IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.878 of 2011 With Interlocutory Application No. 1718 of 2011 With Interlocutory Application No.1946 of 2011 ==================================================== Bihar Rajya Ardh Sarkari Nikay Padadhikari Sangh, a registered organization under Trade Union Act, 1926, Shiv Colony, Raja Bazar, Patna- 800014 through Organizing Secretary namely, Shri Yogendra Prasad - Petitioner Versus 1. The State Of Bihar through Chief Secretary, Government of Bihar, Patna 2. The Chief Secretary, Government of Bihar, Patna. 3. The Principal Secretary, Department of Energy, Government of Patna - Respondents ==================================================== Appearance : For the Petitioner: Mr. Vinod Kanth, Senior Advocate For the Respondents: Mr. Avnish Nandan Sinha, GP11 Mr. Kumar Kaushik, A.C. to G.P.11 Mr. Shubhankar Sharma, A.C. to G.P.11 Mr. Ashok Kumar Pathak, A.C to G.P.11 ==================================================== CORAM: HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 7 15.03.2011 This petition under Article 226 of the Constitution is filed by the Bihar Rajya Ardh Sarkari Nikay Padadhikari Sangh in public interest to challenge the advertisement published on 7th August 2009 inviting applications from the eligible candidates for selection and appointment to the post 2 of Managing Director in the Bihar State Hydro Electric Power Corporation, a Government of Bihar Undertaking (hereinafter referred to as “the Corporation”). The challenge is manyfold. Pending the petition, the State Government has under its Notification dated 28th February 2011, appointed one Sri Ashok Kumar Pandey, Chief Engineer, National Hydro Power Corporation Ltd. as the Managing Director of the Corporation. In view of the said Notification, the petitioner has moved the above Interlocutory Application No.1718 of 2011 for leave to amend the petition to incorporate challenge to the aforesaid Notification dated 28th February 2011 and for impleading the said Sri Ashok Kumar Pandey as party respondent No. 4. Learned Senior Advocate Mr. Vinod Kanth has appeared for the petitioner. He has admitted that initially the challenge was to the advertisement and since, pending the petition the appointment has been made, the same is required to be challenged by incorporating the aforesaid amendment. He has submitted that the challenge to the aforesaid appointment is on the ground that the appointment is not made in consonance with Article 163 of Constitution. 3 Under the Articles of the Association of the Corporation it is the Governor of the State of Bihar who is the appointing authority. It is the constitutional mandate that the Governor means “Governor aided by the Council of Ministers”. In the present case the appointment has been made by the Minister and the papers have not been moved to the Governor. The appointment is thus bad and illegal from inception and is contrary to the judgment of the Division Bench of this Court in Civil Writ Jurisdiction Case No. 3196 of 1995, rendered on identical issue. Learned Advocate Mr. Avanish Nandan Sinha has appeared for the State Government. He has challenged the application for amendment. He has submitted that initially the challenge was confined to the advertisement to the extent the eligibility criteria were set up. Now that the appointment has been made, the scope of the petition cannot be enlarged by amending the writ petition. He has next submitted that in any view of the matter the appointment has been made in accordance with the Rules of business of the State and that every matter does not need to travel to His excellency the Governor. In support of his submissions he has relied upon the judgments of the Hon’ble Supreme Court 4 in the matters of Hari Bansh Lal v. Sahodar Prasad Mahto & Ors. (AIR 2010 SC 3515); of Gurpal Singh v. State of Punjab & Ors. [2005(3)PLJR 26(SC)] and of Managing Director, B.S.T.B. Publication Corporation & Anr. V. Md. Sahabuddin & Ors. [2001(3) BLJR 2140] We do agree with Mr. Avaneesh Nandan Sinha. The petition initially presented was only to the extent the eligibility criteria were set up for appointment of the Managing Director of the Corporation. Under the said advertisement, a person who is not less than 45 years of age and not more than 65 years of age, was made eligible to apply for such appointment. By seeking amendment to the writ petition the petitioner seeks to expand the scope of the writ petition. In our opinion, the scope of the writ petition cannot be expended by seeking amendment as is done in the present case. If at all aggrieved, the petitioner ought to have filed a substantive writ petition to challenge the appointment of the aforesaid Sri Ashok Kumar Pandey. In view of the above discussion, the Interlocutory Application No. 1946 of 2011 is rejected. As we have discussed above, the initial challenge 5 to the advertisement made in the writ petition does not survive, the petition and the Interlocutory application are accordingly disposed of. We may clarify that we have not examined whether or not a Public Interest Litigation for challenge to the appointment of the Managing Director of the Corporation shall lie. The question is kept open. The petitioner will be at liberty to file a substantive proceeding, if it so chooses. Bibhash (R.M.Doshit, CJ.) (Jyoti Saran, J.)