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2018 DIGILAW 1438 (PAT)

Krishan Murari Kumar v. State of Bihar

2018-09-07

ASHUTOSH KUMAR, M.R.SHAH

body2018
JUDGMENT : Mukesh R. Shah, J. As common question of law and facts are involved in this batch of Appeals and as such arise out of the common impugned judgment and order passed by the learned Single Judge dated 22.03.2018, all these Appeals are decided and disposed of by this common order. 2. Feeling aggrieved and dissatisfied with the common impugned judgment and order passed by the learned Single Judge dated 22.03.2018 passed in Civil Writ Jurisdiction Case No.966 of 2013 and other allied several writ petitions, the original petitioners of the respective original petitions have preferred the present Letters Patent Appeals. 3. The facts leading to the present Letters Patent Appeals in nutshell are as under: 3.1. That the Bihar Public Service Commission (hereinafter referred to as the 'BPSC') issued advertisement inviting applications in prescribed proforma vide Advertisement No.1 of 1993 dated 09.11.1993 for the post of Assistants. That in response to the said advertisement, the original petitioners and many others applied. Admit cards were issued for written examination. Results of 483 candidates in order of merit was published in the year 1995. That in terms of the order of the Hon'ble Supreme Court, the respondents were obliged to indicate the total number of vacancies of Assistant cadre up to 31st December, 1993. However, only 591 vacancies were notified, whereas, the vacancies were much more. BPSC only recommended 493 candidates. 3.2. That CWJC No.8697 of 1997 was filed before this Court for a direction to the respondents to fill up all the vacancies existing up to 31st December, 1993, which came to be disposed of by order dated 30th November, 1999, and matter was remitted to the Secretary, Personnel and Administrative Reforms Department (GAD), for re-calculation of actual number of vacancies. That in pursuance to the said order, the Department constituted One Man Committee to trace out vacancies from 01.01.1989 to 31.12.1993. That One Man Committee calculated vacancies, and found 1449 vacancies in which 724, i.e. 50% was to be filled up through Advertisement No.1 of 1993 for which initially 483 candidates were recommended in 1995 and remaining 241 posts were to be filled up, but only 161 vacancies were decided to be filled up, which were allotted to the successor State of Bihar i.e. %rd of vacancies after bifurcation of State of Bihar on 15.11.2000. Thus, according to the original petitioners, 220 posts were still vacant, which were required to be filled up from the successful candidates of Advertisement No.1 of 1993. 3.3. That on 30th July, 2000, BPSC published result of 241 candidates (second phase) and according to the petitioners, four candidates of 1st phase were also included in the result of second phase and result of 241 candidates also included, who were expelled from the examination or who were found using unfair means. Therefore, the petitioners filed CWJC No.7594 of 2000 to revise the merit list and for an enquiry with respect to malpractices in BPSC. That the same was disposed of by order dated 02.05.2008. Against the said order, BPSC filed LPA No.518 of 2008, which came to be dismissed and thereafter, BPSC filed SLP before the Hon'ble Supreme Court and the matter was remitted to the High Court. That thereafter, the BPSC filed Civil Review No.03 of 2009 for modification of the order dated 02.05.2008 passed in CWJC No.7594 of 2000. This Court by order dated 15.09.2010 disposed of the said Civil Review Application by observing that the issue will be examined by Sri R. J. M. Pillai, retired Chief Secretary of Bihar and the present Chairman of the BpSc. Thereafter, number of other proceedings were initiated before this Court, which are not necessary to be considered further for the issue involved in the present Appeals. 4. According to the original petitioners, 221 vacancies for the period between 1989 and 1993 remained vacant, which were required to be filled up by the BPSC from the successful candidates of Advertisement No.1 of 1993. According to the original petitioners, 483 candidates were recommended in the year 1995 in the first phase, but only 349 are working and as such 134 posts out of 483 remained vacant. 4.1. According to the original petitioners, in the second phase, against requisition of 161, only 153 candidates were recommended for appointment in 2004, out of which only 81 candidates joined in which appointment of 07 candidates were found forged and as such cancelled. According to the original petitioners, 134 and 87 posts still remained vacant totalling 221 posts and, therefore, being successful candidates of Advertisement No.1 of 1993, the original petitioners approached this Court by filing present petitions directing the respondents to appoint them on the vacancies occurred between the years 1989 and 1993. 