Patna High Court
Binod Kumar Prabhashkar & Ors vs The State Of Bihar & Ors on 6 August, 2010
Author: S.K.Katriar
Bench: Sudhir Kumar Katriar, Jayanandan Singh
LETTERS PATENT APPEAL No.313 OF 2001
WITH
LETTERS PATENT APPEAL NO.507 OF 2001
*****
Against the judgments and orders dated 20.03.2001, and
2.5.2001, passed by a learned Single Judge of this Court in
C.W.J.C. No.10337 of 2000 and 695 of 2001 respectively.
*****
In L.P.A. No.313 of 2001:
1. BINOD KUMAR PRABHASHKAR, S/o Mr. Chandradeo Paswan,
resident of village- Bariatola (Olapur), P.O. & P.S.- Pirpainti, District-
Bhagalpur, at present residing at Nandani Path, West Patel Nagar, P.S.
Shastri Nagar, Patna-800 023.
2. Jitendra Kumar, S/o Mr. Amir Das, J. (Retd.), resident of Village-
Shadipur Coura Maidan, P.S. Kotwali, P.O. & District- Munger.
3. Binod Kumar, S/o Mr. Sita Ram Paswan, resident at Taridavil, P.O.
Davil, P.S.- Khaira, District- Jamui, PIN-811 307.
4. Sunil Kumar, S/o Mr. Ram Bachan Ram, resident of P.O.- Pitro, P.S.-
Agson Bazar, District- Bhojpur (Ara), PIN-822 202.
5. Dilip Kumar Deo, son of Mr. D.V. Kumar, resident of M.I.G.-B/84,
Housing Colony, P.O. & P.S.- Dhanbad, District- Dhanbad.
6. Binod Kumar Prasad, son of Mr. C.S. Prasad, resident of village and
P.O.- Dhamar, P.S. Arrah Muffasil, District- Bhojpur.
7. Gyan Ranjan, S/o Mr. Rajeshwar Pd. Chaudhary, resident of
Bahadurpur Housing Colony, P.S. - Agamkuan, Kankarbagh, Town and
District- Patna, PIN-800 020.
........ Petitioners........Appellants.
Versus
1. THE STATE OF BIHAR, through the Secretary, Department of
Personnel and Administrative Reforms, Government of Bihar, Secretariat,
Patna.
2. The Additional Secretary, Department of Personnel and Administrative
Reforms, Government of Bihar, Secretariat, Patna.
3. The Bihar Public Service Commission, through its Chairman, Bailey
Road, Patna.
..... Respondents ..... Respondents 1st Set.
4. Lalit Busan Ranjan, son of Sri Ram Janam Ram, resident of Village-
Laxmanpur Bath, P.O.- Parasi, District- Jehanabad.
5. Devendra Suman, son of late Sita Ram Prasad, resident of Mohalla- West
Ashok Nagar, Kankarbagh, P.O.- Kankarbagh, District- Patna.
6. Gautam Kumar, son of Sri Hiralal resident of Village- Gurhatta, P.O.-
Khajekalan, District- Patna.
7. Pramod Kumar, son of Sri Mahabir Mahto, resident of village- Jai
Prakash Nagar, P.O. Ashiana Nagar, District- Patna.
8. Nand Kishore Chaudhary, son of Sri Munshi Chaudhary, resident of
Mohalla- Upper Chutia, Kathgola, Ranchi.
9. Rahul Burman, son of Sri Vijay Kumar, resident of Mohalla- A.P.
Colony, District- Gaya.
10. Arjun Ravidas, son of Sri Ramdeo Das, resident of Mohalla- Ambedkar
Nagar, District- Jehanabad.
11. Brij Kishore Chaudhary, son of Sri Musafir Chaudhary, resident of
Village & P.O.- Maoskar, District- Nawadah.
2
12. Sanjay Kumar, son of Sri Sidheshwar Prasad, resident of Birsa Advani
Colony, Kumharar, District- Patna.
.... Intervenor-petitioners.....Respondent 2nd Set.
13. Mr. Suresh Kumar, son of Mr. Sheopujan Ram, resident of Village &
P.O.- Nagari, P.S. Charpokhari, District- Bhojpur.
14. Mr. Niranjan Kumar, son of Mr. Saryu Paswan, resident of village-
Dadpur, P.O. Keshopur, P.S. Jhajha, District- Jamui.
15. Ms. Shalini Kumari, daughter of Mr. S.N. Choudhary, resident of M-2/34,
S.K. Puri, P.S. S.K. Puri, Town and District- Patna.
