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2013 DIGILAW 564 (PAT)

Pashupati Kumar v. State of Bihar

2013-04-29

MIHIR KUMAR JHA

body2013
ORAL ORDER Unending hope and desire to be appointed on the posts of constables in Bihar Police Force including Bihar Military Police on the basis of selection process undertaken a decade back is the theme of this writ petition and in fact the similar 592 writ petitions which have been heard together in course of day long marathon hearing. This writ petition however is the leading case wherein not only all the relevant affidavits of all the parties have been filed but in fact on the basis of them even learned counsels for both the sides in all the cases have made their elaborate submissions. Thus, this order being passed in this case will also govern all the similar 592 cases listed today. 2. Facts which are not in dispute and would be sufficient to dispose of all these writ petitions involving an exactly similar issue lie in a narrow compass. The State of Bihar in the year 2004 had issued three advertisement namely Advertisement no.1/2004, 2/2004 and 3/2004 for filling up around ten thousand posts of constables in different districts of Bihar Police as also in the Bihar Military Police. Such posts were specified separately in the three advertisements for each of the district and/or battalion of B.M.P. and a number of recruitment boards were constituted on zonal basis which after conducting selection had completed the process of selection by making appointment of successful candidates. 3. It is also an admitted fact that upon completion of appointment of eligible successful candidates on the posts of constables, the State of Bihar had undertaken another fresh exercise for recruitment of constables in the year 2009 by issuing advertisement no.1/2009 and 2/2009 wherein the unfilled posts of Advertisement no. 1/2004, 2/2004 and 3/2004 were also included. The different recruitment boards again had undergone the process of selection and had completed the same on the basis of which appointment of eligible successful candidates were also made by the end of 2010. 4. Some of the unsuccessful candidates of Advertisement no. 1/2004, 2/2004 and 3/2004 after completion of appointment on the posts of constable pursuant to the Advertisement no. 4. Some of the unsuccessful candidates of Advertisement no. 1/2004, 2/2004 and 3/2004 after completion of appointment on the posts of constable pursuant to the Advertisement no. 1/2009 and 2/2009, however, had moved this Court questioning the filling of vacancies on the posts of constables and a division bench of this Court by its order dated 28.6.2011 in L.P.A. No. 831 of 2009 and its analogous cases, since reported in the case of Ajay Kumar and others reported in 2011(3)PLJR 575 had issued certain directions, wherein it was held that:- “Learned counsel for the appellants has submitted that such statement would indicate that Advertisement no. 1/2009 and Advertisement no.2/2009 were issued without even ascertaining the number of remaining vacancies and those were not included in the Advertisement no.1/2009 and Advertisement no.2/2009. Perusal of paragraph-9 would further indicate that a report was called from the Field Offices regarding included in Advertisements no.1/2009 and 2/2009. Perusal of paragraph-9 would also indicate that Advertisements no. 1/2004, 2/2004 and 3/2004 were issued by the State without ascertaining the exact number of vacancies in view of the fact that a consolidated report was sought from the Field Offices regarding vacancies of Advertisements no. 1/2004, 2/2004 and 3/2004. In view of the statement made in paragraph-9 of the supplementary counter affidavit, we think it proper to give a direction to the Chief Secretary, State of Bihar, for issuance of a direction to the Director General of Police to ascertain the actual number of vacancies available on the date of publication of Advertisements of the year 2004 and also prepare a fresh merit list of the candidates who were declared eligible after the regular recruitment process and the same shall be considered in accordance with Rules. The entire process shall be completed within a period of six months from the date of receipt of a copy of this order.” 5. Pursuant to the aforesaid directions of the division bench of this Court in the case of Ajay Kumar (supra), the State Government had undertaken the exercise of identifying the unfilled vacancies of Advertisement no. 1/2004, 2/2004 and 3/2004 and having completed the same had found 507 vacancies and had also appointed 348 candidates of 2004 advertisements while process for appointment on remaining 159 candidates was/is still continuing. 6. 1/2004, 2/2004 and 3/2004 and having completed the same had found 507 vacancies and had also appointed 348 candidates of 2004 advertisements while process for appointment on remaining 159 candidates was/is still continuing. 