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2012 DIGILAW 1150 (PAT)

Bihar Staff Selection Commission v. Manish Kumar

2012-08-22

AHSANUDDIN AMANULLAH, R.M.DOSHIT

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ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) Feeling aggrieved by the judgment and order dated 19th September 2011 passed by the learned single Judge in CWJC No. 15477 of 2010, the respondents - Bihar Staff Selection Commission (hereinafter referred to as “the Commission”) and its officers have preferred this Appeal under Clause 10 of the Letters Patent. 2. The matter at issue is the recruitment for appointment to the posts of Block Statistical Supervisor / Junior Statistical Supervisor / Investigator in the State service, under the Director of Statistics, Department of Planning, conducted by the Commission. 3. Pursuant to the requisition made by the State of Bihar on 30th May 2006, the Commission published an advertisement on 24th August 2006 for recruitment for appointment to 224 vacancies in the above referred cadres. The advertisement stipulated, inter alia, that the number of vacancies was provisional. The required qualification was a Bachelor’s Degree in Economics / Statistics / Maths or Commerce and the passing of Matric examination with Maths. The recruitment process initiated on 24th August 2006 dragged on. The competitive written examination was not conducted until 2010. Before the examination was conducted, on 7th October 2009 the Government of Bihar informed the Commission that out of 224 vacancies advertised, 17 vacancies were required to be filled in in accordance with the direction dated 9th August 2006 issued by this Court in a contempt proceeding in MJC No. 809 of 2005. Thus, the Commission conducted the examination and interview for 207 vacancies and on 14th August 2010 prepared a Select List of 207 candidates and recommended 207 names for appointment to the above referred cadres. 4. Feeling aggrieved, the respondent-writ petitioner approached this Court under Article 226 of the Constitution in above CWJC No. 15477 of 2010. The writ petitioner challenged the action of the Commission in preparing the Select List of 207 candidates against the 224 vacancies advertised. The writ petitioner also sought direction to the Commission to recommend names of 405 candidates for appointment to the above referred cadres. The writ petitioner filed Interlocutory Application No. 10200 of 2010 for a further relief to recommend 181 names in addition to 224 vacancies advertised. He also challenged the marks awarded to him. 5. The petition was contested by the Commission. The writ petitioner filed Interlocutory Application No. 10200 of 2010 for a further relief to recommend 181 names in addition to 224 vacancies advertised. He also challenged the marks awarded to him. 5. The petition was contested by the Commission. According to the Commission; although 224 vacancies as on 30th May 2006 were advertised; subsequently, in view of the above referred order of this Court, for accommodation of some 17 candidates the Select List was reduced to 207 candidates. The Commission further stated that as late as on 8th May 2010 the State Government requested the Commission to include 181 additional vacancies for the purpose of recruitment pursuant to the above referred advertisement dated 24th August 2006. The State Government also modified the eligibility to include `Diploma in Computer Applications’ in addition to the existing qualification of a Bachelor’s Degree. In answer to the said requisition, the Commission advised the State Government that it would not be legally possible to make recruitment for 388 vacancies (207+181) with the modified eligibility of possessing a `Diploma in Computer Applications’. After a brief correspondence, the State Government agreed that a fresh recruitment process be initiated for additional 181 vacancies and that the recruitment process already started may be confined to 207 vacancies (224-17). Accordingly, a Select List of 207 candidates was prepared and the said 207 candidates were recommended for appointment to the aforesaid cadres. 6. The learned single Judge has allowed the writ petition and has issued direction to the Commission to complete the selection process for 388 vacancies. Seeking support from the judgments of the Hon’ble Supreme Court, the learned single Judge held that the 224 vacancies advertised was not an ascertained number; but was a mere provisional number variable in nature. The final determination of vacancies was done before commencement of the selection process. Learned single Judge has held that the Commission was under obligation to prepare a select list for appointment to 388 vacancies that existed before the date of the written examination and for which a requisition was made by the State Government on 8th May 2010. 7. Feeling aggrieved, the Commission has preferred this Appeal. 8. Learned Additional Advocate General Mr. Lalit Kishore has appeared for the Commission. 7. Feeling aggrieved, the Commission has preferred this Appeal. 