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Ram Prakash Sharma v/s State of Bihar


Company & Directors' Information:- S C SHARMA AND CO PRIVATE LTD [Active] CIN = U74899DL1948PTC001507

Company & Directors' Information:- SHARMA INDIA PRIVATE LIMITED [Active] CIN = U74999UP2008PTC035620

Company & Directors' Information:- RAM PRAKASH AND CO PVT LTD [Active] CIN = U74899DL1952PTC002106

Company & Directors' Information:- K P SHARMA (INDIA) PVT LTD [Strike Off] CIN = U51109WB1988PTC045569

Company & Directors' Information:- SHARMA CORPORATION PRIVATE LIMITED [Active] CIN = U51909WB2017PTC220657

Company & Directors' Information:- P C SHARMA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U45201DL1981PTC012750

Company & Directors' Information:- J. R. SHARMA & COMPANY PRIVATE LIMITED [Strike Off] CIN = U24211DL1966PTC004602

Company & Directors' Information:- M K SHARMA AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74994DL1982PTC014090

Company & Directors' Information:- SHARMA AND SHARMA PRIVATE LIMITED [Active] CIN = U74900DL2015PTC276949

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    Letters Patent Appeal No. 1745 of 2018 & Civil Writ Jurisdiction Case No. 135 of 2015

    Decided On, 17 February 2020

    At, High Court of Judicature at Patna

    By, THE HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA & THE HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH

    For the Appearing Parties: Santosh Kumar Singh, Prashant Kashyap, Shashi Shekhar Tiwary, Advocates.



Judgment Text


Prabhat Kumar Singh, J.

1. Heard Mr. Ashok Kumar Sinha, learned Senior counsel for the appellant as well as Mr. Shashi Shekhar Tiwary, learned Assistant counsel to AAG 15 for the State.

2. Instant Letters Patent Appeal is directed against the judgment dated 20.11.2018, passed in C.W.J.C.No. 135 of 2015, by which the learned Single Judge has dismissed the writ petition.

3. Writ petition had been filed for issuance of writ of mandamus commanding the respondents to appoint the petitioner on the post of clerk against 25% posts of Clerk reserved for the 4th Grade in the Extremely Backward Category (EBC) which was still vacant. Writ petitioner had also prayed for a direction to the State officials to start selection process after ascertaining from their own level the numbers of vacant posts to be filled up from Class IV employees. During pendency of the writ petition, the petitioner superannuated on 31st August, 2018 from the post of Orderly peon, as such, Interlocutory Application No.8064 of 2018 was filed for making amendment in the relief portion of the main writ petition, which are as follows:-

(i) A mandamus commanding the respondent to appoint the petitioner by way of notional promotion on the post of Lower Division Clerk against 15% post to be filled up from the employees of Group D category with all monetary benefits and consequential reliefs.

(ii) For issuance of a writ of certiorari to quash the order as contained in memo no. 2874, Madhubani dated 10.9.2016 issued under the signature of District Programme Officer (Establishment), Madhubani and the District Education Officer, Madhubani, whereby as many as ten Orderly peons were appointed by way of promotion to the post of Lower Division Clerks in the pay band PB 1 5200-20200 Grade pay 1900 together with admissible allowances to the post from the date of their joining on the basis of the decisions taken in the meeting of District Promotion Committee dated 10.9.2016.

(iii) For any other relief to which the petitioner is found entitled to.

4. It was the case of the petitioner in the writ petition that pursuant to his appointment on the post of Orderly by an order dated 12.1.1978, issued by the Secretary of the then Managing Committee of the School in question, the petitioner joined on the aforesaid post on 16.1.1978. As per the petitioner, he was entitled for exemption from passing of the computer examination, his claim was not considered for promotion on the post of Lower Division Clerk (LDC) and ultimately, he superannuated from the post of Peon with effect from 31.8.2018. Petitioner's claim has been rejected by the State as well as the Writ Court on two grounds. Firstly, the appellant did not qualify the requisite test examination of computer operation and knowledge of computer typing held by the District Promotion Committee, Madhubani on 2.9.2016 at the District Computer Center Society, Madhubani. In the said examination, appellant had obtained 0.5 marks out of 30 marks in the computer operation and 0 mark out of 20 marks in the computer typing and thus total 0.5 marks out of 50 marks. Secondly, he was not fulfilling the requisite qualification/criteria of having proficiency in Computer test and knowledge of Computer typing.

