Jharkhand High Court
Shyam Nandan Mehta vs Santosh Kumar on 10 February, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 103 of 2021
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Shyam Nandan Mehta, aged about 49 years, son of Ram Dhani Mehta, resident of village Merauni, P.O. Hariharpur Via Mohammadganj, P.S. Bhawanathpur, District-Garhwa (Jharkhand) ...... Appellant/Respondent No.7 Versus
1.Santosh Kumar, son of Sri Gauri Shankar Yadav, resident of Village Baghouta, P.O. Lagma, P.S. Garhwa, District-Garhwa, Jharkhand .... Respondent/Petitioner
2.The State of Jharkhand
3.The Principal Secretary, Department of School Education & Literacy Development, Government of Jharkhand, P.O. Dhurwa, P.S. Jagarnathpur, Ranchi.
4.The Director, Primary Education, Department of School Education and Literacy Development, Government of Jharkhand, P.O. Dhurwa, P.S. Jagarnathpur, Ranchi
5.The Deputy Commissioner-cum-Chairman, District Education Establishment Committee, Palamau at Medininagar, P.O. Daltonganj (Medininagar) & P.S. Daltonganj (Medininagar), District- Palamu, Jharkhand.
6.The District Superintendent of Education, Palamau at Medininagar, P.O. Daltonganj (Medininagar) & P.S. Daltonganj (Medininagar), District- Palamu, Jharkhand.
7.District Education Officer, Palamau at Medininagar, P.O. Daltonganj (Medininagar) & P.S. Daltonganj (Medininagar), District- Palamu, Jharkhand.
...Respondents No. 1 to 6/Respondents.
8.Vijay Kumar Gupta, son of late Bandhu Sahu, resident of village Dhangardiha (Imali), P.O. Kishunpur, P.S. Patan District-Palamu, Jharkhand
9.Pawan Kumar Gupta, son of Om Prakash Sah, resident of village Kamaru, P.O. Bakoria, P.S. Manika, District Palamu, Jharkhand.
10.Sushlesh Kumar, son of Ramcheedi Singh, resident of Hanuman Nagar, village Baralota, P.O. GLA College Complex, P.S. Daltonganj (Medininagar), District- Palamu, Jharkhand.
Proforma Respondents/Respondent No. 8 to 10
11.The Jharkhand Academic Council through its Secretary.
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2CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. Indrajit Sinha, Advocate For the State : Ms. Vandana Singh, Sr. S.C.-III For Resp. No. 1 : Mr. Anish Kumar Mishra, Adv. For the JAC : Ms. Richa Sanchita, Advocate.
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Oral Judgment Order No. 09: Dated 10th February, 2022:
The instant intra-court appeal under Clause 10 of the Letters Patent has been preferred by respondent no. 7-appellant against the order/judgment dated 22.02.2021 passed in W.P. (S) No. 5851 of 2017 whereby and whereunder the learned Single Judge, while allowing the writ petition, held the appointment of respondent nos. 7, 9 and 10 of the writ petition to be illegal and liable them to be terminated from service forthwith; and directed the respondents-State to conclude the verification of the relevant documents of the concerned within eight weeks and pass appropriate order; and further granted liberty to the writ petitioner to represent himself before respondent-authority for consideration of his case for appointment on the post of Assistant Teacher.
2. The brief facts, necessary for consideration of the lis, stand enumerated as hereunder:
The competent authority of the Government of Jharkhand had come up with an advertisement, being 3 Advertisement No. 03/Palamu/2015 dated 04.07.2015, for appointment on the post of Intermediate Trained Assistant Teacher/Intermediate Trained Urdu Teacher for the district of Palamau. The petitioner, who possessed degree of Master of Arts (History) as well as passed Teacher Training Examination and Teacher's Eligibility Test (in short 'TET'), participated in the process of selection for consideration of his candidature on the post in question along with other 1493 candidates by filling up the application form. A complete chart of 'Form Entry' made by all applicants against the vacancy was prepared. The entry so far as it relates to the petitioner it was done at serial no. 1377 and was given merit marks as 65.496. Similarly, entry related to respondent no. 7 (appellant herein) was made at serial no. 181 From no. 843 having merit marks 68.125. It has further been submitted that after seven rounds of counseling category-wise Final Merit List was prepared and accordingly, a consolidated appointment letter was issued, in which, though respondent no. 7 was declared successful but name of the writ petitioner did not find place in the final selection list.
