IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.303 of 2011 LALLAN PRASAD SINHA, SON OF LATE PURNENDU NARAYAN SINHA, RESIDENT OF MOHALLA ROAD NO. 11F, PLOT NO. 67/E, RAJENDRA NAGAR, P.S. KADAMKUAN, DISTRICT PATNA-------------------PETITIONER Versus 1.THE STATE OF BIHAR THROUGH CHIEF SECRETARY, GOVT. OF BIHAR, PATNA 2.THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA 3.THE PRINCIPAL SECRETARY, DEPARTMENT OF ENERGY, GOVT. OF BIHAR, PATNA 4.DEPUTY SECRETARY, DEPARTMENT OF ENERGY, GOVT. OF BIHAR, PATNA 5.JOINT SECRETARY, DEPARTMENT OF ENERGY, GOVT. OF BIHAR------ ------RESPONDENTS with CWJC No.20241 of 2010 JAWAHAR LALL SON OF LATE ANANDI PRASAD YADAV, R/O MALOUDHA, P.S.SONEBARHA, DISTRICT SAHARSA, AT PRESENT POSTED AS CHIEF ENGINEER, BIHAR STATE HYDROELECTRIC POWER CORPORATION, SONE BHAWAN, VEER CHAND PATEL PATH, PATNA---- -------PETITIONER Versus 1.BIHAR STATE HYDROELECTRIC POWER CORPORATION THROUGH ITS MANAGING DIRECTOR, SONE BHAWAN, VEER CHAND PATEL PATH, PATNA 2.MANAGING DIRECTOR, BIHAR STATE HYDROELECTRIC POWER CORPORATION, SONE BHAWAN, VEER CHAND PATEL PATH, PATNA 3.THE STATE OF BIHAR THROUGH PRINCIPAL SECRETARY, DEPARTMENT OF ENERGY, GOVT. OF BIHAR, PATNA 4.THE PRINCIPAL SECRETARY, DEPARTMENT OF ENERGY, GOVT. OF BIHAR, PATNA 5.DEVELOPMENT COMMISSIONER, GOVT. OF BIHAR, PATNA- ------RESPONDENTS ----------- For the petitioner in C.W.J.C.No.303 of 2011:M/S Y.V.Giri, Sr.Advocate Naresh Dikshit, Brij Bihari Tiwary,Advocates For the State :Mr.Rajesh Kumar No.2,G.P.21 Mr.Rajesh Kumar Sinha, AC to GP 21 For the petitioner in C.W.J.C.No.20241 of 2010:Mr.Shashi Anugrah Narayan, Sr.Advocate & Mr.Kunal Tiwary, Advocate For the State :Mr.Rishi Raj Sinha, G.P.XIX 2 ------- 4. 20.01.2011 Heard learned counsels for the parties. Both these writ applications have been filed with respect to the issue of appointment of the Managing Director of the Bihar State Hydroelectric Power Corporation. The petitioner Lallan Prasad Sinha in C.W.J.C.No.303 of 2011 seeks quashing of the order dated 31.12.2010 issued by the Energy Department. Government of Bihar, by which the Principal Secretary, Energy Department, who was functioning as the Chairman of the Corporation, has been appointed as the Managing Director under Article 49(i)(a) of the Articles of Association of the Corporation until further orders in addition to his other charges. The further relief prayed for by the petitioner is a direction upon the respondent authorities to allow the petitioner to function as Managing Director of the Bihar State Hydroelectric Power Corporation till he attains the age of 65 years. C.W.J.C.No.20241 of 2010 has been filed by the petitioner Jawahar Lall seeking a direction on the respondents to consider the claim of the petitioner for appointment to the post of Managing Director of the Corporation in the light of the order dated 20.11.2009 passed in L.P.A.No.1370 of 2009 3 and the order dated 22.3.2010 passed in C.W.J.C.No. 4108 of 2010. So far as the petitioner Lallan Prasad Sinha of the first writ petition is concerned, an objection is taken by learned counsel for the State that for the same direction to allow the petitioner to function as Managing Director of the Corporation till he attains the age of 65 years the petitioner had earlier filed C.W.J.C.No.4357 of 2010 which was disposed of by order dated 29.7.2010 directing the competent authority to consider the case of the petitioner along with all other eligible candidates for appointment on the post of Managing Director of the Corporation as and when the said appointment is made, provided he is eligible for being considered for the said post. The petitioner challenged the said order by filing L.P.A.No.1486 of 2010 which was dismissed in limine by order dated 24.9.2010 holding as follows : “As to the right to continue till he attains the age of 65 years, we may observe that the re- employment is not a condition of service. Once the appellant reached the age of superannuation, he cannot claim continuance as a matter of right.” It is, thus, submitted by learned counsel for the State that the petitioner has completely suppressed the fact that for 4 the same relief No.2 here he had earlier filed a writ petition in which the said prayer had been ultimately rejected, and has tried to mislead the Court by stating in paragraph-21that he has not moved before this Court on any earlier occasion against the impugned order dated 31.12.2010. This Court finds sufficient force in the submission of learned counsel for the State. By not at all adverting to the earlier writ application in which relief No.2 was the same as in the present writ petition, such writ petition suffers from suppression of vital facts. It is, thus, fit to be rejected on this sole ground. So far as the challenge to the order dated 31.12.2010 is concerned, the main contention of learned counsel for the petitioner is that under the advertisement issued by the State Government itself for appointment on the said post the candidates must have degree in Engineering/preferably with MBA and having familiarity with human resource development, finance, etc., apart from others. It is submitted that the said qualifications are not possessed by Sri Ravikant, Principal Secretary in the Energy Department and, thus, he cannot be allowed to hold the post of Managing Director. 