Raghwendra Kumar vs The State Of Bihar
2021 Latest Caselaw 4455 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                 Civil Writ Jurisdiction Case No. 21075 of 2019
     ======================================================

Raghwendra Kumar S/o Sh Jitendra Singh Resident of Village Nagwan, P.S.- Guruua, District- Gaya, Bihar- 824219.

... ... Petitioner/s Versus

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

2. The Chairman-cum- Managing Director, Bihar State Power (Holding) Company Ltd. Jawahar Lal Nehru Bhawan, Bailey Road, Patna.

3. The Principal Secretary, Energy Department, Govt. of Bihar, Patna.

4. The Director (Human Resources and Administration) Bihar State Power (Holding) Company Ltd. JawaharLal Nehru Bhawan, Bailey Road, Patna.

5. The General Manager, (Human Resources and Administration), Bihar State Power (Holding) Company Ltd., Jawahar Lal Nehru Bhawan, Bailey Road, Patna.

6. Mr. Arvind Kumar S/o Mr. R.S. Shah then Under Secretary, Section 6, Bihar State Power (Holding) Company Ltd., Jawahar Lal Nehru Bhawan, Bailey Road, Patna. At present Under Secretary, Company HQ, SBPDCL, Patna, R/o Flat No. 304, Shanti Shakuntala Apartment, Shekhpura, Patna.

7. Ms. Chinmayee D/o Shiv Ganga Prasad Singh R/o Village Niru Niwas, Salimpur Ahra, Gali No. 1, Kadam Kuan, Patna- 800003.

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

For the Petitioner/s : Mr. Amarnath Singh, Advocate Mr. Anish Kumar, Advocate For the Respondent/s : Mr. Abbas Haider (SC-6) For the Respondent-Company : Ms. Soni Shrivastava, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH CAV JUDGMENT Date : 04-09-2021

The instant case has been taken up for consideration

through the mode of Video conferencing in view of the Patna High Court CWJC No.21075 of 2019 dt.04-09-2021

prevailing situation on account of COVID 19 Pandemic,

requiring social distancing.

2. The present writ petition has been filed for quashing

the order dated 30.07.2009 issued by the Under Secretary, Bihar

State Power Holding Company Limited i.e. the respondent no.

6, whereby and whereunder the claim of the petitioner for

appointment on the post of Assistant Personnel Officer, has been

rejected on the ground that the petitioner is younger in age than

the candidate last shortlisted though the said candidate as also

the petitioner have secured the same marks. The petitioner has

further prayed to direct the respondents to appoint the petitioner

on the post of Assistant Personnel Officer against the vacant

post published vide employment notice no. 10 of 2018, by the

respondents.

3. The brief facts of the case are that the petitioner was

initially appointed as Junior Accounts Clerk and he is at present

working as Account Assistant in the Bihar State Power Holding

Company Limited since 10.05.2013. An advertisement bearing

employment notice no. 10/2018 (internal) was published,

inviting online applications for appointment on various posts

including that of Assistant Personnel Officer, from the eligible

employees who have been working in the regular establishment Patna High Court CWJC No.21075 of 2019 dt.04-09-2021

for minimum five years in the Bihar State Power Holding

Company Limited and its four subsidiaries companies. The

petitioner had applied for being appointed on the post of

Assistant Personnel Officer. It is the case of the petitioner that

he was surprised to find that his name has not figured in the list

of shortlisted candidates for the said post of Assistant Personnel

Officer, despite having secured the cut off marks in the

unreserved category. In fact the petitioner is stated to have

secured same marks as that of the last selected candidate,

namely Rajeev Kumar. It is also submitted that the minimum

service length of an employee to qualify for appointment on the

aforesaid post of Assistant Personnel Officer was reduced from

five years to three years vide corrigendum dated 30.01.2018 in

order to favour the private respondent no. 7 herein. The

aforesaid employment notice no. 10/2018 (internal) envisaged

13 vacant posts of Assistant Personnel Officer and as far as the

petitioner's category is concerned, i.e. the unreserved category,

five vacant posts had been advertised. Under clause-11 of the

employment notice no. 10 of 2018, it has been stipulated that

the candidates would be shortlisted on the basis of marks

obtained in paper based written exam (OMR based) and the

minimum qualifying marks for the test shall be 40 % for the Patna High Court CWJC No.21075 of 2019 dt.04-09-2021

unreserved category. The learned counsel for the petitioner has

submitted, by referring to clause-7 of the Karmik Seva Samvarg

Nimayawali, 2015 (hereinafter referred to as the 'Rules, 2015')

