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2013 DIGILAW 907 (PAT)

Awadh Kishore Thakur v. State of Bihar

2013-07-31

NAVANITI PRASAD SINGH

body2013
ORDER This Court wishes that this be the last of the writ petitions in relation to appointment of driver in the newly formed district of Lakhisarai. 2. Having heard Mr. Umesh Prasad Singh, learned Senior Counsel for the petitioner and Mrs. Nivedita Nirvikar, learned G.P.3 for the State and with their consent this application is being disposed of at this stage itself. 3. State has filed a counter affidavit and there are rejoinder on record. 4. Both sides have placed various facts, which indeed make things quite confusing. Unfortunately, it is a confusion deliberately being created at the district level when, in fact, there is no confusion. 5. Upon district of Lakhisarai being formed, for the Lakhisarai Collectorate, undisputedly, 12 posts of driver were sanctioned. In fairness to learned G.P.3, she states that in fact it was 13 posts. One extra post could only help the petitioner, if any. For filling up these posts, selection process were carried out and ultimately a panel of 19 persons was made. In this panel the petitioner being of General Category was at sixth position. For the first 12 persons, out of the panel, roster clearance was obtained for their appointments, which included the petitioner but while making appointment pick and choose method started. At different time, different people come to this Court and got different orders but the panel remained what it was, the vacancy remained there and the conduct of the Collector remained what it was “pick and choose”. In between a challenge was made to the panel as prepared before the Divisional Commissioner, Munger, who finding some defects scraped the entire panel and directed it to be made all over again. As noted above, the petitioner was in this panel. People who were empanelled being aggrieved by the decision of the Divisional Commissioner challenged the order and the action of the Divisional Commissioner before this Court. The writ petition was allowed and the order of the Divisional Commissioner, scraping the panel, was set aside restoring the panel. State took the matter in appeal first in intra court appeal and then to the Apex Court without success. Thus, the order of the Divisional Commissioner scraping the panel lost its sanctity and validity. The writ petition was allowed and the order of the Divisional Commissioner, scraping the panel, was set aside restoring the panel. State took the matter in appeal first in intra court appeal and then to the Apex Court without success. Thus, the order of the Divisional Commissioner scraping the panel lost its sanctity and validity. Normally it would have been expected that once panel was restored, roster clearance having being obtained, appointments be made but for some undisclosed reason, which the Court cannot discuss, the appointments were not being made. The petitioner finding himself helpless in the matter and having failed to persuade the authority to appoint him came to this court in the present writ petition seeking appointment. 6. Learned G.P.3 firstly submits that the Divisional Commissioner having set aside the panel, which order of the Divisional Commissioner was set aside at the instance of two persons by the Writ Court , the benefit would accrue to those two petitioners, the petitioner ought to have come to this Court and sought relief. In absence whereof the authority could not consider his case. This argument is only noticed to be rejected. I can do no better when the Apex Court has held in the case of Ashwani Kumar Singh & Ors. Vs. State of Bihar & Ors. since reported in AIR 1997 S.C. 1628 in para 17 thereof. The relevant part is quoted hereunder:– “Nor can we say that benefit can be made available only to 1363 appellants before us as the other employees similarly circumscribed and who might not have approached the High Court or this Court earlier and who may be waiting in the wings would also be entitled to claim similar relief against the State which has to give equal treatment to all of them otherwise it would be held guilty of discriminatory treatment which could not be countenanced under Articles 14 and 16(1) of the Constitution of India” 7. I may also refer to notified Bihar State Litigation Notified Policy, 2011 wherein para 4. C(1) is quoted hereunder:– “4.C (1).A good number of cases are from the category of similar cases. Each Government Department will aim to consider and settle the claim of the representationist/ applicant employee/citizen if the claim is found covered by any decision of the Court. I may also refer to notified Bihar State Litigation Notified Policy, 2011 wherein para 4. C(1) is quoted hereunder:– “4.C (1).A good number of cases are from the category of similar cases. Each Government Department will aim to consider and settle the claim of the representationist/ applicant employee/citizen if the claim is found covered by any decision of the Court. many service matters of this nature, can be disposed of at the level of the Department itself without compelling the litigant to come to the Court. In this manner, the Government Departments would be acting as efficient litigants.” 8. Thus, the argument that the petitioner did not move this Court is futile. It is only camouflaged to cover their failure. Once this Court set aside the order of the Commissioner, which had scraped the panel, undisputedly, the panel stood restored with the rights of the party therein. It is not disputed that roster clearance was already taken and the petitioner was at sixth position in the panel, yet he is deprived of his appointment. Next G.P.3 further states that there has been various orders of this Court and various people have been appointed. This Court is not interested in what happened in the way. The petitioner is interested in his appointment being empanelled and roster clearance having been obtained for appointment. 9. Mr. Umesh Prasad Singh, learned Senior Counsel rightly points out that there has been no positive direction of the Court to appoint the people who were not empanelled . Moreover, a look to the orders of this Court shows that the State deliberately or otherwise did not bring all these facts to the notice of the Court anywhere. Court orders where for consideration of his case in accordance with law. Using this as an excuse whether persons were empanelled or not whether roster clearance were taken or not, they were employed against sanctioned vacancies for which a panel existed with roster clearance and people who were in the panel with roster clearance were left out. So much so now it is being stated that, in fact, there are not only 12 sanctioned posts but 16 sanctioned posts. On three posts people have been employed on contract. Various other justifications are being given only to cover the failure of the State to appoint the petitioner. So much so now it is being stated that, in fact, there are not only 12 sanctioned posts but 16 sanctioned posts. On three posts people have been employed on contract. Various other justifications are being given only to cover the failure of the State to appoint the petitioner. They are not relevant because it is not being disputed at any stage that as against initial sanctioned 12 posts, panel having been prepared in which the petitioner was at sixth position and roster clearance had been obtained then why his appointment was not made is not being disclosed. 10. Thus, I have no option but to direct that the petitioner being empanelled and roster clearance having taken for his appointment, he has to be appointed within one month, the responsibility of which shall be on the Collector, Lakhisarai. How he does is his look out because there was sanctioned post available for the petitioner and roster clearance had been obtained. 11. Learned G.P.3 points out that, in fact, there are only 13 sanctioned posts as stated in para 4 of the counter affidavit of the State. Three additional posts have been sought for on which contractual appointees are working. Mr. Umesh Prasad Singh, learned Senior Counsel draws attention of this Court to Annexure 19 to the reply to the counter affidavit, being the letter of the District Magistrate -cum- Collector, Lakhisarai to the Principal Secretary, General Administration, Government of Bihar, under memo no. 347, dated 25.4.2013 wherein it has been categorically stated that the total number of posts for driver is 16 and there are 4 vacancies. He further submits that if there are sanctioned post then instead of making appointment from panel for which roster clearance has been made, how are contractual appointees on that post in preference to the people selected for permanent appointment. All I can say is that if on permanent sanctioned post for which panel and roster clearance has been obtained for appointment instead of making permanent appointment any person is appointed on contract, such appointment is void ab initio and is illegal. The person having appointed him would be liable to pay the remuneration and not the State. Such persons have to be removed forthwith making place for appointment of selected persons for whom roster clearance has been obtained. The person having appointed him would be liable to pay the remuneration and not the State. Such persons have to be removed forthwith making place for appointment of selected persons for whom roster clearance has been obtained. In this transaction I have to hold that how the Collector manage is his look out in accordance with law and direction of this Court. With the aforesaid observation and direction the writ petition is disposed of.