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2006 DIGILAW 851 (PAT)

Rabindra Nath v. Bihar State Electricity Board

2006-09-15

V.N.SINHA

body2006
Judgment 1. Heard learned counsel for the parties. 2. The petitioner has filed this writ petition to quash the notice/result published by the Bihar State Electricity Board (hereinafter referred to as the Board) dated 13.6.1998 annexure 3, after completion of the selection process pursuant to employment notice no. 7 of 1996, annexure 1 issued by the Board for appointment on the post of Assistant Executive Engineer (Telecommunications) with further, direction to the Board and its functionaries to appoint the petitioner on one of the posts of Assistant Executive Engineer reserved for Scheduled Caste. 3. It is submitted on behalf of the petitioner that he passed Bachelor of Science Engineering (Electronics and Communications) Examination in first class from Patna University in the year 1994 and in response to the employment notice no.7 of 1996 issued by the Board applied for being considered for appointment on the post of Assistant Executive Enginner (Telecommunications) reserved for Scheduled Caste as out of total number of 10 posts of Assistant Executive Engineer, two posts were reserved for Scheduled Caste. In consideration of the application submitted by the petitioner for appointment on the post of Assistant Executive Engineer in Scheduled Caste Category he was allotted 27 as his roll number and was served with a registered letter bearing no. 28 dated 2.1.1998, annexure-2, issued under the signature of the Joint Secretary of the Board instructing the petitioner to appear in written examination scheduled to be held at Regional Power Training Institute, Badarpur, New Delhi (hereinafter referred to as the Institute) on 1.2.1998 from 11 AM. The aforesaid notice further clarified that the written examination shall be of objective type in three parts, duration whereof will be of three hours. The viva voce test will be held on 2.2.1998 at the lnstitute.lt appears the aforesaid notice bearing letter no.28 dated 2.1.1998, annexure 2 at page 15 was subsequently cancelled by publishing notice in leading newspapers on 29.1.1998, whereafter another notice bearing letter no.148 dated 28.2.1998, annexure 2 at page 17 was issued under the signature of the Joint Secretary of the Board instructing the petitioner to appear in written examination scheduled to be held at the Insitute on 22.3.1998 at 11 AM. The subsequent notice dated 28.2.1998 further clarified that the interview of successful candidates will be held on 23.3.1998 from 10 AM onwards at Corporate office of the Institute located at Sector 33, Faridabad. The subsequent notice dated 28.2.1998 further clarified that the interview of successful candidates will be held on 23.3.1998 from 10 AM onwards at Corporate office of the Institute located at Sector 33, Faridabad. The petitioner in compliance of the aforesaid instruction contained in subsequent notice dated 28.2.1998 annexure 2 at page 17 appeared in the written and interview test held on 22nd and 23rd March, 1998. He however was not declared successful in the final result which was published under notice dated 13.6.1998, annexure 3 whereafter he filed representation dated 25.6.1998, annexure 4 before the Chairman of the Board whereunder he categorically asserted that amongst the Scheduled Caste candidates he had secured highest marks which can be verified from the answer books available at the examination center. The Chairman of the Board did not take notice of the representation of the petitioner dated 25.6.1998, whereafter he filed the present writ petition on 10th August, 1998 asserting inter alia that he secured highest marks in the written test which can be verified by perusing the answer books of the petitioner and that of the so-called successful candidates. He further asserted in the writ petition that he was called for interview only after he became successful in the written test and there has been bungling in the selection process including publication of results. In view of the. aforesaid assertions made in the writ petition he prayed for quashing of the results published under notice dated 13.6.1998, annexure 3 with further prayer to direct the Board to appoint him against the post of Assistant Executive Engineer reserved for Scheduled Caste. 4. Under order no. 5 dated 24.2.1999 passed in the instant case the Board at the request of its counsel was granted three weeks time to file counter affidavit to the averments made in the writ petition. The Board availing the said opportunity granted by this Court under order no. 5 dated 24.2.1999 affirmed counter affidavit on 19.4.1999 and filed the same before this Court on 3.5.1999, whereunder the Board refuted the assertions made by the petitioner. It has been further stated on behalf of the Board in the said counter affidavit that in terms of employment notice no. 5 dated 24.2.1999 affirmed counter affidavit on 19.4.1999 and filed the same before this Court on 3.5.1999, whereunder the Board refuted the assertions made by the petitioner. It has been further stated on behalf of the Board in the said counter affidavit that in terms of employment notice no. 7/96 altogether 22 applications for appointment on the post of Assistant Executive Engineer was received and all the applicants were allowed to appear in the written test as well as in the Viva Voce Test irrespective of the marks obtained in the written test conducted at the Institute on 22.3.1998. The answer books of the candidates were examined by an expert