It is the case of the writ petitioner that though respondent no. 7 secured more merit marks than writ 4 petitioner but by making manipulation in TET Examination wherein he had shown his status of caste under MBC category whereas in the selection process he had shown himself to be under BC category. So far other private respondents in the writ petition are concerned, it was contended before the writ Court that total marks obtained by respondent nos. 8 to 10 were less than that of petitioner but in the Final Merit List their names were included on account of horizontal reservation under handicapped category.
It was submitted that for the said manipulation and illegality done in the process of selection, the candidature of the petitioner could not come into the zone of consideration and had it not been done there was every likelihood of his selection and appointment on the post of Intermediate Trained Assistant Teacher.
Respondent no. 7 (appellant herein) appeared and filed counter affidavit wherein it has specifically been stated that he belongs to BC-II category, which would be evident from Certificate dated 03.02.2001 but due to inadvertent typing mistake by the Jharkhand Academic Council, the Category has been mentioned as 'MBC' in the TET Certificate issued by the Jharkhand Academic council, for which the petitioner cannot made to suffer. 5 It was further submitted that the appointing authority, after verification of the certificate submitted by the petitioner having found him above in merit position to writ petitioner, issued offer of appointment in favour of respondent no. 7, which cannot be said to be illegal.
The learned writ Court, considering the rival submissions advanced by learned counsel for the parties and considering the fact of issuance of TET certificate of respondent no. 7 treating him to be under MBC category while respondent no. 7 showed his candidature in the process of appointment as BC category, came to the conclusion that it is manipulation and suppression of fact and as such hold the appointment of respondent no. 7 to be illegal and liable to be terminated forthwith.
Aggrieved thereof, respondent no. 7 has approached this Court by filing present intra-court appeal.
4. Mr. Indrajit Sinha, learned counsel appearing for the respondent no. 7-appellant has submitted that there was no ulterior motive lying behind in producing the TET Certificate showing himself to be member of MBC. He has further submitted that he acted with all bona fide intention since on the date of counseling he produced the caste certificate duly issued by the competent authority of the State Government, basis 6 upon which his appointment was made. It has further been submitted that the appellant cannot be said to have committed any wrong or made manipulation as if the position of the vacancy will be seen, as referred in the advertisement, it would be evident that the vacancy position under the BC Category is lower in number in comparison to that of MBC category. The matter would have been different if the vacancy position in MBC category would have been lower in comparison to that of the BC category then only it could have been said that appellant, in order to, get advantage has come out with two different caste certificate showing himself to be BC category in the process of selection. He has further submitted that whatever mistake in the TET Certificate is, he has neither tried to take advantage of or tried to mislead the appointing authority since in the On-line Application Form filled up by the petitioner for consideration of his candidature for appointment to the post of Trained Intermediate Assistant Teacher he has declared himself to be the member of BC category and that was also the position of the date of verification of his original documents wherein he has submitted the caste certificate showing himself to be the member of BC category. Therefore, the order passed by the learned 7 Single Judge declaring his appointment illegal is not sustainable in the eye of law.
5. While on the other hand, Ms. Vandana Singh, learned S.C.III appearing for the State and Ms. Richa Sanchita, learned counsel for the Jharkhand Academic Council has jointly submitted that there is no error in the order passed by learned Single Judge reason being that respondent no. 7-appellant has applied for consideration of his candidature for appointment on the post of Intermediate Trained Teacher for which TET certificate is the foundation for consideration of candidature of one or the other candidate wherein since the respondent no. 7 has shown himself to be member of MBC category, but, subsequently in the counseling for appointment on the said post he shown himself to be the member of BC category, therefore, if the appointment of the appellant would be retained, in that circumstance the appointment would be based upon two declarations of the appellant about his status of caste. The TET certificate is mandatorily to be produced and it is sine qua non for appointment as teacher wherein itself the caste of the appellant has been shown to be incorrect while he himself disclosed the appointing authority as his caste BC category then question arises as to that 8 under what authority he is claiming to be retained in service basis upon the foundational certificate of TET certificate wherein his disclosure is otherwise. The learned Single Judge considering this aspect of the matter considered it manipulation and held the appointment of the appellant illegal, which may not be interfered with.
