IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.7552 of 2009
Ram Narayan Pandey .
Versus
The State Of Bihar & Ors .
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3. 08.08.2011 Heard learned counsel for the petitioner
and the State.
The petitioner was an applicant for a
contractual appointment on the post of Accountant
for the period of 11 months under an Advertisement
dated 17.9.2007 in the District of Rohtas under the
ATMA scheme. He stood at Serial No. 2 of the merit
list. The person at serial No. 1 did not join. The
respondents dispatched a communication for joining
belatedly with an incorrect address. It never reached
the petitioner. The person at Serial No. 3 came to be
appointed. The petitioner then filed this writ
application. The contract of candidate at serial No. 3
was not renewed after 3.12.2008. The respondents
then published a fresh advertisement on 29.5.2009.
Learned counsel for the petitioner submits
that the petitioner had disclosed his postal address
as village and P.O. Gorakhparasi in the District of
Rohtas (Sasaram). The respondents sent the
communication to him at Karakat, Sasaram. The
Pin Code was wrongly mentioned as 82115 in place
of 802214. Additionally the proof of dispatch by
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speed post placed by the respondents demonstrates
that it was dispatched on 18.11.2007 and not
8.11.2007 as contended by them. Joining had to be
submitted by 19.11.2007. The person at Serial No. 3
of the merit panel having been wrongly appointed,
there is no justification for not considering the claim
for appointment of the petitioner.
Counsel for the State submitted that the
petitioner had not furnished any Pin Code number
with his details of address. The village Gorakhparasi
to which the petitioner belongs falls within the
Karakat Block. The duration of the appointment was
for 11 months which is long over. Issues have
therefore become academic and the Court should not
interfere more particularly because a fresh
advertisement has been issued on 29.5.2009 and
another incumbent appointed whose services have
also been renewed till August, 2011, but subject to
the result of the writ application.
The petitioner had disclosed the name of
his village with a Post Office situated in that village.
The respondents were required to address the call
letter to him properly. If the Block consists of
several villages, to merely mention the name of the
Block is enough to conclude that the communication
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had not been dispatched at the proper address. The
postman in all likelihood having found the address
incomplete may either have thrown away the letter or
returned it as undelivered to the dispatching station.
The Pin Code of an address is displayed at the Post
Office. The respondents should have been more
careful in mentioning the correct Code specially
when the petitioner had not mentioned any Pin Code
in his address. If the address of dispatch was wrong
and incomplete there shall be a presumption that it
never reached its destination. Additionally, the speed
post dispatch annexed to the counter affidavit makes
it apparent that it was so done on 18.11.2007 and
not 8.11.2007 requiring the petitioner to join on
19.11.2007. The time period cannot be stated to be
reasonable by any standard.
The appointment was to be from
19.11.2007 for a period of 11 months. Thereafter
renewal was an inchoate right as the contract may or
may not have been extended dependent on a hoste of
other factors. The writ petition can easily be
dismissed on that ground as the time period for
which the benefit of the appointment may have
flowed is long over. The other option available to the
Court is to grant suitable compensation to the
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petitioner.
The Court cannot loose sight of the fact
that the petitioner first represented as early as
January, 2008 well within the period of 11 months.
To deny relief on the aforesaid ground may leave the
petitioner with a lurking sense of injustice for having
been made to suffer for no fault of his.
In the meantime, the respondents have
published a fresh advertisement on 29.5.2009 and
another incumbent appointed for an extended tenure
till August, 2011. He is not a party to the
proceedings.
The duty of the Court under Article 226 in
appropriate cases is to mould the relief in the
entirety of the facts and circumstances as held in
(1996) 5 SCC 54 ( Shangrila Food Products Ltd. v.
LIC) at Paragraph-11 as follows:-
“11. It is well settled that the High
Court in exercise of its jurisdiction
under Article 226 of the Constitution
can take cognisance of the entire facts
and circumstances of the case and pass
appropriate orders to give the parties
complete and substantial justice. This
jurisdiction of the High Court, being
extraordinary, is normally exercisable
keeping in mind the principles of
equity. One of the ends of the equity is
to promote honesty and fair play. If
there be any unfair advantage gained
by a party priorly, before invoking the
5jurisdiction of the High Court, the Court
can take into account the unfair
advantage gained and can require the
party to shed the unfair gain before
granting relief……”
The relief therefore is required to be moulded in
the facts of the case. The present incumbent has an
extended tenure till August, 2011. His original
tenure of 11 months has already expired. The right
in him is therefore inchoate and not vested. The
Court therefore directs that on expiry of his extended
tenure, the petitioner shall be given the contract
appointment for a period of 11 months only. The
petitioner by virtue of the present order shall not
have any vested right to continue after the period of
11 months. That is the period he would have had if
he had joined in due time after receipt of his
appointment letter. Thereafter the matter shall
remain within the discretion of the respondents in
accordance with the terms of the contract.
The writ application stands allowed.
P. Kumar ( Navin Sinha, J.)