IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12809 of 2010 1. DR. AJAY KUMAR SINGH S/O SRI RAM BRIKSH SINGH R/O MOHALLAH- SHEIKHPURA, P.S.- SHASTRI NAGAR, DISTT.- PATNA (BIHAR)-------------------------------PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY TO THE GOVERNMENT OF BIHAR MAIN SECRETARIAT, PATNA-800015 2. THE SECRETARY, DEPARTMENT OF HEALTH GOVERNMENT OF BIHAR, SECRETARIAT, PATNA (BIHAR) 3. THE SECRETARY, DEPARTMENT OF PERSONNEL & ADMINISTRATIVE REFORMS GOVERNMENT OF BIHAR, MAIN SECRETARIAT, PATNA-800015 4. THE SECRETARY BIHAR PUBLIC SERVICE COMMISSION, BAILEY ROAD, PATNA (BIHAR) 5. THE PUBLIC INFORMATION OFFICER BIHAR PUBLIC SERVICE COMMISSION, BAILEY ROAD, PATNA (BIHAR)----RESPONDENTS ----------- For the Petitioner: Mr. M.P. Dixit, Advocate For the BPSC: Mr. Nilu Agrawal, Advocate For the State: Mr. Kinkar Kumar, AC to GP-25 ---------- 2 6.4.2011 Heard learned counsel for the parties. Petitioner wants a direction upon the respondents for issuance of a letter of appointment in his favour on the post of Civil Assistant Surgeon in Bihar Health Services Class II since in the initial declaration of result by Bihar Public Service Commission his name figured as one of the successful candidates. The short facts are required to be noted in the order because of long chain of litigation behind the filing of the writ application. As advertisement was issued known as Advertisement No. 93 of 1998 for filling up the post of Civil Assistant Surgeon in the State of Bihar. This was prior to bifurcation of the State into Bihar and Jharkhand, effective from 15th November, 2000. The entire exercise for holding examination etc. was carried out but the result could only be published after the bifurcation of the State which is annexure-2 dated 11.1.2002. A dispute arose as to what is to be done with regard to exercise already carried out and to what - 2 - extent the post could be filled up by the State of Bihar because the initial vacancy was notified in the year 1998. State of Bihar had to concede one third of the posts in favour of the State of Jharkhand. Due to change in demographic population of the State of Bihar after bifurcation even the reservation policy too had to change as sizable chunk of tribal area and population ended up in Jharkhand. Since the appointments could not be made for many a years some persons moved the High Court by filing writ applications, which included the present petitioner. The decision of learned Single Judge in a batch of writ applications has been annexed as annexure-3 to the present writ application. The Court is not required to note every aspect of that judgment since there were primarily three issues which were required to be considered in the earlier writ applications. (1) Whether the process of selection had to be initiated de-novo because of the bifurcation of the State? (2) Whether the reservation policy brought into effect by the State of Bihar will occupy the field or whether the earlier reservation policy which was in existence at the time of advertisement shall govern the issue? and (3) what will be the number of vacancies which were required to be filled up against the initial notification of 1000 posts? Learned Single Judge held that no de-novo exercise was required for recruitment and the process initiated in terms of earlier advertisement will be completed by making - 3 - appointments. In so far as the second aspect of the matter, the Court held that the reservation policy on the date of advertisement will continue to apply in the present case till the appointment process was completed. So far as the third aspect as to the number of vacancies to be filled up, the Court did take notice of the fact that after bifurcation of the State of Bihar in two i.e. Bihar and Jharkhand one third of the total vacancy had to be conceded in favour of Jharkhand. The total number of vacancies which were required to be filled up by the State of Bihar had to be reduced by one third. Decision of Hon’ble Single Judge was challenged before a Division Bench. The Division Bench refused to interfere with the judgment of learned Single Judge as no legal infirmity was found. That order has been annexed as annexure-8 to the writ application. Examination was carried out for filling up the post and appointment came to be made but the petitioner did not make it to the charm circle of appointees on the post. He therefore decided to file the present writ application seeking a direction upon the respondents that he had a right and claim for appointment, as when the result was announced in terms of annexure-2 his merit position stood at serial 37 amongst the backward community. According to him the respondent authority have shown deliberate disregard to the declaration made by learned - 4 - Single Judge and confirmed by the Division Bench in not appointing the petitioner on the post. Certain mechanisms have been worked out against the interest of petitioner. The stand of the State as well as the Bihar Public Service Commission is that they have gone strictly in terms of the direction of the High Court as per the judgment contained in annexure-3. The State has reduced the number of posts by one third and they have stuck to old reservation policy which was in existence at the time of advertisement. But since the reduction in number of posts required reworking of roster clearance as many persons from the backward community occupied a position in the general category due to merit had to be relegated to a position down below which in turn had the effect of pushing the petitioner out from the zone of consideration. His merit could not stand in the same place in the changed circumstance nor could the earlier declared result help the petitioner to hold on to the merit position in backward community category. Learned counsel for the petitioner submits that there is a document which he had obtained under Right to Information Act which indicates that the authority had ignored the old reservation policy and applied new reservation policy. Annexure-6 is the so called information furnished to the petitioner under the Act. Petitioner draws the attention of the Court to the 6th line of the information where a statement has been made that in terms of the recommendation, after bifurcation of the State a new - 5 - reservation policy has to be applied. Much emphasis has laid on this statement to show that respondents have acted against the decision of Court despite the Court’s earlier direction (annexure-3) that the old reservation policy had to be applied. A detailed break up of the posts with reservation has been furnished through annexure-6. The total number of vacancies adds up to 67 reserved for Scheduled Tribes and 93 for Scheduled Castes. If the new reservation policy was applied the posts and numbers could not have added to the above figures as reservation for Scheduled Tribes had gone down to 1% under new policy. Obviously the petitioner wants to draw advantage from an oversight in the statement which has been made in the information furnished with regard to reservation policy. The communication does not tally with the vacancy position which is evident from perusal of page 60 (annexure-6) to the writ application as noted above. Since the appointments have been made on the old reservation policy and the merit reworked due to reduction in number of posts petitioner did not remain at the same merit position due to revised recommendation in the circumstances mentioned above. The Court does not find that the respondents have done anything arbitrary, illegal and contrary to the two decisions of the High Court both by learned Single Judge or the Division Bench. In fact, the facts and figure are there on record which - 6 - shows that the appointments have been made in the manner directed by the Court by reworking of roster clearance and position. If the petitioner came to be ousted from the zone of consideration due to his merit position he has no right to claim appointment and a direction for issuance of appointment letter. This writ application has no merit and it is dismissed. RPS (Ajay Kumar Tripathi,J.)