IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6412 of 2005 1. Arun Dwivedi son of Shyamdeo Dwivedi, resident of Kankerbagh, P.O. Lohia Nagar, Police Station Kankerbagh, District Patna 2. Nand Kishore Prasad Sinha son of Chandeshwar Prasad Sinha, resident of Chandmari Road, P.O. Lohia Nagar, Police Station Kankerbagh, District Patna 3. Neeta Kumari wife of Shri Durga Mahto, resident of Quarter No. C/5, Road No. 1, R’ Block, Patna- 800 001 4. Dhurvendra Kumar son of Shri Shiva Prasad, resident of Rental Flat No. 68, Kankerbagh Colony, District Patna- 800 020 Versus 1. The State Of Bihar through its Chief Secretary, Secretariat, Patna 2. Bihar Legislative Assembly through its Secretary, Bihar Vidhan Sabha, Patna 3. Speaker, Bihar Legislative Assembly, Patna 4. Secretary, Bihar Vidhan Sabha, Patna 5. Under Secretary Shri Mahendra Prasad Rai, Bihar Vidhan Sabha Secretariat, Patna 6. Ajay Shankar Ray son of Shri Rajneti Ray, presently posted as L.D.C., Bihar Vidhan Sabha 7. Awadhesh Kumar Singh son of Rajendra Prasad Singh residing in the resident of Nawal Kumar Singh, Deputy Secretary, Bihar Vidhan Sabha 8. Chandan Kumar son of Shri Uma Kant Singh, Lower Division Clerk, Bihar Vidhan Sabha. 9. Amit Kumar Son of Shri Uma Kant Singh, Lower Division Clerk, Bihar Vidhan Sabha 10. Satya Narayan Son of Braj Kishore Singh Prabhat, presently Deputy Secretary, Bihar Vidhan Sabha and working as L.D.C. in Assembly 11. Neeraj Anand son of Shri Arun Kumar Yadav, Deputy Secretary, Bihar Vidhan Sabha 12. Manish Kumar Son of Baiju Prasad Singh, Under Secretary, Bihar Vidhan Sabha 13. Washim Ahmad Son of Late Sakoor Ahmad resident of 3/31, Shrikrishnapuri, Patna 14. Smt. Sushma Kumari wife of Shri Sunil Kumar, S.O., Bihar Vidhan Sabha 15. Rajeev Kumar Chaudhary Son of Shri Gopinath Chaudhary, 1 Anne Marg, Patna 16. Sanjay Kumar Rawat Son of Shri Raj Kishore Rawat, Under Secretary, Bihar Vidhan Sabha 2 17. Mithilesh Kumar Mitra, Son of Late Devi Lal, resident of Bahadurpur Housing Colony, Bhoot Nath Ashram Road, Lohia Nagar, Patna 18. Kumar Neeraj Paul Daughter of Shri Murlidhar, Lower Division Clerk, Bihar Vidhan Sabha 19. Shri Sudhanshu Kumar Son of Shri Dharmpal Sinha, Begampur, Patna 20. Smt. Sangeeta Kumari Daughter of Om Prakash Singh, A/30, Abhiyanta Nagar, Ashiana Nagar, Patna 21. Shri Amarendra Kumar Singh Son of Shri Dev-vrat Prasad Singh, village and P.O. Ekchari, District Bhagalpur 22. Shri Firoz Akhatar Khan son of Late Mohd. Anwar, Chapra House, Village Samanpura, District Patna 23. Additional Director, Vigilance Investigation Bureau, Bihar, Patna with CWJC No.1541 of 2005 Rajeev Ranjan Singh son of Sri Ram Kailash Singh, resident of Mohalla Naya Tola Saristabad, B-8, Indrapuri Path, Patna-1, Police Station Gardani Bagh, District Patna Versus 1. The State Of Bihar through Chief Secretary, Bihar, Patna 2. Bihar Vidhan Sabha through Secretary, Bihar Vidhan Sabha, Bihar, Patna 3. The Joint Secretary, Bihar Vidhan Sabha, Bihar, Patna 4. The Deputy Secretary, Bihar Vidhan Sabha, Bihar, Patna 5. The Under Secretary, Bihar Vidhan Sabha, Bihar, Patna 6. The Additional Direction, Vigilance Investigation Bureau, Bihar, Patna with CWJC No.8795 of 2006 Vimal Narayan Sinha, son of Sri Bisheshwar Sinha, At. Railway Qtr. No. 79/MN/T, Mokama Jn., P.S. Mokama, District Patna Versus 1. The State Of Bihar through its Chief Secretary, Old Secretariat, Bihar, Patna 2. The Speaker, Bihar Legislative Assembly, Bihar, Patna 3. The Secretary, Bihar Legislative Assembly, Bihar, Patna 4. The Under Secretary, Bihar Legislative Assembly, Bihar, Patna 5. The Section Officer, Bihar Legislative Assembly, Bihar, Patna 6. The Addl. Director, Vigilance Investigation Bureau, Bihar, Patna with CWJC No.15616 of 2008 3 Manish Kumar, aged about 35 years, son of Shri Hari Nath Singh, resident of Village- Morsand, Police Station Runni Saidpur, District Sitamarhi, PIN- 843328 Versus 1. The State Of Bihar through the Chief Secretary, Bihar, Patna 2. Bihar Vidhan Sabha through its Secretary, Bihar, Patna 3. The Secretary, Bihar Vidhan Sabha, Bihar, Patna 4. The Joint