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2013 DIGILAW 1120 (JHR)

Suman Dubey v. State of Jharkhand

2013-09-26

SHREE CHANDRASHEKHAR

body2013
JUDGMENT By Court - The petitioner has approached this Court seeking a direction upon the respondents for her appointment as a Prerak (Motivator). The specific plea raised by the petitioner in the writ petition is that she has been illegally and arbitrarily deprived appointment by the concerned respondents and she has not been appointed as Prerak rather, respondent no.5 has been appointed on the said post. 2. The brief facts of the case are that, in the proceeding dated 23.09.2011, the respondent no.5 was selected to be appointed as Prerak (Motivator). The petitioner made a complaint and on her complaint, an enquiry was instituted. The enquiry officer took note of the educational as well as other qualifications of the petitioner and the respondent no.5 and opined that the candidature of the petitioner was ignored and respondent no.5 has been appointed as Prerak. It appears that thereafter, the respondent no.5 was not offered appointment and therefore, respondent no.5 made a representation before the District Superintendent of Education requesting him to pass an order for her appointment, as she was duly selected by the Gram Sabha in its proceeding held on 23.09.2011. It appears that a second enquiry was instituted and enquiry report dated 08.06.2012 was submitted, a reading of which would disclose that the enquiry officer examined the members of the Gram Sabha and recorded a finding that in the proceeding held on 23.09.2011, the respondent no.5 was appointed. 3. A counter-affidavit has been filed on behalf of the respondent-State of Jharkhand as well as respondent no.5. In the counter-affidavit filed by the respondent no.5, a plea has been taken that she has been duly appointed and the document i.e. Annexure-1, on which the petitioner has placed reliance, was not applicable when the selection of the respondent no.5 was made. However, in the counter affidavit filed on behalf of the State, it has been stated : “21. That in reply to the statement made in para 14 of this writ application it is submitted that the experience was not the only criteria for selecting “Prerak” rather by considering all the criteria such as educational qualification and knowledge of computer the selection was to be done in this respect it is also humbly submitted that respondent no.5 had submitted her marks sheet of intermediate which goes to show that she had obtained 1st Div. marks in her intermediate examination as well as she had also given certificate regarding her computer education where as per the knowledge of Respondents, the petitioner had given only the marks sheet of Matric and even if her mark sheet of intermediate is also considered at this stage even then she had obtained the marks of 3rd Div as well as she had not given any certificate regarding her knowledge of computer, so far as experience certificates are concerned that were also not submitted along with application for the post of “Prerak” before the Aam Sabah by the petitioner rather after the selection of respondent no.5 it appears that she procured such certificates therefore the Aam Sabah rightly selected respondent no.5 according to merit as the respondent no.5 was 1st Div. in intermediate and she had also knowledge of computer.” 4. Heard the counsel appearing for the parties and perused the documents on record. 5. The learned counsel appearing for the petitioner has submitted that the petitioner admittedly is qualified alongwith respondent no.5 and the petitioner has undertaken training in Adult Education, Literacy Programme, Community Development, Social Service and Vocational Skill and she had been working as Prerak previously also however, the Gram Sabha had ignored her candidature and respondent no.5 has been appointed on the said post. He has placed further reliance on the document, which has been filed as Annexure-1 dated 11.07.2012, which details the other qualifications/experiences, a candidate possessing which can be given preference for the appointment on the post of Prerak. 6. The learned counsel appearing for the respondent-State of Jharkhand has submitted that the appointment of Respondent No.5 has been made in accordance with law and instructions issued for appointment on the post of 'Prerak' have been followed. 7. Learned counsel appearing for the respondent no.5 raised a plea that, since the proceeding of the Gram Sabha dated 23.09.2011 has not been challenged by the petitioner, the appointment of the petitioner cannot be interfered with by this Court. He has further submitted that, it was the subjective satisfaction of the Gram Sabha with respect to the comparative merit of two candidates, both having minimum requisite qualifications for appointment on the post of Prerak, and therefore, this Court in exercise of its power would not be justified in reviewing the decision taken by the Gram Sabha. He has further submitted that, it was the subjective satisfaction of the Gram Sabha with respect to the comparative merit of two candidates, both having minimum requisite qualifications for appointment on the post of Prerak, and therefore, this Court in exercise of its power would not be justified in reviewing the decision taken by the Gram Sabha. He has further placed reliance on the provision of the Jharkhand Panchayati Raj Act, 2001 and Part-IX of the Constitution of India to support his contention. 8. On a perusal of the documents on record more particularly, Annexure-1 to the writ petition and the statement made in paragraph no.21 of the counter-affidavit filed on behalf of the respondent-State of Jharkhand, it is apparent that there are certain qualifications, which have been held to be desirable while making selection on the post of Preraks. It has been alleged by the respondent-State of Jharkhand that the respondent no.5 produced a computer certificate, while the petitioner failed to produce any such certificate indicating knowledge in computer. It would further appear from the first enquiry report that enquiry officer has found that the petitioner is having other relevant experiences, which have been ignored by the Gram Sabha while making appointment on the post of Prerak. The second enquiry report does not disclose anything whatsoever, with respect to either the merit or the experience, which the petitioner as well as the respondent no.5 possess. It simply records that the respondent no. 5 was appointed in the proceeding dated 23.09.2011 of the Gram Sabha. 9. Adverting to the contention raised on behalf of the learned counsel appearing for the respondent no.5 that, the decision of the Gram Sabha taken on 23.09.2011 is not open to judicial review, I am of the view that this is a cardinal principle of law that any action of the authorities is subject to the test on the touchstone of Article 14 of the Constitution of India. The object which is sought to be achieved must have a nexus with the decision taken. The object which is sought to be achieved must have a nexus with the decision taken. In the present case, the petitioner who worked previously on the post of Prerak and who has undergone certain trainings, which would be relating to discharging her function on the post of Prerak and such experience of the petitioner has been overlooked by the Gram Sabha and therefore, it cannot be said that the decision taken by the Gram Sabha is not open to challenge. The petitioner has specifically alleged arbitrariness and therefore, I hold that the writ petition challenging decision of the Gram Sabha is maintainable. However, in the interest of justice and to protect the interest of both the parties, the petitioner as well as the respondent no.5, I feel it proper to direct the Principal Secretary, Department of Human Resources Development, to appoint an officer in the rank of Deputy Commissioner to hold an enquiry into the matter and after affording proper opportunity of hearing to both the parties, i.e., the petitioner as well as the Respondent No.5, take a decision in the matter. 10. This writ petition is disposed of with the aforesaid direction.