Abhishek Kumar vs The State Of Bihar
2021 Latest Caselaw 4223 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.5823 of 2020
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1. Abhishek Kumar S/o Shri Birendra Kumar Singh Resident of ward no.-5 new Chowk Bazar, P.S.- Silaw, District- Nalanda.

2. Rakesh Kumar S/o Birje Paswan R/o Village- Chhatiyana, P.S.- Harnaut, District- Nalanda.

3. Priya Kumari D/o Sanjay Kumar Maharaj Resident of Mohalla- Jalalpur, Post- Sohsarai, District- Nalanda, Bihar.

4. Amrit Ranjan Kumar S/o Udho Thakur R/o Village- Alawan, P.O.- Alawan, P.S.- Parwalpur, Dist.- Nalanda.

5. Manish Kumar S/o Anil Kumar Resident of Mohalla- Khandakpur, Patthar Gali, Bihar Sharif, District- Nalanda, Bihar.

6. Dhananjay Kumar S/o Madan Prasad Resident of Dhurgaon, District-

Nalanda, Bihar.

7. Sanoj Kumar S/o Ramchandra Prasad Resident of Hafichak, Raitar, District-

Nalanda, Bihar.

8. Rajni Kumari D/o Bhola Choudhary Resident of Mogal Kuan, Saraia, Sohsarai, District- Nalanda, Bihar.

9. Raju Kumar S/o Suresh Prasad Resident of Village- Toofanganj, Ward No.

-05, Post- Sohsarai, P.S.- Rahua, Imamganj, District- Nalanda, Bihar.

10. Pravin Kumar S/o Naresh Prasad Resident of ward no. 14, Milkipar, Ekanagar Sarai, District- Nalanda, Bihar.

11. Ramesh Shekhar S/o Arjun Prasad Resident of Village- Lodipur, P.o.-

Sirnwath, P.S.- Wena, District- Nalanda, Bihar.

12. Rampukar Bharti S/o Rajaram Resident of Village- Bhathiyaar, P.o.- Jodhan Bighan, P.S.- Harnaut, District- Nalanda.

13. Pankaj Kumar S/o Bijendra Prasad Resident Ward No. -42, Neemganj, Near Police Chowki, Bihar Sharif, District- Nalanda, Bihar.

14. Vicky Kumar S/o Arvind Sharma Resident of Bhojpur, Puri, District-

Nalanda, Bihar.

15. Deepak Kumar S/o Ravindar Prasad Resident of Village- Chulihari, Post-

Noawan, District- Nalanda.

16. Prashant Vidyarthi S/o Arjun Prasad Resident of Mohalla- Sahokhar, P.o.-

Sohsarai, District- Nalanda, Bihar.

17. Bhagy Shri Sharma D/o Dinesh Pd. Sharma Resident of Village- Dhapar, Sargaon, Noorsarai, District- Nalanda, Bihar.

18. Gautam Kumar S/o Ranjit Prasad Resident of Okanavo, P.S.- Biharsharif, District- Nalanda, Bihar.

19. Awinash Kumar S/o Yadunandan Prasad Kachariya, Thana- Chandi, District-

Nalanda.

20. Vikash Paswan S/o Kaushlendra Kumar Resident of Khairabad, District-

Nalanda, Bihar.

Patna High Court CWJC No.5823 of 2020 dt.23-08-2021

21. Ravi Ranjan Kumar S/o Chandrika Prasad R/o Village- Bhat Bigha, P.o.-

Juniyar, P.S.- Hilsa, District- Nalanda.

22. Mamta Kumari D/o Vijay Prasad Resident of ward no.-1, Sodih, Gola Par, Post- Sohsarai, Bihar Sharif, District- Nalanda.

23. Pappu Kumar S/o Bal Krishna Prasad Resident of Mansur Nagar Sohsarai, District- Nalanda, Bihar.

24. Akash Kumar S/o Ganauri Mistry Resident of Village- Gobariya, Post-

Chandaura, District- Nalanda, Bihar.