6. It is at this stage that in the month of January 2013 that this case CWJC No. 126/2013 (the leading case) was filed and was followed by filing of more than 600 writ petitions primarily with a grievance that a similar direction in the light of judgment of division bench in the case of Ajay Kumar (supra) should be issued in their cases enabling them to be also considered for appointment on the posts of constables inasmuch as, they too had been applicants for the posts of constable in response to Advertisement no. 1/2004, 2/2004 and 3/2004. 7. When this case was placed for hearing with similar cases this Court had directed the respondents to file a counter affidavit disclosing as to whether the aforementioned directions given in the judgment dated 28.6.2011 in L.P.A.No. 831/2009 and analogous cases, since reported in the case of Ajay Kumar (supra) have been complied. Though a counter affidavit in this case was filed on 19.2.2013 by the Deputy Superintendent of Police, Bhagalpur, he did not and in fact could not give the whole picture pertaining to entire State of Bihar for which directions were issued in the case of Ajay Kumar (supra). Thus, on 4.3.2013 this Court had passed an order directing both the petitioners and the respondents to file further pleadings to explain their stand. The order of this Court dated 4.3.2013 reads as follows: “Having regard to the fact that these writ applications lack precise details on the basis of which the petitioners claim their right of being appointed in response to Advertisement No. 1/2004, 2/2004 and 3/2004, this Court by way of last indulgence would give liberty to the petitioners to file their specific affidavit as to how they claim their right to be appointed in terms of the aforementioned advertisement. This exercise must be done in all the writ petitions by all the petitioners on or before 1st April, 2013. This exercise must be done in all the writ petitions by all the petitioners on or before 1st April, 2013. After the affidavits in all these cases have been filed, counsel for the State must file a compact combined supplementary counter affidavit dealing the cases of all the petitioners preferably in one counter affidavit or at least district wise wherein it must address to not only the facts of cases of these petitioners but also to the order passed by the Division Bench and its compliance by the State Government as also the reason for its being not followed in these cases. This exercise however must be completed by the respective counsel for the State in these cases by 22nd April, 2013 so that reply affidavit by the petitioners is filed on or before 25th April, 2013. List all these cases on 29th April, 2013 at the top under Admission-II.” 8. It has to be noted that in this case no supplementary affidavit has been filed by the petitioner but a supplementary counter affidavit has been filed by the I.G., Headquarters, relevant portion whereof reads as follows: “5. That it is stated that this Hon’ble Court has passed order dated 28.6.2011 in L.P.A. No. 831 of 2009, operative part whereof is as under: “In view of the statement made in paragraph-9 of the supplementary counter affidavit, we think it proper to give a direction to the Chief Secretary, State of Bihar, for issuance of a direction to the Director General of Police to ascertain the actual number of vacancies available on the date of publication of Advertisements of the year 2004 and also prepare a fresh merit list of the candidates who were declared eligible after the regular recruitment process and the same shall be considered in accordance with Rules. The entire process shall be completed within a period of six months from the date of receipt of a copy of this order.” 6. That it is stated that in the context above, information about the rest vacancies in the context of advertisement No. 1/2004, 2/2004 and 3/2004 was sought from all the districts/ Battalions in 16 districts and 5 Battalions reported the number of vacancies in this context. 7. That it is stated that 14 Districts and 07 Battalions reported a total number of 430 vacancies. 7. That it is stated that 14 Districts and 07 Battalions reported a total number of 430 vacancies. 09 New Constable Recruitment Boards were reconstituted to initiate action to fill up these existing 430 vacancies. Show cause has been filed previously in the Hon’ble Court in this respect. 77 more vacancies were further reported from 6 districts/ Battalions after closer scrutiny of the records. Overall, a total of 507 vacancies were reported from the Districts/ Battalions for which the recruitment Boards were constituted. It is important to mention here that rest of the Districts/ Battalions reported that the left over vacancies of the year 2004 have already been sent to Central Constable Recruitment Board appointment. Hence, they reported ‘nil’ vacancy from their Districts/ Battalions. 