Patna High Court
Harendra Prasad Sahu vs Bihar Public Service Commission And ... on 7 July, 2003
Equivalent citations: 2003(2)BLJR1475
JUDGMENT R.N. Prasad, J.
1. The Letters Patent Appeal has been filed against the judgment and order dated 3-10-1996 passed in C.W. J.C. No. 7603/94 whereby the appointment of the appellant made in 1989 was held to be illegal and the Bihar Public Service Commission was directed to recommend the name of respondent No. 9 and of one Md. Salauddin and to appoint one of them in the Irrigation Department, Government of Bihar.
2. The Bihar State Subordinate Service Selection Board, hereinafter to be referred to as "the Board", published an advertisement No. 5/85 in the 'Arya Varta' on 26-6-1985 for graduate level limited competitive examination inviting applications from candidates belonging to Scheduled Castes, Scheduled Tribes and most backward class for appointment on different posts including the post of Junior Statistical Assistant in the pay scale of Rs. 785-1210/-. Respondent No. 9 pursuant to the advertisement filed an application for appointment.
3. On 12-7-1985 the Board published an advertisement No. 6/85 for second graduate level non-Gazetted competitive examination inviting applications from candidates of all categories i.e., general and reserved for appointment on different posts including the post of Statistical Assistant. The appellant filed application for his appointment. In the advertisement code number of reservation was also mentioned. 04 was for most backward class and 05 was for backward class. The appellant claimed that he belonged to most backward class i.e., 04 category. The appellant and otheis appeared in the examination and a merit list, Annexure-7 to the appeal, was prepared for appointment to the post of Statistical Assistant. The merit list was sent to the Water Resources Department for appointment to the post of Statistical Assistants. The Water Resources Department vide letter No. 7-9-1989 asked the appellant to appear alongwith certificates and other documents on 15-9-1989. The appellant appeared on the date fixed and produced the relevant documents including caste certificate granted by the Sub-Divisional Officer and after verification he was appointed on the post of Statistical Assistant in Water Resources Department vide letter dated 20-10-1989, Annexure-8 to the appeal. He jointed the post of Statistical Assistant.
4. Respondent No. 9, a candidate under advertisement No. 5/85, after about five years of appointment of the appellant filed writ petition bearing C.W. J.C. No. 7603/ 94 for issuance of direction to the respondents to appoint him on the post of Junior Statistical Assistant on the ground that persons lower to him in merit list have been appointed. In the said writ petition the appellant was impleaded as respondent No. 9. His further case was that he was selected for appointment and his name was recommended for appointment to the post of Junior Statistical Assistant in the Irrigation Department, Government of Bihar were letter dated 15-4-1989. His further case was that he belongs to most backward class but the Water Resources Department returned the recommendation to the Board on the ground that the post for most backward class is not vacant because the appellant has been appointed on the post though he belonged to backward class vide letter dated 18-11-1989. His name was recommended for appointment on the post of Junior Statistical Assistant on 15-4-1989 but the department did not take any step for his appointment and appointed the appellant on the basis of recommendation letter dated 30-8-1989. The petitioner thereafter, filed representation to the authorities concerned but nothing was done. Thus he filed the writ petition.
5. The appellant appeared and filed counter-affidavit. His stand was that he filed application pursuant to the advertisement No. 6/85, whereas respondent No. 9 filed application pursuant to the advertisement No. 5/85. He was selected for appointment on the post of Junior Statistical Assistant, whereas appellant was selected for appointment on the post of Statistical Assistant. He belongs to most backward class i.e., 04. His name was recommended to the Water Resources Department for appointment on the post of Statistical Assistant and he was appointed on the said post after verifying relevant records including caste certificate granted by the Sub-divisional Officer vide letter dated 20-10-1989 and since then he has been working on the post. He was not appointed on the post of Junior Statistical Assistant for which advertisement No. 5/85 was issued. Nothing on the record was placed to show that the appellant was appointed pursuant to advertisement No. 5/85.
6. The Board was abolished in the year 1992 and the records were sent to the Bihar Public Service Commission. A counter-affidavit was filed on behalf of Bihar Public Service Commission stating therein that respondent No. 9 was selected for appointment on the post of Junior Statistical Assistant pursuant to advertisement No. 5/85. The appellant was selected for appointment on the post of Statistical Assistant pursuant to advertisement No. 6/85. However, it was stated that the appellant belonged to backward class i.e., 05, whereas respondent No. 9 belonged to most backward class i.e., 04. On recommendation the Water Resources Department made query that for one post of Junior Statistical Assistant names of respondent No. 9 and one Md. Salauddin were recommended and, in such a situation, wanted to know from the Board as to who is to be appointed but no reply was sent by the Board. The appellant, however, has been appointed on the said post.
