Ashok Kumar Thakur v. The State of Jharkhand & Ors.

This interlocutory application has been filed for condoning the delay of 9 days in filing the appeal.

Heard learned counsel for the parties.

Considering the sufficient cause as has been assigned in the interlocutory application and having no objection on the part of the Respondent State, the delay of 09 days in preferring the appeal is hereby condoned.

Accordingly, I.A. No. 2929 of 2022 stands disposed of. LPA No.604 of 2019

The instant appeal filed under clause 10 of the letters patent is directed against the order / Judgment dated 24.06.2019 passed by the 2 LPA No.604 of 2019 learned Single Judge in WP(S) No.4144 of 2009, whereby and whereunder, the order dated 12.12.2008 by which the claim of the writ petitioner for appointment as Assistant Teacher was rejected, has been refused to be interfered with by dismissing the writ petition.

Brief facts of the case as per the pleadings made in the writ proceeding, which are required to be enumerated herein, read as under :- The writ petitioner had been appointed as Assistant Teacher on

31.5.1982 and to that effect an appointment letter was issued on

31.5.1982. The writ petitioner, pursuant thereto, had joined the service on 03.06.1982 as Assistant Teacher in a Primary School, Salgati, Mohanpur, Deoghar. The writ petitioner along with others had been removed from service by order passed in 1987. The order of the removal was challenged in writ and Letters Patent Appeal which were dismissed. Thereafter, the same was challenged before the Hon’ble Supreme Court in SLP No.10634-36/1993 wherein the Hon’ble Supreme Court allowed the SLP with some observation. Pursuant to the said observation, concerned Director considered the claim of writ petitioner and rejected the same (i.e. claim of writ petitioner for re- appointment) on the ground that the writ petitioner was found under age. The claim was rejected vide memo No.2392 dated 29.10.1994. The aforesaid order was challenged before the Patna High Court in CWJC No.5069 of 1997 and while disposing of the writ petition vide order dated 26.08.1998, direction upon the Director, Primary 3 LPA No.604 of 2019 Education was passed to consider the case of the writ petitioner afresh on the basis of the corrected birth certificate and pass an appropriate order in accordance with law. Further direction was passed upon the writ petitioner to produce the original corrected certificate before the Director so that the final order can be passed within the stipulated period of 2 months from the date of the receipt / production of the copy of the order. Pursuant to the order passed in CWJC No.5069 of 1997, petitioner filed representation before Director, which was received by the office of Director, Primary Education, Bihar on 23.10.1998. Director, Primary Education, Bihar, Patna vide order dated

23.02.2000 stated that with respect to representation dated 09.02.2000 of writ petitioner along with corrected original matriculation certificate to the concerned authority has conceded that a waiting list for reappointment is being prepared by the concerned authority in pursuance of order dated 26.08.1998 in CWJC No.5069 of 1997.

It further appears from the fact that the writ petitioner thereafter had filed a contempt petition being Contempt (Civil) No. 530 of 2002, for non-compliance of the order passed in CWJC No.5069 of 1997, which was disposed of vide order dated 26.02.2004 directing the Director to consider the matter. But in the meanwhile, the erstwhile State of Bihar had been bifurcated by virtue of the Bihar Reorganization Act, 2000 with effect from 15.11.2000 and thereafter, the writ petitioner has filed Contempt (Civil) No.352 of 2005 before the 4 LPA No.604 of 2019 Jharkhand High Court, which was dropped with an observation that it is upon writ petitioner to approach the government of Jharkhand for consequential benefit. The authorities of the State of Jharkhand has passed an order on 12.12.2008 by rejecting the claim of the petitioner on the ground that after bifurcation of the State of Jharkhand, the basis upon the rule, under which the writ petitioner was appointed, has been repealed and thereafter several appointment processes have been carried out under new Rules.

The said order has been challenged by filing the writ petition being WP(S) No.4144 of 2009 and the writ petition has been dismissed by showing in agreement with the reason assigned in the impugned order dated 24.06.2019, against which the present appeal has been filed.

