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1994 DIGILAW 128 (PAT)

Bhojraj Mandal v. State Of Bihar

1994-03-23

GURUSHARAN SHARMA, S.B.SINHA

body1994
Judgment S. B. Sinha, J. 1. In both these writ applications the petitioners have prayed for issuance of a writ of or in the nature of mandamus directing the respondents to appoint them as Assistant Teachers in the District of Madhepura. 2. Pursuant to an advertisement, as contained in Annexu re 1 to the writ application, the petitioners have applied for the post of Assistant teachers and a panel was prepared for such appointment. 3. According to the petitioners, the petitioners Nos 1 and 3 belong to kewat caste and petitioner No 2 belongs to Gorhi caste and they have been classified as other Backward Classes. 4. According to the petitioners, Ashok Kumar and Shrikant Mandal, whose names appeared below the petitioners in the panel, filed a writ petitions being CWJC No.443 of 1988 and CWJC No 1059 of 1990, which were disposed of on 3.4.1989 and 2.1.1991, respectively an undertaking was given by the State to appoint them. 5. It appears that petitioners of CWJC No.12477 of 1992 filed writ applications being CWJC No.6635 of 1989 and CWJC No.6618 of 1989. The writ applications were dismissed by an order dated 85.1990. It has been submitted that the said writ applications were dismissed keeping in view the decision of this Court in Anil Kumar V/s. State of Bihar and others, reported in 1987 PUR Page 846, wherein this Court had held that any advertisement confining the invitation of applications only to a resident of a particular district or having received training In the said district will be ultra vires and thus, no illegality was committed by the State of Bihar in cancelling the panel based on such advertisement This Court in the aforementioned writ petitions observed : "in this view of the matter, we are of the opinion that the State of bihar has rightly taken a policy decision not to appoint any person out of the panel prepared by the Establishment Committee from amongst the candidates who have filed their applications pursuant to the advertisement which is contained in annexure-1 to the writ applications. Such being the position in law, we are bound to apply the law as has been enunciated by this Court times without number and thus we have no other option but to hold that the policy decision of the State of Bihar is absolutely valid in law. Such being the position in law, we are bound to apply the law as has been enunciated by this Court times without number and thus we have no other option but to hold that the policy decision of the State of Bihar is absolutely valid in law. Secondly, we must hold that an undertaking, which was given in contravention of a constitutional provision, cannot be enforced by this Court by Issuing a writ in the nature of mandamus. Such advertisement which is contained in Annexure-1 to the writ applications was wholly illegal and without jurisdiction. Any panel prepared pursuant thereto must be held to be non est in the eye of law and as such the petitioners does not have any subsisting legal right for being appointed in terms of any Panel which might have been prepared on the basis of the aforementioned advertisement. In Ganesh Mehtas case (supra) this aspect of the matter was not at all considered nor the earlier Division Bench decision of this court was brought to the notice of the Bench deciding the same. That decision is not a binding precedent. In this view of the matter, these two writ applications are dismissed. " 6. The petitioners did not disclose the filing of the said writ application. In CWJC No 6618 of 1989 Ram Kumar Mandal and Yogendra narayan Mandal were the petitioners, whereas ia CWJC No.6635 of 1989 binay Kumar Vishwas, Damodar Mandal, Akhilesh Kumar Mehta and bhojraj Mandal were the petitioners. 7. Now CWJC No 12477 of 1992 has been filed by Bhojraj Mandal, prithvi Chand Mandal and Binay Kumar Vishwas whereas CWJC No.12848 of 1992 has been filed by Shashidhar Mandal, Janardhan Sah and sureudra Kumar. Supplementary Affidavits have been filed stating that a wrong statement had been made in paragraphs 31 and 30 to the aforesaid two writ applications, respectively that the petitioners had never moved against subject matter of the instant writ applications. The said supplementary affidavits were filed on 18.1.1994 and 20.1 1994, respectively. Supplementary Affidavits have been filed stating that a wrong statement had been made in paragraphs 31 and 30 to the aforesaid two writ applications, respectively that the petitioners had never moved against subject matter of the instant writ applications. The said supplementary affidavits were filed on 18.1.1994 and 20.1 1994, respectively. However, in the Supplementary affidavits, it has been stated that the petitioners of both the writ applications had moved in CWJC No 6618 of 1989 and 6635 of 1989, but as the same were dismissed in view of the Anil kumars case, these writ applications are maintainable in view of the fact that Supreme Court of India now in Savita Prasad V/s. State of Bihar, CA no 2082 of 1991 along with other analogous cases reported in 1994 (1)PLJR 62 (SC) has given certain directions to the State of Bihar in relation to the persons similarly situated. 8. According to the learned counsel, these casses are covered by the aforesaid decision of the Supreme Court of India wherein a concession was made by Mr. Kapil Shibal appearing on behalf of the State of Bihar that the state would consider the cases of all such candidates whose juniors have been appointed The Supreme Court observed that it was satissed with this assurance made on behalf of the State and accordingly on the submissions of Mr Shibal the Civil Appeal was allowed r,nd it was accordingly directed to consider the cases of the appellants thereof for appointment as Primary schoo teachers wherever persons figuring below them in the panel have been appointed and if necessary to provide relaxation of the age bar against the existing vacancies. 9. The petitioners admittedly are guilty of suppression of material facts. They are also guilty of swearing false affidavit in the case. It is now known that exercise of jurisdiction under Article 226 of the Constitution of india is discretionary. It is also well known that this court may refuse to exercise its discretion if the petitioners do not approach this court with clean hands. We, therefore, take serious view of the matter and refuse to grant any relief to the petitioners as prayed for. Accordingly these writ applications are dismissed. 10. It is also well known that this court may refuse to exercise its discretion if the petitioners do not approach this court with clean hands. We, therefore, take serious view of the matter and refuse to grant any relief to the petitioners as prayed for. Accordingly these writ applications are dismissed. 10. However, dismissal of these writ applications would not mean that the State would go back from its concession and it may consider the cases of the petitioners for appointment if they are found eligible. 11. These writ applications are dismissed with the aforementioned observation. Application Dismissed.