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2021 DIGILAW 582 (JHR)

Binay Kumar Saw v. State of Jharkhand

2021-08-04

S.N.PATHAK

body2021
JUDGMENT : S.N. Pathak, J. In view of outbreak of COVID-19 pandemic, case has been taken up through Video Conferencing and heard at length. Concerned lawyers have no objection with regard to the proceeding which has been held through Video Conferencing and there is no complaint in respect to audio and video clarity and quality and after hearing at length, the matter is being disposed of finally. 2. Petitioner has approached this Court with a prayer for a direction upon the respondents to appoint him in view of order dated 02.02.2017, passed in W.P.(S) No. 19 of 2016 and the order dated 22.05.2019, passed in W.P.(S) No. 2450 of 2019, as he has already appeared for counseling on 03.06.2019 for appointment of Inter-Trained Teacher and in spite of vacancies lying vacant, appointment letter is not being issued in his favour though similarly situated persons have already been given appointment letters. 3. Heard learned counsel for the parties. 4. Facts of the case in brief as has been delineated in the writ petition is that petitioner is Diploma in Primary Education from Indira Gandhi National Open University and is discharging his duties as a Para-Teacher for last fifteen years without any complaint from any corner. Petitioner has also passed Teachers' Eligibility Test (TET) for Class-IV conducted by the Jharkhand Academic Council, Ranchi. He is having eligibility for appointment to the post of Assistant Teacher. 5. Pursuant to the letter bearing no. 1180, dated 29.05.2015, issued by the respondent no. 2 to initiate process for making appointment to the post of Inter/ Graduate Trained Teachers in almost all the districts of Jharkhand, the advertisements were issued by the concerned District Superintendent of Education. 50% of the seats were to be filled-up by the Para-teachers working in the government schools whereas 50% seats were to be filled up from non-para candidates. Petitioner being eligible, applied for his appointment in different districts. When counseling was suddenly stopped, aggrieved persons and the petitioner filed different writ petitions and vide order dated 02.02.2017, passed in W.P.(S) No. 19 of 2016 and the order dated 22.05.2019, passed in W.P.(S) No. 2450 of 2019, direction was passed to continue counseling process for appointment against the remaining advertised vacancies. State also moved in Letters Patent Appeal No. 168 of 2017 which was decided on 11.05.2018. State also moved in Letters Patent Appeal No. 168 of 2017 which was decided on 11.05.2018. Thereafter, the State issued one Resolution vide Memo No. 662, dated 02.05.2019 with regards to initiation of selection process once again. Thereafter, the merit list was uploaded on the website for counseling and petitioner's name also finds place in the said merit list. Petitioner appeared in the counseling process and duly submitted entire required certificates but his name does not find place in the final selection list and has not been issued appointment letter. Petitioner has been orally replied by the office of the District Superintendent of Education that merely counseling does not give right for appointment. 6. Mr. Radha Krishna Gupta, learned counsel appearing for the petitioner throwing challenge to the action of the respondents in denying appointment to the petitioner argues that the respondents have acted in a very whimsical manner and only because petitioner had knocked door of this Court, has been denied appointment though was allowed to appear in counseling in order to show respect and compliance of order and direction of this Court. Learned counsel further argues that petitioner had appeared in counseling process in the district of Chatra where out of 24 vacant seats for male candidates, counseling of 10 candidates including the petitioner was done and only 5 have been selected and 19 seats are still lying vacant under female quota. Learned counsel further argues that against the 19 female seats, counseling of 13 candidates was done, out of which only 6 candidates have been selected and as such, 13 seats are still lying vacant. Learned counsel further argues that before 03.06.2019, the advertised vacant seats of SC category for male were 5 and for female were 5. Against the 5 male seats, counseling of 2 candidates was done, out of which only 1 candidate has been selected and as such 4 seats still remain vacant under Scheduled Caste quota. Learned counsel further argues that against the 5 female seats, counseling of 4 candidates was done and all the 4 candidates have been selected and as such, 1 seat still remain vacant. Before 03.06.2019, advertised seats of bC category for male was 1 and for female were 3. Learned counsel further argues that against the 5 female seats, counseling of 4 candidates was done and all the 4 candidates have been selected and as such, 1 seat still remain vacant. Before 03.06.2019, advertised seats of bC category for male was 1 and for female were 3. Against the 1 male seats, counseling of 2 candidates was done, out of which only 1 candidate has been selected and as such, altogether 3 seats are still lying vacant. Learned counsel vehemently argues that the seats are still lying vacant and after counseling the petitioner has not been given joining letter without any reason. Petitioner is performing duties as a regular teacher but is being denied the post though he is serving for more than 15 years as a Para Teacher on a very low honorarium. 