Patna High Court
The State Of Bihar & Ors vs Shardendu Bhushan & Ors on 30 April, 2014
Equivalent citations: AIR 2014 PATNA 136, (2014) 143 FACLR 968, (2014) 3 JCR 308 (PAT), (2014) 4 SCT 532, (2014) 2 PAT LJR 553
Author: R.M. Doshit
Bench: Chief Justice, Mihir Kumar Jha, Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.867 of 2005
In
Civil Writ Jurisdiction Case No. 9609 of 2003
With
Interlocutory Application No.4067 of 2005
In
Letters Patent Appeal No.867 of 2005
======================================================
1. The State of Bihar.
2. The Chief Secretary, Bihar, Patna.
3. The Secretary-cum-commissioner, Personnel & Administrative Reforms
Department, Government of Bihar, Patna.
4. The Commissioner- cum- Secretary, Road Construction Department,
Government of Bihar, Patna.
5. The Deputy Secretary, Road Construction Department, Government of
Bihar, Patna.
6. The Director, Road Construction Department, Government of Bihar,
Patna.
..... ..... Respondents-Appellants.
Versus
1. Shardendu Bhushan, Son of Sri Sheojee Singh, resident At: Defence
Colony, Quarter No. 164, Kankarbagh Colony, Patna-20, P.S. Kankarbagh,
District Patna.
2. Sajjan Kumari, Daughter of Ramochit Rajak, resident At + Post-
Chandaur, Via-Teghara, P.S. Bhagwanpur, District Begusarai.
3.Abhishek Upadhyay, son of Sri Chandra Mani Upadhyay, resident At-
Jangli Prasad Lane, Begumpur, Patna-9, P.S.-Chowk, Patna City, District-
Patna.
4.Indresh Kumar, son of Sri Sadhu Sharan Prasad, resident of Kakhara, Post-
Soh Sarai, P.S. Noorsarai, District-Nalanda.
5.Namrata Kumari, Daughter of Sri Jag Narayan Choudhary, resident At-
154/C, Ashok Nagar, P.S. Ashok Nagar, District Ranchi (Jharkhand).
...Petitioners-Respondents.
Patna High Court LPA No.867 of 2005 dt. 30-04-2014
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6. The Bihar Public Service Commission, 15, Jawahar Lal Nehru Marg,
(Bailey Road), Patna through its Secretary.
7. The Secretary, Bihar Public Service Commission, 15, Jawahar Lal Nehru
Marg, Bailey Road, Patna.
8. The Deputy Secretary, Bihar Public Service Commission, 15, Jawahar Lal
Nehru Marg, Bailey Road, Patna.
....... .......Respondents-Respondents.
======================================================
With
Letters Patent Appeal No.905 of 2005
IN
Civil Writ Jurisdiction Case No. 10796 of 2003
With
Interlocutory Application No.4101 of 2005
In
Letters Patent Appeal No.905 of 2005
======================================================
1. The State of Bihar.
2. The Secretary, Road Construction Department, Government of Bihar,
Patna.
3. The Joint Secretary (Management Cell), Road Construction Department
of Personnel & Administrative Reforms, Government of Bihar, Patna.
4. The Secretary, Department of Personnel & Administrative Reforms,
Government of Bihar, Patna.
5. The Additional Secretary, Department of Personnel & Administrative
Reforms, Government of Bihar, Patna.
6. The Deputy Secretary, Road Construction Department, Government of
Bihar, Patna.
..... ... .. Respondents-Appellants.
versus
1. Prem Kumar, son of Shri Mahesh Prasad Sinha, resident of village +
P.O.-Garang Rampur, P.S.-Belsar and District-Vaishali.
...... ......Petitioner-Respondent.
2. Bihar Public Service Commission, 15, Jawahar Lal Nehru Marg, (Bailey
Road), Patna through its Secretary.
Patna High Court LPA No.867 of 2005 dt. 30-04-2014
3/30
3. The Deputy Secretary, Bihar Public Service Commission, 15, Jawahar
Lal Nehru Marg, Bailey Road, Patna.
... ... Respondents-Respondents.
======================================================
Appearance :
(In LPA No.867 of 2005)
For the Appellants : Mr. Rajeev Kumar, Advocate
For the Respondents : Mr. Rajendra Prasad Singh, Senior Advocate
Mr. Niranjan Kumar, Advocate
(In LPA No.905 of 2005)
For the Appellants : Mr. Anil Kumar Sinha, Advocate
For the Respondent : Mr. Rajendra Prasad Singh, Senior Advocate
Mr. Niranjan Kumar, Advocate
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
And
HONOURABLE MR. JUSTICE MIHIR KUMAR JHA
And
HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
C.A.V. Judgment
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 30th April 2014
Feeling aggrieved by the common judgment and
order dated 15th October 2004 made by the learned single Judge
in CWJC Nos.9609 of 2003 and 10796 of 2003, the respondent-
State of Bihar has preferred these Appeals under Clause 10 of the
Letters Patent.
