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2018 DIGILAW 159 (JHR)

Shakhawat Momin v. State of Jharkhand

2018-01-18

S.N.PATHAK

body2018
JUDGMENT : S.N. Pathak, J. Heard learned counsel for the petitioners and learned counsel for the respondents. 2. The petitioners have approached this Court with a prayer to direct the respondents to consider their cases for appointment to the vacant posts of Panchayat Secretary, in terms of 2002 Rules and to issue appointment letters to the petitioners accordingly. 3. The facts as derived from the writ petition are that the petitioners are working on non-cadre posts of Dalpatis on fixed remuneration in the district of Ranchi. It is the case of the petitioners that as per Jharkhand Panchayat Sachiv (Niyukti, Sevashart Ewam Kartabya) Niyamawali, 2002, (hereinafter referred to as "Rules, 2002"), Panchanyat Secretary will be appointed from two sources i.e. 50% of the vacancy to be filled-up from direct recruitment and 50% vacancy shall be filed from amongst the meritorious candidates working as Dalpatis, keeping in mind the seniority. It is a fresh appointment in the cadre post and not a promotion, as such, under settled law, in the first appointment in the cadre even reserved category candidates, as per merit list, can go above the general candidate. It is the further case of the petitioners that in Ranchi district, there are altogether 72 vacant and sanctioned posts of Panchayat Secretary, out of which 36 posts are to be filled-up from amongst the Dalpatis working in Ranchi district. Accordingly, a Selection Committee headed by the Deputy Commissioner, Ranchi, was constituted which held its meeting on 21.10.2013. It is stated that all the petitioners are duly qualified and possess Matriculation or higher educational qualification and also have all the eligibility criteria/qualification as per the Rules, but their cases were not considered at all for the reasons best known to the respondents. It is the further case of the petitioners that the respondents considered the entire matter and a letter was communicated by the Deputy Secretary, vide its letter dated 5.12.2013 to the Deputy Commissioner, Ranchi pointing-out the illegality committed by him and directed to send report within a week but the Deputy Commissioner did not pay any heed to it. In the said letter it has been stated that there are 58 Dalpatis working in Ranchi district as per 2013-14 merit list, however, only 11 candidates have been recommended against 36 existing vacancies of Panchayat Secretary. In the said letter it has been stated that there are 58 Dalpatis working in Ranchi district as per 2013-14 merit list, however, only 11 candidates have been recommended against 36 existing vacancies of Panchayat Secretary. It has also been pointed out that in spite of available candidates like the petitioners, no recommendation has been made as a result of which, vacancy remains unfilled, Even in the matter of recommendation, seniority has not been considered, which will be apparent from letter dated 5.12.2013. It is the specific case of the petitioners that before the appointment of Panchayat Secretary, seniority list of Dalpaties for the year 2013-14 was issued by the Competent Authority i.e. the District Panchayati Raj Officer, Ranchi, which shows that the petitioners are much senior having requisite qualification, but in spite of that, their cases have not been considered. Thereafter, the petitioners tiled representation before the respondent No. 2 on 10.1.2014 bringing to his notice about the irregularities being committed in the appointment of Panchayat Secretary and requested for appointment on the aforesaid post as per seniority list. The petitioners also filed representation before the respondent-Deputy Commissioner, Ranchi on 11.1.2014 but till date nothing has been done. Hence, the petitioners have knocked the door of this Hon'ble Court for redressal of their grievances. 4. Mr. Anil Kumar Sinha, learned senior counsel appearing for the petitioners argued that the action of the respondents in not considering the cases of the petitioners for their appointment against the vacant posts of Panchayat Secretary is arbitrary, illegal and contrary to the Rules. It is further submitted that the unreserved candidates can be considered on the reserved vacant posts as per the merit, which has been done in past. Mr. Sinha further argued that the respondents cannot make discrimination in the case of unreserved category candidates and the respondents are bound to follow the merit irrespective of reservation in case of fresh appointment. The action of the respondents in not considering the case of the petitioners is arbitrary and against the provisions of Articles 14 and 16 of the Constitution of India. The action of the respondents in not considering the case of the petitioners is arbitrary and against the provisions of Articles 14 and 16 of the Constitution of India. It has been further contended by the learned senior counsel that for appointment and promotion of Panchayat Sachiv a Rule was framed under Article 309 of the Constitution known as Jharkhand Sachiv (Recruitment, Service Condition) Rules, 2002, according to which 50% posts should