IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1650 of 2009 ROHIT KUMAR S/O GARIB PRASAD MEHTA R/O VILL- DAN NAGAR, P.O. & DISTT. KHAGARIA. ---------Petitioner-Appelant. Versus 1. THE STATE OF BIHAR THROUGH THE INSPECTOR GENERAL OF POLICE NORTH ZONE, BIHAR, PATNA 2. SATYA NARAYAN JHA, PRESIDENT SELECTION COMMISSION, NORTH ZONE, BOARD NO. 1 CUM COMMANDENT (B.M.P.-13), DARBHANGA 3. SRIDHAR MANDAL, SUPERINTENDENT OF POLICE CUM MEMBER BOARD NO. 1, CAMP B.M.P.-13, DARBHANGA 4. THE DEPUTY INSPECTOR GENERAL OF POLICE (HEAD OFFICE) BIHAR, PATNA 5. AMARNATH PASWAN S/O RAM BILAS PASWAN R/O DACHAPARAR, P.O. MILKICHAK, P.S. BAHADURPUR, DISTT. DARBHANGA. -----------Respondents-Respondents. ----------- For the Appellant: Mr. Tarun Kumar Sinha, Advocate For the State: Mr. R.S. Nath, A.A.G.4. ----------- PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR JUSTICE MIHIR KUMAR JHA. ORDER (07/04/2010) As per Mihir Kumar Jha, J. Heard counsel for the parties. (2)This appeal arises out of an order dated 27.11.2009 passed in C.W.J.C. No.15257 of 2009, wherein the appellant-writ petitioner had assailed the order dated 2.8.2008 passed by the Chairman of the 2 Constable Selection Board-Cum- Commandant Bihar Military Police, Darbhanga rejecting the representation of the appellant-writ petitioner for his selection and appointment on the post of constable in Bihar Military Police (B.M.P.). (3)Shorn of all niceties, the only few relevant fact have to be noted for the purpose of this appeal. In terms of the Advertisement No.2 of 2004 and 3 of 2004 for the post of constable, the appellant-writ petitioner had offered his candidature and was subjected to his physical test on 19.8.2006 at Darbhanga, but his candidature was cancelled by a reasoned order dated 14.11.2006 by recording that the appellant-writ petitioner by duping the officials of the Selection Board had got his marks of the physical test enhanced and accordingly candidature of this appellant-writ petitioner as also two other candidates, namely, Amarjit Kumar and Suraj Kumar were cancelled. Relevant portion of the said reasoned order dated 14.11.2006 reads as follows: “mi;ZqDr rF;ksa] lkf{k;ksa ,oa ifjfLFkfr;ksa ds fo’ys"k.k rFkk vfHkys[kksa ds voyksdu ls Li"V gS fd fnukad 19&08&2006 dks p;u LFky&fcgkj lSU; iqfyl&13] 3 njHkaxk ds iSjsM eSnku esa fcgkj lSU; iqfyl&13 njHkaxk esa vkjf{k;ksa dh fu;qfDr gsrq vH;fFk;ksa dh ”kjhfjd tkWp@p;u izfdz;k ds rgr~ ^maph dwn* esa tkWp dj jgs p;u&Ik"kZn ds lnL; dks /kks[kk nsdj ,oa vius in dk nq:Ik;ksx djrs gq, rFkk vfu;feRrk cjrrs gq, /kka/kyh dj voS/k jhfr ls vk0&621 lquhy dqekj ”kgh us vius Hkrhtk vH;FkhZ vejthr dqekj] firk&gsepUnz ”kgh] xzke&’;keiqj ekStk] Fkkuk& dkaVh] ftyk& eqtQQjiqj @nkSM+ dzekad&914@ vk0&694 jes” dqaoj us vius Hkrhtk vH;FkhZ lwjt dqekj firk Jh fefFkys” dqaoj] xzke cM+k Vksyk Fkkuk&eqQQfly] eksfrgkjh ftyk& iwohZ pEikj.k @ nkSM+ dzekad&9378@ ,oa goynkj xjhc izlkn esgrk us vius iq= vH;FkhZ jksfgr dqekj xzke&nkuuxj iks0 vks0 Fkkuk ,oa ftyk& [kxfM+;k @nkSM+ dzekad&9146@ ds vad ^maph dwn* dh tkap esa c<+ok fy;s gS tks loZFkk vuqfpr gS vkSj mu iqfyldfeZ;ksa dh dnkpkfjrk Hkz"Vkpkj] uSfrd iru ,oa vius in dk nq:I;ksx dj voS/k ykHk ikus ds nks"kh gksus dk ifjpk;d gS A Bu vkjksiks ds dkj.k izkjafHkd tkap ds dze esa gh goynkj xjhc izlkn esgrk] vk0 621 lquhy dqekj ”kgh] vk0 694 jes” dwaoj ,oa vk0 629 eks0 vQtkj [kka bl dk;kZy; ds Kkikad 301@xks00 fnukad 20&8&06 }kjk fuyafcr fd;s tk pqds gSa A varr%mi;qZDr rF;ksa ,oa ifjfLFk;ksa ds vkyksd esa fnukad 14&10&06 dks vkj{kh p;u Ik"kZn mRrjh eaMy] cksMZ] cksMZ la0&01 ds }kjk loZlEefr ls fy;s x;s fu.kZ; ds 4 vuqlkj vius&vius vfHkHkkod iqfyldehZ ds in ds nq:Ik;ksxiwoZd voS/k ,oa vuSfrd lg;ksx ls ^maph dqn* esa vf/kd