Letters Patent Appeal No.19 OF 2007 -------- ( Against the judgment and order dated 19.10.2006 passed by the learned Single Judge in CWJC No. 12410 of 2000) 1. Sudhir Kumar Mandal, son of Sri Vedanand Mandal, resident of village- Koshkipur, P. O.- Simra, P. S.- Tikapatti, District Purnea. 2. Naresh Kumar Sinha, son of late Damador Prasad Mandal, resident of village Bhagwanpur, P. O.- Dhol Bazar, P. S.- Nagachhia, District- Bhagalpur. 3. Bijendra Kumar Singh, son of Haribansh Prasad Singh, resident of village Chakla Nirmali, P. O. and P. S. – Supaul, District Supaul (Saharsha). 4. Om Prakash Singh, son of Sri Sachidanand Singh, resident of village- Bahuara, P. O. and P. S. Sona Gopalpur, District Patna. 5. Yogendra Kumar Mandal, son of late Kapildeo Mandal, resident of village Tikapatti, P.O. and P. S. Tikapatti, District Purnea. 6. Yogendra Roy, son of Sri Suchit Prasad Roy, resident of village- Jhallari, P. S. Rupauli, District- Purnea. 7. Ram Chandra Prasad Mehta, son of Sri Harilal Mehta, resident of village- Arhara, P. O. and P. S. Kamaldaha, District Saharsa. .. Petitioners/Appellants Versus 1. THE STATE OF BIHAR 2. The Bihar Public Service Commission through its Chairman, Bihar Public Service Commission, Patna. 3. The Commissioner, Health Department, Bihar, Patna. 4. The Director-in-Chief, Heath Services, Bihar, Patna 5. The Deputy Director, Health Department, Bihar, Patna … Respondents- Respondents 6. Anil Kumar Singh, son of Sri Sadanand Singh, resident of Mohalla- Punaichak, P. S. – S. K. Puri, District- Patna. … Performa Petitioner- Respondent 7. Mr. Anil Kumar, son of Sri Ram Das Sharma, 8. Mr. Mukush Kumar Verma, son of Sri Birendra Kumar Verma, 9. Mr. Sidharth Shankar Singh, son of late Ajay Kumar Singh 10. Binod Kumar Singh, son of Sri Dineshwar Prasad Singh 11. Fanindra Kumar Singh, son of Sabhapati Singh, 12. Krishna Prasad Singh, son of Sri Ramanandan Singh, 2 13. Ajay Kumar, son of Sri Ramratan Singh, 14. Arun Kumar, son of Sri Ramcharit Prasad Singh 15. Rajkumar, son of Sri Bhola Prasad 16. Janaradhan Prasad Singh, son of Sri Kamata Prasad Singh 17. Vidhya Devi, daughter of Kedar Singh, 18. Shivshankar Prasad Chaurasiya, son of late Kamp Mandal 19. Satendra Kumar Pandey, son of Sri Tribhuban Nath Pandey, 20. Vinod Kumar, son of Sri Vishwanath Prasad, 21. Uma Shankar Prasad, son of Sri Bhagawat Sao, 22. Umesh Prasad Choudhary, son of late Anirudh Prasad Choudhary 23. Manohar Kumar, son of Sri Naresh Prasad Mandal, 24. Ravindra Kumar, son of Sri Sohray Prasad, 25. Rajendra Prasad Bhagat, son of late Raghunandan Prasad Bhagat 26. Ajad Ray, son of Sri Pachhari Roy, 27. Saroj Kumar, son of Late Raghunandan Prasad 28. Surendra Kumar Singh, son of Sri Devnandan Singh, 29. Sushil Kumar Mishra, son of Sri Bhola Singh 30. Chandra Bhushan Choudhary, son of Sri Arjun Choudhary 31. Maya Devi, daughter of Sri Ram Akwal Singh, 32. Mo. Aslam, son of Dr. Samsul Joha, 33. Shivshankar Raut, son of Sri Ramdas Raut, 34. Raman Kishor Sharan, son of Sri Surendra Kishor Sharan 35. Taras Pandit, son of late Mishri Pandit. 36. Dhamendra Kumar, son of Sri Ramprawesh Singh, 37. Shailendra Prasad, son of Sri Brahamdev Mahto, 38. Chandan Kusum, son of Sri Kamala Prasad Pandit, 39. Subhash Prasad, son of late Bundi Prasad, 40. Suryakant Sinha, son of Sri Radhekrishan Sinha 41. Javed Aalam, son of late Md. Subhan, 42. Md. Soabbdin, son of Md. Basarat Hussain 43. Manoj Kumar, son of Sri Shyam Bihari Prasad, 44. Md. Majahar Aalam, son of md. Ati Hussain 45. Ram Janam Thakur, son of Sri Meghnath Thakur, 46. Krishananand Singh, son of Sri Vishwanath Prasad Singh, 47. Navin Kumar, son of Sri Duryodhyan Prasad Mandal, 48. Ashok Kumar Sah, son of Sri Jagdish Prasad Sah, 49. Shamim Ahamad, son of Md. Kabir Mansuri, 50. Indubhushan Ojha, son of Sri Ravi Bhushan Ojha, 51. Upendra Kumar Singh, son of Sri Devnandan Singh 52. Narendra Kumar Dixhit, son of Sri Janardan Prasad Pandey, 53. Arvind Kumar