Manendra Kumar vs The State Of Bihar
2023 Latest Caselaw 1146 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     Civil Writ Jurisdiction Case No.6490 of 2018
     ======================================================

1. Manendra Kumar Son of Ram Babu Singh Resident of Village- Rampurwa, P.S.- Hilsa, District- Nalanda.

2. Premchandra Kumar, Son of Narendra Prasad Resident of Village-

Amarpuri, P.S.- Harnant, District- Nalanda.

3. Rintu Kumar, Son of Naval Prasad @ Naval Singh Resident of Village-

Fatehpur, P.S.- Chighsaura, District- Nalanda.

4. Jitendra Kumar, S/o Rambriksh Singh Resident of Village- Nagar Nausa, P.S. Nagarnausa, District- Nalanda.

5. Manjit Kumar, Son of Anil Prasad Resident of Village- Chandi, P.S.- Chandi, District- Nalanda.

6. Gajendra Kumar, Son of Late Kedar Sharma Resident of Village-

Bhamendrapur, P.S.- Hilsa, District- Nalanda.

7. Raj Kishore Kumar, Son of Late Preman Prasad Resident of Village-

Bhagwatpur, P.S.- Islampur, District- Nalanda.

8. Kumari Nilam Sinha, Wife of Krishnadeo Prasad Resident of Village-

Sultanpur, P.S.- Ekangarsarai, District- Nalanda.

9. Kari Devi, Wife of Late Sadan Kewat Resident of Village- Patan Bigha, P.S.-

Islampur, District- Nalanda.

10. Amola Devi, Wife of Sudhir Kumar Resident of Village- Nadha, P.S.- Hilsa, District- Nalanda.

11. Malti Devi, Wife of Ramanuj Ravidas R/o Village- Chamadil, P.S.- Hilsa, District- Nalanda.

12. Raushan Kumar, Son of Dwarika Prasad Resident of Village- Chakrasullah, P.S.- Ben, District- Nalanda.

13. Jyotsna Bharti, W/o Chandeshwar Prasad Resident of Village- Chandaut, P.S.- Hilsa, District- Nalanda.

14. Manju Devi, W/o Nandlal Prasad Resident of Village- Pura, P.S.-

Ekangarsarai, District- Nalanda.

15. Ram Dahin Das @ Ramdahin Prasad, S/o Shivchandra Prasad R/o Village-

Lalse Bigha, P.S.- Hilsa, District- Nalanda.

16. Pramanand Prasad, S/o Sri Krishna Sao R/o Village- Barsiyama, Rasulpur, P.S.- Telhara, District- Nalanda.

17. Sunita Devi, W/o Lal Babu Paswan R/o Village- Makhdumpur, P.S.- Karai Parsurai, District- Nalanda.

18. Chanchala Devi, W/o Late Rajesh Kumar R/o Village- Ward No. 22, Gandhinagar Ramchandarpur, P.S.- Biharsharif, District- Nalanda.

19. Shailendra Kumar Sharma, S/o Late Kameshwar Sharma Resident of Village- Noorsarai, P.S.- Noor Sarai, District- Nalanda.

20. Rambalak Kumar, S/o Late Bihari Mahto Resident of Village- Chandasi, P.S.- Noorsarai, District- Nalanda.

Patna High Court CWJC No.6490 of 2018 dt.23-03-2023

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Education Department, Govt. of Bihar, Patna.

2. The Director Bihar, State Education Project, Govt. of Bihar, Patna.

3. The District Magistrate, Nalanda.

4. The District Education Officer, Nalanda.

5. The District Programme Officer, Primary Education and Sarva Shiksha Abhiyan Nalanda.

6. The Block Education Officer, Harnaut, District- Nalanda.

7. The Block Education Officer, Karai Parsurai, District- Nalanda.

8. The Block Education Officer, Nagarnausa, District- Nalanda.

9. The Block Education Officer, Hilsa, District- Nalanda.

10. The Block Education Officer, Chandi, District- Nalanda.

11. The Block Education Officer, Thartan, District- Nalanda.

12. The Block Education Officer, Islampur, District- Nalanda.

13. The Block Education Officer, Noorsarai, District- Nalanda.

14. The Head Master, Kasturba Gandhi Residential Girls School, Harnaut, District- Nalanda.

15. The Headmaster, Kasturba Gandhi Residential Girls School, Karai Parsurai, District- Nalanda.

16. The Head Master, Kasturba Gandhi Residential Girls School, Nagar Nausa, District- Nalanda.

17. The Head Master, Kasturba Gandhi Residential Girls School, Hilsa, District-

Nalanda.

18. Headmaster, Kasturba Gandhi Residential Girls School, Chandi, District-

Nalanda.

