Haidar Ansari vs The State Of Bihar, Through The ...
2021 Latest Caselaw 5716 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
              Civil Writ Jurisdiction Case No.7459 of 2020
======================================================

Rajveer Kumar

... ... Petitioner/s Versus The State of Bihar

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 4028 of 2020 ====================================================== Binod Kumar

... ... Petitioner/s Versus The State of Bihar

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 13391 of 2021 ====================================================== Nirmal Kumar

... ... Petitioner/s Versus The State of Bihar

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 15752 of 2021 ====================================================== Rafique Quraishi

... ... Petitioner/s Versus The State of Bihar

... ... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No. 16565 of 2021 ====================================================== Haidar Ansari

... ... Petitioner/s Versus The State of Bihar, through the Principal Secretary, Patna High Court CWJC No.7459 of 2020 dt.01-12-2021

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

(In Civil Writ Jurisdiction Case No. 7459 of 2020) For the Petitioner/s : Mr. Chittaranjan Sinha, Sr. Advocate For the Respondent/s : Mr. Rohitabh Das, AC to AAG 10 For BELTRON : Mr. Girijish Kumar, Advocate (In Civil Writ Jurisdiction Case No. 4028 of 2020) For the Petitioner/s : Mr. Y.V. Giri, Sr. Advocate : Mr. Pranav Kumar, Advocate For the Respondent/s : Mr. P.K.Verma, AAG 3 : Mr. Suman Kumar Jha, AC to AAG 3 (In Civil Writ Jurisdiction Case No. 13391 of 2021) For the Petitioner/s : Mr. Pranav Kumar, Advocate For the Respondent/s : Mr. Manish Kumar, GP 4 (In Civil Writ Jurisdiction Case No. 15752 of 2021) For the Petitioner/s : Mr. Nikhil Kumar Agrawal, Advocate : Ms. Aditi Hansaria, Advocate For the Respondent/s : Mr. Manish Kumar, GP 4 (In Civil Writ Jurisdiction Case No. 16565 of 2021) For the Petitioner/s : Mr. Nikhil Kumar Agrawal, Advocate : Ms. Aditi Hansaria For the Respondent/s : Md. N. H. Khan, SC 1 ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI ORAL JUDGMENT Date : 01-12-2021

Heard learned counsel for the parties.

2. In the instant petition, respondents have notified to fill

up the post of Executive Assistant pursuant to the advertisement

dated 06.08.2018.

3. The petitioner restricts present bunch of petition only

to Sasaram District. In respect of remaining petitions are

concerned, they are other than Sasaram District stand disposed of

reserving liberty to the concerned petitioner to file independent

petition.

4. Petitioner has prayed for following relief/reliefs: Patna High Court CWJC No.7459 of 2020 dt.01-12-2021

"(i) For setting aside the order dated 23.12.2019, contained in Memo No. 2341 issued by Bihar Administrative Reforms Mission Society, (General Administration Department) issued under the signature of Special Executive Officer Sri Satish Ranjan Sinha by which a decision has been taken to appoint the empanelled Executive Assistant from the panel which has been made in the various District of Bihar for only a short tenure of three months with a rider that they have to qualify the eligibility test taken by the BELTRON, which is not in consonance with the letter and spirit and the provisions of the advertisement taken out in the various Districts of Bihar including District of Madhubani, Gaya, Sheohar, East Champaran, Madhepura, Mungheyr, West Champaran, Begusarai etc., as well as it is in violation of the directions and the guidelines and recommendations made in Memo No. 436 dated 23.2.2019, issued by the office of Bihar Administrative Reforms Mission Society (General Administration Department) under the signature of the Additional Mission Director Dr. Pratima by which a decision was taken that the contractual appointment of the Executive Assistant by the Bihar Administrative Reforms Mission Society shall be made for 60 years or till the tenure of the scheme comes to end, whichever is earlier, so that there is no necessity of renewing the contract every year and further for allowing the Executive Assistant from the panel made in various districts including in the district of Madhubani by adhering to the terms and conditions of the Advertisement and the other dated 26.02.2019 Contained in Memo No. 436 issued by the General Administrative Department.

(ii) For a direction to the respondents to curb their arbitrary behavior in the matter of appointment/contractual appointment of Executive Assistant in the various District of Bihar whereby from the panel prepared pursuant to the common advertisement in the District of Madhubani, Sasaram, Patna etc., the services of some empanelled Executive Assistant have been taken till they are sixty years old whereas from the same panel other remaining candidates have been taken in service for only three months duration, that to with a rider that they have to qualify the eligibility exam taken by BELTRON which is in violation of the provisions of Article 14 and 16 of the Constitution of India.

