Disposed

Upashna Kumari v. State of Jharkhand through the Chief Secretary

Jharkhand HC11 Apr 2022WPC/132/2021

Case brief

AI extract

What is this about?

Trained Graduate Teacher recruitment in non-scheduled districts could not be withheld merely because Supreme Court proceedings were pending. The court directed publication of pending results and completion of appointments within eight weeks, subject to eligibility, vacancies and other legal impediments, and disposed of all petitions.

What did the court decide?

Publish pending results and conclude appointments within eight weeks of receipt or production of the order, subject to eligibility, vacancies and absence of other legal impediments.

Upashna Kumari Vs State of Jharkhand through the… — Service and Employment | Jharkhand HC (2022)

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1 WPS No. 5700 of 2018 with other cases

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S) No. 5700 of 2018

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Tarun Kumar.

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Jeet Kamal Mehra

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Namitrata Kumari.

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Manmeet Kumar Jaiswal.

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Atikur Rahman

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Jay Prakash Rabidas

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Priya Pahan.

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Md. Bahlul Masrur.

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Md. Quamar Touhid

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….. …. Petitioners

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Versus

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State of Jharkhand through the Principal Secretary, Personnel

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Administrative Reforms and Rajyabhasha, Ranchi.

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Principal Secretary, Department of School Education and Literacy, Government of Jharkhand, Ranchi.

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Deputy Commissioner, Ranchi.

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District Superintendent of Education, Ranchi.

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Deputy Commissioner, Palamau.

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District Superintendent of Education, Palamau.

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Jharkhand Staff Selection Commission, through its Secretary, Ranchi. 8. Controller of Examination, Jharkhand Staff Selection Commission, Ranchi.

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….. …. Respondents ... ... Petitioner

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With

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W.P.(S) No. 2715 of 2019

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Mukesh Ranjan

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Versus

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The State of Jharkhand.

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The Principal Secretary, School Education & Literacy Department, Govt. of Jharkhand, Ranchi.

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The Jharkhand Staff Selection Commission, Ranchi, through its Secretary, Ranchi.

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The Examination Controller, Jharkhand Staff Selection Commission, Ranchi.

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…. …. Respondents With

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W.P.(S) No. 3816 of 2019

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Suvadip Dey.

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Sanjay Kumar

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Shambhu Kumar Yadav

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Narayan Yadav

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Manish Kumar Verma

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Pankaj Kumar Verma

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Bharat Ram

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Tinku Rajak

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Binod Kumar Das

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Samir Kumar Ravi

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Arjun Hembram

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Shalyani Sinha

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2 WPS No. 5700 of 2018 with other cases

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Rakesh Kumar Singh

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Pankaj Kumar Das

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Anil Kumar Das

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Puja Sinha

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Shiv Shankar Mahtha

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Vikash Kumar Verma

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Priyanka Kumari

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Md. Aftab Alam

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Sant Kumar Yadav

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Sakendra Prasad Mehta

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Nishat Anjum

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Tarun Chowdhury

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Saptorse Mahata

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Shiv Shankar Mahato

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Amardeep Kumar

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Prem Chand Mahto

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Md. Jamshed Ansari 30. Aurangzeb …. ….. Petitioners Versus

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The State of Jharkhand through Chief Secretary, Ranchi.

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Principal Secretary, Department of Personnel, Training and Rajbhasha, Ranchi.

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Principal Secretary, School Education and Literacy Department, Ranchi.

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Principal Secretary, Human Resources Department, Ranchi. 5. Secretary, Jharkhand Staff Selection Commission, Ranchi.

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Controller of Examination, Jharkhand Staff Selection Commission, Ranchi.

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…. ….. Respondents

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With

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W.P.(S) No. 132 of 2021

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Upashna Kumari.

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Kshiteeja Kumari.

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Rashmi Verma

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Sandhya Kumari

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Sumita Dutta .... …. Petitioners Versus

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State of Jharkhand through the Chief Secretary, Government of Jharkhand, Ranchi.

