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2007 DIGILAW 1111 (PAT)

Sudheshwar Prasad v. State Of Bihar

2007-07-10

J.N.BHATT, MIHIR KUMAR JHA

body2007
Judgment J.N.BHATT, J. 1. By this Letters Patent Appeal under Clause 10 of the Letters Patent of the Patna High Court, the challenge is against the order of the learned Single Judge in CWJC No. 3314 of 2006, recorded on 23.3.2006, whereby the writ petition under Article 226 of the Constitution of India came to be dismissed. 2. We have heard the learned counsel for the appellant at the admission stage in greater details and with the consent of the parties, this appeal is being disposed of. We have evaluated the factual profile of the case. We have also considered the submissions, as well as, the merits of the impugned order dispassionately. 3. With a view to appreciate the merits of the Letters Patent Appeal, let there be a short conspectus of important and relevant facts leading to the rise of this appeal. The appellant original writ petitioner filed the writ petition questioning the legality and validity of the order dated 24.2.2006 contained in memo no/4/B-6-102/2004-249/Gri.Sa.Ko. published in "Hindustan" Newspaper (Hindi) on 26.2.2006, issued by the respondent State Government. Earlier, there was an advertisement no.1 of 2004, dated 11.8.2004 for appointment to the post of constable in the State of Bihar. Government, obviously, issued a guideline clarifying specific selection process for completing the recruitment on the basis of the aforesaid advertisement. A committee came to be constituted for the purpose of selection. Initially, physical tests for the candidates were conducted between 3.9.2004 to 26.10.2004 and, thereafter, the result came to be pronounced in respect of successful candidates in physical test, by the respondent authority, namely, Superintendent of Police of different districts of the State of Bihar. Subsequently, the Director General of Police gave order to the Zonal Inspector General of Police for preparation of the merit list of successful candidates. The appellant-original writ petitioners name came to be included in the list of successful candidates so far as physical test is concerned which was a part of the process of selection as a whole. 4. We are concerned in this Letters Patent Appeal with regard to the successful candidates of Darbhanga Zone being about 450, who have been appointed and are working and getting their salary. Among these, 50% appointed candidates were from Homeguard Jawans. 4. We are concerned in this Letters Patent Appeal with regard to the successful candidates of Darbhanga Zone being about 450, who have been appointed and are working and getting their salary. Among these, 50% appointed candidates were from Homeguard Jawans. It is true that the appellant-original writ petitioner had made an application to the Hon ble Chief Minister of the State for appointment of rest of the successful Homeguard Jawans, unsuccessfully. 5. Upon conclusion of the selection procedure, successful candidates, for getting appointment, were waiting for their turn. In the meantime, the impugned order came to be published in the newspaper, as stated above, under which earlier selection procedure came to be cancelled and fresh selection procedure by virtue of the said, advertisement recommenced. It means that the earlier selection process undertaken came to be intercepted. It is found from the impugned order of the authority that there were various complaints about malpractices, irregularities, as well as, breach of the selection process criteria which prompted the respondent authority to cancel part of the process earlier initiated and, later on, a fresh advertisement came to be published for re-starting the whole process. 6. The impugned order leaves no manner of doubt that before the entire process could be successfully gone into by the respondent authority; there were complaints which culminated into cancellation of the earlier part of the selection for the aforesaid post. It is these actions which are directly placed in focus in this matter. 7. The learned counsel appearing for the appellant original writ petitioner has repeatedly submitted before us that the legitimate expectation doctrine was not followed by the authority and, therefore, the court must help the appellant-original writ petitioner as he had successfully passed the physical test in the first phase which was part of the whole selection process. It cannot be presumed in the absence of any reliable material or information that the action taken by the Government in cancellation of the earlier process of selection, wherein, the appellant original petitioner was one of the persons in the successful candidates in the physical test is illegal or is mala fide or is influenced by extraneous considerations. They, in fact, have to be established by pleading and also to be proved by the appellant original writ petitioner with the help of authentic materials. They, in fact, have to be established by pleading and also to be proved by the appellant original writ petitioner with the help of authentic materials. No such material, however, is available on the record of either the main writ application or this appeal. 8. Apart from that, it is the settled principle of service jurisprudence that in order to claim the benefit of the provisions of Articles 14 and 16 read with Article 311 of the Constitution of India, it is incumbent upon the party to allege any infringement or violation of his vested right and interest which will generate inequality in public employment. Admittedly, there was no contract of service, as the process of selection was still going on. Not only that, when there was no such completion of process of selection, how could it be said that there was a generation of right that too vested right, requiring interference under the writ jurisdiction. There are number of judicial pronouncements holding that even a person who finds place in the select or wait list after being successful in the entire process of selection, does not acquire any legal or vested enforceable right. It is, therefore, clear that there is nothing on the record which would remotely constitute infraction of right of the appellant-original writ petitioner or violation of the-provisions of law. On the contrary, it was thought expedient by the respondent State Government in the spate of number of complaints with regard to the irregularities, illegalities and breaches of guidelines for selection process to cancel the on going selection process en route. How could it be said to be unjust, unreasonable, improper and resulting into violation of some bodys right who had never acquired such right. 9. The learned Single Judge upon consideration of the facts and circumstances, has rightly reached to the conclusion which, in our opinion, does not require any interference by us. On the contrary, we are tempted to mention that whenever there is such situational reality, it is, in fact, desirable to take the similar action which is impugned in this matter in order to achieve the Constitutional goal of equality and fairplay in public employment. 10. On the contrary, we are tempted to mention that whenever there is such situational reality, it is, in fact, desirable to take the similar action which is impugned in this matter in order to achieve the Constitutional goal of equality and fairplay in public employment. 10. Let it be mentioned, before we part with the judgment, that it is not that the appellant-original writ petitioner has been prevented by any act of the respondent authority in participating and being considered in the subsequent selection process. It is also necessary to refer at this juncture that it was the selection process which was initiated by the aforesaid impugned advertisement after passing of the impugned order by the respondent authority and has been concluded as early as in September, 2006. Consequently, we are extremely unable to subscribe to the aforesaid contention raised on behalf of the appellant-original writ petitioner. In the light of the aforesaid discussions this contention of the learned counsel for the appellant-original writ petitioner must fail. Therefore, this appeal, after full fledged hearing at the admission stage itself, shall stand dismissed. No costs.