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2015 DIGILAW 944 (JHR)

Sundar Bauri v. State of Jharkhand

2015-08-11

D.N.PATEL, RATNAKER BHENGRA

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JUDGMENT : D.N.Patel, J. 1. This Letters Patent Appeal has been preferred against the order dated 25th March, 2014 passed in W.P.(S) No. 2507 of 2013, whereby the said petition preferred by this appellant has been dismissed and his prayer for appointment on the post of Chowkidar has been rejected by the learned Single Judge and therefore, original petitioner has preferred this Letters Patent Appeal. Submissions made on behalf of counsel for the appellant (Original Petitioner) 2. Counsel for the appellant (original petitioner) submitted that in fact this appellant was already selected on the post of Chowkidar vide resolution/order dated 27 August, 1991. However, even after a long lapse of time the respondent Government has not appointed this appellant as a Chowkidar and therefore, W.P.(C) No. 8159 of 1998 was instituted before this Court, which was decided vide order dated 29th June, 2004, in which it has been stated that the respondents shall decide the claim of this appellant in accordance with law. Thereafter, the respondent again passed an order rejecting the claim of this appellant contending that as per the prevailing rule/practice the minimum prerequisite qualification for the post of Chowkidar is Matriculation and therefore, this appellant could not be appointed because he has not cleared Matriculation examination. It is submitted by the counsel appearing for the appellant that neither the respondent State nor the learned Single Judge has appreciated that this appellant has already been selected for appointment on the post of Chowkidar on 27th August, 1991 and it is the Government, who has not appointed him even after lapse of a long time and therefore, the position prevailing on 27th August, 1991 under law should be made applicable to the appellant and not the latest criteria, which is now required for the post of Chowkidar. It is further submitted by the counsel for the appellant that actually this was the direction given by the learned Single Judge while disposing of W.P.(C) No. 8159 of 1998 vide order dated 29th June, 2004 and hence, the judgment and order delivered by the learned Single Judge in W.P.(S) No. 2507 of 2013 dated 25th March, 2014 deserves to be quashed and set aside and this appellant should be appointed on the post of Chowkidar. Submissions made on behalf of the respondent-State 3. Submissions made on behalf of the respondent-State 3. Counsel for the respondent State submitted that no error has been committed by the learned Single Judge in dismissing W.P.(S) No. 2507 of 2013 preferred by this appellant. The post of Chowkidar is not a post of inheritance, especially after the Indian Constitution came into force. It is a public post and therefore, there bound to be a public advertisement and public at large should be allowed to compete for the said post, whereas in the facts of the present case no such public advertisement was ever given. It is further submitted by the counsel for the respondents that minimum prerequisite educational qualification for the post of Chowkidar is clearance of Matriculation examination by the candidates. This appellant has not cleared matriculation examination, hence he cannot be appointed on the post in question. 4. Counsel for the respondent has relied upon the decision rendered by the Hon'ble Supreme Court in the case of Surender Paswan & Ors. vs. State of Bihar & Ors., reported in (2010)6 Supreme Court Cases 680 and has submitted that in view of the aforesaid decision and taking into consideration the fact that public advertisement is must for appointment on a public post, this appellant can not be appointed directly on the post of Chowkidar without there being fulfillment of the criteria of minimum educational qualification of Matriculation and without publication of any public advertisement, which is necessary under Article 16 of the Constitution of India and therefore, there being no substance in this Letters Patent Appeal, it may not be entertained by this court. REASONS: 5. Having heard counsel appearing for both sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following facts and reasons: (I) This appellant is claiming the post of Chowkidar on the basis of some resolution/order dated 27th August, 1991 passed by the Sub Divisional Officer, Jamtara. This resolution/order was never implemented by the Government since 1991. Therefore, W.P.(C) No. 8159 of 1998 was preferred by this appellant, which was disposed of by the learned Single Judge vide order dated 29th June, 2004 in which following direction was given in para No. 13 as under: “13. For the foregoing reasons therefore, this Court has not Consequently, the orders passed on 15.02.1997 and 23.04.1998 are hereby set aside. Therefore, W.P.