LETTERS PATENT APPEAL NO. 1031 OF 2005 WITH CIVIL WRIT JURISDICTION CASE NO. 6315 OF 1999 WITH CIVIL WRIT JURISDICTION CASE NO.16456 OF 2008 ---- Letters Patent Appeal No.1031 OF 2005 (Against the order dated 21st July,2005 passed by learned Single Judge in C.W.J.C.No.172 of 2000) ----- ASHUTOSH KUMAR ROY SON OF LATE ANAND MOHAN ROY RESIDENT OF MOHALLA SRI KRISHNAPURI HOUSE NO.159/F, POLICE STATION SRI KRISHNAPURI,DISTRICT PATNA ---- APPELLANT Versus 1.THE STATE OF BIHAR, THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, OLD SECRETARIAT,PATNA 2.THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA 3.THE HOME SECRETARY-CUM-COMMISSIONER, GOVERNMENT OF BIHAR,PATNA 4.THE FINANCE SECRETARY-CUM-COMMISSIONER, GOVERNMENT OF BIHAR,OLD SECRETARIAT,PATNA 5.THE SECRETARY-CUM-COMMISSIONER,PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR,OLD SECRETARIAT,PATNA 6.THE DIRECTOR PROSECUTION, GOVERNMENT OF BIHAR, PATNA 7.THE HIGH COURT OF JUDICATURE AT PATNA THROUGH ITS REGISTRAR GENERAL,PATNA HIGH COURT,PATNA 8.THE BIHAR PUBLIC SERVICE COMMISSION THROUGH ITS SECRETARY, BAILEY ROAD,PATNA ----- RESPONDENTS ----- For the appellant : Mr.Ashutosh Kumar Roy(in person) For respondent nos.1 to 6: Mr.Awadhesh Pandey, G.A.7 For respondent no. 7 : Mr.Devendra Kumar Sinha For respondent no. 8 : Mrs.Nilu Agrawal ---- CWJC No.6315 of 1999 --- (In the matter of an applications under Article 226 of the Constitution of India) ---- 1.GYAN BHUSHAN TIWARI SON OF SHRI HARISHCHANDRA TIWARY, RESIDENT OF FLAT NO.C/2, 84 OFFICERS’ FLAT, NEAR SOUTH BIHAR CIRCLE OFFICER, NEW PUNAI CHAK,P.S.SHASHTRI NAGAR, TOWN AND DISTRICT PATNA 2.SHASHI BHUSHAN CHOUBEY SON OF SHRI LAXAMAN CHOUBEY, RESIDENT OF VILLAGE KULHARIYA,P.S.MOTIHARI, DISTRICT EAST CHAMPARAN 3.VINAY KUMAR LAL SON OF SHRI DEO NARAIN LAL RESIDENT OF VILLAGE SEDUKHA,PS.KHANPUR,DISTT.SAMASTIPUR 4.SITA RAM YADAV SON OF SHRI PARMESHWAR YADAV RESIDENT OF ANNAT SAH KI THAKURBARI,NALA ROAD,P.S. KADAMKUAN, DISTRICT PATNA 5.MD.IMTEYAZ AHMAD SON OF MD.SHARFUDDIN AHMAD, RESIDENT OF VILLAGE MEHADIA,P.S.DADAR,DISTRICT PURNEA 6.DHIRENDRA KUMAR SINHA SON OF SHRI RAM SWARUP SINGH SHARMA 2 RESIDENT OF DHANBAD,P.S.DHANBAD,DISTRICT DHANBAD 7.RAJENDRA KUMAR SINGH SON OF SHRI RAM JANAM SINGH RESIDENT OF VILLAGE NAWADA,P.S.RASULPUR CHATTI DISTRICT SARAN 8.NARENDRA KUMAR SON OF SHRI RAM CHANDRA PRASAD SINHA RESIDENT OF MOHALLA CHAINPURA, P.S.CHOWK PATNA CITY,DISTRICT PATNA 9.SHEO MUNI RAM SON OF LATE RADHA RAM RESIDENT OF VILLAGE MADHAPUR,P.S.SAHAAR,DISTRICT BHOJPUR 10.AJIT KUMAR SINHA SON OF LATE RANJIT KUMAR SINHA RESIDENT OF MOHALLA SULTANGANJ,P.S.SULTANGANJ, DISTRICT PATNA 11.MANOJESHWAR PRATAP SINHA SON OF SHRI SUVESHWAR PRATAP SINHA RESIDENT OF FLAT NO.72,KANKARBAGH,P.S.KANKARBAGH, TOWN AND DISTRICT PATNA ----------- PETITIONERS VERSUS 1.THE STATE OF BIHAR THROUGH THE SECRETARY, HOME POLICE DEPARTMENT,GOVERNMENT OF BIHAR, MAIN SECRETARIAT, PATNA 2.THE DIRECTOR, DIRECTORATE OF PROSECUTION, BIHAR RIDING ROAD, SHEIKHPURA,PATNA 3.THE BIHAR PUBLIC SERVICE COMMISSION THROUGH ITS CHAIRMAN, 16 BAILEY ROAD,PATNA 4.THE SECRETARY, BIHAR PUBLICE SERVICE COMMISSION, 16 BAILEY ROAD, PATNA 5.THE REGISTRAR GENERAL, HIGH COURT OF JUDICATURE AT PATNA 6.THE SECRETARY, FINANCE DEPARTMENT, GOVERNMENT OF BIHAR, MAIN SECRETARIAT, PATNA 7.THE SECRETARY, DEPARTMENT OF PERSONNEL, GOVERNMENT OF BIHAR, MAIN SECRETARIAT,PATNA ---- RESPONDENTS ---- CWJC No. 16456 of 2008 ---- (In the matter of an application under Article 26 of the Constitution of India) ---- 1.CHANDRA SHEKHAR BIMAL SON OF SRI JITENDRA PRASAD RESIDENT OF MOHALLA KANKARBAGH,POLICE STATION KANKARBAGH, DISTRICT PATNA (ROLL NO. 918) 2.NISHCHAL KUMAR SON OF SRI RAJENDRA THAKUR RESIDENT AT LUKLUKI,P.S.GODDA,DISTRICT GODDA(ROLL No.16296) Versus 1.THE STATE OF BIHAR 2.THE CHIEF SECRETARY,GOVERNMENT