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2022 DIGILAW 185 (JHR)

Paras Nath Mandal v. State of Jharkhand

2022-02-16

S.N.PATHAK

body2022
JUDGMENT : S.N. Pathak, J. Heard the parties. 2. Since the issues involved in all the aforementioned writ petitions are same and similar, they have been heard together and being disposed of by this common order. 3. Petitioners have approached this Court with a common prayer for direction upon the respondents to consider their candidature in their respective categories i.e. para and non-para category, for the districts for which they have applied for against the vacant seats of Intermediate Trained Teachers. 4. The facts of the case lies in a narrow compass. An advertisement was published for appointment of candidates to the post of Intermediate Trained Teachers in different districts of the State of Jharkhand. It is the case of the petitioners that separate advertisements were published by the Office of District Superintendent of Education of the respective districts for appointment of Intermediate Trained Teachers. As per the advertisement, 50% of the seats are required to be filled by Para Teachers and rest 50% seats were to be filled with non para teachers categories. Petitioners, having requisite qualifications, applied for the aforesaid vacancies in their respective para category and non para category in different districts of the State of Jharkhand and submitted their certificates. Further their names have appeared at the respective districts in the data base cum Merit list. Thereafter, several rounds of counseling were held at all the districts and several candidates were called for counseling and were given appointment. 5. Subsequently due to several irregularities, inconsistency and anomalies in the counseling process, several writ applications were filed before this Hon’ble Court and two of the writ petition being W.P.(S) No. 19/2016 with W.P.(S) No. 32/2016 were taken up together and the Hon’ble Court had been pleased to allow the writ petitions vide judgment dated 02.02.2017 directing the Respondent Authorities to make appointment according to merit of the candidates on all unfilled advertised vacancies. Thereafter the Respondent State preferred Letters Patent Appeal, being L.P.A. No. 168/2017, before the Hon’ble Division Bench against the Judgment dated 02.02.2017 passed in W.P.(S) No. 19/2016 with W.P.(S) No. 32/2016. The said L.P.A. was dismissed by the Hon’ble Division Bench vide Judgment dated 11.05.2018 with the specific observation to comply the directions issued at paragraphs 19 and 20 of the Judgment dated 02.02.2017. The said L.P.A. was dismissed by the Hon’ble Division Bench vide Judgment dated 11.05.2018 with the specific observation to comply the directions issued at paragraphs 19 and 20 of the Judgment dated 02.02.2017. Simultaneously on the same day i.e. 11.05.2018 another Letters Patent Appeal being L.P.A. No. 186/2017 with L.P.A. No. 199/2017 filed by the Respondents State against the Judgment dated 02.03.17 passed in W.P.(S) No. 6031 of 2015 and W.P.(S) No. 173 of 2016 was taken up for consideration by the Hon’ble Division Bench and the same was also dismissed and the Hon’ble Division Bench directed the Respondents to consider the application of candidates working as para teachers in the non para category even if they had applied under the non para category. Further on 13.05.2019 another two sets of writ petitions being W.P.(S.) No. 2142/2019 with analogous cases and W.P.(S) No. 768/2019 with analogous cases were taken up together and were allowed on 13.05.2019 itself wherein the Hon’ble Court had categorically held ate Para 7 of the Judgment (W.P.(S.) No. 2142/2019 dated 13.05.2019) that, “The Hon’ble Division Bench decided that a Para Teacher can always apply under Non-Para Teacher category as they are not seeking any benefit/advantage of relaxation of age etc. They are not seeking benefit of the reservation clause of Para Teacher category. When this dispute is set at rest, it cannot be said that only those persons, on whose application the issue is resolved, can only get the benefit. Benefit of the decision should be given to all those persons, who are governed by the final judgment. Thus, it is not that only the intervener can get the benefit, but all those Para Teachers, who had applied under Non-Para Teachers category, are entitled to get the said benefit.” Further in para 10 the Hon’ble Court had observed that : “10.……As per the litigation policy of the State also, if a person is entitled to get benefit out of an issue, which has been decided, even if he has not approached the court, he has to get the same benefit.” Therefore a clear observation and direction was given to the Respondents to include all candidates even though they have not approached the Hon’ble Court depending upon their merit. This direction was made in the presence of the Director, Primary Education, Human Resource Development Department, Government of Jharkhand, Ranchi who was asked to remain physically present on that day. 6. On the basis of several judicial pronouncements and directions issued by the Hon’ble Court, the Director, Department of Primary Education, Government of Jharkhand published an “Aam Suchna” and “Resolution” on 02.05.2019 stating therein to hold final round of counseling against the remaining vacant seats for each districts in the respective categories (Para category as well as Non Para category). Further, several directions and conditions were issued for counseling in the said “Aam Suchna” and “Resolution” dated 02.05.2019. Thereafter a tentative list was prepared and another round of district wise counseling was conducted on 03.06.2019. Though the petitioners had applied for several districts but their names were not included in counseling list of any of the districts, however, candidates having lesser marks than the petitioners were included in the counseling list and were also called for appearing in the counseling and had been given appointment in the year 2019 itself. Aggrieved by said action of the Respondent State, the Petitioners approached before this Hon’ble Court by filing the instant writ petitions. 