Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 1326 (JHR)

Diwakar Yadav v. State of Jharkhand

2023-11-07

RAJESH SHANKAR

body2023
ORDER : (Rajesh Shankar, J.) : The present writ petition has been filed for quashing the order as contained in memo No. 343 dated 19.11.2020 (Annexure-6 to the writ petition) passed by the Director, Directorate of Primary Education, Department of School Education & Literacy, Government of Jharkhand (respondent no. 4) whereby the claim of the petitioner for appointment to the post of Assistant Teacher in Primary School (Class- I to V) in the district of Deoghar under Para Teacher Backward Class Category has been rejected. Further prayer has been made for issuance of direction upon the respondents to appoint the petitioner as Assistant Teacher of Primary School in Deoghar District in Para Teacher Backward Class Category. 2. Learned counsel for the petitioner submits that pursuant to Advertisement No. 04/2015, the petitioner applied for the post of Assistant Teacher in Primary School in the District of Deoghar under Para Teacher Backward Class Category. An overall merit list was prepared for Deoghar district in which the petitioner scored 56.17 marks. 3. It is also submitted that after 9th counselling, further counselling was stopped in view of the time schedule fixed by the Department of School Education & Literacy, Government of Jharkhand for completing the selection process of Assistant Teachers. Aggrieved by the said action as well as raising irregularities and anomalies in the counselling process, W.P.(S) No. 19 of 2016 (Binod Kumar Yadav & others Vs. The State of Jharkhand & others) along with other analogous cases were filed before this Court. The said batch of writ petitions were decided by a co-ordinate Bench of this Court vide order dated 02.02.2017 whereby a direction was issued to re-initiate counselling for all unfilled advertised vacancies in all the districts. The said order was challenged by the State of Jharkhand before learned Division Bench of this court by filing L.P.A No. 168 of 2017 (The State of Jharkhand & Others Vs. Binod Kumar Yadav & others), however the said L.P.A. was also dismissed affirming the order passed in W.P.(S) No. 19 of 2016 and other analogous cases. Pursuant to the orders passed in the aforesaid cases as well as the judicial pronouncements and directions issued in several other cases by different Benches of this Court, the Government of Jharkhand came out with a resolution as contained in memo no. Pursuant to the orders passed in the aforesaid cases as well as the judicial pronouncements and directions issued in several other cases by different Benches of this Court, the Government of Jharkhand came out with a resolution as contained in memo no. 662 dated 02.05.2019 issued under the signature of the Principal Secretary, Department of School Education and Literacy, Government of Jharkhand, whereby it was decided to re-start the counselling for appointment of Assistant Teachers in primary school. A General Notice was also published by the respondent no. 4 informing the concerned candidates that fresh counselling against unfilled advertised vacancies on schedules dates specified in the said general notice was being started as a last opportunity. 4. It is further submitted that the District Education Establishment Committee of Deoghar District published provisional merit list of Assistant Teachers, however the petitioner’s name was not mentioned in the said merit list though the persons who scored lesser marks than the petitioner namely Vijay Mahto (50.69 marks) and Surendra Prasad (54.95 marks) were placed in the merit list. Thereafter, the petitioner preferred representation dated 22.05.2019 before District Superintendent of Education, Deoghar (the respondent no. 2) on the aforesaid issue, however nothing was done in that regard. In the meantime, last counselling was held on 03.06.2019. The petitioner filed a writ petition being W.P.(S) No. 4084 of 2019 for issuance of direction upon the concerned respondents to consider his case for counselling with respect to the appointment of Assistant Teacher in Primary School, which was disposed of vide order dated 10.06.2020 directing him to file a fresh representation before respondent no. 4 who had to examine the matter. Pursuant to the said order, the petitioner represented the respondent no. 4, however the same was rejected by the said respondent vide impugned order dated 19.11.2020 holding that as per the direction of this Court, only one counselling was to be conducted and pursuant to the said direction, counselling was already conducted on 03.06.2019. As such, fresh counselling could not be conducted. 