Patna High Court
Binay Kumar & Ors vs The Bihar Legislative Assembly Through on 1 May, 2017
Author: Ajay Kumar Tripathi
Bench: Ajay Kumar Tripathi, Nilu Agrawal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.493 of 2014
IN
Civil Writ Jurisdiction Case No. 4617 of 2006
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1. Binay Kumar Son Of Late Ram Bhajan Prasad Resident Of Village- Raipura,
P.S- Fatuha, District- Patna.
2. Kumar Rajesh Ravi Son Of Late Suresh Mandal Resident Of Village- Jaikhuth,
P.S- Gauradih, District- Bhagalpur.
3. Sahi Shanker Singh Son Of Sri Sikander Singh Resident Of Village- Baijnathpur,
P.S- Sanokhar, District- Bhagalpur.
4. Surendra Kumar Singh Son Of Sri Mathura Singh Resident Of Village- Hisua
Head Panchu Babhan Toli, P.S- Hisua, District- Nawada.
5. Pintu Kumar Choudhary Son Of Sri Anant Kumar Resident Of Village+ P.S-
Isakchak Ishwar Nagar, Shayamaldas Lane, District- Bhagalpur.
6. Harendra Prasad Son Of Sri Chaturgun Prasad Resident Of Village Dumarhar
Bujurg, P.S- Darauli, District- Siwan.
7. Dinesh Paswan Son Of Sri Ramdeo Paswan Resident Of Village- Paithna, P.S-
Bena, District- Nalanda.
8. Smt. Sharda Kumari Wife Of Sri Upendra Sharma Resident Of Village Thana
Bigha, P.S- Ghoshi, District- Jehanabad.
9. Sunil Kumar Choudhary Son Of Sri Hari Nandan Choudhary Resident Of In The
House Of Sri Lahtan Choudhary, 113 Vidhyak Colony, Kautilya Nagar, B.M.P.
Road, Raza Bazar, P.S- Shastri Nagar, District- Patna.
10. Arun Kumar Yadav Son Of Sri Sheo Lochan Yadav Resident Of Village
Faujdari, P.S- Pirpainti, District- Bhagalpur.
11. Vinay Kumar Son Of Sri Rajendra Prasad Singh Resident Of Village Saidpur,
P.S- Dariapur, District- Saran At Chapra , C/O Md. Habib, Ashok Hair Cutting
Saloon, New Market, Patna, P.S- Kotwali, District- Patna.
12. Pankaj Mandal Son Of Sri Sheo Narayan Mandal Resident Of Village Srichak,
P.S- Sanhaula,District- Bhagalpur.
.... .... Appellants
Versus
1. The Bihar Legislative Assembly through the Deputy Secretary, Patna.
2. The Secretary, Bihar Legislative Assembly, Patna.
3. The Under Secretary, Bihar Legislative Assembly, Patna.
4. The Deputy Secretary, Bihar Legislative Assembly, Patna.
.... .... Respondents
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Appearance :
For the Appellants : Mr. Bishnu Kant Dubey, Advocate
For the Respondents : Mr. P.K.Shahi, Senior Advocate
Mr. Kaushal Kumar Singh, Advocate
Mr. Niraj Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI
and
HONOURABLE JUSTICE SMT. NILU AGRAWAL
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI)
Date: 01-05-2017
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Heard learned counsel for the appellants and learned
senior counsel for the Bihar Legislative Assembly.
The writ application was filed by these appellants
because the Legislative Assembly refused to continue with the hiring
or engagement of these appellants beyond 28.02.2006. They were
hired in the very first place for a limited period on 27.06.2005 and
the engagement was not extended beyond 28.02.2006. In other
words, their hiring came to an end within eight months.
The learned single Judge heard the parties rather
extensively and taking note of the manner and narration of the
engagement as well as the object that the engagement was for very
very limited period, opined that no appointment on a temporary basis
can continue beyond one year without fresh advertisement and
selection. Not only this the learned single Judge refused to give any
relief to these appellants, but also gave a direction for taking steps
for regular appointment, cutting out the gross arbitrariness and ad-
hocism, which was noticed in the manner of such engagement.
The Court notices the very opening sentence of the
learned single Judge : "This case depicts an extremely sorry state of
affairs and the spoil system that pervades even the Office of the Vidhan
Sabha of the State." These are very loaded observations to make by
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the learned single Judge and he was correct in making such an
observation and the reasons thereof emerge from the narration of
facts. There has been complete disregard to the statutory rules, which
are in place for such appointments and engagement, one of them
being the Bihar Legislative Assembly Secretariat (Appointment and
Service Condition) Rules, 1964.
The Court is tempted to reproduce some of the
observations which the learned single Judge has had to make
emerging from the pleadings of the parties :
The relief claimed by the petitioners is that they
should be allowed to continue to work as others have
been allowed to work on similar posts. In other
words, what the petitioners had prayed, as noticed
earlier, from this panel two sets of appointments had
earlier been made. The first in the year 2003 itself,
which were though said to be temporary were not
limited in time. The second lot which was limited in
time. All of them were allowed to continue by letters
of extension from time to time. Petitioners also want
that they should also continue in this ad hoc fashion,
though their very appointment had been sanctioned
by the Secretariat of the Assembly to a fixed period
terminating to 28.02.2006.
In the counter affidavit filed by the Assembly first a
stand had been taken which was deplorable. It is
stated that on the eve of the resignation of the
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Speaker, the Speaker made these appointments.