7. Mr. Ajit Kumar and Mr. R.N. Sahay, learned senior Counsel assisted by other counsel appearing for the petitioners, vociferously argued that the counseling was to be conducted against the vacant seats in light of the advertisement of the year 2015 for all the respective categories i.e. para as well as non para category. Since the petitioners have secured more marks in the merit list than the candidates who have been appointed in the year 2019 therefore, the candidature of these petitioners ought to have been considered. Since these petitioners were never called for counseling therefore their candidature ought to have been considered in terms of Clause 6 (d) of the Resolution / Sankalp dated 02.05.2019. Learned counsel further argued that in light of the direction given in Order dated 13.05.2019 in W.P.(S.) No. 768/2019 with analogous cases the Respondents ought to have considered the cases of all the candidates depending upon the merit list including the candidates who had not approached the Hon’ble Court. Learned counsel further argued that in light of the direction given in Order dated 13.05.2019 in W.P.(S.) No. 768/2019 with analogous cases the Respondents ought to have considered the cases of all the candidates depending upon the merit list including the candidates who had not approached the Hon’ble Court. For several districts, the names of same candidates were published for counseling and as such, the seats remained vacant even after the counseling was conducted as one candidate could have participated in the counseling for only one district. Learned counsel has further submitted that in several districts the candidates who have obtained lesser marks than the petitioner have been included in the merit list and called for counselling and appointed after counseling, only on the ground that earlier they had approached before this Hon’ble Court for redressal of their grievances. The said ground of the respondent-State is not tenable since a clear-cut observation has been made by this Hon’ble Court that, “When this dispute is set at rest, it cannot be said that only those persons, on whose application the issue is resolved, can only get the benefit. Benefit of the decision should be given to all those persons, who are governed by the final judgment”. Learned counsel further submitted that the Respondent State filed Counter Affidavit showing the chart of cut off marks for all the districts of State of Jharkhand and from there it becomes evident that the petitioners are having more marks than the last candidate who have been appointed in their respective categories at their respective districts. 8. Per contra, counter-affidavits have been filed by the respondent-State in the respective cases. Learned counsel appearing for the respondent-State vehemently opposes the contention of learned counsel appearing for the petitioners and submit that as the advertised posts belong to district cadre, hence, the cut-off marks vary for each category in each district due to the number of applications received by the respective districts and the number of candidates appearing in the counselling process. Learned counsel further argues that the cut-off marks for appointment of para and non-para teachers was published before the fresh counselling by every district. Learned counsel further argues that the candidates were allowed to participate in the counselling as per the operative portion of the order(s) passed in W.P.(S). Learned counsel further argues that the cut-off marks for appointment of para and non-para teachers was published before the fresh counselling by every district. Learned counsel further argues that the candidates were allowed to participate in the counselling as per the operative portion of the order(s) passed in W.P.(S). No. 19 of 2016, wherein the Hon’ble Court has observed that, “It is further made clear that there shall be only one counselling in all the districts of the State and counselling shall be conducted simultaneously in all the districts. The candidates who were earlier called for counselling shall not be called for counselling, except, those permitted by an order of the Court.” 