8. That after obtaining vacancies from the Districts/ Battalions, the Police Headquarters issued order vide Memo no. 24.5.2012 according to which 11 New Constable Recruitment Boards were reconstituted for recruitment of constables against remaining vacancies and each board was further asked to obtain all the relevant documents from the Chairman of the previous Recruitment Board and continue with the recruitment as per rules laid down. The same information was given to Home Secretary, Government of Bihar, vide letter no. 1117/P3 dated 8.11.2011. 9. That it is stated that again the Police Headquarters issued direction through Memo No. 4606/P3 dated 22.11.2011 Memo No.1160/P3 dated 13.4.2012, Memo No. 2644/P3 dated 13.8.2012 and 3731 dated 24.12.2012 in which instructions were given to all the Chairman of the Constable Recruitment Boards to examine all the relevant records/ documents and on being satisfied to complete the process of the recruitment within the time frame given by this Hon’ble Court and also report compliance to the Police Headquarters. 10. That it is stated that the information about the vacancies and the newly recruited Constable Recruitment Board was made public through newspaper advertisements. 11. That it is stated that again the Police Headquarters issued letters to all the Districts/ Battalions and they were instructed to re-examine the vacancies and to report the same to the Police Headquarters. 12. That it is stated vide office Memo No.27/P3 dated 9.1.2012, the Director General of Police, Bihar informed the Chief Secretary of all the actions taken by the Police Headquarters in this regard in compliance of the order of this Hon’ble Court. 13. 12. That it is stated vide office Memo No.27/P3 dated 9.1.2012, the Director General of Police, Bihar informed the Chief Secretary of all the actions taken by the Police Headquarters in this regard in compliance of the order of this Hon’ble Court. 13. That the Chairman of all the Boards have taken speedy steps to complete the recruitment process in time but still 120 vacancies are under process of several stages of recruitment which is expected to be completed at the earliest. 14. That out of a total of 507 left over vacancies, 348 candidates have already been appointed as per merit list. 36 candidates are not available in a particular reservation category, 03 selected candidates have been found medically and physically unfit, 15 selected candidates did not report for which next candidates in the merit list are being considered and 105 candidates are in various stages of issuance of call letters, medical examinations and other process of appointment which is expected to be completed within two months. 15. That it is stated that the process of handover/ take over of charge and in obtaining the records of recruitments from previous Chairman of the Recruitment Board of Adv.No. 1/2004, 2/2004 and 3/2004 took some time. Out of them many concerned officers were transferred to other places, some retired from service, hence it took time in taking charge of concerned records from them. In the beginning, the process took a longer time because the number of candidates turning up for appointment out of the recommended candidates as per the vacancy and the merit was found to be poor. 16. That it is stated that if selected candidates as per merit lit did not turn up within 15 days, only then candidates next in merit list are being considered, as such it takes time in completion of procedures. 17. That it is stated that all the Chairman of the Recruitment Boards have been instructed to complete the procedures for appointment at the earliest vide Police Headquarters Memo No. 349/P3 (part) dated 4.2.2013. Present up to date status is as follows: 1. Total number of appointments made 348 2. Total number under process of appointment (15+105) 120 3. Not available in respective category (36+03) 39 Total 507 18. Present up to date status is as follows: 1. Total number of appointments made 348 2. Total number under process of appointment (15+105) 120 3. Not available in respective category (36+03) 39 Total 507 18. That it is stated that the order of this Hon’ble Court is complied with as per rules by respective Recruitment Board constituted for the purpose by the police Headquarters. In completion of procedure for appointment, delay has been caused but it is not intentional for which the respondent tenders unqualified and unconditional apology.” 