Letters Patent Appeal No.762, 641 & 547, all OF 2000 ******* Against the judgment dated 02.3.2000 passed in CWJC no. 337 off 1999. ******* MUKTI BANERJEE---------------Appellant (In CWJC no.762/2000) BHARAT SINGH & ANR.----------Appellants (In CWJC no. 641/2000) DINESH PRASAD SINGH & ORS.---Appellants (In CWJC no. 547/2000) Versus THE STATE OF BIHAR & ORS---Respondents (In all cases) ******* For the Appellants : M/s J.P. Shukla, Gayanendra Shukla, R.P. Singh, Rashid Izhar, & Ranjan Kr. Srivastava For the State : M/s Shashi Bhushan Kumar,SC 16, & Rajeev Kumar, JC. ******* P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Barin Ghosh & J.N.Singh, JJ. In the years 1986/87/88 services of a large number of people working in the Collectorate, Gopalganj, had been dispensed 2 with on the ground that appointments of those persons were illegal. 2. In the year 1988 a person approached this Court in a writ petition registered as CWJC no. 250 of 1988. The said writ petition was decided by a Division Bench of this Court, when by the order dated 15th January, 1988, the Court noticing that the appointment of the petitioner in the said writ petition, being an adhoc appointment in a post of teacher, held that there is no scope of interference. The Court, however, felt that vacant posts should be supplied and for that matter directed steps to be taken including putting up an advertisement. The Court observed that the state may consider the desirability of relaxing age limit of the petitioner in the said writ petition if he responds to the advertisement. The Court granted liberty to the State to appoint adhoc teachers for the 3 period it would take time to complete the selection process, but made it explicitly clear that such appointment shall not give any advantage in the matter of selection, however, the experience gained in the appointment continuously held by such adhoc teachers shall be taken note of. 3. At the same time, some of such disengaged employees also filed writ petitions registered as CWJC no. 693 of 1988, CWJC no. 4395 of 1986 and CWJC no. 8619 of 1988. These three writ petitions were decided by a learned single Judge of this Court by a common judgment and order dated 26th February, 1997. The learned Judge held that the initial appointment of the petitioners in those writ petition had been made without any advertisement, without adopting any selection procedure and, accordingly, such appointments were in violation of Article 16 of the 4 Constitution. The Court, therefore, held that there is no scope of interference with the orders terminating such illegal appointments of the petitioners in the said writ petitions and also with the order rejecting representation of the petitioners in the said writ petitions in relation to such orders terminating their illegal appointments. In as much as the order rendered in CWJC no. 250 of 1988 by the Division Bench was brought to the notice of the learned Judge and in as much as the learned Judge found as a fact that the said order has not yet been complied with, the learned single Judge issued similar directions as were issued by the Division Bench. At the same time, although at the time of rendering the said judgment Rules for recruitment had been altered, the learned Judge directed that the Rules prevalent for recruitment as on 15th January, 1988, i.e. the date when the judgment 5 was rendered by the Division Bench in CWJC no. 250 of 1988, should be adhered to upon ascertaining the vacancies as were then available. 4. Subsequent thereto an advertisement was published which was responded by the petitioners in the writ petitions registered as CWJC nos. 693 of 1988, 4395 of 1986 and 8619 of 1988. The said petitioners thereupon filed three writ petitions registered as CWJC nos. 387 of 1999, 4998 of 1999 and 602 of 1999 challenging the selection of the candidates pursuant to the said advertisement and refusal to select the petitioners in the said writ petitions. The learned single Judge by the judgment and order under appeal dealt with by the said three writ petitions and thereby refused to interfere, but directed the authorities concerned to verify the marks and certificates of selected candidates. Being 6 aggrieved by the said judgment and order, the present appeals have been filed and since the appellants have challenged the self same judgment and order we have decided to deal all the three appeals by this common judgment. 5. It was the case of the appellants before the writ court, which has been repeated before us, that the advertisement was wrong on two counts, namely, it did not give the correct number of vacancies and it gave relaxation of age to all and sundry but not confined the same only to the petitioners. They contended that the selection was made on the basis of marks obtained by candidates in Matriculation examination and not through the process of written examination followed by interview as was required to be done. They contended that in the selection weightage for experience was given to them by granting only one point for one year of experience and not 7 more than that. They contended that certificates produced by the candidates to show how they have faired in the Matriculation Examination had been accepted on their face value without verification and such conduct on the part of the Selection Authority was wrong. They contended that the respondent no.5, who was not a member of the Selection Committee, was made a member of the Selection Committee and as such the selection is vitiated. 6. Each of the afore-mentioned contentions have been vividly dealt with by the learned Judge in the judgment and order under appeal. There is no just reason for us to add anything further. 