L.P.A. No.59 of 2025 has submitted that the order passed by the learned Single Judge suffers from an error, reason being that the said judgment has been passed without taking into consideration the mandate of Article 14 and 16 of the Constitution of India by virtue of which there cannot be any restriction in acceptance of the candidature of the candidates outside the State.

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35. Learned Single Judge has passed judgment only on the ground that the recruitment process was at the verge of completion but merely because the recruitment process was at the verge of completion, that does not create indefeasible right to claim appointment.

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36. Learned Single Judge has also not appreciated the fact that initially the State had committed error in issuance of advertisement restricting acceptance of application confining it to district wise candidates so far as the case of Soni Kumari v. The State of Jharkhand and Others (Supra) and Satyajit Kumar & Others v. State of Jharkhand & Others (Supra) is concerned, but when the said issues have been decided by the Hon’ble Apex Court vide judgment dated 02.08.2022 and following the same, if the error which has been committed in the Advertisement No.3/2018, 4/2018 and 5/2018, subject matter of L.P.A.

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No.59 of 2025 and L.P.A. No.14 of 2025, has been tried to be corrected by floating a new advertisement inviting applications from the candidates not restricting only to the State of Jharkhand in order to follow the mandate of the Hon’ble Apex Court rendered in the case of Soni Kumari v. The State of Jharkhand and Others (Supra) and Satyajit Kumar & Others v. State of Jharkhand & Others (Supra) as also the intent of Article 14 and 16 of the Constitution of India, the learned Single Judge has considered it to be an error on the part of the State by giving a finding that merely on the basis of an order passed by the Hon’ble Apex Court, the decision so taken by the State cannot be said to be just and proper. But, while making such observation, the learned Single Judge has not appreciated the principle of binding effect of the judgment passed by the Hon’ble Apex Court as it binds under Article 141 of the Constitution of India.

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37. It has been contended that after the mandate in the case of Soni Kumari v. The State of Jharkhand and Others (Supra) and Satyajit Kumar & Others v. State of Jharkhand & Others (Supra) , the earlier decision taken restricting the acceptance of application of one or the other candidates district wise has been recalled for the purpose of following the mandate of Article 14 and 16 of the Constitution of Indian as also the judgment rendered by

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Hon’ble Apex Court in the case of Soni Kumari v. The State of Jharkhand and Others (Supra).

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38. It has also been contended that even in the case of Soni Kumari v. The State of Jharkhand and Others (Supra), the reference of issuance of advertisement pertaining to the post of Panchayat Secretary and Stenographer has also been considered, subject matter of Advertisement No. 1/2017 and 2/2017. The Hon'ble Apex Court has passed an order by way of a direction to the State to prepare the service wise merit list followed by allocation of district for the post in the district cadre.

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39. It has also been observed that there shall not be any impediment in proceeding further with the recruitment/appointment pursuant to the aforesaid Advertisement No.1/2017 and 2/2017.

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40. The State has proceeded due to the reason that in the Advertisement No.1/2017 and 2/2017 there was no restriction upon the candidates not to make application if the candidates are residents of outside the State of Jharkhand for consideration of their candidature under unreserved category while in the Advertisement No.3/2018, 4/2018 and 5/2018 such restrictions are there, hence, the same has been recalled with a direction to come out with the fresh advertisement and accordingly, fresh advertisement has also been issued.

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41. Learned State counsel has further submitted by referring to the order dated 04.10.2024 passed in connection with W.P.(S) No. 5635 of 2021 wherein the conflicting view has been expressed by not interfering with the decision so taken by the State of cancelling the Advertisement No.4/2018 and 5/2018 although on the ground that the recruitment process is on the initial stage.

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42. The learned State counsel, therefore, has submitted that if the issue has been decided by the learned Single Judge, based upon the mandate of Article 14 and 16 of the Constitution of India as also the judgment passed by the Hon’ble Apex Court rendered in the case of Soni Kumari v. The State of Jharkhand and Others (Supra) and Satyajit Kumar & Others v. State of Jharkhand & Others (Supra) then merely on the ground of stage of recruitment process, there should not have been two conflicting views.

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43. Learned State counsel has relied upon the judgment rendered in the case of State of Assam and Others v. Arabinda Rabha and Others reported in 2025 SCC OnLine 523.

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Submission made by learned counsel appearing for the respondent/writ petitioners in L.P.A. No.59 of 2025

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44. Per contra, Mr. Manoj Tandon, learned counsel appearing for the respondent/writ petitioners, has taken the following grounds in defending the impugned judgment:-

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(i) It has been contended that the judgments rendered in the case of Soni Kumari v. The State of Jharkhand and Others (Supra) and Satyajit Kumar & Others v. State of Jharkhand & Others (Supra) are having no concern with the advertisement which is the subject matter of the present lis .

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(ii) It has been contended that the Advertisement No.3/2018 was not travelled to the Hon’ble Apex Court and merely on account of the fact that the judgment has come with respect to filling up of the post of teachers, subject matter of Soni Kumari v. The State of Jharkhand and Others (Supra) and Satyajit Kumar & Others v. State of Jharkhand & Others (Supra), the same cannot be made applicable in the facts and circumstances of the present case.

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(iii) Learned counsel has submitted that due to the aforesaid reason, the learned Single Judge has made an observation that in the garb of the order passed by the Hon’ble Apex Court cancelling the advertisement already issued being Advertisement No.3/2018 cannot be said to be just and proper that too when the recruitment process has reached to the advanced stage.

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(iv) It has been contended that since there is no laches or fault lies on the part of the writ petitioner, as such, following the principle of legitimate expectation, the

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order passed by the learned Single Judge needs no interference.

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(v) Learned counsel has relied upon the judgment rendered in the case of Tej Prakash Pathak & Ots. v. Rajasthan High Court and Ors., [(2025) 2 SCC 1] .

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Submission made by learned counsel for the appellants in L.P.A. No.14 of 2025

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45. Mr. Amritansh Vats, learned counsel appearing for the appellants in L.P.A. No.14 of 2025, has taken the following grounds:-

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(i) It has been submitted that the issue in the instant appeal is identical to the issues as under L.P.A. No.59 of 2025, hence, all the arguments which have been advanced on behalf of learned counsel for the respondents/writ petitioners in L.P.A. No.59 of 2025 are being adopted.

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(ii) It has been contended in addition thereto that merely because the recruitment process was at initial stage, the learned Single Judge should not have taken the conflicting views, rather, the order in the present writ petition ought to have been passed by following the principle of the decision having been taken on the pretext of the order passed by the Hon’ble Apex Court. But, the learned Single Judge has taken totally

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different view merely on the ground that the process of recruitment was at initial stage.

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(iii) It has been contended that irrespective of the stage of recruitment process, if the consideration is being made on the legal issues, then the order could have been passed on parity, as has been passed, subject matter of L.P.A. No.59 of 2025.

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Response of the State counsel

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46. Leaned State counsel, responding to the aforesaid argument, has submitted that the view which has been taken by the learned Single Judge in the present case although has been taken on the ground of recruitment process in the initial stage but the intent of Article 14 and 16 of the Constitution of India ought to have been taken into consideration as also the impact of the judgment passed by Hon’ble Apex Court in the case of Soni Kumari v. The State

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of Jharkhand and Others (Supra) and Satyajit Kumar & Others v. State of Jharkhand & Others (Supra).

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47. It has been contended that the learned Single Judge, even if not considered the said judgment but fact remains that merely because the candidates have participated in the recruitment process and if the advertisement in connection with the present appeal also bars the acceptance of candidature from outside the State, and if in such circumstances the Advertisement No.4/2018 and 5/2018

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have been cancelled by issuing fresh advertisement, then this finding should have been recorded in the impugned judgment.

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48. Learned State counsel, therefore, has submitted that so far as the order passed in the present writ petition is concerned, the same requires no interference in view of the above.

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Submission of the learned counsel appearing for the Jharkhand Staff Selection Commission (JSSC).

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49. Mr. Sanjay Piprawall, learned counsel appearing for the Jharkhand Staff Selection Commission (JSSC), has submitted that the order passed in W.P.(C) No.1856 of 2021, subject matter of L.P.A. No.59 of 2025, is not just and proper since the mandate of Article 14 and 16 of the Constitution of India, initially has not been followed as also the direction passed by Hon’ble Apex Court in Soni Kumari v. The State of Jharkhand and Others (Supra) and Satyajit Kumar & Others v. State of Jharkhand & Others (Supra) .

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50. He has submitted that since the Commission is to act upon on the basis of the decision taken and in pursuance thereto the Commission has acted, hence, he has nothing more to say.

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Analysis

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51. We have heard the learned counsel for the parties and gone through the pleading made in the memo of appeals

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(both) as also the impugned judgements, subject matter of both the appeals.

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52. This court, having heard the parties, is of the view that following questions require consideration:-

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(i) Whether the restrictions can be imposed for not accepting the application from the candidates outside the State so far as it relates to the filling up of the unreserved category of post?

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(ii) Whether the State, if had issued the advertisement contrary to mandate of Article 14 and 16 of the Constitution of India, restricting it to the candidates of the State of Jharkhand only, based upon the residential certificate, and if in such circumstances, the same has been cancelled by issuing the fresh notification asking application from the candidates outside the State, will it be said to be improper?

