Nagendra Prasad Singh, J.@mdashThe 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 u/s 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,
4. Counter-affidavits have been filed on behalf of the Administrator of the Board as well as on behalf of respondent No. 3 challenging the assertions made on behalf of the petitioner.
5. Mr. B. S. Ghose, learned counsel appearing for the Board raised a preliminary objection that even if the allegations made on behalf of the petitioner are accepted on their face value, he is not entitled to any relief in view of the new Art 226 of the Constitution, according to which the present case has to be disposed of, and in that connection learned counsel placed the provisions of the newly amended Article 226 of the Constitution. Section 58 of the Constitution (Forty-second Amendment) Act, 1976 provides that every petition made under Article 226 of the Constitution which was pending before any High Court immediately before the appointed day, i. e., 1-2-1977, is to be dealt with in accordance with the new Article 226 as substituted by Section 38 of that Act In view of the aforesaid Section 58, there cannot be any dispute that this writ application has to be considered in the light of the provisions of the new Art 226. Under the new Article 226(1) every High Court has power to issue writs in appropriate cases to any person or authority, including any Government in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the purposes mentioned in Clauses (a), (b) and (c) of Article 226(1), which are as follows:--
"(a) for the enforcement of any of the rights conferred by the provisions of Part III, or
(b) for the redress of any injury of a substantial nature by reason of the contravention of any other provision of this Constitution or any provision of any enactment or Ordinance or any order, rule, regulation, bye-law or other instrument made thereunder; or
(c) for the redress of any injury by reason of any illegality in any proceedings by or before any authority under any provision referred to in Sub-clause (b) where such illegality has resulted in substantial failure of justice." According to Mr. Ghose, even if It is assumed that the petitioner had a right to be considered for the appointment to the said post and he has not been appointed, then it will only attract Article 14 of the Constitution which is under suspension due to the Presidential Proclamation, as such, there is no question of applicability of Clause (a) of the said Article 226(1), It has been further contended that in fact and circumstances of the present case, there has been no violation of any provision of the Constitution or of any enactment or Ordinance or any order, rule, regulation, bye-law framed thereunder to attract the provision of Clause (b). Similarly, on the allegations made on behalf of the petitioner no illegality has been alleged on the part of any authority constituted under the Constitution or any enactment or Ordinance, who is said to have committed any illegality resulting in substantial failure of justice. According to him, the Administrator had to make selection amongst the different employees of the Board and he appointed respondent No. 3 in exercise of his administrative power and there cannot be any question of exercise of any statutory power causing any substantial injury to the petitioner.
6. For the purpose of answering the question as to whether the writ application is maintainable, the allegations made on behalf of the petitioner are to be accepted on their face value. A writ can be issued even to any person or authority; but for purpose of enforcing a right under Articles 14 and 16 of the Constitution the authority must be deemed to be a State within the meaning of Article 12 of the Constitution. Petitioner can make grievance of infringement of his right under Article 14 or 16 only if District Board is held to be a State within the meaning of Article 12 of the Constitution, In the case of
7. As I have already pointed out above, the grievance of the petitioner in substance is that he was appointed in February, 1946 whereas respondent No. 3 was appointed in March, 1954. According to him, he was confirmed whereas respondent No. 3 had been appointed on an ad hoc basis. On 3-12-1068, when respondent No. 3 was being appointed as Head Clerk-cum-Accountant of the office of the District Engineer, he had not passed the examination referred to above, whereas the petitioner had already passed the said examination as early as on 12th July, 1962, and as such, amongst the two, the petitioner was the only candidate who was qualified to be appointed to the said post. If it is held that respondent, No. 3 could not have been appointed, there being a statutory bar, then there is substance in the contention raised on behalf of the petitioner. But, I shall immediately show that the rule which prescribed a bar on the appointment to that post without passing the examination referred to in the said rule, was later amended in the year 1944. By amendment, it prescribed that a person who has passed B. Com. examination of any Indian University was eligible for appointment as an Accountant of the District Engineer''s office. It also provided by amendment that notwithstanding anything contained in R. 1, a candidate may be appointed on probation for a period of two years and he shall be eligible for confirmation only if during the period of probation he passed the examination referred to therein. In view of this amendment, the absolute bar which had been prescribed initially was relaxed, it is an admitted case that respondent No, 3 was a B. Com, when he was appointed by the Board in the year 1954 and he passed the examination, referred to above, in May, 1969, i. e., within two years from 3-12-1968 when he was appointed on probation by the impugned Annexure 10. In this view of the matter, it cannot be held that respondent No. 3 did not hold the requisite qualification for being appointed to that post.