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Personnel, Administrative Reforms & Rajbhasha Department through its Secretary, Government of Jharkhand, Ranchi.

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Principal Secretary, Department of School Education and Literacy, Ranchi.

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Director, Secondary Education through Department of School Education and Literacy, Ranchi.

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Jharkhand Staff Selection Commission through its Secretary, Ranchi. 6. Controller of Examination, Jharkhand Staff Selection Commissioner, Ranchi.

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…. ….. Respondents With W.P.(S) No. 1011 of 2021

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3 WPS No. 5700 of 2018 with other cases

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Rajeev Mishra. 2. Rakesh Kumar Tiwari. 3. Dinesh Chandra. 4. Brij Bihari Yadav 5. Rajeev Kumar Chaturvedi. 6. Ragvendra Prasad Yadav.

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Vipin Kumar Maurya.

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Alok Kumar Yadav. 9. Nageshwar Das. 10. Sunita Kumari. 11. Prerna Kumari. 12. Birendra Kumar 13. Shambhu Kumar Pandey 14. Suresh Mahato. 15. Hridayanand Dwivedi 16. Narendra Kumar 17. Rohit Kumar Singh 18. Pradeep Kumar …. …. Petitioners Versus

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State of Jharkhand through the Chief Secretary, Ranchi. 2. Principal Secretary, Department of School Education and Literacy, Ranchi.

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Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Ranchi.

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Director, Secondary Education and Literacy, Ranchi. 5. District Education Officer, Palamau. 6. District Education Officer, Garhwa. 7. District Education Officer, Chatra. 8. District Education Officer, Dhanbad. 9. District Education Officer, Bokaro. 10. District Education Officer, Koderma. 11. District Education Officer, Ramgarh. 12. District Education Officer, Giridih. 13. District Education Officer, Deoghar.

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…. …. Respondents

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With

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W.P.(S) No. 1887 of 2021

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Subhasish Mahato. 2. Abani Dhibar 3. Maya Kumari Keshri .... … Petitioners

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Versus

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State of Jharkhand through the Chief Secretary, Ranchi.

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Principal Secretary, Department of School Education and Literacy, Ranchi. 3. Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Ranchi.

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Director, Secondary Education and Literacy, Ranchi. 5. Deputy Commissioner, Bokaro. 6. Deputy Commissioner, Giridih. 7. District Education Officer, Bokaro. 8. District Education Officer, Giridih. … … Respondents

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4 WPS No. 5700 of 2018 with other cases

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CORAM : HON’BLE MR. JUSTICE DR. S.N. PATHAK

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For the Petitioners : M/s Ajit Kumar Sinha, Sr. Advocate Manoj Tandon, Shreshth Gautam, Ritu Kumar, N.K. Sahani, Amritansh Vats, Neha Bhardwaj, Chanchal Jain, Ananya, Advs. For the Respondent-State : Mr. Rajiv Ranjan, Advocate General Mrs. Darshana Poddar Mishra, AAG-I Mr. Shreenu Garapati, SC-III Mr. Indranil Bhaduri, SC-IV Mr. Pravin Akhouri, SC(Mines)-I For the Respondent-JSSC : M/s Sanjay Piprawall, Dr. Ashok Kumar Singh, Akash Deep, Rakesh Ranjan, Prince Kumar, Advocates -----

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CAV On : 25.02.2022 PRONOUNCED ON: 11.04.2022

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Dr. S.N. Pathak, J. Since in all these writ petitions, common issue for issuing the final result / appointment letter on the post Trained Graduate Teacher in nonscheduled districts of Jharkhand, pursuant to Advertisement No. 21/2016 is involved, they are heard together and are being disposed of this common order.

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Heard the parties.

