Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 1668 (JHR)

Manoj Kumar v. State Of Jharkhand

2018-07-31

S.N.PATHAK

body2018
ORDER S. N. Pathak, J. - The petitioners have approached this Hon''ble Court with a prayer for direction upon the respondents to confer notional date of appointment to the petitioners w.e.f. 06.10.1994 and joining on 17.10.1994 on which juniors and equals in the Merit List were given appointment to the post of Assistant Teachers, ignoring the Merit List published by BPSC through a Written Test for BPSC Primary Teachers Examination, 1991, recommending to the respondents for appointment of 392 successful candidates, including 25 Urdu Teachers, as per the Merit List published by the BPSC for the District of Giridih. Further prayer has been made for direction upon the respondents to confer upon the petitioners inter-se seniority on the basis of Merit List prepared by the BPSC and petitioners be ranked senior to their juniors, who have been given appointment prior to the petitioners and to direct the respondents to keep nine seats vacant in Grade-IV at the time of giving promotion to the others, for petitioners till the decision taken in the present case and also for direction upon the respondents to give all consequential benefits to the petitioners except the salary for the aforesaid period. 2. The factual exposition, as has been delineated in the writ petitions, is that the respondents have issued an advertisement in the newspaper for appointment of Untrained Teachers as "BPSC Primary Teachers Examination, 1991. The petitioners have appeared in BPSC Primary Teachers Examination, 1991 and have duly qualified and selected for appointment and have been recommended by BPSC vide Reference No.36 dated 13.09.1994. Total 392 candidates including 25 Urdu candidates were selected and recommended by BPSC for the district of Giridih, for appointment as Assistant Teacher. The petitioners have been recommended for the district of Giridih by BPSC. All the successful candidates were given their respective ranks subject to the marks secured by them in the BPSC Primary Teachers Examination, 1991 and it was advised by the respondents that the candidates will be given appointment subject to the rank secured in the BPSC Primary Teachers Examination, 1991. The advertisement for the post of Primary Teachers was published by the BPSC in the year 1991, district-wise and the advertisement for the district of Bokaro could not be published as earlier it was joint in the district of Giridih and Dhanbad. The advertisement for the post of Primary Teachers was published by the BPSC in the year 1991, district-wise and the advertisement for the district of Bokaro could not be published as earlier it was joint in the district of Giridih and Dhanbad. The District of Bokaro was newly created in the month of March, 1991 therefore, the post of Primary Teachers falls within the Bokaro district were filled up from the selected candidates from the district of Giridih and Dhanbad. It is the case of the petitioners that appointments were started and several irregularities were committed at the time of giving appointment, as a result of which, the candidates who have got more marks and higher ranked were not given appointment and the juniors were given appointment on 06.10.1994 much more earlier and joining on 17.10.1994, whereas the petitioners were given appointment on 17.11.1994 and 19.12.1994 and hence these writ petitions have been preferred. 3. Mr. Amit Kumar Tiwari, learned Counsel for the petitioners strenuously urges that the case of the petitioners needs consideration in view of the fact that apparent illegality is there in appointment of the petitioners. 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, de hors the rules, the candidates having lower in rank, have been appointed prior to appointment of the petitioners and petitioners were appointed at a later date than on which juniors in merit list were appointed. Mr. Amit Kumar Tiwari, learned Counsel further argues that in view of the above a direction may be given to the respondents to consider the case of the petitioners for appointment from 06.10.1994 and joining on 17.10.1994 in the district of Giridih on the post of Assistant Teachers. In order to strengthen his argument, Mr. Amit Kumar Tiwari places reliance on the order and judgments of this Court passed in W.P.(S)No.4481 of 2009; W.P.(S)No.4281 of 2016; W.P.(S)No.1352 of 2007 (Annexure-5, 5/1 & 6) & W.P.(S)No.6795 of 2013 and submits that this case is squarely covered by the said judgments and as such, petitioner is entitled for the same benefits. 4. Per contra counter-affidavit has been filed. 5. Mr. 4. Per contra counter-affidavit has been filed. 5. Mr. Manoj Kumar No.3, S.C. (Mines) vehemently opposes the contention of learned Counsel for the petitioners and argues that there is no illegality in appointment of petitioners from 17.11.1994 to 19.12.1994 as in the seniority list prepared by the respondents, names of the petitioners do not figure above than those persons who were given and considered appointment from 06.10.1994. However, learned Counsel submits that if case of the petitioners is covered by Judgments of this Court passed in W.P.(S) No.4481 of 2009; W.P. (S)No.4281 of 2016; W.P.(S)No.1352 of 2007 (Annexure-5, 5/1 & 6) & W.P. (S)No.6795 of 2013 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. 6. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that case of the petitioners needs consideration. Argument advanced by learned Counsel for the respondents that candidates should have been given appointment from 06.10.1994, 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 names of the petitioners are placed in the merit list much above the persons who have been considered and given appointment from 06.10.1994. 7. 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 para 8 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." 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." 8. As a cumulative effect of the aforesaid rules, guidelines, observations and the judicial pronouncements as it is settled law that seniority has to be considered from the date of initial appointment. If the cases of the petitioners are not considered and they are deprived of the notional appointment from 06.10.1994 they will lose their seniority and they will be treated as juniors to the persons who were junior to these petitioners in the gradation list earlier. I, therefore, direct respondent No.6-District Superintendent of Education, Bokaro to consider their case for granting them notional appointment from the date i.e. 06.10.1994 instead of 17.11.1994 & 19.12.1994. The entire exercise be completed within a period of six weeks from the date of receipt of a copy of this order, if required the matter be placed before the Establishment Committee and the Establishment Committee by a reasoned order may shift the date of appointment of the petitioners from 17.11.1994 & 19.12.1994 to 06.10.1994 after consideration of their case. 9. Needless to say that after consideration of their case for shifting of the date and granting them notional appointment, the respondents will also consider for correction in the gradation list. 10. With the aforesaid observations and direction, these writ petitions stand disposed of.