Allowed

Shyam Kishore Kumar v. the State of Jharkhand through the Pr Secretary School Education and Literacy Deptt

Jharkhand HC11 Sept 2024WPC/1853/2022

Case brief

AI extract

What is this about?

Teacher belonging to BC-II category was erroneously appointed under UR category by departmental mistake and later terminated as overage for UR category. The Court held overage grounds arbitrary, following its earlier decision in Dilip Kumar, quashed the termination order, reinstated the petitioner with consequential benefits, and allowed the writ petition.

What did the court decide?

Office Order Memo No. 295 dated 05.03.2022 cancelled appointment quashed; petitioner reinstated as Inter Trained Teacher Class I-V, Ramgarh, with joining accepted forthwith and consequential benefits

Shyam Kishore Kumar Vs the State of Jharkhand… — Service and Employment | Jharkhand HC (2024)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S) No. 1853 of 2022

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Shyam Kishore Kumar, aged about 50 years, son of Late Madho Prasad Rewar, resident of Village Sadma Kala, P.O. & P.S. Petarwar, District Bokaro

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....Petitioner

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Versus

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1. The State of Jharkhand, through the Principal Secretary, School Education & Literacy Department, Government of Jharkhand, having its Office at Project Building, P.O. & P.S. Dhurwa, District Ranchi.

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2. The Director, Primary Education, School Education & Literacy Department, Government of Jharkhand, having its Office at Project Building, P.O. & P.S. Dhurwa, District Ranchi

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3. The District Education Establishment Committee, through its Chairman Cum Deputy Commissioner, Ramgarh, having its Office at P.O. & P.S. Ramgarh, District Ramgarh

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4. The Deputy Commissioner, Ramgarh, having its Office at P.O. & P.S. Ramgarh, District Ramgarh

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5. The District Superintendent of Education, Ramgarh, having its Office at P.O. & P.S. Ramgarh, District Ramgarh

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.....Respondents

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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Rupesh Singh, Advocate For the Respondents: Mr. Munna Lal Yadav, S.C (L&C)-III

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12/11.09.2024

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Heard learned counsel for the parties.

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2. The instant writ application has been preferred

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by the petitioner for the following reliefs:

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(a) For quashing of Office Order as contained in Memo No. 295 dated 05.03.2022 (Annexure-1), issued by the District Superintendent of Education, Ramgarh, whereby and where under the concerned respondent has cancelled the appointment of the petitioner on the ground that the petitioner belonged to B.C.-II category, which under the relevant recruitment conditions had the upper age limit of 44 years for application and the petitioner was appointed in the Unreserved category, for which the upper age limit was 42 years and therefore appointment of the petitioner under Unreserved category has been found to be affected by departmental error whereby the petitioner was appointed in the Unreserved category and therefore it has been decided to terminate the services of the petitioner from the date of issuance of the Office Order.

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(b) Consequently, for a direction upon the respondents to reinstate the petitioner on the post of Inter Trained Teacher, Class- I to V in the District of Ramgarh with all consequential benefits and continuity of service.

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(c) For a direction upon the respondents to pay the salary of the petitioner for the period 02.12.2021 (date of issuance of first show cause) to 05.03.2022 (date of termination of service of the petitioner) during which period the petitioner has duly discharged his duties.

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(d) For a declaration that the condition as contained in Resolution issued vide Memo No. 662 dated 02.05.2019 particularly vide para-6 (c) & para-6 (f) are self-contradictory and inherently incongruous and hence not sustainable in the eyes of law.

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3. At the outset, the counsel for the Petitioner submitted that the prayer for salary for the period 02.12.2021 to 05.03.2022 has become infructuous as the Respondents have released the same during the pendency of the writ petition. It has further been submitted that the prayer for declaration that Para 6(c) & Para 6 (f) as not sustainable in the eyes of law is not being pressed since the same will not affect the grievance of the Petitioner in respect of the Termination of his services.

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4. The grievance of the petitioner is that he was terminated only on the ground that on the date of appointment, his age was more than the cut-off age prescribed for Unreserved Category and under such circumstances the Petitioner cannot be appointed under Unreserved Category.

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5. Learned counsel for the petitioner submits that the petitioner, applied pursuant to the advertisement, for the post of Inter Trained Teacher, Class-I to V under the Non-Para category. He further submits that the petitioner applied under BC-II category; however, his case was considered under Unreserved Category. Thereafter, the respondents themselves have appointed the petitioner

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under Unreserved category. He further draws attention to the impugned order of termination, wherein the respondents have admitted that the mistake has been committed by the office itself.

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It has been submitted that age relaxation is not any type of benefit under the reservation or recruitment rules. As per the recruitment rules, the reserved category will be having benefit of 5% relaxation in marks. So far as the age limit is concerned, it is governed by Memo No.2096 dated 25.04.2011 (Annexure-3 to the I.A. No. 7508 of 2023), wherein it is indicated about the age limits of the respective categories and it does not indicate that the age limits are under the reservation policy. Rather, it speaks that the age limits are fixed in view of the large scale unemployment for past several years in the State.

