IN THE HIGH COURT OF JUDICATURE AT PATNA *** Letters Patent Appeal No.576 OF 1999 *** Against the judgment and order dated 9.4.1999 passed by a learned Single Judge of this Court in C.W.J.C. Nos. 12109 and 12307 of 1996. *** 1. NAVIN CHANDRA, SON OF SHRI RAJESHWAR PRASAD, RESIDENT OF MOHALLA MUSSALAHPUR, TIKIYA TOLI, P.S. SULTANGANJ, DISTRICT PATNA 2. CHANDRA SHEKHAR PRASAD RAI, SON OF SHRI RAM VIVEK RAI, RESIDENT OF A.G. COLONY, MAIN ROAD, P.S. SHASTRI NAGAR, DISTRICT PATNA 3. MOHD. ANWAR, SON OF LATE BADUL KHALID, RESIDENT OF MOHALLA DARJI BIGHA, WARD NO.1, P.S. CHATRA, DISTRICT CHATRA 4. RAM BARAN PANDIT, SON OF SHRI BAIJU PANDIT, RESIDENT OF VILLAGE DAUDNAGAR, P.S. BIDUPUR, DISTRICT ROHTAS 5. RAMANAND THAKUR, SON OF SHRI JAGDISH THAKUR, RESIDENT OF VILLAGE SHASHIPUR, P.S. JALE, DISTRICT DARBHANGA 6. LALLU SINGH, SON OF LATE RAM LAKHAN SINGH, RESIDENT OF VILLGE MEHANDIGANJ, P.S. MEHANDIGANJ, DISTRICT PATNA 7. CHATURGUN PRASAD, SON OF SHRI RAMAUTAR SINGH, RESIDENT OF VILLAGE MOSIMPUR, P.O. & P.S. KHUSRUPUR, DISTRICT PATNA 8. ARIND KUMAR, SON OF SHRI KIRSHNA SINGH, RESIDENT OF VILLAGE GULAM MEHARIABAD, P.S. DIDARGANJ, DISTRICT PATNA 9. PRAHLAD PRASAD AGRAWAL, SON OF SHRI RADHESHYAM AGRAWAL, RESIDENT OF MOHALLA DIWAN MOHALLA, PATNA CITY, IMAM LANE, P.S. KHAJEKALAN, DISTRICT PATNA 10. GIRISH KUMAR SINGH, SON OF LATE SATYA PRASAD, RESIDENT OF VILLAGE BAHACOUKI, P.S. DHARHARA, DISTRICT MUNGER 11. CHANDRA SHEKHAR PRASAD, SON OF LATE RAM SWARUP SINGH, RESIDENT OF VILLAGE MOULINAGAR, P.S. MANER, DISTRICT PATNA 12. PREM KUMAR SAH, SON OF SHRI SITARAM SAH, RESIDENT OF VILLAGE & P.O. SUPAUL, P.S. PATORI, DISTRICT SAMASTIPUR 13. SURENDRA PRASAD VERMA, SON OF LATE RAMANAND PRASAD VERMA, RESIDENT OF VILLAGE MURGICHAK, P.S. BIHTA, DISTICT PATNA 14. RAJESHWAR KUMAR LAL, SON OF SHRI RAMBRIKCHHA SAH, RESIDENT OF VILLAGE BIBIGANJ, MAIN ROAD, DANAPUR KANTT. P.S. DANAPUR, DISTRICT PATNA 15. JAI PRAKASH BHAGAT, SON OF SHRI HRIDAI BHAGAT, RESIDENT OF MOHALLA GARDANIBAGH, P.S. GARDANIBAGH, DISTRICT PATNA 16. BALIRAM PANDIT, SON OF LATE RAJARAM PANDIT, RESIDENT OF VILLAGE HINDUNI, P.S. PHULWARISHARIF, DISTRICT PATNA 17. SITARAM YADAV, SON OF SHRI BHIDHAR RAI, RESIDENT OF VILLAGE MAHUAR, P.S. BRAHMPUR, DISTRICT BHOJPUR (BUXUR) 18. OM PRAKASH VERMA, SON OF LATE DURGA PRASAD, RESIDENT OF VILLAGE CHANDISTHAN, P.O. DEORIA, DISTRICT GAYA 2 19. BIHARI MANDAL, SON OF LATE LAXMI MANDAL, RESIDENT OF VILLAGE AKHATWARA, P.O. VATORA, P.S. HATHORI, DISTRICT SAMASTIPUR 20. SHYAM SUNDER PRASAD, SON OF LATE BIRENDRA PRASAD GUPTA, RESIDENT OF VILLAGE & P.O. CHHAJAN, P.S. KURHNI, DISTRICT MUZAFFARPUR 21. SHYAM SUNDER PRASAD, SON OF SHRI RAMCHANDRA PRASAD, RESIDENT OF VILALGE MARIALGHAT, P.O. DIGHA, P.S. DANAPUR, DISTRICT PATNA 22. AJAY KUMAR THAKUR, SON OF SHRI YOGENDRA THAKUR, RESIDENT OF VILLAGE KAMROLI, P.S. SIMRI, DISTRICT DARBHANGA 23. KAMTA PRASAD SINGH, SON OF LATE ANANDI PRASAD SINGH, RESIDENT OF VILLAGE & P.O. NERUT, P.S. ASTHAMA, DISTRICT NALANDA 24. VIJAY KUAMR GUPTA, SON OF LATE LAXMAN PRASAD, RESIDENT OF MOHALLA SONARTOLI, P.S. KHAJEKALAN, PATNA CITY, DISTRICT PATNA 25. UMA SHANKAR PRASAD CHOURASIA, SON OF SHRI RAMDEO PRASAD CHOURASIA, RESIDENT OF VILLAGE AND P.O. NARI KHURD, P.S. TISIAUTA, DISTRICT VAISHALI 26. JAYENDRA PRASAD SINGH, SON OF SHRI GYANI PRASAD SINGH, RESIDENT OF MOHALLA GATE NO. 15, KANKARBAGH, LOHIYANAGAR, P.S.KANKARBAGH, DISTRICT PATNA 27. RAJENDSRA ROY, SON OF LATE MANGAL RAI, RESIDENT OF VILLAGE & P.O. BHARGAWAN, P.S. SUGOLI, DISTRICT EAST CHAMPRAN 28. MAHESH PRASAD, SON OF SHRI AJAY KUMAR YADAV, RESIDENT OF B.N.R.ROAD, P.S. SULTANGANJ, DISTRICT PATNA 29. BALIRAM PRASAD GUPTA, SON OF SHRI KESHAV PRASAD GUPTA, RSIDENT OF VILLAGE ITARI, DISTRICT BUXUR 30. PRADIP KUMAR, SON OF SHRI RAM PRASAD, RESIDENT