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Prayers

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In W.P.(S) No. 5700 of 2018 & W.P.(S) No. 3816 of 2019 , similar prayer has been sought for a direction upon the respondents to consider the case of the petitioners for appointments on the post of Trained Graduate Teacher, pursuant to Advertisement No. 21/2016, against the vacant seats of 25% of the vacancies reserved for Primary School Teachers in terms of Rule 9 (i) of the Jharkhand Government High School and Teaching Staff Appointment and Service Conditions Rules, 2015.

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In W.P.(S) No. 2715 of 2019 , the petitioner has challenged the Notice No. 3462 dated 17.5.2019 (Annexure-10), whereby the candidature of the petitioner for appointment on the post of Trained Graduate Teacher in subject Physical Education has been rejected on the ground that the petitioner has not produced the required educational certificate. After quashment of the Notice, the petitioner has further prayed for a direction upon the respondents to consider his case for appointment on the post of Trained Graduate Teacher, pursuant to Advertisement No. 21/2016, as he

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5 WPS No. 5700 of 2018 with other cases

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had obtained the Graduation degree in Bachelor of Computer Application from a recognised Institute.

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In W.P.(S) No. 132 of 2021 , petitioners have sought for a direction upon the respondent Jharkhand Staff Selection Commission to recommend their names for appointment on the post of Trained Graduate Teacher (TGT), in subject Music, pursuant to Advertisement No. 21/2016 and consequently to issue appointment letters to the petitioners.

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In W.P.(S) No. 1887 of 2021 and W.P.(S) No. 1011 of 2021 , petitioners have sought for a direction upon the respondents, in particular respondent-State to issue appointment letters on the post of Trained Graduate Teachers in subject Sanskrit, as their names find place in the final merit list and have been already recommended by Jharkhand Staff Selection Commission.

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Factual Matrix in W.P.(S) No. 5700 of 2018 & 3816 of 2019

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Brief facts as delineated in W.P.(S) No. 5700 of 2018 are that the State of Jharkhand, under the proviso to Article 309 of the Constitution of India, framed ‘Jharkhand Government High School Teacher and Teaching Staff Appointment and Service Conditions Rules, 2015’ (hereinafter referred to as ‘the Said Rules,2015’). Rule 9 (i) thereof provides that in case, 25% seats are not filled up by eligible Govt. Primary School Teacher, having five years of experience, the same shall be filled up from direct appointment.

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The State of Jharkhand issued the notification and order, bearing Notification No. 5938 and Order No. 5939 dated 14.7.2016, whereby it has been provided inter alia that in the 13 scheduled districts of the State i.e. the districts of Sahebganj, Pakur, Dumka, Jamtara, Latehar, Ranchi, Khunti, Gumla, Lohardaga, Simdega, East Singhbhu, West Singhbhum and Seraikella-Kharsawan, only the local residents of the concerned scheduled districts shall be eligible for appointment on the District Cadre Class-III and Class-IV posts for a period of ten years from the date of issuance of notification.

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Thereafter, strictly in terms of the aforesaid Rules, 2015, the Jharkhand Staff Selection Commission published district-wise vacancies, being Advertisement No. 21/2016, captioned as ‘Combined Trained Graduate Teacher Competitive Examination-2016’, for appointment of

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6 WPS No. 5700 of 2018 with other cases

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Trained Graduate Teachers in different subjects. In paragraph 5(iii) of the Advertisement, it has been stated that so far as vacancies in the scheduled districts of the State are concerned, only the local residents of those scheduled districts shall be eligible to apply.

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The petitioners being eligible in all respects applied for the said post in non-scheduled districts. Petitioners in W.P.(S) No. 5700 of 2018, applied for subjects English, Economics, Math-Phy.,Hist.Civics, Hindi, Geography and Biology respectively. Petitioners in W.P.(S) No. 3816 of 2019, applied for subjects, Geography, Hindi, Mathematics, Urdu, English and Commerce.

