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2011 DIGILAW 2076 (PAT)

Md. Shami Uddin v. State Of Bihar

2011-09-27

JAYANANDAN SINGH

body2011
ORDER : J.N. Singh, J. - Petitioner has filed this writ application for quashing of a memo no. 7481 dated 25.09.2007 (Annexure–6), issued by the respondent no.6 enclosing an ORDER :of the Hon'ble Lokayukta dated 20.09.2007, by which, recalling his earlier ORDER :dated 21.03.2007, he has disposed of the petition of the petitioner, finding no error in the appointment of respondent no.7, by rejecting the alternative plea of the petitioner that respondent no.7, with higher points of 17, should have been shifted in the category of general category candidates and hence, petitioner with 15 points, should have been adjusted on the vacancy for reserved category candidate. He has further prayed for also quashing of memo no. 2332 dated 20.12.2007 (Annexure–8), containing an ORDER :of the District Collector, by which, as a follow-up action to the said ORDER :of the Hon'ble Lokayukta dated 25.09.2007, his appointment as Panchayat Shiksha Mitra, made by the ORDER :of the Panchayat Secretary dated 13.07.2007 (Annexure–5), pursuant to the said earlier ORDER :of the Hon'ble Lokayukta dated 21.03.2007, has been cancelled. 2. Facts of the case are that in 2005 there were two vacancies of Shiksha Mitras in the Balia Lakhminia I Panchayat of Balia Block of Begusarai District. Out of the two, one vacancy was for general category and the other was reserved for Most Backward Category (M.B.C.). Besides others, petitioner and respondent no.7 applied for the said reserved category whereas respondent no. 8 applied for general category. Initially on account of higher weightage, respondent no.7 was appointed against the reserved category vacancy and respondent no.8 was appointed against the general category vacancy. Allegedly, after filing complaints, petitioner challenged the said appointment of respondent no.7 on the reserved vacancy before the Hon'ble Lokayukta. In the first round of hearing, on the basis of a report of respondent no.3, Hon'ble Lokayukta found that respondent no.7 had only 14 points, whereas petitioner had 15 points. Hence he passed the said ORDER :dated 21.03.2007, directing the competent authority to take action on the basis of the report and rectify the mistake and submit a compliance report within 3 months. Accordingly, ORDER :s were issued (Annexure–5) and petitioner joined as Shiksha Mitra in the Urdu Madhya Vidyalaya, Mirdahtoli on 14.07.2007. Respondent no.7 filed an application before the Hon'ble Lokayukta disputing the said earlier report of the respondent no. 3. Accordingly, ORDER :s were issued (Annexure–5) and petitioner joined as Shiksha Mitra in the Urdu Madhya Vidyalaya, Mirdahtoli on 14.07.2007. Respondent no.7 filed an application before the Hon'ble Lokayukta disputing the said earlier report of the respondent no. 3. Hence the matter was heard again, and after calculation of the points on the basis of the provisions in the Rules, it was found that points of petitioner, respondent no.7 and respondent no.8 came to 15, 17 & 15 respectively. In the circumstances, the Hon'ble Lokayukta passed the impugned ORDER :dated 20.9.2007. The follow-up ORDER :s, were issued, vide impugned Annexure–8, cancelling the appointment of petitioner. 3. Learned Counsel for the petitioner submitted that, though before the Hon'ble Lokayukta petitioner had questioned the validity and genuineness of the certificates of academic qualifications produced by respondent no.7, but in this writ application he will confine his submission to the issue that respondent no.7 having higher marks than respondent no.8, should have been shifted against the general vacancy and the reserved vacancy should have gone in favour of the petitioner. He submitted that, on an another application of the petitioner submitted in the office of Hon'ble Lokayukta, an enquiry was ORDER :ed and the S.D.O. submitted a report to the Deputy Collector Establishment, Begusari, vide his letter no.1462 dated 31.7.2008, giving his tentative finding that as respondent no.7 was at the top in the merit list, he should have been appointed against the vacancy for general category and petitioner should have been appointed against the vacancy for reserved category. However, since petitioner had relied upon two resolutions of the Personnel and Administrative Reforms Department (133 of 31.10.1990 & 23 of 16.2.1991), the S.D.O. suggested that it would be appropriate to take a decision in the matter only after soliciting an opinion of the said Department. This report of the S.D.O. was sent by the District Collector to the Deputy Secretary of the Hon'ble Lokayukta through his letter dated 30.8.2008 (Annexure–12 series with the Supplementary Affidavit). He also submitted that a show cause was asked from