IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6733 of 2010 1. SRI SANJAY KUMAR S/O SRI MUNDRIKA SINGH PANCHAYAT PARYAVEKSHAK, GORAUL PRAKHAND, DISTT.- VAISHALI 2. SRI AJAY KUMAR SINHA S/O RAJENDRA PRASAD PANCHAYAT PARYAVEKSHAK, AMOUR BLOCK, DISTT.- PURNIA 3. SRI SHIV KUMAR SINGH S/O LATE SHATRUGHAN SINGH PANCHAYAT PARYAVEKSHAK, BARBIGHA BLOCK, DISTT.- SHEIKHPURA 4. DEO NARAYAN JHA S/O SRI UGRA NARAYAN JHA PANCHAYAT PARYAVEKSHAK, PALIGANJ PRAKHAND, DISTT.- PATNA 5. RADHA MOHAN SINGH S/O LATE JAMADAR SINGH PANCHAYAT PARYAVEKSHAK, ASHARGANJ BLOCK, DISTT.- MUNGER 6. RAM NARAYAN SINGH S/O LATE YOGENDRA PRASAD SINGH PANCHAYAT PARYAVEKSHAK, BATHNAHA PRAKHAND, DISTT.- SITAMARHI 7. ABHIMANYU SHARMA S/O SRI MOSAHEB SHARMA PANCHAYAT PARYAVEKSHAK, BODH GAYA PRAKHAND, DISTT.- GAYA Versus 1. THE STATE OF BIHAR, THROUGH THE PRINCIPAL SECRETARY, REVENUE AND LAND REFORMS DEPARTMENT, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 2. THE PRINCIPAL SECRETARY, RURAL DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 3. THE PRINCIPAL SECRETARY, PERSONAL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVT. OF BIHAR, PATNA 4. THE SECRETARY, PANCHAYATI RAJ DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 5. THE DEPUTY SECRETARY, RURAL DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 6. BIRENDRA KUMAR S/O LATE RAM LAKHAN PRASAD SINGH PANCHAYAT PARYAVEKSHAK, TEKARI BLOCK, DISTT.- GAYA, PRESENTLY POSTED AS CIRCLE OFFICER, GHOSHI BLOCK, DISTT.- JEHANABAD 7. KAMAL KUMAR S/O LATE LAXMI KANT THAKUR PANCHAYAT PARYAVEKSHAK, MORWA BLOCK, DISTT.- SAMASTIPUR, PRESENTLY POSTED AS CIRCLE OFFICER, BAHERI BLOCK AND DISTT.- DARBHANGA 8. ADITYA BIKRAM S/O SRI MAHESHWAR PRASAD SINGH PANCHAYAT PARYAVEKSHAK, DEPUTY DIRECTORS OFFICE, PANCHAYATI RAJ DEPARTMENT, BHAGALPUR, PRESENTLY POSTED AS CIRCLE OFFICER, BALIA BLOCK, DISTT.- BEGUSARAI 9. GANGESH JHA S/O SRI MAHESH JHA PANCHAYAT PARYAVEKSHAK, WARISH NAGAR BLOCK, DISTT.- MADHUBANI, 2 PRESENTLY POSTED AS CIRCLE OFFICR, MAHISHI BLOCK, AND DISTT.- SAHARSA 10. JANARDAN PRASAD SINGH S/O LATE RAJENDRA PRASAD SINGH PANCHAYAT PARYAVEKSHAK, BUXAR SADAR, DISTT.- BUXAR, PRESENTLY POSTED AS CIRCLE OFFICER, UDWANT NAGAR, AND DISTT.- BHOJPUR 11. VIJAY KUMAR SINGH S/O SRI TRIBHUWAN SINGH PANCHAYAT PARYAVEKSHAK, GARKHA BLOCK, DISTT.- SARAN, PRESENTLY POSTED AS CIRCLE OFFICER, SIWAN SADAR, DISTT.- SIWAN 12. KUNDAN KUMAR PANDEY S/O SRI ARJUN PRASAD PANDEY PANCHAYAT PARYAVEKSHAK, BLOCK NOT MENTIONED IN THE LIST, DISTT.- BHAGALPUR, PRESENTLY POSTED AS CIRCLE OFFICER, SONHO BLOCK, DISTT.- JAMUI For the Petitioners:- Mr. Ganesh, Advocate For the State:- Mr. Gautam Kumar Yadav, A.C. to S.C.-IV with CWJC No.9909 of 2010 1. ARUN KUMAR S/O SHRI RAM LAGAN PRASAD SINGH R/O BARAUNI FLAG, P.S. TEGHRA, DISTT-BEGUSARAI Versus 1. THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY OLD SECRETARIAT, PATNA 2. THE PRINCIPAL SECRETARY, REVENUE AND LAND REFORMS DEPARTMENT GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA 3. THE PRINCIPAL SECRETARY, RURAL DEVELOPMENT DEPARTMENT GOVERNMENT OF BIHAR 4. THE SECRETARY, CO-OPERATIVE DEPARTMENT GOVERNMENT OF BIHAR 5. THE DISTRICT MAGISTRATE MUZAFFARPUR 6. SHRI DIPENDRA BHUSHAN, NOTIFIED CIRCLE OFFICER, MUSHARI THROUGH THE SECRETARY, REVENUE AND LAND REFORMS DEPARTMENT GOVERNMENT OF BIHAR 7. THE DEPUTY SECRETARY, REVENUE & LAND REFORMS DEPTT. GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 8. THE DEPUTY COLLECTOR (ESTABLISHMENT) MUZAFFARPUR, BIHAR For the Petitioner:- Mr. Chakradhari. S. Singh & Mr. Shantanu Kumar, Advocates For the State:- Mr. Mohan Kumar Singh, A.C. To S.C.-I ----------- 3 05. 16.09.2010 Heard learned counsel for the petitioners and learned counsel for the State in both the applications. The issues arising being common, both the applications are being disposed by a common order. The writ petition was filed on 26.4.2010 after serving two copies in the office of the Advocate General as provided in the High Court Rules. The second copy was meant for the official respondents to facilitate the expeditious filing of a counter affidavit to assist the Court in timely dispensation of justice. Despite the passage of five long months and that this matter from the order- sheet appears to be coming on the list since 11.5.2010, on 2.7.2010 and 17.8.2010. the official respondents have still not considered it necessary to perform their duty to assist the Court in prompt dispensation of justice. The Court is therefore not impressed by the prayer again made today for time to file a counter affidavit. The petitioners in C.W.J.C. No. 6733 of 2010 are stated to be Panchayat Supervisors from the Department of Panchayati Raj. The petitioner in C.W.J.C. No. 9909 of 2010 is a Co-operative Extension Officer from the Department of Co-operative. The State Government in the Rural Department framed the Bihar Gramin Seva Samvarg 4 Niyamawali, 2010 under Article 309 of the Constitution dated 19.1.2010 (hereinafter called the appointment