IN THE HIGH COURT OF JUDICATURE AT PATNA
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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.
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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.
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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/
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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
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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
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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.
( Shiva Kirti Singh, J.)
( Shivaji Pandey, J)
Naresh