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2008 DIGILAW 85 (PAT)

Anjani Kumar v. State Of Bihar

2008-01-16

NAVIN SINHA

body2008
Judgment Navin Sinha, J. 1. Heard learned counsel for the petitioner and learned counset appearing for the official as also the private Respondents. 2. The petitioner, who was an applicant for a Class III post of Clerk in the judgeship of Jehanabad, is aggrieved by the order dated 10.12.2004 informing him that his appointment has been deferred till further orders. 3. Learned counsel for the petitioner submitted that the petitioner was higher in the merit list than Respondents 5 to 7; that there was no justification for redrawing of the merit list on basis of the date of birth, even if ifat be so, the petitioner having secured higher marks in the written examination than Respondents 5 to 7, the petitioner Should have been appointed without disturbing his position in the merit list. He relies upon a Division Bench judgment of this Court Pandey Yenktesh Prasad Sinha V/s. The State of Bihar & ors., 1988 0 PLJR 102. 4. Learned counsel appearing on behalf of Respondents 2 to 4 submitted that in the final merit list the petitioner and Respondents 5 to 7 have secured the same aggregate marks. All that was done was that the merit list was redrawn resulting in rearrangement of the petitioner and Respondents 5 to 7 only in terms of Rule 10 of the Bihar Administrative Services (Limited Competitive Examination for Appointment) Rules, 1991 on basis of the date of birth. He next submits that these Rules have been adopted in Bihar Civil Courts (Class III & Class IV) Rules, 1998 with regard to the subject on which the latter Rules may be silent. 5. Learned counsel for respondents 5 to 7 urged that they having secured ecual aggregate marks as the petitioner, the restructuring of the merit list to the extent was justified and no interference is required. 6. Rule 10 of 1991 Rules provides that the final merit list shall be prepared on basis of the aggregate marks. The aggregate marks, where selection comprises of two stages, written and interview, shall naturally be arrived at on aggregate basis considering the marks obtained at both stages. 11 e.Rule then goes on to stipulate that where two or more than two candidates have obtained the same aggregate marks then the merit list with regard to them shall be prepared on the basis of age. 7. 11 e.Rule then goes on to stipulate that where two or more than two candidates have obtained the same aggregate marks then the merit list with regard to them shall be prepared on the basis of age. 7. In the case of Pandey Venktesh Prasad Sinha V/s. The State of Bihar & ors. (supra) relied upon by the petitioner, the factual situation was different. The Rules provided that the final selection shall be made on the basis of the candidates acquiring higher aggregate marks. The Rules i did not provide for a case where two or more candidates secured the same aggregate marks. This has been noticed in paragraph 4 of the judgment, which, this Court considers it proper to quote in its relevant extract; "4. According to the rules applicable, the final selection has to be made on the basis of the candidates acquiring higher aggregate marks, but they do not in express terms deal with a case where two Or more candidates score the same aggregate..........." 8. In absence of any Rules the Division Bench; arrived at the conclusion in the facts of the case that those with higher marks in the written examination than that of viva voce test were to be accorded placement in the seniority list accordingly. 9. The distinction lies therein. In the present case, the Rules We specific. The legislative mandate is clear. There is no occasion for this Court to read anything into the Rules which is not there. In view of the present Rules, the Division Bench judgment in the case of Pandey Venktesh Prasad Sinha (supra) relied upon by the petitioner has no application to the facts of the present case. 10. In view of the fact that merit list has been restructured in accordance with the Rules based on the date of birth in so far as the petitioner and Respondents 5 to 7 are concerned, this Court finds no merit in this writ application, it is dismissed to that extent. 11. Learned counsel for the petitioner next urged that of the 25 vacancies of Clerks and 5 vacancies in the Fast Track Courts, a waiting list of candidates had been prepared in which the name of the petitioner also figure:. Some of the candidates recommended for appointment out of these 30 posts never joined and, therefore, vacancies remained available. 11. Learned counsel for the petitioner next urged that of the 25 vacancies of Clerks and 5 vacancies in the Fast Track Courts, a waiting list of candidates had been prepared in which the name of the petitioner also figure:. Some of the candidates recommended for appointment out of these 30 posts never joined and, therefore, vacancies remained available. The law would be equally clear that mere cmpanelment will not create a right to the petitioner, but nonetheless if the vacancy still exists the Respondents have to give cogent grounds not to make such appointment. The action. cannot be arbitrary. The Respondents will, therefore, be required to examine the number of vacancies available out of the aforesaid 30 vacancies because of non-joining of candidates. This shall have to be more specific with regard to the claim of the petitioner in paragraph 17 of the writ application. If the vacancy as advertised be available and the petitioner in accordance with his seniority in the waiting list be eligible, quite naturally, the Respondents shall be required to consider his case. Let such exercise be done by the Respondents 2 to 4 within a maximum period of two months from the date of receipt and/or presentation of a copy of this order. 12. The writ application stands allowed only to the extent indicated above.