5. Mr. Devesh Krishna, learned S.C. (Mines)-III appearing on behalf of the respondents, submits that pursuant to the orders and directions passed in the judgment of L.P.A. No. 186/2017 and L.P.A. No. 168/2017 as well as observations made in the judicial pronouncements of few other similar cases disposed of by this Hon'ble Court, the respondent no. 5. Mr. Devesh Krishna, learned S.C. (Mines)-III appearing on behalf of the respondents, submits that pursuant to the orders and directions passed in the judgment of L.P.A. No. 186/2017 and L.P.A. No. 168/2017 as well as observations made in the judicial pronouncements of few other similar cases disposed of by this Hon'ble Court, the respondent no. 4 issued guidelines vide general notice to prepare a merit list of the candidates (two times of the category wise vacant seats) for appearing in the last counselling. It was specifically mentioned in the said general notice that new applications for appointment would not be accepted. Accordingly, the District Education Establishment Committee, Deoghar organized the last counselling on 03/06/2019 for recruitment of Assistant Teachers in primary school as per the guidelines given in the general notice. 6. It is further submitted that in clause 6(e)(ii) and (iv) of the resolution dated 02.05.2019, it has specifically been mentioned that the only those candidates who are covered by the judgment passed by this Court, will be allowed to participate in the counselling and since in the case of the petitioner, the final order in W.P.(S) No. 4084 of 2019 was passed by a Bench of this Court on 10.06.2020 i.e. subsequent to the date of last counselling, his case was not considered for counselling. 7. It is also submitted that the petitioner has wrongly contended that two candidates namely Vijay Mahto and Surendra Prasad, who have scored lesser marks than the petitioner, have been appointed as Assistant Teacher. Said Vijay Mahto and Surendra Prasad were the respondents of LPA no. 168/2017 and as such they were called for counselling held on 03.06.2019, however since they were absent in counselling, they were not appointed as Assistant Teacher. 8. It is further submitted that the cut off marks of the last selected candidate in the last counselling i.e 10th counselling held on 03.06.2019 for Para Teacher Backward Class Category is 60.09 and hence, the petitioner has scored lesser marks than the last selected candidate. 9. 8. It is further submitted that the cut off marks of the last selected candidate in the last counselling i.e 10th counselling held on 03.06.2019 for Para Teacher Backward Class Category is 60.09 and hence, the petitioner has scored lesser marks than the last selected candidate. 9. Learned S.C. (Mines)-III also contents that the petitioner’s case is not covered by the judgment dated 16.02.2022 passed by a co-ordinate bench of this Court in W.P.(S) No. 2378 of 2019 (Paras Nath Mandal) and other analogous cases wherein the relief was granted to the petitioners of those cases since they had scored higher marks than the last selected candidate in the merit list. The impugned order dated 19.11.2020 has been passed by the respondent no. 4 in compliance of the direction of this Court as well as keeping in view the direction issued by the Department of School Education and Literacy, Government of Jharkhand vide resolution dated 02.05.2019 after providing due opportunity of hearing to the petitioner and as such the present writ petition is liable to be dismissed. 10. Heard the learned counsel for the parties and perused the materials available on record. 11. The petitioner is aggrieved with the order dated 19.11.2020 passed by the respondent no. 4 whereby his representation filed pursuant to the order passed in W.P.(S) No. 4084 of 2019 has been rejected observing that counselling has already been held on 03.06.2019 and the selected candidates have already been appointed. 12. I have perused the order dated 02.02.2017 passed in W.P.(S) No. 19 of 2016 and other analogous cases, the relevant paragraphs of which are quoted hereinbelow:- “18. Now, a question arises, whether the order in these petitions shall remain confined to the petitioners only or the benefit shall be extended to other eligible candidates also. In "State of U.P. Vs. Arvind Kumar Srivastava" [ (2015) 1 SCC 347 ], the Supreme Court has observed that, "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". In the matters of appointment, the necessity to extend similar benefits to other eligible candidates is greater. It is necessary also for the reason to avoid potential future litigations claiming similar benefits by other eligible candidates who may be higher in the merit-list than the present petitioners. 19. In the matters of appointment, the necessity to extend similar benefits to other eligible candidates is greater. It is necessary also for the reason to avoid potential future litigations claiming similar benefits by other eligible candidates who may be higher in the merit-list than the present petitioners. 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 short-list 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 web-site, at least 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.” 13. The order passed in W.P.