LPA No.1039 of 2008 with LPA No.1042 of 2008 (Against the order dated 28th October, 2008 passed by the learned Single Judge in C.W.J.C. No. 13898 of 2008 and C.W.J.C. No. 14798 of 2008) 1. BIRENDRA KUMAR S/O BRAHMDEO PRASAD, R/O VILLAGE- PAINGRI, P.S.-WARISALIGANJ, DISTRICT- NAWADA 2. MANOJ KUMAR SINGH, S/O ANIRUDH PRASAD SINGH, R/O VILALGE- BHALLUAHIN, P.S.- GARHNOKH, DISTRICT- ROHTAS (SASARAM) 3. PRAVIN KUMAR SINHA, S/O ANJANI KUMAR SINHA, R/O VILLAGE- CHANDMARI, P.S.- MOTIHARI, DISTRICT- EAST CHAMPARAN 4. DEEPAK KUMAR S/O LATE RAMCHANDRA THAKUR, R/O MOHALLA- HAJIPUR, P.S.- KHAGARIA, DISTRICT- KHAGARIA 5. RAMESH KUMAR RAMAN S/O RAM BACHAN PASWAN R/O MOHALLA- SAPULAHGANJ, P.S.- SASARAM, DISTRICT- ROHTAS ……….APPELLANTS (in LPA No. 1039 of 2008) Versus 1. THE STATE OF BIHAR 2. PRICIPAL SECRETARY, DEPARTMENT OF HOME, GOVERNMENT OF BIHAR, OLD SECRTARIAT, PATNA 3. DIRECTOR, DIRECTORATE OF PROSECUTION, BIHAR, PATNA, RIDING ROAD, SHEIKHPURA, PATNA 4. CHAIRMAN, BIHAR PUBLIC SERVICE COMMISSION, BAILEY ROAD, PATNA 5. BIHAR PUBLIC SERVICE COMMISSION THORUGH ITS SECRETARY, BAILEY ROAD, PATNA 6. THE REGISTRAR GENERAL, HIGH COURT OF JUDICATURE AT PATNA 7. PRINCIPAL SECRETARY, DEPARTMENT OF FINANCE, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA, BIHAR 8. PRINCIPAL SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVERNMENT OF BIHAR, PATNA 9. AWADHESH PRATAP, S/O LATE GIRIJA PD. SHRIVASTAVA, R/O VILLAGE- SULHVITARA (JAGDISHPUR) P.S.- SAMMANPUR, DISTRICT- AMBEDKAR NAGAR (U.P.) 10. SANJEEV RANJAN, S/O BAIDYANATH PD. GUPTA, R/M- SAHYOGPURI, P.S.- PATRAKARNAGAR, KANKARBAGH, PATNA-20 …………….RESPONDENTS (in LPA No. 1039 of 2008) 1. VISHWA RANJAN CHOUDHARY S/O HARIHAR PRASAD CHOUDHARY, R/O MOHALLA- SANJAY NAGAR, ROAD NO.-5, P.S.- JAKKANPUR, PATNA 2. ASIM KUMAR MISHRA, S/O PRAN MOHAN MISHRA, R/O MOHALLA- DHIRACHAK (BENGOLI COLONY), P.O.- ANISHABAD, PATNA-2, P.S.-GARDANIBAGH, PATNA ……………..APPELLANTS (in LPA No. 1042 of 2008) Versus - 2 - 1. THE STATE OF BIHAR 2. PRICIPAL SECRETARY, DEPARTMENT OF HOME, GOVERNMENT OF BIHAR, OLD SECRTARIAT, PATNA 3. DIRECTOR, DIRECTORATE OF PROSECUTION, BIHAR, PATNA, RIDING ROAD, SHEIKHPURA, PATNA 4. CHAIRMAN, BIHAR PUBLIC SERVICE COMMISSION, BAILEY ROAD, PATNA 5. BIHAR PUBLIC SERVICE COMMISSION THORUGH ITS SECRETARY, BAILEY ROAD, PATNA 6. THE REGISTRAR GENERAL, HIGH COURT OF JUDICATURE AT PATNA 7. PRINCIPAL SECRETARY, DEPARTMENT OF FINANCE, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA, BIHAR 8. PRINCIPAL SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVERNMENT OF BIHAR, PATNA ………………….RESPONDENTS (in LPA N0. 1042 of 2008) ******** For the Appellants :- Mr. Anjani Kumar, Advocate Mr. Sudhir Kumar Upadhaya, Advocate For the Respondent Nos. 1 to 3, 7 & 8 :- Mr. Lalit Kishore, Sr. Advocate AAGIII For the Respondent No. 4 & 5 :- Mr. G. K. Aggrawal, Advocate Mr. K. Ravish, Advocate For the Respondent No. 6 :-Mr. Tarakant Jha, Sr. Advocate Mr. Avnish Kumar, Advocate ************* P R E S E N T THE HON’BLE THE ACTING CHIEF JUSTICE THE HON’BLE MR. JUSTICE SHYAM KISHORE SHARMA O R D E R Chandramauli Kr. Prasad, ACJ & Shyam Kishore Sharma, J. Both the appeals arise out of same order and as such they were heard together and are being disposed of by this common order. Writ petitioners- appellants, aggrieved by the common order dated 28th October, 2008 passed by the learned Single Judge in C.W.J.C. No. 13898 of 2008 and C.W.J.C. No. 14798 of 2008, have preferred these appeals - 3 - under Clause 10 of the letters patent. Short facts, giving rise to the present appeal are; that the writ petitioners- appellants (hereinafter referred to as petitioners) were candidates for appointment as Assistant Public Prosecutor for which the Bihar Public Service Commission made advertisement bearing advertisement no. 2 of 1996. Total number of post advertised was 88 but the advertisement stipulated that the number of vacancies may vary. Thereafter, the Bihar Public Service Commission issued corrigendum and disclosed the number of up-to-date vacancies to be 246. The corrigendum also indicated that other conditions stipulated in the earlier advertisement shall remain the same. In the light of the advertisement, petitioners besides a large number of persons offered their candidature. Petitioners appeared in the written test. The interview of those persons who were successful in the written test, was held in between 16th of June, 1998 to 25th of June, 1998 and ultimately list of 225 successful persons was published on 4th of July, 1998. It seems that some of the candidates who ought to have been called for interview, were not called and ultimately, the interview of three candidates was held on 14th of February, 2004 and one of the candidates who appeared on the said day, selected for appointment. Petitioners sought information in regard to the number of vacancies on the last date of interview i.e. - 4 - 14.2.2004 under the Right to Information Act and came to know that 128 vacancies existed on that date. Accordingly, they filed the writ application inter alia praying that all those vacancies which existed on the last date of interview, be filled up from amongst the candidates who have offered their candidature in response to advertisement no. 2 of 1996. Prayer of the petitioners was considered by the learned Single Judge which did not find favour with him and he dismissed the writ application inter alia observing as follows:- “The wholesome principle of Article-14 and 16 also warrant that subsequent vacancies should be available to persons who became eligible later on and should not be given as a favour to applicants who might have applied several years back. A contrary practice would violate Article-14 and 16 of the Constitution of India.” Mr. Anjani Kumar appearing on behalf of the petitioners submits that undisputedly candidates were interviewed on 14.2.2004 and on that date, 128 vacancies existed and therefore, the petitioners have right to be considered for appointment on all those vacancies. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of SANDEEP SINGH Versus - 5 - STATE OF HARYANA AND ANOTHER reported in (2002) 10 SCC 549 and our attention has been drawn to the following passage from the paragraph 3 of the judgment, which reads as follows: “That apart, even on first principle, it appears to us to commend that 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. In the case in hand, no statutory embargo has been pointed out to us. In this view of the matter, the judgment of this Court in Hooda2 should apply to the facts and circumstances. Be it stated that we have been shown the government circular of the year 1993 in Hindi and going through the same, we are persuaded to hold that the circular says the same thing that we have indicated earlier in this judgment.” Mr. Lalit Kishore, AAG-III appears on behalf of respondent No. 1 to 3, 7 & 8. Respondent Nos. 4 and 5 are represented by Mr. G. K. Aggrawal, whereas Mr. Tarakant Jha, Sr. Advocate represents respondent no. 6. However, - 6 - main submission has been made by Mr. Lalit Kishore. He contends that in the present case the number of vacancies has been advertised in the original advertisement and thereafter in the corrigendum and therefore, the petitioners are not entitled to be considered for appointment on the vacancies which existed on the last date of interview. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of PREM SINGH AND OTHERS Versus HARYANA STATE ELECTRICITY BOARD AND OTHERS and other analogous cases reported in (1996) 4 SCC 319 and our attention has been drawn to paragraph 25 of the judgment which reads as follows: “From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointment s on posts - 7 - falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case.” (underlining ours) Having appreciated the rival contentions, the submissions made on behalf of the petitioners do not commend us and authority relied on is clearly distinguishable. It is not in dispute that the interview of the successful candidates in the written examination was held between 16th of June 1998 to 25th of June, 1998 and in fact, the result of the successful candidates was published on 4.7.1998. Perhaps few of the successful candidates were left out and for that the Bihar Public Service Commission held the interview on 14.2.2004. Not only this the number of posts has also been advertised. In such circumstances,, giving direction to - 8 - consider the candidature of all those persons who have appeared in response to the advertisement no. 2 of 1996 after such a long distance of time would deprive all the candidates who have become eligible later on. Nothing has been brought on record to show any rule or policy decision which provides that vacancies occurring till date of interview, be filled up from amongst the earlier candidates. We are entirely in agreement with the conclusion of the learned Single Judge that any such direction, in fact, would encroach upon the right of the many persons becoming eligible later on. Decision of the Supreme Court in the case of Sandeep Singh (Supra), relied heavily on behalf the petitioners, is clearly distinguishable. In the said case, there were circulars of the Government which provided that the vacancies available up to the date of interview, should be filled up from the amongst the candidates who had appeared in competitive test. Approving this, Supreme Court observed that the vacancies available in any particular service till date of interview should be filled up from the very same examination. This would be evident from the following passage from the said judgment, which reads as follows: It is contended on behalf of the appellants that not only the judgment of the High Court in Hooda case1 has already been - 9 - reversed by this Court in Hooda2, but also several circulars of the Government support the contentions that the vacancies available up to the date of interview should be filled up from amongst the said competitive test rather than to have carried forward in respect of those vacancies for the next test. In respect of this contention the circulars of the years 1957 and 1972 had been placed before us. (underlining ours) As observed earlier, no circular or decision of the State Government has been brought to our notice providing that the vacancies available up to the date of interview has to be filled up from amongst the earlier candidates. The only submission made on behalf of the petitioners having no merit, the appeals deserved to be dismissed and they are dismissed accordingly but without any order as to cost. (Chandramauli Kr. Prasad, ACJ.) (Shyam Kishore Sharma, J.) Patna High Court, Dated the 29th January, 2009 N.A.F.R./avin