Jharkhand High Court
Mritunjay Prasad Singh vs Jharkhand Urja Vikas Nigam ... on 15 March, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A No. 446 of 2016
Mritunjay Prasad Singh, son of Baleshwar Prasad
--- --- Appellant
Versus
1. Jharkhand Urja Vikas Nigam Limited, through its Chairman-cum-
Managing Director, Ranchi
2. Secretary, Jharkhand Urja Vikas Nigam Limited, Ranchi
3. Joint Secretary, Jharkhand Urja Vikas Nigam Limited, Ranchi
--- --- Respondents
With
L.P.A No. 459 of 2016
Subhasish Sengupta, son of late P.K. Sengupta
--- --- Appellant
Versus
1. Jharkhand Urja Vikas Nigam Limited, through its Chairman-cum-
Managing Director, Ranchi
2. Secretary, Jharkhand Urja Vikas Nigam Limited, Ranchi
3. Joint Secretary, Jharkhand Urja Vikas Nigam Limited, Ranchi
--- --- Respondents
With
L.P.A No. 460 of 2016
Avinash Singh Bharti, son of Sri Parmanand Singh --- --- Appellant
Versus
1. Jharkhand Urja Vikas Nigam Limited, through its Chairman-cum-
Managing Director, Ranchi
2. Secretary, Jharkhand Urja Vikas Nigam Limited, Ranchi
3. Joint Secretary, Jharkhand Urja Vikas Nigam Limited, Ranchi
--- --- Respondents
---
CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mrs. Justice Anubha Rawat Choudhary
Through : Video Conferencing
---
For the Appellant(s) : Mr. Manoj Tandon, Advocate
For the Respondents : Mr. Mukesh Kumar Sinha, Advocate
---
24/15.03.2021 Appellants have been reverted to their substantive posts from the post
of Accounts Officer by the order dated 10.11.2014 passed by the respondent -
Board which were subject matter of three writ petitions from which these
appeals arise. Appellants Mritunjay Prasad Singh, Subhasish Sengupta and
Avinash Singh Bharti in the respective appeals were working on the
substantive posts of Accounts Assistants and Head Clerk respectively when
they applied for appointment to the post of Accounts Officer under
Advertisement No.1 of 2007 (Annexure - 1).
2. Under the said advertisement, 17 posts (General 09, Schedule Caste 02,
Schedule Tribe 04 and OBC 02) were notified for recruitment to the post of
Accounts Officer in the Jharkhand State Electricity Board (hereinafter referred
to as 'JSEB'). Minimum educational qualification was Chartered
Accountant/ICWA/MBA (Finance) from any reputed Government recognized
Institution/University. The probation period was 3 (three) years from the date
of appointment. The minimum and maximum age as per Clause 6 (i) was 21
years and 32 years as on 01.10.2007. Clause 6 (ii) provided for relaxation of
maximum age limit to 50 years for the qualified employees of JSEB. Clause 6
(iii) provided age relaxation for reserve category candidates as per rules and
regulations of Jharkhand Government. Xavier Labour Relation Institute
(hereinafter referred to as 'XLRI'), Jamshedpur was appointed as the
recruitment agency. By letter dated 16.12.2007 (Annexure 2), it provided the
list of successful candidates and wait list for General category, ST category
and OBC category in the order of merit. A separate list of 10 JSEB employees
in the order of merit was also recommended by the instant letter dated
16.12.2007 in which the name of these 3 (three) appellants figured at Sl. No.6,
8 and 7 respectively. Appellants Mritunjay Prasad Singh and Avinash Singh
Bharti were appointed on 16.08.2008 and Subhasish Sengupta was appointed
on 26.08.2008 on the post of Accounts Officer. A show-cause notice was
issued upon them on 13.08.2009 stating that they have obtained temporary
appointment on the post of Accounts Officer under Advertisement No.1 of
2007 which was not meant for internal candidates/vacancies. They did not
qualify the eligibility criteria and experience for 9 years as Accountant/Junior
Accounts Officer for being promoted under 35% promotee quota. They did not
fulfil the educational criteria prescribed under Rule 7 (i) of Accounts Cadre
Rules, 1991. Thus, they have been able to obtain appointment under
Advertisement No.1 of 2007 meant for open recruitment. They were asked to
show-cause as to why their temporary appointment be not cancelled and for
this act of theirs, disciplinary enquiry be not initiated. Petitioners submitted
their reply. They also claimed that they were fulfilling the educational
qualification of MBA (Finance).
