Vijay Kumar vs The State Of Bihar
2023 Latest Caselaw 2186 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.1015 of 2023
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1. Vijay Kumar, Son of Shri Ramji Prasad, Resident of Purani Gudari Ward No. 9, Post and Police Station- Bettiah, District- West Champaran.

2. Yogendra Prasad, Son of Shri Sheonath Prasad, Resident of Rajguru Chowk, Post and Police Station- Bettiah, District- West Champaran.

... ... Petitioners Versus

1. The State of Bihar through the Principal Secretary, Department of General Administration, Government of Bihar, Patna.

2. The Commissioner, Tirhut Division, Muzaffarpur.

3. The District Magistrate, Bettiah, West Champaran.

4. The Deputy Development Commissioner, Bettiah, West Champaran.

5. The Deputy Collector, Nazarat /Establishment, Bettiah, West Champaran.

6. The District Welfare Officer, Bettiah, West Champaran.

7. The District Employment Officer, Bettiah, West Champaran.

... ... Respondents ====================================================== Appearance :

For the Petitioners : Mr. Manoj Kumar, Advocate Mr. Prabhakar Sahai, Advocate For the Respondents : Mr. Dhurendra Kumar, AC to GP-5 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD CAV JUDGMENT Date : 08-05-2023

Petitioners have invoked the extra writ jurisdiction of

this Court seeking quashing of the order passed by the Collector,

West Champaran at Bettiah vide Memo No. 466/ Nazarat dated

18.08.2018 (Annexure '19' to the writ application) whereby and

whereunder he has rejected the claim of the petitioners for grant of

age relaxation and appointment on the post of Class IV employee

under the advertisement published in the year 2011. Patna High Court CWJC No.1015 of 2023 dt.08-05-2023

2. The petitioners have also prayed for a direction

particularly to the respondent no. 3 to appoint the petitioners

against the sanctioned and vacant post of Class IV employees in

the district of West Champaran at Bettiah and it's attached offices.

Prayer is to treat the petitioners without discrimination and to act

upon the direction/guidelines communicated to respondent no. 3

vide letter no. 12678 dated 11.09.2014 (Annexure '14' to the writ

application).

Brief Facts of the Case

3. It is the case of the petitioners that they were engaged

as peon/driver on daily-wages basis in the Collectorate of West

Chamapran at Bettiah and it's attached offices in the year 1983. In

compliance of the direction of the Government vide Letter No.

3955 dated 10.04.1990, a panel was prepared at the district level

on the basis of 240 working days and the name of the petitioner

no. 1 figured at serial no. 365 in the panel of 1991-92. It is stated

that since the copy of the panel is illegible, therefore, the name of

the petitioner no. 2 could not be searched.

4. It is stated that thereafter no panel was prepared at the

district level and the empanelled daily-wagers were directed to

perform various works from time to time. Reliance has been

placed to Annexure '1 Series' to show that the petitioner no. 1 was Patna High Court CWJC No.1015 of 2023 dt.08-05-2023

given an experience certificate under the signature of the

Executive Officer, Nagar Parishad, Bettiah showing the number of

days he had worked during the year 1983 to the year 1987 and

according to this Annexure '1', the petitioner no. 1 had worked for

1,500 days. Petitioner no. 2 was given a certificate that he had

worked as a Jeep Driver on daily wages from 03.05.1988 in the

National Rural Employment Section, West Champaran, Bettiah. It

is the further case of the petitioners that in the year 1987, an

exercise of absorption and regularization on Class IV post was

taken up and vide Resolution dated 25.04.1997 (Annexure '3' to

the writ application), it was directed by the Government that the

process for preparation of panel will be carried on keeping in mind

the conditions mentioned in Annexure '3' which includes the

educational qualification of minimum 8th pass but below

intermediate. It is stated that with the passage of time, the

Government came with a Resolution vide Memo No. 639 dated

16.03.2006 whereunder it was resolved to take steps for

absorption/regularization of the daily-wage earners. It was decided

that those who have completed more than 240 working days shall

be given preferences. Clause '3' of the said Resolution provides

that the benefit of relaxation of age ought to be given to the daily

wage earners to cover up their selection/absorption/regularization. Patna High Court CWJC No.1015 of 2023 dt.08-05-2023

This resolution of the Government is said to have generated hopes

in the petitioners of getting regular employment.

5. It is stated that vide an advertisement published in

daily newspaper 'Hindustan' on 29.01.2011, the District

Magistrate invited applications from the people of the district to

empanel them for the appointment of the Class IV employees. The

said notice categorically mentions that the daily wagers are to be

given weightage in accordance with law. Annexure '6' is the copy

of the advertisement. Later on, vide Letter No. 7365 dated

29.06.2011, guidelines/directions for selection of Class IV

employees have been circulated.