16. Mr. Rabindra Ram, son of Mr. Raja Ram resident of village & P.O.-
Uradma, P.S. Barun, District- Aurangabad, Bihar.
17. Mr. Rajeev Ranjan Prakash, son of Mr. Ram Chandra Ram, resident of
C-204, Saket Vihar Apartment, Khajpur, Raja Bazar, P.S.- Shastri Nagar,
Town and District of Patna.
.....(.petitioners).....Proforma Respondents...Respondents.
18. Dr. (Prof.) Ramashish Singh, Former Member, Bihar Public Service
Commission, Road No.5, Gandhi Murti, Patel Nagar, Patna-800023.
19. Mr. Raja Ram Prasad, former Member, Bihar Public Service
Commission, 87/40, Officers‟ Flat, Bailey Road, Patna-800001.
20. Mr. R.N. Ghatak (Former Controller of Examination, BPSC) at present
Under Secretary, Department of Law, Government of Bihar, Old
Secretariat, Patna.
..... Respondents 3rd set........ Respondents.
*****
For the Appellants: Mr. Jitendra Singh, Sr. Advocate with
Mr. Amresh Kumar Sinha,
Mr. Shankar Kumar Thakur &
Mr. Dhananjay Kumar, Advocates.
For Respondent nos.1 & 2: Mr. Rajesh Kumar Singh,
Assistant Counsel to A.A.G.-II
For Respondent no.3: Mr. Ashok Kumar Sinha &
Mr. Shyam Sunder Pandey, Advocates.
For Respondent nos.4 to 12: Mr. Rajiv Kumar Verma, Sr. Advocate with
Mr. Ram Binod Singh &
Mr. Bindhyachal Singh, Advocates.
For Respondent no.18: Mr. Kaushal Kumar Jha, Advocate.
For Respondent No.19: Mr. Devendra Kumar Sinha, Sr. Advocate with
Mr. Anil Kumar Sinha, Advocate.
*******
In LPA No.507 oF 2001:
KANHAIYA KUMAR, S/O Mr. Rajgir Rajak, R/o LIG 499, Block no.14,
Hanuman Nagar, P.S. Patrakarnagar, Town/District- Patna.
........ Appellant.
Versus
1. THE STATE OF BIHAR, through the Secretary, Department of
Personnel and Administrative Reforms, Government of Bihar, Secretariat,
Patna.
2. The Additional Secretary, Department of Personnel and Administrative
Reforms, Government of Bihar, Secretariat, Patna.
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3. The Bihar Public Service Commission, through its Chairman, Bailey
Road, Patna.
...... Respondents......... Respondents 1st Set.
4. Lalit Busan Ranjan, son of Sri Ram Janam Ram, resident of village-
Laxmanpur Bath, P.O.- Parasi, District- Jehanabad.
5. Devendra Suman, son of Late Sitaram Prasad, resident of Mohalla- West
Ashok Nagar, Kankarbagh, P.O.- Kankarbagh, District- Patna.
6. Gautam Kumar, son of Sri Hiralal, resident of Village- Gurhatta, P.O.-
Khajekalan, District- Patna.
7. Pramod Kumar, son of Sri Mahabir Mahto, resident of village- Jai
Prakash Nagar, P.O. Ashiana Nagar, District- Patna.
8. Nand Kishore Chaudhary, son of Sri Munshi Chaudhary, resident of
Mohalla- Upper Chutia, Kathgola, Ranchi.
9. Rahul Burman, son of Sri Vijay Kumar, resident of Mohalla- A.P.
Colony, District- Gaya.
10. Arjun Ravidas, son of Sri Ramdeo Das, resident of Mohalla- Ambedkar
Nagar, District- Jehanabad.
11. Brij Kishore Chaudhary, son of Sri Musafir Chaudhary, resident of
village & P.O.- Manskar, District- Nawadah.
12. Sanjay Kumar, son of Sri Sidheshwar Prasad, resident of Birsa Advani
Colony, Kumharar, District- Patna.
13. Shashi Bhusan Prasad, S/o Mr. Mahendra Prasad, C/o Mr. Sanjeev
Bhushan Prasad, Lalliyahi (Ghosh Plot), P.O. Katihar Gol, District-
Katihar.
14. Abay Kumar Rajwar, S/O Mr. Dhanu Dhari Ram, Additional Director,
Income Tax (Sub-Division Office), Udho Babu Lane, Tharap Khana,
Ranchi.
