Patna High Court

Chandan Kumar Choudhary vs The State Of Bihar And Ors on 7 January, 2021

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.2326 of 2018
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Chandan Kumar Choudhary S/o Late Suresh Choudhary, resident of Phakrabad, Post + P.S.- Sonpur, District- Saran (Bihar).

... ... Petitioner/s Versus

1. The State Of Bihar through Law Secretary, Bihar, Patna.

2. The High Court of Judicature at Patna through its Registrar General.

3. The Registrar General, the High Court of Judicature at Patna.

4. The Registrar (Administration), the High Court of Judicature at Patna.

5. The District and Sessions Judge, Civil Court, Siwan.

6. The Registrar, Civil Court, Siwan.

7. Incharge Judge, Administration, Civil Court, Siwan.

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

For the Petitioner/s : Mr. Baxi S.R.P. Sinha, Sr. Adv.

Mr. Sandeep Jha, Adv.

For the Respondent/s : Mr.Piyush Lall, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 07-01-2021

Heard Mr. Baxi S.R.P. Sinha, learned senior counsel

assisted by Mr. Sandeep Jha, learned Advocate on behalf of petitioner

and Mr. Piyush Lall, learned Advocate representing Respondent Nos.

2 to 7, who are the contesting respondents.

2. Petitioner in the present case is seeking a direction to

the contesting respondents to appoint him on the post of 'Typist' on

compassionate ground.

3. It is the case of the petitioner that after death of his

father, who was working as a typist in the Civil Court, Siwan, he

made an application for appointment on compassionate ground in the Patna High Court CWJC No.2326 of 2018 dt.07-01-2021

year 2012-2013. The claim of the petitioner was enquired into and a

report vide Letter No. 273 dated 07.06.2011 (annexed with the writ

application) was submitted by the Circle Officer, Sonpur (Saran)

confirming the genuineness of the claim of the petitioner.

4. It is further pleaded that the Judge Incharge

(Administration) Civil Court, Saran examined the application

submitted by the petitioner and vide letter dated 10.12.2014, the

Judge Incharge (Administration) Civil Court, Siwan directed the

petitioner to appear in the written examination held on 13.12.2014.

5. It is stated that the petitioner appeared in the said

examination, he was declared pass and then a date for interview was

also fixed. The petitioner appeared in the interview and he was again

declared pass but for a long time when the petitioner did not hear

anything about his appointment, he raised a grievance by submitting

an application (Annexure-12) before Respondent No. 4.

6. It is the case of the petitioner that his application before

Respondent No. 4 was unable to draw the attention of the

authorities/respondents, therefore, the mother of the petitioner

applied for certain information under Right to Information Act and at

this stage, the Public Information Officer (Civil)-cum- Sub Judge I,

Civil Court, Siwan supplied information, as contained in Annexure-

13 series, dated 10.10.2017. According to the information furnished

to the mother of this petitioner, the name of this petitioner was Patna High Court CWJC No.2326 of 2018 dt.07-01-2021

recommended/forwarded for purpose of appointment pursuant to the

decision taken by the competent committee in the meeting held on

27.05.2015. The communication as contained in letter no. 323 dated

04.06.2015 was forwarded to the Hon'ble Patna High Court, Patna.

Petitioner has enclosed Annexures with the writ application in

support of his statements.

7. Learned senior counsel for the petitioner submits that

from the counter affidavit filed before this Court, now it appears that

a policy decision was taken by the respondent High Court

whereunder it was resolved that total strength of compassionate

appointment would not exceed 3% of the sanctioned strength of the

cadre in which such appointment is being considered. The decision of

the Court was communicated to all Judgeships of the State vide letter

no. 373-408 dated 04.01.2016 of the Court. A copy of the said

communication is on record (Annexure-A to the counter affidavit).

8. Learned senior counsel has further pointed out that

subsequently the policy decision was modified to the effect that the

limit of 3% has been increased to 5% subject to the condition that

compassionate appointment shall only be made on Class IV posts.

The subsequent communication in this regard is letter no. 1211-47

dated 10.01.2017, as contained in Annexure- 'C' to the counter

affidavit.