Mr. Arpan Mishra, learned counsel appearing on behalf of the petitioner assisted by learned counsel Mr. Jayant Kumar Pandey has submitted that the learned Single Judge has not appreciated the entire facts in the right perspective, since, it is not a case of lapse of panel, rather, it is a case where the claim of the writ petitioner has not been considered on the basis of the direction passed by the Patna High Court in CWJC No. 5069 of 1997, whereby and whereunder the direction was passed by the Patna High Court asking the writ petitioner to produce the corrected original certificate for consideration by the Director, who had been directed to take the decision within the stipulated period of 2 months. Such decision, since 5 LPA No.604 of 2019 was not taken and meanwhile, the State of Jharkhand has been created, therefore, the contempt case has been filed before this Court and thereafter the order has been passed by the authority concerned. Therefore, it cannot be said to be a case of lapse of the panel, on the basis upon which, the claim of the writ petitioner has been rejected by the administrative authority by passing impugned order, which has been found to suffer from no error by the learned Single Judge while dismissing the writ petition, therefore, the order passed by the learned Single Judge is not justifiable and hence the same is required to be quashed and set-aside.

The learned counsel appearing for Respondent State of Jharkhand has submitted by defending the order passed by the learned Single Judge, wherein, the learned Single Judge has given thoughtful consideration by going through the stand inter alia taken by the State and in the counter affidavit wherein it has been referred as has been discussed by the learned Single Judge to the effect that by making reference to the order passed by the Hon’ble Apex Court whereby and whereunder, the first, second and third waiting lists were published in the year 1995 and the eligible candidates were reappointed in view of the direction of the Hon’ble Apex Court. The State has further taken the ground that the name of the petitioner was not decided on the basis of his date of birth and it has been considered that since the panel was of the year 1980-81, which is of more than 35 years and as such, no appointment can be given and taking note of the 6 LPA No.604 of 2019 aforesaid fact, the learned Single Judge has passed the order by dismissing the claim of the petitioner, which cannot be said to suffer from an error.

We have heard the learned counsel appearing for the parties, perused the materials available on record as also the finding recorded by the learned Single Judge.

The disputed fact in this case as we have carried out from the materials available on record is that the claim of the appointment is being sought for on the basis of the advertisement published way back sometime in the year 1980, although the date of advertisement is not available on record, but as would appear from the impugned order wherein, the reference to the preparation of the panel was of the year 1980-81, which suggests that the advertisement was also of the year 1980 and therefore based upon the same, the panel might have been prepared in the year 1980-81. The writ petitioner, although, was appointed on 31.05.1982, but was removed along with others sometimes in the year 1987. The writ petition was filed before the Patna High Court, but dismissed, which was affirmed in the Letters Patent Appeal by the Patna High Court, however, the order passed by the Patna High Court was reversed by the Hon’ble Apex Court while passing the order in SLP Nos.10634-36 of 1993. The Hon’ble Apex Court has disposed of the petition with an observation that the case of the writ petitioner and other similarly situated teachers be examined by the concerned Director. The case of the writ petitioner was 7 LPA No.604 of 2019 considered and it was found that the writ petitioner was under age at the time he was appointed. Thereafter, Director rejected the claim of writ petitioner for re-appointment which was challenged in CWJC No.5069 of 1997. Hon’ble Patna High Court vide order dated

26.08.1998, in CWJC No.5069 of 1997 passed direction upon the Director to consider the matter of writ petitioner afresh. Further direction was passed on writ petitioner to produce corrected original certificate for authority so that the matter may be considered afresh. For its reference, the operative part of the order dated 26.08.1998 passed in CWJC No. 5069 of 1997 is here as under:-

I accordingly, dispose of the instant writ application with a direction to the Director, Primary Education to consider the case of the petitioner afresh on the basis of corrected certificate and pass an appropriate order in accordance with law. Petitioner is also at the same time directed to produce original corrected certificate before the learned Director so that final order can be passed without any delay preferably within a period of two months from the date of receipt / production of a copy of this order.

However, in the meanwhile the State of Jharkhand has been carved out with effect from 15.11.2000 and after a lapse of about two years, a contempt case was filed before this Court being Contempt (Civil) No. 530 of 2002, wherein a direction upon the Director, Primary Education, Govt. of Bihar was passed to consider the claim of the petitioner on his producing the original Matriculation certificate showing a valid correction of date of birth. 8 LPA No.604 of 2019

It further appears that another contempt case was filed being Contempt (Civil) Case No. 352 of 2005, before this Court on the ground that the direction so passed by the contempt court in Contempt (Civil) Case. 530 of 2002 dated 26.02.2004 had not been complied with and as such a fresh contempt petition being Contempt (Civil) Case No. 352 of 2005 was filed. The aforesaid contempt case was disposed of on 26.07.2007 by taking into consideration the order by the Director, Primary Education dated 13.12.2006 wherein the successor State of Bihar giving no objection certificate if the writ petitioner be appointed on the basis of the corrected certificate. The contempt case was disposed of by giving reason based upon the show- cause, the court’s order has been complied with however the writ petitioner was given an opportunity to approach the Government of Jharkhand for consequential benefit.

