IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3402 of 2009 Manoj Kumar Pandit & Ors . Versus The State Of Bihar &Ors . with CWJC No.10958 of 2010 1. Budha Rai Tuddu S/O Lakhi Ram Tuddu R/O Room No.6, Chal No.1, Prathamesh Nagarchal, Fulpada, Gandhichowk, Birar (East), Distt.- Thane, Maharastra, Pin- 401303, At Present C/O Ela Prasad 'Nandan', Nageshwar Colony, Boring Road, Patna, P.S.- Kotwali, Distt.- Patna Versus 1. The State Of Bihar 2. The Collector Of East Champaran, Motihari 3. The Deputy Collector (District Nazarat) East Champaran, Motihari ----------- For the Petitioners:- Mr. Mrigant Mauli, Adv. Mr. Dewendra Narayan Singh, Adv. Mr. Vijay Kr. Sinha, Adv. For respondent nos. 13 to 31 :- Mr. Yogesh Chandra Verma, Sr. Adv. For respondent no. 21:- Mr. Harsh Anuj, Adv. For the State:- Mr. Saroj Kumar Sharma, Adv. Mr. Mohini Kumari, Adv. -------------- 4. 15.11.2011 Heard learned counsel for the petitioners, the State and for the private respondents. The nine petitioners are unsuccessful applicants for the post of Drivers in the East Champaran Collectorate at Motihari. They are aggrieved by orders dated 14.12.2008 and 30.10.2008 selecting and appointing the private respondents, except respondent no. 21. Respondent no. 21 has been impleaded as a precautionary measure lest the writ petition be defective for non impleadment of all selected candidates. 2 Advertisement No. 22 of 1999 was published on 29.12.1999 for appointment of 19 Jeep/Car drivers. Four posts were for the Scheduled Tribe, two for the Backward Caste, three for the Extremely Backward Caste and ten for the open category. The advertisement stipulated that the candidates along with their applications must enclose eligibility certificates, proof of age, experience certificate, a valid driving licence, proof of registration in the Employment Exchange and the caste certificate. It further stipulated that those who were not registered with the Employment Exchange may register themselves before the last date for submission of applications. Incomplete applications, those not registered with the Employment Exchange and applications submitted after the last date shall not be entertained. The eligibility prescribed required the candidate must be Class-VIII pass or maximum Matriculate. He must possess a valid driving licence along with a certificate of driving experience for minimum of five years. The age limit for the unreserved category was prescribed as 18 to 35 as on 31.10.1999, 38 to 40 for Scheduled Tribe and 18 to 37 for the Backward Caste/Extremely Backward Caste. 3 The requirement for an applicant to be registered with the Employment Exchange was not an essential condition. It was relaxable to the extent that a candidate could register himself before the last date and apply. In contradistinction the educational qualification prescribed, the possession of a valid driving licence and certificate for five years of driving experience were essential conditions. The advertisement did not contain any relaxation Clause. The conditions of an advertisement cannot be relaxed unless it contains a relaxation clause. Any selective relaxation contrary to the same violates Article 14 and 16 of the of the Constitution rendering the selections arbitrary as also denial of consideration to those who may also have applied if it were made known that that relaxation was permissible. Even if an across the Board relaxation is to be done, under no circumstances can an essential condition of the advertisement be waived or relaxed across the Board much less individually. The impermissibility for relaxation of essential conditions was observed in (2008) 7 SCC 153 (Pramod Kumar v. U.P. Secondary Education Services Commission) :- “18. If the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same 4 cannot be condoned. Such an act cannot be ratified. An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularised, particularly, when the statute in no unmistakable term says so.” The principle has again been noticed in (2005) 13 SCC 365 (Umrao Singh v. Punjabi University) holding :- “11…..The decision of the University subsequent to the last date of making the application and after the process of selection had started cannot, in any way, come to the assistance of the appellant Kewal Krishan. The eligibility criterion of passing the Punjabi examination was a condition which goes to the root of eligibility. By a subsequent decision that condition could not have been altered. 12. Another aspect which this Court has highlighted is the scope for relaxation of norms. Although the court must look with respect upon the performance of duties by experts in the respective fields, it cannot abdicate its functions of ushering in a society based on rule of law. Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification, the entire process of selection so far as the selected candidate is concerned gets vitiated. In P.K. Ramachandra Iyer v. Union of India this Court held that once it is established that there is no power to relax essential 5 qualification, the entire process of selection of the candidate was in contravention of the established norms prescribed by advertisement. The power to relax must be clearly spelt out and cannot otherwise be exercised.” The petitioners were applicants in the general category. The first select list published was challenged inter alia by the petitioners in C.W.J.C. No. 15257 of 2001/2000 of 2002/12901 of 2002. disposed on 23.3.2006. The order notices the anxiety of the Court that notwithstanding its directions and repeated opportunities the respondents, including the State authorities were not inclined to assist the Court by furnishing necessary instructions to their counsel. The Court observed : - “……. respondents have not filed any counter affidavit to show that any one of them have the requisite qualification and is validly appointed”. The conclusion was that the appointment of the 19 persons :- “was not fair and objective”. The “ concerned authority failed to apply its mind that they lacked either the required experience as a driver having valid licence …..”. 