Niraj Paswan vs The State Of Bihar And Ors
2022 Latest Caselaw 4205 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Letters Patent Appeal No.1963 of 2016
                                         In
                   Civil Writ Jurisdiction Case No.8275 of 2014
     ======================================================

Madho Tanti S/o Kamo Tanti R/o Village- Gogari Kundi, P/S Gogari, District- Khagaria.

... ... Appellant/s Versus

1. The State Of Bihar

2. The District Magistrate, Khagaria.

3. Superintendent of Police, Khagaria.

4. The Sub- Divisional Officer, Gogari, District- Khagaria

... ... Respondent/s ====================================================== with Letters Patent Appeal No. 1962 of 2016 In Civil Writ Jurisdiction Case No.8197 of 2014 ====================================================== Nand Kishore Paswan S/o Shivam Paswan @ Shivnandan Paswan, R/O Village- Gogarilatrutola, P.S- Gogari, District- Khagaria

... ... Appellant/s Versus

1. The State Of Bihar and Ors

2. The District Magistrate, Khagaria

3. Superintendent of Police, Khagaria

4. The Sub-Divisional Officer, Gogari, District- Khagaria null null

... ... Respondent/s ====================================================== with Letters Patent Appeal No. 1966 of 2016 In Civil Writ Jurisdiction Case No.8185 of 2014 ====================================================== Niraj Paswan S/o Binod Paswan R/o village - Ratna, P.S. Gogari, District - Khagaria.

... ... Appellant/s Versus

1. The State Of Bihar and Ors

2. The District Magistrate, Khagaria

3. Superintendent of Police, Khagaria.

Patna High Court L.P.A No.1963 of 2016 dt.03-08-2022

4. The Sub - Divisional Officer, Gogari, District - Khagaria.

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

(In Letters Patent Appeal No. 1963 of 2016) For the Appellant/s : Mr. Anil Kumar Choudhary, Advocate For the Respondent/s : Mr. Prabhat Kumar Verma, AAG 3 (In Letters Patent Appeal No. 1962 of 2016) For the Appellant/s : Mr. Anil Kumar Choudhary, Advocate For the Respondent/s : Mr. Prabhat Kumar Verma, AAG 3 (In Letters Patent Appeal No. 1966 of 2016) For the Appellant/s : Mr. Anil Kumar Choudhary, Advocate For the Respondent/s : Mr. Prabhat Kumar Verma, AAG 3 ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE RAJIV ROY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)

Date : 03-08-2022

Pursuant to earlier order dated 20.07.2022, Mr. Alok Ranjan

Ghosh, District Magistrate, Khagaria is present in the Court.

2. Heard learned counsel for the respective parties. In the

instant appeal, appellant has assailed the order of the learned

Single Judge dated 24.08.2016 passed in C.W.J.C No. 8275 of

2014. In the writ petition, appellant has sought for the following

relief/reliefs:

"i) For issuance of writ in the nature of Mandamus commanding upon the respondent authorities to take appropriate action in accordance with law in force, at the time when the petitioner became eligible for appointment on the post of Chaukidar and to appoint petitioner on the said post.

Patna High Court L.P.A No.1963 of 2016 dt.03-08-2022

ii) For further to hold that in view of ratio led down by this Hon'ble Court in C.W.J.C. No. 33/2007, Government instruction bearing Home Police Department letter no. 4060 dated 4.5.2005, where under appointment of Chaukidar by way of "nomination" was stopped with effect from the date of issuance of instruction dated 4.5.2002 is not applicable in the case of petitioner rather case will be governed by Home Police Department' letter no. 11287 dated 20.12.95.

iii) For any other relief or reliefs for which the petitioner is found entitled in the facts and circumstances of the case."

3. Grievance of the appellant that he is entitled to be

appointed to the post of Chaukidar on account of his uncle's

retirement in the year 2003 read with the relevant policy which

was existing as on the date of his application (07.06.2004) is to be

considered or not?

4. Chaukidar's appointment issue was a subject matter in

C.W.J.C. No. 6997 of 2003, disposed of on 27.08.2003 while

quashing letter No. 11287 dated 20.12.1995 (relates to

appointment of Chaukidar on hereditary basis). Thereafter, on

28.08.2006, Bihar Chaukidar Cadre Rules, 2006 was introduced.

