IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3178 of 2007 SHIV SHANKAR KUMAR,son of late Ram Bhorose Singh, resident of Shekhpur, PO Shekhpur, Thane – Ahiyapur, Via – Ramna, District Muzaffarpur……… Petitioner Versus 1. THE UNION OF INDIA through the Secretary, Department of Heavy Industries & Public Enterprises, New Delhi. 2. The Chairman-cum-Managing Director, Bharat Bhari Udyog Nigam Ltd., 26, Raja Santosh Road, Alipore, Kolkata. 3. The Director (Personnel & Administration), Bharat Bhari Udyog Nigam limited, 26, Raja Santosh Road, Alipore, Kolkata. 4. The Deputy Manager (Legal), Bharat Bhari Udyog Nigam Ltd, 26, Raja Santosh Road, Alipore, Kolkata. 5. Bharat Wagon & Engineering Company Limited, through its Managing Director, Muzaffarpur, Patna. 6. The Incharge (Personnel & Administration), Bharat Wagon & Engineering Company Limited, Muzaffarpur ….. Respondents ----------- 05- 19.12.2008 Heard Mr. Gautam Bose for the petitioner, Mr. Kaushal Kumar Jha, learned Addl. Standing Counsel for the Central Government, Mr. Ajay Kumar Sinha for respondent nos. 2 to 4 (Bharat Bhari Udyog Nigam Limited) (hereinafter referred to as the `Holding Company), and Mr. Udayan Choudhary for respondent nos. 5 and 6 (Bharat Wagon & Engineering Company Limited) (hereinafter referred to as `the Company’). The petitioner seeks a direction to the Company to appoint him as an officer in the pay scale of Rs.3500- 150-6200 (pre-revised). The Holding Company, and the Company, have filed their separate counter affidavits. 2. According to the writ petition, the holding company has four subsidiaries, namely, Burn Standard Company Limited, Braithwate & Co. Limited, Bharat Wagon & Engineering Co. Limited, and the B B J Construction Company Limited. The four subsidiaries - 2 - are public sector undertakings of the Central Government, the entire shares of which are held by the President of India or his official nominees. The Holding Company issued an advertisement which had appeared in the local dailies on 30.11.2005 (Annexure 1), inviting applications from candidates of the open market, from serving employees of public sector undertakings, Governments, as well as private sector, for various posts indicated in the advertisement. The petitioner was already, and continues to be, working as Accounts Assistant in the Company. He submitted his application dated 5.12.2005 (Annexure 2), as a candidate from the open market through the proper channel for the post of Junior Officer (F&A) in the pay scale of Rs.3500-15-6200/-. His application clearly stated that he was already working as Assistant Accounts in Bharat Wagon & Engineering Company Limited, Muzaffarpur, since 1994, i.e. for 11 years (approx.). The Company forwarded his application for consideration. After completion of the selection process, the Holding Company prepared the select list, the petitioner was selected and was recommended for appointment as Junior Officer (F&A) in the Company. The petitioner has not so far received the appointment letter from the Company leading to the present writ petition. 3. Learned counsel for the petitioner submits that he intended to be a candidate from the open market and, in view of the terms of the advertisement, he was not required to have any kind of experience. He was finally selected notwithstanding which the Company is not issuing appointment letter to him. - 3 - 4. Learned Addl. SCCG appearing for respondent no.1 has made appropriate submissions to assist the Court. 5. Learned counsel for respondent nos. 2 to 4 submits that it stands by its recommendation and it is for the Company to support the objections raised by it. 6. Learned counsel for respondent nos. 5 and 6 has opposed the writ petition. He submits that, in view of the position that the petitioner was already working as Accounts Assistant in the Company, he could not have been considered as a candidate from the open market. He next submits that the requirement as per the advertisement with respect to a serving employee of a public sector is that he should have put in at least two years of experience in the post next below the one for which application has been made. In his submission, the post of Accounts Assistant is not next below that of Junior Officer (F&A). The petitioner is, therefore, disqualified from consideration. 7. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to me on a perusal of the terms and conditions of the advertisement (Annexure 1) that an applicant from the open market was not required to have any experience at all. It further appears to me that the terms of the advertisement do not impose a bar either in specific terms or by necessary implication that a serving employee of a public sector undertaking or Government cannot apply as a candidate from the open market. It further appears to me from the - 4 - petitioner’s application that he was an applicant for the post of Junior Officer (F&A), and intended to be a candidate from the open market. It was for this reason that his application submitted through the proper channel was forwarded by the Company to the Holding Company for consideration. After conclusion of the selection process, the petitioner was found fit for appointment as an Officer in the pay scale of Rs.3500-150-6200 (pre-revised). The Holding Company has indeed taken this stand on 23.3.2007 (Annexure 7), the date on which it supplied information to the petitioner’s mother under the provisions of the Right to Information Act. Learned counsel for respondent nos. 2 to 4 submits that the holding company has not found fault with the recommendation and stands by the same. 8. The petitioner’s candidature can be considered from another angle. It appears to me that serving employees of public sector undertakings were required to have two years of minimum experience. The terms of the advertisement do not seem to suggest that the holding company intended that the experience of two years should be on the post just below that of Junior Officer/ Officer (F&A). I am proceeding on the assumption that the post of Accounts Assistant on which the petitioner has been working in the Company is not a post next below that of Junior Officer. However, it appears that he had already put in 11 years of service in the services of the Company as Junior Assistant. I am, therefore, of the view that the petitioner was qualified for consideration from this angle also. 9. Learned counsel for respondent nos. 5 and 6 has - 5 - opposed the writ petition. His first two objections that the petitioner, being a serving employee of public sector undertaking, could not have been considered as an applicant from the open market, and that he had not acquired two years of experience on the post just below that of Junior Officer, have been discussed hereinabove and rejected. He also submits that there was an error in scrutinizing the petitioner’s application and was wrongly forwarded to the Holding Company for consideration. He submits that this issue was taken up by the Company’s Managing Director and he issued show-cause notice dated 1.8.2006, to the Assistant Manager (Materials)-cum- Incharge of P & A Department, to explain the position. The Company has not placed on record any material to show any follow-up action in pursuance of the said communication dated 1.8.2006. Inspite of repeated queries, learned counsel has not been able to illumine the issue. This leaves me with a clear impression that forces are working in the Company against the petitioner because of his selection to a higher post. The petitioner’s selection on the higher post accompanied with the fortuitous circumstance that he has been allocated to the same company where he is already working seems to have created heart- burning in the Company. I could have understood if the Managing Director, after issuance of the said show-cause notice dated 1.8.2006 (Annexure B), disposed of the matter on merits and with reasons and validity of the same could have been considered in the present proceedings. More than two years have lapsed since issuance of the show-cause notice. On the contrary, no step at all has been taken - 6 - creating the only impression that he has become instrumental in putting a spanner in the petitioner’s wheel. 10. In the result, this writ petition is allowed. Respondent nos. 5 and 6 are hereby directed to appoint the petitioner on the post of Junior Officer (F&A), in the pay scale of Rs.3500-150-6200 (pre- revised), with effect from the date the person just above him in the select list has been appointed. In view of the peculiar facts and circumstances of the case, the petitioner shall be entitled to notional benefits of the higher post so far, and shall be entitled to salary on the higher pay scale hereinafter. The period from the date of appointment till today shall notionally count to the benefit of the petitioner for all purposes except differential amount of salary. ( S K Katriar ) mrl