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2023 DIGILAW 506 (PAT)

Prince v. State of Bihar

2023-04-19

ARUN KUMAR JHA, P.B.BAJANTHRI

body2023
P. B. Bajanthri, J.— Re: I.A. No. 01 of 2022 (LPA No. 650 of 2022) Heard I.A. No. 01 of 2022. 2. I.A. No. 01 of 2022 has been filed in LPA No. 650 of 2022 arising out of CWJC No. 6259 of 2019 for condonation of delay. 3. For the reasons stated in the application and affidavit, delay of 17 days in filing LPA is condoned. Accordingly, I.A. No. 01 of 2022 in LPA No. 650 of 2022 arising out of CWJC No. 6259 of 2019 stands allowed. Re: I.A. No. 01 of 2022 (LPA No. 661 of 2022) 4. Heard I.A. No. 01 of 2022. 5. I.A. No. 01 of 2022 has been filed in LPA No. 661 of 2022 arising out of CWJC No. 21219 of 2018 for condonation of delay. 6. For the reasons stated in the application and affidavit, delay of 15 days in filing LPA is condoned. Accordingly, I.A. No. 01 of 2022 in LPA No. 661 of 2022 arising out of CWJC No. 21219 of 2018 stands allowed. Re: I.A. No. 01 of 2023 (LPA No. 657 of 2022) 7. Heard I.A. No. 01 of 2023. 8. I.A. No. 01 of 2023 has been filed in LPA No. 657 of 2022 arising out of CWJC No. 21219 of 2018 for condonation of delay. 9. For the reasons stated in the application and affidavit, delay of 18 days in filing LPA is condoned. Accordingly, I.A. No. 01 of 2023 in LPA No. 657 of 2022 arising out of CWJC No. 21219 of 2018 stands allowed. 10. In the instant LPA No. 650 of 2022, the appellants have assailed the order of learned Single Judge dated 29.09.2022 passed in CWJC No. 21219 of 2018 and connected matters. The appellants among others are candidates for recruitment to the post of Clerk pursuant to Employment Notice dated 07.02.2016. Employment Notice Bearing No. 01/2016 is relating to filing up of 1681 tentative vacancies to the post of Clerk. 11. In this regard, preliminary test was conducted on 17.07.2016 and result was published on 29.04.2017. Such of those persons who are successful in the preliminary test were permitted to participate in the (Mains) written examination, (Mains) written examination was conducted on 15.10.2017 and results were announced on 16.12.2017, the appellants were amongst 4914 successful candidates who are permitted to participate in the process of Interview. Such of those persons who are successful in the preliminary test were permitted to participate in the (Mains) written examination, (Mains) written examination was conducted on 15.10.2017 and results were announced on 16.12.2017, the appellants were amongst 4914 successful candidates who are permitted to participate in the process of Interview. The interviews were conducted during the intervening period from 16.01.2018 to 03.02.2018 & 25.02.2018 and so also with reference to fresh additional select list of 1927 candidates, interviews were held during the intervening period from 01.05.2018 to 08.05.2018 and 16.09.2018. The appellants were placed in the Wait List which was prepared on 26.09.2018. 12. The appellants came to know that 273 candidates who have not reported or joined service whereby vacancies occurred for the purpose of operating the Wait List. In this regard, representation was filed, since there was inaction on the part of the concerned respondent they were compelled to file writ petitions. 13. Writ petitions were disposed of on 29.09.2022 while rejecting the appellants claim, on the score that during pendency of the litigation, committee was constituted in order to examine whether Wait List for appointment to the post of Clerk in the Civil Court of the State could be considered or not? The committee has taken a decision that Wait List need not be operated. Taking note of the committee decision learned Single Judge has rejected the claim of the appellants. Hence, the present LPAs. 14. Learned counsel for the appellants vehemently contended that the post of Clerk is governed by the Rules called Bihar Civil Court Staff (Class III and Class IV) Rules, 2009 (for short ‘Rules, 2009’) they are relying on Sub-rule 12, 13 and 14 of Rule 7 of Rules, 2009. On 15.03.2023 the following order was passed:— “Core issue involved in the present lis is whether panel list/waiting list could be operated for the purpose of