The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5079 of 2022 Dilip Kumar, aged about 40 years, son of Bramhadev Singh, resident of Village and P.O. Padma, P.S. Padma, District Hazaribag ....Petitioner Versus 1 The State of Jharkhand through the Secretary, School Education and Literacy Department, Government of Jharkhand, having its office at Project Building, P.O & PS Dhurwa District Ranchi 2. The Director, Primary Education, School Education and Literacy Department, Government of Jharkhand, having its office at Project Building, P.O. & P.S. Dhurwa, District Ranchi. 3. The Deputy Commissioner-cum-Chairman, District Education Establishment Committee, Pakur, having its office and P.O. & P.S. Pakur, District Pakur. 4. The District Superintendent of Education-cum-Secretary, District Education Establishment Committee, Pakur, having its office and P.O. & P.S. Pakur, District Pakur. CORAM : HON’BLE MR. JUSTICE DEEPAK ROSHAN ......Respondents. For the Petitioner : Mr. Rupesh Singh, Advocate For the Respondents : Mr. Pradeep Kumar, A.C to AAG-IV -- -- 13/20.08.2024 Heard learned counsel for the parties. 2. The instant writ application has been preferred by the petitioner praying therein for quashing the decision of the District Education Establishment Committee dated 16.07.2019 (Annexure-7); to the extent it affects the petitioner; inasmuch as, the respondents have rejected the candidature of the petitioner on the ground of overage as against the upper age limit for candidates under Unreserved Category although the petitioner had applied under the Most Backward Category for the post of Inter Trained Teacher Class I-V under Non-para category. The petitioner has further assailed the Letter no. 1267 dated 11.09.2019 (Annexure-5); issued by respondent no. 4, whereby the petitioner was informed to collect the original certificates as the District Education Establishment Committee, Pakur in its meeting held on 16.07.2019 has decided not to appoint the petitioner and accordingly the petitioner has also prayed for a direction upon the 1 respondent authorities to appoint him on the post of Inter Trained Teacher for Class-I-V under Non Para Teacher Category in the District of Pakur. 3. Learned counsel for the petitioner submits that in the year 2015, an advertisement was published for inviting application from eligible candidates for the post of Inter Trained Teacher, Class-1-V and accordingly, the petitioner applied for the post of Inter Trained Teacher, under Non Para Teacher category under the Most Backward Category. He further submits that the petitioner passed his matriculation in the year 1989; Intermediate in the year 1993; Graduation from Vinoba Bhave University in the year 1996 and Post Graduate from Vinoba Bhave University in the year 2000. He also possesses training certificate issued in the year 2008 and also qualified the Teacher Eligibility Test (TET) in the year 2013. He further submits that for the Inter Trained Teacher, the process of selection is governed by the Recruitment Rules as notified by the Government of Jharkhand vide notification nos. 1632 dated 05.09.2012, 2102 dated 22.10.2014 & 1386 dated 22.06.2015. 4. Pursuant to the advertisement, on 29.03.2019, the respondents came out with an assessment of existing vacancy which was issued by way of urgent notice. On 03.06.2019, the respondents finally came out with the last counselling and the petitioner appeared in the process of counselling on 03.06.2019 and submitted his original certificates/credentials. He received a copy of Letter No.1267 dated 11.09.2019 for collecting the original certificates as the District Education Establishment Committee Pakur in its meeting dated 16.07.2019 has decided not to appoint the petitioner without divulging any reason. 2 5. Learned counsel further submits that eight posts under Unreserved category and 3 posts under Most Backward Class category are still lying vacant after conclusion of the final counselling held on 03.06.2019 in the light of vacancy position prepared by the respondent No.4 on 28.01.2020. Learned counsel further draws attention of this Court towards page-68 which is part of the decision of the impugned letter and submits that the candidature of the petitioner has been rejected solely on the ground that he is overage by four months four days. He contended that admittedly; the petitioner applied under Most Backward Class Category (for short ‘M.B.C’). 6. It has been submitted that the respondents have developed a modus operandi not prescribed under Recruitment Rules while conducting the selection process
Legal Reasoning
by deciding that a person, who is first class in Teachers’ Eligibility Test (for short ‘T.E.T’); then he would be considered under Unreserved Category and suo motu they had selected the petitioner under U.R Category and finally on the ground of age, they disqualified the petitioner and rejected his candidature. He further draws attention of this Court towards Annexure-6 dated 28.01.2020 and submits that even now there is vacancy in M.B.C Category as well as U.R Category. Thus; there was no question for the respondents to reject the candidature of the petitioner, who qualified under U.R Category also. However, from the impugned order, it transpires that on the basis of age of the petitioner his case has been rejected. In this regard, he referred to the judgment passed in the case of Jitendra Kumar Singh and another Vs. State of Uttar Pradesh and others reported 3 in (2010) 3 SCC 119, wherein the Hon’ble Apex Court has held that reserved category candidates have not been given any advantage in selection process so far as age is concerned. In crux, learned counsel assailed the impugned decision/order; firstly on the ground that age relaxation cannot be the ground for rejection as laid down by Hon’ble Apex Court in the above referred judgment. Secondly, the respondent suo motu made a modus operandi and considered the case of the petitioner in U.R Category since the petitioner was first class in TET. 7. He further draws attention of this Court towards notification, wherein the benefit for reserved category is mentioned at Rule 4 (Ga), wherein it is stipulated that benefit of 5% marks will be given to the reserved category; however in the case of the petitioner there is no benefit of marks and the petitioner was considered suo motu qualified under Unreserved Category. Further, the ground taken in the counter affidavit that now there is no seat and the seat has been surrendered to the State Government is also Non-Est in the eye of law. As a matter of fact, these averments are just to mislead the Court and deny the justice. Further, in the Recruitment Rules, the District Education Establishment Committee is not vested with authority to keep any seat/post vacant if eligible candidates are available. 8. Learned counsel for the respondents fairly submits that so far as the issue of age relaxation is concerned; the judgment passed in the case of Jitendra Kumar Singh (Supra) is still in vogue and as per the said judgment the age relaxation cannot be considered as relaxation for any particular thing like marks relaxation;
