SHYAM SUNDAR SEN Vs. STATE OF BIHAR

JUDGEMENT

(1.) Sri Shyam Sundar Sen is the sole petitioner in this writ application under Articles 226 and 227 of the Constitution of India. The State of Bihar is respondent No. 1. The then Minister-in-Charge, Public Health Engineering Department, Government of Bihar, by name, is respondent No. 2. The Secretary and the Deputy Secretary of the Department are respectively respondents Nos. 3 and 4. The Secretary, Board of Revenue, is respondent No, 5 Sri Sachida Nand Prasad Singh, Sri Devendra Bahadur Singh, Sri Kanhaiya Prasad Sinha and Sri Jagdish Prasad are respectively respondents 6, 7, 8 and 9. The petitioner has obtained a rule against the respondents to show cause why the order of respondent No. 2 contained in Annexure '4' be not quashed and why respondents 1 to 4 be not directed to give effect to the order contained in Annexure '2' and consequently respondent No. 5 should be directed to modify the order of the Board contained in Annexure '9'. A counter-affidavit has been filed on behalf of respondents 1 to 4 and another on behalf of respondent No. 8 and by none else. Hereinafter reference will be made to the counter-affidavit of respondents 1 to 4 as "the counter-affidavit." An affidavit in reply has been filed by the petitioner to the counter-affidavit. At the time of the hearing of the writ application respondents 7 and 8 were separately represented by their counsel.

(2.) The relevant facts which may be stated with reference to the petitioner's case from his writ application are these. The petitioner was appointed as a lower division assistant in the year 1955. He was confirmed to that post in the year 1958 (the year '1956' is a mistake in paragraph 2). He was promoted to the post of upper division assistant in the year 1962, vacancies in the Bihar Junior Civil Service are filled up by direct recruitments as also by promotion giving chances to non-Gazetted Government servants of all departments. The State Government takes a decision as to how many vacancies would be filled up by promotion of the non-Gazetted staff. Such a decision was taken in the year 1971 that 48 vacancies in the Bihar Junior Civil Service would be filled up by nomination of the candidates, whose names would be recommended by the Heads of Department. A letter to this effect was written by the Appointment Department on the 7th of August, 1971. A copy of this letter is Annexure '1' to the writ application and Annexure 'A' to the counter-affidavit. This letter was written to the Secretary, Board of Revenue. The Board upon receipt of the letter issued a letter dated the 1st of September, 1971, to all heads of Department inviting nominations after fixing their respective quotas. A copy of this letter is Annexure 'B' to the counter-affidavit. The quota fixed for the Public Health Engineering Department, of the Government of Bihar out of 48 was 3, 2 for general and and 1 for a member of the Scheduled caste or tribe. In pursuance of the letter (Annexure B) the Chief Engineer of the said Department recommended the names of the petitioner and respondent No. 6, in order of preference, placing the petitioner as first and the said respondent as second, and recommended the name of respondent No. 9 to the special quota of the scheduled caste and tribe- His recommendation is dated the 12th of October, 1971, and a copy of it is Annexure '2' to the writ application. The Deputy Secretary of the Department gave his note on the 13th of October, 1971, and suggested the adding of the name of respondent No. 8 in the general quota, and, keeping in view the respective seniority, he recommended that the third place in general quota may be assigned to respondent No. 8. The Secretary of the Department by his note dated the 13th of October, 1971, agreed with the suggestion of the Deputy Secretary. A copy of these notes is Annexure '3' to the writ application.

(3.) Annexure '5' is a copy of the letter dated the 14th of October, 1971, written by two members of the Bihar Legislative Assembly to the then Minister-in-charge of the Department. In this letter they purported to advocate the cause of respondent No. 7 and thereupon respondent No. 2, the ex-Minister-in-charge made an order on the 26th of October, 1971, a copy of which is Annexure '4'. By his order he directed to send the names of five persons and indicated the preference as follows: (1) respondent No. 6, (2) respondent No. 7, (3) the petitioner, (4) respondent No. 8, and (5) respondent No. 9. The petitioner filed a representation before the Minister. A copy of this representation is Annexure '6'. On the margin of this representation the same Minister (respondent No. 2) made an order on the 2nd of November, 1971, that recommendation of all the five persons may be made indicating the preference in order of seniority. There appears to be a note of the Chief Engineer dated the 6th of November, 1971, which is contained in Annexure '4', indicating that he had exactly done so in his note given previously, I am narrating the facts seriatim in a bit detailed manner as they are so telling. If the order of the Minister passed on the 2nd of November, 1971, on the representation of the petitioner, supported as it was by the note of the Chief Engineer dated the 6th of November, 1971, would have been followed, the petitioner would have retained his position contained in Annexure '2' and he would have been shown as the first nominee in order of preference, the second place going to respondent No. 6. But then as it appears, respondent No. 7 had pulls and his pulls were in operation. After the order of the Minister dated the 2nd of November, 1971, a very curious thing happened as would be apparent from the note dated the 13th of November, 1971, of the Private Secretary to the Minister. This note recites that the writer had conversation with the Minister, who was at Dhanbad on that date, at 9-30 a.m. and he was directed to say that no nomination paper should be sent to the Board and the Minister had expressed the desire that if in this connection he had sent any note to the Department that should be returned to him so that it may be annulled because he did not want to make any amendment in his previous order. It however, appears from Annexure 8, a copy of the note of the Secretary dated the 16th of November, 1971, that he was of the opinion that the names in order of preference should be on the basis of seniority when all of them were being nominated as found fit for the purpose. But it appears that what was recommended finally was the order of the Minister dated the 26th of October, 1971, contained in Annexure '4'. Thereupon the Board of Revenue in their letter dated the 30th of November, 1971, written by the Secretary of the Department to the Deputy Secretary, Public Health Engineering Department, accepted the names of respondents 6 and 7 for the two general seats and respondent No. 9 for the special seat as having been validly nominated for the purpose of giving them chances of promotion to the Bihar Junior Civil Service. A copy of this letter is Annexure '9' to the supplementary affidavit filed by the petitioner. The petitioner has prayed for the quashing of the order contained in Annexure '4' as also in Annexure '9' chiefly on two grounds, namely (1) that the Minister of the Department had no power or authority to interfere with the recommendations of the Chief Engineer, Deputy Secretary and Secretary of the Department; and (2) that the order of the Minister is arbitrary and mala fide.