Letters Patent Appeal No.867 of 2005 came up for
hearing before the Division Bench. The Bench has, in view of
the conflicting judgments in the matter of Anil Kumar Mishra
Vs. The State of Bihar & Ors. [2004 (3) PLJR 246] and in the
matter of The State of Bihar & Ors. Vs. Arun Kumar [2005 (4)
Patna High Court LPA No.867 of 2005 dt. 30-04-2014
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PLJR 246], under order dated 30th January 2006 referred the
Appeal to the larger Bench. Under order dated 25th October 2010
made by the Division Bench, the above Letters Patent Appeal
No.905 of 2005 has been ordered to be heard with the Letters
Patent Appeal No.867 of 2005.
The matter at dispute relates to appointment of the
Assistant Engineers (Civil) under the Road Construction
Department of the State Government pursuant to a selection
process commenced in 1999. Pursuant to the requisition made by
the State of Bihar, the Bihar Public Service Commission
(hereinafter referred to as "the Commission") issued
advertisement calling for applications from the eligible
candidates to fill up 129 vacant posts of Assistant Engineer in the
Road Construction Department of the State of Bihar. Pursuant to
the said selection process, the respondents-writ petitioners and
many others applied for such selection and appointment. The
selection process of conducting a preliminary examination,
mains examination and the interview stretched over three years.
A select list of 127 candidates was prepared by the Commission
and was forwarded to the State Government on 6th January 2003.
Pending the selection process, the larger State of
Bihar was bifurcated. Under Government Notification dated 15th
November 2000, a part of the larger State of Bihar was separated
and a new State of Jharkhand was formed. Pursuant to the said
bifurcation and under the provisions of the Bihar Reorgnisation
Act, 2000; of the 129 vacancies advertised, 85 posts (2/3rd of the
total vacancies) were retained by the smaller/present State of
Bihar. The rest of the vacant posts were allotted to the State of
Jharkhand. The select list forwarded by the Commission on 6th
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January 2003 was operated to fill in the aforesaid 85 vacancies
falling to the share of the smaller/present State of Bihar. The rest
of the posts not being available to the State of Bihar were not
filled in by operating the select list prepared by the Commission.
The writ petitioners are the persons, who had applied for
selection and appointment to the posts of Assistant Engineer,
were also included in the list of 127 selected candidates, but were
not amongst the first 85 of the select list. The petitioners and
such others were, therefore, not appointed by the State of Bihar
in its employment.
Feeling aggrieved, the writ petitioners have
approached this Court under Article 226 of the Constitution for a
direction to the State of Bihar to appoint the writ petitioners on
the existing vacancies in the cadre of Assistant Engineer.
The learned single Judge has allowed the writ
petitions. The learned single Judge is of the opinion that the
State Government had made the requisition for 129 posts. The
Commission had prepared a select list of 127 candidates of
which 82 candidates have already been appointed. The remaining
candidates have a right to appointment on the existing vacancies.
The learned single Judge has, therefore, directed the State
Government to appoint the remaining 45 candidates on existing
vacancies. Feeling aggrieved, the State Government has
preferred these Appeals.
The first question that arises in these Appeals is
whether the candidates selected had indefeasible right to
appointment in the State employment. The law is well settled.
We do not need elaborate discussion to hold that by mere
selection no indefeasible right to appointment accrues to a
Patna High Court LPA No.867 of 2005 dt. 30-04-2014
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selected candidate.
The next question that arises is whether in view of
the bifurcation of the larger State of Bihar under the Bihar Re-
organization Act, 2000, the re-organized State of Bihar (Smaller/
present State of Bihar) was justified in curtailing the select list to
the extent the vacancies were allotted to the re-organized State of
Bihar.
In the matter of Anil Kumar Mishra v. The State of
Bihar & Ors. [2004(3) PLJR 246], the very issue arose before a
Bench of this Court in respect of 25th Judicial Service
Examination. In the said matter, the recruitment process had
commenced by the advertisement published on 18th September
1999. A similar claim was made by some of the successful
candidates. According to them, the result of the examination
having been published on 4th August 2000 before the bifurcation
of the State of Bihar, they were entitled to appointment on then
existing vacancies. The Hon‟ble Court upheld the action of the
State of Bihar in filling up only those vacancies which under the
Bihar Re-organization Act, 2000 remained with the State of
Bihar. The Court held, " ................ it has rightly been found
that according to the settled law empanelment does not
confer any vested right. In the facts of the case there was no
scope to grant relief to the intervenors such as the appellant
by invoking the principles of equality and to order for their
appointment against later vacancies which were not available
for the candidates of 25th Judicial Service Examination. Such
vacancies have to be filled up by holding further
Examination in accordance with law so as to give opportunity
to others also who are now eligible to take the next
Patna High Court LPA No.867 of 2005 dt. 30-04-2014
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Examination."
In the matter of Arun Kumar (supra), the matter at
issue was the appointment to the posts of Block Welfare Officer.
The recruitment process for filling up 113 vacancies was initiated
in 1999. However, in view of the bifurcation of then existing
State of Bihar, only 75 posts were filled in by operating the select
list prepared by the Bihar Public Service Commission. No
appointment was made on the remaining 38 vacant posts
allocated to the State of Jharkhand. In the ensuing litigation, the
learned single Judge allowed the writ petition. The Division
Bench in its discretion refused to interfere on the ground that the
said writ petitioners had been selected by an expert body- the
Bihar Public Service Commission after an excruciating selection
process. Evidently, the Division Bench had not noticed the above
referred judgment in the matter of Anil Kumar Mishra. In my
opinion, the judgment of the Bench in the matter of Arun
Kumar (supra) is per incurium and does not spell out a correct
law.
