Ranjit Kumar Singh v. State Of Bihar — 1997 DIGILAW 277 (PAT)

Judgment S. N. Jha, J. 1. This writ petition on behalf of the sole petitioner has been filed on 21st December 1995 seeking direction to the respondents for his appointment to the Post of Munsif in the bihar Civil Service (Judicial Branch) on the basis of 24th Judicial Service examination against posts which have remained vacant on account of non-joining of the candidates. 2. The facts of the case, which are not in dispute, are as follows : On 11th september 1989 the High Court informed the State Government that there were six tentative vacancies in the post of Munsifs. Pursuant to the requisition by the Government the Bihar public Service Commission (B. P. S. C.)invited applications for the 24th Judicial service Examination on 3rd September 1990. Later, by two communications dated 6th January 1991 and 7th March 1991 the High Court informed the State government that the number of vacancies was 245. On 1st October, 1991 the state Government sent fresh requisition to B. P. S. C. On 7th October, 1991 fresh advertisement was published with respect to 245 posts of Munsif. The examination was held in course of time and on 18th April, 1994 the result was published. The viva voce of the successful candidates was held on different dates upto 9th May, 1994. In the meantime, controversy arose as to reservation of posts for the candidates belonging to certain categories other than Scheduled castes and Scheduled Tribes. In view of the provisions of the Bihar Reservation of Vacancies in Posts and Services (For scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991. (It may be stated here that the Bihar Civil services (Judicial Branch) Recruitment rules, 1955 provides for reservation for the members of the Scheduled castes/tribes only ). A writ petition (C. W. J. C. No.7619 of 1991) was filed by deepak Kumar Singh challenging the aforesaid reservation in favour of the other Backward Classes. A Division bench of this Court held by judgment dated 6th August, 1993 that the provisions of the said Reservation Act are not applicable. The Judgment is reported in 1993 (2) PLJR 385. The state of Bihar moved the Supreme court in S. L. P. (Civil) No.16476 of 1993. The S. L. P. is still pending. A Division bench of this Court held by judgment dated 6th August, 1993 that the provisions of the said Reservation Act are not applicable. The Judgment is reported in 1993 (2) PLJR 385. The state of Bihar moved the Supreme court in S. L. P. (Civil) No.16476 of 1993. The S. L. P. is still pending. However, by order dated 16th November, 1995 the Supreme Court passed an interim order to the effect that if the selection process was over the selection belonging to the general category may be appointed, subject to the result of the S. L. P. and further subject to the seniority that may be required to be adjusted if reservation is upheld. In the meantime, a writ petition had also been filed in this Court being CWJ. C No.3866 of 1994 seeking direction for appointment of the successful candidates. After the Supreme Court passed the abovesaid order, this Court vide its order dated 27th November, 1995 directed the respondents to issue notification to fill up 123 posts of Mun-sifs (being 50% of the total number of posts for which examination had been held) in the general category on the basis of the recommendation of the b. P. S. C. It may be stated here that although the examination was held for 245 posts, 196 candidates only were recommended by B. P. S. C. In the light of the said two orders of the Supreme court and this Court a notification in respect of 123 candidates of general category was issued on 30th November, 3. In the writ petition the number of posts remaining vacant as a result of non-joining of the selected candidates, was said to be 41. In the reply affidavit the number of such vacancies was mentioned as 28. In the affidavit filed on behalf of the High Court on 26th March, 1997 it has been stated that there are vacancies in the general category on account of non-joining of candidates. 4. According to the petitioner, the last candidate to whom appointment letter was issued, as aforesaid, had secured 572 marks, while the petitioner secured 571 marks. Thus, if a direction is issued to the respondents for making appointment against the said 9 posts, he stands every chance of being appointed. 5. Neither the respondent-State nor the B. P. S. C. has denied the factual aspects of the case, as indicated above. Thus, if a direction is issued to the respondents for making appointment against the said 9 posts, he stands every chance of being appointed. 