15. Sunil Kumar Ranjan, S/o Mr. Ramdeo Das, Village- Champa Hari, Post-
Raspur, Via- Belhar, District- Banka.
16. Ajay Kumar, S/o Mahavir Prasad Jhipahi Tola, Baksha Ghat Road,
Purnea, Bihar.
...... Respondent 2nd Set.............. Respondents.
17. Dr. (Prof.) Ramashish Singh, Former Member, Bihar Public Service
Commission, Road No.5, Gandhi Murti, Patel Nagar, Patna-800023.
18. Mr. Raja Ram Prasad, former Member, Bihar Public Service
Commission, 87/40, Officers‟ Flat, Bailey Road, Patna-800001.
19. Mr. R.N. Ghatak (Former Controller of Examination, BPSC), at present
Under Secretary, Department of Law, Government of Bihar, Old
Secretariat, Patna.
........ Respondents 3rd Set........ Respondents.
*******
For the Appellant: Mr. Jitendra Kumar Singh, Sr. Advocate with
Mr. Amresh Kumar Sinha,
Mr. Shankar Kumar Thakur &
Mr. Dhananjay Kumar, Advocates.
For Respondent nos.1 & 2: Mr. Shashi Bhushan Kumar
Standing Counsel No.l6.
For the Respondent no.3: Mr. Shyam Sunder Pandey &
Mr. Ashok Kumar Sinha, Advocates.
For private respondents: Mr. Rajiv Kumar Verma with
Mr. Bindhyal Singh and
Mr. Ram Binod Singh, Advocates.
*******
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PRESENT
THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR
THE HON'BLE MR. JUSTICE JAYANANDAN SINGH
*******
S.K. Katriar, J. The two appeals under clause 10 of the Letters Patent
of the High Court of Judicature at Patna have been preferred by the
petitioners of C.W.J.C. No.10337 of 2000 (Binod Kumar
Prabhashankar and others vs. The State of Bihar and others), and
C.W.J.C. No.695 of 2001(Mr.Kanhaiya Kumar Vs. State of Bihar
and others), and are directed against the judgment and order dated
20.3.2001and 2.5.2001 respectively, whereby the writ petitions have been dismissed, and the petitioners‟ prayer for a direction to the Bihar Public Service Commission (hereinafter referred to as the „Commission‟), to recommend their names for appointment in the Bihar Administrative Service in the reserved category of Scheduled Castes, has been rejected.
2. A brief statement of facts essential for the disposal of the appeals may be indicated. The basic facts shall be drawn from C.W.J.C. No.10337 of 2000, except by specific reference to any other proceeding. The Commission had issued an advertisement on 31.12.1997, inviting applications for 42nd Combined Civil Services Examination. The selection process comprised of three parts. The first part was the preliminary test which was held on 29.11.1998. After scrutiny of the answer-sheets at this stage, 5 results of 6138 candidates were published in January 1999, who were called upon to appear in the second round of the selection process known as the „Main Examination‟. The main examination was held in April-May 1999, and 6138 candidates had to appear at the test. On a scrutiny of their answer scripts, a combined list of 681 candidates was published on 9.10.1999. These 681 candidates were required to appear at the viva-voce test, the final stage of the selection process.
2.1) It was a combined list of 681 candidates which included candidates of the general category as well as various reserved categories. We are in the present case concerned with the candidates of reserved category of the scheduled castes. Altogether 31 candidates for the Bihar Administrative Services, and 10 candidates for „other services‟ had to be appointed in the reserved category of scheduled castes. The Commission decided to call the candidates two and half times of the number of vacancies for viva- vice test. In other words, 103 candidates of the reserved category of scheduled castes had to be called for interview. Therefore, the Commission, out of the combined list of 681 candidates, prepared another list of 103 candidates of scheduled castes to be called for viva-voce test. The viva-voce test took place in November 1999. 2.2) It may incidentally be mentioned that some of the dissatisfied candidates, not confined to the category of scheduled castes and not called for interview, preferred C.W.J.C. No.10610 6 of 1999, in this Court wherein interim orders were passed directing the Commission not to make recommendations. The writ petition was dismissed by order dated 30.3.2000, which is reported in 2000 (4) P.L.J.R. 619 (President, 42nd Main BPSC Examination Sangharsh Samitee, Patna and others Vs. The State of Bihar and others). The appeal challenging the same was dismissed by order dated 23.4.2001, passed in L.P.A. No.630 of 2000. 2.3) The Commission thereafter published the final results on 3.4.2000, and made recommendations which included 31+10 candidates of the reserved category of scheduled castes and is the subject-matter of the present proceedings. All the writ petitioners had found their way in this list. There was a minor correction in this list on 29.4.2000, which is of no consequence in the present context. The Commission sent its final recommendation on 6.5.2000, to the Bihar Government, whereby candidates of different categories were recommended including 31 candidates of the reserved category of scheduled castes. It may be clarified that we are concerned with appointment to Bihar Administrative Service only, and not „other services‟. There were 31 vacancies for the former, and 10 for the latter. On receipt of the recommendations, the State Government took steps to make necessary verifications and complete the formalities as per the established procedure.