vad izkIr dj ysus ds dkj.k vH;FkhZ vejthr dqekj @nkSM+ dzekad&914@ vH;FkhZ lwjt dqekj@ nkSM+ dzekad 9378@ ,oa vH;FkhZ jksfgr dqekj @nkSM+ dzekad 9146@ dh ik=rk jn~n dh tkrh gS vkSj ,rn~ fo"k;d lwpuk vko’;d dkjZokbZ gsrq iqfyl eq[;ky; dks Hksth tk jgh gS A /kka/kyh esa fyIr mi;qZDr goynkj ,oa vkjf{k;ksa ds fo:) visf{kr dkjZokbZ iwoZ esa gh izkjEHk dj nh xbZ gS A” (4)The aforesaid order was assailed by the appellant-writ petitioner in C.W.J.C. No.14747 of 2007. The learned Single Judge of this Court having examined the matter from all angles had recorded the following findings:- “The physical selection test was video graphed by the respondents. The impugned order states that the video film was reviewed by the Members of the selection committee on two dates. From the visual of the video film it transpired that both the petitioners had in fact jumped 4’7” only and were therefore entitled to three marks only but has wrongly been granted four marks by recording that they had jumped 4’10”. When the video film revealed discrepancy one mark has been deducted from each of them to bring them down from their uniform marks of 14 to 13 marks each. The petitioners were at the thresh hold of their entry into service in a Uniformed Disciplined Force. The controversy of their conduct which has cropped up at the stage of 5 their initial entry into service itself of which they were the direct noneficisries coupled with the video film prepared by the authorities on the basis of which the Selection Committee has founded its opinion, there is no occasion for the court to interfere on facts with the impugned order dt. 14.11.2006. Given the nature of the allegations supported by the video film this court in its discretionary jurisdiction is not persuaded to consider even the latter submission of the petitioners that even if they had secured 13 marks each they were still entitled for consideration for appointment on higher marks obtained amongst the candidates in the respective categories. To that extent the writ applications are dismissed. However, since the petitioners are stated to have filed representations, the dismissal of the writ petitions shall not inhibit the authorities from consideration of the same in their wisdom.” (5)It appears that the representation filed by the appellant-writ petitioner was once again gone into by the Chairman of the Selection Board, who had once again examined the whole issue at length and the same was rejected by giving the following reasons:- “EkSus vki nksuks vH;fFkZ;ksa @jksfgr dqekj ,oa lwjt dqekj@ ds }kjk lefiZr la;qDr vH;kosnu i= ds lkFk layXu ;kfpdkvksa esa ekuuh; iVuk mPp 6 U;k;ky; ds la;qDr fu.kZ; dk voyksdu fd;k A viuh ik=rk ds mDr fujlu ds fo:) vki nksuks us ekuuh; iVuk mPp U;k;ky; esa vyx vyx ;kfpdk nk;j dh Fkh tks dze”% lh0 mCyq0 ts0 lh0 ua0&14747@2007 ,oa 15280@2007 ls lacaf/kr gS A bu nksuks ;kfpdkvksa esa ekuuh; iVuk mPp U;k;ky; ds la;qDr fu.kZ; ds voyksdu ls Li"V gS fd ekuuh; U;k;ky; us bl ekeys esa gLr{ksi djus ls bUdkj dj fn;k gS] D;kasfd ,d onhZ/kkjh vuq”kaflr iqfyl cy esa izos” ds foUnq ij gh vki nkSuksa dk pfj= lafnX/k ik;k x;k ftldh iqf"V fofM;ksxzkfQd dSejs ds iznZ”u ls Hkh gqbZ A ,slh fLFkfr esa ekuuh; iVuk mPp U;k;ky; us vki nksuksa dh ik=rk ds fujlukns” lEcU/kh esjs mDr vkns”] tks bl dk;kZy; ds Kkikad&472/ xks0] fnukad&14&11&2006 ls lacaf/kr gS] esa fufgr rF;ksa esa gLr{ksi djus ls badkj dj fn;k gS A ;g ckr lR; gS fd vki nksuks dks ^mWph dwn* dh tkWp esa rhu rhu vad izkIr gq, gS vkSj ^yEch dwn* rFkk ^xksyk iz{ksi* izR;sd esa ikWp ikWp vad feys gSa ftlls vki nksuks dks dwy feykdj rsjg rsjg vad izkIr gq, gS A ;g Hkh lR; gS fd 13 vad ls de vad/kkjh vH;FkhZ Hkh bl okfguh esa vkj{kh in ij fu;qDr gq, gSa] rFkkfi