(C) No. 8159 of 1998 was preferred by this appellant, which was disposed of by the learned Single Judge vide order dated 29th June, 2004 in which following direction was given in para No. 13 as under: “13. For the foregoing reasons therefore, this Court has not Consequently, the orders passed on 15.02.1997 and 23.04.1998 are hereby set aside. However, taking into consideration that the decision to appoint the Petitioner was taken in the year 1991, it is now desirable that the Respondents should pass a final order strictly in accordance with law after taking into consideration the order dated 27.08.1991 passed by the Sub Divisional Officer.” (Emphasis supplied) In pursuance of the aforesaid direction, the State Government passed an order rejecting the claim of this appellant for appointment on the post of a Chowkidar and therefore, this appellant has again preferred a writ petition, being W.P.(S) No. 2507 of 2013, which has been dismissed by the learned Single Judge vide order dated 25th March, 2014 and thereafter, being aggrieved and feeling dissatisfied by this order, the appellant has preferred the present Letters Patent Appeal. (II) It appears that the post of Chowkidar is not a post of inheritance. For appointment on the post of Chowkidar, there bound to be publication of advertisement and the public at large must be allowed to compete. In the facts and circumstances of the present case no such public advertisement has been published as required under Article 16 of the Constitution of India and directly the Sub Divisional Officer, Jamtara passed an Order dated 27th August, 1991 for appointment of this appellant on the post of Chowkidar, which is not permissible and in gross violation of the Article 16 of the Constitution of India. The whole case of this appellant is based upon the Order dated 27th August, 1991 passed by the Sub Divisional Officer, Jamtara, which has not been implemented by the State since the year 1991. (III) It has been held by the Hon'ble Supreme Court in the case of Surender Paswan & Ors. vs. State of Bihar & Ors. reported in (2010)6 Supreme Court Cases 680 para 18 as under: “18.We therefore dispose of this appeal with the following directions: (i) The direction contained in the High Court's order dated 7-4-1997 to hold fresh election process for the posts of chowkidars is reiterated. vs. State of Bihar & Ors. reported in (2010)6 Supreme Court Cases 680 para 18 as under: “18.We therefore dispose of this appeal with the following directions: (i) The direction contained in the High Court's order dated 7-4-1997 to hold fresh election process for the posts of chowkidars is reiterated. (ii) Having regard to the fact that the Bihar Chowkidar Gradation Rules, 2006 have come into force, the selections will be done by the Selection Committee constituted as per the said Rules, in accordance with the said Rules, instead of by the District Collector. (iii) The appellants and Respondents 4 to 27 will be entitled to apply for the post, subject to fulfilling the eligibility criteria as per the said Rules. However, age relaxation shall be given in the case of the appellants and Respondents 4 to 27 and they will be entitled to apply, irrespective of their present age, subject to fulfillment of eligibility requirements. (iv) Respondents 1 to 3 are directed to initiated the process of selection and complete the same within six months and till such selection and appointment, the present incumbents will be entitled to continue as chowkidars purely on ad hoc basis. Order accordingly” (Emphasis supplied) It further appears that now for the post of Chowkidar the minimum educational qualification is clearance of Matriculation examination, which is the prerequisite educational qualification for Class IV employees. This appellant does not possess this qualification and therefore also he cannot be appointed on the post of Chowkidar. (IV) Counsel for the appellant has submitted that as he was already selected by the S.D.O., Jamtara on 27th August, 1991, the new rules relied upon by the respondents are not applicable to this appellant and he is governed by the rules prevailing in 1991. This contention is not accepted by this court mainly for the reason that when the appointment is to be made in a particular year, the Rules/Practice relating to qualification for appointment prevailing in that year is to be taken into consideration, i.e. if a Chowkidar is to be appointed in the year 2015, appointment will be made by the State on the basis of the criteria of qualification prevailing in the year 2015. Fresh appointments cannot be made on the basis of old rules. Fresh appointments cannot be made on the basis of old rules. This is a mis-match, i.e. this appellant cannot be appointed in the year 2015 as Chowkidar on the basis of Rules/Practices prevailing in the year 1991. If this appellant aspires to be appointed in the year 2015, he has to fulfill all the criteria of qualification and eligibility prevailing in the year 2015. This aspect of the matter has also been appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant. 6. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncement, we see no reason to take any other view than what has been taken by the learned Single Judge while dismissing W.P.(S) No. 2507 of 2013 vide order dated 25th March, 2014. 7. There is no substance in this Letters Patent Appeal, which is, accordingly, dismissed.