Patna High Court
Ravi Amarnath vs The Bihar Staff Selection Commissioner on 20 December, 2022
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.412 of 2021
In
Civil Writ Jurisdiction Case No.7051 of 2020
======================================================
1. Bihar Staff Selection Commission Through the Secretary.
2. The Secretary of the Bihar Staff Selection Commission Patna, At and Post
Veterinary College, Patna-14.
... ... Appellant/s
Versus
1. Himal Kumari D/o Sri Mithilesh Kumar Chaudhary R/o B-92, Housing
Colony, Kankarbagh, P.S.-Kankarbagh, District- Patna.
2. The Principal Secretary Govt. of Bihar, Urban Development and Housing
Department.
... ... Respondent/s
======================================================
with
Letters Patent Appeal No. 109 of 2021
======================================================
1. Ravi Amarnath, S/o Sri Pradeep Kumar, Resident of Mohalla-Purani
Kachachari Katrapar, P.O.-Biharsharif, P.S.-Biharsharif, District-Nalanda.
2. Kumar Gautam, S/o Brij Kishore Singh, R/o Baghmajhaua, P.S. Koilwar,
District-Bhojpur.
3. Shekhar Kumar Prasad, S/o Shashibhusan Prasad, Resident of K-543,
Hanuman Nagar, behind Housing Board, P.S.-Kankarbagh, District-Patna.
4. Laldeo Yadav, S/o Late Tulasi Yadav, Resident of Village-Larpur, P.O.-
Bhadijee, P.S.-Bodh Gaya, District-Gaya.
... ... Appellant/s
Versus
1. The Bihar Staff Selection Commissioner, Patna through the Secretary.
2. The Secretary of the Bihar Staff Selection Commission, Patna, At and P.O.-
Veternary College, Patna.
3. The Principal Secretary, Urban Development and Housing Department,
Govt. of Bihar.
4. Himal Kumari, D/o Mithlesh Kumar Chaudhary, R/o 302 Housing Colony,
Kankar Bagh, P.S.-Kankarbagh, District-Patna.
... ... Respondent/s
======================================================
Appearance :
(In Letters Patent Appeal No. 412 of 2021)
For the Appellant/s : Mr. Satyabir Bharti, Advocate
Mr. Prachi Pallavi, Advocate
For the Intervener : Mr. Sanjay Singh, Sr. Advocate
Mr. Rajesh Kumar Sinha, Advocate
Patna High Court L.P.A No.412 of 2021 dt.20-12-2022
2/9
For the Respondent/s : Mr. Yogendra Prasad Sinha (Aag7)
(In Letters Patent Appeal No. 109 of 2021)
For the Appellant/s : Mr. Sanjay Singh, Sr. Advocate
Mr. Rajesh Kumar Sinha, Advocate
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 20-12-2022
Re: I.A. No. 04 of 2022
Heard Interlocutory Application No. 04 of 2022 for
condonation of delay of 220 days in filing the present Letters
Patent Appeal.
For the reasons stated in the application and the
affidavit, delay of 220 days in filing the present Letters Patent
Appeal is condoned and I.A. No. 04 of 2022 stands allowed.
Re: L.P.A. No. 412 of 2021
The matter is relating to selection and appointment
to the post of City Manager. The post is governed by Rules
called Bihar City Manager Cadre (Appointment and Service
Condition) Rules, 2014 vide Annexure-1 to the writ application.
First respondent Himal Kumari was not selected thus she has
invoke remedy under Article 226 of Constitution in filing writ
application and it was allowed in her favour on 15.10.2020 in
CWJC No. 7051 of 2020. The learned Single Judge has directed
as under:-
Patna High Court L.P.A No.412 of 2021 dt.20-12-2022
3/9
"Considering the submission of the
parties and also on consideration of the
advertisement which contains the qualifying
marks, the Court is of the considered view
that the minimum qualifying marks is
relatable to only written test and once the
candidates qualified in the written test he is
entitled to be considered for preparation of
merit list and those candidates who qualified
in the written test cannot be excluded from
consideration zone on the ground that the
candidates failed to obtain qualifying marks
over and above qualifying marks in the
written test. Not only written examination
but also 40%, 36.5%, 34%, 32% and 32% in
General, BC, EBC, SC/ST and female
categories on the basis of total 100 marks
which includes written test as well as
experience.