6. We have heard learned counsel for the appellant as also learned counsel for the State and JAC and perused the materials available on record as also the findings recorded by learned Single Judge.
7. The fact, which is not in dispute in the case in hand, is that the writ petitioner applied for his candidature for appointment on the post of Trained Intermediate Teacher in pursuance to the advertisement, being Advertisement No. 03/Palamu/2015 dated 04.07.2015, for the district of Palamau. The writ petitioner along with other candidates including respondent no. 7 participated in the process of selection. However, the writ petitioner was not finally selected whereas respondent no. 7 was declared successful to be appointed on the post in question.
The writ petitioner had questioned the appointment of respondent no. 7-appellant on the 9 ground that the while taking the TET examination respondent no. 7 shown himself to be under MBC category basis upon which TET certificate was issued wherein his caste has been shown as MBC. But while filling the Online Application Form for consideration of his candidature on the post of Trained Intermediate Assistant Teacher, he shown his caste to be BC category. According to writ petitioner, the appellant has committed manipulation in procuring the TET Certificate showing himself to be the member of MBC category while offering his candidature in the selection process as BC category and secured appointment. It is the case of the writ petitioner had such appointment been not made there was every likelihood of his selection.
The writ Court, considering the submission advanced by the parties and materials available before him, held the appointment of respondent no. 7 as also appointment of respondent nos. 9 and 10 to be illegal and liable their services terminated forthwith. Aggrieved thereof, respondent no. 7 has approached this Court by filing present intra-court appeal.
8. Mr. Sinha, learned counsel for the respondent no. 7-appellant has submitted that learned Single Judge while holding the appointment of respondent no. 7 to be 10 illegal and liable to be terminated has not considered the fact that appellant has not acted upon with ulterior motive. His submission is that ulterior motive of the appellant would have been there if he had taken any advantage by remaining in MBC category even during the process of selection. He has referred to the advertisement wherein vacancy position category-wise has been stipulated wherein vacancy position of BC category is lesser in number in comparison to that of MBC category. It has been submitted that if that was the position in the advertisement then the appellant would have also applied by taking aid of the TET certificate wherein he has been shown to be MBC category, which is having vacancy more in number in comparison to BC category. Therefore, aforesaid mistake may be treated to be due to inadvertence with no ulterior motive.
9. While on the other hand, learned counsel for the State as also Jharkhand Academic Council has submitted that TET Certificate is the basis of appointment of Trained Intermediate Assistant Teacher under the regulation of National Council of Teacher Education (in short 'NCTE') in exercise of power conferred under Right to Education Act, 2009. Since in the TET examination, the appellant has shown himself 11 to be members of MBC category while in the process of selection for appointment to the post of Trained Intermediate Assistant Teacher he has offered his candidature to be under BC category, which is complete converse in the status of the caste of the appellant, therefore, the appellant has got no right to remain on the said post reason being that basis upon which the appellant's candidature was accepted, it was TET examination certificate wherein caste of the appellant has been shown to be MBC category while in the selection process he has shown himself to be under BC category. Further submission has been made by referring to clause 20 of the advertisement wherein it has been stipulated that in case of any wrong information furnished by one or the other candidate the candidature of such candidate will be cancelled and they will be terminated from service if any illegality will come in surface even after the appointment of one or the other candidate. Therefore, the learned Single Judge while considering the aforesaid aspect of the matter is correct in holding the appointment of the respondent no. 7 to be illegal and liable to be terminated forthwith, which may not be interfered with.
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10. This Court, on the basis of aforesaid rival submission is required to consider in this case as to whether on the basis of declaration of status of caste by the appellant at two stages, i.e. 'TET Examination' and 'Process of appointment of Trained Intermediate Teachers' can he be allowed to retain in service?
