Patna High Court
Pushplata Kumari vs The State Of Bihar And Ors on 27 September, 2022
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13210 of 2014
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Pushplata Kumari Wife of Om Prakash Roy Resident of Village- Kharoj, P.O.-
Bedoli, P.S. Bhagwanganj, District- Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Social Welfare Depart-
ment, Govt. of Bihar, Patna.
2. The Director,Integrated Children Development Scheme ICDS Directorate,
Social Welfare Department,
3. The Commissioner, Patna Division, Patna.
4. The District Magistrate, Patna.
5. The Deputy Director, Welfare, Patna Division, Patna.
6. The District Programme Officer, Patna.
7. The Child Development Project Officer, Masaurhi, District- Patna.
8. Renu Sinha W/o Late Niranjan Singh Resident of Village- Kharoj, P.O.-
Bedoli, P.S.- Bhagwanganj, District- Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Abhay Shankar Singh, Advocate
For the Respondent/s : Mr.Sanjay Kumar, AC to GP 2
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
ORAL JUDGMENT
Date : 27-09-2022
In the instant petition, petitioner has prayed for the
following reliefs:-
"A) For issuance of appropriate
writ/writs, order/orders, direction/direc-
tions to hold and declare that Clause-4.9 of
the amended provisions of the Govt. guide-
lines issued from the ICDS Directorate for
the purpose of selection of 'sevika/sa-
hayika' as contained in memo no.
ICDS/30010/1-2011/6989 dated
19.12.2013of the Director, ICDS any Patna High Court CWJC No.13210 of 2014 dt.27-09-2022 2/12 Govt./Semi Govt. Officer/Employee as An- ganbari sevika/sahayika is nullity being un- just, unreasonable, unfair and arbitrary classification without any justification and thereby being violative of Article-14, 16 and 21 of the Constitution of India, as the same is in the teeth of the ratio laid down by the Apex Court in the case of Baliram Prasad vs. Union of India reported in AIR 1997 SC 637.
A copy of said amended guide-
lines dated 19.12.2013 is annexed as An- nexure-1.
B) For the consequential writ di-
recting the respondent to consider the peti- tioner's case for selection against the post of anganbari Sevika of Kharoj Anganbari Centre, Centre Code No. 208 of Laknor-Be- dauli Panchaya under Child Development Project Officer, Masaurhi, District- Patna, after calling for and quashing the selection letter of private respondent no.8 as she had been selected ignoring the claim of the pe- titioner, who was at Sl. No. 1 in the merit list having highest merit marks of 68.33 as prepared by the respondents for the said se- lection, but had been ignored due to said impugned amended guidelines (Annexure-
1).
C) For any other relief/reliefs to which the petitioner is found entitled under the facts and circumstances of the present case.
02. The post of Anganbari Sevika is governed by guide-
lines issued under memo no. ICDS/30010/1-2011/2862, dated 04.11.2011.
03. Pursuant to the aforesaid guidelines concerned re-
spondent proceeded to process the selection and appointment to Patna High Court CWJC No.13210 of 2014 dt.27-09-2022 3/12 the post of Anganbari Sevika and prepared a merit list on 28.09.2013 of Kharoj Anganbari Centre Code No. 208 under CDPO, Masaurhi in the District of Patna. Annexure-2 dated 28.09.2013 is the merit list in which petitioner name appears at Sl No. 1. She has secured 68.33%. On the other hand, Renu Sinha-re-
spondent no. 8 has secured 59.8% whose name is at Sl No. 2.
04. Concerned respondent could not issue appointment order to the petitioner to the post of Anganbari Sevika only on the score that petitioner's relative sister-in-law is stated to be an em-
ployee of Railway and providing appointment order to the peti-
tioner would be a hurdle in the light of amendment to the guide-
lines dated 19.12.2013.
05. The petitioner has not exhausted the remedy of ap-
peal. However, the present petition is admitted as on this date.
Therefore, question of resorting petitioner to exhaust statutory remedy of appeal is not warranted in the light of various Apex Court decisions.
06. Per contra, learned counsel for the respondent-State as well as respondent no.8 resisted the aforesaid contention that amended Clause 4.9 to the guidelines issued on 19.12.2013 is ap-
plicable. Therefore, there is no infirmity in the order of appoint-
ment issued in favour of the eighth respondent-Renu Sinha.