Accordingly, the writ petition is
disposed of with direction to the respondents
to consider the case of the petitioner and
alike for appointment against the post of
City Manager on the basis of qualifying
marks in the written test and prepare merit
list. The entire exercise in this regard must
be completed by the respondents at the
earliest preferably within a period of three
months from the date of receipt/production
of a copy of this order."
Patna High Court L.P.A No.412 of 2021 dt.20-12-2022
4/9
Learned counsel for the appellant submitted that
the first respondent is not entitled to selection and appointment
to the post of City Manager, the merit list has been prepared in
terms of Rule 5 read with Rule 11 of Rules, 2014 and State
Government communication dated 16.07.2007 vide Annexure-C
to the supplementary affidavit on behalf of the appellant. It is
relevant to reproduce Rule 5 and Rule 11 of Rules 2014 which
reads as under:-
"5. Process of recruitment,
appointment and procedure of Recruitment:-
(1) Appointment to the basic category
of these posts in this cadre, will be by direct
recruitment (written examination) on the
recommendation of the Commission. Total 100
marks will be determined for direct recruitment.
Out of total 100 marks, 70 marks will
be determined for the written examination. 10
marks for experience for every year and a
maximum 30 marks shall be given for the
appointment to the post of City Manager working
on contract basis.
Determination of subjects for written
examination will be determing by the Commission
in consultation with the Department.
(ii) Not withstanding anything contain
in these Rules, where any post in the cadre is
vacant due to unavailability of suitable candidate
or where any post is vacant due to leave of anyone
or is vacant on temporary basis, in the interest of
work that post may be filled up by suitable
qualification holder person by deputation/ contract
basis.
11. Residual matters.-
Rules, regulations and orders of the
State Government for employees of suitable level
will apply for members of this cadre with regard to
Patna High Court L.P.A No.412 of 2021 dt.20-12-2022
5/9
the matters particularly not covered in these Rules
or any regulations made under these Rules."
Further executive order dated 16.07.2007
Annexure-C to the supplementary affidavit para-7 reads as
under:-
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dk leku :i ls fu/kkZj.k ladYi la[;k& 15838
fnukad& 22-12-90 ,oa 10258 fnukad 05-08-91 }kjk
fuEukafdr :i esa fd;k x;k gS&
lkekU; oxZ ----------- 40 izfr"kr
fiNM+k oxZ ------------ 36-5 izfr"kr
fiNM+k oxZ ,usD"pj&1 ------------ 34 izfr"kr
vuqlwfpr tkfr@tu&tkfr
,oa efgyk oxZ ----------- 32 izfr"kr
U;wure vgZrkad dk mi;qZDr :i esa fu/kkZj.k
lHkh lsokvksa@laoxksZ dh izfr;ksfxrk ijh{kkvksa ds fy,
fofHkUu vkj{k.k dksfV;ksa ds fy, lHkh fyf[kr ijh{kkvksa
¼oLrqfu'B@fo'k;fu'B½ ij leku :i ls ykxw jgsxkA
vUrohZ{kk ¼lk{kkRdkj½ ds fy,] tgk¡ ykxw gks] mDr
U;wure vgZrkad izkIr djuk vfuok;Z gksxkA**
Learned counsel for the appellant submitted that reading
of the aforesaid provision read with the government order dated
16.07.2007the merit list prepared by the Commission is in order. In other words first respondent could not meet the criteria in so far as para-7 of the order dated 16.07.2007. Therefore, the learned Single Judge has committed error in directing the appellant to undertake review of merit list and notify the same and consider the first respondent selection and appointment to the post of City Manager.
