Kashi Nath Verma, Son of Late Churo Mahto and ors vs State of Jharkhand and ors

In the accompanied writ application, the petitioners have sought for writ of mandamus, commanding upon the respondents to appoint the petitioners

on the post of Constable in pursuance to Advertisement No.01 of 2004.

The brief facts of the case, as has been delineated in the writ petition is that in pursuance to Advertisement No.01 of 2004 the petitioners appeared

in physical and written test and after proper verification they were selected for appointment on the post of Constable as evident from the select list

published in the newspaper dated 09.12.2004, vide Annexure-1 to the writ petition. Some dispute arose with respect to the qualification for which a

writ petition being W.P.(S) No.1458 of 2004 was filed before the Hon’ble Jharkhand High Court and the said writ petition was disposed of on

13.03.2005 with direction to the S.P of the district to fill up the available post of Constable. In the meantime, the authority concerned passed an order

dated 10.12.2005 cancelling the selection of Police Constable and the cancellation of the selection was challenged in W.P.(S) No.1242 of 2006 and

vide order dated 07.11.2005 the cancellation of selection has been quashed by this Court. It has been averred in the writ petition that since the

petitioners were working as Homeguard and their case is fully covered by the judgment rendered in W.P.(S) no.1242 of 2006, the action of the

respondents is in breach of Article 14 and 16 of the Constitution of India. Being aggrieved by non-appointment on the aforesaid post the present writ

petition has been filed under Article 226 of the Constitution of India for redressal of their grievances.

Learned counsel for the petitioner has strenuously urged that in spite of selection the respondents in an illegal and arbitrary manner have deprived

the petitioners for appointment to the posts in question. In order to buttress his submission, learned counsel for the petitioner has referred to the

decision of the Hon’ble Apex Court reported in (2013) 16 SCC 771 (Mahipal Singh Tomar vs. State of Uttar Pradesh and Ors.).

Learned counsel for the petitioner referring to the rejoinder affidavit has submitted that the respondents basing on the findings and the enquiry have

arrived at a conclusion without giving opportunity to the petitioners of being heard. Learned counsel for the petitioners submits that upon bare perusal

of the list of 932 candidates (Annexure-A to the counter affidavit) it would be evident that the roll numbers of petitioners are mentioned in column

“Anya Trutiâ€, which is manifestly vague and does not disclose the basis of the preparation of the said entry for these petitioners and the

allegations made in the counter affidavit has not been supported by any materials and therefore, the petitioners are entitled to the reliefs as prayed for

in the writ application.

Controverting the averments made in the writ application, a counter affidavit has been filed by the respondent no.3, wherein it has been submitted

that from perusal of the concerned records of the petitioners with respect to selection process in pursuance of Advertisement No.01 of 2004, it

appears that all the petitioners participated in the selection process and declared successful in their categories. But during the enquiry it was found that

the roll numbers of all the petitioners mentioned in the list of 932 candidates identified by the then Inspector General of Police, North Chhotanagpur

Zone, Bokaro. The aforesaid list was prepared on the basis of irregularities of various natures like amendment in height, overwriting in height,

amendment in date of birth and interpolation of Home Guard/Sports certificates etc. were found in respect to 932 candidates and accordingly they

were declared to be beneficiaries of malpractice during the selection process as per Annexure-A to the counter affidavit. It has further been

submitted that while disposing the writ application bearing W.P.(S) No.1242 of 2006 along with other writ petitions, the Division Bench of the

Hon’ble Court was pleased to direct to make appointment according to select/merit list of successful candidates against the advertisement

vacancies excluding 932 candidates identified by the inquiry officer and found to be beneficiates of malpractices during the selection process, vide

Annexure-B to the counter affidavit.

Learned counsel for the State apart from reiterating the submission made in the supplementary counter affidavit has submitted with vehemence that

since the petitioners are beneficiaries of malpractices, therefore, the respondents have rightly cancelled their selection.

After bestowing my anxious consideration to the rivalized submissions and on perusal of the record, this Court is of the considered view that the

petitioners have not been able to make out a case for interference due to the following facts and reasons:

(I) Admittedly, as disclosed from the counter affidavit, the name of the petitioners comes under the category of 932 candidates who are beneficiaries

of malpractice.

(II) It is settled position of law that inclusion of name in the select/merit list ipso facto does not give any indefeasible right for appointment as has been

enunciated by the Hon’ble Apex Court in the case of Shankarsan Dash Vs. Union of India as reported in (1991) 3 SCC 47.

(III) So far as fraud in appointment is concerned, the Hon’ble Apex Court in the case of Devendra Kumar Vs. State of Uttaranchal & Others as

reported in (2013) 9 SCC 363, at paragraph 13, has held as under:

“13. It is a settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent

authority, such an order cannot be sustained in the eye of law. “Fraud avoids all judicial acts, ecclesiastical or temporal.â€​

(Vide S.P. Chengalvaraya Naidu V. Jagannath.) In Lazarus Estates Ltd. V. Beasley the Court observed without equivocation that: (QB p. 712)

“… No judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything.â€​

(IV) There is absolutely no quarrel over the proposition as has been enunciated by the Hon’ble Apex Court in the decision reported in Mahipal

Singh Tomar case supra. But in the facts and circumstances of the case, the said decision is not applicable to the case in hand.

(V) Apart from the aforesaid facts, the selection to the post of ‘Constable’

in pursuance to Advertisement No.01 of 2004 has attained its finality and in the meantime more than one decade has elapsed.

In view of the reasons stated in the foregoing paragraphs, this Court is of the considered view that there is absolutely no illegality or irregularity on

the part of the respondents, in not giving appointment to the petitioners on the post in question.

Resultantly, the writ petition is dismissed being devoid of any merit.