Jharkhand High Court
Binod Kumar Yadav And Ors vs The State Of Jharkhand Through The Chief ... on 2 February, 2017
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (S) No. 19 of 2016
1. Binod Kumar Yadav son of Sri Roshan Gope, resident of village
Nagwan, P.O. & P.S. Itkhori, District Chatra
2. Bikram Kumar Sharma son of Sri Ramkrishn Sharma, resident of
village, P.O. & P.S. Itkhori, District Chatra
3. Abhay Kumar Roy son of Sri Kailash Nath Roy resident of village,
P.O. & P.S. Itkhori, District Chatra
4. Shiv Kuamr Pandey son of Late Dwarika Pandey, resident of
village, P.O. & P.S. Mayurhand, District Chatra
5. Bijay Dangi son of Sri Degan Dangi, resident of village Dhodhi,
P.O. Madhaniyan, P.S. Mayurhand, District Chatra
6. Pawan Kumar Arya son of Sri Bishnu Dhari Poddar, resident of
village & P.O. Pitiz, P.S. Itkhori, District Chatra
7. Raju Kumar Das son of Late Dewal Das, resident of village
Tonatanr, P.O. & P.S. Itkhori, District Chatra
8. Yamuna Nayak son of Sri Jawahar Saw, resident of village
Serad, P.O.Karni, P.S. Itkhori, District Chatra
9. Baleshwar Saw son of Late Sonari Saw, resident of village & P.O.
Mayapur, P.S. Mayurhand, District Chatra
10. Birendra Kumar Sinha son of Late Lalji Sahay Ambastha,
resident of village Pakariya, P.O & P.S. Itkhori, District Chatra
11. Rajendra Prajapati son of Sri Mangar Prajapati, resident of
village Kalyanpur, P.O. Karni, P.S. Itkhori, District Chatra
12. Surendra Prasad son of Sri Shyamlal Mahto, resident of village,
P.O. & P.S. Mayurhand, District Chatra
13. Raj Kumar Saw son of Sri Nanhaku Saw, resident of village
Raja Daharbhanga, P.O. & P.S. Itkhori, District Chatra
14. Sahdeo Prajapati son of Late Janki Prajapati, resident of
village Kalyanpur, P.O. Karni, P.S. Itkhori, District Chatra
15. Bangali Prasad Ram son of Sri Lilo Prasad Ram, resident of
village Dhebadauri, P.O. Madhaniya, P.S. Mayurhand, District
Chatra
16. Roshan Bhuiya son of Sri Karoo Bhuiya, resident of village
Bhurkunda, P.O. Pitiz, P.S. Itkhori, District Chatra
17. Md. Ikbal Husain son of Md. Bulam Rabbani Miya, resident of
village Koni, P.O. & P.S. Itkhori, District Chatra
18. Ramanand Yadav son of Banshidhar Yadav resident of village
Proriya, P.O. Badgawn, P.S. Mayurhand, District Chatra
19. Vijay Mahato son of Sri Peman Mahato, resident of village
Parsauni, P.O. & P.S. Itkhori, District Chatra
20. Sanjay Kumar Ram son of Late Sridhar Ram, resident of village
Dhangawan, P.O. & P.S. Mayurhand, District Chatra
21. Rajdeo Rabidas son of Sri Tulshi Rabidas, resident of village
Rajbar, P.O. Dhauthwa, P.S. Itkhori, District Chatra.
.... ..... Petitioners
Versus
1. The State of Jharkhand through the Chief Secretary, Govt. of
Jharkhand, Project Building, P.O. & P.S. Dhurwa, District Ranchi,
Jharkhand
2. The Secretary, School Education and Literacy Development
2
Department, Govt. of Jharkhand, MDI Building, P.O. & P.S. Dhurwa,
District Ranchi, Jharkhand.
