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2004 DIGILAW 108 (PAT)

Manoj Kumar Choudhary v. State Of Bihar

2004-01-23

R.N.PRASAD

body2004
Judgment R.N.Prasad, J. 1. The petitioner appeared in 42nd Combined Competitive Examination for selection for appointment to the post of Deputy Collector. The examination was conducted by the Bihar Public Service Commission, here-in-after to be referred as the Commission. The result was published and, thereafter, recommendation was made by the Commission to the Government for appointment. The appointment of some of the candidates was made vide notification dated 30.9.2000, Annexure-1, wherefrom it appears that 110 persons were appointed without any condition any by the same notification about 61 persons were appointed on ad hoc basis for six months with a condition that if nothing would be against their character their services shall be regularised. From the notification, Annexure-1, it further appears that the candidates belonging to the scheduled caste and scheduled tribes were not appointed in view of the letters dated 1.8.2000 and 19.8.2000 of the Commission. However, the said letters were withdrawn by the Commission vide letter dated 20.10.2000. The petitioner was appointed thereafter in the month of August, 2001. Jharkhand State was created with effect from 15.11.2000. The petitioner made a grievance for option but it was not paid heed. The petitioner has thus come before this Court for issue of direction to allow an opportunity to the petitioner to file his option. 2. A counter-affidavit and a supplementary counter-affidavit have been filed on behalf of the State wherein stand has been taken that appointment was made after bifurcation of Jharkhand State and also that the Commission recommended the names of 44 candidates of reserved category though the requirement was only of 31 persons and as such there was delay in appointment of the candidates of reserved, category. According to the respondent-State and its authorities since the appointment was made after bifurcation of Jharkhand State and as such the petitioner is not entitled to exercise option. A counter-affidavit has, also been filed on behalf of the Commission wherein stand has been taken that the condition/ restriction over the appointment of the reserved category candidates was withdrawn much prior to the bifurcation/creation of Jharkhand State vide letter dated 20.10.2000. In the supplementary affidavit the petitioner has annexed the list of candidates who were appointed vide Annexure-1 including conditional appointment, 41 persons have been allowed Jharkhand State. 3. In the supplementary affidavit the petitioner has annexed the list of candidates who were appointed vide Annexure-1 including conditional appointment, 41 persons have been allowed Jharkhand State. 3. From the argument of learned counsel for the parties and also material on the record this much is obvious that recommendation by the Bihar Public Service Commission was made much earlier to the bifurcation of Jharkhand State. The appointment of some of the general candidates was also made and also ad hoc appointment for six months was made vide notification dated 30.9.2000, Annexure-1. They were allowed an opportunity to exercise option. The condition which was put by the Commission with respect to reserved candidate was also withdrawn well within time vide letter dated 20.10.2000. However, the petitioner was not appointed. The plea has been taken by the State and its authorities that recommendation of 44 persons was made by the Commission though the requirement was only of 31 persons. Such plea, in my view, is not at all reasonable because of the fact that recommendation is not binding to the employer. It is binding only to the effect that no appointment out of recommendation can be made. The names may be recommended more than the requirement then also appointment can be made according to the seniority in the list. The plea taken by the State Government appears to be non-existant and skin saving. Further it appears that the Government of India has issued guideline, Annexure-A to the counter-affidavit, wherein item 7 deals with the consideration of time barred representation. In Clause 2 it has been stated that while it is not advocated that invariably all representations received after the due date should be taken up for consideration, it is likely that in some cases, an employee for sufficient reason is unable to submit his representation in time. In Clause 3 it has been stated that the Central Government feels that in such cases it would be inequitable to withhold the representation merely on the ground that it has been received late. Thus it is obvious from the guideline itself that merely on technical ground the claim for exercising option should not be rejected. In the instant case it appears that the petitioners name was recommended for appointment but without any fault of the petitioner he was not appointed and when he was appointed he was not allowed to exercise option. Thus it is obvious from the guideline itself that merely on technical ground the claim for exercising option should not be rejected. In the instant case it appears that the petitioners name was recommended for appointment but without any fault of the petitioner he was not appointed and when he was appointed he was not allowed to exercise option. Thus the Court is of the opinion that for special reason the petitioner was not appointed in time and after appointment he is being deprived for filing an option. 4. Thus on consideration as discussed above and also in view of the guideline of the Central Government, Annexure-A to the counter-affidavit, the respondent concerned is directed to allow an opportunity to the petitioner to exercise option and in case the same is filed the Advisory committee constituted for consideration, shall consider the claim/case of the petitioner and shall take final decision in the matter. 5. The writ petition is, accordingly, disposed of.