Bihar Staff Selection Commission vs Himal Kumari
2022 Latest Caselaw 5331 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                         Letters Patent Appeal No.412 of 2021
                                           In
                     Civil Writ Jurisdiction Case No.7051 of 2020
     ======================================================

1. Bihar Staff Selection Commission Through the Secretary.

2. The Secretary of the Bihar Staff Selection Commission Patna, At and Post Veterinary College, Patna-14.

... ... Appellant/s Versus

1. Himal Kumari D/o Sri Mithilesh Kumar Chaudhary R/o B-92, Housing Colony, Kankarbagh, P.S.-Kankarbagh, District- Patna.

2. The Principal Secretary Govt. of Bihar, Urban Development and Housing Department.

... ... Respondent/s ====================================================== with Letters Patent Appeal No. 109 of 2021 ======================================================

1. Ravi Amarnath, S/o Sri Pradeep Kumar, Resident of Mohalla-Purani Kachachari Katrapar, P.O.-Biharsharif, P.S.-Biharsharif, District-Nalanda.

2. Kumar Gautam, S/o Brij Kishore Singh, R/o Baghmajhaua, P.S. Koilwar, District-Bhojpur.

3. Shekhar Kumar Prasad, S/o Shashibhusan Prasad, Resident of K-543, Hanuman Nagar, behind Housing Board, P.S.-Kankarbagh, District-Patna.

4. Laldeo Yadav, S/o Late Tulasi Yadav, Resident of Village-Larpur, P.O.-

Bhadijee, P.S.-Bodh Gaya, District-Gaya.

... ... Appellant/s Versus

1. The Bihar Staff Selection Commissioner, Patna through the Secretary.

2. The Secretary of the Bihar Staff Selection Commission, Patna, At and P.O.-

Veternary College, Patna.

3. The Principal Secretary, Urban Development and Housing Department, Govt. of Bihar.

4. Himal Kumari, D/o Mithlesh Kumar Chaudhary, R/o 302 Housing Colony, Kankar Bagh, P.S.-Kankarbagh, District-Patna.

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

(In Letters Patent Appeal No. 412 of 2021) For the Appellant/s : Mr. Satyabir Bharti, Advocate Mr. Prachi Pallavi, Advocate For the Intervener : Mr. Sanjay Singh, Sr. Advocate Mr. Rajesh Kumar Sinha, Advocate Patna High Court L.P.A No.412 of 2021 dt.20-12-2022

For the Respondent/s : Mr. Yogendra Prasad Sinha (Aag7) (In Letters Patent Appeal No. 109 of 2021) For the Appellant/s : Mr. Sanjay Singh, Sr. Advocate Mr. Rajesh Kumar Sinha, Advocate For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE PURNENDU SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)

Date : 20-12-2022 Re: I.A. No. 04 of 2022

Heard Interlocutory Application No. 04 of 2022 for

condonation of delay of 220 days in filing the present Letters

Patent Appeal.

For the reasons stated in the application and the

affidavit, delay of 220 days in filing the present Letters Patent

Appeal is condoned and I.A. No. 04 of 2022 stands allowed.

Re: L.P.A. No. 412 of 2021

The matter is relating to selection and appointment

to the post of City Manager. The post is governed by Rules

called Bihar City Manager Cadre (Appointment and Service

Condition) Rules, 2014 vide Annexure-1 to the writ application.

First respondent Himal Kumari was not selected thus she has

invoke remedy under Article 226 of Constitution in filing writ

application and it was allowed in her favour on 15.10.2020 in

CWJC No. 7051 of 2020. The learned Single Judge has directed

as under:-

Patna High Court L.P.A No.412 of 2021 dt.20-12-2022

"Considering the submission of the parties and also on consideration of the advertisement which contains the qualifying marks, the Court is of the considered view that the minimum qualifying marks is relatable to only written test and once the candidates qualified in the written test he is entitled to be considered for preparation of merit list and those candidates who qualified in the written test cannot be excluded from consideration zone on the ground that the candidates failed to obtain qualifying marks over and above qualifying marks in the written test. Not only written examination but also 40%, 36.5%, 34%, 32% and 32% in General, BC, EBC, SC/ST and female categories on the basis of total 100 marks which includes written test as well as experience.

Accordingly, the writ petition is disposed of with direction to the respondents to consider the case of the petitioner and alike for appointment against the post of City Manager on the basis of qualifying marks in the written test and prepare merit list. The entire exercise in this regard must be completed by the respondents at the earliest preferably within a period of three months from the date of receipt/production of a copy of this order."

Patna High Court L.P.A No.412 of 2021 dt.20-12-2022

Learned counsel for the appellant submitted that

the first respondent is not entitled to selection and appointment

to the post of City Manager, the merit list has been prepared in

terms of Rule 5 read with Rule 11 of Rules, 2014 and State

Government communication dated 16.07.2007 vide Annexure-C

to the supplementary affidavit on behalf of the appellant. It is

relevant to reproduce Rule 5 and Rule 11 of Rules 2014 which

reads as under:-

"5. Process of recruitment, appointment and procedure of Recruitment:-

(1) Appointment to the basic category of these posts in this cadre, will be by direct recruitment (written examination) on the recommendation of the Commission. Total 100 marks will be determined for direct recruitment.

Out of total 100 marks, 70 marks will be determined for the written examination. 10 marks for experience for every year and a maximum 30 marks shall be given for the appointment to the post of City Manager working on contract basis.

Determination of subjects for written examination will be determing by the Commission in consultation with the Department.

