Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7079 of 2013 ================================================== 1. Nilesh Kumar Son Of Ramashray Singh Resident Of Village - Mohammadpur, P.S. Suryagarh, District - Lakhisarai 2. Sanjay Kumar Son Of Birendra Prasad Yadav Resident Of Village - Padampur, P.S. Bihta, P.O. Khadipur, District - Saharsa .... .... Petitioners Versus 1. The State Of Bihar 2. The Director General Of Police, Bihar, Patna 3. The Deputy Inspector General Of Police, North Range Cum Central Range, Patna 4. The Chairman B.M.P. Recruitment Board Range, Board - Cum - Superintendent Of Police East Champaran At Motihari 5. The Commandant B.M.9 Jamalpur ( Munger ) District Munger .... .... Respondents ================================================== Appearance : For the Petitioner/s : Mr. Ram Vinay Prasad Singh @ Sanjay, Adv. For the Respondent/s : Mr. Digvijay Narayan Singh, AC to SC-9 ================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 07-05-2013 Heard learned counsel for the parties. 2. The prayer of the petitioners in this writ application reads as follows:- “1. That the present writ application for issuance of an appropriate Direction/direction to the respondent concerned directing therein to appoint the petitioners as per appointment/joining letter being Memo no. 1980/Appointment dated 3.11.2007 for the post of Constable (G.P.) in Bihar Military Police, contained in Annexure-1 to the writ application.” 3. Learned counsel for the petitioners has
Legal Reasoning
Patna High Court CWJC No.7079 of 2013 (2) dt.07-05-2013 2/9 submitted that the petitioners had filed an application for appointment on the post of Constable in response to the advertisement no. 2/04 and in fact, an appointment letter was also issued to him on 3.11.2007 but when the petitioners went to submit their joining report the same was not accepted on the ground of some criminal case being pending against them. He has submitted that the vacancy on the post of Constable on which the petitioners sought to be appointed is still available and, therefore, this Court should direct for acceptance of joining of the petitioners. 4. In the considered opinion of this Court, first of all, it is not correct to say that the letter dated 3.11.2007 was an appointment letter to the petitioners. In fact, the letter dated 3.11.2007 was only an information about their being found provisionally fit for selection inasmuch for their final selection and appointment the petitioners were directed to produce all their original documents relating to qualification, reservation, NCC, sports etc. as would be evident from the contents of the aforementioned letter dated 3.11.2007, quoted herein below:- ^^Kkikad 1989@fu;qfDr iqfyl v/kh{kd dk dk;kZy;] iwohZ pEikj.k eksfrgkjh] fnukad 3-11-07 lsok esa] dzekad&17462 uke& fuys”k dqekj Patna High Court CWJC No.7079 of 2013 (2) dt.07-05-2013 3/9 firk dk uke& jkekJ; flg x‘g irk& xzke eqgEeniqj] iks0& vfyuxj] Fkkuk lw;Zx<k] ftyk& y[khljk; izlax%&iqfyl mi egkfufj{kd] lSU; iqfyl …m0e0‰&lg&…ds0ea0‰ iVuk dk KkikaD& 97@xks0] fnukad 1-11-07 fo’k;%& foKkiu la[;k&02@04 foKkfir fjfDr;ksa ds fo:} p;u ds laca/k esa A vkidks lwfpr djuk gS fd foKkiu la[;k&02@04 }kjk fcgkj lSU; iqfyl&09 tekyiqj esa foKkfir fjfDr;ksa ds vUrxZr fcgkj lSU; iqfyl mRrjh eaMy cksMZ&2 p;u i’kZn ds }kjk vk;ksftr “kkjhfjd tk¡p ,oa eki izfr;ksfxrk ds vk/kkj ij i’kZn us vko’;d tk¡pksijkUr larq’V gksus ij vkids flikgh ds in ij fu;qfDr dh dkjZokbZ djus dh vuq”kalk dh gS A vr% iqfyl gLrd ds lqlaxr izko/kkuksa ds rgr fu;qfDr ds iwoZ vko’;d tk¡p gsrq vki fnukad 12- 11-07 dks lekns’Vk] fcgkj lSU; iqfyl&09 tekyiqj ds dk;kZy; d{k esa tUe frfFk] “kS{kf.kd ;ksX;rk] ,u0lh0lh0] [ksydqn] dzhehys;j] x‘gj{kd vkfn tks Hkh izek.k&i= vkids ekeys esa ykxqw gksrs gSa] ds ewy izfr ,oa ikliksVZ lkbZt rFkk fVdV lkbZt ds nks &nks QksVksxzkQ ds lkFk mifLFkr gksa A izek.k&i=ksa ds tk¡p ,oa vkids LokLF; laca/kh tk¡p ds mijkUr fu;qfDr inkf/kdkjh ds iwjh rjg larq’V gksus rFkk lc dqN fu;ekuqdqy gksus ij gh vkidks flikgh ds in ij fu;qfDr laca/kh dkjZokbZ dh tk;sxh A ;g ek= lwpuk i= gS A bls fu;qfDr i= ugha le>sa A mijksDr ;k=k ds