2016 Supreme(Jhk) 601

IN THE HIGH COURT OF JHARKHAND AT RANCHI
VIRENDER SINGH and CHANDRASHEKHAR, JJ.
Mosrat Ziya Tara, daughter of Ziyauddin Md. Shoib - Appellant
Versus
The State of Jharkhand through the Secretary (Law) and Ors. - Respondents
L.P.A No. 466 of 2015
Decided On : 25-07-2016

Headnote:Service Law – Matter related to recruitment of civil judge junior division – Caste certificate – Appellant has challenged the appointment of respondent no 5 being illegal as respondent no 5 was allowed to appear in the interview as BC I category whereas he appeared in the examination as BC II category – Here the respondents are trying to challenge the candidature of the appellant on the grounds that she submitted a category BC I certificate which was not as per the prescribed format – The appellant had submitted a declaration that her submissions are true and this declaration cannot be declared to false – It has been held that the respondents cannot challenge the candidature of the appellant as she sat in the examination after the order of the writ court – There is nothing to prove thatch declaration was not true – Counter challenge by respondents is not maintainable. Service Law – It has been submitted by appellant that the appointment was made illegally and the same should be set aside – Respondent no 5 interviewed as a candidate under BC I category but appeared in the entrance exam as BC II category – Controller of examination has allowed the Respondent no 5 to appear in the interview under BC I category – It has been found that the respondent no 5 has give a false declaration about his category – He was declared to MBC category by the Executive Director and the same is not a reserved category for the current job – If the application form was not filled up correctly then it ought to have been rejected – The SDO rank officer has to issue a caste certificate. Service Law – LPA court is going to decide the matter from the beginning based on the facts – False declaration by the respondent no 5 and now he has raised a pea that the declaration submitted by him to be false had not been brought to challenge – It has been held that when the respondents. Could challenge the candidature of the appellant then the appellant can also raise objections to the declaration submitted by the respondent no 5 – the procedure laid down as per the rules has to be followed and in this case the appellant has always requested for rejection of the application submitted by the respondent no 5 – it has been submitted by appellant that the appointment was made illegally and the same should be set aside – Respondent no 5 interviewed as a candidate under BC I category but appeared in the entrance exam as BC II category – Controller of examination has allowed the Respondent no 5 to appear in the interview under BC I category. Jharkhand High Court Rules, 2001 – Appointment the civil judge junior division – The appointment was made illegally and the same is set aside – Respondent no 5 interviewed as a candidate under BC I category but appeared in the entrance exam as BC II category – Controller of examination has allowed the Respondent no 5 to appear in the interview under BC I category – the plea that the controller was not at fault cannot be entertained as the Controller cannot exercise any other power which the JPSC has not been given – at every stage of appointment consultation with the High Court is mandatory – The decision of controller was not confirmed by the High Court – guidelines/instructions in advertisement do not disclose a power either in the JPSC or Controller to change the caste category of a candidate at the fag end of the selection – the post of Civil Judge (Junior/Senior Division) are regulated under Jharkhand Judicial Service (Recruitment) Rules, 2004 framed after consultation with High Court which neither provides nor contemplates such a power in JPSC process.

        It is settled law the all the facts and circumstance of the case has to be considered very minutely as the difference in she facts may prove to be making a huge difference on the outcome of the case – Even additional facts can bring a big change. The appointment was made illegally and the same is set aside – Respondent no 5 interviewed as a candidate under BC I category but appeared in the entrance exam as BC II category – Controller of examination has allowed the Respondent no 5 to appear in the interview under BC I category – Fraud has been proved against the respondent no 5 – He never tried to clear the mistake if any in submitting the false certificate or the declaration – Fraud on the other party and all on court – Contention of the respondent no has also roved to be a lie – The contention was that he could detect the mistake only when JPSC would have informed him about his category – Controller has gone out of his power – The connivance by respondent no 5 and the controller came out when the court had summoned the original records in front of it – Both got exposed – It is a rule that the parties to the court shall bring all the relevant documents – If some important document is not produced intentionally it means the party is at fault – Fraud proved in this case – Appointment of the appellant is valid as the respondent not 5 played fraud on her and the court.

        It has been proved that the appointment was made illegally and the same is set aside – Respondent no 5 interviewed as a candidate under BC I category but appeared in the entrance exam as BC II category – Controller of examination has allowed the Respondent no 5 to appear in the interview under BC I category – Writ Court rejected the request made by the appellant as the writ court could not go into the selection of the respondent no 5 as it has not been challenged – Act of JPSC is not questioned by the appellant – Respondent no 5 is impleaded as a party to the case.

        It has been proved that the appointment was made illegally and the same is set aside – Respondent no 5 interviewed as a candidate under BC I category but appeared in the entrance exam as BC II category – Controller of examination has allowed the Respondent no 5 to appear in the interview under BC I category – Writ Court rejected the request made by the appellant as the writ court could not go into the selection of the respondent no 5 as it has not been challenged – respondent in the writ proceeding, obviously keeping this in mind that if the plea raised by appellant/petitioner is finally adjudicated in her favour it would affect respondent no. 5 – case of appellant is that she would have secured a place in the merit list if caste category of respondent no. 5 was not illegally changed at the time of interview – respondent – separate counter – affidavits file by the JPSC and respondent no 5 – appellant made serious allegations to plead that selection of respondent no. 5 was illegal – appellant cannot be aware of all the facts in such situation – legality of the act by the JPSC has to be decided by the Court on the basis of affidavits filed by the parties – appellant secured less marks than the candidate last selected cannot be a ground for declining relief to her as the case pleaded by her is that had respondent no. 5 was not included in the merit list under BC – I, she would be the candidate last selected and that was the reason why she approached the Court – thus, legality or otherwise of selection of respondent no. 5 was an issue before the writ court – impugned order suffers from serious infirmity in law.

       It has been held that the appellant deserves the appointment on equitable principles and not the respondent no 5 – Appointment of respondent no 5 is held illegal – Relying upon equity the court has to decide the matter with extra care and the party which is innocent should not be deprived of justice – plea of equity taken by the respondent no 5 is not maintainable. Constitution of India – Article 226 – While deciding the matter the power used by the High Court under A.226 the court has to decide the same on equitable principles and the party who has taken the side of false grounds or allegations should be stopped from doing so – The innocent party has should not be prejudiced and the court is duty bound to stop the persons doing fraud on the legal system – Equity is the basis of the Article 226 of the constitution and the High Court has to exercise its power based on this principle. It has been proved that the appointment was made illegally and the same is set aside – Respondent no 5 interviewed as a candidate under BC I category but appeared in the entrance exam as BC II category – Controller of examination had allowed the Respondent no 5 to appear in the interview under BC I category – Appellant has been deprived of her right to be appointed even if she has cleared the exam and was in merit – Appellant has been subjected to mental suffering and has to be given compensation for it – 1 lakh compensation to be given to the appellant – The appellant shall be given the appointment to the post of the civil judge(junior division) of 2015 batch – She shall be sent for training as per the appointment under the Jharkhand Judicial Service (Recruitment) Rules, 2004.