be filled-up by promotion from Dalpatis and rest 50% by way of direct recruitment. It was further contended that on 22.10.2014, Government relaxed the Rule and 100% vacancy of Panchayat Sachiv was to be filled from Dalpatis. This was done as one time measure with the approval of the Cabinet. Referring to paras-9 and 10 of the counter-affidavit, learned senior counsel argues that Government has already acted upon and directed all the Deputy Commissioners to act accordingly, and a letter dated 19.1.2015 has been written to all the Deputy Commissioners in this regard. In the meantime, a new Rule was promulgated on 2.7.2015 being Jharkhand Panchayat Sachiv (Niyukti, Sevashart Ewam Kartavya) Niyamawali (Sanshodhit), 2014, in which 100% post of Panchayat Sachiv was directed to be filled-up by direct recruitment and promotional avenues of the dalpati were stopped. In the said Rules, Rule 22 deals with the repealing of 2002 Rules, which envisages for repealment of Rules framed earlier. Learned senior counsel emphatically argued that though Rule 22 of the 2014 Rules talks of repealing of the earlier rules, but the notification No. 11505 dated 28.11.1956 of the State Government, by which rule were framed under Article 309 of the Constitution confers power to the Government for relaxation of the Rule which cannot be repealed by Clause-22 of fresh Rules dated 2.7.2015, since one time relaxation was done in exercise of power and as the Government has acted upon by directing the Deputy Commissioners to go ahead in the matter, it is not open to the respondents to take shelter of 2014 Rules (Revised), specifically Rule 22, which talks of repealing of the earlier rules. Learned senior counsel further argued that Secretary, Panchayati Raj has accepted that relaxation has been given and it has been acted upon, then the respondents are bound to consider the cases of the petitioners against. Learned senior counsel further argued that Secretary, Panchayati Raj has accepted that relaxation has been given and it has been acted upon, then the respondents are bound to consider the cases of the petitioners against. 100% vacancies and not against 50% vacancies, which amounts to discrimination in the matter of promotion, which is not permissible in law. 5. Per contra counter-affidavit has been filed by the respondents. Mr. Jai Prakash, learned AAG appearing for the respondent-State vehemently opposes the contention of learned senior counsel appearing for the petitioners. It has been argued that a meeting was held on 21.10.2013 for considering the candidates for promotion from Dalpatis to Panchayat Secretary as per Rule of 2002, in which the cases of the petitioners were considered and it was found that there was no vacancy in the category to which the petitioners belong to. The Deputy Commissioner also submitted a report to the department in this regard. It is further argued that the cadre strength of Panchayat Secretary is 303 in the district and accordingly, 50% of the cadre strength comes to 152, however, already 204 persons have been promoted to the post of Panchayat Secretary, which covers more than 50% of the cadre strength. learned counsel further argued that after the meeting dated 21.10.2013, only' three persons have been promoted to the post of Panchayat Secretary on 6.9.2014 but the said three persons belong to the general category and not to the category to which the petitioners belong to. It is categorically argued that no person belonging to the category to which the petitioners belong, have been promoted after 21.10.2013 from Dalpati to Panchayat Secretary. It has been further contended by Mr. Jai Prakash, learned AAG appearing for the respondents that as per the new Rules (2014 Rules), which came in effect on 2.7.2015, all the posts of Panchayat Sachiv has to be filled-up by direct recruitment. This Rules has been brought on record by filing a supplementary counter-affidavit on behalf of respondent No.5 on 5.12.2017. Mr. Jai Prakash further contended that 2014 Rules has repealed all other Rules which were in force prior to coming into force of 2014 Rules as it appears from Rule 22 of the 2014 Rules. Thus, there is no doubt that 2002. Rules is not in existence and was repealed by 2014 Rules. Mr. Jai Prakash further contended that 2014 Rules has repealed all other Rules which were in force prior to coming into force of 2014 Rules as it appears from Rule 22 of the 2014 Rules. Thus, there is no doubt that 2002. Rules is not in existence and was repealed by 2014 Rules. The Sankalp dated 22.2.2014 had given relaxation in 2002 Rules and when 2002 Rules itself has been repealed by 2014 Rules, the Sankalp does not exist anymore and the petitioners cannot base their claim on the said Sankalp, because with the repeal of 2002 Rules, the Sankalp giving relaxation in 2002 Rules also comes to an end. It was further argued that future appointments shall be' made in terms of the prevailing Rule namely, 2014 Rules, which clearly says that all the posts of Panchayat Sachiv shall be filled-up by direct recruitment. Any appointment which is to be made shall be done in terms of prevailing Rules. To buttress his arguments, learned counsel for the respondents has relied upon para-16 of the order of the Hon'ble Division Bench of this Hon'ble Court passed in W.P.