Atulya Kumar v. State of Bihar — 1997 DIGILAW 457 (PAT)

JUDGMENT B.P. Singh, N.K. Sinha, JJ. - All these writ petitions have been heard together. Since it was submitted on behalf of the counsel appearing for the Bihar Public Service Commission that all the cases pending before this court, will be governed by the judgment of the Supreme Court in Civil Appeal No. 14753 of 1995 dated November, 22, 1996 [reported in 1997 (2) PLJR 10 (SC)]. A copy of the judgment of the Supreme Court has been placed on record and counsel for the parties have made their submission after perusing the judgment. The relevant part of the judgment reads thus: "Having given our anxious consideration to the rival contentions of the parties and on carefully examining the materials on record we find sufficient force in the contentions raised by the learned counsel for the appellant and we are unable to agree with the submission of Mr. Saran, the learned counsel for the respondent. True it is, this court did not entertain a special leave petition on September 5, 1994 when State of Bihar had challenged an order of the Patna High Court. But it is crystal clear that when the court did not entertain the special leave petition, the report of Shri Bishwas had not been brought to the notice of the Court nor the court was aware of the gross irregularities and illegalities committed by the Subordinate Service Selection Board in the matter of making selections and recommending names for different posts in class III. We have no doubt in bur mind that if the irregularities and illegalities found by Shri Biswas would have been placed before the Court, the Court would not have hesitated in entertaining the matter and cancelling the lists altogether. Be that as it may, we are of the considered opinion that the High Court committed gross error of law in issuing the mandamus requiring the Public Service Commission and the State to give appointment to the respondent even after going through the Biswas Committee Report which in no uncertain terms indicates the gross irregularities and illegalities committed by the Service Selection Board in the matter of holding the examination and drawing the list of successful candidates. Further the Board having been abolished by the Government decision dated 22nd October, 1991 had no further jurisdiction to publish a revised list of 238 persons on 28th February, 1992 and in recommending 15 candidates on 4th March, 1992 including the respondent. The said list of 15 persons containing the respondent's name recommended on 4th March, 1992 is a list wholly without jurisdiction and the persons recommended thereunder including the respondent had no enforceable right for which a mandamus could have been issued by the High Court. In the aforesaid premises, we set aside the impugned order of the Patna High Court and the writ petition filed by the respondent stands dismissed. We also further direct that the Bihar Public Service Commission need not take any further action upon the lists prepared by the State service Selection Board nor recommend any names for different posts in Class-III from three lists. But so far as the appointments already made from out of the said lists, since in several cases appointments have been made pursuant to the orders of the court and in some cases those orders have not been interfered with by this Court though not being aware of the illegalities and irregularities in the matter of conducting the examination and preparation of the list of successful candidates, we are not annulling the appointments already made. But so far as responden0t no. 5, Shri Krishna Singh Vimal is concerned, though he has been appointed by the Government of Bihar by letter dated 30th May, 1995, but the said appointment had been made because of the impugned direction of the Patna High Court in C.W.J.C. No. 379 of 1993 and it was specifically indicated in the letter of appointment that the appointment would be subject to the decision of the Supreme Court in the Special Leave Petition filed by the Bihar Public Service Commission. In this view of the matter the appointment of said respondent no. 5 is set aside, in view of our earlier conclusion. If the said respondent no. 5 makes a fresh application to the Bihar Public Service Commission pursuant to any advertisement and is found to be over aged then the period which the respondent has spent in pursuing the present litigation should be excluded by the Public Service Commission. 5 is set aside, in view of our earlier conclusion. If the said respondent no. 5 makes a fresh application to the Bihar Public Service Commission pursuant to any advertisement and is found to be over aged then the period which the respondent has spent in pursuing the present litigation should be excluded by the Public Service Commission. This appeal is allowed with the aforesaid directions and observations but in the circumstances there will be no order as to costs." 2. We have carefully read the judgment of the Supreme Court and heard the submissions urged on behalf of the parties. 4. Mr. Katriar, counsel appearing on behalf of the petitioners in C.W.J.C. No. 5340 of 1995 submitted that the judgment of the Supreme Court nullifies all the appointments made, save and except those who have been given appointment pursuant to an order of this Court or the Supreme Court. According to him, except the appointments of this category of persons, all other appointments made, have been nullified. We are unable to accept the submission because the language of the judgment of the Supreme Court is quite clear. The apex court observed that so far as the appointments already made from out of the said lists, since in several cases appointments have been made pursuant to the orders of the court and in some cases those orders have not been interfered with by this Court though not being aware of the illegalities and irregularities in the matter of conduct in the examination and preparation of the list of successful candidates, those appointments already made were not being annulled. Counsel submitted that 'appointments already made' must mean only 'appointments made pursuant to the orders of the court' and not other appointments made by the Government. The language of the judgment does not permit the interpretation put by the learned counsel, because the judgment refers to appointments already made, some of them having been made under the orders of the High Court and not interfered with by the Supreme Court. The "appointments already made", therefore, consists of appointments made by the Government as also appointments made pursuant to the orders of the High Court and not interfered with by the Supreme Court. The category of 'appointments already made', therefore, consists not only of the appointments made pursuant to the orders of the Court, but also other appointments made by the Government. 