3. The Director, Primary Education, School Education and Literacy
Development Department, Govt. of Jharkhand, MDI Building, P.O. &
P.S. Dhurwa, District Ranchi, Jharkhand
4. The District Superintendent of Education, Chatra, Block Campus,
P.O., P.S. & District Chatra
5. The District Superintendent of Education, Giridih, Old Jail
Campus near Jhanda Maidan, P.O., P.S. & District Giridih
6. The District Superintendent of Education, District Board Chowk,
Hazaribagh, P.O., P.S. & District Hazaribagh
7. The District Superintendent of Education, Ramgarh, Office 'B'
Block, New Samaharnalay Bhawan at Chhatarmandu, P.O., P.S. &
District Ramgarh
8. The District Superintendent of Education, Samaharnalay
Bhawan, Koderma, P.O., P.S. & District Koderma
9. The District Superintendent of Education, Campus Middle School
SBS, Chas, Bye Pass Road, P.O. & P.S.Chas, District Bokaro
10. The District Superintendent of Education, Misrit Bhawan
(Basement), Dhanbad, P.O., P.S. & District Dhanbad
11. The District Superintendent of Education, Dumka, Zila Parishad
Bhawan, Dumka, P.O., P.S. & District Dumka
12. The District Superintendent of Education, Middle School, Old
Meena Bazar Campus, P.O., P.S. & District Deoghar
13. The District Superintendent of Education, Jamtara, Combined
Building, Block C, Sri Rampur, P.O., P.S. & District Jamtara
14. The District Superintendent of Education, First Floor of
Information & Public Affair Building, in front of Mela Maidan P.O.,
P.S. & District Godda
15. The District Superintendent of Education, Sahibganj, Middle
School (Police line campus), P.O., P.S. & District Sahibganj
16. The District Superintendent of Education, Pakur, Court campus,
P.O., P.S. & District Pakur. .... ..... Respondents
With
W.P.(S) No. 32 of 2016
Prem Kumar Thakur son of Sri Inder Deo Thakur, resident of
villageSinduari (Dighi), P.O. Nachahi, P.S. Mayurhand
... ... Petitioner
Versus
1. The State of Jharkhand through the Chief Secretary, Govt. of
Jharkhand, Project Building, P.O. & P.S.Dhurwa, District Ranchi,
Jharkhand
2. The Secretary, School Education and Literacy Development
Department, Govt. of Jharkhand, MDI Building, P.O. & P.S.Dhurwa,
District Ranchi, Jharkhand
3. The Director, Primary Education, School Education and Literacy
3
Development Department, Govt. of Jharkhand, MDI Building, P.O. &
P.S.Dhurwa, District Ranchi, Jharkhand ... ... Respondents.
With
W.P.(S) No. 146 of 2016
Balram Mehta, son of Sri Ram Pawan Mahto, Presently Resident of
villageKarkatta, P.O.Joga, P.S.Rehla, District Palamau, posted and
working as Para Teacher in Government Upgraded Middle School,
Karkatta, under Utari Road Block, District Palamau
... .... Petitioner
Versus
1. The State of Jharkhand through the Secretary, Human Resources
Development Department, Office located in Project Building, H.E.C.
Area, Dhurwa, P.O.Dhurwa, P.S.Jagarnathpur, District Ranchi
2. The Director, Primary Education, Human Resources Development
Department, Government of Jharkhand, Office located in H.E.C.
Area, Dhurwa, P.O.Dhurwa, P.S.Jagarnathpur, District Ranchi
3. The Regional Deputy Director of Education (R.D.D.E.), Palamau
Division, Office located at Medninagar, P.O.Medninagar, P.S.
Medninagar Sadar, District Palamau
4. The Deputy Commissioner, Latehar, Office located at Latehar, P.O.
& P.S.Latehar, District Latehar
5. The District Superintendent of Education(D.S.E.), Latehar, Office
located at Latehar, P.O. & P.S.Latehar, District Latehar
... ... Respondents.
With
W.P.(S) No. 334 of 2016
Shanker Dayal Pandey, S/o Suryadeo Pandey, Resident of Village
Union Angar Pathra, P.O.:Katrasgarh, P.S.:Katrasgarh, District:
Dhanbad, Jharkhand ... .... Petitioner
Versus
1. The State of Jharkhand
2. The Director of the Primary Education, Govt. of Jharkhand, At
Project Building, P.O. & P.S.:Dhurwa, District:Ranchi, Jharkhand
3. The Directorate of the Human Resources Development
Department, having its office at Project Building, P.O. & P.S.:
Dhurwa, District:Ranchi, Jharkhand
4. The Secretary, Human Resources Development Department, Govt.
of Jharkhand, At Project Building, P.O. & P.S.:Dhurwa, District:
