Mohammad Saghir and Others vs The State of Bihar and Others

S.B. Sinha, J.—The Petitioners in this writ application have sought for issuance of an appropriate writ for quashing the order dated 30th Jan., 1991 passed by the District & Sessions Judge, Saran at Chapra. They have further prayed for issuance of an appropriate writ directing the Respondent Nos. 2 and 3 to allow them to continue as candidate peons.

The Petitioners were allegedly enrolled as candidate peons in the Judgeship of Saran at Chapra by an order passed by the District Judge dated 4th October, 1989. The names of the Petitioners were allegedly entered in the said register of candidate peons in terms of the provision of Rules 73 to 77 of the Civil Court Rules. Allegedly the Petitioner''s names were entered in the said register alongwith 22 others as the Nazir had reported that such a panel of candidate peons was necessary to be drawn up in view of leave vacancies created on account of absence of the regular peons/process servers. The name of the Petitioner No. 1 figured at serial No. 2 of the said list whereas the name of Petitioner No. 2 figured at serial No. 19 thereof.

This Court in CWJC No. 9671 of 1989 passed an order dated 18th December, 1989 which is contained in Annexure-3 to the writ application wherein inter-alia it was observed that the list of candidates peons drawn up by the District Judge could be utilised only for the purpose of appointment of process servers and that list cannot be made a waiting list for appointment of peons as well.

By an order dated 30th January, 1991, the District Judge, Saran at Chapra however, felt that the list of candidate peons cannot be renewed and given extension as it has already completed a period of one year and the posts should be advertised for preparation of a fresh panel. The said order is contained in Annexure-4 to the writ applications.

The Petitioners have contended that as the register of candidate peons is maintained for appointment of process servers, the question of expiry of life of the said panel after a period of one year does not arise.

It has further been contended that there are separate posts of process servers and such posts have to be filled up only in terms of the provisions of the Civil Court Rules and thus, all vacancies of process servers have to be filled up in terms thereof irrespective of the fact that the vacancies are leave vacancies or permanent vacancies.

At one point of time, a dispute arose as to whether there exists a separate cadre of process servers or not and thus the District Judge Saran at Chapra, the Registrar of this Court as also the Law Secretary were asked to make statements in this regard on affidavit. All the aforementioned Officers have stated on oath that there does not exist any separate cadre of process servers. It has also been stated that process servers are Class IV employees and Office peons/Orderly peons are assigned the functions of process servers as is required from time to time.

Mr. Mihir Kumar Jha, the learned Counsel appearing on behalf of the Petitioner submitted that existence of a separate post and existence of cadre are two distinct matters and as appointment to the post of process servers is to be governed by the Civil Court Rules, no order passed by this Court on its administrative side can override the same.

It has been pointed out that even this Court while framing rules with regard to conditions of service of Class III employees directed that the recruitments of Class IV posts would be clone in terms of existing rules which therefore includes the Civil Court Rules which are existing rules.

Mr. Sunil Kumar, the learned Counsel appearing on behalf of the High Court, as also the District Judge, Saran at Chapra, on the other hand, submitted that the Civil Court Rules cannot be given effect to far the purpose of filling up of any vacancy in terms thereof as the same would be violative of Articles 14 and 16 of the Constitution of India.

It has been submitted that nobody has a right to be appointed in a post and, thus the question of enforcing such a right by the Petitioners from the waiting list either on leave vacancy or on permanent vacancy does not arise.

The learned Counsel in suppot of his contention relied upon Jai Singh Dalal v. State of Haryana reported in AIR 1993 SCW 632 and Division, Bench decision of this Court in Deota Nath Tiwari and Others Vs. State of Bihar and Others, .

Before adverting to the question raised at the bar, the scope of the Civil Court Rules (hereafter referred to as the rules) may be noticed:

The Civil Court Rules previously known as General Rules and Circular Orders (G.R.C.O.) were adopted from the Rules framed by the Calcutta High Court in some modified form upon its establishment in the year 1916 pursuant to a proclamation made by the Governor General of India on 23.3.1992 constituting a separate province of Bihar and Orissa in terms of Section 113 of the Government of India Act, 1915 and the Letters Patent of this Court.

