Patna High Court
Kumar Shailesh vs The State Of Bihar on 17 June, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16218 of 2021
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Kumar Shailesh Son of Late Laloo Prasad Singh, Resident of Flat No. 401,
Mansarovar Apartment, Baldwin Academy Lane, East Boring Canal Road,
Police Station- Buddha Colony, District - Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Additional Chief Secretary/Principal Secretary, Department of General
Administration, Government of Bihar, Patna.
3. The Additional Chief Secretary/Principal Secretary, Department of Finance,
Government of Bihar, Patna.
4. The Chief Election Officer-cum-Principal Secretary, Election Department,
Government of Bihar, Patna.
5. The Additional Chief Election Officer, Election Department, Government of
Bihar, Patna.
6. The Deputy Secretary, Election Department, Government of Bihar, Patna.
7. The District Election Officer-cum-District Magistrate, Supaul.
8. The Sub-Divisional Officer, Supaul.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Pushkar Narain Shahi, Sr. Adv.
Mr. Mritunjay Kumar, Adv.
For the Respondent/s : Dr. Mankeshwar Tiwari, AC to AAG-3
For the Election Department : Mr. Siddhartha Prasad, Adv.
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 17-06-2025
This Court has heard Mr. Pushkar Narain Shahi,
learned Senior Advocate along with Mr. Mritunjay Kumar,
learned Advocate for the petitioner, Mr. Siddhartha Prasad,
learned Advocate for the Election Department, Government of
Bihar and Dr. Mankeshwar Tiwari, learned Advocate for the
State.
2. The challenge in the present writ petition is made to
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an order dated 09.08.2021, whereby the request of the petitioner
for his pay fixation at par with candidates/appointees of 36th
BPSC Batch, including, due increments, etc after granting
exemption from departmental examination and further to grant
him pensionary and other retiral benefits, treating his
appointment to be effective with effect from other identical
situated persons came to be turned down.
3. The petitioner also sought quashing of the letter
dated 30.07.2020 issued by the Deputy Secretary, Election
Department, Government of Bihar whereby exemption from
appearing in the departmental examination in view of the
departmental Notification No. 3127 dated 06.03.2018 has been
refused. The petitioner, in fact precisely sought a direction upon
the concerned respondent to treat him to be appointed in the
year 1992, when the candidates who were successful at 36 th
BPSC examination had joined service or alternatively from the
date prior to the date of joining of 37 th BPSC examination, in
view of the decision taken by the State Government duly
notified vide Memo No. 8645 dated 05.08.2008 (Annexure-3 to
the writ petition) and reiterated vide Memo No. 11294 dated
21.10.2008
(Annexure-4) and further to grant him all
consequential monetary benefits.
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4. Learned Senior Advocate while challenging the
action of the respondents and the impugned orders has
strenuously contended that due to wrongs committed by the
respondent authorities, the petitioner was belatedly appointed on
the post of Sub Election Officer vide order dated 05.07.2016
(Annexure-6); nonetheless, he ought to have been appointed on
01.06.1992 i.e. the date on which the last candidate of 36th Batch
of BPSC was appointed in the cadre of Sub Election Officer. On
bare perusal of the Government decisions dated 05.08.2008 and
21.10.2008, as noted hereinabove, it would demonstrate that 8
persons, including the petitioner, who had been wrongly
deprived from their appointment on account of wrong
implementation of reservation policy were required to be
appointed with benefit of seniority and pay fixation and their
date of appointment should have been effective from the date on
which the last Officer of the 36 th Batch of BPSC had received
appointment.
5. Taking this Court through the various annexures
appended to the writ petition, it is strenuously argued that the
respondents cannot be allowed to take advantage of their own
wrong by taking the stand that since the petitioner had not
appeared at the departmental examination before attaining the
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age of 50 years, he was not entitled to claim exemption.
Admittedly, the wrong is on the part of the respondent
authorities whereby delay has caused in appointment of the
petitioner and thus, the rejection of the claim of the petitioner
for exemption of passing departmental examination is not at all
sustainable, in view of the fact that the petitioner was appointed
vide Notification contained in Memo No. 2931 dated
05.07.2016 at the age of 56 years.
6. Mr. Shahi, learned Senior Advocate further
contended that the respondent authorities ought to consider the
case of the petitioner with compassion and sensitiveness in the
facts of this case, where illegal appointment of as many as 8
persons have been saved and they were not thrown out of
service by adopting the policy that the rightful claimants like the
petitioner were to be given at least all due benefits from the date
of their initial notional appointment i.e. 01.06.1992 so that no
injustice would be meted out to any of the parties. Drawing the
attention of this Court to Annexure-11 to the writ petition, it is
further contended that other similarly situated persons, who
were also deprived from their appointment in the year 1992 and
received appointment subsequently have been extended the
benefit of notional date of appointment, pay fixation etc in the
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Department of Employment and Training, Government of Bihar.
