Mantu Kumar Singh vs The State Of Bihar
2021 Latest Caselaw 5012 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.10452 of 2019
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Mantu Kumar Singh Son of Late Rameshwar Singh Resident of Village- Barap, P.O.-Bagwan, P.S.-Garhani, District-Bhojpur.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Home Department , Bihar, Patna.

2. Principal Secretary, Home Department, Bihar, Patna.

3. Deputy Secretary, Home Department, Bihar, Patna.

4. Director General-Cum-Commandant General, Home Guards, Bihar, Patna.

5. District Magistrate, Bhojpur.

6. Superintendent of Police, Bhojpur,

7. District Commandant, Bihar Home Guards, Bhojpur.

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

For the Petitioner/s : Mr.Harshvardhan Shivsundaram, Advocate For the Respondent/s : Mr. Sheo Shankar Prasad (SC8) ====================================================== CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA CAV JUDGMENT Date : 26 -10-2021 The present writ application has been filed seeking a

direction to the respondent authorities to complete the selection /

nomination process of Home Guards in the Bhojpur District

pursuant to Advertisement No. 1 / 2006 and 2 / 2011 issued by the

Home Department, Government of Bihar, Patna. The petitioner

subsequently filed an interlocutory application bearing I.A. No. 1

of 2019 for quashing the Memo No. 383 dated 15.02.2019 by

which the District Magistrate has cancelled the Advertisement No.

01 / 2006 & 02 / 2011 for selection / nomination of the Home Patna High Court CWJC No.10452 of 2019 dt.26-10-2021

Guards. The aforesaid interlocutory application was allowed by

this court vide order dated 22-06-2021.

2. The brief facts giving rise to the present writ

application is that the Home Department, Govt. of Bihar issued

Advertisement No. 1 / 2006 inviting applications from eligible

candidates for selection / nomination / enrollment on the roll of

Home Guards in different districts of Bihar including the Bhojpur

district, however, without completing the aforesaid selection

process, the respondent- Home Department, Govt. of Bihar came

out with fresh advertisement bearing Advertisement No. 02 / 2011

for selection / nomination of Home Guards in various districts

including the district of Bhojpur. The total vacancies for

nomination of Home Guards advertised vide Advertisement No.

02 / 2011 was 220. The age limit prescribed for selection /

nomination was between 19 years to 40 years with minimum

educational qualification prescribed was Standard-V. The selection

/ nomination process was to be conducted at the district level for

which a Selection Committee was constituted in every district

under Rule 5 (4) of the Bihar Home Guards Rules, 1953. The

District Magistrate was nominated as the Chairman of the

Selection Committee and the Superintendent of Police, District Patna High Court CWJC No.10452 of 2019 dt.26-10-2021

Commandant (Home Guards) and District Welfare Officer were

nominated as members of the Selection Committee.

3. The last date for submission of application was fixed

as 30-07-2011 and the petitioner being fully eligible for selection /

nomination submitted his application before the concerned

authority within time and was given acknowledgment receipt

bearing Sl. No. 815. The petitioner being aggrieved by delay in

completing the process of selection / nomination filed a complaint

before the District Public Grievance Redressal Officer, Bhojpur

(for short "Redressal Officer") on 28/09/2018. The Redressal

Officer called for a report from the concerned authority and in

response thereto Sr. Deputy Collector, General Section, Bhojpur

reported vide letter no. 2233 dated 01-11-2018 that necessary steps

are being taken for completing the selection process. He further

reported that with respect to Advertisement No. 02 / 2011 roster

has been sent to the District Magistrate, Bhojpur for approval and

process of nomination would be completed shortly. Taking into

consideration the said reports, the Redressal Officer, Bhojpur

passed the final order on 05/01/2019 (Annexure-P/5) directing the

concerned public authorities to take necessary steps in this matter

and to inform the Redressal Officer within thirty days, however,

the respondents, particularly respondent - District Magistrate, Patna High Court CWJC No.10452 of 2019 dt.26-10-2021

Bhojpur did not take any step within the aforesaid period of thirty

days given by the Redressal Officer. The petitioner preferred an

appeal before the Commissioner, Patna Division, Patna and taking

into consideration the fact that the District Magistrate, Bhojpur

has cancelled the Advertisement No. 01 / 2006 and 02 / 2011 and

has directed for issuance of fresh advertisement, the Commissioner

Patna Division dropped the proceedings.