One CMP has been filed being CMP No.404 of 2007 for clarification of the order dated 26.07.2007 with regard to the appropriate authority to whom he should approach. The order dated

26.07.2007 was modified / clarified vide order dated 06.10.2007 passed in CMP No. 404 of 2007 directing the writ petitioner to approach Director, Primary Education, Government of Jharkhand, Ranchi for consideration of his case within a period of 3 months from the date of the receipt / production of the copy of the order. Thereafter, an order was passed by the Director on 12.12.2008 rejecting the claim of the writ 9 LPA No.604 of 2019 petitioner which has been declined to be interfered with in the writ petition by the learned single judge.

The argument, which has been advanced on behalf of the appellant is that it is not a case of the lapse of the panel, but, it is a case where the writ petitioner was duly appointed in pursuance to the advertisement issued way back in the year 1980 and thereafter the consideration was directed to be given on the basis of the corrected birth certificate, if produced by writ petitioner, but the learned Single Judge has failed to appreciate the aforesaid fact and considering the case to be hopelessly barred, i.e. after 35 years has dismissed the writ petition.

This court in order to consider the aforesaid argument is of the view that it is a specific case of the writ petitioner against the order passed by the Director, Primary Education, Bihar, Patna dated

29.10.1994 wherein claim for consideration of reappointment was rejected having been found writ petitioner under age. The said order was challenged by filling the writ petition being CWJC No.5069 of 1997, which was disposed of on 26.08.1998. The authority of the State of Jharkhand has although considered the case of the writ petitioner in terms of the order passed by the CMP No.404 of 2007 by rejecting the claim of the writ petitioner on the ground that after bifurcation of the State of Bihar and the successor State of the Jharkhand, the State of Jharkhand has come out with the new recruitment rules, based upon which the advertisement has also been issued making appointment of 10 LPA No.604 of 2019 about 8000 teachers by the competitive examination conducted by the Jharkhand Public Service Commission up to the year 2006. Further on or after 2007, the recruitment process to fill up 8767 vacant posts has also been commenced by making requisition by the Jharkhand Public Service Commission. The aforesaid ground was taken by the Director, Primary Education, Jharkhand while rejecting the claim of the petitioner.

Admittedly herein the advertisement is of the year 1980, the panel was prepared in the year 1980-81 and since then 43 years have elapsed. Meanwhile the new advertisements have come and accordingly the new recruitments have also been made by the successor state of Jharkhand as respondent herein, as such at this belated stage it will not be viable to issue any direction in the regard of claim of the petitioner. Further it is settled proposition of law that in exercise of power under Article 226 of the Constitution, the High Court does not entertain belated claims. Reference in this regard may be taken from the Judgment rendered by the Hon’ble Apex Court in the case of State of Jharkhand v. K.N. Farms & Industries (P) Ltd. reported in (2012) 5 SCC 297, wherein at paragraph 21 it has been observed as under:

21. Another grave error committed by the learned Single Judge and the Division Bench of the High Court learned Judges completely overlooked the settled law that in exercise of power under Article 226 of the Constitution, the High 11 LPA No.604 of 2019 Court does not entertain belated claims—State of M.P. v. Bhailal Bhai [AIR 1964 SC 1006] and Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110]

.

Admittedly herein the advertisement is of the year 1980, the panel was prepared in the year 1980-81 and since then, 43 years as on date have expired, meanwhile, the new advertisements have come, the new recruitments have been made, as such, we are also of the view that in such a belated stage, there cannot be positive direction under Article 226 of the Constitution of India that the claim of the writ petitioner can be said to be legal.

The learned Single Judge after taking into consideration the aforesaid facts, if declined to interfere with the impugned order, in our considered view suffers from no error and accordingly the instant appeal is dismissed. R.Kumar (Sujit Narayan Prasad, J.) (Navneet Kumar, J.)