Ranchi, Jharkhand
5. The District Superintendent of Education, Dhanbad, P.O. & P.S.
and District: Dhanbad, Jharkhand
6. The District Superintendent of Education, Bokaro, P.O. & P.S. and
District:Bokaro, Jharkhand
7. The District Superintendent of Education, Hazaribagh, P.O. & P.S.
4
and District Hazaribagh, Jharkhand
8. The District Superintendent of Education, Jamtara, P.O. & P.S. and
District Jamtara, Jharkhand
9. The District Superintendent of Education, Sahibganj, P.O. & P.S.
and District Sahibganj, Jharkhand
10. The District Superintendent of Education, Pakur, P.O. & P.S. and
District Pakur, Jharkhand
11. The District Superintendent of Education, Godda, P.O. & P.S. and
District Godda, Jharkhand
12. The District Superintendent of Education, Koderma, P.O. & P.S.
and District Koderma, Jharkhand
13. The District Superintendent of Education, Giridih, P.O. & P.S. and
District Giridih, Jharkhand
14. The District Superintendent of Education, Deoghar, P.O. & P.S.
and District Deoghar, Jharkhand
15. The District Superintendent of Education, Ramgarh, P.O. & P.S.
and District Ramgarh, Jharkhand
16. The District Superintendent of Education, Chatra, P.O. & P.S. and
District Chatra, Jharkhand
17. The District Superintendent of Education, Dumka, P.O. & P.S.
and District Dumka, Jharkhand ... ... Respondents.
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioners : Mr. Rajiv Ranjan, Sr. Adv.
Mr. Baleshwar Yadav, Adv.
(In W.P.(S) No.19 of 2016)
Mr. Baleshwar Yadav, Adv.
(In W.P.(S) No. 32 of 2016)
Mr. Lalit Kumar Singh, Adv.
(In W.P.(S) No.146 of 2016)
Mr. Mahesh Tewari, Adv.
Ms. Kumari Shikha, Adv.
(In W.P.(S) No.334 of 2016)
For Respondents : Ms. Ruchi Rampuria, JC to Sr. SCI
(In W.P.(S) No.19 of 2016)
Mr. Shahid Khan, SC(Mines)
(In W.P.(S) No.32 of 2016)
Mr. Rajiv Anand, G.A.IV
(In W.P.(S) No.146 of 2016)
Ms. Richa Sanchita, Adv.
(In W.P.(S) No.334 of 2016)
11/02.02.2017A common question of law "whether appointment against the advertised vacancies can be denied arbitrarily" is involved in this 5 batch of writ petitions. The learned counsel appearing for the petitioners contended that the decision not to conduct further counselling as a consequence of which the petitioners have been denied appointment is arbitrary. The learned State counsel, however, contended that in view of the timeschedule fixed by the Department vide letter dated 03.07.2015 whereunder selection process was to be completed by 18.09.2015, further counselling has been stopped in all the districts.
2. In W.P.(S) No. 19 of 2016, Sri Rajiv Ranjan, the learned Senior counsel appears for the petitioners. In W.P.(S) No. 32 of 2016, Mr. Baleshwar Yadav, the learned counsel appears for the petitioner and in W.P.(S) No. 334 of 2016, Mr. Mahesh Tewari, the learned counsel appears for the petitioner. The petitioners in these writ petitions were applicants for the post of Assistant Teacher (for ClassI to V). In W.P.(S) No. 146 of 2016, Mr. Lalit Kumar Singh, the learned counsel appears for the petitioner who was a candidate for appointment as Graduatetrained Teacher (ClassVI to VIII). All these petitioners were candidates under Parateachers' category.
3. With the consent of the learned counsel for the parties these petitions are disposed of finally at this stage itself.
4. The learned counsel appearing for the petitioners and the respondentState, both have relied on a decision in "Shankarsan Dash Vs. Union of India" reported in [(1991) 3 SCC 47.