4. Per contra, a counter affidavit as well as

supplementary counter affidavits have been filed by the respondent

/State stating therein that Advertisement No. 01 / 2006 was

advertised for inviting applications from eligible candidates for

selection and nomination of Home Guards in Bhojpur district of

Bihar to fill up 301 vacancies but one Sri Bateshwar Nath Pandey

(Advocate) filed Title Suit No. 24 of 2006 before the court of

learned Munsif 2nd , Civil Court, Ara, Bhojpur and as such,

Advertisement No. 01 / 2006 could not be finalized. It has further

been stated that Advertisement No. 01 / 2006 was published for

selection / nomination of the Home Guards in Bhojpur district for

301 vacancies and Advertisement No. 02 / 2011 was published

for nomination of Home Guards against 220 vacancies and both

the advertisements were separate and have already been cancelled

by the District Magistrate vide order dated 15/02/2019 and fresh Patna High Court CWJC No.10452 of 2019 dt.26-10-2021

advertisement will be published for selection / nomination on the

roll of the Home Guards in Bhojpur district of Bihar. It has further

been stated that the selection process for nomination of Home

Guards remained pending in the district of Bhojpur due to one

reason or the other and during pendency of the said nomination /

selection process certain amendments in the Rules / Service Rules

have been made by the State Govt. inasmuch as vide notification

bearing no. 4412 dated 23-05-2017 amendment in the Bihar Home

Guards Service Rules, 2005 viz Bihar Home Guards Service

(Amendment) Rules, 2017 has been made substituting Rule 5 (iii)

of Bihar Home Guards Service Rules, 2005, which is reproduced

as under:-

"(iii) The minimum educational qualification shall be

higher secondary (Intermediate/Inter) or equivalent

examination pass recognised by the State Government".

5. Further vide notification dated 30th June 2017 an

amendment in Rule-5 of the Bihar Home Guards Rules, 1953 has

been made whereby sub-rule (7 ) has been added after sub rule (6)

of Rule 5 which is as quoted follows:-

"(7) All provisions related to reservation issued by

Government of Bihar will be applicable to the fresh

nomination of Bihar Home Guards (Women and men)" Patna High Court CWJC No.10452 of 2019 dt.26-10-2021

6. Accordingly, the stand of the respondents is that the

District Magistrate taking into consideration the back log

vacancies, fresh vacancies accrued during the pendency of the

selection / nomination process and also taking into account fresh

developments /amendments in the Rule with respect to educational

qualification and reservation to women candidate up to 10 %,

cancelled the aforesaid advertisements vide Memo No. 383 dated

15/02/2019 and directed for publication of fresh advertisement for

selection / nomination of the Home Guards in the district of

Bhojpur.

7. A supplementary affidavit has been filed on behalf of

the petitioner specifically stating therein that selection process for

enrollment of Home Guards under the same advertisement i.e.

Advertisement No. 02 / 2011 was started in Supaul district by the

order issued by the District Commandant, Bihar Home Guards,

Supaul as contained in Memo No. 506 dated 28/11/2019

( Annexure- P/ 10) and the selection process was concluded in the

said district by publishing merit list on 23-06-2020 (Annexure

-P/10A). It has further been stated that under the same

advertisement i.e. Advertisement No. 02 of 2011 selection process

has recently been started in Aurangabad district vide order dated

26/07/2021 issued by the District Magistrate, Aurangabad. The Patna High Court CWJC No.10452 of 2019 dt.26-10-2021

selection process under the same advertisement has also been

started in Banka district and the selection process in Rohtas and

Buxar district was completed in the year 2017 and 2018

respectively.

8. Learned counsel for the petitioner confines his

argument with respect to Advertisement No. 02 / 2011 only and in

support of the writ application he submits that the impugned letter

issued by the District Magistrate dated 15-02-2019 is completely

arbitrary, malafide and discriminatory in nature. The District

Magistrate, Bhojpur has got no authority under the law to cancel

the aforesaid advertisement bearing Advertisement No. 02 / 2011

inasmuch as the said advertisement was issued by the State

Government in its Home Department and the Bihar Home Guards

Rules, 1953 confers no such power upon the District Magistrate.

Further submission of learned counsel for the petitioner is that

from perusal of the impugned order of cancellation of the

advertisement it would be evident that no reason / ground has been

assigned in the impugned order for cancellation of the

advertisement in question and the respondent authorities are

trying to supplant the reasons by way of counter affidavits by

taking a preposterous plea that due to pendency of selection

process since 2011 certain developments have taken place and the Patna High Court CWJC No.10452 of 2019 dt.26-10-2021

concerned Rules have been amended changing the criteria of

educational qualification, age and reservation. Accordingly,

submission is that the respondents authorities cannot be permitted

to take advantage of their own laches and delay in completing the

selection process and take a decision detrimental to the legitimate

right of the petitioner by depriving him to be selected / nominated

as Home Guard taking the plea of subsequent change in the

eligibility criteria. He further vehemently submits that pursuant to

the same advertisement i.e. Advertisement No. 02 / 2011 in various

other districts the selection / nomination process has recently been

started and completed in 2017, 2018, 2019, 2020, 2021 whereas,

the District Magistrate, Bhojpur has cancelled the Advertisement

No. 02 / 2011 in a discriminatory and arbitrary manner.