72.4) While the Government was taking requisite steps as per the established procedure to issue appointment letters, the Commission received certain complaints that it had committed errors in preparing the list for recommendations of scheduled castes candidates which led to review of the whole matter in the Commission‟s office. Thereafter the Commission‟s office put up agenda dated 29.7.2000, before the Commission pointing out that it had, out of the combined list, prepared list of 103 candidates of scheduled castes who had to be called for interview. However, on account of the mistake of the Computer Operator who had fed erroneous commands, the first 16 candidates were left out at the stage of viva-voce test and were not called for that purpose. The agenda further stated that the Computer Operator was under the impression that the first 16 candidates of this list had found their way in the list of general category candidates and would be called for viva voce test from that list and were, therefore, not required to be called for the purpose as candidates of the reserved category of scheduled castes. Consequently, the 16 candidates in serial order lower down were called for interview. Therefore, the agenda proposed remedial measures. The commission considered the agenda at its meeting held on 29.7.2000, noted the error in preparation of the first list, and in an effort to find out a meaningful solution, passed the resolution that the first 16 candidates of the reserved category of scheduled castes shall be called for interview. 8 Consequently, the 16 persons at the top of the list of reserved category of scheduled castes were subjected to viva-voce test, a fresh merit-list of this reserved category was thereafter prepared and forwarded to the State Government for appointment, after recalling the earlier recommendations of this reserved category. 2.5) The writ petitioners who had found their way to the earlier list of recommendations lost their position and went down in the fresh merit-list, though all of them were recommended by the Commission for appointment. However, in view of their lowered position in the fresh merit-list, some of them were appointed in „other services‟, being inferior category than the Bihar Administrative Services, and four candidates did not get any appointment at all in view of their inferior position in the fresh merit-list leading to the writ petitions.
2.6) Some of the candidates of this category of scheduled castes who had figured in the earlier list of recommendations lost interest because they were appointed elsewhere and were no longer interested in the present appointment. Some of the candidates who have been appointed to the „other services‟ are still interested and want to be upgraded.
3. C.W.J.C. No.10337 of 2000 was taken up as the main case and was disposed of by a learned Single Judge, and was dismissed. He came to the conclusion that the Commission had made a serious error in omitting to call the first 16 candidates of 9 the list of the reserved category for interview. However, no fault can be found with the Commission‟s effort to rectify the error, as a result of which a fresh list of recommendations had to be forwarded to the State Government in supersession of the earlier recommendations. Consequently, a few persons have been appointed in the „other services‟, and four persons, because of their depressed position in the fresh list of recommendations, are completely out of the picture. The learned Single Judge has also examined various circumstances cited on behalf of the petitioners to discredit the Commission‟s effort to rectify the errors. However, the learned Single Judge on a detailed scrutiny of the circumstances, repelled the contentions and upheld the fresh list of recommendations. Hence this appeal at the instance of petitioners of C.W.J.C. No.10337 of 2000.
4. Learned counsel for the appellants submits that the Commission‟s errors at the first stage, and its effort to rectify it later on, are not bonafide attempts. Those are deliberate attempts to favour and disfavour candidates. He next submits that the learned Single Judge has examined each circumstance separately and did not feel convince. In his submission, however, the learned Single Judge has erred in not taking into account the combined effect of all the circumstances resulting in miscarriage of justice. He relies on the judgment of the Supreme Court in the State of Haryana and others v. Rajendra Sareen (A.I.R. 1972 S.C. 1004). 10 4.1) The Commission‟s case that the mistake occurred at the hands of the Computer Operator is a puerile defence. He has also relied on the provisions of The Bihar Public Service Commission Rules of Procedures 1996 (Annexure-18), and submits that the prescribed procedure was not followed resulting in such a grave error. For such a lapse on the part of the Commission, bonafide candidates like the writ petitioners cannot suffer.
