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2002 DIGILAW 597 (PAT)

State Of Bihar v. Sanjeev Kumar

2002-05-10

NAGENDRA RAI, R.S.GARG

body2002
Judgment 1. The State of Bihar and its officers have tiled the present appeal challenging the order dated 10.9.2001 passed by a Seamed Singie Judge of this Court in C.W.J.C. No. 10627 of 2001 [ 2001 (4) PLJR 325 ], directing them to issue appointment letters to the writ petitioner-respondents and other eligible candidates on the posts of Assistant in the Secretariat and its attached offices within a period of fortnight from the date of the order. 2. The factual matrix necessary for disposal of the present appeal are that the Bihar State Subordinate Services Selection Board (hereinafter referred to as the Board) issued an advertisement in the year 1985 inviting applications for appointment to the posts of Assistant in the Secretariat and its attached offices, having fallen vacant up to the year 1985-86. The number of the vacancies was not notified in the advertisement but later on the same was notified as 357. The examination was held in 1987 and the recommendation by the Board was made in the year 1990. Out of the successful candidates, 309 candidates were given appointments and others were empanelled and made to wait for the release of the further vacancies. As no vacancies were communicated by the State Government, no appointment could be made. The empanelled candidates, filed a writ application in this Court and this Court after hearing the parties directed the State Government to fill up the vacancies not only up to the publication of the result in the year 1990, but also the vacancies having existed up to 1991. The State of Bihar challenged the aforesaid judgment before the Apex Court and the Apex Court finally disposed of the matter on 8.10.1993 and the said judgment is reported in (1994) 1 S.C.C. 126 : 1994(1) PLJR (SC) 41 (State of Bihar V/s. Secretariat Assistant Successful Examinees Union). The Apex Court held that the selected candidates on account of being empanelled did not acquire any indefeasible right of appointment. However, taking into consideration the fact, situation and circumstances of the case, the Apex Court modified the judgment of the High Court and ordered that the vacancies up to December 31, 1988, were to be filled up from the aforesaid panel and a fresh advertisement should be issued inviting applications for filling up the posts of Assistant having fallen vacant from 1989- 1992 up to 31.12.1993. It also issued other directions, which are not relevant for the present case. 3. It appears that in the meantime, the Board was abolished and the work of selection was entrusted to the Bihar Public Service Commission (for short the Commission) and, thereafter, advertisement no. 1/93 was issued by the Commission on 9.11.1993. A written test was held on 5/6.6.1994 and the result of 483 successful candidates was published in the year 1995 for their appointments. It is to be stated that in the advertisement probable vacancies were notified as 591 subject to the final verification on account of objection having been raised by the successful candidates of 1986 batch 417 candidates were appointed from the aforesaid panel on 11.12.1995, issued by the nodal department i.e. Department of Personnel and Administrative Reforms. Thereafter, again a writ application being C.W.J.C. No. 8697 of 1997 was filed by the aggrieved candidates for a direction to appoint them on the ground that a large number of vacancies were still existing with regard to the aforesaid years, A learned Single Judge of this Court by order dated 30.11.1999 directed the State Government to calculate the vacancies in view of the controversy between the parties about the number of vacancies for a period from 1.1.1989 to 31.12.1993 and the authorities were also directed to show vacancies, if any, still existing, having fallen vacant prior to 1.1.1989 and if further vacancy is traced out then the State Government will communicate the vacancies to the B.P.S.C. and the B.P.S.C. will recommend the names of rest of the successful candidates on the basis of merit according to the list/panei prepared in pursuance of advertisement no. 1/93 within one month thereafter and the appointing authority will issue appropriate orders of appointment in favour of the recommended candidates within two weeks of the receipt of such requisition. 4. At this place, it is important to mention that subsequent to advertisement no. 1/93 with regard to which the present dispute arises, in 1999 subsequent advertisement has been issued to fill up the subsequent vacancies. 5. The case of the writ petitioner- respondents is that after a direction issued by this Court the State Government proceeded to identify the vacancies and found that 241 vacancies had existed during the relevant period and sent requisition for 241 names to B.P.S.C. vide memo dated 26.6.2000. 5. The case of the writ petitioner- respondents is that after a direction issued by this Court the State Government proceeded to identify the vacancies and found that 241 vacancies had existed during the relevant period and sent requisition for 241 names to B.P.S.C. vide memo dated 26.6.2000. The Commission on 13.7.2000 issued a press release declaring the result of 241 candidates for appointment as Assistant among left over candidates of the panel prepared in pursuance of advertisement no. 1/93. However, the Commission sent recommendation with respect to 237 candidates only on 11.8.2000 and on 12.4.2001 notice was issued asking the recommended candidates to appear for verification of their certificates in accordance with the program mentioned therein and the whole exercise of verification was done from 16.4.2001 to 21.4.2001, but no appointment letter was issued and, thereafter, they filed a writ application being C.W.J.C. No. 10627 of 2001 and the learned Single Judge issued the directions as stated above. 