IN THE HIGH COURT OF JUDICATURE AT PATNA MJC No.1349 of 2010 Binod Kumar Singh, Son of Sri Paltan Singh, resident of Village Badalpura, P.S. Chapra Muffasil, District Saran at Chapra. -------- Petitioner Versus 1. State of Bihar. 2. Sri Lokesh Kumar Singh, District Magistrate, Saran at Chapra. 3. Sri Birendra Kumar Mishra, Deputy Collector, Establishment, Saran at Chapra. ------ Opposite Parties With MJC No.4179 of 2010 Binod Kumar Singh ----- Petitioner Versus The State of Bihar & ORS. ---- Opp. Parties ----------- For the Petitioner : Mr. Satish Chandra Jha, Advocate For the State : A.C. to G.A.-6 ----------- PRESENT HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (18.03.2011) Mihir Kumar Jha, J. Heard Mr. Satish Chandra Jha, learned counsel in MJC No. 1349 of 2010 and Mr. AC to GA-6 in MJC No. 4179 of 2010. 2. Both the applications arise out of the same order dated 21.8.2009 in CWJC No. 1002 of 2003 but, the prayer made in both the applications are entirely different. 3. While the petitioner in MJC No. 1349 of 2010 has made a prayer for initiating a proceeding of contempt for non- compliance of the direction contained in the order dated 21.8.2009 in the connected writ application, the prayer made in the other 2 application MJC No. 4179 of 2010 is to modify/recall the aforesaid order dated 21.8.2009 on the ground that subsequently on 17.8.2010 an order has been passed by this Court in CWJC No. 2390 of 2010 by virtue of which the State of Bihar and its officials particularly the Collector of Saran district have become helpless in complying the order of this Court dated 21.8.2009 in CWJC No. 1002 of 2003. 4. Mr. Jha learned counsel for the petitioner has submitted that the order of this Court dated 21.8.2009 need not be modified, inasmuch as, the said order, in absence of any appeal, has already become final and, in fact, when the opposite parties have also admitted in their own application M.J.C. No. 4179/2010 seeking modification of the same order dated 21.8.2009 that the Collector, Saran had also partly complied the said order by preparing and notifying the panel on 21.11.2009 there would be now no question of going back as with regard to complying of the remaining portion of the directions of the same order namely, appointing the persons from the aforesaid panel prepared and notified by the Collector 3 of Saran district. 5. In this context, Mr. Jha has also laid stress on the aspect that the solitary reason for seeking modification in the earlier order dated 21.8.2009 in the case of the petitioner on account of there being a subsequent order of this Court dated 17.8.2010 in CWJC No. 2390 of 2010 can never be a justifiable ground for the Collector of Saran district inasmuch as if he had failed to bring to the notice of this Court while passing the order dated 17.8.2010 as with regard to existence of a direction given in the earlier order of this Court dated 21.08.2009 on the same subject, the remedy for him was/is to seek modification and/or classification of the order dated 17.08.2010 in C.W.J.C No. 2390 of 2010 instead of filing of this application seeking modification in the order dated 21.8.2009 in CWJC No. 1002 of 2003. 6. Learned AC to GA-6, on the other hand has submitted that from the records of the connected case CWJC No. 2390 of 2010, it would transpire that the case was disposed of on the very first day without filing of the counter affidavit by the Collector, Saran 4 district and the concerned Law Officer, appearing in that case, was not even aware of the order of this Court dated 21.8.2009 in CWJC No. 1002 of 2003. He would further submit that in any event the Collector of the Saran district, in view of the subsequent order of this Court dated 17.8.2010, finds himself in a helpless situation in complying the remaining portion of the direction in the order dated 21.8.2009 in CWJC No. 1002 of 2003 and as such the order of this Court dated 21.08.2009 should be modified and direction for appointment from the notified panel should be recalled in view of the findings and directions given in the order dated 17.8.2010. 7. This Court, having appreciated the rival contentions made by the counsel in both the cases, is of the considered opinion that no ground has been made out by the counsel for the State to recall or modify the direction given by this Court in the order dated 21.08.2009 in C.W.J.C No. 1002 of 2003. 