But surprisingly, discrimination has been caused and the
petitioner has been deprived from identical benefits in complete
violation of Article 14 of the Constitution of India.
7. Mr. Siddhartha Prasad, learned Advocate for the
Election Department, Government of Bihar dispelling the
aforenoted contention has submitted that the total service period
of the petitioner is 4 years 1 month and 20 days and as per the
pension rules, specifically Rules 145 (d), it is mandatory to
work for at least 10 years in order to become eligible for
pensionary benefits. Emphasizing the prescription, as provided
under Rule 56 of the Bihar Pension Rules, 1950 it is contended
that in any view of the matter, for computation of pension
notional period of service cannot be considered.
8. Taking this Court through the impugned order,
learned Advocate for the respondent State Election Department
has urged that the claim of the petitioner for exemption of
passing departmental examination was duly considered in the
light of the order issued by the General Administration
Department as contained in Memo No. 4674 dated 15.05.1992
and the petitioner was also asked as to whether he has taken
attempt or even appeared in the examination or not because as
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per the provisions laid down in the subject letter dated
15.05.1992, it has been made clear that exemption from the
departmental examination will be given only to those
employees, who have completed the age of 50 years and if they
have appeared and failed, only in the said circumstances the
benefit of exemption will be conferred to him. Since the
petitioner has not fulfill the requirement of exemption, hence the
claim of the petitioner for exemption in passing the
departmental examination has rightly been refused. It is further
clarified that any Gazetted Officer in order to get his/her first
and second salary increment has to pass the required
departmental examination. But admittedly the petitioner has not
passed the examination nor he has appeared; he cannot get the
benefit of promotion and increment at par with the employees of
36th Batch of BPSC.
9. To controvert the submission with regard to undue
delay in causing appointment of the petitioner, Mr. Siddhartha
Prasad, learned Advocate has submitted that though the General
Administration Department vide its Memo No. 8645 dated
05.08.2008 and further vide Memo No. 11294 dated 21.10.2008
has taken a decision to appoint the petitioner and pursuant
thereto, the General Administration Department vide its letter
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contained in Memo No. 13431 dated 22.12.2008 directed the
Secretary, BPSC to make available all the records of all the
recommended applicants, including the petitioner to the
concerned department so that their appointment formalities may
be carried out. In the meanwhile, one Mirza Arif filed a Special
Leave Petition before the Hon’ble Supreme Court in the year
2010 and the Hon’ble Apex Court has ordered to maintain status
quo. The aforenoted SLP finally came to be disposed off on
03.02.2016 and subsequent thereto, the petitioner was duly
appointed vide letter dated 05.07.2016. There is no delay and
laches on the part of the respondent authorities in issuing the
appointment letter in favour of the petitioner; moreover, the
petitioner has only worked for a period of 4 years 1 month and
20 days. The order impugned rejecting the other consequential
monetary benefits doesn’t suffer from any illegality.
10. Dr. Mankeshwar Tiwari, learned Advocate for the
State adopted the submissions advanced by the learned
Advocate for the State Election Department and defended the
impugned orders.
11. After having given anxious consideration to the
submissions advanced by learned Advocate for the respective
parties and on meticulous perusal of the materials available on
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record, before parting with this case, some admitted facts which
are noticed by this Court, are taken note of hereinbelow.
12. The petitioner, admittedly applied for 36th
Combined Competitive Examination published by BPSC
through advertisement dated 09.01.1989. Emerging as one of the
successful candidates in written examination, the petitioner
appeared for the Interview, but was declared unsuccessful in the
final result published in August, 1990. It would be pertinent to
state that at the time of advertisement in the year 1989,
Reservation Policy of 10.11.1978 was in force; new reservation
policy introduced vide Resolution dated 31.10.1990 allowing
the reserved candidates in merit to be adjusted against the
general category. The State Government directed for
retrospective application of the new reservation policy vide its
decision dated 07.01.1991, which direction was put to challenge
in CWJC No. 1678 and 1338 of 1991.
13. The aforenoted writ petitions came to be allowed
vide decision dated 23.05.1991. Subsequently another writ
petition bearing CWJC No. 4472 of 1991, wherein identical
challenge was made, also disposed off on similar terms vide
decision dated 3.04.1992 with a direction to the respondents to
ensure appointment by ignoring the subsequent decision of the
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State Government. The litigation further continued in CWJC
No. 10892 of 1994, which culminated into identical decision as
aforenoted; however, the said decision was assailed in LPA No.