25. Bagish Bhushan S/o Sunil Kumar Resident of Hilsa, Durga Asthan, Hilsa, District- Nalanda, Bihar.

26. Shivam Kumar S/o Binod Singh Resident of Dekpura, Post- Moratalab, District- Nalanda, Bihar.

27. Ashish Kumar Chowdhary S/o Kapildeo Chaudhary Resident of Village and P.O. and P.S. Deepnagar, District- Nalanda, Bihar.

28. Siddarth Chandan S/o Deonandan Prasad Resident of Village - Nanand, P.O. Nanand, P.S. Silao, District- Nalanda.

29. Chandan Kumar S/o Umesh Prasad Resident of Village Barhag, Post-

Barhag, P.S. Bind, District- Nalanda, Bihar.

30. Amit Kumar S/o Hari Paswan Resident of Kamaibigha, Anchal- Chandi, District- Nalanda, Bihar.

31. Jitendra Kumar S/o Shrikant Sharma Resident of Jamalpur Kharjama, P.S. Chhabilapur, Goraur, District- Nalanda, Bihar.

32. Sucheta Rani D/o Sudhir Prasad Resident of Village - Jagatnandanpur, Bhandari, District- Nalanda, Bihar.

33. Suraj Kumar S/o Vijay Prasad Resident of Mohalla Baburbanna, Post-

Sohsarai, P.S. Rahui, District- Nalanda, Bihar.

34. Prince Kumar S/o Ajay Singh Resident of Bhaisasour Bihar Sharif, District-

Nalanda, Bihar.

35. Ankit Kumar S/o Ramashish Prasad Resident of ward 1, P.O. Daniyawan, Paindapur, District- Nalanda, Bihar.

36. Puja Kumari D/o Ashok Kumar Resident of Mohalla- Karunabag Galla Patti Sohsarai, District- Nalanda, Bihar.

37. Avinash Kumar S/o Ami Chand Resident of Asha Nagar, Bihar Sharif, District- Nalanda, Bihar.

38. Shivraj S/o Ajay Kumar Resident of Naisarai, Bihar Sharif, District-

Nalanda, Bihar.

39. Komal Kumari D/o Mahesh Prasad Resident of Post- Parwalpur, District-

Nalanda, Bihar.

40. Mukesh Kumar S/o Indu Ram Resident of Village- Narsinghpur, Post-

Sonsa, P.S. Rahui, Sonsa, District- Nalanda, Bihar.

41. Rikita Kumari D/o Navin Kumar Resident of Village Silao, P.O. Silao, District- Nalanda, Bihar.

42. Bhushan Kumar S/o Vishun Das Resident of Rahui, District- Nalanda, Bihar. Patna High Court CWJC No.5823 of 2020 dt.23-08-2021

43. Kaushal Kumar S/o Durga Prasad Resident of Village -Aungari, P.O. Aungari, District- Nalanda, Bihar.

44. Pallavi Kumari D/o Ashok Prasad Resident of Rahui, District- Nalanda, Bihar.

45. Dinkar Kumar S/o Paras Prasad Resident of Piparpur, Jiar Asthawan, District- Nalanda, Bihar.

46. Akram Hussain S/o Md. Shahood Resident Alam, Azizghat, District-

Nalanda, Bihar.

47. Kundan Rajak S/o Pankaj Rajak Resident of Tufanganj, Post- Sohsarai, Thana- Rahui, Imamganj, District- Nalanda, Bihar.

48. Rakesh Kumar S/o Gauri Shankar Prasad Resident of Village Pathraura, Dola, District- Nalanda, Bihar.

49. Prince Kumar S/o Nawal Mistri Resident of Tikulipar, Hadiyapokhar, District- Nalanda, Bihar.

50. Harsh Raj S/o Ajit Kumar Resident of Ibrahimapur, Anchal- Bind, District-

Nalanda, Bihar.