9. Learned counsel for the petitioner in this case and the bunch of 592 similar cases have basically raised two fold grievance, namely, (i) All the advertised post of Constable in terms of Advertisement Nos. 1/2004, 2/2004 and 3/2004 were not filled up and the selection process was left in the midway and therefore, the petitioner and like him several others though declared successful could not be appointed. (ii) In the selection and appointment made in the year on the basis of Advertisement Nos. 1/2004, 2/2004 and 3/2004 the persons having secured higher marks were left out and even now when the respondents have resumed the process of filling up the unfilled 507 posts of Advertisement Nos. 1/2004, 2/2004 and 3/2004 and had filled up 348 post, the case of the petitioner and other similarly situated persons were not considered on the ground that directions given by division bench of this Court in the case of Ajay Kumar (supra) were meant exclusively for the petitioners/appellants of those cases and not for the petitioners. 10. Additionally, learned counsel for the petitioner in this case had also raised the issue that the petitioner belonging to Most Backward Category had secured 14 marks but was denied appointment whereas the candidates securing even 13 marks were selected and appointed in Bhagalpur district. 11. Mr. Pushkar Narain Shahi, AAG-XII, learned counsel appearing for the respondents on the other hand has submitted that this writ petition so far it questions the events relating to selection and appointment made in terms of the three Advertisements of 2004 including the issue of discrimination of a lower meritorious candidate securing 13 marks in Most Backward Category is wholly belated because not only selection and appointment on the basis of Advertisement no. 1/2004 for the post of constable in Bhagalpur district was completed in 2008 but even the left over vacancies were included in the subsequent selection and appointment in response to Advertisement no. 1/2009 and 2/2009 which were completed by the year 2010. In this regard, he has also pointed out that the petitioner himself did not raise any grievance of his being not appointed from 2008 to 2011 and infact when he had filed a representation in December, 2011 before the Director General of Police, in view of the order of Division Bench in the case of Ajay Kumar (supra), he had himself claimed his appointment in Sahara range and not for Bhagalpur range/district despite the fact that he had acquired knowledge of securing of his 14 marks in his physical test through the information obtained in the month of November 2011 under Right to Information Act. According to Mr. Shahi, the delay thus in filing of writ petition was itself fatal inasmuch as the earlier appointment made in 2008 now could not be questioned by the petitioner specially when there is no vacancy in Bhagalpur district. 12. Mr. Shahi has also explained that whatever vacancies of Advertisement no. 1/2004, 2/2004 and3/2004 were left out and not filled up all over Bihar under three advertisements of 2009 and 2012 were calculated in terms of the directions of the division bench in the Ajay Kumar (supra) and they were found to be only 507 in number. According to Mr. Shahi there could be no further probe on this aspect because in most of the districts, the left over vacancies of the three advertisements of the year 2004 were included and made subject matter of selection and appointment of Advertisement no. 1/2009 and 2/2009. He had also highlighted that when another selection process for the rest of the post of constables had already been undertaken in the year 2012, the demand of the petitioner for creating supernumerary post of 2004 advertisement vide his representation dated 9.12.2011 was not only illegal but also contrary to the settled law that no indefeasible right for appointment could be claimed by empanelled candidates. 13. Learned AAG-XII however had accepted that the directions given in the order of the Division Bench in the case of Ajay Kumar (supra) was applicable to all the candidates taking part in selection under Advertisement no. 13. Learned AAG-XII however had accepted that the directions given in the order of the Division Bench in the case of Ajay Kumar (supra) was applicable to all the candidates taking part in selection under Advertisement no. 1/2004, 2/2004 and 3/2004 and according to him in fact 348 posts out of 507 posts which were filled up by way of compliance of the directions of the Division Bench in the case of Ajay Kumar (supra) were also strictly filled up in accordance merit of the respective category for each constable recruitment Board and thus if any of the petitioner could still demonstrate that those 348 posts were filled up by any candidate having lesser marks, his case for appointment could still be considered either against a vacant post or by removing the lower meritorious candidates appointed in view of the order of Division Bench in the case of Ajay Kumar (supra). He has however submitted that the earlier appointment on the posts of constable prior to the order of Division Bench as against the post of constables of three advertisements of 2004 and two advertisements of 2009 cannot be reopened in the name of carrying out the directions of the Division Bench in the case of Ajay Kumar (supra). 