Patna High CourtAnil Kumar Singh & Ors vs The State Of Bihar & Ors on 16 December, 2016Author:Arvind SrivastavaBench:Arvind SrivastavaIN THE HIGH COURT OF JUDICATURE AT PATNA

                   Civil Writ Jurisdiction Case No.19813 of 2016
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1. Anil Kumar Singh, s/o - Sheo Adhar Singh, resident of village - Dahrak, P.O.
    and P.S. Ramgarh, District - Kaimur.
2. Rajeev Ranjan Singh, s/o - Shri Nagendra Prasad Singh, resident of village -
    Khetila, P.O. - Tetar, P.S. Atri, District - Gaya.
3. Rajiv Kumar, s/o Shri Lalan Prasad, resident of near Block Office,
    Phulwarisharif, P.O. and P.S. - Phulwarisharif, District - Patna.
4. Abhaya Priya, wife of Mr. Anup Anand, resident of village - Shanti Sadan,
    Nayatola, District - Muzaffarpur.
5. Md. Shahreya Faizal, s/o Md. Ejaj Hanan, resident of village - Khanganj, P.O.
    and P.S. - Sohsarai, District - Nalanda.
6. Pandey Arvind Anurup, s/o Late Pandey Akhileshwar Prasad, resident of
    village - Maripur, P.S. Kazi Mohamamdpur, District - Muzaffarpur.
7. Ravish Chandra Verma, s/o Ramdeo Prasad Singh, resident of village - Telni,
    P.O.- Pusaho, P.S. Bithar, District - Samastipur.
8. Vinay Prasad Yadav, s/o Late Mosafir Yadav, resident of village Nawan Purwi,
    P.O. Jani Bigha, P.S. Bodh Gaya, District Gaya.
9. Manoj Kumar Bharti, s/o Ram Suresh Prasad, resident of Bhusaula Danapur,
    Sundar Nagar, P.S. Phulwarisharif, District - Patna.
10. Sakesh Kumar Sinha, s/o Pratap Narayan Sinha, resident of at - Raj Krishna
    Apartment, Flat No. 402, East Boring Canal Road, District - Patna.
11. Mritunjay Kumar, s/o Bhagwati Mahto, resident of village and P.O. Brahampur,
    P.S. Brahampur, District - Buxar.
12. Abdul Rashid Ansari, s/o Israphil Ansari, P.S. and P.O. Kochas, District -
    Rohtas.
13. Sanjay Kumar, s/o Dr. B.K. Singh, resident of at Road No. 2, Shivpuri, Katari
    Hill Road, District - Gaya.
14. Anand Kumar, s/o Shri K.C. Rajak, resident of village - Sheikhpura, P.O. - B.V.
    College, P.S. - Shastrinagar, District - Patna.
15. Arvind Kumar, s/o Shri Amar Nath Kumar, resident at D.B. Road, Fish Market,
    P.S. Saharsa, District - Saharsa.
16. Punam Rani, wife of Amar Kumar, resident of C/16, Sita Sadan, Patrakar
    Nagar, Kankarbagh, District - Patna.
17. Santosh Kumar Sinha, s/o Nawin Chandra Prasad, resident of Line Par
    Mirzapur, P.o. Nawadah, District - Nawadah.
18. Randhir Kishore, s/o Raj Kishore, resident of P.O. Surajgarha, District -
    Lakhisarai.
19. Laldeo Yadav, s/o Late Tulsi Yadav, resident of village - Larpur, P.O. Bhade
    Jee, P.S. Bodh Gaya, District - Gaya.
20. Md. Shafi Ahmad, s/o Taqui Imam, resident of Raja Bazar, Samanpura, P.O.
    B.V. College, District - Patna.
21. Ritesh Kumar Gupta, s/o Bridhi Chand Gupta, resident of village - Musehari
    Bazar, P.S. Vijaypur, District - Gopalganj.
22. Pankaj Kumar, s/o Late Krishna Murary Prasad Gupta, resident of village and
    P.O. Arthu, P.S. Dinara, District - Rohtas.
23. Deepak Kumar Tiwari, resident of village - Purandrapur, P.O. Sirni Bazar,
    District - East Champaran.
24. Brajesh Kumar Sinha, s/o Alakh Narayan Singh, resident of village + P.O.
    Ekawana, P.S.Udwant Nagar, District - Bhojpur (Ara).
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    25. Tripurari Sharan Sanjay, s/o Nawal Kishore Pd. Sinha, resident at Dwarikapuri
        East, Behind Kus Khagaul, District - Patna.
