Jharkhand High Court

Reeta Mukta vs State Of Jharkhand; on 18 June, 2021

IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 5648 of 2018

Reeta Mukta ... PETITIONER
Vs.
1. State of Jharkhand;
2. Secretary, School Education and Literacy Department, Government of
Jharkhand, Ranchi.
3. Director, Primary Education, School Education and Literacy Department,
Government of Jharkhand, Ranchi.
4. District Superintendent of Education, Ranchi having its office at Court
Compound, P.O. - GPO, P.S. - Kotwali, District - Ranchi.
... ... RESPONDENTS

CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
(Through : Video Conferencing)

For the Petitioner : Mr. Rajendra Krishna, Advocate
For the Respondents : Mr. Gaurav Raj, Advocate

C.A.V. On. 16.03.2021 PRONOUNCED ON 18. 06.2021

Dr. S.N. Pathak, J. In view of outbreak of COVID-19 pandemic, case was taken up through
Video Conferencing and heard at length on various dates. Concerned lawyers had
no objection with regard to the proceeding which was held through Video
Conferencing and there is no complaint in respect to audio and video clarity and
quality and after hearing at length, the matter was reserved for Judgment and is
being disposed of finally.
PRAYER

2. In the instant writ application prayer has been made for issuance of
appropriate writ(s), order(s) or direction(s) or writ in the nature of Certiorari for
quashing order as contained in Memo No. 3032, dated 05.10.2018, issued under
the signature of District Superintendent of Education, Ranchi whereby and
whereunder petitioner who was working as an Assistant Teacher in Government
Middle School, Boreya, Kanke has been terminated as her service was found to
be void-ab-initio.

Petitioner has further prayed for a direction upon the respondents not to
give effect to order dated 05.10.2018, passed by respondent no. 4 and further to
direct the petitioner to continue in services as Assistant Teacher in Government
Middle School, Boreya, Kanke.

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FACTUAL MATRIX

3. Facts

of the case lies in a narrow compass. Pursuant to the Notification No. 1632, dated 05.09.2012, issued by the then Human Resource Development Department (Primary Education Directorate), the Statutory Rule being Jharkhand Primary Teachers' Education Appointment Rules, 2012 for appointment of Teachers in Primary School was constituted under the Proviso to Article 309 of the Constitution of India. Rule 14 of the said Rule prescribes the eligibility criteria. The 50% posts were reserved for those Para Teachers who had completed two years' of continuous service for direct appointment as Trained Teacher or Graduate Trained Teacher in different Schools of the State Government. Based on the said appointment Rule, an Advertisement was published for appointment to the post of Assistant Teachers in Government Middle Schools for only those persons who had experience of working as Para Teacher.

4. Case of the petitioner is that he had already passed the Teachers' Eligibility Test Examination which is evident from the Certificate given in favour of the petitioner. Pursuant to the Advertisement published on 12.02.2012 by the Jharkhand Education Project Council for appointment of Para Teachers, petitioner applied for the same and was duly selected in Aam Sabha (General Meeting) of the Village Education Committee held on 26.02.2012. The Gram Pradhan had certified on 19.03.2018 about the date of holding Aam Sabha (General Meeting) of the Village Education Committee, which was closed. Petitioner was asked to submit her joining in the office of Block Education Extension Officer, Kanke Block at Ranchi and, accordingly, petitioner submitted her joining on 04.01.2014 and the Block Education Extension Officer had accepted the joining of the petitioner.

5. It is further case of the petitioner that fulfilling all the eligibility criteria she had submitted her application pursuant to the advertisement no. 04/2015 for appointment to the post of Assistant Teacher and upon found eligible, the petitioner and other successful candidates were appointed vide office order issued vide Memo No. 3729, dated 31.12.2015, under the signature of District Superintendent of Education, wherein name of the petitioner figures at Sl. No.

