In these writ petitions challenging the preparation of a Class-IV employee panel, the Court dismissed objections that the panel included minors and granted earlier panelists seniority, relying on precedents approved by the Supreme Court.
Disposed both writ applications without granting the relief sought regarding panel seniority.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16567 of 2012
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.... .... Petitioner/s
Versus
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Via-deo.
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D.M. Gaya Jaspur Fatehpur Gaya.
1. The State of Bihar.
Versus
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.... .... Respondent/s
=========================================================== Appearance : (In CWJC No.16567 of 2012) & (In CWJC No.10563 of 2008) For the Petitioner/s : Mr. Vaidehi Raman Pd. Singh, Adv. Mr. Abhishek Kumar Mishra, Adv. For the Respondent/s : Mr. Rai Shivji Nath, Sr. Adv. Mr. Amrendra Narayan, Adv. Mr. Arun Kumar Sinha, AC to GP-24
=========================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL JUDGMENT Date: 08-02-2018
Heard learned counsel for the parties in both the cases.
Since common issue has been involved in both the writ applications, both the cases are being disposed of by this common order. For convenience, the fact of first case, C.W.J.C. No. 16567 of 2012 is being taken into consideration.
In the present petition, the petitioners are challenging the order passed by the District Magistrate, Gaya dated 12.3.2012 (Annexure-16), whereby and whereunder, the objection filed by the petitioners with respect to the preparation of final panel (Annexure13) was considered and rejected.
In this case, the petitioners are basically challenging the manner of preparation of panel, as claimed certain persons who were minor during the period 1988-89 were included in the panel and, later
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on, a fresh panel was prepared, they continued to remain in the panel and when the panel has been prepared in the year 2009, they have been given precedence and seniority over these petitioners and, on that account, petitioners have been shown below them. The petitioners further submit those who were minors, if they are removed from the panel, the position of the petitioners will improve and they will be appointed accordingly.
The matter relates to the appointment on Class-IV post from the panel prepared in the year 2000 by the Collector, Gaya and those who have not found place, filed writ application C.W.J.C. No. 8011 of 2000 and the application was disposed of vide order dated 28.8.2000 wherein the Court had directed the respondents not to make any appointment against Class-IV post without any advertisement, without following the procedure laid down by the State, directed to consider the case of the petitioners for appointment against Class-IV posts, if they apply in pursuance of any advertisement as is published in future. If no advertisement made, the Authority will take step for publication of the same expeditiously preferably within a period of four months. In pursuance of the direction of the Court, a notification dated 23.11.2000 (Annexure-2) was published from the office of Collector, Gaya, inviting application of interested persons through respective employment exchange, a panel of 750 persons was
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prepared in which names of petitioners were not standing. The petitioners against the panel, filed writ petition vide C.W.J.C. No. 10652 of 2003 which was permitted to be withdrawn in view of the order passed in C.W.J.C. No. 9042 of 2003 in which direction was given for preparation of the final panel. A review application vide Civil Review No. 03 of 2005 was filed by one Manoj Kumar and others, the earlier order was recalled, directed for fresh hearing of the writ petition. The writ petition vide C.W.J.C. No. 4486 of 2007 (Deo Kumar Vishwakarma & Ors. Vs. State of Bihar & Ors.) and analogous cases (Annexure-6) were disposed of vide order dated 25.7.2007 holding that the persons whose names were in the panel of 1995-96 or in the subsequent panel, if they could not be appointed, in such cases, as per the circular of the Government, their names are to be revalidated and included in the next panel giving weightage and seniority. New panel was prepared by publishing advertisement, calling names from the employment exchange, inviting application and weightage should be given to the persons whose names were there in the earlier panel. Accordingly, the Court has held that the persons whose name was there in the earlier panel, if they were not appointed again, they would be empanelled in the subsequent year of panel prepared by the authorities and they will get not only place in the panel but, they will also get seniority over the others and, finally, the
