Research › Search › Judgment

Patna High Court · body

2015 DIGILAW 493 (PAT)

Bijendra Kumar Singh v. State of Bihar

2015-03-24

L.NARASIMHA REDDY, VIKASH JAIN

body2015
JUDGMENT : In this batch of Letters Patent Appeals, the common judgment dated 15.1.2014 in CWJC No. 17899 of 2012 and batch is challenged. 2. The facts that gave rise to filing of these appeals, in brief, are as under: 3. After gap of about 15 years, the State of Bihar has initiated steps for appointment of teachers in the year 2003. About 34,500 vacancies existed at that time. Initially, the eligibility was confined to those who have undergone teachers training. However, after the Notification was issued and at a time when the applications were being received, the State amended the Rules enabling untrained candidates also to apply. Large number of writ petitions, being CWJC No. 13246 of 2003 and batch were filed before this Court. The writ petitions were heard by a Division Bench and through a common judgment dated 1.7.2004, the amendments brought out by the Government were set aside. Further, a set of directions were issued. The State carried the matter to Supreme Court by filing SLP Nos. 22882-88 of 2004. After certain hearings at the preliminary stage, the State ultimately has withdrawn the SLP on 23.1.2006, by giving an undertaking that it would follow the directions issued by this Court in CWJC No. 13246 of 2003 and batch. 4. The selection process was undertaken and list of candidates, proposed to be appointed as teachers, was also prepared. Complaining that certain irregularities have taken place in the process of selection of teachers, the aggrieved persons filed Contempt Case No. 297 of 2007 and certain interlocutory applications before the Hon'ble Supreme Court. Extensive verification of the entire selection process was done and one retired Judge of this Court, Hon'ble Mr. Justice S.K. Chattopadhyaya was appointed as Special Officer. The State Government was required to place the entire material pertaining to selection process of teachers, before him. The contempt case was closed on 13.10.2011 approving the list prepared by the Special Officer. It was also directed that no petition or proceedings, challenging the selection of teachers shall be entertained by the High Court. 5. A batch of writ petitions was filed before this Court pointing out certain infirmities and irregularities in the selection process. The writ petitions were dismissed, observing that they cannot be entertained, in view of the specific direction of the Hon'ble Supreme Court, in the contempt case. 6. 5. A batch of writ petitions was filed before this Court pointing out certain infirmities and irregularities in the selection process. The writ petitions were dismissed, observing that they cannot be entertained, in view of the specific direction of the Hon'ble Supreme Court, in the contempt case. 6. Thereafter, the concerned persons filed SLP No. 26824 of 2012 before the Hon'ble Supreme Court. Quite large number of interlocutory applications were also filed in the contempt petition as well as in the SLP. Through a common order dated 18.7.2013, the Hon'ble Supreme Court permitted the parties before it, to agitate the matter before this Court. A rider was added to the effect that under no circumstances, the appointment of 32,127 teachers, from the list approved in the earlier round of litigations, shall be touched. The fact that there existed 2,413 vacancies; was taken note by the Hon'ble Supreme Court. 7. It was in this context, that a batch of writ petitions were filed not only by those who approached the Supreme Court, but also those who did not. All of them claimed one relief or the other in relation to the selection of teachers. Several grounds were pleaded in support of the claims. 8. The State filed a detailed counter affidavit pleading, inter alia, that in the entire selection process, (a) as many as 1929 candidates could not appear in the interview, though they were otherwise eligible, (b) candidature of 366 persons was not considered since verification in relation to their social status and the like was under process and that; (c) 118 candidates were not appointed on' account of ongoing process of verification, on other aspects. 9. A marathon hearing had taken place before the learned Single Judge. Through a detailed and elaborate judgment dated 15.1.2014, the learned Single Judge dealt with all the contentions. Ultimately he disposed of the writ petitions directing that the selection against 2,413 vacancies shall be taken up by a Committee comprising of Director, Primary Education and the Secretary to the Bihar Staff Selection Commission and the decision of the Committee was made subject to approval by the Principal Secretary of the Education Department. Ultimately he disposed of the writ petitions directing that the selection against 2,413 vacancies shall be taken up by a Committee comprising of Director, Primary Education and the Secretary to the Bihar Staff Selection Commission and the decision of the Committee was made subject to approval by the Principal Secretary of the Education Department. It was also directed that the Committee shall first publish notice in the newspaper for appearance of the 1,929 candidates who could not attend the interview on the earlier occasion, and thereafter to consider the cases of 366 candidates and then of the 118 candidates mentioned above. The said judgment is challenged in this batch of appeals. 