51. Manish Kumar S/o Brahmdeo Prasad Resident of Village Pratappur, P.S. Jamalpur, District- Nalanda, Bihar.

52. Ashish Bhardwaj S/o Rajendra Prasad Resident of Shiv Asthan Colony, Rajgir, District- Nalanda, Bihar.

53. Krishna Murari S/o Ram Sanjeevan Pandit Resident of Raipur Koyal Bigha, P.S.- Tharthari, District- Nalanda, Bihar.

54. Abhishek Kumar S/o Kumar Indra Mohan Misha Resident of P.O. and P.S. and District- Nalanda, Bihar.

55. Guddu Kumar S/o Sadabrish Yadav Resident of Amber Ward No.- 12, Bihar Sharif, District- Nalanda, Bihar.

56. Anmol Kumari W/o Raviranjan Resident of Sohsarai, P.O. and P.S. Sohsarai, District- Nalanda, Bihar.

57. Gauri Shankar Kumar S/o Brijnananda Paswan Resident of Village-

Chhatiyana, Chhatiyana, District- Nalanda, Bihar.

58. Akash Kumar S/o Suresh Ram Resident of Village- Amber Tikulipar, P.S.-

Biharsharif, District- Nalanda, Bihar.

59. Nitish Kumar S/o Jageshwar Prasad Resident of Village- P.O.-

Mahanandpur, P.S.- Deep Nagar, District- Nalanda, Bihar.

60. Prince Raj S/o Jaikant Singh Resident of Village- Mahuri, Panchayat-

Noorsarai, District- Nalanda, Bihar.

61. Nitish Kumar S/o Birmani Sao Resident of Ranchi Road, Sonu Singar Store, P.S.- Harnaut, District- Nalanda, Bihar.

62. Manjeet Kumar S/o Niranand Nirala Resident of Opposite Durga Mandir, Village- Kedal, B.I.T. More, P.O.- Neori Vikash, P.S.- Jharkhand, Ranchi.

63. Deepak Kumar S/o Suhambhu Prasad Resident of Village- Arya Samaj Road, P.S.- Hilsa, District- Nalanda, Bihar.

64. Raju Kumar S/o Arjun Thakur Resident of Village- Rahui, P.S.- Rahui, Patna High Court CWJC No.5823 of 2020 dt.23-08-2021

District- Nalanda, Bihar.

65. Manisha Ranjan D/o Vivek Sao Resident of Village- Chandani Kalali, P.S.-

Biharsharif, District- Nalanda, Bihar.

66. Shishupal S/o Kishori Lal Rao Resident of Village- Chaukhandi Hajiapur, P.S.- Biharsharif, District- Nalanda, Bihar.

67. Sumit Kumar S/o Shiv Kumar Prasad Resident of Village- Gilani, P.S.-

Barbigha, District- Nalanda, Bihar.

68. Sandeep Kumar S/o Nandkishore Kumar Resident of Village- Habbipur, P.O.- Habbipur, P.S.- Shivnagar, District- Nalanda, Bihar.

69. Navin Kumar S/o Bindeshwar Prasad Resident of Village- Dherwaha, P.O.-

Bartipai thana, P.S.- Islampur, District- Nalanda, Bihar.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, General Administration Department, Government of Bihar, Patna.

2. The Finance Secretary Government of Bihar, Patna.

3. The Principal Secretary Panchayati Raj, Government of Bihar, Patna.

4. The Managing Director Bihar Administration Reforms Mission Society, Government of Bihar, Patna.

5. The Additional Secretary to Government of Bihar Patna.

6. The Additional Director Bihar Administration Reforms Mission Society, Government of Bihar, Patna.

7. The OSD Bihar Administration Reforms Mission Society, Government of Bihar, Patna.

8. The D.M. Nalanda, Bihar.

9. The Managing Director Beltron, Sheikhpura, Patna.

10. The Additional Chief Secretary, General Administration Department, Govt. of Bihar-cum-Mission Director, General Administration Department, Govt. of Bihar.

