Bihar Staff Selection Commission ... vs Kudan Kumar And Ors
2023 Latest Caselaw 862 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                         Letters Patent Appeal No.778 of 2018
                                          In
                    Civil Writ Jurisdiction Case No.6504 of 2018
     ======================================================

1. Bihar Staff Selection Commission, P.O.-B.V. College, Patna-14 through its Secretary

2. The Chairman, Bihar Staff Selection Commission, P.O.- B.V. College, Patna-14 through its Secretary.

... ... Respondents- Appellants Versus

1. Kundan Kumar, Son of Jitendra Kumar Resident of Chitawan, P.O. Indaur, Dinara, Rohtas, Bihar.

Petitioner-Respondents 1st set

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

3. The Principal Secretary, Department of Social Welfare, Govt. of Bihar, Patna.

4. The Director, Directorate of Social Security and Disability, Social Welfare Department, Govt. of Bihar, Patna

5. The Assistant Director, Directorate of Social Security and Disability, Social Welfare Department, Government of Bihar, Patna

6. The Officer-in-Charge, Composite Rehabilitation Centre CRC Red Cross Bhawan Gandhi Maidan, Patna.

... ... Respondents-Respondents 2nd set ====================================================== Appearance :

For the Appellant/s : Mr.Satyabir Bharti, Sr. Advocate Ms. Sushmita Sharma, Advocate Mr. Abhishek Anand, Advocate Ms. Kannu Priya, Advocate For the Respondent/s : Mr.Abhay Kumar Thakur, Advocate Mr. Arvnendra Kumar Thakur, Advocate Ms. Sukriti Kumari, Advocate For the State : Mr. Gyan Prakash Ojah, (GA-7) ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI and HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)

Date : 21-02-2023

The present LPA is filed by the Bihar Staff Selection

Commission (for short 'BSSC'). BSSC is aggrieved by the order of

the learned Single Judge dated 10.04.2018 passed in CWJC No. Patna High Court L.P.A No.778 of 2018 dt.21-02-2023

6504 of 2018 by which learned Single Judge has directed the

BSSC to entertain applications of the respondent Kundan Kumar

to be filed by him and other similarly circumstanced teachers

working in Deaf and Dumb School as one time measure. If they

filed their applications within a fortnight from 10.04.2018, they

were permitted to participate in the selection process as one time

measure on the score that they were trained persons and they were

having experience of teaching in Deaf and Dumb and Blind

Institutions.

2. Brief facts of the case are that on 29.05.2014, BSSC

invited applications to fill up Class-III posts including 22 Assistant

Teachers post in the Deaf and Dumb School. Last date was

assigned as 11.10.2014.

3. In respect of challenge to certain description of technical

qualification, CWJC No. 12513 of 2014 was filed by some persons

and they had the benefit of interim order dated 26.08.2014,

relevant paragraph of which reads as under:-

"In view of the non-cooperative attitude of the respondent, till further orders, this Court stays the selection process so far as it related to appointment of teachers in Deaf and Dumb Middle School and Government Blind High Schools".

4. Thereafter, for other posts, on 16.02.2015 and 20.07.2016

preliminary test and mains examination were held respectively. In Patna High Court L.P.A No.778 of 2018 dt.21-02-2023

CWJC No. 12513 of 2014 while dismissing the petition, an

observation has been made by this Court to complete the process

of selection as early as possible and such an order was passed on

20.11.2017.

5. BSSC issued advertisement seeking option from the

selected candidates for Class-III post including 22 Assistant

Teachers post on 16.03.2018. In this backdrop, respondent Kundan

Kumar was not a candidate for the process of selection and

appointment to the post of Class-III in particular 22 Assistant

Teachers' post pursuant to advertisement dated 29.05.2014 read

with the fact that he was one of the contractual appointees to the

post of Assistant Teacher in the Deaf and Dumb School whether

permitting him to participate in the process of selection to the post

of 22 Assistant Teachers pursuant to the advertisement dated

29.05.2014 is correct or not? Learned Single Judge has allowed

the CWJC No. 6504 of 2018 filed by Kundan Kumar, hence the

present LPA was filed by the BSSC.

6. State of Bihar filed Civil Review No. 514 of 2018,

arising out of CWJC No. 6504 of 2018, such a civil review was

under the stage of removal of office objections. In this regard, on

28.02.2019, learned Single Judge passed the following order:-

"As a matter of last indulgence, time till 26.03.2019 is granted to the petitioners to remove the defects, failing which the application shall stand dismissed without further reference to a Bench"

Patna High Court L.P.A No.778 of 2018 dt.21-02-2023

7. Thereafter, State of Bihar respondent have not removed

the office defects. In the result, Civil Review No. 514 of 2018

stood dismissed and such an order has not been assailed by the

BSSC.