Mere selection by the Bihar Public Service
Commission did not entail an indefeasible right to appointment.
After bifurcation of the erstwhile larger State of Bihar and
formation of the present State of Bihar, the State of Bihar was
entitled to retain only 2/3rd of the posts sanctioned for the larger
State of Bihar. The re-organized State of Bihar, therefore, could
not have filled in all the posts which were sanctioned for the
larger State of Bihar as 1/3rd of such posts were allocated to the
State of Jharkhand.
In my opinion, the learned single Judge has erred in
holding that the writ petitioners had a right to appointment and
Patna High Court LPA No.867 of 2005 dt. 30-04-2014
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that they should be appointed on the existing vacancies. Further,
the direction to operate 2003 select list to fill in the vacancies
available in 2014 is against all canons of the principles of service
jurisprudence.
For the aforesaid reasons, I allow these Appeals. The
common judgment and order dated 15th October 2004 passed by
the learned single Judge in CWJC Nos.9609 of 2003 and 10796
of 2003 is set aside. CWJC Nos.9609 of 2003 and 10796 of 2003
are dismissed. The judgment in the matter of Anil Kumar
Mishra (supra) is affirmed. The judgment in the matter of Arun
Kumar (supra) is overruled.
Interlocutory applications stand disposed of.
(R.M. Doshit, CJ)
As per Mihir Kumar Jha, J
Though I fully agree with the conclusion arrived by
Hon‟ble the Chief Justice in her judgment, I would like to
express my own views, keeping in view the reference made to
the Full Bench by the Division Bench in its order dated
30.1.2006in L.P.A.No. 867 of 2005, which for the sake of clarity and convenience is quoted hereinbelow:
" This Letters Patent Appeal, at the instance of the State, is preferred against the judgment and order passed by a learned Single Judge by which the concerned authorities in the government are directed to appoint the remaining candidates in the list of 127 candidates sent by the Bihar Public Service Patna High Court LPA No.867 of 2005 dt. 30-04-2014 9/30 Commission, even though, according to the State, appointments have been made against all the 82 vacancies covered by the advertisement. The facts are very brief and simple. The Road Construction Department of the State Government made a requisition to the Commission for recommending names for appointment against 129 vacant posts of Assistant Engineer. On the basis of the requisition, the Commission issued advertisement no. 25 of 1999 in which the number of vacancies was specifically mentioned as 129. The requisition followed by the Advertisement was made in the year 1999, that is to say, before the division of the State. The selection process was still under way when the State of Bihar was divided w.e.f. 15.11.2000 under the Bihar Reorganization Act. On completion of the selection process the Commission sent to the State Government a list of 127 candidates vide letter no. 1023, dated 6.1.2003. It is the case of the State Government that as a result of the division of the State only 85 out of the total number of 129 vacancies remained with the bifurcated State of Bihar applying the ratio 2/3: 1/3 and the remaining went in the share of the State of Jharkhand. Out of the 85 vacancies, 82 were duly filled up; the remaining 3 were reserved for the Scheduled Tribes candidates but for that category, no eligible candidate was recommended in the Commission‟s list. Hence, no appointment was made against those three vacancies. The writ petitioners- respondents 1 to 5 (who though Patna High Court LPA No.867 of 2005 dt. 30-04-2014 10/30 finding place in the Commission‟s list of 127, were not among those appointees), came to this Court in the writ petition no. C.W.J.C.No. 9609 of 2003 seeking a direction from this Court for being appointed as Assistant Engineers like the 80 other candidates from the Commission‟s list.
In course of hearing before the writ court it came to light that 156 posts of Assistant Engineer were still vacant in the department and it is mainly on that ground that the learned Single Judge directed the State Government to appoint the remaining candidates from the Commission‟s list against the existing vacancies. It is this order of the writ court that comes under appeal before us.
Mr. Advocate General appearing in support of the appeal submitted that the learned Judge committed an error of law in directing the State to make appointments against posts not covered by the requisition and the advertisement issued by the Commission. He submitted that it was not open to the Court to give direction for appointment(s) in excess of the number of vacancies indicated in the advertisement. In this case the number of available posts was 129 which was reduced to 85 as a result of the division of the State and hence, the writ court was not right in giving the direction for appointment of candidates beyond that number. He further submitted that the writ court overlooked the fact that its direction would interfere with the selection process concerning other advertisements e.g. Patna High Court LPA No.867 of 2005 dt. 30-04-2014 11/30 Advertisement No. 128 of 1996 and would also gravely prejudice the rights of the future candidates who could be considered against the vacancies coming into existence after the issuance of the present advertisement. In support of his submissions, the Advocate General relied upon three Supreme Court decisions in Prem Singh and others vs. Haryana State Electricity Board & others, (1996)4 SCC 319; Surinder Singh and others vs. State of Punjab and another (1997) 8 SCC 488 and Secretary, A.P.Public Service Commission vs. B.Swapna & others, (2005)4 SCC 154. Mr. Rajendra Prasad Singh, Sr. Advocate, appearing on behalf of the contesting respondents submitted that the writ court was quite justified in giving the direction in light of the fact that a number of vacancies were still in existence against which all the remaining candidates could be easily adjusted. In support of his submission he relied upon an order dated 31.8.2005 by which a Division Bench presided over by the Hon‟ble the Chief Justice dismissed L.P.A.No. 567 of 2005 and two analogous appeals. Those three L.P.As. were filed by the State of Bihar against the judgment of a learned Single Judge in which similar directions were given under a similar set of facts. The only difference is that in those cases, appointments were to be made to the posts of Block welfare Officer. The writ Court directed for appointment of the recommended candidates in excess of the vacancies covered by the advertisement and the L.P.A. bench upheld the order and dismissed Patna High Court LPA No.867 of 2005 dt. 30-04-2014 12/30 the appeals filed by the State.
