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2019 DIGILAW 89 (JHR)

Narayan Sharma v. State Of Jharkhand

2019-01-09

PRAMATH PATNAIK

body2019
JUDGMENT Pramath Patnaik, J. - As common issues are involved in all these writ petitions, with the consent of the parties they have been taken together and are being disposed of by this common order. 2. The undisputed facts, which are necessary for adjudication of the writ applications are that an advertisement was published vide Advertisement No. 15/2006 on 07.12.2006 inviting applications from all eligible candidates for appointment on 257 vacant posts of Principal/Headmaster in Government High Schools. Thereafter, corrigendum to the said advertisement was published on 10.02.2007 with regard enhancement of age. Pursuant thereto, the petitioners along with other candidates applied for and appeared in the examination being conducted by Jharkhand Public Service Commission. Thereafter, result of 257 persons was published on 21.02.2008 stating that they have been provisionally declared successful, which included the name of the writ petitioners and they were called for counseling vide letter dated 22.02.2018 along with their documents/certificates in between 17.03.2008 to 27.03.2008. But, final result was not published for long period of time. Aggrieved thereof, some set of the persons approached this Court for direction upon the respondents to issue appointment letters to the petitioners who have been selected for appointment on the post of Headmaster on the basis of examinations conducted by the Jharkhand Public Service Commission. 3. In the meantime, the Secretary, Human Resources Department, Government of Jharkhand vide letter dated 13.10.2008 communicated to Jharkhand Public Service Commission with regard to direct appointment on the post of Principal/Headmaster in Government High Schools. Pursuant thereto, a revised/second list was published by J.P.S.C vide on 29.01.2009, containing list of 177 candidates, out of which cases of 86 persons were kept pending for want of verification and 75 persons out of remaining 91 persons were appointed vide appointment letter dated 14.05.2009, which was also challenged by same set of persons by way of filing writ applications/Interlocutory Applications. However, further appointment on the basis of revised list published by JPSC was stayed by this Court by passing interim order dated 24.07.2009 and the same was challenged by filing one I.A. No. 3857 of 2009, by one Ajay Kumar Jha, who was initially writ petitioner no. 5 in W.P. (S) No. 301 of 2009 and later on was permitted to be arrayed as respondent no. 5 in W.P. (S) No. 301 of 2009 and later on was permitted to be arrayed as respondent no. 6 in that writ application on the ground that his name finds mention in both the lists i.e. first list dated 21.02.2008 and revised list dated 29.01.2009. This Court after hearing the parties vide order dated 24.05.2010 disposed of I.A. No. 3857 of 2009. The operative portion of order dated 24.05.2010 is quoted herein below: "Considering the said submissions as also the urgency for appointment of the Headmasters in the Secondary Schools of the State, it is ordered that the State-respondent shall be at liberty to make appointments against vacant posts of Headmaster of Secondary schools of the State, out of the selected candidates whose names figured both in the first list as well as in the revised list, subject to the condition that sufficient number of posts shall be kept reserved for the writ petitioners of the batch cases, so that they may be appointed in case of their success in the writ petitions." In sum and substance, there are three set of persons: (I).Persons whose name finds place in only first list; (ii).Persons whose name finds place in only revised list; (iii).Persons whose name finds place in both list; 4. So far persons falling under third category i.e. persons whose name find place in both list is concerned vide order dated 24.05.2010 this Court made it clear that respondent-State is at liberty to appoint those persons whose name find place in both the list. Hence, this Court will be discussing the case with respect to persons falling under category (I) and category (ii), as referred above. 