Allowed

Narayan Prasad Singh v. The State Of Bihar and Ors.

Patna HC18 Jan 2023CWJC/2390/2018

Case brief

AI extract

What is this about?

In a writ petition, the court quashed an order by the State Appellate Authority that cancelled the petitioner's appointment and directed employment of a rival disabled candidate. The court held that an E.B.C. reserved post could not be converted to a general post merely to accommodate a general-category disabled candidate with higher merit, as the horizontal reservation for disability operates wit

What did the court decide?

The writ petition allowed; the order of the State Appellate Authority quashed and set aside with all consequential benefits in favor of the petitioner.

Narayan Prasad Singh Vs The State Of Bihar and… — Pension and Retirement Benefits | Patna HC (2023)

¶1

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2390 of 2018

¶2

======================================================

¶3

Narayan Prasad Singh Son of Late Sadanand Prasad Singh, Resident of Village-Roshanganj, P.O. balia Belon, Police Station-Balia Belon, DistrictKatihar. ... ... Petitioner/s

¶4

Versus

¶5

The State Of Bihar through the Principal Secretary, Human Resources Department, Govt. of Bihar, Patna.

¶6

The Zila Appeleya Pradhikar, Katihar, Mirchaibari, District-Katihar.

¶7

The Chairperson, The State Appellate Authority, Education Department, Bihar, 5 C-D Niyojan Bhawan,

¶8

The District Education Officer, Katihar, District-Katihar.

¶9

The District Programme Officer, Establishment, Katihar, District-Katihar.

¶10

The Block Education Officer, Azamnagar, District-Katihar.

¶11

The Block Development Officer, Azamnagar, District-Katihar.

¶12

The Chairman, Selection Committee of Panchayat Teacher, Gram Panchayat raj, Teghra, Block-Azamnagar

¶13

Mukhiya, Gram Panchayat Raj Teghra, P.S. and Block-Azamnagar, DistrictKatihar.

¶14

Secretary-Cum-Panchayat Sewak, Gram Panchayat Raj, Teghra, P.S. and Block-Azamnagar, District-Katih

¶15

Abdul Khalique, Son of Abdul Rasheed, Resident of Village-Govindpur, P.O. Teghra, Via-Shalmari, Block and Police Station-Azamnagar, DistrictKatihar. ... ... Respondent/s

¶16

====================================================== Appearance : For the Petitioner/s : Mr. P.N.Shahi, Sr. Adv. Mr. Najeeb Ahmad, Adv. For the Respondent/s : Mr. Madanjit Kumar- GP-20 For Respondent No.11 : Mr. Anshuman Jaipuriyar, Adv. Ms. Anukriti Jaipuriyar, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE SANJEEV PRAKASH SHARMA ORAL ORDER

¶17

6 18-01-2023 1. Heard the parties.

¶18

The petitioner by way of this writ petition assails

¶19

the order dated 12.01.2018 passed by the State Appellate Authority, whereby the appeal preferred by the respondent no.11 was allowed and the appointment granted to the petitioner was

¶20

Patna High Court CWJC No.2390 of 2018(6) dt.18-01-2023 2/8

¶21

cancelled with further direction to employ the respondentappellant herein as a disabled category that the post of E.B.C. shall be treated as unreserved and in future selection next unreserved post shall be treated as E.B.C.

¶22

Learned counsel appearing for the petitioner submits that the petitioner was a candidate from E.B.C. category and was also disabled. while the respondent no.11 was also a disabled category candidate. In the selection process, conducted for 16 posts, one post reserved for E.B.C. category was not filled in the first counselling conducted on 27.01.2007, for which the second counselling was conducted on 23.02.2007 and the petitioner was selected as an EBC disabled candidate. It is submitted that the respondent had not participated in the counselling and there was no occasion for the State Appellate Authority to have passed an order in favour of the respondent. Learned counsel submits that an error apparent on record has been committed by the State Appellate Authority in converting the post of E.B.C. to general category and directing it to be filled from the respondent. Learned counsel submits that as the petitioner was available from E.B.C category, and was also disabled, there was no occasion to treat the post as general. Learned counsel, thus, place the order passed by the State

¶23

Patna High Court CWJC No.2390 of 2018(6) dt.18-01-2023 3/8

¶24

Appellate Authority setting aside the earlier order of the District Appellate Authority, which was passed in favour of the petitioner deserves to be quashed.

