IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12507 of 2011 ====================================================== Ashutosh Kumar Roy, son of late Anand Mohan Roy, R/o House No. 159/F, Sri Krishna Puri, P.S. – Sri Krishna Puri, P.O. – G.P.O., District – Patna (Bihar) .... .... Petitioner Versus 1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Old Secretariat, Patna, 2. The Principal Secretary, Department of General Administration, Govt. of Bihar, Patna, earlier known as Department of Personnel & Administrative Reforms, Govt. of Bihar, Patna, 3. The Bihar Public Service Commission through its Chairman, 4. The Secretary, Bihar Public Service Commission, Bailey Road, Patna, 5. The High Court of Judicature at Patna in its Administrative Side through the Registrar General, Patna High Court, Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Ashutosh Kumar Roy (In person). For the State : Mrs. Nivedita Nirvikar, GP 3 and Mr. Deepak Kumar, AC to GP 3. For the BPSC : Mr. Sanjay Pandey, Advocate. For the High Court : Mr. Lalit Kishore, AAG 1. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA CAV ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 3. 18-08-2011 This petition under Article 226 of the Constitution is filed by one Ashutosh Kumar Roy, an Advocate by profession. The matter at dispute is the selection of Munsifs pursuant to the 24th Bihar Judicial Service Competitive Patna High Court CWJC No.12507 of 2011 (3) dt.18-08-2011 2 / 6 2 Examination conducted by the Bihar Public Service Commission (hereinafter referred to as “the Commission”). Pursuant to the advertisement published on 3rd September 1990; after competitive examination and the interview a merit list was prepared and appointments were made in 1994. The grievance of the petitioner is peculiar. The petitioner claims that as on 31st December 1994, 327 vacancies in the cadre of Munsif were available; the Commission was, therefore, obliged to prepare a select list of 327 candidates and to recommend 327 candidates for appointment as Munsif. The second prong of the grievance is in respect of abolition of 50 posts of Munsif to create 40 posts of Sub Judge. Under the aforesaid advertisement published on 3rd September 1990, the Commission invited applications from eligible candidates for the 24th Bihar Judicial Service Competitive Examination for 7 vacancies. The advertisement specifically mentioned that there may be alteration in the vacancy position. After holding competitive examination, a notice was published on 7th October 1991 indicating that the recruitment would be made for 245 existing vacancies. The notice also indicated the extent of reservation for various categories. Pursuant to the said advertisement, the examination was conducted, interview was held, select list was prepared and appointments were made. Evidently, the petitioner was not selected for appointment as Munsif. Feeling aggrieved, the petitioner filed CWJC No. 2193 of 1995 under Article 226 of the Constitution. The said petition was dismissed on 19th May 1995 on the ground that the petition raised disputed questions of fact. One more writ petition, Patna High Court CWJC No.12507 of 2011 (3) dt.18-08-2011 3 / 6 3 being CWJC No. 5511 of 1994, was filed by one Rajesh Kumar Jha & others in the same subject matter. The present petitioner also joined in the said writ petition. The said writ petition came to be dismissed by this Court (Coram: Shiva Kirti Singh, J and Chandra Mohan Prasad, J) on 6th February 2006. The challenge to the said judgment before the Hon’ble Supreme Court failed. The petition for Special Leave to Appeal (Civil) No. 15184 of 2006 was dismissed in limine. Now, after five years the petitioner has raked up the same issue again to challenge the filling up of 245 vacancies against 327 vacancies available as on 31st December 1994 and the abolition of 50 posts of Munsif. The petitioner Ashutosh Kumar Roy has appeared in person. He has submitted that the advertisement published by the Commission categorically specified that the vacancy position may change. As the merit list was prepared in 1994, the vacancy as on 31st December 1994 ought to have been filled up by operating the merit list of the 24th Bihar Judicial Service Competitive Examination. He has also submitted that pursuant to the 23rd Bihar Judicial Service Competitive Examination, the vacancies as on the last date of the interview were filled up on the basis of the result of the said examination; the same treatment ought to have been given in respect of the 24th Bihar Judicial Service Competitive Examination. He has also challenged the action of the State Government in abolishing 50 posts of Munsif. He has submitted that all along no Court has considered the petitioner’s grievance in respect of the abolition of 50 posts of Munsif. In support of his submission, the petitioner has relied upon the judgments of the Hon’ble Supreme Court in the matter of Patna High Court CWJC No.12507 of 2011 (3) dt.18-08-2011 4 / 6 4 Sandeep Singh Vs. State of Haryana & Anr. [(2002) 10 SCC 549] and of this Court in the matters of Jyoti Kumar Tripathi Vs. State of Bihar & Or. [1995 (1) PLJR 483] and of Ashok Kumar & Anr. Vs. The State of Bihar & Ors. [2010 (1) PLJR 734]. The petition is contested by the respondents. Learned Additional Advocate General Mr. Lalit Kishore has appeared for the High Court. He has submitted that the petition is barred by principle of res judicata. The very issues agitated in the present petition were agitated in the earlier writ petitions, CWJC No. 5511 of 1994 & CWJC No. 2193 of 1995. In the present petition the petitioner has raised a stale claim and that since 24th Bihar Judicial Service Competitive Examination the Commission has conducted 25th & 26th Bihar Judicial Service Competitive Examinations. The 27th and 28th Bihar Judicial Service Competitive Examinations are in the offing. Therefore also, the present petition needs to be dismissed. In the matter of Sandeep Singh (Supra), a similar issue was raised in respect of recruitment for Haryana Civil Services (Executive Branch). The advertisement in question indicated the number of vacancies with stipulation that the vacancy position may change. The Hon’ble Court held, “The vacancies available in any particular service till the date of interview at least should be filled up from the very same examination unless there is any statutory embargo for the same.” It may be noted that in the present case also the advertisement did stipulate that the vacancy position may change. Accordingly, by a subsequent notice published on 7th October 1991 the precise vacancy position (245 vacancies) was notified. Hence, in our view, there was no scope for alteration thereafter. Patna High Court CWJC No.12507 of 2011 (3) dt.18-08-2011 5 / 6 5 The matter of Jyoti Kumar Tripathi (Supra) arose from the proceeding filed under the Contempt of Courts Act. The Court held that as directed by the order made on the writ petition, the Bihar Public Service Commission was required to send as many names as the number of vacancies available as on the date of the interview. In the matter of Ashok Kumar (Supra), the question was that of effect of change in the reservation policy made with retrospective effect upon the recruitment process already completed. The matter before us does not relate to the question of reservation or amendment to the substantive or procedural rule pending the recruitment process. This judgment, therefore, has no applicability to the facts of the present case. We do agree with the learned Additional Advocate General Mr. Lalit Kishore that the present petition is barred by the principle of res judicata and that the petition raises a stale claim. Nevertheless, we do note that the advertisement published by the Commission on 3rd September 1990 reserved the liberty to the Commission to alter the number of vacancies. In exercise of the said liberty the Commission published the notice dated 7th October 1991 to notify that the recruitment would be made for 245 existing vacancies. Thereafter, the Commission had no power or authority to alter the vacancy position. The said advertisement did not confer a right upon an applicant to assert how many vacancies shall be filled up pursuant to the said recruitment process. Besides, it is settled law that the number of vacancies advertised only can be filled up pursuant to a particular recruitment process. The vacancy arising after the date of the advertisement cannot be filled in by the same recruitment process Patna High Court CWJC No.12507 of 2011 (3) dt.18-08-2011 6 / 6 6 unless the intention to do so is mentioned in the advertisement expressly or by necessary implication. The claim of the writ petitioner that as the interviews were held in 1994, all vacancies existing as on 31st December 1994 shall be filled in by the same recruitment process is contrary to the settled law and is totally misconceived. Challenge to the abolition of 50 posts of Munsif is based on a wrong notion that the petitioner has a right to interfere in the matter. We must note that the abolition or creation of posts is the exclusive prerogative of the State Government. In the present case, it appears that the State Government had abolished 50 posts of Munsif and as against it created 40 posts of Sub Judge. Obviously, this must have been done keeping in view the requirement of the number of Judicial Officers at various levels of the State Judiciary. The petitioner has no locus standi to challenge the abolition or creation of posts in the State Judicial Service. The challenge is devoid of merits. For the aforesaid reasons, the petition is dismissed in limine. Having regard to the history of litigation, we are of the opinion that the repeated attempt of the petitioner to rake up imaginary grievances amounts to abuse of process of law. The petitioner is, therefore, required to be visited with exemplary cost. However, the petitioner being a member of the legal fraternity we do not impose cost upon him. NAFR Dilip. (R.M. Doshit, CJ) (Birendra Prasad Verma, J)