filling up of unfilled vacancies due to non-joining of selected candidates or not? Learned Single Judge has taken note of the resolution of the Standing Committee read with the administrative notification/resolution issued in the year 2019, whereas, the present selection to the post of Class III is in terms of the Bihar Civil Court Staff (Class III and Class IV) Rules, 2009 (for short ‘Rules 2009’). Learned Single Judge has taken note of the resolution of the Standing Committee read with the administrative notification/resolution issued in the year 2019, whereas, the present selection to the post of Class III is in terms of the Bihar Civil Court Staff (Class III and Class IV) Rules, 2009 (for short ‘Rules 2009’). Sub-rule 12, 13 and 14 of Rule 7 of Rules, 2009 read as under:— “(12) A panel of successful candidates shall be prepared on the basis of total marks obtained in written examination as also in the interview. After the selection tests (both written and oral) are over, a common panel shall be prepared by the Coordination Committee in order of merit for all the Judgeship in the State of Bihar. (13) The aforesaid panel shall remain valid for a period of two years. (14) The existing vacancies as also the anticipated vacancies occurring within the aforementioned period may be filled up from amongst the candidates in the said panel in order of merit.” During pendency of the process of recruitment in terms of Rules 2009, amended Rules were notified in the year 2017. Learned Single Judge has taken note of the fact that the Standing Committee has taken a decision not to fill up the non-joining of candidates vacancies in the year 2019 and in the result he has rejected the claim of the appellants. Learned counsel for the respondent-Court is hereby directed to secure copy of the resolution passed by the Standing Committee and formal notification/resolution/letter issued by the Registrar General or Registrar and to place it on record, in order to ascertain whether it has retrospective effect or not, for the reasons that process of recruitment is stated to have commenced in the year 2016 and final appointment order was issued in the month of November-December, 2018. Therefore, it is necessary to examine whether the petitioner’s right is still subsisting in the light of Sub-rule 12, 13, and 14 of Rule 7 of Rules 2009 or not? Relist this matter on 29.03.2023.” 15. Pursuant to the same Respondent No. 3 – The Convenor, Coordination Committee Patna-cum-District and Sessions Judge, Patna filed counter affidavit in which they have furnished minutes of the meeting of the Hon’ble Committee dated 31.01.2019, Agenda No. 2 is relating to the post of Clerk for consideration of their representation. Relist this matter on 29.03.2023.” 15. Pursuant to the same Respondent No. 3 – The Convenor, Coordination Committee Patna-cum-District and Sessions Judge, Patna filed counter affidavit in which they have furnished minutes of the meeting of the Hon’ble Committee dated 31.01.2019, Agenda No. 2 is relating to the post of Clerk for consideration of their representation. In any other matter heading the committee rejected the representations of Shri Suprabhat Kumar & Ors. which reads as under:— “Re: To consider the matter regarding filling up the vacant post of Clerk due to non-joining of the candidates in the Sub-ordinate Courts. Having considered the representations of Sri Suprabhat Kumar & Ors., the Committee resolves to reject the prayer of the candidates. The committee further resolves that any vacancy exits due to non-joining of the selected candidates would be treated as fresh vacancy would be treated as fresh vacancy for new recruitment.” 16. Further, competent authority has not issued any notification which was warranted. On the other hand, there was internal communication between Registrar (Administration) to The District & Session Judge Patna-Cum-Convenor, Co-ordination Committee which reads as under:— “Letter No. 17053 F-IV- 80 (13a) -2015/Admn. (Misc) Section. Res.-2201926, Mob.: 9431821013Fax No.: Date:-19.02.2019 0612-2504088cPh. (Off.)P.B.X.- ALOK KUMAR PANDEY 2504071-73, 75 Ext- Registrar (Administration) 604 2505318-19, 21 HIGH COURT OF JUDICATURE AT PATNA Off.