5. Neither the respondent-State nor the B. P. S. C. has denied the factual aspects of the case, as indicated above. While the State has taken the stand, inter alia, that the name of the petitioner does not find place in the list of recommended candidates sent by bpsc and, therefore, it cannot issue any appointment letter, the BPSC has taken the stand that it is not aware of the non-joining of candidates. These two pleas, however, have been noticed in this order only to be rejected. It is obvious that if in view of the uncontroyerted position regarding the availability of vacancies on account of non-joining of the selected candidates, the petitioner is held entitled to the relief this Court can certainly issue a mandamus to the BPSC to recommend his name, and the State Government, in turn, can be directed to issue the appointment letter. Counsel for the State and the BPSC, in the circumstances, did not press these objections. They, however, opposed the prayer of the petitioner on the ground that mere empanelment does not create any indefeasible right for appointment of the candidate and, in terms of the relevant circular/resolution of the State government, after expiry of period of one year the panel would be deemed to have lapsed and the vacancies on account of non-joining of candidates have to be carried forward to the next year. They place reliance on Shankarsan Dash V/s. Union of India, (AIR 1991 Supreme court, 1612) and Madan Lal V/s. State of jammu and Kashmir, (AIR 1995 Supreme court, 1088 ). The Circular/resolution relied upon are those contained in memo No.3/ri-302/77 Ka-11018 dated 17th June, 1977 and memo No.12892 dated 29th October, 1988 of the department of Personnel, Government of bihar. Counsel for the petitioner, on the other hand, placed reliance on Jai narain Ram V/s. State of Uttar Pradesh (AIR 1996 Supreme Court 703) and radha Krishna V/s. The State of Bihar and ors. , 1988 BLJR 314; 1988 BLJ 998 and an unreported Division Bench order of this Court in Rajesh Kumar and ors. V/s. State and ors. , (C. W. J. C. No.2052 of 1991, disposed of on 17th May, 1991 ). 6. , 1988 BLJR 314; 1988 BLJ 998 and an unreported Division Bench order of this Court in Rajesh Kumar and ors. V/s. State and ors. , (C. W. J. C. No.2052 of 1991, disposed of on 17th May, 1991 ). 6. At the first instance, the decision in the case of Shankarsan Dash (supra)does seem to support the stand of the respondent-State/bpsc. It has been held therein that inclusion of a candidate in the merit list does not confer any right upon him to be appointed. But, there cannot be any doubt that the application of law laid down in a particular decision depends on the facts of the case. In Shankarsan Dash (supra)the appellant was selected for appointment at the Combined Civil Services examination held by the U. P. S. C. On account of his lower position in the merit list he was not recommended for appointment to the Indian Police service, instead he was offered appointment to the Delhi, Andaman and nicobar Police Service, in Police Service grade b, which he accepted. As several candidates allotted to Police Service. Group b did not join, the position of the appellant improved and ultimately he was at the top of the list. Vacancies also arose, in the meantime, in the I. P. S. due to some selected candidates not joining the service. The appellant made representation for his appointment to the I. P. S. The Supreme Court held that "from the materials produced before us it is fully established that there has not been any arbitrariness whatsoever on the part of the respondents in filling up the vacancies in question. . . . " the process of final selection had to be closed at some stage as was actually done. "a decision in this regard was accordingly taken and process for further appointment on the vacancies arising later was closed. " It was in the context of these facts that the Supreme Court dismissed the claim of the appellant and held that inclusion in the merit list does not confer any right to be appointed. It is significant to notice here that in the same breath the Supreme Court further observed. "however, it does not mean that the state has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. " 7. It is significant to notice here that in the same breath the Supreme Court further observed. "however, it does not mean that the state has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. " 7. The facts of the case of Madan lal (supra) are also distinguishable. The requisition for recruitment for 11l posts of Munsifs had been sent to the commission. The Supreme Court held that although it may be permissible to the Commission to prepare merit list of more than the number of posts for which requisition had been sent "by abundant Cauction", the moment the notified vacancies (in that case 11 vacancies) are filled in from the merit list, the list gets exhausted. The supreme Court also held that the list would also get exhausted on expiry of validity period of the panel. It should, however, be noted that there was specific provision to that effect as contained in Rule 41 of the Jammu and kashmir Civil Services (Judicial)Recruitment Rules, 1967. There is no such provision in the Bihar Civil services (Judicial Branch) Recruitment Rules, 1955. 