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(iii) Whether the advertisement number either Advertisement No.3/2018 or 4/2018 or 5/2018 which are not the subject matter of the Soni Kumari v. The State of Jharkhand and Others (Supra) and Satyajit Kumar & Others v. State of Jharkhand & Others (Supra), and even if in such circumstances the State has followed the mandate of the judgment in the case of Soni Kumari v. The State of Jharkhand and Others (Supra) and Satyajit Kumar & Others v.

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State of Jharkhand & Others (Supra), will it be considered to be improper exercise of the State?

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53. Since all the issues are interlinked and, as such, are being taken up together for its consideration, but before consideration, the brief admitted facts of the Soni Kumari v. The State of Jharkhand and Others needs to be referred herein: -

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One advertisement was issued to fill up the post of teachers (district level posts) for 13 non-scheduled area. The condition has been provided therein that candidates of the particular districts will only be eligible to make application for the particular district, meaning thereby, a candidate belonging to district ‘A’ will not be allowed to participate in the process of selection of district ‘B’, which is by virtue of order dated 14.07.2016.

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54. Another notice had been issued to fill up the post of Class-III and Class-IV for 11 non-scheduled districts. The condition precedent therein was that the candidates will only be said to be eligible who will be the local residents of the State of Jharkhand.

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55. The selection process commenced and the appointment letters have also been issued. At that juncture, matter travels to this Court titled Soni Kumari v. The State

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of Jharkhand and Others (Supra).

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56. The matter had been referred to the Full Bench of this Court and vide judgment dated 21.09.2020 wherein the order has been passed by quashing and setting aside both the notices restricting the candidature of the outsiders living outside the district coming under the schedule area and so far as the restriction imposed for the district falling under the non-schedule area, the candidature was to be accepted on the basis of the residency certificate of the State of Jharkhand.

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57. The relevant paragraphs of the said judgment is being referred hereunder as:-

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“61. Such is not the case in the present writ applications in hand. The local residents of the scheduled districts have been appointed only in the month of July, 2019 and they are working since then. Their appointments are fresh appointments and indeed, in teeth of Articles 14 and 16 of the Constitution of India. Such appointments cannot be protected in law. Indeed, it has been pointed out through Annexure-7 to the lead writ application that the State Government had been contemplating to impose such unreasonable and unconstitutional restrictions for all the districts in the State. We cannot be a mute spectator to such illegal actions of the State Government and any such attempt by the State Government has to be stalled at its very inception. Such appointments, ignoring the rights of more meritorious candidates, only on the basis of residence, were absolutely illegal and unconstitutional from its very inception and have to be quashed.

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In the result, the appointments of the Trained Graduate Teachers made pursuant to the Advertisement No. 21/2016 published on 28.12.2016 as modified by Advertisement dated 4.2.2017, as contained in Annexures-4 and 4/1 of the lead

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writ application, in the scheduled districts relating to the local residents of those districts only, are hereby, quashed. Even those appointees, if any, who may not be a party in these writ applications, shall be treated to be represented in representative capacity by the respondents and the intervener respondents, in view of orders dated 21.02.2019, 24.04.2019 and 18.09.2019 passed by this Court.

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Accordingly, we hereby, direct that all the 8423 posts of Trained Graduate Teacher in the Government Secondary Schools in the scheduled districts of the State of Jharkhand, as detailed in the Notification No. 5938 and Order No. 5939 dated 14.7.2016, as contained in Annexures-6 and 6/1 of the lead writ application, be advertised afresh and fresh selection process be undertaken in accordance with law.

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We hereby, clarify that all those candidates who were eligible to apply in response to the Advertisement No. 21/2016, as contained in Annexures-4 and 4/1 of the lead writ application, shall be entitled to apply in the fresh selection process, irrespective of any barrier, if any, as to their age.

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We also propose to make it abundantly clear that by the ad-interim order dated 18.9.2019 passed by this Court in these writ applications, the selection process was never stayed by the Court in the non-scheduled districts, though, as informed to us, it had erroneously been taken by the State Government like that. There was no stay for appointments on any post in the non-scheduled districts, or for that matter there was no stay for the appointments even in the scheduled districts, rather, only the operation of the Notification No. 5938 dated 14.7.2016 was stayed by this Court. In other words, the appointments could be continued to be made even in the scheduled districts, ignoring the aforesaid notification. 67. In the result, all these writ applications succeed and are accordingly, allowed with the directions and observations as above. The pending interlocutory applications also stand disposed of.”

¶171

58. It needs to refer herein that there is purpose for

¶172

referring this judgment, since, the State appellant has taken

¶173

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the ground that on the basis of the mandate of the judgment rendered by the Hon’ble Apex Court in the case of Satyajit Kumar & Others v. State of Jharkhand & Others (Supra), the decision has been taken to cancel the Advertisement No.3/2018, 4/2018 and 5/2018.

¶176

59. Therefore, in order to come to the conclusion that the decision of the State is proper or not, the reference of the judgments is necessary to be referred herein.

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60. It is further evident from one of the orders passed in Soni Kumari (Supra) in miscellaneous application wherein the reference of Advertisement No.1/2017 and 2/2017 has been made.

¶178

61. The occasion to file such application was that the result of the process of recruitment was not being published. The Hon’ble Apex Court has been pleased to pass the order that instead of fresh/de novo recruitment process by setting aside the appointments already made in the Scheduled Districts/Areas, the State shall revise the merit list based on the already published cut-off obtained by the last selected candidates in each TGT subject against the respective categories with respect to entire State and respective candidates belonging to the non-Scheduled Areas and Scheduled Areas (districts) shall be adjusted accordingly on the basis of individual merit of the candidates, for ready reference, the order dated 02.08.2022 passed by Hon’ble

¶179

23

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Apex Court in the case of Satyajit Kumar & Others v.

¶182

State of Jharkhand & Others (Supra) is being referred

¶183

hereunder as:-

¶184

“ 111. However, at the same time, the directions issued by the High Court in the impugned judgment and order [ Soni Kumari v. State of Jharkhand , 2020 SCC OnLine Jhar 797] while setting aside all the appointments made pursuant to the Notification/Order dated 14-7-2016 and Advertisement No. 21 of 2016 dated 28-12-2016 as modified on 4-12-2017 and to go in for fresh/de novo recruitment process for the Scheduled Areas/Districts is hereby modified. It is now directed that instead of fresh/de novo recruitment process by setting aside the appointments already made in the Scheduled Districts/Areas, the State shall revise the merit list based on the already published cut-off obtained by the last selected candidates in each TGT subject against the respective categories with respect to entire State and respective candidates belonging to the non-Scheduled Areas and Scheduled Areas (districts) shall be adjusted accordingly on the basis of individual merit of the candidates.

¶185

112. The present directions are issued considering the peculiar facts and circumstances of the case and more particularly considering the fact that there are already vacant posts of teachers in the State (in both Scheduled and nonScheduled Areas). We are of the view that if the appointments already made are set aside and fresh/de novo recruitment process for such posts is initiated, a number of schools in the Scheduled Areas shall be without any teacher which may ultimately affect larger public interest and education of children in the Scheduled Areas concerned.”

¶186

62. The appellant State, in the backdrop of the aforesaid direction, has come out with the resolution dated 01.06.2018 to recall the earlier notice issued for filling up of the post of Class-III and Class-IV for all scheduled or non-

¶187

24

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¶189

scheduled area. The advertisements have been published in pursuance to the same.

¶190

63. The State appellant, when had taken such decision, at the same time, the Advertisement No.3/2018, 4/2018 and 5/2018 had also been notified inviting applications to fill up

¶191

the following posts:-

¶192

Advertisement No.3/2018	1. H.M.V. (General 2. L.M.V. (General	Vehicle Category) Vehicle Category)	Driver Driver
AdvertisementNo.4/2018	1. Excise C	onstable
Advertisement No.5/2018	1. Special (Close C	Branch adre)	Constable

¶193

64. The said advertisements, i.e., Advertisement No.3/2018, 4/2018 and 5/2018, are available in paper book which we have perused and found under the eligibility criteria, as referred in the aforesaid advertisements, that the candidature of such candidates only will be accepted who is the resident of State of Jharkhand having with the residency certificate .

¶194

65. The ground has been taken on behalf of the State that in order to avoid the multiplicity of procedures which has been crept up on issuance of the advertisement to fill up the post, the decision has been taken to recall the Advertisement No.3/2018, 4/2018 and 5/2018 for the reason that there cannot be any restriction in the acceptance of candidature basing upon the residency certificate of the State of Jharkhand.

¶195

25

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¶197

66. But by the time the aforesaid advertisements were cancelled, the recruitment process was in progress and the candidates who have participated in the process of selection being aggrieved with the decision of cancellation of Advertisement No.3/2018, 4/2018 and 5/2018 have approached to this court by filing writ petitions on the grounds, as referred hereinabove.

¶198

67. This Court is to consider, in the light of the aforesaid background, as to whether the decisions so taken by the State is unjust.

