Jharkhand High Court
Md. Ziaul Haque Ansari vs The State Of Jharkhand on 20 October, 2020
Equivalent citations: AIRONLINE 2020 JHA 1118
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 4531 of 2018
1. Md. Ziaul Haque Ansari, aged about 33 years, son of Md. Naushad Ali
Ansari, resident of Village- Harinkol, PO Mal Mandro, PS Mirzachowki,
District- Godda
2. Md. Zaki Anwer Ansari, aged about 38 years, son of Md. Shamsul Haque
Ansari, resident of Village Pipal Joria, P.O. Mandro, Thakur Gangti, P.S.
Mirzachowki, District- Godda
3. Md. Salimuddin Ansari, aged about 33 years, son of Md. Jamshed Ansari,
resident of Village Harinkol, P.O. Mal Mandro, P.S. Mirzachowki, District-
Godda ... Petitioners
-Versus-
1. The State of Jharkhand
2. The Secretary, School Education and Literacy Department, Govt. of
Jharkhand, having its office at Project Building, Dhurwa, PO and PS
Dhurwa, District -Ranchi
3. The Director, School Education and Literacy Department, Govt. of
Jharkhand, having its office at Project Building, Dhurwa, PO and PS
Dhurwa, District -Ranchi
4. The District Education Officer, Godda, PO and PS Godda, District Godda
5. The Secretary, Jharkhand Academic Council, Ranchi, having its office at
Gyandeep Campus, Bargawan, PO and PS Namkom, District-Ranchi
6. The Secretary, Madrasa Darul Hadees, Harilkol, PO Mandro, PS
Mirzachowki, District-Godda
7. The Headmaster, Madrasa Darul Hadees, Harilkol, PO Mandro,
PS Mirzachowki, District-Godda ... Respondents
With
W.P. (S) No. 4556 of 2018
1. Md. Najmullah Ansari, aged about 20 years, son of Md. Kalimullah Ansari,
resident of Village- Jhulkusiya, PO Mal Mandro, PS Thakur Gangti, District-
Godda
2. Md. Mukhtar Alam Ansari, aged about 23 years, son of Md. Isa Ansari,
Village Harinkol, P.O. Malmandro, P.S. Morzachowki, District- Godda
3. Md. Javed Ansari, aged about 25 years, son of Md. Yusuf Ansari, resident
of Village Harinkol, P.O. Malmandro, P.S. Morzachowki, District- Godda
... Petitioners
-Versus-
1. The State of Jharkhand
2. The Secretary, School Education and Literacy Department, Govt. of
Jharkhand, having its office at Project Building, Dhurwa, PO and PS
Dhurwa, District -Ranchi
3. The Director, School Education and Literacy Department, Govt. of
Jharkhand, having its office at Project Building, Dhurwa, PO and PS
Dhurwa, District -Ranchi
4. The District Education Officer, Godda, PO and PS Godda, District Godda
5. The Secretary, Jharkhand Academic Council, Ranchi, having its office at
Gyandeep Campus, Bargawan, PO and PS Namkom, District-Ranchi
6. The Secretary, Madrasa Darul Hadees, Harilkol, PO Mandro, PS
Mirzachowki, District-Godda
7. The Headmaster, Madrasa Darul Hadees, Harilkol, PO Mandro,
PS Mirzachowki, District-Godda ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Saurabh Shekhar, Advocate (In both cases)
For the State : Mr. Vishal Kr. Rai, A.C. to G.A.-IV (In WPS-4531/18)
Mr. Sreenu Garapati, S.C.-III (In WPS-4556/18)
For the JAC : Mr. Anil Kumar, Sr. Advocate
Mrs. Richa Sanchita, Advocate (In both cases)
For Resp. Nos.6 & 7 : Mr. Prem Pujari Roy, Advocate (In both cases)
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06/20.10.2020. Heard Mr. Saurabh Shekhar, learned counsel for the petitioners, Mr. Vishal Kumar Rai and Mr. Sreenu Garapati, learned counsels for the respondent-State, Mr. Anil Kumar, Senior counsel assisted by Mrs. Richa Sanchita, learned counsel for the respondent-JAC and Mr. Prem Pujari Roy, learned counsel for respondent nos. 6 and 7.
2. These writ petitions have been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard on merit.
3. The petitioners have preferred the writ petitions for a direction upon the respondent authorities to allow the petitioners to have posting as Fazil (Assistant Teachers) in W.P. (S) No. 4531 of 2018 and posting as Moulavi, Hafiz and Peon respectively in W.P. (S) No. 4556 of 2018 and accept their joining on granting due approval to their appointment, on the basis of appointment letters already issued by respondent no.6.