regulations). Rule 8 (b) of the regulations provides for interim appointments pending regular appointments, when the interim appointments shall cease automatically. On 19.1.2010 the Rural Department issued a notification in exercise of powers under Rule 8(b) for filling up vacancies of Block Development Officers / Executive Magistrates by such interim appointment for duration of three years on deputation. The post of Circle officer finds no mention in the Notification. It specified four qualifications as pre-requisites for such consideration. The appointment was to be made from certain categories of supervisory level personnel specified, from the identified departments mentioned in the advertisement which assessment had been made by a selection committee, as suitable in view of the nature of the duties being presently discharged by such personnel in conjunction with the nature of duties they were required to perform on the post of deputation. On 6.2.2010 inclusive of a corrigendum an advertisement was issued by the Rural Department inviting applications from holders of specified posts in the identified seven departments mentioned therein for 5 appointment on the post of Block Development Officers only. It is not in controversy that both the Panchayati Raj Department and the Cooperative Department figure therein. The advertisement does not state that applications received in response to the same could be considered for other similar appointments on deputation on any other posts or in any other department. On the contrary the advertisement is specific by the laying down the condition of eligibility for appointment on the post of Block Development Officer alone. It states that the appointment was to be made from a panel to be prepared. Learned counsel for the petitioner in C.W.J.C. No. 6733 of 2010 questioned the action in making appointments on the post of Circle Officers in the Revenue and Land Reforms Department of persons below them in the panel, he also urged that even from their own department their seniority position in the gradation list was high and persons below them had been appointed. Without prejudice to the same it was urged that the entire panel and selections were contrary to the advertisement by the Rural Department which was for the post of Block development Officer only. The petitioner in the latter writ application adopting the submission of illegality in the preparation of a panel for a post other than that advertised additionally questions the 6 termination as being illegal without any show cause notice and junior person in the panel had been allowed to continue. It is the further assertion of the petitioners that from the panel for appointment on the post of Block Development officers prepared by the department of Rural Development, by a subsequent policy decision the Revenue and Land Reforms Department requisitioned approximately 569 persons for similar appointments on deputation for three years on the post of circle officers. That the Revenue Department may have published its own advertisement dated 20.4.2010 also restricted to the reserved category only is not considered necessary for consideration as the present panel is dated 29.3.2010, arising out of the advertisement dated 6.2.2010 published by the Rural department. The controversy in the present writ petitions is with regard to the appointments then made by the Revenue and Land reforms on the post of Circle Officer. The advertisement dated 6.2.2010 has been noticed to be confined to that of Block Development Officer only. The notification under which it has been issued does not provide for appointments on the post of Circle Officers. The appointments made by the Revenue and Land Reforms states that it was being made under the same 7 terms and conditions as mentioned in the advertisement dated 6.2.2010. Any appointment to a Government post even temporary, ad-hoc or by deputation of the present nature and manner has to be in accordance with Article 14 of the Constitution of India with equal opportunity to apply and to be considered on competitive merit. If the respondents had opted simplicitor to call names from specified departments of certain categories of officials and only sought their consent for deputation, the matter would have been entirely different. But when the respondents published an advertisement inviting applications for appointment on a limited duration on the post of Block Development Officer, they cannot make appointments on a post other than that advertised. If the advertisement had qualified that the applicants may also be considered for other suitable supervisory posts in other needy departments, the matter may have been entirely different. If the advertisement was for Block Development Officer only others who may have been interested on the post of Circle Officer or Executive Magistrate may not have applied, thinking that it was limited to the Block Development Officer alone in which they were not