14. In the considered opinion of this Court this writ application so far it questions the earlier selection process undertaken and completed way back in 2006 on the basis of Advertisement no. 1/2004, 2/2004 and 3/2004 must be held to be wholly belated and no one having earlier questioned such selection can today be allowed to wreck up the settled events. As would be apparent the grievance of the petitioner and others relating to selection and appointment on the basis of three advertisements issued in the year 2004 in normal course could not have been entertained by this Court after a lapse of 8 to 9 years. It has to be noted that after Advertisement Nos. 1/2004, 2/2004 and 3/2004 and the selection process completed by way of appointment of successful candidates three more advertisements for appointment on the post of constable have been issued, two in the year 2009, namely, Advertisement Nos. 1/2009 and 2/2009 and another in the year 2012. The selection process of Advertisement Nos. 1/2004, 2/2004 and 3/2004 and the selection process completed by way of appointment of successful candidates three more advertisements for appointment on the post of constable have been issued, two in the year 2009, namely, Advertisement Nos. 1/2009 and 2/2009 and another in the year 2012. The selection process of Advertisement Nos. 1/2009 and 2/2009 have also been completed and the appointments have already been made while the selection process of advertisement of the year 2012 is still continuing. Thus, in normal circumstances, the petitioner and similarly situated other persons could not have been permitted to even raise an issue relating to either any illegality committed in the selection process of the year 2004 or even with regard the number of unfilled post of Advertisement Nos. 1/2004, 2/2004 and 3/2004. The petitioner in this case and similarly situated persons, however, rely on an order of the Division Bench of this Court dated 28.6.2011 in the case of Ajay Kumar (supra) wherein the Division Bench of this Court had given certain directions which has already been quoted above. Thus the petitioner of this case and other similar cases can at best only assail any action taken or order passed by the Respondents only after the date of 28.6.2011. 15. The petitioner of this case infact also cannot now be allowed to dig his past on the basis of securing 14 marks an aspect which was not complained by him till December 2011 before filing his representation for consideration of his case in the light of the judgment in the case of Ajai Kumar (supra), which reads as follows:- ^^lsok esa] Jheku~ iqfyl egkfuns'kd fcgkj] iVukA izlax& ,y0ih0,0 ua0 831@09 vt; dqekj oxSjg ouke fcgkj ljdkj oxSjg fo"k;& ekuuh; mPp U;k;ky; ds vkns'k ds vkyksd esa fo0la01@04 ds fjDr inksa dh x.kuk dj izsl iSuy cukus dk vuqjks/kA egksn;] lknj uez fuosnu gS fd fo0 la0 1@04 ds vkyksd esa lgjlk ls p;u i"kZn }kjk lHkh tk¡p esa lQy ?kksf"kr fd;k x;kA 2- vHkh djhc 24 uu tkWokbfuax flV fjDr iM+s gSa rFkk djhc 15 vH;FkhZ ukSdjh NksM+dj vU; ftys esa fu;qDr gks x;s gSA 3- ekuuh; iVuk mPp U;k;ky; ds fMfotu casap us fnukad 28-6-11 dks fuEu vkns'k fn;k gSA We think it proper to give a direction to the D.G. to ascertain the actual number of vacancies available on the date of publication of the Advt. no. no. 1 of 2004 and prepare fresh merit list of candidates who were declared eligible. " ijarq lgh <azx ls osdsUlh ,st ljVsu fd;s fcuk ek= 9 txgksa ds fy, vkns'k fn;k x;k gS tcfd vU; txgksa ij osdsUlh gS vxj 1@09 esa tksM+k x;k gS rks lqijlsVjh iksLV ls QqyQhy fd;k tk,A vr% djc} izkFkZuk gS fd mijksDr rF;ksa dks tk¡pdj larq"V gksdj eq>s flikgh ds in ij cgky fd;k tk;A 14 iksokbaV i'kqifr dqekj dt. 9.12.11" 16. In view of the aforesaid representation dated 9.12.2011 (Annexure-3) where also the petitioner did not raise this issue of discrimination of appointment of a lower meritorious candidate having 13 marks even when he had obtained the information under Right to Information Act on 2.12.2011 (Annexure-2) as with regard to his obtaining 14 marks and selection of candidate of Most Backward Category having only 13 marks in Bhagalpur district, it has to be held that the petitioner now cannot raise this issue questioning the selection process of Bhagalpur district completed in 2008 specially when his own case in his representation is that he had been an applicant in Saharsa Recruitment Board. It is also not in doubt that not only vacancies were filled up on the district basis as notified in the advertisement but even otherwise each of the recruitment Board had finalised the selection panel on zonal basis and thus the cut off of Bhagalpur zone of 13 marks in the second list could not be made basis for Saharsa zone which had its own recruitment Board. In any event the delay on the part of the writ petitioner of this case in raising this issue now in the year 2013 would be fatal for him. 17. Thus this court is of the considered opinion that the petitioner of this case and infact any petitioner in the connected 592 cases heard together today can only complain with regard to event taking place after 28.6.2011, when the division bench had issued the directions in the case of Ajai Kumar(supra). 