of the Institute and the petitioner could secure only 16.25 marks in the written test and 6 marks in the interview held on 23.3.1998. In support of the said assertion the Board produced the result-sheet duly signed by the Members of the Selection Board dated 23.3.1998 which was appended with the counter affidavit as annexure B. It was further asserted in the counter affidavit that the petitioner having secured only 22.25 marks out of 225 total marks for the Written Test even failed to secure the prescribed minimum qualifying marks for selection against a post reserved for the Scheduled Caste as in terms of the resolution of the State Government bearing no. 15838 dated 22.12.1990, annexure C Scheduled Caste candidate for being selected must secure 32 percent of the total marks.ln response to the assertion of the petitioner made in paragraph 23 of the writ petition that the assertions made in the writ can be verified by perusing the answer books of the petitioner and the so-called successful candidates it was submitted by the Board in paragraph 10 of the counter affidavit that the answer books in question are the property of the Institute and if this Court so desires the answer books may be brought and produced before this Court. 5. 5. The case was taken up forconsideration on 22.6.1999 when this Court having heard the counsel for the parties with reference to the assertions made in the writ petition and the counter affidavit directed the counsel for the Board to produce before it the answer books of the petitioner in a sealed cover within a period of three weeks from that date with further directions that the matter will appear immediately thereafter and in the meanwhile one post reserved for the Scheduled Caste be not filled up without the leave of this Court. A copy of the aforesaid order dated 22.6.1999 was also directed to be handed over to the learned counsel for the Board. 6. It appears on the adjourned date i.e. 21.7.1999 the Board instead of producing the answer books of the petitioner in a sealed cover as was directed under order dated 22.6.1999 filed supplementary counter affidavit wherein with reference to the aforesaid order dated 22.6.1999 it was submitted that the Board had written a letter to the Executive Director of the Institute which is a Government of India society service whereof was solicited by the Board for conducting the selection process including Written & Viva Voce Test for recruitment on the post of Assistant Executive Engineer pursuant to employment notice dated 7/96. The Board in the light of the directions given by this Court contained in order dated 22.6.1999 had written a letter to the Executive Director of the Institute bearing no. 551 dated 7.7.1999, annexure D requesting the Institute to return the answer script of the candidates who appeared in the written test pursuant to the Board employment notice no. 7/96. The Institute under their reply dated 9.7.1999, annexure E in response to the Boards letter dated 7.7.1999 however informed the Board that the written test pursuant to employment notice no. 7/96 was held on 22.3.1998 and more than a year has already lapsed the answer books pertaining to the said written test have already been destroyed and are no ionger available with the Institute.The Board with reference to the said letters informed this Court by filing the aforesaid supplementary affidavit that as the answer books have already been destroyed by the examining institute which is a Government of India society the Board is not in a position to produce the answer books of the petitioner as was directed under order dated 22.6.1999. 7. 7. The petitioner affirmed reply to the aforesaid supplementary counter affidavit on 27.7.1999 asserting that the marks shown in the chart, annexure B is not the actual marks of the petitioner as he was called for interview only after he became successful in the written test. He also took exception to the failure of the Board to produce the answer books as was undertaken by it in paragraph 10 of the counter affidavit. It was further submitted on behalf of the petitioner that the Board does not want to appoint him on account of extraneous consideration and that is why answer books of the petitioner is not being produced and letter dated 9.7.1999 annexure E has been obtained from the Institute only to defeat the rightful claim of the petitioner. 8. This Court having considered the averment made in the supplementary counter affidavit filed on behalf of the Board on 21.7.1999 considered the same under order dated 28.7.1999 and appreciating the contents of the supplementary counter affidavit proceeded to admit the writ petition under order no. 10 dated 8.7.1999 making the rule returnable within six months from that date. The case could not be listed for final hearing in compliance of the directions contained in order dated 28.7.1999 whereafter the matter was mentioned before the Civil Application and Motion Bench on 13.4.2006 when the Civil Application and Motion Bench directed the case to be listed under the heading for hearing before the concerned Bench with liberty to the petitioner to request the Bench concerned for early hearing. 