In the First Edition of the G.R. and C.O. 1920 in Chapter II of Part I, Rules 30 to 34 under the heading ''B-method of recruitment and appointment of process servers'' were introduced. From the preface of this Edition, it appears the rules for the recruitment and promotion of peons, are based on Note 2 of old Rule 12 at page 311, which approves of the practice of keeping candidate peons for filling up leave and permanent vacancies. This means, that these Rules from 30 to 34 are based on Note 2 of Rule 12 at page 311, which was existing prior to introduction of these rules. These Rules 30 to 34 correspond to Rules 73 to 78 in Chapter II of the Civil Courts Rules Vol. I, 1968, excepting minor changes in Rule 77 (Corresponding to Old Rule 34) and introduction of a new Rule in 78. Thus it appears that these rules are existing atleast since 1920 if not from an earlier date.

As the job of the process servers was one of the important functions in the matter of administration of Justice by the Civil Courts, a separate establishment for process serving was felt necessary which was to be under the direct control of a Nazir, as is evident from Rule 68 of the Rules.

Rule 68 however, shows that process servers are also peons as a register was required to be maintained of process serving peons.

Rule 69 provides that peons employed in the service for execution of processes in Civil Courts will draw pay in the scale of Rs. 70-80.

Rule 71 authorises the District Judge to make appointment of such numbers of Peons for the whole district as may suffice for execution of all the processes issued for service within it and further authorises him to apportion such peons amongst, different stations in such manner as may appear necessary from time to time.

Rule 72 empowers the District Judge to increase or reduce the number of peons.

Rule 73 provides for method of recruitment or appointment of process servers.

Rules 73 to 77 read thus:

The Nazir shall keep, a register of candidates for filling up leave and permanent vacancies. These candidates will be enrolled under orders of the Judge-In-Charge of Nazarat and their number shall not exceed 15 percent of the total strength of permanent peons employed at any station.

No candidate shall be enrolled who cannot read and write the vernacular Of the District satisfactorily.

No process-server shall be appointed except from those candidates.

No process-server shall be permanently appointed unless he is found fit by the Judge-in-Charge of the Nazarat.

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

From a perusal of Rule 73 it is thus evident that it was within the domain of the Judge in-charge of the Nazarat to direct enrolment of candidate peons whose number is not to exceed 15 percent of the total strength of permanent peons employed at any station.

Rule 75 however provides that no process server shall be permanently appointed unless he is found fit by the Judge-in-Charge of the Nazarat.

The situation as was obtaining prior to coming into force of the Constitution of India with regard to appointment of process servers vis-a-vis the appointment of candidates peons has undergone a sea change.

Reference in this connection may be made to Sections 20 and 22 of the Court Fee Act, 1870 (VII of 1870) which reads as follows:

The High court shall, as soon as may be, make rules relating to fees chargeable for serving and executing process etc., and also the remunerations of the peons and all other persons employed by a court for the service or execution of processes. The High Court may, from time to time, alter and add to the rules so made. However all such rules, alterations or additions shall have to be confirmed by the State Government.

That subject to rules to be made by the High Court and approved by the State Govt. every District Judge and every Magistrate, of a district shall fix and may from time to time alter, the number of peons necessary to be employed for the service and execution of processes issued out of the court and each of the courts, subordinate thereto.

In view of the aforementioned powers the High Court in all probabilities considered it expedient to frame rules by inserting Chapter II. in G.R.C.O. dealing with the matter relating to process serving staff including their appointment.

From the tenor of the said rules, it appears that at one point of time the idea of the High Court might have been to have a separate process serving establishment while dealing with the other staff, watchmen etc., separately.

However, such practice was evidently given up in course of time as process server also became Class IV staff and had all along been appointed as such. No separate cadre, for process server, as noticed herein before, either was made nor appointment had been made as process server as such.

It has been found that in general practice many District Judges used to maintain the register of candidates peons not for process serving establishment as such but for the purpose of general establishment.