Legal Reasoning
however, counsel for the Respondents has relied the stand 4 made in the counter affidavit that seat has been surrendered by the answering respondent to the Parent Department; therefore, now the appointment is not possible. 9. Having heard learned counsel for the parties and after going through the documents available on record, at the outset it is to be noticed that since the petitioner was first class in TET examination and therefore, he has been selected under U.R Category though petitioner applied for MBC category to which he belongs. Somehow or the other, he was selected under UR category; however, he was finally not selected on the ground that he crossed the age as he is over age by 4 months 4 days under UR category. However, there is nothing on record to suggest that why the petitioner was not selected under M.B.C category because in the advertisement there is no such stipulation as to whether a candidate who is applying for M.B.C category will be considered under U.R. Category because he is first class in TET. It further transpires that surrendering of the seat to the Parent Department is also not acceptable to the Court; inasmuch as, since there were qualified candidates and in the given circumstances, the Recruitment Rules does not prescribe surrender of seat/post. Any action of the State must be fair and transparent. The respondents has not given any justifiable or non-arbitrary reason for not filling up the post. No doubt, right of appointment is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post In this regard, a reference may be made to the case of Dinesh Kumar Kashyap Vs. South East Central Railway reported in (2019) 12 SCC page-798, wherein at para-6 the Hon’ble Apex Court has held as under: 5 “6. Our country is governed by the rule of law. Arbitrariness is an anathema to the rule of law. When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same. They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written test is held. If they qualify the written test they have to again travel to appear for the interview and medical examination, etc. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State. It is in the light of these principles that we need to examine the contentions of SECR.” 10. Even if the respondents have considered the case of the petitioner under UR category; then also, rejecting his case on the ground of over age under U.R Category is also Non-Est in the eye of law as laid down by Hon’ble Apex Court in the case of Jitendera Kumar Singh (Supra), wherein at Paras-48 and 49 the Hon’ble Apex Court has held as under: “48. In view of the aforesaid facts, we are of the considered opinion that the submissions of the appellants that relaxation in fee or age would deprive the candidates belonging to the reserved category of an opportunity to compete against the general category candidates is without any foundation. It is to be noticed that the reserved category candidates have not been given any advantage in the selection process. All the candidates had to appear in the same written test and face the same interview. It is therefore quite apparent that the concession in fee and age relaxation only enabled certain candidates belonging to the reserved category to fall within the zone of consideration. The concession in age did not in any manner tilt the balance in favour of the reserved category candidates, in the preparation of final merit/select list. 49. It is permissible for the State in view of Articles 14, 15, 16 and 38 of the Constitution of India to make suitable provisions in law to eradicate the disadvantages of candidates belonging to socially and educationally backward classes. Reservations are a mode to achieve the equality of opportunity guaranteed under Article 16(1) of the Constitution of India. Concessions and relaxations in fee or age provided to the reserved category candidates to enable them to compete and seek benefit of reservation, is merely an aid to reservation. The concessions and relaxations place the candidates on a par with general category candidates. It is only thereafter the merit of the candidates is to be determined without any further concessions in favour of the reserved category candidates.” 6 11. Thus, this court holds that the action of the respondents for not appointing the petitioner pursuant to the advertisement for the post of Inter Trained Teacher with respect to Class I to V is Non-Est in the eye of law. The grounds taken by the respondents with regard to surrender of the seat is also not acceptable to this Court and has no legs to stand in the eye of law for the reasons stated hereinabove. The ground for rejection of overage under UR category is also arbitrary. As stated herein above, there is nothing on record to suggest that why the petitioner was not selected under M.B.C category inspite of existing vacancy, because in the advertisement there is no such stipulation as to whether a candidate who is applying for M.B.C category will be considered under U.R. Category because he is first class in TET. 12. Having regards to the aforesaid discussions, the instant writ application stands allowed and decision of the District Education Establishment Committee dated 16.07.2019 (Annexdure-7) to the extent it affects the petitioner adversly, as well as Letter No. 1267 dated 11.09.2019 (Annexure-5), are hereby, quashed and set- aside. Accordingly, the Deputy Commissioner-cum- Chairman, District Education Establishment Committee, Pakur (respondent no.3) is directed to look into the matter and issue appointment letter to this petitioner after due formalities. Since the instant case relates to appointment of a person; as such the entire exercise shall be completed within a period of 8 weeks from the date of receipt/production of a copy of this order. Jk AFR 7 (Deepak Roshan, J.)