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2004 DIGILAW 249 (PAT)

Md. Asfaque v. State Of Bihar

2004-03-01

R.N.PRASAD, RAVI S.DHAVAN

body2004
Judgment R.N.Prasad, J. 1. L.P.A. No. 1395 of 1996 and L.P.A. No. 8 of 1997 have been filed against the judgment and order dated 19.11.1996 passed in C.W.J.C, No. 343 of 1995 whereby the appointment of the appellants on class IV post have been quashed and the District Magistrate, Madhepura was directed to cancel the appointment of all such persons who were appointed out of the panel and L.P.A. No. 59 of 1997 has been filed for expunction of the observation/direction made in para 27 of the judgment. 2. The respondent 1st set in all these three appeals were the petitioners in the writ petition and the respondent 2nd set were respondents in the writ petition in the capacity of State and its authorities. The respondent 1st set filed the writ petition for issue of direction to the respondent 2nd set, the government officials, to appoint them on class IV post in different offices of the district of Madhepura and cancel the appointment of 40 persons appointed in the year 1989 and 5 persons appointed in the year 1993 as their name was not in the panel prepared for appointment on class IV post. 3. The case of the respondent 1st set was that an advertisement was published in a local Hindi newspaper in the month of October, 1986 inviting application from eligible candidates in prescribed proforma whose names were registered in the District Employment Exchange Office for preparing a panel for appointment on class IV post in different offices of the district, Madhepura. They and other eligible candidates filed applications for preparation of panel for appointment on class IV post. Alter scrutiny and verification a panel of 67 persons including the petitioners was prepared and it was sent to the Commissioner, Kosi Division, Saharsa, for approval. The District Establishment Committee in its meeting held on 25.1.1989 decided to appoint all the 67 candidates of the panel along with 17 persons who were working from before on daily wages. The Deputy Collector, Establishment, called for original certificates in proof of age, qualification, castes, domicile and employment exchange registration number vide letter dated 23.2.1989 which was complied with by them. However, they came to know that the respondent 2nd set had entertained application forms of 40 persons outside the panel and vide letter dated 22.4.1989 asked them to produce certificates in proof of their age, qualification etc. However, they came to know that the respondent 2nd set had entertained application forms of 40 persons outside the panel and vide letter dated 22.4.1989 asked them to produce certificates in proof of their age, qualification etc. Subsequently appointment fetters were issued to them on 12.5.1989. They thereafter, sent a telegram to the Commissioner and also filed petitions to different authorities making grievance against the said appointment and for their appointment. The Deputy Collector, Establishment, vide letter dated 4.8.1989 sent the names of the persons, who were in the panel but were not appointed. However, the writ petitioner no. 1 was engaged on daily wages on 23.10.1989 and continued to work on daily wages till 24.5.1992. He was removed on 25.5.1992. The matter was brought to the notice of the Commissioner, Kosi Division, Saharsa and he referred the matter to the District Magistrate, Madhepura. The other writ petitioners were also engaged on daily wages but they were not appointed as class IV employee. However, in the month of October, 1992, the Deputy Collector, Establishment, asked the writ petitioners to produce certificates in proof of caste, qualification, domicile etc. for verification. The writ petitioners complied with the direction and produced the relevant certificates but nothing was done. However, vide letter dated 12.3.1993 the Collector, Madhepura, appointed 13 persons including writ petitioner no. 7 on the post of Peon. However, subsequently, their appointment was cancelled vide letter dated 23.3.1993. Subsequently, vide letter dated 29.3.1993, the Collector, Madhepura appointed 22 persons out of which the persons at serial nos. 1 to 4 and 22 were not in the panel. The claim of the petitioners is that the appointments were made out of the panel prepared for appointment on class IV post, which is contrary to the circular dated 3.12.1980 and the circular dated 26.5.1987/19.11.1990 whereby direction was issued to prepare panel for appointment on class IV posts in different districts and make appointments from the panel. 4. A separate counter affidavit was filed on behalf of respondent no. 17 but the same is not required to be dealt with as no order has been passed against him. However, a separate counter affidavit and supplementary counter affidavit have been filed on behalf of respondent nos. 2 and 3. In the counter affidavit the stand of the respondents was that no person was appointed out of the panel prepared for appointment on class IV post. However, a separate counter affidavit and supplementary counter affidavit have been filed on behalf of respondent nos. 2 and 3. In the counter affidavit the stand of the respondents was that no person was appointed out of the panel prepared for appointment on class IV post. The appointments were made only from the panel prepared in accordance with the government circular dated 3.12.1980. Pursuant to the said circular advertisement was published inviting application from eligible candidates whose names were registered in the District Employment Exchange. In the counter affidavit reference was made with respect to the panel of 67 persons only because the writ petitioners had only referred to the persons of the said panel. However, a supplementary panel was prepared on 29.4.1988 of 93 more candidates. The panel was prepared categorywise i.e. separate list was prepared for reserved categories i.e. Scheduled Caste, Scheduled Tribes, O.B.C. and the persons working on daily wages from before. The appointments were made following the roster and reservation., The persons, who were working on daily wages were given preference in the panel. Out of the approved panel only 29 candidates were appointed till March 1993. The persons whose names were below in the panel including the petitioners were not appointed. In the year 1993-94 a fresh panel categorywise was prepared and the appointments were made in accordance with seniority