In this situation, various circular had been issued from time to time by the High Court one of which has been produced before us by Mr. Sunil Kumar which read thus:

Copy of letter No. 16-50, dated 7.1.1988 (XXI-30-85)

To

All the District and Sessions Judges including the Judicial Commissioner, Ranchi.

Sir,

I am directed to say that the court have been pleased to direct that appointment be not made from a waiting list which is more than one year old, unless specific order of the court is obtained.

I am, therefore to request you to see that the above direction must be followed strictly in future.

Yours faithfully.

Sd/- A.N.K.N. Sinha, Additional Registrar, 23.12.87

In view of the question posed in the application, it is not necessary to dilate further on the subject.

It is accepted at the bar that process servers are class IV employees of the State.

In terms of the Bihar Service Code the District Judge being the head of the establishment is the appointing authority of all class IV employees.

No person, can be appointed or directed to be enrolled under the orders of Judge-In-Charge of Nazarat, whether against a leave vacancy or a permanent vacancy. Every such appointment has to be made by District Judge from amongst the candidates selected for that purpose by a Committee of three Judges i.e. the District Judge, and two seniormost Additional District Judges.

The State of Bihar in exercise of its power conferred upon it under the proviso to Article 309 of the Constitution of India has framed various rules, governing the conditions of services of all employees including Class IV employees.

As indicated hereinbefore, it is also not in dispute that there does not exist any separate cadre for process servers. Process servers are thus appointed from amongst the persons who are peons working in the civil court. The post of a peon and a process server is interchangeable and transferable. A person can be appointed to a post on transfer.

Appointment of process servers as envisaged under Rule 75 must also be viewed from that angle. Even the Note appended to Rule 75 of the Civil Court Rules provides that Orderlies, Office Peons and Night watchmen would be eligible for appointment as process-servers without being enrolled as candidates.

Rule 75 does not and cannot mean that orderlies, office peons, or Night Watchmen when appointed as process servers, would cease to function in their respective capacities. The same mainly Refers to the job of process servers to be performed by the eligible employees as and when occasion therefore arises.

The District Judge Chapra in his affidavit has stated thus:

That the answering Respondents have enquired into matter and on the basis of records available in the Judgeship, it may be stated that there is no separate cadre of process server. For the past about fifteen years there has been no appointment as a process server as such; candidates have been appointed as peons and out of them some have been working as process server.

That as regards the category of class IV post in the Judgeship it is stated that the same are follows:

Particulars

Reference to Govt. letter under which sanctioned.

1) Orderlies (including peons and Process Servers)

Govt. in Finance Deptt. letter No. 7880 dated 27.9.1919, 2760-F dated 1.5.26 and 4356 J dated 7.10.55 at Flat-A of the April Statement 1966.

2) Chowkidar

3) Re punching peon (For Record room only)

4) Sweeper

5) Farash

6) Daftary.

The Registrar of this Court in his affidavit has stated:

That it is stated that in the office of the court, there is no record available to indicate that separate cadres--one for the process servers and the other for the Peons--are being maintained in the Civil Courts in Bihar. No Government sanction creating a separate Cadre for the Process Servers exclusively could be located in the office of the High Court.

It has also been stated by the Law Secretary that no separate cadre of process-servers exists1 but the same is one of the categories of Class IV post as per the resolution of the Finance Department dated 16.12.1939.

It is, however, not the case of any of the parties that the State in fact has created any separate cadre of process-servers and even any separate gradation list is prepared therefor.

It is also evident that in the district of Saran, like other districts a cadre of peons/process servers exists.

It is therefore, clear that at one point of time process servers were appointed from amongst the candidate peons and/or orderlies, office peons and Night Watchmen. A register of candidate peons used to be maintained only for the purpose of watching his performance so that process servers although may be appointed to serve processes only, may be kept under strict watch.

In any event, in my opinion, after coming into force of the Constitution of India and the rules framed by the State, the provision of Civil Court Rules as aforementioned cannot be given effect to.