OF BIAHR, OLD SECRETARIAT, PATNA 3.THE HOME SECRETARY-CUM-COMMISSIONER, GOVERNMENT OF BIHAR,OLD SECRETARIAT,PATNA 4.THE COMMISSIONER –CUM-SECRETARY,HOME POLICE DEPARTMENT,GOVERNMENT OF BIHAR,OLD SECRETARIAT,PATNA 5.THE COMMISSIONER-CUM-SECRETARY, PERSONNEL ADMINISTRATIVE & REFORMS DEPARTMENT,GOVERNMENT OF BIHAR,OLD SECRETARIAT,PATNA 6.THE COMMISSIONER-CUM-SECRETARY, FINANCE DEPARTMENT,GOVERNMENT OF BIAHR,OLD SECRETARIAT,PATNA 7.THE DIRECTOR, DIRECTORATE OF PROSECUTION, HOME DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 8.THE BIHAR PUBLIC SERVICE COMMISSION,15, JAWAHARLAL NEHRU ROAD (BAILEY ROAD), PATNA THROUGH THE SECRETARY 9.THE HIGH COURT OF JUDICATURE AT PATNA THROUGH THE REGISTRAR GENERAL ------ RESPONDENTS ---- 3 For the petitioners : M/S Rajendra Prasad Singh,Sr.Advocate and Niranjan Kumar, Advocate (in both the writ petitions) For respondent nos.1,2,6 & 7 (in CWJC No.6315 of 1999)and for respondent nos.1 to 7 (in CWJC No.16456 of 2008) -- :Mr.Awadhesh Pandey,G.A.7 For respondent no. 5 (in CWJC No.6315 of 1999) and for respondent no.9 (in CWJC No.16456 of 2008) -- :Mr.Devendra Kumar Sinha For respondent nos.3 & 4 (in CWJC No.6315 of 1999) and for respondent no.8 (in CWJC No.16456 of 2008) -- : Mrs.Nilu Agrawal ----- P R E S E N T THE HON'BLE MR.JUSTICE SUDHIR KUMAR KATRIAR THE HON’BLE MR.JUSTICE SHYAM KISHORE SHARMA ----- S.K.Katriar,J. Petitioner no.2 of C.W.J.C.No. 172 of 2000 (Rabindra Nath Kanth and another Vrs.The State of Bihar and others), has preferred L.P.A.No. 1031 of 2005, under Clause 10 of the Letters Patent of High Court of Judicature at Patna, and is aggrieved by the order dated 21.7.2005, whereby the writ petition was dismissed. The appellant seeks a direction to the respondent authorities to fill up the posts of Assistant Public Prosecutor which have fallen vacant till the date of interview as per the selection process in question. The appeal and the two writ petitions raise identical issues with respect to the same advertisement and the selection process and have, therefore, been heard together and are being disposed of by a common 4 judgment. 2. A brief statement of facts giving rise to the appeal may be indicated. On the request of the State Government, the Bihar Public Service Commission (hereinafter to be referred to as “the Commission”), published advertisement on 31.7.1996, inviting applications to fill up 88 posts of Assistant Public Prosecutor. The Commission thereafter issued a corrigendum whereby the number of posts to be filled up were raised to 246, out of which 28 were reserved for the Scheduled Tribe candidates. Petitioner no.2 (the appellant in this appeal), participated in the selection process. The Commission published the result on 4.7.1998. The result was published roll-wise, according to which 225 candidates were successful. It appears that, out of 28 vacancies reserved for Scheduled Tribe candidates, only 7 were found fit and recommendations were accordingly made. In other words, no recommendation could be made for the remaining 21 vacancies for the reserved category of Scheduled Tribes. The writ petitioners did not figure in the final list. They approached this Court by preferring the aforesaid C.W.J.C.No. 172 5 of 2000, wherein they submitted that all the vacancies of Assistant Public Prosecutor falling vacant till the date of interview should be filled up by the selection process in question. During the course of oral submissions, it was also pointed out that persons were still being appointed in a surreptitious manner after the selection process had been finally closed by the Commission. The writ petition has been dismissed by the impugned order. Hence this appeal by petitioner no.2. 