9. Learned counsel for the respondents further argues that the database showing marks of individual candidates had been prepared by the respective district and were published on the district Website pursuant to the directions issued by the Directorate which would be evident from letter No. 203 dated 29.01.2019. Learned counsel further argues that as per the directions of this Hon’ble Court, resolution No. 662 dated 02.05.2019 has been issued, and according to para-6(e)(i) of the said resolution, the candidates who were previously called for counselling (attended or not attended) were not invited again for attending the present counsel. Since the present petitioners were earlier called for counselling in various districts, therefore, they were not invited for fresh counselling held on 03.06.2019. Learned counsel accordingly submits that from the aforesaid facts and circumstances, it is clear that the prayer of the petitioners are not maintainable in the present scenario as the entire fresh round of counselling is over and petitioners were not allowed to participate in counselling process as per direction of Hon’ble Court and hence, the present writ petitions are devoid of any merit and is liable to be dismissed at the outset. 10. Be that as it may, having heard the rival submissions of learned counsel for the parties and upon perusal of the documents brought on record, it appears that the cases have got chequered history. Earlier similarly situated persons (para teachers and non-para teachers) had approached this Court in W.P.(S). No. 19 of 2016 and other analogous cases (Binod Kumar Yadav & Ors. Vs. the State of Jharkhand & Ors.), for appointment by way of fresh counseling as the same has been denied by the State in an arbitrary manner. Earlier similarly situated persons (para teachers and non-para teachers) had approached this Court in W.P.(S). No. 19 of 2016 and other analogous cases (Binod Kumar Yadav & Ors. Vs. the State of Jharkhand & Ors.), for appointment by way of fresh counseling as the same has been denied by the State in an arbitrary manner. It was contended by the State in those cases that because of the time schedule fixed by the Department vide letter dated 03.07.2015, wherein selection process was to be completed by 18.09.2015, further counseling was stopped in all the districts. The matter was heard at length by the learned Single Judge and taking into consideration that no conscious decision has been taken by the State to stop the appointment process and as the eligible candidates were there and also since posts were lying vacant and vacancies were there, denial of appointment was held to be completely illegal and not justified. Admittedly, the appointment process cannot continue for an indefinite period and it has to come to a logical end and must be stopped somewhere. The learned Single Judge considering every aspects of the matter, was of the view that the issues can be resolved if one more counseling is conducted for appointment for remaining advertised posts. The Court was very much conscious of the fact that if the cases of the petitioners in the aforesaid writ petitions are allowed, similarly situated persons may also approach this Court for similar orders and even if they did not approach, in view of celebrated judgment of Hon’ble Apex Court in case of State of U.P. Vs. Arvind Kumar Srivastava [ (2015) 1 SCC 347 ], the normal rule is that when a particular set of employees is given relief by Court, all other identically situated persons need to be treated alike by extending that benefit. Accordingly, this Court allowed the writ petition being W.P.(S). No. 19 of 2016 and other analogous cases. 11. This Court is tempted to place the direction of the Court as rendered by learned Single Judge in W.P.(S). No. 19 of 2016 and other analogous cases, which is reproduced herein below : “19. In the light of the foregoing discussions, the following directions are issued (i) A public notice, indicating that counselling for all unfilled advertised vacancies in all the districts shall be conducted in the 3rd/4th week of March, 2017. No. 19 of 2016 and other analogous cases, which is reproduced herein below : “19. In the light of the foregoing discussions, the following directions are issued (i) A public notice, indicating that counselling for all unfilled advertised vacancies in all the districts shall be conducted in the 3rd/4th week of March, 2017. It shall be published in two daily newspapers on or before 23.02.2017. The public notice shall also indicate that no further opportunity to produce original certificate would be granted to the candidates. The counselling may continue for more than one day. (ii) An exercise to shortlist eligible candidates viz-a-viz vacancy-position in each category shall be undertaken and candidates twice the number of total vacancies, merit-wise, after the last selected candidate shall be put on the website, preferably by the 3rd week of March, 2017. However, it may not be necessary to call all short-listed candidates for counselling. (iii) The name of candidates falling under the "zone of consideration" as indicated in clause (ii) above shall be put on the website, atleast one week prior to the date of counselling. (iv) The entire exercise must be concluded by 31.03.2017. 20. It is further made clear that there shall be only one counselling in all the districts of the State and counselling shall be conducted simultaneously in all the districts. The candidates who were earlier called for counselling shall not be permitted to participate in the counselling except, those permitted by an order of the Court.” 