3. JSEB after consideration of the reply, by order dated 10.11.2014
reverted them to their substantive posts. It is not in dispute that appellants had
not been confirmed on the substantive posts of Accounts Officer. Being
aggrieved, they approached the writ court in 3 (three) separate writ petitions,
which have been decided by the impugned judgment dated 12.07.2016. While
dismissing the writ petitions, the learned Single Judge held as under:
"8. Having heard learned counsels for both the sides and upon
going through the record, I find force in the submission of the learned
counsel for the Nigam that the advertisement was never issued for the
selection of internal candidates / employees of the Nigam, rather the post
were advertised for direct recruitment from open market. In the said
advertisement, only age relaxation up to 50 years was given to the
qualified employees of the then JSEB, for giving them equal opportunity
to compete with the candidates from open market and the selection had to
be made according to the merits only. The selection process was
completed and the name of the selected candidates was also forwarded
by the XLRI to the then JSEB, but the names of the petitioners did not
find place in the list of selected candidates. This apart, the 1991 Rules,
which have been brought on record as Annexure-A to the counter
affidavit clearly shows that the post of Accounts Officers are to be filled
up by direct recruitment as also through promotion. For direct
recruitment, the prescribed qualification is charted accountants or ICWA
or MBA in Finance from any Government recognised Institutions /
Universities, whereas for promotion, the Rules provide that feeder post
for promotion of the Accounts Officers is from Accountant / Junior
Accounts Officer. The documents brought on record clearly show that the
petitioners were neither working as Accountant nor Junior Accounts
Officer, rather the petitioners were working on the post of Accounts
Assistants and Head Clerk. In other words, the petitioners were not even
working on the feeder posts for promotion to the post of Accounts Officer,
and as such they could not be considered even for promotion as internal
candidates, and for the posts to be filled up by direct recruitment, the
petitioners could not compete and their names did not find in the list of
selected candidates.
9. In view of the aforementioned discussions, I find that the
appointments of the petitioners as Accounts Officer against the posts to
be filled up by direct recruitment, are ab initio absolutely illegal and
cannot be sustained in the eyes of law. The petitioners have rightly been
given the notice to show cause as to why their appointments as be not
canceled and upon giving adequate opportunity to the petitioners, their
appointments have been canceled. In my considered view, there is no
illegality in the impugned order dated 10.11.2014 passed by Respondent
No.3 as contained in Annexure-8 in W.P.(S) No.5868 of 2014 and
Annexure-10 to the other two writ applications.
10. There is no merit in these writ applications and the same are
accordingly, dismissed."
4. In order to assail the impugned findings, appellants, inter alia, contend
as follows:
(i) The appellants fulfil the eligibility criteria under the
advertisement as per Rule 7(i) of the 1991 Rules.
(ii) The Advertisement No.1 of 2007 was also meant for internal
candidates as age relaxation up to 50 years was permissible under
Clause 6 (ii) of the advertisement.
5. XLRI was appointed as the recruiting agency as per letter dated
08.06.2007. XLRI also supplied separate list of JSEB employees in which the
name of the appellants appeared. The Resolution dated 18.01.2008 of JSEB
(Annexure-3) shows that there were 2 (two) posts available for internal
candidates under the 5% promotional quota, one in General category and one
in Schedule Tribe category. There were total 41 sanctioned posts of Accounts
Officer, out of which 33 posts were vacant. The total vacant posts under direct
recruit category was 20; 10 for General category, 05 for Schedule Tribe
category, 02 for Schedule Caste category and 03 for OBC category.
6. Appellants have placed reliance upon an order dated 31.07.2008 passed
in W.P.(S). No.6566 of 2007 at page 210 of L.P.A. No.446 of 2016. This writ
petition was preferred by Jharkhand Power Workers' Union, Ranchi seeking
quashing of the Advertisement No.1 of 2007 with a further prayer to direct the
respondents to fill up the vacant posts of Accounts Officers and Law Officers
from eligible and qualified departmental employees. It is submitted that the
learned Single Judge while disposing of the writ petition directed the
respondents to fill up the vacancies on the posts of the Accounts Officers in
accordance with the Rules and Regulations of the Board and also to consider
the possibility of the acceptance of the petitioner's candidature, preferably
within a period of 3 (three) months. That is how the appellants' applications
were considered under the advertisement and a separate list of qualified JSEB
employees was submitted by the recruiting agency XLRI, Jamshedpur.
Appellants contend that they were holding the posts of Accounts Officer for a
period of 6 years from 18.08.2008 till they were reverted on 10.11.2014. They
were entitled to protection from arbitrary reversion / reduction in rank on the
same principles as prescribed under Article 311 (2) of the Constitution of India
since, JSEB is a 'State' within the meaning of Article 12.