5. According to the original petitioners, 134 and 87 posts still remained vacant totalling 221 posts and, therefore, being successful candidates of Advertisement No.1 of 1993, the original petitioners approached this Court by filing present petitions directing the respondents to appoint them on the vacancies occurred between the years 1989 and 1993. 5. The said petitions were opposed by the original respondents by submitting that earlier one CWJC No.121341 of 2003 was filed challenging final order giving 241 vacancies to Advertisement No.1 of 1993 in which it was claimed that more vacancies should have been given to Advertisement No.1 of 1993. It was submitted that the said petition came to be dismissed vide order dated 27.04.2005 which came to be confirmed up to the Hon'ble Supreme Court vide order passed by the Hon'ble Supreme Court dated 12.02.2007 in SLP No.2057 of 2006. It was submitted that therefore, as such the dispute so far as relating to number of vacancies attained finality when the Hon'ble Supreme Court dismissed the said SLP. 5.1. It was further submitted that after Advertisement No.1 of 1993, further appointments have already been made after recommendation made by the BPSC in subsequent advertisement, namely, Advertisement No.22 of 1999, Advertisement No.23 of 1999 and Advertisement No.135(A) of 1996. It was submitted that thereafter, available vacancies till 31.03.2010 was sent to the Bihar Staff Selection Commission, Patna, for 1100 Assistant posts. 5.2. It was submitted that the original petitioners are not successful candidates of Advertisement No.1 of 1993 as they got less marks than the cut off marks in respect to the categories. It was submitted that in view of the subsequent appointments pursuant to the fresh advertisement, the petitioners shall not be entitled to the appointment on the basis of their placement in the list pursuant to Advertisement No.1 of 1993. 6. That thereafter, by the common impugned judgment and order dated 22.03.2018, the learned Single Judge has dismissed the aforesaid petitions by observing that the original petitioners cannot claim any appointment to be made from Advertisement No.1 of 1993. That the learned Single Judge has also refused to fresh investigation/enquiry by observing that thereafter, thorough enquiry has been carried out and those whose appointments were found to be illegal, their services were terminated and on the basis of the fake allegations, a fresh enquiry is not required to be ordered. That the learned Single Judge has also refused to fresh investigation/enquiry by observing that thereafter, thorough enquiry has been carried out and those whose appointments were found to be illegal, their services were terminated and on the basis of the fake allegations, a fresh enquiry is not required to be ordered. Consequently, by impugned common judgment and order, the learned Single Judge has dismissed all the petitions. Hence, the original petitioners have approached this Court by way of present Letters Patent Appeals. 7. Learned counsel appearing on behalf of the respective appellants-original petitioners have vehemently submitted that the learned Single Judge has not appropriately appreciated the fact that number of vacancies between January, 1989 to December, 1993 were much more. However, lesser vacancies were advertised and therefore, lesser recommendations were made. It was submitted that therefore, all the vacancies, which had occurred between January, 1989 to December, 1993 were required to be notified and/or were required to be filled in from the successful candidates in respect to Advertisement No.1 of 1993. It is submitted that in fact, in earlier round of litigation, this Court directed to re-calculate the number of vacancies and the said order came to be confirmed up to the Hon'ble Supreme Court. It is submitted that therefore, the respondents authorities were bound to make appointment on the vacancies occurred between the period from 01.01.1989 to 31.12.1993. It is submitted that as the respective petitions continued the litigation, any subsequent development shall not come in their way in getting the appointment with respect to Advertisement No.1 of 1993. 7.1. It is further submitted by learned counsel appearing on behalf of the respective appellants-original petitioners that as there was large scale irregularities/illegalities committed in preparing the merit list and making appointments and the same came to be substantiated also, the learned Single Judge ought to have ordered fresh enquiry for such illegal appointments. It is submitted that in any case, the respondents were bound to fill up the vacancies, which had fallen vacant between January, 1989 to December, 1993 from amongst successful candidates of Advertisement No.1 of 1993. 8. It is submitted that in any case, the respondents were bound to fill up the vacancies, which had fallen vacant between January, 1989 to December, 1993 from amongst successful candidates of Advertisement No.1 of 1993. 