Patna High Court - Orders
Pankaj Kumar vs The Bihar Public Service Commission ... on 10 February, 2023
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.43 of 2020
In
Civil Writ Jurisdiction Case No.7086 of 2017
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Pankaj Kumar S/o late besh Narayan Ram, r/o- vill- Dasai Bigha, P.O. and
P.S.-Daud Nagar, District-Aurangabad (Bihar), Pincode-824143.
... ... Appellant/s
Versus
1. The Bihar Public Service Commission Through its Chairman 15 Jawahar Lal
Nehru Marg, Bailey Road, Patna-800001
2. The Secretary, The Bihar Public Service Commission Through its Chairman,
15 Jawahar Lal Nehru Marg, Bailey Road, Patna-800001
3. The Additional Secretary-cum-Examination Controller, The Bihar Public
Service Commission Through its Chairman, 15 Jawahar Lal Nehru Marg,
Bailey Road, Patna-800001
4. Smt. Chandrakanta Kumari, daughter of not known, resident of Pyara
Gharana Apartment, flat no. 303, Block A, P.o. and P.s.- Chandauti More,
District- Gaya, 23001
5. The State of Bihar through the Principal Secretary, General Administration
Department, Govt. of Bihar, Patna.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Mrigank Mauli, Sr. Advocate
Mr. Amresh Kumar Sinha, Advocate
Mr. Vikramaditya, Advocate
Mr. Ram Tulabh Singh, Advocate
For the Respondent/BPSC: Mr. Lalit Kishore, Sr. Advocate
Mr. Sanjay Pandey, Advocate
Mr. Nishant Kumar Jha, Advocate
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
12 10-02-2023Heard learned counsels for the respective parties.
The matter is being heard from time to time. We find that Head Examiner/Examiner have committed error in not attesting initial on the corrected award of marks to the Patna High Court L.P.A No.43 of 2020(12) dt.10-02-2023 2/4 respective questions (One question) in terms of the guideline issued by the BPSC in this regard. It is noticed that rightly or wrongly, the Examiner has corrected the answer scripts and awarded 149 marks. Thereafter, suo moto action has been taken to re-evaluate answer script and proceeded to alter the awarded marks from 149 marks to 140 marks, which is disadvantage to the candidate/appellant herein. Such action of the B.P.S.C. is behind the back of the candidate. In other words, no opportunity of hearing has been provided to the extent that B.P.S.C. would re-evaluate answer script and if it is a disadvantage, in that event notice shall be given to such of those candidate in order to provide opportunity of hearing/principle of natural justice. Due to impugned action of the B.P.S.C. behind the back of the appellant, in effect it has been resulted in disadvantage to the appellant whereby he was compelled to accept Bihar Rural Development service. If the original marks awarded by the Examiner, in that event, he was entitled to be selected and appointed in the Registration Department. On this point it is necessary to take note of Apex Court's decision in the case of Rajeev Suri vs. Delhi Development Authority & Ors reported in (2022) 11 SCC 1 in para 408, it is held as under:
"408. It is settled that in cases where individual rights are affected by the decision, an opportunity of being heard and Patna High Court L.P.A No.43 of 2020(12) dt.10-02-2023 3/4 application of mind couched in the form of reasons form part of the jurisprudential doctrine. Such cases need to be distinguished from cases which do not impinge upon individual rights and involve ordinary administrative processes. For, similar standards cannot be deployed to decide both these cases. When the petitioners allege illegality on a ground such as absence of reasons in a pure administrative process, they must bear the burden to demonstrate the requirement of reasons in the first place. It is not as if reasons are mandatory in all decisions. What we are dealing with is the opinion of an advisory (administrative) body which is appointed by the same Government which calls for its advice and not to adjudicate upon the rights of individuals. Even if we assume that the no-objection by an advisory body would have the effect of affecting the objectivity of the final decision, the fact remains that it does not take the final decision. It is meant to invoke its expertise in light of the subject proposal placed before it and advise the Government as regards the feasibility of the proposed development in connection with the existing Central Vista region. The final decision would be that of the competent authority of the department concerned. Furthermore, what purpose would it serve to entangle an advisory body into the rigidity of recording elaborate reasons when its advice is not going to affect any stakeholder whatsoever nor can be made the basis to challenge the final decision of the competent authority. Not being a statutory body, its opinion has no finality attached to it nor could be appealed against to a superior forum. Undeniably, in the process of decision-making, the Government may choose to consult as many bodies and agencies as it desires and opinion of every such advisory body cannot be assailed by supplying fictional standards without keeping in view the nature of body and context of advice."
Patna High Court L.P.A No.43 of 2020(12) dt.10-02-2023 4/4 We find, the appellant has made out prima facie case, therefore, State authorities are hereby directed to apprise this Court relating to creation of supernumerary post in the Registration Department, if not available, and to accommodate him or not? Such instruction shall be provided on the next date of hearing. In this regard, B.P.S.C. is hereby directed to forward communication along with present order to the concerned State department.
Re-list this matter on 24.03.2023.
At the stage, learned counsel for the B.P.S.C. submitted that State is not arrayed as necessary and proper party. The appellant is hereby directed to implead the concerned State department as necessary and proper party during the course of the day. Necessary copy of the present papers shall be furnished to the concerned State department within a period of one week.
(P. B. Bajanthri, J) (Harish Kumar, J) GAURAV S./-
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