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2006 DIGILAW 24 (PAT)

Shailesh Kumar v. State Of Bihar

2006-01-05

RADHA MOHAN PRASAD

body2006
Judgment 1. In this writ petition, petitioner is aggrieved by the office order no. 1622 dated 6.9.2001 issued by the Secretary-cum-ln-spector General of Registration, Bihar, Patna as contained in Annexure-1, whereby and whereunder Respondent No. 4 has been appointed as temporary Clerk in the Registration Department ignoring the claim of the petitioner. 2. Learned counsel for the petitioner has submitted that the post on which Respondent No. 4 has been appointed was reserved for backward class of which petitioner was only member in the existing list of Extra Clerks. Despite this, Respondent No. 4, who belongs to extremely backward class has been arbitrarily given appointment by the impugned order ignoring the legitimate claim of the petitioner. Learned counsel referred to para 4(iv) of the counter affidavit wherein Respondents have admitted that the petitioner was the only member of the backward community in the existing list of Extra Clerks for appointment as temporary Clerks. 3. Counter affidavit and supplementary counter affidavit has been filed on behalf of official Respondents and reply to the supplementary counter affidavit has been filed on behalf of petitioner. Although Respondent No. 4 has entered appearance through Mr. Kaushal Kr. Jha, learned Advocate, but, no counter affidavit has been filed on his behalf. 4. From the supplementary counter affidavit filed on behalf of official Respondents, it appears that in Vaishali district there were four vacancies of temporary Clerks in the year 2001 and according to roster clearance accorded by the Commissioner, Tirhut Division on 18.12.2000 categorywise vacant post were as follows: General-2, Backward caste-1, Most Backward caste-1 Total-4 5. It is stated that taking into account seniority and satisfactory work and roster clearance, names of following extra clerks were recommended by the District Establishment Committee in its meeting held on 12.6.2001. Indradeo Prasad VermaGeneral Category Narayan Prasad SinghGeneral Category Nasiruddin (Respondent No. 4)Backward caste Md. Mohiuddin AnsariMost Backward caste. 6. Thus, it is apparent that Respondent No. 4 was appointed against the post reserved for Backward class. 7. Learned counsel for the petitioner has submitted that Respondent No. 4 by caste is Raeen or Kunjara (Muslim), which as per the Government decision, contained in Personnel and Administrative Reforms letter no. 11/Vi 1-33/95 Ka 5 dated 18.2.1999 (Annexure-7) falls in the category of extremely backward class and not backward class. 7. Learned counsel for the petitioner has submitted that Respondent No. 4 by caste is Raeen or Kunjara (Muslim), which as per the Government decision, contained in Personnel and Administrative Reforms letter no. 11/Vi 1-33/95 Ka 5 dated 18.2.1999 (Annexure-7) falls in the category of extremely backward class and not backward class. According to the counter affidavit of the official Respondents, petitioner was the only member of Backward community in the existing list of Extra Clerks. Learned counsel, thus, submitted that the appointment of Respondent No. 4 vide impugned order is wholly arbitrary and violative of Articles 14 & 16 of the Constitution besides being contrary to the roster approved by the Commissioner. 8. Learned counsel for the State has ventured to rely upon earlier Government decision contained in Personnel and Administrative Reforms letter no. 11/Aa 1-501/78- 756-Ka dated 10.11.1978 (Annexure-G) to show that Raeen or Kunjara was also in the category of other backward class and in support of his claim Respondent No. 4 filed two certificates Annexures-E & F, which also shows that he is in the category of other backward class. As such, according to him, there is no irregularity in the appointment. 9. Learned, counsel appearing for Respondent No. 4 has not been able to dispute this in view of the Government decision, contained in Annexure-7, Respondent No. 4 falls in the category of extremely backward class and not backward class. However, he ventured to submit that as per the Government decision on non-availability of the candidate in a particular category for three consecutive years the post gets dereserved and becomes available for being filled by another category as per roster. As such, according to him, Respondent No.4 has rihtly been appointed even thouh the post in question is of reserved backward class. 10. I am unable to appreciate the submissions of learned counsel appearing for Respondents. It is not the case of the Respondents that none was available in the category of backward class to fill up the post in question. In fact, as per the stand of the State in the counter affidavit, petitioner was the only candidate available in the category of backward class. It is not the case of the Respondents that the petitioner was not eligible. 11. In fact, as per the stand of the State in the counter affidavit, petitioner was the only candidate available in the category of backward class. It is not the case of the Respondents that the petitioner was not eligible. 11. Under such circumstances, in my opinion, there was no question of dereservation of the post in favour of candidate belonging to the category of extremely backward class. Moreover, letter of appointment itself shows that Respondent No. 4 has been appointed as a candidate of Backward class which in view of the latest Government decision, contained in Annexure-7 is apparently wrong. In view of the statements made in sub-paragraph (iv) of paragraph 4 of the main counter affidavit that writ petitioner is the only member of Backward community in the existing list of Extra Clerks, the Respondent-authorities were not legally justified in ignoring his claim for appointment on the post in question which admittedly was reserved for Backward class. 12. In the result, writ application is allowed. The impugned order, contained in Annexure-1 insofar as it relates to appointment of Respondent No. 4 is hereby quashed. In the facts and circumstances aforementioned, the Respondents are directed to consider the case of the petitioner for appointment on the post in question and issue appointment letter within tout weeks from the date of receipt/production of a copy of this order.