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2023 DIGILAW 1474 (JHR)

Bal Krishna Prasad, son of Wakil Prasad Sah v. State of Jharkhand

2023-12-15

ANUBHA RAWAT CHOUDHARY, SHREE CHANDRASHEKHAR

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JUDGMENT : Anubha Rawat Choudhary, J. These appeals have been filed against the order dated 16th May 2023 passed in W.P.(S) No. 2884 of 2018 & W.P.(S) No. 3412 of 2018 whereby the learned writ Court has been pleased to dismiss the writ petitions preferred by the appellants on the ground that the panel prepared for appointment was valid only for one year and the same was prepared as back as in the year 2006 whereas the appellants were seeking appointment based on the said panel after 12 years from the date of preparation of such panel. 2. L.P.A. No. 485 of 2023 arises out of W.P.(S) No. 3412 of 2018 and L.P.A. No. 466 of 2023 arises out of W.P.(S) No. 2884 of 2018. 3. The writ petitions were filed for the following reliefs:- “That by way of this writ application the petitioners pray for issuance of an appropriate writ (s)/Rule(s)/order (s)/direction (s), or a writ in the nature of Certiorari for quashing of the reasoned and speaking order dated 19.07.2017 (Annexure – 9), passed by the Chief Engineer (Mechanical), Road Construction Department, State of Jharkhand, Ranchi, whereby & where under the claim of the petitioners were not accepted on the ground that validity of the panel has already been lapsed and therefore, the petitioners cannot be given any relief, which is wholly illegal, arbitrary and without any justification: And For further directing the respondents for complying with the earlier orders of this Hon’ble Court, for filling up the vacant posts of Class–III & IV Category, in Road Construction Department and also for appointing the petitioners in the said department, as in spite of the repeated orders of this Hon’ble Court the vacant posts are not being filled up: And For any other relief/reliefs for which the petitioners are legally entitled to, in the facts & circumstances of this case, for doing conscionable justice to the petitioners.” 4. The learned counsel for the appellants while assailing the impugned order has submitted that the representations of the appellants filed pursuant to the order passed by this Court in W.P.(S) No.1793 of 2007 and other analogous cases were not considered properly by the concerned authority while rejecting their claim and this aspect of the matter has not been properly considered by the learned writ Court while dismissing the writ petitions. Learned counsel for the appellants has referred to paragraph no.8 of the order impugned in the writ petition to submit that 23 persons who were petitioners in C.W.J.C No. 2338 of 1998 (R) were considered for appointment and the appellants were not considered. 5. Learned counsel appearing on behalf of the respondents on the other hand has opposed the prayer made by the appellants and has submitted that the impugned order does not call for any interference in as much as admittedly the panel was prepared long back in the year 2006 and the life of the panel is normally considered to be valid for one year only. 6. After hearing the learned counsel for the parties and going through the materials on record, it is apparent that the case of the appellants before the learned writ Court was that they were working on the sanctioned and vacant post of Mechanical Assistant Technical Worker in the Road Construction Department from 1990 and continued to work for about 6 to 7 years. On 24th February 1995 the Superintending Engineer, Mechanical Circle, Road Construction Department, Ranchi issued notice to all the technical employees to submit their applications for their appointment within a period of one month. Thereafter, vide letter dated 27th June 1998 written to the Engineer-in-chief-cum-Additional-Commissioner-cum-Additional-Secretary, Road Construction Department, a request was made by the Superintending Engineer for the allocation of funds for newly appointed field staff and for the creation of 1233 posts in addition to the appointments made earlier. However, vide general order dated 29th August 1998 all the appointments were cancelled. 7. Under such circumstances, some of the terminated employees, other than the writ petitioners involved in the present case, who were terminated from service approached this Court in C.W.J.C No. 2338 of 1998 (R) and some others moved in W.P. (S) No. 3769 of 2001 and those two writ petitions were disposed of vide order dated 27th November 1999 and 07th March 2003 respectively. 8. In C.W.J.C No. 2338 of 1998 (R), the learned writ Court recorded that admittedly petitioners of the said case were appointed without following the procedure and the recruitment rules and, therefore, no legal right accrued to the petitioners to continue in service and refused to set aside the order of removal. 