Sri Jai Prakash Jha vs The State of Bihar and Others

Respondent No. 5 of the writ application is the Appellant and is aggrieved by order dated 20.2.2001, passed in CWJC No. 361 of 2001, by a learned Single Judge of this Court by which he has allowed the said writ application filed . by writ Petitioner Bachan Kumar Singh Respondent No. 4 herein, and quashed the order by which the Appellant and Dhirendra Narayan Jha, Respondent No. 4 in the writ application, were appointed by absorption on Class II post in the Bihar State Food & Civil Supply Corporation (hereinafter referred to as the Corporation).

The facts, which are not in dispute, are that the State Government came out with a policy decision in the year 1981 by resolution dated 10.4.1981 (Annexure-R 5/1 to the counter affidavit of the writ application), according to which Class I and Class II posts in the State Public Undertakings are to be filled up by appointment by only persons possessing degree in Master of Business Management (hereinafter referred to as the MBA). Accordingly, advertisement was issued in the daily newspapers for selecting MBA degree holder to create a management pool through Bureau of Public Enterprises (hereinafter referred to as the Bureau) to f fill the said post in the Public Undertakings in the State of Bihar. The Appellant applied in pursuance of the said advertisement and he became successful. A panel of 131 persons was prepared and the same was published in the newspaper for appointment to the said post. The name of Appellant was also in the said list. Out of the said list, persons at serial nos. 1 to 107 were appointed on class II post in different undertakings and due to non-availability of vacancies, the Appellant and others were not appointed. However, the Respondent authorities offered class III post (Assistant Godown Manager) which was vacant in the Corporation and the Appellant arid others joined as such. Later on, when Class II posts in the public Undertaking became vacant and the Appellant and 8 others who were not appointed from the panel of 131, they filed a writ application before this Court being CWJC No. 1819 of 1986 for a direction to the concerned authorities to consider their cases for appointment to Class II posts in different State Government Undertakings which was placed before a Division Bench of this Court. It was asserted on behalf of the Appellant and 8 other persons that they joined the Class III post on the promise made by the Respondent authorities that in case class II posts became vacant in the Public Undertaking in the State of Bihar, they would be appointed/absorbed on the said post. This Court having taken note of the aforesaid assertion on behalf of the Appellant and others, by order dated 26.6.1996 directed the learned Counsel appearing for the Corporation to find out as to how many Class II posts are available in the Corporation and State Public Undertakings and further observed that we hope that in view of the promise given by the State Government while preparing the panel, the Petitioners of that case would be enrolled in Class-II posts. Counter affidavits were filed in the said case on behalf of Bureau that 74 class II posts were vacant in the Public Undertakings in the State of Bihar, but no appointment was being made on the ground that the matter was pending before this Court. This Court by order dated 11.7.1996 directed that the pendency of that writ application will not be impediment on the State Government to take a decision in the matter and the State Government was directed to take a decision in the matter. During Course of hearing of the matter, the Court required the presence of the Chairman of the Bureau and the Managing Director of the-Corporation and they informed that there was no vacancy available for being filled up in Class II post in the Corporation. However, there may be vacancies in other undertakings, but that can be filled up only after the requisition is sent by the concerned undertakings to the Bureau for its recommendation. It was also informed that all these undertakings of the State of Bihar are over burdened and out of nine Petitioners of the said writ application except the Appellant, there was serious charges against them. This Court considering the matter finally disposed of the writ application on 20.11.1996 and issued direction for consideration of the case of the Appellant only as and when requisition is sent by any Public Undertakings of the State of Bihar in future. A copy of the said order had been annexed as Annexure-2 to the writ application.

It appears that during pendency of the-aforesaid writ application filed by the Appellant and others, the State Government came out with another policy decision dated 12.2.1990 with regard to filling up Class I and Class II posts in the State Public Undertakings, a copy of which has been annexed as Annexure-A to the counter affidavit filed on behalf of Respondent No. 3 to the writ application. The earlier policy decision was reiterated with certain modifications. It was provided therein that certain class I and class II posts shall be filled up by persons holding MBA degree and the process of selection is to be done by the advertisement by the Bureau and on the requisition of the Public Undertakings, the appointment will be made from the said pool.

