Shashl Bhushan Pd. Singh v. State Of Bihar — 1996 DIGILAW 561 (PAT)

Judgment D. P. Wadhwa, S. J. Mukhopadhaya, J. 1. The appellant is a member of Bihar Judicial Service. He filed the writ petition C. W. J. C. No.6327 of 1996 challenging the Memo No.7936-8050, dated 9th of May, 1996, by which this Court rejected the candidature of the appellant for consideration of his case for the post of Additional District judge (A. D. J. for short), the appellant being a member of Bihar Judicial Service, the aforesaid order passed by the learned Single Judge on 16th of August, 1996 in C. W. J. C. No.6327 of 1996 is under challenge in the present appeal. 2. The relevant facts show that the appellant was enrolled as an Advocate on 21st of August, 1987. While he was so practising as an Advocate, an advertisement was issued in the year 1990, for the post of Munsif, the appellant applied for the post of Munsif in pursuance of the said advertisement of the year 1990. The written test for appointment to the post of Munsif was conducted in the year 1991. However, the appointment order was not issued immediately thereafter. In the meantime, one advertisement was published on 16th of July, 1992, for appointment to the post of A. D. J. The appellant, not being eligible, could not apply in pursuance of the said advertisement dated 16th of July, 1992. Subsequently, a second advertisement was issued on 21st of August, 1994, calling for further applications for the post of A. D. J. This time appellant having completed seven years of practice as an Advocate, applied in pursuance of the said advertisement dated 21st of August, 1994 for appointment to the post of A. D. J. The matter relating to appointment to the post of ADJ. when remained pending for consideration, in pursuance of the earlier advertisement of the year 1990 and the written test held in the year 1991, the appellant was selected and appointed as Probationary Munsif by one order issued in the month of December, 1995. The appellant joined the post as probationary Munsif on 1st of May, 1996. Subsequently when the matter relating to appointment to the post of a. D. J. was taken up by this Court, taking into notice that the appellant has already become a member of Bihar judicial Service, the candidature of the appellant was rejected by the impugned order, contained in Letter. Subsequently when the matter relating to appointment to the post of a. D. J. was taken up by this Court, taking into notice that the appellant has already become a member of Bihar judicial Service, the candidature of the appellant was rejected by the impugned order, contained in Letter. No.7936-8050, dated 9th of May 1996. This impugned order dated 9th of May, 1996 was challenged by the appellant in writ petition C. W. J. C. No.6327 of 1996, which has been rejected by the learned single Judge by the impugned order dated 16th of August, 1996, as stated above. 3. The Counsel for the appellant raised the same point as was raised before the learned Single Judge. He relied on the decision of the Supreme court in the case of Rameshwar Dayal V/s. State of Punjab and others, reported in a. I. R.1961 S. C.816. It was contended that the appellant having completed seven years of practice as an Advocate by the time he applied, there was no occasion to reject the candidature of the appellant. The Counsel further relied on the Full Bench decision of Allahabad high Court in the case of Behariji Dass and others V/s. Chandra Mohan and others reported in A. I. R.1969 Allahabad, page 594. The argument of the Counsel for the petitioner-appellant was that the appellant being eligible for appointment to the post of A. D. J. , as on the date of submission of application, the eligibility is to be counted on that basis and not on the basis of any subsequent event took place after such application. He further relied on the decision of the Supreme court in the case of P. Mahendra and others V/s. State of Karnataka and others reported in A. I. R.1990 S. C.405 to submit that the selection procedure having started by virtue of issuance of advertisement, on the basis of the situation as was prevailing at that point of time, including the eligibility of the appellant and the rule, as was existing, he is entitled for consideration of his case for appointment to the post of A. D. J. It was submitted that by virtue of subsequent appointment of the appellant on 1st of may, 1996, as Probationary Munsif, the appellant cannot be held to be ineligible. To be more precise, it was contended that the cut-off date of eligibility is to be tested from the advertisement, when last date of application was to be submitted. The Counsel for the appellant relied on the other decisions of the supreme Court in the case of Chandra mohan V/s. State of Uttar Pradesh and others reported in AI. R.1966 S. C, 1987 and in the case of Satya Narain Singh etc. etc. V/s. The High Court of Judicature at Allahabad and others etc. etc. reported in A. I. R.1985 S. C.308. 4. The learned single Judge has taken into note the aforesaid submission made on behalf of the appellant. He has relied on the provision for appointment to the post of District Judge as laid down under Article 233 of the constitution of India, proviso (2) therein. Taking into note that a person already in service of the Union or the state is not eligible for appointment to the post of District Judge, the learned single Judge dismissed the writ-petition. 5. So far as the argument as advanced by the Counsel for the appellant that the cut-off date should be the last date of application to test the eligibility, is concerned, such argument at first instance seems to be attractive. In fact there are numerous decisions to that effect, which are not necessary to be cited at this stage. However, so far as the eligibility is concerned, even if a concerned person is eligible on a particular date, such person may become ineligible by flux of time for one or other reason. For example (i) A is within age limit and is eligible for appointment to a post, at the time of submitting application, thereafter a may become ineligible, subsequently, being overage; similarly (ii) b an Advocate having seven years of experience at the time of submitting application, is eligible for appointment to the post of A. D. J. During selection and prior to appointment, the licence of b is cancelled by the Bar Council of India. By virtue of such action, b becomes ineligible for appointment to the post of A. D. J, though, was eligible at the time of making application. By virtue of such action, b becomes ineligible for appointment to the post of A. D. J, though, was eligible at the time of making application. Now the question may arise as to whether the same principle is to be made applicable in both the aforesaid two types of cases, only because both the aforesaid persons (Examples A and b) were eligible at the time of submission of application? The answer will be in negative It is a settled principle that if a person is eligible for appointment, subsequently he cannot be declared to be ineligible, because of delay and laches on the part of the authority. According to us, such principle is applicable only with respect to first category of person, where the person is made ineligible because of the action/laches on the part of the authorities. However, on the other hand, when a person becomes ineligible because of the action on the part of the person concerned and not because of the authority, such person cannot derive the benefit of aforesaid principle. This is applicable in the second category of case. 6. As in the present case, the appellant becomes ineligible because of his own action, having joined the service, he cannot derive any benefit on the ground that he was eligible on the date of application. We find no merit in the appeal petition, the same is dismissed. L. PA. Dismissed.