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2020 DIGILAW 1079 (JHR)

Prof. Dr. Tulsi Mahto v. State of Jharkhand

2020-11-12

RAVI RANJAN, SUJIT NARAYAN PRASAD

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ORDER : 1. With the consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality. 2. The instant appeal is listed under the heading “for orders with defect.” Learned counsel appearing for the appellant has submitted that all the defects except defect No. 1 as pointed out by the office vide stamp reporting dated 16.09.2020 have been removed. He prayed for ignoring the defect No. 1. In view of the prayer of the learned counsel for the appellant as also considering the nature of defect i.e. Respondent No. 4 is not party in the certified copy of the impugned order, the same is ignored. 3. On the last occasion i.e. on 11.11.2020 when the matter was listed under the heading “for orders with defect” Dr. Ashok Kumar Singh, learned counsel appearing for the respondent RIMS had submitted that the instant appeal can be disposed of at this stage itself since subsequent to the advertisement, which is the subject matter of the present appeal, another advertisement has been published and pursuant thereto appointment has already been made to the post of Director, RIMS and as such, once the appointment has already been made in pursuance of the subsequent advertisement, nothing remains to be decided in the present appeal. 4. Upon such submission of learned counsel appearing for the respondent RIMS, it was submitted by Mr. Rajendra Krishna, learned counsel appearing for the writ petitioner/ appellant that matter may be heard on merit. 5. This Court, after considering the aforesaid submissions, had posted the matter for today i.e. on 12.11.2020 for hearing of the matter on merit. 6. Dr. Ashok Kumar Singh, learned counsel appearing for the respondent RIMS, at the outset, has submitted that one affidavit has been filed bringing to the notice of this Court about the subsequent development which has taken place after disposal of the writ petition and in course of pendency of the instant appeal. 7. Mr. Rajendra Krishna, learned counsel appearing for the writ petitioner/appellant has submitted that he has received the copy of the aforesaid affidavit and as such, the matter may be heard. 8. In this pretext and with the consent of the learned counsel for the parties, the matter has been heard today. 9. 7. Mr. Rajendra Krishna, learned counsel appearing for the writ petitioner/appellant has submitted that he has received the copy of the aforesaid affidavit and as such, the matter may be heard. 8. In this pretext and with the consent of the learned counsel for the parties, the matter has been heard today. 9. The instant intra-Court appeal is directed against the order/judgment dated 20.07.2020 passed by learned Single Judge of this Court in W.P. (S) No. 1395 of 2018 whereby and whereunder the writ court has rendered the writ petition as infructuous on the ground that in pursuance of the advertisement, one Dr. Dinesh Kumar Singh has already been appointed as Director, RIMS, and subsequently he left the organization and in consequence thereof, fresh advertisement was published which was brought on record by way of I.A. No. 3724 of 2020 and as such, on this background the learned Single Judge has taken the view that the issue is only academic in nature by virtue of publication of subsequent advertisement which can be decided in another appropriate writ petition. 10. Mr. Rajendra Krishna, learned counsel appearing for the writ petitioner/appellant has submitted that an issue was raised before the learned Single Judge and as such, the issue ought to have been decided instead of rendering the same as infructuous and hence, the impugned order is not sustainable in the eyes of law. He has submitted that the writ petition was filed for a direction to the respondents to complete the process for appointment in terms of advertisement dated 19.09.2017 on the post of Director, RIMS as also further prayer has been made for direction to the respondents to appoint the writ petitioner/appellant on the post of Director, RIMS as he was at waiting list no. 1 pursuant to advertisement No. 1/18. It has further been submitted by referring to Page No. 37 of the writ petition which contains the advertisement basing upon which application was made by the writ petitioner/appellant for the post of Director, RIMS, the petitioner had participated in the process of selection and considering him suitable, his name was placed in the merit list at waiting list No. 1. His further submission before the writ court was that ‘No Objection Certificate’ had been given to Dr. His further submission before the writ court was that ‘No Objection Certificate’ had been given to Dr. Dinesh Kumar Singh on 17.01.2018 and in the meantime earlier advertisement was not given effect to and fresh advertisement was there which was at Annexure-8 to the writ petition and in that view of the matter, according to him, the cause of action was surviving as the issue in question has not been decided as yet. 11. Per contra, Dr. Ashok Kumar Singh, learned counsel appearing for the respondent RIMS, has agitated the