Santosh Kumar vs State Of Jharkhand And Ors

Heard Mr. Rishi Pallava, learned counsel for the petitioner, Mrs. Vandana Singh, learned counsel for the respondent-State, Mr. Anshuman Kumar,

learned counsel for the respondent Nos. 7, 9 and 10 and Mr. Rajendra Krishna, learned counsel for the respondent no. 8..

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising

due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been

heard.

The petitioner has preferred this writ petition for quashing of part of Office Order contained in Memo dated 05.01.2016 particularly entry at SI. No.

71, 116, 141 and 153 so far as it relates to appointment of respondent nos. 7 to 10 respectively. Prayer has also been made for cancellation of

appointment of respondent nos. 7 to 10 on the post of Assistant Teacher on the ground of manipulation and illegality done in their appointment.

The Government of Jharkhand had advertised Advertisement No. 03/Palamu/2015 dated 04.07.2015 for appointment on the post of Intermediate

Trained Assistant Teacher/Intermediate Trained Urdu Teacher for the district of Palamau. The said advertisement has been annexed as annexure-1

to the writ petition. The petitioner is Master of Arts (History) as well as passed Teacher Training Examination and Teacher's Eligibility Test and in

view of fulfilling all the criteria filled the form pursuant to advertisement dated 04.07.2015. In para 11 of the writ petition, the petitioner has stated that

since the documents were being obtained by the petitioner under R.T.I, that is why the writ petition was filed belatedly. Altogether 1493 forms were

filled up and a complete chart of form entry of all applications against vacancy for the post of Plan/Non-Plan Intermediate Teacher was prepared.

The entry so far as it relates to the petitioner was done at SI. No. 1377 and given merit marks as 65.496.

Mr. Rishi Pallava, learned counsel appearing on behalf of the petitioner in support of prayer made in the writ petition relied on certain Clauses of the

advertisement. He refers to Clause 3 to 5 which states about the eligibility condition. He refers to Clause 6 to 8 which is with regard to admissibility

under different category. He submits that so far as Clause 9 to 14 is concerned that is with regard to reservation. He submits that so far as

reservation is concerned, all the eligible reservation to different categories only 13 posts for Non-Para, Backward Category was advertised out of

which 7 posts were for male candidates and 6 posts for female candidates. He submits that Clause 15 to 17 of the advertisement prescribes the

procedure. So far as respondent nos. 7 to 10 are concerned, their appointments have been made illegally dehors the rules of advertisement. He

submits that the respondent no. 7 has appeared in the TET Examination as MBC candidate and got the TET Examination Certificate, issued by the

Jharkhand Academic Council, Ranchi under MBC but he filled form under BC category by omitting M from entry made under category of the TET

Examination Certificate and making it BC category after manipulation done by him. He submits that so far as respondent no. 8 is concerned, he has

passed TET Examination under Non-Handicapped Category but applied under handicapped category and ultimately got selected and appointed under

handicapped category. To substantiate this argument, he draws attention of the Court to the documents annexed as Annexure 7 and 7/1 to the writ

petition which is certificate of respondent no. 8. He submits that only for gaining employment as the respondent no. 8 was over age, the handicapped

category certificate has also been obtained. He submits that so far as respondent nos. 9 and 10 are concerned, they belong to Teli Community which

was under Backward Category-B.C-II category prior to 23.07.2015 but vide Resolution No.6548 dated 23.07.2015 same has been deleted from

Backward Category BC-II and entered under Most Backward Category B.C-1 category. He submits that respondent nos. 9 & 10 have been

appointed under BC.-II category which is against the resolution of Government of Jharkhand. To substantiate this argument, he draws the attention of

the Court to the document annexed as Annexure 8/2 of the writ petition obtained under the Right to Information Act. He refers to Annexure -6 page

76 which is document with regard to respondent no. 7 which shows that the respondent no. 7 has submitted application under BC category. He draws

the attention of the Court to the counter-affidavit of the respondent no. 7 particularly annexure-B which is certificate of the respondent no. 7 and

submits that this certificate is in view of category of MBC which has been received by the JAC authority on 14.10.2015. He submits that once an

application is filled up there is no occasion to the JAC to allow any rectification in filling the form. On these grounds, learned counsel for the petitioner

submits that the case of the petitioner is fully covered with the judgment of the Division Bench of this Court in "" Mosrat Ziya Tara Vs. State of

Jharkhand"" reported in (2016) 4 JLJR 290. He relied on paragraphs 5, 7, 10, 11, 16, 17, 22, 31, 40, 41 and 43 of the said judgment.

