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2013 DIGILAW 881 (JHR)

Narendra Kumar Paswan v. State of Jharkhand

2013-07-22

APARESH KUMAR SINGH

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JUDGMENT 1. Heard counsel for the parties. 2. Petitioner was denied interview in the Combined Junior Engineer Recruitment Examination, 2012 conducted by the J.P.S.C. on 7.12.2012, though he had succeeded in the written examination. 3. According to the petitioner, vide Annexure-3 - the advertisement, applications were invited from interested candidates for appointment to the post of Junior Engineer( Civil / Mechanical) in several works department as also in the Energy Department of the Government of Jharkhand against several vacant post indicated therein. In respect of the eligibility criteria age relaxation of 5 years was to be granted to the permanent / temporary employees of the Government of Jharkhand or handicapped persons. The petitioner admittedly was appointed as Junior Engineer on contractual basis in the Jharkhand Education Project Council, Palamau under “ Sarva Siksha Abhiyan” and worked since 16th November,2005. The date of birth of the petitioner is October, 1970 and as per the said advertisement he would have otherwise been disqualified as the maximum age prescribed is 40 years for Scheduled Caste candidate to which the petitioner belong. Petitioner admittedly was more than 40 years by the cut of date i.e. 31.3.2012 and made that application to avail of the relaxation of age as permissible under clause 3 of the advertisement no. 27/2012. In the written test he was qualified and called for interview but was denied interview held on 7.12.2012. 4. According to the petitioner he approached this Court for directing the respondents to arrange for interview as he has wrongly been disqualified. It is the contention of the petitioner that the respondents appeared to have disqualified the petitioner at the stage of interview by denying him age relaxation of 5 years and not treating him as temporary employee of the Government of Jharkhand as he was engaged on contractual basis in Jharkhand Education Project Council, Palamau. Learned counsel for the petitioner submits that the post under which he was working was created under “ Sarva Siksha Abhiyan”, which is centrally sponsored scheme. The temporary post has been defined under Rule 48 of the Jharkhand Service Code as per which the temporary post means a post created for limited purpose and having fixed rate of pay. Learned counsel for the petitioner submits that the post under which he was working was created under “ Sarva Siksha Abhiyan”, which is centrally sponsored scheme. The temporary post has been defined under Rule 48 of the Jharkhand Service Code as per which the temporary post means a post created for limited purpose and having fixed rate of pay. In such circumstances, petitioner should have been treated as temporary employee of the Government of Jharkhand and should not have been denied to participate in the interview and selection of the said recruitment exercise. 5. He has further submitted that the reliance of the respondents upon the Division Bench Judgment of this Court rendered in L.P.A. No. 23 of 2013 dated 5.3.2013 in respect of the same advertisement, however is wholly misplaced. According to the petitioner the interpretation of Rule 48 and the fact that the post was sanctioned under the centrally sponsored scheme and has limited scale of pay on which the petitioner was working on contractual basis goes to show that he had status of temporary employee. Therefore, the issue raised by the petitioner is still open for him to be argued. 6. Learned counsel for the respondents submit that in similar circumstance in the case of another candidate, who was contractual appointee and made application under advertisement no. 27/2012 i.e. same advertisement was refused interview and selection on the ground of not falling under the category of permanent / temporary employee to get the benefit of age relaxation. The issue was raised and decided by the Learned Single Judge and the matter was again taken in appeal in L.P.A. No. 23 of 2013. The Division Bench of this Court also considered the scope of the advertisement and meaning of permanent / temporary employee as restrictive in the advertisement and held that the same does not provide any benefit to the contractual appointee. Learned counsel for the respondents also submitted that in the appointment letter of the petitioner enclosed as Annexure-2 , the conditions as enumerated thereunder, it has been clearly stated in condition no. 1 that the employment should not be considered as government service. In such circumstance, petitioner does not have any case in the instant writ petition and it should be dismissed. 7. I have heard the counsel for the parties at some length and gone through the relevant materials on record. 1 that the employment should not be considered as government service. In such circumstance, petitioner does not have any case in the instant writ petition and it should be dismissed. 7. I have heard the counsel for the parties at some length and gone through the relevant materials on record. The issue raised in the present case is whether the respondents have been right in denying the petitioner to appear in the interview and not considering his candidature for recruitment in the exercise of appointment of Junior Engineer in various department of the State Government vide Advertisement No. 27/2012 issued by the Jharkhand Public Service Commission. The petitioner admittedly having been more than the age of 40 years on the cut of date on 31.3.2012 of the advertisement was seeking relaxation of age on the ground of temporary employee of the State Government working under the “Sarva Siksha Abhiyan” since, 2005 November. Though petitioner has tried to make out a case by making averments in the supplementary affidavit that the Government of Jharkhand has created and sanctioned number of post in respect of “Sarva Siksha Abhiyan” scheme which is centrally sponsored but no document in support thereof has been brought on record. Further, in view of the specific condition contained in the order of appointment that contractual appointment of the petitioner should not be considered as government service, the petitioner is guided by the terms of the appointment letter in absence of any rule to the contrary, as is well settled . 8. He has relied upon the provision of Rule 48 of the Jharkhand Service Code which provides definition of temporary post. Learned Division Bench of this Court was faced with similar issue in respect of same advertisement no. 27/2012 wherein a candidate had been denied consideration under the said advertisement by refusing him to provide age relaxation of 5 years on the ground that contractual employees are not permanent or temporary employee. Learned Division Bench of this Court after considering the submissions of the parties and judgment relied upon by the said petitioner in support thereof, however proceeded to hold that the advertisement itself contains restrictive benefits, restricted to permanent or temporary employee and not providing any benefit to the contractual employee. It further held that in the advertisement in question the word “employee” is not there, but restrictive word has been used. It further held that in the advertisement in question the word “employee” is not there, but restrictive word has been used. Therefore, learned Division Bench of this Court found no error in the judgment passed by the learned Single Judge and the L.P.A was dismissed . In the aforesaid circumstance, when the very issue relating to the status of contractual employee claiming relaxation of age has been considered and decided by the Division Bench of this Court, this Court is bound by the said judgment. 9. In such circumstance, petitioner has failed to make out a case for interference of this Court. Accordingly, the writ petition is dismissed having no merit.