Sinha, son of Sri Rajendra Prasad Sinha, 54. Indu Bhushan Singh, son of late Mahavir Prasad Singh, 55. Chitranjan Prasad Singh, son of Sri Ram Binod Singh, 56. Nirmal Kumar Bishwas, son of Sri Yaduvir Prasad Bishwas, 3 57. Surendra Prasad Singh, son of late Ram Gahan Singh, 58. Arun Kumar Sinha, son of Sri Ramjeet Prasad, 59. Ashok Kumar, son of Sri Vishwanath Prasad Singh, 60. Lalan Sharma, son of Sri Rajeshwar Singh, 61. Dilip Kumar Choudhary, son of Sri Rajendra narayan Choudhary, 62. Awadhesh Singh, son of Sri Akhleshwar Singh 63. Arun Kumar, son of Sri Sithram Sharma, 64. Raghubansh Prasad Singh, son of Sri Kedar Singh, 65. Vijay Kumar, son of Sri Vasudev Prasad Mandal, 66. Ashok Kumar Singh, son of Sri Ayodhya Nath Singh, 67. Suresh Roy, son of Sri Faujdar Roy, 68. Suraj Shankar, son of Sri Dinanath Singh, 69. Md. Jabir Hussain, son of Jainul Avidat, 70. Santosh Kumar Verma, son of Sri Dwarika Prasad, 71. Sunil Kumar, son of Sri Dhaneshwar Sharma, 72. Chandrabhushan Kumar, son of Sri Rambriksh Thakur, 73. Krishan Kumar Singh, son of Sri Bindeshwar Singh, 74. Abe Aalam, son of md. Rudal, 75. Hira Sahni, son of Sri RamChandra Sahni 76. Vijay Kumar Akela, son of Sri Radhakrishan Kumar, 77. Sanjay Kumar Mandal, son of Sri Kanti Prasad Mandal, 78. Suryanarayn Mandal, son of Sri Hiyalal Mandal, 79. Ashok Kumar Singh, son of Sri Yamuna Prasad Singh, 80. Shankar Prakash Gupta, son of late Gyani Prasad Gupta, 81. Naresh Choudhary, son of Sri Rameshwar Choudhary, 82. Shekhar Prasad, son of Sri Kameshwar Prasad, 83. Anil Kumar, son of Sri Devnandan Prasad, 84. Dilip Kumar, son of late Devan Sao, 85. Ajit Pandit, son of late Yogi Pandit, 86. Dinesh Kumar Patel, son of Sri Durbhiksh Choudhary, 87. Irawati Kumari, daughter of Sri Dhanushdhari Prasad, 88. Nand Kishor Prasad, son of Sri Sohrai Ram, 89. Chandrashekhar Kumar, son of Sri Vaidhnath Prasad, 90. Rameshwar Prasad, son of Sri Basant Manjhi. 91. Birendra Paswan, son of Sri Jhagur Paswan, 92. Ahamad Afzal Imam, son of Md. Ithak, 93. Md. Muslim, son of Tanmmal Hussain, 94. Arun Kumar, son of Sri Muneshwar Pandit, 95. Birendra Prasad, son of Sri Baleshwar Prasad, 96. Ajay Kumar Paswan, son of Sri Ramawatar Paswan, 97. Laxmi Saday, son of Sri Bank Saday, 98. Dilip Kumar Paswan, son of Sri Baidhanath Paswan 99. Krishana Prasad, son of Sri Ramawatar Roy, 100. Bharat Ram, son of late Saheb Ram, 4 101. Rajeshwar Paswan, son of Sri Bindeshwar Paswan, 102. Arun Kumar, son of sri Shivji Mandal 103. Sunil Paswan, son of sri Ramswaroop Paswan 104. Kamal Kumar Choudhary, son of late Mithu Choudhary All respondents 7 to 104, selected /appointed T. B. Assistants (Yakshma Sahayak) C/o The Incharge Director-in-Chief, Health Services, Bihar, Patna-cum- The Director, Health Servces, Bihar, Patna. … Respondents. ----------- For the appellant : Mr. S. K. Verma, Adv. For the State : Mr. Prabhakar Takeriwal, G. A.I For the B.P.S.C. : Mr. Sanjay Pandey, Adv. For respondent No. 6 : Mr. Navin Kumar, Adv. ------------ PRESENT: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MIHIR KUMAR JHA J U D G M E N T (11/05/2010) As per Mihir Kumar Jha, J. I.A. No. 2684 of 2010 This interlocutory application has been filed on behalf of one Krishna Kant Singh @ Chhote seeking leave of this Court for allowing his intervention in this appeal on the ground that his case stands almost on the same footing as that of the appellants herein. 