117. Pursuant to issuance of Memo No. 173, dated 06.02.2016, petitioner had been directed to submit her joining in the Government Middle School, Boreya and for the same, petitioner had also been relieved by the aforesaid letter issued by the District Superintendent of Education, Ranchi. Thereafter, petitioner

submitted her joining in Govt. Middle School, Boreya on 08.02.2016. It is further case of the petitioner that though she was selected in the year 2012 but joined as Para Teacher on 04.02.2014 and subsequently she joined as an Assistant Teacher in the Govt. Middle School, Boreya on 08.02.2016. Thus, she had completed two years of working in the concerned School as a Para Teacher situated at Sukurhutu. Petitioner was also paid salary for the period and therefore, her working as a Para Teacher till January, 2016 is not at all discontinued.

6. It is further case of the petitioner that she had been served with show-

cause notice, as contained in Letter No. 2267, dated 29.07.2017 in which she was directed to file reply regarding her working experience as a Para Teacher which, according to the authorities, was not two years at the time of publication of Advertisement. The said show-cause was replied by the petitioner on 06.09.2017 and petitioner continued to work as an Assistant Teacher in Govt. Middle School, Boreya, Kanke. Petitioner was again served with a second show-cause notice dated 08.03.2018, issued vide letter no. 918, from the office of District Superintendent of Education at Ranchi asking her to file reply thereof. Petitioner continued to work as a Teacher in Govt. Middle School, Boreya, Kanke and filed her reply dated 21.03.2018 to the second show-cause notice. However, without considering the reply filed by the petitioner, respondent no. 4 issued an order under Memo No. 3032, dated 05.10.2018, terminating the petitioner from the services considering her application as ab- initio-void. Being aggrieved, petitioner has knocked door of this Court.

ARGUMENTS ON BEHALF OF THE PETITIONER

7. Mr. Rajendra Krishna, learned counsel appearing on behalf of the petitioner submits that respondents have acted in a pre-determined mind and issued the show-cause notice vide letter no. 2267, dated 29.07.2017 followed by second show-cause notice dated 08.03.2018, which was nothing but a mere formality to cover up their action against the petitioner. Respondents had already taken a decision against the petitioner and it was merely a formality to issue show-cause. From the internal inquiry, it would be evident that a decision had already been taken that appointment of the petitioner was illegal and as such she should be removed. Action of the respondents to act in such pre- conceived notion is not at all acceptable and hence, the same is fit to be interfered. It is specific case of the petitioner that she has neither misrepresented nor suppressed the material facts regarding her appointment and she was

appointed after proper verification of documents. Petitioner has unnecessarily been harassed by passing impugned order issued vide Memo No. 3032, dated 05.10.2018 and the same is fit to be quashed and respondents may be directed to allow the petitioner to continue in service as Assistant Teacher. Petitioner had been selected as a Para Teacher in the year 2012 and she joined in Govt. Middle School, Sukurhutu in the year 2014 and subsequently selected to join in Govt. Middle School, Boreya, Kanke.

8. Drawing attention of this Court towards supplementary affidavit filed on 01.03.2021, learned counsel submits that a Statutory Rule under the proviso to Article 309 of the Constitution of India, commonly known as Relaxation Rule has been made by the State of Bihar 28.11.1956 vide No. 111/ R-2010/ 55A - 11505, which is equally applicable in the State of Jharkhand also. Learned counsel further submits that the said Rule has also been applied in the case of Cosmas Bhengra Vs. State of Jharkhand and others reported in 2005(3) JCR 271 (Jhr.). It is always open to the competent authority to relax any condition of service in regard to any individual and a class of person. Petitioner had not made any misrepresentation and was duly selected after following due process and as such her case is a fit case where relaxation may be given.

9. Relying upon the case of Vikas Pratap Singh and others Vs. State of Chhattisgarh and others and other analogous cases, reported in (2013) 14 SCC 494, learned counsel submits that petitioner requires sympathetic consideration by this Court. Her appointment was made on the basis of properly conducted competitive examination and the same cannot be said to be misrepresentation on their part. The respondents should not be allowed to harass the petitioner which would cause undue hardship to her and ruin her life and career. Irretrievable loss in terms of life and livelihood would be caused to the petitioner who has now become overage and hence not eligible to appear in subsequent examination.

