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2016 DIGILAW 865 (JHR)

Amarendra Narayan Singh v. State of Jharkhand

2016-05-18

RONGON MUKHOPADHYAY

body2016
ORDER : Rongon Mukhopadhyay, J. Heard Mr. Saurav Arun, learned counsel for the petitioner and Mr. D.K. Dubey, learned Sr. S.C. I, appearing for the respondents. 2. In this application, the petitioner has prayed for quashing the letter No. 2654 dated 31.12.2015 issued by the respondent No. 3, whereby the candidature of the petitioner for appointment on the post of Inter Trained Teacher in the District of Giridih has been cancelled on the ground of non-submission of residential certificate for employment purposes. A further prayer has been made for directing the respondents to consider the candidature of the petitioner for appointment on the said post. 3. The petitioner who is a Para Teacher working in the Upgraded Middle School, Madhopur, Itkhori, in the District of Chatra had applied pursuant to advertisement No. 05/2015 for the post of Inter Trained Teacher. The petitioner as it seems had applied under 50% of the posts reserved for Para Teacher. Having found the petitioner eligible, he was placed in the merit lit and thereafter petitioner had submitted all the documents which were required by the respondents. However, since the petitioner did not submit the residential certificate meant for employment purpose as demanded vide impugned letter dated 31.12.2015, the candidature of the petitioner for the post to be selected as Inter Trained Teacher in the District of Giridih was cancelled. 4. Mr. Saurav Arun, learned counsel for the petitioner had submitted that the petitioner had applied against General Category in Para Teacher category for the post of Inter Trained Teacher and there was no occasion on the part of the respondent No. 3 to direct the petitioner to submit residential certificate for employment purpose. It has been submitted that the advertisement did not specify the need for submission of residential certificate for employment purpose and after the entire process was completed such requirement is de hors the settled principle of law as the rules of the game cannot be changed after the entire process is complete. It has further been submitted that in the Non-Para Teacher category with respect to several candidates, appointment letters have been issued although the residential certificate for employment purpose were never submitted by them. He has referred to the merit list appended to the supplementary affidavit and submitted that the candidates whose names find place at Sl. No. 26, 78 and 80 had subsequently been issued appointment letters. He has referred to the merit list appended to the supplementary affidavit and submitted that the candidates whose names find place at Sl. No. 26, 78 and 80 had subsequently been issued appointment letters. Learned counsel further submits that absence of residential certificate for employment purpose can in no way debar the petitioner from being selected/appointed to the post of Inter Trained Teacher. 5. Mr. D.K. Dubey, learned Sr. S.C.I for the respondents has supported the impugned letter dated 31.12.2015 and has submitted that on account of non-submission of the residential certificate, the candidature of the petitioner has rightly been cancelled. 6. It appears that in spite of repeatedly granting adjournments, counter affidavit could not be filed. On 09.05.2016, an order was passed that if no counter affidavit is field by the State, the writ petition will be disposed of based on the materials available on record. 7. By the impugned letter dated 31.12.2015, the candidature of the petitioner has been cancelled concentrating on non-submission of residential certificate for employment purpose. The advertisement No. 05/2015 never demanded residential certificate for employment purpose. Even otherwise there was no occasion for the respondents to demand such certificate from the petitioner, as the petitioner had applied against general category vacancies. 8. This court had on an earlier occasion dealt with similar matters when the candidature/appointment was cancelled on account of non-submission of the residential certificate for employment purposes. In the case of Nirbhay Prakash v. State of Jharkhand & others [W.P.(S) No. 1833 of 2015] while considering various authorities in this respect, this Court held as follows:- "9. I am in respectful agreement with the judgment under reference. Even otherwise, no justifiable reasons have been assigned by the authorities in the counter affidavit for depriving the petitioner from being issued the appointment letter. 10. In the result, this writ application is allowed with a direction to the respondent to issue appointment letter to the petitioner without insistence of any proof of the forefathers of the petitioner being a resident of the locality situated in the State of Bihar from the date of issuance of the Presidential Order i.e. 10.08.1950, if the petitioner is otherwise eligible for being issued such appointment letter." 