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Supreme Court of India
The State Of Bihar vs Madhu Kant Ranjan on 16 December, 2021Author: M.R. Shah
Bench: M.R. Shah, Sanjiv Khanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7677 OF 2021
The State of Bihar & Ors. …Appellant(s)
Versus
Madhu Kant Ranjan & Anr. …Respondent(s)
JUDGMENT
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 20.02.2015 passed by the Division Bench of the High
Court of Judicature at Patna in Letters Patent Appeal No.1631 of 2014 in
Civil Writ Jurisdiction Case No.7650 of 2009 by which, after condoning
the delay of 3 years and 55 days in preferring the appeal, the Division
Bench of the High Court has allowed the said appeal and has quashed
and set aside the judgment and order passed by the learned single
Judge and has directed the D.I.G., Munger to take into account the
select list forwarded to him on 08.09.2007, which included the name of
Signature Not Verified
Digitally signed by R
Natarajan
the respondent No.1 herein (hereinafter referred to as “original writ
Date: 2021.12.16
16:40:29 IST
Reason:
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petitioner”) and take necessary steps for his appointment as Constable,
the State of Bihar and Others have preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as under:-
2.1 That applications were invited vide advertisement bearing No.
1/2004 published on 08.02.2004 for selection of Constables in the Bihar
Police Force. As per the advertisement, the applicant/candidate was
required to enclose the self-attested copies of all necessary documents
alongwith their application form. It further provided that all successful
candidates will produce their original certificates before the Selection
Council at the time of their appointment. The advertisement also further
provided that additional five marks for NCC ‘B’ certificate and 10 marks
for NCC ‘C’ certificate shall be awarded to the candidates holding such
certificates.
2.2 Pursuant to the said advertisement, the original writ petitioner
applied for the said post. He also participated in the re-measurement
and physical test held on 08.09.2006 as per another advertisement
published in the daily newspaper for the same. As the original writ
petitioner did not submit his NCC certificate either with the application
form or with the second application, he scored 12 marks. As he did not
submit his NCC certificate, he was not awarded five additional marks for
NCC ‘B’ certificate. The original writ petitioner approached the High
Court by way of writ petition being CWJC No.5431 of 2008 making a
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grievance that he has been denied the benefit of five marks with regard
to NCC ‘B’ certificate possessed by him, as provided for in the
advertisement. It was his case that while his total marks were 17,
making him eligible for appointment, those with lesser marks have been
appointed, while his candidate has been considered on the basis of 12
marks only. The learned Single Judge refused to issue any positive
direction with regard to the consideration of his candidature by observing
that there is no pleading in the writ petition that the petitioner had
annexed his NCC ‘B’ certificate in support of his claim alongwith the
original application and in the absence of necessary pleading that the
petitioner had annexed his NCC ‘B’ certificate alongwith his original
application, no positive direction can be issued. However, the learned
Single Judge observed that if the petitioner had not annexed such
document with his original application and submitted the same
subsequently after physical test but before the publication of the results,
the matter shall remain in the discretion of the authority. Therefore,
while refusing to issue any positive direction, disposed of the said writ
petition for an appropriate decision by the authority, to exercise the
discretion and to consider whether he could be allowed five additional
marks on production of NCC ‘B’ certificate subsequently, after the
physical test, but before the publication of the results.
2.3 That thereafter under the Right to Information Act, the original writ
petitioner received the information that he was awarded 17 marks. His
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representation, pursuant to the earlier order passed by the learned
Single Judge came to be disposed of by the appropriate authority
refusing to allow five additional marks by observing that as at the time of
submitting the original application, he did not submit the photocopy of
the NCC ‘B’ certificate and which was filed subsequently after the
physical test, he is not entitled to the benefit of additional five marks.
The original writ petitioner filed the present writ petition before the High
Court being Civil Writ Jurisdiction Case No. 7650 of 2009. The learned
Single Judge by judgment and order dated 01.10.2010 dismissed the
said writ petition.
2.4 After a period of three years, the original writ petitioner preferred
the Letters Patent Appeal No.1631 of 2014 before the Division Bench.
By impugned judgment and order, the Division Bench of the High Court
has condoned the delay of three years and thereafter has allowed the
Letters Patent Appeal quashing and setting aside the judgment and
order passed by the learned Single Judge, and directed the appointing
authority to appoint the original writ petitioner as Constable awarding five
additional marks of NCC ‘B’ certificate as per the select list forwarded on
08.09.2007.
2.5 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the Division Bench of the High Court, the State of
Bihar and Others have preferred the present appeal.
