Patna High Court - Orders
Md. Lmurtaza vs The State Of Bihar & Ors on 5 June, 2014
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6805 of 2012
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1. Dharamvir Prasad Son Of Sri Baiju Sahu Resident Of Village-Salempur,
Post Office-Salempur, Police Station-Benipatti, District-Madhubani,
Presently Posted As Assistant, Department Of Animal Husbandry,
Government Of Bihar, Patna
2. Rakesh Kumar Son Of Rajendra Prasad Yadav Resident Of Shristi Villa,
Bhagwat Nagar, Police Station-Agamkuan, Kumharar, Patna-800006,
Presently Posted As Assistant, Department Of Animal Husbandry,
Government Of Bihar, Patna
3. Binod Kumar Son Of Late Arbind Kumar Mandal Resident Of Saguna,
Post Office And Police Station-Danapur, District-Patna
4. Sumanjay Kumar Son Of Late Satrughan Rawat Resident Of Ramjaipal
Road, Arpana Colony, Danapur, Police Station-Danapur, District-Patna
5. Rajiv Kumar Son Of Late Kameshwar Prasad Resident Of House Of Dr.
G.P. Singh, Professor Colony, Patna, Police Station-Shastri Nagar, District-
Patna
6. Sri Kabindra Kumar Son Of Sri Upendra Mandal Resident Of Village-
Chamgarh, Police-Station-Murliganj, District-Madhepura, Presently Posted
As Assistant, Department Of Agriculture, Government Of Bihar, Patna
7. Ras Bihari Upadhyay Son Of Late J. Upadhyay Resident Of Mangaon,
Police Station-Kankhhawa, District-Rohtas
8. Baldeo Choudhary Son Of Late Ram Pyare Choudhary Resident Of
Village And Post Office-Behsagar, Police Station-Karakat (Goran), District-
Rohtas
9. Sanjay Kumar Son Of Late Ram Prasad Yadav Resident Of Village And
Post Office-Siswa Barahi, Via-Phulparas, District-Madhubani
.... .... Petitioners
Versus
1. The State Of Bihar Through Principal Secretary, Department Of General
Administration, Government Of Bihar, Patna
2. The Principal Secretary, Department Of General Administration,
Government Of Bihar, Patna
3. The Bihar Public Service Commission, Through Its Secretary, Baily
Road, Patna
4. The Chairman, Bihar Public Service Commission, Through Its Chairman,
Bailey Road, Patna
5. The Secretary, Bihar Public Servie Commission, Bailey Road, Patna
.... .... Respondents
======================================================
with
Civil Writ Jurisdiction Case No.18870 of 2012
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1. Awadesh Nandan Sinha Son Of Sri Dev Sharan Sinha Resident Of
House No. 41, Road No. 10, Mohalla- Indrapuri, Police Station- Patliputra,
Patna, District- Patna
2. Amiya Ranjan Pushp Son Of Late Nitydeo Prasad Resident Of Mohalla-
Janakpur Buniyadganj, Police Station- Gaya Muffasil, District- Gaya
3. Amarjeet Prasad Son Of Sri Rampreet Prasad Resident Of Nagla Main
Road, Malsalmi, Police Station- Malsalami, Patna City, District- Patna
4. Ashok Kumar Singh Son Of Late B.N. Singh Resident Of Flat No. 201b,
Girija Garden Appartment, Punaichak Patna, Police Station- Shastri Nagar,
District- Patna
2
.... .... Petitioners
Versus
1. The State Of Bihar Through Chief Secretary, Government Of Bihar,
Patna
2. The Principal Secretary, Department Of General Administration (Earlier
Personnel & Administrative Reforms), Government Of Bihar, Old
Secretariat, Patna
3. The Joint Secretary, Department Of Generam Administration,
Government Of Bihar, Old Secretariat Patna
4. The Bihar Public Service Commission Through Its Secretary, Baily
Road, Patna
5. The Chairman, Bihar Public Service Commission Baily Road, Patna
6. The Examination Controller, Bihar Public Service Commission, Baily
Road, Patna
7. Dharamvir Prasad Son Of Sri Baiju Sahu Resident Of Village- Salempur,
Post Office- Salempur, Police Station- Benipati, District- Madhubani,
Presently Posted As Assistant, Department Of Animal Husbandary,
Government Of Bihar, Vikash Bhawan, Patna
.... .... Respondents
======================================================
with
Civil Writ Jurisdiction Case No.21906 of 2012
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Mohammad Murtaza Son Of Late Md. Ramzan Ali Resident Of Village-
Nagari, Post Office- Nagari, Police-Station- Charpokhari, District- Bhojpur
.... .... Petitioner
Versus
1. The State Of Bihar Through The Chief Secretary, Bihar, Patna
2. The Principal Secretary, Finance Department, Government Of Bihar,
Patna
3. The Principal Secretary, General Administration Department,
Government Of Bihar, Patna
4. The Joint Secretary, General Administration Department, Government
Of Bihar, Patna
5. The Deputy Secretary, General Administration Department, Government
Of Bihar, Patna
6. The Bihar Public Service Commission, Through Its Secretary, Bailey
Road, Patna
7. The Chairman, Bihar Public Service Commission, Through Its Chairman,
Bailey Road, Patna
8. The Secretary, Bihar Public Service Commission, Through Its Chairman,
Bailey Road, Patna
.... .... Respondents
======================================================
with
Civil Writ Jurisdiction Case No.7159 of 2013
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Pradip Kumar Son Of Late Chhotan Ram Resident Of Mohalla - Shivcharan
Lane, Manpur, Post Office - Buniyadganj, Police Station - Buniyadganj,
District - Gaya
.... .... Petitioner
Versus
1. The State Of Bihar Through The Chief Secretary, Bihar, Patna
2. The Principal Secretary, Finance Department, Government Of Bihar,
3
Patna
3. The Principal Secretary, General Administration Department,
Government Of Bihar, Patna
4. The Joint Secretary, General Administration Department, Government Of
Bihar, Patna
5. The Deputy Secretary, General Administration Department, Government
Of Bihar, Patna
6. The Bihar Public Service Commission, Through Its Secretary, Bailey
Road, Patna
7. The Chairman, Bihar Public Service Commission, Through Its Chairman,
Bailey Road, Patna
8. The Secretary, Bihar Public Service Commission, Through Its Chairman ,
Bailey Road, Patna
.... .... Respondents
======================================================
Appearance :
(In CWJC No.6805 of 2012)
For the Petitioner/s : Mr. Anand Kumar Ojha, Adv.
For the Respondent/s : Mr. Anjani Kumar, AAGX
For the Commission : Mr. Sanjay Pandey, Adv.
(In CWJC No.18870 of 2012)
For the Petitioner/s : Mr. Jitendra Kumar Roy, Adv.
For the Respondent/s : Mr. Anjani Kumar, AAGX
For the Commission : Mr. Sanjay Pandey, Adv.
(In CWJC No.21906 of 2012)
For the Petitioner/s : Mr. Navendu Kumar
For the Respondent/s : Mr. Anjani Kumar, AAGX
(In CWJC No.7159 of 2013)
For the Petitioner/s : Mr. Navendu Kumar
For the Respondent/s : SC9
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CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
CAV ORDER
Dated- 05-06- 2014
Heard learned counsel for the parties.
2. All these four writ applications involving the same
question, namely, promotion on the post of Section Officer from
amongst the post of Assistant have been heard together and are
being disposed of by this common judgment.
3. At the out set it must be clarified that among the
petitioners in these four writ applications there are two types of
Assistants, one being petitioners of C.W.J.C.No. 18870/2012,
4
C.W.J.C.No. 21906/2012 and C.W.J.C.No. 7159/2013, who are
before this Court with a prayer that the promotion on the post of
Section Officer from amongst the Assistants should be given, not
only in terms of the statutory Rules but also on the basis of
original requisitions sent by the State of Bihar to the Bihar Public
Service Commission, whereas the other set of the Assistants being
petitioners of C.W.J.C.No. 6805/2012 have assailed the original
requisition rendering them eligible for being considered for
promotion on the post of Assistant. As a matter of fact if the facts
of the case of C.W.J.C.No. 6805/2012 and C.W.J.C.No.
18870/2012 are taken into account they would by and large cover
the cases of all the petitioners.
4. In C.W.J.C.No. 6805/2012 the nine petitioners have
grouped together by claiming the following relief:
"(i) Issuance of writ in the nature of certiorari for
quashing the letter no. 3374 dated 4.11.11 by which
arbitrarily the cut-off date of 1.08.08 has been fixed for
determining the 5 years service under the Bihar
Secretariat Service to be eligible for Limited
Competitive Examination advertised by the Bihar
Public Service Commission (hereinafter in short
Commission) vide Adv. No. 12/2010 with further
instruction to the Commission for corrigendum for
inserting the aforesaid cut-off date as eligibility for
participation in Limited Competitive Examination for
appointment/ promotion for the post of Section Officer.
5
(ii) Issuance of further writ in the nature of certiorari for
quashing the consequential Corrigendum published on
16.02.12 by which the basic eligibility has been revised
to the extent of now requiring length of 5 years and
more service as Secretariat Assistant till 01.08.08 which
is mechanical adoption of the reasons contained in letter
dated 01.11.11 arbitrarily making the petitioners unfit
and unqualified thereby even frustrating the order of
this Hon‟ble Court allowing such petitioners to
participate in the Limited Competitive Examination.
The grant of relief by the Hon‟ble Court has now been
taken away by the State Respondent and the
Commission in as much as that neither the date of
advertisement nor any other equitable date has been
selected to protect the interest of those who had already
suffered harassment for non confirmation.
(iii) Issuance of declaration that the Commission had
blindly towed the line of the illegal and discriminatory
government instruction ignoring and abdicating as
authority as a Constitutional Body created under Article
315 (chapter-2) of Part 15 of the Constitution of India.
(iv) Issuance of declaration that the misleading recital
in the letter dated 4.11.11 is purposely held out to
justify and arbitrary fixation of cut-off date without
caring for those who could not have attained 5 years of
length of service and have attained the said
qualification only after 01.08.08 and between 01.08.08
to 13.05.2010 i.e. the date of publication of the Adv.
No. 12/2010.
(v) Issuance of direction to treat the date of publication
of advertisement bearing advertisement no. 12/10 as
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legal and justified allowing all eligible candidates
having five years and above experience as Secretariat
Assistant to participate in the Limited Competitive
Examination for appointment against the post of
Section Officer."
5. The petitioners of C.W.J.C.No. 6805/2012 who had
moved this Court at the earliest point of time in fact are aggrieved
of the decision of cut-off date of 1.8.2008 for counting five years
experience laid down by way of qualification for appearing in the
Limited Competitive Examination as originally contained in
Advertisement No. 12 of 2010, inasmuch as by virtue of this cut-
off date of 1.8.2008 they get excluded from the zone of
consideration. According to these petitioners, who are appointed
on 14.7.2004 their exclusion from the zone of consideration in
terms of advertisement No. 12 of 2010 issued for holing Limited
Competitive Examination as per Bihar Secretariat Services Act
read with Bihar Secretariat Service (Appointment through Limited
Competitive Examination to the grade of Section Officer)
Regulation, 2009 and the Bihar Secretariat Services Rules, 2010 is
per se arbitrary and they in effect want their inclusion for
consideration of their cases as well for promotion on the post of
Section Officer.
6. It has to be noted that when this writ application,
C.W.J.C.No. 6805/2012 was filed on 5.4.2012 assailing the terms
7
of advertisement No. 12 of 2010 and the order dated 4.11.2011
fixing of the cut-off date of 1.8.2008, an interim order was passed
on 30.4.2012 permitting them to appear in the examination to be
conducted by the Commission. Such interim order dated
30.04.2012 reads as follows:
" Heard learned counsel for the petitioners, the State
and the Bihar Public Service Commission (hereinafter
referred to as the „Commission‟).
The petitioners are stated to be Secretariat Assistants
appointed on 14.7.2004. They desire to appear at the
limited competitive examination to be conducted by the
Commission under Advertisement No. 12/2010 for
promotion to the post of Section Officer. They are
aggrieved by the order dated 4.11.2011 which fixes a
cut off date of 1.8.2008 for completion of five years of
service rendering a person eligible to appear at the
examination.
It is submitted that the Advertisement published on
13.5.2010only stated that a candidate must have completed five years of service in the Assistant cadre. The petitioners came to the Court earlier in C.W.J.C.No. 9085 of 2010 with a grievance that the probation was not being confirmed depriving them the opportunity to be considered under the Advertisement. Subsequently, confirmation came to be done. They have been issued acknowledgement cards. The cut off date has subsequently been fixed arbitrarily and has no nexus.
The Bihar Secretariat Service (Promotion from 8 Assistant by Limited Competitive Examination) Rules, 2009 provided that the period of probation could not to be counted for computing the period of five years. Subsequently, by notification dated 9.12.2009, it has been deleted and the entire period of service in the Assistant cadre has to be taken into consideration for calculating the five years period. The petitioners claim to fulfill that requirement. The impugned order on the face of it does not specify any criteria for fixation of the cut off date. The assertion is that it has been done to deprive the petitioners of the benefit of the order in C.W.J.C.No. 9085 of 2010.
Let the State serve and file counter affidavit within six weeks. Rejoinder, if any, may be filed one week thereafter.
The petitioners and others similarly situated in the meantime are permitted to appear at the examination. After the general results are published liberty is given to mention the matter for out of turn hearing."
7. The State Government in compliance of the aforementioned interim order had issued its clarification by way of its decision changing the cut-off date 1.8.2008 to 11.6.2010 on a rationale that 11.6.2010 was the last date of filing application in terms of advertisement No. 12 of 2010 and as such, the period of five years should be counted for the services rendered by the Assistant up to 11.6.2010. Pursuant to the aforementioned decision of the State Government dated 29.6.2012 a Corrigendum was 9 issued by the Commission on 14.7.2012 revising cut-off date from 1.8.2008 to 11.8.2010 which has been assailed in all rest of four cases including C.W.J.C.No. 18870/2012 and is the main case in which pleadings have been made by all the parties including the petitioners of C.W.J.C.No. 6805/2012, wherein petitioner no.1 Dharamvir Prasad of C.W.J.C.No. 6805/2012 has been impleaded in representative capacity as respondent no.7.