9. Similarly in the case of Dhirendra Kumar Sinha v. The State of Jharkhand & others [W.P.(S) No. 6366 of 2011] it held as follows:- "8. Similarly in the case of Dhirendra Kumar Sinha v. The State of Jharkhand & others [W.P.(S) No. 6366 of 2011] it held as follows:- "8. The respondents have not accepted the joining of the petitioner for the reasons which have been mentioned in the counter affidavit. As has been indicated above, requirement of residential certificate in terms of notification as contained in Memo No. 3389 dated 22.09.2001 has already been quashed by this Court and since the advertisement itself does not contemplate submission of caste and residential certificates issued by the competent authority for the purposes of employment alone, the petitioner cannot be deprived of his joining on such score alone. In this context, I have been fortified by the judgment of this Court passed in W.P.S. No. 935 of 2013 in the case of "Suman Kumari v. the State of Jharkhand through Chief Secretary & others". 9. Learned J.C. to A.G. has sought to distinguish the above noted judgment by submitting that the petitioner in the said case was already in service whereas the joining of the petitioner in the present case has not been accepted. The contention of learned J.C. to A.G. cannot be accepted solely on the ground that the case under reference and in the present case demands were made with respect to certificates which were never mentioned in the advertisement and in such circumstances, the contention of the learned counsel for the petitioner taking assistance from the judgment under reference is justified. The respondents are therefore required to consider the case of the petitioner afresh taking note of the facts which have been elaborated herein above. 10. This writ application is thus disposed of remitting the matter to the respondent no. 3 who shall take a decision on the joining of the petitioner without insisting for submission of residential or caste certificate issued for the purpose of employment and pass necessary orders within a period of 6 weeks from the date of receipt/production of a copy of this order." 10. From the supplementary affidavit, it appears that several persons were issued appointment letters in spite of fact that the residential certificate for employment purpose were never submitted by them before the authorities. From the supplementary affidavit, it appears that several persons were issued appointment letters in spite of fact that the residential certificate for employment purpose were never submitted by them before the authorities. It appears that the respondent authorities are following a dual policy as on the one hand they are asking the petitioner to submit residential certificate for employment purpose and in absence of the same his candidature has been cancelled and on the other hand they had issued appointment letters to several candidates in absence of such certificate. The respondents have remained silent with respect to submission of residential certificate at the time of issuance of advertisement No. 05/2015 and had subsequently after the entire process is complete demanded such certificate. In the case of T.N. Computer SC BEd. Govt. Welfare Society (1) v. Higher Secondary School Computer Teachers Assn. reported in (2009) 14 SCC 517 , the Hon'ble Supreme Court while considering the question with respect to change of the rules after the process is complete held as follows:- "33. We, however, cannot hold that the subsequent decision of the Government thereby changing qualifying norms by reducing the minimum qualifying marks from 50% to 35% after the holding of the examination and at the time when the result of the examination was to be announced and thereby changing the said criteria at the verge of and towards the end of the game as justified, for we find the same as arbitrary and unjustified. This Court in Hemani Malhotra v. High Court of Delhi has held that in recruitment process changing rules of the game during selection process or when it is over are not permissible." 11. In view of the facts narrated above, the issuance of letter No. 2654 dated 31.12.2015 being arbitrary and is in colourable exercise of power by the respondent authorities, is hereby quashed and set aside and this writ petition is disposed of by remitting the matter to the respondent No. 3 who shall consider the candidature of the petitioner for appointment to the post of Inter Trained Teacher in the District of Giridih without insisting for submission of residential certificate for the purpose of employment and shall pass necessary orders within a period of 6 weeks from the date of receipt/production of a copy of this order. Order accordingly.