fy, vkidks dksbZ ;k=k HkRrk@ekuns; ugha gksxk A g0@ v/;{k] fo0lS0iq0 mRrjh eaMy cksMZ&2 &lg& iqfyl v/kh{kd] iwohZ pEikj.k] eksfrgkjh A izfrfyfi& lekns’Vk] fcgkj lSU; iqfyl 09 dks lwpukFkZ ,oa vko”;d fdz;kFkZ A vuqjks/k gS fd fu;qfDr ds iwoZ mijksDr mEehnokjksa ds izek.k&i=ksa ds lR;kiu rFkk vkosnu&i= esa fpids QksVksa ls muds feyku ds mijkUr iwjh rjg larq’V gksus ij mudh fu;qfDr ds laca/k esa vius Lrj ls ;Fkksfpr fu.kZ; ysus dh d‘ik dh tk;A** ( underlining for emphasis) 5. Thus, from reading of the aforesaid letter dated 3.11.2007 and specially its underlined portion it would become Patna High Court CWJC No.7079 of 2013 (2) dt.07-05-2013 4/9 clear that the petitioners were neither finally selected nor were given appointment letter. If, therefore, in course of verification, the petitioners were found ineligible on account of any criminal case pending against them and if the petitioners were aggrieved, they had to move the appropriate forum/court within a reasonable period. They cannot raise the issue after expiry of a period of almost five and half years inasmuch as this writ application had been filed on 3.4.2013. Thus this writ application is fit to be dismissed on the ground of delay and laches alone. 6. The submissions of the learned counsel for the petitioners that since the vacancies of advertisement no. 2/04 still exist and, therefore, this Court should direct for acceptance of the joining of the petitioners has to be only noted for its being rejected. The petitioners were never offered appointment letter and in fact their selection in the midway was abrupted in course of verification on account of their certification and they were disqualified due to pending criminal cases against them. It has to be also kept in mind that in all the three advertisements including Advertisement no. 2/04 specific provision for giving declaration in the prescribed format of application itself that no criminal case was pending Patna High Court CWJC No.7079 of 2013 (2) dt.07-05-2013 5/9 against the applicants and therefore once the declaration of the petitioners was found to be false even after the advertisement no. 1/04, 2/04 and 3/04, the respondent authorities of the Police Department have again conducted selection and appointment in the advertisement no. 1/09 and 2/09 and in fact have also undergone another process of selection by issuing advertisement in the year 2012. In that view of the matter, it cannot be said that the vacancy of the year 2004 transaction still exist as that have been followed by three advertisements out of which appointments have also been made. 7. The next submission of learned counsel for the petitioners that the post of constables advertised under advertisement no. 2 of 2004 are still in existence and therefore the respondents are under an obligation to accept the joining of the petitioners in view of the petitioners being declared successful in the selection test is also devoid of any merit. Unfilled post of constables under Advertisement No. 2 of 2004 were made the subject matter of further selection by separate Advertisement No. 1 of 2009 and 2 of 2009 and thus it cannot be said that after the petitioners application were rejected and the posts were further advertised by commencing a new selection process on the basis of Advertisement No. 1 of 2009 Patna High Court CWJC No.7079 of 2013 (2) dt.07-05-2013 6/9 and 2 of 2009, the petitioners had no subsisting right to be appointed on the basis of their earlier selection. 7. By now it is well settled that an empanelled candidate has got no indefensible right of being appointed. Moreover, the petitioners were not even empanelled and selected candidates, inasmuch as, the letter dated 03.11.2007 as quoted above would itself go to show that they had to produce the original certificates and testimonials for specifying that they have fulfilled the requirement as laid down in the advertisement. 