8. The relief sought in C.W.J.C.No. 18870/2012 reads as follows:
" For quashing the letter issued under the signature of respondent no.3 vide letter No. 9371 dated 29.6.2012 and the 2nd corrigendum issued and published on 14.7.2012 in Advertisement No. 12 of 2012 by respondent no.6 in Daily Hindi Newspaper Dainik Jagaran by which the cut-off date to be eligible for limited competitive examination for the post of Section Officer in Bihar Secretariat service fixed by 1st corrigendum dated 1.8.2008 has been charged fixing the date of advertisement on 10.6.2010, on the basis of wrong committed by respondents while publishing the advertisement No. 12 of 2010 not mentioning the cut- off date for eligibility against the vacancy sought to be filed in spite of provision made under Rule-2 (1), 3(2) of the Bihar Secretariat Service (Appointment through Limited Competitive Examination to the grade of Section Officer) Regulation, 2009 and Rule 10(1) of Bihar Secretariat Service Rules, 2010 as 1.4.2008 and subsequently to give the undue advantage to respondent 10 2nd set fixed the cut off date the date of publication of advertisement 10.6.2010 on the basis of legal opinion of Advocate General obtained without placing the relevant Rules by respondent no.3 and be further give the direction to complete the selection process on the basis of 1st corrigendum published on 16.2.2012 by respondent no.6 and be further give direction in spite of appearance of respondent 2nd set and similar to him in the examination held on 1.9.2012 on the post of cut off date on 1.8.2008 since they were not eligible the result held on 1.9.2012 the advertisement No.12/10 be not published."
9. As noted above, the case of the petitioners in rest of the two writ applications is one and the same, inasmuch as they also are aggrieved by the revised cut-off date. The prayer though couched in different manner need not be extracted as they are more or less containing the same grievance as that of the petitioners of C.W.J.C.No. 18870/2012.
10. In the backdrop of the aforementioned limited dispute relating to cut-off date it would be necessary to firstly refer to the scheme of promotion on the post of Section Officer so as to decide the claim and counter claim of the petitioners of C.W.J.C.No. 6805/2012 and C.W.J.C.No. 18870/2012 and its analogous two writ petitions. The State Government in keeping with the recommendation of Pay Revision Committee and the 11 Fitment Committee had constituted Bihar Secretariat Service by promulgating the Bihar Secretariat Service Act, 2007 (Bihar Act 3 of 2008) (hereinafter referred to as „the Act‟). Section 2(ii) defines „Secretariat Service‟ to mean the posts of Secretariat Assistants, Section Officers Grade and the post of Under Secretary and the Deputy Secretary promoted from them and such other posts which may be included from time to time. Section 9 of the Act lays down the manner of appointment to the grade of Assistant wherein 75% post were to be filled up by direct recruitment on the result of the competitive examination held by the B.P.S.C. and the remaining 25% were to be filled up by promotion from Upper Division Clerks of Bihar Secretariat Clerical service on the basis of seniority on the recommendation of the Departmental Promotion Committee. What is significant is that under section 9(3) of the Act, all persons appointed and working as Assistant of joint cadre of Assistants of the Secretariat and attached offices on the appointed day were deemed to have been automatically included in the grade of Assistant.
11. The appointed day of the Act being date of coming into effect of the Act which was published in the official gazette on 4.1.2008 thus became the water mark for creation of the cadre of Assistant of the Secretariat. It has to be kept in mind and is not in dispute that as on 4.1.2008 all these petitioners were working as 12 Assistant of the joint cadre of Assistant of Secretariat and thus, they automatically were included in the grade of Assistant as per Section 9(3) of the Act. Sections 13 and 14 of the Act laying down the norms of promotion and the appointment to the post of Section Officer being most relevant need to be quoted hereinbelow:
"13. Promotion.-(1) The promotion to the different grades in the service shall be given on the recommendation of the Departmental Promotion Committee constituted by the State Government. (2) The minimum qualifying service i.e. "Kalawadhi"
for such promotions shall be as determined by the Personnel & Administrative Reforms Department from time to time.
14. Appointment to the grade of Section Officer.-(1) Appointment to the grade of Section Officer shall be made as follows:-
(a) Eighty per cent of the posts in the grade of Section Officers shall be filled by promotion from the grade of Assistants on the recommendation of the Departmental Promotion Committee.
(b) The remaining twenty per cent of posts shall be filled through a Limited Competitive Examination conducted by the Bihar Public Service Commission from amongst the Assistants who are confirmed in the service and have rendered continuous service more than five years in the grade of Assistants.
(2) The procedure, syllabus etc. for the Limited Competitive Examination shall be determined by the cadre controlling authority according to Rules/ 13 Regulation in consultation with the Bihar Public Service Commission.
(3) Persons appointed and working as Section Officer of the Joint Cadre of Assistants of the Secretariat and attached offices on the appointed day shall be deemed to be automatically included in this grade."
(underlining for emphasis)
12. As would be noticed from reading of Section 14 of the Act that while 80% of the posts of Section Officer were to be filled up by way of promotion from the grade of Assistant on the recommendation of the Departmental Promotion Committee, remaining 20% posts were to be filled up through a Limited Competitive Examination conducted by the Commission from amongst the Assistant who are confirmed in service and have rendered continuous service more than five years in the grade of Assistants for which procedure, syllabus etc. was to be determined by the Cadre Controlling Authority by framing Rules or Regulation in consultation with the Commission. It is this Section 14(1)(b) which is the real bone of contention, inasmuch as all the petitioners are aspirant for being considered in this 20% quota of the posts of Section Officer.
13. It has to be also kept in mind that under section 19 of the Act the State Government and the cadre controlling authority have been vested powers to make Rules and Regulation 14 respectively for the purposes of implementing the provisions of the Act and the power of removal of difficulties has also been vested in the State Government under section 21 of the Act, whereas the power to relax any of the provision of the Act or interpretation of the provision of the Act has again been vested in the State Government and the cadre controlling authority respectively under sections 22 and 23 of the Act.
14. As noted above, such power of framing Regulation having been vested under section 19(2) of the Act the cadre controlling authority, namely, Personnel and Administrative Reforms Department had made Regulation in the light of Clause
(b) of sub-section (1) and sub-section (2) of Section 14 of the Act for appointment through Limited Competitive Examination to the grade of Section Officer of the Bihar Secretariat service named as Bihar Secretariat Service (Appointment through Limited Competitive Examination to the grade of Section Officer) Regulation, 2009 (hereinafter referred to as „the Regulation‟). Clause 3 of the Regulation provides for appointment on the post of Section Officer through Limited Competitive Examination to be held by the Commission and for which the cadre controlling authority, namely, Personnel and Administrative Reforms Department has been empowered to calculate the vacancies on the basis of the vacancies reported by different department available 15 on 1st April every year which has to be sent to the Commission by 30th April of that very year. Clause 4 lays down the eligibility and conditions for the Secretariat Assistant to appear in the Limited Competitive Examination which requires that he should be confirmed in the grade of Assistant and should have rendered continuous five years service in the grade of Assistant.
15. It needs to be only mentioned here that earlier when the Regulations were brought into force on 18.6.2009 the period of probation, in the length of service, was sought to be excluded but then subsequently on 9.12.2009 the same has been deleted and therefore, the period of continuous service of five years is also to include the period of probation. Under the Regulations every Assistant has been given a maximum of three chances for appearing in the Limited Competitive Examination and the Syllabus also has been set out under Regulation (5). The other portion of the Regulations being more or less dealing with the procedural aspect including publication of result of eligible candidates by following the reservation category need not be dilated upon for the limited issues involved in this batch of writ applications, inasmuch as on the basis of reading of the Regulations it becomes clear that there are two modes of filling up the post of Section Officer, one by way of promotion from the grade of Assistant on the basis of seniority and suitability to be 16 determined by the Departmental Promotion Committee and the other by way of appearing and becoming successful in the Limited Departmental Examination on the recommendation of the Commission.
16. The other aspects which also need to be taken into account at the very outset before going into the real dispute in these cases would be noticing the provisions of Bihar Secretariat Service Rules, 2010 (hereinafter referred to as „the Rules‟) which has been framed by the State Government in exercise of power under section 19(1) of the Act laying down not only the cut-off date of enforcement of the Act as 4.1.2008 but also providing the strength of the cadre of Assistant, Section Officer and its equivalent post, Under Secretary and its equivalent post and the Deputy Secretary and its equivalent post. Rule 10 lays down that the promotion in the relevant grade shall be given with effect from the date of vacancy, whereas Rule 11 specifically deals with the promotion/ appointment on the post of Section Officer and since they will have direct bearing on the issue in hand they are for the sake of clarity extracted hereinbelow:
^^10- lsok ds fofHkUu xzsMksa esa izksUufr& ¼1½ lsok esa izR;sd xzsM ds inksa ij izksUufr lacaf/kr xzsM ds inksa dh fjfDr dh frfFk ls ns; gksxhA ¼2½ izksUufr dh izfdz;k dks bl izdkj ;qfDr;qDr cuk;k tk;sxk rkfd laHkkfor fjfDr ds iwoZ gh izksUufr dh lkjh izfdz;k,a iwjh gks tk;saA bl iz;ksukFkZ izR;sd o"kZ ds izkjEHk esa gh vxys o"kZ esa lsok fuo`fr bR;kfn ls gkus okyh fjfDr;ksa dh x.kuk djrs gq, jksLVj Dyh;jsal] dkykof/k] 17 xksiuh; vH;qfDr;ksa dk v|ru djus LoPNrk laca/kh iath dks v|ru djus vkfn dh dkjZokbZ dj foHkkxh; izksUufr lfefr;ksa dh vuq'kalk ;Fkkle; izkIr dj yh tk;sxh vkSj vfxze iSuy rS;kj dj fy;k tk;sxkA ¼3½ lsok ds vUrxZr izksUufr ds fy, vH;fFkZ;ksa dh mi;qDrrk dk ekin.M ^^ojh;rk&lg&;ksX;rk** dk fl}kar gksxkA ¼4½ izksUufr ds le; vuwlwfpr tkfr vkSj vuqlwfpr tu tkfr ds vH;fFkZ;ksa dh mi;qDrrk vU; lkekU; dksfV ds vH;fFkZ;ksa ds lkFk gh vkadh tk;sxh vFkkZr mi;qDrrk dk ekin.M lHkh vH;fFkZ;ksa ds fy, le:i gksxkA ¼5½ lsok esa fofHkUu xzsMksa esa izksUufr jkT; ljdkj }kjk xfBr foHkkxh; izksUufr lfefr;ksa dh vuq'kalk ij nh tk;sxhA ¼6½ ,slh izksUufr;ksa ds fy, U;wure vgZd lsok vFkkZr dkykof/k ogh gksxh] tks dkfeZd ,oa iz'kklfud lq/kkj foHkkx }kjk le;≤ ij fofuf'pr dh tk;A 11- iz'kk[kk inkf/kdkjh ds xzsM esa izksUufr@fu;qfDr& ¼1½ vf/kfu;e dh /kkjk&14 ds vuqlkj iz'kk[kk inkf/kdkjh ds xzsM esa 80 izfr'kr in foHkkxh; izksUufr lfefr dh vuq'kalk ij lgk;d xzsM ls izksUufr }kjk Hkjs tk;sxs vkSj 'ks"k 20 izfr'kr in oSls lgk;dksa ds chp ls fcgkj yksd lsok vk;ksx }kjk lapkfyr lhfer izfr;ksfxrk ijh{kk ds }kjk Hkjs tk;sxs tks lsok esa lEiq"V gks vkSj tks lgk;d xzsM esa ikap o"kksZa ls vf/kd dh yxkrkj lsok dj pqds gksaA ¼2½ lhfer izfr;ksfxrk ijh{kk dk vk;kstu ,oa lapkyu fcgkj yksd lsok vk;ksx }kjk] bl iz;ksukFkZ laoxZ fu;a=h izkf/kdkj }kjk cuk;h x;h fofu;ekoyh ds vuqlkj fd;k tk;sxkA laoxZ fu;a=h izkf/kdkj fcgkj yksd lsok vk;ksx ds ijke'kZ ls lhfer izfr;ksfxrk ijh{kk ds izfdz;k] ikB~; fooj.k vkfn ls lacaf/kr fofu;ekoyh dk fofu'p; dj ldsxkA ¼3½ iz'kk[kk inkf/kdkjh ds xzsM ds 80 izfr'kr inksa dks lgk;d xzsM ls izksUufr }kjk Hkjs tkus gsrq fopkj dj vuq'klak djus ds fy, foHkkxh;
izksUufr lfefr us fuEufyf[kr lnL; jgsaxsA ¼i½ lnL;@vij lnL;] jktLo i"kZ & v/;{kA ¼ii½ iz/kku lfpo@lfpo] dkfeZd ,oa iz'kklfud lq/kkj foHkkx & lnL;A ¼iii½ foRr foHkkx ds la;qDr lfpo ls 18 vU;wu Lrj ds ,d inkf/kdkjh & lnL;A ¼iv½ dkfeZd ,oa iz'kklfud lq/kkj foHkkx ds fcgkj lfpokyu lsok dh LFkkiuk ds ojh; izHkkjh & lnL;A ¼v½ dkfeZd ,oa iz'kklfud lq/kkj foHkkx }kjk euksuhr vuqlwfpr tkfr@tutkfr ds inkf/kdkjh & lnL;A ¼4½ fu;e frfFk dks lfpoky; ,oa layXu dk;Zy;ksa ds lgk;dksa ds la;qDr laoxZ ds iz'kk[kk inkf/kdkjh ds in ij fu;qDr ,oa dk;Zjr O;fDr bl xzsM esa Lor% lfEefyr le>s tk;saxsA**
17. It has to be also noticed that in Rule 15 as well while laying down the mode and manner of fixing seniority on different post of Assistant, Section Officer, Under Secretary and the Deputy Secretary it has been specifically mentioned that those Assistants (20%) who have been appointed on the post of Section Officer on the basis of Limited Competitive Examination in a particular year shall rank senior to the Assistants (80%) promoted from the post of Assistant in that year on the basis of seniority. This Court, therefore, believes that even Rule 15 will have a bearing on the out come of the result of these cases, inasmuch as one of the issues going to the root question would be as to whether filling up of 20% of the post of Section Officer from the Limited Competitive Examination is by way of promotion or by way of direct appointment on the post of Section Officer which will have its eventual repercussion on the issue of reservation.
