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2018 DIGILAW 2645 (JHR)

Vidyottma Kumari v. State of Jharkhand

2018-12-04

APARESH KUMAR SINGH

body2018
ORDER : Heard counsel for the parties. 2. Petitioner has been terminated from service by Office Order dated 01.04.2017 bearing Memo No. 1410 issued by the District Superintendent of Education, Bokaro (Respondent No. 3) on the basis of the decision of the District Education Establishment Committee dated 09.03.2017. 3. Petitioner was appointed vide Memo no. 01/418 dated 01.01.2016 as Inter Trained Teacher on purely provisional basis in M.B.C. category, though she belongs to BC-II category. The appointment letter contained a stipulation that in case during verification, certificates submitted by her are found to be forged and fabricated, the appointment would be cancelled without any notice and appropriate legal action would be taken. Upon her appointment, verification of her certificates was undertaken. It was found that she belongs to most backward class. She was asked to show-cause to which she replied also. She took a plea that she never applied in M.B.C. category, but belongs to BC-II category and applied as such. At the time of counselling also, she had produced her certificate of BC-II category. During verification of the database, it was found that the last selected candidate from the most backward class category in the female class category had obtained 52.41 marks while the last selected candidate in the backward class category had got 55.18 marks. Petitioner belonging to BC-II category having 53.69 marks could not have been appointed in her own category. 4. Counsel for the petitioner has contended that there has been no misrepresentation or suppression on the part of the petitioner. Her selection has been made after due verification of her caste certificate in the M.B.C. category. She has continued for more than one year till she was terminated. Termination from service amounts to dismissal. As per the applicable rules, such dismissal or termination should have followed an appropriate departmental inquiry which was not done. Petitioner had gained legitimate expectation to continue on the post. She has been rendered ineligible now for any other Government job because of age factor. Action of the Respondent are violative of Articles 14 and 16 of the Constitution of India and fit to be set aside. 5. Respondent have filed two counter affidavits, the second one encloses her application form in which against the column for claiming the benefit of reserved category (General/Schedule Caste/Schedule Tribe/Backward Class/Most Backward Class), She consciously wrote ‘Annya Pichhra Varg’ i.e. other backward class. 5. Respondent have filed two counter affidavits, the second one encloses her application form in which against the column for claiming the benefit of reserved category (General/Schedule Caste/Schedule Tribe/Backward Class/Most Backward Class), She consciously wrote ‘Annya Pichhra Varg’ i.e. other backward class. The date of birth of the petitioner is 03.08.1964 and as on 01.08.2015, she had attained the age of 50 years 11 months and 29 days. Petitioner had produced a caste certificate bearing no. 1159 dated 22.11.2013 issued by the Sub Divisional Officer, Chatra which showed her to be in BC-II category and not in MBC category. Petitioner indulged in misrepresentation. Therefore, her appointment in a category to which she does not legally belong, could not be sustained. After due show-cause notice and upon verification of her certificate, it was found that she possessed lesser marks than the last selected candidate in her category i.e. BC-II, though in the MBC category she had more marks than the last selected candidate. However, she was not eligible for being appointed in MBC category. Therefore, her appointment has been terminated. The order impugned is valid and does not suffer from any illegality or violation of principles of natural justice. 6. Considered the submissions of learned counsel for the parties in the light of the facts borne from the record and taken note above. On conspectus of facts and relevant materials taken note above, the argument of misrepresentation on the part of the Respondent does not cut ice. Petitioner had not made entry of belonging to most backward class in her application form, but recorded an entry of other backward class. This alone was not the factor for appointment as at the time of counselling, she appeared and produced her original certificate of BC-II as well. Only thereafter, she was appointed but in the MBC category in which she had more marks than the last selected candidate. 7. However, she was ineligible for being appointed against the vacancy of MBC category. She did not have a legal right to claim appointment. She could have legally claimed appointment only in a category in which she belongs i.e. BC-II category and only when she had more marks than the last selected candidate. This is not the case. Her appointment, at best, can be said to be a case of mistake or omission on the part of the Respondent authority. She could have legally claimed appointment only in a category in which she belongs i.e. BC-II category and only when she had more marks than the last selected candidate. This is not the case. Her appointment, at best, can be said to be a case of mistake or omission on the part of the Respondent authority. However, illegality cannot be perpetuated if such a mistake has been detected during verification of the certificate by the authorities of the Respondent. Looked from the another perspective, had a successful candidate having marks equal or just next to the petitioner and belonging to MBC category questioned the appointment of the petitioner before a court of law, petitioner’s appointment tested on principles of Article 14 of Constitution of India, could not have been sustained. This is not a case of misconduct which require a proceeding for dismissal of the petitioner from service. It is a case of legal entitlement to a particular post on the test of Article 14 of Constitution of India in a particular class in which candidate was eligible. Petitioner did not belong to MBC category, therefore, she cannot be legitimately expected to continue in that category. Doctrine of Legitimate Expectation do not operate in teeth of the constitutional principles or law. In this case, the impugned order has been passed after due notice and on compliance of the principles of natural justice. Therefore, petitioner does not have a case. This shall not excuse the concerned Respondent authorities from the liability to face appropriate action. 8. In these circumstances, this court is not satisfied that interference in the impugned order is warranted in the eye of law or on facts. However, Respondent State is directed to take appropriate action in accordance with law against the concerned officials who were responsible for such appointment of the petitioner in a category to which she did not belong. It also needs to be observed that since this court has not found any deliberate act or misrepresentation on the part of the petitioner, no other action as contemplated in the impugned order is warranted against her. Writ petition is accordingly dismissed. 9. Let the order be communicated to the Secretary, Department of School Education and Literacy, Government of Jharkhand for compliance. Petition dismissed.