7. After hearing the parties the writ petition was allowed vide judgment and order dated 3-10-1996 mainly on the ground that appellant belongs to backward class in the category of 04, The most backward class has been categorized as 05. The appointment of appellant was made on the post of Junior Statistical Assistant which was meant for advertisement No. 5/85 and as such his appointment was illegal.
8. The resolve the issue involved, on the direction of the Court, the Bihar Public Service Commission produced the records of advertisement No. 5/85 and 6/85 and after going through the record the learned Counsel for the Commission submitted that name of the appellant was recommended for appointment on the post of Statistical Assistant and he was appointed on the said post, whereas, the name of respondent No. 9 and one Md. Salauddin was recommended for appointment on the post of Junior Statistical Assistant. However, their names were returned with query as to who was to be appointed but no reply was sent by the Board.
9. The admitted position is that the appellant filed an application pursuant to advertisement No. 6/85 dated 12-7-1985 for second graduate level non-Gazetted competitive examination for appointment on different posts including Statistical Assistant. Respondent No. 9 filed application pursuant to advertisement No. 5/85 for graduate level limited competitive examination meant for reserved category candidates only. The appellant's claim was that he belonged to most backward class i.e., 04 and certificate to the aforesaid effect granted by the Sub-divisional Officer was also produced Respondent No. 9 also claimed to be most backward class i.e., 04. The appellant was selected for appointment on the post of Statistical Assistant vide letter dated 7-9-1989. He was appointed vide letter dated 20-10-1989 on the said post. Respondent No. 9 was selected for appointment on the post of Junior Statistical Assistant. His name was recommended for the said post, One Md. Salauddin was also recommended for the said post who obtained more marks than respondent No 9. The Water Resources Department made query from the Board that two persons have been recommended i.e., respondent No. 9 and Md. Salauddin for one post of Junior Statistical Assistant and as such who was to be appointed but nor reply was sent. Learned Counsel for respondent No. 6, the Secretary litigation Department of the basis of counter-affidavit filed in this appeal submitted that requisition was made for appointment on 10 posts of Statistical Assistant in which one post was for most backward class i.e., 04 and the appellant was appointed on the said post.
10 Therefore, it is evident from the admitted position that appellant was not appointed pursuant to advertisement No. 5/85 on the post of Junior Statistical Assistant rather he was appointed on the post of Statistical Assistant pursuant to advertisement No. 6/85. It appears that in the order impugned it has been stated that 04 is for backward category and 05 is for most backward category and it has been said that application was filed by the appellant as Backward class candidate i.e., 04 although 04 is meant for most Backward class which is evident from advertisement No. 6/85. The aforesaid mis-conception has led to erroneous-conclusion for allowing the writ petition. In fact, 04 is for most backward class and 05 is for backward class. It has been stated that appellant has filed application under 04 category but it has wrongly been mentioned that it was for backward class. In such a situation, the finding in the order impugned cannot be held to be legal.
11. It was pointed out by learned Counsel for the respondents that no requisition was made but it appears from the counter-affidavit filed on behalf of the Secretary, Water Resources Department., respondent No. 6, that requisition was made pursuant to the letter of the Board for the post of 10 Statistical Assistants out of which one post was for most backward class i.e.. 04 on which the appellant was appointed. The admitted position is that respondent No. 9 was applicant under advertisement No. 5/85 which was for Junior Statistical Assistant and as such cannot of be said that appellant was appointed pursuant to the advertisement No. 5/85 on the post of Junior Statistical Assistant rather there are documents on the record to show that appellant was appointed on the post of Statistical Assistant pursuant to advertisement No. 6/85.
12. It is evident from the writ petition that no prayer was made for quashing of appointment of appellant. However, it has been stated in th writ petition that appellant was appointed in his place. The averment and submission of learned Counsel for respondent No. 9 in such a situation, does not appear to be correct as appellant was not appointed on the post of Junior Statistical Assistant pursuant to the advertisement No. 5/8'5 rather he was appointed on the post of Statistical Assistant pursuant to advertisement No. 6/85. The scale of Junior Statistical Assistant and the Statistical Assistant is quite different.
13. Thus on consideration, as discussed above, the order impugned cannot be upheld. Accordingly, appeal is allowed. The order under appeal is hereby set aside but without cost.