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CASE NO.: Appeal (civil)  2298-2299 of 2005

PETITIONER: Binod Kumar Gupta & Ors.

RESPONDENT: Ram Ashray Mahoto & Ors.

DATE OF JUDGMENT: 31/03/2005

BENCH: Ruma Pal & C.K. Thakker

JUDGMENT: J U D G M E N T

(Arising out of SLP(C ) Nos.  20781-20782 of 2001)

RUMA PAL, J.

        Leave granted.

The 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. Learned 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:-

73.     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.

77.     Vacancies occurring at any  station shall ordinarily be filled up  by appointment of enrolled  candidates attached to that  station.

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Note:-  The appointment of peons lies  with the District Judge.  

The 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.  According 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 and Collectorate.   This 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.  The 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. It is 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.  The 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  staff. The 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 them.   The Nazir’s note that there were no pending applications was  incorrect. At that time a selection Committee was constituted.  However, 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.   The 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  Ors. Vs. State of Bihar & Ors. 1994 (2) PLJR 427, and  Mohammad Sohrab and Ors. Vs. High Court of Judicature  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.  This 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

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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.   The 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.            In our 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.                  Indeed, 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.                   The "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

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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.   If we 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. We, therefore, dismiss the appeals but without costs.