In this backdrop whether the appellant Mr. Madho Tanti -

appellant is entitled to compassionate appointment with reference

to his uncle's service rendered as a Chaukiddar or not? Patna High Court L.P.A No.1963 of 2016 dt.03-08-2022

5. The appellant's uncle who was holding the post of

Chaukidaar has attained age of superannuation and retired from

service in the year 2003. The appellant filed an application on

07.06.2004. There was an inaction on the part of the respondents

and it was due to the quashing of 20.12.1995 policy vide letter

11287 in C.W.J.C. No. 6997 of 2003 decided on 27.08.2003 which

is prior to submission of application by the appellant on

07.06.2004. The appellant slept over the matter for one decade

and thereafter, he has approached this Court in filing C.W.J.C. No.

8275 of 2014 and it was decided against him on 24.08.2016. Thus,

he has preferred the present appeal.

6. The learned counsel for the appellant vehemently

contended that policy existing as on the date of his uncle's

retirement in the year 2003 is required to be taken into

consideration and not the Bihar Chaukidar Cadre Rules, 2006.

Such a Rule would be operating prospectively.

7. Per contra, learned counsel for the respondents resisted

the aforesaid contention and submitted that nodoubt the policy

relating to the appointment of Chaukidar was on hereditary basis

with reference to policy letter No. 11287 dated 20.12.1995,

however, it was quashed by this Court in C.W.J.C. No. 6997 of

2003 on 27.08.2003 whereas the appellant's application is dated Patna High Court L.P.A No.1963 of 2016 dt.03-08-2022

07.06.2004. In the interregnum period from 27.08.2003 till

28.08.2006 there was a vaccum in respect of filling up of post of

Chaukidar. It is submitted that once the policy is struck down by

this Court on 27.08.2003 and it will not be in vogue from

27.08.2003 till Rules of recruitment governing the post of

Chaukidar was intoduced and it was introduced on 28.08.2006. In

terms of 28.08.2006 - Bihar Chaukidar Cadre Rules, 2006 each

and every vacancy is required to be filled up in accordance with

the relevant Cadre Rules. Therefore, the appellant is not entitled to

have the benefit of appointment to the post of Chaukidar on the

eligibility criteria that it is a hereditary post.

8. Heard learned counsel for the respective parties.

9. Undisputed facts are that the appellant's uncle was

working as a Chaukidaar and he had attained age of

superannuation and retired from service in the year 2003. The

appellant submitted application on 07.06.2004 and preferred a

writ petition in the year 2014. In the meanwhile, the policy

relating to hereditary appointment to the post of Chaukidar which

was in vogue in the year 1995, it was struck down by this Court

on 27.08.2003. There was a vaccum created from 27.08.2003 to

28.08.2006. In other words, one has to draw inference that it is a

no Rule period (no Rule zone). In this backdrop question for Patna High Court L.P.A No.1963 of 2016 dt.03-08-2022

consideration is whether appellant is entitled to compassionate

appointment in terms of 1995 policy or not?

10. The appellant's application is dated 07.06.2004 as on

that date 1995 policy was struck down by this Court on

27.08.2003. Further, from 27.08.2003 onwards the respondents

were required to fill up the Chaukidar post only after due

consideration of Article 14 and 16 of the Constitution. Of course

on 28.08.2006, Bihar Chaukidaar Cadre Rules, 2006 have been

introduced, in the result they have to follow Cadre Rules for the

purpose of filling up of any Chaukidar Post. The appellant's writ

petition should have been rejected at threshold on the ground of

delay and laches for the reasons that Apex Court time and again

held that for the purpose of selection and appointment, aggrieved

person must approach within a reasonable period of six months

from the date of occurence of cause of action to such of those

aggrieved person vide reported decision viz. P.S. Sadasivaswamy

vs. State of T.N. reported in AIR 1974 SC 2271. Further it is to

be noted that Apex Court in the case of Renu and Ors. vs. District

and Sessions Judge, Tishazari, Civil Appeal No. 979 of 2014

(Arising out of SLP (c) No. 26090 of 2011) held that Article 14

and 16 of the Constitution is required to be adhered strictly.

Patna High Court L.P.A No.1963 of 2016 dt.03-08-2022

11. Even in the recent decision of the Apex Court in the

case of The State of Jammu and Kashmir and Ors. vs. Shaheena

Masarat and Anr., Civil Appeal No. 4991 of 2012 it is held that

Article 14 and 16 which are constitutional provision were required

to be followed for any public post. In the present case Chaukidaar

post is a public post in the State of Bihar and filling up of the

same, the competent authority is required to resort Article 14 and

16, therefore, appellant is not entitled to have the benefit of

Chaukidar post in terms of 1995 policy relating to filling up of

Chaukidar's post on hereditary basis.

12. Accordingly, appeal stands dismissed.

(P. B. Bajanthri, J)

( Rajiv Roy, J)

GAURAV S./-

AFR/NAFR
CAV DATE
Uploading Date          07.08.2022
Transmission Date