Order Petitioner seeks a direction to the Bihar Public Service Commission (hereinafter referred to as 'the Commission') commanding it to recommend the names of successful candidates on the basis of advertisement no. 11/85 for appointment to the posts of Secretariat Assistant against the remaining vacancies which were in existence on December 31, 1998. According to the petitioner the Commission's refusal to do so despite repeated requests by the State Government is both illegal and plainly in contravention of the direction given by the Supreme Court on this matter. 2. The facts are all admitted and can be stated thus. On August 25, 1985 advertisement no.11/85 was issued by the Bihar State Subordinate Services Selection Board, which was in existence at that time, for appointment to the posts of Secretariat Assistant in the Secretariat and connected offices. Though the advertisement stated that vacancies upto the year 1985-86 would be filled up, it did not disclose the exact number of vacancies available for appointments. For the selection of the candidates an examination was held in November, 1987 and about three years later the result of the examination was published in July, 1990. The Board then made recommendations in the light of a communication dated 25.8.1987 issued by the Joint Secretary in the department of Personnel & Administrative Reforms to the Secretary of the Board which gave the break up of the vacancies in a tabular form, indicating the total number of vacancies, as then existing to be 357. On the basis of the Board's recommendation 309 candidates were given appointment by the State Government. Candidates in the general category who had secured more than 50% marks in the selection test and whose names were in the select list were empanelled and made to wait in anticipation of release of further vacancies by the State. When no further vacancies were released by the State Government some of those empanelled candidates made a representation before it requesting that all vacancies which had come into existence on the date of publication of the result in July, 1990 should be filled up from the panel prepared on the basis of the selection test held in pursuance of advertisement no.11/85. The State Government turned down the representation and by letter dated 8.8.1991 asked the Commission to issue fresh advertisement and hold fresh competitive test for appointment of Secretariat Assistants. 3. The State Government turned down the representation and by letter dated 8.8.1991 asked the Commission to issue fresh advertisement and hold fresh competitive test for appointment of Secretariat Assistants. 3. At this stage the petitioner came to this court in C.W.J.C. No. 2912/91 seeking appropriate reliefs. That writ petition was allowed by a Bench of this court by judgment and order dated October 11, 1991. The operative part of the judgment was as follows: "Considering the peculiar circumstances of the present case, therefore, we quash Annexure-16 dated 8.8.1991 and in order to do justice between the parties and not to leave these young graduates, in lurch, we direct the Board to recommend the names of these petitioners in accordance with their seniority in the merit list for appointment on the posts of Secretariat Assistants in accordance with the existing vacancies as available on the date of publication of their result, i.e. July, 1990". 4. The State challenged the judgment of the High Court by filing Civil Appeal No.5298/93 (arising out of S.L.P (C) No.7423/92) before the Supreme Court. The appeal was disposed of by judgment and order dated October 8, 1993. The Supreme Court held that the direction given by the High Court to fill up all vacancies coming into existence till the publication of the result in July, 1990 was not proper and could not be sustained. It accordingly set aside that part of the direction given by the High Court. It, however, affirmed the High Court's judgment in all other respects and directed that the panel would be given effect to for filling up all vacancies which were in existence till December 31, 1988. It will be useful to reproduce here the relevant portion of the Supreme Court's judgment. "Keeping in view the fact situation and the circumstances of the case and having been informed by Mr. P.P. Rao, the learned Senior counsel appearing for the State that there are a large number of vacancies which are required to be filled up, the order which commend and appears appropriate to us is to modify the judgment of the High Court dated 11.10.1991 by setting aside that part of the judgment which directs the filling up of the vacancies of 1989, 1990 and 1991 from out of the list of the candidates who had appeared in the examination held in 1987. We, accordingly, set aside that portion of the judgment but uphold the judgment in all other respects including the filling up of the vacancies which existed till 31.12.1988. xx xx xx xx xx xx (emphasis added) 5. It may be noted here that the Supreme Court while pronouncing the judgment was not apprised of the exact number of vacancies that had come into existence till December 31, 1988 and the confusion on this question was specifically noticed in that judgment. This aspect of the matter got resolved by a later order passed by the Supreme Court when interlocutory applications were filed in the disposed of appeal. 