Patna High Court - Orders
Jitendra Kumar Pandey vs The State Of Bihar & Ors on 6 July, 2010
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.550 of 1997
JITENDRA KUMAR PANDEY, son of Sri Hari Shankar
Pandey, resident of village Mathia, P.S. Lauria,
District West Champaran ... Petitioner
Versus
1. THE STATE OF BIHAR through the Director-in-
Chief, Health Services, Govt. of Bihar, Patna
2. The Deputy Director (Administration), Health
Services, Govt. of Bihar, Patna
3. Sri Brajesh Mehrotra, District Magistrate,
West Champaran
4. The superintendent, M.J.K. Hospital, Bettiah
5. Sri Uday Nath Mishra, Son of name not known,
Clerk, M.J.K. Hospital, Bettiah, West
Champaran
... Respondents
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6. 6.7.2010Heard Mr. Ashok Kumar Chaudhary, learned counsel for the petitioner and the counsel for the State.
The prayer of the petitioner in this writ application reads as follows:
"i) For issuance of a writ in the nature of mandamus directing and commanding the respondents to reinstate the petitioner in service or to appoint the petitioner on class III post in M.J.K.Hospital, Bettiah.
ii) For issuance of an appropriate writ directing and commanding the respondents to give the petitioner all consequential benefits after reinstating the petitioner in service or after re-appointing the petitioner on Class III post in M.J.K.Hospital, Bettiah
iii) For issuance of an appropriate 2 writ directing and commanding the respondents to make payment of salary to the petitioner for the period the work has been taken from the petitioner."
Mr. Chaudhary in support of the aforementioned prayer has raised three contentions, namely,
(i) The advertisement at the time of appointment of the petitioner as issued by the Superintendent of M.J.K.Hospital, Bettiah (hereinafter referred to as „the Hosptal‟) being confined to single post there could have been no concept of any reservation as against the single post. In this regard he refers to the judgment of the Apex Court in the case of Dr. Chakradhar Paswan vs. the State of Bihar & ors., reported in AIR 1988 S.C. 959.
(ii) The respondents did not comply the order of this Court in the earlier writ application filed by the petitioner, C.W.J.C.No. 5807/1993, and as such, the petitioner would be entitled to be reinstated in service on that ground alone.
(iii) The petitioner having
appointed in a prescribed manner and
3
continued in service from 21.3.1992, his
removal by an order dated 18.5.1993 would be also bad on concept of equitable consideration and therefore, this Court should not only quash the order dated 18.5.1993 but also direct for reinstatement of the petitioner with back wages.
Counsel for the State, on the other hand, has referred to the order of appointment of the petitioner and on that basis he submits that the appointment of the petitioner was made on a purely provisional basis and was subject to approval of the State Government. He, therefore, submits that when such approval was never given by the State Government and such provisional appointment came to be cancelled under the order of the Collector of the District, the petitioner cannot be said to have acquired any right on the basis of such purely temporary appointment. He has further submitted that earlier order of termination of service of the petitioner was confirmed in view of his illegal appointment and such illegality having been noted even by this Court, the order of termination of the 4 petitioner was not interfered with in C.W.J.C.No. 5807/1993 which was remitted on a very limited issue as with regard to roaster clearance, lack whereof was one of the grounds to hold earlier appointment of the petitioner to be illegal. Counsel for the State would, therefore, submit that in such a case where the appointment of the petitioner was made in teeth of Article 14 of the Constitution of India as also the policy of reservation, the petitioner cannot be said to have been clothed with any right and the plea of single post and thus, no reservation is also untenable, inasmuch as the cadre of clerk in the hospital had seven post out of which only five was available for general category and in view of the fact that two of them were carried forward on account of its being occupied by the candidate of general category, there was no possibility of appointment of the petitioner, a general candidate due to want of vacancy.
In the opinion of this Court, the appointment of the petitioner pursuant to Annexure 2, a notice board notice dated 5 13.3.1992 by itself was wholly illegal i.e. so because even if a single post had to be advertised that has to be given a wide publicity, otherwise every appointing authority can easily segregate the number of post for its being filled as a single post. This aspect of the matter has already been clarified in the circular of Personnel and Administrative Reforms Department which has laid down the procedure for filling up less than five vacancies by reporting it to the employment Exchange which has then to advertise in the newspaper for getting the applications of all those candidates through Employment Exchange.
The Superintendent having issued notice board notice on 13th March, 1992 and also the date of interview being 20th March, 1992 would leave nothing for this Court to speculate that a wholly innovative and unknown procedure was evolved by the Superintendent to appoint the petitioner. Such appointment of the petitioner, therefore, in which the Superintendent had neither followed the procedure laid down by the Government with regard to filling up of 6 Class III post vide circular of the Personnel and Administrative Reforms Department No. 16440 dated 3.12.1980, was rank illegal appointment. The Collector of the District who under the aforementioned circular dated 3.12.1980 has been empowered to make selection for all class III and Class IV post vacant in different Department of the district had therefore rightly interfered with the provisional appointment of the petitioner. The fact that the appointment of the petitioner was cancelled within 14 months by the order dated 18.5.1993 and the same despite being challenged before this Court in C.W.J.C.No. 5807/1993 was not interfered with would definitely stare in the face of the petitioner so far issue of illegality in the appointment is concerned. In fact even this Court after considering the same submission had held as follows:
" Learned counsel for the
petitioners contended that the
Government circular contained in
Annexure- A shall have no
application to the case in hand,
especially in view of the fact that a copy thereof was never forwarded 7 to the Superintendent of the concerned hospital. It is true that in the circular specific name of this hospital has not been mentioned, but ion the first page it is mentioned that it is addressed to all appointing authorities. From this, in our view, it can be said that this relates to the appointments in M.J.K. Hospital, Bettiah, as well.