2. In this regard it was sought to be explained by Sri Vijay Kumar Verma, learned Counsel for the intervener on the basis of two 5 documents enclosed with the intervener application that the aforesaid Krishna Kant Singh was also initially appointed on the post of Tuberculosis Assistant by Mr. A. A. Mallick on 16.2.1987 and was removed from service on 13.4.1993 on the ground that his appointment was illegal being violative of the rules and procedure of appointment on the post of Tuberculosis Assistant and in complete breach of Article 14 and 16 of the Constitution of India. The intervener claims subsequently that he too in view of judgment of the Apex Court in the case of Ashwani Kumar and Ors vs. State of Bihar and Ors., reported in (1997) 2 SCC 1 was called for interview by the Bihar Public Service Commissioner (hereinafter referred to as ‘the Commission’) by letter No. 506 dated 9.3.2000 but was ultimately not selected. It has thus been convassed that he should be impleaded as a party to this appeal and be given same relief as that to unsuccessful appellants-writ petitioners of L. P. A. No. 19 of 2007 and therefore he may also be allowed to be impleaded as an appellant and/or made party for giving the same relief. 3. Having considered the averments made in this application as also upon hearing of learned counsel for the proposed intervener, Krishna Kant Singh @ Chhote, this Court is of the opinion that he cannot be now added as a party to assail the order of the learned single Judge inasmuch as he had not joined the appellants-writ petitioners, who being conscious to their cause, had immediately filed a writ 6 petition after completion of selection process by the Commission and consequential appointments made by the State Government in terms of the recommendations of the Commission. 4. Let it be noted that there is also no whisper in the petition explaining the delay of almost 10 years in approaching this Court by the proposed intervener, whose writ petition if at all filed after a gap of 10 years for the relief being sought through this intervention application, could have been rejected on the ground of unexplained delay of 10 years. 5. That apart, the intervention application has been filed on 18.3.2010 in an appeal which has already been admitted for final hearing and in which the respondents State Government and the Commission have filed a detailed counter affidavit dealing with the individual cases of the appellant-writ petitioners of L. P. A. No. 19 of 2007. Thus, now when this appeal is sought to be finally disposed of it would be wholly unpragmatic and impracticale to allow such belated intervention of the proposed intervener much less permitting him to be joined as an appellant to L. P. A. No. 19 of 2007. 6. Thus for the reasons indicated above, we are not inclined to allow intervention of Krishna Kant Singh @ Chhote. I. A. No. 2684 of 2010 is accordingly dismissed. 7 L. P. A. No. 19 of 2007 7. Heard Mr. S. K. Verma, learned counsel for the appellants-writ petitioners, Mr. Prabhakar Tekeriwal, learned counsel for the State, Mr. Sanjay Pandey, learned counsel for the Commission as also Mr. Navin Kumar, learned counsel for respondent no. 6. 8. In this intra-court appeal, an order of the learned single Judge dated 19.10.2006 passed in C.W.J.C. No. 12410 of 2000 has been assailed by the appellants-writ petitioners primarily on the ground that they were wrongly denied the appointment on the post of Tuberculosis Assistant in the selection process undertaken by the Commission and the consequential appointments made by the State Government of Bihar. 9. The learned single Judge having given a detailed consideration to the case of the appellants-writ petitioners has rejected their such prayer by holding that there was neither any infirmity in the selection process and/or recommendations of the Commission nor in the consequential appointments made by the Government. 