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2017 DIGILAW 2112 (JHR)

Manoj Kumar Sinha v. State Of Jharkhand

2017-12-07

ANIL KUMAR CHOUDHARY

body2017
JUDGMENT Anil Kumar Choudhary, J. - The brief facts of the case of the petitioner involved in this writ application is that the State Government through J.P.S.C. advertised for appointment to the post of Assistant Teacher in different districts of the State including the district of Koderma in daily Newspaper dated 28.08.2002. The petitioner applied for the same as he fulfilled all the eligibility criteria and possessed requisite qualification. After written test and interview the petitioner bearing roll No. 111013100579, was selected for appointment along with others as per the result published in the daily Newspaper dated 14.11.2003. 2. The present writ application has been filed claiming that though the petitioner was amongst the successful candidates for the post of Assistant teachers and though after selection, he submitted all the necessary documents in time to the respondent, yet some of the candidates after verification of the documents, were given appointment in the month of November, 2003 and some were given appointment in February, 2004 and June, 2004, but the petitioner, due to the laches on the part of the respondents, was given appointment on 22.06.2005 vide office order communicated to the petitioner through Memo No. 590 Koderma dated 22.06.2005 by the District Superintendent of Education-cum-S.D.E.O and accordingly, the petitioner joined on 23.06.2005. 3. It is submitted by Mr. Deepak Kr. Dubey, the learned counsel for the petitioner that there is no justifiable reason as to why the respondents have not appointed the petitioner earlier though some of the similarly situated candidates were appointed in February, 2004 and some of them in June, 2004. It is further submitted that if the petitioner is not granted notional appointment at par with similarly situated candidates, he will lose his seniority. It will affect the opportunity of promotion and some other benefits like G.P.F. and pension etc. and therefore, while advancing arguments on behalf of the petitioner, it was prayed that the petitioner be given notional appointment with effect from the date, the other similarly situated candidates have been appointed facilitating the petitioner to get pensionary benefit under old pension scheme including the scheme of G.P.F. There is specific averments in paragraph - 17 of the writ application that persons of the same recruitment process and similarly situated have been appointed in the month of February, 2004 and June, 2004 respectively but there is no specific denial of the same in the counter affidavit. 4. In support of his contention the learned counsel for the petitioner relied upon the judgment of this court in the case of Harendra Kumar Ghosh and another vs. State of Jharkhand and others, passed in WP(S) No. 1352 of 2007 on 02.02.2011, wherein in the facts and circumstances of that case where the candidates of the same recruitment process were given appointment on 22nd December,2003 whereas because of delay in verification of the certificate of the petitioner of that case was appointed on 2nd December, 2004, a co-ordinate bench of this court directed the respondents of that writ application to issue necessary office orders, circulars treating 22nd December, 2003 as the date of appointment of the petitioners of that writ application. It was further submitted by the learned counsel for the petitioner that L.P.A. No. 446 of 2012 filed against the said judgment in W.P.(S) No. 1352 of 2007 was dismissed and the same has not been interfered with by the Hon''ble Supreme Court in S.L.P. No. CC 338/2014. The learned counsel for the petitioner also relied upon the judgment passed by this court in W.P.(S) No. 6795 of 2013 on 14.09.2017 in the case of Shyam Sundar Mishra and another vs. State of Jharkhand and others, wherein in the facts and circumstance of that case a co-ordinate bench of this court directed the respondent no. 6 of that writ application to consider the case of the petitioners of that writ application for granting them notional appointment from a date anterior to their joining from which date similarly situated candidates have been appointed from the same recruitment process. It is also submitted on behalf of the petitioner that in this writ application though the petitioner has inter alia prayed for quashing the part of the order contained in P.R. No. 2105 (Finance-06)/05-06 published on 26.06.2005 so far as its applicability to the petitioner is concerned yet he does not press the said prayer and modified his prayer that the respondents be directed to consider giving notional appointment to the petitioner from a date anterior to his joining from which date the similarly situated candidates from the same recruitment process have been appointed, by following the ratio of the case of Harendra Kumar Ghosh (supra). 5. 5. Learned counsel for the respondents on the other hand submitted that the petitioner has been appointed in the month of June, 2005 and the Jharkhand Government has implemented New Contributory Pension Scheme for the Government employees'' appointed on or after 01.12.2004 and since the petitioner has joined in the month of June, 2005, therefore, he is covered under the New Government Employee Contributory Pension Scheme, 2004. But the learned counsel for the respondent conceded that the" respondents have not specifically denied the averments in paragraph 17 of the petition to the effect that persons of the same requirement process and similarly situated have been appointed on in the month of February,2004 and June, 2004 respectively. The learned counsel for the respondents further relied upon the judgment of a coordinate bench of this court in the case of Smt. Harjeet Kaur vs. State of Jharkhand and others passed in WP(S) No. 1008 of 2014, dated 01.09.2015; whereby this court denied the benefit of Harendra Kumar Ghosh (supra) to the petitioner of that case on the ground that though the petitioner of that writ application was appointed in October, 2005 yet he approached this court in 2014 for seeking similar consideration as made in the case of Harendra Kumar Ghosh (supra), who had approached this court with same grievances in 2007, itself and though allegations against JPSC were made in that writ application averring in that writ application that JPSC sent the recommendations for appointment after some delay, still JPSC was not made a party in that writ application. 6. Having heard counsels for both the parties and looking to the facts and circumstances of this case, it appears that the petitioner was amongst the successful candidates whose result was published for Koderma district in the month of November, 2003 and as submitted by the learned counsel, the petitioner has submitted the documents for verification well in time before the respondents. Thus, petitioner should not suffer on the ground that the delay occurred in verification of the ''Graduation Degree'' of the petitioner from the concerned university i.e. Maharshi Dayanand University, Rohtak, found to be recognized by the University Grants Commission and valid for all purposes. 7. So far as the case of Smt. Harjeet Kaur vs. State of Jharkhand and others (supra) is concerned the appeal against the same vide LPA No.588 of 2015 has been allowed by this court. 7. So far as the case of Smt. Harjeet Kaur vs. State of Jharkhand and others (supra) is concerned the appeal against the same vide LPA No.588 of 2015 has been allowed by this court. Moreover the facts of Smt. Harjeet Kaur vs. State of Jharkhand and others (supra) are entirely different from the facts of this case as the petitioner of this case who joined on 26.03.2005; approached this court on 10.04.2006 and that the petitioner of this writ application has not made any allegations against the JPSC. So this court is of considered view that the ratio of Harendra Kumar Ghosh (supra) is squarely applicable in this case. 8. It is a settled principle of law that seniority has to be considered from the date of the initial appointment. If the case of the petitioner is not considered he will be deprived of the notional appointment from a date on which the candidates of the same recruitment process and similarly placed in all respect as the petitioner, have been appointed and will lose his seniority and will be treated as junior to those appointees for no fault of him. 9. Viewed thus this writ application is allowed to the extent that the respondent state shall verify, whether the necessary documents after the declaration of the result were submitted by the petitioner in time or not and whether there was any deficiency in the documents submitted by the petitioner. If the case of the petitioner is ultimately found similar on facts as any of the candidates of the same recruitment process, similarly situated as the petitioner and who has joined earlier than the petitioner, then the petitioner shall be considered for being given the notional date of appointment from the date of appointment of such similarly situated candidate. It goes without saying that in the event of the petitioner being granted the said reliefs, he shall not be entitled for the salary for the said period of notional seniority. 10. This writ petition is allowed to the aforesaid extent only.