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Pursuant to admit cards issued, they appeared in the examination, qualified, and they were called for counselling and documents verification. Though final result was published but the petitioners’ name could not find place in the select list. It is specific case of the petitioners that though a number of seats are lying vacant in 25% quota for Government Primary Teachers due to non-availability of eligible candidates in the subjects, for which petitioners had applied in concerned districts, but they were not considered for appointment, though they are eligible otherwise.

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Arguments Advanced by Parties

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Mr. Ajit Kumar Sinha, learned Senior Counsel, assisted by Mr. Shrestha Gautam, Advocate, assiduously argued that the action of the respondents in not filling up the vacant posts under 25% reserved seats, in spite of availability of suitable candidates from Government Primary School Teacher, from amongst the petitioners, is highly illegal, arbitrary and in contravention of Rule 9 (i) of the Rules, 2015, which stipulates that in case, non-filling of eligible Govt. Primary School Teachers under 25% reserved quota, the seat shall be filled up by direct appointment. Therefore, non-filling of the vacant posts in view of Rule 9(i) got shattered the legitimate right of the petitioners in exercising of the powers by the respondents arbitrarily. Learned counsel while referring to Notification no. 2264 dated 29.8.2019 (Annexure-5 to the writ petition), submits that the Government has already ordered for appointment on vacant posts of 25% seats reserved for Primary Teachers in six compulsory subjects, i.e. Hindi, English, Geography, MathPhysics, Biology-Chemistry and History-Civics, in the light of the said

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7 WPS No. 5700 of 2018 with other cases

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Rules, 2015. It is further submitted that if appointment is done as per rules, the petitioners will get selected, as there are a number of vacant seats and the Respondent being a Welfare State should allow the petitioners to get their appointment, as they have all the requisite qualifications.

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Learned Senior Counsel further draws the attention of this Court towards other relevant facts and submits that the notification and order dated 14.7.2016 issued by the Government of Jharkhand, whereby hundred percent reservations were provided to the local residents of 13 scheduled districts were challenged in W.P.(C) No. 1387 of 2017 and other analogous matters and the Full Bench of this Court held the same ultra vires to Articles 14, 13(2), 15 and 16 of the Constitution of India and thereby quashed and set aside the order impugned. The Full Bench while deciding the matters also clarified that selection process was never stayed in non-scheduled districts. It is further stated that several persons have approached this Court by filing W.P.(S) No. 3486 of 2019 for direction to fill up the vacant posts which were kept reserved for Govt. school teachers in terms of Rule 9(i) of the said Rules, 2015 and the same was also disposed of by order dated 14.10.2020, directing the respondents to take a decision in the matter. Similar order was passed in W.P.(S) No. 1642 of 2020 directing the respondents to consider for appointment on vacant posts of 25% seats earmarked for primary teachers. Pursuant to directions passed in W.P.(S) No. 3486 of 2019, the respondentState vide notification no. 5974 dated 23.11.2020 clarified that there is no legal impediment in appointment in non-scheduled districts. The judgment and order passed by the Full Bench in W.P.(C) No. 1387 of 2017 went up to the Hon’ble Apex Court, wherein, interim protection was given to the teachers appointed in the scheduled districts. In another S.L.P. No. 14812 of 2021, the Hon’ble Apex Court directed the petitioners to file application for modification of the order passed by the Full Bench in W.P.(C) No. 1387 of 2017, more particularly with regard to paragraph-66 of the Full Court’s judgment, whereby the Full Bench in clear words observed that the selection process was never stayed by the Court in the non-scheduled districts.

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Learned Senior Counsel further draws the attention of this Court towards the orders passed in this writ petition. Learned Senior Counsel states that the present writ petitions were taken up before this Court and on

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8 WPS No. 5700 of 2018 with other cases

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25.11.2021, it has been informed by learned Advocate General, representing the State, that the State has taken a decision regarding appointment of teachers of History-Civics subject in non-scheduled areas of the State of Jharkhand, but no specific decision has been taken regarding appointment of teachers in subject other than History-Civics.

