THE STATE OF BIHAR & ORS. versus MADHU KANT RANJAN & ANR. on 16 December 2021

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 20.02.2015passed by the Division Bench of the HighCourt of Judicature at Patna in Letters Patent Appeal No.1631 of 2014in Civil Writ Jurisdiction Case No.7650 of 2009 by which, after condoning A

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Athe delay of 3 years and 55 days in preferring the appeal, the DivisionBench of the High Court has allowed the said appeal and has quashedand set aside the judgment and order passed by the learned single Judgeand has directed the D.I.G., Munger to take into account the select listforwarded to him on 08.09.2007, which included the name of therespondent No.1 herein (hereinafter referred to as “originalBwritpetitioner”) and take necessary steps for his appointment asConstable, the State of Bihar and Others have preferred the presentappeal.

2. The facts leading to the present appeal in nutshell are as under:- C2.1 That applications were invited vide advertisement bearing No.1/2004 published on 08.02.2004 for selection of Constables in the BiharPolice Force. As per the advertisement, the applicant/candidate wasrequired to enclose theself-attested copies of all necessary documentsalongwith their application form. It further provided that all successfulcandidates will produce their original certificates before the SelectionDCouncil at the time of their appointment. The advertisement also furtherprovided that additional five marks for NCC ‘B’ certificate and 10 marksfor NCC ‘C’certificateshall be awarded to the candidates holding suchcertificates.

2.2 Pursuant to the said advertisement, the original writ petitionerEapplied for the said post. He also participated in the re-measurementand physical test held on 08.09.2006 as per another advertisementpublished in the daily newspaper for the same. As the original writpetitioner did not submit his NCC certificate either with the applicationform or with the second application, he scored 12 marks. As he did notFsubmit his NCC certificate, he was not awarded five additional marksfor NCC ‘B’ certificate. The original writ petitioner approached the HighCourt by way of writ petition being CWJC No.5431 of 2008 making agrievance that he has been denied the benefit of five marks with regardto NCC ‘B’ certificate possessed by him, as provided for in theadvertisement. It was his case that while his total marks were 17, makingGhim eligible for appointment, those with lesser marks have beenappointed,whilehis candidate has been considered on the basis of 12marks only. The learned Single Judge refused to issue any positivedirection with regard to the consideration of his candidature by observingthat there is no pleading in the writ petition that the petitioner had annexedHhis NCC ‘B’ certificate in support of his claim alongwith the original application and in the absence of necessary pleading that the petitionerhad annexed his NCC ‘B’ certificate alongwith his original application,no positive direction can be issued. However, the learned Single Judgeobserved that if the petitioner had not annexed such document with hisoriginal application and submitted the same subsequently after physicaltest but before the publication of the results, the matter shall remain inthe discretion of the authority. Therefore, while refusing to issue anypositive direction, disposed of the said writ petition for an appropriatedecision by the authority, to exercise the discretion and to consider whetherhe could be allowed five additional marks on production of NCC ‘B’certificate subsequently, after the physical test, but before the publicationof the results.

2.3 That thereafter under the Right to Information Act, the originalwrit petitioner received the information that he was awarded 17 marks.His representation, pursuant to the earlier order passed by the learnedSingle Judge came to be disposed of by the appropriate authority refusingto allow five additional marks by observing that as at the time of submittingthe original application, he did not submit the photocopy of the NCC ‘B’certificate and which was filed subsequently after the physical test, he isnot entitled to the benefit of additional five marks. Theoriginal writpetitioner filed the present writ petition before the High Court being CivilWrit Jurisdiction Case No. 7650 of 2009. The learned Single Judge byjudgment and order dated 01.10.2010 dismissed the said writ petition.

2.4 After a period of three years, the original writ petitionerpreferred the Letters Patent Appeal No.1631 of 2014 before theDivisionBench. By impugned judgment and order, the Division Bench of theHigh Court has condoned the delay of three years and thereafter hasallowed the Letters Patent Appeal quashing and setting aside the judgmentand order passed by the learned Single Judge, and directed the appointingauthority to appoint the original writ petitioner as Constable awardingfive additional marks of NCC ‘B’ certificate as per the select listforwarded on 08.09.2007.

2.5 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the Division Bench of the High Court, the State ofBihar and Others have preferred the present appeal.

3. Shri Abhinav Mukerji, learned counsel appearing on behalf ofthe appellants has vehemently submitted that in the facts and A

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Acircumstances of the case, the Division Bench of the High Court hasmaterially erred in quashing and setting aside the well-reasoned judgmentand order passed by the learned Single Judge and has materially erred indirecting the appellants to appoint the original writ petitioner as a Constableby awarding five additional marks of NCC ‘B’ certificate.