6. The petitioners claimed that they had applied for

employment by furnishing all the requisites and thereafter their

names appeared in the panel published on 22.10.2011 at Serial

Nos. 64 and 135 respectively but in the remarks column, their

candidatures were mentioned as cancelled due to their age. A final

panel was prepared vide Memo No. 264 dated 22.10.2011 on the

same day leaving out the petitioners. The respondents, however,

gave an opportunity to those who were left out to file their

objections, the objections filed by the petitioners were, however,

rejected vide Memo No. 293 dated 30.11.2011 (Annexure '10' to

the writ application). It is admitted that on the date of Patna High Court CWJC No.1015 of 2023 dt.08-05-2023

advertisement, the petitioners were overage by three and one years

respectively.

7. The petitioners mention the earlier round of litigation

brought by some of the candidates like the petitioners. Reference

has been made to CWJC No. 5947 of 2012 (Sunil Kumar

Chaubey and Others Vs. The State of Bihar and Others)

wherein it was observed that "if a decision to grant age relaxation

has been taken in the district of Bhojpur, reasonableness and

requirement of Article 14 of the Constitution mandates that the

benefit be extended to appointment in the West Champaran

Collectorate also. It is expected that the respondents while drawing

up the separate panel of daily wages under the advertisement in

accordance with the criteria that they may have fixed, shall give

adequate weightage to the question of age relaxation as being done

in the District of Bhojpur."

Submissions on behalf of the Petitioners

8. Learned counsel for the petitioners submits that these

petitioners' names were included in the panel of the year 1991-92

but in the year 2011, the petitioners were left out because of their

overage. Relying upon the judgments of this Court in the case of

Ashok Kumar Sharma and Others versus State of Bihar and

Others reported in 2016 (1) PLJR 232 as also in the case of Jai Patna High Court CWJC No.1015 of 2023 dt.08-05-2023

Kishun Ram and Others versus The State of Bihar and Others

reported in 2016 (1) PLJR 512, learned counsel submits that these

petitioners having worked for 240 days their names have been duly

mentioned in the Panel of 1991-92 would be covered in the first

category of the employees who were required to be considered for

regularization. The petitioners filed a writ application being CWJC

No. 16663 of 2015 and the same was disposed of with a direction

to respondents to consider the case of the petitioners in view of the

stipulations made in CWJC No. 10627 of 2014 (Rajendra Kumar

Yadav versus the State of Bihar and Others) and the settled

legal positions appearing from the judgment and order passed in

CWJC No. 692 of 2017 (Pandav Yadav and Others versus the

State of Bihar and Others) reported in 2017 (4) PLJR 352.

9. It appears that pursuant to the judgment of this Court

passed in CWJC No. 16663 of 2015, the petitioners made a

representation before the District Magistrate, West Champaran,

Bettiah vide Annexure '17' to the writ application whereupon

Deputy Collector, Nazarat, West Champaran, Bettiah called for the

evidences about the working of the petitioners and in response of

the same, the petitioners submitted their reply vide Annexure '18'

to the writ application. But ultimately the District Magistrate, West

Champaran rejected the claim of the petitioners vide Memo No. Patna High Court CWJC No.1015 of 2023 dt.08-05-2023

466/Nazarat dated 18.08.2018 (Annexure '19' to the writ

application) which is impugned in this case.

10. Learned counsel submits that while rejecting the

case of the petitioners, the respondents have come out with a

different ground:-

(i) Petitioner no. 1 has neither worked as Class IV

employee on daily wages in Government office nor he had been

paid Government money as his wages, hence, he is not entitled to

be appointed as Grade IV employee.

(ii) Petitioner no. 2 has neither worked as Class IV

employee on daily wages in Government office nor he had been

paid Government money as his wages, hence, he is not entitled to

be appointed as Grade IV employee.

11. It is submitted that the petitioners have been

discriminated as on the one hand, respondents denied the claim of

petitioner no. 2 and at the same time in the meeting dated

30.10.2009, steps were taken for absorption of driver also on Class

IV posts in the light of the Resolution No. 639 dated 16.03.2006. It

is submitted that the Government vide its Resolution No. 796

dated 02.02.2018 has also issued direction to all concerned to

regularize the employee of the other department. In this regard, Patna High Court CWJC No.1015 of 2023 dt.08-05-2023

Annexure '24' to the writ application has been placed for

consideration.

Submission on behalf of the State.

12. Learned counsel for the State has opposed this writ

application. It is submitted that the impugned order of the District

Magistrate, West Champaran, Bettiah (Annexure '19') is a well

reasoned order and it has considered each and every aspect of the

matter including the various orders of this Court. He has referred

paragraph 2(1) and 3(1) of the Resolution contained in Memo No.