Secretary, Bihar Vidhan Sabha, Bihar, Patna 5. The Deputy Secretary, Bihar Vidhan Sabha, Bihar, Patna 6. The Under Secretary, Bihar Vidhan Sabha, Bihar, Patna 7. The Additional Director General, Cabinet Investigation Bureau, Bihar, Patna ----------- For the Petitioners(in CWJC No. 6412/2005 :M/s Amit Prakash & Ibrahim Kabir, Advocates For the Petitioner (in CWJC No. 1541/2005) :M/s Bindhyachal Singh & Ranjan Kumar Singh, Advocates For the Petitioner (in CWJC No. 15616/2008):Mr. Navendu Kumar, Advocate For the Petitioner (in CWJC No. 8795/2006):M/s Rana Ishwar Chandra & Bisheshwar Sinha, Advocates For the Bihar Vidhan Sabha (in all cases) :M/s D.K. Sinha, Sr. Advocate & Narendra Kumar Jha, Advocate For the Respondent- Vigilance Bureau: Mr. Arvind Kumar, I/C Spl. P.P. For the Private Respondents : M/s Rajendra Pd. Singh, Basant Kumar Chaudhary, & Rama Kant Sharma, Sr. Advocates For the Intervenor Respondents :M/s Abhay Kr. Singh, Sr. Advocate & Rakesh Kumar Samrendra, Advocate 29/ 27.10.2010 Petitioners in these writ petitions were the applicants for appointment on the post of Lower Division Clerk in the Bihar Vidhan Sabha Secretariat pursuant to Advertisement No. 2 dated 3.5.2001, Annexure-1. Having participated in the selection process, they have questioned the Office Order No. 1 dated 25.1.2005, bearing Memo No. 104 dated 25.1.2005 issued by the Bihar Vidhan 4 Sabha, Annexures-5, 11 in the two writ petitions respectively whereunder 89 successful candidates have been appointed pursuant to the aforesaid advertisement on the post of Lower Division Clerk. 2. It is submitted on behalf of the petitioners that close perusal of the aforesaid advertisement would indicate that thereunder mode of selection provided for appointment on the post of Lower Division Clerk is by conducting written examination of 100 marks in General Knowledge, Hindi and Mathematics of two hours duration. The authorities deviating from the mode of selection provided in the advertisement, proceeded to conduct interview of 25 marks in order to accommodate the kith and kin of the Members of the Selection Committee and other high-ups of the Bihar Vidhan Sabha and to achieve such purpose, the Selection Committee was also reconstituted under notification of the Bihar Vidhan Sabha dated 19.5.2004, bearing Memo No. 700 dated 19.5.2004, Annexure-9 in C.W.J.C. No. 1541 of 2005 without there being any ostensible purpose for such reconstitution. In order to accommodate the kith and kin of the Members of the Selection Committee and other high-ups of the Bihar 5 Vidhan Sabha, 2544 candidates were called for the interview against 90 vacancies. 3. With reference to the averments made in paragraph 4 of the second supplementary affidavit filed in C.W.J.C. No. 1541 of 2005 and Annexures-13 and 14 appended therewith, it is submitted that the marks shown to have been secured by 24 candidates during the aforesaid selection process for appointment on the post of Lower Division Clerk appears to have been changed during the selection process without there being any justifiable reason for such alteration. In paragraph 18 of C.W.J.C. No. 1541 of 2005, petitioners have given the name of 8 appointees on the post of Lower Division Clerk pursuant to the aforesaid selection process indicating their connection (relationship) with the Chairman, Member of the Selection Committee and other high-ups of the Bihar Vidhan Sabha and according to the learned counsel for the petitioner in C.W.J.C. No. 1541 of 2005, the said allegation has been admitted in paragraphs 22 and 23 of the counter affidavit filed on behalf of the Bihar Vidhan Sabha. Annexure-8 in C.W.J.C. No. 6412 of 2005 is said to be the list of 90 candidates who have been appointed on the post of Lower 6 Division Clerk pursuant to the aforesaid advertisement indicating their connection (relationship) with the Members of the Selection Committee and other high-ups of the Bihar Vidhan Sabha. In the background of the aforesaid facts, it is submitted that this Court under order no. 10 dated 25.7.2008, passed in these writ petitions deemed it appropriate not to proceed further in the matter until submission of the preliminary report by the Vigilance Investigation Bureau of the State Government, which has now been submitted and relying on the report of the Vigilance Investigation Bureau, this Court should annul the appointment made pursuant to the impugned Office Order dated 25.1.2005. 