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3. Shri Abhinav Mukerji, learned counsel appearing on behalf of the
appellants has vehemently submitted that in the facts and circumstances
of the case, the Division Bench of the High Court has materially erred in
quashing and setting aside the well-reasoned judgment and order
passed by the learned Single Judge and has materially erred in directing
the appellants to appoint the original writ petitioner as a Constable by
awarding five additional marks of NCC ‘B’ certificate.
3.1 It is submitted that as per the advertisement, the applicant was
required to enclose the self-attested copy of NCC ‘B’ certificate
alongwith the application form and the original was required to be
produced at the time of their appointment before the Selection Council. It
is submitted that in the present case, the original writ petitioner did not
produce the xerox copy of the NCC ‘B’ certificate alongwith his
application form. It is submitted that the same came to be produced
after the physical test in the year 2007 and therefore he was not entitled
to the additional five marks of NCC ‘B’ certificate. It is submitted that
cut-off date for submitting the application was 22.02.2004 and at that
time the original writ petitioner did not submit the photocopy of the NCC
‘B’ certificate. It is submitted that therefore despite the above, in the
select list dated 08.09.2007, he was awarded 17 marks. However,
having found that he was not entitled to additional five marks of NCC ‘B’
certificate as he did not produce the photocopy of the NCC ‘B’ certificate
alongwith the application form, which was the requirement as per the
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advertisement, the appointing authority did not allot five additional
marks. It is therefore submitted that a right decision was taken by the
appointing authority and the State not to allot five additional marks of
NCC ‘B’ certificate. It is submitted that the learned Single Judge rightly
dismissed the petition which is erroneously set aside by the Division
Bench of the High Court. It is vehemently submitted by the learned
counsel appearing on behalf of the appellants that as per the settled
position of law the documents submitted at the time of application only
shall have to be considered. Reliance is placed on the decisions of this
Court in the cases of Bedanga Talukdar Vs. Saifudaullah Khan and
Ors., (2011) 12 SCC 85 and Rakesh Kumar Sharma Vs. State (NCT of
Delhi) and Ors., (2013) 11 SCC 58.
4. Present appeal is opposed by Shri M. Shoeb Alam, learned
counsel appearing on behalf of the respondents. It is submitted that
from the very beginning it was the case of the original writ petitioner that
he had produced all the relevant certificates including the NCC ‘B’
certificate alongwith his application. It is submitted that even in the writ
petition being CWJC No.7650 of 2009; it was specifically pleaded by the
original writ petitioner that he had submitted all the necessary
documents including the NCC ‘B’ certificate alongwith the application. It
is urged that subsequently it was found that the relevant record had
been destroyed in the flood. It is submitted that even in the select list
dated 08.09.2007; the original writ petitioner was allotted 17 marks,
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which included five additional marks of NCC ‘B’ certificate. It is therefore
submitted that the Division Bench of the High Court has rightly directed
to act as per the select list dated 08.09.2007 and has rightly directed to
appoint the original writ petitioner as Constable on the basis of select list
dated 08.09.2007. It is submitted that even the Division Bench of the
High Court has also denied back wages.
4.1 Making above submissions it is prayed to dismiss the present
appeal.
5. We have heard the learned counsel for the respective parties at
length.
6. At the outset, it is to be noted that as per the advertisement, the
applicants were required to submit the photocopies of all the relevant
documents/certificates alongwith the application form and the originals
were required to be produced at the time of their appointment before the
Selection Council. It appears that original writ petitioner did not
produce/submit the photocopy of the NCC ‘B’ certificate alongwith his
original application. Therefore, in absence of the submission of the
photocopy of the NCC ‘B’ certificate alongwith the application, he was
not allotted five marks of NCC ‘B’ certificate. However, he submitted the
same in the year 2007 after the physical test. Therefore, he filed a writ
petition being CWJC No. 5431 of 2008 making a grievance that as he
had produced/submitted the NCC ‘B’ certificate, he had been wrongly
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awarded 12 marks and denied five additional marks. The learned Single
Judge of the High Court refused to issue any positive direction by
observing that there is no pleading in the writ petition in support of his
claim that he had annexed his NCC ‘B’ certificate alongwith the original
application form. The learned Single Judge also observed that from the
pleadings it appears that he submitted the same after the physical test
on 15.01.2007, i.e., before the results were published on 26.12.2007.
Observing so the learned Single Judge held that in absence of
necessary pleadings that the petitioner had annexed his NCC ‘B’
certificate alongwith his original application, the Court finds it difficult to
issue any positive direction with regard to the consideration of his
candidature. The order passed 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 of Constable under advertisement no. 1 of 2004.
Having applied in response to the same, he appeared for
physical test on 8.5.2006 when he was given 12 marks.