6. If appears that after the appeal was disposed of by judgment and order dated October 8, 1993, I.A. Nos. 5 and 6 of 1994 were filed making a grievance that the State Government was not complying with the order of the Supreme Court. The State Government was then directed to file an affidavit stating the number of vacancies which were existing on December 31, 1988 and further to make the records available for perusal of the court. After the State complied with the direction, the Supreme Court passed the order dated 1.8.1994 disposing of I. A. nos.5 and 6 of 1994. The relevant extracts from that order needs to be reproduced here. ". . . . Therefore, according to State the total number of vacancies which were available on 31.12.1988 and could be filled up by the candidates who were selected in the competitive examination held in 1987 are 239. This statement, although, disputed by some of the counsels appear to be correct . . . . "Out of these vacancies which were existing on 31st December, 1988, 50% has to be filled up by direct recruits and the remaining by the Promotees. Shri M.L. Verma the learned Senior Counsel appearing for the direct recruits, however, point out that it is admitted in the affidavit filed by the State of Bihar that out of total posts of Assistants existing on 31st December, 1988, 357 were occupied by promotees. This was against 50 : 50 parity between the direct recruits and promotees. It is not disputed by the learned counsel for the State that the direct recruits were short by 48. In view of this it is directed that out of 239 vacancies the first 48 shall be filled up by direct recruits. This was against 50 : 50 parity between the direct recruits and promotees. It is not disputed by the learned counsel for the State that the direct recruits were short by 48. In view of this it is directed that out of 239 vacancies the first 48 shall be filled up by direct recruits. Out of the remaining, that is 191, 50% shall be filled up by direct recruits and the remaining shall go to the promotees. "Shri Verma further points out that further vacancy has arisen as, nearly, 75 candidates out of those to whom appointment letters were issued have not joined. Shri B.B. Singh, the learned counsel for the State of Bihar states that he is not in a position to verify this fact. But this does not present any difficulty as the State is directed to ascertain it and if any of the candidate to whom the appointment letters were issued have not joined then those vacancies shall go to the direct recruits of the examination of 1987" (emphasis added) 7. For the purpose of this case it is significant to note that the Supreme Court also directed that in case some recommended candidates did not join, those vacancies would also go to the direct recruits of the examination of 1987. 8. While the matter was subject to litigation before the Supreme Court the Bihar State Subordinate Services Selection Board was dissolved some time in the year 1992 and the Commission took up its affairs and thus stepped into its shoes. 9. Following the orders passed by the Supreme Court the State Government by letters dated 10.4.1995 (Annexure-3 to the writ petition) and 21.6.1995 (AnnexureC-2/1) requested the Commission to recommend names for appointment against 209 vacancies which were in existence till December 31, 1988. Those letters also provided the break-up of the vacancies against different reservation heads in the following manner : (i) Unreserved 90 (ii) Scheduled Castes 25 (iii) Scheduled Tribes 46 (including 28 backlog vacancies) (iv) Backward Castes 15 (v) Extremely Backward Castes 23 (vi) Economically backward classes 05 (viii) Female 05 Total 209 10. In response to the Government's request the Commission sent its recommendation by letter dated 13.9.1995 (Annexure-C-1) for 172 posts. In response to the Government's request the Commission sent its recommendation by letter dated 13.9.1995 (Annexure-C-1) for 172 posts. In the show cause filed on behalf of Respondents 4 and 5 a tabular chart is given regarding the requisition made by the State Government under different reservation categories and the recommendation made by the Commission. This is as follows : Reservation Requisition made Recommendation Remarks Codes by the State sent by the Government B.P.S.C. 01 90 88 2 pending due to investigation 02 25 24 1 pending 03 46 15 Eligible can- 04 23 23 didates not available 05 15 14 1 pending 06 05 04 1 pending 07 05 04 1 pending Total 209 172 60 11. From the chart above it is evident that the Commission recommended only 15 candidates against the requisition for 46 posts in 03 reservation category (Scheduled Tribes) as eligible candidates were not available. In other categories too the recommendations were lesser than the requisitions due to cases being pending .investigation. It is not clear what happened to those pending cases during the past two years. 