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2004 DIGILAW 1248 (PAT)

Nityanand Kishore v. State of Bihar

2004-12-15

body2004
ORDER This application has been filed for issuance of a writ in the nature of certiorary for quashing the order dated 13.3.2004 (Annexure-15) whereby the prayer made by the petitioner for appointment to the post of Pharmacist (Mishrak) has been rejected. Further prayer made by the petitioner is to issue a writ in the nature of mandamus commanding the respondents to appoint him to the said post. 2. Short fact, giving rise to the present application are that in pursuance of an advertisement published in the daily Newspaper "The Times of India" dated 19th of March, 1991, petitioner offered his candidature for being appointed as Pharmacist (Mishrak), hereinafter referred to as the Pharmacist. In the said examination, he secured 623 marks. When it came to the notice of the petitioner that the persons having secured less marks than him have been appointed, he preferred C.W.J.C. No. 6778 of 1999 (Nityanand Kishore Vs. The State of Bihar & Ors) before this Court. The respondents resisted the prayer of the petitioner on the ground that the appointments have already been made against the vacancies of the year 1991 and subsequent vacancies can not be taken into account to appoint the petitioner. This plea did not find favour with this court and by order dated 8.1.2004 (Annexure-12), this Court directed the respondents to consider the petitioner's case for appointment against one of the vacancies. It is relevant here to state that in this case, no further plea was pressed and it was admitted that interview was taken only to verify the certificate. While handing over the aforesaid direction, this Court observed as follows: "xxx Considering that, the petitioner has secured much more than the last candidate either in the general category or B.C. category and his case had wrongly been ignored the Court was of the view that it is a fit case in which direction should be issued for his appointment notwithstanding the dispute as to whether aforesaid 33 vacancies are subsequent vacancies or not. Further, appointments ignoring the case of the petitioner were made in 1991 and at this stage it may not be appropriate to dislodge them from the post. Further, appointments ignoring the case of the petitioner were made in 1991 and at this stage it may not be appropriate to dislodge them from the post. In the circumstances, Counsel for the State was directed to discuss the matter with the concerned officials, though an affidavit has been filed, the basic facts that the petitioner secured more marks than the last candidate appointed either in general category or B.C. Category and vacancies existed on the post have not been denied. In the circumstances, without going into the question as to whether the existing vacancies are of subsequent period, the Court is of the view that it would be the ends of justice to direct the respondents to consider the petitioner's case against one of the vacancies. An appropriate order in the matter should be passed within one month of receipt of a copy of this order." 3. After the aforesaid order was passed, the petitioner represented for his appointment but the same has been rejected by the impugned order, inter alia on the ground that the Selection Committee, during the interview, had rated the petitioner very poor and further after coming into the force of the Bihar Staff Selection Commission Act, 2002, the appointment has to be made on the recommendation of the Commission constituted under the aforesaid Act. 4. Mr. Chitranjan Sinha, Senior Advocate, appearing on behalf of the petitioner contends that the direction of this Court to consider the case of the petitioner for appointment has to be understood in the back-ground it was given. Further petitioner's poor performance in the interview is not a relevant consideration as according to the respondents themselves, it was for verifying records, contends Mr. Sinha. Mr. Sinha points out that digging out reasons to deny appointment, which was not raised in the earlier application, amounts to sitting over the judgment of this Court by the authority. 5. Junior Counsel to Standing Counsel No. II, however, contends that after coming into the force of the aforesaid Act, the hands of the respondents are tied and they cannot make appointment without the recommendation of the Commission. In answer thereto, Mr. 5. Junior Counsel to Standing Counsel No. II, however, contends that after coming into the force of the aforesaid Act, the hands of the respondents are tied and they cannot make appointment without the recommendation of the Commission. In answer thereto, Mr. Sinha points out that the process of appointment in the present case had started as back as in the year 1991 and the Act in question had come into force later on and hence, the respondents can not defend their action taking shelter behind the said Act. He also points out that the said plea was not raised when this Court passed the order in the petitioner's writ application on 8.1.2004. 6. Having considered the rival submission, I find substance in the contention of Mr. Sinha. This Court, taking note of the fact that the persons who had secured less marks than the petitioner, have been appointed, directed the respondents to consider the petitioner's case. Instead of petitioners case being considered in the light of the order of this Court, the respondents are digging out reason to deny the appointment. The petitioner's poor performance in the interview was not taken as a ground in the earlier writ application to deny appointment. In the counter affidavit filed by the respondents earlier, it has been stated that the interview was held only for the purpose of verifying the records. Even today, respondents do not say that any qualifying marks was fixed for interview hence, the petitioner cannot be denied appointment on this ground urged by the respondents. 7. The plea of the respondents that the appointment can now be made only on the recommendation of the Commission is also misconceived. The process of appointment had started much earlier to the coming into force of the Act and it is trite that in such circumstance, the process has to be completed on the basis of the earlier provision. 8. Ordinarily, this Court while exercising its power under Article 226 of the Constitution of India does not issue direction for appointment but directs for consideration of the case. however, this principle is not to be universally applied and in the facts of a given case, this Court can straight way issue direction for appointment. Present is one such case. Petitioner earlier came to this Court. however, this principle is not to be universally applied and in the facts of a given case, this Court can straight way issue direction for appointment. Present is one such case. Petitioner earlier came to this Court. This Court, finding that the persons who had secured less marks than the petitioner have been appointed, directed for consideration of the case of the petitioner. The respondents did not carry out the direction of this Court in the spirit it was given and have tried to dig out reasons to deny the appointment to the petitioner. Those reasons have been found to be bad. In such circumstance, I am of the opinion that to meet the ends of justice, a writ in the nature of mandamus commanding the respondents to appoint the petitioner to the post of Pharmacist deserves to be issued. Let it be issued. 9. In the result, the writ application is allowed with the direction aforesaid.