B3.1 It is submitted that as per the advertisement, the applicantwas required to enclose the self-attested copy of NCC ‘B’ certificatealongwith the application form and the original was required to be producedat the time of their appointment before the Selection Council.It issubmitted that in the present case, the original writ petitioner did notproduce the xerox copy of the NCC ‘B’ certificate alongwith hisCapplication form. It is submitted that the same came to be producedafter the physical test in the year 2007 and therefore he was not entitledto the additional five marks of NCC ‘B’ certificate. It is submitted thatcut-off date for submitting the application was 22.02.2004 and at thattime the original writ petitioner did not submit the photocopy of the NCCD‘B’ certificate.It is submitted that therefore despite the above, in theselect list dated 08.09.2007, he was awarded 17 marks.However, havingfound that he was not entitled to additional five marks of NCC ‘B’certificate as he did not produce the photocopy of the NCC ‘B’ certificatealongwith the application form, which was the requirement as per theadvertisement, the appointing authority did not allot five additional marks.EIt is therefore submitted that a right decision was taken by the appointingauthority and the State not to allot five additional marks of NCC ‘B’certificate. It is submitted that the learned Single Judge rightly dismissedthe petition which is erroneously set aside by the Division Bench of theHigh Court. It is vehemently submitted by the learned counsel appearingFon behalf of the appellantsthat as per the settled position of law thedocuments submitted at the time of application only shall have to beconsidered. Reliance is placed on the decisions of this Court in the casesof Bedanga Talukdar vs. Saifudaullah Khan and Ors., (2011) 12SCC 85 and Rakesh Kumar Sharma vs. State (NCT of Delhi) andOrs., (2013) 11 SCC 58.G

4. Present appeal is opposed by Shri M. Shoeb Alam, learnedcounsel appearing on behalf of the respondents. It is submitted that fromthe very beginning it was the case of the original writ petitioner that hehad produced all the relevant certificates including the NCC ‘B’certificate alongwith his application. It is submitted that even in the writH

petition being CWJC No.7650 of 2009; it was specifically pleaded bythe original writ petitioner that he had submitted all the necessarydocuments including the NCC ‘B’ certificate alongwith the application.It is urged that subsequently it was found that the relevant record hadbeen destroyed in the flood. It is submitted that even in the select listdated 08.09.2007; the original writ petitioner was allotted 17 marks, whichincluded five additional marks of NCC ‘B’ certificate. It is thereforesubmitted that the Division Bench of the High Court has rightly directedto act as per the select list dated 08.09.2007 and has rightly directed toappoint the original writ petitioner as Constable on the basis of select listdated 08.09.2007. It is submitted that even the Division Bench of theHigh Court has also denied back wages.

4.1 Making above submissions it is prayed to dismiss the presentappeal.

5. We have heard the learned counsel for the respective partiesat length.

6. At the outset, it is to be noted that as per the advertisement, theapplicants were required to submit the photocopies of all the relevantdocuments/certificates alongwith the application form and the originalswere required to be produced at the time of their appointment before theSelection Council. It appears that original writ petitioner did not produce/submit the photocopy of the NCC ‘B’ certificate alongwith his originalapplication. Therefore, in absence of the submission of the photocopy ofthe NCC ‘B’ certificate alongwith the application, he was not allottedfive marks of NCC ‘B’ certificate. However, he submitted the same inthe year 2007 after the physical test. Therefore, he filed a writ petitionbeing CWJC No. 5431 of 2008 making a grievance that as he hadproduced/submitted the NCC ‘B’ certificate, he had been wronglyawarded 12 marks and denied five additional marks. The learned SingleJudge of the High Court refused to issue any positive direction byobserving that there is no pleading in the writ petition in support of hisclaim that he had annexed his NCC ‘B’ certificate alongwith the originalapplication form. The learned Single Judge also observed that from thepleadings it appears that he submitted the same after the physical test on15.01.2007, i.e., before the results were published on 26.12.2007.Observing so the learned Single Judge held that in absence of necessarypleadings that the petitioner had annexed his NCC ‘B’ certificate alongwithhis original application, the Court finds it difficult to issue any positive A

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Adirection with regard to the consideration of his candidature. The orderpassed by the learned Single Judge reads as under:- “Heard learned counsel for the petitioner and the State.

The petitioner was an applicant for appointment on the post ofConstable under advertisement no. 1 of 2004. Having applied inresponse to the same, he appeared for physical test on 8.5.2006when he was given 12 marks. The grievance is that he has beendenied the benefit of 5 marks under the advertisement with regardto NCC-B certificate possessed by him as provided for in theadvertisement. In this manner, while his marks were total 17making him eligible for appointment, those with lesser marks havebeen appointed when his candidate has been considered on thebasis of 12 1narks only.