8. As stated above, the respondents have relied on the Circular dated 17th june, 1977 and resolution dated 29th october, 1988. Pointed reference has been made to paragraph 4 (xiv) of circular dated 17th June, 1977 and paragraph 2 (5) of the resolution dated 29th october, 1988. In order to appreciate the effect of the aforesaid provisions it would be appropriate to refer to the context in which the said provisions find place in the circular/resolution. The circular dated 17th June, 1977 appears to have been issued to streamline the process of recruitment to different State service on the basis of the combined competitive examination conducted by the BPSC. Paragraph 3 of the resolution takes note of the fact that in actual working, inordinate delay takes place in the appointment of candidates to various services and posts and, therefore, in order to get round the difficulty and also to ensure timely appointment of successful and suitable candidates, according to available vacancies, the following time-frame was prescribed in consultation with the BPSC. " (i) The departments should make cadre review and work out vacancies on the basis of the position obtaining as on 1st April every year. " (i) The departments should make cadre review and work out vacancies on the basis of the position obtaining as on 1st April every year. (ii) Vacancies worked out on the basis of the cadre review should be intimated by the departments to the Public service Commission by 30th April. (iii) The Public Service Commission should advertise the vacancies by 15th July. (iv) The Combined Competitive examination should be held by the commission between the months of November and February every year. (v) The results of the written examination shall be finalised by the commission within four months from the date of conclusion of the examination. . (vi) The number of candidates called by the Commission for viva-voce, on the basis of the marks obtained at the written examination, should not be 2-1/2 times more than the actual reported vacancies. (vii) While calling on candidates for viva voce the Commission should make available confidently to the persons apartment the list of candidates so called, along with their complete addresses, as well as the programme for viva voce. (viii) As soon as the list of candidates called for viva voce is received from the Commission it shall be sent by the Personnel Department to the C. I. D. for verification of and report about their character and antecedents within twenty days. (ix) The Department of Personnel shall also, in consultation with the Health department, arrange for medical examlnation of the candidates who come for viva voce, on the same day, preferably in an ante room in the same premises where the viva voce is held. (x) The merit list drawn up by the commission after adding the marks of written examination and viva-voce shall not comprise names more than 10% of the total reported vacancies. (xi) The number of candidates recommended by the Commission for appointment out of the merit list thus drawn up shall correspond to the number of actual vacancies. (xii) Once allotment is made, it shall not be changed. (xiii) Number of vacancies once communicated to the Commission shall not be altered. (xiv) Vacancies remaining unfilled due to candidates not joining the post or for any other reason shall be carried forward to the next year. " 9. It would appear from bare perusal of the afore-quoted provisions that the State Government intended to lay down a time-schedule to make the recruitment process an on-going exercise. (xiv) Vacancies remaining unfilled due to candidates not joining the post or for any other reason shall be carried forward to the next year. " 9. It would appear from bare perusal of the afore-quoted provisions that the State Government intended to lay down a time-schedule to make the recruitment process an on-going exercise. It contemplated an ideal situation. In reality, however, neither the advertisements have been made in time nor examinations have been held in time nor recommendations have been made in time as a result of which it takes a very long time to give effect to the advertisement and make the appointment. In other words, the time-frame has Dot been followed. In such a situation, it would be too far-fetched to say that the panel would lapse on expiry of the period. In the present case itself, as seen above, the advertisement was published in 1991 but the results were published only about three years after in 1994. Besides, the process of recruitment was bogged down by controversy relating to reservation for candidates of Other backward Classes. The Supreme Court initially stayed the judgment of this court. It was pursuant to the interim order passed on 16th November, 1995 that the decks were cleared for appointment. It would not be out of place to mention here that examination for the next batch i. e.25th Judicial Service Examination has still not been held. I do not think, in such a situation, it would be just and proper to hold that on expiry of period of one year the panel had lapsed. 