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2003 DIGILAW 741 (PAT)

Pramod Kumar v. State Of Bihar

2003-07-22

S.N.JHA

body2003
Judgment S.N.Jha, J. 1. The dispute in these two writ petitions relates to the First Bihar Administrative Service Limited Competitive Examination, 2003 in the context of Advt. No. 4/2003 issued by the Bihar Public Service Commission inviting applications from eligible candidates. 2. The sole petitioner in C.W.J.C. No. 5207 of 2003 is Accounts Clerk in the office of the Executive Engineer, Bridge Design Division No. 3, Road Construction Department, Patna.The sole petitioner (after deleting the names of other petitioners) in C.W.J.C. No. 5405 of 2003 is Junior Statistical Assistant (H.Q.) Directorate of Statistics, Patna. In effect and substance they seek modification in the advertisement and/or direction upon the respondents to issue fresh advertisement, and conduct the examination taking into account the vacancies meant for Class III employees, corresponding to 42nd and 43rd Examinations for recruitment to Bihar Administrative Service etc. 3. In order to appreciate the grievance of the petitioners, the background may briefly be mentioned. The recruitment to the Bihar Administrative Service etc. formerly known as Bihar Civil Service (Executive Branch), is made in accordance with the Bihar Civil Service (Executive Branch) & the Bihar Junior Civil Service (Recruitment) Rules, 1951. Rule 2 thereof provides that the recruitment shall be made (a) in accordance with the rules in Part II by direct recruitment and/or (b) in accordance with the rules in Part II A by direct recruitment and/or (c) in accordance with the rules in Part III by promotion or transfer of Officers already in government service. Rule 3 lays down that the Governor shall decide in each year the number of vacancies in each of the service to be filled in that year by direct recruitment and/ or by promotion respectively provided that the number of vacancies to be filled by promotion in the Bihar Civil Service (Executive Branch) (read, the Bihar Administrative Service) in any one year shall not, unless the Governor is satisfied that there is no sufficient number of Officers fit for promotion, be less than half the total number of vacancies to be filled in any such year. Part II contains provisions relating to direct recruitment on the basis of competitive examination. Part IIA contains provisions relating to direct recruitment of persons with Zamindari experience. Part II contains provisions relating to direct recruitment on the basis of competitive examination. Part IIA contains provisions relating to direct recruitment of persons with Zamindari experience. (It was a transitory provision incorporated in the Rules in the wake of abolitation of Zamindari in order to accommodate persons with experience of management of estates.) Part III contains provisions regarding promotion of Officers already in government service. The said provisions of Part III have now merely a historical value. It appears that in 1980 the Government came out with a notification, No. 5857 dated 2.5.1980, laying down revised procedure for appointment to the Bihar Administrative Service etc. from amongst the serving Class III employees. The said notification was later superseded by separate rules framed under Article 309 of the Constitution of India vide Notification No. 3047 dated 8.4.1992 titled "Bihar Administrative Service (Recruitment by Limited Competitive Examination) Rules, 1991". The said Rules contemplate recruitment, by promotion of Class III employees, on the basis of limited competitive examination in the prescribed manner. Rule 3, like 3 of 1951 Rules, provides that the State Government shall determine in each year by 31st March of the year, the vacancies to be filled by direct recruitment and/or promotion from serving Class III employees. Such appointments, however, are not to exceed 25% of the total vacancies. Rule 5 contains the eligibility clause. As per the said rule, besides being graduate from a recognised University, the candidate must have put in at least 10 years of continuous service in the government on a Class III post on the appointed day and he should not be more than 45 years of age on the 1st August of the relevant year for which examination is to be held. It is not necessary to notice other provisions. 4. Unfortunately, though the Rules were framed in 1991 and as per rule 12, candidates who fulfilled the eligibility criteria against the vacancies occurring between 1982 and 1991 were permitted to appear at the First Limited Competitive Examination, the First Examination is being held after 12 years in 2003. The injustice flowing from the inaction of the government need hardly be pointed out. The injustice flowing from the inaction of the government need hardly be pointed out. It is apparent that there being maximum age limit of 45 years referable to the particular year of examination, candidates who were eligible against the vacancies of, say, 1982 or even later years, must have become age barred; in fact, tney would be on the verge of superannuation. Meaning thereby that they have been deprived of opportunity or chance of appointment to the Bihar Administrative Service etc, by promotion. 5. It is relevant to mention here that the impugned advertisement has been issued with reference to the earmarked vacancies corresponding to the 35th to 41st Combined Competitive Examinations held In the years 1986 to 1998 having cut off dates, for the purpose of eligibility, as 1.8.1986, 1.8.1988, 1.8.1990, 1.8.1992, 1.8.1994, 1.8.1996 and 1.8.1998 i.e. 1st of August of the relevant year. A candidate who was, say, 44 years of age on 1.8.1986 and, therefore, eligible to appear in the examination against the earmarked vacancies corresponding to the 35th examination, cannot be appointed for, he must have retired from service by this time. This, however, is not the grievance of the petitioner. Understandably so because they are very much in service and have several years to go. They have approached this Court with a grievance that advertisement should have included the subsequent vacancies corresponding the 42nd and 43rd Combined Competitive Examinations. They apprehend that if the limited competitive examination(s) for the vacancies corresponding to the 42nd and 43rd Examinations are not held on time, as in the past, they may also lose chance of appointment. The case of the petitioners is that recruitment on the basis of the 43rd Combined Competitive Examination held in the year 2002 has already been made and, therefore, even if the respondents delayed the process of recruitment, by promotion, they should have atleast included the earmarked vacancies corresponding to the 42nd and 43rd Combined Competitive Examinations. 6. The grievance of the petitioners is reasonable and well founded. However, I do not propose to direct any modification in the advertisement. The advertisement has come at a very late stage and any interference with the process may further delay the appointment which would not be in interest of the candidates who are eligible to appear in the examination for the relevant batches. However, I do not propose to direct any modification in the advertisement. The advertisement has come at a very late stage and any interference with the process may further delay the appointment which would not be in interest of the candidates who are eligible to appear in the examination for the relevant batches. The order that commends itself to this Court is to direct the respondents to issue fresh advertisement for Second Limited Examination in 2004 taking into account the subsequent vacancies corresponding to the 42nd and 43rd Combined Competitive Examinations. This indeed is the spirit of rule 3 of the 1991 Rules as well as 1951 Rules. The rules envisage yearly ascertainment of vacancies by the Governor/Government and recruitment by direct recruitment or by promotion on the basis of limited competitive examination, as the case may be. It would only be just and proper to make it ongoing process like Combined Competitive Examination which are regularly held. 7. With the above observations/direction the writ petitions are disposed of.