Dhirubhai Naranbhai Patel, J. - (1.) This Letters Patent Appeal has been preferred against the judgment and order, delivered by the learned Single Judge in W.P.(S) No. 3364 of 2013 dated 18th January, 2014 whereby, the writ petition preferred by respondent No. 1 was allowed and the order of dismissal dated 14.10.2012 and the appellate order dated 14.04.2013 were quashed and set aside and the present appellants were directed to reinstate respondent No. 1 with full back wages.
(2.) Factual Matrix " Public advertisement was issued on 13th January, 2004 and the applications were invited for the post of Constable by the State of Jharkhand. Those, who were Home Guards they can also apply for the post in question. Last date of submission of application was 15th February, 2004. Respondent No. 1 (original petitioner) filled up the form and as per column 10 of the said application form there was need to annex certificate of Home Guard. The respondent enrolled as a Home Guard and was getting his training. His training was to be completed on 15th March, 2004. The training period was of 45 days and during the course of training of Home Guards the respondent (original petitioner) filled up the form and submitted the same and instead of certificate of Home Guard, identity card of Home Guard was annexed. The respondent cleared all types of tests and ultimately, was appointed on the post of Constable under the reserved seats for Home Guards. As per Rule 663 of the Jharkhand Police Manual enacted under Sec. 7 to be read with Sec. 12 of the Police Act, 1861 for appointment on the post of Constable, Trained Home Guard can be appointed and if a candidate is Trained Home Guard there will be 50% reservation. The training of the respondent (original petitioner) was going on as on last date of application i.e. on 15th February, 2004 and instead of certificate of Home Guard, identity card of Home Guard was annexed and got the benefit of 50% reservation quota. When the identity card was sent for verification, it was found that the respondent (original petitioner) had never completed the training at all of Home Guard as on 15th February, 2004, which was the last date for preferring an application, for the post of Constable, in pursuance of the public advertisement dated 13th January, 2004. Therefore, chargesheet dated 2nd April, 2012 was issued upon the respondent which is annexed at Annexure -3 to the memo of this L.P.A. Thereafter, enquiry was conducted and after giving adequate opportunity of being heard to the respondent ultimately, charges levelled against the respondent -delinquent employee were held as proved, as per the enquiry officer report dated 30th August, 2012 (Annexure -6 to the memo of this L.P.A.) The disciplinary authority issued 2nd show cause notice dated 8th September, 2012 (Annexure -7 to the memo of this L.P.A.) and after again giving adequate opportunity of being heard the disciplinary authority i.e. the Superintendent of Police, Seraikella -Kharsawan dismissed the respondent from the services of police vide order dated 14th October, 2012 (Annexure -9 to the memo of this L.P.A.). The respondent -delinquent employee preferred departmental appeal before the Deputy Inspector General, Kolhan Range, Chaibasa, who dismissed the appeal of the respondent vide order dated 14th April, 2013, which is at Annexure -11 to the memo of this LPA. Hence, respondent No. 1 (original petitioner) preferred writ petition being W.P.(S) No. 3364 of 2013 challenging the order of dismissal dated 14th October, 2012 (Annexure -9 to the memo of this L.P.A.) as well as the order, passed by the Appellate Authority dated 14th April, 2013 (Annexure -11 to the memo of this L.P.A.). The writ petition was allowed by the learned Single Judge vide order dated 18th January, 2014 and hence the original respondent i.e. the State of Jharkhand has preferred this Letters Patent Appeal."