9. On the other hand, learned counsel for the State

submits that in view of the subsequent developments, eligibility

criteria for selection / nomination of Home Guards has now been

changed by way of amendment in the concerned Rules and as such

the District Magistrate, Bhojpur has rightly cancelled the

advertisement in question and the decision to take fresh steps for

selection / nomination of Home Guards is strictly in terms of the

law / rules laid down in this regard. He further submits that vide

letter dated 06.02.2015 (Annexure-B to the counter affidavit) the Patna High Court CWJC No.10452 of 2019 dt.26-10-2021

Home (Special) Department, Government of Bihar issued direction

to all District Magistrates of Bihar wherein it has been clarified

that the District Magistrate happens to be a competent authority in

reviewing / assessing the backlog vacancies and holds the power

on the point of advertising / publishing the vacancies afresh

seeking selection/ nomination of Home Guards on the basis of up-

to-date / fresh vacancies accrued.

10. I have heard learned counsel for the parties and have

carefully gone through the materials available on record. The only

issue which requires consideration in the present writ application

is that as to whether the decision of the District Magistrate,

Bhojpur to cancel the advertisement in question is based upon

valid or cogent reason or not. From perusal of the pleadings and

other available materials on record, it appears that before the

Redressal Officer stand was taken by the respondent authorities

that a roster has been sent to the District Magistrate, Bhojpur for

approval and enrollment / nomination process would be completed

shortly and taking into account the said stand of the respondent

authorities the Redressal Officer, Bhojpur passed the final order on

05.01.2019 directing the concerned public authorities to take

necessary steps in this regard. It further appears that instead of

completing the selection process as per the Advertisement No. 02 / Patna High Court CWJC No.10452 of 2019 dt.26-10-2021

2011, the respondent authorities vide letter dated 15-02-2019

cancelled the advertisement in question and decided to publish

fresh advertisement for selection / nomination of Home Guards.

Though no reason for cancellation of the Advertisement No. 02 /

2011 has been assigned in the impugned letter, however, the

respondent authorities tried to justify the decision of the District

Magistrate, Bhojpur on the ground that during the pendency of the

selection process there was change in the eligibility criteria in

respect to educational qualification, age and reservation. The

respondent-State failed to controvert the specific averments made

in the supplementary affidavit filed by the petitioner that pursuant

to the same advertisement i.e. Advertisement No. 02 / 2011 the

selection / nomination process has recently been started and

completed in various other districts and the decision to cancel the

advertisement by the District Magistrate, Bhojpur is completely

discriminatory and arbitrary.

11. In view of uncontroverted fact that the selection

process for nomination of Home Guards in various other districts

pursuant to the same Advertisement No. 02 / 2011 has started and

completed recently between the year 2017 to 2021 and the

selection process in the district of Aurangabad has recently been

started on the basis of the same old eligibility criteria and as such Patna High Court CWJC No.10452 of 2019 dt.26-10-2021

the decision of the District Magistrate, Bhojpur to cancel the

Advertisement No. 02 / 2011 is not tenable in law as well as on

facts. The respondent authorities are not permitted to take

advantage of their own fault in completing the selection process

within a reasonable time period and are also not permitted to take a

plea of change in the eligibility criteria due to subsequent

amendment as a ground for cancellation of the Advertisement No.

2 / 2011.

12. In the backdrop of the aforesaid facts and

discussions, I am of the considered opinion that the impugned

letter dated 15-02-2019 contained in letter No. 383 at Annexure-

P/8 to the I.A. No. 1 of 2019 by which decision has been taken to

cancel the Advertisement No. 02 / 2011 is not sustainable in law

and fact inasmuch as the subsequent amendment in the Rules

during the pendency of the selection process cannot be taken as a

ground for cancellation of the advertisement. I also find the

impugned decision as discriminatory in nature on the ground that

similarly situated candidates of various other districts have

recently participated in the selection process started and completed

by the respondent authorities.

13. Accordingly, the decision to cancel the

Advertisement No. 02 / 2011 vide impugned letter no. 383 dated Patna High Court CWJC No.10452 of 2019 dt.26-10-2021

15/02/2019 is hereby quashed and the Selection Committee

headed by District Magistrate, Bhojpur is directed to complete the

selection / nomination process of Home Guards in the district of

Bhojpur strictly as per the terms and conditions prescribed in the

Advertisement No. 02 / 2011 within a maximum period of six

months from the date of receipt / production of a copy of this

order.

14. With the aforesaid observation and direction, the

present writ application is allowed.

(Anil Kumar Sinha, J) praful/-

AFR/NAFR                AFR
CAV DATE                04-10-2021
Uploading Date          26-10-2021
Transmission Date       NA