Jharkhand High Court
Pankaj Kumar vs State Of Jharkhand & Ors on 13 October, 2017
Author: S.N. Pathak
Bench: S. N. Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No.5147 of 2010
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Pankaj Kumar, son of Ishwar Das, resident of Niyatoli Chowk, Pathalkudwa, P.O.
G.P.O., P.S. Lalpur, District Ranchi.
... ... Petitioner
VERSUS
1. The State of Jharkhand.
2. The Secretary-cum-Examination Controller, Jharkhand Public Service Commission,
Govt. of Jharkhand, Ranchi.
3. The Secretary, Personnel, Administrative Reforms & Rajbhasha Department, Govt.
of Jharkhand, Ranchi.
4. The Deputy Secretary, Personnel, Administrative Reforms & Rajbhasha Department,
Govt. of Jharkhand, Ranchi.
5. The Director-in-Chief, Sri Krishna Public Administration Instittution, Govt. of
Jharkhand, Ranchi.
6. The Joint Director, Sri Krishna Public Administration Instittution, Govt. of
Jharkhand, Ranchi.
... ... Respondents.
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For Petitioner : Mr. Sumeet Gadodia, Advocate
Mr. Ranjeet Kushwaha, Advocate
Mr. Ritesh Kumar Gupta, Advocate
For Respondent-State : Mr. L.C.N. Shahdeo, GP
Mr. Jyoti Nayan, JC to GP
For Respondent-JPSC :
Mr. Sanjoy Piprawall, Advocate
Mr. Divyam, Advocate.
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CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
C.A.V. on 05.10.2017 Pronounced on 13/10/2017
Dr. S.N. Pathak, J. Heard learned counsel for the petitioner and learned counsel for the
respondents.
2. The petitioner has approached this Court with a prayer for a
direction upon the respondents to issue letter of appointment to the petitioner
in respect of 3rd Combined Civil Services Examination, 2008 in view of the
fact that his name duly appears in the final selection list/ result of the said
examination and is also otherwise duly qualified and eligible for the purpose of
appointment.
2
FACTUAL MATRIX
3. The factual exposition as has been delineated in the writ petition is
that an advertisement was brought out at the instance of the Secretary-cum-
Examination Controller, Jharkhand Public Service Commission, Ranchi (for
short "JPSC, Ranchi"), in the local vernacular being Advt. No. 11/2007 dated
06.11.2007, whereby the applications were invited for appearing in the preliminary examination in the 3rd Combined Civil Services Examination, 2008, wherein advertisement specified the eligibility criteria, qualification and attributes required from the candidates willing to appear in the said examination. It is the specific case of the petitioner that he had applied for the said examination and allotted Roll No. 1109446 for appearing in the preliminary examination. Thereafter, the petitioner duly appeared in the said examination and successfully cleared the same. Thereafter, the petitioner appeared in the mains examination in which also was declared successful and the result of which was published on 15.06.2010 in the local vernacular. Subsequently, the petitioner underwent the interview and again successfully cleared the same and thereby got himself selected for appointment after his roll number duly appeared in the provisional list of successful candidates in 3rd Combined Civil Services Examination, 2008. Intimation regarding selection for appointment was made by way of a notice published in the local vernacular on 04.08.2010 and accordingly, he was required to appear on 07.08.2010 between 10:00 A.M. to 05:00 P.M. along with his education certificates/ mark sheets, caste certificates, residential certificates and other relevant certificates in the Sri Krishna Public Administration Institution, Mayors Road, Ranchi along with an affidavit to be declared before the Executive Magistrate/ Sub- divisional Magistrate for the purpose of verification of the same. It is further submitted that the petitioner duly went for verification of his certificates and affidavit to Sri Krishna Public Administration Institution, Mayors Road, Ranchi on 07.08.2010, where his certificates and other essential documents were verified which sufficed the purpose and thereafter, the petitioner got an information from the office of Director-in-Chief, Sri Krishna Public Administration Institution, Mayors Road, Ranchi on 07.08.2010 that he was to undergo the training which was to start from 12.08.2010 and onwards and the appointment letters were to be distributed on the same day at 10:00 A.M.
4. The petitioner thereafter went to undergo his training on 12.08.2010 but to his utter surprise he was not handed over with any appointment letter on the above mentioned date. Nevertheless, the petitioner being optimistic kept on 3 waiting for his appointment letter for several days but to his dismay, he was not issued any appointment letter by the respondent authorities thus worsening the things for him. Subsequently, a notification was brought out by the Personnel, Administration Reforms & Rajbhasha Department being notification No. 4836 dated 11.08.2010, whereby it has been clarified that the petitioner was not given a place in the list of candidates who were finally appointed and who were required to undergo their training at Sri Krishna Public Training Institution, Ranchi. The said notification slammed all the doors of hope hard on the face of the petitioner and he had no option left with him but to avail the other suitable remedies for the redressal of his grievances.
