IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1866 of 2005 1. ASHOK KUMAR, son of Shri Siya Ram Yadav, Peon, Civil Court, Muzaffarpur, P.S. Town, District-Muzaffarpur. 2. Awadhesh Kumar Singh No.2, son of Sri Raj Ballabh Singh, Peon, Civil Court, Muzaffarpur, P S – Town, District-Muzaffarpur. 3. Raj Kishore Prasad Singh, son of Sri Raghunath Singh, Process Server, Civil Court, Muzaffarpur, P S – Town, District – Muzaffarpur. 4. Pyare Hasan, son of late Amir Hasan, Peon, Civil Court, Muzaffarpur, P S – Town, District – Muzaffarpur. 5. Syed Kausar Ali, son of Shri Syed Ahmad Hussain, Peon, Civil Court, Muzaffarpur, P S – Town, District – Muzaffarpur. 6. Mahendra Ram, son of Shri Bali Ram, Peon, Civil Court, Muzaffarpur, P S – Town, District – Muzaffarpur. _________ Petitioners Versus 1. THE STATE OF BIHAR. 2. The Civil Court, Muzaffarpur, through its Registrar. 3. The District and Sessions Judge, Civil Colure, Muzaffarpur. 4. The Registrar, Civil Colurt, Muzaffarpur. 5. Ramesh Kumar, Clerk. 6. Anurag Verma, Clerk. 7. Indreshwar Nath Verma, Clerk. 8. Sheikh Mozibul Rahman, Clerk. 9. Tribhuban Pd Sinha, Clerk. 10. Vijay Kumar, Clerk. Fathers name not known to the petitioners, Civil Court, Muzaffarpur ________ Respondents ----------- For the petitioners: Mr. Ganesh Pd Singh, Senior Advocate and Mr. Sanjeev Kumar. For the State : Mr. Sunil Kumar Karn, AC to AAG-6. Fro the private respondents : M/S. Vishundeo Narayan and Mani Shankar Narayan. ---------- 11. 9 /11/2010 All the petitioners are Class-IV employees working in Civil Court at Muzaffarpur. They have filed the writ application challenging the promotion on Class-III post of clerks from Class-IV category, which was issued as per appointment order no.47/04 dated 31.12.2004. Such a challenge has been made on the ground that these promotions have been made in breach of Rule 6 of the Bihar Civil Court Staff (Class III and Class IV) (Amendment) Rules, 2001. 2 2. The petitioners are working as Peons or Process Servers in the Muzaffarpur Civil Court under the jurisdiction of the District & Sessions Judge, Muzaffarpur. They have worked on their post for a considerable period of time and claim to have satisfactory service records in this regard. A General Order No. 204 of 2003 was issued under the signature of the District & Sessions Judge, Muzaffarpur on 2.12.2003. By virtue of the general order applications were invited from all such Class IV employees of the Civil Court, Muzaffarpur, who were graduates, for promotion to Class III posts which were stated to be 6 in number. The promotions were to be made on the basis of written test followed by interview. 3. Petitioners were applicants. They sat for the written examination, which was held on 20th April, 2004. The total marks kept in written examination was 85 as would be evident from annexure-2. Result was published and interview was held on 7.7.2004. Interview carried 15 marks. But the finals results were not declared. 4. Yet another General Order No. 171/04 was issued on 8.10.2004 under the signature of the District & Sessions Judge, Muzaffarpur wherein it was resolved to hold fresh written examination for the same exercise for granting promotion on the six vacant posts. But this time 90 marks was fixed for written examination, 45 marks of the same was kept as qualifying marks and 10 marks for interview was fixed and notified. Fresh written examination was held on 7th of November, 2004 and interview was held on 12.12.2004. Thereafter the order of promotion as contained in Annexure-5 came. This promotion 3 order is now under challenge on behalf of the petitioners on many a grounds which was urged at the bar by the learned senior counsel representing the petitioners. 5. The first and foremost question of law raised is that the order of promotion falls foul of Rule 6 of the amended Rules 2001. Rule 6(i) to Rule 6 (iii) is quoted hereunder for ready reference. “6. APPOINTMENT BY PROMOTION (i) The appointment to Class III posts by promotion from Class IV posts shall also be made by the Appointment Committee on merit-cum-seniority basis. (ii) Twenty percent of vacant Class III posts shall be reserved for promotion from Class IV employees who possess the minimum educational qualification and have three years experience in the post held by them. (iii) For promotion in terms of the proceeding rule, the Appointment Committee shall hold a separate examination of the eligible candidates and call for interview only such candidates who obtain the qualifying marks in the written examination.” 6. In addition to that, it is also relevant to reproduce Rule-5 4 (iv)(d): 5(iv)(d) The written test /tests in Typing and Shorthand shall consist of 85 marks. 15 marks shall be allotted for viva voce/personality test and interview (aggregating to 100 marks). For the written test, normally, the qualifying marks will be 45, in case of female candidates and candidates from the Reserved categories the Appointment Committee may make suitable relaxation in the qualifying marks. 7. Based on the said rule and the provisions made therein the stand of the petitioners is that the earlier examination held fixing 85 marks in the written examination was in consonance with the above rules and there was no infirmity in the exercise carried out by the District & Sessions Judge, Muzaffarpur but for the reasons best known the said examination was scrapped and a new examination was held fixing 90 marks in the written examination and 10 marks for the interview. Any exercise carried out and promotions made in breach of 2001 rules, therefore, goes to the root of the matter and it requires to be interfered with and quashed forthwith. In fact, the respondents would be obliged to make appointment on the basis of the results of the written examination held earlier on the basis of 85 marks as is the mandate or requirement of the amendment made in the year 2001. 