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2020 DIGILAW 305 (JHR)

Kanti Kumari v. State of Jharkhand

2020-02-14

S.N.PATHAK

body2020
JUDGMENT : 1. The petitioners have approached this Court for a direction upon the respondents to allow them to work to the post of Chowkidar’ who have been discontinued from service pursuant to Memo No. 129 dated 25.04.2013 on the ground that they had not submitted Class X pass certificate as per the requirement. Further, prayer has been made for quashing /exempting eligibility criteria as contained in Clause 8 of Resolution No. 1859/ Finance dated 02.09.2011 with respect to the petitioners. Further, prayer has been made for a direction upon the respondents to make the payment of unpaid salary to the petitioners for the period during which they have worked. 2. The factual exposition as has been delineated in the writ petition is that the Deputy Commissioner, Chatra vide Memo No. 673 dated 29.11.2011 appointed the petitioners along with one another on the vacant posts of Chowkidar on compassionate ground in view of the decision of the Establishment Committee dated 29.11.2011 in the pay scale of Rs.4470-7440/- +GP 1300/- along with admissible allowances in terms of Letter No. 11287 dated 20.12.1995 issued by the Department of Home (Police), Govt. of Bihar. Thereafter, the petitioner submitted relevant documents in the General Section, Office of the Deputy Commissioner, Chatra. The petitioners submitted their joining pursuant to the said memo to the said post in Circle Office, Tandwa and Vide Memo No. 460 dated 13.12.2011, the Circle Officer, Tandwa relieved the petitioners for joining in Tandwa Police Station within 24 hours. The petitioner after joining in Tandwa Police Station worked with the satisfaction of the respondents. It is further the case of the petitioners that on 08th of November, 2012, the petitioners were directed to submit 10th Pass certificate as per the requirement for Group ‘D’ post in terms of Resolution No. 1859/Finance dated 02.09.2011, failing which their services will be terminated and Circle Officer, Tandwa was also informed to stay the payment of the petitioners till next order and copy of the same was also provided to Officer-in-Charge, Tandwa Police Station and District Treasury Officer, Chatra for information and necessary action. The petitioners were again directed vide Memo No. 129 dated 25.04.2013 by the Officer- In-Charge, General Section-cum-District Magistrate, Chatra to furnish 10th Pass Certificate in General Section, within one month of issuance of letter, failing which their services will be terminated per as the Resolution No. 1859/Finance dated 02.09.2011. The petitioners were again directed vide Memo No. 129 dated 25.04.2013 by the Officer- In-Charge, General Section-cum-District Magistrate, Chatra to furnish 10th Pass Certificate in General Section, within one month of issuance of letter, failing which their services will be terminated per as the Resolution No. 1859/Finance dated 02.09.2011. Pursuant thereto, the petitioners could not submit the said certificate as they were Class VIII pass and consequently, the respondents dis-engaged them from the services and they were not allowed to work to the post of Chowkidar. However, till date no letter of termination has been issued, but petitioners have been disengaged and not allowed to work to the said post and their salaries have not been paid. The petitioners, being aggrieved by the same, made several representations, but no heed was paid and as such, they have been constrained to knock the door of this Court. 3. Mr. Sudhir Kumar Sharma, learned counsel for the petitioner submits that admittedly, the petitioners are Class VIII pass and they were appointed on compassionate ground on account of death of their respective husbands, who were Chowkidar in the year, 2007 and 2009 respectively. The petitioners are women and members of Scheduled Caste and have furnished 8th Pass Certificate at the time of their appointment on compassionate ground made vide Memo No. 673 dated 29th November, 2011 to the vacant posts of Chowkidar in view of Letter No. 11287 dated 20.12.1995 issued by the Department of Home (Police), Govt. of Bihar. Learned counsel further argues that it was the decision of the Establishment Committee dated 28.06.2011 to appoint the petitioner on compassionate ground and the petitioners, by following the procedures, have been appointed and they discharged their duties satisfactory. He further submits that Resolution No. 1859 /Finance dated 02.09.2011 issued by the Govt. of Jharkhand, which contemplate that Educational Qualification for Group ‘D’ post is 10th pass is not applicable in the case of the petitioners as any notification can have prospective effect, but cannot be implemented retrospectively. The petitioners were appointed pursuant to the decision of Establishment Committee dated 28.06.2011 on vacant and sanctioned posts of Chowkidar on compassionate ground in terms of Memo dated 20.12.1995. 4. On the other hand, counter-affidavit has been filed. Ms. The petitioners were appointed pursuant to the decision of Establishment Committee dated 28.06.2011 on vacant and sanctioned posts of Chowkidar on compassionate ground in terms of Memo dated 20.12.1995. 4. On the other hand, counter-affidavit has been filed. Ms. Shatakshi, learned counsel for the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that petitioners have been appointed to the post of Chowkidar on compassionate ground on 28.11.2011, but the requirement for appointment to Group ‘D’ post is 10th Pass and as the petitioners were not 10th pass, their services have been terminated and also prior to their termination, notices were issued to them, but they did not submit Class 10th pass Certificate and as such, rightly they have been dis-engaged from the services. 5. 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 petitioners needs consideration on the following facts and reasons:- 1. A decision of the Establishment Committee was taken on 28.06.2011 to appoint the petitioners after completion of the proceeding of the Members which duly approved the appointment of the petitioners, which is apparent from page 26 of the writ petition and subsequently appointment letters were issued on 29.11.2011. 