Bishekha Kumari Jaiswal vs The State Of Bihar
2023 Latest Caselaw 2449 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Miscellaneous Jurisdiction Case No.3968 of 2019
                                          In
                   Civil Writ Jurisdiction Case No.13719 of 2019
     ======================================================

Bishekha Kumari Jaiswal, D/O Late Mohan Prasad Jaiswal, Resident of Village and Post- Ajhokopa, Trasi Tola, P.S.- Rupauli, District- Purnea.

... ... Petitioner/s Versus

1. The State of Bihar Bihar.

2. Sri Sanjay Kumar, the Principal Secretary, Department of Health, Government of Bihar, Patna.

3. Sri Rabindra Kumar, Chairman, Bihar Staff Selection Commission, Patna.

4. Sri Om Prakash Pal, the Secretary, Bihar Staff Selection Commission, Patna.

... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s : Mr. Satish Chandra Jha 3, Advocate For the Opposite Party/s : Mr. Birju Prasad (GP 13) Ms. Shweta Anand, AC to GP 13 For the BSSC : Mr. Satyabir Bharti, Advocate Ms. Kanupriya, Advocate Md. Aslam Ansari, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR ORAL JUDGMENT Date : 17-05-2023 Heard Mr. Satish Chandra Jha -3, learned

Advocate for the petitioner, Mr. Birju Prasad for the State

and Mr. Satyabir Bharti for the BSSC.

This Court had, on 03.05.2023, directed the

State to intimate as to the number of vacancies available

against the non-joining of ANMs under the last recruitment

process.

Patna High Court MJC No.3968 of 2019 dt.17-05-2023

To recapitulate the facts of this case, it is required

to be noted that a Bench of this Court, by order dated

11.07.2019 passed in CWJC No. 13719 of 2019 had

directed the Secretary, Bihar Staff Selection Commission,

Patna to pass a fresh order with respect to the petitioner in

accordance with law after taking into account the facts

which were stated in that order.

The petitioner hailed from Kalwar caste which

actually fell in Backward Class category (BC). The

petitioner, by mistake, referred to such caste as Most

Backward Caste (MBC) in her application form as a result

of which the application was rejected at the threshold.

Initially, an objection was taken by the

Commission as also the State that Kalwar caste is not even

in the list of Backward Caste category but later such

objection was dropped.

It was the case of the petitioner before this Court

earlier that after the filling-up of the forms, a circular was

issued by the Bihar Staff Selection Commission inviting Patna High Court MJC No.3968 of 2019 dt.17-05-2023

objections from the candidates. At that stage, the

petitioner had made it known that she hails from Kalwar

caste which falls under Backward Class category (BC) and

not Most Backward Class category (MBC).

The aforenoted request for rectification was never

taken into account on the specious plea that such circular

inviting objection was only for the purposes of the

candidates intimating to the Commission any anomaly with

respect to their organizing the forms and it was not meant

for rectification of mistakes which would have otherwise

inadvertently crept in such application form.

This Court did not accept the aforenoted plea and

directed the Commission to take into consideration the

aforenoted facts and pass a fresh order. Later again, the

same stand was taken by the Commission as also the

State to reject the claim of the petitioner.

However, this Court was not satisfied that the

order passed by this Court was complied with in true letter

and spirit. The State was therefore directed, as noted Patna High Court MJC No.3968 of 2019 dt.17-05-2023

above, to come out with the existing vacancies, category-

wise, in the posts of ANMs throughout the State of Bihar

against the last recruitment process.

Initially, only the vacancy position was intimated

to this Court without indicating the category under which

such vacancy existed. It was also brought to the notice of

this Court that all the vacancies have now been carried

over to the next recruitment process which process is

already afoot.

Nonetheless, in compliance of the order passed by

this Court, the vacancy position, category-wise, has been

brought on record which indicates that three posts are still

vacant in Backward Class category and eight positions are

vacant in Backward category (females).

The contention of the Bihar Staff Selection

Commission is that it has recommended as many number

of candidates as the vacancies in the past.

The case of the petitioner ought to have been

considered in the light of the existing vacancy in the Patna High Court MJC No.3968 of 2019 dt.17-05-2023

category of the petitioner i.e. Backward Class category as

the mistake in stating about the category was sought to be

remedied when necessary corrections were solicited in the

application form and the petitioner had made it known to

the Commission that there was a mistake in the filling up

of the form.

It is not the case of either the Commission or the

State that such application of the petitioner was rejected at

any stage.

Thus, a right accrues to the petitioner for

demanding that if she falls in the category of successful

candidates, she ought to be accommodated,

notwithstanding the fact that fresh recruitment process has

been initiated against such vacancies also which have been

carried over to the next recruitment process.

At this stage Mr. Satyabir Bharti, learned counsel

for the Bihar Staff Selection Commission has stated that

because of such anomalies in the application forms, the

claim of many of the candidates were rejected and in case Patna High Court MJC No.3968 of 2019 dt.17-05-2023

the petitioner is accommodated against the existing

vacancy, it would only open a floodgate for all such

candidates whose application was rejected for incorrect

entries in the application form at the threshold.

The aforenoted flood-gate argument is not to be

readily accepted by this Court for the reason that it only

reflects desperation, without realizing that the orders

passed by the Courts of law normally is in personam and

not in rem and only such persons who come to the Court

get the benefit unless the intendment of the order is

otherwise.

This Court has taken note of the fact that this

litigation has been continuing since long and this is almost

the fifth time that the petitioner is before this Court. This

Court also realizes that under a contempt jurisdiction, such

mandamus cannot be issued; nonetheless the order passed

in the writ petition by this Court is required to be

implemented in its true letter and spirit.

Patna High Court MJC No.3968 of 2019 dt.17-05-2023

The learned counsel for the State has also

objected to any positive direction by this Court for

accommodating the petitioner against the existing vacancy

of the last recruitment process in view of the new

recruitment process having been initiated and there being

a circular of the Government directing that all the unfilled

vacancy shall be carried over to the fresh recruitment

process.

But with this factual background, this Court

directs the State to take a call with respect to the

candidature of the petitioner within a period of three weeks

taking into account the aforenoted facts and communicate

such decision to the Commission for the needful

consequent action.

The petition stands disposed of accordingly.

(Ashutosh Kumar, J) krishna/-

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Uploading Date          20.05.2023
Transmission Date