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2010 DIGILAW 217 (JHR)

Permanand Singh v. State of Jharkhand

2010-02-09

M.Y.EQBAL, R.R.PRASAD

body2010
JUDGMENT M. Y. Eqbal, J. 1. This appeal is directed against the judgment dated 20.5.2009 passed in W.P. (S) No.106 of 2007 whereby the learned Single Judge dismissed the writ petition filed by the petitioner-appellant wherein appointment of respondent No.5 as Para-Teacher was challenged. 2. The facts of the case lie in a narrow compass: - In January, 2006, an advertisement was issued by the concerned respondents for appointment of teachers for the Primary Schools under the scheme of District Level Jharkhand Education Project Council. The minimum qualification fixed in the advertisement was Intermediate. Further, it was mentioned in the advertisement that in case of two persons having identical/similar qualification, then preference will be given to Intermediate (Science) candidates. Further condition was laid down that preference will be given to those who are highly qualified. Both the appellant (writ petitioner) and respondent No.5 applied for the said post. On the one hand, qualification of the appellant was M.A. with Basic Teachers' Training, whereas qualification of respondent No.5 was only I.Sc. In spite of the condition put in the advertisement, respondent No.5 was selected for the said post. 3. Petitioner-appellant then moved this Court by filing W.P. (S) No.106 of 2007 challenging the appointment of respondent No.5 on the ground inter alia that appellant possessing higher qualification i.e. M.A. with Basic Teachers' Training, but respondent No.5 who was got qualification of I.Sc. only, was selected for appointment on the post of Teacher. Respondent filed counter affidavit and the learned Single Judge dismissed the writ petition relying on the statements made in 2 L.P.A.No.322/09 the counter affidavit that the post advertised was for Intermediate Science Teachers and therefore, since respondent No.5 was holding qualification of I.Sc., he has been selected. 4. We have heard Mr. B.K. Dubey, learned counsel appearing for the appellant, Mr. S.P. Roy, learned counsel appearing for the private respondent. 5. For better appreciation, the relevant portion of the judgment passed by learned Single Judge is quoted herein below: - "The learned counsel for the respondent has drawn my attention to the counter affidavit stating that the post advertised was for Inter Science and it was in this background that they preferred respondent No.5 who was having an Intermediate Science qualification. For better appreciation, the relevant portion of the judgment passed by learned Single Judge is quoted herein below: - "The learned counsel for the respondent has drawn my attention to the counter affidavit stating that the post advertised was for Inter Science and it was in this background that they preferred respondent No.5 who was having an Intermediate Science qualification. The petitioner participated in the process along with others and after due selection could not compete and there is no dispute about the fact that it is a selection post and it cannot be claimed as a matter of right. The guideline that preference will be given does not by itself entitle or confer any legal or an accrued or vested right to be appointed which can be enforced by way of a writ of mandamus. It is only an added qualification with the pre- condition that only in situation when there are identical candidates having identical qualification such preference will be taken into account. The fact remains that the petitioner was not having a science background even though he may be M.A." 6. Prima facie, learned Single Judge has committed error of record inasmuch as the advertisement was issued not for appointment of Inter Science Teacher, rather for appointment of a teacher in a Primary School. In the said advertisement, as stated above, it was clearly mentioned that preference will be given to those who are highly qualified. Admittedly, the appellant was much more qualified than that of respondent No.5 and, therefore, selection of respondent No.5 on the false statement made in the counter affidavit that advertisement was for Science Teacher is absolutely and palpably incorrect, arbitrary and malafide. 7. For the reason aforesaid, this appeal is allowed and the impugned judgment is set aside. It is held that the appellant who is M.A. with Basic Teachers' Training is entitled to be appointed on the post of primary teacher.