issue before the writ court by referring to Clause 4 of the advertisement at page No. 37 which contains requirement to obtain ‘No Objection Certificate’ but that requirement was only for the Government servants and if the candidate is not in the Government service, he was not required to obtain ‘No Objection Certificate’. The Governing Council of RIMS has taken into consideration the aforesaid fact and has accepted the joining of Dr. Dinesh Kumar Singh. Further submission has been made that during the pendency of the writ petition Dr. Dinesh Kumar Singh had resigned from the post of Director, RIMS and as such, after appointment of Dr. D.K.Singh and his resignation, the entire selection process has come to be concluded and as such, thee is no question of further consideration of anyone in view of the aforesaid advertisement and hence, the writ petition has become infructuous. The learned Single Judge, after taking into consideration the aforesaid aspect of the matter, has rightly rendered the writ petition as infructuous. Learned counsel appearing for the respondent RIMS has submitted that he has filed an affidavit on 10.11.2020 bringing on record certain further developments to the effect that after the resignation of Dr. Dinesh Kumar Singh, a fresh advertisement was published for appointment of Director, RIMS. The appellant also applied to be appointed as Director, RIMS for the second time in pursuance of the fresh advertisement, however, he has not been selected. One Dr. Kameshwar Prasad, Ex-Professor and Head of Department of Neurology, AIIMS, New Delhi has been appointed as the next Director of RIMS vide Memo No. 4012/RIMS dated 16.10.2020. After appointment of Dr. The appellant also applied to be appointed as Director, RIMS for the second time in pursuance of the fresh advertisement, however, he has not been selected. One Dr. Kameshwar Prasad, Ex-Professor and Head of Department of Neurology, AIIMS, New Delhi has been appointed as the next Director of RIMS vide Memo No. 4012/RIMS dated 16.10.2020. After appointment of Dr. Kameshwar Prasad as the new Director of RIMS, he has become a necessary party to the appeal and in absence thereof the entire exercise will be futile as even if any order would be passed in absence of Dr. Kameshwar Prasad, no purpose will be served. 12. This Court has heard the learned counsel for the parties, gone across the impugned order as also the materials available on record and has found that there is subsequent development about appointment of Dr. Kameshwar Prasad as Director, RIMS in pursuance of fresh advertisement in which the writ petitioner has participated but has not been found fit to be selected. It is not in dispute that if an issue is raised the same has to be decided either way and the issue once agitated never becomes infructuous. It is also equally settled that in absence of necessary party no relief can be granted to the aggrieved and this position of law is well applicable in the service law pertaining to filling up of the vacancies as because if aggrieved has approached to the court of law for seeking appointment to a particular post and if that post has already been filled up, in such situation without impleading the appointee as party to the proceeding, no relief can be granted to the aggrieved since the post has already been occupied and unless the appointment of the occupant of the post will be quashed and set aside for creating vacancy, if it is found to be illegal, then only the question of appointment of the aggrieved will arise. Herein, admittedly the writ petitioner had participated in the process of selection in pursuance of the advertisement being Advertisement No. 1/2017 for filling up the post of Director, RIMS in which his name was kept at Waiting List S. No. 1 but was not appointed, rather one Dr. Dinesh Kumar Singh was appointed who joined the said post. Herein, admittedly the writ petitioner had participated in the process of selection in pursuance of the advertisement being Advertisement No. 1/2017 for filling up the post of Director, RIMS in which his name was kept at Waiting List S. No. 1 but was not appointed, rather one Dr. Dinesh Kumar Singh was appointed who joined the said post. The writ petitioner approached the writ court at the stage when the selection process was not complete but in course of pendency of the writ petition, the selection process was completed by virtue of issuing offer of appointment in favour of said Dr. Dinesh Kumar Singh which was acted upon by giving joining to the post of Director, RIMS. Thereafter, said Dr. Dinesh Kumar Singh tendered his resignation and in order to fill up the post, a fresh advertisement has been published. The writ petitioner, although has challenged the subsequent advertisement by filing an interlocutory application before the writ court, but the said interlocutory application has not been pressed, rather it has been withdrawn. In view of the withdrawal of the aforesaid interlocutory application, the fresh advertisement will be said to have been accepted by the writ petitioner. It will also be said to be accepted further on the ground that the writ petitioner has participated in pursuance of the subsequent advertisement published