8. Learned Additional Advocate General Mr. Lalit Kishore has appeared for the Commission. He has submitted that none of the judgments of the Hon’ble Supreme Court relied upon by the learned single Judge envisages a situation where the Government or the recruiting body can be issued a direction to make appointment or to prepare a select list for vacancies more than the advertised vacancies. He has submitted that in cases where the concerned authorities had made selection or appointment in excess of the advertised vacancies, in a given fact situation, the Courts have upheld such action, but in no case any Court has issued direction in the nature of mandamus as it has been done in the present case. In support of his submissions, Mr. Lalit Kishore has relied upon the judgments of the Hon’ble Supreme Court in the matters of Rakhi Ray & Ors. Vs. High Court of Delhi & Ors. [ (2010) 2 SCC 637 ]; of Surinder Singh & Ors. Vs. State of Punjab & Anr. [ (1997) 8 SCC 488 ] and of Prem Singh & Ors. Vs. Haryana State Electricity Board & Ors. [ (1996) 4 SCC 319 ]. 9. Learned counsel Mr. Jitendra Singh has appeared for the respondent-writ petitioner. He has contested the Appeal and has supported the judgment of the learned single Judge. Mr. Singh has taken us through the record. He has particularly relied upon the affidavit made by the State Government. He has submitted that it is the categorical statement of the State Government that the aforesaid additional 181 vacancies had occurred during the period from 1st June 2006 to 31st May 2010. The advertisement in question was issued on 24th August 2006; meaning thereby that some of the said 181 vacancies had occurred prior to 24th August 2006, the date of the advertisement; at least such vacancies are required to be filled in by the recruitment process initiated on 24th August 2006. He has also submitted that although the recruitment process had been initiated on 24th August 2006, the examination was not conducted until 13th May 2010. The long drawn process of recruitment requires that the vacancies existing as on the date of the interview or the date of preparation of the merit list should be filled in by the said process. He has also submitted that although the recruitment process had been initiated on 24th August 2006, the examination was not conducted until 13th May 2010. The long drawn process of recruitment requires that the vacancies existing as on the date of the interview or the date of preparation of the merit list should be filled in by the said process. Had the examination been conducted within reasonable time, the writ petitioner would, in case of failure, have had a chance to apply again in the next recruitment process. Mr. Singh has relied upon the Government Resolution dated 16th July 2007; particularly Clause 14 thereof. 10. In support of his submissions, Mr. Singh has relied upon the judgments of the Hon’ble Supreme Court in the above referred matter of Rakhi Ray & Ors. Vs. High Court of Delhi & Ors. [ (2010) 2 SCC 637 ]; and in the matters of Sandeep Singh Vs. State of Haryana & Anr. [ (2002) 10 SCC 549 ]; of Benny T.D. & Ors. Vs. Registrar of Cooperative Societies & Ors. [ (1998) 5 SCC 269 ]; of All India SC & ST Employees’ Association & Anr. Vs. A. Arthur Jeen & Ors. [ (2001) 6 SCC 380 ] and of Commissioner of Income Tax, T.N.-V Vs. Balaji Enterprises [(2002) 10 SCC 268]. 11. We do agree that the High Courts and the Hon’ble Supreme Court have at times upheld the action of the concerned authority in filling up the vacancies in excess of the advertised vacancies. However, the cardinal principle still remains that only the vacancies advertised can be filled in pursuant to a recruitment process. Filling up of the vacancies in excess of the advertised vacancies is without jurisdiction. Even though, the advertisement leaves a leeway for the authority to alter the number of vacancies, unless the extreme administrative exigency calls for such alteration, no alteration should be made. In any view of the matter, it is the authority concerned which has discretion to avail of such leeway, if required. The stipulation made in the advertisement does not confer an enforceable right upon the candidates applying in answer to the advertisement. In our opinion, therefore, no Court, unless the relevant rules so require, should direct the authority to fill up the posts in excess of the advertised vacancies. 12. The stipulation made in the advertisement does not confer an enforceable right upon the candidates applying in answer to the advertisement. In our opinion, therefore, no Court, unless the relevant rules so require, should direct the authority to fill up the posts in excess of the advertised vacancies. 12. Another cardinal principle governing the recruitment is that once the recruitment process is set in motion; alteration in the relevant rules will not affect such recruitment process. In other words, the recruitment process once set in motion shall be brought to its logical end in accordance with the rules governing the recruitment at the time of commencement of the process. In the present case, as it has come on record, since the advertisement published on 24th August 2006 the eligibility has been modified. For appointment to the aforesaid cadres, under the modified criterion, not only a candidate must possess a Bachelor’s Degree in the concerned subject but shall also have a Diploma in Computer Applications. The recruitment process for 224 vacancies which had been commenced on 24th August 2006 would not be affected by the later modification in the eligibility criterion; whereas the 181 vacancies not advertised on 24th August 2006 or until the modification in the recruitment rules would be required to be filled in in accordance with the modified eligibility criteria. The said 181 vacancies which arose after 30th May 2006 (the date of requisition made by the State Government) were not advertised until 16th May 2010, the date of examination. 