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2019 DIGILAW 1922 (JHR)

Xavier Ekka v. State Of Jharkhand

2019-11-27

S.N.PATHAK

body2019
JUDGMENT S N Pathak, J. - The petitioner has approached this Court with a prayer for a direction upon the respondents to consider the case of the petitioner for appointment to the post of Headmaster as juniors to the petitioner have already been considered and given appointment on the said post. 2. The case of the petitioner lies in a narrow compass. The petitioner is an Assistant Teacher and presently working as Incharge Headmaster in St. Narsingh Girl''s High School, Manoharpur. The petitioner belongs to Scheduled Tribe Category and is having requisite qualification to be appointed/promoted to the post of Headmaster. It is specific case of the petitioner that pursuant to letter No. 1354 dated 04.08.2006 of Director, Secondary Education, Government of Jharkhand, an Advertisement vide Notice No. 15/2006 was published by Jharkhand Public Service Commission, Ranchi, inviting application for appointment of 257 Headmasters in the Govt. High Schools of State of Jharkhand in the daily newspapers of Ranchi on 07.12.2006. Pursuant thereto, the petitioner and several other applied for the same. Since the petitioner fulfilled all the eligibility criteria, he was issued Admit card along with others. Thereafter, he appeared in the selection process and qualified in the examination and his name figured in the list of successful candidates, published on 21.02.2008 under Scheduled Tribe Category and was called for counselling and verification of the certificate. Subsequently, the petitioner appeared before the respondents for document verification, but again he was called for counselling, then he further appeared for the same and his certificates were verified along with original certificate. 3. It is further case of the petitioner that thereafter, a final revised/merit list was published and accordingly, recommendations were sent to respondent No.2-Director, Secondary Education, Govt. of Jharkhand for appointment of the successful candidates to the said post. However, again vide letter dated 28.04.2009, JPSC sent revised category-wise recommendation list with regard to pending cases to the respondent No.2 and name of the petitioner was at Sl. No.1 in S.T. Category. Further, a common list containing names of successful candidates, whose names appeared in both the first list and revised list was filed in W.P.(S) No.301 of 2012 upon Court''s order and name of the petitioner figured at Sl. No.30 in common list and at Sl. No.1 in S.T. Category. No.1 in S.T. Category. Further, a common list containing names of successful candidates, whose names appeared in both the first list and revised list was filed in W.P.(S) No.301 of 2012 upon Court''s order and name of the petitioner figured at Sl. No.30 in common list and at Sl. No.1 in S.T. Category. It is further case of the petitioner that the respondents authorities in spite of issuing appointment letters to all the successful candidates, adopted pick and choose method and vide letter No. 1465 dated 14.05.2009 issued appointment letters only to 70 candidates from General Category (out of 123 successful candidates), 3 candidates from OBC Category and 2 candidates only from SC Category from the revised merit list and not a single candidate from ST Category was appointed to the said post. As the petitioner was deprived of his legal right to get appointment to the post of Headmaster, he has been constrained to knock the door of this Court for redressal of his grievances. 4. Mrs. Shubha Jha, learned counsel assisted by Mr. Arbind Kumar Jha, learned counsels appearing on behalf of the petitioner submits that in gross violation of the Constitutional provision as envisaged under Article 14 & 16, the respondents have adopted pick and choose method and have appointed persons from the revised merit list, recommended by the JPSC. Learned counsel further argues that though the petitioner belongs to ST Category and his name figured in the merit list/revised merit list at Sl. No.1, but the same was overlooked and petitioner was deprived of his legal rights. She further submits that the benefit of reservation was to be given in adherence to hundred point roster in terms of Jharkhand Reservation of vacancies/post for Schedule Caste/Schedule Tribe as fixed by the Govt. of Jharkhand vide Notification No.6329 dated 20.11.2003, but the same has been given complete go bye and roster system has not been followed while issuing letters of appointment to others. Learned counsel further submits that petitioner is going to superannuate on 30.11.2019 itself, if appointment letter/promotion order is not issued, he will be deprived of fruits of the said post, which the juniors have availed. 