5. These writ petitions were filed with different and diverse prayers, however, during the course of hearing the learned counsel 6 for the petitioners confined their argument only to the legality of respondents' decision to stop the counselling, midway. A separate detailed examination of each case, on facts, is thus, not required. In the present proceeding, several affidavits have been filed and now it is an admitted position that against the total number of advertised vacancies in all the districts, that is, 10202, as many as 3336 posts of Intermediatetrained Teachers (Class I to V) and 496 posts of Graduatetrained Teachers are still vacant. The affidavit filed in W.P.(S) No. 334 of 2016 by the respondentState discloses the following vacancyposition:
o"kZ 2015&16 e s a f'k{kd ik=rk ijh{kk e s a mRRkh.kZ ikjk f'k{kdk s a e s a l s Hkj s tku s oky s b.VjehfM,V iz f 'kf{kr in ij fu;q f Dr dh fLFkfr b.VjehfM,V iz f 'kf{kr mn wZ b.VjehfM,V iz f 'kf{kr f'k{kd f'k{kd dz 0 ftyk dq y 'k s" k dq y 'k s" k fu;q D r fu;q D r fjfDr fjfDr fjfDr fjfDr 1 jk¡ p h 362 333 29 150 1 149 2 yk sg jnxk 65 43 22 52 0 52 3 [k w ¡ Vh 196 183 13 13 0 13 4 xq e yk 194 176 18 0 0 0 5 fleM s x k 138 123 15 18 0 18 6 i0 fl ag Hk we 359 251 108 146 0 146 7 i w0 fl ag Hk we 333 294 39 197 0 197 8 ljk;d sy k 293 221 72 53 1 52 9 gtkjhckx 236 206 30 137 41 96 10 jkex< + 136 58 78 66 6 60 11 /kuckn 442 381 61 79 15 64 12 fxfjMhg 482 380 102 115 20 95 13 dk sM jek 127 44 83 48 6 42 14 prjk 170 99 71 71 12 59 15 ck sd kjk s 348 249 99 120 27 93 16 iyke w 259 245 14 57 5 52 17 x< + o k 259 254 5 140 9 131 18 ykr s g kj 160 152 8 67 1 66 19 n s o ?kj 377 255 122 47 5 42 20 lkg sc x at 168 67 101 88 7 81 21 xk sM ~ M k 395 229 166 89 12 77 22 ikdq M + 207 114 93 57 1 56 23 nq e dk 422 267 155 26 1 25 24 tkerkM + k 233 91 142 28 4 24 dq y & 6361 4715 1646 1864 174 1690 7 o"kZ 2015&16 e s a f'k{kd ik=rk ijh{kk e s a mRRkh.kZ ikjk f'k{kdk s a e s a l s Hkj s tku s oky s Lukrd iz f 'kf{kr in ij fu;q f Dr dh fLFkfr Lukrd iz f 'kf{kr Lukrd iz f 'kf{kr Lukrd iz f 'kf{kr f'k{kd ¼xf.kr ,o a f'k{kd ¼lekt f'k{kd ¼Hkk"kk½ dz 0 ftyk foKku½ v/;;u½ dq y 'k s" k dq y 'k s" k dq y dq y 'k s" k fu;q D r fu;q D r fjfDr fjfDr fjfDr fjfDr fjfDr fjfDr fjfDr 1 jk¡ p h 29 19 10 59 55 4 72 55 17 2 yk sg jnxk 8 4 4 8 8 0 19 14 5 3 [k w¡ Vh 10 8 2 16 13 3 20 7 13 4 xq e yk 22 20 2 22 16 6 35 26 9 5 fleM sx k 15 11 4 7 7 0 19 6 13 6 i0 27 25 2 5 4 1 54 34 20 fl ag Hk we 7 i w0 40 37 3 24 22 2 64 48 16 fl ag Hk we 8 ljk;d sy k 26 22 4 17 14 3 33 22 11 9 gtkjhckx 26 22 4 34 31 3 41 38 3 10 jkex< + 10 4 6 13 2 11 16 8 8 11 /kuckn 38 35 3 47 41 6 59 53 6 12 fxfjMhg 20 14 6 28 13 15 43 31 12 13 dk sM jek 12 8 4 13 8 5 15 11 4 14 prjk 16 10 6 22 14 8 26 17 9 15 ck sd kjk s 26 21 5 32 30 2 37 32 5 16 iyke w 40 26 14 43 34 9 56 48 8 17 x< +o k 29 25 4 32 29 3 36 35 1 18 ykr sg kj 26 15 11 25 24 1 31 22 9 19 n so ?kj 22 20 2 23 16 7 40 31 9 20 lkg sc x at 14 5 9 12 4 8 26 5 21 21 xk sM ~ M k 23 18 5 21 17 4 43 33 10 22 ikdq M + 11 4 7 12 5 7 20 2 18 23 nq e dk 28 25 3 30 25 5 50 37 13 24 tkerkM +k 16 7 9 17 11 6 26 18 8 dq y & 534 405 129 562 443 119 881 633 248
6. In the rejoinderaffidavit dated 06.10.2016 filed by the petitioners in W.P.(S) No. 334 of 2016, they have asserted that as many as 10 counsellings were conducted in few districts whereas, in some of the districts it was stopped after 6th counselling. This is an admitted position. In the supplementary counteraffidavit dated 12.01.2017 filed by the respondentState, it has been admitted that in most of the districts counselling continued till December, 2015, however, in the districts of Ramgarh, Sahebganj and Pakur, counselling was held in the month of January, 2016 also. 8