12. On the basis of the Commission's recommendation 108 candidates were given appointment by the State Government. 43 candidates out of the list of 172 candidates recommended by the Commission failed to turn up for certificate verification despite several reminders sent to them individually and publication of notice in the local leading newspapers. 13. The State Government, therefore, by its letter no.553 dated 1.7.1996 returned the recommendation of those candidates to the commission with the request to recommend further names under different reservation categories as follows : Category 01 (unreserved) 24 02 (Scheduled Castes) 10 04 (Extremely backward castes) 06 05 (Backward casts) 01 07 (Female) 02 Total 43 14. The State Government has admittedly sent to the Commission a number of reminders (see letters dated 7.10.1996, Annexure-5; 2.12.1996, Annexure-6; and 24.12.1996, Annexure-8) requesting it to send further names and pointing out that the posts in question having fallen vacant prior to December 31,1988 were required to be filled up, according to the direction of the Supreme Court, from the direct recruits of the Examination of 1987. The Commission, however, persistently refuses to make any further recommendations. The Commission, however, persistently refuses to make any further recommendations. It maintains that by making recommendation of 172 candidates under its letter no.268/A, dated 13.9.1995 it fully complied with the direction of the Supreme Court and it is, therefore, not obliged to make any further recommendations notwithstanding the repeated requests by the State Government. 15. According to the Commission the requisition made by the State Government was discussed and considered in detail on more than one occasions. The Commission was of the view that by making recommendation of 172 names by its letter, dated 13.9.1995 it had fully complied with the direction given by the Supreme Court and nothing further was to be done in that regard. It accordingly informed the State Government by letter dated 425/A, dated 3.12.1996 (Copy at Annexure- C-4). On receipt of the letter, dated 24.12.1996 from the Personnel & Administrative Reforms Department the Commission once again considered the matter in its meeting, dated 26.2.1997 and decided not to make any further recommendations in response to the request of the Personnel & Administrative Reforms Department. The decision was communicated to the State Government by its letter dated 4.3.1997 (Copy at Annexure - C/7). 16. The Commission has primarily assigned two reasons for its refusal to make any further recommendations, regardless of the repeated requests made by the State Government. One is that the requisition for 43 further names was in respect of posts which had remained vacant due to non-joining of the candidates recommended earlier. It is stated that the Commission was not required to make further recommendation against vacancies on account of non-joining of the recommended candidates and if the Commission went on making recommendations for vacancies due to non-joining of candidates earlier recommended by it, it would become an unending process. The second reason assigned by the Commission is that in terms of the resolution of the Personnel & Administrative Reforms Department contained in memo no. KA- 12892, dated 29.10.1988 the State Government was required to report the vacancies caused due to nonjoining of the candidates by the end of each Financial year i.e. by March 31 each year. In the present case the Commission's recommendation was sent on 13.9.1995 and therefore any vacancies caused due to nonjoining should have been reported to it by 31.3.1996. But the State Government had sent its requisition on 1.7.1996. 17. In the present case the Commission's recommendation was sent on 13.9.1995 and therefore any vacancies caused due to nonjoining should have been reported to it by 31.3.1996. But the State Government had sent its requisition on 1.7.1996. 17. In view of the stand taken by the Commission, two questions arise for consideration by this court. (i) Whether it is open to the Commission to disregard the requisition and repeated requests made by the State Government to recommend names for appointment? (ii) Whether the Commission can be said to have fully complied with the direction of the Supreme Court in making recommendation of 172 names (against a requisition for 209) by its letter dated 13.9.1995 and therefore it is no longer obliged to make any further recommendation for filling up vacancies which were admittedly in existence on December 31, 1988? 18. In the facts and circumstances of the case, both the questions are to be answered in the negative and against the Commission. 