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2023 DIGILAW 984 (JHR)

Bishnu Prasad Pandey v. State of Jharkhand

2023-08-03

S.N.PATHAK

body2023
JUDGMENT : Heard the parties. 2. Petitioner has approached this Court with a prayer for quashing the order dated 19.12.2018, whereby the respondents, in utter violation of the order passed by this Court in W.P.(S). No. 2125 of 2010, have rejected the representation of the petitioner. 3. The case of the petitioner lies in a narrow compass. The petitioner having the qualification of B.A (English) and Post-Graduation, has appeared before the Gram Shiksha Samiti (Village Education Committee), Madhupur for selection to the post of Para Teacher in Utkramit Madhya Vidyalaya, Ratu Vihar (Madhupur). The committee after finalization of the selection process, recommended the name of six persons for appointment in Grade II category i.e. B.A with English, in which, the name of the petitioner was placed at serial no. 3 despite the fact that he was the only candidate with a degree of Post Graduate. It has further been submitted that in spite of the fact, that the petitioner possessed the higher qualification, he was denied appointment and illegally selected one Prabhu Verma, as Para Teacher by the Village Education Committee. Challenging the appointment of said Prabhu Verma, the petitioner approached this Court in W .P. (S). No. 2125 of 2010 and this Court after hearing the parties, disposed of the said writ petition vide order dated 14.08.2018, with a direction to the respondents-authorities to consider the case of the petitioner and pass appropriate order with regard to appointment of petitioner to the post in question, within a period of eight weeks from the date of receipt/production of copy of this order. The respondent-authority in light of the judgment passed in W.P.(S). No. 2125 of 2010 has terminated the services of said Prabhu Verma and further rejected the representation of the petitioner also vide its order dated 19.12.2018. Hence, the petitioner has been constrained to knock the door of this Court. 4. Mr. Prashant Pallav, learned counsel for the petitioner vociferously argues that impugned order dated 19.12.2018 is not tenable in the eyes of law and the same is fit to be quashed and set aside. Learned counsel further argues that the respondents have ignored the qualification which the petitioner was having and illegally and arbitrarily appointed Prabhu Verma in place of petitioner. Thereafter, the petitioner filed W.P.(S). Learned counsel further argues that the respondents have ignored the qualification which the petitioner was having and illegally and arbitrarily appointed Prabhu Verma in place of petitioner. Thereafter, the petitioner filed W.P.(S). No. 2125 of 2010 and this Court was pleased to direct the respondents to consider the case of the petitioner and pass appropriate order with regard to appointment of petitioner to the post in question. Thereafter, the respondent-authority in light of order passed by this Court, terminated the service of the said Prabhu Verma and now, there is one post of Para Teacher lying vacant. 5. Learned counsel attacking the impugned order submits that respondents have lost sight of the fact that cause of action arose in 2010 itself and as such, Rule prevailing at that time ought to have been considered while passing the impugned order. Further, it has been argued that petitioner has been deprived of the appointment and the valuable right which has accrued to the petitioner has been snatched. It was further contended that after shortlisting, three candidates for the appointment as Para Teacher was made, including the petitioner and qualification of the petitioner was much higher than the other two candidates. In view of circular dated 08.06.2005 and 24.04.2008, it is apparent that candidates procuring higher qualification will be given preference and as such, the case of petitioner needs consideration. Learned counsel further argues that since the candidature of Prabhu Verma has already been turned down and since there is vacant post, the case of petitioner deserves to be considered for appointment. It has also been argued that recommendation of the Village Education Committee cannot be accepted as a gospel truth and in view of earlier observation made by this Court, petitioner deserves to be appointed. 