Patna High Court - Orders
The State Project Director,Bihar ... vs Archana Kumari & Ors on 1 May, 2014
Bench: Chief Justice, Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.454 of 2012
In
Civil Writ Jurisdiction Case No. 2671 of 2009
With
Interlocutory Application No. 2445 of 2012
And
Interlocutory Application No. 7613 of 2013
In
Letters Patent Appeal No. 454 of 2012
======================================================
The State Project Director, Bihar Education Project Council, Shiksha
Bhawan, Rastrabhasha Parishad Parishar, Shaidpur, Rajendra Nagar, Bihar,
Patna
.... .... Appellant
Versus
1. Seema Singh @ Seemai Singh Shimmi W/O Dhirendra Singh, resident
of Village Khoripakar Khong, P.O. + P.S.-Amnour, District-Saran
.... .... Petitioner-Respondent
2. The State of Bihar
3. The Secretary, Primary Secondary cum Adult Education, Government
of Bihar, Patna
4. The Director, Primary Education, Government of Bihar, Patna
5. The Director, Sarb Shiksha Abhiyan, Bihar, Patna
6. The District Magistrate-cum-Chairman, Sarb Shiksha Abhiyan, Saran at
Chapra
7. The District Superintendent of Education cum District Programme
Coordinator, Saran At Chapra
.... .... Respondents
======================================================
With
Letters Patent Appeal No.599 of 2012
In
Civil Writ Jurisdiction Case No. 7748 of 2009
With
Patna High Court LPA No.454 of 2012 (6) dt.01-05-2014
2/7
Interlocutory Application No. 2942 of 2012
And
Interlocutory Application No. 7611 of 2012
In
Letters Patent Appeal No.599 of 2012
======================================================
The State Project Director, Bihar Education Project Council, Shiksha
Bhawan, Rastrabhasha Parishad Parishar, Shaidpur, Rajendra Nagar, Bihar,
Patna
.... .... Appellant
Versus
1. Archana Kumari W/O Shri Prabhat Kumar, resident of Village Katahari
Bagh, Arya Nagar, P.O.-Chapra, P.S.-Chapra, District-Saran, Pin-
841304
.... .... Petitioner-Respondent
2. The State of Bihar
3. The Secretary, Primary Secondary cum Adult Education, Government
of Bihar, Patna
4. The Director, Primary Education, Government of Bihar, Patna
5. The Director, Sarb Shiksha Abhiyan, Bihar, Patna
6. The District Magistrate-cum-Chairman, Sarb Shiksha Abhiyan, Saran at
Chapra
7. The District Superintendent of Education cum District Programme
Coordinator, Saran at Chapra
.... .... Respondents
======================================================
With
Letters Patent Appeal No.881 of 2012
In
Civil Writ Jurisdiction Case No. 393 of 2012
With
Interlocutory Application No. 4098 of 2012
In
Letters Patent Appeal No.881 of 2012
======================================================
The State Project Director, Bihar Education Project Council, Shiksha
Bhawan, Rastrabhasha Parishad Parishar, Shaidpur, Rajendra Nagar, Bihar,
Patna High Court LPA No.454 of 2012 (6) dt.01-05-2014
3/7
Patna
.... .... Appellant
Versus
1. Nitu Kumari Wife Of Sri Abhishek Ranjan Resident of Shakti Nagar,
P.O.- Tandi, P.S.- Chapra Mufassil, District- Saran, Presently Residing
At H.O.- Arun Bahadur Near Hospital Chowk, Chhatradhari Bazar,
District- Saran, Pin- 841301
.... .... Petitioner-Respondent
2. The State of Bihar
3. The Secretary, Primary Secondary cum Adult Education, Government
of Bihar, Patna
4. The Director, Primary Education, Government of Bihar, Patna
5. The Director Sarb Shiksha Abhiyan, Saran at Chapra
6. The District Magistrate cum Chairman, Sarb Shiksha Abhiyan Saran at
Chapra
7. The District Superintendent of Education, District Programme Officer
cum District Programme Coordinator Saran at Chapra
.... .... Respondents
======================================================
Appearance:
In LPA No.454 of 2012
For the Appellant : Mr. Lalit Kishore, Sr. Advocate with
Mr. Girijish Kumar, Advocate
For the Respondents : Mr. Md. N. Hoda Khan, SC 18
Mr. M.N. Zoha, Ac to SC 8
For the writ Petitioner : Mr. Rajendra Narayan, Sr. Advocate
In LPA No.599 of 2012
For the Appellant : Mr. Lalit Kishore, Sr. Advocate with
Mr. Girijish Kumar, Advocate
For the Respondents : Ms. Juhi Kumar, AC to GP 13
For the writ Petitioner : Mr. Shashi Shekhar Tiwary, Advocate
In LPA No.881 of 2012
For the Appellant : Mr. Lalit Kishore, Sr. Advocate with
Patna High Court LPA No.454 of 2012 (6) dt.01-05-2014
4/7
Mr. Girijish Kumar, Advocate
For the Respondents : Mr. Prasoon Sinha GA 2
For the writ Petitioner : Mr. Shashi Shekhar Tiwari, Advocate
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
And
HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
6 01-05-2014These three Appeals preferred by the State Project Director, Bihar Education Project Council arise from the common judgment dated 18th October 2011 passed by the learned single Judge in CWJC Nos. 2671 of 2009 and 7748 of 2009 and the order dated 10th January 2012 made by the learned single Judge in CWJC No. 393 of 2012.
