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2008 DIGILAW 40 (PAT)

Pramod Narain Tiwari v. State Of Bihar

2008-01-08

KISHORE K.MANDAL, S.K.KATRIAR

body2008
Judgment S.K.Katriar and Kishore K.Mandal JJ. 1. Eleven petitioners have joined this writ petition with the prayer to quash Force Order No. 430 of 2000, dated 12.5.2000 (Annexure 17), whereby their services as Havildar Clerks have been dispensed with. Petitioner No. 5 (Shivendra Kumar Singh), and petitioner no. 9 (Madan Prasad), have died during the pendency of the writ proceedings and their death certificates are marked Annexures 22 & 22A. As prayed for by learned counsel for the petitioners, the writ petition is now confined to the remaining nine petitioners only. 2. This writ petition has had a chequered history. The facts essential for the disposal of the writ petition may be stated briefly. The petitioners were working as Home Guards. The respondent authorities published an advertisement, which had appeared in the daily newspaper "Aaj" on 30.9.1981, inviting applications for appointment as Havildar Clerk. All of them applied, claim to have been selected, and had received communications from the authorities to report for duty. While they were waiting for specific orders of posting, their selection was stayed and was ultimately countermanded by an order dated 20.7.1982. Being aggrieved by this situation, they preferred writ petition bearing Dinesh Sharma & Ors. V/s. The State of Bihar & Ors., CWJC No. 480 of 1982 which was dismissed by judgment dated 10.7.1985. They preferred Pramod Narayan Tiwary & Ors. V/s. The State of Bihar & Ors., Civil Appeal No. 212 of 1986 in Special Leave Petition (Civil) No. 10366 of 1985 which was disposed of by the following order dated 13.1.1986: "Special Leave granted. After hearing learned counsel for both the parties we make the following order: The Government of Bihar or the competent authority authorized by it under law shall make a fresh selection of candidates for the various posts in the Home Guards in accordance with the relevant rules for which selection was made earlier from amongst the candidates who had already applied at the time when the first selection was made in this case, after taking into consideration their eligibility and fitness for the said posts. The Government of Bihar shall not consider the case of any other fresh candidates for these posts. It shall complete the process of selection within three months. The appeal is disposed of accordingly. The Government of Bihar shall not consider the case of any other fresh candidates for these posts. It shall complete the process of selection within three months. The appeal is disposed of accordingly. There will, be no order as to costs." 2.1 In compliance of the order of the Supreme Court, the respondent authorities issued a fresh advertisement which had appeared in a local daily newspaper, "Aaj", on 24.6.1986. They appeared before the Selection Committee on 14.10.1986, and found that the authorities were insisting for their rigorous physical test, apart from written and oral test, leading to Writ Petition (C) No. 1309 of 1986 before the Supreme Court, which was permitted to be withdrawn on 14.10.1986, to avail of the remedy before the High Court. The petitioners accordingly preferred Pramod Narayan Tiwari & Ors. V/s. The State of Bihar & Ors., CWJC No.238 of 1987 before this Court, which was dismissed by the judgment dated 10.11.1987 (Annexure-1). The learned Single Judge, however, made observations to consider relaxation of rigorous physical test in view of the circumstances indicated therein. We shall have the occasion to refer to it at a later stage. In view of inaction on the part of the respondent authorities, the petitioners preferred a contempt application bearing MJC No. 239 of 1989 (Pramod Narayan Tiwari & Ors. V/s. The State of Bihar & Ors.), in this court, which was rejected by order dated 27.4.1989. However, the petitioners were given liberty to move the appropriate forum for redressal of their grievances. 2.2 The respondent authorities thereafter proceeded with the selection process followed by communications to the petitioners to the effect that their candidature had been rejected leading to CWJC No. 1332 of 1990 (Pramod Narayan Tiwari & Ors. V/s. The State of Bihar & Ors.), which was allowed by the judgment dated 9.1.1992 (Annexure-9), wherein the said communications were quashed and it was held that rigorous physical test can be relaxed only after the issue is considered by the Appointment Department as well as the Finance Department, and the approval of the Council of Ministers is obtained, without compromising with the requirement of physical fitness as prescribed in Rule 4 of the Bihar Home Guards Rules. The matter was thereafter considered by the respondent authorities leading to the communication bearing letter No.1188, dated 2.5.1992 (Annexure-10), whereby 13 persons including the petitioners herein were appointed. The matter was thereafter considered by the respondent authorities leading to the communication bearing letter No.1188, dated 2.5.1992 (Annexure-10), whereby 13 persons including the petitioners herein were appointed. They joined as such and functioned till the impugned order was passed. 