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Jharkhand High Court · body

2019 DIGILAW 1720 (JHR)

Prem Lata Kumari v. State of Jharkhand

2019-09-28

S.N.PATHAK

body2019
JUDGMENT : Common questions of law are involved in all these writ petitions and as such these cases have been tagged together and common orders are being passed by way of an interim relief. 2. Petitioners are aggrieved by the Advertisement No. 01/2019, floated by Jharkhand Staff Selection Commission disqualifying them from appearing in the examination as they do not fulfill requisite qualification as per terms of the advertisement though admittedly they have been discharging their duties as ANM for last several years without any complaint in the respective districts on contractual basis after being selected following due procedure of selection. 3. Mr. Anil Kumar Sinha, learned Sr. Counsel, Mr. Rajiv Ranjan, learned Sr. Counsel and Mr. A. Allam, learned Sr. Counsel assisted by Mr. Sameer Saurabh, Mr. Anjani Kumar Verma, Mr. Raunak Sahay, Mr. Vipul Poddar and other counsel appears on behalf of writ petitioners in their respective writ petitions raising common question of law. Learned Sr. Counsels, while addressing this Court, have come out with legal issues for proper consideration of the instant case: i. Whether administrative orders can overrule the statutory provisions? ii. Whether additional qualifications can be fixed or inserted in the advertisement which is contrary to their own Rules? iii. Whether the entire advertised posts can be reserved for the local residents only? iv. Whether contrary to their own Notification, the State is empowered to add or modify the minimum requisite qualification for appointment of ANM? v. While floating Advertisement No. 01/2019, whether respondents have taken into consideration past services of the petitioners who were appointed as per public advertisement following the Rules and are still working as such? vi. Whether reserving the entire seats for local residents only amounts to 100% reservation and is contrary to the principles of natural justice and violative of Articles 16 of the Constitution of India? vii. Whether additional qualification can be fixed contrary to the Rules? viii. Whether respondents can be allowed to fix such criteria which may oust the ANM already working for last several years? 4. The main limb of arguments advanced by learned Sr. vii. Whether additional qualification can be fixed contrary to the Rules? viii. Whether respondents can be allowed to fix such criteria which may oust the ANM already working for last several years? 4. The main limb of arguments advanced by learned Sr. Counsels assisted by other counsels is “As to whether reserving the entire seats for local residents amount to 100% reservation and is contrary to the Constitutional mandates accepted by the Central Government as well as the State Government and is violative of Articles 14, 16, 21 and 300A of the Constitution of India?” 5. Learned Sr. Counsels argue that if the posts are filled-up and candidature of the petitioners are not accepted, they will be debarred forever and their livelihood would be snatched as most of them have crossed the age bar for any other employment. Learned Sr. Counsels further argue that even previous contractual appointments of the petitioners which were made long back after following due procedures of law by way of public advertisement, have not been considered. It is totally against the principles of natural justice to debar the ANM who have been discharging their duties continuously for last 7 to 10 years to the utmost satisfaction without any complaint. 6. Learned Sr. Counsels have placed heavy reliance on the Judgments in the cases of : (i) Principal, Mehar Chand Polytechnic and Another Vs. Anu Lamba and others reported in (2006) 7 SCC 161 ; (ii) Kailash Chand Sharma Vs. State of Rajasthan and others reported in (2002) 6 SCC 562 . (iii) Prashant Vidyarthi & Ors. Vs The State of Jharkhand and others reported in 2003 (1) JCR 3 Jhr. 7. Learned Sr. Counsels further argue that in a catena of decisions, it has clearly been defined as to who is a local resident? Relying on the Full Bench Judgment of this Hon’ble Court, it has been argued that in the case of Prashant Vidyarthi & Ors. (Supra), discrimination shown by the Government has been deprecated and stayed. 8. It has further been argued that right has accrued to the petitioners who were validly appointed to the post of A.N.M. and have been working for last several years without any complaint and if at all employer wants to go for regular appointments, cases of the such ANM may also be considered along with others. Learned Sr. 8. It has further been argued that right has accrued to the petitioners who were validly appointed to the post of A.N.M. and have been working for last several years without any complaint and if at all employer wants to go for regular appointments, cases of the such ANM may also be considered along with others. Learned Sr. Counsels further argue that they are aware of the rights regarding regularization in case of contractual appointments. However, considering every aspects of the matter, alternative argument has been advanced that if cases of the petitioners for regularization in services are not considered, they may be allowed to participate in the ensuing examination pursuant to Advertisement No. 01/2019 along with similarly situated persons and at least they may be given a chance to compete with others. It has emphatically been argued that the Advertisement No. 01/2019 floated by the respondents is contrary to the provisions of Articles 14 and 16 of the Constitution of India and as such prayer has been made for interference by this Court either to stay entire process or for a direction to the respondents to come out with a Corrigendum/ Notice giving relaxation in eligibility criteria enabling the ANM already working on contractual basis to apply for the posts and to accept their candidatures and further allow them to appear in the recruitment process. Learned Sr. Counsels further argues that since last date for filling-up the forms is 04.10.2019 and online forms can be submitted till 16.10.2019 only, as such at least interim relief can be granted to the petitioners