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2007 DIGILAW 1432 (PAT)

Rashid Rais v. State Of Bihar

2007-08-30

ANWAR AHMAD, BARIN GHOSH

body2007
Judgment 1. Heard learned Counsel for the parties. 2. In 1991 an advertisement was published inviting applications for filling up vacant posts of Munsifs and Judicial Magistrates, which entailed holding of the 24th Bihar Judicial Service Examination. This advertisement, amongst others, provided that 122 posts so advertised shall remain reserved for candidates belonging to Other Backward Class communities. This clause, as contained in the said advertisement, was the subject matter of litigation initiated in this Court and concluded before the Hon ble Supreme Court. When the matter reached the Hon ble Supreme Court, an interim order was passed on 16.11.1995 whereby and under the Hon ble Supreme Court provided, amongst others, that question of filling up the reserved posts will not arise and they shall remain in abeyance, but if after the Hon ble Supreme court decides the issue of reservation and selections are made even thereafter and appointments are made, they will be entitled to their respective seniority at the slots available as on the date of appointment of General Category candidates. 3. Ultimately the said lis came to be finally settled by the judgment of the Hon ble Supreme Court rendered in the case of State of Bihar V/s. Balmukund Sah, AIR 2000 SC 1296 wherein the Hon ble Supreme Court upheld the decision of this Court that such reservation is outside the provisions of law governing the subject recruitment and, accordingly, concluded the matter by issuing a direction upon the authorities to work out the rights of the selected candidates for being appointed to the said posts governed by the Bihar Civil Services (Judicial Branch) (Recruitment) Rules, 1955 keeping in view the directions contained in the interim order of the Hon ble Supreme Court dated 16th November, 1995. 4. Subsequent to this judgment of the Hon ble Supreme Court, which was rendered on 14th March, 2000, those 122 posts were filled in by successful candidates of the said examination belonging to General Category as well as Scheduled Caste and Scheduled Tribe communities and not by people belonging to Other Backward Class communities, as was advertised. 5. In the meantime, in the month of March, 1999, an advertisement vas published by Bihar Public Service Commission inviting applications for filling up 152 vacant posts of Munsifs and Judicial Magistrates. The appellant and others responded to the said advertisement. 5. In the meantime, in the month of March, 1999, an advertisement vas published by Bihar Public Service Commission inviting applications for filling up 152 vacant posts of Munsifs and Judicial Magistrates. The appellant and others responded to the said advertisement. Thereupon the 25th Bihar Judicial Service Examination was held and the result thereof vas published on 4th August, 2000 when it transpired that each of the appellants are within 152 in the merit list. Bihar Public Service Commission on 16th August, 2000 made recommendation to the State Government for appointing those 152 selected candidates, including the appellants to the vacant advertised posts. 6. On 15th November, 2000, the Central Government published a Notification in the Official Gadget and thereby appointed 15th November, 2000 as the appointed date in terms of the provisions contained in the Bihar Re-organization Act, 2000 (hereinafter referred to as the Act) and by reason thereof upon bifurcation of the State of Bihar a new State by the name of State of Jharkhand came into existence. By reason of the provisions contained in the said Act, Bihar Public Service Commission continued to remain the Public Service Commission for the State of Bihar. It did not acquire any right or obligation pertaining to the State of Jharkhand. 7. There is no dispute that the Cadre Division ratio was fixed at 71: 29 by the Central Government in between the State of Bihar and the State of Jharkhand on the basis of their respective population. 8. There is also no dispute that as on the date of bifurcation there were 316 vacancies in the posts with which we are concerned. Of the said 316 vacant posts, in terms of the ratio as above, 224 vacancies remained with the State of Bihar and the remaining 92 vacancies went to the State of Jharkhand. 9. As aforesaid, the order of the Hon ble Supreme Court came on 14th March, 2000. In terms of the said order it became obligatory on the part of the State of Bihar to appoint 122 candidates, who were selected pursuant to their success in the 24th Bihar Judicial Service Examination held in 1991. These appointments, though could be given much prior to 15th November, 2000, but they were in fact given after 15th November, 2000. 10. These appointments, though could be given much prior to 15th November, 2000, but they were in fact given after 15th November, 2000. 10. Upon giving those 122 appointments, the 224 vacancies, as was existing with the State of Bihar on the date of bifurcation, stood reduced to 102. The State of Bihar thereupon appointed 102 recommendees on the basis of their merit in the merit list in terms of the recommendation made by Bihar Public Service Commission upon conclusion of selection pursuant to the 25th Bihar Judicial Service Examination. The State of Bihar did not appoint the remaining 50 recommendees including the appellants. 11. The appellants contended that 122 appointees of the 24th Bihar Judicial Service Examination should have been adjusted as existing employees and, accordingly, approximately one third thereof should have been allocated to the State of Jharkhand paving the way for appointment of some of those remaining 50 candidates of the 25th Bihar Judicial Service Examination inasmuch as in such circumstances there would be some more vacancies remaining with the State of Bihar. 12. The appellants then contended that in any event when an advertisement was published for recruitment to 152 posts and when a constitutional authority like the State Public Service Commission recommended 152 candidates well within the time when such recommendation could be made, there was no just reason not to honour such recommendation. 13. It was also contended by them that though the recommendation of Bihar Public Service Commission in the instant case has not been honoured, but despite that in violation of the provisions contained in Article 323(2) of the Constitution and Sub-section (4) of Section 77 of the Act, no memorandum justifying non-acceptance of the recommendation of the Commission has been placed before the legislature of the State. 14. It was contended that in any event, while there vas no just reason for not appointing. 