8. In this context it has to be noted that the writ application, filed by the petitioner Binod Kumar Singh working as candidate peon in Saran district for last 15 5 years being CWJC No. 1002 of 2003, was filed on 23.01.2003 at the point of time when the advertisement, in question, being Advertisement No. 0C/4 of 2000 dated 01.06.2000 had not been given effect to on account of non-preparation of panel. Infact a prayer was made by the petitioner Binod Kumar Singh for preparation of a panel in accordance with advertisement published by the Collector of Saran district on 01.06.2000 and also to make his appointment against a class-IV post in Saran Collectorate, on the basis of his position in the panel. 9. It has to be also kept in mind that the said relief was itself based on an earlier direction of this Court in the earlier writ application of the petitioner Binod Kumar Singh contained in an order dated 04.03.2002 in C.W.J.C No. 3184 of 02 wherein, this Court had given a direction to prepare a panel on the basis of the advertisement dated 01.06.2000, within a period of three months. Thus it would be clear that there was a subsisting direction for preparation of a panel in respect of the advertisement dated 1.6.2000 right from 04.03.2002 itself and that could not been nullified by a subsequent 6 direction as given in the order dated 17.8.2010. 10. In this context it has to be also kept in mind that this court in fact having appreciated the grievance of the petitioner Binod Kumar Singh as with regard to non-preparation of panel in C.W.J.C NO. 1002 of 2003 as against the advertisement dated 1.6.2000 had passed the following order on 27.03.2003 which would speak for itself:- “Heard counsel for the parties. It appears that this is the second writ application of the petitioner for regularization of his services on class-IV post. The petitioner had earlier moved this Court for the same self-relief in C.W.J.C NO. 3184 of 2002 and this Court vide order as contained in Annexure-1 dated 04.03.2002 disposed of the writ application in the following terms:- “However, in view of the grievance as indicted above, this writ petition is disposed of directing the authority concerned/respondent no. 2 to prepare a panel pursuant to Annexure-4 preferably within 3 months from the date of receipt/production of a copy of this order considering the importance of preparing the panel every year, if not prepared.” It appears that this Court issued direction to respondent no. 2 to prepare the panel pursuant to Annexure-4 preferably within three months from the date of receipt/production of a copy of the order. 7 A counter affidavit has been filed on behalf of the respondents which has duly been sworn by the Deputy Collector, Nazarat, Saran, Chapra Collectorate. The counter affidavit is silent so far as the direction issued by this Court is concerned. No averment whatsoever has been made as to whether the respondents have complied with the direction of this Court or they are intending to do so in the near future. In the counter affidavit, it is stated that no appointment can be made in view of the guidelines issued by the Finance Department. It means that the respondents knowingly are trying to frustrate direction of this Court at the face of the certain guidelines issued by the Finance Department. This, in my opinion, should not be allowed to be done. The respondents appear to be in contempt. Issue notice to respondent no. 2 and 3 to show cause as to why they should not be proceeded against for committing contempt of this Court’s order, as referred to above, under registered cover with acknowledgement due, for which requisite etc., must be filed within one week, failing which this application, as against them, shall stand rejected without further reference to a Bench. “ (underlining for emphasis) 11. It is infact after the said notice of suo motu contempt was issued by the Court that a show cause reply was filed on 02.05.2003 by the Collector of Saran district, wherein it was stated as follows:- “That the deponent joined as the Collector on 15th of May, 2002 and the application which was received for preparation of panel was more than 14,000 in number and the same was being scrutinised and the scrutiny took considerable time due 8 to the paucity of the concerned staff in the Collectorate, Saran. That it is most humbly submitted that in the earlier writ application No. 3184/2002 the order was passed in the following terms:- “However in view of the grievances as indicated above, this writ petition is disposed of directing the authority concerned/Respondent no. 2 to prepare a panel pursuant to Annexure-4 preferably within 3 months from the date of receipt/production of a copy of this order considering the panel every year if not prepared.” That it is further most humbly submitted that in compliance of the aforesaid order passed by this Hon’ble Court after scrutiny of the applications and also probable vacancies in IVth Grade of the Collectorate cadre was decided and thereafter a principle was