5. Learned counsel for respondent nos.1 and 2 herein (The State of Bihar) submits that the State Government normally feels bound by the recommendations of the Commission. It felt convinced that the error was bonafide and it was equally bonafide to correct the error. Therefore, it took the decision to discard the earlier recommendations and accept the later recommendations. He also submits that 31 vacancies were earmarked for this reserved category of scheduled castes and it is not possible to appoint more persons in this category. He has also taken us through the records to establish the correctness of the present list.
6. Learned counsel for respondent no.3 (the Commission) has submitted that the error was undoubtedly a bonafide one, and equally sincere attempts were made by the Commission to rectify the errors as a result of which no injustice has been done to anybody. He has taken us through the details of the records to satisfy us about the complete absence of mala-fides in this matter. He further submits that, at the instance of the parties, both in the 11 writ proceedings as well as in the current appellate proceedings, original records were called for from the Commission‟s office and were made available for the inspection of the learned counsel for the parties. He has also submitted that the prescribed procedure was followed and the learned Single Judge has not found error in following the prescribed procedure. In his submission, it was a bonafide human error fit to be undone. He relies on a Division Bench judgment of this Court, to which one of us (S.K. Katriar, J.) was a member, in Ashutosh Kumar Roy Vs. The State of Bihar, reported in 2009(4) P.L.J.R. 643.
7. Mr. R.K. Verma, learned counsel for respondent nos. 4 to 12, representing the successful candidates as per the revised list, has made elaborate submissions to satisfy this Court that they rightly figured in the revised list and their appointments are unassailable. He has further submitted that the learned Single Judge has discussed every aspect of the matter in detail and has recorded appropriate findings of facts on scrutiny of the original records.
8. Learned counsel for respondent no.18 (the then Member of the Commission) submits that the primary question for consideration in this case is whether or not the mistake was bona- fide, whether or not the Commission was entitled to rectify the errors, and whether or not the efforts towards rectification were 12 sincere or bona-fide. He has placed before us detailed circumstances to satisfy us that the error was bona-fide.
9. Mr. Devendra Kumar Sinha, learned counsel for respondent no.19 (the then Member of the Commission) in his elaborate submissions has supported the Commission‟s action.
10. We have perused the materials on record and considered the submissions of learned counsel for the parties. We shall first of all consider the nature of the mistake committed by the Commission, the remedial measures taken by it, and the bona- fides or otherwise of both. It must first of all be emphasised, and indeed the admitted case of the parties is, that none has assailed before the learned Single Judge or before us the validity of the selection process. In other words, the selection process commencing with the advertisement till the stage of publication of the combined merit-list including all categories is unblemished. No grievance has been raised with respect to the evaluation at the viva voce test. After the first two stages, namely, the preliminary test and the main examination were over, the combined merit-list was prepared comprising of 681 candidates which, inter alia, included the candidates of the reserved category in question. In view of the position that 31+10 candidates had to be appointed to the two categories of services, namely, the Bihar Administrative Services and the „other services‟, a list of two and half times of the numbers of the vacancies of scheduled castes were called for from the 13 combined list and, therefore, a separate list of this category culled out from the combined list was prepared. This list of 103 candidates of this reserved category was also correctly prepared. 10.1) It is at the stage hereinafter that the mistake occurred, and the first 16 candidates by mistake were not called for interview, and instead candidates from serial nos.104 to 119 were called for interview. The interview took place of the candidates of this category from serial nos.17 to 119, instead of serial nos.1 to 103. The recommendations of Commission of the 31 candidates on this erroneous basis were forwarded to the Bihar Government.
11. It appears to us that, after the Commission had prepared and forwarded its recommendations to the State Government, it had received complaints from certain quarters which led to a detailed scrutiny of preparation of the list of this category. It transpired during the intensive enquiry in the Commission‟s office that, at the time of preparation of the list of 103 candidates of this reserved category, which had really been culled out from the unblemished combined merit-list, the Computer Operator, perhaps a daily-rated employee, had made the mistake of feeding erroneous command in the computer under the impression that the first 16 candidates of this reserved category had already made their way to the merit-list of the general category and would be called for interview from that list. Consequently, the Computer Operator had prepared the list of this category from 14 serial nos.17 to 119 who were called for interview. After the mistake was detected, it was decided to place it before the Commission for a final decision. The detailed agenda dated 29.7.2000, under the signature of the Commission‟s Deputy Secretary was placed before the Board for consideration.