10. Mr. S. K. Verma, learned counsel for the appellants- writ petitioners however has made elaborate submissions while assailing the order of learned single Judge. His main line of attack is that the directions of the Apex Court in the case of Ashwani Kumar (supra) with regard to process of selection and appointment was not followed 8 in letter and spirit, as a result whereof genuine and better meritorious candidates like the appellants-writ petitioners could not be recommended by the Commission and appointed by the Government on the post of Tuberculosis Assistant. He has also assailed the appointments of respondent nos. 6 to 104 by taking a plea that they were not as meritorious as the appellants-writ petitioners and further that some of them did not possess the basic qualification for the post of Tuberculosis Assistant. A faint submission in this regard was also made by the counsel for the appellants-writ petitioners with regard to the norms of selection adopted by the Commission by taking a plea that the post of Tuberculosis Assistant was a technical post and therefore the Commission ought to have conducted their selection by holding an examination for assessing their technical skill in stead of holding a written test of general nature followed by interview. 11. Mr. Prabhakar Tekeriwal, learned counsel appearing on behalf of the State and Mr. Sanjay Pandey, learned counsel appearing on behalf of the Commission while supporting the order of the learned single Judge and also placing reliance on the counter-affidavit filed in this appeal, have submitted that such selection procedure was fair and uniform for all the candidates. In this context it has been explained that such selection was confined only to those employees including Tuberculosis Assistants whose appointments made in the regime of Mr. 9 A. A. Mallick, the then Deputy Director of Tuberculosis were found to be illegal leading to their consequential order of termination which was affirmed by this Court as also by the Apex Court in the case of Ashwani Kumar (supra). They have also submitted that it was in terms of the direction given by the Apex Court in the case of Ashwani Kumar (supra) that the State Government and the Commission had completed the fresh exercise for selection and appointment amongst similarly situated terminated employees by publishing advertisement in the newspaper, holding written test and interview and making appointment on the basis of recommendation of the Commission against the available sanctioned posts by strictly following the Government policy of roaster and reservation. 12. Mr. Tekariwal in this context has also submitted that the whole process of selection and appointment was being constantly monitored by this Court in view of the directions of the Apex Court and in course of such monitoring an order was ultimately passed on 25.1.2006 in MJC No. 2828 of 1998 holding that the directions of the Apex Court in the case of Ashwani Kumar (supra) had been fully complied. Thus, counsel for the respondents have contended that the grievance of the appellants-writ petitioners as with regard to non- compliance of the direction of the Apex Court in the case of Ashwani Kumar (supra) cannot be reagitated in view of dropping of the 10 contempt proceeding by a Division Bench of this Court in the aforesaid order dated 25.1.2006 in MJC No. 2828 of 1998. 13. Counsel for the respondents by placing details of marks secured by the appellants-writ petitioners have also sought to demonstrate that as they had secured lesser marks in comparison to the recommended and appointed candidates and were placed below in the merit list, prepared on the basis of marks secured in the written test and interview, they could not be permitted to assail the process of selection after taking a chance in such selection process. 14. Before we enter into the merits aforementioned submissions, it would relevant to note that the appellants-writ petitioners had filed the connected writ petition on 30.11.2000 for the following reliefs:- “ i. to quash the final result published by B. P. S. C. as well as entire selection process envisaged for the post of T. B. Assistant (Yakshma Sahayak) of category No. 10 of Advertisement No. 01/97 which has been published in daily Newspaper “AAJ’ on 13.5.2000 by which various illegalities and irregularities adopted by the commission in selection process without following the direction of Apex Court passed in Civil Appeal No. 1078-59 of 