Ajay Prakash v. 1. The State of Jharkhand 2. Secretary, Department of Building Construction, Ranchi 3. Superintending
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2891 of 2013 Ajay Prakash ... ... … Petitioner Versus 1. The State of Jharkhand 2. Secretary, Department of Building Construction, Ranchi 3. Superintending Engineer Building Construction Department, Building Division, Hazaribagh …. …. ... Respondents CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR For the Petitioner : M/s Sudarshan Shrivastava & Sunil Singh, Advocates For the Respondents : Mr. Sarvesh Kr. Verma, Sr. S.C.-I 03/30.10.2013 The petitioner has approached this Court seeking quashing of letter dated 11.4.2013, communicated to the petitioner by letter dated 25.4.2013 whereby the claim of the petitioner for seniority and monetary benefit has been rejected by the respondent no. 3. 2.
Facts
The brief facts of the case are that, an advertisement was issued for appointment on Grade IV posts and selection was made, pursuant to which letter dated 31.10.2005 was issued by the Deputy Commissioner, Hazaribagh for issuing appointment letters. In the said letter, the name of the petitioner appears at serial no.7. However, inspite of such recommendation, the petitioner was not appointed and rather one Md. Mustaq who was at serial no. 279, Ram Swaroop Gope who was at serial no. 270, Sanjeev Kujur, who was at serial no. 526 and Nassuridin Ansari who was at serial no. 162, were appointed. Other similarly situated persons namely, Devendra Nath Ojha, Md.
Legal Reasoning
Kamil and Bijay Kumar approached this Court in W.P.(S).3542 of 2006 and this Court by order dated 06.09.2006 directed the respondents to appoint those persons, as the persons below in 2 merit list were given appointment. A similar order has been passed in W.P.(S) No. 2684 of 2006. Since the petitioner was not offered appointment he was constrained to move this Court by filing the W.P.(S) no. 6486 of 2006 seeking direction upon the respondents for issuing appointment
Decision
letter to him. By order dated 29.08.2008, the writ petition was allowed however, since the said order was not complied with by the respondents, the petitioner preferred Contempt (C) No. 740 of 2008 which was disposed of by order dated 19.05.2010, as during the pendency of the Contempt Petition, the petitioner was appointed. Since the petitioner was neither accorded his seniority nor was granted monetary benefits, he moved representation before the respondents. However, the claim of the petitioner was not granted and by the impugned letter dated 11.4.2013 the claim of the petitioner has been rejected by the respondent no. 3. 3. A counter-affidavit has been filed on behalf of the respondent no.2 stating as under: 13.”That at this stage it is pertinent to mention here that petitioner is claiming seniority on the basis of recommendation letter issued by the Deputy Commissioner, Hazaribag vide letter No. 541 dated 31.10.2005, wherein name of the petitioner stands at SI. No. 7. At this stage, it is pertinent to mention here that serial number given in the said recommendation letter is not merit wise seniority list. As a matter of fact the names were given in the reverse order. The person whose name stand at SI. No. 17 in the recommended list is at SI. No. 18 in the merit list; whereas the person whose name stands at 3 SI No. 16 in the recommended list is at SI No. 29 in the merit list and in this way we have prepared a chart showing seniority of the person from the merit wise panel. We find that the person who were appointed earlier to the petitioner that he should be ranked above those person as their names appear below the name of the petitioner in the list by which names of the candidates have been recommended for appointment in the Building Division, Hazaribag is baseless and based on wrong notion.” 4. Heard learned counsel for the parties and perused the documents on record. 5. The learned counsel appearing for the petitioner has submitted that the materials on record and the stand taken by the respondents in the earlier writ proceedings would clearly demonstrate that the writ petitioners in W.P.(S) No.2684 of 2006 and W.P.(S) No. 3542 of 2006 were ordered appointment on the ground that the persons below in rank were granted appointment. The claim of the petitioner has also been allowed by this Court on a similar ground that the persons below in the merit list has been granted appointment whereas, the petitioner has been denied appointment on a Class-IV post. In view of the aforesaid, since the respondents illegally denied the appointment to the petitioner, the petitioner would be entitled for grant of seniority from the date on which juniors to the petitioner were appointed and since the petitioner was deprived of his salary from the period during which he remained un-employed on account of illegal action of the respondents, the petitioner would be entitled 4 for grant of monetary benefits. 