OF VILLAGE JHINGNAGAR, P.O. & P.S. BIHARSHARIF, DISTRICT NALANDA 31. NAWAL KISHORE PRASAD, SON OF SHRI BASUDEO PRASAD, RESIDENT OF VILLAGE PARMANANDPUR, P.S. KATRISARAI, DISTRICT NALANDA 32. DHARMRAJ BIND, SON OF DEWKI BIND, RESIDENT OF VILLAGE ISEBIGHA, P.O. KUMHAWA, P.S. & DISTRICT JEHANABAD 33. SUGRIV PRASAD GUPTA, SON OF SHRI RAMA SHANKAR PRASAD, RESIDENT OF VILLAGE, P.O. AND P.S. BHATHUA, DISTRICT KAMUR 34. UPENDRA PRASAD, SON OF SHRI HIRA PRASAD SINGH, RESIDENT OF VILLAGE BHANDACHH, P.O. SOHSARAI, P.S. NURSARAI, DISTRICT NALANDA 35. RAMAUTAR SAH, SON OF SHRI MALWAR SAH, RESIDENT OF VILLAGE & P.O. DATUAR, P.S. KHAJOLI, DISTRICT MADHUBANI 36. RAJ NANDAN PRASAD SINHA, SON OF SHRI AYODHYA PRASAD SINHA, RESIDENT OF VILLAE & P.O. DHANAMA, VIA ALIGANJ, DISTRICT JAMUI-------------------PETITIONERS-APPELLANTS Versus 1. STATE OF BIHAR THROUGH THE COMMISSIONER-CUM- SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, MAIN SECRETARIAT, PATNA 2. JOINT SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, MAIN SECRETARIAT, PATNA 3 3. BIHAR PUBLIC SERVICE COMMISSION THROUGH ITS CHAIRMAN, BAILEY ROAD, PATNA 4. THE SPECIAL OFFICER ON DUTY, BIHAR PUBLIC SERVICE COMMISSION, BAILEY ROAD, PATNA---RESPONDENTS-RESPONDENTS *** For the Appellants : Mr. Rajendra Prasad Singh, Sr. Advocates with Mr. Shivendra Kishore, Advocate For the State : Mr. A. Amanullah, S.C. No.17 with Mr. A. K. Prasad, A.C. to S.C.No.17 For the B.P.S.C. : Mr. Ashok Kumar Sinha & Mr. Shyam Sunder Pandey, Advocates *** P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE JAYANANDAN SINGH *** Shiva Kirti Singh & J.N.Singh, JJ. Heard learned counsel for the appellants, learned counsel for the State and learned counsel for the Bihar Public Service Commission. 2. This appeal is directed against the judgment and order of the writ court dated 9.4.1999 whereby the writ petitions bearing C.W.J.C. Nos.12307 and 12109 of 1996 were dismissed on merits. 3. The matter in issue has long and chequered history. Advertisement No.13/87 was published on 7.8.1987 for holding 2nd Limited Competitive Examination to be conducted by the then Bihar State Subordinate Service Selection (hereinafter referred to as “the Board”) for appointment of Secretariat Assistants. The writ petitioners who are the appellants also applied to 4 take that limited competitive examination since appellant nos. 1 to 20 belonged to Secretariat and attached offices and appellant nos. 21 to 36 belonged to Muffasil offices and were eligible to apply for the higher post of Secretariat Assistant. The result was published on 22.11.1988 and on that basis, 308 candidates in total - 140 from Secretariat and attached offices and 168 from Muffasil offices were declared pass and were appointed to the post of Secretariat Assistants. The aforesaid result was challenged by Krishna Mohan Srivastava and others through C.W.J.C. No.3252 of 1990 on the ground that marks obtained by candidates in Hindi had to be treated only as qualifying marks but were not to be added in the aggregate marks and, therefore, merit list prepared by the authorities was not accordance with law. The said writ petition was allowed by judgment and order dated 24.3.1992 and the same is available as Anenxure-4 in the records of C.W.J.C. No. 12109 of 1996. That judgment directed the then Subordinate Service Selection Board to prepare and publish a fresh panel after excluding the marks obtained by the candidates in Hindi in excess of the qualifying marks. However, appointment of 308 candidates already made was saved and not quashed. 4. Subsequently, the Commission prepared another merit list excluding excess marks in Hindi and sent it to the Government on 15.3.1994. The names of writ petitioners figured in that merit list and accordingly, they were appointed as Secretariat Assistants. 