vki nksuks ds }kjk vius vius vfHkHkkod ,oa vU; iqfyldfeZ;ksa ds voS/k vkSj vuSfrd lg;ksx ls vkj{kh p;u Ik"kZn] mRrjh eaMy] cksMZ la0&1 ds lnL; dks /kks[kk nsdj NyiwoZd ^mWph dwn* dh tkWp esa ,d ,d vad c<+k ysus dk vkjksi izekf.kr gqvk gS]tks fu%lUnsg ,d vkijkf/kd d`R; gS A blfy, 7 orZeku ifjfLFkfr esa vki vH;kosnd vH;Fkh jksfgr dqekj @nkSM+ dzekad&9146@ ,oa vH;FkhZ lwjt dqekj @nkSM+ dzekad&9378@dks fcgkj lSU; iqfyl&13] njHkaxk okfguh esa flikgh in ij fu;qDr ugha fd;k tk ldrk A vr%mDr ifjfLFk;ksa ds vkyksd esa vki nksuks dk la;qDr vH;kosnu vLihd`r fd;k tkrk gS A” (6)This order dated 2.8.2008 rejecting prayer of the appellant-writ petitioner was again assailed by the petitioner in the connected writ petition, C.W.J.C. No.15257 of 2009 and as his luck would have it, the same was once again heard and dismissed by this Court by the impugned order under appeal dated 27.4.2009, which had earlier also dismissed the writ application of the appellant-writ petitioner by an order dated 3.3.2008 in C.W.J.C. NO.14 of 2007. The aforesaid impugned order dated 27.11.2009 reads as follows:- “The petitioner came to this Court earlier in C.W.J.C. No.14747 of 2007. This Court by a reasoned and considered order declined interference in the matter on merits with regard to his claim for appointment. The petitioner was, however, in his wisdom, left to pursue his representation. Once this Court declined 8 interference on merits by a reasoned and speaking order any order of the authority on such representation shall not be a justification to sit over its own judgment and start a re-analysis of the case. The application stands dismissed.” (7)Mr. Tarun Kumar Sinha, learned counsel appearing on behalf of the appellant-writ petitioner whiled assailing the aforementioned order of the learned Single Judge has submitted that once the authority while rejecting representation of the appellant-writ petitioner had accepted that the candidates securing 13 marks in the physical test were selected and appointed on the post of constable and the discrepancy in the physical test to the advantage of the appellant-writ petitioner was at best of one mark, he would still be entitled tobe selected and appointed even if all the findings recorded against him were accepted in toto, inasmuch as, others having obtained 13 months have been appointed and are continuing in service. He has, therefore, proceeded to advance his submission that the learned Single Judge ought to have gone into correctness of the findings recorded in the impugned order rejecting representation 9 of the appellant-writ petitioner instead of sticking to his own earlier views recorded earlier on 3.3.2008 while dismissing the previous writ application of the appellant- writ petitioner. (8)Per Contra, counsel appearing on behalf of the State has submitted that once there was a clear proof of misconduct and/or misdemeanor on the part of the appellant-writ petitioner to have become a party in getting the marks changed and inflated with the help of some of the officers of the Selection Board and his candidature itself had been cancelled by order dated 14.11.2006, there was no question of his being appointed on the basis that the persons securing 13 marks or even less had been selected and appointed on the post of constable in the B.M.P. (9)Having considered the rival submissions of both the parties this Court is of the view that once writ petition of the appellant-writ petitioner in C.W.J.C. No.14747 of 2007 was dismissed on merit by order dated 3.3.2008 by recording that his misconduct of getting selected by adopting foul and unfair means on account of 10 mal practices adopted for inflating his marks of selection test