Pappu Kumar vs The State Of Bihar And Ors
2022 Latest Caselaw 5305 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.5084 of 2012
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Pappu Kumar, Son of Jagdish Choudhary, Resident of Kamalpur, P.O., P.S. and District-Khagaria

... ... Petitioner Versus

1. The State of Bihar through Secretary, Department of Law, Govt. of Bihar, Patna.

2. The Bihar State Legal Services Authorities, Budh Marg, Patna

3. District Legal Services Authorities through its Secretary, Khagaria

4. District and Sessions Judge-Cum-Chairman, District Legal Service Authorities, Khagaria

5. Pragati Kumari Daughter Of Sachchida Nand Rajak Resident Of Aawas Board, Khagaria, P.S.-Chitragupta Nagar, District-Khagaria

6. Nitin Kumar Son Of Not Known To Petitioner Working As Branch Clerk In Permanent Lok Adalat, Khagaria, P.S. Khagaria, District-Khagaria

7. Mr. Nishikant S/o Not known to the petitioner, Bench Clerk/Office Clerk in Permanent Lok Adalat, Madhepura, District- Madhepura

8. Krishan Kumar Bhargava, S/o Not known to the petitioner, Bench Clerk/Office Clerk in Permanent Lok Adalat, Madhepura, District- Madhepura

9. Navin Kumar, S/o Not known to the petitioner, Bench Clerk/Office Clerk in Permanent Lok Adalat, Gopalganj, District- Gopalganj

10. Rajiv Kumar, S/o Not known to the petitioner, Bench Clerk/Office Clerk in Permanent Lok Adalat, Gopalganj, District- Gopalganj

11. Ranjit Kumar Dubey, S/o Not known to the petitioner, Bench Clerk/Office Clerk in Permanent Lok Adalat, Siwan, District- Siwan

12. Atul Kumar, S/o Not known to the petitioner, Bench Clerk/Office Clerk, Permanent Lok Adalat, Siwan, District- Siwan

13. Mukund Madhav, S/o Not known to the petitioner, Bench Clerk/Office Clerk, Permanent Lok Adalat, Nalanda at Biharsharif, District- Nalanda

14. Astif Ahmad, S/o Not known to the petitioner, Bench Clerk/Office Clerk in Permanent Lok Adalat, Nalanda at Biharsharif, District- Nalanda

15. Sushil Kumar, S/o Not known to the petitioner, Bench Clerk/Office Clerk in Permanent Lok Adalat at Nawada, District- Nawada

16. Kumal Kumar, S/o Not known to the petitioner, Bench Clerk/Office Clerk Permanent Lok Adalat at Nawada, District- Nawada

17. Md. Wasim, S/o Not known to the petitioner, Bench Clerk/ Permanent Lok Adalat at Bhabhua, District- kaimur

18. Md. Meraz Ansari, S/o Not known to the petitioner, Bench Clerk Permanent Lok Adalat at Bhabhua, District- kaimur

... ... Respondents Patna High Court CWJC No.5084 of 2012 dt.19-12-2022

====================================================== Appearance :

For the Petitioner : Mr. Dronacharya, Sr. Adv.

       For the State         :          Mr. Satya Vrat, AC to GP-10
       For Respondent No.    :          Mr. Sunil Srivastava, Adv.
       09-13 & 15&16
       For Respondent No. 6 :           Mr. Pramod Kumar, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD CAV JUDGMENT

Date : 19-12-2022

Heard learned counsel for the petitioner, learned counsel for

the Respondent Nos. 09 to 13 & 15 to 16, learned counsel for the

Respondent No. 6 and learned counsel for the State.

2. For Appointment of peon, driver, stenographer and bench

clerk in the permanent lok Adalat, the District Legal Services

Authority, Khagaria, issued employment notice No. 2. After going

through the written examination, the petitioner was interviewed on

13.12.2011. He, thereafter, came to know that only two candidates

namely, Pragati Kumari (Respondent No- 5) and one Nitin Kumar

were appointed for the two posts of Bench Clerk in the permanent

Lok Adalat, Khagaria.

3. The petitioner, in the writ petition, has raised a plea that

initially 28.11.2011, was fixed as the date of interview. This date

has, subsequently, been postponed till further orders by a notice

dated 28.11.2011, (Annexure-4), and interview directed to be held

on 13.12.2011. The petitioner has asserted that Respondent No. 6

has originally not been declared successful. The date of interview Patna High Court CWJC No.5084 of 2012 dt.19-12-2022

was postponed to some how accommodate her. She has,

accordingly, been favoured in the matter of selection; and selected,

ignoring the legitimate claim of the petitioner.

4. The Respondent Nos. 3 and 4 have filed counter

affidavit. It is their case that a particular condition in the process

of selection regarding disqualification of examinees for

mentioning their name or identity in the answer book was clarified

under letter dated 28.11.2011, bearing Letter No. 1605 by the

Bihar State Legal Services Authority (for brevity 'BSLSA'). After

receiving the said letter, containing binding

clarifications/instructions by the BSLSA, the interview was

postponed till further order to ensure compliance with the

instructions received from the BSLSA. Accordingly, 15 days time

was granted for completing the process of appointment. Re-

tabulation work was completed after implementing the

clarification/instructions of the BSLSA dated 28.11.2011, and a

fresh result for interview was thus prepared. Three candidates were

declared qualifying for interview, including, the instant petitioner.