    26. Raghunath Paswan, s/o Mahendra Paswan, resident of village - Bhatha Dasi,
        P.O. Raja Pakar, District - Vaishali.
    27. Md. Aftab Alam, s/o Md. Alam, resident of Moh - Malah Bigha, P.O. -
        Islampur, District - Nalanda.
    28. Mojibul Hasan, s/o Noorul Hasan, resident of village - Inderwan Bairam, P.O.
        Sukulwan, District - Gopalganj.
    29. Dhiraj Kumar, s/o Binod Kumar resident of House No. A/39, Vijay Nagar, P.O.
        Bahadurpur Housing Colony, District - Patna.
    30. Asif Seraj, s/o Serajuddin Haider, resident of Kali Bagh, District - Bettiah.
    31. Asgar Ali, s/o Gulam Mohammad, resident of Mohalla - Brahbatra, P.O.Arrah
        Chowk, P.S. Arrah Town, District - Bhojpur.
    32. Vinay Ranjan, s/o Rabindra Kumar Singh, resident of House No. AV2/48,
        Adarsh Vihar, Road No. 2, Ram Krishna Nagar, District - Patna.
    33. Prakash Kumar, s/o Bhola Prasad, resident at Baranwal Sadan, Main Road, P.S.
        Rafiganj, District - Aurangabad.
    34. Amit Sahay, s/o Sri Baleshwar Prasad Sahay, resident of Opp. Laxmi Niwan,
        P.O. R.S. New Area Piparpanti, P.S. Kotwali, District - Gaya.
    35. Om Prakash, s/o Ramchandra Thakur, resident of village - Sareya, Kachahari
        Tola, P.O. Sareya Kachahari Tola, P.O. Sareya Bazar, P.S. Paharpur, District -
        East Champaran.
    36. Amarjit Kumar, s/o Ramekbal Sharma, resident of Azad Colony, Road No. 2,
        Maripur, District - Muzaffarpur.
    37. Vinay Prakash, s/o Janardan Pd. Singh, resident of village - Matri Sadan, North
        Lakhibag, P.S. Muffasil Janakpuri, District - Gaya.
    38. Kanchan Kumari, wife of Sujit Bhushan, resident of A/203, Gajanan Parishar,
        Ram Jaipal Nagar, P.O. Danapur, District - Patna.
    39. Rajmani Kumar Gupta, s/o Ramanand Pd. Gupta, resident of village - Jarlati
        Mathiya, P.O. Mani, District - Rohtas.
    40. Vishnu Prabhakar Lal, s/o Madan Mohan Lal Kusum, P.O. Bhagan Bigha,
        District - Nalanda.
    41. Abhay Kumar Nirala, s/o Balram Prasad Gupta, resident of village Itarhi, P.O.
        and P.S. District - Buxar.
    42. Pawan Kumar Pawan, s/o Shri Upendra Prasad Sah, resident at Noorpur, P.O.
        Nath Nagar, P.S.Madhusudanpur, District - Bhagalpur.
    43. Krishna Dayal, s/o Om Prakash Mandal, resident of village -
        Choukiniyamatpur, P.O. Champa Nagar, P.S. Nath Nagar, District - Bhagalpur.
    44. Manish Prasad, s/o Mahendra Prasad, C/o - J. Ganga Mudranalya Park Road,
        P.S. + P.O. Kadamkuan, District - Patna.
    45. Binay Kumar, s/o Late Surendra Prasad Yadav, resident of Nauranga, P.S.
        Chautham, District Khagaria.
    46. Vinay Kumar, s/o Devi Dayal Ram, resident of village - Bahiro, P.S. Nawada,
        District - Bhojpur.
    47. Kumar Gautam, s/o Brij Kishore Singh, P.S. Koilwar, resident of village -
        Baghmajhaua, District - Bhojpur.
    48. Narottam Kumar Samrjya, s/o Late Shri Maheshwar Prasad Singh, resident of
        P.O. Pochout, P.S. Beldour, District - Khagaria.
    49. Rajesh Kumar Jha, s/o Ram Kumar Jha, resident of Keshri Nagar, P.S. Digha,
        District - Patna.
    50. Awadh Kishore Singh, s/o Late Harihar Singh, resident of village - Shankarpur,
        District - Gaya.
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    51. Arvind Kumar, s/o Dr. Bhagwat Das, resident of A/8, Bank of India Colony,
        P.S. Shastri Nagar, District - Patna.