7. These writ petitions were filed in the month of January, 2016.
8. In the Advertisements issued for different districts, breakup of total number of posts under different caste and category has been given. Out of the total posts, 50% posts are to be filledup by parateachers working in the government schools whereas, 50% seats are to be filledup from non parateacher candidates. The Jharkhand Elementary School Teachers Appointment Rules, 2012 governs the field for the appointment of Intermediatetrained as well as Graduatetrained Teachers. It is not in dispute that the writ petitioners submitted their applications within the stipulated time. They claim that they were shortlisted as eligible candidates and they have been included in the panel of eligible candidates.
9. In Shankarsan case, in the Combined Civil Services Examination there were 70 vacancies in the Indian Police Service (IPS); 54 under general category and remaining 16 were reserved for SC/ST candidates. The applicant in the said case was placed low in the merit list and accordingly, he was offered Delhi, Andaman and Nicobar Police Service in GroupB which he duly accepted. Subsequently, 14 vacancies in Indian Police Services arose on account of the selected candidates not joining the service. The applicant made a representation for his appointment on such a vacant post which was turned down by the respondentUnion of India. The Supreme Court while dealing with the rival claim for appointment visavis whether it can be legitimately denied, held as 9 under:
7. "It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.
This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana V. Subash Chander Marwaha, Neelima Shangla V. State of Haryana, or Jatinder Kumar V. State of Punjab".
10. The learned counsel for the petitioners referring to different affidavits filed by the respondentState has contended that the decision to stop counselling midway is arbitrary.
11. In the counteraffidavit filed in W.P.(S) No. 334 of 2016, the respondentState has taken a plea that in view of letter dated 03.07.2015 of the Secretary, Department of Human Resources Development, counselling was stopped. However, in W.P.(S) No.146 of 2016 the respondentState has placed reliance on a 10 letter dated 16.11.2015 to contend that after 4 stages of counselling on the request from the districts for conducting two more stages of counselling, they were permitted to conduct further counselling. This letter, however, does not restrict the next stage of counselling to only two, rather, it is an admitted position that as many as 10 counsellings were conducted in few districts. No other reason has been disclosed by the respondentState for not conducting further counselling in all the districts. No doubt, the appointment process cannot continue for an indefinite period and it must stop somewhere; the question is when it must stop. Before proceeding further it would be apt to read letter dated 03.07.2015 which is extracted below:
