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2006 DIGILAW 970 (PAT)

Krishna Kanhaiya v. State Of Bihar

2006-10-30

RAMESH KUMAR DATTA

body2006
Judgment 1. Heard Mr. Mihir Kumar Jha, learned Senior Counsel appearing for the petitioner and the learned J.C. to Additional Advocate General No. 4 for the State. 2. The petitioner seeks a direction upon the respondents to appoint him on the post of District Fisheries Officer-cum-Chief Executive Officer/Assistant Director, Fisheries in the Bihar Fisheries Service Class II on the basis of his being selected and recommended candidate by the Bihar Public Service Commission (BPSC). 3. The short facts of the case are that a requisition was sent by the Secretary, Animal Husbandry and Fisheries Department on 30.3.1999 for filling up the 18 vacant posts of District Fisheries Officers through direct recruitment. As per the roster points indicated in the said requisition, 9 posts were available for general category, 2 posts for Scheduled Caste, 2 for Scheduled Tribe, 3 for most backward category and 1 for woman belonging to backward category. The petitioner belongs to most backward category who were allotted the roster points 20, 26 and 32 in the roster points running from 19 to 36 for the vacancies in question. On 22.12.1999, an advertisement was issued by the BPSC pursuant to the said requisition and the petitioner also applied and was called for interview as per the notification issued on 5.10.2002 and his interview was held in November, 2002. By letter dated 22.1.2003, the BPSC recommended the names of 16 candidates to the State Government and the name of the petitioner stood at SI. No. 14 in the said recommendation and third amongst the most backward class category. Instead of acting on the said recommendation which was extended by the BPSC on 22.1.2004, by letter dated 18.3.2004 the State Government took a plea for the first time that on account of the reorganization of the State the number of vacancies on the post of District Fisheries Officer has been reduced from 18 to 12 and the BPSC should revise the recommendation and make fresh recommendation only for 12 posts of District Fisheries Officer. By the said letter roster points 20 and 26 were shown as reserved for the most backward category and 5 posts for general category. By the said letter roster points 20 and 26 were shown as reserved for the most backward category and 5 posts for general category. By letter dated 24.4.2004 (Annexure-10) the BPSC replied that the recommendations have been made on the basis of the requisition of the State Government and the advertisement issued by the Commission and thus any change in the recommendation is not possible at the belated stage and the earlier recommendations were reiterated. Ultimately, however, on the insistence of the State Government, a fresh recommendation was sent by the BPSC recommending the names of 9 persons including two belonging to most backward class. 4. While the aforesaid process was going on the State Government vide order contained in memo no. 165 dated 30.1.2004 (Annexure-8) came out with a notification extending regular promotion to as many as five officers of the Bihar Fisheries Service Class II on the higher post of Deputy Director of Fisheries in the pay scale of 8000-13500 against the sanctioned and vacant need based posts with retrospective effect giving all financial benefits from 1.1.1999, 2.8.2000, 3.8.2004, 23.5.2001 and 11.6.2001. 5. On the basis of the aforesaid fact and situation, learned counsel for the petitioner submits that at least 5 more vacancies had come into being during the pendency of the recruitment process and one of those vacancies had arisen from even prior to the date of requisition, 2 such vacancies had arisen prior to the reorganization of the State while the other two vacancies had come into being immediately after reorganization of the State. It is further pointed out by the learned counsel for the petitioner that one of the nine recommended candidates, namely, Shambhu Prasad Yadav appointed against the general category has not joined and thus there are as many as six vacancies available with the Department for making appointment of the persons who had duly qualified in terms of the first recommendation made by the BPSC. 6. 6. Learned counsel for the petitioner, in support of his aforesaid contention, relies upon several decisions of this Court in similar circumstances in the cases of Jonoon Sangi vs. The State of Bihar and Others: 2002(2) PLJR 577 , Salil Kumar Singh and Arun Kumar vs. The State of-Bihar & Ors.; 2004(4) PLJR 136 and a Division Bench judgment affirming the latter in the case of State of Bihar & Others vs. Arun Kumar etc.: 2005(4) PLJR 246. Learned counsel also relies upon another judgment dated 15.10.2004 of this Court in CWJC Nos. 9609 and 10796 of 2003 (Shardendu Bhushan & Ors. and Prem Kumar vs. The State of Bihar & Ors). In all the said cases the recruitment process had been undertaken prior to the reorganization of the State and after reorganization the State Government decided to slash the advertised vacancy by one-third but on the facts of those cases it was found that actual vacancies were in existence when the recommendations of the Commission were to be acted upon by the State Government and accordingly, the authorities were directed to consider the recommendation of the BPSC and appoint the petitioners against the available vacancies after identifying the said vacancies. The said judgments relied upon an earlier Bench decision of this Court in the case of Subhas Chandra Yadav and Ors. vs.The State of Bihar and Ors., vide order dated 8.10.2001 passed in CWJC No. 11491/2001 by which direction has been issued to the respondent authorities to consider the recommendation of the BPSC and appoint the recommended candidates after identifying and calculating the vacancies. 7. Several counter affidavits and supplementary counter affidavits have been filed by the State Government, in the last of which it is not denied that 5 persons have been promoted on regular basis with retrospective effect giving full financial benefits by order dated 30.1.2004 with retrospective effect. It is also not denied that one Shambhu Prasad Yadav has not joined on the said post on which he has been appointed by letter no. 715 dated 7.4.2006. The only stand of the State is that the vacancies for five posts became available on 30.1.2004 and therefore these vacancies can be filled up only on the basis of new reservation policy which was in operation on that date and the subsequent vacancies cannot be adjusted with the earlier recommended candidates. 8. 715 dated 7.4.2006. The only stand of the State is that the vacancies for five posts became available on 30.1.2004 and therefore these vacancies can be filled up only on the basis of new reservation policy which was in operation on that date and the subsequent vacancies cannot be adjusted with the earlier recommended candidates. 8. On consideration of the aforesaid facts and the rival contentions of the parties I find that the fact and situation in the present matter is identical to that in the decisions relied upon by the learned counsel for the petitioner. In the present matter also 18 vacancies have been advertised whereas recommendation had been made originally by the BPSC of as many as 16 candidates. It was only on the insistence of the State Government that the BPSC has to make second recommendation of 9 candidates on the basis of the revised roster. But the fact remains that the 14 recommended candidates had acquired a right to be considered for appointment in terms of various decisions of this Court cited above. 9. In view of the aforesaid facts and circumstances, the BPSC is directed to make a fresh recommendation of the candidates on the basis of the first recommendation made by it to the State Government considering the same roster points as originally notified. The authorities of the State Government are required to identify the available vacancies in existence and consider the recommendations including those which have arisen on the basis of retrospective promotion by order dated 30.1.2004 and thereafter consider the case of the petitioner and others for appointment against the said identified vacancies. The said exercise must be completed by the BPSC within a period of one month from the date of receipt/production of a copy of this order and by the State Government within a further period of two months from the date of receipt of fresh recommendation from the BPSC. 10. The writ petition is accordingly allowed with the aforesaid directions/observations.