On 28.9.1999, the Additional Secretary to the Bureau wrote a letter to the Managing Director of the Corporation seeking his opinion with regard to appointment/absorption of the Appellant and 4 Dhirendra Nath Jha on class II post in the 1 Corporation in the light of observation made by this Court in the aforesaid writ application. It was mentioned therein that in terms of the direction given by this Court in the aforesaid writ application, that on availability of Class II post, the case of the Appellant would be considered first and thereafter the case of Dhirendra Nath Jha Respondent in the aforesaid writ application would be considered. The Advocate General has also given opinion to the said effect. On 6.12.1999, the Addl. Secretary to the Bureau informed the Managing Director of the Corporation that the Bureau has taken a decision to appoint the Appellant and Dhirendra Nath Jha Respondent No. 4 to the writ application by absorption on Class II post in the Corporation in pursuance of the aforesaid direction of this Court and the opinion/consent of the Corporation was asked for from the Managing Director of the Corporation. A copy of the said letter has been annexed as Annexure-5 to the writ application. The Corporation considered the matter and agreed for their appointment and informed about the said decision to the Chairman of the Bureau vide letter dated 13.4.2000. A copy of which has been annexed as Annexure-6 to the writ application. In spite of the aforesaid decision taken by the Bureau and the Corporation, when the Appellant was not appointed, he filed a fresh writ application before this Court being CWJC No. 931 of 1998 for adjustment of his service on Class II post under the Corporation in the light of the aforesaid judgment passed in CWJC No. 1819 of 1996. When the matter as taken up for hearing on behalf of the Appellant the aforesaid two letters dated 6.12.1999 and 13.4.2000 were brought to the notice of the Court. Taking note of the aforesaid two letters, the learned Single Judge by order dated 27.7.2000 remitted the matter to the Bureau to take a decision in respect of adjustment of the Appellant and to forward the decision to the Corporation, the Corporation and its authorities in their turn were directed to act on such recommendation. The Bureau was directed to pass an appropriate order within a period of two months from the date of receipt/production of a copy of this order and the Corporation and its authorities were directed to pass an order within a period of one month thereof. Thereafter the matter was considered and the Appellant and Dhirendra Nath Jha were appointed by absorption on Class II post by order dated 28.9.2000. The order in respect of Appellant has been annexed as Annexure-9 to the writ application. Consequently, formal order of appointment giving scale of pay was issued on 4.11.2000 in favour of the Appellant which has been annexed as Annexure-11 to the writ application.

The writ Petitioner Respondent No. 4 herein is an M.A. and B.L. and does not possess the degree of MBA. He was appointed on Class III post in the Corporation as Assistant Godown Manager in the year 1974. His grievance is that the Appellant and Dhirendra Nath Jha, Respondent No. 4 in the writ application, were also appointed as Assistant Godown Manager in 1983. The Appellant and Respondent No. 4 to the writ application were selected in pursuance of advertisement issued in terms of the policy decision of 1981. Out of panel of 131 of the Management pool, 107 persons were only appointed and when the Appellant and Respondent No. 4 Dhirendra Nath Jha were not appointed, they accepted the post of Assistant Godown Manager in 1983 and thus, they are junior to the Petitioners. The Appellant and Dhirendra Nath Jha have been appointed by absorption on Class II post ignoring the rightful claim of 430 Assistant Godown Managers who are senior to them. His further grievance is that there is no procedure under the Rule for appointment on absorption on Class II post in the Corporation. The appointment can only be made in terms of the policy decision of the year 1981 and modified in 1990.

The stand of the Corporation and the Bureau so far the case of the Appellant is concerned, is that his case has been considered in the light of the direction issued by this Court and consequently, he has been appointed to Class II post in the Corporation. They have also stated that Class II post in the Corporation is to '' be filled up by persons possessing MBA degree. Admittedly, the writ Petitioner does not possess the said qualification and as such there is no question of his appointment on class II post. There is no provision of promotion from the post of Assistant Godown Manager to Class II post and the matter is under consideration of the Government.

