Nand Kumar Thakur vs The State Of Bihar
2023 Latest Caselaw 898 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                         Letters Patent Appeal No.501 of 2019
                                             In
                     Civil Writ Jurisdiction Case No.11562 of 2014
     ======================================================

1. Nand Kumar Thakur Son of Ram Ashish Thakur R/o - Village/Mohalla -

Rais, P.S. - Pandarak, District - Patna.

2. Sunil Kumar S/o Late Tilo Prasad R/o Village-Pandarak, P.S. Pandarak, District-Patna

... ... Appellant/s Versus

1. The State of Bihar through the Secretary, Department of Welfare, Bihar, Patna

2. The Director Department of Welfare, Patna

3. The Deputy Director Department of Welfare, Darbhanga Commissionary, Darbhanga

4. The Headmaster Scheduled Caste residential Girls School, Ram Nagar, District-Madhubani

5. The Headmaster Scheduled Caste residential Girls School, Bathnaha, District-Madhubani

6. The District Employment Officer Samastipur

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

For the Appellant/s : Mr. Rajendra Prasad, Sr. Advocate.

Mr. Pramod Kumar, Advocate.

For the Respondent/s : Mr. Gyan Prakash Ojha, GA-7. ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 23-02-2023

Heard the learned counsel for the parties.

The appellants have challenged the order dated

18.02.2019, passed in CWJC No. 11562 of 2014,

dismissing their claim for interfering with their order of Patna High Court L.P.A No.501 of 2019 dt.23-02-2023

termination of their engagement.

The appellants are cooks whose services were

engaged in residential hostels meant for scheduled caste

students. Later, their engagement was terminated on the

ground that the Regional Deputy Director who had given

the employment had no authority to appoint them.

This was questioned by the appellants firstly in

CWJC No.4011 of 1997 along with others when the stand

of the respondent was that the Regional Deputy Director

had no authority to engage such persons as cooks was

not accepted and the termination on that ground did not

find favour.

However, while parting with the order, the

Hon'ble Judge recorded that the vacancies would be

required to be advertised for attracting larger participation

by desirous candidates. In the case of appellants, it was

found that a different process had been adopted, namely,

calling for names from the local employment exchange

and not by making advertisement.

Under the aforesaid circumstances, it was Patna High Court L.P.A No.501 of 2019 dt.23-02-2023

directed that the Director of Welfare ought to consider

the case of the appellants, taking into account the

number of vacancies available till May 1992 and find out

whether the appellants have been appointed against those

vacancies. The Bench clarified that the appointments

ought to have been made against specified vacancies. The

order terminating the employment of the appellants was

made subject to the result of the inquiry.

It appears that thereafter an inquiry was made,

but no change was made in the order terminating the

engagement of the appellants. They again preferred a

writ petition before this Court vide CWJC No. 12202 of

2000, which was disposed of on 30.04.2004 directing

that in case the vacancies were notified and appointments

made, the appellants who had been working for such long

time ought to be given weightage.

The posts of cooks appear to have been

advertised, but the appellants never participated in the

selection process; rather they approached the High Court

again vide CWJC No. 11562 of 2014 which was dismissed Patna High Court L.P.A No.501 of 2019 dt.23-02-2023

by order dated 18.02.2019, which order is under

challenge in the present appeal.

The only ground on which the case of the

appellants have been rejected is that when an option was

given to the appellants to participate in the selection

process, in which they would have been given weightage

for their experience, they had not done so. It would

therefore not be available to the appellants to agitate

against the order of termination afresh after 19 years.

The writ petition preferred by the appellants was thus,

dismissed.

Mr. Rajendra Prasad, the learned senior

Advocate assisted by Mr. Pramod Kumar, Advocate, for

the appellants has submitted that the first order passed in

CWJC No. 4011 of 1997 actually protected the

engagement of the appellants. The grounds raised by the

respondents in justification of their termination was not

accepted. A distinction was made in that instance with

respect to mode of appointment / engagement of the

appellants. The posts are definitely to be notified for Patna High Court L.P.A No.501 of 2019 dt.23-02-2023

attracting more participants but in the case of the

appellants, their names were supplied by the local

employment exchange, whereupon, they were engaged.

In that case, they ought to have been retained as cooks.

This argument would not take the appellants to

anywhere for the reason that the posts were advertised

later. Even before the same was advertised, the matter

was scrutinized by another Bench later in CWJC No.

12202 of 2000 wherein a positive direction was given by

the Bench to notify the vacancies and in case of

participation of the appellants, to give them weightage

over the other participants for their experience as cooks.

It appears from the tenor of the argument as

also from the memo of appeal that the posts were

advertised and appointments were made but for reasons

which cannot be explained, the appellants never

participated in the same.

Now the termination order of 2000 was

questioned again in the year 2014 which writ petition was

dismissed on 18.02.2019.

Patna High Court L.P.A No.501 of 2019 dt.23-02-2023

The premise on which the writ petition of the

appellants was dismissed is absolutely justified. For the

appellants not having participated in the selection

process, they cannot be permitted to question the order

of termination which was passed about 19 years ago.

There is no merit in this appeal and, therefore,

the same is dismissed.

(Ashutosh Kumar, J)

(Harish Kumar, J) SunilKumar manoj/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          24.02.2023.
Transmission Date       NA