12. It was considered at the Commission‟s meeting held on the same day and it was noted in its resolution of 29.7.2000 as to the mistakes committed by the Computer Operator resulting in preparation of a wrong list of recommendations, wherein the first 16 candidates of this category had suffered to the merriment of the 16 at the bottom of this list. It was, therefore, decided to conduct a special viva-voce test for the first 16 candidates of this reserved category. The relevant portion of the resolution dated 29.7.2000, of the Commission is reproduced hereinbelow:
"vk;ksx esa dfeZ;ksa dh deh ds dkj.k dbZ dk;Z nSfud Hkksxh dfeZ;ksa ds n~okjk djk;k tkrk gSA vr% ckn esa lkjh fooj.kh vk;ksx ds n{k inkf/kdkfj;ksa n~okjk tkWp a k tkrk gSA blh tkWap esa fyf[kr ijh{kkQy izdk'ku esa gqbZ Hkwy dk Kkr gqvkA ;g Hkwy dsoy vuqlwfpr tkfr dksfV ds mEehnokjksa esa gh gqvkA vU; dksfV esa dksbZ Hkwy ugh gqbZ FkhA ;g Hkwy Hkh ek= izdk'ku esa gqvk u dh ijh{kkQy rS;kjh esaA ;g vfHkizekf.kr lwph ls Li"V gksrk gSA vuqlwfpr tkfr dksfV esa 41 in lalwfpr FkkA blds fo#} 103 mEehnokjksa dks lk{kkRdkj gsrq p;f.kr djuk FkkA vuqlwfpr tkfr ds lHkh mEehnokjks dh vyx es/kklwph rS;kj dh xbZ FkhA lgh rkSj ij es/kklwph ds dze la[;k 1 ls dze la[;k 103 rd ds mEehnokjksa dks lk{kkRdkj gsrq cqykus ds fy, fjtYV izdkf'kr djuk Fkk, fdUrq dEI;wVj essa xyr dek.M nsus ds dkj.k dze la[;k 17 ls dze la[;k 119 ds mEehnokjksa dk vuqdzekd izdkf'kr gks x;kA ifj.keLo#i dze la0&1 ls dze la[;k&16 rd dk vuqdzekad NwV x;k rFkk dze la[;k 104 ls dze la[;k 119 dk vuqdzekad izdkf'kr gks x;kA vk;ksx ds ekuuh; lnL;ksa n~okjk lkjs jsdMZ dh tkWp a dh xbZA ijh{kkQy rS;kjh esa dksbZ =wfV ugh ikbZ xbZA 15 fofnr gqvk fd xyr "dek.M" dk dkj.k Fkk vkSijsVj n~okjk ;g le> ysuk fd dze la[;k 1 ls dze la[;k 16 rd ds mEehnokjksa dk p;u vukjf{kr dksfV esa gks x;k gSA QyLo#i mlus 103 mEehnokjksa dks dze la[;k 17 ls dze la[;k 119 rd ds chp ys fy;kA rFkk budk vuqdzekd izdkf'kr gks x;kA tkWp a esa ;g Hkh Kkr gqvk fd ftu 16 mEehnokjksa dk Hkwyo'k lk{kkRdkj gsrq cqyk;k x;k Fkk muesa ls dksbZ vuq'kalk ds nk;js esa ugh vk;sA QyLo#i muesa ls fdlh dk Hkh vuq'kalk ugh fd;k x;kA ftu 16 mEehnokjksa dks Hkwyo'k cqyk;k x;k Fkk mudk vuqdzekad fuEufyf[kr gS%a& 318548, 240212, 165940, 227017, 333301, 310254, 101572, 315124, 130534, 293374, 334202, 316517, 343286, 225990, 160500, ,oa 251995"
13. It is manifest on a combined perusal of the agenda and the minutes of the Commission that the Commission was convinced, as stated hereinabove, it is nobody‟s case that any mistake or mistakes had occurred in the selection process, that the mistake had occurred after the combined merit-list was prepared.
14. Before the appointment letters could be issued by the State Government, it received letters dated 1.8.2000 and 19.8.2000 from the Commission, informing the former that the appointment letters of the candidates of this reserved category may not be issued until further communication. Consequently, the State Government issued appointment letters to all as per the recommendations of the Commission, except the candidates of this reserved category with the note that their cases were under fresh scrutiny of the Commission.
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15. This was followed by the viva-voce test of the first 16 candidates of this reserved category, placed at the top of this list and, on the marks obtained by them, list of 31 persons of this reserved category for Bihar Administrative Services were recommended by the Commission‟s communication dated 28.2.2001.
