Jagdanand Mahto vs State of Jharkhand

Mr. Virender Singh, C.J.—In all 17 persons (appellants herein), some of them already retired and others yet to retire and were/are the employees of Home Department as Chowkidar, moved applications for appointment of their legal heirs as Chowkidars on hereditary basis on account of Circular issued from the State of Jharkhand from time to time. Admittedly, these 17 appellants are not the party in W.P.(S) No. 2072 of 2007 filed by one Nandan Lohra who sought his appointment on the post of Chowkidar in Village Raghunathpur P.S. Chanho, District Ranchi taking the plea that his name was recommended by the entire villagers for the appointment as Chowkidar of the said village on retirement of his father as Chowkidar. The said writ petition was ultimately dismissed by the learned Writ Court observing that public post cannot be given to the legal heirs of the retired employees. A direction was also given to the State that all authorities concerned should take care of the matter that after the commencement of the Constitution of India, there cannot be any appointment on a public post on the basis of inheritance and there ought to be a public advertisement and the concerned candidate must compete with the other eligible candidates. The appellants have apprehension in their mind that their legal heirs will not be getting the appointments on account of the judgment of learned Single Judge. It is for that reason, they moved I.A. No. 5618 of 2014 seeking leave of the appeal to the Court to file accompanied L.P.A. in which there is also a delay of 1038 days, condonation thereof is sought through the medium of I.A.No. 5617 of 2014.

During pending of the instant matter, Mr. Tandon, learned counsel for the appellants by way of supplementary affidavit, brought to the notice of the Court that after the judgment of the learned Single Judge in W.P.(S) No. 2072 of 2007 a communication dated 23.05.2014 has been sent to all the Deputy Commissioners of the State by the Home Department, Government of Jharkhand for not making any appointment of the Chowkidars on the basis of inheritance and there is reference to the order of the learned Single Judge in the said communication. He, however, while giving an instance of Deoghar District, stated that aforesaid communication of 23rd May, 2014 was received by the Deputy Commissioner, Deoghar on 29.05.2014 and in derogation to the said communication, he made 9 appointments of Chowkidars on 30.05.2014. Apprehension in the mind of Mr. Tandon was that it is quite possible that such like appointments have been made in other districts. Mr. Rajesh Kumar, appearing for the State, however, was not aware of any appointments made after passing of the judgment of the learned Single Judge or issuance of the aforesaid direction by the Home Department dated 23.05.2014. He further submitted that State has now made Jharkhand Chowkidar Gradation Rules, 2015 for appointment of Chowkidars and in terms of those Rules, no appointments can be made in terms of inheritance.

The Court in the aforesaid background of facts sought a complete report from Mr. Rajesh Kumar with regard to each district of the State apprising the Court, whether any appointment(s) has been made by the Deputy Commissioner(s) concerned in derogation to the communication sent by the Home Department on 23.05.2014 in which reference is also made to the Single Bench judgment of this Court handed down in the aforesaid W.P.(S) No. 2072 of 2007. Despite taking three opportunities, he has not been able to provide the complete data to the Court for its perusal. It is not in good taste.

Projecting his difficulty in getting the complete information, Mr. Rajesh Kumar submitted that Home Secretary of the State is not responding to his communication either in writing or orally. We take a serious note of it.

Be that as it may, I.A. No. 5618 of 2014 filed by the present 17 appellants seeking leave to appeal to challenge the order of learned Single Judge on the ground that they were not the party in W.P. (S) No. 2072 of 2007 deserves to be dismissed as they, in any case, cannot ask for the appointment of Chowkidar on account of inheritance. They have otherwise not been able to carve out any ground much less sufficient ground for seeking condonation of huge delay of 1038 days in filing the accompanied Letters Patent Appeal (L.P.A. No. 437 of 2014). Accordingly, I.A. No. 5617 of 2014 and I.A. No. 5618 of 2014 stand dismissed. Resultantly, L.P.A. No. 437 of 2014 also meets the same fate.

Let us now advert to the aspect of illegal appointments of Chowkidars already made in Home Department purely on the basis of inheritance in the State of Jharkhand. Dealing with the same issue, Hon''ble Supreme Court in case "Surendra Paswan and Ors. v. State of Bihar and Ors." reported in 2010 (3) JCR 161 (SC) has held in para 10 to 15 as under:

"10. During the pendency of the appeals before the High Court, the Government of Bihar exercising power under Article 309 of the Constitution, made the Bihar Chowkidar Gradation Rules, 2006 vide notification dated 25.08.2006. Rule 3 related to the constitution of cadre and Rule 5 related to the appointment procedure, laying down the constitution of the selection committee, the educational and other qualifications and other eligibility criteria for appointment.