5 5. In the meantime, two writ petitions bearing C.W.J.C.No.1777 of 1994 (Ghanshyam Kamti and others Versus State of Bihar & ors.) and C.W.J.C.No.4423 of 1994 (Devendra Prasad & others Versus State of Bihar & ors.) were preferred in this Court for declaration that appointments made beyond the vacancies notified in Advertisement no.13/87 after 22nd May 1990 i.e. 308 appointments, are null and void and the Government decision that the panel of successful candidates shall remain valid until a new panel on the basis of fresh examination is available, be declared illegal. These writ petitions were decided by a Division Bench of this Court by judgment and order dated 22nd March 1995 (Annexure-8 in the records of C.W.J.C.No.12109 of 1996). The Division Bench expressed its views candidly that if appointment of 308 persons already made had not been protected, it would have restricted the appointments to 357 and would have permitted only 49 more appointments beyond 308 but such a course of action would result in injustice to many who may be placed higher than those 308 persons in the respective categories. Hence, the Division Bench held that the correct course would be to direct the respondents to locate the last person out of 308 appointees in their respective categories and thereafter to identify persons from corresponding categories who had been placed above them in the revised merit list so as to recognize their appointments as valid and to terminate the appointments of the rest. In paragraph 25 of that judgment, the Division Bench further observed that while giving effect to the 6 aforesaid direction of this Court, the respondents would consider the cases of the persons as per rules of reservation in vogue at the time of advertisement and commencement of the appointment process. 6. The appellants were treated as candidates of 05 category i.e. category reserved for other backward castes (OBC). In the merit list of 308 persons initially appointed, the last candidate in that category from the source of Secretariat cadre had 87 marks whereas from the same source for the general category the last candidate had 84 marks. Similar candidates out of 308 persons appointed from the source of Muffasil cadre had been selected on different cut-off marks. For OBC i.e. 05 category, the last candidate was at 94 marks whereas for the general category, the last candidate was at 82 marks. In view of the aforesaid facts, the petitioners challenged their threatened termination from reversion from the posts of Secretariat assistants by filing writ petition bearing C.W.J.C.No.6688 of 1996 which was finally heard by a Division Bench and disposed of on 30th September, 1996. A copy of that judgment is Annexure 11 in the records of C.W.J.C.No.12109 of 1996. That judgment shows that the Division Bench reiterated its views in the case of Ghanshyam Kamti and others and observed that there should not be any difficulty in identifying such candidates who are placed below the last person appointed in their own category and to terminate their appointments. 7. When the services of the writ petitioners were terminated, they preferred writ petitions which have 7 been dismissed by the order under appeal. On behalf of the appellants, two main submissions have been advanced. Firstly, it was submitted that the proper category of writ petitioners for the purpose of finding out whether they have secured higher marks than the last person in that category has not been indicated by two Division Bench judgments noticed above and this issue has not been answered correctly by the writ court. According to learned counsel for the appellants, the writ petitioners could not have been treated as candidates belonging to 05 i.e. reserved category for OBC once it is found that they have secured more marks than last candidates in the general category of 308 persons initially selected and appointed. 