i=kad&8@u0 2&07@2013&1531 >kj[k.M ljdkj ekuo l al k/ku fodkl foHkkx ¼izkFkfed f'k{kk funs'kky;½ izs"kd] vkjk/kuk iVuk;d Hkk0 iz0 ls0] ljdkj ds lfpoA lsok esa] lHkh mik;qDr] >kj[k.MA jk¡ph] fnukad 3-7-15 fo"k;& jktdh;d` r iz k Fkfed ,o a e/; fo|ky;k s a e s a b.Vj iz f 'kf{kr f'k{kdk s a d s fjDr in ij fu;q f Dr d s l ac a/ k e s aA egk'k;] mik;qDr fo"k;d foHkkxh; i=kad 1180] fnukad 29-05-15 dk d`i;k funs'k djsaA mDr i= }kjk b.Vj izf'kf{kr f'k{kdksa ¼mnwZ f'k{kd lfgr½ dh fu;qfDr gsrq foLr`r funs'k fuxZr fd;k x;k gSA bl chp vf/klwpuk la[;k 1388] fnukad 22-06-15 }kjk >kj[k.M izkjafHkd fo|ky; f'k{kd fu;qfDr ¼izFke la'kks/ku½ fu;ekoyh] 2014 esa la'kks/ku djrs gq, b.Vj izf'kf{kr f'k{kd ds in ij f}rh; ckj dh tkus okyh fu;qfDr esa lHkh dksfV ds vH;fFkZ;ksa dks dkfeZd foHkkx }kjk fu/kkZfjr vf/kdre mez lhek esa 7 o"kksZ dh NwV iznku dh xbZ gSA 11 >kj[k.M izkjafHkd fo|ky; f'k{kd fu;qfDr ¼f}rh; la'kks/ku½ fu;ekoyh] 2015] fnukad 22-06-15 ls izHkkoh gSA fu;qfDr fu;ekoyh esa la'kks/ku ds dkj.k foHkkxh; i=kad 1180] fnukad 29-05-15 ds vkyksd esa izkjaHk dh xbZ fu;qfDr izfØ;k fujLr djrs gq, dguk gS fd vf/klwpuk la[;k 1338] fnukad 22-06-15 ds vkyksd esa fu;qfDr izfØ;k izkjaHk dh tk;A u;s fljs ls vkosnu vkeaf=r fd;s tkus dh vfuok;Zrk dks /;ku esa j[krs gq, fuEuor~ la'kssksf/kr dk;ZØe ds vuqlkj fu;qfDr ls lacaf/kr fofHkUu pj.kksa dk dk;Z iw.kZ fd;k tk;sxkA
(i) foKfIr dk izdk'ku & 08-07-2015
(ii) vkosnu izkIr djus dh vafre frfFk & 07-08-2015
(iii) MkVkcsl rS;kj dj osclkbZV ij Mkyuk ,oa vkifŸk & 10-08-2015 vkeaf=r djuk
(iv) vkifŸk dk fujkdj.k & 17-08-2015
(v) izFke es/kk lwph izk:Ik rS;kj dj osclkbZV ij & 22-08-2015 Mkyuk ,oa vkifŸk vkeaf=r djuk
(vi) vkifŸk dk fujkdj.k ,oa izFke pj.k ds dk¡mflfyax ds & 27-08-2015 fy, vkeaf=r djuk
(vii) izFke pj.k ds dk¡mflfyax dk vk;kstu & 01-09-2015
(viii) f}rh; es/kk lwph izk:i dk izdk'ku rFkk vkifŸk & 04-09-2015 vkeaf=r djuk ¼;fn vko';d gks½
(ix) vkifŸk dk fujkdj.k ,oa f}rh; pj.k ds dk¡mflfyax & 08-09-2015 ds fy, vkeaf=r djuk
(x) f}rh; pj.k ds dk¡mflfyax dk vk;kstu & 12-09-2015
(xi) ftyk f'k{kk LFkkiuk lfefr dh cSBd & 15-09-2015
(xii) fu;qfDr i= dk forj.k & 18-09-2015 ;k blds iwoZ rn~uq:i] foHkkxh; i=kad 1180] fnukad 29-05-15 }kjk fuxZr funs'kksa dks mDr gn rd la'kksf/kr le>k tk;sA fo'oklHkktu ¼vkjk/kuk iVuk;d½ ljdkj ds lfpoA Kkikad & 9@ u02&07@2013&1531 jk¡ph] fnukad 3-7-15 izfrfyfi&lHkh {ks=h; f'k{kk mifuns'kd] >kj[k.M@lHkh ftyk f'k{kk v/kh{kd] >kj[k.M dks lwpukFkZ ,oa vko'ss;d dk;kZFkZ izsf"krA ¼vkjk/kuk iVuk;d½ ljdkj ds lfpoA 12 English Translation:
Letter No.8/No. 207/20131531.../ Government of Jharkhand Department of Human Resources Development (Directorate of Primary Education) From, Aradhna Patnaik, I.A.S., Secretary to the Government To, All the Deputy Commissioners, Jharkhand, Ranchi, Dated03.07.2015 Subject:Regarding appointment against the vacant post of Inter trained teachers in the Government Primary and Middle Schools.
Sir, Please refer to the departmental letter no.1180 dated29.05.15 with respect to the above subject. By the aforesaid letter the detailed guidelines for the appointment of Inter trained teachers (including Urdu teacher) have been issued. In the meantime, Jharkhand Primary School Teachers Appointment (first amendment) Rules, 2014 was amended vide notification no.1388 dated22.06.15 for the 2nd appointment exercise against the post of Inter trained teachers, candidates belonging to all categories have been given seven years' relaxation in the maximum age prescribed by the Department of Personnel. Jharkhand Primary School Teachers Appointment (second amendment) Rules, 2015 is effective from 22.06.15.