7. We would, however, add a few words. The advertisement as such was not challenged in any of the writ petitions. It was contended that the eligibility criteria as 8 regards age, as was mentioned in the advertisement, was perfectly justified in so far as the petitioners are concerned, in as much as Court, in relation to the petitioners only gave a discretion to the State and its Officers to give relaxation, but not to others. In the circumstances, it was contended that the advertisement was not justified. The advertisement mentioned in no uncertain terms that age relaxation may be granted only to the petitioners in those writ petitions but not to others. However, since in the advertisement published in 1998 the age of candidates as on 15th January, 1988 had been fixed in between 18 and 30 years for general candidates and up to 35 years for schedule caste and schedule tribe candidates, it was contended that by reason thereof without obtaining age relaxation, people who, as on the date of the advertisement, were not 9 within the age of 18 to 30 years or 18 to 35 years as applicable to general and schedule caste/ schedule tribe candidates respectively, got an opportunity to respond to the said advertisement and, accordingly, age relaxation for all and sundry had been accorded. A recruitment which ought to have had been made on 15th January, 1988 was not made on 15th January, 1988. The first step to make such recruitment, i.e publishing an advertisement, was taken in 1998 only. All the people who were entitle to respond to the advertisement for such recruitment had no occasion to come to Court because they had not been illegally appointed in any post. Because they had not been illegally appointed to a post and because the petitioners having been so appointed were discharged and, accordingly, had to come to Court, when even the Court did not give them any relief, they could not get any preference 10 over those other persons who did not take recourse to illegal appointment. The fact remains that the petitioners could not convince a Court of equity established by a Constitution of a free democratic country that their appointments were not illegal. The Court, therefore, granted an expressed discretion to grant age relaxation. The learned counsel for the appellants submitted that the State ought to have had used its discretion to relax age of the appellants only for they had been appointed, as a result whereof they did not try for any other employment, while in employment, and in any event they earned experience, while working. The employment that was accorded to the appellants has been declared to be illegal. Because those were illegal appointments, it must be deemed that the appellants knew that the same were illegal. Despite such illegal 11 appointments if they had not tried their luck for proper appointments it was their choice. It is true that despite being illegally appointed, they earned experience, but the fact remains that others did not get an opportunity to be so appointed. If others had similarly been illegally appointed, they could have earned similar experience. The above argument of the appellants, therefore, is not acceptable. In the circumstances, when the step to fill up vacancies of 1985 had been taken in 1998 it was obligatory on the part of the State to permit each one of the persons eligible to supply such vacancies to offer himself for that purpose and if it had not done so, the same would have been contrary to the provisions of Articles 14 and 16 of the Constitution. The learned counsel for the appellants then submitted that when steps to make the recruitment of 1985 was initiated in 12 1998 and not in 1985, people eligible in 1998 ought not to have had been allowed to participate in selection process. This submission has been made without reading the advertisement for the advertisement makes it abundantly clear that people who had the eligibility i.e. were in the age limit as had been prescribe ed in Rules, as on 15th January, 1988, were only made eligible to apply. 8. The prevalent Rules made it explicit that selection must be made on the basis of marks obtained in the Matriculation Examination, which was the required qualification for appointment to the posts in question. Rule 148 of the Rules makes it abundantly clear that such qualification is a must. In addition to that qualification, eligible age, etc. are required. There is an exception thereto, which provides that in the event no person having qualification of 13 Matriculation is available, but persons having other qualifications as prescribed in the Rule are available, then a written examination will be held amongst them. Relying upon this exception it was contended that a written examination was a must. The Rule itself makes such contention useless. Rule 148 says that knowledge of Hindi typewriting is not an indispensable qualification, but should count as an additional qualification. Therefore, knowledge of typewriting or absence of such knowledge is not an impediment and as such required no assessment. Rule 151 of the Rules do not say anywhere that an interview is a must. Furthermore, in the advertisement itself the procedure of selection had been mentioned, which had not been objected to. 9. It was contended that in addition to posts advertised, there were other vacant post 14 available. An objection based on such contention was not lodged immediately after the advertisement was published. After having had taken chance against the advertised post, the appellants turned around and sought to be appointed in the posts not advertised on the basis of selection for the posts advertised, which is not permissible. 