12. The order of the learned Single Judge was challenged before the Division Bench in LPA No. 168 of 2017 (State of Jharkhand & Ors. Vs. Binod Kumar Yadav & Ors.) and the Hon’ble Court while dismissing the said LPA clearly observed that, “We, therefore, direct the Secretary, School Education and Literacy Development Department, Government of Jharkhand to complete the exercise of counseling as directed by the learned Single Judge in Paragraph 19 and 20, as aforesaid, as early as possible and practicable, and in no case later than a period of four months from today”. The same view as expressed by this Court in different LPAs and in different Writ Petitions, wherein it was clearly held that no other view other than what has been expressed in para-19 and 20 of the judgment passed in WP(S). The same view as expressed by this Court in different LPAs and in different Writ Petitions, wherein it was clearly held that no other view other than what has been expressed in para-19 and 20 of the judgment passed in WP(S). No. 19 of 2016 and other analogous cases and in para-8 of the judgment passed in LPA No. 168 of 2017 can be taken. The present writ petitions have been filed on the ground that the writ petitioners have secured more marks than the last selected candidates who have been appointed in the year 2019 and therefore, the candidature of these petitioners ought to have been considered. It is the specific contention of learned counsel representing the petitioners that they were never called for counseling, therefore, their candidature ought to have been considered in terms of Clause-6(d) of the Resolution/ Sankalp dated 02.05.2019. Though a specific direction was given to the State for coming-out with the vacancy positions, the same has not been complied with though several adjournments were made and several affidavits were filed by the State. 13. Now, the sole issue before this Court is whether left-out candidates, who have secured more marks than the last selected candidates, can be further for counseling for appointment to the post of Assistant Teacher (Para or Non-Para) since they have never been called for counseling earlier. 14. The Clause 6(e)(i)to(v) of the resolution of the State Government dated 02.05.2019, contained in memo No. 662, clearly speaks that those who were earlier called for counseling, whether participated or not, were not be called again and only those candidates will be called for counseling, who obtained the order of the Court for participating in the fresh counseling. The State has denied counseling of present petitioners though they have secured more marks that the last selected candidates. The law is well settled that merely because the candidates were successful in the exams they do not acquire an indefeasible right to be appointed on the vacant post. The Hon’ble Apex Court in case of Shankarsan Dash Vs. Union of India [ (1991) 3 SCC 47 ], has held that : 7. "It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Union of India [ (1991) 3 SCC 47 ], has held that : 7. "It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bonafide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana V. Subash Chander Marwaha, Neelima Shangla V. State of Haryana, or Jatinder Kumar V. State of Punjab". 15. There is no quarrel to the settled principle of law but simultaneously it is also clear from aforesaid legal propositions that the State does not have the license of going in an arbitrary manner. If vacancies are still there, the candidates who have approached this Court on fulfilling the requisite qualifications and are eligible for appointment in all respects, having more marks than the last selected candidates, then certainly the State is bound to consider their cases as no fresh advertisement has yet been floated for appointment of the Assistant Teachers (para and non-para) in which the backlog vacancies can also be added. 16. The Hon’ble Apex Court in case of A. Manoharan v. Union of India, reported in (2008) 3 SCC 641 has held as under : 22. The legal principle that an administrative act must yield to a statute is no longer res integra. Once a regulation has been framed, in terms of the provisions of the General Clauses Act, the same must be amended in accordance with the procedures laid down under the principal enactment. The legal principle that an administrative act must yield to a statute is no longer res integra. Once a regulation has been framed, in terms of the provisions of the General Clauses Act, the same must be amended in accordance with the procedures laid down under the principal enactment. Even assuming that the Central Government had the jurisdiction to direct the authority to amend the Regulations, it was required to be carried out in accordance with law, and, thus all requisite procedures laid down therefor were required to be fulfilled. (See Sant Ram Sharma v. State of Rajasthan, DDA v. Joginder S. Monga, Vasu Dev Singh v. Union of India, Kerala Samsthana Chethu Thozhilali Union v. State of Kerala and State of Kerala v. Unni.) 23. Recently in Union of India v. Central Electrical & Mechanical Engg. Service (CE&MES) Group ‘A’ (Direct Recruits) Assn., CPWD this Court held: (SCC p. 358, para 10) “10. It is now a well-settled principle of law that an executive order must be passed in conformity with the rules. Power of the State Government to issue executive instructions is confined to filling up of the gaps or covering the area which otherwise has not been covered by the existing Rules. (See Sant Ram Sharma v. State of Rajasthan and DDA v. Joginder S. Monga.) Such office orders must be subservient to the statutory rules.” 