5. Being utterly disappointed, the petitioner made a representation before the Chief Secretary, Personnel, Administrative Reforms & Rajbhasha Department dated 28.08.2010, wherein he categorically stated that he was selected for the State Administrative Services after having successfully completed the 3rd Combined Civil Services Examination, 2008 under reserved quote since he belongs to Scheduled Caste. Since the petitioner had not got any response whatsoever from the respondent-authorities hence, he was baffled regarding the inadequacy he had in him by reason of which he was deprived of the appointment letter. It is further submitted that the respondents were not issuing him the appointment letter because of some kind of confusion as regards to his selection in the 'reserved quota'. Thereafter, the petitioner made representation categorically mentioning therein that he was already working against the post of Assistant Teacher under Jharkhand Education Department prior to Reorganization of Bihar and that his appointment in the said post was also made under the reserved (ST/SC) quota. In the said representation he has also mentioned the decision taken by the Personnel, Administrative Reforms & Rajbhasha Department which clarifies that those candidates who had been appointed under the reserved quota prior to the Reorganization of Bihar would continue to remain under the reserved quota. However, no heed was paid to his said representation. The petitioner had also made a representation dated 14.08.2010 to His Excellency, the Governor of Jharkhand as regards to his appointment in which it was clarified that he was working against the post of Assistant Teacher, Govt. of Jharkhand in erstwhile State of Bihar and his appointment at the relevant time was made under reserved quota. In his said representation he further clarified that he had been permanently residing in the District of Ranchi since 1989, and had done his Graduation from Ranchi itself. He further mentioned that his name appears in the voter list of Ranchi Vidhan 4 Sabha from 1994 and onwards. Lastly, the petitioner made request to consider his case for appointment. This representation of the petitioner also remained unanswered. When nothing was heard from the respondents regarding the candidature of the petitioner on reserved quota, the petitioner was compelled to knock the door of this Court.
6. Mr. Sumeet Gadodia, learned counsel appearing for the petitioner strenuously urges that the respondents have illegally and arbitrarily not issued appointment letter though he was duly qualified and his name figured in the select list published by the respondent-JPSC. Learned counsel further argued that even the letter issued on 14.08.2008 by the Principal Secretary, Personnel, Administrative Reforms & Rajbhasha Department, Govt. of Jharkhand, Ranchi clearly speaks of government employees who have been appointed under the reserved quota before the Reorganization of the State of Bihar shall continue to remain under reserved quota and the same shall remain unaffected. Learned counsel further argued that the respondents are depriving the petitioner of his fundamental rights by not issuing the appointment letter though he fulfills all the eligibility criteria of the said purpose. It was further argued that the petitioner is not being treated in the same manner as the candidates whose names have appeared in the final results are being treated and the acts of the respondents suffer from arbitrariness. Learned counsel further argued that the petitioner has fulfilled all the criteria which was necessary for issuance of Caste Certificate and the Sub-divisional Officer, Ranchi, after being satisfied on the forwarding of the Headmaster and service book, had issued the caste certificate of the petitioner. Above all the petitioner was born in the territorial jurisdiction of the State of Jharkhand at Sitagarh, Hazaribagh in the year 1974 itself and the petitioner has obtained entire education from the State of Jharkhand and under no stretch of imagination, petitioner can be deprived of his rightful claim for getting appointment on the reserved category as he fulfilled the entire criteria and was declared successful.
7. To buttress his arguments, learned counsel for the petitioner relies on the reported judgment of Hon'ble Supreme Court in case of Sudhakar Vithal Kumbhare Vs. State of Maharashtra & Ors., reported in (2004) 9 SCC 481 and the judgment of Hon'ble Division Bench of this Court in case of Madhu Vs. State of Jharkhand & Ors., passed in W.P.(S). No. 3846 of 2010 on 04.10.2010 and submits that in view of judgments rendered by Hon'ble Apex Court and that of the Division Bench, the petitioner is entitled for issuance of appointment letter considering his candidature as that of reserved 5 category.
8. Per contra counter-affidavit has been filed by the respondents. Mr. LCN Shahdeo, learned Government Pleader appearing for the respondent-State vehemently opposes the contention of the learned counsel for the petitioner and submits that petitioner was born in the State of Bihar and therefore, the judgments relied upon by the petitioner is not at all applicable in the instant case. Learned counsel draws the attention of the Court towards Annexure-B of the counter-affidaavit and submits that petitioner is a migratee and as such in view of Annexure-B, Clause-2, the petitioner is not entitled for the benefits of reserved category and hence, rightly he was not selected for the post of Deputy Collector in SC category. Clause-2 of Annexure-B is reproduced herein below:-
"2. It is also clarified that a Scheduled Caste/ Tribe person who has migrated from the State of origin to some other State for the purpose of seeking education, employment, etc. will be deemed to be a Scheduled Caste/ Tribe of the State of his origin and will be entitled to derive benefits from the State of origin and not from the State to which he has migrated."
Learned counsel further argued that in case of fresh appointment, the petitioner is not entitled for reservation.
9. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. It has been mentioned in para-14 of the writ petitioner and paras-9 and 10 of the rejoinder that petitioner was born in the year 1974 at Sitagarh, Hazaribagh, where the father of the petitioner was a resident and also received his entire education in the State of Jharkhand and as such, the case of the petitioner cannot be termed to be a case of migratee. The migration is not an issue in the instant case. It is a case where State stood bifurcated and the caste of the petitioner has been considered to be a Scheduled Caste in the State of Jharkhand by virtue of the notification of the State of Jharkhand. Considering similar issue, the Hon'ble Supreme Court in case of Sudhakar Vithal Kumbhare Vs. State of Maharashtra & Ors. (supra) has held as under:-
"5. But the question which arises for consideration herein appears to have not been raised in any other case. It is not in dispute that the Scheduled Castes and Scheduled Tribes have suffered disadvantages and been denied facilities for development and growth in several States. They require protective preferences, facilities and benefits inter alia in the form of reservation, so as to enable them to compete on equal terms with the more advantaged and developed sections of the community. The question is as to 6 whether the appellant being a Scheduled Tribe known as Halba/Halbi which stands recognized both in the State of Madhya Pradesh as well as in the State of Maharashtra having their origin in Chhindwara region, a part of which, on States' reorganisation, has come to the State of Maharashtra, was entitled to the benefit of reservation. It is one thing to say that the expression "in relation to that State" occurring in Article 342 of the Constitution of India should be given an effective or proper meaning so as to exclude the possibility that a tribe which has been included as a Scheduled Tribe in one State after consultation with the Governor for the purpose of the Constitution may not get the same benefit in another State whose Governor has not been consulted; but it is another thing to say that when an area is dominated by members of the same tribe belonging to the same region which has been bifurcated, the members would not continue to get the same benefit when the said tribe is recognized in both the States. In other words, the question that is required to be posed and answered would be as to whether the members of a Scheduled Tribe belonging to one region would continue to get the same benefits despite bifurcation thereof in terms of the States Reorganisation Act. With a view to find out as to whether any particular area of the country was required to be given protection is a matter which requires detailed investigation having regard to the fact that both Pandhurna in the district of Chhindwara and a part of the area of Chandrapur at one point of time belonged to the same region and under the Constitution (Scheduled Tribes) Order, 1950 as it originally stood the tribe Halba/Halbi of that region may be given the same protection. In a case of this nature the degree of disadvantages of various elements which constitute the input for specification may not be totally different and the State of Maharashtra even after reorganisation might have agreed for inclusion of the said tribe Halba/Halbi as a Scheduled tribe in the State of Maharashtra having regard to the said fact in mind."
10. The question required to be answered would be as to whether the members of a Scheduled Caste belonging to one region would continue to get the same benefits despite bifurcation thereof in terms of the State Reorganization Act. The answer would be in affirmative as the Scheduled Castes and Scheduled Tribes have suffered disadvantages and been denied the facilities for development and growth in several States. They require protective preferences, facilities and benefits inter alia in the form of reservation, so as to enable them to compete on equal terms with the more advantaged and developed sections of the community. The Hon'ble Apex Court in case of Ram Kumar Gijroya Vrs. Delhi Subordinate Services Selection Board & Anr., reported in (2016) 4 SCC 754 had held that, "we have to safeguard two things, namely, the principle of equality of opportunity and at the same time satisfy the demand of communities which have not had so far representation in the State. ...............
.............. Reservation is one of the measures adopted by 7 the Constitution to remedy the continuing evil effects of prior inequities stemming from discriminatory practices against various classes of people which have resulted in their social, educational and economic backwardness. Reservation is meant to be addressed to the present social, educational and economic backwardness caused by purposeful societal discrimination. To attack the continuing ill effects and perpetuation of such injustice, the Constitution permits and empowers the State to adopt corrective devices even when they have discriminatory and exclusionary effects. Any such measure, insofar as one group is preferred to be exclusion of another, must necessarily be narrowly tailored to the achievement of the fundamental constitution goal. (Indra Sawheny Vs. Union of India, reported in 1992 Supp. (3) SCC 217 para-251)."
11. It is an admitted fact that the petitioner was born at Hazaribagh District in the State of Jharkhand and his caste has been declared to be in the Scheduled Caste in the State of Jharkhand. In that view of the matter, I am of the considered view that the petitioner is entitled to be treated as the person belonging to a Scheduled Caste and in that view of the matter, he is entitled for reservation and issuance of appointment letter as he was declared successful and his name found place in the list of successful candidates.
12. As a cumulative effect of the aforesaid observation, rules, guidelines, judicial pronouncements I hereby direct the respondents to issue appointment letter to the petitioner as he was declared successful and his name found place in the list of successful candidates under the reserved category with all consequential benefits. Needless to say that the entire exercise be completed within a period of eight weeks from the date of receipt/ production of a copy of this order.
13. Resultantly, the writ petition stands allowed.
(Dr. S.N. Pathak, J.) kunal/-