Patna High Court CWJC No.13210 of 2014 dt.27-09-2022 4/12
07. Learned counsel for the petitioner vehemently con-
tended that imposition of Clause 4.9 with reference to amended guidelines dated 19.12.2013 amounts to taking away the right of petitioner. It is submitted that every citizen has fundamental right to participate in the process of selection and appointment to a pub-
lic post, in the light of Article 14 and 16 of the Constitution.
Therefore, amended Clause 4.9 dated 19.12.2013 is required to be struck down.
08. Per contra, learned counsel for the respondent-State resisted the aforesaid contention and submitted that Anganbari Se-
vika post is generated under particular scheme in such an event certain restrictions/conditions can be imposed in order to provide employment to such of those families who do not have any em-
ployment with the State Government or any other Government or-
ganization.
09. Para 4.9 in the Guidelines, 2011 reads as under:-
"vkaxuckM+h lsfodk@lgkf;dk ds p;u gsrq ekxZnf"kZdk]2011 4.9 lacf/kr iapk;r@iz[kaM@vapy@vuqeaMy ,oa ftyk esa inLFkkfir ljdjh ¼dsUnz ljdkj ,oa jkT; ljdkj½@v)Zljdkjh iq:'k deZpkjh dh iRuh@cgw@vU; fj"rsnkj dk p;u lsfodk in ij ugha fd;k tk;sxkA¼fj"rsnkj ls vFkZ gS&ek¡ ¼lkSrsyk@nÙkd iq= ,oa iq=h@ HkkHkh ¼vFkkZr~ cM~s ,oa NksVs HkkbZ dh iRuh] iq=h]cgu½ARkFkk blds lkFk ljdkjh ¼dsUnz ljdkj ,oa jkT; ljdkj½@v)Zljdkjh efgyk deZpkjh@inkf/kdjh ds ekeys esa muds ifr ds lgksnj HkkbZ dh iRuh]cgq]iq=h vkSj uun½ lsfodk@lgkf;dk ds in ij p;u gsrq vk;sX; gksxhA"
Patna High Court CWJC No.13210 of 2014 dt.27-09-2022 5/12
10. Para 4.9 has been amended in the following manner on 19.12.2013 which reads as under:-
" ekxZnf"kZdk&2011dh dafMdk 4 dh mi dafMdk 4-9 dks fuEu :i ls la"kksf/kr fd;k tkrk gS& lacf/kr iapk;r@iz[kaM@vapy@vuqeaMy ,oa ftyk esa inLFkkfir ljdjh ¼dsUnz ljdkj ,oa jkT; ljdkj½@v)Zljd- kjh iq:'k deZpkjh@inkf/kdkjh dh iRuh@cgw@vU; fj"rsnkj dk p;u lsfodk in ij ugha fd;k tk;sxkA ¼fj"rsnkj ls vFkZ gS&ek¡ ¼lkSrsyk@nÙkd iq= ,oa iq=h@ HkkHkh ¼vFkkZr~ cM+s ,oa NksVs HkkbZ dh iRuh½]iq=h]cgu½A RkFkk blds lkFk ljdkjh ¼dsUnz ljdkj ,oa jkT; ljdkj½@v)Zljdkjh efgyk deZpkjh@inkf/kdjh ds ekeys esa muds ifr ds lgksnj HkkbZ dh iRuh]cgq]iq=h vkSj uun½ lsfodk@lgkf;dk ds in ij p;u gsrq vk;sX; gksxhA"
11. The aforesaid clause cannot be imposed by the State authorities in restricting such of those persons whose family mem-
ber or members have secured appointment with State Government or any organization of the State, for the reasons that fundamental right to employment against the public post would be taken away and it is in violation of Article 14 and 16 of the Constitution.
Therefore, the aforesaid Clause 4.9 is in violation of Article 14 and 16 of the Constitution. Apex Court in the case of Renu & Ors. vs. District and Sessions Judge, Tis Hazari Courts, Delhi & Anr. reported in (2014) 14 SCC 50 in para 6 to 17 held as un- der:-
"6. Article 14 of the Constitution provides for equality of opportunity. It forms the cornerstone of our Constitution.