4. Learned counsel for the petitioners in C.W.J.C. No. 1541 of 2005 relied on the following judgment of the Hon’ble Supreme Court in the case of Madan Mohan Sharma & Anr. Vrs. State of Rajasthan & Ors., reported in AIR 2008 Supreme Court 1657 (paragraph 4), in the case of Hemani Malhotra Vrs. High Court of Delhi with Vineeta Goyal Vrs. High Court of Delhi, reported in AIR 2008 Supreme Court 2103 (paragraphs 9,12) and in the case of Tamil Nadu 7 Computer Science Bed Graduate Teachers Welfare Society (1) versus Higher Secondary School Computer Teachers Association and others, reported in (2009) 14 Supreme Court Cases 517 (paragraphs 32-34) so as to buttress his submission that deviation from the mode of selection provided in the advertisement during the conduction of the selection process shall vitiate the entire selection process, as such deviation was only for the purpose of accommodating the kith and kin of the Members of the Selection Committee as also other high- ups of the Bihar Vidhan Sabha. In support of the submission that 2544 candidates ought not to have been called for the interview to fill up 90 vacancies, learned counsel for the petitioners in C.W.J.C. No. 1541 of 2005 relied on the judgment of the Hon’ble Supreme Court in the case of Ashok Kumar Yadav and others etc. etc. vrs. State of Haryana and others etc. etc. And State of Haryana and another Vrs. Subhash Chander Sharma and others And D.R. Chaudhary, Member and others Vrs. Ashok Kumar Yadav and others, reported in AIR 1987 Supreme Court 454 and submitted that candidates not more than 2-3 times of the number of vacancies to be 8 filled up, should have been called for the interview. In the instant case 2544 candidates were called for the interview to fill up 90 vacancies only with a view to accommodate the kith and kin of the Members of the Selection Committee and other high-ups of the Bihar Vidhan Sabha and on such ground the selection made should be quashed. 5. Learned counsel for the petitioner in C.W.J.C. No. 1541 of 2005 further submitted that from perusal of the marks shown to have been secured by the successful candidates in the chart furnished by the Bihar Vidhan Sabha Secretariat, Annexures-13, 14 and Annexures-E, F to the counter affidavit filed by the Bihar Vidhan Sabha, there is no difficulty in concluding that there has been interpolation in the marks secured by the successful candidates, this Court in appreciation of such interpolation relying on the judgment of the Hon’ble Supreme Court in the case of Krishan Yadav and another Versus State of Haryana and others, reported in (1994) 4 Supreme Court Cases 165 should set aside the impugned order of appointment, Annexures-5, 11. Reliance in this connection is also placed on the chart issued under letter dated 26.11.2007 and 21.7.2008, Annexures-15, 16 given 9 to the petitioner under the Right to Information Act indicating the marks secured by the candidates. 6. Learned counsel for the petitioner in C.W.J.C. No. 1541 of 2005 also submitted that the appointment letters pursuant to the impugned Office Order dated 25.1.2005 was issued while the Model Code of Conduct was in force and the joining was accepted in haste without police verification and in appreciation of such fact, this Court should quash the selection and appointment made. 7. Learned counsel for the petitioner in C.W.J.C. No. 1541 of 2005 then submitted that the Selection Committee could not have decided the procedure for selection and as the impugned selection has been made on the basis of the procedure evolved by the Selection Committee, such selection is vitiated in law and should be set aside by this Court. In support of the aforesaid contention, learned counsel relied on the judgment of the Hon’ble Supreme Court in the case of Dr. Krushna Chandra Sahu and others Versus State of Orissa and others, reported in AIR 1996 Supreme Court 352, paragraphs 35, 36 and 37, the case of Dilip Kumar Jha & anr., Arun Kumar Yadav & ors. Vs. The State of 10 Bihar & ors., reported in 1999 (1) PLJR 664, paragraph 71. 