9. The case was thereafter taken up for hearing on 13.7.2006 when learned senior advocate for the Board desired further time to seek instruction in the matter and accordingly the matter was adjourned to 31st July, 2006 when he filed further supplementary counter affidavit asserting that the cadre of Engineers of telecommunications in the Board has since been dissolved and its infrastructure and man power has already been transferred to Generation-cum-Transmission Cadre as would be evident from the notification dated 23.3.2000, annexure F to the supplementary counter affidavit and in view of dissolution of the cadre of Engineers of telecommunication no fresh recruitment could be made in the cadre of Engineers of telecommunication with effect from 23.3.2000. The petitioner filed rejoinder to the said supplementary counter affidavit in which it was clearly stated that the statements made in the supplementary counter affidavit is misleading as from notification of the Board dated 23.3.2000, annexure F itself it appears that the Engineers of telecommunication cadre of the Board has been merged with the Generation-cum-Transmission Cadre and the man power of the cadre of Engineers of telecommunication of the Board having been transferred with all its infrastructure must necessarily include the posts of telecommunication cadre. One post of Assistant Executive Engineer reserved for Scheduled Caste was directed not to be filled up by the Board without the leave of this Court under order dated 22.6.1999 is also available in the cadre of Generation and Transmission as from the joint reading of annexures F to H it is evident that number of post which were earlier sanctioned in telecommunication cadre has not been abolished by the Board. 10. Learned counsel for the petitioner during argument, placing heavy reliance on the statement made in paragraph 10 of the counter affidavit wherein the Board had on its own undertaken to produce the answer books of the petitioner, as also the interim order of this Court dated 22.6.1999, whereunder this Court directed the Board to produce the answer books of the petitioner in a sealed cover, submitted that adverse inference be drawn against the Board for its failure to produce the answer books of the petitioner to establish that the petitioner had secured only 22 marks in the written test held on 22.3.1998 which was even below than the minimum qualifying marks. In this connection he also referred to letter no. In this connection he also referred to letter no. 148 dated 28.2.1998, annexure 2 at page 17 of the brief wherefrom it is evident that only those applicants who became successful in the written test held at the Institute on 22.3.1998 at 11 AM were to appear in the subsequent interview held on 23.3.1998 at the Corporate office of the Institute located at Sector 33, Faridabad and in the light of the said fact he submitted that the authorities of the Board only with a view to deprive the petitioner of his rightful claim did not choose to produce the answer books and obtained letter dated 9.7.1999 from the Institute, annexure E. According to him, the instruction about the availability of the answer books which was sought under letter dated 7.7.1999 Annexure D and obtained under letter dated 9.7.1999 Annexure E should have been obtained by the Board before affirming and filing of the counter affidavit on 19.4.1999/3.5.1999 clearly undertaking in no uncertain terms to produce the answer books if the Court so desired. It was further submitted that once this Court took cognizance of the undertaking furnished in paragraph 10 of the counter affidavit and passed order dated 22.6.1999 directing the Board to produce the answer books of the petitioner and it became likely that the cat may come out of the bag the authorities of the Board in order to redeem the situation sought instructions about the availability of the answer books from the Institute under letter dated 7.7.1999, annexure D to suplementary counter affidavit and obtained the desired instructions under letter dated 9.7.1999, annexure E only to defeat the case of the petitioner. 11. He further pointed out with reference to the notification of the Board dated 23.3.2000 and the subsequent notification that telecommunication cadre having been merged with the Generation and Transmission cadre, the-post available in the telecommunication cadre including the one which was directed not to be filled up without the leave of this Court under order dated 22.6.1999 stood transferred to the Generation and Transmission cadre and there should be no difficulty in directing the Board to appoint the petitioner against the post of Assistant Executive Engineer especially when others recruited pursuant to the employment notice no. 7 of 1996 Annexure 1 has already been appointed in Generation and Transmission Cadre under notification dated 24.7.2000, annexure L. In support of the aforesaid submission, learned counsel for the petitioner has relied on the judgment of the Supreme Court in the case of Ashok Kumar Sharma and Ors. Vs. Chandra Shekhar Singh and Ors. reported in 1997(4) SCC 18 , paragraph 6 to submit that those who were not eligible for appointment in terms of the employment notice no. 7 of 1996 cannot be considered for the post which was advertised under the said employment notice. 12. Learned counsel for the Board has opposed the prayer and has submitted that answer books of the written test held pursuant to the employment notice no. 7 of 1996 were the property of the Institute and when the Institute itself has submitted under letter dated 9.7.1999, annexure E that the answer books have already been destroyed as the written test was held on 2.3.1998 no adverse inference can be drawn against the Board for its failure to produce the answer books as was directed under interim order of this Court on 22.6.1999. He further submitted with reference to the letter of the Board dated 2.1.1998, annexure 2 at page 15 of the brief that all the candidates pursuant to employment notice no. 7 of 1996 who appeared in the written test were allowed to appear in the interview and the contention of the petitioner that only successful candidates in the written test were directed to appear in the interview is not correct. Finally learned counsel for the Board with reference to the different notifications of the Board dated 23.3.2000, 9.10.2000 and 19.9.2001, annexures F, G, and H submitted that the telecommunication cadre of the Board having already been dissolved there is no occasion for the Board at this belated stage to appoint the petitioner in the light of the employment notice no. 7 of 1996. 