IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1580 of 1999 THE STATE OF BIHAR,THROUGH THE COMMISSIONER-CIM-SECRETARY, DEPARTMENT OF ROAD CONSTRUCTION, GOVERNMENT OF BIHAR,PATNA--- APPELLANT. Versus 1. NAKUL PRASAD SINGH,SON OF MEGHU PRASAD SINGH, RESIDENT OF VILLAGE-SANTHALI TOLA, POLICE STATION-JASIDIH, DISTRICT DEOGHAR 2. JAY PRAKASH PANDEY, SON OF SRI DINESH PANDEY, RESIDENT OF VILLAGE-DHUNKUTUA, POLICE STATION-BALTHA, DISTRICT-WEST CHAMPARAN 3. THE BIHAR PUBLIC SERVICE COMMISSION, JAWAHAR LAL NEHRU MARG, PATNA.------RESPONDENTS For the Appellant:- Mr. A.Anamullah,Standing Counsel No. XVII For the Respondents:- Mr. Subodh Kumar Jha, Advocate. 7 16.10.2008 State of Bihar, aggrieved by the order dated 30th August 1999 passed by learned Single Judge in CWJC No.5291 of 1998 has preferred this appeal under Clause 10 of the Letters Patent. Short facts giving rise to the present appealare that on the direction of the State Government to fill up 180 posts of Assistant Engineers, Bihar Public Service Commission conducted the examination in the year 1998. Commission made recommendation for appointment. Twenty four persons so recommended did not join and hence 24 vacancies i.e. 18 of Assistant Engineer (Civil) and 6 of Assistant Engineer (Mechanical) remained vacant. Writ petitioners –respondents who had offered their candidature for appointment to the post of Assistant Engineer filed the writ application, inter alia, praying for direction to the State Government to fill up the vacancies which had remained vacant due to non joining of the candidates recommended. 2 The learned Single Judge by the impugned order directed the State Government to take steps to fill up the vacancies by seeking recommendation from the Bihar Public Service Commission. Mr. Ahsanuddin Amanullah, Standing Counsel NO. XVII appearing on behalf of the appellant submits that a candidates who had appeared in the examination has no right to be appointed on the vacancies remaining vacant on account of non joining of some of the recommendees. He points out that the writ petitioners’ names were not even recommended. In support of his submission, he has placed reliance on a Constitution Bench judgment of the Supreme Court in the case of Shankarsan Dash Vs. Union of India (AIR 1991 Supreme Court 1612) and our attention has been drawn to the following passage from paragraph 7 of the judgment:- “It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are fount fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied.” Mr. Subodh Kumar Jha, appearing on behalf of the writ petitioners- respondents however, contends that in the facts of the present case the learned single Judge did not err in directing the State Government to fill up the vacancies. Having appreciated the rival submission, we find substance in the submission of Mr. Amanullah and the decision relied on supports his contention. Writ petitioners’ names have not been recommended for appointment. Merely the fact that 3 24 vacancies remained unfilled on account of non- joining of the candidates will not confer on the writ petitioners right to be appointed. It is well settled that the State Government for valid reason may not like to fill up the vacancies remaining vacant on account of non-joining of the candidates.Nothing has been pointed to show that this decision is in any way arbitrary. In view of what we have said, we are of the opinion that the learned Judge erred in directing the State Government to fill up the vacancies. In the result the appeal is allowed, impugned order is set aside and writ petition stands dismissed but without any order as to cost. (Chandramauli Kr.Prasad,J.) (Subash Chandra Jha,J.) A.Kumar