Patna High Court - Orders
Subodh Kumar vs The State Of Bihar & Ors on 16 February, 2012
Author: R.M. Doshit
Bench: Chief Justice, Birendra Prasad Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No. 19346 of 2010.
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Subodh Kumar, S/o Sri Sitaram Das, R/o Village + P.O. - Ajhour, P.S.- Neema Chandpura, District - Begusarai .... .... Petitioner Versus
1. The State of Bihar
2. The Principal Secretary of the General Administrative Department, Govt. of Bihar, Patna
3. The Principal Secretary of the Labour Resources Department, Govt. of Bihar, Patna
4. The Bihar Public Service Commission through its Chairman, Bailey Road, Patna
5. The Chairman of Bihar Service Commission, Patna
6. The Secretary of Bihar Public Service Commission, Patna .... .... Respondents ====================================================== Appearance :
For the Petitioner : Mr. Manan Kumar Mishra, Sr. Advocate, Mr. Ashutosh Tripathy, Mr. Sanjay Kumar Pandey and Mr. Rajeev Kumar Singh, Advocates.
For the State : Mr. Partha Sarthy, SC 10,
Mr. Girija Shankar Prasad, GP 1,
Mr. Mrigendra Kumar, AC to SC 10 and
Mr. Umesh Kumar, AC to GP 1.
For the BPSC :
Mr. Lalit Kishore, Sr. Advocate (AAG 1) and Mr. Sanjay Pandey, Advocate. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA CAV Judgment The 16th February 2012.
(Per: HONOURABLE THE CHIEF JUSTICE) This petition under Article 226 of the Constitution is 2 Patna High Court CWJC No.19346 of 2010 (11) dt. 16-02-2012 2 / 11 referred to the Division Bench by the learned single Judge under order dated 5th August 2011.
The respondent no. 4, the Bihar Public Service Commission (hereinafter referred to as "the Commission") published Advertisement No. 4 of 2007 to invite applications from eligible candidates for the 48th to 52nd Common Combined (Main) Competitive Examination, 2008 for appointment to various cadres in the State Government service. Pursuant to the said advertisement, the petitioner applied under the category of Extremely Backward Class. The petitioner successfully went through the Preliminary Test and the Competitive Test. The petitioner secured aggregate 815 marks at the competitive written examination and the viva voce; the cut-off marks for the candidates in Extremely Backward Class. Nevertheless his name was not recommended by the Commission for want of available vacancy. Therefore, this petition.
Learned Advocate Mr. Manan Kumar Mishra has appeared for the petitioner. He has submitted that the petitioner could not have been denied appointment although he had secured the cut-off marks on the ground of want of vacancy. He has submitted that not all successful candidates recommended by the Commission accepted the appointment; many of such candidates did not join the duty resulting into some unfilled vacancies. He has submitted that in the cadre of Labour Superintendent, out of 4 posts reserved for Extremely Backward Class candidates, one person did not report for duty. The said post, therefore, was required to be filled up from the panel prepared by the Commission pursuant to the above-referred 48th to 52nd Common Combined Competitive Examination. The petitioner being the 3 Patna High Court CWJC No.19346 of 2010 (11) dt. 16-02-2012 3 / 11 next candidate on the panel, he has a legitimate right to appointment. He has further submitted that the panel is operative till the next panel is prepared. Till the date the next panel is not prepared. Therefore, the panel needs to be operated. The Commission be directed to recommend the name of the petitioner for appointment as Labour Superintendent on unfilled vacancy. He has next submitted that in any view of the matter the vacancies advertised under Advertisement No. 4 of 2007 ought to be filled in by appointment of the empanelled candidates. Therefore also, the petitioner has a right to appointment pursuant to the said selection process.