19. The Head Master, Kasturba Gandhi Residential Girls School, Thanthari, District- Nalanda.

20. The Headmaster, Kasturba Gandhi Residential Girls School, Islampur, District- Nalanda.

21. The Head Master, Kasturba Gandhi Residential Girls School, Noorsarai, District- Nalanda.

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

       For the Petitioner/s     :       Mr.Zaki Haider
                                        Mr. Kumar Kaushik
       For the State            :       Mr.Madhaw Prasad Yadav -Gp23
                                        Mr. Arvind Kumar, AC to GP 23
       For the BEPC             :       Mr. Girijesh Kumar

====================================================== Patna High Court CWJC No.6490 of 2018 dt.23-03-2023

CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA

JUDGMENT AND ORDER ORAL

Date : 23-03-2023

The petitioners were appointed on Class-IV posts, as

Peon, Assistant Cook, Head Cook and Night Guard in various

Kasturba Gandhi Residential Girls Schools in different blocks.

They were appointed between 14.12.2008 and 23.12.2023.

2. Learned Counsel for the petitioners submits that the

petitioners have been working for the last 10-15 years, though on

contractual basis, but the grievance of the petitioners is that the

respondents are going to make fresh appointment on different

posts, including the posts held by them, on contractual basis and

for which, an advertisement has been published vide

Advertisement No. BSPP/KGBV/02/2022, annexed as Annexure

-10(a) to I. A. No. 02 of 2023. The petitioners have challenged the

advertisement in question, on the ground that the petitioners are

being discriminated inasmuch as the respondents cannot replace

one adhoc appointee with another adhoc appointee.

3. On the other hand, learned Counsel for the Bihar

Education Project Council submits that the petitioners were

appointed on adhoc basis with the condition that whenever fresh

appointment, after following the due process, will be started, their Patna High Court CWJC No.6490 of 2018 dt.23-03-2023

services would not be extended and they will be treated to have

vacated their posts. He further submits that a co-ordinate Bench of

this Court, vide order, dated 28.02.2018, passed in CWJC No.

14475 of 2008, has held that in the matters of appointment not

being under the State, a writ petition under Article 226 of the

Constitution of India is not competent, and further, that the nature

of the job was contractual for one year, which ended in the year

2009 and after that it was open to the petitioner to apply pursuant

to any separate advertisement subject to fulfilling the other

eligibility criteria. He further submits that the Bihar Education

Project Council has advertised the posts for appointment in

consonance with Articles 14 and 16 of the Constitution of India

inasmuch as the petitioners were appointed on their respective

posts without any open advertisement. He also submits that in the

advertisement, in question, the reservation roaster has also been

followed and it is open to the petitioners to apply for their

appointment pursuant to the advertisement.

4. In reply, learned Counsel for the petitioners submits

that a Division Bench of this Court, in LPA No. 599 of 2013, in the

matter of removal/termination of the services of the Warden and

Night Guard, entertained the writ application, which was rejected Patna High Court CWJC No.6490 of 2018 dt.23-03-2023

by the learned Single Judge on the ground that the writ is not

maintainable.

5. I have heard learned Counsel for the parties

concerned.

6. It is an admitted position that the petitioners have

been working on their respective posts for the last so many years,

say for 10 to 15 years. The contention of the learned Counsel for

the petitioners is that the action of the authorities in making

appointment on the posts on which the petitioners are working is

discriminatory and arbitrary inasmuch as the authorities are going

to replace one adhoc appointee with another adhoc appointee.

Learned Counsel for the Bihar Education Project Council has put

an emphasis on the facts that the appointment of the petitioners

were made without following the requirement of Articles 14 and

16 of the Constitution of India and without any open advertisement

after following the reservation roaster. Accordingly, the authorities

have decided to make fresh appointment after following the due

process of appointment by open advertisement. He further submits

that the petitioners, if so desire, may submit their applications for

appointment pursuant to the Advertisement No. BSPP/KGBV/

02/2022.

Patna High Court CWJC No.6490 of 2018 dt.23-03-2023

7. Taking into consideration the nature of controversy

and the fact that the petitioners are working for the last many

years, in my opinion, the interest of justice demands that if the

petitioners apply for the appointment pursuant to the fresh

advertisement, they shall be given one-time age relaxation, if they

are found over-age, subject to fulfilling all other criteria prescribed

in the advertisement, in question.

8. In case, the petitioners fulfill the eligibility criteria

and apply for the posts advertised and are called for the interview,

the Interview Committee shall take into consideration their long

experience on the posts while assessing their suitability.

9. Since the advertisement was published during the

pendency of this writ application, having the last date for

submission of online application as 10.01.2023, I feel it

appropriate to extend the last date for submission of the online

applications, for the petitioners only, for twenty days from today.

10. I have been informed by learned Counsel for the

petitioners that interview for the selection on the posts claimed by

the petitioners has not yet started.

11. With the aforesaid observation and direction, this

writ application is disposed of.

Patna High Court CWJC No.6490 of 2018 dt.23-03-2023

12. I. A. Nos. 1 of 2021 and 2 of 2023 are also disposed,

accordingly.

(Anil Kumar Sinha, J.) Prabhakar Anand/-

AFR/NAFR                         AFR
CAV DATE                         N/A
Uploading Date                27.03.2023
Transmission Date                N/A