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2006 DIGILAW 255 (PAT)

Kumari Neha Sinha v. Speaker, Bihar Vidhan Sabha

2006-03-23

SHIVA KIRTI SINGH

body2006
Judgment 1. All these six writ petitions were heard in detail at the stage of admission itself. Dr. Sadanand Jha, Senior Advocate argued on behalf of the petitioners whereas Mr. Mihir Kumar Jha, Senior, Advocate argued on behalf of the respondents comprising the Speaker and officials of the Bihar Vidhan Sabha. These cases were heard together because they involve common questions of facts and law relating to appointment of Typists and Security Guards in the service of Bihar Vidhan Sabha. Writ Petitions bearing CWJC Nos. 3511/2000, 12261/2000 and 7245/2001 relate to appointment on the post of Typists whereas the remaining three writ petitions relate to appointment to the post of Security Guards. 2. It appears that the Secretariat of Bihar Legislative Assembly published advertisement dated 17.9.1997 for filling vacancies in the post of Typist, Peon, Orderly etc. The materials on record disclose that for the post of Typists altogether 29185 applications were received, out of which 10628 applications were found to be valid. In response to admit cards issued for typing test, 7320 applicants appeared and took the typing test between 8.2.1998 and 2.3.1998. The evaluation was done by one person, Mr. Rajni Kant Deb, a Deputy Secretary, Incharge Joint Secretary. He prepared results of only 47 candidates showing them to be successful for appointment on the 47 vacant posts of Typist. This was done on 27.1.2000 four days prior to his retirement on 31.1.2000. The 11th Bihar Legislative Assembly was dissolved on 1.3.2000 and the next Assembly was constituted on the same date. On 5.3.2000 the Governor appointed a protem Speaker to conduct the session of the Assembly between 7th to 9th March, 2000. In the meantime on 3.3.2000 when the Secretary to the Assembly, a Judicial Officer in the rank of District Judge did not agree to associate himself with the appointment process, the file was sent directly to the Speaker of the 11th Bihar Legislative Assembly who on 6.3.2000 authorised Mr. Dinesh Chandra Karun, an Under Secretary working in Questions Section of the Assembly, to issue appointment letters. Appointment letters were issued on 6.3.2000 granting 20 days time for joining. Similarly, in the case of Security Guards an advertisement was issued on 7.11.1998, 1389 applications were received by the last date i.e. 26.11.1998. On 13.11.1998 the then Speaker passed an order in the file authorizing Mr. Appointment letters were issued on 6.3.2000 granting 20 days time for joining. Similarly, in the case of Security Guards an advertisement was issued on 7.11.1998, 1389 applications were received by the last date i.e. 26.11.1998. On 13.11.1998 the then Speaker passed an order in the file authorizing Mr. Rajni Kant Deb to conduct all the examinations for selection to the post of Security Guards including physical fitness test as prescribed in the advertisement. Physical fitness test was conducted between 20.1.1999 to 7.2.1999. As per records of the Assembly after more than 10 months Sri Rajni Kant Deb submitted a list of 266 candidates shown to be successful in the physical test but without any records to show the required measurement of height and chest, performance of running of a mile within six minutes, clearance of high jump of four feet and long jump of 11 feet in respect of any of the 1389 candidates. Sri Deb conducted a written test and interview of 215 out of 266 selected candidates on a single day i.e. 16.1.2000 from 11 am onwards. The written test was of three hours between 11 am to 1 pm followed by interview of all the 215 candidates. The records of the Assembly do not contain any separate marks-sheet for the interview held on 16.1.2000 by Sri Deb. However, a consolidated marks of written and interview of 215 candidates dated 27.1.2000 was again directly submitted by Sri Deb to the then Speaker and received in the Cell of the Speaker on 3.3.2000 leading to issuance of appointment letters to 21 persons on the post of Security Guards on 6.3.2000 by Sri Dinesh Chandra Karun. In this process also the Secretary of the Bihar Legislative Assembly refused to associate himself for approving the draft of appointment on the ground that he had no knowledge of the selection procedure. 3. The original prayers in the writ petitions filed in the year 2000 were to direct the respondents to accept the joining of the petitioners on the posts of Typist/ Security Guard in view of letters of appointment dated 6.3.2000 issued in their favour. 3. The original prayers in the writ petitions filed in the year 2000 were to direct the respondents to accept the joining of the petitioners on the posts of Typist/ Security Guard in view of letters of appointment dated 6.3.2000 issued in their favour. Subsequently the aspirants for the post of Security Guards have challenged letters dated 13.4.2000 and the aspirants for the post of Typist have challenged letters dated 15.4.2000 whereby, with due reference to their appointment letters they were intimated that for the purpose of verifying whether the merit list for appointment was prepared in accordance with specified criteria or not, a test was scheduled for the selected candidates on 23.4.2000 for Security Guards and 27.4.2000 for Typists. The Security Guards were required to undergo physical fitness test and the Typists were required to undergo typing test. The petitioners have a!so challenged subsequent letters dated 15.5.2000 whereby the appointment letters of the petitioners were cancelled because they did not turn up for the required test scheduled for ascertaining whether the merit list had been prepared keeping in view the relevant criteria for selection i.e. the minimum physical fitness requirement and the minimum typing speed. 