7. Learned counsel for the appellants Mr. Manoj Tandon has placed
reliance upon the decision of the Apex Court in the case of "Parshotam Lal
Dhingra Vs. Union of India" reported in AIR 1958 SC 36 and "P.C. Wadhwa
Vs. Union of India & Anr." reported in AIR 1964 SC 423 (paragraph 15). He
submits that twin tests have been laid down by the Apex Court in the case of
Parshotam Lal Dhingra (Supra) followed in the case of P.C. Wadhwa
(supra) to test whether a servant has been punished and the termination of
service be taken as a dismissal or removal from service or the reversion to his
substantive rank regarded as a reduction in rank, contrary to the requirements
of the rules and Article 311. The twin tests are:
(i) Whether the servant has a right to the post or the rank, or
(ii) Whether he has been visited with evil consequences.
8. Learned counsel for the appellants submits that appellants have
appeared and qualified as internal candidates under Advertisement No.1 of
2007 and therefore, have been rightly appointed to the post of Accounts
Officer by the JSEB. Therefore, they have a right to the post or the rank. Their
reversion has entailed adverse civil consequences without following the
procedure prescribed under Article 311. They have not only been reduced in
rank, but they would also suffer monetarily and their future chances of
promotion to higher posts have also been curtailed without due procedure of
law. No disciplinary enquiry was conducted though the show-cause notice
dated 13.08.2009 indicated so. It is submitted that the learned Single Judge has
committed an error of law by holding that the advertisement was never issued
for the selection of internal candidates / employees of the Nigam, rather the
posts were advertised for direct recruitment from open market. Petitioners
being duly qualified on educational criteria and permitted to apply with age
relaxation under Advertisement No.1 of 2007, have been rightly appointed to
the post of Accounts Officer pursuant to the recruitment test which has been
arbitrarily and illegally denied to them without the procedure prescribed in law
after 6 years of their appointment. It is submitted that therefore, the impugned
judgment may be set-aside.
9. Learned counsel for the respondent JSEB (now JUVNL) submits that
the Advertisement No.1 of 2007 was issued for filling up of the 17 posts of
Accounts Officer through direct recruitment. It only permitted age relaxation
to qualified employees of JSEB to compete with the open candidates. XLRI
forwarded a list of 9 General category candidates, 4 Schedule Tribe category
candidates, 2 OBC category candidates and 10 candidates from the panel of
JSEB employees i.e., total 25 candidates against 17 advertised posts.
Appellants Mritunjay Prasad Singh and Avinash Singh Bharti were
provisionally appointed on 16.08.2008 and Subhasish Sengupta was
provisionally appointed on 26.08.2008. They were never confirmed on the
posts of Accounts Officer since show-cause notice was issued on 13.08.2009
i.e., within one year of their appointment as to why they be not reverted to
their substantive posts for the reasons referred to in the foregoing paragraphs.
After consideration of the show-cause of the appellants, by a Resolution of the
Board their appointment as Accounts Officer was revoked. They have been
reverted to the substantive posts of Accounts Assistant or Head Clerk in the
individual cases.
10. Learned counsel for the respondents submits that the Accounts Cadre
Rules, 1991 prescribe 3 (three) modes of recruitment to the post of Accounts
Officer; (i) through direct recruitment for 60% of the posts, (ii) through
promotion for 35% of the post and (iii) through limited exam of internal
candidates against 5% quota. According to the respondents, the panel of JSEB
employees was furnished by the XLRI only on account of illegalities
committed by the then Director of Accounts, JSEB Sri Umesh Kumar, who
was made the Coordinator. He asked XLRI to furnish separate panel of JSEB
employees for internal appointment without any authority, fully knowing that
this was an advertisement for external candidates against direct recruitment.