Patna High Court L.P.A No.412 of 2021 dt.20-12-2022 6/9 Per contra learned counsel for the respondent resisted the aforesaid contentions and submitted that there is no error committed by learned Single Judge. It is further submitted that government order dated 16.07.2007 is prior to issuance of Rules 2014, therefore, government order do not supplant to Rules 2014. It is also submitted that Women Reservation (Horizontal Reservation) has not been made known in the advertisement. First respondent being a women she is entitled to consider her name both under general merit and Women Reservation (Horizontal Reservation). At this stage learned counsel for the appellant submitted that even assuming that Women Reservation benefit is extended to the first respondent, she is unable to fulfill the criteria laid down in the para-7 of the government order dated 16.07.2007, therefore, the first respondent has not made out a case for her selection and appointment to the post of City Manager. In the result, order of the learned Single Judge dated 15.10.2020 passed in CWJC 7051 of 2020 is liable to be set aside.
Heard learned counsels for the respective parties. Core issue involved in the present lis is whether Commission has committed error in taking note of criteria laid down in the executive order issued under Article 166 of the Patna High Court L.P.A No.412 of 2021 dt.20-12-2022 7/9 Constitution dated 16.07.2007 as one of the criteria for the purpose of City Manager post or not? First respondent was candidate for recruitment to the post of City Manager and she was unsuccessful, therefore, she has approached this Court. Her grievance is that having regard to the merit read with the number of vacancies she is entitled to selection and appointment to the post of City Manager and further submitted that if Women Reservation (Horizontal Reservation) is given effect even in such circumstances the first respondent is entitled. The post of City Manager is governed by Rules, 2014. Perusal of Rule 5 read with Rule 11 there is no adoption of Government order dated 16.07.2007 in so far as criteria in other words addition to whatever the procedure prescribed in Rule-5 of Rules, 2014 and Rule 11 of Rules, 2014 is relating to the present selection and appointment procedure. On the other hand if any Government order subsequent to Rules, whatever the government order and Rules are applicable to the City Manager Cadre Post. Rule 11 cannot be read with Rule 5 so as to read additional criteria for the purpose of selection and appointment to the post of City Manager. Supplant by any material information by means of executive order without tinkering the original rule could be issued however, in the present, case executive order is dated Patna High Court L.P.A No.412 of 2021 dt.20-12-2022 8/9 16.07.2007 on the other hand Rules is of the year 2014 there cannot be a supplant of Government order dated 16.07.2007 to Rules, 2014.
In the light of these facts and circumstances, the appellant have not made out a case so as to interfere with the order of the learned Single Judge. Further we have noticed that appellant being a Selecting Authority to various posts to the State Government, they have failed to follow the Constitutional provision like Article-15 (3) read with Article-16 in classification of reservation in other words among 152 post of City Manager is required to be classified with reference to percentage of Women Reservation (35%) such a tabular form is not made known in the advertisement. It was bounden duty of the Selecting Authority to reveal that which are the post which have been earmarked for various social reservation like SC, ST, OBC, EBC read with Horizontal Reservation like Women Reservation and physically handicapped persons etc., so as to have the benefit of reserved post to the candidates. In fact R.K. Sabharwal and Others v. State of Punjab and Others reported in (1995) 2 SCC 745 in which Hon'ble Supreme Court has held that post based reservation is required to be notified and filled up. Once the post based reservation is required to be Patna High Court L.P.A No.412 of 2021 dt.20-12-2022 9/9 implemented in that event it was bounden duty of the appellant and State in identifying which are the post for social reservation. Such exercise is required to be undertaken by the State Government as well as Commission at the time of advertisement. This issue may be taken for future recruitment.
With the above observation, present L.P.A. stands dismissed.
Pending I.As., if any, stands disposed of in the light of disposal of the L.P.A. Re: L.P.A. No. 109 of 2021.
Learned counsel for the appellants Mr. Sanjay Singh, on instruction submitted that the present matter can be disposed of in the light of order passed in L.P.A. No. 412 of 2021.
Accordingly, the present L.P.A. stands disposed of.
(P. B. Bajanthri, J)
( Purnendu Singh, J)
Niraj/aditya
AFR/NAFR N.A.F.R.
CAV DATE N/A
Uploading Date 24.12.2022
Transmission Date N/A