10. Learned counsel has further placed reliance in paragraphs 42 and 43 of the Judgment passed in the case of Bholanath Mukherjee v. Ramakrishna Mission Vivekananda Centenary College, reported in (2011) 5 SCC 464 : (2011) 2 SCC (L&S) 30, at page 481 which reads as under:

"42. There is another reason why no relief, at present, could perhaps be granted to the appellants. Throughout the proceedings before the High Court as well as before this Court, no interim relief was granted by restraining Respondent 3 from performing the functions of a Principal. He has continued to function on the

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aforesaid basis since his appointment on 14-5-1999 as Acting Principal and then on from 23-3-2001 onward as Principal. Even according to the appellants, at the time of his appointment, Respondent 3 had possessed the experience of only six years. Therefore, by now, he would have more than fifteen years of required experience for the post of Principal. Therefore, the ground that Respondent 3 was not qualified as he did not possess the necessary experience would also no longer be available to the appellants.

43. In similar circumstances, this Court, in Ram Sarup case3 observed as follows: (SCC pp. 170-71, para 3) "3. The question then arises as to what was the effect of breach of clause (1) of Rule 4 of the Rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularised as and when the appellant acquired the necessary qualifications to hold the post of Labour-cum-Conciliation Officer. We are of the view that the appointment of the appellant was irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years' experience of the working of labour laws in any one of the three capacities mentioned in clause (1) of Rule 4 or in any higher capacity, his appointment must be regarded as having been regularised. The appellant worked as Labour-cum-Conciliation Officer from 1-1-1968 and that being a post higher than that of Labour Inspector, or Deputy Chief Inspector of Shops or Wage Inspector, the experience gained by him in the working of labour laws in the post of Labour-cum- Conciliation Officer must be regarded as sufficient to constitute fulfilment of the requirement of five years' experience provided in clause (1) of Rule 4. The appointment of the appellant to the post of Labour-cum-Conciliation Officer, therefore, became regular from the date when he completed five years after taking into account the period of about ten months during which he worked as Chief Inspector of Shops. Once his appointment became regular on the expiry of this period of five years on his fulfilling the requirements for appointment as Labour-cum- Conciliation Officer and becoming eligible for that purpose, he could not thereafter be reverted to the post of Statistical Officer. The order of reversion passed against the appellant, was, therefore, clearly illegal and it must be set aside." A perusal of the above would show that the appellant therein did not possess the necessary experience of five years of the working of labour laws. It was held that his appointment was irregular since he did not possess the necessary experience. However, during the pendency of the proceedings, he had acquired the necessary experience and, therefore, the appointment must be regarded as having been regularised. The aforesaid ratio would be squarely applicable to the appointment of Respondent 3.

11. Learned counsel has further drawn attention towards para-3 of the Judgment passed in the case of Ram Sarup v. State of Haryana, reported in (1979) 1 SCC 168, at page 170, which reads as under:

"3. The question then arises as to what was the effect of breach of clause (1) of Rule 4 of the Rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularised as and when the appellant acquired the necessary qualifications to hold the post of Labour-cum- Conciliation Officer. We are of the view that the appointment of the appellant was irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years' experience of the working of Labour Laws in any one of the three capacities mentioned in clause (1) of Rule 4 or in any higher capacity, his appointment must be regarded as having been regularised. The appellant worked as Labour-cum-Conciliation Officer from January 1, 1968 and that being a post higher than that of Labour Inspector, or Deputy Chief Inspector of Shops or Wage Inspector, the experience gained by him in the working of Labour Laws in the post of Labour-cum-Conciliation Officer must be regarded as sufficient to constitute fulfilment of the requirement of five years' experience provided in clause (1) of Rule 4. The appointment of the appellant to the post of Labour-cum-Conciliation Officer, therefore, became regular from the date when he completed five years after taking into account the period of about ten months during which he worked as Chief Inspector of Shops. Once his appointment became regular on the expiry of this period of five years on his fulfilling the requirements for appointment as Labour-cum-Conciliation Officer and becoming eligible for that purpose, he could not thereafter be reverted to the post of Statistical Officer. The order of reversion passed against the appellant, was, therefore, clearly illegal and it must be set aside."