692 of 1999. A Division Bench of this Court vide its order dated
22.02.2000 directed either for creation of shadow posts or to
push down wrongly selected candidates. On account of non
compliance of the order of this Court, the matter giving rise to
contempt proceeding in MJC No. 1938 of 2000.
14. The State respondents filed its supplementary
show-cause, indicated BPSC revised recommendation for
appointment of 8 persons, including the petitioner. The aforesaid
decision of the Court led to issuance of Letter No. 330 dated
30.04.2004, conveyed decision to appoint 8 persons, including
the petitioner, on the basis of 36 th Combined Competitive
Examination. Notwithstanding the aforesaid decision, the matter
was remained pending and in the year 2008 a meeting was held
under the Chairmanship of Chief Secretary on 22.08.2008 and
in the light of the opinion of the Advocate General duly
approved in principle by Hon’ble the Chief Minister, it was
resolved to allow 9 existing candidates to continue on
humanitarian ground with a further decision that 8 candidates,
who had not been appointed, though were required to be
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appointed; shadow post should be created for them with all the
benefit of appointment from initial date along with seniority and
pay fixation. It was made clear that no salary for the earlier
period would be payable to the left out persons.
15. The aforenoted decision has further been clarified
and communicated by Letter No. 9756 dated 05.10.2009 issued
under the signature of Deputy Secretary to the Government of
Bihar of Personnel and Administrative Reforms to the Principal
Secretary and Secretary to various departments, including the
Chief Election Commissioner, Election Department. The
aforesaid letter also clarified notional appointment and seniority
to the left out 8 persons, including the petitioner, with effect
from the date of the last appointee of 36th Batch of BPSC.
16. It is also the admitted position that finally the
petitioner was duly appointed on 05.07.2016 as Sub Election
Officer vide Memo No. 2931 by treating the services of the
petitioner as new appointment without giving the benefit of
notional appointment with effect from the date on which the last
candidate of 36th Batch of BPSC was appointed in the cadre of
Sub Election Officer. Thus aggrieved, the petitioner
immediately started corresponding to the department for making
amendment in the appointment letters; however he did not find
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any favour.
17. The question for consideration before this Court is
as to whether the delay in appointment of the petitioner at
respondents fault will lead to ineligibility of petitioner for
pension and other consequential benefits at par with other
similarly situated employees. In the facts and circumstances
discussed hereinabove, when all the candidates had participated
along with the petitioner pursuant to advertisement dated
09.01.1989 and on the recommendation made by the
Commission, successful candidates were appointed, barring 8 of
the candidates, who were though found eligible but on account
of inaction and misinterpretation of the application of
reservation policy, they have been deprived from their
appointment and some of the persons, who were not even
eligible for the appointment, they have been inducted. It is trite
that if an appointment takes place through selection process by a
recruiting agency like BPSC, the seniority of a candidate is to be
governed by the merit position in the merit list and not by the
date of joining.
18. This is not the case that the petitioner was not
found eligible rather the case is otherwise that irrespective of the
petitioner being eligible for appointment, he was unfortunately
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ousted on account of the sheer inaction and non application of
the mind of the State Government. The Court intervened in the
matter and clarified the legal position as also the right of the
petitioner and others to be appointed with other successful
candidate of 36th Batch of BPSC. The respondent authorities
having accepted their mistake took a conscious decision to
appoint the petitioners. The Court obviously has no concern
with the decision of the State Government taken on a
humanitarian ground to continue with those, who have been
appointed on account of retrospective application of the policy
decision regarding reservation.
19. The law in this regard stands settled wherein the
Apex Court in the case of Kusheshwar Prasad Singh Vs. State
of Bihar & Ors., (2007) 11 SCC 447 has held that one cannot be
permitted to take under and unfair advantage of one’s own
wrong. He who prevents a thing from being done shall not avail
himself of the non-performance he has occasioned. The Apex
Court has succinctly stated that a wrong doer ought not to be
permitted to make a profit out of his own wrong. It would be
worth to quote here the extract of a decision rendered by Justice
Chagla and Justice Tendolkar in the case of All India
Groundnut Syndicate Ltd. Vs. Commr. of Income Tax,
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Bombay City; AIR 1954 Bom 232:-
“9. But the most surprising
contention is put forward by the Department
that because their own officer failed to
discharge his statutory duty, the assessee is
deprived of his right which the law has given
to him under sub-section (2) of S. 24. In other
words, the Department wants to benefit from
and wants to take advantage of its own
default. It is an elementary principle of law
that no person–we take it that the Income-
tax Department is included in that definition
–can put forward his own default in defence
to a right asserted by the other party. A
person cannot say that the party claiming the
right is deprived of that right because “I
have committed a default and the right is lost
because of that default.”