5. Per contra, counter-affidavit has been filed. Mr. Rupesh Singh, learned counsel for the respondent-State draws the attention of the Court towards several paragraphs of the counter-affidavit particularly 16 & 17, which reads thus: 16. 5. Per contra, counter-affidavit has been filed. Mr. Rupesh Singh, learned counsel for the respondent-State draws the attention of the Court towards several paragraphs of the counter-affidavit particularly 16 & 17, which reads thus: 16. While dealing with the case of the present petitioner before this Hon''ble Court, the Department came across with several legal issues and discrepancies in the Recruitment Process in as much as :- a. The Advertisement was issued in the year, 2006 and the first provisional list of 257 candidates was rejected by the Department. Subsequently, the JPSC sent two corrected lists of 91 candidates and 72 candidates as aforesaid. This action on part of the JPSC in sending defaulted lists as created an issue of inter-se seniority between the recommended candidates under their respective social categories. It has been appreciated by the Department that had the JPSC sent consolidated list of 91 candidates and 72 candidates, the Department would have been in a position to better appreciate their inter-se seniority. b. For one examination conducted by JPSC, how can JPSC prepared so many merit lists, first merit list, which is supposed to be most authentic, had all or most non deserving name as accepted by JPSC, raised question on purity of examination process itself. c. That by virtue of the appointment process being having prolonged for years together on account of one or other litigation by the aggrieved persons, a legal issue has arisen as to how long the Panel of recommended candidates can be kept alive for appointment. d. Coupled with the aforesaid two issues, it transpires that JPSC while recommending the candidates by way of two lists of 91 candidates and 72 candidates as aforesaid, has not indicated any person of the physically handicapped category whereas the Central enactment of granting equal opportunity in appointment to physically challenged candidates was promulgated way back in the 1995 and the roster points was indicated by the Department of Personnel and Administrative Reforms, Government of Jharkhand on 07.11.2007 i.e. before Supreme Court submitted the recommended lists. e. That this Hon''ble Court in a Public Interest Litigation has clarified that the right of the physically challenged candidates as guaranteed under the 1995 Act cannot be overlooked and they have to be given their due by way of horizontal reservation and has further directed the State Government to clear the backlog of horizontal reservation to physically challenged candidates which has been created on account of non-providing of Roster points in the previous Recruitment exercise undertaken by the State Government. f. The reservation Roster existing at the relevant point of time when the Advertisement was issued has also undergone a change by lapse of almost 10 years. g. That the list of 72 candidates furnished by JPSC wherein name of the petitioner appears at Sr. No.1 of the Schedule Tribe Category on the face of it appeared to be defective in as much as five candidates including two from the Schedule Tribe Category have been recommended by JPSC without they having participated in the process of document verification before JPSC. 17. It is stated that in the light of aforesaid facts and circumstances which could be revealed only upon appreciating the candidature of the present petitioner was either overlooked innocently or could not be appreciated by the Officers of the Department when Letters of Appointment were being issued to one or other candidates recommended by the JPSC in the two corrected lists containing the names of 91 and 72 candidates. It has been also found that since LPA No. 323/2010 is still subjudice before this Hon''ble Court wherein issue regarding appointment by way of promotion and direct recruitment under 1983 Rules or 2004 Rules is subjudice, the appointments so far made ought to have been made subject to the final outcome of the case. It has also been found/revealed that the pendency of the aforesaid LPA No.323/2008 might have not been brought to the knowledge of this Hon''ble Court while adjudicating the batch matters along with W.P/(S) No.301/2009 either due to oversight or lack of proper appreciation. It has also been found/revealed that the pendency of the aforesaid LPA No.323/2008 might have not been brought to the knowledge of this Hon''ble Court while adjudicating the batch matters along with W.P/(S) No.301/2009 either due to oversight or lack of proper appreciation. In view of the aforesaid facts and circumstances the Department has re-convened the State Level Establishment Committee Meeting on 22.11.2019 to review the earlier decision dated 29.07.2019 and the Reasoned order vide Memo No. 2049 dated 31.07.2019 which was for compliance of order dated 29.01.2019 passed in W.P.