10. It is true that if a person is not entitle to be a part of the selection process, but intermeddles with the same, the selection is vitiated. Therefore, until such time there is an intermeddling by an outsider, mere presence of a person, not entitle to be present, would not vitiate the selection process. In the instant case, the Establishment Deputy Collector, Gopalganj Collectorate, was not a person entitle to be a part of the Selection process, but, however, the selection process as prescribed was only 15 to ascertain who has secured better marks in the Matriculation examination. It is not the contention of the appellants that any of the appellants has obtained better marks in Matriculation Examination than the last person who has been appointed. There is no contention that assessment otherwise or marks to be accorded, except in respect of one aspect dealt herein below, were unjust. That being the situation, in law it shall only be construed that Establishment Deputy Collector, Gopalganj Collectorate, only assisted the other members of the Selection Committee for the purpose of ascertaining which of the applicants, who responded the said advertisement, obtained better mark and, therefore, there was no intermeddling by him with the Selection process resulting in the appointments. 16 11. It was contended on the strength of the judgment rendered by the Hon’ble Supreme Court in the case of Special Leave Petition (Civil) No. 18594 off 1994 (Ram Kumar Sharma and Ors. Vrs. Rajendra Agricultral University and Others) rendered on 18th February, 1998 that the appellants were entitled to two points for one year of experience. In that case, firstly the Supreme Court was considering the question of regularization of casual employees and not of fresh appointments. Secondly, the order depicts that there is no reason furnished why two points for one year of experience shall be granted. The reason therefor is clear, for the order itself records that the same is being passed at the invitation of both the parties to the lis. 12. The principal contention of the appellants was that if the eligible age of the candidates had been fixed as on the date of 17 publication of the advertisement and only age relaxation to the appellants had been granted, the appellants would have got more points in their favour than others because they were over aged. Therefore, the principal grievance is that the same having not been done they have lost to others. In other words, they wanted to contend that though they were declared to be illegal appointees, but by the order of the learned single Judge a right to be employed had been created in their favour. We have failed to find grant of any such right. Then again in the advertisement itself it had been mentioned what is the eligibility criteria as regards age of the applicants, who would be responding the advertisement. But, as aforesaid, the same was not challenged at all. In any event, if the advertisement had invited applications from candidates, who were of eligible age as on the date of the 18 advertisement, but only the appellants had been made entitled to secure relaxation, that would have been so gross and violative of Articles 14 and 16 of the Constitution that the same could not stand even for a day and in particular for the reason that a person who was not eligible to supply a vacancy of 1985 would have been made eligible to supply the same. 13. The learned counsel for the appellants submitted that in one of the writ petitions it was alleged that the respondent no.6, namely, Sitaram Prasad, became a Matriculate from one School and thereupon once again became a Matriculate from another School and whereas his date of birth in the first Matriculation Examination certificate is one, the same is different in the second Matriculation Examination certificate and at the same time he obtained different marks in 19 those Matriculation Examinations. It is true that Sitaram Prasad along with other private respondents to the said writ petition had filed an affidavit but did not deal with such assertion, however, the fact remains that grant of the later Matriculation certificate by the Bihar School Examination Board was not challenged in the said writ petition in presence of the Bihar School Examination Board. In any event, while disposing of the writ petitions by the judgment and order under appeal, the Court has directed verification of marks and certificates of selected candidates, which normally encompasses verification of eligibility to appear also and that would cover the subject arena. 14. For the reasons, as above, we find no scope to interfere with the judgment and order under appeal and as such dismiss the appeals. With great effort we have restrained 20 ourselves from imposing exemplary cost while dismissing these appeals for a person may be permitted to blow hot, hotter and hottest, but not hot and cold in the same breath. Having had tried their luck on the basis as was put forth in the advertisement strictly in terms of the aforementioned judgment of this Court obtained by the appellants, it was shameful on the part of the appellants to turn around and question the advertisement itself. The present litigation which has wasted valuable time of the Court has left unanswered the question who is responsible for this waste of valuable time of Court, waste of public money and loss of money, time and energy of poor litigants waiting for years for a verdict, to their causes. Question also remains unanswered as to what extent Courts are burdened with such frivolous litigations 21 adding to their backlog and pendency and to what remedy. (Barin Ghosh, J.) (J.N. Singh, J.) Patna High Court, The 07th July, 2008. AAhmad/ (NAFR)