10. The principal contention urged by the appellants is that the Hon'ble Supreme Court permitted only those persons who figured as parties before it, to approach this Court for being considered against the left over 2,413 vacancies, and that it was not open to the candidates, who did not approach the Hon'ble Supreme Court, to file the writ petition before this Court. It is also pleaded that the direction of the learned Single Judge, permitting the consideration of the candidates who did not approach the Hon'ble Supreme Court runs contrary to the order in SLP No.(C) No. 26824 of 2012 and that the same is liable to the set aside. Arguments are also advanced on certain minor aspects, which are specific to individual candidates. 11. Sri Y.V. Giri, learned senior counsel for the appellants advanced the arguments on behalf of the appellants and the learned counsel for the individual appellants supplemented his arguments. Their plea is that, only those candidates who have approached the Hon'ble Supreme Court in SLP or through interlocutory applications, which led to the order dated 18.7.2013 passed by the Hon'ble Supreme Court that can approach this Court and not others. It is also pleaded that a Division Bench of this Court took the view that the' order passed by the Hon'ble Supreme Court in SLP is not in rem and despite that, the learned Single Judge has virtually opened the door for all the candidates. Reliance is placed on certain precedents. 12. It is also pleaded that a Division Bench of this Court took the view that the' order passed by the Hon'ble Supreme Court in SLP is not in rem and despite that, the learned Single Judge has virtually opened the door for all the candidates. Reliance is placed on certain precedents. 12. Sri Lalit Kishore, learned Principal Additional Advocate General, and the learned counsel who appeared for other respondents submit that nowhere in its order, the Hon'ble Supreme Court restricted the consideration of the candidature for the leftover of 2,413 vacancies, to the persons who filed SLP, or the interlocutory applications. They contend that in the process of selection, merit, subject to the rules of reservation, must be the guiding factor, and the mere fact that few persons approached the Hon'ble Supreme Court, does not confer priority or precedence on them. 13. Several factors contributed for the delay or inconclusiveness of the selection process that commenced in the year 2003. The ultimate sufferers are the students in the Government schools, who are denied the benefit of instructions by properly appointed teachers. For all practical purposes, the directions issued by this Court in CWJC No. 13426 of 2003 became final and the selections were made in accordance with them on the withdrawal of the S.L.P. by the Government. When certain alleged irregularities or deficiencies in the selection process were pointed out, the Hon'ble Supreme Court caused verification by appointing a retired Judge as a Special Officer. After taking into account, the various objections raised by the parties, the selection and consequential appointment of 32,127 of teachers were approved. Anticipating the challenge to the selections in this Court, Hon'ble Supreme Court has galvanized the same. The relevant sentence reads as under:- Let the original Roster, as well as seniority 1st which have been produced before us in a sealed cover and is at present lying in the custody of Mr. Gopal Singh, learned Standing Counsel for the State of Bihar, be sent to the Human Resource Department, Government of Bihar, for implementing this order. We make it clear that since the Roster as well as the seniority list have been prepared in terms of the order of this Court no Court shall entertain any other objections or applications with regard to the same." 14. We make it clear that since the Roster as well as the seniority list have been prepared in terms of the order of this Court no Court shall entertain any other objections or applications with regard to the same." 14. Even without such a direction, it would not have been possible for this Court, or for any other institution to doubt, much less to tinker, with list approved by the Supreme Court. When attempts were made to find fault with the selection list by filing writ petitions, the challenges have been repelled by referring to the order of the Hon'ble Supreme Court. Naturally, the aggrieved persons approached the Supreme Court, either by filing SLP or by filing interlocutory applications in the contempt case or SLP. The operative portion of the order of the Hon'ble Supreme Court in that behalf reads as under:- "Be that as it may, in the event, some discrepancies had crept in the final' select