3. While assailing the validity of the impugned order, learned counsel for the petitioners submits that the respondent authorities had issued the aforesaid order dated 2.5.1992 (Annexure-10) which was a conscious decision of the State Government and, therefore, could not have been cancelled. No fraud, misrepresentation or the like is attributable to the petitioners or the respondent authorities. He lastly submits that the State Government has supported the present petitioners in its counter affidavit and relies on paragraph-23 therein. 4. After dictation of this judgment was complete in open Court, learned counsel for the petitioners has made submissions which in his own words are as follows: (i) The stand of the State in the other three writ petitions was very categorical that they justified the appointments of these writ petitioners on the score that they had participated in the test and the petitioners of those writ petitions cannot claim parity. (ii) While issuing Annexure-10 the State Government had taken a conscious decision which will amount to relaxation and Annexure-10 in no uncertain words provided that the relaxation is to be given. (iii) The averments with respect to Annexure-10 are made at paragraph 32 of the writ petition. A detailed reply has been given by the State in the counter affidavit and no where it has been pleaded in the counter affidavit that it had got to be decided or approved by the Council of Ministers and when the counter affidavit was filed it was filed in the month of August 2000 and the State functionary Mr. Gangwar, who has issued Annexure 16 on 10.5.2000, had availed of the occasion to look into that and stated in the affidavit that while taking conscious decision the State Government had not sought the approval of the Council of Ministers. The pleadings are based on the affidavit filed by the State Government. Pleadings can never be on the basis of a letter by functionary of the State. Apart from this the Supreme Court while in the case of Arvindji vide Annexure- 14 has categorically stated that no rigorous physical test is required for the post of Havildar Clerk. The pleadings are based on the affidavit filed by the State Government. Pleadings can never be on the basis of a letter by functionary of the State. Apart from this the Supreme Court while in the case of Arvindji vide Annexure- 14 has categorically stated that no rigorous physical test is required for the post of Havildar Clerk. So in that view of the matter it is a mandate under Article 141 of the Constitution. (iv) There is no whisper by the State in their counter affidavit that these writ petitioners either misrepresented or committed fraud in obtaining the order of their appointment as back as 1992. They have been admitted to 8 increments. They were confirmed employees as Havildar Clerk and as has been held in Moti Ram Dekas case that before removing them from service Article 311(2) had to be adhered to. (v) Annexure-12 is the decision taken by the State of Bihar before issuing the show cause notice. It is absolutely alien to the service jurisprudence that a decision had already been taken to cancel their appointment and then issued a show-cause notice. This kind of show cause is just a camouflage and this smacks of the mala fide. (vi) Lastly, be that as it may, the petitioners have already altered their position to their detriment induced by the Government by a conscious decision taken in the year 1992 so they are protected by the provision of the principle of estoppel and the doctrine of equity. 5. Learned counsel for the respondents has supported the impugned order. He submits that there is no provision for relaxation in the Home Guards Act and Rules. Relaxation can be ordered only if a specific provision enables the authorities on objective considerations. He relies on the judgment of the Supreme Court reported in AIR 1980 SC 1447 (page 1453) (Amarik Singh and Others V/s. Union of India and Others). He also relies on the judgment reported in 2003(2) PLJR 27 (paras 15, 17, 24 & 35); State of Bihar and Others vs. Prashant Kumar Sharma & Ors. He next submits that the aforesaid judgment of this court in CWJC No. 1332 of 1990 (Pramod Narain Tiwari & Ors. vs. The State of Bihar & Ors.) (Annexure- 9) had clearly observed that such a relaxation can be done only after obtaining approval of the Council of Ministers. He next submits that the aforesaid judgment of this court in CWJC No. 1332 of 1990 (Pramod Narain Tiwari & Ors. vs. The State of Bihar & Ors.) (Annexure- 9) had clearly observed that such a relaxation can be done only after obtaining approval of the Council of Ministers. No such approval was obtained in the present case. He also submits that the matter remained under cover for quite sometime and the illegality was detected when various writ petitions were filed in this Court. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. We must state that we have had the benefit of two judgments in this case, wherein detailed consideration was undertaken of the issues advanced by the parties. In the judgment dated 10.11.1987 (Annexure-1), passed in CWJC No. 238 of 1987 (Pramod Narayan Tiwari & Ors. vs. The State of Bihar & Ors.), this court considered the relevant rules in detail and held that the Rules provide that the candidates have to be physically fit to undergo arduous outdoor duties. It was observed therein that the Supreme Court in its aforesaid order dated 13.1.1986, in S.L.P.