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2020 DIGILAW 1034 (JHR)

Balkishun Ram v. State of Jharkhand

2020-11-02

DEEPAK ROSHAN

body2020
JUDGMENT : Heard through V.C. 2. The instant writ application has been preferred by the petitioners for the following reliefs; (A) For quashing of Letter dated 26.07.2013 Annexure-16 at page 128 by which the claim of the petitioner for appointment has been rejected on the ground that the life of panel has been lapsed without considering the order passed by this Hon’ble Court in the present petitioner’s case earlier on 20.04.1999 as contained in Annexure-6 at page 83 and dated 24.04.2012 Annexure-14 at page 124. (B) For declaring the action of the respondents as illegal in saying the 1977 circular speaks about one year validity of the panel though the same was amended which will be evident from Annexure-1 (Series) which says the panel will continue till the appointment. (C) For declaring the action of respondent is illegal in saying the panel of 1992 has been cancelled without bringing on record any document before this Court ever while disposing of the writ application twice by this Hon’ble Court in favor of the petitioners also the action is illegal that they have appointed 34 persons in 2001 and 24 persons in 2006. (D) For declaring that the life of the panel made alive due to two orders passed by this Hon’ble Court in case of the petitioners as contained in Annexure-6 & 14 and also in view of Annexure-1(series). (E) For declaring the action of the respondent illegal in appointing those persons who never applied for inclusion their name in the panel in terms of the advertisement as contained in Annexure-2 and name has been inserted with oblique motive who never applied and were appointed and also declaring the action of the respondents illegal in saying that the other persons name included due the order passed by this Hon’ble Court in different cases, all the order which they have mentioned in the order impugned has already brought on record in the present case and there is no such direction passed by the Hon’ble Court. 3. At the outset, Mr. Saurav Arun, learned counsel for the petitioners submits that this is the third round of litigation only due to the mala-fide intention of the respondent-authorities. 3. At the outset, Mr. Saurav Arun, learned counsel for the petitioners submits that this is the third round of litigation only due to the mala-fide intention of the respondent-authorities. The petitioners moved before this Court way back in the year, 1997; which was allowed in their favor and thereafter, again in the year, 2006, they filed another writ application which was also decided in their favour, but only to frustrate the order of this court, the impugned order has been passed. 4. The facts as disclosed in the instant writ application is that the petitioners have earlier moved before this Court for a direction upon the respondent authorities to provide the appointment to the petitioners in different departments of the State Government against the vacant sanctioned post from the District Panel 1992 of Class-IV, which has been prepared in pursuance of the Government Notification dated 19.11.1990. 5. Learned counsel for the petitioners submits that several persons who were below in the panel have been appointed in the year, 2006 and the appointment to these petitioners were denied in spite of the fact that they were selected pursuant to the advertisement and their names were duly recommended, however, they were not appointed. By referring to the judgment passed in the case of petitioners (Annexure-6), he submits that this court has categorically held in the concluding paragraph that after the appointment of the petitioners, the existing vacancies should be filled up from the candidates of the new panel to be prepared in terms of the advertisement. 6. Mr. Saurav Arun, further contended that by going through the impugned order it transpires that there are two grounds which has been taken by the respondentauthorities to frustrate the prayer of the petitioners. Firstly, the life of the panel has lapsed due to the fact that one year has passed and secondly there is no vacancy since outsiders have been appointed in pursuance to the fresh panel prepared in the year, 1996. 7. Learned counsel further contended that the issue of lapse of panel is now no more res integra, inasmuch as, the claim of the candidates included in the panel cannot be defeated because panel has expired during the pendency of litigation and the candidates has staked their claim during currency of the panel. 7. Learned counsel further contended that the issue of lapse of panel is now no more res integra, inasmuch as, the claim of the candidates included in the panel cannot be defeated because panel has expired during the pendency of litigation and the candidates has staked their claim during currency of the panel. He further referred to the judgment passed in the case of State of U.P. Versus Ram Swarup Saroj as reported in (2000) 3 SCC 699 . Learned counsel further contended that the second ground indicated in the impugned order is also against the specific direction passed in the case of the petitioners (Annexure-6) wherein, this Court has categorically held that after the appointment of the petitioners, the existing vacancies should be filled up from the candidates of new panel to be prepared. He further submits that when the order of this court was so clear and unambiguous, there was no occasion of denying the benefit to these petitioners rather taking a ground that since the panel has expired