CIVIL WRIT JURISDICTION CASE No.12084 OF 1995 In the matter of an application under Articles 226 and 227 of the Constitution of India. _____ Suresh Prasad, son of Sri Ragho Prasad, resident of village – Khanji Etwar Sarai, P.O. Sohsarai, P.S. Rahui, District – Nalanda ---------- Petitioner Versus 1. The State of Bihar. 2. The Secretary, Excise and Prohibition, New Secretariat, Bihar, Patna. 3. The Commissioner, Excise, Bihar, Patna. 4. The Bihar Public Service Commission, through its Chairman, Bihar, Patna. 5. The Special Officer, Bihar Public Service Commission, Bihar, Patna. ------ Respondents For the petitioner: Mr. Dhananjay Kumar. For the BPSC : Mr. Ashok Kumar Choudhary. For the State: Mr. Sanat Kumar Mishra, AC to GA– 2. -------- 2 P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI Ajay Kumar Tripathi, J. Petitioner is a Government employee and at the relevant time was Assistant. By virtue of an advertisement issued in the year 1980, which was known as 4th Intermediate Level Examination, process was initiated for appointment of such employees who otherwise qualified in the competitive examination held by Bihar Public Service Commission. This was to fill up the post of Excise Sub-Inspectors as well in the Department of Excise. When the results were announced and merit list published, certain dispute arose on the distribution of the posts and the number of posts to be made available to reserved category candidates. 3 petitioners approached the High Court in CWJC No. 3873 of 1986 and CWJC No. 227 of 1987 with an allegation that in violation of the constitutional mandate more than 50 per cent of the posts are being offered to the reserved category. A detailed order of the High Court is annexure -24 to the writ application. While hearing the writ application of those petitioners, by virtue of an interim order, three posts of Excise Sub-Inspector were kept reserved. Those 3 three posts were directed to be filled up by the three petitioners by virtue of the order contained in annexure-24. All those candidates have come to be appointed many years ago but the petitioner continued to be a claimant for appointment against the recruitment carried in the year 1983. 2. The first ground on which the petitioner seeks direction is that it is an admitted position that one Rana Moti Lal Singh having lesser marks than the present petitioner had been appointed but the petitioner was not offered appointment by the respondents, which is an arbitrary decision on their part. 3. The fact that the petitioner had obtained more marks than Rana Moti Lal Singh is not denied in the counter affidavits which have come to be filed on behalf of the State as well as Bihar Public Service Commission. Their stand is that petitioner could not be appointed not because of lack of bonafide on their part but because of the vacancy status and because of the implementation of the order of this Court in the two writ applications(Annexure-24). As per the respondents there were only 44 vacancies which were to be filled up. 22 were made available to the reserved category 4 and 22 in the general category. After the recommendations had been made by the BPSC for appointment, by virtue of the interim order passed by the High Court in the two writ applications, three posts were reserved. There were 4 claimants to the post. Present petitioner was one of them. Since the earlier order of the High Court was already implemented and three petitioners came to be appointed, when the case of the petitioner was taken up on the basis of subsequent order, passed in the writ application, there was no post available for him to be filled up. Request in this regard was made by the BPSC to the State Government to release yet another seat or post for appointment but the State stood to its decision that not more than 44 posts are required to be filled up by the candidates in the excise department on the basis of the recommendations made by the BPSC. 4. Two things emerge from the above narration, one that the respondents cannot be faulted for appointing Rana Moti Lal Singh because judicial order was implemented when contempt application was filed. It was because of the High Court that Rana Moti Lal Singh came to be appointed even though he had lesser marks than the present petitioner. 5 The question is whether the petitioner had a claim for appointment on the last post or Rana Moti Lal Singh. Rana Moti Lal Singh came to be appointed on the order of the High Court earlier. The claim of the petitioner ought to have been considered and decided at that appropriate time and stage. Obviously, in absence of any clear directions by the court at the relevant time in favour of petitioner, the time has taken a march. Rana Moti Lal Singh has already worked on the said post for more than one and half decades now. If an interference was warranted, it was then not now. Another aspect is the advantage drawn by Rana Moti Lal Singh is based on a judicial order, the same cannot be modified or annulled by another Bench of equal strength. 5. Whether it was destiny or otherwise which prevailed against the petitioner this Court cannot certify but this aspect must be recorded that no appointment can be ordered to be made on a post for recruitment which was advertised in the year 1980 and process initiated in the year 1983 itself, though some appointments came to be made in the year 1995 on account of judicial intervention. 6 6. The Court therefore dismisses the writ application without passing any direction in favour of the petitioner. (Ajay Kumar Tripathi, J) Patna High Court; The 13th July, 2010. R. K. Pathak (NAFR)