18. In other words, if the post of Section Officer either by way of filling up of 80% of posts on seniority on the basis of 19 recommendation of the Departmental Promotion Committee or remaining 20% post of Section Officer by way of Limited Competitive Examination is held to be one of promotion alone there would be no question of giving any reservation but in case these 20% post of Section Officer are held to be by way of direct appointment to the post of Section Officer in contra distinction to the concept of promotion for the remaining 80% of Assistant for the post of Section Officer the provision of reservation will have to be followed.
Rule 15, therefore, is extracted hereinbelow:
^^15- ojh;rk& ¼1½ fu;r frfFk ls iwoZ fdlh xzsM ess fu;qDr lsok ds lnL;ksa dh ikjLifjd ojh;rk ml frfFk ls iwoZ ;Fkk vo/kkfjr mudh ikjLifjd ojh;rk ds vuqlkj fofu;fer dh tk;sxh ijUrq ;fn lsok ds ,sls fdlh lnL; ;k lnL;ksa dh ojh;rk ml frfFk ds iwoZ fof'k"Vr% vo/kkfjr ugha dh xbZ gksa rks mudh ojh;rk dk vo/kkj.k laoxZ fu;a=h izkf/kdkj }kjk fd;k tk;sxkA ¼2½ fdlh xzsM esa Lor% lfEefyr lHkh inkf/kdkjh mu lHkh inkf/kdkfj;ksa ls ojh; gksxsa ftudh ml xzsM esa fu;qfDr fu;e frfFk ds ckn dh fdlh frfFk ls gqbZ gksA ¼3½ fu;r frfFk ds ckn fdlh xzsM esa fu;qDr O;fDr;ksa dh ikjLifjd ojh;rk fuEufyf[kr jhfr ls fofu;fer dh tk;sxh& ¼i½ lgk;d xzsM&¼d½ lh/kh HkrhZ ls fu;qDr lgk;dksa dh ikjLifjd ojh;rk flQZ fcgkj deZpkjh p;u vk;ksx dh es/kk lwph ds dze esa fu/kkZfjr dh tk;sxhA ,d lkFk gh ,d gh o"kZ ls lh/kh HkrhZ rFkk izksUufr }kjk fu;qfDr dh fLFkfr esa lh/kh HkrhZ ls fu;qDr O;fDr izksUufr ls fu;qDr O;fDr;ksa ls du;h gksxsA ¼[k½ izksUufr ls fu;qDr O;fDr;ksa dh ikjLifjd ojh;rk mudh izksUufr dh frfFk ds vuqlkj vo/kkfjr dh tk;sxhA 20 ¼ii½ iz'kk[kk inkf/kdkjh xszM&¼d½ lhfer izfr;ksfxrk ijh{kk }kjk fu;qDr inkf/kdkfj;ksa dh ikjLifjd ojh;rk lacaf/kr ijh{kkQy dh es/kk lwph ds dze esa vo/kkfjr dh tk;sxh vkSj iwoZ dh ijh{kk ds vk/kkj ij fu;qDr inkf/kdkjh ckn dh ijh{kk ds vk/kkj ij fu;qDr inkf/kdkfj;ksa ls ojh; gksaxsA ¼[k½ fu;r frfFk ds ckn izksUufr }kjk fu;qDr inkf/kdkfj;ksa dh ikjLifjd ojh;rk muds bl izdkj ds fu;qfDr vkns'k ls fofu;fer gksxh vkSj lgk;d xzsM esa mudh ojh;rk dze ds vuqlkj fofuf'pr gksxhA ¼x½ lhfer izfr;ksfxrk ijh{kk ls fu;qDr inkf/kdkjh fdlh fo'ks"k o"kZ esa fjfDr;ksa ds fo:n~/k izksUufr ls fu;qDr inkf/kdkfj;ksa ls ojh; gksaxsA ¼iii½ voj lfpo@mi lfpo vkfn fu;r frfFk ds ckn bl xzsM esa izksaUur inkf/kdkfj;ksa dh ikjLifjd ojh;rk ml vkns'k esa fn;s x;s dze ds vuqlkj fofu;fer dh tk;sxh] ftlds v/khu muds izksUufr gqbZ gksA ¼4½ ijh{kk ds lapkyu esa vuq'kalk izkIr gksus es vR;f/kd foyEc gksus ;k ,slh ijh{kkvksa@vuq'kalkvksa ds U;k;kns'k ls vkPNkfnr gksus dh n'kk esa ojh;rk dk vo/kkj.k laoxZ fu;a=h izkf/kdkj }kjk fd;k tk ldsxkA**
19. In the backdrop of the aforementioned provisions under the Act, Rules and Regulation all that has to be noted is that the first requisition was made by the State Government on 31.7.2009 for filling up of 114 post of Section Officer by way of Limited Competitive Examination and in such requisition specific reference was made to Clause 14(2) of the Regulations for the purposes of eligibility and reservation policy for appointment of the Government to be followed by way of allocating 57 posts for 21 unreserved category while remaining 57 posts for the reserved category by giving a break up of 18 posts for Scheduled Caste, 1 post for Scheduled Tribe, 21 posts for Most Backward category, 14 posts for the Backward category and 3 posts for the Females of Backward category. The Commission on receipt of the aforementioned requisition dated 31.7.2009 had advertised these 114 posts by Advertisement No. 12 of 2010 which was published in the daily newspaper on 13.5.2010 which is extracted hereinbelow:
^^fcgkj yksd lsok vk;ksx 15] tokgjyky usg: ekxZ ¼csyh jksM½ iVuk&800001 fcgkj lfpoky; lsok ds vUrxZr iz'kk[kk inkf/kdkjh] osrueku 650&10500@& :0 viqujhf{kr ds dqy 114 ,d lkS pkSng inksa ij lhfer izfr;ksfxrk ijh{kk ds ek/;e ls fu;qfDr gsrq lHkh mEehnokjksa ds fofgr osru esa vkosnu vkeaf=r fd;s tkrs gSA bu inksa esa vukjf{kr ¼01½ dks 57 ¼lUrkou½] vuqlwfpr tkfr ¼02½ dks 18 ¼vBkjg½ vuqlwfpr tutkfr ¼03½ dks ¼01½ vR;Ur fiNM+k oxZ ¼04½ dks 21 ¼bDdhl½ fiNM+k oxZ ¼05½ dks 14 ¼pkSng½ ,oa fiNM+k oxZ efgyk ¼06½ dks ¼03½ ¼rhu½ in vuqekU; gSA bu vuqekU; inksa esa ls lq;ksX; fodykax mEehnokjksa dks fu;ekuqlkj vkj{k.k ns; gSa ¼i½ lsok dss lgk;d xzsM esa lsok lEiq"V gksA ¼ii½ lsokdky lgk;d xzsM esa mldh lsok 05¼ikap½ o"kksZa ls vf/kd dh gks x;h gksA ¼iii½ izR;sd mEehnokj dks bl ijh{kk eas vf/kdre rhu volj iznku fd;k tk,xkA 3- mez lhek fu/kkZfjr ugha gSA 4- p;u dk vk/kkj lhfer izfr;ksfxrk ijh{kk ds vk/kkj ij A lhfer izfr;ksfxrk }kjk fu;qfDr ds fy, fyf[kr ijh{kk gsrq 22 ikB~;dze ijh{kk esa dqy nks i= gksaxs vkSj izR;sd i= 100 vadksa dh gksxkA izR;sd i= ds fy, ijh{kk 3 ?kaVs dh vof/k dh gksxhA izR;sd iz'u cgqfodYi oLrqfu"B izd`fr dk gksxkA fyf[kr ijh{kk esa lkekU; Js.kh ¼vukjf{kr½ ds fy, pkyhl izfr'kr ¼40%½ fiNM+k oxZ ds fy, lk<+s Nrhl izfr'kr ¼36-5%½ vR;Ur fiNM+k oxZ ds fy, pkSrhl izfr'kr ¼34%½ vuqlwfpr tkfr@vuqlwfpr tutkfr efgyk ,oa fodykax mEehnokjksa ds fy, cRrhl izfr'kr ¼32%½ vad izkIr djuk vfuok;Z gksxk] tSlk dkfeZd ,oa iz'kklfud lq/kkj foHkkx fcgkj ds laadYi Kkikad 15838 fnukad 22-12-1999 ,oa i=kad 6708 fnukad 01-10-2008 }kjk fofgr gSa ,sls vgZrk izkIr mEehnojksa eas ls gh vk;ksx ds fofu';puqlkj lq;ksX; mEehnokjksa dh vuq'kalk dh tk,xhA izFke i=& izFke i= esa lkekU; Kku] Hkkjr dk lafo/kku] yksd iz'kklu rFkk fodkl laca/kh iz'u iwNs tk;saxsA f}rh; i=& f}rh; i= esa fuEufyf[kr fu;ekoyh] fu;e ;k lafgrk ls iz'u iwNs tk;saxs& 1- fcgkj lsok lafgrk 2- fcgkj isa'ku fu;ekoyh 3- fcgkj dk;Zikfydk fu;ekoyh 4- lfpoky; vuqns'k 5- cksMZ izdh.kZ fu;ekoyh 6- fcgkj lkekU; Hkfo"; fuf/k fu;ekoyh 7- fcgkj ;k=k HkRrk fu;ekoyh 8- fcgkj ljdkjh lsod vkpkj fu;ekoyh 9- fcgkj dks"kkxkj lafgrk 10- fcgkj foRrh; fu;ekoyh 11- fcgkj ljdkjh lsod ¼oxhZdj.k fu;a=.k ,oa vihy½ fu;ekoyh 2005 12- lwpuk dk vf/kdkj vf/kfu;e 2005 5- 'kqYd dsoy fcgkj jkT; ds vuqlwfpr tkfr@vuqlwfpr tutkfr ds fy, 75@& ¼ipgrj½ :i;s rFkk vU; ds fy, 300@& ¼rhu lkS½ :i;s dk js[kkafdr Hkkjrh; iksLVy vkMZj@cSad MzkIV tks fcgkj yksd 23 lsok vk;ksx iVuk ds uke ls th0ih0vks0] iVuk@iVuk esa Hkqxrs; gks layXu djsaA 6- Hkjk gqvk vkosnu i= dsoy fucaf/kr Mkd@LihM iksLV ls bl izdkj Hksts fd 'kqdzokj fnukad 11-06-2010 dh la/;k 5-00 cts rd la;qDr lfpo&lg&fo'ks"k dk;Z inkf/kdkjh fcgkj yksd lsok vk;ksx] 15] tokgjyky usg: ekxZ ¼csyh jksM½] iVuk&800001 dks vo'; izkIr gks tk,aA mi;qZDr foKkiu ds lEcU/k esa foLr`r funs'k@vkosnu izi= vk;ksx ds csclkbZV http://bpsc.bih.nic.in ij miyC/k gS ftls MkmuyksM dj O;ogkj esa yk;k tk ldrk gSA la;qDr lfpo&lg&fo'ks"k dk;Z inkf/kdkjh&lg&ijh{kk fu;a=d fcgkj yksd lsok vk;ksx] iVukA ** (underlining for emphasis)
20. As would be evidenced no cut-off date was fixed for completing of five years period of service in the advertisement but a few Secretariat Assistant had approached this Court after publication of the advertisement by the Commission by filing their writ application, C.W.J.C.No. 9085/2010 with a grievance that the Commission was not accepting their applications on the ground that they were not confirmed Secretariat Assistant and/or even if thier applications would be accepted they could be rejected on scrutiny because of their being not confirmed on the post of Assistant. This Court by an interim order dated 27.5.2010 had while directing the Commission to file its counter affidavit gone to record that the confirmation being a glorious uncertainty of service, the Commission should not reject and/or debar such of the 24 persons who have already completed five years of service on the post of Assistant and have not yet been confirmed. This Court had also directed the State Government to clarify why the petitioners of C.W.J.C.No. 9085/2010 were not confirmed in a span of more than five years despite their being completing two years period of probation in the year 2006.
21. It, however, appears that only on account of the aforementioned interim order the Commission had accepted the application of the petitioners of C.W.J.C.No. 9085/2010 and that is how the writ application was ultimately permitted to be withdrawn by an order dated 14.10.2011. None-the-less the issue as to whether requirement of confirmation of an Assistant in order to become eligible to appear in the Limited Competitive Examination for filling up 20% of the post of Section Officer as prescribed under the Act, Rules and Regulations was not at all gone into by this Court and therefore, whatever may have observed in the interim order dated 27.5.2010 in C.W.J.C.No. 9085/2010 cannot be held to be any determination and therefore, whatever may have done either by the Government or the Commission for allowing the candidature of the petitioners of C.W.J.C.No. 9085/2010 would remain confined between them and the Government. The aforesaid interim order dated 27.5.2010 for the sake of clarity is also quoted hereinbelow:25
" The petitioners were appointed as Secretariat Assistant in the different Departments of State Government in the Secretariat under the Secretariat Services Rules, 1992. This appointment was made after passing of examination in the year 2004. In 2006, after completion of two years‟ probation, they were to be confirmed. On one pretext or the other, the confirmation was not made by the State Government. It is not a case where they were found unfit for promotion or a case in which probation has to be extended. The Government allegedly sat over the matter. In 2007, Secretariat Services Act was enacted laying down special conditions for confirmation into service with effect from 1.4.2008. Apparently State Government now wakes up and is not confirming the petitioners on the ground that now they have to comply with the 2007 Act. In the meantime, as per service rule, petitioners become entitled to take the limited examination for promotion but as per advertisement, only confirmed Secretariat Assistants can apply. Petitioners are, thus, pushed in a predicament where the Government slept over the matter from 2006, wakes up only when 2007 Act is enacted and instead of confirming them as of 2006, now wants confirmation in accordance with 2007 Act saying that the petitioners have lost their right of confirmation under the old provision because they slept. BPSC is not accepting the forms as they are not confirmed Secretariat Assistants and even if the forms are accepted, they would be rejected on scrutiny, thus, depriving the petitioners of their right to take the limited competitive examination. On behalf of 26 petitioners, reliance is placed on judgment of Chief Justice Chagla in the case of All India Groundnut Syndicate Limited vs. Commissioner of Income Tax, Bombay City, AIR 1954 Bombay, 232:
"But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to hum under sub-section (2) of S.24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person- we take it that the Income-tax Department is included in that definition- can put forward his own default in defence to a right asserted in the other party. A person cannot say that the party claiming the right is deprived of that right because "I have committed a default and the right is lost because of that default."