(ii) Not withstanding anything contain in these Rules, where any post in the cadre is vacant due to unavailability of suitable candidate or where any post is vacant due to leave of anyone or is vacant on temporary basis, in the interest of work that post may be filled up by suitable qualification holder person by deputation/ contract basis.

11. Residual matters.-

Rules, regulations and orders of the State Government for employees of suitable level will apply for members of this cadre with regard to Patna High Court L.P.A No.412 of 2021 dt.20-12-2022

the matters particularly not covered in these Rules or any regulations made under these Rules."

Further executive order dated 16.07.2007

Annexure-C to the supplementary affidavit para-7 reads as

under:-

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Learned counsel for the appellant submitted that reading

of the aforesaid provision read with the government order dated

16.07.2007 the merit list prepared by the Commission is in

order. In other words first respondent could not meet the criteria

in so far as para-7 of the order dated 16.07.2007. Therefore, the

learned Single Judge has committed error in directing the

appellant to undertake review of merit list and notify the same

and consider the first respondent selection and appointment to

the post of City Manager.

Patna High Court L.P.A No.412 of 2021 dt.20-12-2022

Per contra learned counsel for the respondent

resisted the aforesaid contentions and submitted that there is no

error committed by learned Single Judge. It is further submitted

that government order dated 16.07.2007 is prior to issuance of

Rules 2014, therefore, government order do not supplant to

Rules 2014. It is also submitted that Women Reservation

(Horizontal Reservation) has not been made known in the

advertisement. First respondent being a women she is entitled to

consider her name both under general merit and Women

Reservation (Horizontal Reservation). At this stage learned

counsel for the appellant submitted that even assuming that

Women Reservation benefit is extended to the first respondent,

she is unable to fulfill the criteria laid down in the para-7 of the

government order dated 16.07.2007, therefore, the first

respondent has not made out a case for her selection and

appointment to the post of City Manager. In the result, order of

the learned Single Judge dated 15.10.2020 passed in CWJC

7051 of 2020 is liable to be set aside.

Heard learned counsels for the respective parties.

Core issue involved in the present lis is whether

Commission has committed error in taking note of criteria laid

down in the executive order issued under Article 166 of the Patna High Court L.P.A No.412 of 2021 dt.20-12-2022

Constitution dated 16.07.2007 as one of the criteria for the

purpose of City Manager post or not? First respondent was

candidate for recruitment to the post of City Manager and she

was unsuccessful, therefore, she has approached this Court. Her

grievance is that having regard to the merit read with the

number of vacancies she is entitled to selection and appointment

to the post of City Manager and further submitted that if Women

Reservation (Horizontal Reservation) is given effect even in

such circumstances the first respondent is entitled. The post of

City Manager is governed by Rules, 2014. Perusal of Rule 5

read with Rule 11 there is no adoption of Government order

dated 16.07.2007 in so far as criteria in other words addition to

whatever the procedure prescribed in Rule-5 of Rules, 2014 and

Rule 11 of Rules, 2014 is relating to the present selection and

appointment procedure. On the other hand if any Government

order subsequent to Rules, whatever the government order and

Rules are applicable to the City Manager Cadre Post. Rule 11

cannot be read with Rule 5 so as to read additional criteria for

the purpose of selection and appointment to the post of City

Manager. Supplant by any material information by means of

executive order without tinkering the original rule could be

issued however, in the present, case executive order is dated Patna High Court L.P.A No.412 of 2021 dt.20-12-2022

16.07.2007 on the other hand Rules is of the year 2014 there

cannot be a supplant of Government order dated 16.07.2007 to

Rules, 2014.

In the light of these facts and circumstances, the

appellant have not made out a case so as to interfere with the

order of the learned Single Judge. Further we have noticed that

appellant being a Selecting Authority to various posts to the

State Government, they have failed to follow the Constitutional

provision like Article-15 (3) read with Article-16 in

classification of reservation in other words among 152 post of

City Manager is required to be classified with reference to

percentage of Women Reservation (35%) such a tabular form is

not made known in the advertisement. It was bounden duty of

the Selecting Authority to reveal that which are the post which

have been earmarked for various social reservation like SC, ST,

OBC, EBC read with Horizontal Reservation like Women

Reservation and physically handicapped persons etc., so as to

have the benefit of reserved post to the candidates. In fact R.K.

Sabharwal and Others v. State of Punjab and Others reported

in (1995) 2 SCC 745 in which Hon'ble Supreme Court has held

that post based reservation is required to be notified and filled

up. Once the post based reservation is required to be Patna High Court L.P.A No.412 of 2021 dt.20-12-2022

implemented in that event it was bounden duty of the appellant

and State in identifying which are the post for social reservation.

Such exercise is required to be undertaken by the State

Government as well as Commission at the time of

advertisement. This issue may be taken for future recruitment.

With the above observation, present L.P.A. stands

dismissed.

Pending I.As., if any, stands disposed of in the light

of disposal of the L.P.A.

Re: L.P.A. No. 109 of 2021.

Learned counsel for the appellants Mr. Sanjay

Singh, on instruction submitted that the present matter can be

disposed of in the light of order passed in L.P.A. No. 412 of

2021.

Accordingly, the present L.P.A. stands disposed of.

                                                   (P. B. Bajanthri, J)


                                                  ( Purnendu Singh, J)
Niraj/aditya
AFR/NAFR                N.A.F.R.
CAV DATE                N/A
Uploading Date          24.12.2022
Transmission Date       N/A