18. The events taking place after 28.6.2011, when the directions were issued by the Division Bench of this Court in the case of Ajay Kumar (supra), has been fully well explained in the supplementary counter affidavit relevant portion whereof has already been quoted above. 18. The events taking place after 28.6.2011, when the directions were issued by the Division Bench of this Court in the case of Ajay Kumar (supra), has been fully well explained in the supplementary counter affidavit relevant portion whereof has already been quoted above. In view of un-controverted stand of the respondents it now becomes clear that there are 507 vacancies which could be identified as the vacancies of Advertisement Nos. 1/2004, 2/2004 and 3/2004 which as per directions given in the case of Ajay Kumar (supra) has to be filled up from amongst successful candidates of Advertisement Nos. 1/2004, 2/2004 and 3/2004. There is however no pleading in this writ application or in fact in the connected writ applications to substantiate the tall claim that there were more than 507 vacancies. 19. Though an attempt was made by the learned counsel for the petitioner to rely on the statement made in paragraph no.7 of the supplementary counter affidavit, quoted above, to show that all the vacancies of the year 2004 were not ascertained in a correct manner because the left over vacancies of 2004 were reported to Central Constable Recruitment Board for the next recruitment undertaken in the year 2009 vide Advertisement no. 1/2009 and 2/2009, this Court would not find any merit in such submission of the learned counsel for the petitioner because it is a settled principle of Service Jurisprudence that it is not compulsory that all the advertised number of posts have to be essentially filled up. It is also well settled that any vacancy of an earlier advertisement which could not be filled up is automatically carried forward for the next advertisement. Thus in this case when there has been Advertisement Nos. 1/2009 and 2/2009 in which the selection process has already been completed by appointing the successful persons against those 2004 carried forward vacancies included in the two 2009 advertisements, no further probe can be made for finding out the vacancies of the three advertisements of 2004 for appointing the petitioner and others who are the candidates of the earlier selection process. Reference in this connection may usefully be made to the judgment of Apex Court in the case of State of U.P. Vs. Reference in this connection may usefully be made to the judgment of Apex Court in the case of State of U.P. Vs. Rafiquddin reported in 1987 (Suppl.) SCC 401 wherein it was held as follows:- "............The unfilled vacancies of 1970 Examination could not be filled after 5 years as subsequent competitive examinations of the year 1972 and of the year 1973 had taken place and the results had been declared. The list prepared by the Commission on the basis of the competitive examination of a particular year could be utilised by the government for making appointment to the service before the declaration of the result of the subsequent examination. If selected candidates are available for appointment on the basis of the competitive examinations of subsequent years, it would be unreasonable and unjust to revise the list of earlier examination by changing norms to fill up the vacancies as that would adversely affect the right of those selected at the subsequent examination in matter relating to their seniority under Rule 22. The 1970 Examination could not be utilised as a perennial source or inexhaustible reservoir for making appointments indefinitely. The result of a particular examination must come to an end at some point of time, like a "dead ball" in cricket. It could not be kept alive for years to come for making appointments." 20. In that view of the matter, this Court in absence of any material brought by the petitioner on record is not in a position to disbelieve the statement of the respondents that there were only 507 vacancies which were of Advertisement Nos. 1/2004, 2/2004 and 3/2004 and were not filled up. In fact the Division Bench also in the case of Ajay Kumar (supra) had directed to fill up the vacancies which were available on the date of issuance of the advertisement and it did not include any anticipated vacancy or future vacancy after the date of advertisement. Thus, this Court does not find any error in compliance of the direction of the Division Bench of this Court by fixing such vacancies to be only 507. 