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There is no pleading in the writ application that the petitioner hasannexed his NCC-B certificate in support of his claim along withthe original application. It appears from the pleadings that he didsubmit the same after the physical test on 15.1.2007 before theresults were published on 26.12.2007. Strong reliance has beenplaced on the information furnished to the petitioner under Rightto Information Act by Annexure-8 dated 23.6.2008 in support ofthe plea.

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In absence of necessary pleadings that the petitioner had annexedhis NCC-B certificate along with his original application, this Courtfinds it difficult to issue any positive direction with regard toconsideration of the candidature of the petitioner. If the petitionerhad originally annexed his NCC-B certificate along with hisapplication, naturally he is required to be considered on basis of17 marks as mentioned in Annexurte-8 dated 23.6.2008. But, ifthe petitioner had not annexed such documents with his originalapplication and submitted the same subsequently after physicaltest but before the publication of the results, the matter shall remainin the discretion of the Respondents and it is not possible for thisCourt to pass any positive orders on the aspect of considerationof his candidature. The Court is of such view for the reason thatif this Court was to direct any relaxation of any condition, it wouldamount to violation of Article 14 of the Constitution by a judicialorder.

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The writ application stands disposed in the aforesaid terms for anappropriate decision by the Respondents within a maximum periodof six weeks from the date of receipt and/ or production of a copyof this order.”

7. Thus,as per the pleadings in the earlier writ petition being CWJCNo.5431 of 2008, there was no averment in support of his claim that hehad annexed his NCC ‘B’ certificate alongwith the original application.However, when subsequently the present writ petition was filed, theoriginal writ petitioner came out with a contrary stand that he had producedall the necessary documents including the NCC ‘B’ certificatealongwithhis original application. The aforesaid is nothing but an afterthought.Having failed to get any positive direction in the earlier writ petition onthe ground that there is no pleading that he had annexed his NCC ‘B’certificate alongwith the original application, he is not entitled to anypositive direction and the original writ petitioner cannot be permitted toimprove his case in the subsequent litigation, when it was not his case inthe earlier round of litigation.

8. At the cost of repetition, it is to be observed that in the earlierround of litigation, the learned Single Judge specifically observed thatthere is no pleading in the writ petition that the petitioner had annexedhis NCC ‘B’ certificate alongwith the original application. Once, it isfound that the respondent No.1– original writ petitioner did not submitthe photocopy of the NCC ‘B’ certificate alongwith the original applicationwhich was the requirement as per the advertisement and the cut-offdate as per the advertisement was 22.02.2004 and he produced the sameafter the physical test on 15.01.2007, the appointing authority rightlyheld that he shall not be entitled to additional five marks of NCC ‘B’certificate. Though in the select list dated 08.09.2007, he was awarded17 marks, which included five additional marks of NCC ‘B’ certificate,the appointing authority disagreed with the same on the ground that asphotocopy of the NCC ‘B’ certificate was not produced alongwith hisapplication form, which was the requirement as per the advertisement,he shall not be entitled to five additional marks of NCC ‘B’ certificate.Therefore, when a decision was taken on the representation made bythe respondent No.1 – original writ petitioner which was pursuant to theearlier order passed by the learned Single Judge in writ petition beingCWJC No.5431 of 2008, the authority rightly refused to allot/award fiveadditional marks of NCC ‘B’ certificate.

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A9. As per the settled proposition of law, a candidate/applicant hasto comply with all the conditions/eligibility criteria as per the advertisementbefore the cut-off date mentioned therein unless extended by the recruitingauthority. Also, only those documents, which are submitted alongwiththe application form, which are required to be submitted as per theadvertisement have to be considered. Therefore, when the respondentBNo.1 – original writ petitioner did not produce the photocopy of the NCC‘B’ certificate alongwith the original application as per the advertisementand the same was submitted after a period of three years from the cut-off date and that too after the physical test, he was not entitled to theadditional five marks of the NCC ‘B’ certificate. In these circumstances,Cthe Division Bench of the High Court has erred in directing the appellantsto appoint the respondent No.1 – original writ petitioner on the post ofConstable considering the select list dated 08.09.2007 and allotting fiveadditional marks of NCC ‘B’ certificate.

10. In view of the above and for the reasons stated above, theDpresent appeal succeeds, the impugned judgment and order passed bythe Division Bench of the High Court is hereby quashed and set asideand judgment and order passed by the learned Single Judge dismissingthe writ petition is restored. In the facts and circumstances of the case,there shall be no order as to costs.

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Devika Gujral

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