- 2504394 To, The District and Sessions Judge, Patna Cum-Convenor, Co-ordination Committee. Subject.—Regarding appointment to the post of Clerk pursuant to employment notice no.-1/2016 in the Civil court of Bihar. Sir, Enclosing a copy of representation received from Sri Suprabhat Kumar and others (copy enclosed) on the subject noted above, I am directed to inform you that the court have been please to resolve that any vacancy exists due to non-joining of the selected candidates would be treated as fresh vacancy for new recruitment. This is for your information and needful. Encl. As above Yours faithfully, Registrar (Admn.)” 17. The aforementioned material does not assist the respondents. On the other hand it is contrary to Sub-rule 12, 13 and 14 of Rule 7 of Rules, 2009 which has been cited (supra). The aforementioned rules is relating to operation of Wait List or Panel shall remain valid for a period of two years and further the existing vacancies so also the anticipated vacancies occurring within the aforementioned period may be filled up among the candidates in the set manner in order of merit. The aforementioned rules is relating to operation of Wait List or Panel shall remain valid for a period of two years and further the existing vacancies so also the anticipated vacancies occurring within the aforementioned period may be filled up among the candidates in the set manner in order of merit. At this juncture, it is necessary to take note that final select list was notified on 29.06.2018, representation was submitted to operate Wait List against nonjoining selected candidates on 05.03.2019 and writ petition was filed on 14.03.2019. 18. In the light of these facts and circumstances decisions of the committee dated 31.01.2019 and further communication by the Registrar (Administration) to the District and Session Judge, Patna dated 19.02.2019 are contrary to statutory rules cited (supra). 19. The learned Single Judge has not appreciated that statutory rule will prevail over the executive instruction/decision. Further it is to be noted that the opinion expressed by the committee is to be upheld in such an event the proper course for the concerned competent authority is to take appropriate steps to amend Sub-rule 12, 13 and 14 of Rule 7 of Rules, 2009. In the absence of amendment to Rules, 2009 that too with retrospective effect, i.e., prior to 07.02.2016 the date on which Clerk post was notified. Executive decision cannot override statutory rules. Therefore, the learned Single Judge has committed error in dismissing the writ petitions filed by the appellants. 20. Accordingly, the order of the learned Single dated 29.09.2022 passed in CWJC No. 6259 of 2019 and connected matters stands set aside. While allowing LPA No. 650 of 2022 (arising out of CWJC No. 6259 of 2019), LPA No. 657 of 2022 (arising out of CWJC No. 21219 of 2018), & LPA No. 661 of 2022 (arising out of CWJC No. 21219 of 2018) the concerned selecting/appointing authority is hereby directed to consider each of the petitioners name for the purpose of appointment to the post of Clerk against unfilled vacancies and anticipated vacancies during the relevant period of two years and necessary order of appointment shall be issued to each of the eligible petitioner within a period of three months from the date of receipt of this order. If any, of the candidate is not suitable or eligible in that event necessary speaking order shall be passed and communicated to such petitioner/s. 21. If any, of the candidate is not suitable or eligible in that event necessary speaking order shall be passed and communicated to such petitioner/s. 21. Accordingly, the LPA No. 650 of 2022 (Prince & Ors. vs. State of Bihar through the Principal Secretary, Law Department & Ors.); LPA No. 657 of 2022 (Prashant Kumar & Ors. vs. State of Bihar through Chief Secretary & Ors.); LPA No. 661 of 2022 (Dheeraj Kumar & Ors. vs. State of Bihar through Chief Secretary & Ors.) are allowed. 22. Accordingly, I.A. No. 2 of 2022; I.A. No. 3 of 2022 & I.A. No. 4 of 2022 in LPA No. 650 of 2022 arising out of CWJC No. 6259 of 2019 stands disposed of and I.A. No. 2 of 2022 in LPA No. 661 of 2022 arising out of CWJC No. 21219 of 2018 stands disposed of.