                                                               .... .... Petitioner/s
                                           Versus
    1.   The State of Bihar through the Principal Secretary, Department of Urban
         Development and Housing, Government of Bihar, Patna.
    2.   The Principal Secretary, Department of Urban Development and Housing,
         Government of Bihar, Patna.
    3.   The Deputy Secretary, Department of Urban Development and Housing,
         Government of Bihar, Patna.
    4.   The Bihar Staff Selection Commission, P.O. Veterinary College through the
         Secretary Bihar Staff Selection Commission.
    5.   The Examination Controller, Bihar Staff Selection Commission, P.O.
         Veterinary College, Patna.

                                                              .... .... Respondent/s
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           Appearance :
           For the Petitioner/s   :  Mr. Jitendra Pratap Singh, Sr. Advocate
                                     Mr. Rajiv Kumar Singh, Advocate
           For the State          :  Mr. Manish Kumar, AC to AAG-6
           For the S.S.C.         :  Mr. Kamala Kant Upadhyaya, Advocate
    ===========================================================
    CORAM: HONOURABLE THE ACTING CHIEF JUSTICE
              and
              HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
                             ORAL JUDGMENT(Per: HONOURABLE THE ACTING CHIEF JUSTICE)
    Date: 16-12-2016

                      Heard learned counsel for the parties.2. The challenge in the present petition is to Rule 5(2) of

         the Bihar City Manager Cadre (Appointment and Service Condition)

         Rules, 2014 whereby, in the event any vacant post remains, the same

         is contemplated to be filled up either by deputation or on contract

         basis.3. The grievance of the petitioners is that the State

         Government in its executive power has taken a decision on 19th of

         April, 2008 for appointment of City Managers in every Urban Local
 Patna High Court CWJC No.19813 of 2016 dt.16-12-20164/6Bodies. It is thereafter, a circular was issued on 3rd of May, 2008. In

         pursuance of such decision, 124 posts of City Managers were

         created. An advertisement was issued on 18th of September, 2009

         inviting applications for appointment to the post of 124 City

         Managers in the urban local bodies. A written test was to be

         conducted on 20th of December, 2009 followed by interview.

         Thereafter, the petitioners claim to be appointed as City Managers on

         contract for a period of one year, which contract is being renewed

         from time to time.4. The petitioners submit that thereafter, Rules have been

         framed in terms of proviso toArticle 309of the Constitution and

         published in the official gazette on 5th of January, 2015. Such rule

         contemplate grant of age relaxation to the candidates who have been

         appointed on contract basis as well as marks for experiences to the

         candidates who have worked on contract basis but does not deal with

         the candidates like the present petitioners, who have joined in terms

         of the policy decision of the State.5. The grievance of the petitioners is that Sub Rule 2 of

         Rule 5 contemplate that in case of any vacancy remaining after

         making appointments in terms of Clause (1) of Rule 5, the same can

         be filled up either by deputation or on contract basis. The challenge

         to the said Rule 5 (2) is on the ground that it is arbitrary,
 Patna High Court CWJC No.19813 of 2016 dt.16-12-20165/6discriminatory and creating an artificial classification, therefore, does

         not satisfy the touch stone ofArticle 14of the Constitution. The

         apprehension of the petitioners is that contractual employees such as

         the petitioners are likely to be replaced by another set of contractual

         employees in terms of the said clause.6. We do not find any merit in the argument raised.7. Rule 5 contemplates that all appointments to the cadre

         of City Managers shall be made on the basis of direct recruitment by

         written examination and interview. Sub-Rule (2) contemplates that if

         after such process of appointment, any vacancy remains, the same

         shall be filled up by way of deputation or contract basis. We do not

         find that Sub-Rule (2) is arbitrary, discriminatory or violative ofArticle 14of the Constitution. The substantive rules contemplates

         filling up the post by direct recruitment but on the basis of written

         test and interview. It is the remaining vacant posts which are required

         to be filled up by way of deputation or on contract basis. The purpose

         for filling up of the post on deputation or on contract is that the

         efficiency in the third tier of the urban local bodies is not hampered

         in any manner. It is a qualification based on reasoning and cannot be

         said to be arbitrary in any manner.8. The only condition we find requires some clarification

         is filling of the remaining vacant post on contract basis. We find that
          Patna High Court CWJC No.19813 of 2016 dt.16-12-20166/6one set of contractual employees, such as, the petitioners cannot be

                  substituted by another set of contractual employee. Therefore, we

                  order that petitioners shall continue to be engaged as contractual

                  employee till such time regular appointments are made in terms of

                  Rule 5(1) of the aforesaid rules. It goes without saying that in case of

                  any misconduct, of any of the contractual employee, the State

                  Government shall be competent to take appropriate action in

                  accordance with law.9. With the said direction and liberty, the writ application

                  is disposed of.(Hemant Gupta, ACJ)


                                                (Arvind Srivastava, J)
P.K.P.

AFR/NAFR       A.F.R.
CAV DATE N.A.
Uploading Date 21.12.2016
Transmission
Date