Thus unless the State communicates the petitioners to be contrary giving reasons for non-confirmation with effect from 2006, the petitioners cannot be debarred fro filing applications for appearing in the limited competitive examination and BPSC should not reject their application form. However, the result of such examination would be in relation to the petitioners, subject to the final orders that may be passed in this writ petition.
Let BPSC and State file comprehensive counter affidavit.
State should clearly state why, when petitioners were liable to be confirmed in the year 2006, till date, they 27 have not yet been confirmed. They must also give list of similarly situated Assistants who were appointed in the same batch who have been confirmed when, why and how. The counter affidavit should be filed by 21st of June, 2010.
List for Admission before appropriate Bench on priority basis on 28th of June, 2010."
22. To continue with the events leading to filing of these writ applications it has to be also kept in mind that since there was no cut-off date fixed for computing of five years period of service rendered by an Assistant to become eligible to appear in the Limited Competitive Examination as per advertisement, the State Government by its letter dated 4.11.2011 probably in response to certain query made by the Commission had intimated its decision that all such 114 vacancies were only upto 1.4.2008, the cut-off date of computation of five years of service on the post of Assistant will be 1.8.2008 and what is still more significant is that even the requisition sent earlier for 114 posts by way of appointment and thus providing for reservation for different categories as in the case of appointment i.e. 50% posts for reserved category and 50% posts for unreserved category was sought to be revised in this Government decision dated 4.11.2011 by specifically mentioning that for 114 posts only the roaster of promotion instead of roaster of direct appointment shall be made applicable. The Commission accordingly by this letter dated 28 4.11.2011 was intimated that necessary corrigendum should be issued for clarifying the earlier advertisement No. 12 of 2010. Since this letter of the Government dated 4.11.2011 will have its bearing on the result of all these cases the same is also reproduced in extenso hereinbelow:
^^fcgkj ljdkj lkekU; iz'kklu foHkkx i=kad&17@la0la0¼iz0½&06@08 lk0iz0 3374 fnukad 4-11-11 izs"kd] vt; dqekj pkS/kjh ljdkj ds la;qDr lfpo lsok esa] lfpo fcgkj yksd lsok vk;ksx iVuk fo"k;& fcgkj lfpoky; lsok ds vUrxZr iz'kk[kk inkf/kdkjh ds 114 inksa ij lhfer izfr;ksfxrk ijh{kk }kjk fu;qfDr gsrq mEehnokjksa ls izkIr vH;kosnu esa mfYyf[kr vkifRr;ksa ds fujkdj.k ds lEcU/k esaA izlax& fcgkj yksd lsok vk;ksx dk foKkiu la[;k 12@2010 egk'k;] funs'kkuqlkj mi;qZDr fo"k;d vk;ksx ds i=kad 1454 fnukad 26- 08-2010 ,oa Lekj i=kad 2706 fnukad 10-01-2011 rFkk 177 fnukad 20-04-11 ds izlax esa dguk gS fd fo"k;kUrxZr izkIr lanfHkZr vkosnuksa ds vkyksd esa fcgkj lfpoky; lsok ds vUrxZr iz'kk[kk inkf/kdkjh ds 114 inksa ,oa lhfer izfr;ksfxrk ijh{kk }kjk fu;qfDr gsrq bl foHkkx ds i=kad 3852 fnukad 21-07-2009 }kjk vk;ksx dks Hksth xbZ vf/k;kpuk ,oa ml izlax esa izdkf'kr foKkiu la[;k 12@2010 ds lUnHkZ esa iz'uxr ekeys dh iqu% leh{kk dh xbZ rFkk jksLVj ds fcUnq ij fof/k foHkkx dks ek/;e ls fo}ku egkf/koDrk dks ijke'kZ izkIr fd;k x;kA mi;qZDr fof/kd ijke'kZ ,oa laxr ifji=ks@ladYiksa ls fufgr 29 izko/kkuksa ds vkyksd esa fo"k;kafdr ekeys ds lEcU/k esa fuEukafdr fu.kZ; fy;k x;k gSA ¼i½ vf/k;kfpr 114 in fnukad 01-04-008 dh fjfDr;ksa gS blfy, dkfeZd ,oa iz'kklfud lq/kkj foHkkx ds i= la0&212 fnukad 23-01-
2006 dh dafMdk&2 ,oa lasdYi Kkikad 2374 fnukad 16-07-2007 dh dafMdk&2 ,oa 4 esa fd;s x;s izko/kku ds vkyksd esa lanfHkZr foKkiu esa mEehnokjksa dh ik=rk ,oa 'kRrksaZ ds v/khu fu/kkZfjr lgk;d xzsM ls 5 ¼ikap½ o"kksZa ls vf/kd dh lsok dh x.kuk gsrq dV vkWQ MsV fnukad 01-08-208 fu/kkZfjr fd;k x;k gS vFkkZr fnukad 01-08-2008 rd lgk;d xzsM esa 5 o"kksZa dh lsok gksA ¼ii½ lhfer izfr;ksfxrk ijh{kk }kjk iz'kk[kk inkf/kdkjh ds in ij fu;qfDr esa ^^fu;qDr ds jksLVj** ds LFkku ij izksUufr dk jksLVj** ykxw gksxkA rnuqlkj vf/k;kfpr 114 inksas ds fy, la'kksf/kr vf/k;kpuk i= layXu gSA vr% vuqjks/k gS fd mi;qZDr foHkkxh; fu.kZ;kuqlkj izklafxd foKkiu la0&12@2010 ds lUnHkZ esa ;Fkk vko';d Li"Vhdj.k@'kqf} i= izdkf'kr djus dh d`ik dh tk; rFkk 'kh?kz lhfer izfr;ksfxrk ijh{kk vk;ksftr djrs gq, ijh{kkQy izdkf'kr dj fu;qfDr gsrq vuq'kalk miyC/k djkus dk d"V fd;k tk;A vuq0&;FkksDrA fo'oklHkktu g0@& ¼vt; dqekj pkS/kjh½ ljdkj ds la;qDr lfpoA** (underlining for emphasis)
23. In keeping with the aforementioned Government order dated 4.11.2011 the Commission also had issued its Corrigendum on 16.2.2012 and as the same also happens to be the bone of contention, inasmuch as the same has been assailed by the petitioners in C.W.J.C.No. 6805/2012, it is being reproduced in 30 verbatim hereinbelow:
^^fcgkj yksd lsok vk;ksx 15] tokgjyky usg: ekxZ ¼csyh jksM½ iVuk&800001 'kqf} i= fcgkj lfpoky; lsok ds vUrxZr iz'kk[kk inkf/kdkjh ds in ij lhfer izfr;ksfxrk ijh{kk }kjk fu;qfDr gsrq dkfeZd ,oa iz'kklfud lq/kku foHkkx fcgkj ljdkj ds vf/k;kpuk i=akad 3852] fnukad 31-07- 2009 }kjk 114 inksa dh vkj{k.k dksfVokj fjfDr;ksa lalqfpr dh xbZ FkhA bu inksa esa vukjf{kr ¼01½ dks 57] vuqlwfpr tkfr ¼02½ dks 18] vuqlwfpr tutkfr ¼03½ dks 01] vR;Ur fiNM+k oxZ ¼04½ dks 21] fiNM+k oxZ ¼05½ dks 14 ,oa fiNM+s oxZ dh efgyk ¼06½ dks 03 in lalqfpr fd;s x;s FksA mDr vf/k;kpuk ds vkyksd esa vk;ksx ds foKkiu la[;k&12@2010 ds v/khu lq;ksX; mEehnokjksa ls vkosnu vkeaf=r fd, x, Fks ftlesa ik=rk ,oa 'krsZa fuEu izdkj fu/kkZfjr dh xbZ FkhA ¼i½ lsok ds lgk;d xzsM esa lsok lEiq"V gksA ¼ii½ lsokdky& lgk;d xzsM esa mldh lsok 05¼ikap½ o"kksZa ls vf/kd dh gks x;h gksA lkekU; iz'kklu foHkkx fcgkj ljdkj ds i=kad 3374] fnukad 04- 11-2011 }kjk la'kksf/kr vf/k;kpuk layXu dj lwfpr fd;k x;k gS fd fcgkj lfpoky; lsok ds vUrxZr iz'kk[kk inkf/kdkjh ds 114 inksa ij lhfer izfr;ksfxrk ijh{kk }kjk fu;qfDr gsrq bl foHkkx ds i=kad 3852] fnukad 31-07-2009 }kjk vk;ksx dks Hksth xbZ vf/k;kpuk ,oa ml izlax esa izdkf'kr foKkiu la[;k 12@2010 ds lUnHkZ esa iz'uxr ekeys dh iqu% leh{kk dh xbZ rFkk jksLVj ds fcUnq ij fof/k foHkkx ds ek/;e ls fo}ku vf/koDrk dk izkIr oSf/kd ijke'kZ ,oa laxr ifji=ksa@ladYiksa esa fufgr izko/kkuksa ds vkyksd esa fo"k;kafdr ekeys ds lEcU/k esa fuEukafdr fu.kZ; fy;k x;k gS& ¼i½ vf/k;kfpr 114 in fnukad 01-04-2008 dh fjfDr;ka gSa blfy, dkfeZd ,oa iz'kklfud lq/kkj foHkkx] fcgkj ds i= la[;k&212] fnukad 23-01-2008 dh dafMdk&2 ,oe~ ladYi Kkikad 2374] fnukad 16-07- 2007 dh dafMdk&2 ,oa 4 esa fd, x, izko/kku ds vkyksd esa lanfHkZr foKkiu esa mEehnokjksa dh ik=rk ,oe~ 'krksZa ds v/khu fu/kkZfjr 31 lgk;d xzsM esa 5 ¼ikap½ o"kksZa ls vf/kd dh lsok dh x.kuk gsrq dV vkWQ MsV fnukad 01-08-2008 fu/kkZfjr fd;k x;k gS vFkkZr fnukad 01- 08-2008 rd lgk;d xzsM esa 5 o"kksZa dh lsok gksA ¼ii½ lhfer izfr;ksfxrk ijh{kk }kjk iz'kk[kk inkf/kdkjh ds in ij fu;qfDr esa ^^fu;qfDr ds jksLVj** ds LFkku ij ^^izksUufr dk jksLVj** ykxw gksxkA rnuq:i vf/k;kfpr 114 inksa ds fy, la'kksf/kr vf/k;kpuk fuEu izdkj lalwfpr dh tkrh gS& vuqlwfpr tkfr 18 in vuqlwfpr tutkfr 01 in vukjf{kr 95 in
---------------------------------- dqy 114 in rnkyksd esa vk;ksx }kjk izdkf'kr foKkiu la[;k 12@2010 esa fu/kkZfjr ik=rk ,oa foKkfir fjfDr;ksa mi;qZDr dafMdk ¼i½ ,oa ¼ii½ ds vuq:i la'kksf/kr dh tkrh gsA foKkiu dh vU; 'krsZa iwoZor jgsxhA ijh{kk fu;a=d fcgkj yksd lsok vk;ksx] iVukA**
24. Thus, it would become clear that the whole concept of advertisement No. 12 of 2010 had undergone a radical change firstly by fixing the cut-off date of 1.8.2008 for computing five years of service on the post of Assistant and secondly by now making such filling up of 20% posts of Section Officer through Limited Competitive Examination by way of promotion and not direct appointment.
25. It is actually in this background that C.W.J.C.No. 6805/2012 was filed by the petitioners of the first writ application complaining that even though there was no cut-off date in the original advertisement dated 13.5.2010 which made them qualified 32 in view of their appointment on the post of Assistant w.e.f. 2004 and the aforesaid advertisement published on 13.5.2010 itself fixing 11.6.2010 as the last date of filing of the application, they in view of the corrigendum of the commissioner dated 4.11.2011 laying cut-off date of 1.8.2008 were to be excluded. A special emphasis was put on them on the point that earlier also they were sought to be disqualified on the ground that they were not confirmed on the post of Assistant, as a result thereof they had moved this Court in C.W.J.C.No. 9085/2010 and when in terms of the interim order of this Court their applications were accepted leading to withdrawal of their aforementioned writ application, C.W.J.C.No. 9085/2010 they could not be disqualified now on a new ground i.e. on the basis of cut-off date of 1.8.2008. This Court on 30.4.2012 in C.W.J.C. No. 6805/2012 had passed an interim order permitting them to appear in the examination and also has given them liberty to mention the matter for out of turn hearing after the results were published, as would be evident from an extract of the order dated 30.4.2012 (Annexure 11) which reads as follows:
" Heard learned counsel for the petitioners, the State and the Bihar Public Service Commission (hereinafter referred to as the „Commission‟).
The petitioners are stated to be Secretariat Assistants appointed on 14.7.2004. They desire to appear at the 33 limited competitive examination to be conducted by the Commission under Advertisement No. 12/2010 for promotion to the post of Section officer. They are aggrieved by the order dated 4.11.2011 which fixes a cut off date of 1.8.2008 for completion of five years of service rendering a person eligible to appear at the examination.