(S) No. 19 of 2016 and other analogous cases was affirmed by learned Division Bench vide order dated 11.05.2018 passed in L.P.A. No. 168 of 2017 with a direction to the Secretary, School Education and Literacy Development Department, Government of Jharkhand to complete the exercise of counselling as directed by learned Single Judge in paragraphs- 19 and 20 of W.P.(S) No. 19 of 2016 and other analogous cases. The relevant part of the said order is quoted hereinbelow:- “5. The relevant part of the said order is quoted hereinbelow:- “5. Thus, looking to the genuine difficulties canvassed by the original petitioners and the need of competent teachers and further looking to the total number of vacancies advertised, we see no reason to take any other view than what has been taken by the learned Single Judge because learned Single Judge, in Paragraph – Nos. 19 and 20 of the impugned order, has given a reasonable opportunity of one more counselling. By no stretch of imagination, grant of one more counselling to the original petitioners can be said to be contrary to any law or any of the clauses of the advertisement. Further, it is not contrary to any of the circulars issued by the State also because there is not a single circular issued by the appellant State regarding minimum or maximum number of counselling. 6. A pragmatic view of the matter ought to have been taken by the State of Jharkhand. After a long drawn selection process, the candidates have been found suitable. It is not a question of last chance to the original petitioners, but, on the contrary, it is one more chance given to the State to select the candidates as teachers. It is the duty of the State of Jharkhand to educate the children of Jharkhand and for that they have to appoint competent teachers. It is a wrong notion in the mind of the State of Jharkhand that by giving one more counselling and that candidates will be given one more chance, as, it ought to be kept in mind that employment is secondary, whereas, performance of duty to educate people at large, is the prime responsibility of the State and therefore, directions were rightly given in Paragraph 19 and 20, as aforesaid, to the State to perform its duties.” 14. Thrust of the argument of learned counsel for the petitioner is that in the provisional merit list prepared with respect to the counselling for the post of Assistant Teacher in primary schools of Deoghar district pursuant to the orders passed in W.P.(S) No. 19 of 2016 and other analogous cases and L.P.A No. 168 of 2017, the name of the petitioner was not included whereas the candidates, who scored lesser marks than him, were included in the said list which shows arbitrariness on the part of the respondent authorities. 15. 15. To counter the said argument, the learned counsel for the respondents submits that there were two unfilled vacancies in Deoghar District under para teacher backward class category and in view of the orders passed in W.P.(S) No. 19 of 2016 and other analogous cases as well as L.P.A No. 168 of 2017, two times of the vacancies i.e four candidates namely Sudhir Prasad (60.09 marks), Raj Kumar Verma (60.06 marks), Rama Nand Yadav (57.90 marks) and Vijay Mahto (50.69 marks) were called for counselling and out of them Ramanand Yadav and Vijay Mahto were the writ petitioners in W.P.(S) No. 19 of 2016. Out of those candidates, only Sudhir Prasad appeared in the counselling and was selected for being appointed as Assistant Teacher. 16. In the case in hand, it is an admitted position that Vijay Mahto who got lesser marks than the petitioner was called for counselling held on 03.06.2019. Had Vijay Mahto been present in the said counselling, he would have been selected for appointment to the post of Assistant Teacher despite the fact that the petitioner had got higher marks than the said last selected candidate. On the contrary, had the petitioner been called for counselling in place of Vijay Mahto since he had got higher marks than Vijay Mahto, he would have been selected for the post of Assistant Teacher under Para Teacher Backward Class Category. Thus, as soon as the candidate who had got lesser marks than the petitioner was called for counselling, the cause of action of the petitioner had arisen. Thus, the mere fact that Vijay Mahto was absent in the counselling, will not justify such arbitrary action of the respondent authorities. 17. I do not find any substance in the argument of learned counsel for the respondents that Vijay Mahto was called for counselling because he was writ petitioner in W.P.(S) No. 19 of 2016. On bare perusal of the order dated 02.02.2017 passed in W.P.(S) No. 19 of 2016 and other analogous cases, it would appear that the said order was not confined to the petitioners of those cases only, rather the same was also applicable to the other eligible candidates who might be higher in the merit list than the petitioners of that case and the said observation of the learned Single Judge was also not interfered by learned Division Bench in L.P.A No. 168 of 2017. 18. 