Letters Patent Appeal No.442 Of 2000 ***** Against the judgment and order dated 6th October, 1999 passed by the learned Single Judge in CWJC No. 3925 of 1998. ***** STATE OF BIHAR & ORS----------------------- Appellants Versus AJIT KUMAR SINGH-------------------------Respondent ---with--- Letters Patent Appeal No.967 of 2000 ***** Against the judgment and order dated 7th February, 2000 passed by the learned Single Judge in CWJC No. 10368 of 1997. ***** THE STATE OF BIHAR & ORS----------------- Appellants Versus SURENDRA PRASAD & ORS------------------- Respondents ***** (In LPA No.442/2000) For the Appellants:- Mr Mithilesh Mowar, JC to G.P XI. For the Respondent:- Mr Umesh Kumar Singh, Advocate. (In LPA No. 967/2000) For the Appellants:- Mr Braj Kishore Pd. Sinha, G.P. 3 with Mr Suryakant Kumar, JC to G.P. 3. For the Respondents:- Mr Ganesh Pd. Singh, Sr. Advocate, Mr Mukesh Kr. Thakur and Mr Arbind Kr. Singh, Advocates. ***** P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH AND THE HON'BLE MR. JUSTICE CHANDRA MOHAN PRASAD Barin Ghosh and Chandra Mohan Prasad, JJ.- Heard learned counsel for the parties. On the basis of an advertisement published in 1985, a panel of candidates was prepared for appointing persons from that panel to the posts of Assistant Teachers in Siwan District for the purpose of teaching in Primary Schools. The advertisement in question which was the forerunner of preparation of the said panel 2 restricted participation of candidates in the selection process. Similar was the case in other districts. From the panel, appointments were given. On 1st March, 1989, the Government stayed appointments from such panels. On 2nd July, 1989, the Government cancelled those panels. The above steps were taken by the Government in view of the judgment rendered by a Division Bench of this Court in the case of Anil Kumar Vs. Chief Secretary to the State Govt. of Bihar, 1987 PLJR 846, where the advertisement was published and the panel was prepared in the similar fashion, but in relation to a different district. In the case of Anil Kumar (supra), this Court declared that the panels prepared on the basis of residents of a particular District is violative of Articles 14 and 16 of the Constitution of India. The Court, however, did not disturb the appointments which were given by then. In that background the Government by the order dated 1st March, 1989 stayed further appointments from the panel and ultimately on 2nd July, 1989, the panels in question were cancelled. As a result, the panel prepared for the District of Siwan stood cancelled. In Birendra Kumar Shrivastava & ors. Vs. State of Bihar & Ors., (CWJC No. 4843/1988), decided on 5th November, 1990, a group of people, who were in the panel prepared for the District of Siwan unsuccessfully challenged the decision of the Government staying appointments from the panel and cancellation of the panel. While considering the said writ petition, by the judgment and order dated 5th November, 1990, a Division Bench of this Court also quashed all appointments granted from the panel prepared for the 3 District of Siwan. The people, who had been appointed from the said panel, but, who lost their appointments by reason of the said judgment of this Court rendered in Birendra Kumar Singh’s case (supra), approached the Hon’ble Supreme Court when the Hon’ble Supreme Court in Sabita Prasad Vs. State of Bihar & ors., reported in 1994 (1) PLJR 62 SC, neither interfered with the judgment and order rendered in Birendra Kumar Shrivastava, nor disturbed the orders of the Government dated 1st March, 1989 and 2nd July, 1989. The private respondents in these two appeals were in the 1989 panel. They contended in the writ petitions that many persons including Jai Mangal Singh, Braj Nandan Singh and Ajit Kumar Singh were also in the said panel and their positions in the panel were above Jai Mangal Singh, Braj Nandan Singh and Ajit Kumar Singh. Respondent – petitioner in the first Appeal, referred to in the cause title of this judgment, insisted that he and Jai Mangal Singh were in the same panel, but, as appears from the judgment and order rendered in the said writ petition, the same was not insisted upon at the time of hearing of the writ petition. Furthermore, the said respondent – petitioner approached this Court once earlier when a Division Bench finding that Jai Mangal Singh has been reinstated directed consideration of the case of the respondent – petitioner in view of such reinstatement and, upon reconsideration, the authorities concerned held that Jai Mangal Singh was in the 1983 panel, whereas the said respondent - petitioner was in the 1985 panel. Although in the petition it was stated that Jai Mangal Singh and said respondent - 4 petitioner were in the same panel, but no effort was made to show independently that apart from being in the 1985 panel, the said respondent - petitioner was also in the 1983 panel or that the 1983 and 1985 panels were amalgamated. Be that as it may, the said respondent – petitioner succeeded in demonstrating that Ajit Kumar Singh was below him in the 1985 panel. On such basis he succeeded before the Writ Court. Similar is the finding in relation to the respondents – petitioners in the appeal registered as second Appeal in the cause title of this judgment, where also it was found that Jai Mangal Singh was in the 1983 panel and, accordingly, was not comparable with the respondents – petitioners, but one Braj Nandan Singh was in the 1985 panel and the respondents - petitioners were above Braj Nandan Singh in the said panel. On that premise, the said writ petition too was allowed. There cannot be any dispute that a person in the panel has a right to be appointed as and when his turn comes. Therefore, the logical conclusion would be that if the person below in the panel is appointed, the person above him acquires a right to be appointed. There appears to be no dispute that Braj Nandan Singh and Ajit Kumar Singh, who were appointed from the 1985 panel, were below the respondents – petitioners in these appeals in the said panel, but the question is whether Braj Nandan Singh and Ajit Kumar Singh, can at all be compared with the respondents – petitioners in these appeals for the purpose of ascertaining whether the respondents – petitioners were entitled to be appointed? When the panel has been cancelled and such 5 cancellation has not been interfered with, the logical conclusion would be that the panel does not exist. Respondents – petitioners, therefore, cannot contend that they are in a panel in which others are also there and, accordingly, the respondents – petitioners can be compared with those others. The conclusion would, therefore, be that Braj Nandan Singh and Ajit Kumar Singh were not in any panel in existence but, at the same time, respondents – petitioners in these appeals were similarly not in any panel. Appointment of Braj Nandan Singh and Ajit Kumar Singh, without they being in any panel, may be interferable on the ground that those appointments do not stand to any justification, but the respondents – petitioners in these appeals are not entitled to compare themselves with either Braj Nandan Singh or Ajit Kumar Singh. In the circumstances, once the judgments and orders under appeal have been rendered on the premise that the respondents – petitioners in these appeals are still in the panel, the judgments and orders under appeal are set aside and at the same time the writ petitions are dismissed. ( Barin Ghosh, J. ) ( Chandra Mohan Prasad, J. ) Patna High Court. The 1st September, 2008. AFR DK.