Shyamdeo Prasad v. The State Of Bihar

7. Shyamdeo Prasad S/O Sri Uday Shankar Prasad R/O Village- Pranpur, R/O Solra, P.S.- Paraiya, District- Gaya

8. Ramdeep Singh S/O Rajgir Singh R/O Village & P.O.- Murera, P.S.- Konch, District-Gaya

9. Umesh Yadav S/O Komal Yadav R/O Village-Pranpur, P.O.- Salra, P.S.-Paraiya, District-Gaya

10. Sanjay Kumar S/O Sri Paras Prasad R/O Village- Pathrora, P.O.- Paraiya, P.S.-Paraiya, District- Gaya

11. Ayodhyaya Prasad S/O Sri Krishna Mahto R/O Vill.- Pranpur, P.O.- Solra, P.S.- Paraiya, District- Gaya .... .... Petitioners Versus

The State Of Bihar 2. The District Magistrate, Gaya 3. The Additional Collector, Gaya 4. The Deputy Collector, Nazarat, Gaya .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Suraj Narain Yadav, Adv. For the Respondent/s : Mr. Shashi Shakher Pd. Sinha, AC to GP-17 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 22-01-2013 Heard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows:- “1. That this is an application for issuance of an appropriate writ, order or direction commanding Patna High Court CWJC No.14486 of 2012 (2) dt.22-01-2013 2 upon the respondents to make advertisement and initiate the process of appointment of Class IV vacant posts in the different department in Gaya District in compliance of the order dated

18.01.2010 passed in CWJC No. 2964 of 2009 as the petitioners are going to be over aged and loss the opportunity of employment for which they are struggling since the year 2000 to be empanelled for appointment being daily wager.” Learned counsel for the petitioner has invited attention of this Court towards the order dated 18.1.2010 in CWJC No. 2964 of 2009, relevant portion whereof reads as follows:-

------ A penal of 2008-2009 lost its effect from one year after its preparation on 7.11.2008. It cannot be revived for filling up the vacancy of Advertisement no. 1/2004 in the year 2009-2010. If vacancy remained, they can only be subject of fresh advertisement where all eligible including the petitioner may apply when they shall have to be considered afresh in accordance with law. The responsibility lies at the door of the respondents for not completing the process of appointment in time. While doing so the respondents are required to consider the issue of age relaxation in accordance with law, experience qualification etc. for persons like the petitioner.

He has also relied on an order of this Court dated

22.6.2011 in the contempt application MJC No. 1855 of 2010 (Vijay Kumar Vs. State of Bihar & Ors.) which goes to show that the contempt proceeding was dropped by making the following Patna High Court CWJC No.14486 of 2012 (2) dt.22-01-2013 3 observations:-

The Writ Court had restrained appointments in 2009- 2010 from a panel prepared on 7.11.2008. It was observed that if there were vacancies, they could be the subject of fresh advertisement and consideration only. The show cause on behalf of Opposite Party No.2 states that no appointment shall be made from the panel of 7.11.2008 and that it would be made only in accordance with the directions of the Court, which naturally means a fresh advertisement and selection. If the Government proposes to make such appointments, naturally it is expected to act expeditiously and not await the institution of a fresh writ application to do so. The contempt proceedings stand disposed.

Learned counsel for the petitioner would submit that in view of the above order of this Court, the respondents will be duty bound to advertise the vacant Class-IV post. The respondents on the other hand have filed their counter affidavit wherein they have taken the following stand:- “10. --------- As far compliance of the order dated

18.01.2009 is concerned- it is not compulsory and binding upon the answering respondent to make a fresh appointment for filling up the vacancy of advertisement no. 01/2004 in the year 2009-10 because there is no any vacancy remained. The direction of Hon’ble Court issued in CWJC No. 2964/2009 dated 18.01.2010 clearly stated –

if vacancy remained they can only be subject to fresh Patna High Court CWJC No.14486 of 2012 (2) dt.22-01-2013 4 advertisement. And so because there is no vacancy remained, hence, advertisement of fresh vacancy does not arise as per averment made in paragraph no.1 of this writ petition. As it is stated earlier that whole process of appointment has been completed against advertisement no. 01/04 in compliance of order dated 25.07.2007 passed by Hon’ble Court in the matter of CWJC No. 1027/2000, 5084/2003, 13292/2003, 4486/2003 and 513/2007 jointly. Matter of appointment is over and averment made in paragraph no.1 is writ petition is not admissible and hence denied.

In the light of the aforementioned pleadings, this Court is of the considered opinion that an employer cannot be compelled to advertise the post even if there be no vacancy.

Assuming there is a vacancy, it is again for the employer to decide as to how such posts have to be filled up. No writ of mandamus can be issued by this Court compelling the respondents to advertise those posts at the instance of the persons like the petitioners who at best have worked as a Candidate Peons for some period. A Candidate Peon is definitely not an employee so as to claim any right. A Candidate Peon at best gets some work for a few days from the establishment of the Collectorate and on the basis of such engagement of a few days, no right can be said to have been established for either being appointed on a Class-IV post. Moreover, in the year 2010, the State Government has Patna High Court CWJC No.14486 of 2012 (2) dt.22-01-2013 5 already notified the Statutory Cadre Rules for the appointment on a Group-D post and once this Rule has come into force, the authorities will be absolutely within their jurisdiction to take steps for filling up the post as per the cadre rules.

The Candidate Peon cannot have any more the right of being appointed on a Class-IV post of the basis of earlier empanelment and at best can seek relaxation in the age for the period they have remained in the panel in keeping the circulars of the Board of Revenue. That being so, application is wholly misconceived and the same is, accordingly, dismissed. (Mihir Kumar Jha, J) Rishi/-