4. In some of the writ petitions a challenge was also made to subsequent advertisement issued in the year 2001 for filling up the available vacancies in the post of Typists and Security Guards. An interim order of this Court dated 20.6.200A passed in CWJC No. 7245 of 2001 observed that the petitioner may participate in the selection process without prejudice to his rights and contentions. That petitioner Shatrughan Pandey was an aspirant for the post of Typist. It is not in dispute that pursuant to fresh selection process the then available posts of Typist and Security Guard have been filled up. 5. On behalf of the petitioners the main issue raised was that of alleged violation of principles of natural justice in ignoring the appointment letters of the petitioners while calling them for further test. According to Dr. Jha the petitioners were not responsible for any lapses on the part of officials in conducting the recruitment test and they should not be punished for any alleged lapses of such nature. According to Dr. Jha the petitioners were not responsible for any lapses on the part of officials in conducting the recruitment test and they should not be punished for any alleged lapses of such nature. It was submitted on the basis of a large number of judgments of the Apex Court such as (i) H.L.Trehan V/s. Union of India, AIR 1989 SC 568 , (ii) Paragraph 112 of the judgment in the case of Charan Lai Sahu V/s. Union of India, AIR 1990 SC 1480 , (iii) Management of M/s M.S. Nally Bharat Engineering Co. Ltd. V/s. State of Bihar, (1990)2 SCC 48 and (iv) Baldeo Singh V/s. State of HP, AIR 1987 SC 1239 , that before cancelling the appointment letters of the petitioners the respondents were required to issue a notice to the petitioners and they could have taken a decision only after affording opportunity of hearing to the petitioners. Since no such notice was given to the petitioners hence according to Dr. Jha, the actions of the respondents in cancelling the petitioners appointment letters and in conducting fresh recruitment test to fill up the vacancies are in violation of principles of natural justice. Hence such actions must be quashed by issuance of appropriate writ and the respondents should be directed to accept the joining of the petitioners and in case there is any need to proceed against the petitioners then clear show cause notice must be served upon the petitioners before any action can be taken against them. 6. On the other hand, Mr. Mihir Kumar Jha, learned senior counsel for the respondents has not chosen to assail the submission directly but has replied by submitting that a careful perusal of the letters intimating the petitioners to appear for further test, physical fitness test for Security Guards and minimum typing speed test for Typists, would show that it is sufficient notice that in case the petitioners do not turn up for test or do not meet the minimum required criteria for selection then the respondents may interfere with the selection list prepared without any regard to the minimum selection criteria. According to him, such notice of test of a limited nature only for the selected candidates was sufficient notice to meet the requirement of natural justice in the facts and circumstances of this case. According to him, such notice of test of a limited nature only for the selected candidates was sufficient notice to meet the requirement of natural justice in the facts and circumstances of this case. His further submission was that such intimation/notice meets with the requirements of natural justice and fairness. He further submitted that if the petitioners had appeared and taken such tests and thereafter any further action would have been contemplated against them, further show cause notice might have been necessary but since the petitioners chose not to appear and take the test as per notice given to them, they cannot be permitted to say that they had no opportunity to meet the case against them or that they were prejudiced in any manner by anything lacking in the notice. 7. Mr. Mihir Kumar Jha placed reliance upon a judgment of the Supreme Court in the case of Union of India V/s. Anand Kumar Pandey, AIR 1995 SC 388 and submitted that if the respondent authorities relied upon materials available on the record available to them and came to the conclusion that it was not safe to make appointments on a selection procedure which appeared subjective, arbitrary and unfair, the authority was justified in ordering the selected candidates to take further tests whose purpose was only to find out whether minimum eligibility norms had been adhered to or not in the matter of selection. In the judgment under reference the Central Administrative Tribunal had interfered with the order of the Railways authorities calling upon the candidates to sit in a fresh written examination on the ground of violation of principles of natural justice. The Apex Court set aside the order of the Central Administrative Tribunal holding... "that the rules of natural justice cannot be put in a straitjacket. Applicability of these rules depends upon the facts and circumstances relating to each particular given situation". The Court further held "the purpose of a competitive examination is to select the most suitable candidates for appointment to public services. It is entirely different than an examination held by