21. Learned counsel for the petitioner having failed to establish that there were more than 507 vacancies of the transaction of Advertisement nos. 1/2004, 2/2004 and 3/2004 had then submitted that even for filling up 507 vacancies the criteria of merit of the successful candidates has not been followed. Mrs. 21. Learned counsel for the petitioner having failed to establish that there were more than 507 vacancies of the transaction of Advertisement nos. 1/2004, 2/2004 and 3/2004 had then submitted that even for filling up 507 vacancies the criteria of merit of the successful candidates has not been followed. Mrs. Anjana Mishra, learned counsel appearing in one of similar cases had submitted that the entire mode of compliance of the direction of the order of the Division Bench in the case of Ajay Kumar (supra) was made in a faulty manner and in fact no fresh merit list was prepared for filling up those 507 post of the three advertisement of the year 2004. She has also submitted that the respondents had in fact limited the consideration of only the persons who were petitioners and appellants covered by the order of the Division Bench in the case of Ajay Kumar (supra). In this regard a format was produced to demonstrate that Column No.7 thereof had desired the applicant to fill up the case number of batch of Letters Patent Appeal and the writ petitions of the case of Ajay Kumar (supra). Reliance was also placed by Mrs. Mishra on the judgment of the Apex Court in the case of State of Jammu & Kashmir & ors. v. Satpal, reported in AIR 2013 SC 1265 . 22. Mr. Pushkar Narain Shahi, learned AAGXII, appearing on behalf of the State, however, has clarified that it is wholly erroneous on the part of the petitioner of this case or similarly situated persons to orally contend for creating an impression that while filling up those 348 of 507 posts the cases of only the appellants and the petitioners of batch of appeals and the writ petitions covered by the judgment of Ajay Kumar (supra) were considered because there is actually no pleading to this effect despite liberty given to them to file a supplementary affidavit in the order of this Court dated 4.3.2013 in CWJC No. 126 of 2013. He has further submitted that the merit list for each of the district has been prepared by the respective Constable Recruitment Board against the vacancies available and in fact appointment of 348 persons has been made in strictly in accordance with merit prevailing in those panels. 23. He has further submitted that the merit list for each of the district has been prepared by the respective Constable Recruitment Board against the vacancies available and in fact appointment of 348 persons has been made in strictly in accordance with merit prevailing in those panels. 23. In the considered opinion of this Court the grievance of the petitioner of this case and all other similarly situated persons so far it relates to filling up 507 identified post of Advertisement Nos. 1/2004, 2/2004 and 3/2004 by following the merit can have no exception in law. It is well settled that if any selection is based on merit, the posts which have subsequently been found out of that transaction has to be again filled up strictly on the basis of merit. In other words, wherever the 507 vacancies of Advertisement Nos. 1/2004, 2/2004 and 3/2004 in respective districts/battalion of B.M.P. have been identified which is the recruiting unit of the district based cadre of the post of constable the appointments have to be made on those post strictly in accordance with the respective position in the merit list in the concerned category from the stage such appointment was earlier made in those districts/battalion. To that extent the submission of Mr. Vindhyachal Singh, learned counsel for the petitioner in one of the batch case is correct that the direction of the Division Bench in the case of Ajay Kumar (supra) has to be read in rem and not in personem. 24. This Court, however, must clarify that the reliance by Mrs. Mishra, learned counsel for the petitioner, on the judgment of the Apex Court in the case of Satpal (supra) is wholly misplaced, inasmuch as that was a case where waiting list was prepared and a person from the waiting list was appointed ignoring a more meritorious candidate. That judgment of the Apex Court in the case of Satpal (supra), however, cannot be read to lay down law that if a merit list is prepared it would remain in operation till the last person of the merit list is appointed. Infact by now it is well settled by a series of decisions of the Supreme Court that the empanelment of the candidate in the select list confers no indefeasible right on the candidates for also being appointed only on account of being so empanelled. Infact by now it is well settled by a series of decisions of the Supreme Court that the empanelment of the candidate in the select list confers no indefeasible right on the candidates for also being appointed only on account of being so empanelled. At the best such empanelment is a condition of eligibility for the purpose of appointment and by itself does not amount to selection nor does it create a vested right to be appointed. The legal position in this regard has been settled by the Constitution Bench of the Supreme Court in the case of Shankarsan Dash v. Union of India, reported in (1991)3 SCC 47 , wherein it was held as follows: “It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.” 