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2005 DIGILAW 314 (PAT)

Amarendra Kumar Mohan v. State Of Bihar

2005-03-16

NARAYAN ROY

body2005
Judgment 1. Heard counsel for the parties. 2. Both these applications since are inter-connected, they have been heard together and are being disposed of by this order. 3. Writ petitioners of CWJC No. 11424 of 2001 have challenged the appointment of Captain Puneet Kumar, who is petitioner in CWJC No. 12498 of 2001, whereas writ petitioner Captain Puneet Kumar of CWJC No. 12498 of 2001 is aggrieved by the direction of the Director-cum-Secretary, Civil Aviation Department, Civil Aerodrome, Patna, as contained in letter no. 03/Admn. dated 16th September, 2001, marked as annexure 1, whereby and whereunder it was intimated to Standing Counsel No. 8 of Patna High Court that the Government have decided to take action for cancellation of appointment of the petitioner with immediate effect. At the same time, the petitioner has also prayed for issuance of a declaration that his services cannot be terminated, as he was validly appointed after due advertisement by High Power Committee. 4. From the pleadings of the parties, it appears that an advertisement dated 10.12.2000 was issued by the Government of Bihar, Civil Aviation Department advertising one post of Assistant Flying Instructor, which was reserved for scheduled caste. Writ petitioner Captain Puneet Kumar, having requisite qualification for the post and being a member of the scheduled caste of the State of Haryana, applied for the same. Pursuant to his application he was called for an interview to be held on 27.3.2001 in the office of the Member, Board of Revenue and he appeared before the interview board on the scheduled date and the High Power Selection Committee recommended the name of the petitioner for appointment on the post of Assistant Flying Instructor, and, accordingly, he was appointed on the post of Assistant Flying Instructor vide notification issued under memo no. 215 dated 2.6.2001, as contained in annexure 4. The petitioner immediately joined the post and at present, he is working as Assistant Flying Instructor in Bihar Flying Institute, Civil Aviation Department, Civil Aerodrome, Patna. 5. The writ petitioners of CWJC No. 11424 of 2001 have prayed for issuance of a writ of quo warranto for cancellation of appointment of petitioner Captain Puneet Kumar of CWJC No. 12498 of 2001 on the post of Assistant Flying Instructor. 5. The writ petitioners of CWJC No. 11424 of 2001 have prayed for issuance of a writ of quo warranto for cancellation of appointment of petitioner Captain Puneet Kumar of CWJC No. 12498 of 2001 on the post of Assistant Flying Instructor. A further prayer has also been made by them for issuance of writ of mandamus directing the respondent authorities to fill up the aforesaid post of Assistant Flying Instructor after inviting fresh applications from eligible candidates belonging to general category. 6. Petitioner Captain Puneet Kumar has been impleaded as one of the respondents in CWJC No. 11424 of 2001. 7. The writ petition filed by Captain Puneet Kumar in CWJC No. 12498 of 2001 appears to be an offshoot of order dated 3.9.2001 passed by this Court in CWJC No. 11424 of 2001, whereby and whereunder notice was issued to respondent no. 7, Captain Puneet Kumar, and consequently thereof, the State Government issued the letter, as contained in annexure 1, which is under challenge in CWJC No. 12498 of 2001. 8. Mr. Ganesh Pd. Singh, learned counsel appearing in CWJC No. 11424 of 2001, precisely submitted that the post of Assistant Flying Instructor was earmarked for scheduled caste and to fill up this vacancy, advertisements were issued thrice in the month of November, 1998, in the month of June 1999 and in the month of November 1990, but no candidate was available for the single post of Assistant Flying Instructor and thereafter the post was again advertised on 11th June, 2000. Pursuant to the fourth advertisement dated 11th June, 2000 Captain Puneet Kumar applied for and he being the sole reserved category candidate was interviewed and selected, though another candidate of general category had also applied for. Learned counsel in this background submitted that the fourth advertisement, which was issued to fill up the reserved post of Assistant Flying Instructor, thus, was against the mandates of sub-section (6){a) of Section 4 of the Bihar Reservation of Vacancies in Post and Services (For Scheduled Caste, Scheduled Tribes and other Backward Classes) Act, 1991 (hereinafter to be referred to as "Bihar Reservation of Vacancies Act, 1991") and the post, therefore, was required to be dereserved giving chance to general category candidates to compete. It is further submitted by learned counsel for the petitioners that since writ petitioner Captain Puneet Kumar belonged to scheduled caste community of the State of Haryana, he could not have been treated to be a scheduled caste for the State of Bihar, and, thus, his