5. Before going through the pleadings made by respective parties and scrutinizing their submissinos, it would be apt to reproduce the relevant portion of ''Jharkhand Nationalized Secondary School (Service Conditions) Rules, 2004 (herein after referred to as Rules of 2004) issued vide notification dated 05.11.2004, in particular Rule 2 , 4 and 7 (3) and also clause 3 and 5 of the impugned advertisement, which lays down eligibility and experience: 6. Learned counsel for the petitioners falling under Category I submitted that Rule 7 (3) of the Rules of 2004 specifically provides that on the basis of recommendation made by the Jharkhand Public Service Commission for direct appointment the Director, Secondary Education is to issue appointment letters after obtaining orders from the Government. Learned counsel for the petitioners falling under Category I submitted that Rule 7 (3) of the Rules of 2004 specifically provides that on the basis of recommendation made by the Jharkhand Public Service Commission for direct appointment the Director, Secondary Education is to issue appointment letters after obtaining orders from the Government. Hence, once the recommendation was made by the Jharkhand Public Service Commission, it became functus officio. But, in the case at hand vide letter dated 13.10.2008 the Secretary, Human Resource Development Department, Jharkhand has given 12 directions/guidelines after publication of first and final result to the Jharkhand Public Service Commission giving rise to new interpretation to the eligibility criteria as also educational and training qualifications given in the Rules, which is not permissible in law. Here, after publication of result the State by issuance of letter dated 13.10.2008 has changed the guidelines, which proved detrimental to some of the candidates whose names found place in first and final list. Even as per rule 19(2) and 19(3), Government is empowered to issue any clarification or executive order by way of notification, but the said letter dated 13.10.2008 is simply a letter issued by Secretary, Human Resource Development Department and not a notification. Even otherwise also, the same has been issued after publication of final result and against the golden principle that ''Rules of games cannot be changed when game is over''. 7. In support of their submissions, learned counsel for the petitioners referred to the decision rendered in the case of Secretary, Andhra Pradesh Public Service Commission Vs. B. Swapna & Ors, (2005) 4 SCC 154 , wherein the Hon''ble Apex Court has unequivocally enunciated that no change is permissible after final results have been published, likewise in the case of Md. Shorab Khan Vs. Aligarh Muslim University and others, (2009) 4 SCC 555 . Further, the Hon''ble Apex Court in the case of Dr. K.C. Sahu & Ors Vs. State of Orissa & Ors, (1996) AIR SC 352 has held that where rules are silent selection body cannot supplement rules and that will be without jurisdiction. 8. Shorab Khan Vs. Aligarh Muslim University and others, (2009) 4 SCC 555 . Further, the Hon''ble Apex Court in the case of Dr. K.C. Sahu & Ors Vs. State of Orissa & Ors, (1996) AIR SC 352 has held that where rules are silent selection body cannot supplement rules and that will be without jurisdiction. 8. Learned counsel for the petitioners further submitted that Rule 7 (3) does not mention of any provisional result, therefore, there is no question of any provisional result and final result, and there is only one result result i.e. first result, which was duly recommended by J.P.S.C. On merit of the case, learned counsel for the petitioners further submitted that with regard to degree of Bachelor of Education (B.Ed) the rule only speaks that candidate should possess B.Ed degree from recognized teachers training institute and it nowhere provides that teaching experience of 10 years/7 years should be along with Bachelor of Education Degree. Further, on the matter of experience, it has been submitted that since the appointment is from open market any person having teaching experience in Government Schools are eligible and it is not necessary that a candidate should be a teacher of High School itself and even candidates teaching in primary and middle schools possessing the necessary qualifications and deputed in High Schools or +2 Schools and getting the experience of 10 years/7 years are eligible to be considered for direct appointment as per rules. But, the respondents-authorities by issuing 12 point guidelines vide letter dated 13.10.2008 instead of "removing difficulty" or clarifying the provisions has substantially altered the eligibility criteria and has done violence to the basic structure of Rules. It has been submitted that as per golden principle for interpreting any provision is ''literal interpretation'' and therefore, the contention of the respondent is wholly misleading and against the provisions of rules. It has further been submitted that Jharkhand Public Service Commission is a Constitutional Body deriving its power from Article 315 and 320 of the Constitution of India. It is the Public Service Commission alone which is empowered to conduct