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2017 DIGILAW 2154 (JHR)

Maghi Oraon v. State of Jharkhand

2017-12-14

ANIL KUMAR CHOUDHARY

body2017
JUDGMENT : Anil Kumar Choudhary, J. 1. Heard Ms. Khalida Haya Rashmi, learned counsel for the petitioners and Mr. Rakesh Kr. Shahi, learned counsel appearing for the State. Mr. Rakesh Kr. Shahi, has filed supplementary counter affidavit dated 12.12.2017 of the respondent no. 4 before this Court today pursuant to the order dated 21.9.2017. Let it be kept on record. 2. This writ application has been filed by the petitioners with prayer to issue direction upon the respondent no. 4 to issue the appointment letters as well as posting orders in the light of specific directions issued by the respondent no. 2-Home Secretary, Govt. of Jharkhand, Ranchi and the respondent no. 3-Director General of Police, Jharkhand, Ranchi vide letter nos. 299 dated 22.1.2004 and memo no. 83 dated 22.1.2004, as contained in Annexures-3 and 4 respectively. The petitioners have also prayed for a direction upon the respondents to issue the appointment letters to them with consequential benefits. 3. The brief facts, involved in this writ application, are that on 15.8.2003 an advertisement bearing No. 1/2003 was published in the newspaper "Ranchi Express" for appointment of eligible candidates to the post of constables. The petitioners applied in response to the said advertisement. Admit cards were issued to the petitioners. The petitioners underwent the physical test and were asked to appear in the written test. After the physical and written test, result-cum-merit list of the successful candidates was published on 13.11.2003 in the local newspapers in which the roll numbers of the petitioners found place. On 25.11.2003, a call for medical test for only 187 successful candidates was published in the newspapers to be held from 29.11.2003 to 1.12.2003. In the newspapers it was mentioned that the medical test of the remaining successful candidates was to be held later on. As the roll numbers of the petitioners were not appealing in the list of candidates who were asked to appear in the medical test, they approached the respondent no. 4. The respondent no. 4 verbally assured the petitioners that their roll numbers will be published in the newspapers and their medical test will be taken up in due course of time. The respondent no. 2 issued direction to the respondent no. 3 for issuing the appointment letters to all selected candidates against the backlog quota as per merit list. 4. The respondent no. 4 verbally assured the petitioners that their roll numbers will be published in the newspapers and their medical test will be taken up in due course of time. The respondent no. 2 issued direction to the respondent no. 3 for issuing the appointment letters to all selected candidates against the backlog quota as per merit list. 4. It is the specific case of the petitioners that even after the said order of the respondent nos. 2 and 3, the petitioners did not receive any appointment letter rather several persons, including one Sanjay Tudu of Jamshedpur, were issued the appointment letters on 6.2.2004. The petitioners approached the respondent no. 4 but since the fruitful result did not come, they approached this Court by filing the writ petitions bearing W.P.(S) Nos. 1274/2004 and 1356/2004. The said writ petitions were heard and disposed of on 3.3.2004 and 10.3.2004 respectively by this Court directing the petitioners to bring the matter to the notice of the respondent no. 4 by filing a representation along with a copy of that order and the respondent no. 4, in turn, was directed to consider the claim and if the petitioners fulfill all the criteria, their appointment letters be issued to them without any further delay. In terms of the said order passed in the writ petitions, the petitioners submitted their representations along with the copy of that order to the respondent no. 4 but even after that when no appointment letters were issued to the petitioners, they filed the contempt case bearing Contempt (C) Case Nos. 657 and 656 of 2004 for compliance of the said order passed by this Court on 3.3.2004 and 10.3.2004. 5. During pendency of the contempt petitions, a letter was issued by the respondent no. 2 giving direction to the respondent no. 3 to accept the joining of all the candidates within a period of 15 days. Even though there are vacancies, stilt without any rhyme or reason, vacancies have not been filled up by the authority. 6. It is submitted by Ms. 2 giving direction to the respondent no. 3 to accept the joining of all the candidates within a period of 15 days. Even though there are vacancies, stilt without any rhyme or reason, vacancies have not been filled up by the authority. 6. It is submitted by Ms. Khalda Haya Rashmi, learned counsel for the petitioners that in the show cause submitted in the contempt petition on 29.6.2006, the respondents took the plea that, 51 petitioners have been declared successful, who are matriculates but as the petitioners are non-matriculates, as such they cannot be appointed in view of the order passed in W.P.(S) No. 1458 of 2004 (Robin Tirkey & Others v. State of Jharkhand and Others). It is the further case of the petitioners that several candidates, who were non-matriculates, have been appointed in the recruitment process from the same Advertisement No. 1/2003 and hence the petitioners cannot be deprived of the appointment to the post of constable on the ground of being non-matriculates. 7. The petitioners have filed one supplementary affidavit dated 22.6.2017, wherein the names of the petitioners along with their roll numbers and serial numbers in the merit list are given as under: Name of Petitioner Category Roll No. Sl. No. Maghi Oraon Rly Male S.T. 1262 427 Cherwa Oraon Home Guard Male S.T. 2229 128 Sukhdeo Oraon Rly Male S.T. 3175 439 Binay Oraon Rly Male S.T. 13011 4 Somra Oraon Male S.T. 10421 12 Bhadra Bhogta Rly Male S.T. 2820 91 Ratho Oraon Rly Male S.T. 7952 310 8. Per contra in the supplementary counter affidavit dated 19.5.2012 filed by the respondent no. 4, it has been averred that it is the fact is that after completing the recruitment process on the basis of performance, when the merit list was prepared, the cut-off mark was decided on 14 points and whoever has fulfilled the criteria and scored at least 14 points and have qualification of matriculation have been appointed to fill up the vacancies and in this case, the petitioners have not come up-to the standard of cut off mark and basic qualification of matriculation, hence the petitioners have not been selected for the post of constable but the said respondent does not dispute the selection of Sanjay Tudu, a non-matriculate candidate. 