Non reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3457. OF 2010 [Arising out of SLP [C] No.13096/2009]

Surender Paswan & Ors. … Appellants

Vs.

State of Bihar & Ors. … Respondents

J U D G M E N T

R.V.RAVEENDRAN, J.

Leave granted.

2. This  matter  relates  to  the  appointment  of  Chowkidars  (village  

watchmen) in Madhepura District, Bihar. The appellants allege that in the  

pre-constitutional  set-up,  the  practice  in  Bihar  was  to  appoint  village  

Chowkidars for lifetime who used to work without any leave or retirement.  

During his illness or absence, any of his family members would assist him in  

performance of his duties; and when he died or became infirm, usually his  

family  member  nominated  by  him  would  take  over  the  functions  of  

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Chowkidar,  though  the  post  was  not  strictly  hereditary.  In  the  post-

constitutional  set-up,  there  was  a  gradual  change  in  the  village  

administration  and  several  lifetime  or  hereditary  or  semi-hereditary  

appointments gave way to regular public service with appointments based on  

equal opportunity. This Court in Yogender Pal Singh v. Union of India [1987  

(1) SCC 631] held that an opportunity to get into public service should be  

extended to all citizens equally; that any preference shown in the matter of  

public employment on the ground of descent alone was unconstitutional; and  

that any provision which conferred a preferential right to appointment  on  

the descendents  or other relatives of persons either in service or persons  

who retired from service, merely because they happened to be the children  

or  wards  of  such  employees,  would  be  contrary  to  Article  16  of  the  

Constitution.  

3. The  post  of  Chowkidar  was included in Class IV service of the  

State   Government  vide   proceedings   of   the  State  Government  

dated 20.3.1990.  On 3.10.1994,  an  advertisement  for appointment on the  

post   of   Chowkidars/Daffedars  was  published    as  per  the   order  of  

the    District  Magistrate,  Madhepura.  Selections  were  made  on 1.8.1995.  

On    14.8.1995,    the   selected   candidates   ( respondents   4   to   27   and  

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five others), were appointed as Chowkidars/Daffedars and sent for training  

in September, 1995.

4. When matters stood thus, on 20.12.1995, a Circular was issued by the  

State Government, after consideration of the pending demands of Bihar State  

Chowkidar/Daffedar  Association,  that  on  the  retirement  of  a  

Chowkidar/Daffedar after 10.1.1990, his legal heir who is his nominee, that  

is, widow, wife, son, brother, nephew or daughter’s son would be appointed  

in his post, as an exception to the general rule of recruitment. It was further  

provided  that  there  would  be  no  direct  appointment  of  Daffedar  but  

Chowkidars will be promoted to the post of Daffedar. It also provided that  

on the death of a Chowkidar, one of his legal heirs  will be appointed on  

compassionate grounds.

5. The  appellants,  claiming  to  be  the  family  members  of  erstwhile  

Chowkidars/Daffedars,  filed  CWJC  No.7374/1995,  challenging  the  

appointments of respondents  4 to 27,  contending that  they ought to have  

been appointed in view of the Circular dated 20.12.2005.   They claimed that  

as and when their predecessors in the family who were working as village  

Chowkidars ceased to function for whatsoever reason, they had stepped into  

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the  shoes  as  village  Chowkidars  between the  years  1990 and 1995.  The  

appellants  also  gave  a  representation  to  the  concerned  authorities  for  

redressal of their grievances. As a result, respondents 4 to 27 who had been  

appointed in pursuance of a selection process, were terminated from service  

on 21.1.1997 by cancelling their appointment, without giving them even an  

opportunity  to  show-cause.  Feeling  aggrieved,  respondents  4  to  27  filed  

CWJC No.1289 of 1997.