In support of his submissions, Mr. Mishra has relied upon the judgments of the Hon'ble Supreme Court in the matters of Jai Narain Ram Vs. State of U.P. & Ors. [(1996) 1 SCC 332]; of State of Orissa & Anr. Vs. Rajkishore Nanda & Ors. [(2010) 6 SCC 777] and of this Court in the matters of Ashutosh Kumar Vinayak & Ors. Vs. The State of Bihar & Ors. [2000(3) PLJR 495] and of Niraj Kumar Singh & Anr. Vs. The State of Bihar & Ors. [2007(3) PLJR 702].
The petition is contested by the State Government and the Commission. Learned Additional Advocate General Mr. Lalit Kishore has appeared for the Commission. He has submitted that as per the policy of the State Government prevalent since 1977 and reiterated in 2007, the panel prepared by the Commission can be operated for filling up the advertised vacancies alone. In case a person appointed does not report for duty, the resulting vacancy is required to be carried forward. In other words, such vacancies will again be advertised and be filled up in the next selection process.
4 Patna High Court CWJC No.19346 of 2010 (11) dt. 16-02-20124 / 11 Mr. Lalit Kishore has submitted that the judgment of the Hon'ble Supreme Court in the matter of Jai Narain Ram (supra) has been distinguished by the Hon'ble Supreme Court in the matter of Bihar State Electricity Board Vs. Suresh Prasad & Ors. [(2004) 2 SCC 681]. He has also relied upon the judgments of this Court in the matters of Manish Kumar Shahi Vs. The State of Bihar & Ors. [2008(4) PLJR 93]; of Alok Kumar Vs. The State of Bihar & Ors. [2009(2) PLJR 123] and an unreported judgment in the matter of Ranjit Rana & Ors Vs. The State of Bihar & Ors. [Civil Writ Jurisdiction Case No. 14648 of 2010, decided on 17th November, 2011 (Coram: Shiva Kirti Singh & Shivaji Pandey, JJ)].
In the matter of Jai Narain Ram (supra), the issue was somewhat identical. The matter arose from the recruitment to certain posts under U.P. Finance and Accounts Service through Public Service Commission. After making recommendation of 4 Scheduled Caste candidates for appointment to the posts of Accounts Officer advertised, the Public Service Commission did not recommend further names. In view of the fact that one of the said 4 candidates did not join the duty, the Hon'ble Supreme Court issued direction to the Public Service Commission to recommend the name of the appellant for appointment to the unfilled vacancy.
In the matter of Bihar State Electricity Board (supra), in similar circumstances the Hon'ble Court held that in the absence of statutory rule to the contrary, the employer was not bound to offer the unfilled vacancies to the candidates next below the candidates in the merit list. The Hon'ble Court also considered the above-referred judgment in the matter of Jai 5 Patna High Court CWJC No.19346 of 2010 (11) dt. 16-02-2012 5 / 11 Narain Ram (supra) and has distinguished the same on the ground that the respondents therein had conceded before the Court that the reserved post could be filled up by the candidates of reserved categories alone.
In the matter of State of Orissa & Anr. (supra), the Hon'ble Court held that the select list cannot be treated as a perpetual reservoir for purposes of appointment. If the selection process is over, select list has expired and appointments have been made, no relief can be granted by the Court subsequently on the basis of the expired select list. The Hon'ble Court further held, "....once the selection process in respect of number of vacancies so determined came to an end, it is no more open to offer appointment to persons from the unexhausted list." However, the Hon'ble Court did observe, "The purpose of making the list of double of the vacancies determined is to offer the appointment to the persons from the waiting list in case the persons who are offered appointment do not join. But it does not give any vested right in favour of the candidates whose names appeared therein."
In the matter of Ashutosh Kumar Vinayak & Ors. (supra), a Division Bench of this Court did hold, "...In cases where the number of vacancies are notified in the advertisement then the appointment from the said panel/select list is to be made to the extent of the vacancies notified in the advertisement, and no appointment in excess of the posts advertised is to be made from the said panel/select list. In cases of non-joining of any candidates appointed against notified vacancies, a person from the said panel which becomes waiting list is to be appointed, ..." This judgment is 6 Patna High Court CWJC No.19346 of 2010 (11) dt. 16-02-2012 6 / 11 clearly distinguishable. We may note here that in the matter before the Division Bench, the question was that of appointment to the posts of Assistant Public Prosecutor. The Memorandum dated 17th June 1977 having been issued in respect of the Combined Common Competitive Examination; the same did not apply to the recruitment of Assistant Public Prosecutor ipso facto. No other similar provision in respect of recruitment of Assistant Public Prosecutors was brought before the Court.