8. Learned counsel for the petitioners in C.W.J.C. No. 1541 of 2005 further submitted that fixing of 100, 25 marks for the written test, interview respectively is arbitrary and contrary to the directions of the Hon’ble Supreme Court not to provide more than 12.5% of the marks allotted for the written examination, as the present selection has been made on the basis of 25 marks for the interview, which is more than 12.5% marks allotted for the written examination, the same is vitiated and should be set aside. Reliance in this connection is placed on the judgment of the Hon’ble Supreme Court in the case of Mohinder Sain Garg Versus State of Punjab and others and its analogous cases, reported in (1991) 1 Supreme Court Cases 662, paragraph 33, in the case of Krishan Yadav and another Versus State of Haryana and others, reported in (1994) 4 Supreme Court Cases 165, paragraph 22. 9. Learned counsel for the petitioners in C.W.J.C. No. 1541 of 2005 also submitted that as there is allegation of irregularities and mal practices in selection process, 11 petitioners having appeared in the selection process is not barred by the principle of estoppels from challenging the selection process. Reliance in this connection is placed on the judgment of the Hon’ble Supreme Court in the case of Raj Kumar and others Versus Shakti Raj and others, reported in (1997) 9 Supreme Court Cases 527 and of this Court in the case of Dilip Kumar Jha & anr., Arun Kumar Yadav & ors. Vs. The State of Bihar & ors, reported in 1999(1) PLJR 664, paragraph 20. 10. Learned counsel for the petitioners in C.W.J.C. No. 1541 of 2005 further submitted that reliance placed by the Respondents over the orders of this Court dated 21.2.2007, passed in C.W.J.C. No. 5372 of 2005, whereunder the said writ petition challenging the present selection process was dismissed, cannot be a ground to dismiss the present writ petition as perusal of the order dated 21.2.2007 does not indicate that the mal practices, as alleged in the present writ petition about the arbitrary conduction of the selection process by reconstituting the Selection Committee, introduction of interview contrary to the terms of the advertisement, alteration in marks secured by the successful candidates was alleged and considered in 12 the said writ petition. 11. Learned counsel for the petitioners in C.W.J.C. No. 1541 of 2005 further submitted that mal practices alleged in the conduction of the selection process has been duly corroborated in the enquiry conducted by the Vigilance Investigation Bureau referred to in the order no. 10 dated 25.7.2008 passed in these writ petitions. In the circumstances, placing reliance on the findings recorded in the report of the Vigilance Bureau, impugned Office Order dated 25.1.2005 and the appointment letters issued in compliance thereto be quashed. 12. Learned counsel for the Bihar Vidhan Sabha submitted that pursuant to the Advertisement, Annexure-1, 40,941 applications were received for the post of Lower Division Clerk, out of which 8,785 applications were found valid and admit card issued so as to enable the candidates to appear in the written examination. After conducting the written examination, the Speaker of the Bihar Vidhan Sabha reconstituted the Selection Committee under notification, bearing Memo No. 700 dated 19.5.2004, which is contained in Annexure-9 to the supplementary affidavit filed in C.W.J.C. No. 1541 of 13 2005 exercising his power under Rule 4 proviso to Rule 6(b) of the Bihar Vidhan Sabha Secretariat (Recruitment and Conditions of Service) Rules, 1964 (hereinafter referred to as the Rules) directing the reconstituted Selection Committee to act in compliance of his directions. Under order dated 13.8.2004, Annexure-A to the counter affidavit