'Time Served On Duty Is Immaterial If Appointment Is Not As Per Law', Patna High Court

A Division Bench of the Patna High Court comprising Justices P. B. Banjanthri and B. PD. Singh held that if a candidate's appointment was not as per law, it would be immaterial as to how many years he has discharged duties in relation to the post. The Bench upheld the order of the Single Judge that had denied relief to the Appellant(Head Clerk) who was appointed to the post despite not being in the merit list on the date of appointment. Background The Appellant along with Respondent no.5 applied for the post of Head Clerk. The merit list was to be shortlisted, and the candidates were to be invited in the ratio of 1:10 as the post advertised was only one. A total of 10 candidates were to be invited for the interview. Despite the appellant being at 11th rank in the merit list, he was allowed to participate in the selection process. He was finally appointed and served 5 years as a Head Clerk. In 2014, Respondent no. 5 approached a single judge bench of the Court and challenged the appointment of the Appellant which was allowed by the Court. Aggrieved by the same, the Appellant filed a petition in the Court. Contentions of the Parties: The Counsel for the Appellant emphasized that as per Clause-2 of the Advertisement dated 19.05.2012, the Appellant was entitled to the post as he was already working with the Respondents. It was further contended that since the Appellant had served as a Head Clerk for five years, it would be harsh to dismiss him from service. On the other hand, the Counsel for the Respondent stated that the order of the Single Judge was justified as Respondent no.5 was more merited and deserved to be appointed for the post. Findings of the Court: The Court delved into the question as to whether the appellant was eligible to be called for interview to the post of Head Clerk or not and moreover if there was a legal or statutory right vested in him over the post. Perusing the Advertisement dated 19.05.2012, the Court observed that only 10 candidates were to be interviewed and there was only one post for which the interviews were to be conducted. In relation to the preference to be given to a candidate who was already working with the Department for some time, the Court held that such preference was to be considered among the candidates falling between rank 1-10, however, the Appellant was at the 11th serial. Relying on the decision in M.S. Patil (Dr.) Versus Gulbarga University and others (2010) 10 Supreme Court Cases 63, the Court held that even though the Appellant had discharged the duties of a Head Clerk, claiming equity was not justified. It was held that his selection and appointment was contrary to law as he had been interviewed despite not making it to the list of the 10 selected candidates and therefore, his selection would not stand the test of law. In the aforementioned judgment, the candidate had discharged duties for 17 and a half years but the Supreme Court had held the selection and appointment to be contrary to the law and had cancelled the same even after such a large span of discharge of duties. Making these observations, the Court held that the decision of the Single Judge was justified and that the Appellant's displacement could not be interfered with by the Court. Accordingly, the Petition was dismissed. Case Title: Amit Shrivastava versus State of Bihar & ors Counsel for the Appellant: Mr. Abhinav Srivastava, Advocate Counsel for the Respondents: Mr. Yogendra Pd. Sinha, AAG-7, Mr. Sanjay Kumar, Advocate, Mr. Prince Kumar Mishra, Advocate. Mr. Vikas Kumar Jha, Advocate Click Here To Download Order/Judgement

'Time Served On Duty Is Immaterial If Appointment Is Not As Per Law', Patna High Court

Syed Nazarat Fatima

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