Samsher Singh vs The State Of Bihar
2021 Latest Caselaw 5073 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.7940 of 2020
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1. Samsher Singh, aged about 38 years, (Male), Son of Sri Krishnnandan Singh Resident of village- Mosimpur, P.S.- Khusrupur, District- Patna.

2. Sanju Kumari, aged about 24 years, (Female), Wife of Rahul Ranjan Resident of village- Mosimpur, P.S- Khusrupur, District- Patna.

3. Rahul Ranjan, aged about 32 years, (Male), Son of Sri Krishnnandan Singh Resident of village- Mosimpur, P.S.- Khusrupur, District- Patna.

4. Ranvir Prasad, aged about 45 years, (Male), Son of Late Panbabu Prasad Resident of village- Kaladiara, P.S.- Naya Tola Bariyarpur, District- Patna.

5. Din Dayan Singh, aged about 44 years, (Male), Son of Jay Ram Singh Resident of village- Barahpur, Ward No. 07, P.S.- Mokama, District- Patna.

6. Ram Kanchan Kumar, aged about 39 years, (Male), Son of Late Sanjay Kumar Resident of village- Akhtiyarpur, P.S.- Paliganj, District- Patna.

7. Sudesh Prasad Singh, aged about 52 years, (Male), Son of Late Manki Prasad Singh Resident of village- Gonwa, P.S.- Naubatpur, District- Patna.

8. Krishna Singh, aged about 40 years, (Male), Son of Late Jay Narayan Singh Resident of village- Akbarpur, P.S.- Paliganj, District- Patna.

9. Sumant Kumar, aged about 28 years, (Male), Son of Late Sudhir Singh Resident of village- Akhtiyarpur, P.S.- Paliganj, District- Patna.

10. Dharmendra Kumar, aged about 32 years, (Male), Son of Late Ramanand Singh Resident of village- Akhtiyarpur, P.S.- Paliganj, District- Patna.

... ... Petitioner/s Versus

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

2. The Principal Secretary, Education Department, Government of Bihar, Patna.

3. The Director, Mid Day Meal, Bihar, Patna.

4. The District Magistrate, Patna.

5. The District Development Commissioner, Patna.

6. The District Education Officer, Patna.

7. The District Programme Officer, Mid Day Meal, Patna.

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

For the Petitioner/s : Mr. P.K. Shahi, Sr. Adv.

Mr.Vikas Kumar, Adv.

     For the Resp. No.3     :      Mr. Girijesh Kumar, Adv.
     For the State          :      Mr. Samir Kumar, AC to SC16

====================================================== CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN Patna High Court CWJC No.7940 of 2020 dt.28-10-2021

ORAL JUDGMENT Date : 28-10-2021 Heard learned counsel for the petitioners and learned

counsel for the respondents. Learned counsel for the petitioners

hereby has filed an undertaking that all the defects pointed out by

the stamp reporter shall be removed as and when required. It is

accordingly directed that all defects pointed out by the Stamp

Reporter be removed within one month hereof.

2. The present writ petition has been filed for the

following reliefs as formulated by the petitioners-

"1(a). For quashing of letter contained in

Memo No. 1393 dated 01.09.2020 issued by Director, Mid

Day Meal, Bihar, Patna addressed to District Programme

Officer, Mid Day Meal, Patna by which it was informed

that selection of all the contractors pursuant to

Advertisement No. 01/2019-20 has been cancelled as

terms and condition of the said tender notice was not in

accordance with direction of the department and several

fault have also been found in the process of selection of

contractors, therefore, direction was given to take fresh

steps for publication of tender for appointment of

contractor in accordance with the terms and conditions of

direction of the department.

(b) For further direction to respondent

authorities to allow these petitioners to work as Patna High Court CWJC No.7940 of 2020 dt.28-10-2021

Transporting Cum Handling Agent in different

Circle/Division of Patna District under Mid Day Meal

Scheme who were validly selected pursuant to tender

notice no. 01/2019-20.

(c) For any other relief/reliefs for which the

petitioners are found entitled too."

3. The short facts of the case, according to the

petitioners, are that pursuant to the advertisement no. 01/2019-20

(Annexure-2), they participated in the tender for transportation of

food grains from the depot of State Food Corporation to different

schools under different circles/divisions of the district of Patna. In

due course, the petitioners were selected and agreements dated

11.2.2020 (Annexure-4 series) were entered into between the

parties. Soon thereafter, however, the Director, Mid Day Meal

Scheme, Bihar, Patna (Respondent no. 3) issued a memo no. 532

dated 19.2.2020 to the District Magistrate, Patna (Respondent

no.4) in the backdrop of complaints of irregularity in selection

having been received, to conduct enquiry in that regard pending

which further action in relation to the selection was kept in

abeyance. Thereafter, by the impugned order dated 1.9.2020

(Annexure-1), the advertisement no. 01/2019-20 was cancelled by

the Director (Respondent no.3).

