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Omkar Prasad Singh v/s State of Bihar

    Civil Writ Jurisdiction Case 3061 Of 2000

    Decided On, 07 October 2005

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE RAMNANDAN PRASAD

    For the Appearing Parties: Naresh Dixit, Surendra Mishra, Alamdar Hussain, Narendra Kumar, Mukteshwar Singh, Advocates.



Judgment Text

RAMNANDAN PRASAD, J.

(1.) The petitioner has approached this Court for issuance of a writ in the nature of mandamus directing the respondents to consider the case of the petitioner for appointment on the post of Sergeant pursuant to Advertisement No. 11/82.

(2.) Advertisement No. 11/82 was published by the Subordinate Selection Board, hereinafter referred to as the Board, in the daily newspaper Pradeep dated 6th of February 1982 inviting applications for appointment on the post of Sub-Inspector of Police/Sergeant and equivalent post. The petitioner filed application for appointment on the post of Sergeant. He appeared in the physical test and his name was included in the list, of successful candidates. Admit card containing Roll No. 91/1708 was issued to the petitioner to appear in the written test. He appeared in the written test under the supervision of the Board. The result of the successful candidates was published in the year 1984, his roll number was not shown in the list of successful candidates. On 2.7.1985 another list of successful candidates was published for appointment on the post of Sub-Inspector of Police/Sergeant and e

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quivalent post but his name was not mentioned in the list. The petitioner obtained cross list and found that he had secured 167 marks. He applied for individual marks-sheet which was supplied and he came to know that he had been provided with marks as shown in the cross list excluding that of Hindi in which he had secured minimum qualifying marks of 30, Annexure-3. From inquiry he learnt that the candidates securing lower marks than the petitioner, namely, Pandey Ajay Kumar and Surya Kumar Singh, who secured 165 and 1'66 marks respectively, have been offered appointment to the post of Sergeant pursuant to the order of the Court in C.W.J.C. No. 8186/89 and C.W.J.C. No. 580/87. The petitioner filed representation before respondent No. 3 but nothing was done. One Binod Kumar filed writ petition bearing C.W.J.C. 8461/93, which was disposed of on 20.12.1993 with a direction to appoint him and he was appointed. Similarly, Bimlendu Kumar Yadav filed C.W.J.C. No. 9124/89 and he was appointed. One Krishna Kumar Srivastava along with four others filed C.W.J.C. No. 6551/92 which was disposed of directing to consider their claim for appointment and if the authorities refuse the claim then they would have to communicate the reason to the petitioners. The petitioner also filed representation before respondent No. 3 on 18.2.2000 but nothing was done. Thus, he had approached this Court for issue of direction as indicated above.

(3.) A counter affidavit has been filed on behalf of respondent No. 1. The affidavit was sworn by the Deputy Secretary, Home (Police) Department wherein statement has been made that all vacancies against Advertisement No. 11 of 1982 have been filed up on the basis of recommendation of the Board. There is no vacancy against the aforesaid advertisement C.W.J.C. No. 1178/92 was filed seeking relief for appointment which was heard along with C.W.J.C. Nos. 1272/92, 13296/93 and 395/95 and disposed of on 10.8.2000 stating therein that the Court refrains to pass any specific order in favour of one or other petitioner as 18 years have passed after advertisement and about 15 to 16 years have passed after publication of list of successful candidates. However, in the interest of justice remitted the matter to the respondents with liberty to petitioner to file individual application before the Secretary, Home (Police) Department. If it is found that no post as advertised pursuant to the advertisement No. 11/82 is vacant the authority will reject the claim for appointment. In compliance of the said order representations filed have been rejected as no vacancy was available against the said advertisement. Subsequently advertisement No. 4/85 was published by the Bihar State Subordinate Services Selection Board. However, one C.W.J.C. No. 3280/91 was filed which was disposed of on 5.1.1993. The Court disposed of the said writ petition stating that on the facts and circumstances of the present case and after considering all the contentions raised in this matter the Court is of the view that for all such vacancies which are to be filled up by a fresh advertisement and not from the panel prepared five or six years ago C.W.J.C. No. 7473/2000 was filed for appointment against advertisement No. 4/85 which was dismissed on 16.8.2000 stating that it is evident that advertisement No. 4/85 was issued in the year 1985 and fresh panel was prepared in 1998. Subsequently pursuant to the order passed by this Court in C.W.J.C. No. 3104/86 the list of next successful candidates was published on 26.3.1991. In the circumstances the panel having lost its force, the Court was not inclined to direct the appointment to be made from the dead panel. C.W.J.C. No. 13744/ 2003 was filed for appointment against the advertisement No. 4/85 which was also dismissed. In nutshell the stand in the counter affidavit is that there is no vacancy against the advertisement No. 11/82 and as such no relief can be granted to the petitioner.