Consequent upon the amendment in the appointment rules, the appointment process initiated pursuant to departmental letter no.1180 dated29.05.15 stands cancelled and the appointment process should be initiated according to notification no.1388 dated22.06.15. Keeping in view requirement of inviting fresh applications, various steps with respect to appointment shall be completed according to the 13 modified program, which are as follows
(i) Publication of Advertisement 08.07.2015
(ii) Last date of receipt of application 07.08.2015
(iii) Uploading in the website after preparation of the 10.08.2015 database and inviting objections
(iv) Rectification of objections 17.08.2015
(v) Uploading in the website after preparation of first 22.08.2015 merit list draft and inviting objections
(vi) Rectification of objections and invitation for the first 27.08.2015 stage counselling
(vii) Organizing first stage counselling 01.09.2015
(viii) Publication of second merit list draft and inviting 04.09.2015 objections (if necessary)
(ix) Rectification of objections and invitation for the 08.09.2015 second stage counselling
(x) Organizing counselling for the second stage 12.09.2015
(xi) Meeting of the District Education Establishment 15.09.2015 Committee
(xii) Distribution of appointment letter 18.09.2015 or prior to it Accordingly, guidelines issued vide departmental letter no.1180, dated29.05.15 should be deemed modified to this extent only.
Yours faithfully Sd/ (Aradhna Patnaik) Secretary to the Government Memo No.8/No207/20131531 Ranchi, Dated03.07.15 Copy forwarded to All Regional Deputy Director of Educations, Jharkhand/all District Superintendent of Education, Jharkhand for information and necessary action.
Sd/ (Aradhna Patnaik) Secretary to the Government
12. After reading letter dated 03.07.2015, it has to be concluded that it was issued in a different context, that is, due to amendment in the Jharkhand Elementary School Teachers 14 Appointment Rules, 2012. In the first place the advertisements issued were neither cancelled nor modified. Directions contained in letter dated 03.07.2015 were not followed by the Department itself. The advertisements which have been brought on record reveal that these advertisements were issued much before 03.07.2015. In fact, last date for submission of application was 04.07.2015. Reliance placed on letter dated 03.07.2015 to justify termination of the counselling process, thus, turns out to be untenable. The pretension of adherence to timeschedule is exposed by the respondents' own permission granted for further counselling. Letter dated 16.11.2015 would disclose that the Secretary, Department of School Education and Literacy (Directorate of Elementary School) permitted counselling in different districts beyond 4th stage of counselling. Except these two letters, no order of the government has been produced in the present proceeding to say that a conscious decision was taken by the government to terminate the appointment process. In Shankarsan case, the Supreme Court has held that the right of the government not to make appointment on an available vacancy would not mean that the State has the license to act in an arbitrary manner. The decision in "State of Haryana V. Subash Chander Marwaha"
[(1974) 3 SCC 220] also proceeds on similar lines. It has been observed that, the selection cannot arbitrarily be restricted to a few candidates notwithstanding, the number of vacancies and the availability of the qualified candidates. The Court has held thus;
"There must be a conscious application of mind by the government 15 and the High Court before the number of persons selected for appointment is restricted".
13. Obviously, denial of appointment to the eligible candidates against the remaining unfilled vacancies is illegal and not justified. The vacancyposition disclosed by the State reveals that about 3832 posts under different category have remained unfilled. This is a whopping onethird of total number of vacancies advertised. It is admitted on record that no uniform pattern was adopted for conducting counselling in different districts. The number of counselling in different districts varies from 6 to 10 and there are large number of unfilled posts in each district. The number of candidates called for counselling in each stage has not been revealed in the affidavits filed by the State. No cutoff marks has been fixed, still eligible candidates have not been selected. Apparently, the respondents have acted in an arbitrary manner and without having an informed uniform decision, terminated the selection process. A decision to stop counselling has been taken at the districtlevel and in absence of a clear guidelines by the Department, they acted differently. This has brought a chaotic situation, giving rise to a cause of action to the candidates who have been left out. Their grievance seems to be genuine. Another reason why this situation has arisen, is that, a candidate was eligible for applying in all the districts. Obviously, many a candidate did not join the post, if he/she was selected, in the meantime, in another more convenient district. The proper course would have been to indicate the number of 16 counselling in the advertisement itself. This would have made a candidate make his/her final choice before the last counselling. Leaving aside these aspects, the question which must be answered is, is it in the public interest to leave such a large number of vacancies unfilled and deprive appointment to the eligible candidates. The answer seems to be an emphatic 'no'.
