Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 2138 (JHR)

Raj Kumar Verma v. State Of Jharkhand

2017-12-11

S.N.PATHAK

body2017
ORDER S.N. Pathak, J. - Heard learned counsel for the parties. 2. Petitioner has approached this Court with a prayer for a direction upon the respondents to confirm Notional Appointment to the petitioners with effect from the date i.e. 13.10.1994 on which juniors and equals in the merit list were given appointment to the post of Assistant Teachers ignoring the merit list published by the BPSC. Further prayer has been made to consider case of the petitioner for seniority and to consider date of joining from 13.10.1994 instead of 07.11.1994 with all consequential benefits. 3. The facts in short giving rise to the instant writ petition is that an advertisement was floated by the respondents - State as "BPSC Primary Teachers'' Examination, 1991" for appointment of untrained teachers. Petitioners applied and appeared in the said examination and after being qualified, their names were recommended by the BPSC vide reference no. 231, dated 01.09.1994. Altogether 535 candidates were given appointment in the district of Dhanbad which also includes the district of Bokaro as at that time district of Dhanbad also covered the district of Bokaro and both the districts were controlled by the same District Superintendent of Education. All the petitioners are resident of district of Dhanbad and they have given district of Dhanbad as their first preference for posting. 4. It is case of the petitioners that they appeared in BPSC Primary Teachers'' Examination in the year 1991. Petitioners were declared successful and petitioner no. 1 got 248 rank, petitioner no. 2 got 255 rank, petitioner no. 3 got 205 rank, petitioner no. 4 got 226 rank and petitioner no. 5 got 229 rank in the merit list issued by the BPSC for appointment of Primary Teachers'' Examination, 1991. It is further case of the petitioners that all the successful candidates were given respective ranks subject to marks secured by them in BPSC Teachers'' Examination, 1991 and as per directions and advice of BPSC, candidates were given appointment subject to ranks secured in BPSC Primary Teachers'' Examination, 1991 and also as per their residential preference. It is further case of the petitioners that all the successful candidates were given respective ranks subject to marks secured by them in BPSC Teachers'' Examination, 1991 and as per directions and advice of BPSC, candidates were given appointment subject to ranks secured in BPSC Primary Teachers'' Examination, 1991 and also as per their residential preference. Though a clear cut stand was taken by the respondent - BPSC for finalisation of merit list and for appointment of petitioners, the respondents committed irregularities at the time of giving appointment, resultantly the candidates who got more marks and higher ranks, were not given appointment and their residential preference was also not given consideration and as such, petitioners were seriously prejudiced and despite being senior in merit, petitioners had been given appointment on 07.11.1994/24.11.1994 in the district of Bokaro ignoring their preference for district of Dhanbad and on the other hand, candidates much below in rank i.e. junior to the petitioners, like Sanjay Sinha, has been given appointment in the district of Dhanbad on 13.10.1994 itself and many other instances have been cited in which junior to petitioners in the merit list were considered and given appointment from 13.10.1994. There are other category of candidates also who were not considered for appointment from 13.10.1994 and on protest, their cases were considered. Still there are other category who were not appointed from the said date, made protest before the authorities for consideration of their cases but only assurances had been given and their dates of appointment was not considered. 5. It is specific case of the petitioners that they have got higher ranks as petitioner no. 1 got 248 rank, petitioner no. 2 got 255 rank, petitioner no. 3 got 205 rank, petitioner no. 4 got 226 rank and petitioner no. 5 got 229 rank in the merit list issued by the BPSC for appointment of Primary Teachers'' Examination, 1991 but in spite of the same, their cases were not considered for appointment from 13.10.1994 and as such, this writ petition has been preferred. 6. Mr. Manoj Tandon, learned counsel assisted by Mr. Pratyush Lala strenuously urges that case of the petitioners needs consideration in view of the fact that apparent illegality is there in appointment of the petitioner. 6. Mr. Manoj Tandon, learned counsel assisted by Mr. Pratyush Lala strenuously urges that case of the petitioners needs consideration in view of the fact that apparent illegality is there in appointment of the petitioner. Pick and choose method has been adopted though it is settled law that persons who are higher in merit list, have to be considered first and then juniors should have been considered. However, dehors the rules, the candidates having lower in rank, have been appointed prior to appointment of the petitioner and petitioners were appointed at a later date than on which juniors in merit list were appointed. Mr. Manoj Tandon, learned counsel further argues that specific averments in para28 of the writ petition has not been controverted by the respondents and as such, it amounts to admission of the respondents and in view thereof, a direction may be given to the respondents to consider case of the petitioners for appointment from 13.10.1994 in the district of Dhanbad on the post of Assistant Teachers. In order to strengthen his arguments, Mr. Manoj Tandon places reliance on the order and Judgment of this Court dated 02.02.2011, passed in W.P.(S) No. 1352 of 2007 and submits this case is squarely covered by the said Judgment and as such, petitioner is entitled for the same benefits. 7. Per contra counter affidavit has been filed. Mr. Bhawesh Kumar, learned SCII vehemently opposes contention of learned counsel for the petitioners and argues that there is no illegality in appointment of petitioners from 07.11.1994 as in the seniority list prepared by the respondents, name of the petitioner does not figure above those persons who were given and considered appointment from 13.10.1994. However, learned counsel submits that if case of the petitioner is covered by Judgment of this Court dated 02.02.2011, passed in W.P.(S) No. 1352 of 2007, the same shall be considered in accordance with law and if they are found entitled for similar benefits, an order to that effect shall be passed for consideration of the same. 8. Be that as it may, having gone through rival submission of the parties, this Court is of the considered view that case of the petitioners needs consideration. Arguments advanced by learned counsel for the respondents that candidates should have been given appointment from 13.10.1994, have been considered as per seniority list, are not accepted by this Court. 8. Be that as it may, having gone through rival submission of the parties, this Court is of the considered view that case of the petitioners needs consideration. Arguments advanced by learned counsel for the respondents that candidates should have been given appointment from 13.10.1994, have been considered as per seniority list, are not accepted by this Court. No seniority list has been brought on record rather it is apparent and specific statement has been made by the learned counsel for the petitioners and after perusal of the same, it has been found that name of the petitioners is placed in the merit list much above the persons who have been considered and given appointment from 13.10.1994. 9. In view of settled principles of law and in view of admitted facts and also in view of the fact that similar issue has already been decided by this Court in W.P.(S) No. 1352 of 2007, case of the petitioners herein also needs consideration. In para8 of the Judgment dated 02.02.2011, passed in W.P.(S) No. 1352 of 2007, it has specifically been held that "8. In view of these facts and looking to Annexure 3 to the writ petition, I, hereby, direct the respondents to issue necessary office order, circular, treating 22nd December, 2003 (the date on which other successful candidates, for the post of Teacher, have been issued appointment letters) as the date of appointment of the petitioners." 10. As a cumulative effect of the aforesaid rules, guidelines, judicial pronouncements and legal proposition, I hereby direct the respondents to consider case of the petitioners for considering their case for appointment from 13.10.1994 instead of 07.11.1994. However, since no specific order has been passed, the respondents are directed to consider the same in view of para8 of the Judgment dated 02.02.2011, passed in W.P.(S) No. 1352 of 2007 and in view of admitted fact that petitioners rank much higher in the merit list. Let entire exercise be completed within six weeks from the date of receipt/production of a copy of this order. Needless to say if case of the petitioners is found similar to that in W.P.(S) No. 1352 of 2007, an order to that effect be issued within a further periods of four weeks with all consequential benefits. 11. With the aforesaid observations and direction, this writ petition stands allowed.