The order of the High Court dated 07.04.1997 which has attained finality, contained the following directions to respondents 1 to 3 :

(i) Decide whether there was any illegality or irregularity in the appointments of respondents 4 to 27 on 14.08.1995.

(ii) If there were no irregularities in their appointments, respondents 4 to 27 should be permitted to be continued on the posts.

(iii) If there were any irregularities in their appointment, the District Magistrate, Madhepura, should take fresh steps for appointment and in that event, the appellants should be given an opportunity to compete with others on merits (without giving them any advantage on account of their being legal heirs/wards of erstwhile Chowkidars/daffedars).

In view of the order dated 07.04.1997 having attained finality, the appellants cannot claim any right to be appointed as legal heirs/nominees of erstwhile Chowkidars/daffedars. Therefore, the question of either examining the validity of the Circular dated 20.12.1995 or considering whether the appointment of appellants was in terms of the said Circular, does not arise.

In compliance with the order dated 07.04.1997, the Divisional Commissioner, Kosi, considered the validity of the appointment of respondents 4 to 27 and by his order dated 22.12.1997 found that there were several irregularities in their appointments made on 14.08.1995. But instead of thereafter following the direction of the High Court to have a fresh open selection, he directed the District Collector to consider the cases of appellants individually to find out whether they were eligible for appointment. The second part of the direction was found to be against the order dated 07.04.1997, and therefore it was set aside on 17.09.1999. Therefore the question of permitting respondents 4 to 27 to resume and continue on the posts also does not arise.

As a result, the only course remaining is to direct implementation of the last direction contained in the order dated 07.04.1997, that is, to have a fresh open selection process on merits. However, in view of the subsequent events, certain modifications are required in regard to the authority to conduct the fresh selections and in regard to age relaxation for appellants and respondents who were earlier appointed and whose appointments have been found to be invalid/irregular.

We therefore, dispose of this appeal with the following directions:

(i) The direction contained in the High Court''s order dated 7.4.1997 to hold fresh selection process for the posts of chowkidars is reiterated.

(ii) Having regard to the fact that the Bihar Chowkidar Gradation Rules, 2006 have come into force, the selections will be done by the Selection Committee constituted as per the said Rules, in accordance with the said rules, instead of by the District Collector.

(iii) Appellants and the respondents 4 to 27 will be entitled to apply for the post, subject to fulfilling the eligibility criteria as per the said Rules. However, age relaxation shall be given in the case of appellants and respondents 4 to 27 and they will be entitled to apply, irrespective of their present age, subject to fulfilment of eligibility requirements.

(iv) Respondents 1 to 3 are directed to initiate the process of selection and complete the same within six months and till such selection and appointment, the present incumbents will be entitled to continue as chowkidars purely on ad hoc basis."

In W.P. (S) No. 2072 of 2007 also while dismissing the writ petition of aforesaid Nandan Lohra direction was given to the State that all authorities concerned should take care of the matter that there cannot be any appointment on a public post on the basis of inheritance and that thereafter communication was sent to all the Deputy Commissioner(s) by the Home Department on 23.05.2014 referring to the order of the learned Single Judge in the said writ petition (W.P.(S) No. 2072 of 2007). Otherwise also, after Jharkhand Chowkidar Gradation Rules, 2015 came into being, the legal heirs of the appellants cannot get appointment. We, therefore, take suo-motu cognizance of the instant matter and treat it as an issue concerning the larger public interest. Let Registry diarize it as Public Interest Litigation.

Since the Home Secretary of the State has not bothered to respond to the communication of Mr. Rajesh Kumar, learned State Counsel, he is directed to be present in the Court in person on the next date of hearing with a complete data relating to each district vis-a-vis the appointments of the Chowkidars in his department after the judgment of Supreme Court in case Surendra Paswan (Supra) and the judgment rendered in W.P.(S) No.2072 of 2007. He is directed to file his own affidavit in this regard after getting the complete information from all the Deputy Commissioner(s) of each district so that necessary directions are issued in this regard on the next date of hearing.

We just grant one week''s time for this purpose, as the matter has already been delayed at the end of the Home Department.

List again on 02.03.2016.

Since the instant matter has been treated as Public Interest Litigation, we request Mr. Manoj Tandon to assist the Court as Amicus Curiae.

As requested, copy of the order shall be provided to Mr. Rajesh Kumar, learned G.P. V. today itself under the seal and signature of the Court Master so that it is transmitted to the Home Secretary for its compliance.