(3.) Arguments canvassed by the counsel for the appellants: " Learned Additional Advocate General of the State has submitted that no error has been committed by this appellant in holding the enquiry and adequate opportunity of being heard was given to the respondent. The chargesheet was given, thereafter enquiry officer was appointed and on the basis of the evidence on record, Enquiry Officer has given his report dated 30th August, 2012. The charges levelled against the respondent have been proved. Even 2nd show cause notice was given before the disciplinary authority passed an order imposing the punishment, thereafter the respondent has also preferred departmental appeal. Thus, there is no procedural defect in holding the enquiry and in giving adequate opportunity of being heard to the respondent. It is submitted by the State -Additional Advocate General that this Court is not sitting in an appeal against the enquiry officer's report and hence, this aspect of the matter has not been properly appreciated by the learned Single Judge. Learned Additional Advocate General of the State has submitted that the respondent had applied for the post of Constable and when he was filling up the form, it was the duty of the respondent to supply the correct facts to the State. As per column 10 of the application form it was the duty of the respondent (original petitioner) to point out that he has no certificate of Home Guard, but, deliberately and with all purposes by misguiding the State, identity card of Home Guard was annexed. It is true that the State has to take work from honest hand and few may be dishonest. Honest may be lethargic and dishonest may be enthusiastic. There may be permutation and combination of these types of officers in the State, partly due to inadvertence and partly due to negligence, the immediate action could not be initiated by this appellant -State against the respondent and the respondent was wrongly appointed as a Constable, but, the fact remains that the respondent has misguided the State as he has failed to give Home Guard certificate as required under column 10 of the application form and he has also misrepresented the fact before the State and later on upon verification, it was found out that as on the last date of application i.e. on 15th February, 2004, he had not completed the training of Home Guard and hence, wrongly the form was filled up. This was charge No. 1 upon the respondent which has been held as proved by the Enquiry Officer. It is also contented by the Additional Advocate General of the State that as per Rule 663 of the Jharkhand Police Manual, enacted under Sec. 7 to be read with Sec. 12 of the Police Act, 1861, those Home Guards, who are trained will have reservation of 50% for the post of Constable. Thus, this is a conditional reservation. Training is conditional for these types of reservation. Admittedly, respondent had not completed the training of Home Guard as on the last date of filling up of the form i.e. on 15th February, 2004. The respondent completed his training on 15th March, 2004, but, wrong facts were supplied in his application and hence, wrongly he availed the benefit of reservation of 50% of the total seats of the Constable which were reserved for the Trained Home Guards. 'Identify Card' and the 'Training Certificate' are not synonyms of each other. The learned Single Judge has failed to appreciate this aspect of the matter as stated in para -8 of the impugned judgment. In Hindi language, as used in the advertisement published on 13th January, 2004, the words used were , whereas the respondent -delinquent employee had annexed . Thus, instead of 'Certificate' of Home Guard, 'Identity Card of Home Guard was annexed. This is what is mentioned in para -9 of the impugned judgment. The learned Single Judge has allowed the writ petition mainly on the ground that instead of certificate , identity Card can also be submitted. This is an error apparent on the face of the record. Training has direct nexus with 50% reservation. Training of Home Guards is a condition precedent for 50% reservation. Identity Card can be given, those who are taking training whereas, Certificate of Home Guards can be given only upon successful completion of training and therefore, aspiring candidates especially those, who are claiming 50% reservation for Home Guards have to give certificate of Home Guards and not mere identity card . This aspect of the matter has not been properly appreciated by the learned Single Judge and hence, the judgment and order passed by the learned Single Judge deserves to be quashed and set aside. Learned Additional Advocate General for the State has also taken this Court to various columns of the application form including column - 9 and 10. Column -9 relates to Scheduled Castes and Schedule Tribes certificate to be supplied by those candidates, who are seeking benefit of the reservation for Scheduled Castes and Scheduled Tribes and Backward Classes etc. and Column -10 of the application is for those candidates, who are seeking reservation for the Home Guards. Nonetheless, fact remains that in both the eventualities, i.e. for those, who are claiming benefit under Schedule Castes and Scheduled Tribes reservation or under the column -10 for Home Guards, they have to supply 'Certificate' and not the 'Identity Card'. This aspect of the matter has not been properly appreciated by the learned Single Judge and hence, the judgment and order passed by the learned Single Judge deserves to be quashed and set aside. It is also submitted by the learned Additional Advocate General for the State that even if there is some laches in the public advertisement, but, if the rules require for reservation of Home Guards that candidate must be Trained Home Guards, the rule shall prevail upon the advertisement. Rule 663 of Jharkhand Police Manual prescribes conditional reservation i.e. if there is a Trained Home Guard and if he applies for the post of Constable then only there will be 50% reservation. The word 'Trained' has not been mentioned in the public advertisement, which is at Annexure -1 to the memo of this Letters Patent Appeal, but, that does not mean that Rule 663 of the Jharkhand Police Manual is not applicable. Rule shall always prevail over the advertisement and shall be binding to the respondents as well as the appellants. Mere error in the public advertisement cannot rule out the applicability of the Rules. To fortify this contention, counsel for the State has relied upon the decision of Hon'ble Supreme Court reported in : (2006) 9SCC 507. This aspect of the matter has not been properly appreciated by the learned Single Judge while deciding the writ petition and hence, the judgment and order passed by the learned Single Judge deserves to be quashed and set aside.";