Important Notice regarding selection process of office attendant/attendant(Special) was issued on March 31, 2023 in compliance with Patna High Court's order dated December 18, 2019. Important notice
regarding selection process of office attendant/attendant(Special) for
all district collectorates was issued on April 10, 2023 in compliance of
Patna High Court's order dated December 18,
2019. Similar notices were issued on January 15, 2024, January 22, 2024,
August 7, 2024, August 30, 2024, September 9, 2024 and October 9, 2024. It is apparent that High Court's order set right a long standing illegal selection process.
The High Court had directed "the respondents, particularly, the Additional Chief Secretary/ Principal Secretary, General Administration Department, Government of Bihar, Commissioner, Magadh Division, Gaya and the District Magistrate, Gaya to ensure that the process of selection through the advertisement in question is completed by adopting a fair procedure." Notably, General Administration Department, is under the Chief Minister of Bihar. The judgement was delivered on December 18, 2019. It was authored by Justice Chakradhari Sharan Singh. Justice Singh is currently the Chief Justice of Orissa High Court.
The petitioners had approached Patna High Court to allege that the criteria laid down in the advertisement was not followed in preparing the provisional panel list of candidates for appointment against Class-IV posts in Gaya Collectorate under the signature of the Divisional Commissioner, Magadh Division, Gaya and other members of the Selection Committee constituted for the purpose. The petition was against nine respondents, namely, 1) the State of Bihar, 2) Principal Secretary, General Administrative Department, Government of Bihar, 3) Commissioner, Gaya, 4) Collector, Gaya cum Chairman, Selection Committee Group, Gaya, 5) Additional Collector, Gaya, 6) District Development Commissioner, Gaya, 7) District Welfare Officer, Gaya, 8) Additional Collector Establishment, Gaya and 9) Deputy Collector Establishment, Gaya.
Justice Chakradhari Sharan Singh of the High Court has recorded in his judgement in Kapil Kumar vs. the State of Bihar & Others that the affidavit filed on behalf of respondents no. 4 to 6 revealed that no process of selection of any nature was adopted. Besides Kapil Kumar, the other petitioners were: Hardeo Prasad, Raj Kishore Prasad, Ramjivan Prasad, Mahendra Prasad, Raju Thakur and Md. Ishteyak. Similar petitions were tagged with it. In Shambhu Prasad vs. the State of Bihar, the other petitioners were: Ajay Kumar, Dhanwanti Kumari and Surendra Kumar Sinha. In Aftab Hussain vs. the State of Bihar, the other petitioners were: Ravindra Kumar, Md. Shamim and Satish Kumar.
The Court observed that there was nothing in the submission of
the State to suggest that the persons were engaged on daily wage basis
after following any fair procedure by giving equal and fair opportunity
to others, equally willing to serve as daily wage employees, more in
need of employment/ engagement. The Court noted that such engagements,
"are more often back door" and "the very process of selection as adopted
by the respondents through the advertisement in question to be wholly
illegal, arbitrary and patently in breach of Articles 14 and 16 of the
Constitution of India." It added, "no process of selection has at all been adopted which can be said to be fair and impartial, through written examination or interview or some other rational criteria for judging inter se merit of the candidates."
The Court has recorded in its judgement that "in response to a query made by this Court as to whether any selection process has been undertaken for filling up the said posts from open market giving unemployed youths an opportunity to participate in last few decades, nothing positive has been shown." The query was made in the context of a system having emerged for filling up Class-IV posts in the collectorates on the basis of panel of daily wage workers under the collectorate in the State of Bihar.
The Court found that "Here is a case where the advertisement does not disclose the number of vacancies/ posts in question and it has just been issued to prepare a panel for filling up the posts. Such exercise renders the statutory rules framed for appointment against such posts under proviso to Article 309 of the Constitution, meaningless. The Court relied on Supreme Court's decision in Renu and others vs. District and Sessions Judge, Tis Hazari Courts, Delhi and another reported in (2014)14 SCC 50, to stress the need of disclosing the number of posts available for selection and recruitment.
The Court observed: "The respondents are obliged to follow a fair process of selection in accordance with the statutory rules and constitutional mandate. It is noteworthy that though the rules have been framed for selection and appointment against Class-IV (Group-D) posts, no clear and definite process of selection has been laid down, therein. If no transparent, fair and impartial procedure is adopted for judging the inter se merit of the candidates, who have applied in response to the advertisement made, the eligible candidates cannot get a fair chance to compete, which would be violative of the guarantee enshrined under Article 16 of the Constitution", as held in case of UPSC vs. Girish Jayanti Lal Vaghela reported in (2006)2 SCC 482.
It recollected the Supreme Court’s decision in case of M.P. State Coop. Bank Ltd. vs. Nanuram Yadav reported in (2007) 8 SCC 264 wherein the principles to be adopted in the matter of public appointments has been laid down. The principles enunciated in case of M.P. State Coop. Bank Ltd. which have been taken note of with approval by the Supreme Court in case of Renu are as under:
“(1) The appointments made without following the appropriate procedure under the rules/ government circulars and without advertisement or inviting applications from the open market would amount to breach of Articles 14 and 16 of the Constitution of India.