the Mukhiya and the Panchayat Secretary, whose show causes were considered and a report was submitted by the S.D.O. to the Deputy Collector, Establishment, through his letter dated 06.06.2009 (Annexure–13 with the Supplementary Affidavit) for further action. He also submitted that a show cause was asked from the Mukhiya and the Panchayat Secretary, whose show causes were considered and a report was submitted by the S.D.O. to the Deputy Collector, Establishment, through his letter dated 06.06.2009 (Annexure–13 with the Supplementary Affidavit) for further action. Subsequently, in March 2010, the District Collector issued ORDER :s for show cause notices to then Panchayat Secretary and Mukhia against contemplated legal action (Annexure–14 series with Supplementary Affidavit). Learned counsel, submitted that, however, in spite of all these developments, after filing of the present writ application, in favour of the petitioner, no final ORDER :s have been passed by the respondents and the petitioner has not been restored to his service. He submitted that the principle, that a reserve category candidate, qualifying on merit for appointment under the State or its instrumentalities or statutory authorities, has to be treated as a general category candidate and appointed as such, flows from the celebrated JUDGMENT : of Constitution Bench of the Apex Court in case of Indra Sawhney Vs. Union of India [ AIR 1993 SC 477 = (1993) 3 SCC 217 ], which was followed by Apex Court in the case of Ritesh R. Sah Vs. Y.L. Yamul & Ors.( AIR 1996 SC 1378 ). 4. Learned counsel for the petitioner is correct. The principle enunciated in Indra Sawhney (supra) is law of the land by virtue of Article 141 of the Constitution of India and has been noticed, considered and followed by all Court all over India in innumerable cases. This Court has not come across a single decision wherein the correctness of the said principle has been doubted or questioned by the Apex Court at any subsequent point of time. In fact the said principle, enunciated in Indra Sawhney (supra), is only a recognition of the golden thread running through the fundamental right of a citizen of this Country enshrined under Article 16 of the Constitution, read with Article 14, wherein it has been guaranteed that no citizen shall be discriminated on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them in respect of any employment or office under the State. The natural corollary is that, in the matters of public employment or appointment, comparative merit can be the only valid consideration. The natural corollary is that, in the matters of public employment or appointment, comparative merit can be the only valid consideration. It is true that provision has been made in Article 16, inter alia, for reservation of posts in appointment for backward class of citizens which, in the opinion of State, may not be adequately represented in the services under the State. Hence it has been long accepted that parameters for comparative evaluation of merit of such class of citizens in the matter of appointment may be different. 5. But for the rest, there has to be no ground for discrimination, as laid down in Article 16. Hence, in terms of the Constitutional scheme, a candidate of any reserved category, qualifying in a competitive evaluation of merit, has to be considered, along with others, for appointment against a general/open category vacancy and not against a vacancy earmarked for the concerned reserved category. This was, perhaps, for the first time made clear by the Government of India through its letter no. 36012/13/88 (S.C.T.) dated 22.05.1989, providing that candidates of scheduled caste and scheduled tribe, who are selected on their own merit, shall not be counted against reserved category quota. Thereafter, numerous circulars/resolutions/letters were issued by the Government of India as well as the State Governments, including the two letters relied upon by learned counsel for the petitioner, as referred to above, issued by the Personnel and Administrative Reforms Department, Government of Bihar, which do not require individual notice. Finally the State of Bihar promulgated an Act, namely Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991. In section 4, while providing for different percentage of vacancies for different reserved categories, to the extent of 50%, inter alia, in sub-section (3) of the section it was clarified as follows:- “(3) A reserved category candidate who is selected on the basis of his merit shall be counted against 50% vacancies of open merit category and not against the reserved category vacancies.” 