5. Learned counsel for the appellant, while assailing the impugned judgment, has advanced three fold submissions. Firstly, the writ court has failed to take note of the State Government's amendments vide Notification No. 14227 dated 29.2013 & Notification No. 6561 dated 20.5.2014, made in the Bihar Collectorate, Clerk Cadre (Recruitment & Service Conditions) Rules, 2011, by which the petitioner, whose name was appearing at Serial No.3 in the seniority list, was required to be appointed by way of promotion on the post of LDC without taking examination as per amended Rules (2014 of 2011 Rules). Secondly, the exercise of conducting examination dated 2.9.2016 in which the petitioner was declared unsuccessful, was illegal and in contravention of the amended Sub-Rule (1) of Rule 5 of the Rule, 2011 of the Notification No. 6561 dated 20.5.2014, wherein the substituted provision clearly provided that such promotion would be given on the basis of seniority order without examination. Lastly, the impugned order as contained in Memo No. 2874 dated 10.9.2016, by which 10 Group D employees were promoted as LDC, is in the teeth of the amended Sub-Rule (1) of Rule 5 of the Rule, 2011 of the Notification No. 6561 dated 20.5.2014 as being arbitrary and unconstitutional as most of them are juniors to the petitioner. The appellant has also claimed that he possesses the requisite qualification/criteria prescribed under the aforesaid Rules, 2011. In this regard, he refers to Annexure 14 to the Interlocutory Application No.8064 of 2018, which is a letter of the In-charge Headmaster of NRS High School Sarauti, Madhubani (respondent no.6), where the petitioner was working as Orderly (Class IV employee). By the said letter, respondent no.6 had forwarded appellant's claim in the prescribed format to the District Programme Officer (Establishment), Madhubani.

6. Learned counsel for the appellant further submits that having once participated in the selection process, the appellant does not loose the right to challenge the same and in support of this contention, he relies on the decision of the Hon'ble Apex Court in the case of Dr.(Major) Meeta Sahai Vs. State of Bihar & ors,2020 1 SC 237, paras 16, 17 & 18). He submits that since the appellant has already superannuated, he is merely praying for notional promotion and in such circumstance, he is not required to implead successful candidates who have been promoted pursuant to the test examination dated 2.9.2016 held at the District Computer Center Society, Madhubani, which was not passed by the appellant. Reliance is placed on the decision of the Division Bench of this Court in the case of the State of Bihar and ors Vs. Dr.ShafiqueAzam, (2016) 2 PLJR 276 .

7. On the other hand, learned counsel for the State submits that the appellant is not entitled for promotion to the post of clerk against 25% posts of clerks reserved for such promotion from the 4th Grade in the Extremely Backward Category because he failed in the test which was conducted by the District Promotion Committee, Madhubani for granting promotion on Class III posts. Secondly, on basis of bald reference to the letter written by the In-charge Headmaster of NRS High School Sarauti, Madhubani (respondent no.6) to the District Programme Officer (Establishment), Madhubani, claim of the appellant that he possess requisite qualification, cannot be accepted as the appellant never put his case before the authority raising this point. It is further contended on behalf of the State that once a candidate participates in the selection process and is declared disqualified, he cannot later challenge the selection process. Law is well settled in this regard and in support of the submission, learned counsel for the State relies on the decision in the case of Manish Kumar Shahi Vs. State of Bihar, (2010) 12 SCC 576 , wherein it has been held by the Hon'ble Apex Court that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it.

8. Having heard learned counsel for the parties and on going through the materials available on the record, I am of the view that the learned Single Judge has rightly dismissed the writ petition. Even if, contention of the appellant is accepted that his case ought to have been considered by the Department in the light of 2014 amendments in the Bihar Collectorate, Clerk Cadre (Recruitment & Service Conditions) Rules, 2011, appellant has got no case. Appellant has not claimed himself to have requisite qualification in the earlier occasion and for the first time he is taking this plea in the writ court merely on the strength of so called letter of the In-charge Headmaster of NRS High School Sarauti, Madhubani (respondent no.6) sent to the District Education Officer along with application of the appellant. I also agree with the submission of the State that having once participated without protest in the selection process and after being declared disqualified, the appellant cannot challenge the selection process itself. Law is well settled in this regard that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it. In this connection, it is apt to refer to the principle stated in the case of Om Prakash Shukla Vs. Akhilelsh Kumar Shukla and others, (1986) Supp1 SCC 285 in which the three judges bench of the Hon'ble Apex Court, taking note of the fact that the petitioner in the writ petition had appeared for the examination without protest and filed the petition only after he realized that he would not succeed in the examination, held that the writ petitioner should not have been granted any relief by the High Court. Same view has been held in Union of India & Ors. v. S. Vinod Kumar & Ors., (2008) AIR SC 5 , the Court reiterated the principle that it is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. Reference can also be made to the decision of the Hon'ble Apex Court in the case of Ranjan Kuamr etc Vs. State of Bihar and other, (2014) 3 PLJR 128 . So far as the decision of Dr (Major) Meeta Sahai (supra), relied upon by the appellant is concerned, the same is of no help. In fact, in paragraph 18 of the said judgment itself it has been held that as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In the case in hand the appellant has not raised any illegality in the selection process rather he has challenged the very initiation of selection process itself.