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Per contra, counter affidavit has been filed. Mr. Rajiv Ranjan, learned Advocate General assisted by Mrs. Darshana Poddar Mishra, learned Addl. Advocate General, representing the State, submits that the prayer of the petitioners for appointment on the vacant seat earmarked for Government Primary School Teachers in terms of Rule 9(i) of the said Rules, 2015 is not permissible in the eyes of law. In this context, reference may be made to the letter contained in Memo No. 2264 dated 29.8.2019, whereby, the Secretary of the School Education and Literacy Department has directed the Jharkhand Staff Selection Commission for making recommendation for appointment on the vacant posts of 25% reserved seats in compulsory subjects only, like, Hindi, English, History/Civics, Geography, Maths/Physics and Biology/Chemistry. Learned Advocate General further submits that there is no right vested for appointment and that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an offer of appointment. In the case at hand in W.P.(S) No. 5700 of 2018, the name of petitioner no.1 is not even reflected in any select list by the respondent Commission, but his name is only reflected in the list of ‘Candidates shortlisted against vacancy of Direct Recruitment/ Working Teachers” for verification of documents. Learned Advocate General submits that it is exclusive prerogative of the employer / State Administration to initiate the selection process for filling up vacancies and once the selection process in respect of number of vacancies so determined is to an end, it is not open to offer appointment to persons from the unexhausted list. To strengthen his argument, learned Advocate General places heavy reliance upon the judgment delivered in the case of State of Haryana Vs. Subash Chander Marwaha, reported in (1974) 3 SCC 220, wherein in similar facts and situation of this case, the Hon’ble Supreme Court has held that ‘ the mere fact that a candidate’s name appears in the list will not entitle him to a

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9 WPS No. 5700 of 2018 with other cases

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mandamus that he be appointed ’. To be more specific, paragraph-10 and 11 of the said judgement is quoted herein below:-

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“10. One fails to see how the existence of vacancies give a legal right to a candidate to be selected to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate’s name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect …

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11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr. Rai Shivendra Bahadur V Governing Body of the Nalanda College that in order that mandamus may issue to compel an authority to do something, it must be shown that the Statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived.”

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Further learned Advocate General places heavy reliance upon the judgments in the case of Shankarsan Dash Vs. Union of India , reported in (1991) 3 SCC 47, All India SC & ST Employees Assn. Vs. A Arthur Jeen , reported in (2001) 6 SCC 380, Punjab State Electricity Board and Ors. Vs. Malkiat Singh , reported in (2005) 9 SCC 22 and State of Orissa Vs. Rajkishore Nanda , reported in (2010) 6 SCC 777.

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Placing reliance upon these judgments, learned Advocate General submits that the petitioner has not been able to make out any case for appointment in pursuance to the advertisement in question. Therefore, writ petitions deserve to be dismissed.

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Factual Matrix of W.P.(S) No. 2715 of 2019

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Short facts, as delineated in the writ petition are that the petitioner being Graduate in Bachelor in Physical Education having 45% marks, applied for appointment on the post of Trained Graduate Teacher in Physical Education subject. The petitioner underwent the selection process and qualified. Thereafter, pursuant to notice dated 14.12.2018, the petitioner

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10 WPS No. 5700 of 2018 with other cases

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appeared before the respondent-JSSC for verification of documents and submitted all the certificates of his educational qualification including degree of Bachelor in Physical Education as well as the degree of Bachelor of Computer Application obtained from Sikkim Manipal University. The petitioner has obtained 140 marks whereas the cut off in the subject ‘Physical Education’ under scheduled caste category, which the petitioner belongs, was 136. In response to notice dated 7.1.2019, the petitioner submitted the required certificate of Bachelor of Computer Application to the office of respondent no.4 on 13.1.2019. However, the candidature of the petitioner was rejected on the ground that he was not found eligible as he could not produce required educational certificate.