20. In an identical matter, the Hon’ble Supreme Court
in the case of P. Ranjitharaj Vs. State of Tamil Nadu and Ors.,
2022 SCC Online SC 508 after summarizing the case has
observed that in the given circumstances, when all other
candidates who had participated along with the appellants
pursuant to advertisement dated 9th November, 2001, on the
recommendations made by the Commission were appointed on
24th September, 2002 including those who are lower in the order
of merit, there appears no reason for withholding the names of
the present appellants and merely because they were appointed
at a later point of time, would not deprive them from claiming to
become a member of Tamil Nadu Pension Rules, 1978, which is
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applicable to the employees who were appointed on or before
1st April, 2003.
21. This Court has also specifically noticed that other
identically situated person, like the petitioner, who were also
deprived from their rightful claim of appointment on account of
wrong application of reservation policy and subsequently, when
they have been appointed and their services were confirmed in
the year 2013 in the Department of Employment and Training,
Government of Bihar vide Memo No. 147 dated 29.10.2013
(Annexure-11), they have been accorded the benefit of notional
date of appointment, pay fixation with effect from 01.04.1992. It
does not stand to the reason as to why the petitioner has been
deprived the identical benefit as has been extended to identically
situated person, namely, Sanjay Kumar Sinha and Ajit Kumar
Sinha, whose names also find mention in amongst the 8
candidates, including the petitioner. The specific contention of
the petitioner of causing discrimination has not been even
denied and the statement made in this regard in paragraph no. 9
of the writ petition has been said to be a matter or record in the
counter affidavit filed on behalf of the respondent nos. 4 & 8.
22. The normal rule is that when a particular set of
employees is given relief by the Court, all other identically
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situated persons need to be treated alike by extending that
benefit. Not doing so would amount to discrimination and
would be violative of Article 14 of the Constitution of India.
The above noted principle reiterated and reaffirmed in the State
of Uttar Pradesh and Ors. Vs. Arvind Kumar Srivastava and
Ors., (2015) 1 SCC 347 is mandated to be applied in service
matters more emphatically as the service jurisprudence evolved
by the Court from time-to-time postulates that all similarly
situated persons should be treated similarly.
23. The doctrine of discrimination is founded upon
existence of an enforceable right. If a person was discriminated
and denied equality as some similarly situated persons had been
given the same relief; Article 14 would apply only when
invidious discrimination is meted out to equals and similarly
circumstanced without any rational basis or relationship in that
behalf. The respondent, at the one hand, has shown
humanitarian approach while allowing the candidates to
continue with their respective appointments, despite they might
have been termed as ineligible, and on the contrary, the
petitioner, who was eligible to be appointed, but could not be
appointed because of the inaction on the part of the respondent
authorities, has been deprived from his rightful claim.
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24. So far the issue with regard to denial of exemption
from departmental examination is concerned, the Court is of the
opinion that once the petitioner has been deprived from his
rightful claim to be appointed at par with the last candidate of
the 36th Batch of BPSC, any resolution or the letter of the
Personnel and Administrative Reforms Department
necessitating an employee to pass the departmental examination
would not be applicable to the case of the petitioner, since he
was appointed at the age of 56 years and has allowed only to
work for 4 years 1 month and 20 days. There is no dispute with
regard to statutory stipulations, as prescribed under Rule 56 and
145 (d) of Bihar Pension Rules, 1950, but the facts of the case
in hand is an exception, however, based on rightful entitlement
and parity. The delay in petitioner’s appointment in between
1992 to 2016 is attributable to the respondent authorities. They
have committed wrong in the said period by not applying with
the Court’s direction and pursuant thereto, their conscious
decision to appoint the petitioner after giving notional benefit of
his appointment with due date and pay fixation and now they
cannot be permitted to claim that the same benefit shall not be
extended to the petitioner because of his delayed appointment.
But to utter surprise to this Court that the identically situated
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persons have been extended the benefit of notional date of
appointment, pay fixation etc by treating their services to be
appointed notionally with effect from 01.04.1992.
25. In view of the discussions made hereinabove, the
issue answered in favour of the petitioner. In no circumstances,
the petitioner shall be penalized on account of the fault of the
respondent authorities.
26. Accordingly, this Court direct the respondent
authorities to extend all the benefit, as has been accorded to
identically situated persons, in terms of Annexure-11 to the writ
petition, preferably within a period of four months, from the
date of receipt/production of a copy of this order.
27. The writ petition stands allowed to the extent
indicated hereinabove.
28. The parites shall bear their own cost respectively.
(Harish Kumar, J)
shivank/-
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