8. Secondly, it was submitted that the appointments made subsequently after the appointment of 308 persons were saved by judgment and order of this Court, had to be made in accordance with the rules of reservation. According to learned counsel for the appellants, the rules of reservation were not properly observed and on that account, candidates obtaining higher marks than some of the candidates in the general category were wrongly retained in the category of reserved candidates and that has adversely affected the candidates from the reserved category particularly those belonging to 05 category. 9. We have already noticed earlier that this matter was considered, at the instance of the petitioners on two occasions by a Division Bench. Since 308 candidates initially appointed were protected from removal, the 8 latter Division Bench could not go into pure issues of law and had to do justice on the ground of equity alone, as far as found possible. On that account a direction was given in the judgment of the Division Bench contained in Annexure-8 to locate the last person out of 308 persons appointed in each category and thereafter to identify persons in the corresponding categories who were placed above them in the revised merit list so as to recognize their appointments as valid and to terminate the appointments of the rest. The Division Bench, in the absence of any challenge to earlier judgment protecting services of 308 candidates, could not have gone into the validity of appointment of 308 candidates on the touch-stone of rules of reservation nor we are required to do that. In fact, the Division Bench did not go into this issue and the only course left for the respondent-authorities was to go into mathematical exercise of locating the last candidate in each category and on the basis of marks obtained by the last candidate, protect the services of latter appointees if they had secured more marks than the last candidate in the respective categories. The latter Division Bench vide judgment and order contained in Anenxure-11 reiterated the views of the earlier Division Bench and directed for allowing the specified candidates who had secured higher marks in their categories to continue in service and to terminate the services of others. Such a direction did not ask for any exercise by the respondents to make further appointments so as to attract the rules of reservation. The only 9 exercise given to the respondents-authorities was to effect termination of those who had obtained lesser marks than the last person in their respective categories. 10. In view of two earlier Division Bench judgments which had attained finality, the writ court rightly found itself unable to enter into the issue raised on behalf of the writ petitioners that rules of reservation had not been properly implemented while making the selection and appointments. In that view of the matter, we find no substance in the second submission advanced on behalf of the appellants. 