Learned counsel for the petitioner further submits that the judgment of the Division Bench has been affirmed by the Hon'ble Supreme Court in

S.L.P. (Civil) No. 24947 of 2016 vide order dated 28.11.2017 except part of cost which has been expunged by the Hon'ble Supreme Court.

Mrs. Vandana Singh, the learned counsel appearing on behalf of the respondent-State submits that there is no illegality in the procedure followed in

appointment of respondent nos. 7 to 10. She refers para 13 of the counter-affidavit in which it has been disclosed that so far as respondent no. 7 is

concerned, he got 57.33 % marks whereas the petitioner has got 56 % marks. She submits that in view of Jharkhand Elementary School Teachers

Appointment Rule, 2012, since the petitioner got 56% marks and respondent no. 7 has got 57.33% marks in TET Examination, in view of Rule 21(ii)

(b) of the Rule, the name of respondent no. 7 was placed prior to the petitioner in the merit list. She submits that so far as respondent no. 8 is

concerned, he has passed the TET Examination with 64 % marks. So far as the allegation of the petitioner, she submits that the allegation is being

verified from the original records, if any discrepancy is found, proper action in accordance with law shall be taken. She submits that so far as

respondent nos. 9 to 10 are concerned, they have been considered under B.C.-II category in view of the fact that they have applied for the post prior

to 27.11.2015 i.e. clarification issued by the State Government and cut off date was fixed as 07.08.2015.

Mr. Rajendra Krishna, learned counsel appearing on behalf of the respondent no.8 submits that the handicapped certificate of the respondent no. 8

was issued by the competent authority and that certificate is not under challenge and if certificate of the respondent no.8 is not in cloud, there is no

occasion to make such allegation against respondent no. 8. He submits that TET Examination is only examination to test eligibility for being teacher

and passing the examination. He submits that there is no illegality in the appointment of the respondent no. 8.

Mr. Anshuman Kumar, learned counsel appearing on behalf of respondent nos. 7, 9 and 10 submits that in view of advertisement, procedures have

been followed thereafter only respondent no. 7, 9 and 10 have been appointed. He submits that there is no illegality in appointment of respondent nos.

7, 9 and 10. He refers Clause 8 of the said advertisement and submits that seven years relaxation was provided to the persons who were appearing in

second time in the said examination. He refers to Clause 11 and submits that it has been stated therein that reservation will be provided in the said

recruitment. He refers to Clause 14 and submits that reservation will be provided against caste certificate submitted by the candidates. He refers to

Clause 16 and submits that in the counselling if everything to be found to be genuine, the appointment was required to be made. He submits that

following all the criteria of the above advertisement, appointments of the respondent nos. 7, 9 and 10 have been made. He submits that respondent no.

7 belongs to BC-II category which has been considered in view of caste certificate dated 03.02.2001 for appearing in TET examination. He submits

that so far as respondent nos. 9 and 10 are concerned, they are having valid caste certificate. On these grounds learned counsels for the respondents

submit that the writ petition is fit to be dismissed as there is no illegality in the impugned appointment of respondent nos. 7 to 10.

In view of above submissions of the learned counsel for the parties, the Court has gone through the materials on record and finds that only

question is required to be answered by this Court in this writ petition as to whether in terms of advertisement and subsequent clarification letter of

2015, the appointment of the respondent nos. 7 to 10 have been made or not. These two issues are interacted, hence both the issues are taken up

together simultaneously.

From perusal of advertisement, it transpires that Clause 20 of the said advertisement shows that the conditions are clear that precaution be taken

in filling the form. It has also been clarified that pursuant to any illegality, the rectification later on can not be allowed to be done. This was condition

precedent upon the candidates to fill up the form carefully. From perusal of Annexure 7/1 which is certificate of the respondent no. 7 wherein

category of the respondent no. 7 has been shown as B.C and from perusal of counter-affidavit of the respondent no. 7, where in certificate of the

respondent no. 7 has been annexed as Annexure-B and category has been shown as MBC and in clear terms it has been noted that the same has

been received on 14.10.2015 and form was filled up on early date and the examination was already completed. Thus, it is clear that the BC category

of the respondent no. 7 was changed by way of making manipulation in MBC certificate which has been received on 14.10.2015 after filling up

application form. It transpires and suggests that this was allowed after filling up application form. The circular pursuant to information sought by the

petitioner through R.T.I., information was provided to the petitioner by letter dated 05.08.2017 contained in Annexure 8/2 wherein it has been provided

that in view of the clarification letter dated 27.11.2015 of the Department of Personnel, Administrative Reforms and Rajbhasha Department, caste