6. Both writ petitions, that is the writ petition filed by the appellants in  

1995  and  the  writ  petition  filed  by  respondents  4  to  27  in  1997  were  

disposed of by a common order dated 7.4.1997 quashing the order dated  

21.1.1997, holding that the cancellation of the appointment of respondents 4  

to 27 herein was illegal. As a consequence, the High Court also issued the  

following directions :  

“The Divisional Commissioner, Saharsa is directed to look in the  matter  afresh.  He  will  give  an  opportunity  of  hearing  to  the  appointees before he comes to any conclusion. He may also hear  the  petitioners  in  CWJC  No.7374/1995  through  their  representatives. If he comes to the conclusion that there was any  illegality or irregularity in making the impugned appointments, he  will  direct  the  District  Magistrate,  Madhepura  to  take  steps  for  fresh  appointment.  In  that  event  the  petitioners  of  CWJC  No.7374/95 will be given a chance of selection along with others  (without  giving  them  any  advantage  of  their  being  wards  of  erstwhile Dafadars/chaukidars) on merits. If on the other hand, the  Divisional  Commissioner  comes  to  the  conclusion  that  the  impugned appointment did not suffer from any infirmity, he shall  

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permit the petitioners of CWJC No.1289/1997 to continue on the  posts.”

The said judgment attained finality as the appellants did not challenge it.  

7. In pursuance of the directions issued by the High Court in the order  

dated 7.4.1997, the Divisional Commissioner, Kosi Division, Saharsa, after  

hearing the parties, made an order dated 22.12.1997 holding that there were  

several  irregularities  and  violations  of  rules  and  procedures  in  the  

appointment  of   respondents  4  to  27.  He directed  the  District  Collector,  

Madhepura,  to  consider  the  claims  of  appellants  separately  by  verifying  

whether each of them had the necessary qualification for appointment.  

8. The order dated 22.12.1997 was challenged by respondents 4 to 27 in  

CWJC No.767/1998.  The  High Court  allowed the  said  petition  by  order  

dated 17.9.1999 and set aside the order dated 22.12.1997 on the ground that  

it  did not  comply with the  order  dated 7.4.1997 in letter  and spirit.  The  

matter was remitted to the Divisional Commissioner to examine the issues  

and pass appropriate orders in terms of  the earlier order of the High Court  

dated  7.4.1997.  Thereafter  the  Divisional  Commissioner  directed  the  

Collector, Madhepura, to make fresh appointments as per the directions of  

the  High  Court.  However,  the  Collector,  Madhepura,  by  order  

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dated 31.5.2000 offered appointments to the nominees/legal heirs of retired  

Chowkidars  and  Daffedars  on  the  ground  that  they  were  eligible  as  per  

Circular  dated  20.12.1995.  Respondents  4  to  27  challenged  the  said  

appointments in CWJC No.16519/2001 which was disposed of by a learned  

Single Judge by order dated 16.10.2008. He was of the view that the only  

way to resolve the ongoing dispute was to decide the issue in terms of the  

directions  of  the  High  Court  on  7.4.1997.  He  therefore  quashed  the  

appointment of appellants vide order dated 31.5.2000. However considering  

the fact that Chowkidars were the link between the rural police and regular  

police, and as the said posts could not be kept vacant, the appellants who  

were working on those posts by virtue of the order dated 31.5.2000, were  

permitted  to  continue  for  a  period  of  three  months  and  thereafter  their  

appointment  should  stand  terminated  and  the  order  of  appointment  

dated 31.5.2000 shall stand quashed. The High Court further directed that  

the case of appellants and respondents 4 to 27 shall be considered strictly as  

per the directions contained in the order dated 7.4.1997. The Letters Patent  

Appeal filed by the appellants against the said decision was dismissed by a  

Division Bench by the impugned order dated 4.3.2009. The said order is  

challenged in this appeal by special leave.  

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9. The appellants submitted that they have been working in place of their  

predecessors for nearly two decades. They also submitted that having regard  

to  one-time  exception  as  a  transitional  measure,  made  by  Government  

Circular dated 20.12.1995 enabling the heirs/nominees of deceased/retired  

Chowkidars being appointed as Chowkidars, there was nothing irregular in  

their appointment as Chowkidars. Respondents 4 to 27 however submitted  

that the kinship rule having been abolished, the appointment of appellants as  

Chowkidars  on  31.5.2000  without  subjecting  them  to  any  competitive  

selection process, was wholly illegal. It was also submitted that the order  

dated 7.4.1997 having attained finality, the directions therein ought to have  

been followed.  