(S). No. 3894 of 2015 (Reported in 2017(2) JLJR 243 ) along with other analogous cases, disposed of on 2.3.2017, which is reproduced hereinbelow: "16. In view of the aforementioned discussions, the impugned letters dated 6.7.2015, issued by the Director, Panchayati Raj, one of which has been brought on record as Annexure-6 in W.P.(S) No. 3139 of 2015, are hereby, quashed. We hereby, direct the State respondents to fill-up 50% cadre posts of Panchayat Secretary in all those districts, in which the working strength of the Panchayat Secretaries appointed from amongst the Dalpaties, is still below 50% of the cadre strength, from amongst the qualified Dalpaties, in accordance with the provisions of 2002 Rules. For all practical purposes it shall be deemed that the recommendations made by the respective District Level Selection Committees of the districts where the working strength of the Panchayat Secretaries appointed from amongst the Dalpaties is still below 50% of the cadre strength. still survive for the consideration/approval by the Director. Panchayati Raj State of Jharkhand. We direct the State Government to complete the exercise positively within the period of three months from today. still survive for the consideration/approval by the Director. Panchayati Raj State of Jharkhand. We direct the State Government to complete the exercise positively within the period of three months from today. Needless to say that the appointment of only those petitioners/candidates shall• be considered, who otherwise are fully qualified for being appointed as Panchayat Secretary in accordance with 2002 Rules, and the exercise shall be carried out for all the districts in the State of Jharkhand, for filling up only the posts falling vacant prior to coming into force of 2014 Rules." (Emphasis supplied.) Though a challenge was thrown to the promulgation of 2014 Rules, the said was not considered by the Hon’ble Division Bench. In view of the said judgment also, no case is made out by the petitioners for promotion by way of 2002 Rules/Relaxed. Rules, as• the judgment will cover only those Dalpatis for whom recommendation had already been made by the District Level Selection Committee before promulgation of 2014 Rules, whereas present petitioners were not even considered for promotion and as such, the cases of the petitioners is fit to be dismissed. 6. Be that as it may, having gone through the rival submissions of the parties, this Court of the considered view that no case is made out for consideration of the cases of the petitioners for their promotion to the post of Panchayat Secretary. Admittedly, 2002 Rules, relied upon by the petitioners, have been repealed by Rule 22 of the 2014 Rules. Arguments advanced by the learned AAG is fully in consonance with the law that once 2002 Rules was repealed by Rule 22 of the 2014 Rules, the Sankalp dated 22.2.2014, which had given relaxation in 2002 Rules and when 2002 (sic-Rules) itself has been repealed by 2014 Rules, the Sankalp does not exist anymore and the petitioners cannot base their claim on the said Sankalp, as with the repeal of 2002 Rules, the Sankalp giving relaxation in 2002 Rules also comes to an end. It is not in dispute that Government had the power for relaxation of the Rules in view of notification No. 11050 dated 28.11.1956 in exercise of power conferred under Article 309 of the Constitution but as the Rules itself has been repealed, the Sankalp giving relaxation also comes to an end. It is not in dispute that Government had the power for relaxation of the Rules in view of notification No. 11050 dated 28.11.1956 in exercise of power conferred under Article 309 of the Constitution but as the Rules itself has been repealed, the Sankalp giving relaxation also comes to an end. The petitioners cannot take benefits of the said Sankalp and as such, the contention of the learned senior counsel for the petitioners is not accepted to this Court, as it is not tenable in the eyes of law. The Hon'ble Apex Court in case of Somdev Kapoor vs. State of West Bengal & Ors., reported in (2014)1 JBCJ 213(SC) [:2013(4) JLJR (SC)238] has held that, "Rules which are prevalent on the date when application is considered are to be applied and not the date when the application is made." The order passed on 2.3.2017 by the Hon'ble Division Bench in W.P.(S). No. 3894 of 2015 along with other analogous cases, is also against the petitioners as the argument challenging the promulgation of 2014 Rules was not considered at all by the Division Bench and also the cases before the Division Bench, petitioners therein were recommended for promotion by the respondents, whereas, in the cases of the present writ petitioners, there cases were even not considered for promotion. 7. As a cumulative effect of the aforesaid facts, rules, guidelines, observations and judicial pronouncements, this Court is of the considered view that no case is made out for promotion' of the petitioners to the post of Panchayat Secretary and hence, the instant writ petition is devoid of any merit. 8. Resultantly, the writ petition merits dismissal and is hereby dismissed.