6 The select list was quashed. The directions for fresh consideration in accordance with law were restricted to the original applicants only. The order was confirmed in L.P.A. No. 286 of 2006 preferred by the aggrieved. Fresh select list has been published by the impugned orders. The petitioners assail the fresh select list primarily on two grounds. (a) those not meeting the essential eligibility under the original advertisement have been considered afresh under the garb of the orders of the Court by permitting rectification of defects in the application or acquisition of eligibility by passage of time. (b) after the orders of this Court the respondent authorities by policy decision have granted weightage for past work experience to daily wages in the department, though the original advertisement contained no such condition. It is urged that an applicant who did not fulfill essential conditions of the original advertisement had to be rejected outright. It was tantamount to no application at all. The direction for a fresh selection process cannot be interpreted to permit an opportunity to rectify an application which 7 at the very inception itself was void and not acceptable. The grant of weightage for past daily wage experience was a variation of the advertisement after the selection process had commenced. Referring to the deliberations dated 12.9.2008 preceding the final order dated 30.10.2008, the contention was that the recitals themselves are disclose the apparent illegality of action in selection throwing to the wind statutory provisions of the Central Motor Vehicles Act, 1988 and the Central Motor Vehicles Rules, 1989 (hereinafter referred to as the Act and the Rules) by introducing assumptions and presumptions of convenience when the law clearly provides to the contrary. Learned counsel for the State submitted that the consideration has been done afresh under the orders of the Court. This Court had noticed that it was also the case of the parties that their experience on daily wages has been ignored. The respondents bona fide believed that any defect which may have existed in an original application could now be rectified, if possible, by passage of time as the selection process had been advanced to a future date. The submission on behalf of the private 8 respondents was that the controversy has continued since 1999. The matter relates to appointment on the post of Driver. There have been no allegations for deficiency in discharge of duties by them after joining. They are not highly qualified posts. Sympathy, compassion and equity shall all have to be weighed by the Court. Any interference at this stage shall render them unfit for employment elsewhere because of their advancing age. This Court under Article 226, in a given case, even if it were to find the action to be wrong, still it may not interfere in the particular facts and circumstances of the case. The essential conditions of the original advertisement and the impermissibility of relaxation have already been considered. Applications not fulfilling essential conditions had to be rejected outright. The question of consideration or relaxation does not arise. Valid and invalid applications formed separate class. Unequals cannot be put at par as equals. Article-14 of the Constitution prohibits the same. If the applicant did not meet the essential conditions and it was wrongly entertained, the action was void ab initio from inception. The conditions of 9 the advertisement itself prohibited rectification by rejection. An action initially void is incapable of ratification or rectification. The question of assuming such an application to have become valid by passage of time does not arise. It has been held in (2011) 3 SCC 436 (State of Orissa v. Mamata Mohanty) :- “37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be non est and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin.” The original select list not upheld in C.W.J.C. No.15257/2001 (presently at Annexure-3) included some of the private respondents at serial Nos. 1, 2, 9, 10, 12 and 13. Serial No. 1 did not submit proof of driving experience of five years. Serial No. 2 possessed a driving licence for a duration of less than five years. He had also not 10 submitted clear proof of his driving experience. Serial No. 9 is an exception, the controversy for his appointment may only figure with regard to his reserved status, but not issues of essential ineligibility. Serial-10 did not meet the condition of five years of driving experience. Serial Nos. 12 and 13 also did not fulfill the five years of driving experience and did not hold a valid licence respectively. Except for Serial 9, the others did not fulfill the essential conditions of the advertisement and their applications could not have been entertained. In L.P.A. No. 1250 of 2011 arising out of C.W.J.C. No. 18590 of 2010 the denial of reserved status to such applications not submitted from the appropriate authority specified in the advertisement has been upheld after considering a Full Bench decision of this Court in 1998(3) PLJR 34, holding that the conditions of the advertisement were required to be complied with strictly. In C.W.J.C. No.15257/01, after setting aside the selection, the fresh process of selection was confined only to those who were applicants under the original advertisement. This has to be understood as confining it to those whose 11 applications were valid at the very inception of the process. No Court of Law can give any directions for consideration of candidates contrary to law. The Court gave no such directions for relaxation. The allegations noticed were of ineligible persons being considered. The aspects of essential conditions of eligibility and that they could not be relaxed or waived were not raised and decided. The direction for selection “afresh” cannot be stretched to a breaking for holding that those whose applications had been accepted wrongly could also now be considered either by relaxation as having been fulfilled by passage of time or by permitting rectification/removal of defects. The Court did not give any directions of a nature bringing forth the relevant date for fulfillment of conditions to the date of its order. Under the garb of the orders of the Court, the respondents cannot by a fiction seek to resurrect a state of affairs which did not exist as on the original date of the advertisement under which the selections were required to be made. It is held that those who did not fulfill the essential conditions of eligibility under the original advertisement