IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 6826 of 2010 1. VIJAY KUMAR S/O SRI ARJUN KUMAR R/O VILL.- KARIHON, P.O.- BISHUNPUR BEJHA, P.S.- MAHUA, DISTT.- VAISHALI AT HAZIPUR, AT PRESENT POSTED AS SENIOR AUDITOR-II, OFFICE OF THE DEPUTY CONTROLLER OF ACCOUNTS, DEPARTMENT OF FINANCE (AUDIT), SARAN DIVISION, CHAPRA, DISTT.- SARAN AT CHAPRA 2. VIKAS KUMAR CHARAN S/O SRI RAMACHARAN PRASAD R/O MOHALLA- JAYA PRABHA NAGAR, MAJHAULIA ROAD, NEAR GUMATI NO.5, P.S.- KAZI MOHAMMADPUR, DISTT. AND TOWN- MUZAFFARPUR, AT PRESENT POSTED AS SENIOR AUDITOR-II, OFFICE OF THE DEPUTY CONTROLLER OF ACCOUNTS, DEPARTMENT OF FINANCE (AUDIT), TIRHUT DIVISION, MUZAFFARPUR, DISTT.- MUZAFFARPUR 3. RAJEEV RANJAN GUPTA S/O SRI RAGHUBIR SINGH R/O RAGHUBIR SADAN, MOHALLA- CHANDMARI, P.O. & P.S.- MOTIHARI, DISTT.- EAST CHAMPARAN AT MOTIHARI, AT PRESENT POSTED AS SENIOR AUDITOR-II, OFFICE OF THE DEPUTY CONTROLLER OF ACCOUNTS, DEPARTMENT OF FINANCE (AUDIT), TIRHUT DIVISION, MUZAFFARPUR, DISTT.- MUZAFFARPUR Versus 1. THE STATE OF BIHAR 2. THE CHIEF SECRETARY GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 3. THE PRINCIPAL SECRETARY DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 4. THE PRINCIPAL SECRETARY DEPARTMENT OF FINANCE, GOVT. OF BIHAR, OLD SECRETARY, PATNA 5. THE PRINCIPAL SECRETARY DEPARTMENT OF RURAL DEVELOPMENT, GOVT. OF BIHAR, NEW SECRETARIAT, VIKAS BHAWAN, PATNA 6. THE DEPUTY SECRETARY DEPARTMENT OF RURAL DEVELOPMENT, GOVT. OF BIHAR, NEW SECRETARIAT, VIKAS BHAWAN, PATNA ----------- For the Petitioner:- Mr. Nityanand Mishra, Adv. For the State:- Mr. A. K. Dwivedi, Adv. Mr. Rana Ishwarchandra, AC to G.P. 13. ----------------- 5. 13.9.2010 Heard learned counsel for the petitioners and learned counsel for the State. The three petitioners are stated to be Senior Auditor-II in the Department of Finance. They question the list drawn up by the Rural Development Department from which persons have been temporarily appointed as Block 2 Development Officers (B.D.O's), Circle Officers and Executive Magistrates from specified departments on deputation for a period of three years through an advertisement. The appointments on the post of Circle Officers and Executive Magistrates are additionally challenged on the ground that the advertisement dated 5.2.2010 was for appointment of B.D.O’s only. It is submitted that the Bihar Gramin Vikash Sewa Samvarg Niyamawali, 2010 (hereinafter referred to as the ‘appointment rules’ ) was framed on 19.1.2010 in exercise of powers under Article 309 of the Constitution of India. Rule 8(b) of the appointment rules empowers appointments on temporary basis in services under Schedule-I pending regular appointment to cease automatically upon regular appointment being made. The necessary notification for such appointments has been issued on 19.1.2010 which provides four qualifications and specifies the duration of appointment by deputation as three years. An advertisement was published on 5.2.2010 inviting applications for appointment on the post of B.D.O.'s from seven supervisory level posts of the specified departments mentioned in the advertisement. It is not in controversy on behalf of the State that the petitioners also hold a supervisory level post like those 3 mentioned in the advertisement. However, the Department of Finance and consequentially Senior Auditor-II are not mentioned as one of the eligible departments or posts from which persons may apply. The Bihar State Auditor Association (hereinafter referred to as the ‘Association’) approached this Court earlier in C.W.J.C. No. 3716 of 2010. The petitioners are acknowledged to be a member of the Association. The same grievance was raised that personnel from the Finance Department have not been qualified as eligible to apply though they meet the conditions of eligibility holding supervisory level posts. The association had represented for the same. This Court on 11.3.2010 disposing off the writ application observed as follows:- “While it would not be the jurisdiction of this Court to rewrite conditions of advertisement but simultaneously this Court observes that when any appointment is to be made to a government post, endeavour should be made to grant equal opportunity to all who fulfill conditions of eligibility so that the best talent is made available keeping in mind that it is the duty of the Government also as a reasonable employer to provide equal opportunity to all who may be eligible to apply.” This Court, therefore, holds that conditions of eligibility for appointment are for the employer to decide and not for the Court to direct. The order passed therein binds the petitioners also since they are members of the 4 association. It is fairly acknowledged that the order in C.W.J.C. No. 3716 of 2010 has attained finality, not having been questioned in appeal. The counter affidavit of the respondents states that a committee was constituted for purposes of identifying the supervisory level posts which were considered relevant and conducive for appointment on the post of B.D.O. in the Rural Department on deputation. The committee identified the seven