8. Now the question which remains to be answered is as to whether while making such appointment the claim of the petitioner has been superseded causing him a substantial injury. On this aspect also the petitioner has a lot of difficulties. No doubt, the petitioner was appointed much earlier than respondent No 3, but it has been admitted by the petitioner that in the year 1968 he was a lower division assistant and was drawing the pay in the scale of Rs. 70-4-90-EB-5-120, which was meant for lower division assistants, whereas respondent No. 3 was appointed on 11-4-1956 with effect from 1-11-19-54 in the pay scale of Rs. 80-4-120, which was the scale then meant for upper division assistant. This was later revised to Rs. 100-5-150-EB-10-200. In November-December, 1968 respondent No. 3 was drawing pay in this scale, i. e, the scale of pay meant for upper division assistant. During the course of argument, there was some confusion as to whether respondent No. 3 had been appointed initially as an upper division assistant, but when it was pointed out to the counsel appearing for the petitioner that the petitioner in prayer portion of the writ application itself has admitted that on 11-4-1955 the Chairman appointed respondent No. 3 on the post of upper division with effect from 1-11-1954, the learned counsel conceded. In view of the circumstances set forth above it has to be held that the petitioner was appointed as a lower division assistant whereas respondent No. 3 was appointed as an upper division assistant and on the day when respondent No. 3 was appointed as Head Clerk-cum-Accountant, he was in a higher grade. If this fact is admitted, I am unable to appreciate as to how the petitioner can make grievance regarding supersession of his claim to appointment to the post of the Accountant.
9. It was then submitted that the petitioner was challenging the earlier order dated 11-4-1955 itself by which the then Chairman illegally appointed respondent No. 3 as an upper division assistant. To entertain any such plea now will amount to entering into an enquiry about the legality of an appointment which has taken place more than 20 years ago. It is well settled by several decisions of the Supreme Court as well as of this Court that belated claim should not be allowed to be agitated before this Court while invoking its writ jurisdiction. This rule is all the more applicable in cases of promotion and appointments, because by lapse of time many of the incumbents acquire certain rights and on the basis thereof are promoted to next higher grades. Reference in this connection can be made to the cases of
"It may also be noted that the principle on which the Court proceeds in refusing relief to the petitioner on ground of laches or delay is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay."
In the instant case, I shall immediately show that during the pendency of the writ application, on 1-6-1975 respondent No. 3 has been appointed as the Accountant of the Board Itself, which is the next higher grade. An affidavit to that effect has been filed which is not being challenged on behalf of the petitioner. This is a higher post, the scale of pay whereof is Rs. 220-390,
10. The respondents have also pointed out in this connection that this writ application is not only belated so far as the grievance of the petitioner regarding the appointment of respondent No. 3 in the year 1954 is concerned, it is also belated so far as the order dated 3-12-1968 (Annexure 10) is concerned. It appears that the representation which had been filed on behalf of the petitioner fn April, 1969 was rejected by the State Government on 11-11-1970, a copy of the said order is Annexure F to the counter-affidavit filed on behalf of the respondent-Board. That order of rejection was communicated to the petitioner on 23-11-1970. This writ application was filed about two years thereafter, On behalf of the petitioner an explanation has been given that after the first rejection, the second representation of the petitioner was under consideration and even comments were also asked for from the Administrator, but it was ultimately rejected on 4-11-1972 for the second time. This aspect of the matter is also well settled by the Supreme Court. Merely Because a second representation has been entertained by the authorities concerned It cannot be taken to fee the ground for condoning the delay In approaching this Court for redress of grievance, if any.
11. Learned counsel appearing for the petitioner also submitted that the Administrator before making the appointment of respondent No, 3 on 3-12-1968, has purported to consider the relative merit of the petitioner vis-a-vis respondent No. 3. A copy of the said order is Annexure E to the counter-affidavit of respondent No. 2. According to the learned counsel, from the order itself it will appear that the consideration per se is arbitrary as he has taken into consideration matters which are irrelevant and not borne out by the records. In that connection learned counsel by referring to different documents has purported to show that some of the reasons given for rejecting the claim of the petitioner are baseless. Even If it is assumed that there is substance in the contention of the learned counsel appearing for the petitioner, in my opinion, this Court will not be justified in recording a finding on that issue as a court of appeal. A person has & right to be considered for the purpose of promotion, If while considering the case of promotion some relevant and some irrelevant reasons have been mentioned, generally this Court will not interfere with the same and record its own findings on the relative merits of the candidates, unless on reading of the whole order it appears that it amounts to a colourable exercise of power. In my view, there is no substance in this contention as well,
12. There is yet another reason because of which the relief claimed on behalf of the petitioner has become academic. An affidavit has been filed on behalf of the petitioner himself that on 5-12-1972 a notification was issued bifurcating the district of Patna into different districts and a new district, namely, Nalanda has been established. On 8-1-1973, the petitioner being asked opted for being appointed as Head Clerk-cum- Accountant of the office of the District Engineer of Nalanda District Board. He hag joined the said post on 31-1-1973 subject to the result of this writ application. In view of the aforesaid appointment, now the petitioner has become an employee of different District Board and he has ceased to have any connection with the Board in question. Now even it the allegations made on behalf of the petitioner were correct, although on merit they have not been accepted, any writ in his favour will amount to disturbing respondent No. 3 who has been appointed on a still higher grade as well as disturbing one Raj Kumar Thakur, who has been appointed as Head Clerk-cum-Accountant in the office of the District Engineer of the Board in question where respondent No. 3 had been appointed by the impugned order. That) Raj Kumar Thakur is not a party to this writ application. In view of the aforesaid circumstances also the petitioner is not entitled to any relief.
13. In the result, the application fails and it is dismissed, In the circumstances of the case, however, there will be no order as to costs.
B.S. Sinha, J.
14. I agree.
