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2014 DIGILAW 418 (JHR)

Uttam Kumar v. State of Jharkhand

2014-03-24

R.BANUMATHI, SHREE CHANDRASHEKHAR

body2014
JUDGMENT By Court- This appeal is preferred against the order dated 18.2.2014 passed in W.P (S) No.2126/2012, in and by which learned Single Judge dismissed the writ petition declining to issue direction to the respondents for regularization of the services of the appellant on the post of Assistant Master (Computer Science). 2. Vide order dated 5.2.2008, the appellant was appointed on contractual basis as Assistant Master in Netarhat Residential School and the tenure of the appellant was extended periodically for one year, vide order dated 27.3.2009, with effect from 5.2.2009 and thereafter, vide order dated 12.10.2010, for a further period of one year with effect from 5.2.2010. In response to the Advertisement No.1/2012, the appellant applied for the post of Assistant Master and he was unsuccessful in the selection process. 3. On 18.3.2013, the appellant made a representation before the Governor, Jharkhand, for consideration of his case for regularization. The appellant filed W.P(S) No.2126/2013, seeking regularization of his service on the post of Assistant Master contending that he is working as Assistant Master for a long time and he 2.continued till the year 2012 and was rendered jobless after selection process of Advertisement of 2012. 4. Learned Single Judge dismissed the writ petition holding that after being unsuccessful in the selection exercise conducted under Advertisement No.1/2012, the appellant has chosen to seek regularization of his service in the school by filing W.P(S) No.2126/2013. It was held that having been unsuccessful in the selection process, the appellant cannot seek for regularization of his service on the post of Assistant Master (Computer Science). On those findings, learned Single Judge dismissed the writ petition. Being aggrieved by the dismissal of the writ petition, the appellant has filed this letter patent appeal. 5. The learned counsel for the appellant submitted that the writ court failed to take into consideration that the appellant worked in Netarhat Vidyalaya Samiti for quite long time and his teaching experience was not taken into consideration for regularization. Placing reliance on the order passed in CWJC No.237 of 1997(R), the learned counsel further submitted that the learned Single Judge did not take into consideration the direction issued in the said case, whereby and whereunder the school authorities were directed to take steps for appointment of permanent teachers against sanctioned and vacant posts as per rules by giving relaxation of age. 6. 6. The learned counsel appearing for the respondents has submitted that the appellant has participated in the selection process, pursuant to the Advertisement no.1 of 2012 and secured only 72 marks out of 100; whereas short listed candidates have obtained 95 and 94 marks respectively and having participated in the selection process, the appellant cannot turn around and seek for regularization. The learned counsel for the respondents also submitted that mere inclusion of the name of the 3.appellant in the short listed candidates does not confer upon him any indefeasible right for appointment. In this regard, the learned counsel for the respondents has placed reliance on the decisions rendered in the cases of Chairman, All India Railway Recruitment Board and another Vs. K.Shyam Kumar and ors. reported in (2010) 6 SCC, 614 and Punjab State Electricity Board and ors. vs. Malkiat Singh, reported in (2005) 9 SCC 22 . 7. We have considered the submissions of the counsel for the appellant as well as the counsel for the respondents. Pursuant to the Advertisement no.1 of 2011, Netarhat Vidyalaya Samiti invited applications for appointment of Teachers, Administrative Officer, and Medical Officer. In the advertisement, it was stated that the employees appointed on contract/daily wage basis on or before 15.12.2009 will be eligible for applying for theadvertised posts and they will be given one time relaxation from upper age limit, provided they are found fit on all other grounds. The said advertisement also indicated that the teaching and other experience in Netarhat Residential School will be counted as required teaching/ other experience in terms of qualification laid down for appointment. The appellant, who was appointed on contractual basis in Netarhat Vidyalaya Samiti in the year 2008 also applied for the post, pursuant to the advertisement and participated in the selection process. 8. It is stated that the total number of short listed candidates called for interview of Computer Science teacher was 34 and the appellant has also appeared in interview. It is however stated that the appellant has secured 72 marks out of 100 and he has been placed at serial no.17; whereas the selected candidates secured 95 and 94 marks respectively. Since the appellant has secured only 72 marks and was placed at serial no.17, 4.he was unsuccessful in the selection process and, therefore he was not considered for appointment. Since the appellant has secured only 72 marks and was placed at serial no.17, 4.he was unsuccessful in the selection process and, therefore he was not considered for appointment. The appellant having participated in the selection process and having been found unsuccessful cannot turn around and seek for regularization. 9. During pendency of the writ petition, yet another Advertisement no.3 of 2013 has been issued for making regular appointment of teachers, wherein the maximum age prescribed was 40 years for general candidates, to which the appellant belongs. By filing an Interlocutory Application, the appellant challenged the said Advertisement no. 3 of 2013. Having participated in the earlier selection process pursuant to the advertisement, the learned Single Judge has rightly held that the appellant cannot challenge the said Advertisement no.3 of 2013 and seek for regularization of his service on the post of Assistant Master (Computer Science). 10. In so far judgment relied upon by the appellant in CWJC No.237 of 1997(R) dated 5.3.1997 is concerned, in the said case the order passed by the learned Single Judge, was with respect to an employee, who was appointed on adhoc basis and, therefore a direction was issued by the Court for making regular appointment and it was further ordered that till then, the writ petitioner therein would continue to work on adhoc basis. In this view of the matter, reliance placed by the learned counsel for the appellant on the order passed in CWJC No.237 of 1997(R) is misplaced and it cannot be taken into consideration. 11. The order of the learned Single Judge does not suffer from any infirmity, warranting any interference. The Letters Patent Appeal is, accordingly, dismissed.