¶199

68. This Court is further to consider the judgment passed by the learned Single Judge on the ground that the State has taken decision to follow the mandate of Article 14 and 16 of the Constitution of India, as also the judgment passed in the case of Soni Kumari v. The State of Jharkhand (Supra) /Satyajit Kumar & Others v. State of Jharkhand & Others (Supra) .

¶200

69. This Court is of the considered view that the issue of recruitment to fill up the post of public employment is strictly to be governed under the mandate of Article 14 and 16 of the Constitution of India.

¶201

70. The same has primarily been considered by Hon’ble Apex Court in the case of Satyajit Kumar & Others v.

¶202

State of Jharkhand & Others (Supra) .

¶203

26

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¶205

71. Even prior to the judgment passed by the Hon’ble Apex Court in the case of Satyajit Kumar & Others v. State of Jharkhand & Others (Supra), in catena of judgments the Hon’ble Apex Court has held that any recruitment if it is in the teeth of Article 14 and 16 of the Constitution of India, the same cannot get the constitutional validity.

¶206

72. It needs to refer herein, at this juncture, that the question of Article 14 and 16 of the Constitution of India has also been taken into consideration by this Court while dealing with the rule formulated by way of Niyojan Neeti (Employment Policy) wherein the following conditions have been stipulated, restricting the acceptance of the candidature:-

¶207

^^2->kj[k.M deZpkjh p;u vk;ksx ijh{kk ¼Lukrd Lrj½ lapkyu fu;ekoyh] 2015 ¼;Fkk la'kksf/kr] 2016½ ds fu;e&5&ik=rk@vgRrkZ dk fu/kkZj.k dh dafMdk&¼ii½ esa fuEukafdr izko/kku gSa %&

¶208

^^vH;fFkZ;ksa dks vk;ksx esa vkosnu izkIr gksus dh vafre frfFk rd okafNr 'kS{kf.kd ;ksX;rkizkIr djuk vko';d gkxk**;

¶209

dks fuEuor~ izfrLFkkfir fd;k tkrk gS %&

¶210

^^U;wure 'kS{kf.kd ;ksX;rk %& ^^vH;fFkZ;ksa dks vk;ksx esa vkosnu izkIr gksus dh vafre frfFk rd Lukrd vFkok led{k mRrh.kZ gksuk vfuok;Z gksxkA

¶211

mDr vfuok;Z ;ksX;rk ds vfrfjDr vH;fFkZ;ksa dks eSfVªd@10oha d{kk ,oa baVjehfM,V@10+2 d{kk >kj[k.M jkT; esa vofLFkr ekU;rk izkIr 'kS{kf.kd laLFkku ls mRrh.kZ gksuk vfuok;Z gksxk rFkk vH;FkhZ dks LFkkuh; jhfr&fjokt] Hkk"kk ,oa ifjos'k dk Kku gksuk vfuok;Z gksxkA

¶212

ijUrq ;g fd >kj[k.M jkT; dh vkj{k.k uhfr ls vkPNkfnr vH;fFkZ;ksa ds ekeys esa >kj[k.M jkT; esa vofLFkr ekU;rk izkIr 'kS{kf.kd laLFkku ls eSfVªd@10oha d{kk rFkk baVjehfM,V@10+2 d{kk mRrh.kZ gksus laca/kh izko/kku f'kfFky jgsxkA**

¶213

27

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¶215

^^7->kj[k.M deZpkjh p;u vk;ksx ijh{kk ¼Lukrd Lrj½ lapkyu fu;ekoyh] 2015 ¼;Fkk la'kksf/kr] 2016½ ds fu;e&10 esa fuEukafdr izko/kku gSa %&

¶216

^^i=&2&fgUnh@vaxzsth@mnwZ@laFkkyh@[email protected]¼eq.Mk½@gks@[kfM+;k@d¡q Mq[k mjkao½@dqjekyh@[kksjBk@ukxiqjh@iapijxfu;k@mfM+;kA

¶217

foHkkxh; ladYi la[;k 5726 fnukad 05-07-2016 ds nokjk >kj[k.M deZpkjh p;u vk;ksx ijh{kk ¼Lukrd Lrj½ fu;ekoyh] 2016 ds fu;e&10 eq[; ijh{kk ds i=&2 esa vafdr Hkk"kkvksa esa laLd`r Hkk’kk dks lfEEfyr fd;k x;k gS **; dks fuEuor izfrLFkkfir fd;k tkrk gS %&

¶218

^^i=&2& fpfUgr {ks=h;@tutkrh; Hkk’kk

¶219

fpfUgr 12 ¼ckjg½ {ks=h;@tutkrh; Hkk’kk& mnwZ@laFkkyh@caxyk@ eq.Mkjh¼eq.Mk½@gks@[kfM+;k@dq¡Mq[k¼mjkao½@dqjekyh@[kksjBk@ukxiqjh@ iapijxfu;k@ mfM+;k esa ls fdlh ,d Hkk"kk dh ijh{kk fodYi ds vk/kkj ij vH;FkhZ ns ldsaxsA**

¶220

73. This Court, while dealing with the mandate of Article 14 and 16 of the Constitution of India, has come up with the conclusive finding in the case of Ramesh Hansda and Anr.

¶221

Vs The State of Jharkhand through the Chief Secretary, Government of Jharkhand and Ors. W.P. (C) No. 3894 of

¶222

2021 that there cannot be any restrictions in acceptance of the application in order to deprive the participation in the recruitment process, the relevant paragraphs need to be referred herein which read hereunder as:-

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“49 .In these circumstances, the question arises that what led the State Government to exercise the power under Section 12 of the Act, 2008 to deprive a class of candidate from participating in the process of selection to fill up the vacancies in Group C posts in different departments of the State of Jharkhand, and to carveout different class by making class amongst class and can it be said to be object and spirit of the Act,2008.

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50 .This Court, after perusing the record has found therefrom that there is no discussion, as the argument has been placed on behalf of State of Jharkhand,

¶225

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narrating the object necessitating the State Government to make such amendment depriving a class of candidates from participating in the process of selection or putting a class of candidates in detrimental situation by deleting Hindi/English from the syllabus of Paper-2, as such it appears to this Court that such amendment has been brought by the State of Jharkhand in exercise of power conferred under Section 12 of the Act, 2008 is having no nexus with the object, which is mandatory requirement for legislating the Act/Rules/Regulations.

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51 .It is relevant to refer herein that the authority, who is legislating the subordinate legislation, is required to consider its object by applying active mind, considering the purpose for which the subordinate legislation is being enacted.

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Though, the same has been tried to be explained by the respondents, by way of filing affidavit or advancing argument orally, but such argument, either mentioned in the affidavit or submitted orally before this Court, cannot be considered to be part of consideration for the purpose for which the subordinate legislation has been enacted rather the same is required to be reflected from the record itself.

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Therefore, raising such argument in defence is not acceptable and accordingly, the same is hereby rejected.

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52 .Further, this Court has found that the object and intent of the Act, 2008 is not to deprive a class of candidates from participating in the process of selection for consideration of their candidatures, rather, object is to conduct Combined Competitive Examination for filling up the Group C posts in different departments of the State of Jharkhand.

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53 .Argument has been advanced on behalf of respondentsState of Jharkhand that one of the provisions, as contained in the Act, 2008,is to fix the eligibility for recruitment and therefore, the amendment has been carved out by depriving a section of society and hence the same being under the eligibility clause, the power conferred to the State Government under Section 12 of the Act, 2008 has correctly been invoked.

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54 . This Court is not in agreement with such submission reason being that eligibility does not mean to deprive a class of candidate from participating in the process of selection rather eligibility means to fix the eligibility of one or the other candidates by way of

¶236

taking a policy decision but certainly not to deprive a class of students on the basis of obtaining the educational qualification from a particular State/territory otherwise the same will lead to regionalism which will be against the spirit of the Constitution of India, as under Part II of the Constitution, which recognizes only one Indian citizenship and when there is one citizenship why there will be category against the same class merely on the ground of obtaining the educational qualification, either Matriculation/10thand Intermediate/10+2 or Graduate level certificate.

¶237

In that view of the matter, the same will lead to discrimination and arbitrariness on the part of the State which ultimately be in the teeth of Article 14 of the Constitution of India.

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55. The eligibility connotes the minimum criteria for selection that may be laid down by the executive authority/legislature. It is not in dispute that under the Act, 2008 eligibility for recruitment was also the object of the Act to be determined by making a rule in view of provision of Section 12 of the Act, 2008 and that is the reason Rules, 2015 (amended Rules, 2016) has been made, which only contains the eligibility i.e., the

¶239

minimum criteria for selection, as would appear from the provisions of Rule 5 thereof, but in the impugned provision under the amended Rules, 2021 as under Rule 2, it has been inserted that apart from the minimum eligibility criteria a candidate is required to pass Matriculation/10^th and Intermediate/10+2 examination from the recognized institutions situated within the State of Jharkhand. Inserting of such educational qualification cannot be considered to be ‘eligibility criteria’ rather eligibility criteria within the meaning eligibility come under the fold of qualification since the same is additional norms laid down by the rule making authority.