2. From perusal of the records, it can be very comfortably inferred that a decision to appoint the petitioners was taken on 28.06.2011 itself, whereas, the notification regarding qualification of Class 10th pass was floated on 02.09.2011 much after the date of decision taken by the Establishment Committee. Merely because the appointment letters were issued to the petitioners on 29.11.2011, the said notification cannot be made applicable in the case of the petitioners as also because the decision was taken to appoint the petitioners, by the District Establishment Committee, taking into account Class VIII pass certificate submitted by the petitioners. 3. Any Rule cannot be given retrospective effect. The Hon’ble Apex Court in case of N.T. Devinkatti Vs. Karnataka Public Service Commission, reported in (1990) 3 SCC 157 has held thus: ‘A service rule usually operate prospectively unless contrary intention is found therein from expressed language or necessary implication.’ 4. Further, this Court in case of Kaushlendra Kumar Vs. The State of Jharkhand & Ors. {W.P.(S) No.45 of 2015} took a similar view. Karnataka Public Service Commission, reported in (1990) 3 SCC 157 has held thus: ‘A service rule usually operate prospectively unless contrary intention is found therein from expressed language or necessary implication.’ 4. Further, this Court in case of Kaushlendra Kumar Vs. The State of Jharkhand & Ors. {W.P.(S) No.45 of 2015} took a similar view. The petitioners in the instant case were duly appointed by the State Government, considering their qualifications as Class VIII pass. 5. It is also well settled law that rules of the game cannot be changed in the midst of selection process’. In the instant case, it was only after the process was over and the Establishment Committee had taken a decision to appoint the petitioners, new Rule, which came into force at a later stage cannot be made applicable in case of the petitioners. 6. The Hon’ble Apex Court in case of Maharashtra SRTC Vs. Rajendra Bhimrao Mandve, reported in (2001) 10 SCC 51 , has held thus:- 5. The serious dispute and controversy raised relates to the claim of the Corporation that Circular No. 17 of 1996 dated 24-6-1996, only came to be issued by way of clarification and it was not only necessary to be issued but also governed the selection of Drivers in question. The writ petitioners, who were unsuccessful, asserted that it is the circular dated 4- 4-1995 which should govern the selection and consequently the selections ought to have been made by assigning 87 1/2% marks for written/trade test and 12 1/2% for the oral test (personal interview) and results declared, accordingly. On going through the above circular orders, we find that the procedure for recruitment of Drivers is separate from recruitment for other categories where written test/trade test has been specifically laid down and that it is only where the written test and interview are stipulated, the percentage of weight age for written test/interview has been resolved by the Board, under the directions of the State Government, to be fixed at 87.5% and 12.5% respectively. The directions of the State Government in their letter dated 2-1-1995 only fixes the weight age to be given between marks obtained in written test and those in interview and no reference is found therein of any trade test or driving test. The directions of the State Government in their letter dated 2-1-1995 only fixes the weight age to be given between marks obtained in written test and those in interview and no reference is found therein of any trade test or driving test. The resolution of the Board dated 21-3-1995 also seems to be on the same lines and is with reference to marks obtained in written test and interview respectively and not otherwise. Apparently, in view of the above and in the absence of reference to driving test or other trade test too, that the Corporation claims to have issued Circular Order No. 17/1996 dated 24-6-1996, on the basis of the earlier Circular No. 52/80 for pass in driving test to be presented to the ST Committee and No. 25/90 dated 2-7-1990 pertaining to award of marks in the interview, by fixing the average of the marks awarded by the ST Sub-Committee to be the final and deciding factor in the matter of selection of a candidate. Therefore, the High Court cannot be said to be correct in holding that the circular order dated 24-6-1996 is illegal or arbitrary or against the orders of the State Government or the resolution of the Board of the Transport Corporation. Instead, it would have been well open to the High Court to have declared that the criteria sought to be fixed by the circular dated 24-6-1996 as the sole determinative of the merit or grade of a candidate for selection long after the last date fixed for receipt of application and in the middle of the course of selection process (since in this case the driving test was stated to have been conducted on 27-11-1995) cannot be applied to the selections under consideration and challenged before the High Court. It has been repeatedly held by this Court that the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced. Therefore, the decision of the High Court, to the extent it pronounced upon the invalidity of the circular orders dated 24-6-1996, does not merit acceptance in our hand and the same are set aside. Therefore, the decision of the High Court, to the extent it pronounced upon the invalidity of the circular orders dated 24-6-1996, does not merit acceptance in our hand and the same are set aside. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, the respondents are directed to allow the petitioners to continue to work of the said post i.e. Chaukidars to which they were appointed and to pay the arrears of salary from the date on which, they have discharged from their work, with all consequential benefits. Let the entire exercise be completed within a period of eight weeks’ from the date of receipt/production of a copy of this order. Resultantly, instant writ petition stands allowed.