Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Jhk) 140

IN THE HIGH COURT OF JHARKHAND AT RANCHI
RAVI RANJAN, SUJIT NARAYAN PRASAD, JJ.
Jharkhand Public Service Commission, through its Secretary - Appellant
Versus
Akhilesh Prasad son of Sri Bhageran Sah - Respondent
L.P.A. No.609 of 2017 With I.A. No.9717 of 2017, L.P.A. No.164 of 2018, With I.A. No.3567 of 2018, L.P.A. No.568 of 2017 With I.A. No.3099 of 2019
Decided on : 12-05-2021

Advocates:
Advocate Appeared:
For the Appellant :Mr. Sanjay Piprawall, Advocate
For the Respondent:Mr. Manoj Tandon, Mr. Arun Kr. Dubey, Mr. Amrit Raj Kisku, Advocate

Point of Law: Public Service Commission - Promotional benefit - Candidates who have not taken birth in the cadre, the services would be counted prior to the date of appointment which cannot be allowed.

Headnote:
Constitution of India, 1950 - Articles 14, 16, 226 and 309 - Bihar Re-organization Act, 2000- Section 73 - State Reorganization Act - Jharkhand Cooperative Service Rule, 2012 - Bihar Civil Service (Executive Branch) and the Bihar Junior Civil Service (Recruitment) Rules, 1951 - Rule 3 - Advertisement - Reserved category - Competitive examination - Appointment and Selection Process - Seeking reliefs for issuance of direction upon respondent to consider case of writ petitioner for appointment on post of Deputy Collector through limited competitive examination pursuant to Advertisement issued by respondent no.2, in as much as, writ petitioner has secured 123.68 marks and last candidate under Scheduled Tribe category has secured 113.70 marks, to hold and declare that writ petitioner belongs to Schedule Tribe category, which is apparent from panel prepared for initial appointment by BPSC on post of Cooperative Extension Officer, as such, JPSC has no power and jurisdiction to treat writ petitioner as unreserved category candidate in the examination conducted in terms of Advertisement - Whether appointment through limited competitive examination is a fresh appointment or by way of promotion - Whether provision of Section 73 of Act, 2000 will be applicable in process of selection to be made through limited competitive examination after final order passed by Central Government under Section 72(2) of Act, 2000.
Finding of the court: Governor shall decide in each year the number of vacancies in each of the services to be filled in that year by direct recruitment and/or by promotion respectively - Prior to coming into effect of Rule, 2015 of the State of Jharkhand, the Rule 1951 enacted by the erstwhile State of Bihar was in vogue, wherein the selection was to be made to fill up the post of Bihar(Jharkhand) Administrative Service through two modes only, first through direct recruitment and second through promotion on the basis of the recommendation to be made by the Selection Committee headed by Member Board of Revenue - Subsequently in year 1991, a new rule was enacted under the proviso to Article 309 of Constitution of India for fulfilling post of 25 per cent of total vacancies under Bihar Administrative Cadre by way of limited competitive examination - Learned Single Judge has relied upon resolution of government which is admittedly for purpose of consideration of candidature of candidate for promotion but has applied in case of fresh appointment - Also not considered the order passed by the Coordinate Division Bench of this Court passed in L.P.A.s wherein it has been decided that conditions stipulated in Advertisement requiring caste certificate and residential certificate to be submitted in prescribed format, is required to be observed and in case of non-fulfillment, candidature of candidate is not to be considered - Condition stipulated under Clause-13 pertaining to furnishing caste and residential certificate duly been issued by the Sub Divisional Officer working in State of Jharkhand since has not been complied with, candidature of writ petitioners have rightly been rejected.
Result: Order accordingl

JUDGMENT :

Per Sujit Narayan Prasad, J.

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. These three appeals are listed together for analogous hearing since the issue fell for consideration is common, as such heard together and are being disposed of by this common order.

3. L.P.A. No.609 of 2017 preferred by the Jharkhand Public Service against the order/judgment dated 22.09.2017 passed in the case of Akhilesh Prasad, the writ petitioner [In W.P.(S) No.3480 of 2013], L.P.A No. 164 of 2018 preferred by the State of Jharkhand against the order/judgment dated 22.09.2017 passed in the case of Akhilesh Prasad, the writ petitioner [In W.P.(S) No.3480 of 2013] and L.P.A.No.568 of 2017 preferred by the State of Jharkhand against the order/judgment dated 11.04.2017 passed in the case of Manoj Kumar, the writ petitioner [In W.P.(S) No.4880 of 2013], whereby and whereunder, the writ petitions have been allowed by directing the respondents to consider the case of the writ petitioners for appointment to the post of Deputy Collector, pursuant to the limited competitive examination, if the writ petitioners qualify and come within the zone of consideration.

4. The brief facts of the case of the writ petitioner which required to be enumerated herein reads hereunder as:-

L.P.A.No.609 of 2017 & L.P.A. No.164 of 2018

5. The writ petitioner, namely, Akhilesh Prasad in W.P.(S) No.3480 of 2013 had appeared in the competitive examination in pursuant to an advertisement issued by the Bihar Public Service Commission, in short ‘BPSC’, in the unified State of Bihar for appointment to the different posts. The writ petitioner had applied being eligible under the Scheduled Tribe Category. He was declared successful having his name appeared in the merit list in the result published by the BPSC on 24.07.1995, accordingly, the writ petitioner had joined his service to the post of Cooperative Extension Officer in terms of appointment letter dated 10.11.1995.

The State Reorganization Act came into being on 15.11.2000 by which, two States have been created i.e., the successor State of Bihar and the successor State of Jharkhand. The writ petitioner was allocated the cadre of the successor State of Jharkhand. He joined his service to the State of Jharkhand in the capacity of Cooperative Extension Officer and while in service, an advertisement was published by the Jharkhand Public Service Commission, in short ‘JPSC’, inviting application for appointment on the post of Deputy Collector through limited competitive examination(LEC) being Advertisement No.05/2005.

The writ petitioner considered himself to be eligible, applied in pursuant to Advertisement No.05 of 2005 for consideration of his appointment to the post of Deputy Collector but the result of the examination in pursuant to the said advertisement was not notified and again a fresh advertisement was issued being Advertisement No.09/2010 for appointment on the post of Deputy Collector through limited competitive examination in which, again the writ petitioner had appeared but the name of writ the petitioner did not figure in the list of successful candidates. The writ petitioner, on enquiry, came to know after downloading the marks statement of his own and one Asim Bara and found that he has secured total 123.68 marks and while the said Asim Bara has secured 119.73 marks in total but the writ petitioner was not declared successful while the said Asim Bara was selected.

The writ petitioner, in consequence thereof, had approached to this Court by invoking the jurisdiction conferred under Article 226 of the Constitution of India seeking therein the reliefs for issuance of direction upon the respondent to consider the case of the writ petitioner for appointment on the post of Deputy Collector through limited competitive examination pursuant to Advertisement No.09 of 2010 issued by the respondent no.2, in

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2021 Supreme(Jhk) 140

Point of Law: Public Service Commission - Promotional benefit - Candidates who have not taken birth in the cadre, the services would be counted prior to the date of appointment which cannot be allowed.

Cases Referred (13)