Having made the appointments, on the next day he
tendered resignation and the Assembly was
suspended with imposition of President Rule. It is
unfortunate. From the ordersheet appended to the
said counter affidavit, it is evident that it was long
before that the office itself had recommended that
the life of the panel be extended and the vacancies
that have accrued be filled up from the said panel to
save time. This traveled from level to level with an
alternative suggestion for making alternative
arrangement from recruitment process. Thus, it was
not the Speaker which was pushing the matter on the
eve of his resignation. The selection from the panel
was also done long before.
When this Court confronted with the
deponent of the counter affidavit, who has since
retired, he expressed his apology in the matter and
stated that the Speaker chose to make these ad hoc
appointments as against the suggested alternative.
There was also suggestion to make permanent
appointments after fresh advertisement. He did not
mean any disrespect to the Speaker. Be that as it
may, what the counter affidavit and the
supplementary counter affidavit filed by the
Assembly states is that pursuant to advertisement
issued in the year 2001 a panel was made for
appointment in the year 2003. The advertisement
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did not disclose the number of vacancies. It did not
disclose whether the vacancies were as against
permanent posts or posts that were temporary, as
would be the case in respect of posts in Schedule-1
or Schedule-2 of Rule-3 of the Recruitment Rules.
The fact remains that certain appointments were
made from the panel. The panel, in fact and in law,
would then stand lapsed and expired.
Notwithstanding that again the life of the panel is
then extended and further appointments are made.
These two appointments led to another round of
litigation before this Court. Suffice to say that this
Court by judgment of Division Bench in the case
of the Speaker, Bihar Legislative Assembly, Patna
and others Vs. Sanjay Kumar Singh and others,
being L.P.A. No.322 of 2008 and analogous cases
disposed of on 15th of September, 2011 held that
considering the fact that the parties had been in
service for over six years and the other lot about
five year they all should be continued and steps for
their regularization taken according to their
seniority. It may be noted that the Speaker
appealed to the Apex Court without success.
Learned counsel for the petitioner virtually seeks
the same direction.
Having heard the parties and
considered the matter, I am unable to accede to the
prayer of the learned counsel for the petitioners.
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The reasons are simple. This spoil system and ad
hocism must come to an end. These steps are
retrograded and antithesis of Article-14 of the
Constitution. If there are vacancies permanent or
temporary, they are required to be filled up in
accordance with law. The law enshrines public
advertisement so that public at large has notice
thereof and has a chance to seek employment
under the State. These are backdoor entry methods
which are being adopted. Once these chosen few
enter service then their continuous extension
mature into regularization and ultimately into
permanent service. This cannot be permitted. As
noted above, in terms of Rule-3 of the Rules
aforesaid there are three types of posts. Firstly
there is sanctioned permanent post. The Court sees
no reason why permanent appointments cannot be
made on these posts instead of making temporary
appointments, time bound appointments and
extending them from time to time. There has to be
proper advertisement, selection and then followed
by permanent appointment to end this ad hocism.
Secondly there is Schedule-2 posts, which are
temporary or temporarily sanctioned and thirdly
there are posts which the Speaker can create only
for a particular financial year which would lapse
with the financial year. Even in respect of these if
there is perennial requirement these posts must be
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taken out of the Schedule-2 and placed in
Schedule-1 posts and made permanent. The
temporary posts should be minimal. While making
appointments, it must be clearly ascribed as to
against what category of which posts is the
appointment being made so that there is no
confusion whether these appointments are against
temporary, permanent or ad hoc post created for
the financial year for some reason. This is never
done and a chaos prevails. For whose benefit this
Court cannot venture to say."
The observations of the learned single Judge quoted
above does not leave much for this Court to add or opine over and
above the findings which formed the basis for dismissal of the writ
application.
A desperate effort is now sought to be made on behalf
of the learned counsel for the appellants that uniform yardstick has
not been followed and considered by the learned single Judge
because people who were engaged on the basis of 2001
advertisement and hired in the year 2003 have been allowed to
continue, whereas these appellants, who were also engaged with
regard to the same advertisement and panel, are being discriminated.
With regard to the previous appointments Hon'ble Supreme Court
came to their rescue.
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There cannot be parity or equality in violation of
Articles 14 and 16 of the Constitution of India. This Court fails to
understand the logic as to how a panel prepared on the basis of 2001
advertisement could be revived and extended in the year 2005 that
too on the last working day of the outgoing Speaker and for whose
benefit. This Court has not heard of instances of such kind where a
panel is revived after the process of selection is completed and that
too after many many years down the line.
In other words, the Speaker's decision was a parting gift
for the appellants. The changed regime was not willing to shake
hands with the appointees in such controversial circumstances. It was
for that reason that the respondent authorities of the Assembly
decided not to take work from any of these appointees after
28.02.2006, within eight months of such engagements, and the parity which the appellants are looking for are not available either in facts nor do law support such engagement in the very first place. There is something really rotten in the manner in which the power that be exercised such power by making arbitrary hiring which is per se illegal. Therefore, the learned single Judge also has used some very strong observations with regard to such engagement, hiring or continuance or revival of panel by the outgoing Speaker at the relevant time.
Patna High Court LPA No.493 of 2014 dt.01-05-2017 9/9 Any indulgence shown to the appellants will be doing gross violation not only to law, but also to system because rule of law must prevail over any other authority.
Appeal has no merit. It is dismissed.
(Ajay Kumar Tripathi, J) (Nilu Agrawal, J) Pawan/-
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