Judgment:
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5589 of 2013 Anant Kumar Jha ….... Petitioner Vrs.
1. The Chairman, Jharkhand Public Service Commission, Ranchi 2. The Controller of Examination, J.P.S.C., Ranchi 3. Principal Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Govt. of Jharkhand 4. Deputy Secretary, Personnel Administrative Reforms and Rajbhasha Department, Govt. of Jharkhand 5. Navin Kumar Sharma ..... Respondents with W.P.(S) No. 729 of 2014 Navin Kumar Sharma ….... Petitioner Vrs.
1. The State of Jharkhand 2. Principal Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Govt. of Jharkhand 3. Deputy Commissioner, Garhwa 4. Office Superintendent of Deputy Commissioner, Garhwa Collectoriate 5. Joint Secretary(Administrative) Council of Scientific and Industrial Research, New Delhi 6. Jharkhand Public Service Commission, Ranchi through its Chairman ..... Respondents ….... CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH (In W.P.(S) No. 5589 of 2013) For the Petitioners : Mr. Indrajit Sinha For the State : Mr. Pratyush Lala, J.C. to G.P.IV For the J.P.S.C. : Mr. Sanjay Piprawall For the Respondent No.5 : M/s Sohail Anwar & Afaque Ahmad (In W.P.(S) No. 729 of 2014) For the Petitioners : M/s Sohail Anwar & Afaque Ahmad For the State : Mrs. Shweta Singh, J.C. to G.P.V For the J.P.S.C. : Mr. Sanjay Piprawall 07/10.09.2015 Petitioner, Anant Kumar Jha in W.P.S. No. 5589 of 2013 was an applicant under the 2nd / 3rd /4th Limited Deputy Collector Recruitment Examination, 2013. He has sought direction upon the respondents to recommend his name for appointment as Deputy Collector on the vacant post on which the respondent no. 5 Navin Kumar Sharma was subsequently recommended but not appointed. The present petitioner was initially recommended against the vacancy for 4th Limited Deputy Collector Recruitment Examination, 2013, which was withdrawn by the Jharkhand 2 Public Service Commission (J.P.S.C) in order to recommend the name of private respondent no.5, Navin Kumar Sharma. The said Navin Kumar Sharma is the writ petitioner in W.P.S. No. 729 of 2014, who seeks a writ of mandamus to appoint him on the post of Deputy Collector under the advertisement no. 9/2010 issued by the J.P.S.C in the General Category in relation to the 4 th Limited Deputy Collector Recruitment Examination, 2013. He also sought quashing of the letter no.3321 dated 7.4.2014 issued by the Joint Secretary, Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand where under his representation for consideration of his claim for appointment on the post of Deputy Collector has been rejected on the ground of his resignation on 15.2.2011 as he had lost his lien. It transpires upon hearing learned counsel for the parties in both the writ petitions that petitioner, Anant Kumar Jha was initially recommended on the basis of his experience and marks secured against the vacancy existing under the 4 th Limited Deputy Collector Recruitment Examination, 2013. The respondent- Department however made a reference to the J.P.S.C relating to his recommendation and also for consideration of the claim of the petitioner, Navin Kumar Sharma. It was found that petitioner, Navin Kumar Sharma was eligible only in the 4 th Limited Deputy Collector Recruitment Examination, 2013 and had higher marks than the petitioner, Anant Kumar Jha but had wrongly been recommended in the 2nd Limited Deputy Collector Recruitment Examination, 2013, though he was not fulfilling the requisite experience of 5 years in terms of the advertisement issued for the 2nd Limited Deputy Collector Recruitment Examination, 2013. On withdrawal of the recommendation made 3 in favour of petitioner, Anant Kumar Jha, the name of petitioner, Navin Kumar Sharma was recommended. The respondent- Department however during the course of scrutiny did not find the petitioner, Navin Kumar Sharma eligible as he had already left the service by tendering his resignation on 15.2.2011 from the post of Clerk in the District Collectoriate, Garhwa. His representation made to the Personnel Department was rejected by the order dated 7.4.2014, sought to be impugned by way of I.A. No. 4073 of 2014 during the pendency of the writ petition. Learned counsel for the petitioner, Anant Kumar Jha submits that the advertisement and the Bihar Administrative Service (Recruitment through Limited Competitive Examination) Rules, 1991 do stipulate that an employee serving under the State Government could only be eligible for being appointed as a Deputy Collector pursuant to the recruitment exercise held under the 1991 Rules in any advertisement notified there under. Reference has been made to Rule 1, 2(ga)(cha)(anga) and Rule 4 for the said purpose. It is submitted that once the petitioner, Navin Kumar Sharma submitted his resignation unconditionally and proceeded to join a new service under Council of Scientific and Industrial Research, New Delhi on the post of Section Officer, the said person cannot be eligible for any appointment under the said recruitment exercise as he was no longer a Government Servant under the State of Jharkhand. Simply because the said person might have been