HARINATH PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner in this writ application has made a prayer for quashing an order dated 3-12-1968 passed by the Administrator of the District Board, Patna appointing respondent No, 3 on the post of the Head Clerk-cum-Accountant of the office of the District Engineer of the said Board. A copy of the said order is An-nexure 10 to the writ application. According to the petitioner, the said appointment has been made superseding the claim of the petitioner to be appointed to the said post.

(2.) According to the petitioner, he was appointed as a clerk against a substantive vacancy by the then Chairman of the respondent District Board, Patna (hereinafter to be referred to as the Board) on 1-2-1946, Later the petitioner was confirmed on the aforesaid post with effect from 1-2-1946, the day of his initial appointment. On 20-7-1946, the petitioner was placed in the scale of pay of Rs. 30-5-70, Subsequently, the pay scale of the petitioner was raised to Rs. 50-2-70-EB-2-90 with effect from 1-11-1954. Again, there was a revision in the pay scale of the petitioner with effect from 1-1-1957 and he was put in the scale of Rs, 70-4-90-EB-5-120. It is further the case of the petitioner that respondent No. 3 was appointed in temporary vacancy in the chair of one Shri' Sheonandan Prasad Singh on 16-3-1954 with effect from 10-3-1954. On 2-6-1954, the then Chairman of the Board, according to the petitioner, illegally and arbitrarily allowed respondent No. 3 to continue on the post of the clerk and allowed him to draw Rs. 50 with effect from 10-3-1954. On a prayer being made by respondent No. 3, on 11-4-1955, the Chairman passed an order that respondent No. 3 would draw higher pay scale of Rs. 80-4-120 with effect from 1-11-1954, the day the new scale came into force. Respondent No, 3, was, however, deputed to Kosi Project on that very scale of pay, on an offer being made by him. In September, 1958, Bihar District Board and Local Boards (Control and Management) Ordinance, 1958 (Bihar Ordinance VI of 1958) came into force, This was later replaced by the Bihar District Board and Local Boards (Control and Management) Act, 1958 (hereinafter to be referred to as the Control and Management Act). The Ordinance vested power in the State Government to issue notification in respect of different District and Local Boards, After issuance thereof the Chairman and Vice-Chairman etc. had to vacate their respective offices and, thereafter, the powers of such Chairman and Vice-Chairman and members were to be exercised by such person or persons as the State Government might appoint. The respondent-Administrator has been appointed in exercise of the powers conferred under Section 2 (2) of the said Ordinance and since September, 1958 all powers of the Chairman, Vice-Chairman and other members of the Board vested in him. It is further the case of the petitioner that on 1-11-19-68 a vacancy of Head Clerk-cum-Accountant in the office of the District Engineer of the Board occurred due to the retirement of the incumbent. The petitioner having possessed the requisite qualifications was entitled to be promoted to the said post. But the Administrator appointed respondent No. 3 to the said post on 3-12-1968 in contravention of the provisions of the "Rules for examination qualifying for appointment to the post of District Engineer's Accountant''. This Rule was framed in the year 1930 under the Bihar and Orissa Local-Self Government Act, 1885 (hereinafter to be referred to as the Local Self Government Act), which prescribed that no person will be eligible as a candidate for the post of District Engineer's Accountant unless he has passed one of the examinations prescribed in Part I, II or III of the Appendix to the said Rules. According to the petitioner, respondent No. 3 was not only junior to him in service, :but he had also not passed the aforesaid examination, and in spite of that, he was appointed on the post referred to above superseding the just claim and right of the petitioner.

(3.) On 4-12-1968, the petitioner filed a representation to the District Magistrate, Patna, a copy whereof is annexed as Annexure 11. On 26-1-1969, the petitioner also filed a representation to the Administrator concerned, a copy whereof is annexed as Annexure 13. On 18-4-1969, the petitioner filed a representation to the Minister Incharge Local Self Government. On the representation filed by the petitioner, certain queries were made by the concerned Department of the State Government, and ultimately on 4-11-1972, the representation of the petitioner was rejected. The petitioner, left with no option, filed the present writ application before this Court on 23-11-1972. According to the petitioner, the aforesaid order dated 11-4-1955 passed by the Chairman of the Board appointing respondent No. 3 on the post of upper division clerk with effect from 1-11-1954 and the order dated 3-12-1968 passed by the Administrator appointing him as the Head Clerk-cum-Account ant amounts to an arbitrary Invasion over the right of the petitioner to be appointed to that post. Accordingly, the petitioner has made a prayer for quashing those orders including the order dated 4-11-1972 passed by the State Government rejecting his representation,