16. It is thus evident on a perusal of the relevant materials on record, some of which have been reproduced hereinabove, that the entire selection process from the stage of advertisement till that of preparation of the combined merit-list, as well as the list of the reserved category of candidates of scheduled castes for the purpose of calling them for interview, was without any error. The error had taken place because the Computer Operator had made a bonafide mistake of omitting the first 16 candidates from this reserved category to be called for interview once again under a bonafide impression that, though it was a very serious error, these first 16 candidates had found their way in the list of general category to be called for interview. We are, therefore, convinced that the error was serious, but bonafide, and indeed no allegations of mala-fide on facts have been levelled. It indeed speaks of a sorry state of affairs that a vital function like preparation of list was left to be done by a daily-rated employee. We are, however, not concerned here with the issues relating to the organizational set up of the 17 Commission, and only wish to apply ourselves to the nature of the mistake committed by the Commission.
17. We are equally convinced that after the Commission learnt of the mistake from the complaints received by it, and made no attempt to cover it up. On the contrary, steps were taken promptly to enquire into the matter, and to correct the mistake by placing it before the Commission for appropriate decision. This position is manifest from the agenda placed before the Commission, and the resolution passed by it thereon.
18. Some other circumstances brought to our notice strengthen our belief that the mistake was unintentional and attributable to genuine human error. The first 16 candidates of the list of this category from serial nos.1 to 16, and had been omitted was unbroken in the serial order, and this group of first 16 as a whole was presumed to be transposed to the general category. As per the current law of reservation, a candidate claiming the benefit of reservation shall be appointed against the vacancies of the category of general candidates if he so figures on the basis of his merit, and the vacancies in the reserved category remain unaltered. There was no pick and choose with respect to the omission. Equally the 16 candidates at the bottom were, without any pick and choose, incorporated in the erroneous list. To this extent, there was surely a method in the madness of the computer Operator. In other words, there was a basis for the illusion.
18
19. Learned counsel for the appellants has strenuously submitted that the learned Single Judge has considered a large number of factors advanced by them to discredit the error and efforts to rectify the mistakes which has individually been considered, and the cumulative effect has been overlooked. To our mind, this is an unnecessary rhetoric completely without any substance. The learned Single Judge has taken pains to examine each and every grievance raised by the writ petitioners, and on a thorough consideration of the matter, and after examination of the relevant original records called for by the parties, has come to appropriate findings with which we entirely agree. Secondly, not one of them has been found to be of any substance, and indeed frivolous. For example, the writ petitioners had submitted before the learned Single Judge that Ram Babu and Shailesh Kumar Das of this reserved category of scheduled castes were not called for interview. On a detailed examination of this aspect of the matter, the learned Single Judge found that these two candidates of this reserved category had scored fairly high marks in the written papers and had, therefore, been included in the list of general category candidates for interview. Such uninformed and false pleas were placed before the learned Single Judge to discredit the preparation of the list and the bonafides of the Commission. Each and every aspect of the matter was to be wholly without substance. When each and every aspect of the grievance has been found 19 without any basis, where is the question of combined effect of the grievances? Question of combined effect may have arisen had some of the grievances been found to be of some substance and the rest without any basis. The contention is rejected.
20. Learned counsel for the appellants has submitted that the Commission did not follow the prescribed procedure, as a result of which the records were not prepared properly. We wish to emphasize that the original records, as per the prayer of learned counsel for the parties, were called in the writ proceedings as well as in the current appeal proceedings, were made available to the learned counsel for the parties for their detailed inspection, and they were afforded full opportunity to place the same on record supported by affidavits. We would do well to reproduce hereinbelow the order dated 1.2.2001, passed in C.W.J.C. No.10337 of 2001.
"Put up for further hearing on 13.2.2001. On that date this case will be taken up at 12.30 P.M. and it will be accordingly indicated in the daily cause list. Apart from the original documents from the Commission, which Mr. Choudhary has in his possession today, he will have with him the tabulation register relating to the concerned candidates when the case is next taken up for hearing."
The following order was passed in the present appeal on 11.4.2002, 6.1.2003, and 22.12.2008:
"11.4.2002: Learned counsel appearing for the Commission took a very fair stand in the beginning and stated that the Commission will 20 produce relevant documents for perusal by this Court.
After having heard learned counsel for the parties, we are of the view that before the matter is finally decided, the Commission should produce before us the written answer sheets and marks obtained in interview as well as other relevant documents to satisfy the court that there was a bonafide mistake in preparing the earlier merit list."
Sd/- Nagendra Rai, J.
Sd/- R.S. Garg, J.