8. In C.W.J.C No. 2338 of 1998 (R), the learned writ Court recorded that admittedly petitioners of the said case were appointed without following the procedure and the recruitment rules and, therefore, no legal right accrued to the petitioners to continue in service and refused to set aside the order of removal. The learned writ Court made the following observations: - “Admittedly petitioners were appointed by the respondents without following procedure and the recruitment rules under article 16 of the Constitution of India and therefore no legal right accrued to the petitioner to continue in service and the order of removal cannot be set aside. However, even assuming that the advertisement was issued without taking approval of the Government, the admitted position is that about 3281 posts in the Road Construction Department are lying vacant. This fact has been stated in para 117 of the writ petition and the same has not been controverted. Having regard to the fact that when 3281 posts are lying vacant in the Road Construction Department there is no reason why respondent will not proceed to make appointment against the vacant posts after following the procedure provided under the law. The writ petition is therefore disposed of with a direction to respondents including the state of Bihar to take necessary steps for filling up all those posts lying vacant in the Road Construction Department. Taking judicial notice of the fact that roads of the entire state are in dilapidated condition that it needs mass repair and reconstruction it is desirable that the respondents shall fill up all the vacant posts lying vacant in the Road Construction Department as early as possible and preferably within a period of six months, if there is no other legal impediment in this regard.” 9. The aforesaid order dated 27th November 1999 was modified vide order dated 16th December 1999 as follows:- “in such view of the matter, the order dated 27-11-1999 is modified to the extent that while filling up the vacant posts the respondents shall also consider the case of the petitioners and giving relaxation in the age for the reason that they have served the department for a long time.” 10. So far as W.P.(S) No. 3769 of 2001 is concerned, the following directions were issued: - “Consequently, I am of the considered view that in this case also the petitioners were required to be noticed and asked to submit show cause as to why their appointments should not be terminated. In the aforesaid circumstances, the rule of natural justice has been violated. Consequently, the impugned order is quashed. The respondents are directed to issue a fresh show cause notice upon the petitioners even a general notice inviting show cause and within a period of three weeks from the date of such notice, the petitioners will file their show cause and thereafter the respondents will dispose of their show cause within a period of one month thereafter. So far as the salary is concerned, the petitioners are entitled to their salary for the period for which they have actually worked with the department and that will be paid to them before disposal of the show cause. Subsequent thereto if the show cause is not allowed then the provision of section 25(F) of the Industrial Disputes Act will be followed.” 11. In the aforesaid background, the appellants also moved this Court for the first time in W.P.(S) No. 6847 of 2006 seeking a direction upon the respondents to forthwith consider appointment of the petitioners on Class III & IV posts in the Mechanical Wing of Road Construction Department in terms of the order passed by this Court in C.W.J.C No.2338 of 1998 (R). A further direction was also sought for by the petitioners to direct the respondents to publish all the vacant posts of Class III and IV in the Road Construction Department as in spite of repeated orders of this Court, the vacant posts were not being filled-up. The petitioners also relied upon the order passed by this Court in the case of Rubi Kumari in W.P.(S) No.7386 of 2012. The writ petition was disposed of by this Court vide order dated 23rd June 2016 with the following observations and directions: - “6. The petitioners also relied upon the order passed by this Court in the case of Rubi Kumari in W.P.(S) No.7386 of 2012. The writ petition was disposed of by this Court vide order dated 23rd June 2016 with the following observations and directions: - “6. The factual aspects, which have been put forward by the learned counsel for the parties, reveals that at the initial stage when the writ petition was filed, there were 9 posts which were vacant in the Mechanical Wing of the RCD as well as 103 posts vacant in the Department and considering the same an order was passed in W.P.(S) No.7386 of 2012 for grant of appointment to the petitioner of that case on a class IV post. Admittedly the claim of the petitioners have not been considered by the authorities even after various judicial orders having been passed. In such circumstances, it would be desirable that the claim of the petitioners for their appointments to Class IV posts in the RCD be considered by the authorities at the first instance. 7. Accordingly, these writ petitions are disposed of with a liberty to the petitioners to submit a fresh representation(s) before the respondent No.4 along with all supporting documents along with a copy of this order. If such representation is filed, respondent No.4 is directed to look into the matter and after considering the grievance of the petitioners pass a reasoned and speaking order within a period of 12 weeks. The respondent No.4 while considering the representation of the petitioners shall also take note of the order which has been passed in the case of Rubi Kumari [W.P.(S) No.7386 of 2012].” 12. Accordingly, the appellants filed their representations which were rejected vide order impugned in the writ petitions. 13. In the order impugned in the present writ petitions, it has been recorded that the persons who were petitioners in C.W.J.C No. 2338 of 1998 (R) were granted age relaxation and thereafter they were granted appointment. It has also been recorded that the Road Construction Department in compliance of order dated 16th December 1999 passed in C.W.J.C No. 2338 of 1998 (R) appointed 103 IVth grade employees and the appointments were completed as back as in the year 2006 itself. It has also been recorded that the Road Construction Department in compliance of order dated 16th December 1999 passed in C.W.J.C No. 2338 of 1998 (R) appointed 103 IVth grade employees and the appointments were completed as back as in the year 2006 itself. It has also been recorded that as many as 35 persons had moved the writ Court in W.P.