As against the order dated 31.8.2005 the Advocate General relied upon another Division Bench decision of this Court in Arun Kumar Mishra vs. State of Bihar & ors., 2004(3) PLJR 246. This case related to appointment to the Bihar Judicial Service and in this case the Court seems to have taken just the opposite view. Under similar circumstances, a Single Judge of the court rejected the prayer of the petitioners for appointment against the existing vacancies in the Bihar Judicial Service. In appeal the judgment and order made by the learned Single Judge was affirmed by another Division Bench of the court.
The decision in L.P.A.No. 567 of 2005 (State of Bihar & ors. vs. Arun Kumar) and the decision of Arun Kumar Mishra (supra) take practically opposite views on the same set of fact and law and are prima facie irreconcilable. It is, therefore, essential that this legal issue be resolved by a larger bench of this court. We, accordingly, refer this appeal to a larger bench. Let this matter be placed before the Hon‟ble the Chief Justice for being listed before the Full Bench of three judges."
(underlining for emphasis) A bare perusal of the aforesaid detailed order of reference containing full facts go to show it is actually the conflict in the two earlier Division Bench judgments in the cases of Anil Kumar Misra v. the State of Bihar & ors., reported in 2004(3) PLJR 246 and the other being State of Bihar & ors. V. Patna High Court LPA No.867 of 2005 dt. 30-04-2014 13/30 Arun Kumar& ors., reported in 2005(4) PLJR 246, to have taken practically opposite views on the same set of fact and law and thus irreconcilable, which has led to the reference to the Full Bench.
As the facts giving rise to these two appeals filed by the State of Bihar against the judgment of the learned Single Judge have already been set out in the order of reference of the Division Bench itself as also in the present judgment of Hon‟ble the Chief Justice I need not repeat them. Suffice to say that the respondent writ petitioners had filed the connected writ application for a direction for appointment on the post of Assistant Engineer (Civil) on the ground that they were found suitable and were recommended by the Bihar Public Service Commission (hereinafter referred to as „the Commission‟) against 129 post advertised. The appellant State of Bihar, however, had opposed such prayer that out of 129 posts only 85 vacancies, on account of reorganization of the erstwhile State of Bihar in view of Bihar Reorganization Act, 2000 had remained within the administrative control of the truncated State of Bihar and rest of them had stood allocated to the newly created State of Jharkhand and as none of the writ petitioners were within first 85 in the recommendation of the Commission, they could not be appointed in the State of Bihar.
The learned Single Judge, however, while allowing such prayer of the writ petitioners in the impugned judgments placing reliance on the judgment of the Apex Court in the case of Union of India & ors. V. Ishwar Singh Khatri & ors., reported in 1992 Supp.(3) SCC84 had allowed both the writ petitions with a direction for appointment of the writ petitioners and others on the Patna High Court LPA No.867 of 2005 dt. 30-04-2014 14/30 ground that even after bifurcation of the erstwhile State of Bihar, more than 200 post of Assistant Engineers were still vacant in the truncated State of Bihar and thus the remaining 45 candidates including the writ petitioners recommended by the Commission must be appointed in the present State of Bihar. It is this judgment of the learned Single Judge in the aforementioned two writ petitions, which have been made subject matter of these two appeals out of which L.P.A.No. 867/2005 by the aforesaid order of the Division Bench dated 30.1.2006 was initially referred to Full Bench and later on the other appeal, L.P.A.No. 905 of 2005 was tagged by another order of a Division Bench dated 25.10.2010.
Thus, in order to answer the reference to the Full Bench as with regard to the conflict in the two Division Bench judgments in the cases Anil Kumar Misra (supra) and Arun Kumar (supra) it would be essential to note that the main issue which arose for consideration in the two writ petitions was as to whether the recommendation of the Commission in favour of the writ petitioners had created any indefeasible right for their being appointed on the posts of Assistant Engineers so much so that evan after non-availability of advertised posts for them on account of bifurcation of erstwhile State of Bihar and consequential reduction of posts, they had to be still appointed as against future vacancies in truncated State of Bihar?
It is not in doubt that the Division Bench in the case of Anil Kumar Misra (supra) had already held that upon bifurcation of the State of Bihar the existing vacancies in the State of Bihar in Bihar Judicial Service could not be filled up on the basis of recommendation of the Commission confined to number of post Patna High Court LPA No.867 of 2005 dt. 30-04-2014 15/30 available in the State of Bihar. The Division Bench in this regard had held as follows:
4. In the judgment under appeal all the relevant materials have been properly considered and it has rightly been found that according to settled law empanelment does not confer any vested right, in the facts of the case there was no scope to grant relief to the intervenors such as the appellant by invoking the principles of equity and to order for their appointment against later vacancies which were not available for the candidates of 25th Judicial Service Examination. Such vacancies have to be filled up by holding further Examination in accordance with law so as to give opportunity to others also who are now eligible to take the next Examination.