(C) No. 10356/ 85/Civil Appeal No. 212 of 1986, has left no ambiguity by using the expression "eligibility and physical fitness", for which in terms of Rule 4 a certain test is permissible. This court concluded by its observation as follows in paragraph 13 of the judgment: "The petitioners, in my opinion, are not right in contending that they could not be asked to appear in the physical test. The respondents committed no wrong when they wanted them to satisfy the tests before they were selected for the force." However, the learned Single Judge disposed of the matter by making an observation that, in view of the protracted litigation and the advancing age of the petitioners, the State Government may consider relaxation of rigorous physical test without compromising the requirements of physical fitness. The petitioners were subjected to physical test but failed leading to the aforesaid CWJC No. 1332 of 1990 (Pramod Narain Tiwari & Ors. vs. The State of Bihar & Ors.), which was allowed by the judgment dated 9.1.1992 (Annexure-9). The petitioners were subjected to physical test but failed leading to the aforesaid CWJC No. 1332 of 1990 (Pramod Narain Tiwari & Ors. vs. The State of Bihar & Ors.), which was allowed by the judgment dated 9.1.1992 (Annexure-9). The order disqualifying them on the ground of physical fitness was set aside with liberty to the respondent authorities to pass a fresh order in accordance with law to take a final decision regarding relaxation of physical test as directed in the aforesaid judgment in CWJC No. 238 of 1987 (Pramod Narayan Tiwari & Ors. vs. The State of Bihar & Ors.). The following observations in paragraph 14 of the judgment (Annexure-9) are relevant in the present context of the matter: "I have no hesitation in holding that the service conditions of an employee of the State Government can only be relaxed after the same is considered by the Appointment Department as well as Finance Department and the approval of the Council of Ministers is also taken. In the present case, admittedly, the approval of the Council of Ministers is not there ........................... ............. In the present case, this court by its judgment dated 10th November, 1987 passed in CWJC No. 238 of 1987 had directed the State Government to consider whether without compromising with the requirement of physical fitness as prescribed in Rule 4, the tests extended to them can be relaxed and modified or not. Admittedly, the said mandate of this Court has not been complied with, as already stated earlier it is the Council of Ministers alone who can grant approval to such a decision for relaxing the service condition of an employee or refuse to relax the same. As in the present case, the Council of Ministers has not considered the matter at all, as such the orders contained in Annexure-1 and 1/A are non est in the eye of law and as such they quashed." (Emphasis added) 6.1 It is thus evident that this court had required the State Government to consider the desirability and/or possibility of relaxation of rigorous physical test without compromising the requirement of physical fitness as prescribed in Rule 4. This has to be read with the observations made in the aforesaid judgment dated 9.1.1992 (Annexure-9), wherein this court in no uncertain terms directed that such a relaxation can be granted only with the approval of the Council of Ministers. This has to be read with the observations made in the aforesaid judgment dated 9.1.1992 (Annexure-9), wherein this court in no uncertain terms directed that such a relaxation can be granted only with the approval of the Council of Ministers. 7) This was followed by the order dated 2.5.1992 (Annexure-10), whereby thirteen persons including the petitioners herein were appointed. They functioned till the impugned order was passed. In other words, they have functioned for a period of 8 years. It further appears that similarly circumstanced persons preferred CWJC No. 8280 of 1992, CWJC No. 9086 of 1992, and CWJC No. 12281 of 1993, claiming identical reliefs. Alarmed at the institution of various writ petitions, the respondent authorities examined the matter in depth and issued order dated 10.5.2000 (Annexure-16), recording a detailed analysis of the matter. The respondent authorities came to the conclusion that approval of the Cabinet was never obtained and, therefore, decided to set aside the appointment of the petitioners leading to the impugned order. 7. The matter was under cover for quite sometime and the respondent authorities came to grips with the matter when the three writ petitions praying identical reliefs were filed in this court, namely, CWJC No. 8280 of 1992, CWJC No. 12281 of 1993, and CWJC No. 9086 of 1992, which were allowed by judgments dated 7.2.1996, 9.5.1997 and 7.2.1996 respectively, giving rise to the analogous LP.A. No. 475 of 1999, L.P.A. No. 466 of 1999, and L.P.A. No. 488 of 1999. 