Patna High Court
Vikash Kumar vs The State Of Bihar, Through The Chief ... on 18 January, 2024
Bench: Chief Justice, Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.727 of 2023
In
Civil Writ Jurisdiction Case No.1414 of 2019
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1. Vikash Kumar Son of Shri Ajit Kumar Resident of Village/Town/City
Samastipur, Post office- Samastipur, Police Station- Samastipur, District-
Samastipur.
2. Nayan Prakash, Son of Shri Rajesh Prakash Singh Resident of Village-
Mahamadpur Damodar, Post Office- Mahamadpur Badal, Police Station-
Sakra Muzaffarpur, District- Muzaffarpur.
3. Avinash Kumar Gupta, Son of Ramjee Prasad Gupta Resident of Mohalla-
Block Colony Road Bihta Bhojpur, Post office and Police Station- Bihiya,
District- Bhojpur.
4. Arjun Kumar, Son of Shambhu Prasad Resident of Mohalla- Paligram
Apartment Block- A, Bajran Puri Sahid Bhagat Singh Patna City Sampak
Chak, Patna Police Station- Sampak Chak, District- Patna.
5. Pawan Kumar, Son of Rammurat Thakur Resident of Village- Bhabua Ward
No. 01 Post Office- Bhaua, Police Station- Bhabua, District- Kaimur.
6. Rajesh Ranjan, Son of Birendra Prasad Resident of Chandrika Bhawan,
House No. 50A/1452 Parwati Devi Path-1, New Chitragupta Nagar, Police
Station- Kankarbag, District- Patna.
7. Nitish Bhardwaz, Son of Ajay Kumar Pandey Resident of Village- Kudaro,
Post Office- Golhatti Banka, Police Station- Bausi, District- Banka.
8. Roshan Kumar, Son of Shri Rajendra Kumar Bhelahi Resident of Ward No.
19, Supaul, Police Station- Supaul, District- Supaul.
9. Prakash Kumar Karan, Son of Sushil Kumar Das Resident of Mohalla-
Station Road, Near of G.R.P Thana, Ward No. 25, Police Station-
Samastipur, District- Samastipur.
10. Raushan Kumar, Son of Shri Kapil Deo Prasad Resident of Village-
Dumrawan Post Office- Abdachak, Police Station Asthawan, District-
Nalanda.
11. Rajeev Ranjan, Son of Arjun Sahni Resident of Cheeni Mil Chowk, near
Over Bridge, Ward No. 10, Police Station- Samastipur, District- Samastipur.
... ... Appellant/s
Versus
1. The State of Bihar, through the Chief Secretary, Government of Bihar, Patna.
2. The Law Secretary, Law Department, Government of Bihar, Patna.
3. The Honble High Court of Judicature at Patna, through its Registrar General.
4. The Registrar General, Honble High Court of Judicature at Patna, Patna.
5. Members of the Co-ordination Committee, Bihar, Patna, through the
Convener, Co-ordination Committee.
6. The Convener, Co-ordination Committee-cum- District and Sessions Judge,
Patna, Judges Court Road, Civil Court, Patna- P.O. Bankipur, District- Patna.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Rajendra Narayan, Sr. Advocate
Patna High Court L.P.A No.727 of 2023 dt.18-01-2024
2/5
: Mr. Ankit Katriar, Advocate
For the Respondent/s : Mr. Gyan Prakash Ojha (G.A.-7)
For the PHC : Mr. Piyush Lall, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 18-01-2024
1. The issue arising in the above L.P.A is with
respect to the employment notice dated 07.02.20216 bearing
No. 01 of 2016 which was issued to fill up 1681 tentative posts
to the post of Clerk in the Civil Courts within the State of
Bihar. The said advertisement was issued based on Bihar Civil
Court (Class III and Class IV) Rules, 2009. After the selection
was initiated, the rule was amended and notified in the year
2017. The selection was completed and there were non joining
posts to which the Registry of the High Court directed fresh
selection to be carried out, based on the 2017 Rules.
2. The number of candidates who expected the
posting on such appointments made to non-joining vacancies
came before this Court.
3. Learned Single Judge declined their prayers in a
batch of cases, the judgment in which is annexed as Annexure-1,
CWJC No. 21219 of 2018 and analogous cases (Suprabhat
Kumar & others vs State of Bihar and others). The order
Patna High Court L.P.A No.727 of 2023 dt.18-01-2024
impugned in the present appeal also relied on the aforesaid
judgment and the writ petition was dismissed.
4. An appeal was filed from the original judgment
of the learned Single Judge in which interference was caused as
per Annexure-A/4. We extract paragraph 19 and 20 of the
aforesaid appeal in which the judgment of the learned Single
Judge was set aside and the non-joining vacancies directed to be
filled up from the list prepared as per employment Notice 01 of
2016 based on the Rules of 2009:
(19). The learned Single Judge has not
appreciated that statutory rule will
prevail over the executive
instruction/decision. Further it is to be
noted that the opinion expressed by the
committee is to be upheld in such an
event the proper course for the
concerned competent authority is to
take appropriate steps to amend Sub-
rule 12, 13 and 14 of Rule 7 of Rules,
2009. In the absence of amendment to
Rules, 2009 that too with retrospective
effect, i.e., prior to 07.02.2016 the date
on which Clerk post was notified.
Executive decision cannot override
statutory rules. Therefore, the learned
Single Judge has committed error in
dismissing the writ petitions filed by
Patna High Court L.P.A No.727 of 2023 dt.18-01-2024
the appellants.
(20). Accordingly, the order of the
learned Single dated 29.09.2022
passed in CWJC No. 6259 of 2019 and
connected matters stands set aside.
While allowing LPA No. 650 of 2022
(arising out of CWJC No. 6259 of
2019), LPA No. 657 of 2022 (arising
out of CWJC No. 21219 of 2018), &
LPA No. 661 of 2022 (arising out of
CWJC No. 21219 of 2018) the
concerned selecting/appointing
authority is hereby directed to
consider each of the petitioners name
for the purpose of appointment to the
post of Clerk against unfilled
vacancies and anticipated vacancies
during the relevant period of two years
and necessary order of appointment
shall be issued to each of the eligible
petitioner within a period of three
months from the date of receipt of this
order. If any, of the candidate is not
suitable or eligible in that event
necessary speaking order shall be
passed and communicated to such
petitioner/s.
5. In the above circumstances we find that the
impugned judgment has to be set aside and we respectfully
Patna High Court L.P.A No.727 of 2023 dt.18-01-2024
follow the judgment in L.P.A. No. 650 of 2022 and analogous
cases, produced as Annexure-A/4.
6. The appeal is allowed.
(K. Vinod Chandran, CJ)
( Rajiv Roy, J)
Adnan/-
AFR/NAFR
CAV DATE
Uploading Date 19.01.2024
Transmission Date