5 8. Counter affidavit came to be filed both by Civil Court authorities, Muzaffarpur as well as the High Court. The stand of the Registrar of the Civil Court, Muzaffarpur is that they have gone by the dictates of the High Court and the direction issued by the then Registrar General in this regard. They do not deny that the 2001 Rule does provide for 85 marks in the written examination and 15 marks in the viva voce or personality test. But since they are bound by the directions of the High Court, re-examination was conducted and appointments made, when the High Court approved the names. They plead innocence in the matter in light of what they have stated. 9. The stand of the High Court is that despite the amendment having been made in the year 2001 such appointments or promotions used to be covered by what was known as General Letter No.1 (Civil) of 1995 and thereafter the so-called rules framed in 1992 and 1998. Since the General Order had laid down that the written examination shall be held for 90 marks, with 45 marks as the qualifying examination and 10 marks for interview, the High Court directed the Civil Court authorities to do the needful. The General Letter no.1 of 1995 cannot be ignored and the same has to be read in consonance with other provisions made therein or the rules framed thereafter. The 1992 Rules provide for written test for 90 marks and interviewer for 10 marks. The said rule is still in vogue. So is the General Letter No.1 of 1995. Since those rules have not been superseded, in exercise of the power contained in Rule 27 of the Bihar Civil Court Staff (Class III and IV) Rules, 1998, the respondents have 6 acted in furtherance to the said provision and that there is no illegality in re-holding of the written examination fixing 90 marks for written and 10 marks for interview. 10. The private respondents have also filed their counter affidavit and they have adopted the same reasonings which has been taken by the High Court in their counter affidavit. According to them, Rule 27 is the saving clause and the powers are there vested in the High Court. 11. The Court having heard the rival contentions of the parties is amazed at the stand taken by the Registrar General in the present writ application. If the interpretation which is sought to be given by the administrative side of the High Court to the present dispute is accepted then it will be in violation of the rules of interpretation as well as the operation of 2001 rules, which is the latest rule wherein amendment had been made to the provisions made in the earlier rules including 1998 rules. The Court fails to understand the strange stand having been taken by the registry in this matter. To say that even though amendments had been incorporated and made with regard to appointment by promotion under Rule 6 in the year 2001 wherein the earlier 90 marks fixed in the written examination and 10 marks for interview stood modified to 85 marks and 15 marks respectively, the pre-amended rules will also occupy the field along with the amended rules in operation. If the earlier rule was amended in the year 2001 then how could reliance be placed on the earlier provisions to override the latest amendments which were duly 7 notified under Article 309 of the Constitution of India. The anomaly or the absurdity of such an interpretation is apparent on the face of record because two different marks cannot be allowed to prevail for written examination and interview in conflict with each other. The pre- amended rule cannot be said to be occupying the field when a consensus decision was taken by the authorities to change the marks from 90 to 85 for written examination and for interview from 10 to 15. The moment the amendment is made and notified, as has been done in this case on 11th July, 2001, all the past provisions of earlier rules to the extent of the amendment vanishes or merges in the new rule and it takes effect forthwith. 12. So far as other stand taken by the Registry that General Letter No.1 will also have application in the matter is also absurd stand and proposition because General Letter will not govern the issue when statutory rule has already been notified and has codified the manner and mechanism under which promotions from Class IV to Class III posts are to be given. A General Letter can never have overriding effect over statutory rule or notification issued under Article 309 of the Constitution of India. Obviously the Registrar has tried to cover up its mistake and omission by taking resort to such an absurd and illogical stand in the matter to justify the promotions which have been given to the private respondents. When the new rule had already come into effect in July, 2001 and examinations were conducted in the year 2004, then the examinations had to be held in terms of the said rule and the first examination fixing 85 marks in the 8 written examination and 15 marks for the interview was the correct notification issued by the learned District and Sessions Judge, Muzaffarpur. The subsequent exercise of declaration of the result therefore falls foul of Rule 6 of the amended Rule 2001. 13. The Court takes dim view of the matter and only cautions the Registry to be very careful in future in matters of such kind because in the opinion of this Court the position of the High Court cannot be compromised in the matter of such kind by giving wrong interpretation to the rules which is sought to be done by way of affidavits filed on behalf of the Registry. 14. The petitioners have made out a case for interference. Anneuxre-5 is quashed. Direction is issued to the District & Sessions Judge, Muzaffarpur that he shall now declare the results of all such successful candidates who had participated in the first examination and the interview on the basis of 85 marks in the written examination and 15 marks in the interview. The declaration of result on the basis of an earlier rule which stood amended in the year 2001 is per say illegal and requires to be interfered with. 15. The Court expects the District & Sessions Judge, Muzaffarpur will do the needful in this regard within a period of three months from the date of communication/production of a copy of this order. 16. The writ application is allowed. rkp ( Ajay Kumar Tripathi, J.)