IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.74 of 2006 1. The State of Bihar. 2. The Regional Deputy Director of Education, Tirhut Division, Muzaffarpur. .....Respondents-Appellants. Versus Rajeshwar Mandal, Son of Rameshwar Mandal, resident of village- Balahi, P.S. Pandaul, District Madhubani. ....Petitioner- Respondent. ----------- 15- 31.08.2009 Heard Mr. Prabhakar Tekrival, learned Government Advocate No.1 for the appellants, and Mr. Mithilesh Mowar for the respondent. This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna raises a grievance with respect to the order dated 5.8.2005, passed by a learned Single Judge of this Court in C.W.J.C. No.80 of 2002 (Rajeshwar Mandal vs. The State of Bihar and another), whereby the writ petition was allowed, and the order bearing Memo No.662, dated 26.5.2000 (Annexure-12), whereby the services of the petitioner (respondent herein) as a Class III employee of the State Government, was dispensed with, has been set aside. We shall go by the description of the parties occurring in the writ proceedings, and shall draw the basic facts from the writ petition except by specific reference to the present appeal. 2 2. A brief statement of facts essential for the disposal of the appeal may be indicated. According to the writ petitioner (respondent herein), the authorities had issued an advertisement on 30.12.1992 (Annexure-2), inviting applications for appointment to Class III post of Clerk. The petitioner was applicant and after completion of the selection process the authorities prepared the panel of selected candidates marked Annexure-3 to the writ petition. The petitioner claims to be at serial no.42, and one Shivendra Kumar is at serial no.51. Office order bearing Memo no.5133, dated 31.8.1996 (Annexure-6), was issued to the petitioner appointing him to a Class III post. The petitioner was visited with the order dated 26.5.2000 (Annexure-12), whereby his services were dispensed with for the reasons assigned therein. The petitioner challenged the same by preferring C.W.J.C. No.80 of 2002, which was allowed by order dated 5.8.2005, the said order dated 26.5.2000 (Annexure-12), was set aside, and the petitioner was reinstated in service. Aggrieved by the order, the State of Bihar has preferred the present appeal. 3. We must also indicate the parallel set of facts which seems to have a bearing on 3 the present proceeding. While passing the impugned order, the learned Single Judge relied on the order passed in C.W.J.C. No.6468 of 2000 (Shivendra Kumar vs. State of Bihar and others), and it has been concluded that the present matter and that case stand on identical footing. It must be stated that the impugned order does not mention the date of the order in Shivendra Kumar and, is of no relevance, and is clarified hereinafter. C.W.J.C. No.6468 of 2000 was originally allowed by order dated 23.2.2004 (Annexure-15). It is relevant to state that Shivendra Kumar claims to be at serial no.51 of the present merit list (Annexure-3). The State of Bihar challenged the same by preferring L.P.A. No.1197 of 2004. The same along with four analogous appeal filed at the instance of the State of Bihar with respect to a different selection process, though all with respect to Class III employees, were allowed by a Division Bench of this Court by order dated 7.10.2005, since reported in 2006(1) P.L.J.R. 100 (State of Bihar and others Vs. Rajeshwar Bhagat and others), whereby the orders passed on the writ petitions were set aside and the matters were remitted back to the learned Single Judge(s) for fresh disposal in accordance with law. It is 4 relevant to state that the Division Bench passed the order, inter alia, on the ground that the learned Single Judge(s) had not indicated the grounds of parity between the said order dated 21.9.2000 (Annexure-14), passed in C.W.J.C. No.5003 of 1999, and the case in hand. Hence the remand order. After the remand order, a learned Single Judge of this Court disposed of C.W.J.C. No.6468 of 2000 by order dated 4.4.2008 (Annexure-P-1), was once again allowed by the learned Single Judge, inter alia, on the ground that there is parity between the orders dated 21.9.2000, passed in C.W.J.C. No.5003 of 1999 and the case in hand (C.W.J.C. No.6468 of 2000). It is clear by now that the petitioner relies on the order dated 4.4.2008 (Annexure-P-1), passed in C.W.J.C. No.6468 of 2000, which is with respect to the present selection process, and the learned Single Judge has, in his order, relied on the said order dated 21.9.2000, passed in C.W.J.C. No.5003 of 1999, which was with respect to a different selection process. 4. While expressing grievance over the order of the learned Single Judge, the learned Government Advocate submits that the advertisement in the present case was a fraud. He next submits that names of favourite 5 candidates were really called for from the Employment Exchange, and in substance there was back-door entry. He next submits that the aforesaid indicated case was with respect to different selection process and cannot be relevant in disposal of the present case. He also submits that those orders are really not binding precedents within the meaning of the law of precedents. He lastly submits that the petitioner’s order of appointment on the very face of it exposes fraud involved in the matter. 