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Difference in between the ‘eligibility’ and ‘qualification’ has been discussed by the Hon’ble Apex Court in the judgment rendered in Dr. Preeti Srivastava & Ors Vs. State of M.P. & Ors. [(1999) 7 SCC 120], wherein at paragraph 39 the same has been explained as under:

¶243

“39. The respondents have emphasised the observation that admission has to be made by those who are in control of the colleges. But, the question is, on what basis? Admissions must be made on a basis which is consistent with the standards laid down by a statute or regulation framed by the Central Government in the exercise of its powers under Entry 66 List I. At times, in some of the judgments, the words “eligibility” and “qualification” have been used

¶244

interchangeably, and in some cases a distinction has been made between the two words —“eligibility” connoting the minimum criteria for selection that may be laid down by the University Act or any Central statute, while “qualifications” connoting the additional norms laid down by the colleges or by the State. In every case the minimum standards as laid down by the Central statute or under it, have to be complied with by the State while making admissions. It may, in addition, lay down other additional norms for admission or regulate admissions in the exercise of itspowers under Entry 25 List III in a manner not inconsistent with or in a manner which does not dilute the criteria so laid down.”

¶245

Similar view has been taken by Hon’ble Apex Court in the judgment rendered in State of Gujrat & Ors vrs. Arvind Kumar Tiwari & Anr. [(2012) 9 SCC 545], wherein at paragraph 9 it has been held asunder:

¶246

“9. The eligibility for the post may at times be misunderstood to mean qualification. In fact, eligibility connotes the minimum criteria for selection, that may be laid down by the executive authority/legislature by way of any statute or rules, while the term “qualification”,

¶247

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may connote any additional norms laid down by the authorities. However, before a candidate is considered for a post or even for admission to the institution, he must fulfil the eligibility criteria. (VidePreeti Srivastavav.State of M.P.[(1999) 7 SCC 120 : AIR 1999 SC 2894] )”

¶250

56. Herein, it has been argued that the insertion of additional qualification, as has been insertedherein, cannot be construed to be eligibility rather the same is in addition to the eligibility criteria, which is evident

¶251

from the phrase‘in addition to the eligibility criteria’ by which the candidate is required to pass Matriculation/10thand Intermediate/10+2 examination from the recognized institutions situated within the State of Jharkhand. Therefore, this Court is of the view that what has been argued on behalf of State of Jharkhand, that the eligibility for the purpose of recruitment will come under the scope of Section 12of the Act, 2008,is not sustainable.

¶252

57 .Herein, the rule has been framed, by amending Rule 5 of Rules, 2015 by way of substitution of Rule 2 in Rules, 2021, inserting the phrase ‘in addition to the eligibility criteria’ by which the candidate is required to pass Matriculation/10thand Intermediate/10+2 examination from the recognized institutions situated within the State of Jharkhand. Since the additional qualification is not coming under the fold of eligibility and as such the same is outside the scope of Section 12 and, therefore, the provision which has been inserted to that effect cannot be construed to come under the scope of Section 12 of the Act, 2008.

¶253

58. This Court, on the basis of discussions made herein above, is of the view that Section 12 of the Act,

¶254

2008 does not confer power upon the State to deprive a class of candidate from participating in the process of selection, since the same will not come under the foldof implementing the provisions of the Act, 2008.

¶255

59 . This Court, in the entirety of facts and discussions as also judicial pronouncements, is of the considered view that the impugned rules, as contained under Rules, 2021 are

¶256

32

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¶258

discriminatory on the touchstone of Article 14 of the Constitution of India not based upon intelligible differentia rather are unreasonable, and as such the Rule 2 and Rule 7 of the Rules, 2021 are held to be invalid, as the same are in teeth of Article 14 of the Constitution of India.” 74. Herein also what is being contended on behalf of the learned counsel appearing for the appellants/writ petitioners, if will be accepted, then the right which was there for consideration of candidature of the candidates residing outside the State of Jharkhand, or even residing in the state of Jharkhand but having no residential certificate, had been deprived from participating in the process of selection, and thereby they have been put to jeopardize due to nonobservance of the mandate of Article 14 and 16 of the Constitution of India.

¶259

75. The recruitment process, if has been initiated contrary to the mandate of Article 14 and 16 of the Constitution of India, then irrespective of the stage of the recruitment process, the same has to go if the issue has been raised before the court of law or if the State has decided to rectify the illegality committed in the inception.

¶260

76. The State if has proceeded in that direction, it is not available for the court of law to come out with the finding that such decision taken by the State is unjust and improper.

¶261

77. This court, in order to have the view regarding the difference in between the Advertisement No.1 & 2/2017 and

¶262

33

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¶264

Advertisement No.3/2018 has compared both of them in order to come to the conclusion for the purpose of appreciating the argument advanced on behalf of the learned counsel for respondents/writ petitioners that they have been subjected to discrimination since the candidates who have participated in terms of the Advertisement No.1 & 2/2017 have been selected and appointed, but that treatment has not been given to the candidates who have participated in terms of Advertisement No.3/2018, 4/2018 and 5/2018.

¶265

78. We, in course thereof, have found that in the Advertisement No.1 & 2/2017 the condition has been stipulated that the applications are to be invited from the citizen of India, for ready reference the same is being referred

¶266

here in:-

¶267

Condition stipulated in Condition stipulated in Advertisement No.1/2017 Advertisement No.2/2017 3. (i) पंचायत सचचव के पद की संसूचचत 3. (i) काचमिक , प्रशासचनक सुधाि तर्था रिक्तिय ं के चवरूद्ध एक अभ्यर्थी चकसी एक िािभाषा चवभाग झािखण्ड की अचधसूचना चिले की रिक्ति के चवरूद्ध ही आवेदन दे सं० 5938 चदनांक 14.07.2016 के सकते हैं। प्रावधानानुसाि साहेबगंि , पाकुड़ , दुमका , (ii) काचमिक , प्रशासचनक सुधाि तर्था लातेहाि , िॉची , ल हिदगा , पूवी चसंहभूम िािभाषा चवभाग झािखण्ड की अचधसूचना औि सिायकेला - खिसाव ं के अधीन सं 0 5938 चदनांक 14.07.2016 के चनम्नवगीय चलचपक ( समाहिणालय संवगि ) प्रावधानानुसाि साहेबगंि , पाकुड़ , दुमका , तर्था पंचायत सचचव की संसूचचत रिक्तिय ं िामताड़ा , लातेहाि , िााँची , खूंटी , गुमला , के चवरूद्ध संबंचधत चिले के स्थानीय ल हिदगा , चसमडेगा , पूवी चसंहभूम , पचिमी चनवासी ही आवेदन देने के पात्र ह ंगे। चसंहभूम औि सिायकेला - खिसावााँ के अधीन अर्थाित् साहेबगंि चिले के स्थानीय चनवासी चनम्नवगीय चलचपक ( समाहिणालय संवगि ) अभ्यर्थी ही साहेबगंि चिले के रिक्ति के तर्था पंचायत सचचव की संसूचचत रिक्तिय ं के चवरूद्ध आवेदन दे सकते हैं।

¶268

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चवरूद्ध संबंचधत चिले के स्थानीय चनवासी ही आवेदन देने के पात्र ह ंगे। अर्थाित् गुमला चिले के स्थानीय चनवासी अभ्यर्थी ही गुमला चिले के रिक्ति के चवरूद्ध आवेदन दे सकते हैं।

¶271

(iii) उपयु कंचडका (ii) में अंचकत चिल ं क छ ड़ कि अन्य चिले की रिक्ति के चवरूद्ध चवविचणका की पात्रता सम्बंधी शतों यर्था शैक्षचणक य ग्यता , आयु सीमा आचद के अध्यधीन भाित का क ई भी नागरिक आवेदन देने के पात्र ह ंगे , पिन्तु एक अभ्यर्थी के द्वािा पंचायत सचचव की एक से अचधक चिले की रिक्ति के चवरूद्ध आवेदन नहीं चदया िा सकता है।

¶272

(iv) िाज्य स्तिीय सम्वगों के पद ं यर्था चनम्न वगीय चलचपक ( क षागाि चलचपकीय सम्वगि ), चनम्न वगीय चलचपक वाचणज्य कि चवभाग तर्था खाद्य साव ि चनक चवतिण एवं उपभ िा मामले चवभाग , आशुचलचपक खादय साव ि चनक चवतिण एवं उपभ िा मामले चवभाग के िाज्य स्तिीय सम्वगों के रिि पद के चवरूद्ध भाित का क ई भी नागरिक पात्रता संबंधी अन्य शतों के अध्यधीन आवेदन देने के पात्र ह ंगे। इनमें वैसे अभ्यर्थी भी सक्तिचलत ह सकते हैं चिन् ंने इस चवविचणका के माध्यम से संसूचचत चनम्नवगीय चलचपक ( समाहिणालय संवगि ) के अन्तगित चकसी चिले के रिक्ति के चवरूद्ध आवेदन चदया ह । ऐसे अभ्यचर्थिय ं के संदभि में अचधमानता क्रम में पद का चवकल्प आवेदन पत्र में उपलब्ध ह गा।