eligible on the cut of date for making such application, that would not make him entitled for employment as he has lost the status of a serving employee on his own resignation and also because of his withdrawal of pensionary benefits such as Group Insurance, Leave Encashment and G.P.F. Once the candidature of Navin 4 Kumar Sharma is found to be ineligible, petitioner, Anant Kumar Jha, who is the next person in the merit list and whose name was earlier recommended, automatically gets a chance for being recommended and appointed as Deputy Collector under the said recruitment exercise. The respondent- department and J.P.S.C are therefore obliged in law to make such recommendation and appointment of the petitioner. Learned Senior Counsel appearing on behalf of the petitioner, Navin Kumar Sharma submits that petitioner, Navin Kumar Sharma was eligible in all respect on the cut off date for making such application i.e. 30.11.2010 as he had completed 5 years of service as an Assistant in the District of Garhwa on 1.8.2009 from his initial date of appointment i.e. 30.1.2004. He submits that terms of the advertisement are very clear and more over petitioner, Navin Kumar Sharma has been relieved to join his new job in C.S.I.R, New Delhi vide Annexure-3 dated 15.2.2011. Petitioner, Navin Kumar Sharma would retain his lien on his original post for the next 2 years at least and the respondent- Department is not right in rejecting his candidature on that ground. It is further submitted that the Anant Kumar Jha in any case would not be entitled for any appointment on the strength of his claim that candidature of Navin Kumar Sharma is not entertainable. Navin Kumar Sharma has obtained 139.90 marks while petitioner, Anant Kumar Jha has obtained 138.81 marks in the recruitment test. Learned counsel for the J.P.S.C submits that earlier the recommendation of the petitioner, Anant Kumar Jha was made on a conception that he was eligible against the vacancy under the 4th Limited Deputy Collector Recruitment Examination, 2013 but erroneously the name of Navin Kumar Sharma, who was 5 ineligible against the vacancy of 2nd Limited Deputy Collector Recruitment Examination, 2013, was recommended. On being pointed out by the respondent- department, the aforesaid error had been corrected and Navin Kumar Sharma having more marks and eligible on the basis of work experience was recommended against the vacancy in the General Category in the 4th Limited Deputy Collector Recruitment Examination, 2013 as though he is a B.C. II candidate but was found to score equal marks to the General Category candidate. The recommendation of petitioner, Anant Kumar Jha was accordingly withdrawn. He submits that subject to the final decision of this Court on the plea of both the petitioners, it is only upon further requisition made by the department that J.P.S.C can take any action as the selection process has come to an end. Learned counsel for the State has thrown light on the state of facts relating to withdrawal of recommendation of petitioner, Anant Kumar Jha and the reasons for recommending the case of Navin Kumar Sharma earlier by the J.P.S.C, which has been noticed in the earlier part of the judgment. However, it also their case that the petitioner, Navin Kumar Sharma having resigned from the post of Assistant at the District Collectoriate, Garhwa on 15.2.2011, does not retain any lien, neither he is a serving employee of the Government of Jharkhand to be eligible for appointment as Deputy Collector under the said examination. Having considered the submission of the parties and having gone through the relevant materials on record, as the chronology of facts dwelled upon in the foregoing paragraphs of the judgment, would show, though the petitioner, Navin Kumar Sharma having more marks was eligible for recommendation against the vacancy in the General Category as per his work 6 experience also in the 4th Limited Deputy Collector Recruitment Examination, 2013, but he forfeited his candidature on account of his resignation from his service as Assistant at District Collectoriate, Garhwa unconditionally. From the documents on record, it appears that though petitioner, Navin Kumar Sharma had taken permission to appear in the said examination earlier but he offered his resignation without any conditions unlike a technical resignation in such cases which was accepted by the employer on the same date on 15.2.2011. Petitioner, Navin Kumar Sharma also accepted his dues such as Group Insurance, Leave Encashment and G.P.F, which is shown from the excerpts of the service book of the said petitioner, brought on record by the petitioner, Anant Kumar Jha. In such circumstances, given the aim, object and provision of the Recruitment Rules, 1991 for appointment to the State Administrative Services through limited competitive examination open only for serving employees of Government of Jharkhand , it cannot be said that petitioner, Navin Kumar Sharma retained his lien on the previous post and eligibility even after his resignation on 15.2.2011 from the services of his employer, State of Jharkhand. Though the resignation letter is not on