8. It is manifest from the inter-departmental communication dated 10.5.2000 (Annexure-16), that the selection committee was not authorised to relax physical fitness test. On the contrary, by its letter no. 783, dated 25.5.1988 of the State Government, it was clearly directed that no relaxation in the physical test shall be permissible. After the judgment in CWJC No. 1332 of 1990, the approval of the Bihar Cabinet was not obtained, and the order dated 2.5.1992 (Annexure-10) was issued after misinterpreting the judgment in CWJC No. 1332 of 1990. The Law Department/the Advocate General had also not opined in favour of relaxation. It had, therefore, been decided to cancel the appointments of the petitioners. 9. It is stated in the counter affidavit that the State Government had referred the matter to the Vigilance Department for enquiry which found serious irregularities and illegalities in the entire selection process and are summarised in paragraph 6. It had, therefore, been decided to cancel the appointments of the petitioners. 9. It is stated in the counter affidavit that the State Government had referred the matter to the Vigilance Department for enquiry which found serious irregularities and illegalities in the entire selection process and are summarised in paragraph 6. By its aforesaid letter no. 783, dated 25.5.1988 (Annexure-A), the State ernment had clearly directed the Director General of Home Guards not to relax the requirements of physical test. Paragraph-2 of the same is reproduced hereinbelow: fen w=tt t ^r TKf ^ %q; fM^cf ?mm ^ feft wrc t£\ Pwwd ^n ^ t^t ^ifM #T3^f ^ Hit 3 hfT Firrrf ^rfe ^tpff 3 $ t sfk ftTWt ^ ^K 3TfV * >l¥ld: Alf^ui fTrq-^? 3Tfw4 f l" It is further stated that any relaxation in the physical tests will adversely affect the performance of the Force. Furthermore, relaxation if at all will have to be given to all the 5000 candidates who had applied, or at least to the 2837 candidates who had been included in the first list, which is not possible. It is further stated therein that the letter of appointment of 2.5.1992 (Annexure-10) is replete with incorrect facts to justify the appointment of 13 persons. The State Government is of the view that relaxation in fitness test will bring inefficiency in the Force and is not possible. 10. It is thus evident that the State Government, after the judgment in CWJC No. 238 of 1987, clearly conveyed to the concerned authorities that relaxation in physical test was not in the interest of the Force. After the judgment in CWJC No. 1332 of 1990, the authorities took steps to appoint 13 persons including the petitioners by reciting accurate facts in their determination to appoint them. The authorities at that level were in collusion with the petitioners completely ignoring the direction of the State Government not to relax the physical test, and also by misinterpreting the judgment of this court. None of the judgments/orders of courts had directed the authorities to appoint them, or to relax the physical test. The vigilance enquiry had revealed serious irregularities in the selection process. The State ernment after the decision in CWJC No. 133 of 1990, is of the view that relaxation in physical fitness test is not possible. 11. None of the judgments/orders of courts had directed the authorities to appoint them, or to relax the physical test. The vigilance enquiry had revealed serious irregularities in the selection process. The State ernment after the decision in CWJC No. 133 of 1990, is of the view that relaxation in physical fitness test is not possible. 11. It has been held by a Division Bench of this Court reported in 1994(2) PUR 735 (Prabhat Kumar Roy vs. Ranchi University & Others) that an em- ployer is not bound to recognise any ap- pointment made ignoring the mandatory provision of Recruitment Rules as also Article 16 of the Constitution of India. 12. Law is well settled that the Gov- ernment is not bound by the ultra vires acts of its employees. The situation is far worse in the present case where the concerned authorities were in collusion with the petitioners, were de- termined to appoint them after misinter- preting the orders/judgments of this court, and taking the decision at their own, with- out referring the matter to the Cabinet. They also completely ignored the result of the vigilance enquiry. In fact, their own conduct waa the subject matter of vigilance enquiry. When they can so brazenly and purposefully misconstrue the judgments of this court, their determination will not deter them from ignoring the vigilance enquiry. The order of appointment (Annexure-10) does not disclose application of the mind, and does not disclose reasons, for relaxation of the physical test. Mala fides on the part of the concerned authorities in appointing the petitioners is clearly discernible. Equally, discretionary, prerogative writ jurisdiction is not exercised in favour of persons guilty of fraud, misrepresentation, collusive acts, and whose action is in derogation of courts, or is subversive of discipline and good behaviour. 13. The impugned order was passed after issuance of show cause notices to the petitioners. 14. The impugned action cannot be faulted. We do not find any merit in this petition and it is accordingly dismissed. In the circumstances of the case, however, there shall be no order as to costs.