filed on behalf of Respondents 2 to 5, the Speaker of the Bihar Vidhan Sabha exercising his power under Rule 4(2)(a) directed the Selection Committee to conduct interview of 25 marks and to call all such candidates for interview who obtained 50, 45, 40 marks respectively in the General, Backward/ Extremely Backward Class and Schedule Castes/ Schedule Tribes categories. As per the cut off marks fixed under order dated 13.8.2004, 2544 candidates secured the cut off marks and were called for the interview. The interview was conducted from 27.8.2004 till 16.9.2004 in which altogether 2097 candidates appeared. The Selection Committee in its meeting dated 9.9.2004 decided to grant one more opportunity to the candidates who could not participate in the interview held during the period between 27.8.2004 to 16.9.2004 and fixed 22-24 September 2004 14 for their interview. Aforesaid decision of the Selection Committee was approved by the Speaker under orders dated 14.9.2004. After approval of the Speaker, Roll number of the candidates who could not appear in the interview earlier was published in the daily newspaper, Hindustan and Hindustan Times, Patna edition dated 17.9.2004 calling upon the candidates who could not appear earlier in the interview to participate in the interview between 22-24.9.2004. In compliance of the aforesaid notice dated 17.9.2004, 164 candidates appeared for the interview. Subsequent introduction of interview in the selection process by the Speaker of the Bihar Vidhan Sabha is in exercise of discretion vested in him under Rule 4(2)(a) of the Appointment Rules. It is further submitted in the counter affidavit that subsequent introduction of interview in the selection process under order dated 13.8.2004, Annexure-A was impugned in C.W.J.C. Nos. 12062 of 2004 and 5372 of 2005. Both the writ petitions were dismissed under orders dated 24.10.2005 and 21.2.2007, Annexures- B and C to the counter affidavit filed on behalf of Respondents 2 to 5. The order of the learned Single Judge dated 21.2.2007, passed in C.W.J.C. 15 No. 5372 of 2005 was also challenged in L.P.A. No. 308 of 2007, but the same was also dismissed under orders dated 1.8.2007. As regards the alteration in the marks secured by the candidates during the selection process, it is submitted that such alteration is also evident from the list contained in Annexures- E and F to the counter affidavit. 13. As regards the statement made in paragraph 18 of the writ petition that as many as 8 appointees were the wards of the Chairman, Members of the Selection Committee and other high-ups of the Bihar Vidhan Sabha, learned counsel for the Bihar Vidhan Sabha, with reference to the averments made in paragraphs 22 and 23 of the counter affidavit, pointed out that such statement is incorrect as from the application form submitted by Sri Awadhesh Kumar Singh, one of the appointees, it does not appear that he is related to Sri Nawal Kishore Singh, the Chairman of the Selection Committee. As regards Sri Sanjay Kumar Rawat, another appointee, it is accepted in paragraph 22 of the counter affidavit that he is the son of Sri Raj Kishore Rawat, a Member of the reconstituted Selection Committee, but it is submitted that Sri Raj Kishore Rawat did not participate in the interview 16 conducted by the Selection Committee in the 2nd sitting from 3.00 P.M. on 16.9.2004 when his son Sanjay Kumar Rawat appeared for the interview and such fact is evident from his application form submitted to the Deputy Secretary of the Establishment Section-cum- Chairman of the Selection Committee dated 16.9.2004, which is available for perusal by this Court along with other records of the Selection Committee. Connection (relationship) of others named in paragraph 18 of the writ petition with the officers and employees of the Bihar Vidhan Sabha is admitted in the counter affidavit, but it is submitted that only because they are related to the officers and employees of the Bihar Vidhan Sabha, they could not have been denied the opportunity to appear and succeed in the selection process. In paragraph 23 of the counter affidavit, the Bihar Vidhan Sabha has admitted the relationship of 11 appointees with the other officers and employees of the Bihar Vidhan Sabha, but it is stated that only because they are the wards of the employees of the Bihar Vidhan Sabha on such ground, could not have been disqualified from appearing and becoming successful in the selection process. 