record, however the impugned letter dated 7.4.2011 rejecting his representation does show the acceptance of his resignation without any conditions imposed and that he had lost his lien. Thus the said petitioner lost the relationship of employee- employer with the Government of Jharkhand. He therefore cannot be said be serving employee to seek appointment as Deputy Collector despite the fact that he was eligible on the cut off date on 30.11.2010 for making application on having completed 5 years of service on 1.8.2009 under the Government 7 of Jharkhand. The advertisement also is in conformity with the Rules and cannot go beyond the provisions of the parent rules. The advertisement also clearly indicate that only the serving employee is eligible for participating in the recruitment test. Rule 4 of the 1991 Rules, which is quoted herein after also makes it clear that such appointment through limited competitive examination can be made out of successful candidates working under the respondent- Government. “Rule 4:- lhfer i zf r;k sf xrk ijh{kk ds }kjk fu; qf Dr;k ¡ & vk;k sx }kjk l ap kfyr lhfer i zf r;k sf xrk ijh{kk d s vk/kkj ij fjfDr;k s a dk s ljdkjh l so k e sa dk; Zj r O;fDr;k s a ds lQy mEehnokjk s a }kjk Hkjk tk; sx kA” In such circumstances, rejection of the representation of the petitioner, Navin Kumar Sharma by the impugned letter dated 7.4.2014 by the Personnel Department cannot be said to suffer from error of law and facts. Consequentially the petitioner, Navin Kumar Sharma is held ineligible for appointment to the post of Deputy Collector under the 4th Limited Deputy Collector Recruitment Examination, 2013. In such circumstances, since the vacancy is said to be remaining, the respondent- Department are required to seek an appropriate recommendation in respect of the petitioner, Anant Kumar Jha, as earlier also his name was recommended by the J.P.S.C on the basis of his work experience for the purpose of his appointment as Deputy Collector under 4 th Limited Deputy Collector Recruitment Examination, 2013. He is said to be the next person in merit list in the General Category after the candidature of petitioner, Navin Kumar Sharma is found to be ineligible. The J.P.S.C on receipt of such requisition from the 8 respondent- Department would examine the claim of the petitioner, Anant Kumar Jha and if found eligible in all respect would make recommendation to the department for consideration of his case for appointment on the vacant post of Deputy Collector under the 4th Limited Deputy Collector Recruitment Examination, 2013. Accordingly, W.P.S. No. 5589 of 2013 is allowed in the manner and to the extent indicated herein above. However, W.P.S. No. 729 of 2014 stands dismissed. A. Mohanty (Aparesh Kumar Singh, J.) IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. x of x x ….... Petitioner Vrs. x ..... Respondents ….... CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH For the Petitioners :x For the Respondents : x 0x/10.09.2015 x (Aparesh Kumar Singh, J.) A. Mohanty IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. x of x x ….... Petitioner Vrs. x ..... Respondents ….... CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH For the Petitioners :x For the Respondents : x 0x/10.09.2015 x (Aparesh Kumar Singh, J.) A. Mohanty IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. x of x x ….... Petitioner Vrs. x ..... Respondents ….... CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH For the Petitioners :x For the Respondents : x 0x/10.09.2015 x (Aparesh Kumar Singh, J.) A. Mohanty IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. x of x x ….... Petitioner Vrs. x ..... Respondents ….... CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH For the Petitioners :x For the Respondents : x 0x/10.09.2015 x (Aparesh Kumar Singh, J.) A. Mohanty IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. x of x x ….... Petitioner Vrs. x ..... Respondents ….... CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH For the Petitioners :x For the Respondents : x 0x/10.09.2015 x (Aparesh Kumar Singh, J.) A. Mohanty IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. x of x x ….... Petitioner Vrs. x ..... Respondents ….... CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH For the Petitioners :x For the Respondents : x 0x/10.09.2015 x (Aparesh Kumar Singh, J.) A. Mohanty IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. x of x x ….... Petitioner Vrs. x ..... Respondents ….... CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH For the Petitioners :x For the Respondents : x 0x/10.09.2015 x (Aparesh Kumar Singh, J.) A. Mohanty IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. x of x x ….... Petitioner Vrs. x ..... Respondents ….... CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH For the Petitioners :x For the Respondents : x 0x/10.09.2015 x (Aparesh Kumar Singh, J.) A. Mohanty IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. x of x x ….... Petitioner Vrs. x ..... Respondents ….... CORAM: HON’BLE MR. JUSTICE APARESH KUMAR SINGH For the Petitioners :x For the Respondents : x 0x/10.09.2015 x (Aparesh Kumar Singh, J.) A. Mohanty 18