In the matter of Niraj Kumar Singh & Anr. (supra), the learned single Judge of this Court has held that 17 th June 1977 Circular had never been followed by the respondents. The said executive instruction, therefore, was inoperative and could not be a ground for carrying forward the non-joining posts for the next year or next advertisement.
In the matter of Manish Kumar Shahi (supra), a Division Bench of this Court held that in absence of challenge to the Circular dated 17th June 1977, if any candidate did not join, that vacancy had to be carried forward to the next year. The said view has been reiterated in the matter of Alok Kumar (supra). Once again the Division Bench of this Court relying upon the aforesaid Memorandum dated 17th June 1977 denied a similar relief in the matter of Ranjit Rana & Ors (supra).
We have noticed that thus far the Government of Bihar has not passed any enactment or framed statutory rules in exercise of power conferred by Article 309 of the Constitution. The selection process for recruitment to various cadres under the State Government is governed by the resolutions / circulars / instructions issued by the Government from time to time. Undoubtedly, Article 162 of the Constitution of India empowers 7 Patna High Court CWJC No.19346 of 2010 (11) dt. 16-02-2012 7 / 11 the State Government to issue executive instructions in connection with the matters in respect of which the Legislature of the State has power to make laws. In absence of any legislative enactment or the statutory rules, such executive instructions partake the nature of statutory rules; they are equally binding to the State Government and the persons concerned. But, we may note that it is not safe to exercise the administrative powers of the State Government through executive instructions for interminably long period as it has tendency to lead to discrimination, favouritism and nepotism. The State of Bihar is now celebrating its 100th Year and the Constitution of India is past 60 years. It is high time that the State Government should make appropriate statutory provisions in the administrative matters also. We believe it would be a fitting tribute in the Centenary Year of the State of Bihar to pass an enactment or to frame statutory rules to govern the recruitment process for various posts under the State Government so as to ensure uniformity and transparency in the recruitment process.
In absence of the statutory rules, as we have recorded hereinabove, the executive instructions would hold the field. In the present case, the State of Bihar has, as early as on 17th June 1977, issued a Memorandum containing instructions in respect of the Combined Competitive Examination conducted by the Commission.
Paragraph 4 of the said Memorandum sets out a time-schedule in respect of each stage of the recruitment process. Clause (xiv) thereof provides: "Vacancies remaining unfilled due to candidates not joining the post or for any other reason shall be carried forward to the next year." It appears that the 8 Patna High Court CWJC No.19346 of 2010 (11) dt. 16-02-2012 8 / 11 State Government has compiled the instructions issued from time to time in respect of the recruitment process in Government Resolution dated 16th July 2007. The aforesaid instruction has been reiterated in the said Resolution dated 16th July 2007. Clause (16) of Paragraph 3 of the said Resolution reiterates that the vacancies remaining unfilled due to non-joining of the selected candidates shall be carried forward.
It is apparent that it is the consistent policy of the State, at least since 1977, to carry forward the vacancies which remain unfilled to the next selection process.
Learned Advocate Mr. Mishra has submitted that the above-referred instructions issued in 1977 and reiterated in 2007 have never been implemented. He has submitted that although the said instructions provide for conducting competitive examination every year regularly; the Commission, for the reasons best known to it, has failed to adhere to the said time-frame. Evidently, the competitive examinations are not conducted every year leading to the loss of valuable years of the candidates seeking employment in the State service. He has further submitted that the above- referred Clause (xiv) of the 1977 Memorandum or Clause (16) of the 2007 Resolution has never been implemented; the same, therefore, cannot be pressed into service to deny appointment to the petitioner.