a College or University to award degrees to the candidates appearing at the examination. Even if a candidates is selected he may still be not appointed for a justifiable reason. It is entirely different than an examination held by a College or University to award degrees to the candidates appearing at the examination. Even if a candidates is selected he may still be not appointed for a justifiable reason. In the present case the Railway authorities have rightly refused to make appointments on the basis of the written examination wherein unfair means were adopted by the candidates. No candidate had been debarred or disqualified from taking the exam. To make sure that the de-serving candidates are selected the respondents have been asked to go through the process of written examination once again. We are of the view that there is no violation of the rules of natural justice in any manner in the facts and circumstances of this case". 8. On a careful consideration of all the materials available on record of these cases, this Court finds that there were a number of disturbing facts to create a doubt regarding bona fide and fairness of the selection process leading to issuance of appointment letters at the instance of Speaker of a Legislative Assembly which had already stood dissolved. The entrust-ment of selection process to Sri Rajni Kant Deb, a Deputy Secretary or Incharge Joint Secretary alone by itself creates sufficient doubt when an Appointment Cell appears to be in existence in the Bihar Legislative Assembly placed under the charge of the Secretary of the Assembly. This appears from a letter dated 27.11.1999 deputing certain persons to that Cell under the orders of the Speaker of the Assembly. Even Mr. Rajni Kant Deb was deputed to work in that Cell by that letter dated 27.11.1999 which is Annexure-10 to petitioners reply to counter affidavit in CWJC No. 3511 of 2000. It is apparent that even after that order the Cell placed under the charge of the Secretary, Bihar Legislative Assembly did not appear in the selection process and only Mr. Deb prepared two selection lists dated 27.1.2000. The materials disclose that no proper marks-sheet were maintained of the candidates and for Typist the performance chart of only 47 selected candidates was maintained. The action of the then Secretary of the Assembly in dissociating himself from the appointment process on the ground that he had no knowledge of the same also creates serious doubt that the selection process might have been fraudulent. Mr. The action of the then Secretary of the Assembly in dissociating himself from the appointment process on the ground that he had no knowledge of the same also creates serious doubt that the selection process might have been fraudulent. Mr. Dinesh Chandra Karun, an Under Secretary posted in Question Section of the Assembly was charge-sheeted in a departmental proceeding on 28.6.2000 and there is no denial that he was not posted in Establishment Section which was supposed to deal with such appointments and in his reply to the charges he has communicated that he was called by the then Speaker at his home and given orders to issue appointment letters. 9. The aforesaid facts have been mentioned only to show that this Court was conscious to find out whether the respondents were justified in holding that the selection process of petitioners leading to appointment letters lack in fairness and bona fide. This Court on considering the relevant facts has no hesitation to hold that the respondents were quite justified in holding such a view and thereafter their action in issuing letters to the selected candidates to appear for further test was not only fair to the petitioners, rather it was an extra lenient approach in their favour. In the factual background of this case the respondents could have been justified even in asking the unsuccessful candidates to appear for further tests but instead only a limited further test was conducted giving the petitioners an advantage to get public employment only on showing that they had the minimum eligibility criteria in respect of typing speed or physical fitness as per nature of the post. Ordinarily, the selected candidates should not possess only the minimum qualification but they should be the best candidates available. The subsequent events also justified the action of the respondents. After petitioners failed to appear and take the further test, the posts were readvertised and all the petitioners were issued admit cards. Out of 47 selected candidates for the post of Typist, 19 appeared and out of them only 3 were finally selected. Those 3 are petitioners no. 14, 17 and 28 to CWJC No. 3511 of 2000. Similarly, 7 persons out of 21 selected appeared for fresh selection as Security Guards. Out of those 3 are petitioners being petitioners no. 2 and 8 in CWJC No 4088 of 2000 and petitioner no. Those 3 are petitioners no. 14, 17 and 28 to CWJC No. 3511 of 2000. Similarly, 7 persons out of 21 selected appeared for fresh selection as Security Guards. Out of those 3 are petitioners being petitioners no. 2 and 8 in CWJC No 4088 of 2000 and petitioner no. 4 in CWJC No. 3616 of 2000. All the 7 were found physically disqualified. 10. In the aforesaid facts and circumstances, this Court finds merit in the submissions advanced on behalf of the respondents that in the given facts and circumstances of this case requirements of natural justice and fairness were afforded to the petitioners and there is no good ground to grant any relief to them in exercise of writ jurisdiction. All the writ petitions are dismissed. There shall be no order as to costs.