(S) No. 1749 of 2009 and W.P.(S) No. 1752 of 2009 and pursuant to the said orders passed by the High Court, they had submitted their representations and their representations were also rejected vide order dated 03rd December 2015. The case of Rubi Kumari in W.P.(S) No. 7386 of 2012 was also considered and it was recorded that Rubi Kumari was granted appointment in Class IV but for the reasons mentioned therein the appointment was cancelled vide order dated 12th January 2016. It has further been recorded in the order that letter dated 07th April 2006 was issued in terms of the order passed by this Court in C.W.J.C No. 2388 of 1998(R) after following due procedure and altogether 103 employees were appointed and life of panel lost its validity long back and no appointment can be made on the basis of such panel. It has also been recorded that the appellants cannot be given any benefit pursuant to the order passed by this Court in C.W.J.C No. 2338 of 1998(R). The representations of the petitioners were ultimately rejected. 14. This Court is of the considered view that the claim of the appellants has been rejected by a well-reasoned order which did not call for any interference by the writ Court. 15. It is not in dispute that the appellants remained out of service since 1998 and they had filed their writ petitions sometime in the year 2007 wherein a direction was ultimately issued to the respondent authority to consider the grievance of the appellants and to pass an order. The learned writ Court has also recorded that the appellants had claimed appointment on the ground that their names have been included in the panel list of the year 2006. The learned writ Court has also recorded that the appellants had claimed appointment on the ground that their names have been included in the panel list of the year 2006. The learned writ Court has considered the entire background of the case and has recorded that the panel was prepared as back as in the year 2006 and the appellants had remained out of employment and no employment could be validly made from the panel which was prepared as back as in the year 2006 and that too, after 12 years from the date of preparation of the said panel. The findings of the learned writ Court in paragraph nos.7, 8, 9 and 10 of the impugned order are extracted as under: - “7. Be that as it may, having heard the rival submissions of the learned counsel for the parties and upon perusal of the documents 5 brought on record, this Court is of the considered view that no case is made out for interference in the instant writ applications. Admittedly, the petitioners are claiming appointment against the panel prepared in the year 2006, which has got no force as on date as its legal sanctity is already vanished upon lapse of one year itself and accordingly, after considering all these aspects, the respondents have rightly rejected the claim of the petitioners vide order dated 19.07.2017. 8. Law is well settled that any panel prepared for appointment has a validity of one year. In the instant case the panel was prepared in the year 2006 and petitioners are seeking appointment on the basis of the said panel that too after 12 years from the date of preparation of the said panel. 9. Further the Hon’ble Apex Court in case of Shankarsan Dash v. Union of India, reported in (1991) 3 SCC 47 has held as under: “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. 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 bona fide 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 [ (1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165 ], Neelima Shangla v. State of Haryana [ (1986) 4 SCC 268 : 1986 SCC (L&S) 759], or Jatinder Kumar v. State of Punjab [ (1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899 ].” 10. It is settled legal proposition that approved panel shall remain valid normally for one year from the date of approval by the authorized officer provided that the authorized officer may extend the validity of such panel for six months at a time, but the total period of such extension shall not exceed one year. The Hon’ble Supreme Court in the case of State of Bihar & Ors. Vs. Amrendra Kumar Mishra reported in (2006) 12 SCC 561 has held that life of panel remains valid for one year. Reference in this regard can also be made in the case of State of Rajasthan & Ors. Vs. Jagdish Chopra, reported in (2007) 8 SCC 161 , wherein the Hon'ble Apex Court has clearly held that even when there is no rule or the rules are silent on this point; the validity of panel would be one year from the date of publication of the merit list.” 16. This Court is of the considered view that the learned writ Court has rightly refused to interfere with the order impugned in the writ proceedings. This Court is of the considered view that the learned writ Court has rightly refused to interfere with the order impugned in the writ proceedings. The appointments were over as back as in the year 2006 and no appointment could have been made from the panel which was prepared way back in the year 2006. The learned writ Court rightly observed that the validity of the panel was for one year and much time has elapsed. This Court finds no error in the order passed by the learned writ Court. 17. Accordingly, these Letters Patent Appeals are dismissed.