Unfortunately this view of the Division Bench in the case of Anil Kumar Misra (supra) rendered on 15.4.2004 was not brought to the notice of the later Division Bench in the case of Arun Kumar (supra). The Division Bench in the case of Arun Kumar (supra) was in fact primarily persuaded with certain observations made in an unreported judgment rendered in the case of Subhas Chandra Yadav & ors. V. the State of Bihar & ors in C.W.J.C.No. 11491/2001 as also in the case of Junoon Sangi v. the State of Bihar & ors., reported in 2000(2) PLJR 577. From a bare reading of the Division Bench judgment in the case of Arun Kumar (supra) it would be found that the recommendation in the case of Subhas Chandra Yadav (supra) and Junoon Sangi (supra) were already made prior to bifurcation of the State of Bihar. Thus, even after such recommendation if number of posts Patna High Court LPA No.867 of 2005 dt. 30-04-2014 16/30 advertised were reduced due to bifurcation of State of Bihar no direction could be issued for appointment in terms of Section 72 of the Bihar Re-organization Act where a concept of bifurcation of post on 2/3rd and 1/3rd basis in the successor State of Bihar and Jharkhand has been bench-mark under the decision of the Govt. of India which is the competent authority to issue directions for apportionment of the existing vacancies as also the personnel who were working in the erst-while State of Bihar as on 15.11.2000.
Such an unforeseen contingency arising out of bifurcation of the erstwhile State of Bihar and consequential reduction of vacancy due to their apportionment in the ratio of 2/3rd and 1/3rd between the two successor States of Bihar and Jharkhand respectively w.e.f. 15.11.2000 could not have been visualized on the date of issuance of advertisement in December, 1999 and consequently the decision of the State Government to fill up only 85 posts from the merit list of the Commission can not be held to be arbitrary so as to lead to issuance of a direction to fill up all the advertised posts. Reference in this connection may usefully be made to the judgment of the Apex Court in the case of Jitendra Kumar & ors. vs. State of Haryana & anor., reported in (2008)2 SCC 161, wherein it was held as follows:
"47.It is, therefore, evident that whereas the selectee as such has no legal right, the superior court in exercise of its judicial review would not ordinarily direct issuance of any writ in absence of any pleading and proof of mala fide or arbitrariness on its part. Each case, therefore, must be considered on its own merit."
As a matter of fact the learned Single Judge in the Patna High Court LPA No.867 of 2005 dt. 30-04-2014 17/30 impugned judgment giving rise to two appeals also has dealt this aspect in the impugned judgment wherein he has found that the recommendation made by the Commission after 15.11.2000 could not have been made operative for the State of Jharkhand and to that extent his following finding is unexceptional:
"In respect of the remaining candidates of the recommendation made by the BPSC no step has been taken on the ground that during the pendency of the selection process Bihar Re-organization Act 2000 came into existence and out of the State of Bihar a new State Jharkhand was created on 15.11.2000. One-third vacancy out of the requisition and the recommendation of the BPSC has to be adjusted in the State of Jharkhand. In this regard it would be pertinent to mention that requisition was made for appointment of 129 Assistant Engineers on 30.1.99 and the process of selection i.e. the Preliminary Examination was held on 3rd of September, 2000 i.e. before bifurcation of the State of Bihar. In the case of Surendra Prasad vs. State of Bihar & ors., 2002(1) PLJR 519, a Bench of this Court held that recommendation of the BPSC has no binding effect in the State of Jharkhand and therefore no direction can be issued for appointment of the recommended candidates between the two nor can any direction be issued for allocation of the recommendees to the State of Jharkhand merely on the ground that when the advertisement was made and the written test etc. were held the State was one and the vacancies also comprised of the posts now allocated to the Jharkhand Patna High Court LPA No.867 of 2005 dt. 30-04-2014 18/30 State. Therefore, it is evident that the recommendation for appointment by the BPSC pursuant to the requisition would not be binding to the State of Jharkhand."
The question, therefore, would be if it was the requirement of law that both vacant and filled up post were to be apportioned on the basis of 2/3rd and 1/3rd basis between successor State of Bihar and the Jharkhand respectively and out of 129 post 44 posts had fallen in the share of the State of Jharkhand, could the State of Bihar after 15.11.2000 make appointment against those post? An apparent answer would be in negative and in fact the learned Single Judge also in the impugned judgment held so but then he has proceeded to take into account the concept of anticipated vacancies by relying on the judgment of the Apex Court in the case of Ishwar Singh Khatri (supra).
In my considered opinion first of all 200 vacancies which were reported to Hon‟ble Single Judge while hearing the two writ petitions on a direction issued by him to the State of Bihar to acquaint the Court with regard to existing vacancies on the post of Assistant Engineer cannot be even called to be anticipated vacancies, inasmuch as in paragraph no.6 of the supplementary counter affidavit the Deputy Secretary to Road Construction Department had stated as follows:
"That on 14.5.2004 the Hon‟ble Court also directed to file affidavit stating the vacancy for appointment. In this regard it is stated that total 156 (Civil) posts of Assistant Engineer are vacant in the Road Construction Department and 42 posts in Water Resources Department and 57 posts in P.H.E.D.. In R.E.O. 91 Patna High Court LPA No.867 of 2005 dt. 30-04-2014 19/30 posts are vacant which is earmarked for advertisement No. 128/96 of which recommendation has been received in the Department."