Patna High Court CWJC No.13210 of 2014 dt.27-09-2022 6/12
7. In I.R. Coelho v. State of T.N., the doctrine of ba- sic features has been explained by this Court as un- der: (SCC p. 108, para 141) "141. The doctrine of basic structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Articles 14 and 19 which constitute the core values which if allowed to be ab- rogated would change completely the nature of the Constitution. Exclusion of fundamental rights would result in nullification of the basic structure doctrine, the object of which is to protect basic features of the Constitution as indicated by the synoptic view of the rights in Part III."
8. As Article 14 is an integral part of our system, each and every State action is to be tested on the touchstone of equality. Any appointment made in vi- olation of mandate of Articles 14 and 16 of the Con- stitution is not only irregular but also illegal and cannot be sustained in view of the judgments ren- dered by this Court in Delhi Development Horticul- ture Employees' Union v. Delhi Admn., State of Haryana v. Piara Singh, Prabhat Kumar Sharma v. State of U.P., J.A.S. Inter College v. State of U.P, M.P. Housing Board v. Manoj Shrivastava, M.P. State Agro Industries Development Corpn. Ltd. v. S.C. Pandey and State of M.P. v. Sandhya Tomar.
9. In Excise Supt. v. K.B.N. Visweshwara Rao, a larger Bench of this Court reconsidered its earlier judgment in Union of India v. N. Hargopal, wherein it had been held that insistence on recruitment through employment exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. However, due to the pos- sibility of non-sponsoring of names by the employ- ment exchange, this Court held that any appoint- ment even on temporary or ad hoc basis without inviting application is in violation of the said provi- sions of the Constitution and even if the names of candidates are requisitioned from employment ex- change, in addition thereto, it is mandatory on the part of the employer to invite applications from all eligible candidates from open market as merely call- Patna High Court CWJC No.13210 of 2014 dt.27-09-2022 7/12 ing the names from the employment exchange does not meet the requirement of the said articles of the Constitution. The Court further observed: (K.B.N. Visweshwara Rao caseSCC p. 218 para 6) "6. ... In addition, the appropriate department ... should call for the names by publication in the newspapers having wider circulation and also dis- play on their office notice ... and employment news bulletins; and then consider the cases of all candi- dates who have applied. If this procedure is adopted, fair play would be subserved. The equality of oppor- tunity in the matter of employment would be avail- able to all eligible candidates." (See also Arun Tewari v. Zila Mansavi Shikshak Sangh and Kishore K. Pati v. District Inspector of Schools, Midnapore.)
10. In Suresh Kumar v. State of Haryana this Court upheld the judgment of the Punjab and Haryana High Court wherein 1600 appointments made in the Police Department without advertisement stood quashed though the Punjab Police Rules, 1934 did not provide for such a course. The High Court reached the conclusion that process of selection stood vitiated because there was no advertisement and due publicity for inviting applications from the eligible candidates at large.
11. In UPSC v. Girish Jayanti Lal Vaghela this Court held: (SCC p. 490, para 12) "12. ... The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candi- dates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial, through a written examina- tion or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made ... Any regular appointment made on a post under the State or Union without issuing advertisement invit- ing applications from eligible candidates and with- out holding a proper selection where all eligible candidates get a fair chance to compete would vio- Patna High Court CWJC No.13210 of 2014 dt.27-09-2022 8/12 late the guarantee enshrined under Article 16 of the Constitution." (emphasis supplied)
12. The principles to be adopted in the matter of public appointments have been formulated by this Court in M.P. State Coop. Bank Ltd. v. Nanuram Ya- dav as under: (SCC pp. 274-75, para 24) "(1) The appointments made without following the appropriate procedure under the rules/government circulars and without advertisement or inviting ap- plications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India.
(2) Regularisation cannot be a mode of appoint- ment.
(3) An appointment made in violation of the manda- tory provisions of the statute and in particular, ig- noring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation.
(4) Those who come by back door should go through that door.
(5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules. (6) The court should not exercise its jurisdiction on misplaced sympathy.
(7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it diffi- cult to pick out the persons who have been unlaw- fully benefited or wrongfully deprived of their selec- tion, it will neither be possible nor necessary to is- sue individual show-cause notice to each selectee. The only way out would be to cancel the whole se- lection.
(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual inno- cence has no place and the entire selection has to be set aside.