10. During  the  pendency  of  the  appeals  before  the  High  Court,  the  

Government  of  Bihar  exercising  power  under  Article  309  of  the  

Constitution,  made  the  Bihar  Chowkidar  Gradation  Rules,  2006  vide  

notification dated 25.8.2006. Rule 3 related to the constitution of cadre and  

Rule 5 related to the appointment procedure, laying down the constitution of  

the selection committee, the educational and other qualifications and other  

eligibility criteria for appointment.  

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11. The  order  of  the  High  Court  dated  7.4.1997  which  has  attained  

finality, contained the following directions to respondents 1 to 3 :  

(i) Decide  whether  there  was  any  illegality  or  irregularity  in  the  

appointments of respondents 4 to 27 on 14.8.1995.

(ii) If there were no irregularities in their appointments, respondents 4 to  

27 should be permitted to be continued on the posts.  

(iii) If  there  were  any  irregularities  in  their  appointment,  the  District  

Magistrate, Madhepura, should take fresh steps for appointment and  

in  that  event,  the  appellants  should  be  given  an  opportunity  to  

compete with others on merits (without giving them any advantage on  

account  of  their  being  legal  heirs/wards  of  erstwhile  

Chowkidars/Daffedars).  

12. In  view  of  the  order  dated  7.4.1997  having  attained  finality,  the  

appellants cannot claim any right to be appointed as legal heirs/nominees of  

erstwhile Chowkidars/Daffedars. Therefore, the question of either examining  

the  validity  of  the  Circular  dated  20.12.1995 or  considering  whether  the  

appointment of appellants was in terms of the said Circular, does not arise.  

13. In  compliance  with  the  order  dated  7.4.1997,  the  Divisional  

Commissioner,  Kosi,  considered  the  validity  of  the  appointment  of  

respondents 4 to 27 and by his order dated 22.12.1997 found that there were  

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several irregularities in their appointments made on 14.8.1995. But instead  

of thereafter following the direction of the High Court to have a fresh open  

selection,  he  directed  the  District  Collector  to  consider  the  cases  of  

appellants  individually  to  find  out  whether  they  were  eligible  for  

appointment. The second part of the direction was found to be against the  

order dated 7.4.1997, and therefore it was set aside on 17.9.1999. Therefore  

the question of permitting respondents 4 to 27 to resume and continue on the  

posts also does not arise.  

14. As a result, the only course remaining is to direct implementation of  

the last direction contained in the order dated 7.4.1997, that is, to have a  

fresh open selection process on merits. However, in view of the subsequent  

events,  certain  modifications  are  required  in  regard  to  the  authority  to  

conduct the fresh selections and in regard to age relaxation for appellants  

and respondents who were earlier appointed and whose appointments have  

been found to be invalid/irregular.  

15. We therefore dispose of this appeal with the following directions :

(i) The direction contained in the High Court’s order dated 7.4.1997 to  

hold fresh selection process for the posts of Chowkidars is reiterated.

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(ii) Having regard to the fact that the Bihar Chowkidar Gradation Rules,  

2006 have come into  force,  the selections  will  be done by the  Selection  

Committee  constituted as per the said Rules,  in accordance with the said  

rules, instead of by the District Collector.  

(iii) Appellants and respondents 4 to 27 will be entitled to apply for the  

post,  subject  to  fulfilling  the  eligibility  criteria  as  per  the  said  Rules.  

However,  age  relaxation  shall  be  given  in  the  case  of  appellants  and  

respondents 4 to 27 and they will be entitled to apply, irrespective of their  

present age, subject to fulfillment of eligibility requirements.   

(iv) Respondents 1 to 3 are directed to initiate the process of selection and  

complete  the  same  within  six  months  and  till  such  selection  and  

appointment,  the  present  incumbents  will  be  entitled  to  continue  as  

Chowkidars purely on ad hoc basis.  

………………………..J. (R V Raveendran)

………………………….J. (R M Lodha)

New Delhi; ………………………..J. April 19, 2010. (Deepak Verma)    

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