D.N. Patel, J. - (1.) This Letters Patent Appeal has been preferred against the judgment and order passed by the learned Single Judge in W.P(S) No. 6255 of 2004, which was dismissed vide order dated 31st October,2014 and hence, the original petitioner has preferred this Letters Patent Appeal.
(2.) Counsel appearing for the appellant (original petitioner) submitted that advertisement was issued by the Jharkhand Public Service Commission (JPSC), which is at Annexure 1 to the memo of the Letters Patent Appeal. This appellant (original petitioner) applied for the post of Trained Teacher (Primary) in the district of Palamau. Further counsel appearing for the appellant (original petitioner) has taken this Court to Annexure-2, which is a corrigendum in the public advertisement to the effect that those candidates, who having diploma in education, will be entitled only for Physical Trained Teacher (PT Teacher).This appellant (original petitioner) has Diploma in Physical Education (DPE) who applied for the post of a teacher and was appointed. The advertisement is dated 24th August of 2002 and this appellant was appointed on 17th January, 2004 as primary teacher in the district of Palamau (Jharkhand). His service book was open from 4th July, 2004 and he was transferred as PT Teacher in another government school on 6th June, 2004 and this appellant (original petitioner) was dismissed from the services on 25th August, 2004 on the basis of the letter of the JPSC dated 21st June,2004 and hence, both these dismissal order as well as JPSC's letter were challenged by this appellant (original petitioner) in W.P(S) No. 6255 of 2004. It is further submitted by the counsel for the appellant that the Public Service Commission's letter is not a law at all. Counsel for the appellant has relied upon several decisions which are as under:- (i) Gulf Goans Hotels Company Limited and another v. Union of India and others,reported in (2014) 10 Supreme Court Cases 673 ; (ii) Union of India v. Naveen Jindal and another, reported in (2004) 2 Supreme Court Cases 510 ; (iii) Union of India and others v. West Coast Paper Mills Ltd. and another, reported in (2004) 2 Supreme Court Cases 552 ; (iv) K.P. Manu v. Chairman, Scrutiny Committee for Verification of Community Certificate reported in (2015) 4 Supreme Court Cases 1 ; (v) Seema Kumari and others v. State of Jharkhand and others, reported in (2006) 12 Supreme Court Cases 215. (vi) Shrawan Kumar Jha and others v. State of Bihar and others reported in AIR 1991 Supreme Court 309. (vii) Haryana Financial Corporation and another v. Jagdamba Oil Mills and another, reported in (2002) 3 Supreme Court Cases 496. On the basis of the aforesaid decisions, it is submitted that the letter of JPSC is not a law at all. In fact, this appellant (original petitioner) was selected by the Public Service Commission after due examination, which was being taken and on the recommendation of the Public Service Commission, the State Government has given appointment. This aspect of the matter has not been properly appreciated by the learned Single Judge and hence, judgment and order passed by the learned Single Judge is deserved to be quashed and set aside. It is further submitted by the counsel for the appellant (original petitioner) that, in fact, there were vacancies in four districts for the post of PT Teacher and therefore, there is no illegality in the appointment of this appellant(original petitioner) as a PT Teacher, as this appellant is also having qualification of Diploma in Physical Education (DPE). It is also submitted by the counsel for the appellant that no where it has been mentioned in the counter affidavit that how many posts were for Primary Trained Teachers and how many posts were for Physical Trained Teachers and hence, this argument cannot be canvassed in this Letters Patent Appeal that there was no vacancy for the post of Physical Trained Teacher. This aspect of the matter has not been properly appreciated by the learned Single Judge. Counsel appearing for the appellant (original petitioner) has also pointed out that the decision, upon which heavy reliance is placed by the respondents in the case of State of Jharkhand and others v. Ashok Kumar Dangi and others , is not applicable to the facts of the present case. In that case, the Division Bench of the court had given a direction to the State for appointment of Physical Trained Teacher, whereas, here this appellant (original petitioner) was already appointed as a teacher and dismissal of this appellant is under challenge and that too, on the basis of a letter. written by JPSC, dated 21st June, 2004 (Annexure-10 to the memo of this Letters Patent Appeal), which is not a law at all. This type of executive instruction can also be changed and similarly situated another employee is already working in the nearby district.
(3.) Counsel appearing for the JPSC as well as counsel for the State of Jharkhand submitted that initially rules for appointment of primary teachers were governed by the Jharkhand Primary Teachers' Appointment Rules, 2002 and at that time, the definition of Section 2(B) was different than the present existing rules, as per Jharkhand Primary School's appointment (Amendment) Rules, 2003. The major is - those candidates, who having a qualification of Diploma in Physical Eduction, will be appointed only for the Physical Trained Teachers. This amendment has to be carried out because of the judgment delivered by the Hon'ble Supreme Court. Be that as it may, the fact remains that when the advertisement was given on 24th August, 2002 (Annexure-1 to the memo of this Letters Patent Appeal), advertisement was only for Primary Trained Teachers and hence, there was no advertisement for Physical Trained Teachers and therefore, those candidates, having qualification of Diploma in Physical Education, perhaps, there was no requisition and advertisement at all. Hence, their services have been rightly terminated by the State Government. There may be an error on the part of the JPSC in recommendation or there may be an error on the part of the State Government. Every error of public authority cannot be encashed by the candidates. Illegal appointment should always be brought to an end, in the interest of justice. This aspect of the matter has been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant (original petitioner).Counsels for the respondents have heavily relied upon the decision rendered by the Hon'ble Supreme Court in the case of State of Jharkhand and others v. Ashok Kumar Dangi and others , reported in ( 2011) 13 Supreme Court Cases 383. On the basis of the aforesaid decision, it is submitted that those candidates, who are having qualification of Diploma in Physical Education (DPE) can be appointed only for the vacancies of physical trained teachers and hence, this appellant cannot be appointed towards any other vacancies than physical trained teachers. This aspect of the matter has also been properly appreciated by the learned Single Judge, while dismissing the writ petition preferred by this appellant. Hence this Letters Patent Appeal may not be entertained by this Court.;