4. It is the case of the petitioners that Madrasa Darul Hadees, Harinkol, PO Mandro, PS Mirzachowki, District-Godda has published one advertisement in daily newspaper on 01.06.2017. The said advertisement was on the basis of the orders of the respondent no.5 vide letter dated 18.05.2017 and accordingly posts of Fazil, Moulavi, Hafiz and Peon were advertised. All the petitioners applied for the selection process in terms of the advertisement. The last date for submission of the application form was prescribed as 22.06.2017 and by that time, all the 3 petitioners had submitted their application forms. The selection was required to be made on the basis of the written as well as oral test and interview. The marks obtained by the petitioners have been disclosed in paragraph no.13 of both the writ petitions. The merit list was published which is contained in Annexure-3. The appointment letters were issued in favour of the petitioners on 22.07.2017 by Madrasa Darul Hadees, Harinkol, District-Godda and, therefore, the petitioners tried to join, but posting was not disclosed to the petitioners. The petitioners have filed representations by way of Annexure-5 series. The State Government has also given the sanction by way of letter dated 09.10.2017 as contained in Annexure-H to the counter affidavit filed on behalf of the respondent nos.6 and 7 in W.P. (S) No. 4531 of 2018 and Annexure-D to the counter affidavit filed on behalf of the respondent nos. 6 and 7 in W.P. (S) No. 4556 of 2018.
5. Mr. Saurabh Shekhar, learned counsel for the petitioners submits that although there is a rider whereby the advertisement was allowed to be published by the respondent-JAC that the entire exercise needs to be completed within 45 days. He further submits that the entire exercise has been completed in 49 days and not within 45 days as suggested by the respondent-JAC. He also submits that so far as the 45 days' criteria is concerned, that is not statutory. He further submits that due to certain unavoidable circumstances as Government employee, who were brought to the committee, were not available and that is why that delay has been taken place. The delay is not due to any fault on behalf of the petitioners or respondent nos.6 and 7. He further submits that the appointment letters were already in the hands of the petitioners and that is why the petitioners have preferred these writ petitions in the nature of mandamus.
6. Mr. Anil Kumar, learned Senior counsel appearing on behalf of the respondent-JAC, at the outset, draws the attention of the Court to Annexure-E 4 of the counter affidavit filed on behalf of respondent no.5, which is a letter dated 12.12.2017, whereby, the approval of the appointment of the petitioners were negated relying on Clause-3 of the permission letter, by which, the process of appointment was initiated which speaks of completion of the process within 45 days. He further submits that this order has not been challenged and in that view of the matter, no relief can be extended to the petitioners. The learned Senior counsel further argues that the letter dated 18.05.2017 is administrative letter whereby appointment process has been directed to be initiated which cannot be overlooked on the ground that it is mandatory or not. He also submits that in view of this letter, the entire exercise was need to be completed in terms and conditions stipulated in the said letter.
7. Mr. Prem Pujari Roy, learned counsel appearing on behalf of the respondent nos.6 and 7 submits that the respondent nos.6 and 7 made all efforts to make the selection process within the stipulated time and all the guidelines have been followed in terms of the letter dated 18.05.2017. The advertisement was published on 01.06.2017 and thereafter a gap of 21 days was maintained for the candidates to apply as per clause no.2 of the permission letter issued by the respondent no.5. Thereafter, the names of the candidates selected on merit by the Interview committee was to be proposed and kept before the Appointing/Managing committee, notified to be held on 13.07.2017, but due to unavailability of sitting members of the Committee, the meeting could not take place on the said date and the notice in this relation was dispatched on 14.07.2017. Since the meeting could not take place on 13.07.2017, the next date of meeting was decided to be held on 21.07.2017 which was duly happened and unanimous decision was taken to make appointment. This was sent before the District Education Officer, Godda on 24.07.2017 and by this fact the respondent nos.6 and 7 have completed the process within 49 days.
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8. Learned counsels for the respondent State accepted that the State has already given the approval.
9. Replying to the submissions of learned counsel appearing on behalf of the respondent-JAC, Mr. Saurabh Shekhar, learned counsel for the petitioners submits that this Court has ample powers under Article 226 of the Constitution of India to grant relief if the same is not disputed.
10. He referred to the judgment rendered in the case of "ESI Corpn. v. Jardine Henderson Staff Assn." reported in (2006) 6 SCC 581. Paragraph no.63 of the said judgment is quoted herein below:
"63. The High Court under Article 226 and this Court under Article 136 read with Article 142 of the Constitution of India have the power to mould the relief in the facts of the case."
11. He further draws attention of the Court to the judgment delivered by the Hon'ble Patna High Court in the case of Brij Bhukan Kalwar and Ors. v. S.D.O. Siwan and Ors reported in AIR 1955 Patna 1 (Special Bench). Paragraph no.5 of the said judgment is quoted herein below:
"5. But, before I proceed to determine what orders should be passed in each of these cases, I have to pronounce upon the validity or otherwise of the Act or that part of the Act which is impugned.
"An unconstitutional Act is not law, it confers no rights, it imposes no duties, it affords no protection, it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed."- Field J. in - 'Norton v. Shelby County', (1885) 118 US 425 (A).
