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2006 DIGILAW 589 (PAT)

Ram Pukar Sah v. State Of Bihar

2006-07-12

J.N.BHATT

body2006
Judgment J.N.Bhatt, J. 1. Upon a joint request of learned Counsels for the parties, in view of the peculiar circumstances and special events, the matter is taken up for final hearing today. 2. The challenge in this writ petition under Art. 226 of the Constitution of India is against the rejection of the candidature of the petitioner by the respondents for the post of Chaukidar relying on a letter of the Home Department, Government of Bihar dated 6.11.1991. 3. Let there be a few facts with a view to appreciate the merits of the challenge in this writ petition against the impugned order: 4. The petitioner applied for the post of Chaukidar/Dafadar in Police Station on regular basis, as earlier he was working as a Dafadar since 1985 temporarily, pursuant to an advertisement, dated 12.5.1999, inviting applications which on being processed came to be rejected only on the ground that it was against the criteria laid down in the aforesaid letter of the Hon Department. The rejection order of the application of the petitioner is dated 10.4.2000. Since the respondent authority by that order found that the petitioner is not eligible for the above post in view of the criteria laid down and the guidelines prescribed in the aforesaid letter of the Home Department, the petitioner has questioned its legality and validity by filing this writ petition. 5. A counter affidavit is filed on behalf of respondent No. 2 wherein the same contention has been reiterated. It is the case of the respondents that since the petitioner does not fulfil the criteria of being a dependant or a kith and kin of the family of any Chaukidar-Dafadar of the Police Station, his case cannot be considered. It is, therefore, defended that the action of the respondent in rejecting the application of the petitioner for appointment is in consonance with the letter dated 6.11.1991 of the Home Department, referred to herein above. 6. The first thing which needs to be closely scrutinised and appreciated is as to whether the ground on which the application of the petitioner came to be rejected is sustainable or not. 6. The first thing which needs to be closely scrutinised and appreciated is as to whether the ground on which the application of the petitioner came to be rejected is sustainable or not. When an advertisement is given by the Government for a post in the Government department and applications are invited in terms of the Recruitment Rules as per the policy of the Government, could the application of the petitioner be turned down or rejected advancing the plea of criteria being not fulfilled as enshrined in the aforesaid letter of the Home Department? 7. Let it be mentioned that with effect from 1.1.1990 the post of Chaukidar became a Government post. Therefore, there should not be a question of nomination or person being kith and kin of one of the Chaukidars of the Police Station under the Home Department. 8. Upon a consideration of the factual profile, as well as, the relevant proposition of law emerging from the service jurisprudence, in the light of the provisions of Articles 14 and 16 of the Constitution of India, the rejection of the application of the petitioner on the basis of the aforesaid letter of the Home Department is Manifestly and patently not only erroneous but, also, is illegal and contrary to the constitutional provisions of Articles 14 and 16 of the Constitution of India. 9. It is the settled proposition of law that everybody should have equal opportunity of employment in the Government job. Equality of opportunity for public employment is a constitutional right enshrined in Art. 16. Art. 16 of the Constitution of India in clear terms postulates that there shall be equality of opportunity to all citizens in matters relating to employment or appointment to any office under the State. There is no dispute about the fact that the post of Chaukidar became a Government post with effect from 1.1.1990. Therefore, the ground on which the petitioners application came to be rejected which is impugned in this petition is running counter to the proposition of law enunciated in Art. 16 of the Constitution of India. 10. The concept of Equality before Law has been clearly provided by the founder fathers in the Constitution of India in Art. 14. Therefore, the ground on which the petitioners application came to be rejected which is impugned in this petition is running counter to the proposition of law enunciated in Art. 16 of the Constitution of India. 10. The concept of Equality before Law has been clearly provided by the founder fathers in the Constitution of India in Art. 14. Art. 14 in its terms prescribes a constitutional right that the State shall not deny to any person equality before law or equal protection of the laws within the territory of India. The impugned order of the respondent authority in rejecting the application of the petitioner for the post of Chaukidar is, also, running in the teeth of the provision of Art. 14 of the Constitution of India. 11. What is the use of fixity of a criteria in the letter by one Department of the Government in respect of a Government post, and admittedly the present post of Chaukidar became a Government post with effect from 1.1.1990, diametrically opposite to the provisions of the Constitution of India under Articles 14 and 16. The criteria prescribed in the aforesaid letter of the Home Department is, also, unjust, irrational and unreasonable. It appears that there is some confusion as the opportunity of employment to the dependant or the nominee of the erstwhile Chaukidar in the Police Station under the Home Department in the State of Bihar in relation to a Government post after 1.1.1990 is along with the object of appointment on the compassionate basis. 12. A person who dies in harness while in service leaving some heir, on fulfilment of certain criteria his heir could be considered for a compassionate appointment under a scheme. The said criteria cannot now be injected in the Government post for regular appointment on a regular post. To evolve and carve out one more criteria of a class of nominees or kith and kin of erstwhile Chaukidar working in the Police Station under the Home Department in the State is not permissible as it is hit by the provisions of Articles 14 and 16 of the Constitution of India. Therefore, the contention of the petitioner that the rejection of his application on the premise of the Criteria prescribed in the aforesaid letter is bad in law has to be accepted. 13. Therefore, the contention of the petitioner that the rejection of his application on the premise of the Criteria prescribed in the aforesaid letter is bad in law has to be accepted. 13. For the foregoing grounds the impugned order of the Government dated 6.11.1991 contained in Annexure-5 is, hereby, quashed and set aside and the petitioner has a right to be considered for the post of appointment to the post of Chaukidar in accordance with law. Therefore, obviously the case of the petitioner will have to be considered by the respondent authority in terms of the service rules and in accordance with law. The view this Court is inclined to take is supported by the decision of this Court rendered in the matter of Suresh Prasad Kushwaha V/s. The State of Bihar and Ors. 2006(2) Patna Law Journal Reports, 106. 14. Learned Counsel for the petitioner has, also, submitted in course of his argument that the petitioner is working since 1985 as a substitute Chaukidar (Ewaji Chaukidar) like that of a reliever in absence of some regular person and he has not been paid honorarium or entitled due and payable amount. In this connection, in absence of any particulars the respondent authority is only directed to verify and find out from the record as to whether he has worked as a substitute Chaukidar and, if he has worked, from which period to which period and, if so, what amount will be due and payable to him and determine his case and take appropriate action for payment of such amount that may be found due and payable within a period of six months. In the result, this petition shall stand allowed with costs. 15. The Rule is made absolute.