Appellants did not have the requisite experience of 9 (nine) years on the post
of Accountant/Junior Accounts Officer for being considered for promotion
against the 35% promotional quota as per Rule 10 of the Accounts Cadre
Rules, 1991. The appointment of candidates to the post of Accounts Officer
beyond the panel of external candidates under General, ST and OBC
categories was null and void. The JSEB employees who may have applied
under the advertisement by getting age relaxation could only compete with the
external candidates for direct recruitment as the advertisement was not meant
for promotion through limited departmental exam of the internal candidates
against 5% quota. No separate list of JSEB employees could have been
prepared under the advertisement. These irregularities were noticed by the
Board. Opinion of the Senior Law Advisor was obtained. The S.P., CBI vide
letter dated 08.11.2013 also reported that the internal appointment made out of
the select list by XLRI was illegal and as a result of criminal conspiracy
between the beneficiaries and the Board officials. Proceedings have been
drawn against one Sri Umesh Kumar and Sri H.C. Mishra, the then Joint
Secretary-II. The learned Single Judge upon consideration of all the materials
on record rightly came to a conclusion that the advertisement was never issued
for the selection of internal candidates/ employees of the Nigam, rather the
posts were advertised for direct recruitment from open market. Only an age
relaxation up to 50 years was given to qualified employees of the then JSEB to
enable them to compete with the external candidates from open market and the
selection had to be made according to the merits. Since the advertisement was
not meant for a limited departmental competitive exam of internal candidates,
injustice was caused to other eligible JSEB employees as they did not
participate in the recruitment exercise under the bonafide impression that it
was not meant for internal candidates. Learned counsel for the JSEB submits
that the appellants did not have a right to hold the substantive posts of
Accounts Officer nor can they be said to suffer from adverse civil
consequences. The argument based on non-compliance of the procedure
prescribed under Article 311 does not hold good since the reversion of these
appellants is not by way of a punishment. The appellants, therefore, cannot
assert that adverse civil consequences have entailed on account of their
reversion. In this regard, learned counsel for the Board has placed reliance
upon para 19 of the judgment rendered in the case of P.C. Wadhwa (supra). It
is submitted that when a person is reverted to his substantive rank, the question
of penal consequences in the matter of forfeiture of pay or loss of seniority
must be considered in the context of his substantive rank and not with
reference to his officiating rank from which he has been reverted, for every
reversion must necessarily mean that the pay will be reduced to the pay of the
substantive rank. Learned counsel for the Board, while summarizing his
arguments, has prayed that the appeal may be dismissed as being without any
merit.
11. We have considered the submission of learned counsel for the parties at
length. We have also culled out the chronology of relevant material facts and
documents relied upon by the parties as are borne from the pleadings on
record. We have gone through the impugned judgment as well and the
decisions cited by the parties. On a careful perusal of the different clauses of
the Advertisement No.1 of 2007 and on the basis of other materials on record
taken note above, it is clear that the advertisement was meant for direct
recruitment in which qualified JSEB employees could also compete with the
external candidates with an age relaxation up to 50 years. The advertisement
was not for limited departmental competitive exam for filling up the 5% quota
meant for internal candidates as per Rule 6 (iii). For better appreciation,
Rule 6, 7 and 10 prescribing the eligibility criteria for direct recruitment and
through promotion are being extracted hereunder:
"
i
ii
iii
i
iv
i
ii
iii
iv
v
vi
i
ii
i
i
ii
iii
iv "
12. It is clear from a perusal of extant rules that no separate list of panel of
JSEB employees could have been submitted by the recruiting agency XLRI.
Appellants have been appointed from the panel of JSEB employees and not
from the merit list of external candidates of General, ST or OBC category. It is
one thing to say that internal candidates are also permitted to compete with
external candidates against 60% quota of direct recruits to the post of
Accounts Officer by getting age relaxation up to 50 years, but it is totally
different thing to say that in a recruitment process of external candidates,
JSEB employees could compete as internal candidates against 5% quota as
prescribed under Rule 6 (iii). The advertisement was for direct recruitment
from external candidates and not a promotional exercise through limited
departmental exam of internal candidates. If that be so, appellants did not have
a right to hold the post of Accounts Officer on the basis of such recruitment
exercise though as per their claim, they were having educational qualification
of MBA with finance and had applied as such, as internal candidates. Even by
the second test laid down in the case of Parshotam Lal Dhingra (Supra) and
followed in the case of P.C. Wadhwa (supra), contention of the appellants that
they have been visited with adverse civil consequences cannot be accepted
since their reversion is not by way of punishment necessitating a disciplinary
enquiry as conceived under Article 311 (2) of the Constitution of India.
Appellants were never confirmed on the post of Accounts Officer. Within one
year of their appointment on probation basis show cause notices were issued
upon them as to why they be not reverted to their substantive post. The show-
cause notice of reversion was issued on 13.08.2009. Merely continuing on the
said post for 6 years till the order of reversion was passed, would not amount
to conferring a substantive right in their favour to hold the post of Accounts
Officer. In this regard, it is profitable to refer to the decision of the Apex Court
in the case of "The Divisional Personnel, Officer, Southern Railway, Mysore
Vs. S. Raghavendrachar" reported in AIR 1966 SC 1529 (paragraphs 21 and
22). The whole argument of the appellants based upon non-compliance of
Article 311 of the Constitution of India falls to the ground.
13. In view of the elaborate reasons discussed hereinabove in the light of
the facts and circumstances of the case, we do not find any error in the order of
learned Single Judge calling for interference in these appeals. The appeals
being devoid of merit, are dismissed.
14. Pending interlocutory applications are closed.
(Aparesh Kumar Singh, J.)
(Anubha Rawat Choudhary, J.)
Saurav/Pankaj