The grievance is that he has been denied the benefit of 5
marks under the advertisement with regard to NCC-B
certificate possessed by him as provided for in the
advertisement. In this manner, while his marks were total
17 making him eligible for appointment, those with lesser
marks have been appointed when his candidate has been
considered on the basis of 12 1narks only.
There is no pleading in the writ application that the
petitioner has annexed his NCC-B certificate in support of
his claim along with the original application. It appears from
the pleadings that he did submit the same after the
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physical test on 15.1.2007 before the results were
published on 26.12.2007. Strong reliance has been placed
on the information furnished to the petitioner under Right to
Information Act by Annexure-8 dated 23.6.2008 in support
of the plea.
In absence of necessary pleadings that the petitioner
had annexed his NCC-B certificate along with his original
application, this Court finds it difficult to issue any positive
direction with regard to consideration of the candidature of
the petitioner. If the petitioner had originally annexed his
NCC-B certificate along with his application, naturally he is
required to be considered on basis of 17 marks as
mentioned in Annexurte-8 dated 23.6.2008. But, if the
petitioner had not annexed such documents with his
original application and submitted the same subsequently
after physical test but before the publication of the results,
the matter shall remain in the discretion of the
Respondents and it is not possible for this Court to pass
any positive orders on the aspect of consideration of his
candidature. The Court is of such view for the reason that if
this Court was to direct any relaxation of any condition, it
would amount to violation of Article 14 of the Constitution
by a judicial order.
The writ application stands disposed in the aforesaid
terms for an appropriate decision by the Respondents
within a maximum period of six weeks from the date of
receipt and/ or production of a copy of this order.”
7. Thus, as per the pleadings in the earlier writ petition being CWJC
No.5431 of 2008, there was no averment in support of his claim that he
had annexed his NCC ‘B’ certificate alongwith the original application.
However, when subsequently the present writ petition was filed, the
original writ petitioner came out with a contrary stand that he had
produced all the necessary documents including the NCC ‘B’ certificate
alongwith his original application. The aforesaid is nothing but an
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afterthought. Having failed to get any positive direction in the earlier writ
petition on the ground that there is no pleading that he had annexed his
NCC ‘B’ certificate alongwith the original application, he is not entitled to
any positive direction and the original writ petitioner cannot be permitted
to improve his case in the subsequent litigation, when it was not his case
in the earlier round of litigation.
8. At the cost of repetition, it is to be observed that in the earlier
round of litigation, the learned Single Judge specifically observed that
there is no pleading in the writ petition that the petitioner had annexed
his NCC ‘B’ certificate alongwith the original application. Once, it is
found that the respondent No.1– original writ petitioner did not submit the
photocopy of the NCC ‘B’ certificate alongwith the original application
which was the requirement as per the advertisement and the cut-off date
as per the advertisement was 22.02.2004 and he produced the same
after the physical test on 15.01.2007, the appointing authority rightly held
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 awarded 17 marks,
which included five additional marks of NCC ‘B’ certificate, the
appointing authority disagreed with the same on the ground that as
photocopy of the NCC ‘B’ certificate was not produced alongwith his
application form, which was the requirement as per the advertisement,
he shall not be entitled to five additional marks of NCC ‘B’ certificate.
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Therefore, when a decision was taken on the representation made by
the respondent No.1 – original writ petitioner which was pursuant to the
earlier order passed by the learned Single Judge in writ petition being
CWJC No.5431 of 2008, the authority rightly refused to allot/award five
additional marks of NCC ‘B’ certificate.
9. As per the settled proposition of law, a candidate/applicant has to
comply with all the conditions/eligibility criteria as per the advertisement
before the cut-off date mentioned therein unless extended by the
recruiting authority. Also, only those documents, which are submitted
alongwith the application form, which are required to be submitted as per
the advertisement have to be considered. Therefore, when the
respondent No.1 – original writ petitioner did not produce the photocopy
of the NCC ‘B’ certificate alongwith the original application as per the
advertisement and 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 the additional five marks of the NCC ‘B’ certificate. In these
circumstances, the Division Bench of the High Court has erred in
directing the appellants to appoint the respondent No.1 – original writ
petitioner on the post of Constable considering the select list dated
08.09.2007 and allotting five additional marks of NCC ‘B’ certificate.
10. In view of the above and for the reasons stated above, the present
appeal succeeds, the impugned judgment and order passed by the
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Division Bench of the High Court is hereby quashed and set aside and
judgment and order passed by the learned Single Judge dismissing the
writ petition is restored. In the facts and circumstances of the case,
there shall be no order as to costs.
………………………………….J. [M.R. SHAH]
NEW DELHI; ………………………………….J.
DECEMBER 16, 2021. [B.V. NAGARATHNA]
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