... ... Respondent/s ====================================================== Appearance :

       For the Petitioner/s     :       Ms. Alka Verma, Advocate
       For the State            :       Mr. Md.Nadim Seraj (GP-5)
       For BELTRON             :        Mr. Girijesh Kumar, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Date : 23-08-2021

The petitioners are seeking quashing of an order dated Patna High Court CWJC No.5823 of 2020 dt.23-08-2021

23.12.2019, issued by Bihar Prashashnik Sudhar Mission Society

(in short 'BPSMS') of the General Administration Department,

Government of Bihar, whereby and whereunder a decision has

been taken to engage executive assistants in various districts for a

period of three months by way of an interim measure. During the

said period of three months, the engaged executive assistants are

required to pass a proficiency test to be organised by Bihar State

Electronics Development Corporation Limited (BELTRON). The

order further mentions that level of the proficiency test shall be

the same as fixed for Data Entry Operator (DEO) of BELTRON.

Engagement of executive assistants, who pass the proficiency

test, can be extended beyond three months whereas engagement

of those who fail shall be terminated with immediate effect, the

order states. The order further contemplates that the engaged

executive assistants shall have to give an undertaking to the

aforesaid effect at the time of their engagement.

2. The petitioners have sought for additional reliefs by

filing I.A. No. 01 of 2021, I.A. No. 02 of 2021, I.A. No. 03 of

2021, I.A. No. 04 of 2021 and I.A. No. 05 of 2021 to the

following effect :-

"For setting aside the decision taken by BPSM in 26th Shashi Parisad meeting in proceeding no. 8 by which the petitioner had to undergo a Patna High Court CWJC No.5823 of 2020 dt.23-08-2021

qualifying exam taken by Beltron, failing which their services would automatically come to an end.

For quashing letter no. 948 dated 26.06.2021 issued by BPSM by which the petitioners were to appear in the qualifying exam taken by Beltron and were to be terminated if disqualified and for putting a stay on it during the pendency of the writ application. And further a prayer was made for amending/ reframing part of the prayer no. 1(i) in relation to letter no. 66/stha. Only the conditions laid in clauses 1 to 6 of letter no. 66/stha was meant to be challenged.

For setting aside letter no. 1069 dated 09.07.2021 by which the petitioners were to appear in qualifying exam on 31.07.2021 to be taken by Beltron and to put a stay upon this letter during the pendency of the application.

For a direction to the respondent to take appropriate action against the erring officials who illegally filled the registration form of Beltron on behalf of petitioners by copy pasting their signatures from the old documents.

For a direction to the respondent to not to disturb the services of the petitioners and allow them to give their services in the protection of Cabinet Resolution vide memo no. 12534."

Patna High Court CWJC No.5823 of 2020 dt.23-08-2021

3. The facts of the case, as disclosed in the writ petition

are that the Principal Secretary, Panchayati Raj Department,

Government of Bihar in his letter dated 28.07.2018, addressed to

all the District Magistrates of the State required preparation of

panels for engagement of executive assistants at Panchayat level

for implementing various schemes of Central Government and

the State Government. In his subsequent letter dated 01.08.2018,

addressed to the District Magistrates the Principal Secretary,

Panchayati Raj Department made a request to all the District

Magistrates to make available one executive assistant for each

Gram Panchayat. The communication dated 01.08.2018 indicated

that the decision to provide executive assistants for each

Panchayat was taken to enhance the use of information

technology in Gram Panchayat offices and for effective

management of their functioning. Evidently, the executive

assistants to be engaged were required to have knowledge of

computer.

4. Nalanda Collectorate at Biharsharif came out with

an advertisement inviting applications for the post of executive

assistants, a copy of which has been brought on record by way of

Annexure-3 to the writ application. The last date of submission of

application was prescribed as 30.09.2018. The petitioners claim Patna High Court CWJC No.5823 of 2020 dt.23-08-2021

that they qualified in the examination conducted for the selection

process pursuant to the said advertisement and their names figure

amongst total number of 324 candidates who qualified. It is

noted, at this stage, that the fact that in the panel published on

03.06.2019, in which the petitioners' names figured, is not in

dispute.