Patna High Court CWJC No.7940 of 2020 dt.28-10-2021

4. Mr. P.K. Shahi, learned senior counsel for the

petitioners assails the impugned action of cancellation of

advertisement on the very short plea of violation of natural justice.

It is submitted that rights had vested and accrued in favour of the

petitioners by reason of agreements entered into between the

parties. Such rights could not have unilaterally been terminated by

the respondents without prior issuance of notice granting an

opportunity of hearing.

5. Mr. Girijesh Kumar, learned counsel for the

respondent appears and vehemently opposes the writ application.

It is submitted that pursuant to the complaints received, it was

noticed that the advertisement as issued was in violation of the

guidelines issued by the Bihar State Mid Day Meal Scheme

Committee in its letter no. 2226 dated 20.11.2017 (Page-86). It is

submitted that the guidelines did not impose any restriction with

reference to the place where the vehicles were registered which

could thus be anywhere in the State of Bihar. However, contrary to

the said guidelines, the advertisement required the vehicles to be

registered only within the district of Patna. It is stated that no work

order had been issued in favour of the petitioners rather when the

irregularity in the advertisement came to light, immediate steps

were taken within a week of entering into the agreements with the Patna High Court CWJC No.7940 of 2020 dt.28-10-2021

petitioners and further action was directed to be stayed in terms of

the letter dated 19.2.2020 (Page-56). Action by way of a show

cause notice (Annexure-C to the counter affidavit) had been taken

by the Director (Respondent no.3) against the District Programme

Officer, Mid Day Meal Scheme, Patna with regard to stipulation

for registration of the vehicle within the district of Patna as

contained in the advertisement. The irregularity is evident also

from the very fact that the earlier restriction in Clause 22 of the

guidelines requiring applicants to be residents of the district

concerned, was later on removed by letter No. 1218 dated

10.7.2018 (Page-91). In that backdrop, it would be conflicting to

require the vehicles to be registered only in the district of Patna

even though a tenderer could be resident of any other district.

6. In reply, Mr. P.K. Shahi, learned senior counsel for the

petitioners invites reference to letter no. 573 dated 15.5.2020

(Page-93) whereby the District Programme Officer has forwarded

a copy of the enquiry report to the Director with the finding that no

irregularity had been found in the decision taken and directions

were sought in respect of three issues, which in any event had

nothing to do with the issue of registration of vehicles within the

district of Patna.

Patna High Court CWJC No.7940 of 2020 dt.28-10-2021

7. Having heard the parties and on consideration of the

materials on record, this Court finds merit in the writ petition. It is

not in dispute that agreements had duly been entered into between

the parties. Consequently, rights had accrued in the petitioners

under the terms of agreement. Unilateral cancellation of the

advertisement by the respondents without reference to the

petitioners had the effect of negating their agreements, which,

therefore, resulted in civil consequences. No satisfactory reason

has been pleaded by the respondents for not granting any

opportunity of hearing to the petitioners prior to cancellation of the

advertisement, save and except that such opportunity would have

been a mere formality considering the manifest irregularity in the

advertisement being contrary to the guidelines referred to above.

This, in my view, cannot be assumed as a foregone conclusion,

moreso in the light of the enquiry report having found that there

was no irregularity in the selection. It is trite that Justice must not

only be done but must manifestly be seen to be done.

8. In this regard, reference may be made to the decision

of the Hon'ble Apex Court in the case of S.L. Kapoor Vs.

Jagmohan reported in AIR 1981 SC 136, expressing its views in

the following terms -

"In our view, the principles of natural justice know of no exclusionary rule dependent on whether it would have made Patna High Court CWJC No.7940 of 2020 dt.28-10-2021

any difference if natural justice had been observed. The non- observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced."

"Natural justice may always be tailored to the situation. Minimal natural justice, the barest notice and the `littlest' opportunity, in the shortest time, may serve."

9. The submission of the respondents that there was no

error on the part of the petitioners which might have necessitated

issuance of show-cause to them and that the error, being on the

part of the District Programme Officer, a show-cause notice had

duly been issued to him, is without substance. It is not so much a

matter of fault on the part of the petitioners that would invite a

show-cause notice rather it is a matter of grant of an opportunity of

hearing to the petitioners to answer why the proposed action of the

respondents should not be taken to their detriment.

10. In the above facts and circumstances, the impugned

letter contained in Memo No. 1393 dated 01.09.2020 (Annexure-

1) is hereby set aside and the matter is remanded to the Director,

Mid Day Meal Scheme, Bihar, Patna (Respondent no.3) for

passing orders afresh after grant of an opportunity of hearing to the

petitioners in accordance with law.

11. The writ petition stands allowed.

Patna High Court CWJC No.7940 of 2020 dt.28-10-2021

12. Office shall follow-up to ensure that all defects are

removed and compliance with the notices of this Court are made

by the petitioners within the stipulated time provided in para 1

hereinabove, failing which the matter shall be brought to the notice

of this Court.

(Vikash Jain, J) rishi/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          30.10.2021
Transmission Date