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2023 Supreme(Pat) 361
IN THE HIGH COURT OF JUDICATURE AT PATNA
P. B. BAJANTHRI and ARUN KUMAR JHA, JJ.
LPA Nos. 650, 657, 661 of 2022 in CWJC No.6259 of 2019; 21219 of 2018
(19.4.2023)
Prince & Ors. (in 650)
Prashant Kumar & Ors. (in 657)
Dheeraj Kumar & Ors. (in 661) ... Appellants
vs.
State of Bihar & Ors. ... Respondents
(in all)
For the Appellants : M/s Kumar Kaushik (in 650); Rajendra Narayan, Sr. Adv., Puneet Siddhartha, Riffat Fatima, Adarsh Raj Singh, Aryan Sinha (in 657); Saroj Kumar (in 661)
For the High Court : Mr. Sanjeev Kumar (in both).
For the Respondents: Mr. Abhishek Singh, AC to Ga 7 (in both).
For the Resp. No.40 : Mr.Pratyesh Kumar, Vivek Kr. Sinha (in 661).
Headnote:
Bihar Civil Court Staff (Class III and Class IV) Rules, 2009 – Rule 7 – Appointment on post of Clerk – Wait List or Panel shall remain valid for a period of two years and existing vacancies so also anticipated vacancies occurring within said period may be filled up among candidates in set manner in order of merit – Statutory rule will prevail over executive instruction/decision – Opinion expressed by committee is to be upheld in such an event proper course for concerned competent authority is to take appropriate steps to amend Sub-rule 12, 13 and 14 of Rule 7 of Rules, 2009 – In 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 – Single Judge has committed error in dismissing writ petitions filed by appellants – Order of Single set aside – Concerned selecting/appointing authority directed to consider each of petitioners name for the purpose of appointment to post of Clerk against unfilled vacancies and anticipated vacancies during relevant period of two years and necessary order of appointment shall be issued to each of eligible petitioner within a period of three months from date of receipt of this order – If any of candidates is not suitable or eligible in that event necessary speaking order shall be passed and communicated to such petitioner/s. (Paras 17, 19 and 20)
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. 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 C