The case of the Appellant is that he is B.Sc. MBA and Law Graduate. He was one of successful candidates and his name was recommended for Class II post from the panel of 131 of Management pool. When he was not appointed on the said post, he was offered Class III post with a clear undertaking that on availability of Class II post, they would be appointed on the said post. When the same was not done, he came to this Court and in terms of the direction of this Court, his case was considered and accordingly, he has been appointed on the said post.

At the outset, it is made clear that this Court is not expressing any opinion with regard to validity or otherwise of the appointment of Dhirendra Nath Jha as he is not the Appellant in this appeal and his case is different from he case of the Appellant.

The learned Single Judge has quashed the appointment of the Appellant on the post of Class II in the Corporation or the ground that the said appointment has not been made following the procedure laid down in the policy decision dated 12.2.1990 contained in Annexure A to the counter affidavit of the writ application. If the Appellant is treated to have been promoted on Class II post then the same is also bad as the same was done without considering the cases of 430 persons senior to him.

From the admitted facts, it is clear that a policy decision has already been taken by the State Government in the year 1981, reiterated in 1990 that certain posts of Class II in the Public Undertakings of the State of Bihar are to be filled up from he persons possessing MBA qualification for which management pool will be created by the Bureau after following the procedure for appointment mentioned therein which provides filling up the post directly by advertisement and/or calling the name from employment exchange. It is also admitted position that in terms of the policy decision of 1981, the Appellant was included in the panel of 131 of the management pool. He could not be appointed en Class II post because of non-availability of vacancy in the said post. He and others came to this Court in CWJC No. 1819 of 1986 and this Court found that in view of the promise given by the State Government that the Appellant and others would be appointed on Class II post on availability of vacancy in Class II post. Finally, this Court directed in the said writ application to the Respondent-authorities to consider the case of the Appellant for appointment to class II post when requisition is sent by any of the Public Undertakings in the State of Bihar in future. A vacancy was available in the Corporation and the Bureau appointed the Appellant. The Corporation concurred with the aforesaid appointment and stated that his appointment will improve the functioning of the Corporation and the same is evident from letter dated 6.12.1999 of the Bureau and letter dated 13.4.2000 of the Corporation. Thereafter the Appellant was appointed taking into consideration the direction issued by this Court in the second writ application filed by the Appellant in CWJC No. 931 of 1998.

So far the case of the Appellant is concerned, there was already direction of this Court to consider his case for appointment on class II post if the vacancy is available. The Corporation informed that Class II post is available and thereafter the Bureau has made appointment. There was no question of making a fresh advertisement in the case of the Appellant as he was already included in the panel on the basis of earlier advertisement and as such the learned Single Judge was not right in holding that the appointment of the Appellant on Class II post has been, made without inviting the application in terms of the policy decision. The stand of the Corporation is that there is no rule for promotion from the post of Assistant. Godown Manager to Class II post. As the Appellant was not promoted to Class II post, there was no question of ignoring the claim of writ Petitioner and other persons working as Assistant Godown Manager. Thus, the appointment of Appellant on Class II post cannot be assailed on the ground that the persons senior to him as Assistant Godown Managers were ignored while appointing the Appellant on the said post. Class II post, as stated above, is to be filled up from the persons possessing the MBA degree. The writ Petitioner/Respondent No. 4 admittedly does not possess the said degree and as such he cannot be appointed or promoted on the said post. Thus, the appointment of the Appellant on Class II post by absorption by the orders as contained in Annexure 9 and 11 is neither arbitrary nor discriminatory nor against the policy decision.

In the result, the appeal is allowed and the judgment dated 20.2.2001, passed in CWJC No. 361 of 2001, by a learned Single Judge so far it relates to quashing of the appointment of Appellant is concerned, is set aside.