list, the individual grievances contained various anomalies, which it is difficult for us to unravel. Accordingly, we modify our order dated 13th October, 2011, and allow the applicants to approach the High Court for redressal of their grievances. We also direct that the applications, special leave petitions and writ petitions filed before us be treated as withdrawn, with liberty to the parties to approach the High Court individually or otherwise, for relief, if any, but without, in any way, affecting the appointments of those teachers who have already been appointed against the vacant 34,540 posts and are working. We have been informed during the hearing that about 2,413 posts out of 34,540 posts were still left to be filled up. All the applications, Special Leave Petitions and Writ Petitions are, therefore, disposed of in the light of the aforesaid observations. We make it clear that none of the persons appointed out of the 34,540 vacancies should be disturbed in any way, but the question of filling up the balance vacancies may be taken into consideration, while disposing of the applications in question." 15. From a perusal of this paragraph, it is clear that even while permitting the parties to approach this Court, the Hon'ble Supreme Court did not prohibit the persons other than those who approached it, from instituting such proceedings in the High Court. From a perusal of this paragraph, it is clear that even while permitting the parties to approach this Court, the Hon'ble Supreme Court did not prohibit the persons other than those who approached it, from instituting such proceedings in the High Court. The fact that the parties before the Hon'ble Supreme Court were allowed to approach the High Court for redressal of their grievances does not lead to any conclusion or inference that others are prohibited from availing the remedies. Had that been so, their Lordships would have certainly made observation to that effect. 16. The right of a citizen to avail remedies under Article 226 of the Constitution of India cannot be taken away in the absence of any specific adjudication or direction issued by a competent Court of law, in that behalf. Further, the constitutional Courts have always been cautioning that relief cannot be restricted to only those persons who approach the Court, and deny it to others who did not approach. This is particularly so in the process of selection to public employment and admission into educational institutions. The adage "not the litigious persistence but the academic excellence" has been coined by the Apex Court to cover situations of this nature. If an otherwise meritorious candidate was either handicapped from or did not feel the immediate necessity to approach the Court, a less meritorious candidate, who has rushed to the Court, cannot steal over the march. Therefore, the contention of the appellants that they alone are entitled to be considered against the left over vacancies, irrespective of their merit, cannot be accepted. 17. Another plea advanced on behalf of the appellants that the private respondents in this batch of appeals have approached the Court at a belated stage and that the writ petitions are barred by laches. It is no doubt true that the High Court would examine the plea of laches in the context of entertaining the writ petitions. However it is a matter, mostly between the Court and the person who approached it. A private party opposing the writ petition cannot press the plea of laches on par with that of limitation. The ground of laches is more in the realm of discretion of the Court, unlike that of limitation where the Court also does not have any option or its discretion circumscribed. A private party opposing the writ petition cannot press the plea of laches on par with that of limitation. The ground of laches is more in the realm of discretion of the Court, unlike that of limitation where the Court also does not have any option or its discretion circumscribed. Added to that, when the selection process is inconclusive and is still in progress; and an exercise is being undertaken for filling the left over vacancies, the proceedings initiated in relation thereto cannot be said to be barred by laches or delay. 18. It is also pleaded that the order passed by the Supreme Court is not in rem. We find it difficult to accept the contention. As a matter of fact, the Division Bench of this Court which made a passing observation in that behalf, did grant the relief and did not dismiss the writ petitions on the ground that it is barred by the order of the Supreme Court. 19. Therefore, the appeals are dismissed, upholding the judgment rendered by the learned Single Judge in CWJC No. 17899 of 2012 and batch. It is, however, left open to the individual candidates to agitate their grievance before the Committee which, in turn, shall take the same into account, but shall stick to the same procedure that was followed in the selection of 32,127 teachers on the previous occasion. 20 Interlocutory applications, if any, shall stand disposed of. There shall be no order as to costs.