It would, thus, transpire that 200 vacancies referred to in the impugned judgment of the Hon‟ble Single Judge cannot be said to be even anticipated vacancies in terms of the advertisement in question confined to 129 posts issued in the month of December, 1999. All these 200 vacancies were in fact future vacancies on the post of Assistant Engineer (Civil) on which fresh appointment could be made only after inviting fresh application in terms of Rule 9 of the Bihar Engineering Services Rules.
The judgment of the Apex Court in the case of Ishwar Singh Khatri (supra) in fact must be held to be confined to the facts of that case where Delhi Administration in the year 1982 had notified 654 vacancies of trained graduate teacher and had asked the Employment Exchange to sponsor names of suitable candidates for appointment. The Employment Exchange during the period upto June, 1984, however, had sponsored as many as 4000 candidates and the Staff Selection Board after interviewing the candidates prepared panels containing an aggregate of 1492 names of selected candidates and that panel was displayed on the Notice Board stating specifically that the appointment will be made in order of merit from the select list till the last candidate is appointed. In the minutes of the meeting of the Staff Selection Board in fact a decision was also taken that the life of panels of selected candidates will be valid for indefinite period and that the panel of selected candidates will remain valid till all the candidates are offered appointment. Delhi Administration, Patna High Court LPA No.867 of 2005 dt. 30-04-2014 20/30 however, had appointed only 654 candidates and when remaining selected candidates were not appointed they had approached initially the High Court by filing their writ petitions which were later on transferred to Central Administrative Tribunal and the Tribunal keeping in view the decision of the Staff Selection Board as with regard to appointment of all empanelled selected candidates had issued a direction for appointment of rest of the candidates. That judgment of the Tribunal was made subject matter of the appeal before the Apex Court. The Apex Court, however, had held that the empanelled candidates had no right against future vacancies and its view to the aforesaid extent can be found from paragraph no.4 of the judgment of Ishwar Singh Khatri (supra) which reads as follows:
"4.Mr. Subha Rao for the appellant urged that the candidates included in the panels prepared by the Selection Board as far back in June 1984 cannot be held to have the right to appointment against vacancies arising subsequent to preparation of the panels. According to counsel, if that right is conceded it would be arbitrary and contrary to Article 16(1) of the Constitution which guarantees opportunity for all citizens in matter of employment or appointment to any office under the State. There is little doubt about this proposition. The selected candidates ordinarily will have a right to appointment against vacancies notified or available till the select list is prepared. They in any event cannot have a right against future vacancies."
Thus, the directions issued by the learned Single Judge in the impugned judgment to appoint left out 45 recommended Patna High Court LPA No.867 of 2005 dt. 30-04-2014 21/30 candidates in the list of 127 in the State of Bihar does not actually get support from the case of Ishwar Singh Khatri (supra) because the 200 vacancies against which directions have been issued by the learned Single Judge are out and out future vacancies.
As a matter of fact the Apex Court having held so in the case of Ishwar Singh Khatri (supra) that appointment from a panel cannot be made against future vacancies had gone into the aspect of anticipated vacancies till the date of preparation of panel which gets reflected from reading of paragraphs no. 6 and 7 of the judgment which again reads as follows:
"6. In fact we wanted to ascertain the actual number of vacancies that existed as on the preparation of panels of the selected candidates. We requested Mr. Subha Rao, counsel for Delhi Administration to find out and inform us about the actual fact. Counsel although took time to verify, finally pleaded his inability to furnish the required particulars.
7. Therefore, in the premises we have to conclude that the Selection Board prepared the panels containing 1492 candidates as against the then available vacancies. In view of this conclusion, it goes without saying that the selected candidates have a right to get appointment. We, therefore, see no reason to disturb the judgment of the Tribunal"
Thus, from reading of the judgment of Ishwar Singh Khatri (supra) two things become clear, firstly, an empanelled candidate cannot be appointed against future vacancies and secondly, in the facts of that particular case as the panel itself Patna High Court LPA No.867 of 2005 dt. 30-04-2014 22/30 contained a clause of appointment of each and very candidate, directions were issued for appointment of all the candidates.
In fact the judgment of Ishwar Singh Khatri (supra) has subsequently been also distinguished by the Apex Court in the case of Arup Das & ors. v. State of Assam & ors., reported in (2012) 5 SCC 559, while laying down the law that the appointments cannot be made beyond the number of advertised posts in the following words:
"17. It is well established that an authority cannot make any selection/ appointment beyond the number of posts advertised, even if there were a larger number of posts available than those advertised. The principle behind the said decision is that if that was allowed to be done, such action would be entirely arbitrary and violative of Articles 14 and 16 of the Constitution, since other candidates who had chosen not to apply for the vacant posts which were being sought to be filled, could have also applied if they had known that the other vacancies would also be under consideration for being filled up."