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In sum & substance, he submits that the age limit will not affect the merit and the petitioner, though being under BC-II category, he has qualified under U.R category. He has also relied on para 48 and 49 of the judgment passed in the case of Jitendra Kumar Singh and Another V. State of Uttar Pradesh and Others reported in (2010) 10 SCC 119 and submits that the concession in fee and age relaxation only enables certain candidates belonging to a reserved category to fall within the zone of consideration and provides a level playing field. The concession in age did not in any manner tilt the balance in favour of the reserved category candidate in preparation of final merit list.

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6. Relying upon the aforesaid submission, learned counsel prays that the impugned order be quashed and set aside. He further submits that since the appointment of the petitioner has been considered from 2019 on the basis of the advertisement of 2015 and draws attention to page No.115 of the writ application highlighting the stipulation that the persons who will be appointed in 2019, will be 3

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below in seniority to the other candidates who were earlier appointed.

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7. The facts in brief as narrated in the writ petition is that after counseling on 03.06.2019, the Respondents vide Letter No. 919 dated 06.08.2019 (page 53 of writ petition) cancelled the candidature of the petitioner and directed the Petitioner to submit all his documents and evidences by 16.08.2019 for consideration. The Petitioner submitted his response on 14.08.2019 along with enclosures in support of his case before the D.S.E. Ramgarh. Thereafter, Petitioner was issued 1^st letter of appointment on 17.10.2019 (at page 81 of writ petition). However, the same was kept in abeyance vide Memo No. 1238 dated 24.10.2019 (at page 84 of the writ petition). It is submitted that after due verification and satisfaction, the Respondents issued 2^nd letter of appointment on 16.01.2020 (page 85 of the writ petition). The merit list brought on record (page 88 of the writ petition) clearly indicates that the Petitioner was an applicant under BC-2 Category and was considered under U R Category by the Respondents.

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By reference to the second show cause notice contained in Letter No.1339 dated 08.12.2021 at page 108 of the writ petition, it has been submitted that the Respondents have alleged misrepresentation against the petitioner and violation of clause 6(gha)(iv) and clause 8 of the appointment letter. Clause 6 (gha)(iv) provides that candidate at the time of joining will have to give an undertaking that in the course of verification of certificates if it is found that the same are forged, the services will be terminated. Clause 8 of the appointment letter provides that candidate must give their joining only after being well informed of and satisfied of fulfillment of the conditions else candidate would be solely responsible for the same and his

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service will be liable to be terminated.

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Attention has been drawn of the Court to the impugned order of termination wherein it has been recorded that the appointment was a result of departmental mistake, implying that the Petitioner has not committed any misrepresentation. By referring to various annexure to the writ petition, it has been demonstrated that the Petitioner on every occasion has submitted the correct details of his candidature by his one or other reply to the Respondents. It is contended by the Petitioner that the clause referred to in the show cause notice is not attracted in his case.

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This Court finds that none of the above facts have been controverted or denied by the Respondents in their Counter Affidavit.

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It is submitted that the similar issue has been decided in the case of Dilip Kumar in W.P.(S) No. 5079 of 2022 vide order dated 20.08.2024 and this Court has held that the grounds taken by the respondents with regard to overage vis-à-vis U.R. Category is arbitrary. Accordingly, the decision of District Education Establishment Committee, so far it relates to the petitioner, be quashed and set aside and the concerned respondent be directed to issue formal letter of appointment to this petitioner.

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8. Learned counsel for the respondents by referring to paragraph nos. 10, 11 and 14 of their counter affidavits; submits that in compliance of the court’s order, the petitioner was called for counseling to comply the resolution no-662 dated 02.05.2019 of Director, Primary Education Jharkhand, Ranchi. After the counseling, it was found that petitioner's merit marks 54.61; which was more than the cut-off marks 52.66 of U.R Category, but the maximum age for U.R Category was 42 years only and the petitioner's age

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was 43 Years, 09 Months and 17 Days which is more than the maximum age limit of UR Category-42 years, therefore, the petitioner was not qualified for U.R Category.

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Under such circumstance, it was submitted by the Respondents that since the petitioner belonged to B.C.-II category, he was considered in B.C.-II category, but in BC-II category the cut off marks was 56.84 and the merit marks of the petitioner was only 54.61, which is less than the cut-off marks. So, in that category too, he could not qualify. Consequently, the District Education Establishment Committee in its meeting held 05.07.2019 vide its proceeding no-03 in serial no. 06 decided not to appoint the petitioner.

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He further submits that the then District Superintendent of Education Ramgarh erroneously put up the matter again before District Education Establishment Committee on 14.10.2019 and proposed for the appointment of the petitioner under UR Category, knowing the fact that the petitioner is overage for the said category. It was contended that as a consequence thereof, District Education Establishment Committee also recommended to appoint him. Thus, the petitioner was appointed on the post of Inter Trained Teacher (Class I-V) under non-para category vide Memo no- 117 dated 16.01.2020 by the then District Superintendent of Education, Ramgarh which is annexed in the writ petition as annexure 03 series.