It is submitted that the Advertisement published on 13.5.2010 only stated that a candidate must have completed five years of service in the Assistant cadre. The petitioners came to the Court earlier in C.W.J.C.No. 9085 of 2010 with a grievance that the probation was not being confirmed depriving them the opportunity to be considered under the Advertisement. Subsequently, confirmation came to be done. They have been issued acknowledgement cards. The cut off date has subsequently been fixed arbitrarily and has no nexus.
The Bihar Secretariat Service (Promotion form Assistant by Limited Competitive Examination) Rules, 2009 provided that the period of probation could not to be counted for computing the period of five years. Subsequently, by notification dated 9.12.2009, it has been deleted and the entire period of service in the Assistant cadre has to be taken into consideration for calculating the five years period. The petitioners claim to fulfill that requirement. The impugned order on the face of it does not specify any criteria for fixation of the cut off date. The assertion is that it has been done to deprive the petitioners of the benefit of the order in C.W.J.C.No. 9085 of 2010.34
Let the State serve and file counter affidavit within six weeks. Rejoinder, if any, may be filed one week thereafter.
The petitioners and others similarly situated in the meantime are permitted to appear at the examination. After the general results are published liberty is given to mention the matter for out of turn hearing."
26. Pursuant to the aforementioned order of this Court the State Government by its letter dated 29.6.2012 had communicated its decision to the Commission basically relying on an opinion given by the learned Advocate General that the computation of five years service for Advertisement No. 12 of 2010 dated 10.6.2010 would be the last date of filing of the application and to that extent it would be relevant to quote the Government decision dated 29.6.2012 which has been assailed in C.W.J.C.No. 18870/2012, which reads as follows:
^^la0la0&17@la0la0¼iz0½&06@2008 lk0iz0 9371@ fcgkj ljdkj lkekU; iz'kklu foHkkx izs"kd] vt; dqekj pkS/kjh] ljdkj ds la;qDr lfpo lsok esa] ijh{kk fu;a=d fcgkj yksd lsok vk;ksx] iVukA fo"k;& fcgkj lfpoky; lsok ds vUrxZr iz'kk[kk inkf/kkdjh ¼foKkiu la0&12@2010½ ds 114 inksa ij fu;qfDr ds laca/k esaA 35 izlax& fcgkj yksd lsok vk;ksx ds i=kad 293 fnukad 16-05-2012 ,oa 548 fnukad 07-06-2012 rFkk i=kad 585 fnukad 12-0-2012- egk'k;] funs'kkuqlkj mi;qZDr fo"k;d vk;ksx ds izlaxof.kZr i=ksa ds lanHkZ esa dguk gS fd foKkiu la0&12@2010 ds lanHkZ esa foHkkxh; i=kad 3374 fnukad 04-11-2011 }kjk mEehnokjksa dh ik=rk ,oa 'krksZa ds v/khu visf{kr lgk;d xasM esa ikap o"kksZa ls vf/kd dh lsok dh x.kuk gsrq dV&vkWQ&MsV fnukad 01-08-2008 fu/kkZfjr djus dk ijke'kZ lalwfpr fd;k x;k FkkA rn~uqlkj vk;ksx }kjk foKkiu la0 12@2010 ds lanHkZ esa izdkf'kr 'kqf} i= ds fo:n~/k ekuuh; iVuk mPp U;k;ky; esa nk;j lh0MCyw0ts0lh0 la0&6805@2012 /keZohj izlkn ,oa vU; ouke fcgkj jkT; ,oa vU; ekeys esa ekuuh; mPp U;k;ky; }kjk fnukad 30-04-2012 dks ikfjr varfje U;k;kns'k ds vkyksd esa vk;ksx ds izlaxof.kZr i= }kjk vxzsrj dkjZokbZ gsrq iqu% ijke'kZ dh vis{kk dh x;h gSA lkFk gh iz'uxr ekeys esa dfri; mEehnokjksa }kjk dV&vkWQ&MsV ds iqufuZ/kkj.k ij iqufoZpkj dk lkewfgd vH;kosnu Hkh lefiZr fd;k x;k gSA mDr ifjizs{; esa iz'uxr fcUnq ij fof/k foHkkx ds e/;e ls fo}ku egkf/koDrk] fcgkj dk ijke'kZ izkIr fd;k x;kA fo}ku egkf/koDrk }kjk vius ijke'kZ esa ekuuh; loksZPp U;k;ky; }kjk dfri; oknksa esa ikfjr U;k;kns'k dk mYys[k fuEu:is.k fd;k x;k gSA& "A 3 Judge Bench of the Hon'ble Supreme Court of India vide judgment dated 10.03.1997 passed in Review Petitions(c) Nos. 600-601 of 1993 (Ashok Kumar Sharma & others Vs. Chander Shekhar & another) which is reported in (1997) 4 SCC 18 held in paragraph no. 6 of the said judgment that the proposition that where applications are called for prescribing a particular date as the last date for filling the applications, the eligibility of the candidates shall 36 have to be judged with reference to that date and that date alone, is a well established one. The Hon'ble Supreme Court further observed that an advertisement or notification issued/published calling for applications constitutes a representation to the Public and the authority issuing it is bound by such representation. It cannot act contrary to it. Similarly, in the case of Dr. M.V. Nair vs. The Union of India reported in JT 1993 (1) SC 225 it was observed by the Hon'ble Supreme Court that it is well settled that suitability and eligibility has to be considered with reference to the last date for receiving the applications, unless of course, the notification calling for applications itself specifies such a date. The same view has been upheld by a Division Bench of Hon'ble Patna High Court in the case of Dr. Ranbir Prasad Singh Vs. The State of Bihar & others reported in 2000(3) PLJR 618 (vide paragraph no. 45 of the said judgment)"
mDr ifjizs{; esa fo}ku egkf/koDrk dk ijke'kZ gS fd "In my considered opinion, since no specific cut off date was mentioned in Advertisement No. 12/2010 and persons claiming eligibility upon the last date fixed for submitting applications (11.06.2010) have applied, those who have acquired eligibility requirements upto 11.06.2010 should be considered to be eligible." Li"Vr% fo}ku egkf/koDrk ds ijke'kZ dk vk/kkj foKkiu la0&12@2010 esa iakp o"kZ dh lsok dh x.kuk gsrq fdlh Li"V dV&vkWQ&MsV dk mYys[k ugha fd;k tkuk ek= gSA mDr ifjizs{; esa lE;d fopkjksijkUr foHkkx }kjk ;g fu.kZ; fy;k x;k fd& ¼i½ foKkiu la0 12@2010 ds lnHkZ esa vkosnu i= lefiZr 37 djus dh vafre frfFk 11-06-2010 dks lgk;d xzsM esa 5 o"kksZa dh lsok vof/k dh x.kuk gsrq dV&vkWQ MsV fu/kkZfjr fd;k tkrk gSA ¼ii½ foKkiu la0 04@2012 ds fy, 5 o"kksZa dh lsok vof/k dh x.kuk gsrq dV&vkWQ MsV iwoZ fu/kkZfjr frfFk 01-08-2011 gh jgsxhA Hkfo"; esa iqu% vf/k;kpuk Hkstrs le; gh dV&vkWQ&MsV fu/kkZfjr dj foKkfir djus gsrq vk;ksx dks Hkstk tk,xkA vr,o foHkkxh; i=kad 3374 fnukad 04-11-2011 }kjk lalqfpr ijke'kZ dks mDr gn rd la'kksf/kr le>kk tk; rFkk rnuqlkj visf{kr 'kqf} i= izdkf'kr dj@vko';d dkjZokbZ lEiUu dj ijh{kk vk;ksftr djkrs gq, vuq'kalk miyC/k djkus dh d`ik dh tk;A fo'oklHkktu g0@& 29-6-12 ¼vt; dqekj pkS/kjh½ ljdkj ds la;qDr lfpo** (underlining for emphasis)
27. It has to be also kept in mind that the Commission in view of the aforementioned revised clarification of the State Government had issued its second Corrigendum on 14.7.2012 wherein the cut-off date for computation of five years service was taken to be the last date of filing of the application under Advertisement No. 12 of 2010 i.e. 11.8.2010, as would be more apparent from the extract of the aforementioned second Corrigendum issued by the Commission, which reads as follows:
^^fcgkj yksd lsok vk;ksx iVuk tokgj yky usg: ekxZ iVuk f}rh; 'kqf} i=
------------------------------------------ fcgkj yksd lsok vk;ks ds vUrxZr iz'kk[kk inkf/kdkjh ds in ij lhfer izfr;ksfxrk ijh{kk fcgkj yksd lsok vk;ksx iz'kklfud lq/kkj foHkkx fcgkj ljdkj dh vf/k;kpuk i=kad 3852 fnukad 31-7-2009 ds }kjk 114 inksa dh vkj{k.k dksfVokj fjfDr;ka lalwfpr dh xbZ FkhA 38 mDr vf/k;kpuk ds vkyksd esa vk;ksx ds foKkiu la[;k 12@2010 ds v/khu lq;ksX; mEehnokjksa ls vkosnu vkeaf=r fd;s x, Fks ftuesa ik=-rk ,oa 'krsZa fuEu izdkj fu/kkZfjr dh x;h FkhA ¼i½ lsok ds lgk;d xzsM eas LeIq"V gksA ¼ii½ lsokdky& lgk;d xazsM esa mldh lsok 05¼ikap½ o"kksZa ls v/kd dh gks x;h gksA iqu% lkekU; iz'kklu foHkkx fcgkj ljdkj ds la'kksf/kr vf/k;kpuk i=kad 3374 fnukad 0411-2011 }kjk foKkiu la[;k 12@2010 ds lanHkZ esa mEehnokjksa dh ik=rk ,oa lsok 'krksZa ds v/khu visf{kr lgk;d xzsM esa ikap o"kksZa ls vf/kd dh lsok dh x.kuk gsrq dV&vkWQ&MsV fnukad 01-08-2008 fu/kkZfjr djus dk ijke'kZ lalwfpr fd;k x;k FkkA rnuqlkj vk;ksx }kjk foKkiu la[;k 12@2010 ds lanHkZ esa fnukad 16-02-2012 dks nSfud lekpkj i=kasa esa izdkf'kr 'kqf} i= esa foHkkxh; i=kad 3374 fnukad 04-11-2011 dh dafMdk ¼i½ ,oa ¼ii½ esa ik=rk ,oa foKkfir fjfDRk;ksa ds laca/k esa fu/kkZfjr foHkkx ds fu.kZ; dks izdkf'kr fd;k x;k FkkA mDr foHkkxh; fu.kZ; ds vkyksd esa vk;ksx }kjk izdkf'kr 'kqf} i= esa mEehnokjksa dh ik=rk ,oe~ 'kRrksZa ds v/khu fu/kkZfjr lgk;d xzsM esa 5 o"kksZa ls vf/kd dh lsok dh x.kuk gsrq dV&vkWQ&MsV fnukad 01-08-2008 ds fo:n~/k ekuuh; mPp U;k;ky;] iVuk esa nk;j lh0MCyw0ts0lh0 la0 6805@2012] /keZohj izlkn ,oa vU; ouke jkT; ljdkj ,oa vU; ekeys esa ekuuh; mPp U;k;ky;] iVuk }kjk fnukad 30-04-2012 dks ikfjr varfje U;k;ksn'k ds vkyksd esa vk;ksx ds i=kad 293 fnukad 16-05-2012 }kjk vxzrj dkjZokbZ gsrq foHkkx ds fu.kZ; dh vis{kk dh xbZ FkhA bl laca/k esa lkekU; iz'kklu foHkkx] fcgkj ljdkj ds i=kad 9371 fnukad 29-06-2012 }kjk lwfpr fd;k x;k gS fd iz'uxr fcUnw ij fof/k foHkkx ds ek/;e ls fo}ku egkf/koDrk] fcgkj dk ijke'kZ izkIr fd;k x;kA mDr ifjizs{; ds laca/k esa iz'uxr fcUnq ij izkIr ijke'kZ ds vk/kkj ij lE;d~ fopkjksijkUr foHkkx }kjk ;g fu.kZ; fy;k x;k gS fd& ¼i½ foKkiu la0&12@2010 ds lanHkZ esa vkosnu i= lefiZr djus dh vafre frfFk 11-06-2010 dks lgk;d xzsM esa 5 o"kksZa dh lsok vof/k dh x.kuk gsrq dV&vkWQ&MsV fu/kkZfjr fd;k tkrk 39 gSA ^^vr,o foHkkxh; i=akad 3374 fnukad 04-11-2011 }kjk lalwfpr ijke'kZ dks mDr gn rd la'kksf/kr le>k tk; rFkk rnuqlkj visf{kr 'kqf} i= izdkf'kr dj vko';d dkjZokbZ lEiUu dh tk;A** rnkyksd esa vk;ksx }kjk izdkf'kr 'kqf} i= esa foKkiu la[;k 12@2010 ds lanHkZ esa fu/kkZfjr ik=rk mi;qZDr dafMdk ¼i½ ds vuq:i la'kksf/kr dh tkrh gSA foKkiu@iwoZ izdkf'kr 'kqf} i= dh vU; 'krsZa iwoZor jgsxhA ijh{kk fu;a=d fcgkj yksd lsok vk;ksx iVukA** (underlining for emphasis)
28. Issuance of the aforementioned Government decision and the consequential second Corrigendum by the Commission which in turn led to inclusion of the petitioners in C.W.J.C.No. 6805/2012 as eligible Assistants for appearing in the examination became an issue for those eligible Assistants including the petitioners of rest of the three writ petitions herein, who had in fact completed their five years period of service as an Assistant upto 1.8.2008 and did not want inclusion of anyone else who had not completed five years of service as Assistant upto 1.8.2008. They having exhausted the internal remedy by way of filing of their reprersentation and not getting adequate response had filed these four writ petitions. According to these petitioners, the interim order passed in C.W.J.C.No. 6805/2012 merely allowing the petitioners of those cases to appear in the 40 examination should not have led to changing cut-off date from 1.8.2008 to 11.6.2010, inasmuch as nothing was conclusively decided by this Court in the said order dated 30.4.2012. According to the petitioners of these four writ applications whatever opinion has been given by the learned Advocate General on a reference made by the State Government after passing of the interim order by this Court cannot bind them and in support of their such plea they have cited the example of second requisition sent by the State Government for filling up 36 posts of Section Officer by way of second Limited Competitive Examination wherein on the basis of requisition sent on 5.1.2012 the cut-off date of 1.8.2011 was fixed keeping in view of the vacancies which had accumulated upto 1.4.2011. Thus, the petitioners of these four writ applications have alleged disparity and discrimination in the matter of fixation of cut-off date and according to them, as the Rules contemplate filling up the vacant post of the particular year and the requisition for the first Limited Competitive Examination was sent by including the vacancies only upto 1.4.2008 no date other than 1.8.2008 should be the cut-off date for filling up 114 posts of Section Officer by way of first Limited Competitive Examination.