11. This Court before answering this issue deems it fit and proper to go through the terms and conditions of the advertisement. Under clause 20 of the advertisement, it has specifically been advised to the candidates to furnish correct information and if any incorrect information will be found in course of process of selection or even after conclusion of process of selection, the candidature of such candidate may be cancelled and such candidate will be terminated from service. Further, there is no dispute about the fact that if any condition is stipulated in the advertisement, the same is strictly to be adhered to.
12. Admittedly, the respondent no. 7 - appellant has got TET Certificate showing himself to be under MBC category. This fact has been corroborated on perusal of the original record pertaining to TET Form/Certificate and application form of respondent no. 7-appellant [Shyam Nandan Mehta], which was called 13 upon by this Court vide order dated 29.06.2021 from the concerned respondent in course of hearing of this matter wherefrom it is evident that in the application form, which was filled up by the appellant for participating in the TET for primary level Class I to V, he had shown himself to be under MBC category based upon which TET certificate was issued. Filling up of the application by the appellant itself goes to suggest that with all consciousness he has shown his status of caste under MBC category.
Further, admitted fact is that the appellant had filled up the On-line application for consideration of his candidature for appointment on the post in question showing himself to be under BC category. Therefore, candidature of the appellant is found to be considered on the basis of two different caste status at two different forums i.e. before the Jharkhand Academic Council while giving examination of TET Examination he had shown himself to be the member of MBC category while before appointing authority he has offered his candidature showing himself to be under BC category. It is also not in dispute that under NCTE regulation passing of TET examination has been made mandatory and is foundation for such appointment. 14
13. The question is that when in foundation itself any wrong has cropped up, which has never been tried to be rectified by the appellant by making any application before the appropriate authority i.e. even after issuance of TET certificate showing his bona fide that such mistake has not been caused due to mala fide and with no ulterior motive, how the subsequent appointment can be made legal.
14. Further, question would be that if, on the basis of wrong details of status of caste TET Certificate was issued and subsequently showing candidature to be under BC category before the appointing authority he was appointed on the post in question, in such circumstance the learned Single Judge has come to the conclusion holding the appointment of the appellant to be illegal and liable to be terminated forthwith, which according to our considered view cannot be said to suffer from any error, the reason being that the writ Court is not supposed to see the mindset of a party who is before the Court of law rather it is incumbent upon the writ Court to go through the documents in order to come to the conclusion about illegality committed by one or the other candidate in the process of selection. 15
15. Mr. Indrajit Sinha, learned counsel for the appellant has tried to impress upon this Court that whatever so-called mistake has been committed by the appellant by showing him under two different categories may not be considered to be intentional and done with ulterior motive.
We are not impressed with such argument reason being that where a candidate has acted with bona fide motive it is to be reflected from the document. Moreover, if the appellant will be allowed to remain in service then what will happen to the illegality committed so far caste status of the appellant is concerned.
16. Therefore, if, the learned Single Judge, considering the aforesaid aspect of the matter has taken decision, holding the appointment of respondent no. 7 to be illegal and liable to be terminated forthwith, according to our considered view, cannot be said to suffer from any error.
17. Before parting with the order, it requires to refer, although the learned Single Judge has come to a conclusive finding holding the appointment of Respondent No.7 to be illegal and fit to be terminated forthwith, but no consequential direction has been passed for cancellation of the appointment of respondent 16 no.7, which according to our considered view, requires to be reflected in the impugned order.
Since we are in agreement with such finding recorded by the learned Single Judge on the basis of the discussions made hereinabove, therefore, deem it fit and proper to pass the consequential order for cancelling the appointment of respondent no. 7-appellant. In view thereof, the appointment of respondent No.7-appellant is cancelled.
The order passed by the learned Single Judge is modified to the extent, as above.
18. Accordingly, the appeal fails, and is dismissed.
19. Let the original record called for in course of hearing of the matter pertaining to TET Application Form/Certificate of appellant-Shyam Nandan Mehta, in compliance of order passed by this Court dated 29.06.2021, be returned to the authority concerned forthwith.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Alankar/ -
A.F.R.