(iii) For a direction to the respondent to not to involve BELTRON in the appointment/selection process of Executive Assistant pursuant to 2018 Advertisement taken out by the various District Establishment Branch in the State of Bihar Patna High Court CWJC No.7459 of 2020 dt.01-12-2021

pursuant to the order passed by Bihar Administrative Reforms Mission Society General Administration Department as there was no whisper of involvement of BELTRON in the whole selection process.

(iv) For a direction to the respondents to abstain from a discriminatory practice of taking the services of some candidates from the same panel till they attain 60 years of age or till the duration of the Scheme and on one hand they take the services of remaining candidates for just three months with a rider they have to qualify the Eligibility exam through BELTRON.

(v) For any other relief/reliefs to which the petitioner may be found entitled to by this Hon'ble Court."

5. Pursuant to advertisement dated 06.08.2018, a panel

was prepared on 02.03.2019. Further order of appointment was

issued on 22.01.2020. During the intervening period from the date

of preparation of panel dated 02.03.2019 and 22.01.2020, the date

on which the petitioners were appointed, the official respondent

issued a notification dated 23.12.2019 by which such of those

persons were appointed on contract basis to the post Executive

Assistant were required to pass certain prescribed proficiency test

to be conducted by BELTRON. Feeling aggrieved by the

prescription of proficiency test to be conducted by BELTRON

dated 23.12.2019, the petitioners are presented this petition.

6. Learned counsel for the petitioner vehemently

contended that selection and appointment to the post of Executive

Assistant on contract basis was required to be adhered in terms of

advertisement dated 06.08.2018. Once the panel is prepared on

02.03.2019, the respondent cannot prescribe further qualification Patna High Court CWJC No.7459 of 2020 dt.01-12-2021

like passing in proficiency test to be conducted by the BELTRON

in terms of 23.12.2019. Such additional prescription of

qualification for the post of Executive Assistant on contract basis

amounts to game changer.

7. Per contra, learned counsel for the respondents

submitted that respondents have every power to prescribe

education qualification before order of appointment was issued. In

order to strengthen their status in the post of Executive Assistant

proficiency test is required to be passed, therefore, the official

respondents have taken a policy decision that such of those

persons who were appointed to the post of Executive Assistant on

contract basis were required to pass proficiency test to be

conducted by BELTRON, therefore, there is no infirmity in the

order dated 23.12.2019 in prescription of proficiency test to be

conducted by the BELTRON to such of those appointees to the

post of Executive Assistant on contract basis in the State.

8. Heard learned counsel for the respective parties.

9. Crux of the matter in the present petition is whether

official respondent could add additional qualification for the

purpose of selection and appointment to the post of Executive

Assistant. Once the advertisement and process of selection was

completed with reference to the advertisement dated 06.08.2018 Patna High Court CWJC No.7459 of 2020 dt.01-12-2021

and panel was prepared on 02.03.2019 and further order of

appointment was issued on 22.01.2020 insofar as Sasaram District

is concerned. No doubt Annexure A1 dated 23.12.2019, the official

respondents have prescribed proficiency test for the purpose of

appointment to the post of Executive Assistant on contract basis

through BELTRON, the same was not reflected in the

advertisement dated 06.08.2018. In other words, for the first time,

passing of proficiency test to be conducted by BELTRON is

incorporated on 23.12.2019 and it has only prospective effect and

it has no retrospectivity to such of those recruitment which were

held prior to 23.12.2019.

10. In the light of these facts and circumstances, the

petitioners have made out a case so as to interfere with Annexure A

1 order dated 23.12.2019. Thus, insofar as petitioners selection and

appointment to the post of Executive Assistant pursuant to the

advertisement dated 06.08.2018 is concerned, the impugned order

dated 23.12.2019, Annexure 1 relating to prescription of

proficiency test to be conducted by BELTRON to the post of

Executive Assistant on contract basis under the advertisement

dated 06.08.2018 is not applicable. The official respondents cannot

prescribe passing of proficiency test to be conducted by Patna High Court CWJC No.7459 of 2020 dt.01-12-2021

BELTRON pursuant to the order dated 23.12.2019 insofar as

petitioners are concerned. Accordingly, petition is allowed.

11. At this stage, learned counsel for the State relied on

decision passed in CWJC 5823 of 2020 in which the impugned

order was not interfered. This Court has not taken note of the fact

that advertisement is dated 06.08.2018, panel was prepared on

02.03.2019 and a game changer like adding additional

qualification insofar as passing of proficiency test to be conducted

by BELTRON is dated 23.12.2019 and has no retrospective effect

and it is only executive order. Executive orders would be always

prospective in nature.

(P. B. Bajanthri, J) GAURAV S./-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          07.12.2021
Transmission Date       NA