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2011 DIGILAW 1919 (PAT)

Raj Kumar Mahto v. State of Bihar

2011-09-08

NAVIN SINHA

body2011
ORDER Heard learned Counsel for the petitioners and the State. 2. The petitioners were applicants for various posts under the Mahatma Gandhi National Rural Employment Guarantee Act (hereinafter referred to as MANREGA). Written tests were held on 18.3.2007 and 25.3.2007 in which they have participated successfully. On 31.7.2010 the respondents published an advertisement in a Hindi daily “Hindustan” inviting online consent in order of merit for various posts specified in the advertisement. The advertisement also provided guidelines for working the website. On 1.8.2010 the respondents published a corrigendum with regard to the method for knowing and working website. Subsequently on 6.3.2010 and 6.8.2010 the respondents published notice in Hindi daily “Hindustan” referring to the invitation online for consent extending the date and then re-extending the date. The notice also clarified that giving of consent shall not tantamount to an appointment. 3. Learned Counsel for the petitioners submits that inviting online consent was wholly inappropriate. Every person is not possessed of computers and does not have easy access to computers. The respondents should have followed at least one more method by publication in news paper inviting such consent in writing. The applicants may be residing in non urban areas where computers are not easily available and/or power situation may not permit easy user of the same. The petitioners should be considered also and they are willing to forego any claim for seniority. 4. Counsel for the State contended that if the petitioners were applicants for posts all of which recognized the minimum qualification of Graduate except for one or two as Matric, any educated person is presumed to have access to news papers at least. The petitioners have not taken any defence with regard to the advertisement published on 3.7.2010, 6.8.2010 and 10.8.2010 why they did not lodge any protest within the time indicated therein that they should be permitted to give their consent in any other manner. He lastly submits that any orders for directing consideration of the case of the petitioners may open a flood gate of litigation. 5. The Court while considering the grievance of a citizen who comes to its door seeking justice is not concerned with whether a spate of litigation shall follow on its order or not. Justice delivery cannot be guided or controlled by such considerations. The authority of the law shall have to prevail under all circumstances. 6. 5. The Court while considering the grievance of a citizen who comes to its door seeking justice is not concerned with whether a spate of litigation shall follow on its order or not. Justice delivery cannot be guided or controlled by such considerations. The authority of the law shall have to prevail under all circumstances. 6. There can be no doubt that resort to computerization and seeking online processes are certainly desirable, more efficient and may be the future tomorrow. But as the matters stand today, equally there can be no doubt that every individual in this country is not necessarily possessed with a computer and there can be no presumption that he has easy access to a computer especially when the majority of the populace resides in the rural country side side. Inviting online consent was certainly not contrary to the law in any manner. It cannot be called improper. But it certainly not was the only best method possible. Calling of names from the Employment Exchange for appointment has been held to be one of the methods also but not the most appropriate method. 7. Several of the posts advertised require computer proficiency. That by itself may not suffice to hold that at least with regard to such posts inviting online consent alone was fully inconsonance with the law. 8. On the other hand, the petitioners have not been able to demonstrate any explanation why they were not agile and alert for their interest in a secured government job in an otherwise a competitive market by not keeping watch and track of newspapers notices with regard to the appointment. Had the petitioners lodged any protest within the time period from 3.7.2010 till 12.8.2010 in pursuance of the new paper advertisement that they should be permitted to give consent in another manner also, matters could have been simplified. The petitioners therefore shall have to bear a part of the burden in not having been vigilant in protection of their right and interest even while those below them in the merit list have given consent online and may have been benefited from the same. 9. The question now is of balancing the competing interests in view of the conclusion that inviting online consent only was not the best method but that the petitioners were also not vigilant. 9. The question now is of balancing the competing interests in view of the conclusion that inviting online consent only was not the best method but that the petitioners were also not vigilant. Those who come to the Court in time, like the petitioners who appear to have acted within a month of the second corrigendum dated 10.8.2010 by filing this writ petition on 8.9.2010 and those who may not have been so vigilant by approaching the Court will certainly fall in different category. There are judgments of this Court and of the Supreme Court that the benefit of Article 14 of the Constitution based on Court orders to demand similarity in treatment shall not be available to those who may not be vigilant for protection of their own right and may not have approached the Court in time. 10. It is not possible for this Court to issue any mandamus. The news paper advertisement itself specified that giving of the consent did not tantamount to appointment. The question also is if the vacancies are still available as the petitioners contend. Equally the discretion has to be left to the respondents to appropriately decide the matter after considering all aspects of the issues as discussed in the present order which is expected to be done within a maximum period of three months from the date of receipt and/or production of a copy of this order, by a reasoned and speaking order. 11. If the respondents find justification in the claim or in any part of the claim it is expected that necessary consequential order shall be issued simultaneously. 12. Before parting with the case the Court expects that in view of the present discussion the respondents shall adequately reexamine the modality of an online process only and whether it should be supplemented by additional mode also or not. An online publication only shall certainly not meet the standards. The writ application stands disposed.