6. At this stage, it would be proper to mention with regard to certain facts, which are not in dispute. On 1.1.1996, the State Government introduced the central pay scale and according to the same, the post of Assistant is the promotional post of Lower Division Clerk (for short L.D.C.) and Upper Division Clerk (for short U.D.C.). After direction issued by the learned Single Judge of this Court on 30.11.1999 in the aforesaid writ application, on 20.12.2000 the State Government took a decision to demerge the post of Assistant into U.D.C, L.D.C. and Assistant. It took a policy decision that no appointment would be directly made on the post of Assistant and appointment is to be made on the lower cadre post i.e. L.D.C. and, thereafter, the L.D.C. is to be promoted to the U.D.C. and then to the post of Assistant. The said policy decision has been annexed as Annexure A to the counter-affidavit filed before the learned Single Judge, which says in clear terms that the decision has been taken to demerge the post of Assistant and that the appointment is to be made on the post of L.D.C. and the post of Assistant is the second promotional post. The said policy decision has been annexed as Annexure A to the counter-affidavit filed before the learned Single Judge, which says in clear terms that the decision has been taken to demerge the post of Assistant and that the appointment is to be made on the post of L.D.C. and the post of Assistant is the second promotional post. The said decision further provides that if any case with regard to appointment to the higher post in the cadre is pending then the same will be cancelled even if the process of selection has been completed and such candidates will be allowed to reappear in the selection process for appointment in terms of the aforesaid policy decision. Thus, from 20th of December, 2000, no post of Assistant is to be filled up directly and the process started earlier has to be cancelled. 7. The Parliament enacted the Bihar Re-organisation Act, 2000 (Act No. 30/ 2000) and the erstwhile State of Bihar was bifurcated from the appointed date i.e. 15.11.2000 into two States, namely, the State of Bihar and the State of Jharkhand. The Central Government in terms of provisions of the Act took a decision to divide the strength of the Government servants of the erstwhile State of Bihar in the ratio of 2:1, that is to say 2/3rd of the employees shall be allocated to the State of Bihar and 1/3rd to the State of Jharkhand. It also provided that the division would be made only of the employees appointed prior to 15.11.2000. It further provided that if recommendation was made by the Commission and no appointment was made prior to the appointed date then on the basis of the said recommendation of the existing B.P.S.C. no appointment could be made in the State of Jharkhand. After bifurcation of the State, the Jharkhand State has also constituted its own Public Service Commission. 8. The stand of the State is that after the direction issued by the learned Single Judge, it proceeded to identify the vacancies and consequently identified the vacancies as 241. After bifurcation of the State, the Jharkhand State has also constituted its own Public Service Commission. 8. The stand of the State is that after the direction issued by the learned Single Judge, it proceeded to identify the vacancies and consequently identified the vacancies as 241. In pursuance of the judgment, the State Government took action and requested the Commission to send the names of the successful candidates for appointment and the same was received on 12.8.2000 and verifications were made and it was found that 241 vacancies existed but the Commission sent the names of 208 candidates only and with regard to the rest it was said that it will be made available later on. In the meantime, on 20.12.2000 the Finance Department took a decision that according to it the direct appointment on the post of Assistant was banned and the post of Assistant was demerged as L.D.C., U.D.C. and Assistant in the pay scale of Rs. 3050/- 4500/-, Rs. 4,000/- 6000/- and Rs. 5500/- 9000/- as per recommendation of the Fitment Committee. Thereafter, the Finance Department gave its consent for appointment of the said persons on the post of L.D.C. on 9.7.2001 but the final decision was not taken. In the meantime, the petitioner rushed to the court. 9. Further stand of the State during the course of the argument was that in view of the creation of Jharkhand State and the decision of the Central Government dividing the ratio of the employees into 2 ; 1 (2/3rd will remain in the State of Bihar and the remaining 1/3rd will be allocated to the State of Jharkhand). Now, out of the recommended candidates, only 2/3rd candidates have to be considered but that too for the post of L.D.C. in view of the decision of the Finance Department aforementioned. 