¶273

(B) उपयु उप कंचडका (i) में अंचकत चिल ं क छ ड़ कि अन्य चिले की रिक्ति के चवरूद्ध चवविचणका की पात्रता सम्बंधी शतों यर्था शैक्षचणक य ग्यता , आयु सीमा आचद के अध्यधीन तर्था सम्बंचधत आिचक्षत वगि की रिक्ति के आल क में झािखण्ड िाज्य के स्थानीय चनवासी आवेदन देने के पात्र ह ंगे। चूंचक बैंकलॉग रिक्तिय ं आिचक्षत वगों से सन्दचभित हैं अतएव बैकलॉग रिक्तिय ं के चवरूद्ध दूसिे िाज्य ं के चनवासी आवेदन देने के पात्र नहीं ह ंगे। (ii) चनम्नवगीय चलचपक ( समाहिणालय सम्वगि ) की रिक्ति के चवरूद्ध उपयु उप कंचडका (i) में वचणित अचधसूचचत चिल ं क छ ड़कि अन्य चिल ं के रिक्ति के चवरूद्ध झािखण्ड िाज्य के स्थानीय चनवासी आवेदन पत्र समचपित कि सकते हैं तर्था चिल ं का चवकल्प अचधमानता क्रम में उनके द्वािा चदया िाएगा चिसकी सुचवधा ऑनलाईन आवेदन पत्र में उपलब्ध िहेगी। उपयु उप कंचडका (i) के प्रावधान ं के अध्यधीन पंचायत सचचव की चकसी एक ही चिले की रिक्ति के चवरूद्ध आवेदन चदया िा सकता है।

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79. We, after going through the Advertisement No.3/2018, 4/2018 and 5/2018, have found, as under Clause No.3, that the acceptance of candidature has been confined only to the local residents of the State of Jharkhand having with the residency certificate, for the purpose of appreciation, the conditions as mentioned in Advertisement No.1/2017 and 3/2018 are being referred in the tabular chart:-

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Condition stipulated in Condition stipulated in Advertisement No.1/2017 Advertisement No.3/2018

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3. (i) पंचायत सचचव के पद की संसूचचत रिक्तिय ं के चवरूद्ध एक अभ्यर्थी चकसी एक चिले की रिक्ति के चवरूद्ध ही आवेदन दे सकते हैं।

¶279

(ii) काचमिक , प्रशासचनक सुधाि तर्था िािभाषा चवभाग झािखण्ड की अचधसूचना सं 0 5938 चदनांक 14.07.2016 के प्रावधानानुसाि साहेबगंि , पाकुड़ , दुमका , िामताड़ा , लातेहाि , िााँची , खूंटी , गुमला , ल हिदगा , चसमडेगा , पूवी चसंहभूम , पचिमी चसंहभूम औि सिायकेला - खिसावााँ के अधीन चनम्नवगीय चलचपक ( समाहिणालय संवगि ) तर्था पंचायत सचचव की संसूचचत रिक्तिय ं के चवरूद्ध संबंचधत चिले के स्थानीय चनवासी ही आवेदन देने के पात्र ह ंगे। अर्थाित् गुमला चिले के स्थानीय चनवासी अभ्यर्थी ही गुमला चिले के रिक्ति के चवरूद्ध आवेदन दे सकते हैं।

¶280

पात्रतााः - क ) उपयु कंचडका -2 में वचणित पद ं पि झारखण्ड राज्य के स्थानीय ननवासी अभ्यर्थी ही आवेदन देने के पात्र हैं। अताः चवविचणका के परिचशष्ट -III पि चदये गये प्रपत्र में आवेदन पत्र समचपित किने की चतचर्थ तक आिचक्षत एवं अनािचक्षत द ंन ं क चट के अभ्यचर्थिय ं क स्थानीय चनवासी प्रमाण पत्र धारित किना अचनवायि है।

¶281

(iii) उपयु कंचडका (ii) में अंचकत चिल ं क छ ड़ कि अन्य चिले की रिक्ति के

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चवरूद्ध चवविचणका की पात्रता सम्बंधी शतों यर्था शैक्षचणक य ग्यता , आयु सीमा आचद के अध्यधीन भारत का कोई भी नागररक आवेदन देने के पात्र होोंगे , पिन्तु एक अभ्यर्थी के द्वािा पंचायत सचचव की एक से अचधक चिले की रिक्ति के चवरूद्ध आवेदन नहीं चदया िा सकता है। (iv) िाज्य स्तिीय सम्वगों के पद ं यर्था चनम्न वगीय चलचपक ( क षागाि चलचपकीय सम्वगि ), चनम्न वगीय चलचपक वाचणज्य कि चवभाग तर्था खाद्य साव ि चनक चवतिण एवं उपभ िा मामले चवभाग , आशुचलचपक खादय साव ि चनक चवतिण एवं उपभ िा मामले चवभाग के िाज्य स्तिीय सम्वगों के रिि पद के चवरूद्ध भारत का कोई भी नागररक पात्रता सोंबोंधी अन्य शतों के अध्यधीन आवेदन देने के पात्र होोंगे। इनमें वैसे अभ्यर्थी भी सक्तिचलत ह सकते हैं चिन् ंने इस चवविचणका के माध्यम से संसूचचत चनम्नवगीय चलचपक ( समाहिणालय संवगि ) के अन्तगित चकसी चिले के रिक्ति के चवरूद्ध आवेदन चदया ह । ऐसे अभ्यचर्थिय ं के संदभि में अचधमानता क्रम में पद का चवकल्प आवेदन पत्र में उपलब्ध ह गा।

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80. This Court, in view of the aforesaid distinction in these two advertisements, is of the view that the appointments so made of the candidates who have participated in terms of Advertisement No.1 & 2/2017, which is on the basis of the direction passed by Hon’ble Apex Court Soni Kumari v. The State of Jharkhand

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(Supra) /Satyajit Kumar & Others v. State of Jharkhand

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& Others (Supra), as referred hereinabove, has got no equality with the case of the candidates who have participated either in terms of Advertisement No.3/2018 or 4/2018 or 5/2018, since, in Advertisement No.3/2018, 4/2018 and 5/2018, the applications have been invited only from the local residents of Jharkhand having with the residential certificate.

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81. This Court therefore, is of the view that the grounds which have been raised on the issue of the hostile discrimination with the case of the respondent/writ petitioner vis-à-vis the candidates of Advertisement No.1 & 2/2017, is not having any basis, rather, we are of the view that no equality can be claimed from the candidates who have been appointed in terms of Advertisement No.1 & 2/2017.

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82. Law is well settled that there cannot be any discrimination said to be hostile, otherwise the same will be in the teeth of Article 14 of the Constitution of India. But the classification if based upon the reasonable classification, then certainly Article 14 will not attract, but if the classification is unreasonable, then certainly the Article 14 will be applicable, reference in this regard be made to the judgment rendered by Hon’ble Apex Court in the case of State of West Bengal Vs. Anwar Ali Sarkar [AIR 1952 SC

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75] wherein it has been held that differentia between the basis of classification and the object of the things are two different things. It is important that there must be nexus between the basis of classification with the object of the Act.

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83. In Shri Ram Krishna Dalmia & Ors Vs. Shri Justice S.R. Tendolkar & Ors [AIR 1958 SC 538] , the Hon’ble Apex Court, taking into consideration catena of judgments rendered by Hon’ble Apex Court, has held that Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure. Paragraph 11 of the said judgment is quoted as under:

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“ 11. ...

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(a). That a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;

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(b). That there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles;

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(c). That it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;

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(d). That the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;

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(e). That in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and

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(f). That while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and un-known reasons for subjecting certain individuals or corporations to hostile or discriminating legislation....”

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84. The aforesaid principle can further be found in RE The Special Courts Bill, 1978 , which contains that:

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➢ The basic principle of Article 14 is that the persons in similar circumstances shall be treated similarly both in privileges conferred and liability imposed.

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➢ The State shall have the power to determine with regard to the process of classification, which should be regarded as a class for the purpose of legislation and in relation to a law enacted on a particular subject.

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➢ The classification does not mean arbitrary application of law to certain person instead it means segregation in classes which had a systematic relation, usually found common property and characteristics.

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➢ The law can make and set apart the classes according to the needs and exigencies of the society and suggested by experience. It can even recognize ‘degrees of evil’ but the classification should never be arbitrary, or artificial.

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85. A mere assumption that the authority which has been conferred with the discretion by law, would act arbitrarily in exercising such law, would not be determinative of the constitutionality of law.

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Discretionary power does not necessarily mean discriminatory power. Inequality in the application of law may not question the constitutionality of such law.

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A practical evaluation of operation of law in particular circumstances is necessary. A rule of procedure laid down by law derived as much within the purview of Article 14 as in the rule of substantive law.

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86. In R.K. Garg Vs. Union of India & Ors [(1981) 4 SCC 675] , the Hon’ble Apex Court has held that Article 14 forbids class legislation but does not forbid reasonable classification.