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Arguments Advanced by Counsel for the Parties in W.P.(S) No. 2715 of 2019

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Mrs. Ritu Kumar, learned counsel appearing for the petitioner submits that in spite of the fact that the petitioner submitted all required educational certificates including the certificate of Graduation in Bachelor of Computer Application, the candidature of the petitioner was rejected in arbitrary manner. Learned counsel accordingly submits that candidature of the petitioner needs consideration, since no appointment in the concerned subject has been made till date.

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Per contra, counter affidavit has been filed. Learned counsel representing the State vehemently opposes the contention of learned counsel for the petitioner and submits that on verification of testimonials of the petitioner, it was found that he had submitted certificate showing him passed Bachelor in Computer Application. Learned counsel submits that since the petitioner had applied for appointment on the post of Physical Education Teacher, but had submitted the certificate of Computer Application, which is not valid in terms and conditions of the Advertisement and hence, since the petitioner has failed to produce valid educational certificate for appointment on the post of Trained Graduate Teacher for subject Physical Education, his candidature was rejected, after issuance of show cause notice to the petitioner. Hence, writ petition filed by the petitioner lacks merit and deserves to be dismissed.

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Factual matrix of W.P.(S) No. 132 of 2021

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11 WPS No. 5700 of 2018 with other cases

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Factual matrix, as averred in the writ petition, are that petitioners being eligible in the Music subject, applied for such appointment on the post of Trained Graduate Teacher. The qualification required as mentioned in the advertisement against the subject Music is that the candidates must have passed the Matriculation from a University or a Board, recognized by a State Government or Central Government and Graduation degree in Sangeet by a University recognized by State or Central Government or its equivalent. The petitioners possessed these qualifications, as they are not only the Matriculates, but in fact, they have got degree of Honours in Music. Pursuant thereto, the candidatures of the petitioners were found to be in order and they underwent the selection process. The petitioners did well, declared successful and they appeared for certificates verification, which were also found to be in order by the authorities of JSSC. Though the final result in subject Sangeet for districts Godda and Deoghar has been published and the candidates were also appointed, but the petitioners, who have applied for districts Hazaribag, Koderma, Palamau, Giridih and Dhanbad, their results are not being published for the reasons best known to the respondents. Therefore, the petitioners preferred this writ petition before this Court.

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Argument advanced by Counsel for the Parties in W.P.(S) No. 132 of 2021

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Mr. Manoj Tandon, learned counsel appearing for the petitioners submits that since the date of certificates' verification, now almost three years have passed, but the respondents are sitting tight over the matter for no assigned reasons. Learned counsel further submits that it is not in dispute that the petitioners are having the qualifications strictly in terms of Clauses 4 and 5 of the advertisement. The petitioners are not only Matriculates from a recognized Board, but they have also Graduate degrees in subject Sangeet. In fact, the petitioners are Honours in Sangeet. The respondents have accepted in the counter affidavit specifically in para-8 thereof, as regards the qualifications of the petitioners. Therefore, there is no impediment in issuing the appointment letters to the petitioners, as they are the applicants for non-scheduled districts. Learned counsel further submits that pursuant to the same advertisement i.e. Advertisement No. 21/2016, appointments have been made in other subjects in the entire State of

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12 WPS No. 5700 of 2018 with other cases

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Jharkhand. In subject Sangeet also, appointments have been made in the districts of Godda and Deoghar, but for the reasons best known to the respondents, the appointment letters are not being issued to the petitioners. Learned counsel further adds that the respondents have now discriminated amongst similarly situated candidates. Once the appointments have been made in other subjects pursuant to the same advertisement, the respondents are also bound to make appointment of the petitioners, subject to fulfilling the requisite qualification. Learned counsel accordingly submits that since other similarly situated persons have been appointed, the respondents cannot be given license to act arbitrary and to sit tight over the matter for years together in the matter of appointment of these petitioners.