25. Based on the aforementioned analysis of facts and law this Court would dispose of this writ application with the following observations and directions:- (i) The prayer of the petitioner for being appointed on the post of constable on the basis of process of selection undertaken in terms of advertisement no. 1/2004, 2/2004 and 3/2004 has to be considered only against 507 post of Constable as identified by the respondents in their supplementary counter affidavit inasmuch as now only 507 posts alone shall be filled up on the basis of Advertisement Nos. 1/2004, 2/2004 and 3/2004 by the respective Recruitment Board from amongst the candidates who had appeared in such selection and were also declared eligible and successful in all respect. 1/2004, 2/2004 and 3/2004 by the respective Recruitment Board from amongst the candidates who had appeared in such selection and were also declared eligible and successful in all respect. (ii) Each Recruitment Board will notify the breakup number of 507 vacancies already filled up or sought to be filled up and the cut-off marks of the respective category on which the appointments have been or will be made pursuant to the directions of the Division Bench in the case of Ajay Kumar (supra). This exercise must be completed by Chairman of Respective Recruitment Board within a period of one month from the date of receipt of this order. (iii) Any of the applicant who had participated in the selection process of Advertisement no. 1/2004, 2/2004 and 3/2004 and had been declared eligible and successful, on finding himself to be eligible on the basis of marks secured by him earlier pursuant to the earlier selection made in terms of those Advertisement Nos. 1/2004, 2/2004 and 3/2004 and also discovered from the aforesaid notification of the respective Recruitment Board that anyone in his/her category having either the same marks or less than him or her has been appointed against 348 posts after 28.6.2011 in terms of the directions given by this Court in the case of Ajay Kumar (supra) will be at liberty to file his representation to the Chairman of the respective Recruitment Board within a period of one month from the date of issuance of the notification of the concerned Recruitment Board giving full details of his claim for such appointment and those representations will be disposed of by a speaking order by the Chairman of the respective Recruitment Board within a period of three months from the date of receipt of such representation. (iv) Such consideration by the Chairman of the Recruitment Board will be however confined only to fresh appointment to be made on those 507 posts in terms of the direction given by the Division Bench in the case of Ajay Kumar (supra). In other words, the earlier appointment made prior to 28.6.2011, the date on which Division Bench of this Court had issued directions in the case of Ajay Kumar (supra), on the basis of advertisement Nos. 1/2004, 2/2004 and 3/2004 as well as Advertisement Nos. 1/2009 and 2/2009 in respective districts/ Battalions shall not be reopened. In other words, the earlier appointment made prior to 28.6.2011, the date on which Division Bench of this Court had issued directions in the case of Ajay Kumar (supra), on the basis of advertisement Nos. 1/2004, 2/2004 and 3/2004 as well as Advertisement Nos. 1/2009 and 2/2009 in respective districts/ Battalions shall not be reopened. (v) The exercise of filling up of remaining of 507 posts of constables, out of which 348 appointments have already been made, must be completed strictly on merit within a period of six months from today and thereafter any of the 507 vacancies which could not be filled up on account of non-availability of the candidates of the respective category will be filled up only on the basis of a fresh advertisement. 26. With the aforementioned limited observations and directions, this writ application is disposed of. 27. Let a copy of this order be given to Mr. Pushkar Narayan Shahi AAG-XII for its being communicated to the Director General of Police of Bihar for its strict compliance by all concerned including the Chairman of the respective Constable Recruitment Board.