639 dated 16.03.2006. The District Magistrate has also considered

the claim of the petitioners and the documents placed by them in

support of their claim. As regards petitioner no. 1, the remarks of

the District Magistrate is that the working days of petitioner no. 1

has been shown in the document dated 10.04.2010 which does not

contain any letter number or memo number, it is a photocopy and

does not show that against which post the petitioner has worked

and has received remuneration. There is no proof of payment of

remuneration to the petitioner no. 1. Similar is the remarks with

respect to petitioner no. 2. As regards works said to have been

done by the petitioner no. 2 during the Panchayat election, it is

stated that after the elections are notified, during the election

period work is taken from a large number of daily wagers which Patna High Court CWJC No.1015 of 2023 dt.08-05-2023

are above the sanctioned strength, for this period of work no

benefit of experience is given. It is further mentioned that in the

Panel of 1991-92, the working days of the petitioners are not

mentioned.

13. Learned counsel has submitted that reliance placed

by learned counsel for the petitioners on the judgment of this

Court in the case of Ashok Kumar Sharma (supra) as well as

Pandav Yadav (supra) are misplaced, inasmuch as it would appear

that in place of Ashok Kumar Sharma (supra), the writ

petitioners were earlier regularized in service but the said order

and judgment was set aside. Similarly. in the case of Pandav

Yadav (supra), the Hon'ble Writ Court has taken note of the

undisputed fact that the petitioners were working on daily wage

post in the respondents office-Water Resources Department since

last about 25 years and the details of work done were present

which were not disputed by the respondents.

14. Learned counsel for the State has heavily relied upon

the judgment of learned Co-ordinate Bench of this Court in the

case of Kapil Kumar and Others versus the State of Bihar and

Others reported in 2020 (1) PLJR 287 in which after a threadbare

discussions on how a selection process is to be carried out for any

appointment to a public post keeping in view Article 14 and 16 of Patna High Court CWJC No.1015 of 2023 dt.08-05-2023

the Constitution of India, the learned Writ Court referred the

judgment of the Hon'ble Supreme Court in the case of Renu and

Others versus District and Sessions Judge, Tis Hazari Courts,

Delhi and Another reported in (2014) 14 SCC 50 in which it has

been held that no authority is above law and no man is above law.

It is submitted that in view of the judgment of this Court in the

case of Kapil Kumar (supra) now all appointments against Class

IV posts are to be made after advertisement and examination. A

copy of information relating to appointment on the post of Peon as

contained in Memo No. 1555 dated 31.03.2023 issued by the Bihar

Staff Selection Commission has been placed before this Court for

perusal.

15. Learned counsel further submits that recently this

Court has considered similar matter in the case of Ramanand Sah

and Another versus The State of Bihar and Others (CWJC No.

1005 of 2023) and the said writ application has been dismissed

vide judgment dated 25.04.2023.

Consideration

16. Having heard learned counsel for the petitioners and

the State as also on perusal of the records, this Court finds that so

far as the remarks made by the District Magistrate, West

Champaran at Bettiah in his order contained in Annexure '19' to Patna High Court CWJC No.1015 of 2023 dt.08-05-2023

the writ application are concerned, those are not at all disputed or

explained by the petitioners in the writ application. This Court,

therefore, takes it as an undisputed fact that in the panel of 1991-

92, the number of days worked by the petitioners are not

mentioned. The so-called certificate issued by the Executive

Officer, Nagar Parishad, Bettiah in favour of petitioner no. 1

would not inspire confidence as it does not contain any description

of the post against which the petitioner has worked, it does not

contain any memo number/letter number and there is nothing on

the record to show that the petitioner no. 1 was paid Government

money during this period. As regards petitioner no. 2, the same

situate exits, documents showing that he had worked during the

Panchayat elections are not clinching the issue. Therefore, on

facts, this Court finds no error with the impugned order.

17. Learned counsel for the petitioners has relied upon

the judgment of the Hon'ble Division Bench in the case of Ashok

Kumar Sharma (supra), however, this Court finds that in the said

case, the petitioners were earlier regularized but then their

regularization were cancelled by the Government. The Hon'ble

Division Bench went through the Government's Resolution No.

639 dated 16.03.2006 and history of events up to 1990, came to a

conclusion that the writ petitioners/appellants were falling in the Patna High Court CWJC No.1015 of 2023 dt.08-05-2023

first category i.e. within the period till 11.12.1990 and, therefore,

they were deemed to be worth duly regularized. Accordingly, their

terminations were set aside.