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Per contra, counter affidavit has been filed. Learned counsel representing the respondent-Jharkhand Staff Selection Commission, referring to statements made in counter affidavit submits that though petitioners are B.A. with Matric, but the degrees of Sangeet Prabhakar and Sangeet Visharad are not the valid degrees for such appointment. The respondents further stated in the counter affidavit that clarifications were sought for from the State of Jharkhand, but no reply is received as yet.

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Factual Matrix of W.P.(S) No. 1011 of 2021 and W.P.(S) No. 1887 of 2021

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Brief facts, as pleaded in the writ petition, are that all the petitioners applied pursuant to the advertisement in question for appointment on the post of Trained Graduate Teacher in Sanskrit subject in nonscheduled areas of the Jharkhand. The petitioners underwent the selection process and finally their names were recommended by the Jharkhand Staff Selection Commission for appointment, as they were selected in their respective categories. It is specific case of the petitioners that after publication of final results and recommendations made by the respondentCommission to the State, the respondent Nos. 2 and 3 sat tight over the matter for years together in the garb of order passed by the Full Bench of this Court, though there is no legal impediment for appointment in nonscheduled districts of the Jharkhand coupled with the fact that respondent authority has appointed the similarly situated candidates like the petitioners in the districts of Godda and Deoghar in February-March, 2019 itself.

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13 WPS No. 5700 of 2018 with other cases

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Argument Advanced by Counsel for the Parties in W.P.(S) No. 1011 of 2021 and W.P.(S) No. 1887 of 2021

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Mr. Amritansh Vats, learned counsel appearing for the petitioners submits that action of the respondents in not appointing the petitioners is highly arbitrary and illegal on the face of paragraph-66 of the Full Court judgment rendered in the case of Soni Kumari Vs. State of Jharkhand & Ors . Learned counsel further submits that as there is no legal bar with respect to appointment in non-scheduled districts, as held by the Full Bench of this Court, as well as by the Hon’ble Supreme Court in S.L.P.(C) No. 14812 of 2021, the respondents ought to have issued appointment letters to the petitioners.

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Per contra, counter affidavit has been filed. Learned counsel referring the averments made in counter affidavit submits that though there is no legal impediment in publication of the result/appointment in nonscheduled districts, as per opinion sought from the office of learned Advocate General vide letter no. 5974 dated 23.11.2020, but as per the letter issued by Department vide letter no. 1044 dated 18.2.2021, issued by the Department of Personnel, Administrative Reforms and Rajbhasa, Govt. of Jharkhand, the appointment / result of teachers has been stopped. Learned counsel in clear terms further submits that when any further direction / opinion will be received, process of appointment shall be made.

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Findings of Courts .

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The sole issues involved in all these writ petitions are:

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(i) Whether petitioners are entitled for appointment in the nonschedule areas in the subjects other than ‘History and Civics’ when appointments have already been made in non-schedule areas in the subjects of ‘History and Civics’?

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(ii) Whether Hon’ble Supreme Court has stayed appointments in the non-scheduled areas or the respondents are free to make appointments in view of clarifications issued by the Hon’ble Apex Court?

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The State Government took initiatives for appointment in the subjects of History and Civics in the non-scheduled areas. Regarding appointments in the other subjects, specific stand was taken by the State that

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14 WPS No. 5700 of 2018 with other cases

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due to pendency of Special Leave Petition before the Hon’ble Apex Court in appointments with respect to non-schedule districts, no steps have been taken by the State Government.

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In para-66 of the Judgment delivered by Hon’ble Full Bench of this Court in W.P.(C) No. 1387 of 2017 and other analogous cases, the Court has observed as under:

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“66. We also propose to make it abundantly clear that by the ad-interim order dated 18.09.2019 passed by this Court in these writ applications, the selection process was never stayed by the Court in the non-scheduled districts, though, as informed to us, it had erroneously been taken by the State Government like that. There was no stay for appointments on any post in the non-scheduled districts, or for that matter there was no stay for the appointments even in the scheduled districts, rather, only the operation of the Notification No. 5938, dated 14.07.2016 was stayed by this Court. In other words, the appointments could be continued to be made even in the scheduled districts, ignoring the aforesaid notification.”