and also following the roster and reservation. The names of the writ petitioners, respondent 1st set, were much below in the consolidated panel of the approved panel and as such they could not be appointed. The notice to produce certificates etc. was not sent for appointment but for verification of certificates etc. for preparation of panel. The appointments in Madhepura Collectorate has always been made in accordance with law and following the roster and reservation. Sushila Devi was a Scheduled Caste candidate and was at serial no. 1. She was offered appointment and she died and as such her husband Sukhdeo Ram, was appointed on compassionate ground. Sogra Khatoon was appointed as her husband, an electrician who died during the programme of the Chief Minister on compassionate ground. In fact, no person has been appointed out of the panel. The claim of the writ petitioners that the persons out of the panel were appointed is totally misconceived and incorrect. Sogra Khatoon was appointed as her husband, an electrician who died during the programme of the Chief Minister on compassionate ground. In fact, no person has been appointed out of the panel. The claim of the writ petitioners that the persons out of the panel were appointed is totally misconceived and incorrect. The writ petitioners were much below the appointed persons and as such they have no case to maintain the writ petition. 5. A counter affidavit was filed on behalf of the appellants in L.P.A. No. 1395 of 1996 and L.P.A. No. 8 of 1997 who were respondents in the writ petition and were appointed on class IV post stating therein that the writ petitioners, the respondent 1st set, have presented a distorted version of the facts and suppressed many materials, They were initially appointed to class IV post in different offices under Madhepura Collectorate in 1989 and since then they had been discharging their duties efficiently diligently and to the full satisfaction of their superior authority. They were appointed after observing all the formalities. Out of 52 respondents, 48 persons were working as class IV employee in the Collectorate Madhepura for about 7 years and all of them have been confirmed. Pursuant to the advertisement they had applied through the District Employment Exchange and after scrutiny and verification of the certificate etc. they were included in the panel prepared by the District Establishment Committee. A panel of 84 persons was prepared on 29.4.1988 separately for each category i.e. general category, Scheduled Caste and Scheduled Tribe out of which 53 were in general category, 26 were Scheduled Caste and 5 were Scheduled Tribe, annexure A. The names of the respondents were included in the panel for appointment on class IV post. The panel for 84 persons was sent to the Commissioner, Kosi Division, Saharsa for its approval along with roster of different categories for appointment vide letter dated 23.5.1988. The Commissioner, Kosi Division Saharsa, approved the said panel vide letter dated 13.12.1988. The District Establishment Committee in its meeting dated 25.1.1989 decided to make appointment on the basis of the panel and roster approved by the Commissioner, Kosi Division, Saharsa for appointment. The Collector, Madhepura, respondent no. 2 issued letter of appointment to them on class IV post on 12.5.1989. They joined the post and were discharging their duties efficiently, diligently and to the satisfaction of the superior authority. The Collector, Madhepura, respondent no. 2 issued letter of appointment to them on class IV post on 12.5.1989. They joined the post and were discharging their duties efficiently, diligently and to the satisfaction of the superior authority. On completion of three years service they were confirmed vide letter dated 21.4.1993. The notice to produce certificates etc. as mentioned in para 9 of the writ petition was issued only for verification of certificates etc. for preparation of panel and not for appointment. They were in approved panel and no appointment was made from outside the panel. In the year 1993 a panel was prepared for appointment on class IV post by the District Establishment Committee mentioning the names of the persons of different categories separately and it was valid upto 30.12.1993. The panel was approved in which the name of respondent no. 55, Mahesh Mukhiya was at serial no. 1 in the list of backward candidates and name of Sushila Devi was at serial no. 1 in the list of Scheduled Caste candidates. The appointment letter was issued to Sushila Devi but she died and as such her husband, Sukhdeo Ram, respondent no. 57, was appointed on his application on compassionate ground. The respondent nos. 55, 56 and 57 were legally and validly appointed on class IV post on ground of their names being at the top of different categories of the panel. They were appointed on 29.3.1993 and since then they were working. The names of the writ petitioners were included in the panel of 1993 below respondent nos. 55, 56 and 57 and as such they were not appointed. The respondent nos. 55 and 56 were not the residents of Madhepura District and as such reference was made to the department of Personnel, Government of Bihar vide letter dated 6.6.1988 and on concurrence from the department they were appointed. With respect to serial no. 22 of letter dated 29.3.1993 it has been stated that Md. Yusuf died from electric current on the programme of the Hon ble Chief Minister of Bihar and as such his wife Sogra Khatoon was appointed on compassionate ground. The respondent no. 58, Md. Irshad, was working as a Jeep Driver in Collectorate since 1987 on daily wages and since there was no vacancy in the category of Driver, he was appointed as a Peon. The respondent no. 58, Md. Irshad, was working as a Jeep Driver in Collectorate since 1987 on daily wages and since there was no vacancy in the category of Driver, he was appointed as a Peon. Earlier a writ petition bearing C.W.J.C. No. 1260 of 1994 was filed challenging the appointment in Madhepura Coilectorate which was disposed of on 20.10.1995 in which it has been held that the appointment of the concerned respondents was not made without recommendation of the District Establishment Committee. 