and there is no vacancy as such, the claim of the petitioners cannot be entertained, is totally misconceived and against the ratio of the judgment referred to herein above. He further referred to paragraph no. 43 of the writ application where there is a specific averment that still there are 250 posts lying vacant, which has not been denied by the respondent-authorities. As such, the impugned order is liable to be quashed and set aside and the order passed by this Court in the case of these petitioners (Annexure-6) and (Annexure-14), may be complied with in true letter and spirit, wherein the respondent-authorities were directed to consider the case of the petitioners for appointment against vacant sanctioned post from the District panel 1992 of Class-IV. It was also directed to consider the age relaxation, if they have crossed the prescribed age limit. 8. Learned counsel for the respondent-State reiterated the stand mentioned in the counter-affidavit and submits inter alia that in the light of the instructions contained in letter No. 16441 dated 03.12.1980, the legal validity of the District panel prepared for appointment on the post of Class-IV employee is fixed for one year only. He further submits that the said District level panel was cancelled on14.05.1996 in the light of the letter No. 577 dated04.11.1995. He further submits that the said District level panel was cancelled on14.05.1996 in the light of the letter No. 577 dated04.11.1995. He further submits that on examination of records, it transpire that the retrenched daily wages employees were working in the department since 1994-95 and they have applied for regular appointment against the advertisement published in the year 1997 by the Road Construction Department, but the department did not appointed them. He concluded his argument by submitting that the panel prepared in the year, 1992 was cancelled in the year 1996. 9. Having heard learned counsel for the parties and after going through the materials available on record, it appears that this court in the case of the petitioners in C.W.JC. Nos. 2605, 2163, 2052 and 2245 of 1997 (R) allowed the writ application by holding at paragraph No. 13, 17 and 18 as under:- “13. The petitioners of these cases are not seeking appointment only on the ground of empanelment in 1992 panel. Their case is that the vacancies were notified before preparation of the panel by the different departments. Their names were included in the panel for appointment and they were asked to the different departments for appointment in terms of the vacancies intimated by the department but they have not been appointed whereas the persons below to them in the panel whose names were also recommended and sent for appointment to the different departments have been appointed. The assertion made by the petitioners has not been denied by the respondents. As such there is a clear case of discrimination. 17. Thus, once the government has come out with a policy that appointment in the offices falling within the districts to Class IV post has to be made by the panel, the appointment cannot be denied on the ground that the appointing authority is the State level authority because in that district the appointment has to be made from that panel. The aforesaid grounds given by the officers concerned for not making appointment is wholly untenable. Similarly, the ground of non-clearance of roster or not permission has been granted from the State level are also wholly untenable. The aforesaid grounds given by the officers concerned for not making appointment is wholly untenable. Similarly, the ground of non-clearance of roster or not permission has been granted from the State level are also wholly untenable. The aforesaid acts appear to be a device by the concerned officers not to make appointment in terms of the government policy and to fill up the post by adopting the back door method which is prevalent mode of appointment in this state. 18. To expedite the matter, the Dy. Commissioner is directed first to prepare a list of candidates, whose names were recommended in the different offices, including the petitioner and thereafter call for meeting of the concerned offices where the names of the petitioners were recommended for appointment in terms of the vacancy notified by them and thereafter issue a direction to them except Reeka Ausadhalaya Department to make appointment of the petitioners in terms of the government policy within a month from the date of delivery of direction issued by him. With regard to the two vacancies of Teeka Ausadhayalaya Department they should be appointed in any other department by the Dy. Commissioner where the vacancies are existing. The Dy. Commissioner will also look into the facts even in some departments at present vacancies are not existing because of the financial crunch or otherwise then in those cases candidates should be accommodated in any other departments against the existing vacancies. After the appointment of the petitioners the existing vacancies should be filled up from the candidates of the New Panel to be prepared in terms of the advertisement.” From records, it also appear that the petitioners were forced to knock the door again in the year, 2006 by filing another writ application being W.P.(S) No. 4179 of 2006; wherein this Court has directed the respondents to consider the case of the petitioners and at paragraph no. 7 of the said order has held as under:- “7. 7 of the said order has held as under:- “7. Considering the aforesaid rival submissions and on perusal of the materials on record and more particularly the order passed in W.P.