10. Learned counsel appearing for the State submitted that the learned Single Judge has committed a serious error of record in holding that according to the averment in the counter-affidavit, the Government is reconsidering the matter for demerger of the post of Assistant in the Secretariat by dividing into three categories, namely, L.D.C, U.D.C. and Assistant. 10. Learned counsel appearing for the State submitted that the learned Single Judge has committed a serious error of record in holding that according to the averment in the counter-affidavit, the Government is reconsidering the matter for demerger of the post of Assistant in the Secretariat by dividing into three categories, namely, L.D.C, U.D.C. and Assistant. A decision has already been taken and the same has been annexed as Annexure A to the counter-affidavit and according to the said decision now no appointment can be made on the post of Assistant and the successful candidates can be appointed only on the post of L.D.C. to the extent of 2/3rd in view of the bifurcation of the State. 11. Learned counsel for the writ petitioner-respondents, on the other hand submitted that the matter had earlier come to this Court before the learned Single Judge and he had directed for determination of the vacancies and issuance of the appointment letters to the extent of the vacancies available. In that view of the matter, the State Government now in the garb of its subsequent decision cannot deny the claim of appointment of the writ petitioner-respondents on the posts of Assistant. In this connection, he submitted that the law is well-settled that once process of selection has started then the post has to be filled up on the basis of the rule prevalent at the time of selection and not on the basis of the amended or subsequent rule, or decision taken by the State Government and in support of the same he relied upon an oft-quoted judgment of the Apex Court in the case of P. Mahendran V/s. State of Karnataka, reported in A.I.R. 1990 S.C. 405. 12. After hearing learned counsel for the parties and going through the records, the only point that falls for consideration in this case is as to whether a direction is to be issued to the State Government to appoint the writ petitioner-respondents and other eligible candidates to the post of Assistant with regard to the determined vacancies for the relevant years 1989 to 1993. 13. Admitted fact is that in pursuance of the direction of the Apex Court fresh advertisement was issued, vacancies were notified and successful candidates were appointed and, thereafter, subsequent advertisement has also been issued and appointments have been made for subsequent period. 13. Admitted fact is that in pursuance of the direction of the Apex Court fresh advertisement was issued, vacancies were notified and successful candidates were appointed and, thereafter, subsequent advertisement has also been issued and appointments have been made for subsequent period. The matter regarding filling up the vacancies for the aforesaid period should have come to an end for the simple reason that the matter cannot be reagitated for an indefinite period adversely affecting the chances of the candidates having become eligible subsequently. But as a learned Single Judge of this Court has directed the State Government to determine the vacancies afresh and if the vacancies existed then to appoint the candidates, who were successful but were not appointed in the first lot, the State took steps to fill up the vacancies. 14. Already in 1996, the State Government has adopted the Central pattern with regard to the post, pay scale etc. of the Secretariat employees and others and on 20.12.2000 decided to demerge the post of Assistant into three categories. The entry point in service is of L.D.C. The Assistant is the second promotional post the first being the U.D.C. 15. In other words, today no appointment to the post of Assistant can be made directly. The writ petitioner-respondents were successful candidates and their names were in the panel/wait list. It is settled by a catena of decisions of the Apex Court that successful candidates do not acquire an indefeasible right to be appointed. The appointing authority can deny the right of appointment on legitimate and valid ground. There is no legal duty on the State to fill up all or any of the vacancies. However, the State for denying the appointment has to justify its action on valid grounds; such as financial crunch etc. In this connection, reference may be made to the law laid down by a Constitution Bench of Apex Court in the case of Shankarsan Das V/s. Union of India, reported in (1991) 3 S.C.C. 47 . In paragraph 7 of this judgment, it was laid down as follows : "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. In paragraph 7 of this judgment, it was laid down as follows : "7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. 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. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana V/s. Subash Chander Marwaha, (1974) 3 S.C.C. 220 , Neelima Shangia V/s. State of Haryana, (1986) 4 S.C.C. 268 or Jalinder Kumar V/s. State of Punjab, (1985) 4 S.C.C. 122." 16. The same view has been taken by the Apex Court in the case of Jai Singh Dalai V/s. State of Haryana, reported in (1993) Suppl. (2) S.C.C. 600, wherein at paragraph 7 it was held that even candidates selected for appointment have no right to appointment and it is open to the State Government at a subsequent date not to fill up the posts or to resort to fresh selection and appointment on revised criteria. 