Kumar Gupta & Ors Vs. Ram Ashray Mahoto & Ors  Insc 209 (31 March 2005)
Pal & C.K. Thakker
out of SLP(C ) Nos. 20781-20782 of 2001) RUMA PAL, J.
appellants' claim that they had been validly appointed as Class IV Civil Court employees in the District of Sitamarhi
has, by the impugned order, been negatived for the second time by the High
Court at Patna. The appellants' appointments were
challenged under Article 226 of the Constitution by four temporary Class-IV
employees, who had been continuing in such appointment since 1985. The High
Court allowed the writ petitions. The appellants appealed to this Court when by
an order dated 1st
February, 2001 this
Court remanded the matter to the High Court on the ground that the High Court
had failed to consider the several contentions raised by the parties in the
writ petitions. This time again, the High Court has set aside the appointment
of the appellants on the ground that the appellants had been appointed in
violation of the existing norms and rules.
counsel appearing on behalf of the appellants has submitted that the relevant
procedure which had been followed in the appellants' case had been laid down in
Rules 73 and 77 of the Civil Court Rules of the High Court of Judicature at Patna,
Volume-I. These Rules which were operative at the relevant time provided:-
The Nazir shall keep a register of candidates for filling up leave and
permanent vacancies. These candidates will be enrolled under order of the Judge
in-charge or Nazarat and their number shall not exceed 15 per cent of the total
strength of permanent peons employed at any station.
Vacancies occurring at any station shall ordinarily be filled up by appointment
of enrolled candidates attached to that station.
Note:- The appointment of peons lies with
the District Judge.
appellants have also relied upon a note prepared on 7th June, 1990 by the Nazir
addressed to the Judge in-charge (Administration) in which it noted that the
respondents 1 to 4 in the present appeal had been continuing on temporary posts
for more than five years without break in the service and that the Government
had been approached for creation of 12 additional posts including the four
posts held by the respondents 1 to 4.
to the appellant, these 12 posts were distinct from the vacant posts which
already existed. The Nazir's Note said that there was no list of candidates
pending under Rule 73 of the Civil Court Rules and so the Nazir recommended
that applications could be invited for preparing a list of candidates under the
judgeship for the IVth Grade employees. The Nazir also said that there was no
need for advertisement in the newspapers and that applications could be invited
by putting up notices in the Civil Court
procedure, the appellants say, had been accepted by the judge in-charge, who
recommended the preparation of the list of candidates of IVth Grade employees
to the District Judge.
appellants say that notices were duly put up on the notice boards pursuant to
which they applied for appointments. Initially fourteen names were
"empanelled" under Rule 73. A note of the Judge in-charge was
forwarded by the District Judge to the inspecting Judge of the High Court for
approval of the list of 14 candidates. The 14 candidates are the first 14
appellants in these appeals.
not necessary to go into the further correspondence exchanged in this context
except to note that an order dated 7th November, 1990 of the District and
Sessions Judge, Sitamarhi was passed stating that the appointments of the
appellants 1 to 14 was purely temporary and that their services could be
terminated any time without any notice.
names of the appellants 15 to 27 were recommended to the Judge in-charge by the
Nazir Civil Court Sitamarhi on 21st November,1990. The Judge in-charge forwarded the list to the District Judge, who in
turn submitted a report before the Inspecting Judge on 23rd November, 1990. On 7th December, 1990 these appellants were appointed as temporary Class-IV
respondents 1 to 4 say that the vacancies which existed in 1986 in the posts of
IVth Grade employees in the Sitamarhi Judgeship had been applied for by some of
note that there were no pending applications was incorrect. At that time a
selection Committee was constituted.
no selections were made. The then District Judge, one A.P. Srivastava (the
respondent No.6 in these appeals), appointed the appellants without holding any
interviews and without consulting the members of the Selection Committee.