appointment on the post as such must be held to be violative of the provisions of Articles 341 and 342 of the Constitution and opposed to the ratio laid down by the Apex Court in case of Action Committee on the Issue of Caste Certificate of Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another V/s. The Union of India and another [1994(5) Supreme Court Cases 244], wherein it is held that a person belonging to his regional State, of which he is permanent or ordinary resident, pnot be deemed to be so in relation to any other State on his migration to that state for the purpose of employment, eduction, etc. It is further submitted by Mr. Singh, learned counsel, that the appointment of petitioner Captain Puneet Kumar has been made by High Power Committee, whereas in law the appointment could have been done through the Bihar Public Service Commission (hereinafter to be referred to as "BPSC") and on that score, the appointment of this petitioner must be held to be illegal and wholly without jurisdiction. 9. Dr. S.N. Jha, learned for petitioner Captain Puneet Kumar, submitted that the post of Assistant Flying Instructor was advertised in daily newspaper showing it as reserved post for scheduled caste candi-date and pursuant to the same, the petitioner applied for, as he belonged to schedled caste category of the States of Haryana and Bihar and he was found to be the only andidate for the reserved category post and, accordingly, he was interviewed by High Power Committee on 27.3.2001 and the Committee found him suitable and, thus, recommended his name for the post aforesaid and, ultimately, he was appointed on the post aforesaid by virtue of the notfication dated 12.6.2001, as contained in annexure 4. It is further submitted that the petitioner was the only scheduled caste candidate, who had applied for the post aforesaid, and, therefore, the Selection Committee having found him eligible for the post recommended his name, and, accordingly, he was appointed. It is also submitted by Dr. It is further submitted that the petitioner was the only scheduled caste candidate, who had applied for the post aforesaid, and, therefore, the Selection Committee having found him eligible for the post recommended his name, and, accordingly, he was appointed. It is also submitted by Dr. Jha that the candidature of the petitioner since was considered by the Committee, though in a subsequent advertisement, and he was found suitable and notification wasissued appointing him, the authorities acquiesced in the infirmity, if any, and thus, the selection of the petitioner cannot be said to be violative of the provisions of the Bihar Reservation of Vacancies Act, 1991. Dr. Jha, learned counsel, at the same time, also submitted that the ratio laid down by the Apex Court, in the case of Action Committee on the Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes In the State of Maharashtra and another (supra) will not strictly apply in the peculiar facts and circumstances of the case, as the petitioner was the sole reserved category candidate, which has not created any regional imbalance, as the said post was lying vacant for long and not even a single candidate belonging to scheduled caste from the State of Bihar had even applied for. 10. So far the question raised by Mr. Ganesh Pd. Singh, learned counsel that appointment on the post of Assistant Flying Instructor was necessarily to be made by the BPSC is concerned, it is submitted by Dr. Jha, learned counsel, that the Department of Personnel and Administrative Reforms, Government of Bihar, vide its notification dated 21.7.1994 constituted a High Power Committee for appointment on the posts of Viman Chalak and Viman Abhiyanta, and, thus, these appointments were kept out of the purview of the BPSC and thus, Rule 7 of the Bihar Public Service Commission (Limitation of Function) Regulation, 1957, was amended. To sum up, Dr. Jha, learned counsel, submitted that the petitioner was appointed after following the procedures known to law, and, therefore, his appointment must be held to be valid and well within the jurisdiction of the State authorities. 11. To sum up, Dr. Jha, learned counsel, submitted that the petitioner was appointed after following the procedures known to law, and, therefore, his appointment must be held to be valid and well within the jurisdiction of the State authorities. 11. From the counter affidavits filed on behalf of the respondents, BPSC and the Director, Civil Aviation Department, Patna Airport, Government of Bihar, Patna, it appears that the post of Assistant Flying Instructor was to be filled up by the BPSC, and, therefore, a decision was taken by the Director, Bihar Flying Institute, to cancel the appointment of writ petitioner Captain Puneet Kumar. 