17 14. Learned counsel for the appointees, on the other hand, submitted that petitioners having not challenged the decision of the Bihar Vidhan Sabha dated 13.8.2004, Annexure-A to the counter affidavit filed on behalf of Respondents 2 to 5 fixing the cut off marks for different categories of candidates in the written examination along with the decision to conduct interview of 25 marks of those who secured the cut off marks in the written examination on the ground that such deviation was not permissible in the light of the contents of the advertisement, are stopped from challenging the said decision at this belated stage after they have failed to make the grade on the ground of waiver and on this ground alone, the writ petitions are liable to be dismissed. Reliance in this connection is placed on the judgment of the Hon’ble Supreme Court in the case of Sadananda Halo and others Versus Momtaz Ali Sheikh and others and its analogous cases, reported in (2008) 4 Supreme Court Cases 619, paragraph 59, in the case of Union of India and others Versus S. Vinodh Kumar and others, reported in (2007) 8 Supreme Court Cases 100, paragraph 18 and in the case of Dhananjay Malik & 18 Ors. Vs. State of Uttaranchal & Ors., reported in 2008(3) PLJR 271 (Supreme Court), paragraphs 7 and 8. In this connection it was also pointed out that in C.W.J.C. No. 6412 of 2005 only petitioner no.3 qualified for interview whereas other three petitioners even failed to secure the qualifying marks in the written examination. 15. It was also contended on behalf of the appointees that petitioners have alleged mala fide against the authorities of the Bihar Vidhan Sabha, but necessary facts alleging mala fide has not been pleaded in the writ petitions. Further the authorities against whom mala fide has been alleged, have not been impleaded in the writ petitions by name. In this background, it is submitted that it is well settled that the persons against whom mala fide is alleged must be made party by name, in their absence petitioners are ill-advised to raise the allegation of mala fide. It is further submitted that in none of the writ petitions, the persons against whom mala fide has been alleged, have been made party by name, in such circumstances, the petitioners cannot be allowed to raise the allegation of mala fide or favouritism or nepotism and submission made in that regard may be rejected. Reliance 19 in this connection is placed on the passage from D.D. Basu- Administrative Law, 6th (2004) Edition Page 469 as also on the judgment of the Hon’ble Supreme Court in the case of All India State Bank Officers’ Federation and others Versus Union of India and others with National Federation of State Bank Officers and another Versus Union of India and others, reported in (1997) 9 Supreme Court Cases 151. 16. Learned counsel for the appointees further submitted that holding of the interview during the selection process was not prohibited in the advertisement. In this regard it is further submitted that issue of introducing interview in the impugned selection process came up for consideration before this Court in C.W.J.C. No. 5372 of 2005 (Dharmendra Kumar Singh & Anr. Versus The State of Bihar and ors.), which was dismissed under orders dated 21.2.2007. Against the order dated 21.2.2007, L.P.A. No. 308 of 2007 was preferred, which was also dismissed under orders dated 1.8.2007, Annexure-2/1 to the reply affidavit filed on behalf of the intervenor. With reference to the aforesaid orders dated 21.2.2007 and 1.8.2007, it is submitted by the counsel for 20 the appointees that the issue of introduction of interview in the selection process vide order dated 13.8.2004, Annexure-A having already