departments based on its identification of the qualification, job requirement and needs of the post of a B.D.O. and the nature of work concerned. Officers who were closely associated in the conduct of day to day work of the Block office included implementation of the scheme of the Rural Development and other line departments were considered more conducive than those discharging duties of a technical nature like the petitioners. There can be no doubt that the petitioners as Senior Auditor-II are discharging work of a technical nature. The law stands well settled that it is for the employer to specify its own need for the kind of personnel it requires for discharge of specified nature of works. This Court cannot redefine the needs and eligibility specified by the Government as per its own understanding. In A.I.R. 1990 SC 535 ( J. Ranga Swamy vs. Government of Andhra Pradesh & Ors.) it has been held at 5 Paragraph -6 as follows:- “6. ........ It is not for the Court to consider the relevance of qualifications prescribed for various posts. ......There is nothing prima facie preposterous about this requirements. It is not for us to assess the comparative merits of such a doctorate and the BARC diploma held by the petitioner and decide or direct what should be the qualifications to be prescribed for the post in question..... .” In (2002 )6 SCC 252 (State of Rajasthan Vs. Lata Arun) it has been held at Paragraph 13 as follows:- “13. From the ratio of the decision noted above it is clear that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. It is not for Courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the authority.” That appointments have been made on the post of Circle Officers and Executive Magistrates when the advertisement was confined to that of BDO’s only, may have its relevance in an application by a person from one of the eligible departments to question. When the petitioner has been held to have no locus under the advertisement, this Court is not persuaded to examine those issues in the present writ petition. The next submission is that the department of Revenue and Land Reforms has framed similar Rules for appointment of Anchal Adhikari on deputation pending regular appointment and published an advertisement on 6 20.4.2010. This includes the Department of Finance as eligible to apply including those holding the post of Finance Audit/Accounts services to which the petitioners belonged. This advertisement is however confined to persons from the reserved category only. The respondents cannot confine appointments to the reserved category only but must make general appointments also. It is additionally urged from the counter affidavit that the Rural Department has transferred 560 Supervisory posts in the general category to the Revenue Department and therefore the Revenue Department must be directed to fill up all the transferred posts. From the recitals contained in the advertisement issued by the Revenue and Land Reforms Department, it is apparent that it is confined to appointments in the reserved category posts according to roster. The Government is fully competent to make appointments even by way of a special drive on reserved posts so as to ensure that all reserved category posts are filled up. The petitioners cannot question the same and did not question the right of the Government to conduct a special drive to fill up reserved category posts. That leaves the issue of 560 posts transferred to the Revenue and Land Reforms Department inclusive of general category posts. The mere availability of a post does not create a right to be considered for appointment much less for appointment. A post may remain vacant. To fill up 7 the post or not to fill up is a policy decision to be taken by the Government itself and not for the Court to decide whether the posts should remain vacant or be filled up. The mere availability of 560 vacant posts as urged in the Department of Revenue and Land Reforms does not vest a legal right in the petitioners to demand a mandamus to call upon the Government to fill up all the vacant posts. The Court cannot issue such a direction. In ( 2005 )3 SCC 618 (Food Corporation of India Vs. Bhanu Lodh) it has been held at Paragraph 14 as follows:- “14. Merely because vacancies are notified, the State is not obliged to fill up all the vacancies unless there is some provision to the contrary in the applicable rules. However, there is no doubt that the decision not to fill up the vacancies, has to be taken bona fide and must pass the test of reasonableness so as not to fail on the touchstone of Article 14 of the Constitution. Again if the vacancies are proposed to be filled, then the State is obliged to fill them in accordance with merit from the list of the selected candidates. Whether to fill up or not to fill up a post, is a policy decision, and unless it is infected with the vice of arbitrariness, there is no scope for interference in judicial review.” In light of the aforesaid discussion, this Court finds no merit in the writ application. It is accordingly dismissed. P. Kumar ( Navin Sinha, J.)