12. Having heard counsel for the parties and on appreciation of their arguments, it appears that petitioner Captain Puneet Kumar was the sole candidate, who had applied for the post of Assistant Flying Instructor and he belonged to the reserved category and further the post of Assistant Flying Instructor was a reserved post to be filled up from amongst the scheduled caste candidates. Though petitioner Captain Puneet Kumar was a member of scheduled caste of the State of Haryana no one from the State of Bihar of the same category had applied for the post and Captain Puneet Kumar being the sole candidate for the reserved post, therefore, was recommended as he was found eligible for the post. 13. In this view of the matter, I will have no hesitation to hold that no regional imbalance was created nor the appointment of Captain Puneet Kumar would be violative of Articles 341 and 342 of the Constitution, therefore, the ratio laid down by the Apex Court in the case of Action Committee on the Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another (supra) will not apply strictu sensu in the peculiar facts and circumstances of the case. 14. So far the question of Bihar Reservation Act, 1991 is concerned, it appears that the post of Assistant Flying Instructor was being advertised since 1998 and no one of the reserved category applied for. 14. So far the question of Bihar Reservation Act, 1991 is concerned, it appears that the post of Assistant Flying Instructor was being advertised since 1998 and no one of the reserved category applied for. However, in the last advertisement, issued in the month of June 2000, petitioner Captain Puneet Kumar was found to be the eligible candidate for the post and the authorities appointed him on the post and he joined in June 2001 and till date he is continuing on the post, and, therefore, it is held that the authorities acquiesced to the infirmity, if any, found in appointment of the petitioner, contrary to the provisions of the Bihar Reservation of Vacancies Act, 1991. 15. So far the procedure of appointment on the post of Assistant Flying In-structor is concerned, it appears that in 1994 the Department of Personnel and Administrative Reforms, Government of Bihar, Patna issued a notification dated 21.7.1994. However, it appears that 1997 Recruitment Rule superseded those executive instructions and posts were to be filled up in the basic grade services by the BPSC, as stated in the counter affidavit of the BPSC. 16. On the totality of the facts, as enumerated above, it appears that the petitioner was appointed by High Power Selection Committee after due advertisement. He was the only candidate to apply for the post. The post was reserved for scheduled caste category candidates and the petitioner being the sole candidate of scheduled caste category was found eligible, and, accordingly, he was appointed. The appointment of this petitioner, therefore, cannot be held to be void ab initio merely because the process of appointment was not completed through the BPSC. It further appears that petitioner Captain Puneet Kumar was appointed in the month of June 2001 and till date he is continuing on the post as such. Moreover, the writ petitioners of CWJC No. 11424 of 2001 have prayed for a writ of quo warranto cancelling the appointment of petitioner Captain Puneet Kumar of CWJC No. 12498 of 2001. 17. Admittedly, the writ petitioners of CWJC No. 11424 of 2001 belonged to general category and there does not appear to be a direct clash in their interest vis-a-vis interest of Captain Puneet Kumar. They in principle, however, are challenging the appointment of petitioner Captain Puneet Kumar on the post of Assistant Flying Instructor, which was required to be dereserved after third advertisement. They in principle, however, are challenging the appointment of petitioner Captain Puneet Kumar on the post of Assistant Flying Instructor, which was required to be dereserved after third advertisement. The question of dereservation of the post after so many advertisements, in my opinion, cannot be allowed to be raised by the writ petitioners after appointment of petitioner Captain Puneet Kumar on the reserved post and since it was not challenged by the writ petitioners of CWJC No. 11424 of 2001 prior to appointment of petitioner Captain Puneet Kumar, in my opinion, the writ application must be held to be devoid of any merit. 18. Considering these aspects of the matter and noticing the fact that petitioner Captain Puneet Kumar till date is continuing on the post, in my opinion, it would be too late for this Court to interfere with the appointment of this petitioner and the irregularity/infirmity, if any, committed by the respondent authorities in the matter must be held to have been acquiesced. In this connection, reference may be made to the cases of Shri Krishan V/s. The Kurukshetra University (AIR 1976 Supreme Court 376). 19. For the reasons and discussions aforementioned, I find no merit in CWJC No. 11424 of 2001, which is, accordingly, dismissed and CWJC No. 12498 of 2001 is allowed with a direction to the respondent authorities not to interfere with the appointment of the writ petitioner on the basis of the letter, as contained in annexure 1. 20. No order as to costs.