Patna High Court - Orders
Sudhir Kumar Mishra & Ors vs The High Court Of Judicature At Patna & ... on 9 September, 2013
Author: Navin Sinha
Bench: Navin Sinha, Vikash Jain
Patna High Court LPA No.135 of 2013 (5) dt.09-09-2013
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.135 of 2013
In
Civil Writ Jurisdiction Case No. 19180 of 2012
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1. Sudhir Kumar Mishra Son Of Baudhu Mishta At Present Having His
Address At Patna High Court C.O. Office, P.O.- Patna High Court Sub Post
Office, P.S.- Kotwali, District- Patna
2. Sanjit Kumar Son Of Sri Ram Baran Singh At Present Having His
Address At Patna High Court Compound, P.O.- Patna High Court Sub Post
Office, P.S.- Kotwali, District- Patna
3. Anand Mohan Kumar Son Of Sri Moti Ram At Present Having His
Address At Patna High Court Compound, P.O.- Patna High Court Sub Post
Office, P.S.- Kotwali, District- Patna
.... .... Appellant/s
Versus
1. The High Court Of Judicature At Patna Through Its Registrar General
2. The Registrar General, The High Court Of Judicature At Patna
3. Sambhu Thakur Son Of Late Nirdhan Thakur Permanent Resident Of
Village- Parihar, P.O.- Parihar, P.S.- Baliya, District- Begusarai
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Bindhyachal Singh, Adv.
Mr. Satya Prakash, Adv.
For the Respondent/s : Mr. S.K. Lal, Adv.
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CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA
and
HONOURABLE MR. JUSTICE VIKASH JAIN
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE NAVIN SINHA)
5 09-09-2013We have heard learned counsel for the Appellants and the respondents.
The present Appeal arises from order dated 10.01.2013 disposing C.W.J.C. No. 19180 of 2012 with directions to hold fresh selection test within specified period and then consider regularization on basis of seniority. The reason assigned Patna High Court LPA No.135 of 2013 (5) dt.09-09-2013 was heart burning on account of regularization of junior drivers.
Learned counsel for the Appellants submitted that though they were impleaded as respondents in the writ application consequent to their successfully competing in the selection process, and had joined their posts also no notice was issued to them before the order assailed was passed. They stand to be prejudiced by the re-opening of the selection process. They had a right to be heard before the benefit could be considered for deprivation. It was next submitted that regularization was not based on seniority alone but on different criterias prescribed under the Rules including competency of driving skills through a selection test. The respondent had participated in the selection process himself without any objection with regard to the Rules or the process of selection itself. There are no allegations of favoritism, arbitrariness or for violation of the Rules in the selection process. Reliance was placed on (2008) 4 SCC 171 (Dhananjay Malik v. State of Uttaranchal) to submit that once the respondent participated in the selection process without demure, it was not open for him to turn around and question the selection process itself having been an unsuccessful candidate. Reliance was further placed on (2008) 9 SCC 242 ( Union of India v. Pushpa Rani) for the contention inter alia that criteria of selection, Patna High Court LPA No.135 of 2013 (5) dt.09-09-2013 evaluation, mode of selection process, the modalities for proving efficiency is best left to the employer for assessment according to his needs. The court could not sit in Appeal over the judgment of the employer and it has no role in laying down the criteria for selection in exercise of powers for judicial review. A comparative evaluation of merits between the candidates in the interest of administrative efficiency has to be left to the employer. Only if the action of the employer is contrary to constitutional or statutory provisions or is patently arbitrary or vitiated due to the mala fides, the Court may interfere.
Counsel for the Respondent submitted that the entire selection process was illegal, arbitrary and unfair. Seniority of persons has been ignored. No separate marks have been awarded under any different heads but only the total average consolidated marks obtained by the candidates has been the criteria for selection, which is arbitrary. The respondent had filed a representation which has not been paid heed. No specific mention was made that knowledge of Traffic Rules, Traffic Sense, and Spare parts utilized in a vehicle was required to be aware in a summary manner.