¶25

Per contra, learned counsel appearing for the respondent no.11 submits that he had challenged the selection of the petitioner before the District Appellate Authority and the order was passed however in favour of the petitioner by the District Appellate Authority, ignoring the fact that the petitioner was not considered at all in the counselling conducted in February, 2007. Learned counsel submits that the State Appellate Authority has noticed two aspects. Firstly, that the petitioner was having lesser merit than the respondent. It has also taken notice of the fact that the post could not be filled from the E.B.C. category in the first counselling and therefore the said post will have to be treated as unreserved. Once it is treated to be unreserved, the same would be filled from disabled category and amongst the disabled category since the respondent was having higher merit than the petitioner, he was rightly held eligible to be appointed, and therefore, the appointment of the petitioner has rightly been cancelled.

¶26

Learned counsel also points out that in the counselling conducted on 23.02.2007, there was no general

¶27

Patna High Court CWJC No.2390 of 2018(6) dt.18-01-2023 4/8

¶28

notice issued and the respondent, who was appellant before the State Appellate Authority was shown to be absent as there was no general notice issued with regard to counselling held on 23.02.2007. The absence of the respondent-appellant was natural and hence his case was not considered. Learned counsel has relied on the judgment passed by the Supreme Court, in the case of Mahesh Gupta & Ors. Vs. Yashwant Kumar Ahirwar & Ors. as reported in AIR 2007 (SC) 3136, to submit that there has to be no further reservation on the basis of caste, creed or religion while considering reservation of handicapped. Thus, the post which fell vacant after the first counselling conducted on 23.01.2007 was to be filled without examining the inter se caste amongst the disabled category candidates and only the merit was required to be considered. As per merit, since the respondent was having higher merit than the petitioner he was rightly directed to be appointed by the State Appellate Authority and therefore prays that the order passed by the State Appellate Authority does not warrant any interference.

¶29

I have considered the submissions. The reservations are of two categories. One are those which are provided under article 16 (4) of the Constitution of India which are to be treated as vertical reservation. There are other reservations, which may

¶30

Patna High Court CWJC No.2390 of 2018(6) dt.18-01-2023 5/8

¶31

be provided under Article 15 of the Constitution which include reservation for the disabled, for women or other special categories. So far as disabled category candidates are concerned, as held in Mahesh Gupta & Ors. Vs. Yashwant Kumar Ahirwar as reported in 2007 (8) SCC 621 , the same is considered as a horizontal reservation. In Union of India Vs. M. Selvakumar & Anr . as reported in 2017 (3) SCC 504 , the Apex Court has held that the horizontal reservation shall cut across the vertical reservation, meaning thereby that where ever there is a particular reservation provided under Article 16(4) of the Constitution namely for a particular category SC, ST, OBC, the horizontal reservation would fall in each of the categories. Thus, for SC category candidates if there special 3% reservation of physically handicapped would be available. Similarly for ST, similarly for OBC and so and so. The same view has been again reiterated by the Apex Court in the case of Government of India through Secretary & Anr. Vs. Ravi Prakash Gupta &

¶32

Anr. as reported in 2010 (7) SCC 626, wherein the Apex Court has again explained the manner in which the reservations of disabled category would be considered.

¶33

A look at the gazette notification issued by the State Government dated 05.01.2007 also reflects that as to how

¶34

Patna High Court CWJC No.2390 of 2018(6) dt.18-01-2023 6/8

¶35

horizontal reservation relating to disabled category would operate. It would be apposite to quote para 13 of the said gazette notification which reads as under:-