adopted for empanelment of the candidate in preparation of the panel the meeting was held on 30.04.2003. As per the guidelines of the Personnel and Administrative Reforms Department in circular No. 16441 dated 03.12.80 and 3577 dated 25.04.97 as per the Guidelines the committee resolved as follows:- (a) First preference has been given to those persons who were included in prior panel-1 and whose maximum age of appointment for class- IV employees has not expired on 30th April, 2003. (b) Second preference has been given to those persons who were registered in employment exchange, passed Matriculation and hold other qualifications for the appointment of class-IV employees. Cut off date for age limit was decided 30th April, 2003. That it is further most humbly submitted that the panel was prepared considering the probable vacancies in class-IV by putting twice the number of the vacancies in the panel and also, keeping in mind the circulars of the Personnel and 9 Administrative Reforms Department the panel was approved by the deponent on 01.03.2003.” 12. Thus the panel dated 30.04.2003 was the first panel as against the advertisement dated 1.6.2000 which too was prepared after directions of this Court in two writ petitions of the petitioner. The petitioner, however, being not included in such panel dated 30.4.2003 had filed an Interlocutory Application assailing the aforesaid panel on various ground and had sought the following additional relief:- “To quash the proceeding of the meeting dated 30.04.2003 and panel prepared in consonance thereto whereby and whereunder cut-off date for preparing the panel has been fixed as 30.04.2003 ignoring the fact that cut-off date had already been fixed in advertisement No. 4/2000 dated 15.05.2000 as 01.01.2000 and aforesaid fact has even been noticed by the Hon’ble Court while disposing the C.W.J.C NO. 3184/2002 whereby and whereunder this Hon’ble Court with reference to aforesaid advertisement directed the respondent no. 2 to prepare a Panel pursuant to Annexure-4 preferably within 3 months from the date of receipt/production of a copy of this order considering the importance of preparing the Panel every year, if not prepared, however, respondent authority has prepared the Panel during the pendency of the instant writ application in complete violation of order dated 04.03.2002 passed in C.W.J.C NO. 3184 of 2002 and Advertisement No. 4/2000 dated 15.05.2000. Since the aforesaid proceeding dated 30.04.2003 and 10 Panel prepared pursuant thereto has already been annexed by the respondents in his show cause and has been marked as Annexure-A and B, therefore, same are not being annexed.” 13. The said Interlocutory Application was allowed by an order dated 20.05.2008, and when the writ application C.W.J.C NO.1002 of 2003 with the amended prayer was heard on 10.07.2009, this Court had found that introduction of a cut off date of 30.4.2003 for eliminating the candidates filing their application in response to an advertisement dated 1.6.2000 had passed the following order:- “Heard Counsel for the parties. Reference may also be made to the order of the court dated 27.3.2003. It is an unfortunate that despite a clear order of this Court dated 27.3.2003, the Respondent authorities particularly the Collector of Saran District does not chose to follow the mandate of law. An advertisement issued on 1.6.2000 (Annexure-4) had contemplated the cut off date 1.1.2000 for the purpose of reckoning the minimum and maximum age. The selection committee, however, in its meeting held on 30.4.2003 had eliminated all such candidates who had exceeded the maximum age as on 30.4.2003. This Court fails to understand how an artificial date 30.4.2003 came into existence and whether the date of holding a meeting by the Selection committee can become the criteria for fixing the eligibility condition. Obviously, this is not permissible in law. 11 Let the Collector of Saran District therefore appear in person and explain why such order was passed by the Selection Committee headed by him. Put up this case on 21st August 2009 on which date the Collector of Saran District must remain present in person. In the meantime, it would be open for him to revise the panel by including the names of persons who otherwise were eligible and thus entitled in terms of advertisement i.e. fulfilling also the qualification of age as on 1.1.2000. Let a copy of this order be given to G. A. 10. 