122 candidates of the 24th Bihar Judicial Service Examination prior to 15th November, 2000, there is also no reason for not honouring in toto the recommendation of Bihar Public Service Commission made in respect of the 25th Bihar Judicial Service Examination prior to 15th November, 2000. It vas contended that the appellants having been recommended, they had a legitimate expectation of being appointed, although they did not have any vested right of being appointed, and such legitimate expectation has been grounded by the State by its unexplained inaction. It vas contended that the appellants having been recommended, they had a legitimate expectation of being appointed, although they did not have any vested right of being appointed, and such legitimate expectation has been grounded by the State by its unexplained inaction. 15. We feel that the appellants had no connection with the 24th Bihar Judicial Service Examination. They are only concerned with the 25th Bihar Judicial Service Examination. When the vacancies were advertised prior to the 25th Bihar Judicial Service Examination, the vacancies then available were taken note of and, accordingly, 122 vacancies to be supplied on the basis of the success of the 24th Bihar Judicial Service Examination were no part of the vacancies advertised prior to holding of the 25th Bihar Judicial Service Examination. 16. In such view of the matter, we accept the submission of the learned Counsel appearing on behalf of the appellants that no vacancies advertised for the 25th Bihar Judicial Service Examination could be supplied by any candidate who succeeded in the 24th Bihar Judicial Service Examination. We, therefore, proceed on the basis that in so far as the candidates of the 25th Bihar Judicial Service Examination are concerned, there were 152 vacancies. 17. There is no dispute that 152 candidates were recommended for filling up the then available 152 vacancies. No doubt, before 15th November, 2000 the State of Bihar could supply all those vacancies. The question is, having not supplied those vacancies before 15th November, 2000, could the State of Bihar supply those vacancies on the basis of the recommendation of the Bihar Public Service Commission? 18. Though there is a provision in the Constitution that in the event the State Government is not honouring the recommendation of the State Public Service Commission, it is obliged to place the reason therefor before the State Legislature, but there is no provision in the Constitution that within a certain period of time the State Government must honour the recommendation of the State. Public Service Commission. In the instant case, the recommendation was made on 16th August, 2000 and within 90 days therefrom, i.e. before 15th November, 2000, the State Government did not honour the recommendation. Such a delay, we do not think can show any intention of the State Government not to honour such recommendation of the State Public Service Commission. 19. Public Service Commission. In the instant case, the recommendation was made on 16th August, 2000 and within 90 days therefrom, i.e. before 15th November, 2000, the State Government did not honour the recommendation. Such a delay, we do not think can show any intention of the State Government not to honour such recommendation of the State Public Service Commission. 19. On 15th November, 2000, by reason of a fiction of law made by the Central Legislature, the right of Bihar Public Service Commission to make any recommendation in relation to any vacancy available in the State of Jharkhand stood obliterated. The vacancies available, as on the date of formation of the State of Jharkhand, i.e. on 15th November, 2000, could not be supplied by the State of Bihar. The rational connotation would be that by reason of a fiction of law the vacancies available stood curtailed and, accordingly, power to make recommendation also stood curtailed. There is no dispute that on the basis of the ratio indicated above, the advertised 152 vacancies stood bifurcated into 102 and 50 respectively for the State of Bihar and the State of Jharkhand. There is no dispute that the vacancies which remained with the State of Bihar have been supplied. Since the remaining vacancies did not remain with the State of Bihar, question of supplying the same by the State of Bihar did not arise. At the same time on the basis of recommendation of an authorities who lost its competence to recommend in respect of the vacancies stood transferred to the State of Jharkhand, did also never arise. 20. It is true that on being recommended, the appellants did reasonably expect that, they being within the advertised vacancies, would be appointed, but in view of a legislative mandate inasmuch as the vacancies stood reduced, their legitimate expectation could not be fulfilled. 21. The learned Counsel appearing on behalf of the appellants has drawn our attention to an unreported judgment rendered by a Division Bench of this Court on 31st August, 2005 in LPA No. 567/2005 (State of Bihar and Ors. V/s. Arun Kumar) and connected appeals, which suggests that recommendation made by Bihar Public Service Commission prior to 15th November, 2000, i.e. the date of bifurcation, remains in force and the same is required to be honoured. V/s. Arun Kumar) and connected appeals, which suggests that recommendation made by Bihar Public Service Commission prior to 15th November, 2000, i.e. the date of bifurcation, remains in force and the same is required to be honoured. At page 3 of the said judgment while discussing the law governing the subject, the Division Bench observed that recommendation made by the Commission, even prior to coming into force of the said Act, shall not become infructuous requiring de novo selection and the identified vacancies are to be filled up on the basis of the recommendation of the Commission made earlier in the light of the vacancies that have occurred within the State of Bihar. It then issued a direction to appoint such recommendees in public interest, but did not discuss whether the recommendees could be accommodated in the vacancies that have occurred within the State of Bihar. 22. We have culled out the ratio of that judgment to the effect that the recommendation as made would remain in force against the State which is bound by that recommendation and, accordingly, the vacancies that have occurred within that State must be filled up on the basis of such recommendation. 23. We are of the considered view that by reason of curtailment of the power to make recommendation in respect of vacancies that occurred in the State of Jharkhand in view of transfer thereof from the State of Bihar by reason of the said Act, the State Government was not obliged to honour the recommendation of Bihar Public Service Commission beyond 102 vacancies that occurred within the State of Bihar after such transfer, as for all practical purposes, the recommendation beyond 102 should be deemed to have been nullified by the said Act and, accordingly, the State Government had no obligation of laying before the Legislature of the State any memorandum giving reasons for not honouring the recommendation of Bihar Public Service Commission beyond 102 vacancies. 24. For the reasons as above and also for the reasons indicated by the learned Single Judge while dismissing the writ petition, we also dismiss this appeal without any order as to costs.