Back
2020 Supreme(Jhk) 841
IN THE HIGH COURT OF JHARKHAND AT RANCHI
RAVI RANJAN, SUJIT NARAYAN PRASAD, JJ.
Prof. Dr. Tulsi Mahto – Appellant
Versus
State of Jharkhand – Respondent
L.P.A. No. 260 of 2020
Decided On : 12-11-2020
Advocate Appeared:
For the Appellant : Mr. Rajendra Krishna.
For the Respondents: Dr. Ashok Kumar Singh, Mr. Rohit Sinha.
Headnote:
Orders with Defect - Fresh Appointment - Whether he can now challenge fresh appointment at appellate stage – Held, Challenge to fresh advertisement along with appointment can only be available to writ petitioner/appellant if same would be challenged by him before appropriate forum but as would appear from material available on record, writ petitioner/appellant has not questioned fresh appointment made in pursuance of subsequent advertisement though fresh advertisement was questioned before writ court by filing interlocutory application but subsequently same was withdrawn - In view of aforesaid factual aspect, issue which has been agitated by writ petitioner before writ court, which is subject matter of instant intra-court appeal, since will not serve any fruitful purpose for reason aforesaid, therefore, finding recorded by learned Single Judge cannot be said to suffer from any error since jurisdiction conferred to writ court is for issuance of writ of mandamus or writ of certiorari and in factual pretext of this case, as indicated hereinabove, neither writ of mandamus nor writ of certiorari can be issued - It is made clear that fresh appointment will not take away right of appellant to assail appointment in accordance with law, if he so desires and/or is so advised - Appeal fails.
ORDER :
1. With the consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality.
2. The instant appeal is listed under the heading “for orders with defect.”
Learned counsel appearing for the appellant has submitted that all the defects except defect No. 1 as pointed out by the office vide stamp reporting dated 16.09.2020 have been removed. He prayed for ignoring the defect No. 1.
In view of the prayer of the learned counsel for the appellant as also considering the nature of defect i.e. Respondent No. 4 is not party in the certified copy of the impugned order, the same is ignored.
3. On the last occasion i.e. on 11.11.2020 when the matter was listed under the heading “for orders with defect” Dr. Ashok Kumar Singh, learned counsel appearing for the respondent RIMS had submitted that the instant appeal can be disposed of at this stage itself since subsequent to the advertisement, which is the subject matter of the present appeal, another advertisement has been published and pursuant thereto appointment has already been made to the post of Director, RIMS and as such, once the appointment has already been made in pursuance of the subsequent advertisement, nothing remains to be decided in the present appeal.
4. Upon such submission of learned counsel appearing for the respondent RIMS, it was submitted by Mr. Rajendra Krishna, learned counsel appearing for the writ petitioner/ appellant that matter may be heard on merit.
5. This Court, after considering the aforesaid submissions, had posted the matter for today i.e. on 12.11.2020 for hearing of the matter on merit.
6. Dr. Ashok Kumar Singh, learned counsel appearing for the respondent RIMS, at the outset, has submitted that one affidavit has been filed bringing to the notice of this Court about the subsequent development which has taken place after disposal of the writ petition and in course of pendency of the instant appeal.
7. Mr. Rajendra Krishna, learned counsel appearing for the writ petitioner/appellant has submitted that he has received the copy of the aforesaid affidavit and as such, the matter may be heard.
8. In this pretext and with the consent of the learned counsel for the parties, the matter has been heard today.
9. The instant intra-Court appeal is directed against the order/judgment dated 20.07.2020 passed by learned Single Judge of this Court in W.P. (S) No. 1395 of 2018 whereby and whereunder the writ court has rendered the writ petition as infructuous on the ground that in pursuance of the advertisement, one Dr. Dinesh Kumar Singh has already been appointed as Director, RIMS, and subsequently he left the organization and in consequence thereof, fresh advertisement was published which was brought on record by way of I.A. No. 3724 of 2020 and as such, on this background the learned Single Judge has taken the view that the issue is only academic in nature by virtue of publication of subsequent advertisement which can be decided in another appropriate writ petition.
10. Mr. Rajendra Krishna, learned counsel appearing for the writ petitioner/appellant has submitted that an issue was raised before the learned Single Judge and as such, the issue ought to have been decided instead of rendering the same as infructuous and hence, the impugned order is not sustainable in the eyes of law.
He has submitted that the writ petition was filed for a direction to the respondents to complete the process for appointment in terms of advertisement dated 19.09.2017 on the post of Director, RIMS as also further prayer has been made for direction to the respondents to appoint the writ petitioner/appellant on the post of Director, RIMS as he was at waiting list no. 1 pursuant to advertisement No. 1/18.
It has further been submitted by referring to Page No. 37 of the writ petition which contains the advertisement basing upon which application was made by the writ petitioner/appellant for the post of Director