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Court has recorded that as a fresh advertisement 1/04 has been published and a direction was given to the District Magistrate, Gaya to proceed in pursuance of the advertisement already published, only relaxation was given to such candidates who could not file their application on account of pendency of the writ application, notice/corrigendum should be published extending the time for submitting the application, the process for preparation of panel should be completed within two months from the date fixed for submitting the application. In case of the preparation of panel the appointments against existing vacancies in order of seniority should be made within further one month time from the date of preparation of the panel. The Court granted the benefit for age relaxation up to 5 years. In pursuance thereof, the corrigendum vide Annexure 7/A was issued and, in pursuance thereof, those who were earlier failed to file their application were given liberty to participate in the selection process and, after receipt of the application, the Authority prepared the draft panel and in the draft panel, the name of the petitioners were not mentioned there. As the petitioners did not find their place in the panel, they filed objection but, the same was not taken into consideration by the Collector, Gaya, whereafter, the petitioners filed writ application C.W.J.C. No. 9270 of 2008 with a prayer to include the name of this petitioners. This Court passed the interim order vide
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order dated 6.8.2008 (Annexure-12) wherein it has been mentioned that any appointment from the panel will be subject to the outcome of the writ application. Finally, the District Magistrate published the panel on 21.10.2008 (Annexure-13) wherein he has recommended the name of 186 persons from the panel and the candidates in the category of 6(d) are persons from the panel of 1997 panel which is apparently clear from the letter dated 10.12.2008 written by the District Magistrate cum Chairman of the Selection Committee from where it appears that in view of the letter no. 3577 dated 25.4.1997, the selected persons in 6(d) are those from the earlier panel and also the panel prepared prior to 1997 which is apparently clear from the advertisement contained in Annexure-7/A wherein it has been mentioned that as 6(d) are those candidates who were empanelled during the period 1999-2000 and earlier panelists, they were given seniority and, on this basis, it has been submitted that the panel was prepared, accordingly, the seniority has been given to those who were in the earlier panel and has submitted that in the final panel i.e. Annexure-13 from Item No.1 to 202 are such persons are from the old panel and seniority has been given to them. As per plea of the petitioners, entire exercise suffers from illegality as persons, who were minors at that time have wrongly been added in the panel, inasmuch as, having been given seniority also. The writ application
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which was filed by the petitioner in C.W.J.C. No. 9270 of 2008 was disposed of vide Annexure-14, whereby and whereunder, the Court has directed the District Magistrate to decide the objection filed by the petitioners and further has given observation that if the petitioners would improve their position in the panel, the authority will consider the case of this petitioners. When the objection of the petitioners was not disposed of, the petitioners approached this Court in Contempt in M.J.C. No. 4666 of 2011 (Annexure-15), was disposed of as, by that time, the Collector rejected the objection of the petitioners vide order dated 12.3.2012. Learned counsel for the petitioners has pointed out from the panel that the persons who are at serial no. 1, 4, 13, 15, 22, 24, 40, 41, 44, 52, 53, 55, 59, 62, 64, 69, 71, 72, 73 & 76 are those whose names were included in the 1988-89 panel. Further it has been submitted that their names could not be included into the panel the granting seniority over the others is completely dehors to Article 14 of the Constitution of India and further their entry itself was completely illegal and, as such, they could not be given any seniority over the others. It will be relevant to mention herein that certain persons who could not find their place in the panel apart from present petitioners, about 17 persons and others have approached this Court in C.W.J.C. No. 9532 of 2008 Annexure R-7 and the Hon’ble Single Judge has allowed the writ application holding that those who were earlier