3. While expressing grievance with respect to the impugned order, the appellant submits that the learned Single Judge has committed error in not issuing a writ of mandamus to fill up the vacancies as prayed for. He also submits that three persons have been appointed much after the Commission had finally closed the selection process and recommendation has been finally made. In support of his contention, the appellant has relied upon a decision of the Supreme Court in the case of Sandeep Singh Versus State of Haryana and another reported in (2002) 10 SCC 549. 4. Mr. Rajendra Prasad Singh appearing 6 for the petitioners in C.W.J.C.No. 6315 of 1999, and C.W.J.C.No. 16456 of 2008, has advanced common set of submissions in support of the two writ petitions. He submits that the advertisement dated 31.7.1996 (annexure-2), inter alia, stated that “RIKTIYON KI SANKHIA MEN PARIVARTAN HO SAKTA HAI”. He next submits that the Commission had indeed issued corrigendum published on 15.11.1996 (annexure-3), whereby the number of vacancies were increased. There is no restriction on the part of the Commission or the State Government to revise the vacancies. He next submits that a copy of advertisement in question was not part of the writ proceedings of C.W.J.C.No. 172 of 2000, and the learned Single Judge was, therefore, unable to take into account the relevant terms and conditions in the advertisement to the effect that there could be alteration of vacancies. He also relies on the judgment of the Supreme Court in the case of Sandeep Singh.Vrs.State of Haryana and another (supra). He lastly submited that petitioner nos. 2,3,8 and 9 of C.W.J.C.No. 6315 of 1999, have already joined Bihar Judicial Service and are, therefore, no longer interested in seeking 7 appointment as Assistant Public Prosecutor. 5. Learned counsel for the respondents have supported the order of the writ court and have relied upon the decision of a Division Bench of this Court in the case of Birendra Kumar and others. Vrs. The State of Bihar and others and its analogous case (Vishwa Ranjan Choudhary Vrs.The State of Bihar), reported in 2009 (2) P.L.J.R. 771. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. It is evident that as per the advertisement made on 31.07.1996, altogether 246 vacancies of Assistant Public Prosecutor were required to be filled up. The appellant did participate in the selection process, and the Commission recommended the names of 225 candidates for appointment. Only 7 out of 28 vacancies could be recommended for appointment in the reserved category of the Scheduled Tribes, and none of the writ petitioners including the appellant herein has staked claim to these seats of the reserved category which remained unfilled. The appellant failed in the examination as a result of which his name could not be 8 recommended. Secondly, it is not the appellant’s case that any person lower in the merit list than the writ petitioners has been appointed. Thirdly, the selection process has been closed long time ago. 7. We must consider the contention advanced on behalf of the appellant that the Commission recommended names of candidates surreptitiously. It appears to us that it was brought to the notice of the Commission that, in view of computer-generated error, 58 candidates did not get any marks in a particular paper. Therefore, the Commission took the initiative of rectifying the mistake as a result of which three persons were included in the merit list and were recommended for appointment. It is thus evident that these three names were recommended in pursuance of rectification of bona fide error on the part of the Commission, and cannot be faulted. 