5. It appears that before the petitioners could be

engaged after their empanelment, BPSMS came out with an

order issued on 31.07.2019 directing that the remaining

sanctioned vacant posts of executive assistants in the State of

Bihar shall be filed up through BELTRON.

6. It is the petitioners' case that similar selection

processes were undertaken for engagement of executive assistants

in other districts where, upon empanelment, the persons were

engaged before issuance of the said order dated 31.07.2019,

issued by BPSMS.

7. The Principal Secretary sent the communication

dated 28.08.2019 to the Additional Chief Secretary, General

Administration Department, Government of Bihar seemingly

referring to the order of BPSMS dated 30.07.2019, whereby it

was decided that services of executive assistants shall be made

available by BELTRON.

Patna High Court CWJC No.5823 of 2020 dt.23-08-2021

8. Considering the difficulties, which were faced by the

said arrangement, the Principal Secretary, Panchayat Raj

Department, requested the Additional Chief Secretary, General

Administration Department to allow the previous arrangement of

making available the services of executive assistants from the

panel prepared by district administration. The petitioners rely on

the decision taken by the Governing Body of BPSMS in its 24 th

meeting dated 20.09.2019 wherein it was decided, inter alia, that

requirement of engaging executive assistants as made available

by BELTRON in terms of the earlier order dated 30.07.2019

would not be applicable in respect of the districts where the panel

was prepared by the district establishment before issuance of the

said order. A copy of the minutes of the meeting dated 20.09.2019

has been brought on record by way of Annexure-9 to the writ

application. It is the petitioners' case that the said decision of

BPSMS dated 20.09.2019 was not made public for ten days and a

decision was taken to take Data Entry Operators through

BELTRON.

9. It is evident from the impugned order dated

23.12.2019 that the same has been issued in compliance with the

decision taken in 25th meeting of BPSMS held on 13.12.2019

which, as has been noted above, requires, inter alia, that the Patna High Court CWJC No.5823 of 2020 dt.23-08-2021

executive assistants appointed from the panels prepared at the

district level shall be initially for a period of three months during

which they will have to pass an examination to be held by

BELTRON and only those, who pass the examination, can be

allowed to continue after three months.

10. The facts asserted in the writ petition as noted

above, are not in dispute. Ms. Alka Verma, learned counsel

appearing on behalf of the petitioners assailing the impugned

order has drawn the Court's attention to a Cabinet resolution No.

12534 dated 17.09.2018 which, according to her, prescribes that

services of contractual employees shall be taken till their age of

superannuation or till the length of scheme, whichever is earlier,

and they can be replaced only by regular appointment. She has

vehemently argued that the decision of BPSMS is in violation of

the said cabinet resolution dated 17.09.2018. She has argued that

the decision of BPSMS, which requires candidates to clear

examination to be held by BELTRON as condition precedent for

extension of their contractual engagement beyond three months,

is not only contrary to the advertisement and the said cabinet

resolution, the same is in violation of Articles 14 and 16 of the

Constitution of India, inasmuch as, similarly circumstanced

persons in other districts have been engaged as executive Patna High Court CWJC No.5823 of 2020 dt.23-08-2021

assistants without any requirement for them to clear the computer

proficiency test.