In terms of Article 16 of the Constitution of India as also the rules framed by the State of Bihar and this High Court in exercise of its power under Article 235 of the Constitution of India, a person can be appointed either against a permanent vacancy or a temporary vacancy only upon compliance, of the provisions of the recruitment rule including giving due notice of the vacancy to all concerned i.e. by advertising the same in the Newspapers, by publishing the same in the Notice Board and by notifying the Employment Exchange about the existing vacancies. A post in terms of Articles 14 and 16 of the Constitution can only be filled up upon consideration of the case of all eligible candidates.

Rule 73 of the Civil Court Rules which provide for maintenance of a register under the orders of the Judge-In-Charge of Nazarat as also the mandate contained therein to the effect that the post of process servers can be filled up either permanently or by way of leave vacancy only amongst the candidate peons is thus ex-facie violative of Articles 14 and 16 of the Constitution of India as also the recruitment rules.

Further as noticed hereinbefore, the State Government has not created any separate cadre for process servers. In view of its definition as contained in the Bihar Service Code ''Cadre'' means strength of service. There exists a cadre of peons. Such peons either are Orderlies or office peons.

There cannot, therefore, be any doubt that the State of Bihar having not created any separate cadre for process servers the question of any appointment in the post of process servers as such does not and cannot arise. Such post of process servers as indicated hereinbefore, being held the peons who are Class IV staffs have to be filled up only upon compliance of all requirements for filling up of the posts of office peons.

It is, in this situation, even this High Court while framing the recruitment rules did not put the process servers in a separate category of class IV employees, as process servers are to be posted only from amongst the peons appointed in the Civil Court.

It is, therefore, not correct to contend that this High Court has deliberataly left out the matter of appointment of the process servers, as the same is governed by the existing Rules which means the Civil Court Rules.

Rule 6 of the Bihar Civil Court Staff (Class III and IV) Rules lays down the categories of class IV employees and Rule 7 thereof lays down the mode of recruitment of class IV employees.

This Court however, was of the opinion that the existing Rules meaning (hereby the existing practice relating to appointment of class IV staff should be allowed to remain which means the class IV staff can be appointed by the District Judge alone by holding such test or tests and in such manner as was the practice existing at the relevant time and not in terms of the new rules framed by the High Court.

It is neither in doubt nor in dispute that even the existing rules postulate the mode of recruitment of making advertisement in the Newspaper calling for the names from the Employment Exchange and publishing the vacancy in the Notice Board and thereupon candidates are to be selected upon testing their suitability by a Committee.

All Class IV employees holding the post of process-servers thus have also to be appointed upon following the said recruitment rules and not under the existing Civil Court Rules which for all practical purposes have become redundent or otiose.

In Deota Nath Tiwari and Others Vs. State of Bihar and Others, a Division Bench of this Court followed the decision of the Supreme Court in the case of State of U.P. and Ors. v. Ram Gopal Shukla reported in AIR 1981 S.C. 1041 and held that the resolution of the State of Bihar dated 24.4.1988 whereby it was directed that for the purpose of appointment, chain system will be applicable in respect of candidates who have become Agriculture graduates upto the year 1980. and appointments, shall be made of candidates who have become Agriculture graduates after 1980 on the recommendations of the Commission, as ultra vires Articles 14 and 16 of the Constitution of India.

This Court held:

The decision is not only discriminatory in nature, it also does not achieve any rational object, when the only rational object while selecting candidates for public services is to select the best out of the candidates available, no preferential treatment can be given to persons having inferior merit merely on the ground of their having remained unemployed for any particular period.

In M.L. Gupta and Others Vs. Instrumentation Ltd. and Others , this Court upon taking into consideration a large number of cases including the decisions of the Supreme Court in State of Mysore and Another Vs. S.V. Narayanappa, , R.N. Nanjundappa Vs. T. Thimmiah and Another, as also a decision by three Judges Bench in B.N. Nagarajan and Others Vs. State of Karnataka and Others, , as also a large number of decisions of this Court held as follows:

It, therefore, is bound to give equal opportunity of employment to all the candidates eligible therefore in terms of Articles 14 and 16 of the Constitution. Permanent absorption of casual employees in the State services, in absence of any statutory provision or a policy decision is, thus impermissible. In a given situation, it may be permissible for the Supreme Court to lay down a scheme or direct a scheme for permanent absorption of its employees be made by the State. Such a power exists in the Supreme Court by reason of Article 142 of the Constitution of India as it may pass any decree or order for giving complete justice to the parties and such decree or order would be binding upon the State.