8. One Dharmendra Kumar, another candidate, had approached this Court by preferring C.W.J.C.No. 6164 of 1998, which was disposed of by order dated 18.11.1999, whereby the Commission was directed to re-evaluate his 9 answer books, as a result of which he was within the zone of consideration for interview. However, in view of low marks obtained by him in the viva-voce test, his name was not recommended for appointment. 9. In view of foregoing discussion, it is evident that the appellant did not qualify to be considered for recommendation. No person below him has been recommended for appointment. The three persons recommended after the initial recommendation was made, was the result of rectification of a bona fide error by the Commission. Another candidate had to be reconsidered because of the order of this Court for re-evaluation of his answer books but he was ultimately not recommended for appointment. 10. Learned counsel for the respondents has relied upon the decision of a Division Bench of this Court in Birendra Kumar (supra), which raised the same issues as in the present appeal and the analogous writ petitions, and with respect to the same selection process. The same was dismissed on 29.1.2009, whereby the judgment of the Supreme Court in the case of Sandeep Singh Vrs.State of Haryana and another (supra), was 10 considered and distinguished on the following ground: “ . . . as observed earlier no circular or decision of the State Government has been brought to our notice providing that the vacancies available till date of interview have to be filled up from amongst earlier candidates.” 11. We are unable to accede to the submission advanced by learned counsel for the petitioners in the two writ petitions before us that the advertisement as well as the corrigendum were not placed before the learned Single Judge. We find no such indication in the impugned order of the learned Single Judge, nor any prejudice has been brought to our notice. The petitioners of the two writ petitions fail to realize that the initial requisition of 88 posts was increased to 246, thereby raising their chances of selection. Furthermore, the undivided State of Bihar was bifurcated with effect from 25.08.2000 in terms of the State Reorganization Act,2000. Thereafter the requirement in the present State of Bihar must have substantially 11 reduced. The Commission had already made recommendations on 4.7.1998. 12. We, therefore, do not find any error in the selection process and the recommendations made by the Commission. The appellant’s contention that all the vacancies occurring till the date of interview must be filled up by selection process in question is unsustainable in law for various reasons. Shortly after the advertisement was made, the State Government on its own had revised the number of vacancies to be filled up by raising it from 88 to 246 posts. It is entirely for the employer to fill up the number of posts, and interference by this Court may result in alteration of vacancies beyond requirement. It may also result in imposing a financial liability on long-term basis. Such a decision will deprive the persons who have become eligible after the advertisement, of consideration in future. The vacancies till the date of interview must not be filled up at a time also for the reason that persons of lower merit will be selected to the detriment of administration. This court can, however, interfere and direct the authorities to fill up 12 the posts only if a person lower than the aggrieved person in the merit list has been appointed. No such case has been put forth before us. 13. In the result, we do no find any merit in L.P.A.No.1031 of 2005, C.W.J.C.No. 6315 of 1999, and in C.W.J.C.No. 16456 of 2008, and are accordingly dismissed. In the circumstances of the case, however, there shall be no order as to costs. Sd/- ( Sudhir Kumar Katriar,J.) S.K.Sharma,J. I agree. Sd/- Patna High Court,Patna The 18th September,2009 Tahir/-(AFR) ( Shyam Kishore Sharma, J.)