7. Per contra, counter affidavit has been filed. 8. Ms. Shilpi, AC to learned SC (Mines-II) vehemently opposes contention of Mr. Radha Krishna Gupta and submits that petitioner is a Para Teacher and that does not given him right to be absorbed as a regular teacher. The merit list of the candidates were generated by DEEC which has considered many aspects in order to select the candidates who can discharge their duties for betterment of the students. The last cut-off marks for Para MBC (Male) category of successful candidates was 58.65% and the marks obtained by the petitioner was merely 57.93%. Learned counsel further argues that the number of candidates falling between the cut-off marks and the marks obtained by the petitioner is 103, who also could not be called for the counseling procedure because they did not fall under the consideration zone as per the guidelines issued in the Resolution and Notification of the Department in compliance of the order and direction of the Court. Learned counsel further argues that the cut-off marks for General Category Male Para Teacher was 59.09%. Learned counsel argues that there is no ambiguity or any infirmity in the final list and the merit list prepared by the DEEC needs no interference. Merely because of appearing in counseling process, petitioner does not get right to be selected. The writ petition has no merits and merits dismissal. 9. Be that as it may, from perusal of documents brought on record and from rival submission of the parties, this Court is of the view that case of the petitioner needs consideration. Merely because of appearing in counseling process, petitioner does not get right to be selected. The writ petition has no merits and merits dismissal. 9. Be that as it may, from perusal of documents brought on record and from rival submission of the parties, this Court is of the view that case of the petitioner needs consideration. Admittedly, petitioner has no right to get appointment but since petitioner was considered for counseling in view of the order and direction of this Court passed in W.P.(S) No. 19 of 2016 and further in W.P.(S) No. 2450 of 2019, the State after the orders passed in L.P.A., was to continue counseling process for appointment against the remaining advertised vacancies and consequently issued Resolution vide Memo dated 02.05.2019 with regard to re-initiation of selection process. In the merit list uploaded in the website for counseling, petitioner's name also found place. His candidature was not considered on the ground that he did not come within the zone of consideration of successful candidates as he did not obtain the cut-off marks of 58.65% and had obtained only 57.93% marks. This Court, in pursuant to the order dated 08.06.2021, directed the respondents to come up with specific affidavit whether seats are still vacant or not and whether case of the petitioner can be considered to the post of untrained teachers under the MBC category in the district of Chatra. The respondents State in their supplementary counter affidavit have come with a reply that eight seats are still vacant in the category of MBC. Since there are only seven candidates left in the category of MBC, their candidature can be considered in view of the existing vacancies. In the case of Para Teachers, this Court has clearly held that there cannot be fresh counseling for fresh candidates. In this case, petitioner has been declared successful candidate and comes within the zone of consideration, as he has already participated in the counseling and since as per the respondents, seats are still vacant, his case can be considered in accordance with law. 10. As a sequel to the aforesaid rules, guidelines, judicial pronouncements, I hereby direct the respondents to consider case of the petitioner for his appointment in MBC quota for Intermediate Trained Teacher in view of the existing vacancies. 10. As a sequel to the aforesaid rules, guidelines, judicial pronouncements, I hereby direct the respondents to consider case of the petitioner for his appointment in MBC quota for Intermediate Trained Teacher in view of the existing vacancies. Let the petitioner approach before the competent authority by filing a fresh representation for reconsideration of his case for appointment and the authorities shall pass a reasoned order after giving full opportunity of hearing to the petitioner and if petitioner is found entitled for appointment, in view of the vacancies, letter of appointment be issued in accordance with law within a period of six weeks from the date of receipt/ production of a copy of this order. However, if any adverse decision is taken against the petitioner, the same shall also be communicated to him within a period of three weeks. 11. With the aforementioned observations and directions, this writ petition stands disposed of.