Patna High Court CWJC No.2326 of 2018 dt.07-01-2021

9. The contention on behalf of the petitioner is that at the

time of the recommendation of the name of the petitioner for his

appointment on compassionate ground, the policy decision restricting

the appointment on compassionate ground to the extent of 3% of the

sanctioned strength was not in existence, therefore, the said policy

decision cannot come in the way of petitioner for consideration of his

name for compassionate appointment.

10. Learned senior counsel has drawn the attention of this

Court towards the judgment of the Hon'ble Division Bench of this

Court rendered in LPA No. 2390 of 2016 (Anil Kumar Chaudhary

and Others Vs. the High Court of Judicature at Patna & Ors.)

decided on 18.07.2017. It is pointed out that in identical facts when

the appointment of the three petitioners/ appellants in the Letters

Patent Appeal were refused and Hon'ble Writ Court dismissed the

representation, the Hon'ble Division Bench of this Court held that

the policy decision would have a prospective application only and the

same could not have been applied in case of the petitioners. The

relevant part of the judgment have been read over by the learned

senior counsel for the petitioner.

11. Mr. Piyush Lall, learned counsel representing

respondent nos. 2 to 7 has, though, initially attempted to oppose the

writ application but very soon learned counsel realized that on the

face of the judgment of the Hon'ble Apex Court in Canara Bank and Patna High Court CWJC No.2326 of 2018 dt.07-01-2021

another Vs. M. Mahesh Kumar reported in (2015) 7 SCC 412

followed by our own Hon'ble Division Bench in the case of Anil

Kumar Chaudhary & Ors., it would be difficult to defend the

grounds for rejection of the petitioner.

12. Learned counsel submits that the only submission

which may be made is that the judgment of Hon'ble Supreme Court

rendered in the case of M. Mahesh Kumar (supra) has been referred

to a Larger Bench in the case of State Bank of India & Ors. Vs.

however, admitted that the judgment of the Hon'ble Supreme Court

in the case of M. Mahesh Kumar (supra) still holds the field and

that the judgment of Hon'ble Division Bench of this Court in LPA

No. 2390 of 2016 has attained finality and stands complied with.

13. After hearing learned senior counsel for the petitioner

and learned counsel representing the contesting respondents, this

Court finds that on facts it is not denied that this petitioner had

passed the written test and interview by 27 th of May, 2015. It is an

admitted position that the name of petitioner was recommended and

immediately thereafter forwarded to the Hon'ble High Court vide

letter No. 323 dated 04.06.2015 (Annexure-13 series). Thus, on the

date the name of the petitioner was recommended, the policy

decision of the Hihg Court was not in existence. The said policy Patna High Court CWJC No.2326 of 2018 dt.07-01-2021

decision was communicated to the judgeships of the State of Bihar

only on 04.01.2016.

14. In the case before the Hon'ble Division Bench of this

Court, the name of the appellants were recommended prior to the

change of the policy in the year 2016 and after noticing this fact, the

Hon'ble Division Bench observed, interalia, as under:-

"However, in this case, the question would be as to whether after the interviews and tests were held and when the petitioners were found eligible and their cases were referred to for appointment in the year 2014, could, their claim, be rejected on the basis of change of policy in the year 2016. We find that neither the High Court, nor the Writ Court have examined this issue in right perspective, therefore, it is a fit case where the matter should be remanded to the High Court for reconsideration in the background of principles of law discussed hereinabove, particularly in the case of M. Mahesh Kumar (Supra)".

15. This Court has no iota of doubt that the case of

petitioner is fully covered by the judgment of Hon'ble Division

Bench of this Court in LPA No. 2390 of 2016.

16. Mr. Lall, learned counsel representing respondent nos.

2 to 7, has pointed out from Annexure-B to the Counter Affidavit that

in fact the Registrar (Administration) of this Court had informed the

District & Sessions Judge, Siwan that the Court has not approved the

appointment of this petitioner in view of the Court's letter no. 373-

408 dated 04.01.2016. However it is admitted at bar that no such Patna High Court CWJC No.2326 of 2018 dt.07-01-2021

communication was sent to the petitioner. This Court finds that the

reasoning and rationale provided in the letter as contained in

Annexure 'B' to the counter affidavit are in the teeth of the judgment