¶36

(13) fu%”kDr O;fDr;ksa ds fy, gksfjtsUVy vkj{k.k %& fiNMs oxZ ds ukxfjdksa ( vuqlwfpr tkfr;ksa] vuqlwfpr tu tkfr;ksa] vR;Ur fiNMs oxksZ] fiNMs oxksZ ,oa fiNMs oxZ dh efgyk;sa ) ds fy, vkj{k.k dks ofdy vkj{k.k dgk tkrk gS vkSj fu%”kDr O;fDr;ksa ds fy, vkj{k.k dks gksfjtsUVy vkj{k.k dgk tkrk gSA gksfjtsUVy vkj{k.k vkSj ofVZdy vkj{k.k vkil esa fey tkrs gSa ( ftls baVj ykSfdax vkj{k.k dgk tkrk gS ) vkSj fu %”kDr O;fDr;ksa ds fy, fu/kkZfjr dksVs esa pqus x;s O;fDr;ksa dks vuqlwfpr tkfr;k@vuqlwfprsa tu tkfr;ksa @vR;Ur fiNMs oxk@fiNMsZ s oxk@fiNMsZ s oxksZ dh efgykvks ds vkj{k.k ds fy, cuk;s x;s jksLVj esa mudh Js.kh ds vk/kkj ij vuqlwfpr tkfr;k@vuqlwfprsa tu tkfr;ksa @vR;Ur fiNMs oxk@fiNMsZ s oxk@fiNMsZ s oxZ dh efgykvk@lkeks U; Js.h dh mi;qDr Js.kh esa j[kk tkrk gSA mnkgj.kr% ;fn fdlh fn;s x;s o’k esa fu%”kDr O;fDr;ksa ds fy, nks fjDr;ksa vkjf{kr gS vkSj fu;qDr fd, x, nks fu%”kDr O;fDr;ksa esa ls ,d O;fDr vuqlwfpr tkfr dk gS vkSj fu;qDr fd;s x, nks fu%”kDr O;fDr;ksa esa ls ,d O;fDr vuqlwfpr tkfr dk gS vkSj fu;qDr fd, x, nks fu%”kDr O;fDr vuqlwfpr tkfr dk gS vkSj nwljk lkekU; Js.kh dk gS rks vuqlwfpr tkfr ds fu%”kDr mEEkhnokj dks vkj{k.k jksLVj esa vukjf{kr fcUnw ij j[kk tk;sxk vkSj lkekU; mEehnokj dks laxr vkj{k.k jksLVj esa vukjf{kr fcUnw ij j[kk tk;sxkA ;fn vuqlwfpr tkfr;ksa ds fy, vkjf{kr fcUnw ij dksbZ Hkh fjfDr ugh gksrh gS rks vuqlwfpr tkfr dk fu%”kDr mEehnokj Hkfo’; esa vuqlwfpr tkfr;ksa ds fy, vkjf{kr vxyh miyC/k fjfDr ij lek;ksftr fd;k tk;sxkA

¶37

Keeping in view above, this Court is of the firm view that each categories including the general category would have a place for disabled category persons. Having said above, if examining the present case, it is worth while to notice that there were 16 posts available for appointment at the concerned employment unit. On 27.01.2007 first counselling was

¶38

Patna High Court CWJC No.2390 of 2018(6) dt.18-01-2023 7/8

¶39

conducted and one post of E.B.C. category remained vacant. For the said post a fresh counselling was conducted on 23.02.2007 and the petitioner who is from E.B.C. category appeared for the counselling and as he was from E.B.C. category as well as was a disabled person he was offered employment and he joined. The State Appellate Authority passed an order treating the said post which came up for consideration in counselling on 23.02.2007 as a general category post. This court is unable to understand as to how the E.B.C. post could have been converted to a general post in the second counselling. It is a same selection process under which both the counsellings was done and it is not a case of carrying forward of vacancy to next selection. In view thereof, if a candidate from E.B.C. category is available, namely, the petitioner, there was no occasion to convert the said post from E.B.C. category to general and then directed to be filled from disabled category of general person who was having higher merit. The direction passed by the State Appellate Authority was contrary to the provisions contained under the gazette notification issued by the Bihar Government dated 05.01.2007, as noted above. The order passed by the State Appellate Authority, is therefore, held to be illegal and direction to convert the subsequent post as E.B.C. is found to be wholly

¶40

Patna High Court CWJC No.2390 of 2018(6) dt.18-01-2023 8/8

¶41

perverse.

¶42

Accordingly, the order passed by the State Appellate Authority directing the petitioner to be ousted and respondent to be appointed in his place is also found to be illegal and unjustified.

¶43

The question with regard to notice of the second counselling is concerned, suffice it to notice that the petitioner and the respondent have full knowledge about the said counselling and it is not his case that he participated in the first counselling and was deprived of the second counselling. Moreover, since the post was of E.B.C. category alone, there was no occasion to give individual notice to the respondent, who was admittedly not from E.B.C. category. On that count also, the order passed by the State Appellate Authority are found to be unjustified.

¶44

Accordingly, the writ petition is allowed and the order passed by the State Appellate Authority is quashed and set aside with all consequential benefits in favour of petitioner. No cost.

¶45

(Sanjeev Prakash Sharma, J)

¶46

amit/Item no.13 U

Narayan Prasad Singh v. The State Of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

Narayan Prasad Singh v. The State Of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Manoj Kumar Vs The State of Bihar

Sanjula Kumari Vs The State Of Bihar and Ors.

Mostt. Munni Verma Vs The State Of Bihar and Ors.

Ravi Shankar Ravi Vs The State of Bihar

Anil Kumar Singh Vs The State Of Bihar and Ors.

Rita Kumari Vs The State Of Bihar and Ors.