14. It has also to be kept in mind that by another I.A no. 5598 of 2003 an intervention had already been made on behalf of as many as 23 persons namely Om Prakash Upadhayay, S/O Shambhu Nath Upadhayay, Siya Ram Chaudhary, s/o Mohan Chaudhary, Sawalia Tiwari s/o late Satyanarayan Tiwari, Dinesh Rai, s/o late Panchi Lal Rai, Suresh Chaudhary, s/o Mahesh Chaudhary, Surendra yadav s/o Ramashish Yadav, Chandrama Rai, s/o late Surya Rai, Ashok Chaudhary s/o Mohan Chaudhary, Sunil Kumar Chaudhary s/o Bikrama Chaudhary, Arun Kumar s/o Ramdeo Prasad, Bijendra Kumar Mishra s/o Ganesh Mishra, Ram Babu Rai s/o Mishri Rai, Rajeev Manjhi s/o late Bhikham Manjhi, Chandan Manjhi s/o Jaleshwar Manjhi, Bhola Prasad s/o late Ganesh Prasad, Madan Sah s/o late Ramayan 12 Sah, Bikrama Prasad s/o late Ramnath Sah, Kanti Devi, w/o Jawahir Sah and Krishna Kant Rai s/o Late Jagdish Rai claiming that they were also similarly situated, and equally aggrieved alike the writ petitioner Binod Kumar Singh by the alleged arbitrariness of the respondent Collector, Saran district in preparation of Panel dated 30.4.2003 in C.W.J.C. No. 1002/2003. 15. The Collector of Saran district thereafter in compliance of the order of this Court dated 10.07.2009, had appeared in person and had filed a show cause reply wherein he had taken the following plea: “That it is humbly submitted that the deponent has joined the post of District Magistrate, Saran on 03.08.2009. From the perusal of the records the deponent came across that a meeting of Committee for preparing the panel for the IVth Grad post was held on 30.04.2003. From the perusal of the minutes of the meeting, it appears that the date of meeting has been fixed as the cut off date. No logical reason has been assigned to this decision. That in compliance to the order dated 10.07.2009 passed by the Hon’ble Court where this Hon’ble Court had left it open to revise the Panel by including the names of persons who were otherwise eligible and thus entitled in terms of Advertisement. That in the light of the order dated 10.07.2009 of this Hon’ble court in the present writ 13 petition a meeting has been fixed as the cut off date. No logical reason has been assigned to this decision. That in compliance to the order dated 10.07.2009 passed by this Hon’ble Court where this Hon’ble Court had left it open to revise the Panel by including the names of persons who were otherwise eligible and thus entitled in terms of Advertisement. That in the light of the order dated 10.07.2009 of this Hon’ble Court in the present writ petition a meeting of selection Committee for preparing panel of class-IV post was held on 20.07.2009, in which it has been decided to prepare the panel by considering 01.01.2000 as the cut off date as mentioned in the advertisement no. 4/2000. That it is humbly submitted that in the light of the advertisement no. 4/2000 of Sub- Regional Employment Exchange, chapra, Department of Labours Employment and Training, 14059 applications had been received and all the applications are being scrutinized for the purpose of preparing the Panel. It is a time consuming work for which it is humbly submitted before this Hon’ble Court to grant three month’s time to prepare the Panel and to file a Supplementary Counter Affidavit.” 16. Thus in view of the admission of the Collector of the Saran district himself that certain mistakes were committed by him or his predecessor in Office in preparation of the panel dated 30.04.2003, and that he voluntarily wanted to amend the said mistakes by preparing a fresh panel that this Court had passed the order dated 14 21.08.2009, which reads as follows:- “Heard counsel for the arties. Reference may be made to the order of this Court dated 10.7.2009. Pursuant thereto Collector of Saran district had appeared in person and had explained that on account of inadvertent error cut off date for preparation of panel was taken to be 30.4.2003 but on reconsideration the cut off date for the purpose of age has been fixed as 1.1.2000. The Collector submits that as there are more than 1400 applications which had been filed in response of the aforementioned advertisement, scrutiny of all the applications for preparation of fresh panel will take some time. Considering the aforementioned submission of the Collector of Saran district as also the facts mentioned in the show cause filed by him, this Court would grant six weeks more time for preparation of draft panel which will be published in the newspaper and also to be made available in all the offices of the Collectorate. Any objection with regard to the panel if filed by any of the candidates within a period of two weeks from the date of notifying the draft panel shall be examined and such objection would be disposed of by a reasoned order to be communicated to the concerned persons within a period of four weeks. The final panel thereafter will be notified immediately thereafter. The entire exercise must be completed within a period of three months from