29. In this case (C.W.J.C.No. 18870/2012) a counter affidavit has been filed by the Commission wherein it has virtually surrendered its authority regarding determination of eligibility as 41 has been vested to it under Clause 4(3) by placing reliance on different communications of the State Government from time to time which has already been noticed in the earlier portion of this judgment. The Commission has also taken a stand that the examination has already been held on 1.9.2012 in which the petitioners of C.W.J.C.No. 6805/2012 alongwith the petitioners of these four cases and others were allowed to appear provisionally. What is however very significant to note here is that the Commission in paragraph no.23 of the counter affidavit has taken its clear stand that the Commission has to act as per the provisions laid down by the State Government in its requisition/ revised requisition/ Regulation and accordingly the Commission has also followed them for determining the eligibility of the candidates for the Limited Competitive Examination. How far this stand of the Commission is justified in view of Clause 4(3) of the Regulation will also be required to be gone into by this Court, inasmuch as the Regulation 4(3) in itself gives complete authority to the Commission alone to decide the eligibility and reads as follows:
"Determination of Eligibility- The Commission shall decide as to the eligibility of candidate for admission to this examination and the decision of the Commission will be final. Only such candidate may appear in the examination whose admit card shall be issued by the Commission for this purpose."42
30. In C.W.J.C.No. 18870/2012, Dharamvir Prasad has been added as respondent no.7 in representative capacity, who is also petitioner no.1 in C.W.J.C.No. 6805/2012 and he has filed his exhaustive counter affidavit wherein he has explained that he and others are successful candidates of the direct Competitive Examination held by the BPSC in terms of Advertisement No. 22 of 1999 for the post of Secretariat Assistant and were appointed on a lower post of Lower Division Clerk in view of merger of the post of Assistant under Finance Department Resolution No. 8826 dated 20.12.2000 and thus, even if their appointment was made on the post of LDC the same was against a sanctioned and vacant post of Assistant and ultimately their order of appointment on the post of LDC was amended on 12.9.2006 wherein their appointment was sought to be made on the post of Assistant from the date they had joined as LDC. He has also referred to an order dated 4.11.2006 wherein the Government in the Personnel and Administrative Reforms Department had clearly pronounced that all the 166 candidates appointed in terms of Advertisement No.22 of 1999 on the recommendation of the Commission as Lower Division Clerk against the vacant post of Assistant would be deemed to have been appointed as Assistant from the date of their joining as Lower Division Clerk and to that extent he relies on the following portion of the order dated 4.11.2006 which for the sake 43 of clarity is quoted hereinbelow:
^^fcgkj ljdkj] dkfeZd ,oa iz'kklfud lq/kkj foHkkx dk;kZy; vkns'k dk0 vk0 la0&15@la0la0&01&06@05 dk0 3090@iVuk] fnukad 4-11-06 ekuuh; mPp U;k;ky;] iVuk }kjk ,y0ih0,0 la0&109@2002 eas fnukad 10-05-2002 dks ikfjr vkns'k ,oa foRr foHkkx ds ifji= la0&8826 fnukad 20-12-2000 esa fufgr izko/kkuksa ds vkyksd esa fcgkj yksd lsok vk;ksx ds foKkiu la[;k&22@99 dh layXu lwph ds lQy ,oa vuq'kaflr mEehnokjksa dks muds uke ds lkeus dkWye&6 esa vafdr vkns'k lgk;d la;qDr laoxZ ds vUrxZr lgk;d ds fjDr inksa ds fo:n~/k fuEuoxhZ; fyfid ds in ij osrueku 3050&75&3950&80&4590 esa fu;qDr djrs gq, muds uke ds lkeus dkWye&8 eas vafdr frfFk ls ;ksxnku Lohd`r fd;k x;k gS ,oa dkWye&9 esa vafdr foHkkx esa inLFkkfir fd;k x;k gSA dfri; fuEuoxhZ; fyfid LFkkukUrj.k ds QyLo:i oRrZeku esa muds uke ds lkeus dkWye&10 esa vafdr foHkkx esa inLFkkfir gSA 2- lgk;d in dh fjfDr;ksa dh vf/k;kpuk ds fo:n~/k lgk;d ds in ,oa osrueku esa fu;qfDr gsrq ewyr% vuq'kaflr foKkiu la[;k 22@99 ds mDr uofu;qDr fuEuoxhZ; fyfidksa ¼lgk;d ds fjDr inksa ds fo:n~/k½ dh vf/k;kpuk] foKkiu ,oa ewy vuq'kalk ds vuq:i lgk;d ds in ,oa osrueku esa fu;qfDr dk ekeyk ljdkj ds le{k fopkjk/khu FkkA 3- foRr foHkkx ,oa fof/k foHkkx dh lgefr ls foKkiu la[;k&22@99 ds mDr mEehnokjksa] ftudh fu;qfDr fofHkUu U;k;kns'kksa@la'kksf/kr vuq'kalk ds vk/kkj ij foRr foHkkx ds ifji= la0&8826 fnukad 20-12-2000 ds vkyksd esa lgk;d la;qDr laoxZ ds vUrxZr lgk;d ds fjDr inksa ds fo:n~/k fuEuoxhZ; fyfid ds in ij dh x;h gS] mUgsa rRdkyhu izHkko ls ,d leO;ogkj esa lgk;d ds in ij fu;qDr fd;s tkus vkSj foRr foHkkx ds ifji= la[;k&8826 fnukad 20-12-2000 dks bl gn rd f'kfFky fd;s tkus dk fu.kZ; dkfeZd ,oa iz'kklfud lq/kkj foHkkx ds vkns'k Kkikad 2595 fnukad 12-09-2006 }kjk lalwfpr fd;k x;k gSA 44 4- rnuqlkj foKkiu la[;k 22@99 ds mDr 166 vH;fFkZ;ksa dk lgk;d la;qDr laoxZ ds vUrxZr lgk;d ds fjDr inksa ds fo:n~/k fuEuoxhZ; fyfid ds in ij osrueku 3050&75&3950&80&4590 esa dh x;h fu;qfDr laca/kh dkWye&6 esa vafdr vkns'kksa dks vkaf'kd :i ls la'kksf/kr djrs gq, muds uke ds lkeus dkWye&8 esa vafdr ;ksxnku dh frfFk ls gh ijh{;eku :i ls lgk;d ds in ij osrueku 5500&175&9000 esa fu;qDr fd;k tkrk gS mDr fu;qfDr vkns'kksa dh 'ks"k 'kRrsZa ;Fkkor jgsxhA g0@& ¼jfodkUr½ ljdkj ds lfpoA Kkikad 15@la0l0&01&06@05 dk0 3090@iVuk] 15] fnukad 4-11-06**
31. Respondent no.7 Dharamvir Prasad has also explained in his counter affidavit that he alongwith others had already been confirmed on the post of Assistant by an order dated 9.6.2010 showing his date of appointment as an Assistant on probation with effect from 22.7.2004 and the confirmation with effect from 22.7.2006.
32. According to respondent no.7 he and others including the other petitioners of C.W.J.C.No. 6805/2012 having been thus made Assistant with effect from their first date of appointment i.e. 22.7.2004 and also completed five years of service were eligible for appearing in the Limited Competitive Examination for the post of Section Officer especially when their names were already included in the combined gradation list. Respondent no.7 has also relied on an order of this Court dated 45 2.1.2013 in C.W.J.C.No. 15751/2012 to support himself that when four of the petitioners of that writ application despite their being allocated to State of Jharkhand provisionally and had ultimately been taken back in the State of Bihar were held to be eligible for the post of Section Officer, the petitioners cannot be denied the same benefit as they too had completed the period of five years.
33. Let it be noted that a counter affidavit was filed by the State of Bihar only on 4.4.2013 wherein the fact relating to 114 posts of Section Officer sought to be filled up by way of first Limited Competitive Examination has not been controverted and in fact in paragraph no.8 of the counter affidavit it has been categorically stated that cut-off date of 1.8.2008 was fixed on the basis of such vacancies existing as on 1.4.2008. To that extent it would be also useful to quote paragraph no.8 of the counter affidavit of the State which reads as follows:
"8.That the said representations were examined by the department and legal opinion regarding roaster point was also obtained. Para 3(4) of resolution no. 2374 dated 16.7.2007 and circular no. 212 dated 23.1.2006 provide that vacancies are to be calculated as on 1st April of the year and cut off date for determination of age/ eligibility will be 1st August of that very year. Finally it was decided that (i) cut off date for determination of continuous service for five years will be 1.8.2008, as 114 vacancies were on 1.4.2008.
(ii) Roaster for the said limited examination will be 46 „roaster for promotion‟ instead of „roaster for appointment‟.
The said decision of the department was communicated to BPSC vide letter no. 3374 dated 4.11.2011 of this department and it was requested to issue necessary explanation/ corrigendum in context of advertisement no. 12/2010. Accordingly BPSC published corrigendum in leading newspapers."
34. In the said counter affidavit of the State the reason for shifting cut-off date from 1.8.2008 to 11.6.2010 has been disclosed to be the interim order passed by this Court in C.W.J.C.No. 6805/2012 and consequential query of the Commission whereafter the matter was referred to the learned Advocate General for his opinion and in paragraph no.12 of the counter affidavit the reason for the aforesaid change of cut-off date has been given as follows:
"12.That taking into consideration the representation submitted, the legal opinion as well as the fact that cut off date 1.8.2008 was not communicated either in main requisition or advertisement no.12/2010, it was finally decided that cut off date for determination of five years of continuous service as Assistant will remain the last date of submission of application form in advertisement no. 12/2010 i.e. 11.6.2010 for advertisement no. 12/2010 only. It was also decided that in future requisition, cut off date for the same will be predetermination and communicated to BPSC in requisition itself."47
(underlinnig for emphasis)
35. In view of aforesaid wholly unsatisfactory counter affidavit of the State, this Court on 10.4.2013 had directed the State Government to clarify its stand and the order of this Court dated 10.4.2013 is reproduced in this regard reads as follows:
" Heard counsel for the parties.
Mr. Anjani Kumar, learned AAGX while replying the submissions of learned counsel for the petitioners has taken a stand that 20 per cent internal recruitment on the post of Section Officer is by way of promotion and therefore, the roster of promotion meaning thereby the roster quota for general candidates, SC and ST will only be made applicable and to that extent he has supported the second corrigendum issued by the Commission in relation to the advertisement in question. He has further submitted that the cut-off date will be invariably 1st of April for ascertaining the vacancies and since the post were sought to be advertised for 20 per cent internal recruitment by promotion the vacancies upto 1.4.2008 were only taken into account he, however, in absence of a clear affidavit is not in a position to take any firm stand on this issue as to whether:-
(i) What would be the impact of Rule 10(1) of Bihar Sachivalaya Sewa Sart Niyamawali- 2010 which reads as follows:-
" The promotion to the different grades in the service shall be admissible from the date of vacancy of the post of concerned grade."48
Therefore, in other words if the vacancies upto 1.4.2008 only were taken into account while advertising the post of Section Officer of 20 per cent internal recruitment, how could there be a cut-off date for eligibility could be beyond 1.8.2008 as was prescribed by the Government in the first corrigendum in its letter no. 3374 dated 4.11.2011. There is in fact no answer to this aspect in the affidavit filed by the Government and therefore, the Principal Secretary of the General Administrative Reforms Department himself must swear an affidavit as to whether in view of Rule 10 as quoted above the persons who have become qualified after the first cut-off date suggested in the aforementioned letter dated 4.11.2011 could be eligible and if so, why?
(ii) The second corrigendum issued by the Government letter no. 9371 dated 29.6.2012 neither stipulates the 20 per cent of the internal recruitment on the post of Section Officer to be way of promotion and the cut-off date is being referred to either on the basis of opinion of learned Advocate General or on the basis of date of application i.e. 11.6.2010. If this second corrigendum has to be applied how would Rule 10 be made applicable and whether a person who was not qualified as on 1.8.2008 having been allowed to appear in the limited departmental examination will be given promotion w.e.f. the date of vacancy i.e. 1.4.2008? The Principal Secretary of General Administration Department also must address as with regard to the other aspect namely their being any Government instruction even by way of circular which lays down 49 that internal recruitment based on competitive examination is promotion and not appointment so as to totally eliminate the provision of Section 4 of Bihar Reservation of Vacancies in Posts and Services for SC, ST and other Backward Classes Act 1991.
List this case after three weeks as prayed for by Mr. Anjani Kumar, AAGX under the heading „Admission- II‟."
36. In compliance of the aforementioned order the respondent Principal Secretary of the Department of General Administration of the Govt. of Bihar has filed his supplementary counter affidavit in C.W.J.C.No. 21906/2012, wherein while answering the query of this Court in the order dated 10.4.2013 it has been stated as follows:
"8. That thus at this juncture it is very firmed view of the respondent department that Rule 10(1) of Bihar Secretariat Service Rule, 2010 should be applicable in the instant case, cut-off date should be fixed according to provision of resolution no. 2374 dated 16.7.2007 and the candidate, who have become qualified after 1.4.2008, would not be eligible for the appearing against the advertisement no. 12 of 2010 and would not be given promotion w.e.f. the date of vacancies i.e. 1.4.2008.