13. In our opinion, if the direction issued by the learned single Judge is sustained it would lead to an illegality and an incongruity. First; the 181 vacancies which are required to be filled in in accordance with the modified recruitment rules will actually be filled according to the rules prevalent in 2006. Second; if an attempt is made to fill in the said 181 vacancies by selecting the candidates who do possess the Diploma in Computer Applications, it would lead to incongruity to the extent that in one single recruitment process two different standards will have to be applied. Third; such an action would be arbitrary and discriminatory inasmuch as in absence of the public advertisement the candidates possessing the requisite qualification as on 16th May 2010 would be deprived of the opportunity to compete for public employment. 14. Third; such an action would be arbitrary and discriminatory inasmuch as in absence of the public advertisement the candidates possessing the requisite qualification as on 16th May 2010 would be deprived of the opportunity to compete for public employment. 14. It appears that the above referred three facets of the matter at issue have not been brought to the notice of the learned single Judge. On the other hand, if the direction issued by the learned single Judge is not affirmed or upheld, the result will be that the aforesaid 181 vacancies which arose after 30th May 2006 will be required to be advertised along with other vacancies that may be available and recruitment would be made in accordance with the modified recruitment rules. The petitioner and others, if are eligible according to the modified recruitment rules, will have opportunity to apply for public employment once again. 15. Hence, keeping in view the principle of equality enshrined in Articles 14 and 16 of the Constitution of India and the above referred cardinal principles of service jurisprudence, the only proper action for the Commission would be to advertise the said 181 vacancies and to make recruitment in accordance with the modified recruitment rules. 16. In the matter of Rakhi Ray & Ors. (Supra), the Hon’ble Supreme Court has summed up the settled law and has held in no uncertain terms, “as the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution, of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale, otherwise the exercise would be arbitrary.” 17. In our opinion, the learned single Judge has erred in giving unnecessary emphasis upon the terms “provisional vacancies” employed in the advertisement. The terms “provisional vacancies” would, in our opinion, not mean that the vacancy position can be altered at the sweet will of the State. In our opinion, the learned single Judge has erred in giving unnecessary emphasis upon the terms “provisional vacancies” employed in the advertisement. The terms “provisional vacancies” would, in our opinion, not mean that the vacancy position can be altered at the sweet will of the State. The phrase gives flexibility to the State in case the administrative exigency requires enhancing or reducing the number of vacancies to be filled in. The said leeway left to the State Government cannot be used arbitrarily for no rationale or for no reason. The administrative exigency may be the one, like in the present case, a direction of the Court of law required to be complied with. In case the State Government deviates from the aforesaid cardinal principles of service jurisprudence; and it is questioned before a Court, it is the Court concerned which will decide whether or not, on the given set of facts, the action of the State Government was justiceable. Each matter will have to be decided on its own fact situation. 18. In the present case, as we have discussed above, except the State Government was required to accommodate some 17 persons in view of the direction issued by this Court in MJC No. 809 of 2005, there was no other administrative exigency which would require the State Government to fill in the additional 181 vacancies by operating the merit list prepared on 14th August 2010. 19. The fact that the recruitment for public employment is a tedious job involving large manpower and heavy financial expenditure is no reason why the aforesaid principles may be deviated from. If the State Government is permitted to utilize the said leeway, it would most certainly lead to an arbitrary exercise of power. Hence, in our opinion, the direction issued by the learned single Judge to fill in 388 vacancies from the merit list dated 14th August 2010 prepared pursuant to the 224 vacancies advertised on 24th August 2006 is illegal and contrary to the aforesaid settled principles of law. 20. For the aforesaid reasons, we allow this Appeal. The impugned judgment and order dated 19th September 2011 passed by the learned single Judge in CWJC No. 15477 of 2010 is set aside. CWJC No. 15477 of 2010 is dismissed. The parties will bear their own costs.