1995 on 16.12.96 and also on the ground by which so many discrepancies and anomalies detected by the members of the Commission in the entire selection process. ii. To direct the respondent nos. 3 and 4 to adopt reasonable procedure as per the rule/guidelines prescribed for the selection process by the Apex Court in accordance with law reported 11 in 1997(I) PLJR 59 (S.C.) instead of B. P. S. C. on the ground that the commission adopted irrational, unreasonable process for the selection of ex- employee of T. B. (Health). iii. To direct the respondents to appoint the petitioners and others for the post of T. B. (Assistant ) against the sanctioned post and by adopting reasonable process of selection as per item no. (5) of the said Advertisement and select the petitioners and like others on the basis of only 125 candidates after recommendation made by three members of selection committee in terms of Govt. Order dated 25.3.1983 and on the report and recommendation of the said committee on 14.2.87. iv. To direct the respondent- State authority to select all the candidates on merit after making the preliminary scrutiny of the credentials of the candidates they might have been appointed by Dr. Mallick, the then Deputy Director (Health Services) Bihar, Patna and in the light that they have performed continuously more than three years of service on that very post meritoriously and honestly.” . 15. The learned single Judge on the basis of the pleadings on record had dismissed the writ petition by holding that there was no infirmity in the selection process undergone. The learned single Judge also refused to interfere that the appointments already made in terms of selection because the successful candidates were not made party to the writ applications. However, learned single Judge as with regard to the grievance of the appellants-writ petitioners that the selected and appointed candidates on the post of Tuberculosis assistant did not fulfil the requisite qualification, of being trained from Government Institute, 12 had left the matter open by giving liberty to the petitioners to point out such infirmity to the Government in which case the same was to be looked into by the respondents. In this regard it has to be noted that when this appeal was filed against the aforesaid impugned order of learned single Judge dated 19.10.2006, this Court in view of the prayer made by the appellants-writ petitioners for adding the successful candidates who had already been appointed on the post of Tuberculosis Assistant way back in the year 2000 had granted permission to add them as parties to the appeal by an order dated 26.7.2007 and that is how respondent no. 7 to 104 were impleaded as parties to this appeal and notices were issued to them. The appeal was subsequently admitted by an order dated 20.3.2009 and has been now placed before us for its final hearing. 16. In the considered opinion of this Court, the first attack of the learned counsel for the appellants-writ petitioners as with regard to selection and appointment on the post of Tuberculosis Assistant of respondent nos. 6 to 104 to be bad on the ground of violation of directions of the Apex Court must be rejected not only because a Division Bench of this Court in the order dated 25.1.2006 in MJC No. 2828 of 1998 had found such directions of the Apex Court given in the case of Ashwani Kumar (supra) to the complied in letter and spirit but also because whatever has been submitted by Mr. Verma as with regard 13 to the alleged violation by the respondents in conducting selection and making appointment on the post of Tuberculosis even otherwise has no merit. 