9. That it is relevant to mention here that an advice on roster point from the State Commission for backward Classes has also been received in this department. The Commission has advised to the Government that the result of limited competition examination held under 50 advertisement no. 12 of 2010 make publish following the roster for appointment instead of roster for promotion.
In above context, the whole matter was thread ware discussed and reconsidered. After careful consideration the State Government has reached on a very concrete view and decided that,
i) The cut-off date fixed for the advertisement no.12 of 2010 vide this department letter no. 9371 dated 29.6.2012 whereby and whereunder cut-off date for counting five years service was 11.6.2010 was fixed, hereby quashed and finally cut-off dated 1.8.2008 for counting five years continuous service has been fixed which is communicated earlier vide this department letter no. 3374 dated 4.11.2011.
ii) For Advertisement No. 12 of 2010 the Government has accepted the recommendation of Commission for backward Classes. It is decided that roster for appointment is to be adopted in the instant matter instead of roster for promotion which is communicated earlier vide this department letter no. 3852 dated 31.7.2009."
37. In the said counter affidavit the respondents have also enclosed a copy of its decision communicated to the Bihar Public Service Commission contained in its letter no. 9897 dated 27.6.2013 which reads as follows:
^^fcgkj ljdkj lkekU; iz'kklu foHkkx i=kad&17@la0la0¼iz0½&06@2008 lk0 iz0 9807 iVuk fnukad 27-6-13 izs"kd] 51 of'k"B flag ljdkj ds la;qDr lfpo lsok eas] lfpo] fcgkj yksd lsok vk;ksx csyh jksM iVukA fo"k;& fcgkj lfpoky; lsok ds vUrxZr iz'kk[kk inkf/kkdjh ¼foKkiu la0&12@2010½ ds 114 inksa ij fu;qfDr ds lEc/k esaA izlax& foHkkxh; i=kad 3852 fnukad 31-07-2009 i=kad 3374 fnukad 01-11-2011 ,oa i=kad 9371 fnukad 29-06-2012 egk'k;] funs'kkuqlkj mi;qZDr fo"k;d izlaxof.kZr foHkkxh; i=ksa ds lUnHkZ esa dguk gS fd fcgkj lfpoky; lsok ds vUrxZr iz'kk[kk inkf/kdkjh ds 114 inksa ij lhfer izfr;ksfxrk ijh{kk ds ek/;e ls fu;qfDr gsrq fcgkj yksd lsok vk;ksx ds foKku la0&12@2010 ds rgr vk;ksftr ijh{kk ds lUnHkZ esa ekuuh; mPp U;k;ky; iVuk esa nk;j lh0MCyw0ts0lh0 la0 6805@2012 /keZohj izlkn ,oa vU; lh0MCys0ts0lh0 la0&18870@2012 vo/ks'k uUnu flUgk ,oa vU;] lh0MCyw0ts0lh0 la0&19670@2012 foHkk"k pUnz xqIrk ,oa lh0MCyw0ts0lh0 la0&21906@2012 eks0 eqrZtk cuke fcgkj jkT; ,oa vU; esa lesfdr :i ls fnukad 10-042013 dks lquokbZ djrs gq, ekuuh; U;k;ky; us ik=rk fu/kkZj.k gsrq dV&vkWQ&MsV ds fcUnq ,oa jksLVj ds lEcU/k esa foHkkxh; earO; Li"V djrs gq, iz/kku lfpo] lkekU; iz'kklu foHkkx dks izfr'kiFk i= nk;j djus dk funs'k fn;k x;k gSA KkrO; gS fd iz'uxr lhfer izfr;ksfxrk ijh{kk esa jksLVj@vkj{k.k ds fcUnw ij dfri; vkosndksa }kjk fiNM+s oxksaZ ds fy, jkT; vk;ksx dks lefiZr vH;kosnu ds vkyksd esa fiNM+s oxksZa ds fy, jkT; vk;ksx }kjk jkT; ljdkj dks ;g lykg nh xbZ gS fd ^^lkekU; iz'kklu foHkkx ds i=kad 3374 fnukad 04-11-2011 }kjk la'kksf/kr vf/k;kpuk dks fujLr djrs gq, mlds iwoZ ds i=kad 3852 fnukad 31-07-2009 esa dh xbZ vf/k;kpuk ds vk/kkj ij foKkiu la0 12@2010 ds vkyksd esa vk;ksftr lhfer izfr;ksfxrk ijh{kk dk ijh{kkQy fu;qfDr dk jksLVj dks vuqikyu djrs gq, 52 izdkf'kr fd;k tk;A** mi;qZDr ifjizs{; esa iz'uxr ekeys ij lE;d~ fopkjksijkUr jkT; ljdkj }kjk fuEu fu.kZ; fy;k x;k gS& ¼i½ foKkiu la0&12@2010 ds lUnHkZ esa foHkkxh; i=kad 9371 fnukad 29-06-2012 }kjk lgk;d xzsM esa 5 o"kksZa dh lsok vof/k dh x.kuk gsrq iquZfu/kkZfjr dV&vkWWQ&MsV 11-06-2010 dks fujLr fd;k tkrk gS rFkk iwoZ izsf"kr foHkkxh; i=kad 3374 fnukad 04-11-2011 }kjk lalwfpr dV&vkWWQ&MsV 11-08-2008 fu/kkZfjr fd;k tkrk gSA ¼ii½ foKkiu la0&12@2010 ds lUnHkZ esa foHkkxh; i=kad 3374 fnukad 04-112011 }kjk izsf"kr ^izksUufr dk jksLVj* ls lacaf/kr vf/k;kpuk dks fiNM+s oxksZa ds fy, jkT; vk;ksx dh vuq'kalk ds vkyksd esa fujLr fd;k tkrk gS rFkk iwoZ izsf"kr foHkkxh; i=kad 3852 fnukad 31-07-2009 esa dh xbZ vf/k;kpuk ds vuqlkj xfBr ^^fu;qfDr dk jksLVj** ykxw fd;k tkrk gSA vr,o mDr ds vkyksd esa vuqjks/k gS fd foKkiu la0&12@2010 ds lUnHkZ esa ;Fkkfu/kkZfjr dV&vkWWQ&MsV 01-08-2008 dks ik=rk j[kus okys rFkk iwoZ esa foHkkxh; i=kad 3852 fnukad 31- 07-2009 }kjk izsf"kr ewy vf/k;kpuk ds vuqlkj ^^fu;qfDr dk jksLVj** dk vuqikyu djrs gq, ijh{kk esa lQy mEehnokjksa dk ijh{kk Qy izdkf'kr fd;k tk; ,oa rnuq:i vuq'kalk Hksth tk;A fo'oklHkktu g0@& 27@6@13 ¼cf'k"B flag½ ljdkj ds la;qDr lfpoA** (underlining for emphasis)
38. Thus, the State Government now has taken a unique decision firstly to stick to the cut-off date of 1.8.2008 as per decision dated 4.11.2011 by giving up its later decision dated 29.6.2012 and reverse its stand on application for roaster of direct 53 appointment as per its original requisition dated 31.7.2009 and not that of promotion as incorporated in its decision dated 4.11.2011.
This in effect would mean that the State Government has again made a complete departure and reversed its decision both in respect of cut-off date as also manner of roaster for filling up 114 posts of Section Officer.
39. In the considered opinion of this Court infact if the manner of filling up 20% post of Section Officer from amongst the Assistant is by way of direct recruitment for the purposes of roaster, the cut-off date cannot be any other date other than that of the advertisement when such posts were advertised for their being filled up i.e. 13.5.2010. If on the other hand they are to be filled up only by way of promotion by holding Limited Competitive Examination, the roaster of direct recruitment cannot be made applicable. There cannot be a mixture of the two as has been sought to be done in the latest decision of the State Government dated 27.6.2013 (Annexure-B to the supplementary counter affidavit).
40. As noted above, there is no dearth of material to show that the vacancies only upto 1.4.2008 were taken into consideration for their being filled up by way of Limited Competitive Examination. In the Act the word „appointment‟ and „promotion‟ have been clearly understood, inasmuch as in Section 54 14 it has been clearly mentioned that 80% posts of Section Officer shall be filled up by promotion from the grade of Assistant on the recommendation of the Departmental Promotion Committee. The remaining 20% posts under section 14(i)(b) was to be filled up through a Limited Competitive Examination to be conducted by the Commission. All these provisions, however, are clearly referable to Section 13 of the Act where promotion in contra distinction to appointment has to be decided on the basis of recommendation of the Departmental Promotion Committee, whereas Section 14 talks of appointment to the grade of Section Officer in which 80% had to be filled up by way of promotion and 20% through Limited Competitive Examination. The Framers of the Act wherever they had intended to make concept of direct recruitment have specifically mentioned it as would be apparent from reading of Section 9 where while laying down the provision for appointment on the post of Assistant, 75% posts were reserved by way of direct recruitment and 25% by way of promotion from the Upper Division Clerk.
41. Thus, on a clear reading of Sections 9, 13 and 14 there would be no difficulty in holding that the entire strength of the post of Section Officer has to be filled up by way of promotion, 80% of them on the basis of seniority cum suitability to be decided by the Departmental Promotion Committee and 20% 55 by way of accelerated promotion on the basis of Limited Competitive Examination to be conducted by the Commission. This becomes more clear from reading of the Rules wherein under Rule 10 it has been specifically provided that the promotion in different grade of service shall be given from the date of vacancy and under Rule 11 it has also been clarified that while 80% of the post shall be filled up by way of promotion on the recommendation of the Departmental Promotion Committee, 20% of post shall be filled up through the Limited Competitive Examination. Thus, the word „promotion/ appointment‟ used under Rule 11 or for that purpose the inter se seniority between the Sections Officers appointed in the 20% quota on the basis of limited departmental examination being senior to the promoted Section Officer in 80% quota from the Assistant in a particular year as per Rule 15(3)(ii) will only go to show that there are two channels of promotion, one on the basis of seniority cum fitness and the other by way of accelerated promotion and they cannot be termed as direct recruitment.
42. The moment this Court comes to a finding that 20% post of Section Officer to be filled up on the basis of Limited Competitive Examination is not direct recruitment but promotion, it has to definitely be referred to a cut-off as provided in the Rules. There are unimpeachable documents and in fact admission on the 56 part of the State Government that when 114 posts were sought to be requisitioned on 31.7.2009, they were clearly referable to the vacancies which had accumulated upto 1.4.2008. It is here that Rule 10(2) comes into play which again talks of determination of all the vacancies in the beginning of the year. As noted above, such Rules came into force only with effect from 25.2.2010 and therefore, when the Regulations were brought into force on 18.6.2009 and the requisition was sent on 31.7.2009, the beginning of the year as contemplated in Rule 10 which came into force only with effect from 25.2.2010 could not have included vacancies only upto 1.4.2008. In other words if the beginning of the year as per 2010 Rules would be January, 2010 the cut-off date necessarily will have to be any date of that particular year of 2010, inasmuch as Rule 10(ii) does not envisage any other date much less a retrospective date.
43. It has to be kept in mind that while the Act came into force on 4th January, 2008 the Regulations were framed on 18.6.2009 and therefore, there is no rationale for taking into account the vacancies only upto 1.4.2008. This becomes more significant in view of the fact that the Rules giving effect to the date of promotion on the date of vacancy came into force only with effect from 25.2.2010 and was published in the official gazette on 26.2.2010. As a matter of fact the advertisement was 57 issued on 13.5.2010 despite requisition being sent on 31.7.2009. Thus, on an overall view of the matter this Court is of the view that though 20% post of the post of Section officer which has to be filled up on the basis of Limited Competitive Examination to be conducted by the Commission is again by way of accelerated promotion in contra distinction to 80% to be filled up on the basis of seniority cum suitability on the recommendation of the Departmental Promotion Committee, the year-wise vacancy for the first time could be filled up only from the date of Rules coming into force which provided for giving promotion with effect from the date of such vacancies taking place.
44. This Court in fact would fail to understand the logic of the stubborn attitude of the Principal Secretary of General Administration Department, who has tried to in fact play a faux pas by evolving the date of 16.7.2007 and referring to Resolution No. 2374 dated 16.7.2007. Let it be noted that this was the executive instruction prior to coming of the Rule into force which, as noted above, came into force only with effect from 4th January, 2008 when Bihar Act 03 of 2008 was published in Bihar Gazette. As a matter of fact Section 24 of that Act had specifically repealed the Joint Cadre of Assistant of Secretariat and attached Offices Act, 1989, Joint Cadre of Assistant of Secretariat and attached Offices (Amendment) Act, 1993 and Joint Cadre of Assistant of 58 Secretariat and attached Offices Rule, 1992. Thus, the executive instruction by way of Government resolution of the year 2007 as referred to in paragraph no.8 of the supplementary counter affidavit could not have been made the basis for introducing cut- off date of 1.8.2008 for computation of vacancies only upto 1.4.2008. In any event the date on which the advertisement was issued by the Commission there was a Regulation and the Rule framed in the year 2009 and 2010 respectively which by itself leave no scope for application of the provisions of Section 27 of the Bihar and Orissa General Clauses Act for giving a lease of life to the repealed Rules or the executive instructions under the old Act.
45. It has to be also kept in mind that the subsequent requisition for holding second Limited Competitive Examination for 36 posts was sent only on 4.11.2012 and the petitioners of C.W.J.C.No. 6805/2012 have rightly relied on the same that if the vacancies upto 1.4.2011 could lead to fixing of cut-off date of 1.8.2011 see Annexure-13 page 65 of C.W.J.C. No. 18870 of 2012 there was no rationale for fixing cut-off date of 1.8.2008 for filling up 114 posts being the vacancies upto 1.4.2008. To that extent this Court will have no difficulty in holding that the Government decision dated 29.6.2012 was correct, fixing cut-off date of 11.6.2010 not in view of the fact that no cut-off date was given in 59 the original requisition sent by the State Government but on account of the fact that it was the first Limited Competitive Examination after coming into force of the Act, Regulation and the Rules in that order. As a matter of fact when the Act came into force on 4.1.2008 and did not provide the manner of filling up 20% post through a Limited Competitive Examination for which the procedure, syllabus etc. was to be determined by the cadre controlling authority according to the Rules/ Regulations in consultation with the B.P.S.C. any reference to the cut-off-date of 1.8.2008 was meaningless because after the Regulation itself came into force on 18.6.2009 laying down for the first time the manner of holding Limited Competitive Examination for filling up 20% post of Section Officer in Bihar Secretarial service.