18. The another judgment relied upon is in the case of

Jai Kishun Ram (Supra), the Hon'ble Court found that the

Committee which considered the claim of the petitioners had

clearly noted the period for which the petitioners/appellants had

worked in the year 1986, 1987, 1988, 1989 and 1990 which shows

that each had worked for more than 1000 days, therefore, it was

held that the petitioners had worked for more than 240 days prior

to 11.12.1990. Yet another case on which reliance has been placed

by learned counsel for the petitioners is the case of Pandav Yadav

(Supra) wherein a learned Co-ordinate Bench of this Court has

taken note of the admitted facts that the petitioners had worked on

daily wage basis under Respondent Nos. 6 to 8 since last about 25

years.

19. In the opinion of this Court, the three judgments on

which reliance has been placed by learned counsel for the

petitioners are clearly distinguishable and those would not help the

petitioners in this case.

20. On the other hand, this Court finds that the judgment

of the learned Co-ordinate Bench of this Court in the case of Kapil Patna High Court CWJC No.1015 of 2023 dt.08-05-2023

Kumar (Supra) has examined the scheme of selections against

Group 'D' posts. It has been noticed that there is a rule namely

Group 'D' (Recruitment and Service Condition) Rules, 2010

framed by the State of Bihar under the proviso to Article 309 of

the Constitution of India. The advertisement talks of a panel list be

prepared for selection against Class IV post in the light of the

orders of the Court and subsequent letters issued by the General

Administration Department and the Chief Secretary of Bihar.

21. The learned Co-ordinate Bench noticed the order of

this Court passed in CWJC No. 19120 of 2010 and observed that

this Court has settled the matter that unless in the advertisement

itself, it is otherwise provided, the panel would lose its validity

after one year. This is the Government's instruction also. The

learned Co-ordinate Bench deprecated the authorities who were

not following the law which was settled on this point and were

creating confusion.

22. The learned co-ordinate Bench referred another

judgment in relation to the District of Gaya, in the case of Vijay

Kumar Vs. the State of Bihar and Others being CWJC No. 2964

of 2009 in which it has been held that panels prepared earlier had

outlived its utility and if the vacancies exist, the same would be

filled up by fresh notification and a fresh panel would be prepared. Patna High Court CWJC No.1015 of 2023 dt.08-05-2023

23. Paragraphs '17', '18' and '19' of the judgment in the

case of Kapil Kumar (supra) are being reproduced hereunder for

a ready reference:-

"17. In case of Renu v. District and Sessions Judge, Tis Hazari Courts, Delhi and Another reported in (2014) 14 SCC 50, [:2014(2) PLJR (SC)270], the Supreme Court observed that no authority is above law and no man is above law. Referring to the purport of Article 13(2) of the Constitution, the Supreme Court remarked that the object of such a provision is to ensure that instructions emanating from any source of law, permanent or temporary, legislative or judicial or any other source, 'pay homage' to constitutional provisions relating to fundamental rights.

18. Article 14 of the Constitution has been considered to be forming the corner stone of our Constitution, which mandates the equality of opportunity. It is an integral part of our system. Any selection process or any appointment made to a public post is to be tested on the touchstone of equality and equal opportunity guaranteed under Articles 14 and 16 of the Constitution. It is mandatory on the part of an employer, which is State within the meaning of Article 12 of the Constitution, to allow all eligible candidates from the open market to participate in the process of selection. An appointment made in violation of the mandate of Articles 14 and 16 of the Constitution is intolerable as it offends one of the most fundamental pillars on which our Constitution rests.

19. Will it not amount to giving premium to the persons who managed to obtain back door engagements as daily wage employees by allowing them first, second and third preferences in the matter of selection, leaving out those who did not have such opportunity, by placing them at the bottom in the merit-list, for all times to come? Does this process not exclude a large number of competent persons, who if given an opportunity, would have applied for their engagement on daily wage basis? These are the questions, which are required to be kept in mind while considering the procedure which has been adopted for preparation of panel, through the advertisement in question." Patna High Court CWJC No.1015 of 2023 dt.08-05-2023

24. This Court further finds that in the case of Kapil

Kumar (supra) reliance has been placed on the judgment of the

Hon'ble Supreme Court in the case of UPSC versus Girish

Jayanti Lal Vaghela reported in (2006) 2 SCC 482 in which it has

been held that an appointment to any post in the State can only be

made after a proper advertisement inviting applications from

eligible candidates and holding of selection by a body of experts

or a specially constituted committee. It has been held that any

regular appointment made on a post under the State or Union

without holding a proper selection where all eligible candidates get

a fair chance to compete would violate the guarantee enshrined

under Article 16 of the Constitution of India.

25. In the light of the aforementioned discussions, this

Court finds that these petitioners who are claiming their entry in

the panel of the year 2011 have no basis to stand. The impugned

order as contained in Annexure '19' does not suffer from any

infirmity and it requires no interference.

26. This writ application stands dismissed accordingly.

(Rajeev Ranjan Prasad, J) avin/-

AFR/NAFR                AFR
CAV DATE                05.05.2023
Uploading Date          08.05.2023
Transmission Date