examinations for appointment to the service of the State and it is the Public Service Commission alone which can advise on the issue of service matters relating to appointment to the Government. It is the Public Service Commission alone which is empowered to conduct examinations for appointment to the service of the State and it is the Public Service Commission alone which can advise on the issue of service matters relating to appointment to the Government. Government has no authority to issue directions or advise to JPSC whereas in the case at hand, it is the case of role of reversal, in which, instead of JPSC advising the Govt. being an expert constitutional body in the matter of appointment to State Service it is the Government which is advising the JPSC with regard to eligibility etc. Learned counsel for the petitioners further submitted that the impugned advertisement is in consonance with the Jharkhand Rajyakiyakrit Madhyamik Vidyalaya (Sewa Shart) Niyamawali, 2004 which also gives the same qualification under Rule 4 ((1)(i) and 4(1) (ii) (Aa). In the case at hand, the petitioners are fully eligible having MA degree with B.Ed qualification in terms of Rule 4 (1) (I) (Kha). Further, the petitioners have also the required Teaching experience of 10 years/7 years under Rule 4 (1) (ii) (Aa) from Govt. Recognized Schools. The Rule says '' Rajya Sarkar Dwara Manyata Prapt Vidyalaya'' and not specific that it should be High School. So far Rule 1983, earlier rule which was in existence, is concerned in which, it was specific that teaching experience should be from recognized Secondary School. The intend and purport of the legislature in excluding and omitting the word "Secondary School" from the relevant clause is apparent and after omitting the same in Rule 1983 in new rule of 2004, teaching experience from "government recognized school" has been added. Therefore, the intention and wisdom of the legislature is clear, it cannot be allowed to be interpreted and cannot be subjected to any change by issuance of a formal letter of Secretary, Human Resources Development Department. It has further been submitted that neither in the Rule of 2004 nor in the Advertisement it has been mentioned that only the teachers who have teaching experience in the High School are eligible of being appointed on the post of Headmaster in Govt. High School. In this regard, learned counsel for the petitioners referred to the decision rendered in the case of Sri Jeyaram Educational Trust & Ors Vs. High School. In this regard, learned counsel for the petitioners referred to the decision rendered in the case of Sri Jeyaram Educational Trust & Ors Vs. A.G. Syed Mohideen & Ors,2010 2 JCR 20 (SC) , wherein the Hon''ble Court has held that the provision of statute should have to be read as it is, in a natural manner, plain and straight without adding, substituting or omitting any words. 9. In the backdrop of aforesaid facts, it is clear that the petitioners fulfill all the eligibility criteria as mentioned in Rule, 2004 as well as the terms and conditions of the advertisement; as such the respondents have committed illegality while rejecting the candidature of the petitioner for appointment on the post of Headmaster and they are entitled to get appointment on the post in question. 10. As against this, learned counsel for the respondents-State submitted that respondent-Director, HRD vide memo dated 24.06.2006 made requisition for appointment on the post of Headmaster for direct recruitment of 257 Headmasters to JPSC, accordingly the Commission after conducting examination process sent its recommendation vide letter dated 20.02.2008, as provisional list to State, whereupon a Scrutiny Committee was constituted by Director, Secondary Education for proper examination of the recommended list. After scrutiny, the Directorate of Secondary Education vide its letter dated 07.05.2008 returned the recommendation with a request to prepare fresh recommendation list in the light of service conditions as enumerated in Recruitment Rules of 2004. The Commission thereupon scrutinized afresh and sought some clarification from the Human Resources Department vide letter dated 13.09.2008 for making afresh recommendation, whereupon the Secretary, Human Resources Development Department, Govt. of Jharkhand vide letter dated 13.10.2008 sent 12 points guidelines for making fresh scrutiny and recommendation. In the light of aforesaid guidelines, the Commission again examined the matter and accordingly published fresh revised list for appointment on 28.01.2009. From the aforesaid facts, it is clear that the revised list was published in the light of Recruitment Rules, advertisement and guidelines issued by the Human Resources Development Department, Govt. of Jharkhand. It has further been submitted that candidates who do not fulfill the eligibility criteria as per Rules and advertisement have not been later recommended for appointment, which needs no interference by this Court. 