that the post of Assistant Personnel Officer is the entry level

post of the personnel cadre and 5 % of the total sanctioned post

of Assistant Personnel Officer is to be filled by way of internal

appointment from the merit list prepared on the basis of limited

written competitive examination, in which those employees or

staff who have completed 5 years of service with the company/

Board shall be eligible to appear. Thus, it is submitted that since

the respondent no. 7 namely Ms. Chinmayee had not completed

five years of service as on the date of filing of the application,

she was not eligible to be considered for appointment on the

post of Assistant Personnel Officer, nonetheless, her name

figures at serial no. 6 in the list of shortlisted candidates for the

post of Assistant Personnel Officer, although it is yet another

aspect of the matter that the respondent company, by a

corrigendum dated 30.10.2018, has amended the terms and

conditions of the employment notice no. 10 of 2018, by relaxing

the required minimum service length from five years to three

years, though in the original advertisement bearing employment

notice no. 10 of 2018, the required minimum service length was Patna High Court CWJC No.21075 of 2019 dt.04-09-2021

prescribed as five years, for the purposes of filing online

application. It is also submitted that no merit list has been

published, as is postulated under Rule 7 of the Rules, 2015,

hence the entire process of recruitment and the consequent

appointment on the post of Assistant Personnel Officer stands

vitiated in the eyes of law. It is further submitted that only three

shortlisted candidates have joined on the post of Assistant

Personnel Officer, hence vacancy still exists, thus the petitioner

can be accommodated.

4. The learned counsel for the petitioner has further

submitted that the petitioner had filed a representation before

the Director as also before the General Manager, HR of the

respondent company but the case of the petitioner has been

rejected on the ground that the last selected candidate under the

unreserved category on the post of Assistant Personnel Officer

had obtained 51 marks, hence a decision was taken, considering

the date of birth and since the date of birth of the said candidate

namely Shri Rajiv Kumar is 11.10.1984 and he is elder to the

petitioner, whose date of birth is 20.10.1984, the said candidate,

namely Rajiv Kumar has been selected.

5. The Ld. counsel for the petitioner has referred to a

judgment rendered by the Hon'ble Apex Court in the case of Patna High Court CWJC No.21075 of 2019 dt.04-09-2021

Bibhudatta Mohanty vs. Union of India, reported in (2002) 4

SCC 16, paragraph no. 14 whereof is reproduced herein below:-

"14. Further, the Tribunal is not right in ignoring the averment in the counter-affidavit of the official respondents, extracted above, that the appellant was selected on merit and erred in holding that the selection was made solely on the ground that amongst all the candidates he was the senior most in age. It is thus clear that the selection of the appellant was on merit and not solely on the ground of being senior in age. It cannot be disputed that a selection solely on the basis of being senior in age is vitiated by extraneous consideration. But when, as in this case, the selection is on the basis of merit, merely because the seniority in age of the candidate is also taken into consideration, it would not be right to invalidate the selection."

6. Per contra, the learned counsel for the respondent

Company Ms. Soni Shrivastava has submitted that the cut off

marks for the post of Assistant Personnel Officer was fixed as

51 marks and the petitioner had also obtained 51 marks but

since one other candidate having 51 marks was elder in age to

the petitioner, the said candidate has been selected. It is further

submitted that it is a settled principle of law that in case two

candidates obtain equal marks, age factor is taken into

consideration and the person who is senior in age is given

priority for employment. It is also submitted that once the merit Patna High Court CWJC No.21075 of 2019 dt.04-09-2021

list has been prepared, the selection procedure comes to an end,

thus if any post remains vacant the same is carried forward to

the next year. It is contended that clause-7 of the Cadre Rules,

2015 has been diluted/modified by the competent authority of

the respondent company and the required length of service has

been reduced from five years to three years, for which the

competent authority of the company is empowered. It is also

contended that after the written examination had been held, the

list of shortlisted candidates i.e. the merit list/select list was

prepared in the ratio of 1:1 and then the selected candidates

were called for document verification, whereafter, considering

the remarks of the document verification committee, a selection

committee was constituted vide office order dated 12.02.2019,

which recommended the names of the eligible candidates

against the employment notice no. 10/2018 (internal). It is also

categorically stated that no recruitment panel exists save and

except the aforesaid select list. The learned counsel for the

respondent company has referred to a judgment reported in

(2011)8 SCC 115 (DP Das vs. The Union of India & Ors.), to

demonstrate that age is the only valid and fair basis to determine

seniority of candidates, similarly situated.

