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2025 DIGILAW 392 (PAT)

State of Bihar v. Dhirendra Kumar

2025-04-08

ASHUTOSH KUMAR, PARTHA SARTHY

body2025
Ashutosh Kumar, ACJ. – Heard the learned counsel for the parties. 2. The State of Bihar and the Bihar Public Service Commission (in short the Commission) and others have challenged the judgment dated 18.07.2024 passed by a learned Single Judge of this Court in C.W.J.C. No. 1151 of 2024, whereby the State of Bihar and the Director of Secondary Education have been directed to identify the number of vacancies that had arisen due to non-appointment of the candidates recommended by the Commission as Primary Teachers for Class-I to V pursuant to Advertisement No. 26/2023 for want of requisite qualifications and convey the same to the Commission and on receipt of such information, the Commission has been directed to publish a supplementary result in order of merit from the selection held pursuant to Advertisement No. 26/2023, subject to the candidate(s) having secured the cut-off marks and meets the cut-off date of birth prescribed by the Commission. 3. The respondents/applicants had approached the High Court for issuance of a mandamus to the Commission to publish a supplementary/revised merit list for teachers in Primary Schools for Class-I to V in Advertisement No. 26/2023, dated 30.05.2023, against the vacancies that could not be filled due to ineligibility/disqualification of provisionally successful candidates for non-passing of the CTET and D.El.Ed. Examinations; to publish the result of the respondents in the fresh supplementary list and call them for document verification and allot respective schools; to lower down the cut-off date of birth in all the categories in the supplementary/revised merit list for teachers in Primary Schools for Class-I to V and for a direction to the appellants not to merge/include the left-over vacancy of Advertisement No. 26/2023 dated 30.05.2023 with the future vacancy of Teachers’ Recruitment Examination. 4. The Commission had published an advertisement, bearing No. 26/2023, dated 30.05.2023, inviting online applications for 1,70,461 posts for appointment of Primary School Teachers for Class-I to V; Secondary School Teachers for Class-IX and X and Senior Secondary School Teachers for Class- XI and XII. For the posts of Primary School Teachers for Class-I to V for general subjects, the number of posts advertised was 67,066 with which the respondents are concerned. 5. The advertisement provided the eligibility criteria that in case of candidates obtaining same marks, age would be given precedence and in case, age will be the same, the alphabetical order would be given the priority. 6. 5. The advertisement provided the eligibility criteria that in case of candidates obtaining same marks, age would be given precedence and in case, age will be the same, the alphabetical order would be given the priority. 6. The respondents claimed to possess all the requisite qualifications, but their names were not included in the list of successful candidates, numbering 62,653. 7. At the time of publishing of the result, the cut-off marks and the cut-off date of birth for Primary Teachers for different categories, on the basis of the written examination held on 24.05.2023 and 25.05.2023, was also published. 8. The claim of the respondents before the learned Single Judge was that they had secured qualifying marks as published by the Commission for Primary School Teachers, but their names were not included in the merit list because of the cut-off date of birth fixed by the Commission, in which the respondents were lesser in age than the selected candidates. The grievance of the respondents before the learned Single Judge was that against 67,066 posts advertised under the general subject category, only 62,653 candidates were selected. Apart from this, many of the selected candidates had not joined on account of multiple selection of some of them for different posts and some were not found to possess the requisite qualification, which vacancy was 4619. Under such circumstances, the respondents had contended, the Commission ought to have published supplementary/additional select list to fill up the vacancies. 9. The selection and appointment of teachers is made under the Bihar State School Teachers (Appointment, Transfer, Disciplinary Proceeding and Service Conditions) Rules, 2023 (in short the Rules of 2023). 10. The respondents are not aggrieved by the process of selection as well as the process of appointment adopted by the appellants. They only want that vacant positions, instead of being carried over to the next recruitment process, be filled up with the respondents because they fulfill all criteria. 11. According to Rule 7 of the Rules of 2023, all the candidates were allowed to participate in the selection process on the basis of self-declaration in relation to the qualification which was required to be verified by the Administrative Department of the Government at the time of appointment. 12. This process, referred to above, was also incorporated in the Advertisement No. 26/2023 (TRE-I). 13. 12. This process, referred to above, was also incorporated in the Advertisement No. 26/2023 (TRE-I). 13. During the course of verification of certificates by the Department, many candidates were found to be ineligible and many recommended candidates did not join because of their selection on multiple posts. Considering this aspect of the matter, the Director of Secondary Education had written a letter to the Commission on 24.10.2023, intimating to him the concurrence of the Department for sending recommendation for the vacancies created due to ineligibility of selected applicants as also for non-joining of teachers who were appointed on multiple posts. 14. This was replied by the Commission vide communication dated 26.10.2023 requesting for preparation of a detailed description regarding the vacancies arising because of the above reasons. 15. A supplementary result was published by the Commission on 10.12.2023 of 467 candidates, but only against the vacancies that had arisen because of the candidates not joining as Primary Teachers because of their selection on multiple posts. No recommendations appear to have been made against the vacancies created on account of candidates not found to be eligible by the Department. 