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2013 DIGILAW 778 (PAT)

Akhilesh Kumar v. State of Bihar

2013-07-09

NAVANITI PRASAD SINGH

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ORDER By this writ petition, petitioner seeks considering of his case for appointment as Village Chaukidar in respect of Village – Mussi, Police Station – Makhdumpur, District – Jehanabad. There is counter affidavit without a rejoinder to it. 2. Heard the parties and with their consent, this writ petition is being disposed of at this stage itself. 3. On behalf of petitioner, it is submitted that his father Ramdat Singh was the Village Chaukidar. By Annexure 1 dated 19.08.2003, the Circle Officer, Makhdumpur intimated to him that as per order of the District Magistrate dated 22.07.2003, he is being superannuated with effect from 01.08.1998. Petitioner states that at the relevant time, as per Government Circulars, upon superannuating of a Chaukidar, his dependent, if otherwise found fit, was to be appointed in his place. Accordingly, vide Memo No 106 dated 24.11.2003, the Circle Officer, Makhdumpur recommended the case of petitioner for appointment in place of his father to the Incharge, General Administration, Jehanabad which is the office of the Collector-cum- District Magistrate enclosing various documents as well. Petitioner also applied stating that he was qualified for the said appointment but there being no consideration, he filed this writ petition. 4. In the counter affidavit filed on behalf of the District Magistrate-cum-Collector, Jehanabad, it is stated that petitioner’s application and recommendation of the Circle Officer were not placed before the District Establishment Committee and, as such, no decision could be taken thereon. It is further stated that the earlier Circulars issued by the State Government for employment of dependents in such cases was cancelled with effect from 11th November, 2004 (Annexure B to the counter affidavit). As such, nothing can be done now. 5. In my view, there are two important facts which have to be noted. Firstly, in the counter affidavit, it is now denied that there was no recommendation made by the Circle Officer, as contained in Annexure 6. There is no denial of the letter of the Circle Officer retiring petitioner’s father (Annexure 1). All that is said that they were not put up before the Establishment Committee. What authorities want to say is because there office failed to act properly and within time, the right of petitioner is lost. There is no denial of the letter of the Circle Officer retiring petitioner’s father (Annexure 1). All that is said that they were not put up before the Establishment Committee. What authorities want to say is because there office failed to act properly and within time, the right of petitioner is lost. Here, I may refer only what Chief Justice Chagla has said in the case of All India Groundnut Syndicate Limited vs. Commissioner of Income Tax, Bombay City, AIR 1954 Bombay 232 :— “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person - we take it that the Income-tax Department is included in that definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.” 6. To further defeat the right of petitioner, a plea is being taken that in 2004, earlier Circulars were set aside by the State. In the counter affidavit, it is admitted that similarly situated persons were similarly accommodated but that was done prior to 2004. Had petitioner’s application been considered by the Establishment Committee prior to 2004 Circular (Annexure B), he could have been considered and appointed but now it was too late. The answer lies in the judgment, as noted above. If such a plea is allowed to the State then there would be a premium on State’s inactions. It cannot be permitted. Petitioner had a right to be considered. Annexure 6, not being denied, the right of petitioner cannot be defeated. 7. The answer lies in the judgment, as noted above. If such a plea is allowed to the State then there would be a premium on State’s inactions. It cannot be permitted. Petitioner had a right to be considered. Annexure 6, not being denied, the right of petitioner cannot be defeated. 7. Having considered the matter in the aforesaid view, I allow the writ petition and direct the District Magistrate-cum-Collector, Jehanabad to see that the application of the petitioner for appointment as Village Chaukidar, as made prior to Annexcur B, be considered in accordance with law as prevailing prior to Annexure B and if petitioner satisfies the conditions then there would be no option but to appoint him. Petitioner’s right cannot be defeated because of laches or mistake on part of the authorities. 8. Needless to say that as this matter is a very old matter, the Collector-cum- District Magistrate, Jehanabad would take appropriate action within two months from the date of receipt/production of a copy of this order.