46. This Court, therefore, while holding that the date of 1.8.2008 cannot be the correct cut-off date will have to necessarily refer to the requisition which was sent by State Governmet on 31.7.2009 to the Commission. The said requisition, however, was itself incapable of being implemented because the same only referred to Clause 4(ii) of the Regulation providing rendering of continuous service of five years in Assistant grade. Thus, if the requisition was sent on 31.7.2009 on the basis of Regulation framed on 18.6.2009 what could be the rationale for fixing the cut- off date of 1.8.2008?
60
47. It is here that coming into force of the Rule becomes quite significant because it was only in these Rules coming into force on 25.2.2010 that for the first time a provision was made for giving promotion from the date of vacancy. Again it was in the Rule alone that the concept of computation of vacancy was introduced for its being made "from the beginning of the year". Thus, if the advertisement was published only after coming into force of the Rules, the reference to the cut-off date of 1.8.2008 will again be wholly illogical and in effect would render all such persons ineligible who in effect had become eligible on the date of issuance of advertisement. In the present case the advertisement for holding the first ever limited departmental examination was issued only on 13.5.2010 by the Commission and therefore, this being the first examination could not have excluded anyone who had become eligible on account of completion of five years period on the post of Assistant as on the date of advertisement keeping in view that the Regulations came into force only with effect from 18.6.2009 and the Rules with effect from 26.2.2010.
48. The issue relating to cut-off date by-now stands well settled. A cut-off date must have a rationale. It cannot be out of hat as was held in the case of D.S.Nakara v. Union of India, reported in (1983)1 SCC 305. Though it is true that the concept of 61 Nakara‟s case (supra) has been substantially watered down but then it can be still said with certainty that a cut-off date has to have some valid justification/ rationale. Here in the present case when cut-off of 1.8.2008 is being sought to be defended by the respondents officials of the State Government or the Commission no justifiable reason has been given by them, save and except that the vacancies only upto 1.4.2008 were taken into consideration.
49. The question infact would be if the concept of vacancies only upto 1.4.2008 was neither provided in the Act nor in the Regulations nor in the Rules, which came in that order respectively, wherefrom and on what basis this date of 1.4.2008 could have been evolved? It is here that the State Government itself is in the quandary. As a matter of fact when the Rules came into force on 26.2.2010 which provided for giving promotion to different grades in the service from the date of vacancy, such Rule being not retrospective, the earliest cut-off date at best could have been 26.2.2010. The Apex Court in the case of State of Himachal Pradesh & anor. v. Anjana Devi & ors., reported in (2009) 5 SCC 108, had gone to hold that the date from which statutory Rules came into effect could be very well the cut-off date for extending a particular benefit. Keeping in view that the Rules in this case came into force only on 26.2.2010, the cut-off date of 1.8.2008 is therefore wholly illogical and arbitrary.
62
50. This Court would not like to multiply the authorities on the issue of cut-off date but then it must refer to a recent judgment of the Apex Court in the case of Kallakkurichi Taluk Retired Officials Association, Tamil Nadu & ors. v. State of Tamil Nadu, reported in (2013)2 SCC 772, wherein it was held as follows:
"33.At this juncture it is also necessary to examine the concept of valid classification. A valid classification is truly a valid discrimination. Article 16 of the Constitution of India permits a valid classification (see State of Kerala v. N.M.Thomas, reported in (1976)2 SCC 310). A valid classification is based on a just objective. The result to be achieved by the just objective presupposes, the choice of some for differential consideration/ treatment, over others. A classification to be valid must necessarily satisfy two tests. Firstly, the distinguishing rationale has to be based on a just objective. And secondly, the choice of differentiating one set of persons from another, must have a reasonable nexus to the objective sought to be achieved. Legalistically, the test for a valid classification may be summarized as a distinction based on a classification founded on an intelligible differentia, which has a rational relationship with the object sought to be achieved. Whenever a cut-off date (as in the present controversy) is fixed to categorise one set of pensioners for favourable consideration over others, the twin test for valid classification (or valid discrimination) must necessarily be satisfied."63
51. Thus, both on fact and in law, once this Court comes to this conclusion that the cut-off date of 1.8.2008 was irrational, the petitioners of C.W.J.C.No. 6805/2012 will be automatically eligible for their being considered for promotion on the basis of their performance in the written test in which they have appeared as per interim order passed by this Court. It only needs to be mentioned here that the objection of the petitioners of C.W.J.C.No. 18870/2012 to the candidature of the petitioners of C.W.J.C.No. 6805/2012 that they did not complete the period of five years of service on account of rendering as Lower Division Clerk will have no meaning in the eye of law, especially when it has been noted above that the Government had come out with the corrective office order no. 3090 dated 4.11.2006 giving them the benefit of post of Assistant with effect from the date of their initial appointment as L.D.C. on the basis that actually their selection was made pursuant to the advertisement for the post of Assistant and thus, they were entitled for all the benefits of the post of Assistant from the first date of their joining on the post of L.D.C. To that extent they are also well supported by the provision of Section 9(3) of the Act which clearly lays down that the persons appointed and working as Assistant of the joint cadre of Assistant of the Secretariat and attached offices on the appointed date i.e. 64 4.1.2008 shall be deemed to be automatically included in the grade of Assistant. Thus, on a conjoint reading of the provision of Section 9(1)(iii) of the Act and the Government notification dated 4.11.2006, relevant portion whereof has already been quoted above, there would be no difficulty in holding that the petitioners of C.W.J.C.No. 6805/2012 on the basis of their completion of a period of five years as on 22.7.2009 as in the case of the petitioner Dharamvir Prasad will be eligible for being considered for the post of Assistant.
52. In any event when cut-off date cannot be any date prior to coming into force of the Rules and Regulations i.e. 18.6.2009 and 25.2.2010, all such persons including the petitioners of C.W.J.C.No. 6805/2012 who have completed a period of five years much before publication of advertisement would be eligible in terms of Clause 4(ii) of the Regulations. It is unfortunate for this Court to note that the Commission instead of exercising its power under Regulations 4(iii) had abdicated its function for giving the scope of endless litigation at the instance of the petitioners and others because the Commission having before it the requisition dated 31.7.2009 as also its power under Clause 4(iii) of the Regulation coming into force on 18.6.2009 and having also before it Rule 10 of the Rules dated 26.2.2010 when it had issued the advertisement only on 13.5.2010 it had to itself decide 65 the eligibility of the petitioners of C.W.J.C.No. 6805/2012. The manner in which the Commission had however developed cold feet and had infact abdicated its authority in the hands of the State Government would leave a lot desired because the Commission is constitutional functionary and when it had been vested power under the Regulation itself to decide the eligibility of the candidate it is not expected to go back to the Government on each and every aspect.
53. To that extent this Court is reminded of a similar situation in the case of appointment on gazetted post through the Combined Competitive Examination in C.W.J.C.No. 10148/2012 (Binod Kumar Tiwary v. the State of Bihar & ors.), wherein it was held as follows:
"64. This Court need not remind the Public Service Commission that it is not working under the Government in the matter of holding competitive examinations for recruitment to service. It cannot be identified with the Government. Public Service Commission is an important institution created by the Constitution to whom is entrusted a valuable and important task of selecting personnel who may be intrusted with the duty of running the administration of the State at various levels. Thus the administration or, so to say, the destiny of the people living in the State depends very much on the fair and just decisions of the Commission.66
65. For proper and efficient working of a democracy, it is very necessary that civil service be free of political pressures and personal patronage. It is therefore necessary to ensure that the best available person be selected for appointment to a post so as to avoid arbitratiness and nepotism in the matter of appointment. This objective can be achieved if civil servants are appointed solely on the basis of merit without any favouritism or nepotism or political pressures. A difficult task in any country, it becomes all the more difficult in a multi-lingual, multi-religious country like India which has a number of minority groups and backward classes and where the state is the most significant employer and government service has a prestige of its own. To achieve these objectives, the Constitution creates Public Service Commissions which are autonomous bodies and are immunized from various pressures so that they can function independently, fairly and impartially. Reference in this connection may usefully be made to the judgment of the Apex Court in the case of Ahok Kumar Yadav V. State of Haryana reported in AIR 1987 SC 454 wherein it has been held as follows:-
"The values of independence, impartiality and integrity are the basic determinants of the constitutional conception of Public Service Commision and their role and functions. The Public Service Commission occupies a pivotal place of importance in the State and the integrity and efficiency of its administrative apparatus depends considerably on the quality of the 67 selections made by the Public Service Commission......."
66. The Commission including its Chairman and Members also must not forget the pious duty which has been imposed on them by the Constitution of India as was also clearly expressed by the Apex Court in the reference made by the President of India against Sri Ram Ashray Yadav Chairman, Bihar Public Service Commission, reported in (2000)4 SCC 309 wherein it was held as follows:-
"The credibility of the institution of Public Service Commission is founded upon faith of the common man on its proper functioning. The faith would be eroded and confidence destroyed if it appears that the Chairman or the members of the Commission act subjectively and not objectively or that their actions are suspects. Society expects honesty, integrity and complete objectivity from the Chairman and members of the Commission. The Commission must act fairly, without any pressure or influence from any quarter, unbiased and impartially, so that the society does not loose confidence in the Commission. The high constitutional trustees, like the Chairman and Members of the Public Service Commission must for ever remain vigilant and conscous of these necessary adjuncts."
67. This Court would not like to say anything more on this aspect but would defnintely expect the Commission, in the era of declining standards in almost of all the institutions that in future it would rise 68 to the occasion and maintain its independent stature and authority. The Commission must safeguard its complete autonomy at any cost as is also envisaged in the Article 315 to 323 under Part-XIV Chapter-II of the Constitution of India.
54. This Court once again in this case would also not like to say anything more in this regard and therefore, would close the aspect by holding that the cut-off date of 1.8.2008 for filling up 114 posts of Section Officer through the first Limited Competitive Examination is wholly arbitrary and is irrational. In the facts of this case it has to be held that the cut-off date can be no other date except 11.6.2010, the last date of filing of the application in terms of the advertisement dated 13.5.2010. This Court in this regard would find support from the judgment of the Apex Court in the case of Ashok Kumar Sharma & ors. v. Chander Shekhar & anr., reported in (1997)4 SCC 18, wherein it was held as follows:
"The proposition that where applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be judged with reference to that date and that date alone, is a well- established one. A person who acquires the prescribed qualification subsequent to such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a 69 representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it.........."
(underlining for emphasis)
55. The same view was taken even earlier by the Apex Court in the case of Dr. M.V.Nair vs. Union of India, reported in J.T. 1993(1) SC 225, which has been also followed by the Division Bench of this Court in the case of Dr. Ranbir Prasad Singh v. the State of Bihar and others, reported in 2000(3) PLJR
618. All these judgments categorically lay down that in absence of anything prescribed in the advertisement the eligibility has to be judged till the last date of filing of the application.
56. As with regard to the reservation and the Government taking a firm stand that the reservation meant for direct recruitment will be made applicable for filling up 114 posts, it has to be essentially held that even that decision is bad. It has already been indicated above that 20% posts of Section Officer is not to be filled up by way of direct recruitment. Therefore, the reservation for direct recruitment cannot be applied in the case of filling up the post of promotion. The Government decision also is on record to show that filling up of 20% post of Section Officer by way of Limited Competitive Examination is only by way of promotion. The Rules also in fact indicate to the same effect, inasmuch as 80% post of Section Officer is to be filled up from the 70 Assistant on the basis of seniority cum fitness and the remaining 20% had to be filled up by way of accelerated promotion. Thus, this Court would find difficulty even to uphold the latest Government decision dated 27.6.2013 that the reservation meant for direct recruitment shall be filled up for filling up 114 posts of Section Officer. To that extent the earlier Government decision dated 4.11.2011 and the consequential corrigendum dated 16.2.2012 is correct and of 114 posts 95 have to be given to the candidates of unreserved category, whereas 18 have to be only reserved for Scheduled Caste and one for Scheduled Tribe.
57. Thus, for the reasons indicated above, this Court would hold that the Government decision dated 4.11.2011, the correigendum of the Commission dated 16.2.2012 fixing the cut- off-date of eligibility as 1.8.2008 in the advertisement dated 13.5.2010 for filling up of 114 posts of Section Officers is bad both on fact and in law and are accordingly quashed in part to that extent. It is hereby declared that the cut-off date for eligibility of filling up 114 posts shall be 11.6.2010 i.e. the last date of filing of the application in terms of the advertisement dated 13.5.2010 as incorporated in the government decision dated 29.6.2012 and 2nd corrigendum of the Commission dated 14.7.2012.
58. It is also held that 114 posts shall be filled up by way of promotion by making only the roaster of promotion 71 applicable as incorporated in the government decision dated 4.11.2011 and the corringendum of Commission dated 16.2.2012. Consequently that portion of advertisement dated 13.5.2010 making the reservation and roaster of direct appointment applicable for filling up 114 posts of Section Officer is held to be bad and is accordingly set aside.
59. In the light of the aforesaid findings and conclusion this court will also have no hesitation in quashing the government decision dated 27.6.2013 (Annexure-B to the supplementary counter affidavit) as a whole either with regard to fixing 1.8.2008 as the cut-off-date or making the reservation of roaster of direct appointment applicable for filling up 114 posts of Section Officers as per advertisement dated 13.5.2010 .
60. In the result, C.W.J.C.No. 6805/2012 is hereby allowed and consequently C.W.J.C.No. 18870/2012, C.W.J.C.No. 21906/2012 and C.W.J.C.No. 7159/2013 are hereby dismissed.
61. There would be, however, no order as to costs.
(Mihir Kumar Jha, J) Patna High Court Dated the 05-06-2014 A.F.R./ surendra/-