Having held so the Apex Court in the case of Arup Das (supra) had specifically explained and distinguished the case of Ishwar Singh Khatri (supra) in the following words:
"18.In fact, in the decision rendered in Ishwar Singh Khatri (supra) which was referred to by the High Court, this Court while considering the preparation of a panel of 1492 selected candidates as against the 654 actual vacancies notified, recorded the fact that after filling up the notified number of vacancies from the panel, no further appointments were made therefrom and instead Patna High Court LPA No.867 of 2005 dt. 30-04-2014 23/30 fresh advertisement was issued for further appointment. Since a promise had been made in the minutes of the meeting of the Selection Board that the panel would be valid till all the candidates were offered appointments, this Court held that the Selection Board had taken into consideration anticipated vacancies while preparing the panel. It is on such basis that this Court had observed that it had to be concluded that the Selection Board had prepared the panels containing 1492 candidates, as against the then available vacancies, and, accordingly, the selected candidates had a right to get appointment. It is in such circumstances that further appointments from the published panel of 1492 candidates, as directed by the Tribunal, were upheld."
As a matter of fact way back the Apex Court in the case of State of Haryana v. Subash Chander Marwaha, reported in (1974)3 SCC 220, had held that "the Government had no constraint to make appointments either because there are vacancies or because a list of candidates has been prepared and is in existence". This view was again reiterated in the case of Hoshiar Singh v. State of Haryana, reported in 1993 Supp. (4) SCC 337, wherein it was held that "the appointment to a post which was not advertised would deprive the candidates who were not eligible for appointment to the post on the last date for submission of the applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for such appointment". Yet again in the case of Surinder Singh & ors. v. State of Punjab & anor., reported in (1997)8 SCC 488, had declared the Patna High Court LPA No.867 of 2005 dt. 30-04-2014 24/30 appointment of 7737 post of teachers which became available in course of interview and during the process of posting of 2461 advertised number of post of teachers, wherein it was held as follows:
"16. It is in no uncertain words that this Court has held that it would be an improper exercise of power to make appointments over and above those advertised. It is only in rare and exceptional circumstances and in emergent situation that this rule can be deviated from. It should be clearly spelled out as to under what policy such a decision has been taken. Exercise of such power has to be tested on the touchstone of reasonableness. Before any advertisement is issued, it would, therefore, be incumbent upon the authorities to take into account the existing vacancies and anticipated vacancies. It is not as a matter of course that the authority can fill up more posts than advertised."
The same view has been further reiterated by the Apex Court in the case of Secretary, A.P. Public Service Commission v. B.Swapna & ors., reported in (2005)4 SCC 154, wherein it was held that it is indisputable principle of Service Law that there cannot be appointment beyond the advertised number of post. Yet again the Apex Court in the case of State of U.P. v. Rajkumar Sharma, reported in (2006)3 SCC 330, had laid down the law in this regard in the following words:
"19. In a recent decision rendered by this Court in State of U.P. (supra) this Court once again had to consider the question of filling up of vacancies over and above the number of vacancies advertised. Referring to the Patna High Court LPA No.867 of 2005 dt. 30-04-2014 25/30 various decisions rendered on this issue, this Court held that filling up of vacancies over and above the number of vacancies advertised would be violative of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution and that selectees could not claim appointments as a matter of right. It was reiterated that mere inclusion of candidates in the select list does not confer any right to be selected, even if some of the vacancies remained unfilled. This Court went on to observe further that even if in some cases appointments had been made by mistake or wrongly, that did not confer any right of appointment to another person, as Article 14 of the Constitution does not envisage negative equality and if the State had committed a mistake, it cannot be forced to perpetuate the said mistake."
A similar view was also recorded in the case of Rakhi Ray v. High Court of Delhi, reported in (2010)2 SCC 637, wherein the Apex Court had declared that vacancies could not be filled up over and above the number of vacancies advertised as recruitment of the candidates in excess of the notified vacancies would amount to denial of equal opportunity to eligible candidates being violative of Articles 14 and 16(1) of the Constitution of India and had observed as follows:
"It is settled law that vacancies cannot be filled up over and above the number of vacancies advertised as recruitment of the candidates in excess of the notified vacancies is a denial being violative of Articles 14 and 16(1) of the Constitution of India."
Patna High Court LPA No.867 of 2005 dt. 30-04-2014 26/30 The same view has also been reiterated by the Apex Court even in recent judgments in the case of K. Lakshmi vs. State of Kerala & ors., reported in (2012)4 SCC 115 and in the case of Arup Das (supra) Thus, from long line of the aforesaid cases of the Apex Court which only support the view taken by the Division Bench in the Case of Anil Kumar Misra (supra) I have no doubt in my mind that the direction issued for 45 candidates including the petitioners against 200 future vacancies cannot be sustained.
In Service Jurisprudence the „anticipated vacancies‟ and „future vacancies‟ have two different and distinct meaning. The prospect of there being anticipated vacancies in fact has to be indicated in the advertisement itself by disclosing the number of vacancies and those likely to take place within the fixed period. If, however, in the advertisement the number of posts is totally circumscribed and fixed with no indication of any anticipated vacancies, any vacancy occurring after the date of advertisement will be a future vacancy and that cannot be filled up by taking recourse to the earlier advertisement. Doing so would be in negation to the rights guaranteed under Articles 14 and 16 of the Constitution of India.