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87. In V. Markendeya & Ors. Vs. State of Andhra

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Pradesh & Ors [(1989) 3 SCC 191], the Hon’ble Apex Court has held that where two classes of employees perform identical or similar duties and carrying out the same functions with the same measure of responsibility having same academic qualifications, they would be entitled to equal pay. If the State denies them equality in pay, its action would be violative of Articles 14 and 16 of the Constitution and the court will strike down the discrimination and grant relief to the aggrieved employees. But before such relief is granted the court must consider and analyse the rationale behind the State action in prescribing two different scales of pay. If on an analysis of the relevant rules, orders, nature of duties, functions, measure of responsibility, and educational qualifications required for the relevant posts, the court finds that the classification made by the State in giving different treatment to the two classes of employees is founded on

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rational basis having nexus with the objects sought to be achieved, the classification must be upheld. Principle of equal pay for equal work is applicable among equals, it cannot be applied to unequal. Relief to an aggrieved person seeking to enforce the principles of equal pay for equal work can be granted only after it is demonstrated before the court that invidious discrimination is practised by the State in prescribing two different scales for the two classes of employees without there being any reasonable classification for the same.

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88. It is, thus, evident that Article 14 prohibits discriminatory legislation against an individual or against a class of individual but it does not prohibit reasonable classification. Reference in this regard be made to the judgment rendered by Hon’ble Apex Court in D.S. Nakara & Ors. v. Union of India [(1983) 1 SCC 305], wherein at paragraph 11, it has been held as under:-

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“11. The decisions clearly lay down that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled viz. (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) that that differentia must have a rational relation to the objects sought to be achieved by the statute in question (see Ram Krishna Dalmia v. Justice S.R. Tendolkar [AIR 1958 SC 538 : 1959 SCR 279, 296 : 1959 SCJ 147] ). The classification may be founded on differential basis according to

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objects sought to be achieved but what is implicit in it is that there ought to be a nexus i.e. causal connection between the basis of classification and object of the statute under consideration. It is equally well settled by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.”

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89. In the case of State of West Bengal Vs. Anwar Ali Sarkar (supra) the Hon’ble Apex Court has held that to pass the test, two conditions must be fulfilled, namely, ( 1 ) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others; and ( 2 ) that differentia must have a rationale relation to the object sought to be achieved by the Act. Thus, the differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. The test must be reasonable and not the arbitrary and irrational.

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90. It is, thus, evident from the judgments rendered by Hon’ble Apex Court referred hereinabove that Article 14 granting the fundamental right to equality to every citizen in the country which provides equality to all the people irrespective of religion, race, caste, sex, descent, place or birth, residence or any of them.

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91. There are two aspects under Article 14 i.e., ‘equality before the law’ and ‘equal protection of the laws’ and to test the constitutionality in order to know the reasonable classification under which it was tested whether there was a

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reasonable classification in the legislation. There is no absolute bar in making classification but classification must be based upon the rationality; meaning thereby there must be classification based upon the intelligible differentia .

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92. It needs to refer herein that it cannot be denied that the object of recruitment to any service or post is to appoint most suitable person who answers the demands of the requirement of the job. In the case of public employment it is necessary to eliminate arbitrariness and favouritism and introduce the uniformity of standards in the matter of public employment, as has been held by Hon’ble Apex Court in the judgment rendered in Union of India & Ors Vs. N. Hargopal & Ors [(1987) 3 SCC 308] wherein dealing with principle to be followed in the matter of filling up of the public posts, it has been held that the main object of recruitment is to choose the suitable person so that the condition of merit be allowed to be prevailed for the better functioning of the public administration.

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93. Article 14 provides that there must be a reasonable classification but there cannot be an unreasonable classification.

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94. Here, in the instant case, the classification has been made out by classifying one group of candidates who are resident of district/State of Jharkhand and another group who reside outside the State of Jharkhand.

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95. This Court, therefore, is of the considered view that such difference is based upon unreasonable classification, since, there cannot be any discrimination on the ground of residence of a candidate.

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96. There is no dispute that Article 16 of the Constitution of India entails provision to make out special policy to provide benefit to the candidates belonging to backward class i.e., Scheduled Caste, Scheduled Tribes etc. Such provision, carved out under Article 16 of the Constitution, is being followed by the State to obtain the Constitutional bounty to benefit such section of society who have been found not at par with the other section of the society, in that circumstance such classification cannot be said to be unreasonable since the same is based upon the rationality i.e., to bring such section of society at par with the other section of society so that they may come in the mainstream of the society and thereby society may develop as a whole.

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97. Adverting to the factual aspect of the present cases, which we are dealing with separately by considering the two different orders passed by the learned Single Judge on the same legal issues.

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98. The State has taken decision by cancelling the Advertisement No.3/2018, 4/2018 and 5/2018 by issuance of the order dated 01.11.2021. The fresh advertisements have also been said to be issued.

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99. The case of the respondent/writ petitioner so far as it relates to Advertisement No.3/2018 is concerned, the recruitment process has been said to reach to the advanced stage, while the recruitment process pertaining to Advertisement No. 4/2018 and Advertisement No. 5/2018 has been considered to be in the initial stage as would appear from the judgment passed by the learned Single Judge.

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100. This Court first needs to deal with the issue that irrespective of the stage of the recruitment process, if there is any illegality and the recruitment processes are being allowed to proceed contrary to the constitutional mandate, the same principle is to be followed, and not only on the basis of the fact that in one recruitment process, since the process has reached to the advanced stage, the illegality regarding the flagrant violation of Article 14 and 16 of the Constitution of India cannot be ignored.

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101. This Court is of the view that irrespective of the stage, if any illegality is there, contrary to the principle laid down under Article 14 and 16 of the Constitution of India, the entire recruitment process is to go.

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102. The same can also be nullified if the recruitment process have also been concluded as the fact of Soni Kumari v. The State of Jharkhand (Supra) is concerned wherein the Full Bench of this Court while quashing the decision of the State restricting the acceptance of candidature, has

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quashed such decision and the entire appointment have also been cancelled.

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103. However, the Hon’ble Apex Court, in exercise of power conferred under Article 142 of Constitution of India has saved the said appointment, for ready reference, the same is being referred herein:-

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“ 111. … … … It is now directed that instead of fresh/de novo recruitment process by setting aside the appointments already made in the Scheduled Districts/Areas, the State shall revise the merit list based on the already published cut-off obtained by the last selected candidates in each TGT subject against the respective categories with respect to entire State and respective candidates belonging to the non-Scheduled Areas and Scheduled Areas (districts) shall be adjusted accordingly on the basis of individual merit of the candidates.”

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104. Here, the stage of saving the appointment has not come, since, as per the admitted case, based upon the factual aspect as discussed hereinabove, the recruitment process was going on at that time the recruitment process has been cancelled.

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105. The argument which has been raised that the learned Single Judge has passed the order in respect of Advertisement No.3/2018 by considering that the recruitment process has reached to the advanced stage which is based upon the principle of legitimate expectation and to strengthen the argument the learned counsel for the respondent/writ petitioner in L.P.A. No.59 of 2025 has relied

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upon the judgment rendered by Hon’ble Apex Court in the

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case of Tej Prakash Pathak & Others v. Rajasthan High Court and Others, [(2025) 2 SCC 1] , particularly paragraphs 24, 25 and 26 thereof. For ready reference, the said paragraphs are being quoted hereunder as:-

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“ 24. The principle of fairness in action requires that public authorities be held accountable for their representations. Good administration requires public authorities to act in a predictable manner and honour the promises made or practices established unless there is good reason not to do so. 25. Candidates participating in a recruitment process have legitimate expectation that the process of selection will be fair and non-arbitrary. The basis of doctrine of legitimate expectation in public law is founded on the principles of fairness and non-arbitrariness in government dealings with individuals. It recognises that a public authority's promise or past conduct will give rise to a legitimate expectation. This doctrine is premised on the notion that public authorities, while performing their public duties, ought to honour their promises or past practices. The legitimacy of an expectation can be inferred if it is rooted in law, custom, or established procedure.

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26. However, the doctrine of legitimate expectation does not impede or hinder the power of the public authorities to lay down a policy or withdraw it. The public authority has the discretion to exercise the full range of choices available within its executive power. The public authority often has to take into consideration diverse factors, concerns, and interests before arriving at a particular policy decision. The courts are generally cautious in interfering with a bona fide decision of public authorities which denies legitimate expectation provided such a decision is taken in the larger public interest. Thus, public interest serves as a limitation on the application of the doctrine of legitimate expectation.”

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106. We have considered the said judgment and found from the paragraph 24 which has been relied upon on behalf of the respondent/writ petitioner that the question of the principle of fairness in action has been taken into consideration wherein at paragraph-25, it has been referred that the candidates participating in the recruitment process have a legitimate expectation, while in para 26, it has been observed that the doctrine of legitimate expectation does not impede or hinder the power of the public authorities to lay down a policy or withdraw it. The courts are generally cautious in interfering with a bona fide decision of public authorities which denies legitimate expectation provided such a decision is taken in the larger public interest.

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107. In paragraph 62, it has been laid down that there can therefore be no doubt that where there are no rules or the rules are silent on the subject, administrative instructions may be issued to supplement and fill in the gaps in the rules. In that event administrative instructions would govern the field provided they are not ultra vires the provisions of the rules or the statute or the Constitution. But where the rules expressly or impliedly cover the field, the recruiting body would have to abide by the rules.