5 Learned counsel for the State, on the other hand, points out that under Article 49(i)(a) the only requirement is that the Managing Director should be appointed by the State Government and no such qualifications have been fixed therein and, thus, the appointment cannot be per se challenged on the said ground since it is not an appointment under the advertisement in question; but, as is evident from the notification dated 31.12.2010 itself, an ad hoc arrangement has been made till regular appointment is made in future, which process it is stated has been postponed on the basis of the interim order passed by this Court. This Court is also in agreement with the aforesaid submission of learned counsel for the State. In any view of the matter, C.W.J.C.No. 303 of 2011 is not fit to be maintained before this Court in view of the deliberate suppression of the fact regarding the petitioner having earlier filed a writ petition with respect to the similar relief. It is, accordingly, dismissed. However, it is made clear that the rejection of the writ petition shall not come in the way of the petitioner’s case being considered by the respondents in the light of the earlier 6 order of this Court dated 24.9.2010 passed in L.P.A.No.1486 of 2010. So far as C.W.J.C.No.20241 of 2010 is concerned, it is evident from the facts stated in the writ petition itself that earlier also the petitioner Jawahar Lall had approached this Court by filing C.W.J.C.No.13372 of 2009 for a direction upon the respondents to follow the past practice of appointing senior most Engineer/Chief Engineer in the Corporation as the Managing Director of the Corporation and he ought to be appointed as such but the said contentions were rejected by this Court holding that the issuance of advertisement is within the power of the Government and there is no legal right of the writ petitioner to claim the post of Managing Director only by virtue of the past practices and, accordingly, the writ petition was dismissed. By order dated 20.11.2009 L.P.A.No.1370 of 2009 filed by the petitioner was also dismissed agreeing with the views expressed by the writ court but liberty, however, was granted to the petitioner to represent before the concerned authorities observing that it will be for the authorities to consider such representation on its own merits. Thereafter the petitioner again filed C.W.J.C.No.4108 of 2010 which was disposed of by order dated 22.3.2010 7 observing that the representation of the petitioner dated 22.9.2009 which was pending consideration before the Principal Secretary, Energy Department should be considered in the light of the observations of the Division Bench in its order dated 20.11.2009 and, accordingly, the Principal Secretary was directed to consider the representation of the petitioner in accordance with law, as early as possible, in any case within a period of two months from the date of receipt of the fresh copy of the representation dated 22.9.2009 along with a copy of the order. The petitioner claims that the said representation has not been considered and disposed of by the Principal Secretary. In the counter affidavit filed on behalf of the respondent State it is stated that the Principal Secretary has, in fact, disposed of the said representation by order dated 22.12.2010. It is stated that the petitioner did not file a fresh copy of the representation dated 22.9.2009 along with the copy of the order of the High Court which he had filed. However, the representation dated 14.8.2009 of the petitioner which was forwarded by letter No. 3273 dated 22.9.2009 of the Corporation for promotion to the post of Managing Director 8 has been rejected and communicated to the petitioner by the said letter dated 22.12.2010. Learned counsel for the petitioner submits that the said letter merely refers to the proceedings of the Selection Committee dated 3.3.2010 in which it was found that the petitioner had not applied for the post of Managing Director pursuant to the advertisement published in this regard and, accordingly, his case was not fit for consideration and the Principal Secretary has merely rejected the representation relying upon the said views of the Selection Committee. It is submitted that there has been no independent application of mind by the Principal Secretary to the claim of the petitioner. This Court does not find much force in the submission of learned counsel for the petitioner. This Court in the earlier writ petition and L.P.A. had clearly rejected the claim of the petitioner for being appointed on the post of Managing Director merely on the basis of prevailing past practice and only permitted the petitioner to represent before the authorities and it was for the authorities to consider such representation on its own merits. There was no direction by the L.P.A. Bench in its order dated 20.11.2009 that the representation had to be considered in any particular manner. 9 In the said circumstances, it was open to the Principal Secretary to have considered the claim taking into account the views of the Selection Committee which was going to take into consideration the appointment of the Managing Director of the Corporation and thus no right can be said to have accrued in favour of the petitioner as claimed merely on the basis of the observation of the L.P.A. Bench. This Court having already rejected the claim of the petitioner for being appointed on the post of Managing Director no occasion arises to reconsider the same on the basis of the representation of the petitioner. There being no merit in the writ application, it is, accordingly, dismissed. The interim order passed on 15.12.2010 stands vacated. (Ramesh Kumar Datta,J.) Spal/