(S) No.301/2008 and other analogous cases and also on the legality and validity of appointed of candidates on the recommendation of JPSC in the light of Advertisement No. 15/2006. It is stated that the Department file has also been sent to the Minister In-charge for approval on the proposed action of seeking guidelines from the Department of Personnel and Administrative Reforms, Govt. of Jharkhand in view of the discrepancies noted in the appointment process which transpired during the appreciation of the instant case. 6. Learned counsel for the respondent-State further argues that when a copy of this writ petition is received by him, he agitated the matter before the authorities and upon consideration of the same, the Director has referred the matter before the Higher Authorities pointing out illegalities committed earlier for further guidance and clarification. Learned counsel further argues that present Director was unaware of the earlier proceeding and as such, when it was brought to his knowledge, he has taken steps for rectifying the same. However, no decision has been taken till date. 7. Mr. A. Allam, learned Sr. counsel for the respondent-JPSC submits that already the merit list has been revised and name of the petitioner is figuring at Sl. No.1 under S.T. Category and it cannot be said that any recommendation has been done without counseling. 8. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. This Court on 26.11.2019 after hearing the matter at length ordered for personal appearance of the Director, Secondary Education as well as Deputy Director of Secondary Education to know the factual aspects as to why the petitioner''s case was not considered and the juniors have been considered for appointment to the post of headmaster. Mr. This Court on 26.11.2019 after hearing the matter at length ordered for personal appearance of the Director, Secondary Education as well as Deputy Director of Secondary Education to know the factual aspects as to why the petitioner''s case was not considered and the juniors have been considered for appointment to the post of headmaster. Mr. Jatashankar Choudhary, Director, Secondary Education, Govt. of Jharkhand and Mr. Ram Yatan Ram, Dy. Director, Secondary Education, Government of Jharkhand are present in the Court. The Director submitted that he has already pointed out illegalities committed by the Predecessors and also by the JPSC and specific affidavit to that effect has been filed, which is mentioned at para 16 & 17 of the counter-affidavit. The Director further points out that even the name of the candidate, who did not appeared in counselling, were recommended by the JPSC for appointment and the juniors to the petitioner were appointed in view of the orders of this Court. 9. Though the matter has already been taken by the respondent authorities particularly, Director, Secondary Education, but no action has been taken till date and final order has not been passed and as the petitioner is going to superannuate on 30.11.2019 itself, the case of the petitioner ought to have been considered by the respondents, subject to outcome of final decision taken up to the level of the Cabinet. Admittedly, the juniors to the petitioner namely, Sheela Bhutkumar, Parwati Purty and Kamla Sinku, who are much below the petitioner in both the list of successful candidates to the post of Headmaster have been considered and given appointment, but for unknown reasons the case of the petitioner, who belongs to S.T. Category and at Sl. No.1 in his category, has not been considered. 10. In view of the above, I hereby direct the Director, Secondary Education to consider the case of the petitioner in view of the fact that already the juniors to the petitioner have been considered for appointment/promotion to the post of headmaster, before his superannuation, preferably by 29th November, 2019. It is made clear that appointment/promotion will be subject to final/any decision taken at the Cabinet level regarding the illegalities/irregularities in the merit list/revised merit list. It is made clear that appointment/promotion will be subject to final/any decision taken at the Cabinet level regarding the illegalities/irregularities in the merit list/revised merit list. Needless to say that it has been pointed out by the learned counsel for the respondent-State as well as Director, Secondary Education that several irregularities were there in the merit list/revised merit list, if the illegalities are still persisting, the same shall be pointed out by them and letter to that effect be sent to the Secretary, JPSC to look into the matter afresh. 11. The appearance of the Director, Secondary Education as well as Deputy Director of Secondary Education is dispensed with. 12. With the aforesaid directions, this writ petition stands disposed of. 13. A copy of this order may be handed over to the learned counsel for the respondents for taking necessary action.