It is not in doubt that the learned Single Judge has gone to issue the direction in the impugned judgment on the basis of an affidavit filed by the State of Bihar that 200 more vacancies had become available after the advertisement was issued in the year 1999 but those vacancies being „future vacancies‟ keeping in view the specific provisions of Bihar Engineering Services Rules Class II, could not be filled up on the basis of an earlier selection confined to 129 post advertised in the year 1999 out of Patna High Court LPA No.867 of 2005 dt. 30-04-2014 27/30 which also 44 of them had stood allocated/ transferred to the State of Jharkhand. Let it be noted that under Bihar Engineering Services Rule, Rule 9 laying down the procedure for direct recruitment prescribes that the Commission has to advertise number of vacancies in the service to be filled up by direct recruitment and therefore, those 200 future vacancies could not be made part and parcel of Advertisement No. 25 of 1999 confined to 129 post only.
As a matter of fact it is precisely this very issue which was decided by the Division Bench of this Court in the case of Anil Kumar Misra (supra) relating to Bihar Judicial Service having a similar provision alike Bihar Engineering Services Rules. The Division Bench in the case of Anil Kumar Misra (supra) had held that "no appointment could be made on a future vacancies in Bihar Judicial Services on the basis of a recommendation confined to a particular number of post". Thus, the case in hand in all four corners is squarely covered by the ratio of Anil Kumar Misra (supra) which unfortunately was not brought to the notice of later Division Bench in the case of Arun Kumar (supra).
I am also not impressed with the plea of hardship of the candidates or the completion of long drawn selection process as has weighed upon the learned Single Judge in the impugned judgment and also appears to be the prime consideration of the Division Bench judgment in the case of Arun Kumar (supra) as found in the following passage:
"7.After anxious thought having recorded the view and the ultimate conclusion recorded by the learned single Judge in the impugned judgment and the celebrated Patna High Court LPA No.867 of 2005 dt. 30-04-2014 28/30 doctrine and principles of service jurisprudence and the exposition of the relevant proposition in the aforesaid two decisions relied upon by the learned Single Judge coupled with the fact that an expert body, which has been constituted under the Constitutional requirement has once recommended the names after undergoing stern requisite prescribed, exercise for recruitment of the officers concerned is not fully implemented on account of intervening circumstances of bifurcation of the State into two and at the time of consideration of the merits of the writ petitioners claim there being vacancies for the same cadre more than left out selected and recommended persons 38, the exercise of the Constitutional writ jurisdiction by the learned Single Judge in giving direction to consider and appoint the remaining persons, namely, 38 who originally form part of the list of 113 selected and recommended by the Commission in the larger interest of public would not be said to be a wrongful or an exercise, requiring our interference under the provisions of Clause 10 of the Letters Patent Appeal. ... ... ... ..."
In my opinion mere empanelment of a candidate in a select list does not confer any indefeasible right for also being appointed and in no event can override the right guaranteed under Articles 14 and 16 of the Constitution of India, wherein every eligible person has at least an ensured opportunity to be considered for appointment against a public post. The status of the writ petitioners was no better than the empanelled candidate recommended by the Commission against 129 post and thus Patna High Court LPA No.867 of 2005 dt. 30-04-2014 29/30 when those posts themselves got reduced 85 on account of bifurcation of the State of Bihar, the writ petitioners being admittedly below in the merit list of the Commission had no indefeasible right of being appointed on the post of Assistant Engineers. Law in this regard has been well settled by the Constitution Bench of the Apex Court in the case of Shankarsan Dash v. Union of India, reported in AIR 1991 SC 1612, and also in the case of UPSC v. Gaurav Dwivedi, reported in (1999)5 SCC 180, All India SC & ST Employees‟ Assn. v. A. Arthur Jeen, reported in (2001)6 SCC 380, Food Corporation of India v. Bhanu Lodh, reported in (2005)3 SCC 618 and Balakrushna Behera & anor. v. Satya Prakash Dash, reported in 2007(4) PLJR (SC) 209, wherein it has been consistently held that mere inclusion of name in the select list for appointment does not create indefeasible right for appointment even against the existing vacancies and the State has no legal duty to fill up all or any of the vacancies. Here in the present case after 44 of 129 posts did not remain in the administrative control of the State of Bihar on account of bifurcation of erst-while State of Bihar on account of its being allocated to State of Jharkhand w.e.f. 15.11.2000 there was no question of the petitioners and others of being appointed against those 200 posts which were out and out future vacancies.
Thus, for the reasons indicated above, it has to be held that the law laid down by the Division Bench in the case of Anil Kumar Misra (supra) lays down a correct law and a contrary view taken by another Division Bench in the case of Arun Kumar (supra) as well as the judgments of the two learned Single Judges in the case of Subhas Chandra Yadav (supra) as also in Patna High Court LPA No.867 of 2005 dt. 30-04-2014 30/30 the case of Junoon Sangi (supra) are bad and are accordingly overruled.
In the result, both the appeals are allowed and the impugned judgment of the learned Single Judge is set aside with the consequence of also dismissal of the two writ petitions i.e. C.W.J.C.No. 9609/2003 and C.W.J.C.No. 10796/2003.
There would be, however, no order as to costs.
( Mihir Kumar Jha, J)
Ashwani Kumar Singh, J I also agree.
(Ashwani Kumar Singh, J)
A.F.R.
Sunil/ Surendra