13. A similar view has been reiterated by the Consti- tution Bench of this Court in State of Karnataka v. Patna High Court CWJC No.13210 of 2014 dt.27-09-2022 9/12 Umadevi (3), observing that any appointment made in violation of the statutory rules as also in violation of Articles 14 and 16 of the Constitution would be a nullity. "Adherence to Articles 14 and 16 of the Con- stitution is a must in the process of public employ- ment." The Court further rejected the prayer that ad hoc appointees working for long be considered for regularisation as such a course only encourages the State to flout its own rules and would confer undue benefits on some at the cost of many waiting to com- pete.
14. In State of Orissa v. Mamata Mohanty20 this Court dealt with the constitutional principle of pro- viding equality of opportunity to all which mandato- rily requires that vacancy must be notified in ad- vance meaning thereby that information of the re- cruitment must be disseminated in a reasonable manner in public domain ensuring maximum partic- ipation of all eligible candidates, thereby the right of equal opportunity is effectuated. The Court held as under: (SCC p. 452, para 36) "36. Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the employment ex- change or putting a note on the noticeboard, etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligi- ble for the post, from being considered. A person employed in violation of these provisions is not enti- tled to any relief including salary. For a valid and legal appointment mandatory compliance with the said constitutional requirement is to be fulfilled. The equality clause enshrined in Article 16 requires that every such appointment be made by an open adver- tisement as to enable all eligible persons to compete on merit."
15. Where any such appointments are made, they can be challenged in the court of law. The quo war- ranto proceeding affords a judicial remedy by which Patna High Court CWJC No.13210 of 2014 dt.27-09-2022 10/12 any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, fran- chise or liberty, so that his title to it may be duly de- termined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the pro- cedure of quo warranto gives the judiciary a weapon to control the executive from making ap- pointment to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public of- fice who might be allowed to continue either with the connivance of the executive or by reason of its apathy. It will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the court that the office in question is a pub- lic office and is held by a usurper without legal au- thority, and that inevitably would lead to an enquiry as to whether the appointment of the alleged usurper has been made in accordance with law or not. For issuance of writ of quo warranto, the Court has to satisfy that the appointment is contrary to the statu- tory rules and the person holding the post has no right to hold it. (Vide University of Mysore v. C.D. Govinda Rao, Kumar Padma Prasad v. Union of In- dia, B.R. Kapur v. State of T.N., Mor Modern Coop. Transport Society Ltd. v. State of Haryana, Arun Singh v. State of Bihar, Hari Bansh Lal v. Sahodar Prasad Mahto and Central Electricity Supply Utility of Odisha v. Dhobei Sahoo.)
16. Another important requirement of public ap- pointment is that of transparency. Therefore, the ad- vertisement must specify the number of posts avail- able for selection and recruitment. The qualifica- tions and other eligibility criteria for such posts should be explicitly provided and the schedule of re- cruitment process should be published with certainty and clarity. The advertisement should also specify the rules under which the selection is to be made and in absence of the rules, the procedure under which the selection is likely to be undertaken. This is Patna High Court CWJC No.13210 of 2014 dt.27-09-2022 11/12 necessary to prevent arbitrariness and to avoid change of criteria of selection after the selection process is commenced, thereby unjustly benefiting someone at the cost of others.
17. Thus, the aforesaid decisions are an authority on prescribing the limitations while making appoint- ment against public posts in terms of Articles 14 and 16 of the Constitution. What has been deprecated by this Court time and again is "back-door appoint- ments or appointment dehors the rules".
12. The principle laid down in the aforesaid case is that irrespective of any public post the concerned competent/ap-
pointing authority is required to resort Article 14 and 16 to any of the public post to be filed up in any organization of the State/Ancillary Organization of the State.
13. In the light of these facts and circumstance, peti-
tioner has made out prima facie case so as to interfere with the para 4.9 in the amended Guidelines dated 19.12.2013. Accord-
ingly, it is struck down.
14. Order of appointment issued in favour of eighth respondent-Renu Sinha to the post of Anganbari Sevika is hereby set aside for want of merit.
15. Concerned respondent is hereby directed to issue order of appointment to the petitioner within a period of two months from the date of receipt of this order. However, it is made clear that petitioner is not entitled to back wages. However, other service benefits shall be extended to the petitioner from the date of Patna High Court CWJC No.13210 of 2014 dt.27-09-2022 12/12 appointment order issued in favour of the eighth respondent-Renu Sinha.
16. Accordingly, the present writ petition stands allowed.
(P. B. Bajanthri, J) abhishekkr/-
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