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empanelled cannot be granted seniority as because they are in the earlier panel and if such practice is allowed, it will be in the teeth of Article 14 and 16 of the Constitution of India. That order was tested by the present respondents in L.P.A. No. 1542 of 2013 (Annexure A/1) and the same was dismissed and that order was challenged before the Hon’ble Apex Court in Civil Appeal No. 4789 of 2016 Annexure A/2 at Page 472, wherein the Apex Court did not interfere with respect to certain persons who did not have requisite qualification as was required but, the Court has held that if the Collector has exercised the power and has granted relaxation of age, in such circumstances, interference by the Single Judge is uncalled for and the Apex Court has restored their selection and the Court has restored the appointment of persons in whose favour discretion was exercised for relaxation of age. The petitioners have approached this Court by way of intervention application vide Civil Appeal No. 4789 of 2016 in SLP No. 29179 of 2014 and the Hon’ble Apex Court has refused to allow him to participate in the proceeding and rejected the application mentioning therein that as the petitioner has approached the High Court in C.W.J.C. No. 16567 of 2012 i.e. the present case, they were given liberty to raise all points. In view of the fact that the petitioners have earlier approached this Court in C.W.J.C. No. 1027 of 2000, wherein the learned Single Judge recorded that those were are
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from the earlier panel and brought subsequently will get the weightage in the seniority and that order was never challenged by the petitioners in higher level though this Court in C.W.J.C. No. 9532 of 2008 has taken a different view but ultimately the panel prepared by the Collector, Gaya was placed before the Hon’ble Supreme Court, there also, the issue of age relaxation was considered and the Court has held that when the discretion has been exercised by the Divisional Commissioner, Gaya, consciously and properly, in such circumstances, the interference by the writ court was not legal and proper. So, the petitioners could have challenged the findings of the Hon’ble Single Judge on the issue presently raised of empanelment and seniority which has been decided in C.W.J.C. No. 1027 of 2000 and analogous cases wherein the Court has specifically directed to grant weightage to the persons of earlier panel but, learned counsel for the petitioners has submitted that he had raised this point but, was not taken into consideration but, from the order, it does not appear that such point was ever argued or raised and was not decided by the Court and, in such circumstances, as all the points could have been raised by the petitioner, if he failed to raise the point, in such circumstances, now subsequently by filing a writ application cannot be allowed to open the whole issue and would challenge the panel prepared by the Collector which has ultimately been approved by the Hon’ble Apex Court.
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In such view of the matter, this Court does not find any merit in both the writ applications. However, if the petitioners apply in view of any fresh advertisement, the Selection Committee will consider the case of the petitioners sympathetically and also will take care to grant maximum benefit of age relaxation. As has been submitted that the petitioners have already filed such application, the Collector, Gaya will examine the case with others and if the petitioners qualify, they will be granted the benefit of service.
With the aforementioned observations and direction, both the writ applications are disposed of.
(Shivaji Pandey, J)
Rishi/-
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3 issues framed by the court
Whether granting seniority to persons empanelled in earlier years violates Article 14 and 16 of the Constitution of India.
Whether the rejection of an objection to the panel containing names of minors invalidates the appointment procedure.
Whether petitioners can challenge findings already approved by the Apex Court in a subsequent writ application.
Colour shows how this judgement treated each authority
Deo Kumar Vishwakarma & Ors. Vs. State of Bihar & Ors.Followed¶161
C.W.J.C. No. 1027 of 2000
UnreportedDistinguished¶157
C.W.J.C. No. 9532 of 2008
UnreportedFollowed¶157
L.P.A. No. 1542 of 2013
UnreportedFollowed¶157
Civil Appeal No. 4789 of 2016
UnreportedDistinguished¶159
SLP No. 29179 of 2014
UnreportedReferred¶155
M.J.C. No. 4666 of 2011
2 provisions across 1 enactments
Deo Kumar Vishwakarma and others
The State Of Bihar
The Collector, Gaya
The Assistant Director (Employment), Sub-Regional Employment Exchange, Gaya
The Deputy Collector, Nazarat, Gaya
The District Welfare Officer, Gaya
Shivaji Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