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Several writ petitions were filed before this Court coupled with Interlocutory Applications as also the Intervention Application for the same or similar reliefs seeking immediate appointments on their respective and rightful posts as per their results. Directions were sought for to conclude recruitment/ selection process of the successful candidates by issuing letter of appointment as the petitioners including the interveners have already lost almost 1½ years of their service on account of arbitrary action of the State of Jharkhand.

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From perusal of documents brought on record, arguments advanced by learned Sr. Counsel as well as other counsels appearing for the parties and the clarifications given by the Hon’ble Apex Court as well as taking into consideration paragraph-66 of the Judgment passed by Hon’ble Full Bench of this Court, it transpires that the Full Bench was conscious of the fact that there was no reservation in the non-scheduled areas and as such it was open for the respondents – State to march ahead with the appointments. Even the State Government considering decision of the Hon’ble Full Bench and that of the Hon’ble Supreme Court proceeded with the appointment in History and Civics. The action of the respondents – State in not making further appointment in other subjects is not praiseworthy

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15 WPS No. 5700 of 2018 with other cases

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rather it can comfortably termed to be an arbitrary action since there was no stay on the appointments in other subjects also other than History and Civics.

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Admittedly appointment is not right of the candidate as has been held by Hon’ble Apex Court in the case of Shankarsan Dash v. Union of India , (1991) 3 SCC 47 but simultaneously the Court was of the view, as has been held in para-7 of the said Judgment, which reads as under:

¶171

“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. 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].”

¶172

[ emphasis supplied ]

¶173

Here in the instant case, it has also been brought to the notice of the Court that the similarly situated persons have been appointed in subject Sangeet as well as other subjects pursuant to the same advertisement in different districts, but for the reasons best known to the respondents, the appointments in other subjects could not be made. The reasons assigned by the State that in view of pendency of appeal before the Hon’ble Apex Court, the appointments are not being made, is not acceptable to this Court rather the same is turned down.

¶174

In view of submissions of the parties, documents brought o record and after perusal of different orders passed by the Hon’ble Apex Court as well as that of the Full Bench of this Court, the Court is of the view that there is no legal impediment in issuing appointment letters to the petitioners as they are the applicants for non-scheduled districts, subject to fulfilling the requisite qualification. The law is well settled that there cannot

¶175

16 WPS No. 5700 of 2018 with other cases

¶176

be class amongst class. Similarly situated persons cannot be discriminated. The respondents are bound to make appointments, subject to fulfilment of requisite eligibility by the petitioners.

¶177

The respondents are directed to publish results of the pending subjects and if the candidates fulfil the requisite qualification and there is no other legal impediment for the appointments, their cases be considered for appointment in accordance with law. The respondents are precluded from taking stand of pendency of Special Leave Petition before the Hon’ble Apex Court as the same has been clarified that in the cases of non-scheduled areas, the respondents are free to march ahead for appointments taking into consideration that there is no stay.

¶178

In the present pandemic scenario, when everything has been put to a halt, giving no scope for employment, the process of selection in the non-scheduled districts cannot be put to halt for an indefinite periods. It has to come to a logical end. The recruitment process has to be concluded by publication of results and issuance of appointment letters as per the eligibility criteria and vacancy position, in accordance with law. The entire exercise of appointments shall be concluded within a period of eight weeks from the date of receipt/ production of a copy of this order.

¶179

With the aforementioned observations and directions, all writ petitions stand disposed of.

¶180

RC/R.Kr.

Upashna Kumari v. State of Jharkhand through the Chief Secretary

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Upashna Kumari v. State of Jharkhand through the Chief Secretary

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