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108. The conclusion has been arrived at as has been referred in paragraph 65, it has been held therein which is relevant for the present case, that the recruiting bodies,

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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, nondiscriminatory/non-arbitrary and has a rational nexus to the object sought to be achieved.

¶370

109. It has been laid down at paragraph 65.5 that extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. For ready reference, paragraph 65 is being referred hereunder as:-

¶371

“ 65.1. Recruitment process commences from the issuance of the advertisement calling for applications and ends with filling up of vacancies;

¶372

65.2. 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;

¶373

65.3. …

¶374

65.4. 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/non-arbitrary and has a rational nexus to the object sought to be achieved;

¶375

65.5. 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;

¶376

65.6. Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide

¶377

51

¶378

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¶379

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.”

¶380

110. The backdrop of the aforesaid judgment is that the Hon’ble Apex Court in the case of Tej Prakash Pathak & Others v. Rajasthan High Court and Others, [(2013) 4 SCC 540] while accepting the solitary principle that once the recruitment process commences, the State or its instrumentalities cannot tinker with the “rules of the game” insofar as the prescription of eligibility criteria is concerned, wander whether that should apply also to the procedure for selection. In that context, doubting the correctness of the Coordinate Bench decision in K. Manjusree v. State of Andhra Pradesh and Another [(2008) 3 SCC 512] , for not having noticed an earlier decision in State of Haryana v. Subash Chander Marwaha and Others [(1974) 3 SCC 220] , vide order dated 20^th March, 2013 passed in Tej Prakash Pathak & Others v. Rajasthan High Court and Others (Supra), it was directed that the matter be placed before Hon’ble the Chief Justice for constituting a larger Bench for an authoritative pronouncement on the subject. The context for the reference was “ Whether such a principle should be applied in the context of the “rules of the game” stipulating the procedure for selection more particularly when the change sought is to impose a more rigorous scrutiny for

¶381

52

¶382

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¶383

selection requires an authoritative pronouncement of a larger Bench of this Court ”.

¶384

111. In the light of the aforesaid reference, the proposition has been laid down, as referred hereinabove.

¶385

112. Learned counsel appearing for the respondent/writ petitioner has tried to make out a case that by virtue of cancellation of advertisement the rules of game in the midst of the recruitment process have been changed by cancelling the advertisement No.3/2018, 4/2018 and 5/2018 and coming out with the fresh advertisement.

¶386

113. What is the concept of rule of game that has been considered by Hon’ble Apex Court in the judgment rendered in the case of Tej Prakash Pathak & Others v. Rajasthan High Court and Others (Supra) to deal with the situation where the State sought to alter (i) the eligibility criteria of the candidates seeking employment, or (ii) the method and manner of making the selection of the suitable candidates. 114. Here, it is not the case of the respondents/writ petitioners of changing the eligibility criteria of the candidate seeking employment or method and manner of making the selection of the suitable candidates, rather, here the case is the illegality crept up since inception in notifying the advertisement by restricting the application to be accepted of the candidates only for the local resident of the State of Jharkhand based upon the residency certificate.

¶387

53

¶388

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¶389

115. Therefore, here the case is neither of eligibility criteria or the method and manner of making the selection of the suitable candidates, rather, it is the case where the mandate of Article 14 and 16 has been decided to be followed, which was not there in the Advertisement No.3/2018 by putting restrictions upon the candidature of the candidates from the outside the State or even inside the State barring them due to want of residency certificate.

¶390

116. Therefore, this Court is of the view that on the fact of the present case the judgment rendered by the Hon’ble Apex Court in the case of Tej Prakash Pathak & Others v. Rajasthan High Court and Others (Supra) is not applicable in true sense. But this Court, after considering the discussion so made in the said judgment as under paragraph 24, which speaks about the principle of fairness and in paragraph 62 the recruitment process is to proceed as per the provision of rules or the statute or the Constitution.

¶391

117. The state has proceeded to fill up the vacancies by following the mandate of Constitution as under Article 14 and 16 thereof.

¶392

118. The consideration is also to be made herein is whether merely because the respondents/writ petitioners had participated in the process of selection, irrespective of the stage of the recruitment process, can it be said that any right has been accrued, said to be vested/accrued?

¶393

54

¶394

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¶395

119. Rights are “vested” when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute “vested rights.” “Vested right” has been defined by the Hon'ble Apex Court in the case of MGB Gramin Bank v. Chakrawarti Singh [(2014) 13 SCC 583] at paragraph 11, 12 and 13, which read hereunder as:—

¶396

The word “vested” is defined in Black's Law Dictionary (6th Edn.) at p. 1563, as: “Vested.—fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are “vested” when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute “vested rights”.

¶397

In Webster's Comprehensive Dictionary (International Edition) at p. 1397, “vested” is defined as law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest.

¶398

Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision/scheme could be changed.

¶399

55

¶400

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¶401

120. The accrued right so far in the case of public employment is concerned, is only to be said to be available if the appointment letters have been issued.

¶402

121. But here the admitted case is that the appointment letters have not been issued and as such it is not a case where the accrued or vested rights have been created in favour of the one or the other respondents/writ petitioners. 122. Therefore, no indefeasible right is there merely on account of the fact that the recruitment process has proceeded. Further, the law is well settled that merely because the candidates were successful in the exams they do not acquire an indefeasible right to be appointed on the vacant post. The Hon’ble Apex Court in case of Shankarsan

¶403

Dash Vs. Union of India [(1991) 3 SCC 47], has held that:

¶404

"It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection, they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bonafide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to

¶405

56

¶406

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¶407

respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana V. Subash Chander Marwaha, Neelima Shangla V. State of Haryana, or Jatinder Kumar V.State of Punjab".

¶408

123. One of the arguments is also of the applicability of the principle of legitimate expectation, but even no advantage can be given on the aforesaid principle by taking into consideration the fact that in the service jurisprudence, the principle of legitimate expectation is not applicable.

¶409

124. In the case of Tej Prakash Pathak & Others v. Rajasthan High Court and Others (Supra) as referred herein above, the aforesaid issue has been taken into consideration as under paragraphs 25 and 26.

¶410

125. It is evident from paragraph 25 wherein it has been observed that if the candidates have participated in the recruitment process, have the legitimate expectation that the process of selection be fair and non-arbitrary.

¶411

126. The basis of doctrine of legitimate expectation in public law is founded on the principles of fairness and nonarbitrariness in Government dealings with individuals.

¶412

127. From paragraph 26, it would be evident that the Hon’ble Apex Court has considered that the doctrine of

¶413

57

¶414

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¶415

legitimate expectation does not impede or hinder the power of the public authorities to lay down a policy or withdraw it.

¶416

128. This court, in view of the reading of paragraph 25 and 26, is of the view that legitimate expectation is only to be taken into consideration in order to follow the process of selection to be fair and non-arbitrary, and if the process is not fair and suffer from vice of arbitrariness, then the State is competent enough to take decision, and in that circumstances, as has been held in para 26, the courts are to be cautious in interfering with a bona fide decision of public authorities, which denies legitimate expectation provided such a decision is taken in the larger public interest. The Hon’ble Apex Court has also observed in para 26 that the public interests serve as a limitation on the application of the document of legitimate expectation.

¶417

129. This Court, in view of the aforesaid observation of the Hon’ble Apex Court, is of the view based upon the factual aspect that here restricting the candidates outside the periphery of the State of Jharkhand and even inside the periphery of the Jharkhand due to want of the residency certificate cannot be turned to fair selection process and suffer with the vice of arbitrariness.

¶418

130. Arbitrariness has been defined that if the decision

¶419

has been taken by the State, contrary to the constitutional mandate, in not allowing to participate in the process of

¶420

58

¶421

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¶422

selection, even though the constitution put restriction upon the same by carving out under Part III of the Constitution, under Article 16 of the Constitution of India, that there cannot be any discrimination in the public employment on the basis of caste, creed, and place.

¶423

131. This Court, therefore is of the view that if the restrictions have been imposed in acceptance of the application of the candidature of candidates outside the periphery of the State of Jharkhand and even inside the State of Jharkhand, the same being in the teeth of Article 16 of the Constitution of India, hence, such decision would hit the principle as available under Article 14 of the Constitution of India, being arbitrary.

¶424

132. Herein also similar is the situation, hence, the principle of legitimate expectation will not be applicable, in the facts and circumstances, as per the discussion made hereinabove.

¶425

133. This court, having discussed the issues, has gone across the judgment passed by the learned Single Judge so far as the subject matter of L.P.A. No.59 of 2025 is concerned, and found that the directions have been passed upon the respondents by quashing the impugned resolution dated 05.02.2021 and notice dated 01.11.2021 to proceed in accordance with law by recommending the names of the successful candidates to the State respondent who shall

¶426

59

¶427

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¶428

proceed further by issuing appointment letters to the successful candidates including these petitioners strictly in accordance with law, mainly on the ground that since the process of appointment with regard to Advertisement No.03/2018 was on the verge of completion and the petitioners were finally sent for medical test.

¶429

134. But, as has been discussed hereinabove, that the stages of recruitment process cannot be a bearing in questioning the decision of the State, if the decision has been taken to follow the mandate of the Constitution of India.

