Deepak Kumar vs State Of Jharkhand

Deepak Roshan, J.

The instant writ application has been preferred by the petitioner praying therein for the following reliefs:

i. For a direction upon the respondents to quash the information sent by J.P.S.C. through mail dated 31.07.2024 (Annexure-4) regarding Civil Judge (Junior Division) Regular Advertisement No.22/2023 P.T. Result whereby and where under it has been informed the petitioner has claimed no reservation so considered as un-reserve and un-reserve cutoff is 75 and the petitioner obtained 36 marks in P.T. Examination.

ii. For a direction upon the respondents to publish the result of Civil Judge (Junior Division) Regular Advertisement No.22/2023 P.T. of the petitioner afresh considering him candidate of Schedule Caste and declare him successful in Preliminary Test of Civil Judge (Junior Division) Regular Advertisement No.22/2023 as cutoff for Schedule Caste is 32 and the petitioner has obtained 36 marks.

It has been submitted by Dr. Vandana Singh representing the petitioner that the respondents issued an advertisement vide Advertisement No.22/2023 (Annexure-2) dated 14.08.2023, published in its website and invited applications for the post of Civil Judge (Junior Division).

Pursuant to the said Advertisement (Annexure-3), the petitioner, being a law graduate, filled application form for Preliminary Test for the said post. However, the petitioner received a mail from Jharkhand Public Service Commission (hereinafter to be referred as JPSC) on 31.07.2024 (Annexure-4), wherein he was informed that since he had claimed no reservation, so he was considered as UNR (unreserved) and the UNR cut-off was 75 and he had obtained only 36 marks.

It has been further submitted by the Counsel that the petitioner is a member of Scheduled Caste as would be evident from the Caste Certificate issued by the Deputy Commissioner, Koderma (Annexure-6) and he got the cut-off from the website of JPSC wherein cut-off under Scheduled Caste category is only 32 (Annexure-5). Since the petitioner belonged to Scheduled Caste, he made representation on 06.07.2024 and 29.07.2024 (Annexure-7 series) for publication of his result but till date no result under Schedule Caste has been published.

She further contended that due to inadvertence, the petitioner had marked ‘NO’ at column 13 of the Advertisement Form which was regarding claim of Vertical/Horizontal reservation and for this mistake of his, he was denied the benefit of reservation which is not valid and has no legs to stand in the eye of law.

Mr. Abhay Prakash representing the respondent JPSC relying upon the counter affidavit had submitted that in Advertisement no. 22/2023, Clause 16 (ka) categorically mentions that “no reservation benefit would be allowed, if in application at the place specified no claim for reservation is made”. He further submits that the petitioner, while filling his application for the preliminary examination, wherein it was specified in the column ‘do you claim Vertical/Horizontal reservation’, the petitioner had opted for the option ‘No’. As such, he was not given the benefit of reservation and he was treated under unreserved category. As such, no error has been committed by the JPSC.

Having heard learned counsels for the parties and after perusing the averments made in the respective affidavits and the documents annexed therein, we are of the considered opinion that this application requires interference in view of the admitted fact that the Petitioner belongs to Scheduled Caste category and thus is entitled to reservation in terms of Article 16 (4) of the Constitution of India, which is a fundamental right and by no stretch of imagination, an inadvertent omission to mark ‘YES’ in the column of reservation, can waive of his fundamental right.

The act of the Respondent JPSC in treating the Petitioner, a member of the scheduled caste, as unreserved shall defeat the entire purpose of reservation which is a constitutional mandate. The Respondent JPSC, while considering the Petitioner to be of the unreserved category, have completely lost sight of the settled principle of law that there can be no waiver of a Fundamental Right. In this regard reference may be made to the case of Basheshar Nath v. CIT, reported in (1959) 35 ITR 190 wherein at para-15 the Hon’ble Apex Court has held as under:

“15. Such being the true intent and effect of Article 14 the question arises, can a breach of the obligation imposed on the State be waived by any person? In the face of such an unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the constitutional mandate merely because a person tells the State that it may do so? If the Constitution asks the State as to why the State did not carry out its behest, will it be any answer for the State to make that “true, you directed me not to deny any person equality before the law, but this person said that I could do so, for he had no objection to my doing it”. I do not think the State will be in any better position than the position in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State's above answer will be as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit. It seems to us absolutely clear, on the language of Article 14 that it is a command issued by the Constitution to the State as a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution. Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional mandate directed to the State.”