12. To buttress his arguments, learned Counsel has relied upon the following Judgments also:

i. Cosmas Bhengra Vs. State of Jharkhand and others reported in 2005(3) JCR 271 (Jhr.)

ii. Vikas Pratap Singh and others Vs. State of Chhattisgarh and others and other analogous cases, reported in (2013) 14 SCC 494;

ARGUMENTS ON BEHALF OF THE RESPONDENTS

13. Mr. Gaurav Raj, learned Counsel appearing on behalf of the State strenuously urges that instant writ petition is fit to be dismissed with costs. Petitioner did not fulfil the requisite criteria for appointment as on cut-off date her service was found to be ab-initio-void, resulting into her termination. As per Clause 13 of Regulation No. 4/2015, issued by the Department for appointment of Graduate Trained Teachers, it has clearly been mentioned that those Para Teachers who had completed two years or more service as a Para Teacher from 1st August of cross pending calendar years of appointment, would get reservation of 50%. Two years of continuous service as a Para Teacher is a pre- condition for appointment. As per the said provision, petitioner did not fulfil the

same as on 01.08.2015. In view of Certificate issued by Block Education Officer, Kanke, dated 25.06.2015, it appears that petitioner was working as a Para Teacher since 06.01.2014 and had not completed two years as on 01.08.2015 and as such was not entitled for reservation. Thereafter, a decision had been taken by the District Education Establishment Committee, Ranchi on 19.08.2018 whereby her service was directed to be treated as ab-initio-void.

FINDINGS OF THE COURT

14. Having heard counsel for the parties at length and after going through the relevant records, this Court is of the considered opinion that no interference is warranted in the present writ petition for the following facts and reasons:

(i) Two years' of continuous service as a Para Teacher is the pre-condition for appointment. Admittedly, petitioner did not fulfill the same as on cut- off date i.e. 01.08.2015. Upon perusal of Certificate issued by the Block Education Office, Kanke, dated 25.06.2015, it is crystal clear that petitioner was working as a Para-teacher from 06.01.2014 and had not completed two years' of service as on 01.08.2015 and as such, was not entitled for the reservation;

(ii) The terms and conditions for appointment has been laid down in the appointment rules i.e. Jharkhand Primary School Teachers' Appointment Rules, 2015, which are mandatory in nature.

(iii) As per Clause-13 of the Advertisement, it is mandatory provision that 50% of the total posts shall be filled-up from the candidates, who has working experience as a Para Teacher for two or more years without any break as on 1st August of the Calendar Year in which advertisement is published.

(iv) From bare perusal of Clause-12 of the appointment Rules, it appears that the concerned para teacher should have been working for the last two years preceding the date of advertisement or the cut off date for making such application. In the instant case, petitioner failed to fulfill the conditions and as such, her appointment has rightly been considered void-ab-initio.

(v) Reliance made by the petitioner in various Judgments is of no help to her as they are based on different facts which are not applicable in the instant case.

(vi) The Hon'ble Apex Court, in the case of Bedanga Talukdar Vs. Saifudaullah Khan and others reported in (2011) 2 SCC 85 has held therein that since petitioners failed to fulfill requisite conditions stipulated in the advertisement and could not submit valid caste certificate issued by competent authority within stipulated period, their candidatures under respective reserved category have rightly been rejected. Similar is the situation here where petitioner failed to bring on record the valid certificate of experience within stipulated time as per the conditions stipulated in the advertisement. The selection process has to be completed strictly in terms of the criteria mentioned in the Advertisement as held by the Hon'ble Supreme Court in the case of Bedanga Talukdar(Supra). Paragraph-29 and 32 of the Judgment rendered in the case of Bedanga Talukdar Vs. Saifudaullah Khan and others reported in (2011) 12 SCC 85, reads as under:

"29. 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." .........