Willoughby has quoted the following passage from the judgment of the Court of West Virginia in - 'Shepherd v. Wheeling', 30 W Va 479 (B) and has observed that the doctrine that the judicial declaration of the unconstitutionality of a statute has not the effect of a veto or nullification or abrogation of the statute so as, in effect, to strike it from the statute books, is excellently stated in this judgment:
"(The Court) does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognize it, and determines the rights of the parties just as if such statute had no application. The Court may give its reasons for ignoring or disregarding the statute, but the decision affects the parties only, and there is no judgment against the statute. The opinion or reasons of the Court may operate as a precedent for the determination of other similar cases, but it does not strike the statute from the statute book; it does not 6 repeal......the statute. The parties to that suit are concluded by the judgment, but no one else is bound. A new litigant may bring a new suit, based on the very same statute, and the former decision cannot be pleaded as an estoppel, but can be relied on only as a precedent. This constitutes the reason and basis of the fundamental rule that a Court will never pass upon the constitutionality of a statute unless it is absolutely necessary to do so in order to decide the case before it."
No particular points have been formulated for determination by this Special Bench, and what we have to determine is whether any of these applications is fit to succeed, and, certainly, if the applications are to succeed, at least certain portions of the statute will have to be declared unconstitutional and void. Some of these applications have been contested not only on behalf of the State but also on behalf of certain private parties, and, in fact, Mr. Amin Ahmad who has appeared for the opposite party in Miscellaneous Judicial Case No.173 of 1953 has defended this Act much more strongly than the learned Government Advocate.
He was supported to some extent by the learned Advocate-General who gave the final reply on behalf of the State. We shall, therefore, have to give our judicial pronouncement against the statute only in so far as it is necessary for the determination of the rights claimed by the petitioners, and in cases in which there is contest on behalf of private parties, we will have to give the same amount of consideration and weight to the submissions made on their behalf which we are bound to give to the submissions made on behalf of the State."
12. Learned counsel for the petitioners further submits that clause-3 of the letter dated 18.05.2017 is not speaking that if the process is not completed within 45 days, no approval will be given by the respondent-JAC.
13. In the facts and circumstances of the above arguments and the materials available on record and looking into the clause-3, it transpires that the process of advertisement was asked to be initiated by the respondent-JAC by letter dated 18.05.2017. As per clause-3, 45 days rider has been provided for completion of the process of appointment. On the query from the Court, the learned counsel for the respondent-JAC fairly submits that there is no statutory provision with regard to 45 days. The learned counsel for the respondent-JAC admitted this position that this is an administrative order. The learned counsel for the respondent nos.6 and 7 disclosed that how 4 days' delay has taken place in 7 completion of that process. The 45 days' rider cannot be said to be a mandatory one. As sufficient explanation has been given in the counter affidavit by the respondent nos.6 and 7 about 4 days delay in the selection process, which has already taken place and the entire exercise cannot be allowed to be annulled only on the ground that it has been completed after 4 days of rider which is made as 45 days. The 45 days rider is not statutory and not mandatory. The petitioners were already provided the appointment letters and that is why the petitioners have approached this Court in the nature of mandamus. The letter dated 12.12.2017, as contained in Annexure-H and Annexure-E to the counter affidavits, on which, much reliance has been placed by the learned counsel for the respondent-JAC, has not been communicated to the petitioners and that is why it has not been challenged by the petitioners. The letter dated 12.12.2017 has been passed on the strength of clause-3 of letter dated 18.05.2017. The Court finds that there is no mention of the fact that if the process has not completed within 45 days, approval cannot be provided. The right accrued in favour of the petitioners cannot be allowed to be frustrated only for 4 days delay and that too in absence of any statutory provision of completion of procedure within 45 days. It is an admitted position that rider of 45 days is administrative in nature. This Court finds that this is a fit case of only a procedural irregularities which can be regularized and in view of the completion of the exercise that too, by way of delay of 4 days, the action of the respondent-JAC is not justified. This Court finds that this is a fit case to apply the ratio of judgment rendered by the Hon'ble Supreme Court in the case of "ESI Corpn. v. Jardine Henderson Staff Assn." and "Brij Bhukan Kalwar and Ors. v. S.D.O. Siwan and Ors." (supra), and accordingly, both the writ petitions stand allowed.
14. The respondent-JAC is directed to accrue the approval in favour of the petitioners as the appointment letters have already been issued and the 8 Government has already approved and merely on the ground of 4 days delay, in absence of any statutory provision and mandatory in nature, the same cannot be denied. In view of the fact that the clause-3 is not statutory in nature and the letter dated 12.12.2017 has been issued on the basis of clause-3, the said letter is not coming in the way of the Court to pass any order in the nature of mandamus.
15. With the aforesaid observations and directions, these writ petitions stand allowed and disposed of.
16. I.A., if any, also stands disposed of.
(Sanjay Kumar Dwivedi, J.) Ajay/