Patna High Court - Orders
Sanjeev Kumar Mishra & Ors vs The State Of Bihar & Ors on 29 July, 2011
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.2625 of 2009
Sanjeev Kumar Mishra & Ors
Versus
The State Of Bihar & Ors
with
CWJC No.9836 of 2010
Birendra Thakur
Versus
The State Of Bihar & Ors
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4. 29.07.2011Heard learned Counsel for the petitioners and the State.
Learned Counsel for the petitioners are permitted to implead the Director, Bihar Education Project, as Respondent no. 5.Copy has been served on the Counsel for the Project who has assisted the Court also.
A supplementary counter affidavit is stated to have been filed by the Deputy Superintendent of Education of Darbhanga after serving a copy on the Counsel for the petitioners on 25.7.2011.The office shall trace the original and place it on record. Let a Xerox copy of the same placed during submission by the Counsel for the State be also kept on record.
An advertisement was published on 28.2.2007 by the Bihar Education Project inter alia for contract appointment on the post of Accounts Assistant cum Data Entry Operator in the district and block level offices at Darbhanga. The appointment was to be made on contract basis for a period of one year on specified terms and conditions. The duration of the appointment may or may not have been extended at the discretion of the Project based on their needs etc. and on which their decision was to be final. The petitioners participated in the selection process and were issued appointment letters on 5.6.2008 but their joining was not accepted. It is submitted that in the garb of alleged irregularities in the selection process the appointment is wrongly sought to be denied. An enquiry was initiated but action has been taken against none. Others recruited under the same advertisement in 2 pursuance of the same selection process, continue to work after their joining was accepted while the petitioners are being subjected to hostile discrimination.
The respondents from the two counter affidavits strenuously urged that a detailed enquiry has been held and a report submitted on 12.6.2008 by the Additional Collector, Darbhanga. After considering the same a decision was taken not to make any further appointments under the said advertisement. The eleven persons selected in the same process and allowed to work during pendency of the present proceedings were daily wagers since earlier. The respondents did not consider it prudent to go in for a fresh process of selection during pendency of the writ application and preferred to await the outcome thereof.
The appointment was to be for a duration of one year only. The stipulation for extension was but an inchoate right and cannot create any foundation for consideration on presumed continuity of the appointment beyond the period of one year which would remain dependant on a host of other factors. If the appointment letter, the basis of the claim is dated 5.6.2008, duration for which the relief is claimed has run its course. The fact that the petitioners may have approached this Court within the period of one year shall not put their claim at par with persons who may approach the Court within life of the panel for appointment on a regular post.
The Court has perused the enquiry report. It states that the examinations were held for the post of Accounts Clerk, peon cum Night Guard etc. in which irregularities have been found. There can be no doubt that the subject matter of the enquiry was the whole selection process and it cannot be read as confined to Peon and Accounts Clerk 3 only. If there was any doubt on that aspect the details of the report dispels the same. The Court does not consider it necessary to deal with all the materials mentioned therein inter alia with regard to the procedure of the examination held without proper approval, absence of secrecy in printing of the question papers. Suffice it to notice that in so far as the present petitioners are concerned it states that the appointment was to be made on post of Computer Operator, a technical post, for which technical knowledge was essential more particularly capacity to make entries by using Keyboard but the selection process had been finalised merely on basis of interview without testing the computer proficiency. The Court considers the same more than sufficient ground to uphold the decision not to make appointment on the ground of lack of fair procedure followed. There can be no two opinions on the complications that would follow if persons are appointed as Data Entry Operator without having proficiency for the job. The entire effort for modernization shall be brought to naught. Keeping in mind both aspects that the duration of the appointment has expired and that there were sufficient and germane reasons to held that the selection process was not proper the Court finds no reason to interfere.
The respondents in their counter affidavit have given more than sufficient indications that they desire to proceed with the selection process afresh, but were refraining from doing so awaiting the outcome of the present writ application. Now that the Court has declined interference, the respondents as per their own stand are obliged to issue fresh advertisement inviting applications. Should they not desire to make any appointment, as a matter of policy, it shall be their discretion. But, in that garb they cannot continue with daily wage 4 appointments except as a purely stop gap arrangement for a month or two only.
Any consideration in this order is confined to all such persons who may have participated in the present selection process pursuant to advertisement dated 28.2.2007. No such person can be allowed to continue on the post on Accounts Assistant cum Data Entry Operator on contract basis in a selection process undergone and an appointment letter issued under the advertisement.
The Court expects that the respondents shall now act responsibly and proceed with a decision on the need for advertisement expeditiously so as not to create heart burning and litigation. The question of any relaxation to be given by way of age or otherwise to those who may have participated in the earlier selection process are more questions of policy to be considered by the respondents in accordance with law.
The writ applications stand disposed with observations and directions.
Snkumar/- (Navin Sinha,J.)