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2007 DIGILAW 850 (PAT)

Mithlesh Kumar Singh v. State Of Bihar

2007-04-30

BARIN GHOSH

body2007
Judgment 1. In 1998 an advertisement was published which, amongst others, suggested that in the District of Buxar 31 posts of Clerks, 13 posts of Revenue Clerks and 12 posts of Village Extension Workers/ Jansevaks are available for filling up. The said advertisement was published in order to fill up those posts. The advertisement provided that the vacancies as advertised may be altered. On a challenge thrown successfully to the said advertisement, the said advertisement inasmuch as the same invited applications for filling up 12 posts of Jansevaks/Village Extension Workers was struck down. Therefore, the advertisement remained in respect of 31 vacancies in the post of Clerks and 13 vacancies in the post of Revenue Clerks, altogether 44. 2. On 20th June, 2001 a requisition was made on behalf of District of Buxar for 100 posts of Clerks. 3. On 24th July, 2002, the list of successful candidates to be appointed in the District of Buxar was published, which contained names of more than 44 persons. 4. In the present writ petition, the petitioners, who have been selected and recommended, are seeking appointment. It is their contention that 44 posts as were advertised and 100 posts for which subsequent requisition had been submitted should be filled up. The learned counsel for the petitioner relied upon a judgment of the Hon ble Supreme Court rendered in the case of Suvidya Yadav vs. State of Haryana, reported in (2002)10 SCC 269 for the proposition that when the advertisement provides that the posts would be subject to variation to any extent and a subsequent requisition has been given, the judgment rendered by the High Court that recommendations can only be made in relation to the advertised posts and not beyond is not correct. 5. Therefore, in law, when the advertisement itself suggests that the number of posts advertised may vary, and if the same is varried by reason of a subsequent requisition but before recommendation, the number of vacant posts shall stand varried to that extent, and recommendations should be made for the varried posts. 6. In such circumstances what is required to be seen is whether in fact an additional requisition for 100 posts was given or not. There is no dispute that such a requisition was in fact given. However in the counter affidavit it has been stated that the requisition sent on 20th June, 2001 was a product of mistake. 6. In such circumstances what is required to be seen is whether in fact an additional requisition for 100 posts was given or not. There is no dispute that such a requisition was in fact given. However in the counter affidavit it has been stated that the requisition sent on 20th June, 2001 was a product of mistake. Whether the same was or was not a product of mistake can also be gathered from a decision of the Government dated 8th November, 2004. In that decision the Government has provided that according to the policy of the Government the recruitment to the posts in question should be made every year, but the first attempt to make such recruitment was initiated by putting up an advertisement in 1998 but the recommendations in respect thereof was ultimately received in January, 2003. The decision incorporates that in the meantime by reason of an order passed by the Hon ble Supreme Court, Pax Managers became entitled to be appointed in Class III posts and, as a result, the number of posts so advertised in 1998 have shrunk. 7. I had an occasion to look into the order of the Hon ble Supreme Court pertaining to Pax Managers. From a look at that order it would be evidenced that it was a concession by the State of Bihar before the Hon ble Supreme Court to give appointment to Pax Managers in Class III posts. Having regard to such concession and being alive of the fact that the Government has made representation to the people at large that Class III posts, as were advertised in 1998, are available for appointment, it, therefore, by its said decision made a departure and directed all those who have been recommended against the advertised posts be appointed in the vacancies occurring upto 31.12.2004 in the District Offices and Subordinate Offices and, if those are not sufficient, in other Offices also. This decision does not indicate that the Government had authorised anyone to make requisition on its behalf in addition to the advertised posts. The logical conclusion would be that the mistake as projected in the counter affidavit cannot be brushed aside. The Writ Court, being not a fact finding Court, therefore, cannot act on the basis of the said requisition dated 20th June, 2001, allegedly a product of mistake. 8. The logical conclusion would be that the mistake as projected in the counter affidavit cannot be brushed aside. The Writ Court, being not a fact finding Court, therefore, cannot act on the basis of the said requisition dated 20th June, 2001, allegedly a product of mistake. 8. In the circumstances the fact remains that 44 posts were to be filled up and the Government in no uncertain terms by its decision dated 8th November, 2004 has directed recommendees of those 44 posts to be appointed. 9. In so far as the District of Buxar is concerned, recommendation were made in respect of post of Clerks and the posts of Revenue Clerks. However, although as aforesaid, more than 44 candidates were recommended for those 44 posts, but as yet only 26 have been appointed. 18 recommended candidates have not yet been appointed for no just reason despite the said policy decision of the Government dated 8th November, 2000. Let the remaining 18 persons who have been recommended be forthwith but not later than two months from today be appointed in the District of Buxar. 10. Appointments to 26 persons have been effected during the pendency of the writ petition. In the rejoinder the petitioners have raised certain grievances pertaining to those appointments. Since those persons are not parties to the writ petition, it would not be appropriate for this Court to go into those grievances in this writ petition. Accordingly liberty is reserved in favour of the petitioners to take such recourse to law, as they may be advised in relation thereto. 11. The application accordingly stands allowed to the extent indicated above.