11. of Jharkhand. It has further been submitted that candidates who do not fulfill the eligibility criteria as per Rules and advertisement have not been later recommended for appointment, which needs no interference by this Court. 11. Learned counsel appearing for the respondents-JPSC adopting the arguments advanced by counsel for the respondentsState submitted that basically some of the petitioners are primary teachers and some petitioners were lacking experience and some petitioners did not possess the degree of B.Ed at the relevant point as such they were not fulfilling the eligibility criteria as per Recruitment Rules of 2004, advertisement and guidelines obtained from the Government, which is totally clarifactory in nature; hence their candidature have rightly not been recommended for appointment by the JPSC in the revised list. Learned counsel for the respondents further submitted that inclusion of the name in the select/recommendation list does not give any indefeasible right of appointment [ (2005) 9 SCC 22 ]. 12. From perusal of record, it appears that this Court vide order dated 07.09.2010, formulated following issues for adjudication of the writ application: I).Whether the State-Respondents have any authority to issue any guideline or ask for revision of the select list after the final selection and recommendation by the Jharkhand Public Service Commission? II).Whether the Jharkhand Public Service Commission is under obligation to abide by the guidelines of the State after publising final selection list and recommending the names of the successful candidates or whether the Jharkhand Public Service Commission becomes an functus officio after final selection and recommendation? III).Whether the revision of the Jharkhand Public Service Commission on the instruction of the respondents after final publication of the select list and recommendations of the names of the selected candidates is illegal? IV).Whether the writ petitions filed by the petitioners are maintainable? 13. From the pleadings available on record, it appears that respondent-Director, Human Resources Development Department vide memo dated 24.06.2006 entrusted the Jharkhand Public Service Commission for making appointment through direct recruitment of 257 Headmasters. IV).Whether the writ petitions filed by the petitioners are maintainable? 13. From the pleadings available on record, it appears that respondent-Director, Human Resources Development Department vide memo dated 24.06.2006 entrusted the Jharkhand Public Service Commission for making appointment through direct recruitment of 257 Headmasters. Accordingly, the Jharkhand Public Service Commission conducted the examination and sent the recommendation list dated 20.02.2008 to Director, Secondary Education, but, the Directorate of Secondary Education vide its letter dated 07.05.2008 returned the recommendation with a request to prepare fresh recommendation list in the light of service conditions/eligibility criteria as enumerated in Recruitment Rules of 2004, whereupon it is the Commission which sought some clarification from the Human Resources Department vide letter dated 13.09.2008 for making fresh recommendation, in response thereof the Secretary, Human Resources Development Department, Govt. of Jharkhand vide letter dated 13.10.2008 sent 12 points guidelines for making fresh scrutiny and recommendation. Hence, it is not the case where the State-respondent have acted upon on its own rather on the request of Commission sent a letter dated 13.10.2008 which is clarifactory in nature. But, certainly it was not mandatory for the Commission to abide by such guidelines. So far 1 st recommendation list is concerned, it was merely a recommendation which as per law laid down by Hon''ble Apex Court has not created right. There is no iota of doubt or it is not a question of doubt or debate that the Jharkhand Public Service Commission, being a constitutional body under Article Article 315 and 320 of the Constitution of India, is not under obligation to abide by the guidelines of the State. Furthermore, it is admitted fact that Director, Secondary Education vide letter 07.05.2008 returned the recommendation of JPSC with a request to make fresh scrutiny and recommendation in the light of provision of Jharkhand Rajyakiyakrit Madhyamik Vidyalaya (Sewa Shart) Niyamawali, 2004 and also in the light of letter dated 13.10.2008, the 12 points guidelines issued by Secretary, Human Resources Development Department, but it was not mandatory upon the Jharkhand Public Service Commission and on its own wisdom, it has issued the revised list. 14. From the discussions made in the preceding paragraph, it is amply clear that so-called guidelines, which is in dispute and gave genesis to revised list, was not suo motto but it was issued after request being made by the Jharkhand Public Service Commission. 