Teli has been brought on record as BC.-1 Category and the cut-off date was fixed as 23.07.2015. The respondent no. 9 and 10 applied under B.C.-II

category on 29.07.2015 wherein clarification letter dated 27.11.2015 is already there wherein cut-off date has been fixed on such change w.e.f.

23.07.2015 and knowingly the respondent no. 9 and 10 have applied in B.C-II category and on the basis of that their case has been considered and

they have been appointed which is against the well-settled principle of law. So far as respondent no. 8 is concerned, it has been alleged that in the

TET examination he was non handicapped candidate which was held in the year, 2013. The respondent no. 8 has obtained certificate on 27.11.2013.

In view of above discussions and on perusal of documents as discussed here-in-above, it is clear that so far as respondent no. 7, 9 and 10 are

concerned, due process has not been followed, as respondent no. 7 filled up form under B.C. category which was substituted under MBC category

and receiving of that w.e.f 14.10.2015. Thus, it is clear violation of Clause 20 of the above advertisement. Reference may be made to the judgment in

the case of ""Bedanga Talukdar Vs. Saifudaullah Khan"" reported in (2011) 12 SCC 85, wherein paragraphs 29 and 30, the Hon'ble Supreme Court has

held as under:

We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public

office have to be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any

undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection

procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be

any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the

relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such

power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This

would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and

compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14

and 16 of the Constitution of India.

A perusal of the advertisement in this case will clearly show that there was no power of relaxation. In our opinion, the High Court committed an

error in directing that the condition with regard to the submission of the disability certificate either along with the application form or before appearing

in the preliminary examination could be relaxed in the case of Respondent 1. Such a course would not be permissible as it would violate the mandate

of Articles 14 and 16 of the Constitution of India.

It is an admitted position that that respondent nos. 9 and 10 submitted the form under B.C.-II category after 23.07.2015 which was cut- off date of

Teli Caste to be brought under B.C.-1 category. The respondent nos. 9 and 10 have been considered under B.C.-II category in the light of said

Circular. It was wrongly considered under B.C-II category. The final appointment letter was required to be made pursuant to the scrutiny of the

certificate. The Circular of 2015 was framed by the State Government and that Circular was required to be followed in true letter and spirit by the

State Government. In the said illegality if the Court will not exercise under Article 226 of the Constitution of India, right of the petitioner to be

considered for the post, will be frustrated. Accordingly, the issues framed here-in-above are answered in positive. The appointments of the respondent

nos. 7, 9 and 10 are held to be illegal and liable to be terminated forthwith. So far as respondent no. 8 is concerned, he may have passed the TET

examination under non-handicapped category but he may obtain any injury later on and certificate to that effect has been issued after passing of the

TET examination. Thus, it cannot be presumed that the certificate obtained under handicapped category by the respondent no. 8 said to be false and

any injury can happen to any person at any time. The certificate of the respondent no. 8 with regard to handicapped category is not under challenge.

The respondent-State in the counter-affidavit in para 14 has disclosed that with regard to age of the respondent no. 8, the matter is being verified from

the original records, if any discrepancy is found proper action in accordance with law shall be taken.

In view of these statements of the respondent-State made in the counter-affidavit, the respondent-State is directed to conclude this verification

within eight weeks from today and pass appropriate order. If the respondent-State comes to conclusion that there is any manipulation created by the

respondent no. 8, the respondent-State shall take a decision and will pass reasoned order within the aforesaid period with regard to respondent no. 8.

With the above observations and direction, the writ petition stands allowed and disposed of. So far as second prayer made in the writ petition is

concerned, the petitioner is set at liberty to represent himself before the respondent no. 4 for consideration of his case to the effect as to whether

pursuant to these developments, the petitioner is coming under the zone of consideration or not, within 12 weeks.

I.A if any also stands disposed of.