Jay Prakash Arya vs Md. Shahanshah Alam

LPA No. 642 of 2021

Learned counsel for the appellants seeks permission to withdraw Letters Patent Appeal No. 642 of 2021.

Accordingly, Letters Patent Appeal No. 642 of 2021 is dismissed as withdrawn.

LPA No. 568 of 2021

The present appeal by the third party who were not party to CWJC No. 9817 of 2020 decided on 07.09.2021. The appellants filed Interlocutory Application seeking permission of this Court permitting them to file LPA (by third party) and it was allowed on 22.02.2022 since respondents have expressed that they have no objection.

Respondent original petitioners have prayed for the following relief(s):-

“a) For quashing the Clause- 13 of a guideline issued by the Bihar Technical Service Commission (in short Commission) pursuant to advertisement no. 01/2019 contained in letter no. 1242 dated 24.11.2020 to the extent whereby and where under it has been stipulated that since the online application has been received till 17.02.2020, therefore, all educational certificate, mark-sheet issued within 17.02.2020 shall be valid.

b) For declaration by the Hon’ble court that the stipulation made in Clause-13 contained in letter no. 1242 dated 24.11.2020 issued by the Secretary of the Commission is arbitrary, discriminatory and in violative of the principle enshrined under Article-14 of the Constitution of India.

c) For direction to the respondent Commission to extend the cut-off date of work experience on contract from 28.02.2019 to 17.02.2020 and also give the benefit accordingly to the candidates appearing in the selection process for the post of Junior Engineer.

d) For direction to the respondent Commission to publish the merit list after extending the cut-off date of work experience i.e., 28.02.2019 to 17.02.2020 and then only called the candidates in counseling.

e) For any other relief/reliefs to which the petitioners may be entitled to.”

Learned Single Judge while disposing CWJC No. 9817 of 2020 dated on 07.09.2021 passed the following order in Para 15 which reads as under:-

"15. Considering the facts and circumstances and the discussions as aforesaid, the Court directs the Commission to consider shifting the cut-off date, as prescribed in advertisement, to appropriate date so as to allow benefit of work experience which the petitioners and other similarly situated persons acquired during the process of selection, for them to suitably come in competition with other candidates who were not eligible in terms of the original advertisement but have become eligible under the orders of this Court and under the decision of the Commission."

Feeling aggrieved by the order of the learned Single Judge third party namely appellants filed this present LPA on the score that in the event of extension of certain benefits to the original petitioners-respondents the right of the appellants would be affected.

Brief facts of the case are that on 08.03.2019 Junior Engineer post were advertised by the respondent-Commission. In the advertisement it is made crystal clear that such of those candidates who intends to participate in the process of selection and appointment to the post of Junior Engineer that certain marks have been earmarked for such of those contract appointees. In other words, for gaining experience certain marks have been assigned. To that effect the cut-off date has been assigned as 28.02.2019. Further, the last date of submission of application for the post, through online was assigned as 15.04.2019. When things stood thus, Commission issued one notice on 29.08.2019 in which the last date for submission of online application was extended upto 23.09.2019. One more notice was issued on 03.02.2020 while extending the last date of submission of online application from 15.04.2019 to 17.02.2020 (vide Annexure-3 to CWJC No. 9817 of 2020). In this notice while extending the last date of submission of online application as upto 17.02.2020.

Further, one more notice was issued on 24.11.2020 while reiterating the last date of submission of online application as 17.02.2020. Hence, the respondents-petitioners filed CWJC No.9817 of 2020 and it was decided on 07.09.2021.

Learned counsel for the appellants submitted that learned Single Judge has committed error in asking the Commission to consider shifting the cut-off date not only for submission of application even to extend benefit of work experience. If such work experience benefit is postponed from 28.02.2019 with reference to advertisement dated 08.03.2019 upto 17.02.2020 in that event appellants right would be affected. In other words, such of those persons who have experienced beyond 28.02.2019 would be beneficial to them and it is disadvantage to the appellants. It is further submitted that Commission on more than one occasion last date of submission of application has been extended. The respondents-petitioners have not assailed the notice dated 29.08.2019 and 03.02.2020 while extending the last date of submission of application as 23.09.2019 and 17.02.2020 respectively. In the absence of challenge to the notice dated 29.08.2019 and 03.02.2020 to the effect that award of marks for the experience was required to be extended during the period from 28.02.2019 to 17.02.2020 the respondents-petitioners are not entitled to relief. They are not entitled to question subsequent notice issued on 24.11.2020 to contend that denial of work experience marks during the intervening period from 28.02.2019 to 17.02.2020 is incorrect.

Per contra, learned counsel for the respondents-petitioners resisted the aforesaid contentions and submitted that there is no infirmity in the order of the learned Single Judge, since there is a discrimination in extending certain benefits. It is submitted that Commission has extended the last date for submission of application. At the same time, there is a denial of counting experience from 28.02.2019 to 17.02.2020, whereby respondents-petitioners would be denying certain marks for the aforesaid period.

Heard learned counsels for the respective parties. Question for consideration in the present LPA is whether learned Single Judge has committed error in giving direction to the respondent-Commission as stated (supra) and further whether the petitioners are entitled to have certain benefits of additional marks while counting experience during the period from 28.02.2019 to 17.02.2020 or not?

The appellants submitted that Commission have determined their mind only in extending the last date for submission of online application initially on 29.08.2019, 03.02.2020 and further on 24.11.2020. In the notice dated 24.11.2020 last date of submission of application has been extended upto 17.02.2020.

In the intervening notice dated 29.08.2019 and 03.02.2020 respondent-Commission have not extended time for the purpose of award of marks for experience from 28.02.2019. Therefore, respondents-petitioners have not approached this Court as and when initially last date of submission of application was extended on 29.08.2019 from 15.04.2019 to 23.09.2019 and further on 03.02.2020 it was extended to 17.02.2020. In other words, they had cause of action on two occasion prior to 24.11.2020. The same has not been appreciated by the learned Single Judge while directing Commission in terms of Para 15 of the learned Single Judge order. In the absence of postponing the cut-off date of experience qualification read with award of marks from 28.02.2019 to 23.09.2019 and 17.02.2020 vide notice dated 29.08.2019 and 03.02.2020 respondents-petitioners are not entitled to relief.

Respondents-petitioners have invoked remedy under Article 226 of the Constitution only with reference to notice dated 24.11.2020. Respondents-petitioners are not entitled to relief sought before the learned Single Judge. Learned Single Judge has committed error in the absence of seeking relief with reference to two modified dates namely 29.08.2019 and 03.02.2020 where the last date of submission of application was postponed and respondents-petitioners had cause of action on 29.08.2019 and 03.02.2020. Therefore, there is an error committed by learned Single Judge.

Accordingly, order of learned Single Judge dated 07.09.2021 passed in CWJC No. 9817 of 2020 stands set aside.

With the aforesaid observation the present Letters Patent Appeal No. 568 of 2021 stands disposed of.

CWJC Nos. 2893 of 2020, 3188 of 2021 and 5166 of 2021.

In the view of disposal of aforesaid Letters Patent Appeal No. 568 of 2021, writ petitions, i.e., CWJC Nos. 2893 of 2020, 3188 of 2021 and 5166 of 2021 stands de-linked.

Registry is hereby directed to list these matters before the learned Single Judge (Roster Bench) after de-linking the aforesaid writ petitions.