The first and foremost contention of the appellant is that the impugned orders have been made ex parte against the appellant since the appellant had not been made party to the writ Petitions. It appears that on 12th May 2007 the District Magistrate, Saran published a composite notice to invite application for appointment to the posts of Warden-cum-Teacher, Full Time Teacher and Part Time Teacher in Kasturba Gandhi Girls School, Saran; applications from girls for admission to Kasturba Gandhi Resident Girls School and applications from voluntary organizations for conduction of residential branch syllabus to ensure primary education to the child labourers in the District. Pursuant to the said public notice, the writ petitioners had applied for appointment in Kasturba Gandhi Girls School. After some selection process, the District Magistrate had drawn select lists for appointment to the posts of Warden-cum-Teacher, Patna High Court LPA No.454 of 2012 (6) dt.01-05-2014 5/7 Full Time Teacher and Part Time Teacher. Before the said select lists were operated, a fresh selection process was initiated for appointment to the aforesaid posts in Kasturba Gandhi Girls School under public advertisement published on 9th November 2007. This time the advertisement specified the cadres to which the appointment was to be made, the number of vacancies, the required qualification, age specifications and the monthly consolidated pay. The advertisement also specified that any person who had applied pursuant to the earlier advertisement will also have to make fresh applications. The advertisement also contained the terms and conditions of the appointment and the format in which application was required to be made.
Feeling aggrieved, the petitioners in CWJC Nos. 2671 of 2009 and 7748 of 2009 approached this Court under Article 226 of the Constitution to challenge the commencement of the selection process afresh. According to the said petitioners, the petitioners had acquired a right to appointment pursuant to their selection by the District Magistrate and that attempt to make selection afresh was bad in law.
The Petitions were contested by the respondents. Counter affidavits were entered. It was the specific case of the respondents that the public notice issued in the month of May 2007 was not in accordance with law. For the infirmities in the public notice, the said public notice and the selection process undertaken by the District Magistrate, Saran were cancelled under the orders of the Director, Primary Education.
The learned single Judge held that the respondents had not proved that the earlier selection process was defective and that the District Magistrate had opined that the selection Patna High Court LPA No.454 of 2012 (6) dt.01-05-2014 6/7 process was legal and valid. The learned single Judge, therefore, allowed the writ Petitions; directed the respondents to issue appointment letters to the writ petitioners; and to allow them to join in Kasturba Gandhi Balika Vidhyalaya, Saran.
On account of the aforesaid reliefs granted to the writ petitioners in CWJC Nos. 2671 of 2009 and 7748 of 2009, one Nitu Kumari approached this Court in CWJC No. 393 of 2012. It was the grievance of the said Nitu Kumari that in the merit list she was above the writ petitioners in CWJC Nos. 2671 of 2009 and 7748 of 2009. She was, therefore, entitled to a similar relief. The learned single Judge has accepted the contention and has issued a like direction in favour of the said Nitu Kumari. Therefore, these Appeals.
As recorded hereinabove, the impugned orders have been made ex parte against the appellant. The orders, therefore, deserve to be set aside on that ground alone.
However, on the merits also we are of the opinion that the learned single Judge has erred in issuing mandamus to issue appointment letters in favour of the petitioners and to allow them to join the service. Once it was brought on the record that for the reasons recorded the selection process was cancelled; a fresh selection process had already been commenced, in absence of mala fide alleged or established against the respondents the learned single Judge ought not to have issued mandamus. Moreso, when the writ petitioners were not at the top of the merit list. It is well settled that mere selection does not confer an indefeasible right to appointment. In support of this proposition, learned Principal Additional Advocate General appearing for the appellant has relied upon the judgment of the Supreme Court in Patna High Court LPA No.454 of 2012 (6) dt.01-05-2014 7/7 the matter of Shankarsan Dash Vs. Union of India [(1991) 3 Supreme Court Cases 47].
On perusal of the public notice issued on 12th May 2007 and the one issued on 9th November 2007, it is apparent that the public notice dated 12th May 2007 was issued without notifying the terms and conditions of appointment or the number of vacancies available. Ex facie the public notice dated 12th May 2007 was not sustainable. Besides, the public notice dated 9th November 2007 has also taken note of the earlier advertisement.
In above view of the matter, it is not possible to uphold the public notice dated 12th May 2007 and the selections made pursuant to that advertisement. In any view of the matter, no appointment can now be made in 2014 pursuant to a selection process commenced in 2007. The appellants or the concerned authority shall now have to initiate the recruitment process afresh in accordance with law.
For the aforesaid reasons, these Appeals are allowed. The impugned common judgment dated 18th October 2011 passed in CWJC Nos. 2671 of 2009 and 7748 of 2009 and the order dated 10th January 2012 made in CWJC No. 393 of 2012 are set aside. CWJC Nos. 2671 of 2009, 7748 of 2009 and 393 of 2012 are dismissed.
Interlocutory applications stand disposed of.
(R.M. Doshit, CJ) (Ashwani Kumar Singh, J) Manish/-