Shyamanand Pandey v. State of Bihar — 1996 DIGILAW 724 (PAT)

JUDGMENT Dr. J.N. Dubey, J. These writ petitions are directed against the order dated 26th June, 1990 of the respondent no. 2, the Inspector General of Prisons, Bihar. 2. The case of the petitioners in brief is that they were appointed as Warders in different Jails of the State during 1970 to 1974. The promotion on the post of Clerk from amongst the Warders was made on the basis of their merit in the competitive examination. However, on 18.5.1985 respondent no. 2 directed that a panel of candidates who secure qualifying marks in the written test, scheduled on 19.5.85, be prepared according to their seniority in the cadre of Warders and promotion on the post of Clerk be made on the basis thereof. All the petitioners qualified in the written test and they were appointed on the post of Clerk on 28.4.1988 according to their seniority in the cadre of warders. On 26.6.1990 the respondent no. 2 cancelled his order dated 28.4.1988, appointing the petitioners on the post of clerk, in pursuance of the direction of this Court in C.W.J.C. No. 464 of 1986 (Sidheshwar Prasad & others vs. State of Bihar & others). 3. On the other hand the case of the respondents is that from the beginning the promotion of the Warders on the post of clerk was made on the basis of their merit in the competitive examination. This mode of promotion was challenged in this Court in C.W.J.C. No. 1569 of 1983, which was disposed of on 15.5.1985 specifically noting the stand of the State Government that appointment on the post of clerk was made on the basis of merit in the competitive examination. On 17.4.1985 respondent no. 2 directed all the Superintendents of Central Jails to hold a competitive examination of Warders on 19.5.1985 at Bhagalpur for filling up the vacancies on the post of clerk. He constituted a board of three persons for preparing the necessary panel after examining the answer books. On 18.5.1985 the respondent no. 2, while he was on tour of Bhagalpur suddenly changed the mode of appointment on the post of clerk by directing that a panel of candidates who secure qualifying marks in the written test to be held on 19.5.1985 be prepared according to their seniority in the cadre of Warders and appointments on the post of clerk be made on the basis thereof. 4. Respondent no. 4. Respondent no. 7 and few other Warders filed C.W.J.C. No. 464 of 1986 in this Court challenging the order dated 18.5.1985 of the respondent no. 2 inter alia on the ground that he was not legally competent to change the mode of appointment prescribed by the State Government, specially just a day before the date of written examination. They also moved an application for restraining the respondent no. 2 from making any appointment on the post of Clerk on the basis of the new criteria laid down in the latter dated 18.5.1985. The writ petition along with the stay application was listed before a Division Bench on 30th January, 1986. The Division Bench while granting three weeks' time to the learned State counsel for seeking instruction passed the following interim order: "Learned counsel for the State prays for time to seek instruction in the matter. As prayed for, put up after three weeks for admission. In the meantime all appointments or promotion will be subject to the result of this application." On 28.4.1988 respondent no. 2 appointed 15 Warders, including the petitioners, as Jail Clerks on temporary basis C.W.J.C. No. 464 of 1986 was allowed by this Court on 7.2.1990 and the order dated 18.5.1985 of the respondent no. 2 was quashed. The operative portion of the order runs as under: "In this view, the impugned order contained in Annexure-3 is quashed and this application is allowed with a direction to prepare the panel in accordance with merit i.e. the marks obtained in the competitive examination held on 19.5.85 and to make appointment on the post of clerk from the said panel. There will be no order as to the cost. The impugned order has been passed in compliance of the above order of this Court. 5. Heard the learned counsel for the parties and perused the record. 6. Learned counsel for the petitioners contended that the new criteria adopted by the respondent no. 2 for making appointment on the post of clerk was neither unreasonable nor inconsistent with the principles enshrined in Articles 14 and 16 of the Constitution and, as such, it was not open for this Court to go into the question as to whether any change was necessary. In other words, so long the changed criteria was consistent with the constitutional mandate the selection made pursuant thereto could not be quashed. In other words, so long the changed criteria was consistent with the constitutional mandate the selection made pursuant thereto could not be quashed. He further contended that the petitioners were not party in C.W.J.C. No. 464 of 1986 and, as such, no action could legally be taken against them on the basis of the order passed therein. 7. I find no substance in the arguments of the learned counsel. The petitioners were appointed on the post of clerk in terms of the order dated 18.5.1985 of the respondent no. 2 during pendency of C.W.J.C. No. 464 of 1986 on temporary basis and their appointments were subject to the result of that writ petition. Therefore, once that writ petition was allowed and the order dated 18.5.1985 of the respondent no. 2 was quashed, he had no option but to revert the petitioners to their original post of Warders. This Bench has no jurisdiction to sit in appeal on the judgment of the learned Single Judge passed in C.W.J.C. No. 464 of 1986 in these proceedings. As stated above the petitioners were appointed on the post of clerk in terms of order dated 18.5.1985 of the respondent no. 2 during pendency of C.W.J.C. No. 464 of 1986 and their appointments were subject to the result of that writ petition and, therefore, if they wanted to contest that writ petition they could have applied for impleadment as party therein, which was admittedly not done. The order passed by the learned Single Judge in C.W.J.C. No. 464 of 1986 could be set aside by this Court either in review application or the Letters Patent Appeal but it cannot be interfered with in these collateral proceedings. Thus, the order passed in the said writ petition can neither be set aside nor ignored in these proceedings. 8. The impugned order of the respondent no. 2 having been passed in compliance of the order passed by this Court in C.W.J.C. No. 464 of 1986 does not suffer from any error, much less an error apparent on the face of the record, which may warrant interference by this Court under Article 226 of the Constitution. 9. The writ petitions are devoid of merit and are, accordingly dismissed. No order as to costs. I.P. Singh, J.-I agree.