5. The category of 'appointments already made', therefore, consists not only of the appointments made pursuant to the orders of the Court, but also other appointments made by the Government. 5. It was then submitted that if the other appointments were left untouched, then it may be that many of the petitioners who may have secured higher marks, will not be appointed, but the candidates securing lower marks, who may have been appointed will continue to enjoy the benefit of such appointment. It is not open for us to read something into the directions of the Supreme Court which does not exist. Moreover, the credibility of the three lists has been doubted, and one can really attach no value to those lists having regard to the findings of the Biswas Committee. In the facts and circumstances of the cases, with a view to minimise injustice, the Supreme Court, gave the directions as are contained in its judgment, and we do not wish to add anything to it. 5. Counsel further submitted that if those appointments are not annulled, there may not be vacancies against which the petitioners and others may be considered for appointment in future as directed by the Supreme Court in the aforesaid judgment. It is difficult for us at this stage to express any opinion as to the number of vacancies that may be there which have to be filled up in accordance with the directions of the Supreme Court. Such of the vacancies, as exist, after giving effect to the Supreme Court's judgment, will be filled up in the manner provided in the judgment itself. 6. Having considered all aspects of the matter, we hold as follows : (i) No relief can be granted to any of the petitioners who have not been appointed, since there is a clear direction of the Supreme Court that the Bihar Public Service Commission need not take any further action upon the lists prepared by the State Subordinate Service Selection Board, nor shall it recommend any names for different posts in class-III from the three lists. (ii) Those who have been appointed by the Government and whose appointments have been challenged, but without success, and those who have been appointed pursuant to judgment and order of this Court as also all those who have been appointed by the Government and whose appointments were never challenged, will not be affected by the order of the Supreme Court, since their appointments have not been annulled by the Supreme Court. (iii) The appointments of those who have been appointed pursuant to an interim order passed by this court, and those who have been appointed pursuant to an order of this court but subject to the result of the special leave petition before the Supreme Court, or an appeal before the appellate forum, stand nullified in the light of the judgment of the Supreme Court, and no relief can be granted to them by this court. Consequently, the appointments of those who have been appointed pursuant to any interim order of this court in a pending writ petition, and those who have been appointed pursuant to any order of this court, but subject to the order that may be passed by the appellate court in appeal, or by the Supreme Court in special leave petition, stand annulled and no relief can be granted to them by this Court. This is' subject to any order that may be passed by the Supreme Court in pending matters, if any. 7. It was submitted before us that in one of the writ petitions, the petitioners have come up to this Court for a direction that the State Government may be prevented from cancelling the appointments made on the basis of the three lists submitted by the Bihar State Subordinate Service Selection Board, and by interim orders passed in such writ petitions, this Court had restrained the State of Bihar from cancelling the appointments. Those writ petitions filed by the writ petitioners seeking the aforesaid relief, stand dismissed, and consequently, the interim order stands vacated. It appears that the State Government has not so far passed any order or taken any action to cancel the appointments. If, however, the State takes any action pursuant to the directions contained in the Division Bench judgment of this Court in C.W.J.C. No. 7141 of 1991 disposed of on 23.3.1994, it will be open to the persons concerned to challenge the same in accordance with law. If, however, the State takes any action pursuant to the directions contained in the Division Bench judgment of this Court in C.W.J.C. No. 7141 of 1991 disposed of on 23.3.1994, it will be open to the persons concerned to challenge the same in accordance with law. We do not express any opinion in the matter. We only notice that the special leave petition preferred against the said judgment of this Court, was dismissed by the Supreme Court on 17.7.1995 in S.L.P. (C) No. 3183 of 1995. 8. In C.W.J.C. Nos. 8984/91, 8237/95, 3738/95, 1400/96, 177/95, 777/94, 9597/94, 3946/94, 2753/94, 4903/94, 5228/93, 6119/93, 6523/93, 7005/93, 11790/93, 2717/95, 2126/95, 1436/95 and 621/95, the petitioners have prayed for their appointment to one of the posts sought to be filled up on the basis of advertisement issued by the Bihar Subordinate Services Selection Board. No relief can be granted to the petitioners in these writ petitions, since no further appointments can be made in view of the order of the Hon'ble Supreme Court. These writ petitions are, therefore, dismissed. 9. In C.W.J.C. No. 5884 of 1994 a prayer has been made for review of the judgment of this Court in C.W.J.C. No. 7141 of 1991, disposed of on 23.3.1994. It is not disputed that no action has been taken so far by the State Government for cancelling the appointments already made. In this view of the matter, this writ petition is also- dismissed but subject to the condition that if any action is taken by the State Government pursuant to the directions contained in the judgment aforesaid, it will be open to the persons concerned to challenge the same in accordance with law.