7. I have heard the learned counsel for the parties and Patna High Court CWJC No.21075 of 2019 dt.04-09-2021

gone through the materials on record from which it is apparent

that the rules of the game have been changed midway inasmuch

as after the advertisement was published bearing employment

notice no. 10 of 2018 (internal) prescribing therein that the posts

in question would be filled from amongst the eligible employees

who have been working in the regular establishment of the

respondent company and it's four subsidiary companies for a

minimum period of five years, the respondents had

subsequently, by a corrigendum dated 30.10.2018, amended the

terms and conditions of the employment notice no. 10 of 2018,

by relaxing the required minimum service length from five

years to three years. Thus this Court finds that the respondent

company has erred on this score. Nonetheless, this Court finds

that since the petitioner, instead of challenging the said

corrigendum dated 30.10.2018, had voluntarily participated in

the selection process without any demur and protest, he cannot

now be permitted to challenge the entire selection process on the

said ground, especially when he has failed in the selection

process. In this regard, it would be relevant to refer to a

judgment rendered by the Hon'ble Apex Court in the case of

Madan Lal and others vs. The State of J & K and others,

reported in (1995) 3 SCC 486.

Patna High Court CWJC No.21075 of 2019 dt.04-09-2021

Moreover, the petitioner has also not challenged the

aforesaid corrigendum dt. 30.10.2018, whereby and whereunder

the respondent company has amended the terms and conditions

of the employment notice no. 10 of 2018, by reducing the

required minimum service length from five years to three years,

as such the petitioner's contention that the entire selection

process stands vitiated since the rules of the game have been

changed midway, holds no water, hence is fit to be rejected.

8. The other issue raised by the learned counsel for the

petitioner is regarding the illegal decision taken by the

respondent company to declare another applicant as a successful

candidate, instead of the petitioner, although both of them had

secured the same marks, merely on the basis that the said

candidate is senior in age to the petitioner, inasmuch as, neither

the advertisement nor the Rules, 2015 provide for such a

mechanism. In this regard, the learned counsel for the

respondent Company has failed to show, from the Rules, 2015,

that any such procedure exists whereby a similarly situated

candidate, who has though obtained same marks as the other

candidate, can be declared to be a successful candidate, merely

on account being elder in age to the other candidate. But then

while the learned counsel for the respondent-Company has Patna High Court CWJC No.21075 of 2019 dt.04-09-2021

relied on a judgment rendered by the Hon'ble Apex Court in the

case of DP Das (supra), the learned counsel for the petitioner

has relied on a judgment rendered by the Hon'ble Apex Court in

the case of Bibhudatta Mohanty (supra). This Court thus finds

that that the judgment relied upon by the learned counsel for the

petitioner takes into account a situation where not only the

seniority in age of a candidate has been taken into consideration

but selection has been made on the basis of the merit of such

candidate as well, nonetheless, the said judgment also states that

a selection made solely on the basis of being senior in age is

vitiated by extraneous consideration. On the other hand, the

judgment relied upon by the respondent-Company, rendered in

the case of DP Das (supra), though speaks about age being the

only valid and fair basis for determination of seniority of the

officers who were recommended on the same day but the said

judgment does not deal with a selection process and instead

pertains to determination of seniority.

9. Having regard to the facts and circumstances of the

present case, this Court is of the view that in order to iron out

the equities and put a quietus to the dispute in question, both

from the point of view of the respondent-company as also from

the petitioner's perspective and taking into account the fact that Patna High Court CWJC No.21075 of 2019 dt.04-09-2021

the action of the respondent company in the aforesaid selection

process cannot be said to be free from procedural infirmities/

inconsistencies, as has been detailed at length herein above,

apart from the glaring infirmity to the effect that though a select

list appears to have been prepared but no merit list, as envisaged

under the Rules, 2015, has been brought on record of this case, I

deem it fit and proper to direct the Chairman-cum-Managing

Director, Bihar State Power Holding Company Limited to

consider the case of the petitioner for appointment on the post of

Assistant Personnel Officer, in view of the fact that vacancies

still exist. It is needless to state that appropriate decision shall be

taken in this regard within a period of six weeks of receipt/

production of a copy of this order.

10. The writ petition stands disposed off on the

aforesaid terms.

(Mohit Kumar Shah, J)

S.Sb/-

AFR/NAFR                NAFR
CAV DATE                30.07.2021
Uploading Date          08.09.2021
Transmission Date