8. Learned counsel appearing on behalf of the respondents have supported the common impugned judgment and order passed by the learned Single Judge, more particularly, Sri P. N. Shahi, learned Senior Counsel appearing on behalf of the BPSC and Sri P. K. Verma, learned Additional Advocate General-3 appearing on behalf of the State. 9. Heard learned counsel appearing on behalf of the respective parties at length. 9.1. At the outset, it is required to be noted that the respective petitioners have prayed for appointment pursuant to Advertisement No.1 of 1993. It is the case on behalf of the writ petitioners that at the relevant time, i.e. in the year 1993 and thereafter, when the recommendations were made by the BPSC, the Department did not consider the actual vacancies, which had fallen vacant for the period between January, 1989 to December, 1993 and that the BPSC was required to send the recommendations for all the vacancies, which had fallen vacant between January, 1989 to December, 1993. It is also the case on behalf of the petitioners that even the posts were required to be filled in which had fallen vacant due to either non-joining of the concerned candidates or whose appointments were subsequently cancelled. Thus, the respective original petitioners are claiming appointment with respect to Advertisement No.1 of 1993 on their appearing in the examination pursuant to Advertisement No.1 of 1993. It is required to be noted that thereafter, much water has flown. Twenty Five years have passed and in between, number of fresh advertisements were issued for the vacancies, which had remained vacant at the relevant time and thereafter, number of appointments have been made. The same have been dealt with by the learned Single Judge in paragraph 36 of the common impugned judgment and order. 9.2. As rightly observed by the learned Single Judge that in view of the subsequent examinations conducted by the BPSC and as such at present, there are no vacancies left for any further appointment to be made pursuant to Advertisement No.1 of 1993, the petitioners shall not be entitled to their appointment on their appearing in the examination in the year 1993. 9.3. 9.3. It is required to be noted that on the basis of examination held in the year 1993 with respect to Advertisement No.1 of 1993, first recommendation of 483 candidates were made in the year 1995 and the second recommendations were made in the year 2004. That thereafter, BPSC has conducted many examinations for the appointment on the post of Assistants right from 1997 onwards. Therefore, the original petitioners shall not be entitled to any appointment pursuant to Advertisement No.1 of 1993 after a period of 25 years and, more particularly, in between number of fresh advertisements have been issued and fresh appointments have been made and fresh recruitments have taken place. 9.4. At this stage it is required to be noted that even the learned Single Judge has specifically observed that even if the case of the original writ petitioners are considered against the vacancies, which have remained vacant due to non-joining of the concerned candidates, in that case, petitioners, being lower in the merit, shall not be entitled to appointment even on such posts. 9.5. Under the circumstances, the learned Single Judge has rightly refused to grant reliefs, as prayed for in the petitions, more particularly, with respect to the appointments pursuant to Advertisement No.1 of 1993. 9.6. Now, so far as the prayer in some of the petitions with respect to fresh enquiry is concerned, it is required to be noted that thereafter, a detailed enquiry was conducted which was entrusted to the Chairman of the BPSC and on the basis of the report submitted, those candidates, whose appointments were found to be illegal, their appointments have been cancelled and fresh appointments against the same have been made against which no grievance has been made. 10. In view of the above and for the reasons stated above, we are of the opinion that the learned Single Judge has rightly refused to grant any relief for appointment to the writ petitioners pursuant to Advertisement No.1 of 1993 after a period of 25 years and more particularly, when even thereafter, number of fresh examinations had taken place and number of fresh appointments have been made considering the vacancies remained vacant and were available at the relevant time. We are in complete agreement with the view taken by the learned Single Judge. No interference of this Court is called for in exercise of intra-Court appellate jurisdiction. 11. We are in complete agreement with the view taken by the learned Single Judge. No interference of this Court is called for in exercise of intra-Court appellate jurisdiction. 11. In view of the above, all these Appeals fail and the same deserve to be dismissed and are, accordingly, dismissed. Notice is discharged. 12. In view of the dismissal of the main Appeals, Interlocutory Applications, if any, in any of the Appeals, stand dismissed.