(2) Regularisation cannot be a mode of appointment.
(3) An appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation.
(4) Those who come by back door should go through that door.
(5) No regularisation is permissible in exercise of the statutory power conferred under Article 162 of the Constitution of India if the appointments have been made in contravention of the statutory rules.
(6) The court should not exercise its jurisdiction on misplaced sympathy.
(7) If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.
(8) When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside.”
In Renu case, the Supreme Court had the occasion to consider power of appointment granted to the Chief Justice of a High Court under Article 229(1) of the Constitution and in no uncertain terms has held that even the said power granted to the Chief Justice is subject to Article 16(1) which guarantees equality of opportunity to all citizens in matters relating to employment. The expression ‘opportunity’ has been explained in case of Renu (supra) as ‘a chance of employment’ and held that what is guaranteed under Article 16(1) is this opportunity of employment ‘equally available to all’. The observations made in case of Renu (supra) in paragraph 27 are significant and is a reminder for all authorities exercising their power and jurisdiction to make appointment against a public post. The Court made the following observations:
“27. To say that the Chief Justice can appoint a person without following the procedure provided under Articles 14 and 16 would lead to an indefinite conclusion that the Chief Justice can dismiss him also without holding any inquiry or following the principles of natural justice/ Rules, etc. for as per Section 16 of the General Clauses Act, 1897, power to appoint includes power to remove/ suspend/ dismiss. (Vide Pradyat Kumar Bose v. High Court of Calcutta and Chief Justice of A.P. vs. L.V.A. Dixitulu) But as no employee can be removed without following the procedure prescribed by law or in violation of the terms of his appointment, such a course would not be available to the Chief Justice. Therefore, the natural corollary of this is that the Chief Justice cannot make any appointment in contravention of the statutory rules, which have to be in consonance with the scheme of our Constitution.”
In Ramana Dayaram Shetty vs. International Airport Authority of India and others reported in (1979) 3 SCC 489, the Supreme Court remarked that every action of the executive Government must be informed with reason and should be free from arbitrariness which is the very essence of Rule of Law and bare minimal requirement. The Court noted with approval the observation of Kerala High Court in case of V. Punnan Thomas vs. State of Kerala, reported in AIR 1969 Ker 81: “The Government, is not and should not be as free as an individual in selecting the recipients for its largesse. Whatever its activity, the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal."
In Kasturi Lal Lakshmi Reddy vs. State of Jammu & Kashmir & Anr. reported in (1980) 4 SCC 1, the Court has held that interaction of Articles 14, 16 and 19 shows that the requirement of reasonableness runs like a golden thread through the entire fabric of fundamental rights and where any Government action, whether it be under the authority of law or in exercise of executive power without making law, fails to satisfy the test of reasonableness in public interest, it would be liable to be struck down as invalid.
In Secy. State of Karnataka vs. Uma Devi(3), the Supreme Court has held that it is an obligation cast on the State under Article 39(a) of the Constitution to ensure that all citizens ‘equally’ have the right to livelihood.
In I.R. Coelho vs. State of Tamil Nadu (2007) 2 SCC 1, the Court held that fundamental rights occupy a unique place in the lives of civilized society and has been described as “transcendentally” “inalienable” and “primordial”.
In Olga Tellis vs. Bombay Municipal Corporation reported in (1985) 3 SCC 545, the Court held that the right to livelihood is a fundamental right under Article 21 of Constitution of India.
Drawing on these decisions of the Supreme Court and the relevant provisions of the Constitution of India, Patna High Court has held that the advertisement to the extent that it allows preference under sub-clause (1)(2)(3)(4)(5) and (6) of Clause 7 of the advertisement which dealt with work experience of the aspirants has been "held to be illegal, violative of Articles 14 and 16 of the Constitution of India and are struck down accordingly." The terms of advertisement contemplated preparation of a panel of daily wage employees only by giving them first, second and third preference and those who did not have the opportunity to work as daily wage employee are to be placed at the bottom of the panel, whose merit will depend on respective dates of their birth. The appointments against Class-IV posts, in terms of the scheme, was to be made on the basis of such panel.
The Court's order reads: "In my opinion, holding of written examination of the candidates who have applied against the said advertisement would be a fair procedure for preparation of merit-list, in the absence of any provision in the Rules. This, in my opinion, would ensure transparency in the process of selection. Since the advertisement was issued more than six years ago, the respondents are directed to conclude the process of selection and appointment against such posts, which were available on the date of issuance of advertisement, within a period of three months from today. The respondents are further directed to ensure that a fair process of selection, strictly in accordance with statutory rules and in conformity with the mandate of Articles 14 and 16 of the Constitution is undertaken on regular basis, after advertising number of post, so that the persons acquiring eligibility after the initiation of one selection process have a chance to seek and participate in subsequent selection processes. This practice of fairness in the process of selection for filling up public posts generates faith in the hearts and minds of the citizen in the governance, laws and the Constitution."
The advertisement No. 01/2013 had referred to the Bihar Group-D (Recruitment and Service Condition) Rules, 2010 framed by the State of Bihar under the proviso to Article 309 of the Constitution of India. The Rules came into effect from the date of its publication in the official gazette on March 29, 2010.
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