14. From the discussions made in the preceding paragraph, it is amply clear that so-called guidelines, which is in dispute and gave genesis to revised list, was not suo motto but it was issued after request being made by the Jharkhand Public Service Commission. Further the issue of JPSC become functus officio after final recommendation, as alleged on submission of first recommendation list, is concerned, it appears that on scrutiny of relevant Rules of 2004 and guidelines dated 13.01.2008, the Commission issued revised list and this Court after considering all gamuts of the matter in I.A. No. 3857 of 2009 (in W.P. (S) No. 301 of 2009 and batch matters) vide order dated 24.05.2010 gave liberty to the State-respondent to make appointments against vacant posts of Headmaster of Secondary schools of the State, out of the selected candidates whose names figured both in the first list as well as in the revised list. Furthermore, as per the pleadings available on record order passed in I.A. No. 3857 of 2009 has never been challenged by any persons, hence, at this stage, the issue of functus officio does not survive to be raised. Accordingly, issue no. I, II and III is answered. So far issue no IV, with regard to maintainability on the count of non-joinder of necessary and other counts are concerned, this Court on the basis of pleadings available on record that the writ petitioners have added few private respondents as representative capacity, this Court is of the view that writ petitions are very much maintainable. 15. On another aspect of the matter, from the pleadings available on record, it appears that main point of dispute is with regard to (I).date of acquisition of B.Ed degree (ii).Counting of years of experience and (iii).Teaching experience High Schools/Primary Schools. There is no doubt that the main foundation of advertisement is Jharkhand Rajyakiyakrit Madhyamik Vidyalaya (Sewa Shart) Niyamawali, 2004. In case of any confusion, Rules of Recruitment, 2004 has to be seen. But, even then when the Commission felt some confusion, the JPSC sought some clarification from the Government and accordingly the Government acted upon and vide letter dated 13.10.2008 it sent 12 points guidelines which helped the JPSC to come out with a revised list. 16. In case of any confusion, Rules of Recruitment, 2004 has to be seen. But, even then when the Commission felt some confusion, the JPSC sought some clarification from the Government and accordingly the Government acted upon and vide letter dated 13.10.2008 it sent 12 points guidelines which helped the JPSC to come out with a revised list. 16. In such view of the matter, the respondents-Director, Secondary Education is directed to take a fresh decision in consultation with J.P.S.C with regard to issuance of appointment letters to the persons falling under category (I). Persons whose name finds place in only first list and (II).Persons whose name finds place in only revised list OR left over persons, within a period of twelve weeks from the date of receipt/production of copy of this order. So far persons, falling under category III i.e. persons whose name finds place in both list they have already been directed to be appointed no order need to be passed for those persons. 17. Before parting with this order, it would be apt to mention here that as per the pleadings made at Bar number of schools is running under In-charge Headmasters for want of appointment of regular Headmasters, the State being a welfare State is expected to do well for filling up those vacancies by inviting fresh applications from the eligible incumbents and complete entire exercise of appointment as expeditiously as possible preferably within a period of one year. So far relaxation of age or relaxation on any other count is concerned to the persons who have come before this Court, it is up to the State to come out with a specific rule/guideline to give one time relaxation to left over persons as they have spent a decade in fighting litigation for appointment on the post in question or for all eligible candidates. 18. With the aforesaid observations and directions, the writ applications stands disposed of. Consequently, all the Interlocutory Application which are on Board stands disposed of.