Mr. Mishra is right in submitting that the above- referred instructions are not followed in letter and spirit as it is evidenced by the fact that the competitive examination is not conducted every year as required under the 1977 Memorandum or the 2007 Resolution. But, merely because the competitive examination is not conducted every year regularly, it cannot be 9 Patna High Court CWJC No.19346 of 2010 (11) dt. 16-02-2012 9 / 11 said that the other provisions contained in the said Memorandum or the Resolution are not binding or are done away with. Although Mr. Mishra has strenuously urged that the above- referred Clause (xiv) to the Memorandum of 1977 or Clause (16) of the Resolution of 2007 has not been implemented, he has failed to prove the same. Mr. Mishra has not demonstrated a single incidence where the appointment is made in contravention of the said instruction. In the circumstances, we cannot hold that the said instructions have been done away with by the conduct of the State Government or have become ineffective.
In view of the aforesaid policy of the State Government, the settled law discussed hereinabove and the binding precedents of the Hon'ble Supreme Court and the Division Bench of this Court, we must hold that the judgment in the matter of Niraj Kumar Singh & Anr. (supra) does not set out the correct law and is per incurium the judgment of the Supreme Court in the matter of Bihar State Electricity Board (supra). The finding that the 17th June 1977 Circular (sic: Memorandum) was never followed is not supported by the facts on record and is erroneous. Anyway, in view of the subsequent judgments of the Division Bench, it is not a good law.
In view of the binding instructions issued by the State Government to carry forward the unfilled vacancy to the next recruitment process, the relief sought for by the petitioner cannot be granted. Further, since the recruitment pursuant to the Advertisement No. 4 of 2007, the Commission has already commenced the next recruitment process by holding the Preliminary Test preceding the 53rd to 55th Common Combined Competitive Examination.
10 Patna High Court CWJC No.19346 of 2010 (11) dt. 16-02-201210 / 11 The contention that a panel once prepared is operative till the next panel is prepared is equally misconceived, contrary to the aforesaid Memorandum of 1977 and the Resolution of 2007 and has no legs to stand on. Although neither the Memorandum of 1977 nor the Resolution of 2007 specifically provides for how long the panel shall be operative. However, clause (xi) of the Memorandum of 1977 specifically provides that the recommendation made by the Commission shall correspond to the number of actual vacancies. The same reads as under:-
"(xi) The number of candidates recommended by the Commission for appointment out of the merit list thus drawn up shall correspond to the number of actual vacancies."
In our opinion, the conjoint reading of the above referred clauses (xi) and (xiv) of the Memorandum of 1977 coupled with the settled law that not more than advertised vacancies can be filled in pursuant to a selection process, establish by necessary implication that once the Commission makes the recommendation for the vacancies advertised, the merit list stands exhausted. No further appointment can be made from such merit list.
In our view the claim made by the petitioner is misconceived. The relief prayed for by him cannot be granted.
As we have recorded hereinabove, the State of Bihar has not thought it necessary to exercise its power to pass a legislative enactment or to frame rules governing the recruitment process to various cadres under the State Government. We therefore direct that the State of Bihar will pass due enactment or will frame the rules to govern the recruitment process to various 11 Patna High Court CWJC No.19346 of 2010 (11) dt. 16-02-2012 11 / 11 cadres under the State Government which are now governed by the executive fiats issued from time to time. It will be most befitting if the State of Bihar passes such enactment or frames the rules in the 101st year of its formation. This direction will be complied with in letter and spirit latest by 22nd March 2013.
For the aforesaid reasons, subject to the above direction, the petition is dismissed.
The Registry will send copy of this judgment to the Principal Secretary and the Secretary, General Administration Department of the State of Bihar.
(R.M. Doshit, CJ) I agree.
Birendra Prasad Verma, J.-
(Birendra Prasad Verma, J) AFR Dilip.