6. On consideration of the case of the parties the learned Judge has come to a conclusion that 29 persons were appointed from the panel in the year 1988 and the court is not in a position to know the names of the persons, who have been appointed outside the panel, however, quashed the appointment of the appellants and directed the Collector to cancel the appointment of the persons who have been appointed outside the panel and also directed to take action against the authority who has made appointment in breach of the government circular. 7. On consideration of the submissions made by the learned counsel for the parties and the materials available on the records it is obvious that there was no dispute that panel was prepared rather the grievance of the writ petitioners, respondent 1st set, was that the persons have been appointed out of the panel prepared for appointment on class IV post. The specific stand of the respondent 2nd set was that no person was appointed out of the panel. Similar was the stand of the appellants that no person was appointed out of the panel. In support to their stand the panel prepared and signed by the different authorities of the District Establishment Committee was also brought on the record to show that the appointments have been made from the panel prepared for appointment. No document was annexed by the writ petitioners to show that any person was appointed out of the panel. In the order impugned itself it has been stated that the court is not in a position to know the names of the persons who have been appointed outside the panel. Inspite of that the appointments have been cancelled. No document was annexed by the writ petitioners to show that any person was appointed out of the panel. In the order impugned itself it has been stated that the court is not in a position to know the names of the persons who have been appointed outside the panel. Inspite of that the appointments have been cancelled. It is well settled rule of law that if it is established that appointments have been made illegally, the court has power to quash the appointment but if it is not established, the court must restrain itself in quashing the appointment. 8. The specific stand of the respondent 2nd set as well as the appellants was that pursuant to the advertisement made in the year 1986 a panel was prepared of 84 persons and subsequently a supplementary panel was prepared of 93 persons, who had filed their applications and whose names were registered in the employment exchange of the district but the respondent 1st set has suppressed the materials and referred only the names of 67 persons. The panel was prepared mentioning the names of different categories separately i.e. reserved category, the persons working from before on daily wages etc. and complying the approved roster and reservation appointments were made. The names of the writ petitioners, respondent 1st set were much below the persons appointed on the basis of the seniority. The writ petitioners could not be able to bring material on record to falsify the stand of the appellants as well as of the respondent 2nd set. Unless the writ petitioners, respondent 1st set, establish that appointment was made out of the panel, appointment cannot be cancelled merely on surmises and conjuctures. 9. The categorical stand of the respondent 2nd set as well as of the appellants was that their names were in the panel and they were appointed in accordance with taw in the year 1989. The writ petitioners, respondent 1st set could not be appointed as their names were much below in the panel. The relevant panel signed by different authorities of the District Establishment Committee was brought on the record but in the impugned order it has been stated that the said document was created to support the claim of the persons who were not appointed according to the policy decision of the government without assigning any reason. The relevant panel signed by different authorities of the District Establishment Committee was brought on the record but in the impugned order it has been stated that the said document was created to support the claim of the persons who were not appointed according to the policy decision of the government without assigning any reason. It is well settled rule of law that for coming to a conclusion a reason has to be assigned but it appears that no reason has been assigned specially when the respondent 1st set did not challenge the panel prepared for appointment rather their grievance was only to the effect that the persons outside the panel have been appointed but they failed to establish as stated above. 10. The specific stand of the respondent 2nd set as well as the appellants except appellant of L.P.A. No. 59 of 1997 is that they were appointed in the year 1989 and their names were included in the panel and after expiry of three years their services were also confirmed. In the year 1993 a fresh panel was prepared mentioning the names of the persons of different categories separately and out of the said panel 22 persons were appointed. The writ petitioners did not dispute the fact. Their claim was only that some persons outside the panel were appointed. The specific stand of the respondent 2nd set was that those persons were appointed on compassionate ground which was not controverted by the writ petitioners. Moreover, the circular of the government of 1980 does not say that no appointment on compassionate ground shall be made. 11. It is evident from the materials on record that the writ petitioners did not challenge the panel prepared for appointment on class IV post rather their grievance was for their appointment and for cancelling the appointments made out of the panel. It has already been stated that the writ petitioners failed to establish that any appointment out of the panel has been made as no material was brought on the record. The learned Judge also came to a conclusion that the court is not in a position to know the names of the persons, who were appointed outside the panel. In such a situation cancelling of appointment merely on surmises and conjuctures, in my opinion, is not justified at all. 12. Thus, on consideration as discussed above all the three appeals are allowed. In such a situation cancelling of appointment merely on surmises and conjuctures, in my opinion, is not justified at all. 12. Thus, on consideration as discussed above all the three appeals are allowed. The judgment and order impugned is hereby quashed. As an abundant precaution the respondent 2nd set are directed to verify afresh as to whether any appointment has been made outside the panel and if it is found that any such appointment has been made, they shall cancel such appointment. Ravi S.Dhavan, J. 13 I agree.