17. The Apex Court in the case of Ashwani Kumar (supra) while holding the appointment made by Mr. A. A. Mallick to be rank illegal had recorded that there were only 2250 post in the Tuberculosis Eradication Scheme whereas Mr. A. A. Mallick had gone to make appointment of more than 6000 employees on class III and Class IV posts. The detailed findings recorded by the Apex Court as with regard to such illegal appointments as recorded in the judgment of the Apex Court in the case of Ashwani Kumar (supra) need not be gone into for the purposes of this appeal but then in order to appreciate the grievance of the appellants-writ petitioners it would be necessary to quote paragraph 18 and 19 of the judgment which reads as follows:- “….. 18. Now is the time for us to take stock of the situation in the light of our answers to the aforesaid three points. As a logical corollary to these answers the appeals are liable to be dismissed as the decision of the High Court is found to be well sustained. The submission made by the learned Counsel for the appellants to sustain services of these appellants on humanitarian grounds cannot be countenanced. When 6000 appointees are found to have been illegally loaded on the State Exchequer by Dr. Mallick and when there were only 2250 sanctioned posts, in the absence of clear data as to who were the seniormost and which were the sanctioned posts available at the relevant time against which they could be fitted, it would be impossible to undertake even a jettisoning operation 14 to offload the removable load of excess employees amounting to 3750 by resorting to any judicial surgery. Once the source of their recruitment is found to be tainted all of them have to go by the board. Nor can we say that benefit can be made available only to 1363 appellants before us as the other employees similarly circumscribed and who might not have approached the High Court or this Court earlier and who may be waiting in the wings would also be entitled to claim similar relief against the State which has to give equal treatment to all of them otherwise it would be held guilty of discriminatory treatment which could not be countenanced under Articles 14 and 16 (1) of the Constitution of India. Everything, therefore, must start on a clean slate. Reliance placed by the learned Counsel for the appellants on the doctrine of tempering justice with mercy also cannot be pressed in service on the peculiar facts of these cases as mercy also has to be based on justice. The decision of this Court in the case of H.C. Puttaswamy also can be of no assistance to the appellants on the facts of the present cases as in that case the Chief Justice of the High Court had full financial powers to create any number of vacancies on the establishment of the High Court as required and to fill them up. There was no ceiling on his such powers. Therefore, the initial entry of the appointees could not be said to be unauthorized or vitiated or tainted. The fault that was found was the manner in which after recruitment they were passed on the establishments of subordinate courts. That exercise remained vitiated. But as the original entries in High Court service were not unauthorized these candidates/employees were permitted to be regularized. Such is not the present case. The initial entry of the employees is itself unauthorized being not against sanctioned vacancies nor was Dr. Mallick entrusted with the power of creating vacancies or posts for the schemes under the Tuberculosis Eradication Programme. Consequently the termination of the services of all these appellants cannot be found fault with. Nor any relief as claimed by them of reinstatement with continued service can be made available to them. 15 19. However, there is one human aspect which calls for our attention on the facts of the present cases. These 6000 employees got employed by Dr. Mallick over at least a decade. Many of them served for a number of years and got confirmed. They would naturally have their families to support. For no fault of theirs they found themselves stranded in life midstream. Many might have got overaged. As Dr. Dhavan pointed out, many of them also got trained under the second phase of the Programme, as he