13. 7 of 1996. 13. Having heard the counsel for the parties and having perused the pleadings filed by them I am of the view that this Court in order to resolve the controversy raised in this application as to whether the petitioner had secured the minimum quali fying marks in the written test held at the Institute on 22.3.1998, under interim order dated 22.6.1999 directed the Board to produce the answer books of the petitioner in a sealed cover as the Board itself had undertaken to produce the answer books in paragraph 10 of their counter affidavit affirmed on 19.4.1999 and filed in this Court on 3.5.1999. In the opinion of this Court, before making commitment in paragraph 10 of the counter affidavit affirmed on 19.4.1999 that the Board shall produce the answer books of the petitioner the Board ought to have taken appropriate instructions from the Institute, about the availability of the answer books. It appears once the interim order dated 22.6.1999 directed the Board to produce the answer books of the petitioner in a sealed cover within a period of three weeks was passed, the authorities of the Board in order to redeem the situation wrote letter no. 551 dated 7.7.1999, annexure D requesting the institute to return back the answer books of the candidates who appeared pursuant to the employment notice no. 7 of 1996 including that of the petitioner. In response whereto the Institute under letter dated 9.7.1999, annexure E informed the Board that the answer books pertaining to the employment notice no. 7 of 1996 has already been destroyed as the examination was held more than a year ago. In the opinion of this Court the Board and its functionaries before committing themselves that they shall produce the answer books of the petitioner should have taken appropriate instructions from the Institute about the availability of the answer books of the petitioner. 7 of 1996 has already been destroyed as the examination was held more than a year ago. In the opinion of this Court the Board and its functionaries before committing themselves that they shall produce the answer books of the petitioner should have taken appropriate instructions from the Institute about the availability of the answer books of the petitioner. Once the functionaries of the Board, without taking appropriate instructions have committed themselves to this Court that they shall produce the answer books of the petitioner, cannot be allowed to go back from their own voluntary commitment/statement on the basis of a subsequent instruction of the Institute dated 9.7.1999 annexure E. The functionaries of the Board appears to have taken the proceedings before this Court very casually as the information which they have obtained from the Institute under letter dated 7.7.1999, Annexure D should have been obtained prior to the affirmation of the counter affidavit on 19.4.1999. For filing counter affidavit without obtaining complete instructions the Board has to suffer. Accordingly, for the failure of the Board to produce the answer books as was undertaken by it in paragraph 10 of the counter affidavit I draw adverse inference against the Board and its functionaries and conclude that the petitioner had secured minimum qualifying marks in the written 28.2.1998, annexure 2 at page 17 that those who appeared in the written test on 22.3.1998 and became successful were to appear in the interview on 23.3.1998 held at the Corporate office of the Institute located at Sector 33, Faridabad which is substantially different from the earlier instructions dated 2.1.1998, annexure 2 at page 15 of the brief. 14. The submission of the Board that the telecommunication cadre has merged with the Generation and Transmission cadre with effect from 23.3.2000 and there is no post of Assistant Executive Engineer (Telecommunications) available on which petitioner can be appointed has also to be rejected in view of the fact that from perusal of the different notifications of the Board dated 23.3.2000 and other notifications annexures F to H it appears that the Engineers of the telecommunications Cadre of the Board has been merged with the Generation and Transmission Cadre and the man power of the Cadre of Engineers of telecommunication of the Board has since been transferred with all infrastructures including posts to the Generation and Transmission Cadre. One post which was directed not to be filled up without the leave of the Court under order dated 22.6.1999 has also been transferred to the Generation and Transmission cadre after issue of the notification dated 23.3.2000 and thus there is no dearth of post on which the petitioner can be appointed. 15. In view of the discussions made above, I direct that the petitioner be appointed on probation as Assistant Executive Enginner in the Board either on the post which was directed not to be filled up without the leave of this Court under order dated 22.6.1999 or any other suitable post. 16. The writ petition is allowed. No cost.