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Counsel for the Respondents lastly submits that as per decision taken by District Education Establishment Committee, Ramgarh in its meeting held on 28.02.2022, D.S.E. Ramgarh (Respondent No.-05) vide its Memo no.-345 dated 15.03.2022 has written a letter to the Department of Education, to initiate the departmental proceeding against the erring DSE, Sri Raja Ram Sah as he had already been superannuated from service on 31.01.2020 from the post of

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DSE Ramgarh.

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9. Having heard learned counsel for the parties and after going through the prayer made in the instant writ application and also the judgment passed in the case of Dilip Kumar (Supra) , this Court is of the view that the order passed in the case of Dilip Kumar (Supra) is squarely applicable in the instant case.

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For brevity, paras 9, 10 and 11 are quoted hereinbelow:

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“ 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.

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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

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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 page798, wherein at para-6 the Hon’ble Apex Court has held as under:

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“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

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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, nonarbitrary 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 .”

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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 Paras48 and 49 the Hon’ble Apex Court has held as under:

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“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.

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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 .”

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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 NonEst 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.....”

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10. The respondents while defending their case has submitted that though the issue involved in the case of Dilip Kumar (Supra ) is one and the same, but there is

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difference; inasmuch as, in the case of Dilip Kumar (Supra), it was only four months above age and in the instant case it is one year nine months over age. The said contention of the respondent made at bar and the grounds taken in the counter affidavit is non-est in the eye of law; as this court has already held that the ground for rejection of overage under U.R. Category is arbitrary.

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This Court is of the opinion that decision to appoint the Petitioner was a conscious decision of the Respondents after being fully satisfied of his candidature after more than one round of verification; to be specific after three rounds of verification of the candidature if the Petitioner.. It seems that the decision of the Respondents to terminate the Petitioner from service has arisen after the new incumbent took over the Post of D.S.E. after retirement of the previous D.S.E. Sri Raja Ram Sah on 31.01.2020. It is also not disputed that the Petitioner never indulged in malafide means.

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Even if the contention of the Respondents is accepted, though not legally correct; it is now well settled that a person cannot be allowed to take advantage of his own wrong. In the impugned order, admittedly the Respondents have accepted error on their part.

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The fundamental Right to Life under Article 21 includes Right to Livelihood. Petitioner cannot be left to suffer for no fault on his part. The illegal action of the Respondents has not only exposed the Petitioner but also his entire family including children and dependants, to untold miseries and left struggling for survival due to the illegal act of Respondents. The employment of the Petitioner is the source for survival of his entire family. Termination of the Petitioner has jeopardized the future of his entire family. There may be many untold miseries a person or his family may face on account of loss of employment of the

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bread earner. It cannot be lost sight of the fact that the Petitioner to join his new service had to resign from his previous employment as Para Teacher.

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Further, Law and legal norms cannot be vulnerable to subjective interpretation of the interpreter, which is the case herein. The successor to the Post of D.S.E. Ramgarh has wrongly interpreted the Rules of recruitment or the advertisement by reading something which is not prescribed, while adopting the element of age limit to oust the petitioner from service. The age limit only enables the candidate to participate in the process of selection and nothing more.

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Law does not accept interpretive theories which give the reader the freedom to understand the text according to his subjective interpretation. Interpretation of a literary text is not binding but the interpretation of a legal text is. There must be binding interpretation of a statute or document having force of law and it cannot be left to the whims and fancies of the Respondents. The Hon’ble Supreme Court has already set at rest the effect of concession in fees, age, etc. in favour of reserved category candidates in the case of Jitendra Kumar Singh and others V.State of U.P & Ors reported in (2010) 3 SCC 119 . Hence the contention of the Respondents in support of the order of termination of the Petitioner is fit to be rejected.

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11. Accordingly, the office order as contained in Memo No. 295 dated 05.03.2022 (Annexure-1) issued by the District Superintendent of Education, Ramgarh, whereby the appointment of the petitioner has been cancelled on the ground that the petitioner belongs to B.C. Category and is over age as against the age limit if UR Category, is quashed and set aside.

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12. Resultantly, the petitioner stands reinstated on the post of Inter Trained Teacher, Class I to V in the district of Ramgarh. Respondents are directed to accept the joining of the petitioner forthwith, and all the consequential benefits be extended within a period of twelve weeks from the date of receipt of copy of this order.

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13. As a result, the instant writ application stands allowed.

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jk/AFR

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Shyam Kishore Kumar v. the State of Jharkhand through the Pr Secretary School Education and Literacy Deptt

Case brief

What is this about?

What did the court decide?

Shyam Kishore Kumar v. the State of Jharkhand through the Pr Secretary School Education and Literacy Deptt

Case brief

What is this about?

What did the court decide?

What the court decided

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