6. As against the above, the learned counsel appearing for the respondents has submitted that the letter dated 31.10.2005 does not disclose the merit list rather this was the recommendation list and the stand taken by the petitioner that he ranked 7th in the merit list as reflected in letter dated 31.10.2005 is unfounded and therefore, the prayer of the petitioner has rightly been rejected by the impugned order dated 11.4.2013. 7. On a consideration of the materials on record, I find that in letter dated 31.10.2005 which is the recommendation by the Deputy Commissioner, Hazaribagh, it has been specifically mentioned that such recommendation has been made after taking into account the merit, seniority as well as following the existing roaster. I further find that in the proceeding of the W.P.(S) No. 3542 of 2006, the plea of the writ petitioners were allowed holding as under : “Apart from that once a process of selection has been initiated and selection made, respondents may not appoint any person for valid reasons, but, they cannot appoint anybody ignoring merit as determined in the selection of candidates. Since respondents have appointed persons below in the merit list as determined by the selection body, they cannot deny appointment to the petitioner and no valid reasons have been indicated. In view of the above circumstances, this petition is allowed. Respondents are directed to appoint the petitioners on the basis of their selection and if any persons below in the merit list has been appointed 5 from the said select list, then the petitioners' on appointment shall rank senior to such person(s). Let appropriate order be issued within a period of three months.” 8. The writ petition being W.P.(S) No. 6486 of 2006 preferred by the petitioner and others was allowed recording that the claim of the petitioners has been virtually admitted. The relevant portion of order dated 29.08.2008 is extracted below: “ The case of the petitioners is that pursuant to an advertisement (annexure 1), the petitioners had applied for their appointment on Class IV posts in the district of Hazaribagh. They were issued admit cards and they had appeared at the test/examination, in which they were declared successful and qualified and a panel was prepared by the Deputy Commissioner (respondent No.5) recommending names of the candidates, including the petitioners, for their appointment on the vacant posts of Class IV. However, the petitioners have not been given appointment, whereas, the persons who were much below the petitioners in the merit list, have been favoured with appointment letters and they are enjoying the benefits of such appointment for the last two years. Counter affidavit has been filed on behalf of the respondents wherein the claim of the petitioners has been virtually admitted.” 9. In none of the the writ proceedings mentioned hereinabove, the respondents have taken a plea that the letter written by the Deputy Commissioner on 31.10.2005 does not reflect the merit list. However, in the present proceeding a new plea has been raised by the respondent 6 no. 2 that the letter dated 31.10.2005 does not indicate the merit list of the persons for whom the recommendation for appointment was made by the Deputy Commissioner. I am of the considered view that such a plea cannot be entertained at this stage. The claim of the petitioner cannot be denied by taking a plea which was never taken by the respondents in earlier proceedings. In order dated 29.08.2008 this Court passed the following directions: “The facts in the instant case are identical to the facts of the aforesaid case. Therefore, the respondents are directed to appoint petitioners against the existing vacancies on the basis of their selection, and if any person below in the merit list has been appointed from the said select list, then the petitioners on their appointment shall rank senior to such person(s). The respondents are directed to take an appropriate decision and pass necessary order in the light of the above observations, within three months from the date of receipt of a copy of this order.” 10. I find that since the petitioner was appointed in May, 2010, he cannot be granted the monetary benefit prior to his appointment. However, the petitioner is definitely entitled for seniority from the date his juniors were appointed ignoring the claim of the petitioner. 11. In view of the aforesaid, the impugned order dated 11.4.2013 is hereby quashed. The writ petition is partly allowed. Satyarthi/A.F.R. (Shree Chandrashekhar, J.)