9. Further, the writ petition suffers from one more defect which was that of non-joinder of necessary parties. Those who have been promoted (pursuant to the requisite test examination of computer operation and knowledge of computer typing held by the District Promotion Committee on 2.9.2016 at the District Computer Center Society, Madhubani), have not made parties. Not even by joining some of them in a representative capacity. In the instant case, the appellant has not impleaded the successful candidates who were promoted, as such, in their absence appellant's claim cannot be considered. It is well settled law that no adverse order can be passed against persons who were not parties to the litigation. Thus, when all the appointees are not impleaded, the writ petition shall be treated to be defective and hence, no relief can be granted to the writ petitioner. In this connection, it is pertinent to refer to the decision of Indu Shekhar Singh and others v. State of U.P. and others, (2006) 8 SCC 129 in which the Court has held that there is another aspect of the matter. "The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority." In the case of Km. Rashmi Mishra Vs. M.P. Public Service Commission and others, (2006) 12 SCC 724 , after referring to Prabodh Verma and ors Vs State of Uttar Pradesh and others, (1984) 4 SCC 251 and Indu Shekhar Singh (supra), the Court took note of the fact that when no steps had been taken in terms of Order 1 Rule 8 of the Code of Civil Procedure or the principles analogous thereto all the seventeen se lected candidates were necessary parties in the writ petition. It was further observed that the number of selected candidates was not many and there was no difficulty for the appellant to implead them as parties in the proceeding. Ultimately, the Court held that when all the selected candidates were not impleaded as parties to the writ petition, no relief could be granted to the appellant therein. In Tridip Kumar Dingal and others v. State of West Bengal and others, (2009) 1 SCC 768 , the Court approved the view expressed by the tribunal which had opined that for absence of selected and appointed candidates and without affording an opportunity of hearing to them, the selection could not be set aside. In Public Service Commission, Uttaranchal Vs. Mamta Bisht and others, (2010) 3 PLJR 100 (SC), the Court, while dealing with the concept of necessary parties and the effect of non-implementation of such a party in the matter when the selection process is assailed, observed as "...in Udit Narain Singh Malpaharia v. Board of Revenue, (1963) AIR SC 786 , wherein the Court has explained the distinction between necessary party, proper party and pro forma party and further held that if a person who is likely to suffer from the order of the court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called 'Code of Civil Procedure') provides th

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at non- joinder of necessary party be fatal. Undoubtedly, provisions of Code of Civil Procedure are not applicable in writ jurisdiction by virtue of the provision of Section 141 Code of Civil Procedure but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat, (1965) AIR SC 1153 , Babubhai Muljibhai Patel v. Nandlal Khodidas Barot, (1974) 2 SCC 706 and Sarguja Transport Service v. State, (1987) 1 SCC 5 ." 10. The next submission, which has been made by learned counsel for the appellant, is that the appellant has not been granted exemption. In this regard, the learned Single Judge has rightly noted that the appellant never applied for exemption and, the requirement for exemption is for the person to apply for the same and that too it shall be effective only from the date on which the application was made, if at all the Competent Authority accepts such proposal and grants exemption, but not otherwise. In the case in hand, as the appellant never applied for exemption, question of granting exemption from the aforesaid test does not arise. 11. In the facts and circumstances of the case and taking into account the law laid down by the Hon'ble Apex Court in different cases as discussed above, I do not find any infirmity in the judgment of the writ court, as such, the instant appeal, being devoid of merit, is accordingly dismissed. Hemant Kumar Srivastava, J. I agree.
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