by the competent authority/body for filling up the post of Director, RIMS in consequence of vacancy created due to resignation of Dr. Dinesh Kumar Singh. In the subsequent advertisement, the process of selection has been completed finding one Dr. Kameshwar Prasad as fittest candidate to hold the post of Director, RIMS and thereafter as per the decision of the Governing Council, Dr. Kameshwar Prasad has been decided to be issued with the appointment letter which has subsequently been issued. The development pertaining to appointment of Dr. Kameshwar Prasad was not available at the time of pendency of the writ petition rather, such development has arisen in course of pendency of the instant appeal. The writ court, on the pretext of non-impleadment of Dr. Dinesh Kumar Singh as party to the writ proceeding, has rendered the writ petition as infructuous and further on the ground that subsequent advertisement has already been published, has held the writ petition as infructuous. The writ court, on the pretext of non-impleadment of Dr. Dinesh Kumar Singh as party to the writ proceeding, has rendered the writ petition as infructuous and further on the ground that subsequent advertisement has already been published, has held the writ petition as infructuous. Subsequent to the aforesaid advertisement, another advertisement has been published in which the writ petitioner has participated but not selected rather, one Dr. Kameshwar Prasad has been appointed. The question is that the writ petitioner has accepted the subsequent advertisement first by participating in the same and secondly by withdrawing the interlocutory application wherein the subsequent advertisement has been sought to be challenged by seeking leave of the writ court. In these circumstances since the writ petitioner has already accepted the advertisement by participating in the process of selection and subsequently the interlocutory application questioning the said advertisement having been withdrawn whether he can now challenge the fresh appointment at the appellate stage ? Challenge to the fresh advertisement along with the appointment can only be available to the writ petitioner/appellant if the same would be challenged by him before appropriate forum but as would appear from the material available on record, the writ petitioner/appellant has not questioned the fresh appointment made in pursuance of the subsequent advertisement though the fresh advertisement was questioned before the writ court by filing interlocutory application but subsequently the same was withdrawn. Further, in pursuance of the subsequent advertisement one Dr. Kameshwar Prasad has already been appointed. It requires to refer herein that the post of Director is sole post under RIMS and since the post has already been filled up by Dr. Kameshwar Prasad, therefore, unless the appointment of Dr. Kameshwar Prasad will be held to be illegal, the question of consideration of writ petitioner to the said post will not arise. The question of impleadment of party will not arise since at the time of filing of the appeal, the post of Director was vacant as the selection process was in progress. Since the sole post has been filled up by virtue of subsequent advertisement, therefore, the writ petitioner, if at all is aggrieved with the appointment of said Dr. Kameshwar Prasad, he will have to move before the appropriate forum afresh questioning such appointment. Since the sole post has been filled up by virtue of subsequent advertisement, therefore, the writ petitioner, if at all is aggrieved with the appointment of said Dr. Kameshwar Prasad, he will have to move before the appropriate forum afresh questioning such appointment. Therefore, according to our considered view, at this stage of the intra-court appeal, even if the same will be adjudicated, no purpose will be served since before the writ court there was first advertisement by virtue of which selection process was completed by making appointment of Dr. Dinesh Kumar Singh and subsequent to his resignation, another advertisement was published pursuant to which another person has been appointed i.e. Dr. Kameshwar Prasad and as such, so long as the post of Director is occupied by any incumbent, without questioning his incumbency, no fruitful purpose will be served. 13. In view of the aforesaid factual aspect, the issue which has been agitated by the writ petitioner before the writ court, which is the subject matter of the instant intra-court appeal, since will not serve any fruitful purpose for the reason aforesaid, therefore, the finding recorded by the learned Single Judge cannot be said to suffer from any error since the jurisdiction conferred to the writ court is for issuance of writ of mandamus or writ of certiorari and in the factual pretext of this case, as indicated hereinabove, neither the writ of mandamus nor the writ of certiorari can be issued. 14. Accordingly, we see no reason to interfere with the finding recorded by the learned Single Judge. Accordingly, the instant appeal fails. 15. However, it is made clear that fresh appointment will not take away the right of the appellant to assail the appointment in accordance with law, if he so desires and/or is so advised.