8. Learned counsel for the appellant BSSC vehemently

contended that the learned Single Judge has committed glaring

error in permitting respondent Kundan Kumar to participate in the

process of selection to the post of Assistant Teacher with reference

to advertisement dated 29.05.2014 on the score that he was not one

of the candidates who had nor submitted application so as to

consider his case. It is further submitted that the process of

selection was almost at the final stage as on the date of filing of

writ petition on behalf of Kundan Kumar. Moreover, he was not

subjected to preliminary test and main examination and such

stages were already completed. In fact final results were

announced while seeking option from the selected candidates for a

particular post including 22 Assistant Teachers post. It is also

submitted that merely working on contract basis to the post of

Assistant Teacher would not make one entitled to participate in the

process of selection and appointment to the post of Assistant

Teachers pursuant to the advertisement dated 29.05.2014, in the

absence of submission of application or participation in process of

selection in the manner known to the law.

Patna High Court L.P.A No.778 of 2018 dt.21-02-2023

9. Learned counsel for the respondent Kundan Kumar

vehemently contended that Kundan Kumar was appointed as

Assistant Teacher on contract basis and in the light of Secretary,

State of Karnataka and Others vs. Uma Devi reported in (2006) 4

SCC 1, he has statutory right to claim against the post. It is further

submitted that as long as order passed in Civil Review No. 514 of

2018 is not challenged by the BSSC and restricting challenge to

the order dated 10.04.2018 passed in CWJC No. 6504 of 2018, the

present petition is not maintainable. In support of such contention

he relied on two decisions reported in AIR 1988 Allahabad 309

and 2000(4) PLJR 210 (SC).

10. Heard learned counsels for the respective parties.

11. It is undisputed fact that respondent-Kundan Kumar was

appointed on contract basis to the post of Assistant Teacher in the

Deaf and Dumb School. In the guise of the fact that he was a

contract teacher, is he entitled to participate in the process of

regular recruitment to the post of Assistant Teachers in the Deaf

And Dumb School pursuant to the Advertisement dated

29.05.2014 without submission of application and without

participating in the process of selection including preliminary test

and main examination and further exercising option to a particular

post pursuant to the advertisement dated 16.03.2018? He being

Assistant Teacher on contract basis has no statutory vested right Patna High Court L.P.A No.778 of 2018 dt.21-02-2023

against permanent post. If he intent to participate in the process of

selection and appointment to the post of Assistant Teachers on

regular basis he is required to participate in the process of

selection in the manner known to the law. In other words, he has to

make an application pursuant to the advertisement and he himself

could be subjected to other process of selection including

preliminary test, main examination and etc. He being contractual

Assistant Teacher is entitled to only age relaxation or any marks

for gaining experience that too if any policy in the light of Apex

Court decision in the case of Uma Devi (supra). In this backdrop,

he has no locus to file a writ petition and seeking his participation

in the process of selection and appointment to the post of Assistant

Teacher, if he was not an applicant to the post pursuant to the

advertisement dated 29.05.2014. Therefore, the learned Single

Judge has committed glaring error in not noticing the service

jurisprudence insofar as selection and appointment to the public

post, like adhering to Articles 14 and 16 of Constitution.

12. Learned counsel for the respondent Kundan Kumar

submitted that appellant BSSC has not assailed the order passed in

Civil Review No. 514 of 2018. In this regard, we have to take note

of the fact that Civil Review No. 514 of 2018 was filed by the

State of Bihar and not by BSSC. The State of Bihar or State

Government would step in at the stage of the process of Patna High Court L.P.A No.778 of 2018 dt.21-02-2023

appointment. In other words, till finalization of select list by

BSSC, the State has no role. They have only role in respect of

issuance of order of appointment to the respective selected

candidates. Dismissal of Civil Review No. 514 of 2018 filed by

the State of Bihar would not be a hurdle for BSSC insofar as

challenging the order dated 10.04.2018 passed in CWJC No. 6504

of 2018. In the present case, we have to take note of each

individual role like BSSC is only a selecting authority and State

Government or the concerned departmental head is the appointing

authority. The respondent-Kundan Kumar case is only in respect of

selection and it has nor reached the stage of issuance of

appointment. Therefore, dismissal of Civil Review No. 514 of

2018 on technicality that State have failed to remove office defects

and it was dismissed. It is to be noted that dismissal of Civil

Review No. 514 of 2018 is not on merit.

13. At this stage, it is necessary to take note of principle laid

down by the Apex Court in the event of dismissal of SLP in

limine. In such matters parties were permitted to file review

petition before the respective High Court. The same principle is

attracted in the case in hand. In other words, BSSC not questioning

the order passed in Civil Review No. 514 of 2018 would not be a

hurdle, moreover, BSSC cannot rectify the office defects in Civil

Review No. 514 of 2018 filed on behalf of the State of Bihar.

Patna High Court L.P.A No.778 of 2018 dt.21-02-2023

Therefore, respondent counsel Kundan Kumar's contention that

BSSC in not challenging the order passed in Civil Review No. 514

of 2018 would be too technical. In this regard, the cited decision

on behalf of the respondent do not assist him for the simple reason

that each case depends on factual case of the respective matter,

accordingly, the cited decisions are distinguished as they are not

applicable to the case in hand.

14. In the light of these facts and circumstances, BSSC

have made out a, prima facie, case so as to interfere with the

learned Single Judge order dated 10.04.2018 passed in CWJC No.

6504 of 2018 is set aside.

15. Accordingly, LPA stands allowed.

(P. B. Bajanthri, J)

( Arun Kumar Jha, J) DKS/-

Balmukund/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          28.02.2023
Transmission Date       NA