It was further held:

Right to work is not a fundamental right but a right to be considered for appointment is. Such a right to be considered for appointment, as enshrined under Article 16 of the Constitution must be held to be available to all persons who are eligible therefor. Any appointment which does not conform to the requirements of Article 16 of the Constitution, therefore, cannot be said to be a valid appointment and consequently any back door method adopted to confer any permanency in the job in violation thereof cannot be encouraged by the High Court.

It is true that ad hocism should come to an end. However, the same does not mean that the persons who have obtained employment by taking recourse to back door method may be permitted to be permanently absorbed only because they have put in work for some time.

This view has been reiterated by this Court in Teja Prasad and Others Vs. The State of Bihar and Others , Vijay Kumar Vs. The State of Bihar and Others, ; Smt. Madhuri Kumari v. State of Bihar reported in 1993 (1) PLJR 449 and Anil Phukan Vs. State of Assam, .

In Sheela Sinha Vs. The State of Bihar and others, it has been held that where the appointment was not only illegal but also a nullity having been made in violation of the statutory rules, principles of natural justice were not required to be complied with.

This aspect of the matter has also been considered recently by the Supreme Court in Central Provident Fund Commissioner v. Ashok Dubey reported in 1993 (1) PLJR 61 (S.C.)

It is now well known that the State of Bihar issued a general circular order, which has the force of law that a panel cannot be kept alive for more than one year.

It has been held that a person has no legal right of appointment from a panel which has to be kept alive for more than one year by the Supreme Court in Rakesh Ranjan Verma v. State of Bihar reported in 1992 S.C. 1348 which has been followed by this Court recently in C.W.J.C. No. 2296/91 (Neelima Verma v. State of Bihar). It has been held in Neelima Verma (Supra) that a person does not have any right of appointment, although they have been selected for that purpose.

The same view has recently been taken by the Supreme Court in Jai Singh Dalal v. State of Haryana reported in AIR 1993 SCW 632.

This aspect of the matter has also been considered by a Division Bench in Ram Naresh Sharma and others Vs. The State of Bihar, wherein it has been held:

It is also well known that the life of panel prepared for appointments is valid for one year only. If the State intends to extend the life of panel, the same has to be done specifically and in terms of a valid order issued in this regard.

There cannot be any doubt that only because the Petitioners had filed an application for appointment they were not entitled therefor. They had merely a legal right to be considered for appointment. Admittedly they were called for interview, but they were not selected. If they had not been selected by the Committee appointed for that purpose the Petitioners cannot make any grievance in relation thereto.

For the reasons aforementioned, it has to be held that Rules 73 to 77 must be held to be ultra vires Articles 14 and 16 of the Constitution of India and they are declared as such.

Before parting with this case it may be observed that we do not mean that even employees on casual basis cannot be appointed for any purposes whatsoever wherefor the High Court on its administrative side in exercise of power under Article 235 of the Constitution of India is entitled to issue necessary instruction in this regard.

In view of the fact that the Petitioners do not have any legal right to continue as candidate peons, this writ application has to be dismissed.

For the reasons aforementioned, there is no merit in this application which is accordingly dismissed but without any order as to costs.

G.C. Bharuka, J.

I entirety agree with brother Sinha, J. It will be fallacious to say that in Class-IV employees there exists any separate cadre of Process Servers. The service or execution of processes is one of the essential functions in judicial system/establishment which is ordinarily discharged through the peons of the Court. The peons, entrusted with such duties are commonly known as Process Servers for convenience sake only. They do not constitute any separate cadre in themselves. The persons entrusted with such duties are drawn from the cadre of Class-IV employees (Peons).

Therefore, it is difficult to concede that there is any separate rule of recruitment, relating to Process Servers. As such no relief is admissible to the Petitioners.