had been established there was no question of consideration of his case on merits by reconsidering/reappraising the reasons in the order rejecting their representation which was made subject matter of second writ petition. The observations for consideration of the representation of the appellant-writ petitioner made in the order dated 3.3.2008 was also not capable of reopening the case of the appellant-writ petitioner on merits and in fact the Chairman of the Selection Board had said nothing in favour of the appellant-writ petitioner which could have made the learned Single Judge to take a different view. (10)This Court can also not be oblivious of the fact that the selection procedure is sought to be vitiated by the candidates for obtaining appointment by resorting to unfair means. Here in this case videography of selection of the petitioner had clearly shown that his marks awarded in course of physical test was sought to be inflated by the aid and abetement of some of the members of the Selection Board. The order of the 11 Chairman of the Selection Board cancelling candidature of the petitioner also deals the action taken against such officers who were placed under suspension for committing misconduct in helping the candidates including the appellant-writ petitioner in getting their marks inflated/increased. In such a situation, the plea of learned counsel for the appellant-writ petitioner that the Chairman of the Board ought to have only punished such erring officials and not the candidates and the appellant- writ petitioner ought to have been appointed by reducing one mark which was allegedly inflated, seems to be one of desperation. The appellant-writ petitioner should not forget that he was aspirant for a job in uniformed service where maintaining of discipline and integrity of utmost importance. The respondents therefore having an authentic proof of the appellant-writ petitioner being a party to such misdeed/misconduct in resorting to mal practices for getting marks of physical test inflated with the aid and abetement of some of the members of the police force assigned with the task of selection could not have been forwarded with a direction for his selection 12 and appointment of an indisciplined person like the appellant-writ petitioner. Issuance of writ of certiorari by this Court under Article 226 of the Constitution is always a discretionary remedy and it cannot be claimed as a matter of right by a person who has tainted character and/or is found to have indulged in mal practices for getting his selection and appointment made by taking recourse to unfair means. We have also carefully examined the reasoning given in the order of the Chairman of the Board rejecting prayer of the petitioner and would find nothing objectable muchless arbitrary so as to take a different view in the matter. (11)As a matter of fact, once candidature of the appellant-writ petitioner was cancelled by order dated 14.11.2006 and that order was also affirmed by this Court by dismissing his writ petition, C.W.J.C. No.14747 of 2007 by a reasoned order dated 3.3.2008 the matter should have been allowed to rest there by the appellant-writ petitioner. This Court, therefore, was perfectly justified in taking into account the earlier inter- party order dated 3.3.2008 into consideration while 13 examining correctness of the impugned order rejecting representation of the appellant-writ petitioner for the same relief. (12)For the reasons indicated above, we find no merit in this appeal and the same is accordingly dismissed. There shall be, however, no order as to costs. (Dipak Misra, C.J.) (Mihir Kumr Jha, J.) Patna High Court. The 7th April, 2010. Abhay Kumar/NAFR.