Jharkhand High Court
Bhola Nath Kumar vs State Of Jharkhand & Ors on 8 August, 2012
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2065 of 2010
Bholanath Kumar ...... Petitioner
Versus
The State of Jharkhand & others ...... Respondents
CORAM: HON'BLE MR. JUSTICE D. N. PATEL
For the Petitioner : Mr. H.K. Mahato, Advocate
For the Respondents : J.C. to A.G.
th
06/Dated: 8 August, 2012
1.Counsel for the petitioner is challenging the order passed by the respondents dated 21st January, 2010 whereby, the petitioner's claim for appointment on the post of Chowkidar has not been appreciated. Petitioner is seeking appointment on the post of Chowkidar mainly on the ground that his father was also a Chowkidar, now retired, and therefore, he should be given the post of Chowkidar. The petitioner also wants age relaxation as the petitioner has crossed the maximum age.
2. Counsel for the petitioner also submitted that the age of the petitioner should have been appreciated as on date of application and not on the date of consideration because there is long lapse of time between the date of application preferred by the petitioner for the post in question and the date on which the application was considered and therefore, the petitioner may not be treated as age barred for the post in question. When this Court raised a question that under which law the petitioner is claiming as a matter of right the post of Chowkidar he is unable to point out any provision of law except that his father was also a Chowkidar.
3. Counsel for the respondents vehemently submitted that the petitioner cannot claim as a matter of right the post of Chowkidar as an inheritance. It amounts to violation of Article 16 of the Constitution of India. On every public post, the petitioner has to compete with others. No such type of appointment can be made on a public post as a matter of right.
4. Having heard counsel for both the sides and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition mainly on the following facts and reasons:
(i) The present petition has been preferred for getting the post of Chowkidar at the village, which is referred in the memo of the petition.
2.(ii) The petitioner submitted that as his father was a Chowkidar and the petitioner being a son, he should be appointed as Chowkidar for which he had preferred an application and which was considered by the respondents, but, the claim of the petitioner has been rejected mainly on the ground of overage of the petitioner.
(iii) It has been held by Hon'ble Supreme Court in the case of Surender Paswan & Ors. Vs. State of Bihar & Ors. as reported in 2010 (3) JCR 161 (SC) especially in paragraph 2 and 12 which read as under: "2. This matter relates to the appointment of Chowkidars (village watchmen) in Madhepura District, Bihar. The appellants allege that in the pre constitutional setup, the practice in Bihar was to appoint village Chowkidars for lifetime who used to work without any leave or retirement. During his illness or absence, any of his family members would assist him in performance of his duties; and when he died or became infirm, usually his family member nominated by him would take over the functions of chowkidar, though the post was not strictly hereditary. In the postconstitutional set up, there was a gradual change in the village administration and several lifetime or hereditary or semihereditary appointments gave way to regular public service with appointments based on equal opportunity. This Court in Yogender Pal Singh vs Union of India, 1987(1) SCC 631 held that an opportunity to get into public service should be extended to all citizens equally; that any preference shown in the matter of public employment on the ground of descent alone was unconstitutional; and that any provision which conferred a preferential right to appointment on the descendents or other relatives of persons either in service or persons who retired from service, merely because they happened to be the children or wards of such employees, would be contrary to Article 16 of the Constitution.
12. In view of the order dated 7.4.1997 having attained finality, the appellants cannot claim any right to be appointed as legal heirs/nominees of erstwhile chowkidars/daffedars. Therefore, the question of either examining the validity of the Circular dated 20.12.1995 or considering whether the appointment of appellants was in terms of the said Circular, does not arise."
(Emphasis Supplied)
(iv) The petitioner cannot claim as a matter of right the post of Chowkidar otherwise, it will amount to violation of Article 16 of the Constitution of India. Public at large has to be offered the post and the petitioner has to compete with the others. No public post can be given to any person as an inheritance.
3.The petitioner's claim upon the post in question is only on the ground that he is son of his father, who was also a Chowkidar. Such type of public post cannot be given to the petitioner as an inheritance.
(v) It has been held by this Court in W.P.(S) No. 2072 of 2007 decided on 17th November, 2011. Paragraph4 reads as under: "Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition mainly for the fact that there is no legitimate right vested with the petitioner to be appointed as Chaukidar of village Raghunathpur, P.S. Chanho, District Ranchi. Moreover, the grounds stated in the petition that the entire villagers have requested that petitioner should be appointed, cannot be a reason for appointment of the petitioner as a Chaukidar. In view of these facts, there is no case made out by the petitioner to be appointed as Chaukidar. Moreover, after the commencement of the Constitution of India in force and specifically as per the Articles 14, 15 and 16 of the Constitution of India, public post cannot be given to the legal heir of the retired employee. There ought to be a public advertisement and equal opportunity should have been given to the eligible candidates. In view of this fact also, merely because petitioner is the son of a retired Chaukidar, he cannot be appointed merely because he is his legal heir. State authorities should take care of the matter that after commencement of the Constitution of India, no public post can be given as an inheritance to the son/daughter of a retired employee. There ought to be a public advertisement and candidates must be selected on the basis of their merits. I, therefore, direct the respondentsState Authorities that henceforth, no appointment shall be made without public advertisement on the post of Chaukidar. The provision ought to be applied in the light of the constitutional provisions and there ought to be a public advertisement and equal opportunity should have been given to all the eligible candidates."
(Emphasis Supplied)
5. As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, I see no reason to entertain this writ petition. Prayer made in this writ petition cannot be granted and there is no public duty vested in the respondents to give a public post as an inheritance to the petitioner. No writ of mandamus can be issued upon the respondents. Hence, this writ petition is dismissed.
(D.N. Patel, J) VK