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2009 DIGILAW 1599 (JHR)

Yugal Kishore Rai v. State of Jharkhand

2009-12-17

AMARESHWAR SAHAY

body2009
Judgment By Court.-Heard the parties. 2. The grievance of the petitioner is only this much that though their names appear in the original selection list, which was published on 9.7.2000 but, subsequently, a revised select list was published on 17.10.2001 in which the names of petitioner nos. 1 to 3 namely, Yugal Kishore Rai, Suresh Chandra Manjhi and Nand Lal Thakur were not included. It appears that an order as contained in Annexure-10 dated 2.7.2002 was issued whereby the petitioner nos. 1 To 3 have been informed that since they were not included in the revised select list dated 17.10.2001 and, therefore, they have not been appointed. It further appears that the name of petitioner no. 4 Sanatan Rawani though was included in the revised select list dated 17.10.2001 but he has also not been appointed since his name appeared much below in the select list. 3. The grievance of the petitioners is that without issuance of any notice to show cause and/or without complying the principles of natural justice, their names have removed from the revised select list, published on 17.10.2001 therefore, the same cannot be sustained. 4. A counter affidavit has been filed on behalf of the respondent nos. 2 & 3 wherein it is stated that as per the District Level Selection Committee a Scheme was drawn up and, accordingly, a panel was prepared. The names of the deserving candidates were duly recommended but subsequently, it was found that the said list was suffering from certain defects in respect of merits of the candidates including the fact that only three of them were given the marks of overage while others were deprived of this privilege: and, as such, the said panel was cancelled and no appointment was made on the basis of the aforesaid defective panel. A final panel of 132 candidates was published on 17.10.2001 after removing the defects in the earlier panel by the Establishment Selection Committee on merit basis in which the petitioner nos. 1, 2 and 3 did not find any position. However, petitioner no. 4 occupied SI. No. 70 but since there was vacancy of only 66 posts and, therefore, the candidates till SI No. 66, were given appointment and the petitioner no. 4 who was at 51. No. 70 could not be appointed. 1, 2 and 3 did not find any position. However, petitioner no. 4 occupied SI. No. 70 but since there was vacancy of only 66 posts and, therefore, the candidates till SI No. 66, were given appointment and the petitioner no. 4 who was at 51. No. 70 could not be appointed. Nothing has been stated in the counter affidavit that prior to removal of the name of the petitioners from the revised select panel any notice to show cause or a chance of hearing was given to them. 5. By filing a rejoinder to the counter affidavit, the petitioners have tried to point out several anomalies and defects in the new revised panel. The defects pointed out by the petitioners in their rejoinder are quoted hereinbelow:- (i) Only defect that has been referred to in the Annexure-A to the counter affidavit is about age marks being given to only 3 persons. Therefore, it is averred in the counter affidavit that purported defect in the final panel was on account of age marks not being granted to certain deserving candidates who were deprived of this privilege/benefit. This part is a matter of record. However, it is most humbly stated and submitted that the revised panel has been prepared not only upon correcting this defect but in spite a whole sale reassessment and to term it more correctly wholesale manipulation has been done in the name of rectifying one defect as pointed out. (ii) It is denied and disputed that the panel was cancelled. In fact, Annexure-A itself states that the panel was defective and hence needed to be amended. Further Annexure.2 also reads “Atah Ukat Panel Ko antim Rup Se Pradarshit Panel Nahin Samjha Jai." Thus, it is clear that the panel dated 9.7.2000 was never cancelled. (iii) It is denied and disputed that the petitioners ever received notices contained in Annexure-S to the counter affidavit. The Annexure-S is a blank proforma, which has been produced merely to camouflage the arbitrary actions of the Respondents. It is denied and disputed that the new panel of 132 candidates was Ewer exhibited/published on 17.10.2001. In fact, the entire exercise is illegal, arbitrary and has been done in the most hush-hush manner to deprive the deserving candidates from getting employment and to secure the employment of certain blue eyed boys of the powers that be. It is denied and disputed that the new panel of 132 candidates was Ewer exhibited/published on 17.10.2001. In fact, the entire exercise is illegal, arbitrary and has been done in the most hush-hush manner to deprive the deserving candidates from getting employment and to secure the employment of certain blue eyed boys of the powers that be. (iv) It is vehemently denied that the Establishment Selection Committee published final panel on 17.10.2001 on merit basis as would be evident from the averments below, the so-called rectified panel is arbitrary and unsustainable in the eyes of law. (v) In any event, it is stated and submitted that once the respondent no. 2 had finally recommended the names of persons to be appointed the said Committee became functus officio and incompetent to revise the said panel. In any event the Respondent No.3, i.e. the Dy. Commissioner, Deoghar was incompetent and without jurisdiction to order removal of rectifications of detects in the panel or convert the final panel of recommended candidates into a provisional panel. (vi) In any event, in view of the fact that the name of the petitioners had been finally recommended by the Respondent No.2, a right had accrued in the petitioners to be appointed in accordance with the said panel as and. when the appointments were to be made. Therefore, in the event of any change in the composition of the panel affecting the place of the petitioners in the said panel, the petitioners ought to have been given individual notice or personal hearing. (vii) It is settled law that the Appointing Authority cannot partly accept or reject the recommendations of the recommending Authority. In fact, by ordering the final panel dated 9.7.2000 prepared by the Respondent No. 2 to be treated as provisional, the Respondent No. 3 actually made a colourable exercise of power and rejected the recommendations made by the recommending body in part. 6. This Court is not going to examine the infirmity pointed out, by the petitioners, quoted hereinabove; rather it is left upon for the respondents to consider. 7. This writ application is being allowed only on the ground that before issuing Annexure-10 dated 2.7.2002, informing the petitioners that they. 6. This Court is not going to examine the infirmity pointed out, by the petitioners, quoted hereinabove; rather it is left upon for the respondents to consider. 7. This writ application is being allowed only on the ground that before issuing Annexure-10 dated 2.7.2002, informing the petitioners that they. have not been selected since their names did not appear in the revised select list, was passed without complying the principles of natural justice and, therefore, the same is hereby quashed and the petitioners are given liberty to file a fresh representation stating in detail about his claim and grievance, which have been raised in this writ petition, alongwith supporting documents, if any, before the District Level Selection Committee, Deoghar through its Chairman, Deputy Commissioner, Deoghar alongwith a copy of this order. If such representation is filed by the petitioners the District Level Selection Committee shall consider the representation filed by the petitioners in its right perspective and, thereafter, shall pass a fresh reasoned order in accordance with law within a period of eight weeks from the date of filing of such representation.