5. Learned counsel for the writ petitioner has supported the impugned order. He, inter-alia, submits that the panel was prepared after advertising the post, and the petitioner was appointed on the basis of a panel prepared after completing the selection process. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. According to the writ petitioner, the advertisement dated 30.12.1992 is marked Annexure-2. There is no indication in the entire writ proceedings or in this appeal as to the mode and manner of publication of this advertisement. Learned counsel for the writ petitioner has, however, placed before us during the course of his submissions a photo copy of 6 the advertisement which seems to have been published in a Hindi newspaper titled “izkr% ok;q“, which is dated 31.12.1992. The same on the face of it does not inspire confidence. “izkr% ok;q“ is wholly unknown in the State of Bihar and in fact has come our way for the very first time. There are, however, indications in the proceedings that the same had really been put up on the notice board in an effort to give publicity to the vacancies. Furthermore, there are clear materials on record that names of candidates were called for from the Employment Exchange. The totality of this part of the matter renders the entire selection process bad in law. Law is well settled that public employment in this country is a national wealth and every citizen should have unrestricted access to the same. If the vacancies are given wide publicity, every citizen has access to the same and submit applications for consideration of their cases in accordance with law. If it was at all published in “izkr% ok;q“, then the same by itself seems to be a complete act of fraud because the newspaper is completely unknown and may have been created for the purpose of the present case only. Secondly, if the same was put up only on the notice board, then there was no publicity of the 7 vacancies which by itself renders the selection process void ab-initio. Furthermore, the notice was at all put up on the notice board is itself doubtful in the present case. Thirdly, there are enough indications on record that names were invited from Employment Exchange. Calling for names from the Employment Exchange has gained enough notoriety that any selection process in such a situation becomes vulnerable. Names of favourites were called for and were accordingly forwarded by the Employment Exchange. To summarise this aspect of the matter, the merit- list does not seem to have been prepared after giving publicity of vacancies. A copy of the merit-list is marked Annexure-3, which neither bears the notification no., date or signature of the authorities. The same on the face of it appears to be apocryphal. 7. We now revert to the reasoning assigned by the learned Single Judge in the impugned order. The primary reason assigned by him is that the case of Ravindra Kumar Tiwary stands on an identical footing and the order of termination of his service was set aside by this Court on 21.9.2000 (Annexure-14), passed in CWJC No.5003 of 1999. We have strong reservation in applying the decision in Ravindra Kumar Tiwary 8 in the facts and circumstances of the present case for various reasons. It is evident on the face of it that the same was with respect to a completely different selection process. Secondly, it does not appear from that order whether or not there was advertisement of the vacancies. Thirdly, that was disposed of by a short order and cannot be a binding precedent within the meaning of the law of precedents. Furthermore, the same was rendered by a learned Single Judge of this Court. 8. We must also examine the contents of the order dated 31.8.1996 (Annexure-6), whereby the petitioner was allegedly appointed on a Class III post, the entire text of the office order is reproduced hereinbelow: “Jh jkts’oj eaMy, prqFkZ Js.kh deZpkjh, ftyk Ldwy czgeiqjk, eqtQQjiqj ftudk fu;qfDr bl dk;kZy; ds Kkaikad 11077 fnukad 21&12&93 ds n~okjk fyfid in ij dh x;h Fkh, fdUrq dfri; dkj.kksa ls bUgsa vkns’kiky in ij ykSVuk iM+k@ vr% Jh jkts’oj eaMy dks {ks= f’k{kk inkf/kdkjh gkthiqj (oS’kkyh) ds dk;kZy; esa LFkkukUrfjr djrs gq, ;ksxnku dh frfFk ls fyfid ds in ij inLFkkfir fd;k tkrk gS @“ It is evident on a plain reading of the same that the petitioner was not appointed in pursuance of the present selection process for whatever worth it is. The employee’s brief history of employment indicated in the order 9 adds to the element of fraud which surrounds the selection process. 9. In the result, we disagree with the order of the learned Single Judge. We accordingly uphold the order dated 26.5.2000 (Annexure-12), whereby the services of the petitioner were dispensed with and impugned in the writ proceedings, and dismiss the writ petition. This appeal is accordingly allowed. However, in the facts and circumstances of the case, there shall be no order as to costs. (S K Katriar, J.) (Shyam Kishore Sharma, J.) S.K.Pathak/