9. In the supplementary counter affidavit filed by respondent no. 9. In the supplementary counter affidavit filed by respondent no. 4 on 11.9.2017, additional ground was also taken that the petitioners were not appointed for not only their qualification as non-metric and their marks was below 14 but also for the reason that there was no vacancy in the post of constable. But the learned counsel for the respondents submits that though the ground was taken in the supplementary counter affidavit dated 11.9.2017 but in view of the supplementary counter affidavit dated 12.12.2017 filed by the respondent no. 4 today itself, the respondent no. 4 withdraws the said submission. It is further categorically submitted by the learned counsel for the respondents that in fact there is vacancy available for the petitioners to be considered for appointment if they are otherwise eligible for appointment as constable in response to Advertisement No. 1/2003. In the supplementary counter affidavit filed by the respondent no. 4 today, the respondent no. 4 has averred that he has recommended for the appointment of the petitioners as per backlog and requested the authority to grant permission for appointment of the petitioners and the respondent no. 4 is awaiting the order from the higher authority in the matter. 10. Ms. Khalida Haya Rashmi, learned counsel for the petitioners submits that so far as the case of Robin Tirkey & Others (supra) is concerned, the Hon'ble Supreme Court in Civil Appeal No. 6909 of 2005 has been pleased to hold that the judgment passed by this Court in W.P.(S) No. 1458 of 2004 (Robin Tirkey & Others) (supra) is not sustainable in the eyes of law. It will be profitable to refer to the relevant portion at internal pages 5-6 of the said order, which is as under:- "The High Court quashed the Notification dated 12.11.2001 solely on the ground that dropping down the minimum educational qualification is wholly arbitrary, irrational and against public interest. The High Court further observed that the modification in the minimum educational qualification from matriculation pass to 7th Class pass is wholly arbitrary and violative of Article 14 of the Constitution. We are unable to accept the finding of the High Court which is based on no reason, much less ostensible reason. The High Court further observed that the modification in the minimum educational qualification from matriculation pass to 7th Class pass is wholly arbitrary and violative of Article 14 of the Constitution. We are unable to accept the finding of the High Court which is based on no reason, much less ostensible reason. The High Court on the other hand held that such reduction of the education standard is the policy matter of the State yet such drastic finding has been recorded without any cogent and justified reason. We notice that before the High Court the State has filed a detailed counter-affidavit and contended that the dropping down of the educational qualification has been considered by the State Government and a policy decision has been taken by the State Government on rationale basis. The rational on the basis of which the State has taken a policy decision in passing Notification dated 12.11.2000 are (a) backwardness of the State; (b) large number of illiteracy basis; and (c) economic background in the State of Jharkhand. In the view that we have taken, the judgment of the Division Bench under assail is not sustainable in law. The same is set aside." 11. It was further submitted by learned counsel for the petitioners that this Court on 22.4.2008 in I.A. No. 918 of 2008 has passed an order directing that though the respondents may proceed with the process of appointment, there shall be no final appointment against vacant posts of constables equal to the number of the petitioners until further order. Hence, now it is not open for the respondents to take plea that there is no vacancy to consider the case of the petitioners. Learned counsel further submits that the candidates with lesser qualification and merit having been appointed by the same recruitment process, the petitioners cannot be excluded from appointment and hence this writ application is fit to be allowed with necessary direction to the respondents. It is also submitted that it is a settled principle of law that when candidates from the same recruitment process are made to join at a later date for no fault of theirs they are to be national seniority from the date of their joining. It is also submitted that it is a settled principle of law that when candidates from the same recruitment process are made to join at a later date for no fault of theirs they are to be national seniority from the date of their joining. In this respect the learned counsel for the petitioners relied upon the judgment of this court in the case of Harendra Kumar Ghosh and Another v. State of Jharkhand and Others, passed in WP(S) No. 1352 of 2007 on 2.2.2011, 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 coordinate 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 petitioners that L.P.A. No. 46 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. 12. Learned counsel for the respondents, on the other hand, submits that in the counter affidavit dated 12.12.2017, filed today in the Court, it has been averred that the respondents are considering the case of the petitioners for their appointment. Learned counsel has also accepted that one candidate-Sanjay Tudu, who is a non-matriculate, has also been appointed in respect of the same recruitment process. 13. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, the respondent no. 4 is directed to consider the case of the petitioners for appointment as constables in the light of direction issued by the respondent no. 2 Home Secretary, Govt. of Jharkhand, Ranchi and the respondent no. 3-Director General of Police, Jharkhand, Ranchi, if the petitioners are found eligible in all respects for appointment and if their positions are equal or better than Sanjay Tudu-who has since been appointed from the same recruitment process. The respondent no. 2 Home Secretary, Govt. of Jharkhand, Ranchi and the respondent no. 3-Director General of Police, Jharkhand, Ranchi, if the petitioners are found eligible in all respects for appointment and if their positions are equal or better than Sanjay Tudu-who has since been appointed from the same recruitment process. The respondent no. 4 is also directed to take appropriate steps for issuance of appointment letters in favour of the petitioners, if found suitable in the manner as mentioned above and the entire process must be completed within a period of two months from the date of receipt/production of a copy of this order. 14. In case, the petitioners are appointed, in view of the principle of law settled in the case of Harendra Kumar Ghosh (supra) they should be given notional seniority from the same day of joining of similarly situated candidates who have been appointed earlier from the same recruitment process vide Advertisement No. 1/2003. It is made clear that the petitioners will be entitled to salary and other benefits only from their date of joining. With the aforesaid observations and directions, this writ application is allowed.