11. Mr. Md. Nadim Seraj, learned GP-5 representing

the State of Bihar has, on the other hand, submitted that

considering the requirement of the job it was rightly decided by

BPSMS to provide for passing of test equivalent to the test for

Data Entry Operator to be conducted by BELTRON. He has

relied on a coordinate Bench decision of this Court in case of

Neha Sharma & Ors. vs. The State of Bihar & Ors. reported in

2017(1) PLJR 431 which had arisen out of a selection process

under Bihar Vikash Mission, wherein this Court relying on a

decision in case of Yogesh Yadav vs. Union of India & Ors.

reported in 2013(4) PLJR (SC) 121 has approved the selection

done by raising the bar and setting certain high standard for

selection. Case of Neha Sharma (supra) has been approved by a

Division Bench of this Court in its decision reported in 2018(4)

PLJR 1012 (Tulika Shekhar vs. The State of Bihar and other

analogous cases). Reference has also been made to a decision

rendered by this Court on 28.06.2021 in CWJC No. 3784 of 2020

(Dhirendra Kumar Mishra and others vs. The State of Bihar

and others), wherein the plea of the petitioners of that case for

not giving effect to the decisions dated 31.07.2019 and Patna High Court CWJC No.5823 of 2020 dt.23-08-2021

23.12.2019, was not accepted.

12. In reply, Ms. Alka Verma has submitted that the

said decisions in case of Yogesh Yadav (supra), Neha Sharma

(supra), Tulika Shekhar (supra) and Dhirendra Kumar Mishra

(supra) have no application in the facts and circumstances of the

present case. She has submitted that a case of violation of

fundamental right guaranteed under Articles 14 and 16 of the

Constitution of India is made out in the present case, as similarly

situated executive assistants engaged in districts prior to issuance

of the order on 31.07.2019 have not been imposed any condition

of passing of examination to be conducted by BELTRON.

13. I have carefully perused the pleadings brought on

record and have given my anxious consideration to the rival

submissions made on behalf of the parties. It has to be borne in

mind that it is settled legal position that inclusion of name in the

panel does not given a person any right to be appointed. The

policy decision of BPSMS, as reflected in the order issued by the

General Administration Department dated 31.07.2019, before the

petitioners were actually engaged, cannot be said to be

unreasonable, arbitrary, unauthorised or otherwise illegal which

requires engagement of executive assistants from the panel made

available by BELTRON, which is a Government of Bihar Patna High Court CWJC No.5823 of 2020 dt.23-08-2021

undertaking and not a private body.

14. It is evident from the materials on record that

knowledge in computer is apparently a basic requirement for

performance of duties by an executive assistant. Visibly, in the

said background, a policy decision appears to have been taken by

BPSMS under the General Administration Department,

Government of Bihar to engage executive assistants for

Panchayats on the basis of names made available by BELTRON.

15. It transpires that taking into account the fact that in

some districts including in the district of Nalanda panels were

prepared pursuant to an advertisement, a decision was taken to

engage executive assistants from such panels with the condition

that they have to clear an examination to be conducted by

BELTRON. The said policy decision has apparently been taken to

safeguard the interest of selected candidates on the basis of

district level advertisement who could have been otherwise not

engaged in view of earlier decision of BPSMS and subsequent

order of the General Administration Department dated

31.07.2019. Had there been no decision in the nature of order

dated 23.12.2019, the petitioners could not have had any claim

for their engagement, only on the basis of inclusion of their

names in the panel. The petitioners, unfortunately, are challenging Patna High Court CWJC No.5823 of 2020 dt.23-08-2021

the decision of BPSMS and the General Administration

Department taken in their interest. Requirement of passing of the

examination of the standard of Data Entry Operator is apparently

in public interest commensurate with the requirement of the post

in question.

16. Further challenge to the impugned order and

subsequent action on the ground of the same being violative of

Articles 14 and 16 of the Constitution is not at all sustainable. No

case of discrimination among similarly situated candidates of the

selection process in question is made out. The petitioners cannot

allege violation of Articles 14 and 16 of the Constitution on the

ground that in other districts engagements were made prior to

decision of BPSMS/ State Government as contained in the order

dated 31.07.2019, since the said engagements were made out

different selection processes altogether.

17. This application, in my opinion, has no merit and is

accordingly dismissed.

(Chakradhari Sharan Singh, J) Rajesh/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          25.08.2021
Transmission Date       NA