11. So far as first submission is concerned, learned counsel for the appellants has rightly placed reliance upon a judgment of the Supreme Court in the case of R.K. Sabharwal and others Versus State of Punjab and others [(1995) 2 Supreme Court Cases 745] which clarifies in paragraph 4 that so long as the instructions/rules providing certain percentage of reservations for the backward classes are operative, the same have to be followed despite any number of appointees/promotees belonging to the backward classes finding place in the list of successful candidates on the basis of their performance against general category posts. In view of such law which has been followed consistently, the respondents-authorities clearly committed an error in treating such of writ petitioners/appellants who had obtained equal or more marks than the last candidate in the general category, as a candidate of reserved category. For the purpose of saving their appointments, 10 once they had secured equal or more marks than the general category candidates, they had to be treated as a general category candidate and not as a candidate belonging to reserved category, in this case 05 category, meant for OBC. 12. On facts, we have been shown that out of appellants nos. 1 to 20 who belonged to secretariat cadre, appellant no.1 Navin Chandra, appellant no.3 Mohd. Anwar, appellant no.6 Lallu Singh, appellant no.8 Arvind Kumar, appellant no.9 Prahlad Prasad Agrawal and appellant no.10 Girish Kumar Singh have obtained 84 or more marks along with some others who are not the appellants/petitioners in these cases. Similarly, from the Muffasil cadre to which appellant nos. 21 to 36 belonged, all the appellants have obtained 82 or more than 82 marks. However, there is no dispute between the parties that appellant no.32 Dharmraj Bind who has claimed to belong to the reserved – 05 category, has not disclosed his actual marks and his name is not mentioned either in Annexure-2 or Annexure-9. In this factual background we find that appellants, as indicated above, who have obtained 84 or more marks and who belonged to secretariat cadre, should have been treated as general category candidates and on the basis of their marks, their services should have been protected in the light of earlier two Division Bench decisions. Similarly, the services of those appellants belonging to Mufassil cadre, who obtained 82 or more marks have to be treated as candidates belonging to the general category, their services were also required to be protected. In absence 11 of any specific averment regarding the marks obtained by appellant no.32 Dharmraj Bind, his case is remitted to the authorities for decision on the basis of the marks obtained by him. If he had obtained more marks than the last candidate of general category from muffasil cadre then his service shall also be protected. Accordingly, this appeal is allowed to the extent indicate above. The concerned appellants, as discussed above, who have secured more marks than the marks obtained by last candidate of the general category from the concerned cadres i.e. secretariat cadre or muffasil cadre, shall be allowed to continue in service and the order terminating their services shall stand quashed. 13. A plea was advanced before this Court on the ground of equity that the remaining appellants have continued in service on the post of secretariat assistant for about 16 years on account of the stay orders passed by the writ court as well as the appellate court, hence their services should also be similarly protected as services of 308 persons who had been initially appointed on the basis of merit list prepared erroneously. As discussed above, this matter has already been decided twice by a Division Bench of this Court and there is already a direction to remove those candidates, who have secured lesser marks than the last candidate from their respective categories. We find ourselves unable to consider such a prayer in the light of earlier Division Bench judgments. Hence, such request is not found acceptable. 12 14. This appeal is allowed to the aforesaid extent only. In the facts of the case, there shall be no order as to costs. (Shiva Kirti Singh, J.) (Jayanandan Singh, J.) Patna High Court, Patna The 16th February, 2009 A.F.R. (B.T.)