6. But the question is what methodology for evaluation can best, or at least to a substantial extent, reflect the comparative merit of the candidates aspiring for appointment under the State. But the question is what methodology for evaluation can best, or at least to a substantial extent, reflect the comparative merit of the candidates aspiring for appointment under the State. Can a panel prepared on the basis of age or date of birth; or a panel prepared on the basis of length of service rendered earlier on ad-hoc basis, or on daily wages, or on casual basis, or provisionally, or on seasonal basis; or a panel prepared on the basis of weightage points allotted for different academic qualifications, like done in the selection of Panchayat Shikshak/Shiksha Mitras, or the like, can be said to be a panel prepared on merit ? This Court thinks not. When the question is of "comparative evaluation of merit" the same has to be by putting all the applicants on one platform, putting them to one test, consider them uniformly applying one yardstick and same identical parameters for selection. The test may be an open competitive test, an age old practice generally adopted by all authorities for appointment under the State or for admission in any academic institution, or a uniform physical test, generally applied for selection of constables in police service, or the like. Candidates qualifying and selected on the basis of such a selection process, in the opinion of this Court, can only be said to have been „selected on the basis of his merit". Hence, a reserved category candidate, thus selected, can alone claim for benefits of the said sub-section (3) of section 4 of the said 1991 Act, none else. Grant of benefit of the said sub-section (3) to any other candidate, not selected by adopting any such selection process, in the opinion of this Court, will be an abuse of the said provision and open to challenge in a court of law. 7. As apparent from Annexure–1 to the writ application, for empanelment and selection of candidates for appointment as Panchayat Shikshak, only 'weightage' has been provided to the candidates for their different academic qualifications. Weightage points have been divided in three parts and same weightage is provided for long range of percentage of marks, such as, for 30 to 60 percent marks, there is one weightage, for 60 to 75 percent marks there is one weightage and for 75 percent and above there is one weightage. Weightage points have been divided in three parts and same weightage is provided for long range of percentage of marks, such as, for 30 to 60 percent marks, there is one weightage, for 60 to 75 percent marks there is one weightage and for 75 percent and above there is one weightage. The note below clarifies that in cases of same weightage, candidate with higher qualification shall be empanelled above. A panel prepared by this methodology, in the opinion of this Court, by no stretch of imagination, can be said to be a panel prepared by 'selection on the basis of merit', as many fortuitous circumstances may come into play in favour or against a candidate. Hence, the provisions of the said sub-section (3) of section 4, and the two resolutions of the Personnel and Administrative Reforms Department (133 of 31.10.1990 & 23 of 16.2.1991), are of no help to the petitioner and the tentative findings in said report of the S.D.O. as contained in his letter no. 1462 dated 31.07.2008 (Annexure – 12) are incorrect and contrary to law. 8. The writ application was filed on 16.07.2008, with service to two copies of the same in the office of learned Advocate General. However, no counter affidavit has been filed in the case on behalf of the official respondents. The case was taken up for hearing on merit, for the first time on 19.09.2001. In view of the issue to be considered in the matter, this Court did not consider it necessary to issue notice to the private respondent nos.7 & 8. 9. For yet another reason this Court does not find any merit in the claim of the petitioner. He has challenged the appointment of respondent no.7, made in 2005 as Shiksha Mitra. Any complaint, as per the Guidelines, had to be filed in this regard within 30 days. There is no material on record to show that, prior to his complaint before the Hon'ble Lokayukta in 2007, filed only after the 2006 Rules came into force and the post of Shiksha Mitra became a regular post with change of nomenclature, he had filed any complaint to any authority. Hence, as per the JUDGMENT :s of this Court in the case of Kanhaiya Kumar Mishra & Ors. Vs. The State of Bihar & Ors. (2008 (2) PLJR 503) and in the case of Alok Kumar Vs. Hence, as per the JUDGMENT :s of this Court in the case of Kanhaiya Kumar Mishra & Ors. Vs. The State of Bihar & Ors. (2008 (2) PLJR 503) and in the case of Alok Kumar Vs. The State of Bihar & Ors. ( 2009 (2) PLJR 929 ) his prayer for consideration of his case and for his appointment as Shiksha Mitra, by cancelling the appointment of respondent no.7, is not maintainable. 10. The writ application is, accordingly, dismissed.