We have considered the submissions on behalf of the parties.
Patna High Court LPA No.135 of 2013 (5) dt.09-09-2013
It is a basic tenet of the principles of natural justice that no person can be condemned unheard. The rigors of this principle shall apply with greater force when a benefit has already accrued and is sought to be taken away. This naturally has civil consequences on the person concerned. The principle that no one can be condemned unheard does not apply only to administrative authorities but with equal force to proceedings under Article 226 of the Constitution of India also. No Court can pass an order to the prejudice of anyone without impleading that person as a party and giving an opportunity to be heard. That in our opinion is sufficient to interfere with the order under Appeal.
The respondent acknowledges that the absorption of drivers was being considered under the Patna High Court Officers and Staff (Conditions of Service and Conduct), 1997 read with 7th amendment Rules 2006. It inter alia provided for the candidate to undergo a test for driving skill etc. We have gone through the writ petition. There are no allegations that any favoritism was doled out to an individual candidate who has been selected without having to undergo the driving test. Much less is there any allegation, albeit even of a general nature that illegality or arbitrariness of any kind was practiced during the selection test in order to favour any particular candidate or set of candidates. Patna High Court LPA No.135 of 2013 (5) dt.09-09-2013 The mere fact that the respondent may be possessed of a driving license, in our opinion does not prevent the employer from deciding that it would like to retain quality drivers who possessed adequate knowledge of Traffic Rules, Traffic Sense and a summary knowledge of vehicles spares. Common sense and logic dictates that a driver must be acquainted with basic knowledge to attend routine break downs on the road and get the vehicle moving again. Possession of a driving is no assurance of driving skill. Merely because the respondent may have been senior from the date of appointment does not lead to any conclusion that he had better skill as a driver than those appointed after him.
The counter affidavit adequately explains that a Motor Vehicle Inspector was invited as an expert. The seniormost driver in the establishment of the Court was also present. The test was held on 25.05.2012. The statement of average consolidated marks obtained by the candidates was prepared and the three candidates with the higher average marks were selected. The rejoinder filed by the respondents to the counter affidavit before the learned Single Judge itself acknowledges the different heads of Traffic Sense, Traffic Rules, Summary knowledge of spare parts for which marks were given. The average consolidated marks mentioned in the counter affidavit was obviously the sum total of Patna High Court LPA No.135 of 2013 (5) dt.09-09-2013 the same. A bare perusal of the mark sheet appended to the counter affidavit clearly shows that the Appellants at serial nos. 3, 8 and 10 had higher marks than respondent at serial no. 1.
Learned counsel for the Appellants have rightly placed reliance on (2008) 4 SCC 171 ( Dhananjay Malik v. State of Uttaranchal) at paragraphs 7 and 9 which reads as follows:
`` 7. It is not disputed that the respondent-writ petitioners herein participated in the process of selection knowing fully well that the educational qualification was clearly indicated in the advertisement itself as BPE or graduate with diploma in Physical Education. Having unsuccessfully participated in the process of selection without any demur they are estopped from challenging the selection criterion inter alia that the advertisement and selection with regard to requisite educational qualifications were contrary to the Rules.
9. In the present case, as already pointed out, the respondent-writ petitioners herein participated in the selection process without any demur; they are estopped from complaining that the selection process was not in accordance with the Rules. If they think that the advertisement and selection process were not in accordance with the Rules they could have challenged the advertisement and selection process without participating in the selection process. This has not been done."
Likewise, the reliance on (2008) 9 SCC 242 (Union of India v. Pushpa Rani) at paragraph-37 is also very appropriate observing as follows:
``37. Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efficiency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the Patna High Court LPA No.135 of 2013 (5) dt.09-09-2013 action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open to the court to make comparative evaluation of the merit of the candidates. The court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efficiency of administration."
The order under Appeal is therefore held to be not sustainable. It is set aside.
The Appeal is allowed.
(Navin Sinha, J) (Vikash Jain, J) Md. Ibrarul/-