were ineligible to be considered from 12 the inception and cannot be considered in the garb of the orders of the Court by permitting them to remove the original deficiencies and turn an invalid application into a valid application. The minimum age permissible under Section 4 of the Act for a driving licence is 18 years. Rule 4 prescribes the nature of evidence to be furnished in support of age. It specifies a school certificate or a birth certificate or a certificate granted by a registered medical practitioner not below the rank of the Civil Surgeon. The Proviso to the Rule states that where an applicant for sufficient reason is not able to produce any of the aforesaid proof the authority may accept an affidavit sworn by the applicant before an Executive Magistrate, or a first class Judicial Magistrate or a notary public as evidence of age. The Proviso cannot supplant the Rule and is an exception. There has to be an application of mind by the licensing authority to his satisfaction of the reasons for non production of the specified documents in proof of age only whereafter the Proviso shall operate. The true effect and interpretation of a Proviso has been explained in 1992 Supp (1) SCC 304 (A.N. Sehgal v. Raje Ram Sheoran):- “14. It is a cardinal rule of 13 interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms.” The deliberations dated 12.9.2008 culminating in the impugned order dated 30.10.2008 raises more questions than it answers. If an applicant relied on the proviso to Rule-4 and had submitted an affidavit of age, obviously, that is the date of birth which was required to be mentioned in the driving licence. If the driving licence submitted was issued without age, it means no affidavit had been filed, much less any other document of age submitted. The defect is incapable of rectification. It was no driving licence in the eye of law. Those not meeting the years of driving experience or failed to submit proof in support thereof fall in the category of ineligible or incomplete applications. The Court finds no error in the subsequent 14 decision to grant weightage for past work experience on daily wages amongst the original applicants as it does not deviate from any essential condition of the advertisement. These are policy matters not to be interfered with by the Court unless shown to be patently arbitrary. The source of the authority is to be found in the order of the Court in C.W.J.C. No.15257/01. The present discussion satisfies the Court that matters appear to be far beyond the refrained observation of the Court in C.W.J.C. No.15257/01 that the selection process was not “fair and objective”. The indelible impression is that the entire selection process from the inception appears to have been grossly distorted. Whether it was deliberate abuse of authority or not to favour anyone contrary to the law is left open. Learned counsel for the private respondents has relied on an order of this Court in C.W.J.C. No. 6711 of 2009 preferred by certain others aggrieved like the petitioners. It is submitted that on 22.6.2009 the matter was remanded to the Commissioner who has subsequently upheld the selections. The order of the Commissioner dated 14.11.2011 has been placed on record in a 15 supplementary counter affidavit filed on behalf of the respondent no. 21. Suffice it to state that it proceeds only on the premise of an advertisement published and the earlier directions of the Court. The questions of law and fact considered presently do not appear to have been raised much less considered by the Commissioner. The order of the Commissioner is contrary to law. But, it can easily be cited by the concerned to justify the order in their favour. It is the duty of this Court to set aside an order brought to its notice, which is contrary to the law to prevent it from being cited as a precedent. The principle has been explained in (1996) 7 SCC 444 (G.M., Telephones v. V.G. Desai) holding : - “15……It is no doubt true that the power of this Court under Article 136 of the Constitution is to be exercised sparingly and the Court does not ordinarily interfere with the orders of the Tribunal on individual disputes. But since the possibility of the impugned judgment being used as a precedent in future, cannot be ignored we feel that the impugned judgment of the Tribunal dated 27-4-1992 cannot be allowed to stand and the matter calls for interference of this Court under Article 136 of the Constitution…...” The order of the Commissioner dated 14.11.2011 is therefore set aside. 16 The Court having noticed gross illegality cannot shut its eyes and the need for justice by holding that persons may get affected now. In conclusion, such original applications which did not fulfill any of the essential conditions (Educational qualifications, valid driving licence, five years of driving experience and certificate in respect thereof) at the inception have to be rejected outright. They derive no benefit from the earlier order of the Court. The vacancies as per the roster in the advertisement shall be worked out afresh. The respondents are directed to re-draw the select list keeping in mind also the select list dated 2.1.2008, confining the selection process only to those whose applications were valid at the inception. It is not without reason that issues such as the present assume the form of litigation surface with regard to class-3 and 4 posts only. The present controversy traces its history back to 1999. It is time the controversy is given a quietus. The orders dated 14.12.2008 and 30.10.2008 are set aside. Mandamus is issued to carry out the fresh exercise in the manner directed within a maximum period of two months from the date of receipt and/or 17 presentation of a copy of this order. It has been submitted on behalf of the private respondents that in any event further vacancies exist on which the parties can be accommodated/adjusted. There is no occasion for the Court to make any observation on the same. Suffice it to state that subject to fulfillment of conditions of eligibility at inception and based on the merit position in the select list, the respondents shall do necessary re-structuring of appointments of the selected candidates. The writ application stands allowed. C.W.J.C. No. 10958 of 2010 stands disposed in similar terms. P. Kumar ( Navin Sinha, J.)