"06.1.2003: Heard learned counsel for the parties.
This appeal will be heard.
We are of the view that this is not a fit case for grant of stay of appointment of the successful private respondents. Accordingly the interim order dated 3.4.2001 staying the issuance of appointment letters to the successful private respondents is vacated. However, it is made clear that their joining will be subject to the result of this appeal.
The answer sheets and all other relevant documents summoned from the Commission be returned today itself to the counsel for the Commission."
Sd/ Nagendra Rai, J.
Sd/ R.S. Garg, J.
"22.12.2008: Learned counsel for B.P.S.C. has produced the answer scripts, as were directed to be produced in terms of the previous order of this Court. Those answer scripts have been checked up by the learned counsel for B.P.S.C. and the learned counsel for the appellants-writ petitioners.
The matter stands adjourned one week after reopening of the Court after ensuing winter vacation in order to enable the parties to bring on record in the form of affidavits what they have perused upon inspecting those answer scripts."
Sd/- Barin Ghosh, J.
Sd/- Shyam Kishore Sharma, J.
2120.1) We are thus convinced that the parties were afforded full opportunity for discovery of documents, the Commission had produced before this Court all the documents called for on the prayer of learned counsel for the parties, for the perusal of all concerned. No complaint was made in writ proceedings as to improper maintenance of records. No defect was found in the entire selection process.
21. Learned counsel for the appellants has also contended that the entire matter was discussed in the earlier C.W.J.C. No.10610 of 1999, where the entire selection process was challenged, was dismissed by judgment dated 30.3.2000, and upheld by this Court in appeal. In other words, in his submission, the issue of bonafide mistake cannot be raised by the Commission in the present proceedings, and are hit by the principles of Res Judicata. The contention is stated only to be rejected. That was a writ petition at the instance of the association of aggrieved candidates who had not found their way in the combined merit list and had not been called for interview. That writ petition was clearly before the mistake discussed hereinabove was detected and, therefore, could not have been raised, as has been noticed by the learned Single Judge in paragraph 18 of the judgment impugned herein. Furthermore, none of the writ petitioners or the private respondents herein were parties to those proceedings. The principles of Res-Judicata apply with respect to the same issues decided, or might have been decided, between the same parties. Both 22 the essential ingredients of the principles of Res Judicata are completely absent in the present case.
22. We would like to discuss one more aspect of the matter, though not placed before us, but was raised before the learned Single Judge and has been rejected. The Commission‟s revised recommendation was accompanied with a suggestion that these writ petitioners may be accommodated against the future vacancies. The State Government took a firm stand before the learned Single Judge, expressing disagreement with the Commission‟s suggestion. The learned Single Judge on adjudication rejected the contention. We entirely agree with the view taken by the learned Single Judge that it is not possible to accommodate the petitioners against future vacancies.
22.1. As is the subject-matter of the present proceeding, appointment to one reserved category alone is in question. If appointment of those of the writ petitioners who are still interested is made, then it will create an imbalance with respect to the ratio of the different categories. It will create an extra-ordinary and perhaps unresolvable situation with respect to this batch, because the vacancies of the remaining categories will also have to be enhanced which is not possible and too late also. The candidates have joined more than 7 to 8 years ago, and examinations for at least six more batches have already taken place. It will create near-chaos situation for the administration. Further, citizens of this reserved category who 23 have become qualified later on would be deprived of their opportunity. This will result in grave inequity, and it is not possible to countenance such a situation. These writ petitioners have been required to give way to candidates who have scored higher marks, and in a situation where appointment letters were not issued to them. It is doubtful whether any enforceable right was created in their favour.
23. We entirely agree with the judgment of the learned Single Judge in C.W.J.C. No.10337 of 2000. Consequently, L.P.A. No.313 of 2001 is hereby dismissed.
24. C.W.J.C. No. 695 of 2001 was preferred by similarly circumstanced candidates and raised just the same issues. The same was dismissed by the same learned Single Judge by a brief order dated 2.5.2001, and entirely on the basis of the judgment in C.W.J.C. No.10337 of 2000. Therefore, there is no need to discuss this appeal separately. L.P.A. No.507 of 2001 is also dismissed.
25. In the result, L.P.A. No.313 of 2001, and L.P.A. No.507 of 2001, are dismissed. In the circumstances of the case, there shall be no order as to costs.
(S.K. Katriar, J.) J.N. Singh, J. I agree.
(J.N. Singh, J.) Patna High Court, Patna Dated the 6th day of August, 2010.
S.K. Pathak/ (AFR)