18. I have perused clause 6(e)(ii) and (iv) of the resolution as contained in memo No. 662 dated 02.05.2019 on which much reliance has been placed by learned counsel for the respondents. The said clause provides that if a candidate has already participated in earlier counselling, he/she shall not be allowed to participate in the counselling unless there is an order of the court allowing him/her to participate in the same. In the case in hand, the respondents have not claimed that the petitioner had earlier participated in counselling and as such clause 6(e)(ii) and (iv) of the said resolution is not applicable in the case of the petitioner. Thus, the argument of learned counsel for the respondents that the petitioner was not called for counselling because he had failed to produce any order of the Court permitting him to participate in the counselling before 03.06.2019, has no leg to stand. 19. In W.P.(S) No. 2378 of 2019 (Paras Nath Mandal Vs. the State of Jharkhand & Others) and other analogous cases, the claim of the petitioners were that their names were not included in the counselling held on 03.06.2019, however the candidates having lesser marks were called for appearing in the counselling and were appointed. A co-ordinate bench of this court allowed the said batch of writ petitions vide order dated 16.02.2022 with following directions: “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 counselling for the present petitioners by way of last opportunity, since they have obtained more marks than the last selected candidates in the merit list. As a cumulative effect of the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, I hereby direct the respondents to initiate process of counselling 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 counselling 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 counselling 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. The State of Jharkhand, however, preferred L.P.A No. 203 of 2022 [The State of Jharkhand & Ors. Vs. Paras Nath Mandal] and other analogous cases challenging the order dated 16.02.2022 passed in W.P.(S) No. 2378 of 2019 and other analogous cases, which were dismissed by learned Division Bench vide order dated 15.09.2023 with following direction to the State of Jharkhand:- “57. This Court, on entirety of facts and circumstances, is of the view that the order passed by learned Single Judge needs no interference by this Court and the direction so passed by learned Single Judge needs no interference by this Court and is required to be complied with at an earliest as the vacancies is of the year 2015 and it must be put to logical end without snatching right of candidates, if they are otherwise eligible. Therefore, the appellants-State are hereby directed to: I. Initiate the process of counseling forthwith for the present petitioners by way of last opportunity as it is alleged they have obtained more marks than the last selected candidates in the merit list in the respective districts. II. The petitioners shall approach the Deputy Commissioners of the concerned Districts, as early as possible, preferably, within a period of four weeks from the date of receipt of a copy of this order. III. However, in the meantime, the Deputy Commissioner of the concerned district shall give 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. IV. This Court hopes and trusts that the entire process of counseling will be completed within a period of further eight weeks subject to fulfilling the eligibility criteria and also if the present petitioners have secured more marks than the last selected candidates. V. It is made clear that the entire process of selection shall be made strictly in accordance with relevant rules/regulations and judicial pronouncements, as mentioned above, within a period of four months from the date of receipt/production of copy of this order. VI. 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.” 21. Learned counsel for the respondent-State submits that one post of Assistant Teacher in Deoghar District under Para Teacher Backward Class Category is still vacant and the press communique has not yet been issued by the Deputy Commissioner, Deoghar (the respondent no. 3) for holding counselling for the unfilled vacancy pursuant to the orders passed in W.P.(S) No. 2378 of 2019 and L.P.A No. 203 of 2022. 22. Under the aforesaid circumstance, the impugned order as contained in memo No. 343 dated 19.11.2020 passed by the respondent no. 4 is hereby quashed. 3) for holding counselling for the unfilled vacancy pursuant to the orders passed in W.P.(S) No. 2378 of 2019 and L.P.A No. 203 of 2022. 22. Under the aforesaid circumstance, the impugned order as contained in memo No. 343 dated 19.11.2020 passed by the respondent no. 4 is hereby quashed. The respondents are directed to provide opportunity to the petitioner to appear in counselling process in his category to be conducted in terms with order dated 16.02.2022 passed in W.P.(S) No. 2378 of 2019 by a co-ordinate Bench of this Court and order dated 15.09.2023 passed by learned Division Bench in L.P.A No. 203 of 2022. 23. The present writ petition is, accordingly, allowed.