High Court allowed the respondents' writ applications and held that Rules 73 to
77 of the Civil Court Rules had been struck down as constitutionally invalid by
a Division Bench of the Patna High Court in the cases of Mohammad Saghir and at
Patna (unreported Judgment dated
12.7.1995 in CWJC No.5202/1991). Therefore the appointments of the appellants
in purported compliance with Rules 73 and 77 were invalid.
contention had been upheld by the High Court in the previous round of
litigation. When the matter came up before this Court the appellants had
contended that the respondents 1 to 4 had not challenged the Rules in their
writ petitions and that even without reference to the Rules the appointments of
the appellants were valid. This Court had allowed the appeals to the extent
that it was held that the High Court should consider these grievances. It does
not appear that the High Court on remand has considered the first contention.
But the High Court did go into the second contention and held that even
otherwise it could not be said that the appellants had been validly appointed.
It was held that the members of the Selection Committee had not participated in
making the appointments. It was also held that the advertisements asking for
applications had been couched in language which should not have passed the
scrutiny of District Judge and did not inspire confidence.
third ground was that no interview of any kind had been held. It was,
therefore, concluded that the appointments were not made in a bonafide manner.
After setting aside the appointments, the High Court directed fresh
advertisements to be issued for filling up the Class-IV posts in the Judgeship.
It was made clear that the appellants could apply if they were otherwise
entitled and suitable and that their cases should not be rejected only on the
ground that they had crossed the age limit.
opinion the High Court's conclusion is unimpeachable. Rules 73 and 77, assuming
them to be constitutionally valid, do not prescribe the mode for the
empanelment of the candidates. In 1992, the High Court framed the Bihar Civil
Court Staff (Class-III and Class-IV) Rules, 1992. Rule 7 prescribes
advertisements in two daily newspapers in addition to notices on the notice
board of the District head quarters as well as the Sub-Divisional Head-
quarters. It may be that the Rules had no application in 1990 when the
appellants were sought to be appointed. Nevertheless as early as in 1984, the
High Court had issued a directive on its administrative side in which it was
stated that for appointment to Class-IV staff in the Civil Courts, it would not
be necessary to advertise the vacancies in the State level newspapers, but that
notices should be placed on the notice board of the respective Civil Court
premises and in the local daily newspaper of the District. This directive was
binding on the District Judge.. In view of the express instructions, it was not
open either to the Nazir, or the Judge in-charge or the District Judge or the
Inspecting Judge to have acted to the contrary in filling up the posts.
Admittedly, there was no advertisement issued in any newspaper at all.
Furthermore, as far as the second lot of appointees is concerned, there is no
evidence of the District Judge putting up any notice even on the notice board.
learned counsel appearing on behalf of the appellants conceded this position
but contended that since they had continued to serve for the last 15 years, a
selection could be held amongst the appellants 15 to 27.As far as the first 14
are concerned, it is submitted that they should be permitted to continue as
there had been an advertisement.
"advertisement" was no 'advertisement' as required by the High Court.
Without adequate notice no fair opportunity was given to others who might have
applied. Apart from this, it does not appear from the records that there was
any selection procedure followed at all. There is no explanation why the
Selection Committee had been by passed nor any acceptable reason why the
persons who had applied as far back as in 1986 were ignored. This singular lack
of transparency supports the finding of the High Court that the appointments
were not made bonafide. The District Judge, who was ultimately responsible for
the appointment of Class-IV staff violated all norms in making the
appointments. It is regrettable that the instructions of the High Court were
disregarded with impunity and a procedure evolved for appointment which cannot
be said to be in any way fair or above board. The submission of the appellants
that they had been validly appointed is in the circumstances unacceptable. Nor
can we accede to their prayer to continue in service. No doubt, at the time of
issuance of the notice on the special leave petition, this Court had restrained
the termination of services of the appellants. However, having regard to the
facts of the case as have emerged, we are of the opinion that this Court cannot
be called upon to sustain such an obvious disregard of the law and principles
of conduct according to which every judge and any one connected with the
judicial system are required to function.
allow the appellants to continue in service merely because they have been
working in the posts for the last 15 years we would be guilty of condoning a
gross irregularity in their initial appointment. The High Court has been more
than generous in allowing the appellants to participate in any fresh selection
procedure as may be held and in granting a relaxation of the age limit.
therefore, dismiss the appeals but without costs.