¶430

135. Further, if the State has taken recourse to rectify the illegality committed so as to multiply the multiplicity of proceeding as has been occurred in the case of Soni Kumari v. The State of Jharkhand and Others (Supra) and Satyajit Kumar & Others v. State of Jharkhand & Others (Supra), then it cannot be termed to be the mala fide exercise of the State, rather it is considered to be the bona fide approach in order to maintain fairness, transparency and to avoid the vice of arbitrariness.

¶431

136. The learned single judge has given a finding that merely on the garb of judgment of the Hon’ble Apex Court, no such decision is to be taken, but we all with due respect to the judgment passed by the learned Single Judge are of the considered view that if the mandate has been given by the Hon’ble Apex Court it is not the fact which is to be

¶432

60

¶433

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¶434

considered to be important, rather it is the ratio to be taken into consideration and if any ratio has been laid down then it is having binding precedence in view of the Article 14 of the Constitution of India, reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in the case of Official Liquidator vs. Dayanand and Ors., (2008) 10 SCC 1 , wherein at paragraphs-84, 86 & 88 it has been held as under:

¶435

“84. In State of Bihar vs. Kalika Kuer, the Court elaborately considered the principle of per incuriam and held that the earlier judgment by a larger Bench cannot be ignored by invoking the principle of per incuriam and the only course open to the coordinate or smaller Bench is to make a request for reference to the larger Bench.

¶436

In Central Board of Dwaoodi Bohra Community vs. State of Maharashtra, the Constitution Bench interpreted Article 141, referred to various earlier judgments including Bharat Petroleum Corpn. Ltd. vs. Mumbai Shramik Sangha and Pradip Chandra Parija vs. Pramod Chandra Patnaik and held that "the law laid down in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength and it would be inappropriate if a Division Bench of two Judges starts overruling the decisions of Division Benches of three Judges. The Court further held that such a practice would be detrimental not only to the rule of discipline and the doctrine of binding precedents but it will also lead to inconsistency in decisions on the point of law; consistency and certainty in the development of law and its contemporary status - both would be

¶437

61

¶438

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¶439

immediate casualty (Central Board of Dawoodi Bohra Community case, SCC p. 682, paras 12 & 10).

¶440

In U.P. Gram Panchayat Adhikari Sangh vs. Daya Ram Saroj, the Court noted that by ignoring the earlier decision of a coordinate Bench, a Division Bench of the High Court directed that part-time tubewell operators should be treated as permanent employees with same service conditions as far as possible and observed:

¶441

"26. Judicial discipline is self-discipline. It is an inbuilt mechanism in the system itself. Judicial discipline demands that when the decision of a coordinate Bench of the same High Court is brought to the notice of the Bench, it is to be respected and is binding, subject of course, to the right to take a different view or to doubt the correctness of the decision and the permissible course then open is to refer the question or the case to a larger Bench. This is the minimum discipline and decorum to be maintained by judicial fraternity."

¶442

137. This Court, in view of the above, is of the view that the reasoning which has been assigned by the learned Single Judge in the impugned judgment cannot be said to be upheld.

¶443

138. We will fail in our duty if the argument with respect to relaxing 4(kha) as referred in Resolution dated 05.02.2021 which has emphatically been relied upon by the learned counsel appearing for the appellants/respondents/writ petitioners that if 4(kha) has been relaxed, meaning thereby, the decision ought to have been taken on the basis of Advertisement No.3/2018.

¶444

62

¶445

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¶446

139. This Court, in order to appreciate the said argument, needs to refer herein the contents of 4(ka) and 4(kha) of the Resolution dated 05.02.2021 which is being referred herein:

¶447

“ 4. माननीय झािखण्ड उच्च न्यायालय के उि न्यायादेश के आल क में सम्यक् चवचाि पिान्त िाज्य सिकाि के द्वािा चनणिय चलया गया है चकाः -

¶448

( क ) िाज्य के गैि अनुसूचचत चिल ं के चिला स्ति के समूह ' ख ' अिािपचत्रत , समूह ' ग ' एवं समूह ' घ ' पद ं पि चनयुक्तिय ं में संबंचधत चिले के स्थानीय चनवाचसय ं क एवं िाज्यस्तिीय समूह ' ख ' अिािपचत्रत , समूह ' ग ' एवं समूह ' घ ' के पद ं पि चनयुक्तिय ं में झािखण्ड िाज्य के स्थानीय चनवाचसय ं क प्रार्थचमकता देने संबंधी काचमिक , प्रशासचनक सुधाि तर्था िािभाषा चवभाग की संकल्प सं 0- 3854, चदनांक -01.06.2018 ( संकल्प सं 0-8468, चदनांक - 20.11.2018 द्वािा यर्थासंश चधत ) क तत्काल प्रभाव से आहरित चकया िाता है।

¶449

( ख ) इस संकल्प के चनगित ह ने की चतचर्थ से पूवि समूह ' ख ' अिािपचत्रत , समूह ' ग ' एवं समूह ' घ ' के पद ं पि चनयुक्ति हेतु वैसी प्रचतय चगता पिीक्षाओं से संबंचधत सभी चवज्ञापनं , ि काचमिक चवभागीय संकल्प संख्या -3854, चदनांक -01.06.2018 ( संकल्प सं० -8468, चदनांक -20.11.2018 द्वािा यर्थासंश चधत ) से आच्छाचदंत हैं तर्था चिनमें अबतक चनयुक्ति पत्र चनगित नहीं चकए गए हैं , उनमें चनयुक्ति की प्रचक्रया अपूणि मानते हुए उन सभी चवज्ञापन ं क चनिस्त चकया िाता है। इन मामल ं में अब नए चसिे से (ab-initio) चवज्ञापन प्रकाचशत किने की काििवाई की िाएंगी।“

¶450

140. Subsequent thereto, the Resolution dated 19.01.2022 has been issued wherein the 4(kha) has been relaxed.

¶451

141. Learned counsel for the State appellant has argued that the writ petitioner has only challenged part of the

¶452

63

¶453

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¶454

Resolution dated 05.02.2021 particularly, 4(kha) without challenging 4(ka).

¶455

142. The 4(kha) is the consequence of 4(ka) and if the content of 4(ka) has not been challenged wherein the earlier decision taken for recall of the Resolution dated 05.02.2021, then in absence of the challenge the content of 4(ka), the same will be operative.

¶456

143. This Court, is of the view that what has been contended by learned counsel appearing for the State is correct, since, 4(kha) decision is consequence of 4(ka) and as would be evident from the pleading made in the writ petition that there is no prayer to quash the 4(ka), rather, the prayer only is to quash 4(kha).

¶457

144. Further, so far as the contention raised on behalf of the respondents/writ petitioners with respect to relaxing 4(kha) is concerned, even accepting that the content of 4(kha) has been relaxed, even then the recruitment process which has been initiated in terms of Advertisement No.3/2018, 4/2018 and 5/2018 cannot be allowed to be concluded in view of the mandate of Article 16 of the Constitution of India.

¶458

145. Accordingly, the judgment dated 04.10.2024 passed in W.P.(S) No.1856 of 2021, subject matter of L.P.A. No.59 of 2025, is hereby quashed and set aside.

¶459

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¶461

146. L.P.A. No.59 of 2025 stands allowed . Consequently, the writ petition stands dismissed.

¶462

147. So far as order/judgment dated 04.10.2024 passed in W.P.(S) No.5635 of 2021, subject matter of L.P.A. No.14 of 2025, is concerned, therein the only difference has been carved out based upon the stage of recruitment process. However, the writ petition has been dismissed but we intend to say that the reasoning which has been given by the learned Single Judge in the impugned judgment, cannot be merely on the basis of the stage of recruitment process, rather, the reasoning would have that the State has rectified the illegality committed based upon the judgment passed by the Hon’ble Apex Court in Satyajit Kumar & Others v.

¶463

State of Jharkhand & Others (Supra) following the ratio laid down therein in order to follow the mandate of Article 16 of the Constitution of India.

¶464

148. So far as the outcome of the order/judgment dated 04.10.2024 is concerned, we are of the view that the same requires no interference.

¶465

149. Accordingly, the L.P.A. No.14 of 2025 is hereby dismissed .

¶466

150. Both the appeals stand disposed of. Pending interlocutory application, if any, also stands disposed of.

¶467

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¶469

151. The concerned authorities/ State are hereby directed to conclude the entire selection process of the fresh advertisement which has already been floated by the authority concerned after cancellation of advertisement in question, strictly in accordance with law by maintaining fairness and transparency within the period of four months from the date of receipt of the copy of the order.

¶470

152. The State respondents are further directed to adhere to the time limit, since the fresh advertisement is of the year 2021 and since then four years have already elapsed.

¶471

I agree (Sujit Narayan Prasad, J.)

¶472

(Arun Kumar Rai, J.)

¶473

(Arun Kumar Rai, J.)

¶474

Birendra/ A.F.R.

¶475

66

Amit Oraon v. State of Jharkhand through the Chief Secretary, Government of Jharkhand

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Amit Oraon v. State of Jharkhand through the Chief Secretary, Government of Jharkhand

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