19. So far as the first question is concerned, a learned Single Judge of this court by judgment dated August 28, 1996 in C.W.J.C. No. 9856/95 in a matter arising from the same advertisement no.11/85 observed as follows : "This court is of the view that it is not open to the Commission to refuse to make recommendation when the vacancy is notified and the requisition was made from them by the State Government. The Commission is not the appointing authority. It has merely to hold examination and assess the suitability of the candidate concerned and to make recommendation on the basis of the results of the candidates." 20. It may be noted that C.W.J.C. No. 9856/95 was a case in which the Commission had made recommendation of only 3 names against a requisition for five posts in 06 category. The Commission's action in making recommendation for lesser number of posts than requisitioned by the State Government prompted this court to make the above observation. Here the case stands on a far more stronger footing where the Commission is persistently disregarding repeated requests from the State Government as if it was some kind of a superior body. It must therefore, be held that the Commission was obliged to make further recommendation on the basis of the requisition and the requests made by the State Government. 21. It must therefore, be held that the Commission was obliged to make further recommendation on the basis of the requisition and the requests made by the State Government. 21. As regards the second question concerning compliance with the direction of the Supreme Court, the stand of the Commission appears to be patently erroneous. In view of the direction of the Supreme Court that all vacancies which existed till 31.12.1988 shall go to the direct recruits of the examination of 1987 the Commission was bound to act in a manner that would give effect to and subserve the direction of the Supreme Court fully. It was quite misconceived on its part to rely upon some resolutions of the department of Personnel & Administrative Reforms to come to a decision which prima facie appears to be contrary to the direction given by the Supreme Court. 22. Moreover, the Commission appears to have proceeded on the incorrect assumption that the selection process and appointments in this State are running smoothly and on a regular basis. Something could be said in favour of the stand taken by the Commission if appointments were being made by issuing advertisements regularly, each year or in alternate years. The Commission simply overlooked the background in which the Supreme Court had given the direction. The advertisement in this case was issued on August 25, 1985. The selection test was held more than two years later in November, 1987 and the results finally came out in July 1990. The selection process was thus spread over a period of five years. This gave rise to a serious dispute regarding the cut off date for the vacancies for the purpose of appointment of selected candidates. The State Government took the stand that vacancies upto the year 1985-86 were to be filled up. The High Court, upholding the claim of the petitioner, went to the other extreme and directed for filling up all the vacancies that came into existence till the date of publication of the result in July 1990. And it was in that background that the case went to the Supreme Court and the apex court directed till 31.12.1988 on the basis of the examination held in 1987. 23. And it was in that background that the case went to the Supreme Court and the apex court directed till 31.12.1988 on the basis of the examination held in 1987. 23. Having regard to these facts and circumstances, when the State Government made requisition for 43 further names for filling up the posts which had remained vacant due to non-joining of the candidates recommended earlier its action appears to me to be fully in accord with the direction of the Supreme Court and in those circumstances it was not open to the Commission to refuse to respond to the requisition. 24. For the reasons discussed above. I am clearly of the view that the petitioner is entitled to the relief claimed in this application. The Commission is accordingly directed to make recommendation in response to the requisition made by the State Government in its letter dated 1.7.1996. The recommendation must be made within two months from today. The State Government is directed to issue the appointment letters after completing the necessary formalities within two months of the receipt of the recommendation from the Commission. 25. In view of the Commission's plea that making recommendation for posts remaining vacant due to non-joining of candidates recommended earlier would lead to an unending process it is expected that once the Commission makes recommendations as directed by this court in this judgment the State Government would not make any further requisition in case some of the recommended candidates do not turn up and consequently some posts remain vacant. I feel inclined to make this observation as the matter has now become very old. 26. In the result, this writ petition is allowed with costs quantified at Rs. 2200/- payable to the petitioner by the Commission.