and a direction may be given to the respondents – JSSC to accept their forms/applications and allow them to appear in the recruitment process pursuant to the Advertisement No. 01/2019 9. On the other hand Mr. Manoj Tandon, learned AAG assisted by other State counsels argue that admittedly there is no 100% reservation as per the advertisement. He however submits that Government is fully empowered to give special preference and reservation to its local residents only and Policy of the Government cannot be a subject for judicial review and as such no interference is warranted. Justifying stand of the State, learned AAG argue that State has every power to take care of local residents of the State, for which a policy decision has been framed for reserving the Class-III and Class-IV posts for local residents only. Justifying stand of the State, learned AAG argue that State has every power to take care of local residents of the State, for which a policy decision has been framed for reserving the Class-III and Class-IV posts for local residents only. Learned AAG further argues that State is fully aware of the definition of local resident as defined by the Courts and the Constitution and submits that to achieve overall equality and to provide proper employment opportunities to people of rural backward areas, the advertisement has been floated for considering their cases for employment. The Notification of the State cannot be said to be contrary to the Rules, Notification and any Resolution. The learned AAG further argues that in absence of any counter affidavit, he is not in a position to give parawise reply to the writ petition and as such some time may be given to file counter affidavit and to come out with specific stand of the State, if any, regarding review of the terms and conditions of the advertisement. 10. The State represented by other Counsels and JSSC represented by Mr. Sanjay Piprawal, adopts the same arguments as advanced by Mr. Manoj Tandon. 11. Be that as it may, having heard learned Sr. Counsel for the petitioners assisted by other counsels, Mr. Manoj Tandon, learned AAG for the State, Mr. Sanjoy Piprawall, learned counsel appearing for the JSSC and other counsels, this Court is of the view that prima-facie case is made out and balance of convenience lies in favour of the petitioners. However, in absence of counter-affidavit, it may not be proper to dispose of the writ applications at this stage itself. 12. It is not in dispute that affirmative action to provide better employment opportunities to people of rural backward areas is not impermissible provided it seeks to achieve overall equality and is supported by scientific studies and germane to constitutional guarantee to equality. Nothing has been brought on record at this stage to show that overall equality by scientific study and germane to the constitutional guarantee to equality have been considered. State is at liberty to give preference in employment to its local residents but any Circular, Resolution, Policy decision etc. must pass test of Articles 14 and 16 of the Constitution of India. The rights of citizens cannot be infringed and their interest must be protected. State is at liberty to give preference in employment to its local residents but any Circular, Resolution, Policy decision etc. must pass test of Articles 14 and 16 of the Constitution of India. The rights of citizens cannot be infringed and their interest must be protected. It is primary duty of the State to see that the Constitutional rights of the citizens is not infringed by their act. The persons who have been validly appointed and are discharging their duties for last several years without any complaint and may have crossed their prime age and eligibility for other appointments, their rights cannot be infringed, which amounts to violation of Constitutional rights and as such their interests must be protected. Prima-facie Advertisement No. 01/2019 floated by the JSSC is contrary to the Notification/Resolution dated 11.06.2018, which talks of preference given to the local residents and as such is hit by Article 16(2) and (3) of the Constitution of India. 13. Considering entire aspects of the matter and in view of the fact that last date of submission of application form may expire and ANM already working may be debarred from appearing in the examination, by way of interim measure, this Court thinks it proper to pass order to the following effect: i. This Court is of the view that prima-facie case is made out and balance of convenience lies in favour of the petitioners, Respondents – State as well as JSSC are directed to come out with a corrigendum/notice, if required, relaxing requisite qualification etc. allowing the petitioners and similarly placed other ANM to appear in the examination pursuant to Advertisement No. 01/2019 floated by JSSC by accepting their candidature taking into consideration that earlier they were appointed by way of public advertisement floated by respondents themselves. ii. The respondents - State as well as JSSC are directed to consider cases of the ANM by accepting their forms/applications to be filled up by them as they have been working since last several years and have been appointed by way of public advertisement following Rules and they cannot be thrown out by way of further advertisement putting such conditions/ criteria which may debar them from even appearing/ applying for such appointments. 14. 14. In the facts and circumstances narrated hereinabove all such candidates who are working for last several years on contractual basis as ANM pursuant to earlier public advertisement, are permitted to appear in the recruitment process pursuant to Advertisement No. 01/2019, subject to outcome of these writ petitions. Accordingly, respondents are directed to accept the application forms of aforementioned category of candidates and allow them to appear in the recruitment process pursuant to Advertisement No. 01/2019. In the result, all pending Interlocutory Applications stand disposed of. Respondents are directed to file counter affidavit, if any. As prayed, put up these cases after six weeks. 15. Let a copy of this order be handed over to counsel for the parties and communicated to the respondents for the needful.