today. After such panel is prepared, further steps as per vacancies available in terms of the advertisement will be taken by the Collector in the next three months. With the aforementioned observations/directions this application is disposed of. 15 Personal appearance of the Collector of Saran district is dispensed with.” 17. It is thus obvious that the 23 interveners were in fact also party to the aforementioned order of this Court dated 21.08.2009, inasmuch as, it was in their presence that a direction of this Court was given to the Collector of the district to prepare the panel and make appointment from the same and they too came to be benefited by way of fresh opportunity in getting their name included in the panel as they had been alike the petitioner Binod Kumar Singh were not included in the earlier panel dated 30.4.2003. 18. It is an admitted fact that the Collector of Saran district had strictly complied the aforesaid order of this Court dated 21.8.2009 within the prescribed time limit of three months by notifying a fresh panel dated 21.11.2009 and while the process of making appointment from the said panel was underway, the 58 unsuccessful candidates including 23 intervenors of C.W.J.C. No. 1002/2002 whose name did not find in the panel dated 21.11.2009 had filed a writ application C.W.J.C. No. 2390 of 2010 16 basically for inclusion of their names as well in the panel dated 21.11.2009. Thus the 23 intevenors becoming writ petitioners had owed a duty to furnish the entire background in which the panel dated 21.11.2009 was prepared under the order of this Court dated 21.8.2009 in C.W.J.C. No. no. 1002/2003. 19. It is also clear that the panel dated 21.11.2009 was not only prepared also at the behest of aforesaid intervenors but it was also well within their knowledge that the same was notified in compliance of a direction of this Court contained in the order dated 21.08.2009 in C.W.J.C. No. 1002 of 2003. It is however sad, if not unfortunate, to note here that the aforementioned 23 intervenors who had also joined some other persons by becoming petitioners in C.W.J.C No. 2390 of 2010 namely petitioner no. 2, 6, 28, 15, 9, 8, 5, 10, 7, 47, 29, 26, 30, 46, 1, 49, 16, 52, 19 and 13 respectively of C.W.J.C No. 2390 of 2010 some how became instrumental in nullifying the panel dated 21.11.2009 by suppressing material facts leading to preparation of panel dated 21.11.2009. These intervenors of C.W.J.C NO.1002 of 2003, in 17 fact, had a duty to inform this Court while moving in C.W.J.C No. 2390 of 2010 that they had not only earlier moved for inclusion of their name in the panel pursuant to the advertisement dated 01.06.2000, in C.W.J.C No. 1002 of 2003 but were also been party to the order dated 21.08.2009, directing the Collector of the district to not only to prepare the panel within a period of three months but also make appointment on vacant Class-IV posts on the basis of the aforesaid panel. 20. From the averments made in modification petition MJC No. 4179 of 2010, filed by the Collector of Saran district, it would however become clear that when a draft panel in compliance of the order of this Court dated 21.08.2009 in C.W.J.C. No. 1002 of 2003, was prepared objections were also invited and after considering the 849 such objections in all received till 31.10.2009 by the office of the Collector, Saran district and a final panel was drawn and notified on 21.11.2009 and therefore when the aforesaid 23 intervenors had filed their writ application C.W.J.C No. 4179 of 2010 they were under obligation to inform this Court 18 that steps for appointment from the said panel dated 21.11.2009 had been taken in view of their own prayer in the connected I.A. No. 5598/2003 in the writ petition, C.W.J.C No. 1002 of 2003. 21. As a matter of fact, in terms of the order of this Court dated 21.08.2009 in C.W.J.C. No. 1002 of 2003, the Collector of Saran district, having finalized the panel on 21.11.2009, was also required to make appointment on the available vacancy in next three months i.e by 21.2.2010 but, for no good and valid reasons, the Collector of Saran district, despite being himself the appointing authority and delegated with full power to make appointment of Class-IV post, had chosen to make an uncalled for reference to Personnel and Administrative Reforms Department and, in this way, he had conveniently flouted the order of this Court dated 21.08.2009 by not making appointment from the said panel in the prescribed period. 22. It is in this background that one has to also appreciate the emergence of CWJC No. 2390 of 2010 wherein 58 persons including 23 intervenors of C.W.J.C. No. 1002 of 2003 had moved this Court for inclusion of their 19 name