(4.) A counter affidavit has also been filed on behalf of respondent No. 3, the Bihar Public Service Commission, wherein it has been stated that the advertisement No. 11/82 was published by the then Bihar State Subordinate Services Selection Board and the Board recommended the names in the month of August 1985 i.e. about 15 years back. Thereafter advertisement No. 4/85 was published and, as such, the petitioner is not entitled to any relief. In the year 1992 the Board was abolished and left over works were handed over to the Bihar Public Service Commission. The records of the then Board were kept in topsy- turvy condition and not handed over to the Commission in proper order. No authentic record is available with the Commission, only few documents, some photo copies of the originals are available. From those records it is not clear as to whether the petitioner was ever selected for the post of Sergeant in physical fitness nor he produced any document. The name of the petitioner does not appear in the list of successful candidates i.e. the recommendations vide letter No. 535 dated 17.7.1985 and letter No. 598 dated 3.8.1985, Annexures C/1 and C/2 respectively. The petitioner filed a reply to the counter affidavit wherein stand in the counter affidavit has been denied.

(5.) The submission of the learned counsel for the petitioner is that the persons having less marks than the petitioner have been appointed and, as such, the petitioner is entitled to the relief as prayed for. On the other hand, the submission of the counsel for the respondent Nos. 1 and 2 is that all the vacancies against Advertisement No. 11/82 have been filled up and no vacancy is available against the said advertisement. The name of the petitioner is not available in the recommended list of the Board.

(6.) On consideration of the submissions made by the counsel for the petitioner and the materials available on the record, this much is obvious that the petitioner's claim is that the persons securing less marks than the petitioner have been appointed, the names of the persons have been mentioned in the writ petition, but it appears that those persons were appointed by virtue of the order of the Court. The claim of the respondents is that all the vacancies pursuant to the Advertisement No. 11/82 have been filled up. No vacancy is available against the said advertisement In the counter-affidavit a number of writ petitions has been mentioned to show that in similar situation the claim of the appointment has been negatived by the Court. Similarly, the stand of respondent No. 3 is that it is a stale matter and the name of the petitioner does not appear in the recommendation made by the Board.

(7.) In the background as indicated above, even if the claim of the petitioner is accepted, the question will arise whether the petitioner is entitled to any relief. In this regard it would not be out of place to mention herein that the writ petition has been filed in the year 2000 i.e. after 18 years of the advertisement No. 11/82 and after 15 years of the publication of the result that too without any explanation of such delay in the writ petition except that he filed representation, Annexurer 4 in the year 1986 and Annexure-8 in the year 2000. These representations, as indicated above, in my opinion do not reasonably explain the delay in filing the writ petition by the petitioner, and as such the claim of the writ petition can safely be said to be belated and no relief can be granted.

(8.) In the case of Rabindra Nath Bose and Ors. v. Union of India and Ors. , the Apex Court was considering the seniority list effected on 1.8.1953 as a result of change in 1952 Seniority Rules. The change in the Seniority list prepared on 1.8,1953 was challenged after 15 years stating that representations were being filed. The Apex Court held that representation was not sufficient to explain the delay. There must be limit to the time which can be considered reasonable in making representation and, as such held that the petition filed after 15 years is not maintainable.

(9.) In the case of Ashok Kumar Mishra and Anr. v. Collector Raipur and Ors. similar question of delay had cropped up. The Apex Court held that the power of High Court under Article 226 of the Constitution of India to issue an appropriate writ is discretionary and if the High Court finds that there is no satisfactory explanation for inordinate delay it may reject the petition if it finds that issue of writ would be in public inconvenience and interference with the right of others.

(10.) In the case of State of M.P. and Ors. v. Nandlal Jaiswal and Ors. similar question of filing of belated writ petition had cropped up. The Apex Court in the circumstance, held that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution of India is discretionary and the High Court in exercise of discretion does not ordinarily assist the tardy and the indolent or lethargic person. If there is inordinate delay on the part of the writ petitioner in filing the writ petition and if such delay is not satisfactorily explained, the High Court may decline to grant relief in exercise of its writ jurisdiction. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices.

(11.) Similar question was involved in the case of Tarkeshwar Singh and Ors. v. The State of Bihar and Ors. 1987 BLJR 792, before a Division Bench in which the writ petition was filed after nine years of the passing of the impugned order though representations were filed, Division Bench held that the claim of the petitioner is stale and no writ can be issued on the ground of inordinate delay.

(12.) In the instant case the writ petition was filed after 18 years of the advertisement and more than 15 years after recommendation of the names for appointment. In the writ petition delay has not been explained except filing of the representations that too one in the year 1986 and another in the year 2000, which cannot be taken as reasonable explanation of delay and it can safely be said to be belated one.

(13.) Thus, on consideration discussed above and the law laid down by the Apex Court as indicated above, I do not find any reason to grant any relief to the petitioner. Accordingly, the writ petition is dismissed but without any cost
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