(S) No. 2875 of 2005 with W.P.(S) No. 6681 of 2005 with W.P.(S) No. 2526 of 2005 with W.P.(S) No. 2547 of 2005 with W.P.(S) No. 2477 of 2005 with W.P.(S) No. 7508 of 2006 it transpires that this court, while dealing with those petitions in a similar situation, after careful consideration of the facts and circumstances involved in the matter and after considering the various decision rendered by this Court directed the authorities concerned to consider the case of the petitioner for appointment against vacant sanctioned post from the District Panel 1992 of Class-IV which has been prepared in pursuance of the Government notification dated 19.11.1990 in view of the fact that many persons, who are below in the panel, are being appointed in 2006. The case of the present petitioners is also similar to that case of the petitioners in W.P.(S) No. 2875 of 2005 with W.P.(S) No. 6681 of 2005 with W.P.(S) No. 2526 of 2005 with W.P.(S) No. 2547 of 2005 with W.P.(S) No. 2477 of 2005 with W.P.(S) No. 7508 of 2006 as they have been empanelled in the panel of the year 1992 and therefore, necessary order is required to be passed in the present case in light of the order passed by this Court on 21.12.2011 in a group of writ petitions stated above. Accordingly, the respondents authorities are directed to consider the case of the petitioners for appointment against vacant sanctioned post from the District Panel 1992 of Class-IV. The respondent-authority shall also consider to give the relaxation in age to the petitioners if they have crossed prescribed age limit while considering the case of the petitioners.” After perusing the impugned order as contained in Annexure-16, it appears that the ground taken by the respondents in denying the claim of the petitioners that the life of the panel prepared for appointment on the post of Class-IV grade employee was fixed for one year only. In this regard it would be relevant to refer their own circular which is annexed at Annexure-1/1 wherein, there was a guideline to prepare a panel of candidates for appointment of Class- IV posts in various offices within the district. In this regard it would be relevant to refer their own circular which is annexed at Annexure-1/1 wherein, there was a guideline to prepare a panel of candidates for appointment of Class- IV posts in various offices within the district. In paragraph 4 of the said circular, it was specifically stated that this panel will be for the period of one year and the same will be reviewed on the next year and in the reviewed list, seniority of the candidates of the previous panel will be maintained, subject to their character. Thus, it appears that the ground of lapse of panel is not in accordance with their own circular. Even otherwise, the issue of lapse of panel has been decided by the Hon’ble Apex Court in the case of State of U.P. Versus Ram Swarup Saroj (supra). From the records it also appear that the ground with regard to lapse of panel is also against their own action as they themselves have appointed in 2004-06 from the 1992 panel as such, there is no hesitation in holding that this ground in the impugned order has been taken by the respondents just to frustrate the claim of the petitioners. The other ground indicated in the impugned order is that since there was a direction by this Court to appoint the retrenched employee, they have appointed outsiders. However, after perusing the order of this Court it appears that there is no specific direction to appoint rather, the writ application was disposed of with a direction to the respondents to take necessary steps for filling up all those posts lying vacant in the Road Construction Department (Annexure-10). At this stage it is necessary to refer the specific assertion made in paragraph 43 of the writ application, wherein the petitioners have categorically stated that still there are 250 posts which is lying vacant. This categorical statement has not been denied by the respondent-authorities. 10. In view of the aforesaid facts and the findings given herein above and also the judgments passed in the case of petitioners, the impugned order deserves to be quashed and set aside. Consequently, the impugned order as contained in letter dated 26.07.2013 (Annexure-16), whereby the claim of the petitioners for appointment has been rejected on the ground that the life of panel has been lapsed, is quashed and set aside. Consequently, the impugned order as contained in letter dated 26.07.2013 (Annexure-16), whereby the claim of the petitioners for appointment has been rejected on the ground that the life of panel has been lapsed, is quashed and set aside. The matter is remitted back to the respondent no.3-The Deputy Commissioner, South Chotanagpur Division, Ranchi; who shall look into the matter and pass an appropriate order by considering the case of the petitioners in the light of the judgments already passed in their case wherein this Court directed the respondents authorities to consider the case of the petitioners for appointment against vacant sanctioned post from the District Panel 1992 of Class-IV. It goes without saying that the respondent-authorities shall also consider to give relaxation in age to the petitioners, if they have crossed the prescribed age limit, while considering the case of the petitioners. It is made clear that the entire exercise shall be completed within a period of six months from the date of receipt/production of copy of this order. 11. With the aforesaid observation and directions, the instant writ application is disposed of.