6. Per contra, counter-affidavit has been filed. Dr. Vandana Singh, learned Sr. SC-III representing the respondent-State vehemently opposing the contention of learned counsel for the petitioner submits that in compliance of the order passed by this Court, the respondents have reconsidered the case of present petitioner and it was found that the case of petitioner could not be considered as he was not possessing TET qualification, which is a mandatory condition under Right to Education Act, 2010 for appointment to the post of Para Teacher. Learned counsel further argues that since the terms and conditions of engagement of petitioner was purely contractual/ temporary, same is governed by the terms of contract and not by any statutory/ service rules and regulation. Learned counsel further argues that even otherwise as per the law laid down by the Hon’ble Apex Court in case of Shankarsan Dash, reported in (1991) 3 SCC 47 , mere selection does not give any right to a candidate for appointment much less on contractual engagement. Learned counsel further argues that Sarva Siksha Abhiyan is a temporary scheme jointly funded by the Central Govt. and the State Govt. and not a regular establishment. Further, earlier scheme of Sarva Siksha Abhiyan has been superseded by the new scheme called as Samgra Siksha Abhiyan. Thus, the entire exercise of Sarva Siksha Abhiyan has been otherwise rendered otiose. Learned counsel further argues that the Division Bench of this Hon’ble Court vide its order dated 08.05.2019, passed in LPA No. 151 of 2018, observed that after promulgation of Right to Education Act, 2010, passing of TET examination and qualification of Teacher’s Training are mandatory for engagement as Para Teacher and since the petitioner was not having such qualification, rightly his case was not considered and rejected. 7. Having heard the rival submissions of the parties across the bar, this Court is of the considered view that no case is made out for interference in the instant writ petition. Admittedly, petitioner was not fulfilling the requisite qualification as per Right to Education Act, 2010. Any appointment have to be made as per Clause-23(1) of the said Act in which the requirement is that the candidates have to be trained and cleared the TET examination. Petitioner having not cleared the TET examination and was not having the requisite qualification, rightly did not deserve to the appointed. 8. The Hon’ble Apex Court in case of Deepak Agarwal v. State of U.P., reported in (2011) 6 SCC 725 , has clearly held that: “It is rules which are prevalent at time when consideration took place for promotion, which would be applicable. 8. The Hon’ble Apex Court in case of Deepak Agarwal v. State of U.P., reported in (2011) 6 SCC 725 , has clearly held that: “It is rules which are prevalent at time when consideration took place for promotion, which would be applicable. There is no rule of universal or absolute application that vacancies are to be filled invariably by law existing on date when vacancy arises.” Similar issue fell for consideration before the Hon’ble Apex Court in case of Union of India v. Krishna Kumar, reported in (2019) 4 SCC 319 , wherein the Hon’ble Court held as under: “in absence of anything in the Rules indicating that vacancies must be filled on basis of Rules as they prevailed in year in which they had occurred, impugned judgment holding that criteria of seniority-cum-merit and merit as envisaged by 2006 Rules could not be made applicable to vacancies occurring in 2003-2004 unsustainable” Recently, in State of H.P. v. Raj Kumar, reported in (2023) 3 SCC 773 , same view was reiterated and the Hon’ble Apex Court held: “16. ……………………….. right to be considered for appointment for promotion would not be lost with the advent of new Rules as the vacancies occurring prior to the amendment of the rules were to be filled under the unamended Rules. ………..” Further, the Hon’ble Apex Court in case of State of U.P. & Ors. Vs. Rachna Hill & Ors., reported in (2023) SCC Online SC 506, has held that: “in any event it is a settler principle of law that a candidate has right to be considered in the light of the existing rules which implies rules in force as on the date of ‘consideration’.” 9. In the instant case since petitioner does not fulfil the requisite qualification on the date of consideration, he is not entitled for appointment and the contention of Mr. Prashant Pallav, learned counsel appearing for the petitioner that the Rule existing at the time when advertisement was floated has to be taken into consideration, is not accepted to this Court and his argument is contrary to the settled propositions of law. Right of appointment dehors the rules cannot be considered. Appointment must be justified on touch stone of Article 14 of the Constitution of India. 10. As a sequitur to the aforesaid observations, rules, guidelines and legal propositions, the writ petition being devoid of any merit is hereby dismissed.