32. In the fact of such conclusions, we have little hesitation in concluding that the conclusion recorded by the High Court is contrary to the facts and materials on the record. It is settled law that there can be no relaxation in the terms and conditions contained in the advertisement unless the power of relaxation is duly reserved in the relevant rules and/or in the advertisement. Even if there is a power of relaxation in the rules, he same would still have to be specifically indicated in the advertisement. In the present

case, no such rule has been brought to our notice. In such circumstances, the High Court could not have issued the impugned direction to consider the claim of Respondent 1 on the basis of identity card submitted after the selection process was over, with the publication of the select list."

(vii) The Hon'ble Supreme Court again in case reported in 2019 (3) SCC 672 in the case of High Court of Hyderabad -Vs- P. Murali Mohan Reddy and Ors has been pleased to retreat in Para 15 that appointment are to be made in terms of the stipulation contained in the Advertisement. Hon'ble Supreme Court in judgement reported in 1996(3) SCC 320 (J. Ashok Kumar -Vs- A.P and Ors.) has been pleased to hold that "Selection having already over and selected candidates having been appointed, relief refused

(viii) Petitioner has failed to fulfill requisite conditions stipulated in the advertisement and as such her case has rightly been rejected.

(ix) The Clause-12 of the Appointment Rules fell for consideration before this Court in W.P.(S) No. 5179 of 2014 with W.P.(S) No. 5188 of 2014 and the same was disposed of on 08.07.2015 holding that since petitioners therein failed to satisfy the aforesaid conditions, their cases were rightly rejected. Thus, the challenge to said Clause-12 of the Appointment Rules has already been put at rest and no interference can be made at this stage. Similar view has been taken by this Court in W.P.(S) No. 2321 of 2016, disposed of on 13.06.2018, After examining every aspects of the matter, this Court is not in a position to take a different view as what has been taken earlier by this Court as well as in a catena of decision passed by Hon'ble Apex Court,

(x) In the case of Rakesh Bakshi Vs. State of J & K reported in (2019) 3 SCC 511, it has been held that the eligibility of the candidates must be decided with reference to the qualification possessed as on cut-off date and the qualification acquired later in any point of time cannot make the candidate eligible.

(xi) It has been held in the Judgment passed by Hon'ble Apex Court in the case of State of T.N. v. G. Hemalathaa, reported in 2019 SCC OnLine SC 1113 that the instructions issued by the Commission are mandatory having the force of law and they have to be strictly complied with, strict adherence to the terms and conditions of the instructions as of paramount

importance. The Hon'ble Apex Court stated that the High Courts, in exercise of powers under Article 226 of the Constitution of India, cannot modify/ relax the instructions issued by the Commission. The Hon'ble Court further said that it cannot be said that such exercise of discretion should be affirmed by us, specially when such directions are in teeth of the instructions which are binding on the candidates taking the examination. The contention of Mr. Rajendra Krishna, learned counsel appearing for the petitioner regarding discretion and relaxation fails in view of aforementioned Judgment.

15. In view of aforementioned facts and circumstances and in view of settled principles of law, this Court is of the considered view that the prayer made in the writ petition cannot be accepted as the same amounts to violation of provisions of Articles 14 and 16 of the Constitution of India. If the contention of learned counsel for the petitioner is accepted, the same will amount to discrimination as equal opportunity has to be given to all appearing candidates. Admittedly, petitioner failed to fulfill the requisite conditions stipulated in the advertisement. She could not get the benefits of 50% reservation and rightly her case was turned down.

16. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, no case for any interference is made out and hence writ petition fails and the same is hereby dismissed.

(Dr. S.N. Pathak, J.)