8. Learned counsel for the petitioners in fact had emphasized on the aspect that the petitioners were not issued appointment letter on account of pendency of criminal cases against them. Though this fact has not been mentioned in the writ application but then if that was the reason for not selecting the petitioners, the same cannot be faulted either on fact and in law. The petitioners cannot deny this fact that in the prescribed format of the application in terms of the advertisement it was clearly mentioned that every candidate filing the application for the post of constable will have to give a declaration that his certificates and testimonials are true and correct and that he is not facing any criminal prosecution. Patna High Court CWJC No.7079 of 2013 (2) dt.07-05-2013 7/9 There was also specific clause of undertaking in the prescribed format that if any of such declaration was found false/incorrect their candidature will be automatically cancelled. Thus, when the learned counsel for the petitioners has himself orally admitted that the petitioners were facing criminal prosecution, their being not selected and appointed on the post of constable is only in conformity with the terms and conditions laid down in the advertisement and in the prescribed proforma of application. 9. As a matter of fact, from the reading of the writ application it appears that in course of verification of the certificates and testimonials, it was found that the application of the petitioners in the prescribed proforma were not filled up in their own pen and handwriting and the application of petitioner no. 2 also does not contain the signatures on the prescribed proforma of the application i.e. how the petitioners have stated in paragraph no. 11 of the writ application which is quoted hereinbelow:- "That for the enquiry committee has been constituted and submitted a report that in the second merit list. It is found that his application form has not filled up his own pen and been handwriting and so far the petitioner no. 2. It was found that the petitioner has not signed the application form. His signature Patna High Court CWJC No.7079 of 2013 (2) dt.07-05-2013 8/9 is left out on main application form. It is the peculiar situation that when the entire enquiry /formalities have been conducted and appointment letter has already been issued to the petitioner, in last stage. It was point out and on that ground alone the petitioner could not get appointed and debarred from a Govt. Job." 10. Assuming the aforementioned reason of the petitioners being disqualified on account of non compliance of the directions given in the advertisement/prescribed proforma of filing the application in their own pen and handwriting and signature is the reason for disqualifying the petitioners that also cannot be faulted either on fact or in law. If the petitioners did not carry out the instructions given in the advertisement and/or prescribed proforma and did not fill up the form in their own pen and handwriting as also did not put their signature on the application form they have automatically incurred the disqualification. Thus, even the reasons given in the writ application for disqualification of the petitioners cannot be held to be bad. 11. As a matter of fact, it would appear from the representation of the petitioners which was filed only on 14.07.2012 almost after five years of their being subjected to verification of their original certificates vide letter dated Patna High Court CWJC No.7079 of 2013 (2) dt.07-05-2013 9/9 03.11.2007 that did not even mention the reason for their being disqualified in the process of verification of their certificates. From the representation dated 14.07.2012(Annexure-3) it is more than clear that neither the issue of pendency of criminal case nor even the issue of filing of the application in the prescribed proforma without signature of petitioner no. 2 or the application being not in the pen and handwriting of both the petitioners was also never raised by them. It thus becomes more than clear that the petitioners had filed this wholly belated writ application even without raising the actual issue before the competent authority. 12. Thus, for all these reasons indicated above, this Court does not find any merit in the application and the same is, accordingly, dismissed. Rishi/ranjan (Mihir Kumar Jha, J)