10. So far as para 2 (5) of the resolution dated 29th October, 1988 is concerned, it provides that the BPSC shall send supplementary recommendation with respect to posts remaining vacant as a result of non-joining only if the concerned Department makes a request to that effect in that particular financial year itself. I do not think, such a provision can be Literally given effect, what if the main recommendation itself has been sent in the month of March? the provision must be held to be directory. Even then, this could be relevant and made applicable to temporary posts which are sanctioned from year to year. The lapse of financial year has no. relevance so far as permanent posts are concerned. the provision must be held to be directory. Even then, this could be relevant and made applicable to temporary posts which are sanctioned from year to year. The lapse of financial year has no. relevance so far as permanent posts are concerned. Even it the financial year were to be read as calendar year or one full year, as suggested by the respondents Counsel, the time-frame of one year can be adhered to only when recruitment is made on time, according to the schedule fixed by the Government itself. The time-schedule and the related provisions are meant to be followed as much by the State as by the candidates. I have already discussed this aspect above. 11. In view of the decision in shankarsan Beth (supra) I wanted to knew from the Counsel for the state/bpsc as to whether any decision had been taken to close the selection/recruitment process on the basis of 24th Judicial Service Examination by including the unfilled vacancies in the advertisement for the next Examination i. e.25th Judicial Service Examination. The Counsel for the State stated in no uncertain terms that this has not been done. As a matter of fact, they merely relied on the abovesaid circular dated 17th June, 1977 that unfilled vacancies on account of non-joining of the candidates "are to be" carried forward to the next year. The supplementary counter affidavit of the State also merely states that "the vacancies available due to non-joining of candidates are to be carried forward to the next year. " the fact of the matter is that this has not been done so far. 12. In Bhogeshwarudu V/s. Andhra pradesh Public Service Commission, 1989 (4) Judgments Today 130 the supreme Court directed that unfilled vacancies on account of non-joining of selected candidates be tilted up out of the list of successful candidates of the concerned examination. It would be useful to quote the following observations from the aforesaid judgment:- "the only point which requires consideration is as to whether if out of the names recommended for appointment, some candidates do not join, whether the vacancies remaining unfilled should or should not be filled up from out of the remaining successful candidates. It would be useful to quote the following observations from the aforesaid judgment:- "the only point which requires consideration is as to whether if out of the names recommended for appointment, some candidates do not join, whether the vacancies remaining unfilled should or should not be filled up from out of the remaining successful candidates. We see no justification in the stand of the State public Service Commission that instead of filling up the vacancies by recommending the candidates next in order of merit out of the present list why a fresh selection should be made. " In Asha Kaul V/s. State of Jammu and kashmir ( (1993) 2 SCC 573 ) after noticing Shankarsan Dash case the Supreme court observed : that though mere inclusion in the select list does not confer upon the candidate any indefeasible right to appointment, that is only aspect of the matter. The other aspect is the obligation of the Government to fill up all the posts for which requisition was given and advertisement was made. In jai Narain Ram V/s. State of Uttar Pradesh (AIR 1996 Supreme Court 1703), relied upon by Counsel for the petitioner, 15 posts of Treasury Officers-Accounts Officers in the U. P. Finance and Accounts service, amongst others, were advertised. The Commission recommended as many candidates. No waiting list was prepared.4 selected candidates did not join. The petitioner claiming to be the 4th candidate in waiting in order of merit filed a writ petition which was dismissed. The Supreme Court held that the State had failed to perform its constitutional duties to requisition the commission to recommend the next qualifying candidate to the post reserved for the particular reserved category and directed the Commission to recommend the name of the petitioner and, in turn, the State to issue order of appointment within time-frame. 13 In the facts and circumstances of the case and in view of the decisions of the Apex Court, I have no hesitation in holding that a direction can be issued to the respondent-State and the b. P. S. C. to send the recommendation and make appointment against the 9 vacant posts of Munsifs pursuant to 24th Judicial Service Examination, subject to the conditions laid down by the supreme Court in the aforementioned order dated 16th November, 1995 in s. L. P. (Civil) No.14676 of 1993. 14. In the result, this writ petition is allowed. 14. In the result, this writ petition is allowed. The respondent-B. P. S. C. is directed to recommend the name of the petitioner and others, according to merit, for appointment and others, according to merit, for appointment to the post of Munsif within four weeks. The state Government in the Department of Personnel and Administrative reforms is directed to issue order of appointment within four weeks of receipt of the recommendation. There will be no order as to cost. Petition Allowed.