interested. When a person who applied for the post of Block Development Officer is considered for 8 the post of Circle Officer or an Executive Magistrate, he may accept or reject it. If he accepts, Article 14 steps in immediately vis-à-vis those who did not apply for the post of Circle Officer and Executive Magistrate thinking that the advertisement was confined to the Block Development Officer alone. If the notification dated 19.1.2010 was restricted to Block development Officers / Executive Magistrates, it is difficult to appreciate how appointments on the post of Circle Officers could be made on the strength of an advertisement issued under such notification. Appointment on a post under an advertisement other than that published is per se illegal. When the post is outside the purview of the Notification under which the advertisement is issued matters are worse. Learned counsel for the State urged that since the appointments were ad-hoc and temporary in nature, the incumbents have joined the Court may not interfere. The petitioner in the former writ application has no locus merely because their names have been figured in the panel, which does not vest a right to appointment. The actions in the latter case are purely administrative in nature presumably for germane reasons. Block Development Officers / Executive Magistrates / Circle 9 Officers were all promotional posts in the same pay scale. That appointment has been made of several persons and who may have joined, cannot be a consideration alone when questions of constitutional violations. The State has not considered it a matter serious enough to even file a counter affidavit. Perhaps the silence of the State is what speaks in the facts of the case. The defence of the respondents with regard to the locus of the petitioner and matter being purely administrative does not appeal to the Court. Once issues have been brought to the attention of the Court raising questions of arbitrariness and constitutional violations in appointments, the Court cannot shut its eyes or decline interference by holding that inclusion in a panel creates no right to appointment. Where arbitrariness reaches it is the duty of the Court to step in. If the State respondents had assisted the Court in the matter by filing a counter affidavit, the matter may have been disposed with finality. The situation for an ex-parte order is attributable to the officers of the State itself. But the Court would not like the State to opine a grievance that it has not been considered or heard. The matter is therefore referred jointly to the 10 Secretaries of the Rural Development Department and the Revenue and Land Reforms Department. The Court requests them to hold a joint sitting for consideration of issues and arrive at a joint reasoned and speaking order (a) whether the notification dated 19.1.2010 was limited to the posts of Block Development Officers / Executive Magistrates, (b) whether the advertisement in pursuance of the same was issued for the post of Block Development Officer alone or for any other posts. It must also discuss (c) if the advertisement contained any clause that it could be extended to any other post or department, (d) whether under such advertisement appointment could be made on a post itself beyond the Notification dated 19.1.2010. The order must also discuss (e) the constitutional obligations of the State in making appointments in the State under Article 14 of the Constitution of India and the legality of appointments made on a post other than that advertised. Let such reasoned and speaking order be then jointly passed by the Secretaries of the two departments signed by them jointly so that judicial review if necessary may be facilitated. The Court requires this exercise to be completed within a maximum period of six weeks from the date of receipt/production of a copy of this order before the Secretary, Rural Department. 11 Since the present order is virtually ex-parte in nature, if the Secretaries of the two departments opine that the petitioners had not placed full and proper facts before this Court or that certain documents were not available with the petitioners and which were not placed before the Court they shall be at liberty to uphold the appointments by a reasoned order. If the case be converse fairness requires consequential action on part of the State by necessary corrective action. Such consideration and decision shall not be fettered by any earlier administrative decision taken at any level under which the present action assailed may have been taken. The power and jurisdiction of the two Secretaries draws its source from the orders of this Court In view of the fact that this Court on basis of materials on record has arrived at the finding that the advertisement was for Block Development Officer only, there is no occasion for the Court to consider any alternate grievances of the petitioners. The application stands disposed. P.K. (Navin Sinha, J.)