16. It appears from the records that the remaining vacancies of Advertisement No. 26/2023, on which no recommendations were made by the Commission, had been carried forward in Advertisement No. 27/2023 (TRE-II). 17. On the basis of the records available before the learned Single Judge, three kinds of vacancies were identified, viz., (i) the seats remaining vacant because of the Commission recommending lesser number of candidates which was carried forward in the next advertisement; (ii) the seats remaining vacant because of recommendation of same candidate on multiple posts for which a supplementary result of 467 candidates was published and (iii) the seats remaining vacant because of recommendation of ineligible candidates, which also was carried forward in the next advertisement. The vacancy in the third category could be calculated only after the conclusion of examination against next Advertisement No. 27/2023. Because of this, the supplementary result was published against seats which remained vacant due to recommendation of same candidate on multiple posts only. 18. The vacancy in the third category could be calculated only after the conclusion of examination against next Advertisement No. 27/2023. Because of this, the supplementary result was published against seats which remained vacant due to recommendation of same candidate on multiple posts only. 18. On behalf of the appellants, it has been submitted that the directions have been issued by the learned Single Judge on the basis of the communication made by the Department, but the fact of the matter is that determination of the cut-off marks and declaration of results are in the domain of the Commission and not of the Education Department. Rule 7(iv) of the Rules of 2023 prescribe that Commission shall determine the pattern of the examination for which it may consult and take advice from the Department as per requirement, which does not include matters in relation to declaration of result or supplementary result. Rule 7(v) of the Rules of 2023 further prescribes that the discretion to fix cut-off marks for the examination shall vest with the Commission. The Education Department has not been conferred with any such power to tinker with that decision. 19. It has also been contended that even TRE-III also has been announced and the selection process is afoot. 20. The appellants have urged that a recruiting agency cannot be compelled to fill up all available posts in the event of non-availability of persons of desired merit. The employer/recruitment agency has the responsibility of fixing a cut-off position, which cannot be interfered with, unless it is irrational or is tainted with mala fides. 21. On this Court seeking a specific query from the Commission about the writpetitioners/ respondents meeting the qualifying cut-off marks and qualifying cut-off age, it was categorically stated that amongst the writ-petitioners, nobody was in the category of candidates who qualify to be appointed on the basis of cut-off marks and cut-off date of birth. 22. In fact, the Education Department, Govt. of Bihar vide its communication dated 22.11.2024 had requested the Commission to provide information in the light of Advertisement No. 26/2023 regarding school teachers for Class-I to V as to the number of candidates whose marks and date of birth were similar to the cut-off marks and cut-off date of birth fixed by the Commission in their category, but their names were not in the merit list. Pursuant to such request, the Commission informed the Department that there are no such candidates whose marks and date of birth were similar to cut-off marks and cut-off date of birth fixed by the Commission in their category. The writ petitioners though have secured equal marks to the cut-off marks in their respective categories for which candidates senior in age have been recommended. 23. Commenting upon the afore-noted stand of the Commission and the Government, the respondents/writ petitioners have stated that there were existing vacancies which were not carried forward to TRE-III. In fact, the vacancies kept on arising. Even as on date, vacancies exist. 24. However, we have taken into account the categorical statement of the Commission that no respondents/writ petitioners met the cut-off threshold of date of birth, though they had obtained marks equal to the selected candidates. We have also considered that the vacancies were carried forward and two consecutive selection process got activated. 25. The law operating in the field in this behalf is neither in doubt nor in dispute. There is no legal right to appointment but only of being considered, which is subject to bona fide action on the part of the State. An aspirant has no legal right and the superior Court, in exercise of its judicial power of review, would not ordinarily direct issuance of any writ in the absence of any pleading and proof of mala fide or arbitrariness on the part of the employer. [Refer to Shankarsan Dash vs. Union of India : (1991) 3 SCC 47 ; R.S. Mittal vs. Union of India : 1995 Supp.(2) SCC 230 and Food Corporation of India & Ors. vs. Bhanu Lodh & Ors. : (2005) 3 SCC 618 ]. 26. It is not incumbent upon the employer to fill all posts but discretion not to appoint, must be exercised judiciously. Courts normally would not interfere with the discretion not to fill up posts but exercise of such discretion should not be arbitrary, capricious or whimsical. [Refer to Dinesh Kumar Kashyap & Ors. vs. South East Central Railway & Ors. : (2019) 12 SCC 798 ]. 27. For the afore-noted reasons, we are of the opinion that it is not a fit case where the impugned judgment could be sustained. 28. The judgment impugned is, thus, set aside. 29. All interlocutory applications also are disposed off in terms of this judgment. 30. vs. South East Central Railway & Ors. : (2019) 12 SCC 798 ]. 27. For the afore-noted reasons, we are of the opinion that it is not a fit case where the impugned judgment could be sustained. 28. The judgment impugned is, thus, set aside. 29. All interlocutory applications also are disposed off in terms of this judgment. 30. The appeal succeeds. Partha Sarthy, J. – I agree.