14. Mrs. Richa Sanchita, the learned State counsel has, however, submitted that a 2nd Teachers Eligibility Test has been conducted on 20.11.2016 and therefore, no further direction for appointment on remaining unfilled vacancies may be issued. I am unable to accept this submission. It is admitted at Bar that Teachers Eligibility Test is only an eligibility condition for appointment of teachers. Only on the ground that another Teachers Eligibility Test has been conducted, the eligible shortlisted candidates cannot be denied appointment against the advertised vacancies. The learned State counsel has also relied on the decision in "Kulwinder Pal Singh & Anr. Vs. State of Punjab & Ors." [(2016) 6 SCC 532]. A bare reading of the judgment in Kulwinder Pal Singh would reveal that there were 27 posts advertised, on which all 27 candidates had joined. Three vacancies arose subsequently on which the applicant laid a claim. In that context, the Supreme Court held that merely because the name of a candidate finds place in the select/merit list, it does not give him an indefeasible right to get appointment.
15. Another ground taken by the respondentState is that in terms of Rule23 of 2012 Rules there shall not be any appointment 17 on the vacancies arising out of nonjoining of a candidate. Admittedly, this is not a case in which the petitioners are claiming appointment on account of vacancies occurring due to nonjoining of other candidates. The learned counsel for the respondentState has also contended that no panel has been prepared from which appointment on remaining vacancies can be made. This plea is also untenable. If no panel has been prepared, it is more so a reason to make appointment according to merit of the candidates on all the unfilled advertised vacancies.
16. In the aforesaid facts, I am of the opinion that the situation can be remedied if one more counselling is conducted for appointment on the remaining advertised vacancies.
17. In W.P.(S) No.19 of 2016, a plea was raised that candidates lower in the meritlist have been appointed but the petitioners have been left out. This plea was taken on the basis of the pleading in paragraph no.16(iii) in the counteraffidavit. Pursuant to the order passed on 11.01.2017, a supplementary counteraffidavit has been filed in which the respondents have clarified that the minimum cutoff marks reflected therein is for the female candidates. This is corroborated by the chart produced alongwith the counteraffidavit. In view of the common order passed in the present proceeding, no further enquiry on the aforesaid plea is required.
18. Now, a question arises, whether the order in these petitions shall remain confined to the petitioners only or the benefit 18 shall be extended to other eligible candidates also. In "State of U.P. Vs. Arvind Kumar Srivastava" [(2015) 1 SCC 347], the Supreme Court has observed that, "the normal rule is that when a particular set of employees is given relief by Court, all other identically situated persons need to be treated alike by extending that benefit". In the matters of appointment, the necessity to extend similar benefits to other eligible candidates is greater. It is necessary also for the reason to avoid potential future litigations claiming similar benefits by other eligible candidates who may be higher in the meritlist than the present petitioners.
19. In the light of the foregoing discussions, the following directions are issued
(i) A public notice, indicating that counselling for all unfilled advertised vacancies in all the districts shall be conducted in the 3rd/4th week of March, 2017. It shall be published in two daily newspapers on or before 23.02.2017. The public notice shall also indicate that no further opportunity to produce original certificate would be granted to the candidates. The counselling may continue for more than one day.
(ii) An exercise to shortlist eligible candidates vizaviz vacancyposition in each category shall be undertaken and candidates twice the number of total vacancies, meritwise, after the last selected candidate shall be put on the website, preferably by the 3rd week of March, 2017. However, it may not be necessary to call all shortlisted candidates for counselling.
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(iii) The name of candidates falling under the "zone of consideration" as indicated in clause (ii) above shall be put on the website, atleast one week prior to the date of counselling.
(iv) The entire exercise must be concluded by 31.03.2017.
20. It is further made clear that there shall be only one counselling in all the districts of the State and counselling shall be conducted simultaneously in all the districts. The candidates who were earlier called for counselling shall not be permitted to participate in the counselling except, those permitted by an order of the Court.
21. The writ petitions are allowed, in the above terms.
22. Let a copy of the order be communicated to the Secretary, Department of School Education and Literacy Development and the Director, Primary Education, Government of Jharkhand, for compliance of this order.
(Shree Chandrashekhar, J.) R.K./Sudhir AFR