17. Recently in the case of All India S.C. & S.T. Employees Association V/s. Arthur Jeen, reported in (2001) 6 S.C.C. 380 , the same view has been reiterated relying upon the judgment of the Constitution Bench. 18. The decision relied upon by the writ petitioner-respondents in the case of P. Mahendran (supra) is not applicable in this case. In that case, the process of selection was started for appointment to the post of Motor Vehicle inspectors on the basis of rules prescribing certain qualifications. 18. The decision relied upon by the writ petitioner-respondents in the case of P. Mahendran (supra) is not applicable in this case. In that case, the process of selection was started for appointment to the post of Motor Vehicle inspectors on the basis of rules prescribing certain qualifications. Later on after entire process of selection was over and candidates were selected and were also sent for training before issuance of formal appointment letter, the rule was revised and in that context it was said that once the process of selection has commenced on the basis of the existing rule then that process has to be completed on the basis of existing rule and not on the basis of amended rule. 19. In the case of Jai Singh Dalal (supra), the matter related to the appointment of Haryana Civil Service and the State Government took decision to fill up the post by promoting Class II Officers which the State Government was competent to decide in view of proviso to Rule 5 of the Punjab Civil Services (Executive Branch) Rules, 1930. While the Commission was in the process of making selection on the basis of record of service and interview, the earlier Government went out of power and new Government took over and it decided to withdraw the decision of the earlier Government on the ground that it wanted to revise criteria of selection. 20. The question before the Apex Court was that when the process of selection has already started whether the earlier decision can be changed or not. Dealing with the said matter, the Apex Court has held that as the selection process was not completed and before that the State Government reviewed its earlier decision and decided to revise the eligibility criteria of appointment, no right of the petitioner of that case has been violated. 21. In the case of Rajasthan Public Service Commission V/s. Chanan Ram, reported in (1998) 4 SCC 202 , under the relevant recruitment rules, there were posts of Assistant Director (Senior) and Assistant Director (Junior). The rule was amended and the post of Assistant Director (Junior) was abolished and new cadre of Assistant Director and Marketing Officer was created. The process of recruitment for the post of Assistant Director (Junior) was started before the amendment of the rule. After the rule was amended, process of selection was terminated and that was changed. The rule was amended and the post of Assistant Director (Junior) was abolished and new cadre of Assistant Director and Marketing Officer was created. The process of recruitment for the post of Assistant Director (Junior) was started before the amendment of the rule. After the rule was amended, process of selection was terminated and that was changed. The Apex Court held that no appointment can be made against the post of Assistant Director (Junior) in pursuance of earlier process because the said cadre was abolished. It was further held that even if earlier advertisement had been proceeded with, it would have resulted in an exercise in futility. No appointment could have been given to the selected candidates to the post of Assistant Director (Junior) after 1995 amendment of the rules because there were no posts in the hierarchy of the said service. 22. In the present case the process of selection has been changed, on the other hand, a decision has been taken to demerge the post of Assistant on the basis of adoption of pay structure of the Central Government by the State Government, as a result of which the post of Assistant now is not available for direct recruitment and the only point of entry is the post of Lower Division Clerk (LDC). In view of the changed circumstances, no direction can be issued to appoint the writ petitioners/ respondents to the post of Assistant because the said post is no longer an entry point in the service rather on the other hand that has become a promotional post as discussed above. In view of the decision of the Central Government after bifurcation of the State only 2/3rd vacancies will be treated to have been allocated to the State of Bihar, The State Government shall now be obliged to consider the question of appointment of the empanelled candidates to the post of LDC on the said 2/3rd vacancies which had fallen in the share of the State of Bihar. As the writ petitioners were empanelled for their appointment as Assistant but now the entry point is the post of LDC, the State Government shall consider the cases of empanelled candidates for their appointment to the post of LDC and pass suitable orders within a period of one month from the date of this order. 23. As the writ petitioners were empanelled for their appointment as Assistant but now the entry point is the post of LDC, the State Government shall consider the cases of empanelled candidates for their appointment to the post of LDC and pass suitable orders within a period of one month from the date of this order. 23. In the result, this appeal is partly allowed with the directions and observations made above. There shall be no order as to costs.