25. Furthermore, the Regulations have been amended only with effect from 11-8-2004. It would have a prospective effect. It cannot be applied retrospectively. Any vacancy which has arisen prior to coming into force of the said amended Regulations must be filled up in terms of the law as was existing prior thereto. (State of Rajasthan v. R. Dayal, SCC para 8.) Further, the Hon’ble Apex Court in case of State of Jharkhand v. Harihar Yadav, reported in (2014) 2 SCC 114 has held as under : “15. We have referred to the aforesaid authorities to highlight the concept of social justice, dignity of living and the role of the judiciary. The court is bound to respond within the constitutional framework. In this context, the Preamble of the Constitution becomes extremely significant. The Preamble uses the words “social justice” while speaking of “Justice—social, economic and political”. Thus, social facet and the economic aspect are the ideal goal of the welfare State. The court is bound to respond within the constitutional framework. In this context, the Preamble of the Constitution becomes extremely significant. The Preamble uses the words “social justice” while speaking of “Justice—social, economic and political”. Thus, social facet and the economic aspect are the ideal goal of the welfare State. The Constitution casts a responsibility on the State to sustain social and economic security, for the Preamble is the floodlight illuminating the path to be persuaded by the State to set up a sovereign, socialist, secular, democratic republic. (See D.S. Nakara4.) 16. It is the duty of the Court to see that the philosophy which is ingrained in our Constitution is not atrophied by the State paving a path of deviancy. The employer, within the meaning of Article 12 of the Constitution has a sacrosanct duty to act in terms of the sacred objectives of social and economic justice. In this context, we may fruitfully reproduce a passage from Balbir Kaur v. SAIL : (SCC p. 504, para 19) “19. … The concept of social justice is the yardstick to the justice administration system or the legal justice and as Roscoe Pound pointed out the greatest virtue of law is in its adaptability and flexibility and thus it would be otherwise an obligation for the law courts also to apply the law depending upon the situation since the law is made for the society and whatever is beneficial for the society, the endeavour of the law court would be to administer justice having due regard in that direction.” 17. In the instant case, the petitioners were never called for counseling. The case of the State that order of the Court passed in the aforesaid writ petition and LPA have been fully complied with, is not acceptable to this Court as the legal proposition what has been laid down in the case of Arvind Kumar Srivastava (supra) was also to be considered and implemented and it is not that the persons who had approached this Court can only be benefited. Further, these petitioners were never called for counseling and hence, contention of the State is also not acceptable. In the present case, since the petitioners have obtained more marks than the candidates whose names figured in the select list, are entitled to be considered for appointment if the vacancies are still there and the same has not be advertised as yet. In the present case, since the petitioners have obtained more marks than the candidates whose names figured in the select list, are entitled to be considered for appointment if the vacancies are still there and the same has not be advertised as yet. Since the ambiguity as to whether para teachers can apply under non-para category has already been set at rest by this Court in LPA No. 186 of 2017 (Pawan Singh Choudhary & Ors. Vs. The State of Jharkhand & Ors.), without the said distinction, they may be called for appointment inviting them for one time counseling. The appointment of less meritorious candidates is in contravention of the provisions enshrined under Article 14 and 16 of the Constitution. 18. As a cumulative effect of the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, I hereby direct the respondents to initiate process of counseling for the present petitioners by way of last opportunity, since they have obtained more marks than the last selected candidates in the merit list. The petitioners shall approach the Deputy Commissioners of the concerned Districts, as early as possible, preferably, within a period of eight weeks from the date of receipt of a copy of this order and thereafter, the Deputy Commissioner shall initiate the process of counseling after giving proper notice to the petitioners by way of Press Communique, advertising the notice in the local newspaper having the wide circulation in the concerned Districts and also by putting the notice on the Notice Board of the Office of concerned District Superintendent of Education and thereafter, the entire process of counseling be completed within a period of further four weeks subject to fulfilling the eligibility criteria and also if the present petitioners have secured more marks than the last selected candidates. Let the entire process be completed within a period of four months from the date of receipt/ production of a copy of this order. 19. Let it be made clear that no further counselling shall be held for any reasons whatsoever as the advertisement for appointment of these teachers are of 2015 and the aforesaid directions have been issued in peculiar facts and circumstances of the case, which shall be not taken as precedent. 20. With the aforesaid observations and directions, all these writ petitions stand allowed. 21. Pending I.As, if any, also stands disposed of.