IN THE HIGH COURT OF JUDICATURE AT PATNA ------------- Letters Patent Appeal No.1105 of 2011 ----------- Appeal against the Judgment and Order dated 15-9-2010 Passed by a Bench of this Court in M.J.C. No.123 of 2009 and its analogous M.J.Cs. --------- 1. The State of Bihar 2. Sri Vijay Kumar, District Magistrate-cum- Collector, Sheohar....................................................................... Appellants Versus Brajesh Kumar, Son of Bhubneshwar Pandey, R/O village- Parsauni Baij, P.O. Kamrauli, P.S. Piprahi, Distt- Sheohar........Respondent ---------------- with Letters Patent Appeal No.561 of 2011 --------- The State Of Bihar 2. Shri Vijay Kumar, District Magistrate- cum- Collector- Sheohar... ..........................................................................................Appellants Versus 1. Shyam Sunder Tiwary , Son of Indra Deo Tiwary, R/O Village- Paharpur, P.O. Jahangirpur, P.S. Shyampur Bhathandi, District- Sheohar 2. The Commissioner-cum-Principal Secretary, Department of Agriculture, Govt. of Bihar, Patna 3. The Director, Agriculture, Bihar, Patna..................... Respondents ------------------- with Letters Patent Appeal No.671 of 2011 -------- 1. The State Of Bihar 2.Sri Vijay Kumar, District Magistrate-cum- Collector, Sheohar..............................................................................Appellants Versus 1. Pradeep Kumar Bharti, Son of Jagdish Bharti, R/O Village- Deoki Dharampur, P.O.- Kamrauli, P.S. Piprahi, District- Sheohar 2. The Commissioner-cum- Principal Secretary, Deptt. Of Agriculture, Govt. of Bihar, Patna. 3. The Director, Agriculture, Bihar, Patna........................Respondents ------------------------ with Letters Patent Appeal No.617 of 2011 ------- 1. The State Of Bihar 2.Shri Vijay Kumar, District Magisatratre-cum- Collector- 2 Sheohar................................................................Appellants Versus 1. Ajay Kumar Singh , Son of Jaimangal Singh, R/O Village- Bhavan Toli, Baij P.O.- Sheohar, P.S. Sheohar, District- Sheohar 2. The Commissioner-cum- Principal Secretary, Department of Agriculture, Govt. of Bihar, Patna 3. The Director, Agriculture, Bihar, Patna.................Respondents ---------------- with Letters Patent Appeal No.648 of 2011 --------------- 1.The State Of Bihar 2. Sri Vijay Kumar, District Magistrate-cum-Collector, Sehohar.................................................................... Appellants Versus 1. Hari Nath Pandit , Son of Dhariksan Pandit, R/O Village- Parasauri, Baij. P.O. Kamrauli, P.S. Piprahi, District- Sheohar 2. The Commissioner cum Principal Secretary, Department of Agriculture, Govt. of Bihar, Patna. 3. The Director, Agriculture, Bihar, Patna. ---------------------------------- For the Appellants :- Mr. P.K. Verma, AAG-V & Mr. S.R. Sharan, A.C. to AAG-V For the Respondents :- Mr. Sunil Kumar Verma, Advocate Mr. Suman Kumar Verma, Advocate 2 03-08-2011 The limitation petition contained in I.A. no. 5200 of 2011 was considered and after hearing the parties, the delay of 104 days in preferring this appeal is condoned. I.A. stands allowed. The stamp report made on 31-5-2011 raised only six defects which were removed on 29-7-2011 but it appears that subsequently an objection regarding maintainability of the LPA has also been raised. That shall be considered at the time of admission. 3 The matter has been listed for orders on account of aforesaid defect but analogous matters are listed today for admission and, hence, with consent of the parties this appeal is taken up for admission along with LPA no. 561 of 2011 and other analogous appeals. Heard the parties. All these appeals arise out of a common judgment and therefore they have been heard together and are being disposed of by this common judgment. The controversy between the parties is very simple. It arises out of an order dated 15-9-2010 passed in a batch of cases consisting of contempt applications and review application. From the order under appeal it is evident that the direction of the writ court dated 17-10-2006 for completing the process of recruitment to the posts of VLW/ VEW was to be initiated in the month of November,2006 and was to be completed by the end of January, 2007. The learned single Judge has rightly held that the concerned respondents particularly, the District Magistrate, Sheohar had no good reasons not to comply with the order and complete the recruitment process/ 4 selection process even in September, 2010 when the order under appeal was passed granting six months further time to fill up the vacancies. The matter was to be taken up after six months on 30th March, 2011 and from the submissions it is evident that the proceedings are still pending before the learned single Judge. In the last but one page of the order under appeal the learned single Judge observed/directed as follows :- “ An opportunity is being given to the District Magistrate, Sheohar to advertise remaining vacancies, consider cases of petitioners and similarly situated persons for appointment in the light of 1987 Rules as well as letter no. 415 dated 6-4-1988. The remaining vacancies must be filled up within six months from the date of this order and a compliance report must be submitted before this Court. The counsel appearing for Opposite party no.2 has submitted that in a contempt proceeding there is no scope for giving further direction but that is not correct.” These appeals have been preferred by the State because according to counsel for the appellants, the appointments can be made only in the light of 1987 Rules framed under Articles 309 of the Constitution of India and reference to letter no. 415 dated 6-4-1988 ought not to have been made because that letter or Executive instruction runs 5 contrary to the Rules and after being modified it has been subsequently withdrawn. It was pointed out that the modification of the said letter dated 6-4-1988 was made on 5th August, 1988 through letter no. 01/88-9133, Annexure- 7/A to L.P.A. 1105 of 2011 and the said amendment was withdrawn or modified on 14th February, 1989 vide Annexure-7/B and ultimately on 10th August,2010 by Annexure- 7/C, the order dated 6-4-1988, the very executive instruction referred to by the learned single Judge, was withdrawn by the Government. Learned counsel for the private respondents first raised a preliminary objection that unless the order under appeal decides some material issues or affects the rights and obligations of the parties, the same cannot be treated as an appealable order under Clause 10 of the Letters Patent of this Court. The objection is based upon proposition of law already settled by this Court and by the Apex Court. In the facts of the case, objection has no merit because we find that the direction noticed above is not for mere implementation of the order passed by the writ court earlier but adds to the earlier direction and therefore is 6 liable to affect the rights and liabilities of the parties. Hence, the preliminary objection is over ruled. Learned counsel for the respondents submitted that the circular in question was not contrary to the rules but was only to supplement the same. However, he could not dispute the fact that the circular has been ultimately withdrawn by the State Government as noted above. Although the circular has been finally withdrawn on 10th August, 2010 but still it was ordered to be followed in making the selection and appointment by order under appeal passed on 15th September, 2010. In our view, the controversy does not require any further discussion or determination of various contentions . We simply clarify that the observation or direction to consider the cases of petitioners for appointment in the light of 1987 Rules as well as letter no. 415 dated 6-4-1988 shall stand modified to the extent that the consideration shall be in the light of the 1987 Rules and any other policy decision of the State which does not run counter to the Rules. With this modification the appeals are finally 7 disposed of. We are not inclined to enter into the controversy sought to be raised by the learned counsel that the number of vacancies should be clarified in this appeal to avoid confusion in the pending contempt matter. The vacancy position is best known to the authorities and direction of the learned single Judge would always mean to fill up the available vacancies in accordance with law. Naresh ( Shiva Kirti Singh, J.) ( Shivaji Pandey, J)