Therefore, in our view, the circular shall have application to the case in hand and selection was not made by a Committee constituted in terms of the aforesaid circular and, as such, appointments have been rightly cancelled by order contained in Annexure 1.
Accordingly, we do not find any infirmity in the order contained in Annexure 1.
Now, the names which were considered by earlier Selection
Committee headed by Superintendent of M.J.K. Hospital, Bettiah, shall be placed for consideration before the Committee under the Chairmanship of the concerned District Magistrate in terms of Annexure- A to the counter affidavit filed on behalf of the State and, therefore, the said Committee shall consider the names of those persons including the 8 petitioners in accordance with law. Thereafter, the Superintendent of the concerned hospital shall make appointment in accordance with law.
All the formalities must be completed within a period of three months from the date of receipt/ production of a copy of this order."
The aforementioned finding in an inter-party judgment would also bind the petitioner to the same extent as would bind the respondent State and therefore, much cannot be now said about the initial appointment of the petitioner which having been found to be illegal was cancelled by the Collector and was not interfered by this Court while disposing of the earlier writ application of the petitioner, C.W.J.C.No. 5807/1993 vide an order dated 27.1.1994 (Annexure 6).
The submission of Mr. Chaudhary, therefore, that the order of this Court in C.W.J.C.No. 5807/1993 was not complied and there was no consideration of the case of the petitioner also seems to be incorrect, inasmuch as the respondents in paragraph 11 of the counter affidavit supported by 9 Annexure „B‟ thereof have clearly taken stand that there were in all nine post of Clerks available in the hospital and out of them seven had already been occupied by the candidates of general category leaving only two post vacant for the candidates of reserved category. Paragraph 11 of the counter affidavit, therefore, which can easily clinch the issue, needs to be extracted and is quoted hereinbelow:
"11. With regard to the statement made in para 35 of the instant writ application, it is stated and submitted that there were 9 post of clerk including one for steno typist in which 7 post were meant for general category and two post were reserved for the Schedule Caste and all were filled up earlier, hence there is no post of general category. It is very much evident from the proceeding of establishment Committee dated
19.1.1996 in which roaster has been cleared with regard to this case, hence there is no post of general category in order to absorb the petitioner."
It has to be noted that there is no rejoinder to the counter affidavit filed by 10 the petitioner and therefore, such stand taken by the respondents has remained uncontroverted. The moment, therefore, this Court finds that there was no vacancy available for general candidate on account of two of the general candidates already appointed excess in the allocated roaster of seven as clearly noted in Annexure „B‟, the proceedings of the meeting dated 19.1.1996, there would be nothing left for this Court to speculate that the order of this Court was correctly complied by considering and recording a finding that there was no vacancy in the general category for appointing the petitioner. There was no direction by this Court to pass a specific order in the case of the petitioner and therefore, Annexure „B‟ the proceeding of the Collector‟s Establishment Committee, while considering the case of the petitioner and two others and finding no vacancy for the petitioner would amount to sufficient compliance of the order of this Court in C.W.J.C.No. 5807/1993.
The last and the remaining submission of Mr. Chaudhary that there could 11 be no reservation of single post in view of the judgment of Dr. Chakradhar Paswan(supra) has to be only noted for its being rejected. As noted above, there are nine post in all and in which the quota of general candidate was only five and therefore, if one post was sought to be advertised by the Superintendent in the year 1992 even by way of notice board he had to obtain a roaster clearance and in fact he had to report to the Collector in view of the circular of the State Government dated 3.12.1980 as it was for the Collector of the District through his Selection Committee to select the person and send a name to the Deputy Superintendent for his appointment. Assuming that the Superintendent of the hospital could have advertised single post, the plea of single post being not capable of subjected to reservation in a cadre strength of nine post of clerk will loose its meaning because then in that case the appointing authority can always advertise only one post at one point of time for avoiding/transgressing the rule of reservation. The concept of applying reservation in appointment on government 12 posts in fact as per constitutional mandate would require consideration of total number of accumulated vacancy in one go so that the vacancy in question is always filed up on the basis of roaster and the category to which such vacancy would fall.
The parting submission of Mr. Chaudhary as with regard to equitable consideration can only be answered by holding that one who seeks equity also must do equity. Here in this case the petitioner had a back door entry in service and continued for a period of 14 months and therefore, he cannot claim equity as his appointment was itself illegal and in fact in teeth of Articles 14 and 16 of the Constitution of India.
That being so, this Court would not find any merit in this application and the same is, accordingly, dismissed.
(Mihir Kumar Jha,J.) Surendra/