All the three candidates were applicants under the reserved

categories as none have obtained 40% cut-off marks to come in the

general category.

Patna High Court CWJC No.5084 of 2012 dt.19-12-2022

5. On 18.01.2012, the District Legal Services Authority has

sent copy of the fresh final result of selected candidates, namely,

Nitin Kumar (Respondent No.6) and Pragati Kumari (Respondent

No.5) for the post of Office Clerk and Bench Clerk respectively.

These two candidates have thus been appointed.

6. The petitioner's counsel submits that the letter dated

28.11.2011, bearing Memo No. 1605 introduced a change in the

disqualification clause in the midst of the process of selection. The

same has resulted in Respondent No. 6 emerging successful and

ultimately being offered appointment. The respondents could not

be permitted to change the rules of the game in the midst of the

selection process. It is submitted that the Respondent No. 6, being

a beneficiary of such change, cannot be permitted to continue in

employment. The petitioner has, thus, assailed the appointment of

Respondent No. 6.

7. Earlier, in the course of instant writ proceedings,

when the matter was being heard on 26.08.2019, this Court made a

specific query that if the petitioner was aggrieved by the so-called

change of rules in the midst of selection process by letter dated

28.11.2011, bearing Memo No. 1605, by the BSLSA and notice of

the same day, whether he had objected to the same? The

petitioner, thereafter, filed Interlocutory Application No. 3 of 2019, Patna High Court CWJC No.5084 of 2012 dt.19-12-2022

seeking quashing of the letter bearing Memo No. 1605 dated

28.11.2011 of the BSLSA. Challenge to the said letter now at this

belated stage, about 8 years after the same was issued, does not in

any way improve the petitioner's case. The fact remains that he did

not assail this decision when it was taken on 28.11.2011, or at any

time within the last 8 years. Having participated in the selection

process without assailing the letter dated 28.11.2011, bearing

Memo No. 1605 or notice dated 28.11.2011, postponing the date of

interview, the petitioner, on being unsuccessful, cannot be

permitted to turn around, and question the result of the selection

process at a later stage by alleging that these letters introduced an

impermissible change in the selection criteria during midst of the

selection process. Petitioner is estopped from raising such plea.

8. Another and more important aspect of the matter is

that petitioner has not challenged the entire selection process. Even

if appointment of Respondent No. 6, which is assailed by the

petitioner is set aside by this Court, then admittedly the petitioner

would not as a result be appointed against the said post. It is not in

dispute that the petitioner and Respondent No. 5 belongs to

Scheduled Castes category as per reservation policy. It is also not

in dispute that neither petitioner nor Respondent Nos. 5 or, 6 have

secured more than 40% marks so as to place them in general Patna High Court CWJC No.5084 of 2012 dt.19-12-2022

category. Their claim, therefore, has to be considered in their

respective reservation category as per reservation policy under the

Bihar Reservation of Vacancies in Post and Services (for

Scheduled Castes, Scheduled Tribes and Other Backward Classes)

Act, 1991, (hereinafter refered to as the Bihar Reservation Act for

brevity).

9. In this connection, Respondent No. 2 has filed a

supplementary counter affidavit. In paragraph no. 6 they have

taken a stand that as per reservation policy if there are two posts

of the same category vacant then one will go to the unreserved

category and second to OBC as per roaster policy. Any candidate

of any category will be entitled to unreserved category post if

he/she has the marks above cut-off for unreserved category. The

second post is to go to the OBC category; and thereafter, again to

unreserved category. If there are more than three post of the same

category, then only fourth post would go to the candidate of

Schedule caste category, to which the petitioner belongs. Such

roaster schedule and the Roaster Policy is based on the Bihar

Reservation Act which has to be followed. In para 14 of the writ

petition it has been admitted that respondent No. 6 is an OBC

category candidate . The petitioner could claim appointment as an

SC candidate only if there were four vacancies. Patna High Court CWJC No.5084 of 2012 dt.19-12-2022

10. Respondent No. 5 has secured highest marks

therefore un-reserved post went to respondent No. 5 and the

second post as per roster went to OBC category (Respondent

No.6). There being only two posts, the petitioners who was

claiming appointment against post reserved for SC had no claim.

11. The learned senior counsel for the petitioner does

not dispute or deny these averments. He, however, submits that

this Court should consider the validity of selection and

appointment of Respondent No. 6. On account of favouritism

being extended to the Respondent No. 6 and his appointment being

founded on a change of criteria in the midst of selection process,

which as per settled law is impermissible.

12. Since the petitioner does not have any claim or

legitimate right or expectation to be appointed, even if the

selection/appointment of Respondent No. 6 was to be interfered

with by this Court, this Court would find that exercise of writ

jurisdiction would be nothing more than a futile exercise and an

academic discussion, as a consequence of which, the petitioner

would not get any relief by way of appointment.

13. This Court is thus disinclined to exercise and invoke the

extraordinary, discretionary and equitable writ jurisdiction in

favour of the petitioner.

Patna High Court CWJC No.5084 of 2012 dt.19-12-2022

14. The writ petition is dismissed.

(Madhuresh Prasad, J)

Raj kishore/-

AFR/NAFR                AFR
CAV DATE                12.12.2022
Uploading Date            .12.2022
Transmission Date