1 CIVIL WRIT JURISDICTION CASE No.11391 OF 1994 ****** In the matter of an application under Articles 226 and 227 of the Constitution of India. ****** DEO KANT PANDEY, son of Shri Diwakar Pandey, resident of Mohalla Babuganj, Gulzarbagh, Police Station Alamganj, town and district Patna ....Petitioner. Versus 1. The STATE OF BIHAR, through the Co-operative Department, New Secretariat, Vikash Bhawan, Patna. 2. The Joint Secretary, Co-operative Department, Government of Bihar, New Secretariat, Vikash Bhawan, Patna. 3. The Registrar, Co-operative Societies, Co-operative Department, Government of Bihar, New Secretariat, Vikash Bhawan, Patna. 4. The Joint Registrar (Audit), Co-operative Department, Government of Bihar, Biscomaun Bhawan, Gandhi Maidan, Patna. 5. The Bihar Public Service Commission, through the Chairman of the said Commission, 15, Bailey Road, Patna. 6. Shri Uma Nath Singh, name of father not known to the petitioner, Senior Audit Officer, District Audit Office, Co-operative Department, Patna. ……Respondents. ****** For The Petitioner : Mr. R.N.Mukhopadhaya, Advocate. For The Respondents State : Mr. Ram Bilash Mahto, A.A.G.-8 Mr. Manoj Kumar Singh, A.C. to A.A.G.-8 For the Respondent B.P.S.C.: Mr.D.K. Sinha, Sr. Advocate Mr. Anil Kumar Singh No.-1, Adv. For the Respondent No.6: Dr. Sadanand Jha, Sr. Advocate. Dr. Anil Kumar Upadhayay, Adv. ****** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA S.K. Katriar, J. The petitioner seeks a direction to the State Government to appoint him to the post of Senior Audit Officer as respondent no. 6 was appointed to the same post with effect from 18.02.1994, on the ground that both had scored the same marks at the competitive examination held by the then Bihar State Sub-ordinate Service Selection Board (hereinafter referred to as the Board). 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The Board had published an advertisement in 1985 (Annexure-2), bearing advertisement no. 6/85, inviting applications for 300 posts, including 9 posts of Senior Audit Officers in 06 category, namely, economically backward category. The petitioner as well as respondent no. 6 were applicants for the reserved 2 category 06. The results were published and both had scored 121 marks. Respondent no. 6 was appointed, but not the petitioner. 2.1) The petitioner felt aggrieved by the position that he as well as respondent no. 6 belonged to the same category, and had scored same marks and, therefore, there was no justification to exclude the petitioner. He moved the Court on a number of occasions, and he was advised to submit an appropriate representation before respondent no. 5. It may be stated that the advertisement had been issued, and the selection process had been conducted, by the Board, but the duties and functions of the Board were thereafter transferred to respondent no.5. The petitioner was directed to approach the appropriate authorities with full particulars raising his grievance. The petitioner’s representation was rejected by the State Government, in the Department of Co-operative Societies, and was conveyed to respondent no.5, by letter no. 1693, dated 19.03.1994 (Annexure-1) and impugned herein. The State Government assigned detailed reasons therein in support of appointment of respondent no. 6 to the exclusion of the petitioner. Hence this writ petition. 3. While assailing the validity of the impugned action, learned counsel for the petitioner submits that there is no valid basis to appoint respondent no.6 to the exclusion of the petitioner in a situation where both of them belonged to the same reserved category, and had scored the same marks. He next submits that one Rajiv Kumar had initially been erroneously shown in the list of recommendations in 06 category, though he had really applied, and belonged, to 05 category (Most Backward Classes). The authorities corrected the error in time and appointed Rajiv Kumar in 05 category, leading to the resultant 3 vacancy in 06 category, which should now be filled up by the petitioner. 4. Learned counsel for respondent nos. 1 to 4, respondent nos. 5 and 6, in their separate sets of submissions have supported the impugned action. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. We should first of all remind ourselves that the appointments were limited by the number of vacancies though both the petitioner as well as respondent no. 6. were candidates for the reserved category of 06 (Economically Backward Class), and they had scored 121 marks. The question which arises is as to how and why respondent no. 6 was preferred to the petitioner. The following as sorted list of candidates belonging to different categories form part of the recommendations dated 29.09.1992 (Annexure-7) and is reproduced hereinbelow: “foKkiu la[;k 6/85 NB~Bh fdLr ds (fld) vuq'kaflr mEehnokjksa ds uke in & ojh; vads{k.k ink0 Dze la[;k ojh;rk dzekad jkSy u0 Ukke vjk0 dksf V tUefrfFk izkIrk ad vuq'kafl r in vfHk; qfDr 1 2534 13/25383 f=Hkwou izlkn 01 15.11.62 129 ojh; vads{k. k inkf/kdk jh (fld) 2 2553 03/16516 jes'k dqekj 01 01.01.64 129 `` 3 2839 35/39849 v'kksd dqekj 05 22.12.63 127 `` 07 dksfV ds fo:) 4 3029 42/13821 fnus'k dqekj flag 05 08.01.58 125 `` `` 5 3073 01/05362 egs'k flag 05 11.01.61 125 `` `` 6 3081 01/10304 f'ko jru izlkn 05 04.02.61 125 `` `` 7 3101 01/08115 jktho dqekj 05 03.04.62 125 `` `` 8 3123 01/02379 Hkksfjd ;kno 05 26.01.68 125 `` `` 9 3131 01/08730 jkeukFk izlkn 05 30.12.63 125 `` `` 10 3146 16/26825 'kadj izlkn 05 09.07.64 125 `` `` 4 xqIrk 11 3616 (D) PR/40592 mek ukFk flag 06 04.01.56 121 `` `` 12 3645 01/03323 nso dkUr ik.Ms; 06 20.09.58 121 `` `` Sd/-” 5.1) It is evident on a perusal of the same that respondent no. 6 is the last but one candidate, and the petitioner is the last candidate in this list of recommendations. It is further evident that both belonged to 06 category, and had scored 121 marks. It is further clear that the date of birth of respondent no.6 is 04.01.56, and that of the petitioner is 20.09.58. In other words the respondent no. 6 was born earlier. 6. The petitioner had moved this Court earlier by preferring C.W.J.C. No.4784 of 1993, followed by two contempt applications bearing M.J.C. No. 1258 of 1993, and M.J.C. No. 236 of 1994. The combined effect of these orders was that the petitioner was advised to move the appropriate authority with relevant particulars. The petitioner had moved the authorities and his representation was rejected by the impugned order. It is, inter alia, stated therein that the following 9 candidates of 06 category had been recommended, and were ultimately appointed by the State Government on the posts of Senior Audit Officer, vide annexure-1. The same is reproduced hereinbelow: “Dzekad uke @jkSy u0 jksLVj fcUnq fu;qfDr vkns'k la[;k@ frfFk 1- Jh lat; dqekj flag 19 218 fnukad 21.03.90 (04/17924) 2- Jh vejsUnz dqekj 39 218 fnukad 21.03.90 (05/18276) 3- Jh dkes'oj feJ 71 218 fnukad 21.03.90 (10/22800) 4- Jh ohjsUnz fd'kksj izlkn 99 218 fnukad 21.03.90 (05/19926) 5- Jh lrh'k dqekj pkS/kjh 114 10955 fn0 5.11.90 (18/28230) 6- Jh vtqZu izlkn 145 10955 fn0 05.11.90 5 (05/18355) 7- Jh lat; dqekj 182 7783 fn0 28.10.92 (01/09298) 8- Jh lqjsUnz izlkn 217 7783 fn0 28.10.92 (01/11135) 9- Jh mekukFk flag 223 181 fnukad 18.02.94 (ih-vkj-@40592) ” 6.1) It is thus evident that respondent no. 6 was the last candidate to be appointed. Though this part of the impugned order does not give marks obtained by the candidates, it is the admitted case of the parties that the candidates from serial nos. 1 to 8 had scored higher marks than respondent no. 6 (at serial no. 9), and the petitioner. It is nobody’s case that a person with lower marks than the petitioner in 06 category was appointed, but his case is that he and respondent no. 6 had scored the same marks in the same reserved category, notwithstanding which respondent no.6 had been preferred. The answer has been provided in Annexure-7 and has been reproduced hereinabove. 7. Learned counsel for the respondents submitted in one voice that respondent no. 6 has been preferred because his date of birth is earlier than the petitioner. This is a well-recognized method to give preference to similarly circumstanced candidates. We, therefore, do not find fault with the impugned action. In view of the position that appointments were limited by the number of vacancies, it is not possible to grant any relief to the petitioner. 8. We must notice the last contention advanced on behalf of the petitioner, namely, the issue relating to date of birth of the petitioner and respondent no. 6 have not been stated in the pleadings of any one of the respondents. This is factually correct, but the 6 respondents have been able to establish this point on the basis of contemporaneous materials maintained by the Board and the State Government and, indeed photo copies of the same are annexed to the writ petition itself, on which learned counsel for the petitioner has himself placed reliance during the course of his submissions. We are, therefore, of the view that the question of date of birth of the two candidates is clearly discernible from the materials on record. 9. In the result we do not find any merit in the writ petition. It is accordingly dismissed. In the circumstances of the case, there shall be no order as to costs. (S.K. Katriar, J.) B.P. Verma, J. I agree. (Birendra Prasad Verma, J.) Patna High Court, The 4th November 2010 Anjani/Rahman/ (NAFR)