Emphasis supplied

It is also now well settled principle that there is no estoppel against the Constitution. In this regard reference may also be made to the case of Olga Tellis v. Bombay Municipal Corpn. reported in (1985) 3 SCC 545 wherein the Hon’ble Apex Court has held at para-28 as under:

“28. ……………..There can be no estoppel against the Constitution. The Constitution is not only the paramount law of the land but, it is the source and sustenance of all laws. Its provisions are conceived in public interest and are intended to serve a public purpose. The doctrine of estoppel is based on the principle that consistency in word and action imparts certainty and honesty to human affairs. If a person makes a representation to another, on the faith of which the latter acts to his prejudice, the former cannot resile from the representation made by him. He must make it good. This principle can have no application to representations made regarding the assertion or enforcement of fundamental rights. For example, the concession made by a person that he does not possess and would not exercise his right to free speech and expression or the right to move freely throughout the territory of India cannot deprive him of those constitutional rights, any more than a concession that a person has no right of personal liberty can justify his detention contrary to the terms of Article 22 of the Constitution. Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them, if those rights are violated. But, the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community. The Preamble of the Constitution says that India is a democratic Republic. It is in order to fulfil the promise of the Preamble that fundamental rights are conferred by the Constitution, some on citizens like those guaranteed by Articles 15, 16, 19, 21 and 29 and, some on citizens and non-citizens alike, like those guaranteed by Articles 14, 21, 22 and 25 of the Constitution. No individual can barter away the freedoms conferred upon him by the Constitution. A concession made by him in a proceeding, whether under a mistake of law or otherwise, that he does not possess or will not enforce any particular fundamental right, cannot create an estoppel against him in that or any subsequent proceeding. Such a concession, if enforced, would defeat the purpose of the Constitution. Were the argument of estoppel valid, an all-powerful State could easily tempt an individual to forego his precious personal freedoms on promise of transitory, immediate benefits……………………..”

As a matter of fact, the issue in the instant writ application is with regard to reservation and it purpose which has been dealt in detail in the case of Indra Sawhney v. Union of India reported in 1992 Supp (3) SCC 217 wherein at paras 146, 147 & 155, the Hon’ble Apex Court has laid down the law as under:

“146. The basic policy of reservation is to off-set the inequality and remove the manifest imbalance, the victims of which for bygone generations lag far behind and demand equality by special preferences and their strategies. Therefore, a comprehensive methodological approach encompassing jurisprudential, comparative, historical and anthropological conditions is necessary. Such considerations raise controversial issues transcending the routine legal exercise because certain social groups who are inherently unequal and who have fallen victims of societal discrimination require compensatory treatment. Needless to emphasis that equality in fact or substantive equality involves the necessity of beneficial treatment in order to attain the result which establishes an equilibrium between two sections placed unequally.

It is more appropriate to recall that “There is equality only among equals and to equate unequals is to perpetuate inequality.

The above illustration and analogies would lead to a conclusion that there is an ocean of difference between a well advanced class and a backward class in a race of open competition in the matters of public employment and they, having been placed unequally, cannot be measured by the same yardstick. As repeatedly pointed out, it is only in order to make the unequals equal, this constitutional provision, namely, clause (4) of Article 16 has been designed and purposely introduced providing some preferential treatment to the backward class………………...”

Having regard to the aforesaid facts and circumstances of this case coupled with the settled proposition of law, the information given by the JPSC through mail dated 31.07.2024 regarding Civil Judge (Junior Division) Regular Advertisement No.22/2023 P.T. result, whereby it has been informed that the Petitioner has since claimed no reservation, so JPSC has considered the same as unreserved, deserves to be, and is, hereby, quashed and set aside.

Consequently, the JPSC is directed to publish the result of Civil Judge (Junior Division) Regular Advertisement No.22/2023 P.T. of the Petitioner afresh considering him a candidate of Schedule Case and declare him successful in the Preliminary Test of Civil Judge (Junior Division) Regular Advertisement No.22/2023, as it is an admitted case that cut-off under Schedule Caste category is 32 and the Petitioner has obtained 36 marks.

As a result, the instant writ application stands allowed in the manner indicated hereinabove. Pending I.A., if any, also stands closed. However, there shall be no order to cost.