IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3139 of 2004 DR.PUNAM KUMARI D/O BAIDYANATH THAKUR & W/O ANIL KUMAR SHARMA, R/O MOHALLA-RAM DAYALU- NAGAR, PO-RAMNA PS-KAZI MOHAMMADPUR, DISTT- MUZAFFARPUR----------------------PETITIONER Versus 1. THE STATE OF BIHAR 2. THE SECY. PERSONNEL & ADMINISTRATIVE REFORMS DEPARTMENT, GOVT. OF BIHAR,PATNA 3. THE SECY. ANUMAL HUSBANDARY & FISHERIES DEPARTMENT GOVT. OF BIHAR, PATNA 4. THE DIRECTOR, FISHEIES DEPARTMENT, GOVT. OF BIHAR, PATNA 5. THE BIHAR PUBLIC SERVICE COMMISSION THROUGH ITS CHAIRMAN, JAWAHAR LAL NEHRU MARG, PATNA 6. THE DEPUTY SECY. BIHAR PUBLIC SERVICE COMMISSION, JAWAHAR LAL NEHRU MARG, PATNA 7. THE OFFICER-ON-SPECIAL DUTY, BPSC. JAWAHAR LAL NEHRU MARG, PATNA-----------------------RESPONDENTS. ----------- For the Petitioner: Mr. G. Roy, Advocate For the State: Mr. Ranjan Kumar, AC to AAG-IV For the BPSC: Mr. Sanjay Pandey, Advocate ----------- 10 30.8.2010 Heard learned counsel for the parties. Petitioner was one of the candidates who was selected by Bihar Public Service Commission for being appointed on the post of District Fishery Officer-cum-Chief Executive Officer/Assistant Fishery Director. According to petitioner her name was recommended by BPSC and her name figured at serial no.8 but she was not appointed due to intervening circumstances. The primary reason which kept her out from appointment is bifurcation of the State of Bihar and creation of separate State of Jharkhand. In terms of Reorganization Act 2000 and decision taken thereto, one third vacancies arising in the undivided Bihar had to be surrendered to the State of Jharkhand. It is evident from the record that when the advertisement was issued the total number of vacancies indicated included the undivided Bihar. - 2 - Since one third vacancies were taken away, the total number of candidates who could be appointed in the general category came down to five. With this development obviously the petitioner could not be appointed despite her name figuring in the original select list forwarded by the BPSC. Besides this development, learned counsel for the petitioner has brought on record the outcome of the litigation which was initiated in CWJC No. 14916 of 2004. That was a writ filed by one Krishna Kanhaiya and the issue related to same appointment. The order of learned Single Judge came to be challenged in LPA No. 427 of 2007 and the said decision rendered by the Division Bench dated 5th August, 2009 has been brought on record as annexure-18 to the supplementary affidavit. Learned counsel for the petitioner strenuously puts emphasis on the last five lines of the said order to claim her right for appointment on the post in the circumstances that two instances have been pointed out from the fresh recommendation made by the BPSC that two persons so recommended are not likely to join or have not joined thereby causing yet another vacancy or two against which the petitioner could be accommodated. The observation of the Division Bench is quoted herein below for ready reference: “If circumstances permitting, it will be open to it to take into account the vacancy on account of non-joining. It is made clear that the appointment of eight persons who have already joined shall in any circumstance remain unmutilated. “ - 3 - The stand of the petitioner is that taking cue from the observation of the Division Bench the respondents have obligation to recommend the name of the petitioner and appoint her on the post in view of the existing vacancy. Learned counsel for the State as well as BPSC however resist the said prayer having been made on behalf of the petitioner. They submit that any vacancy caused due to non- joining or whatever be the reason does not give a right to the candidate merely because his or her name figured in the select list. Once the exercise of appointment based on the recommendation became over, the issue comes to an end. This is curtains on the said exercise of appointment and the appointment process cannot carry on for ever merely because certain unexpected vacancy was caused for some reason. Learned counsel for BPSC relies on two decisions which have been very recently rendered by the Hon’ble Supreme Court. First case is State of Orissa & Another vrs. Rajkishore Nanda & Others reported in (2010) 6 SCC 777. Reliance has been placed by counsel on paragraph-16 of the said decision which is reproduced herein below: Para-16: A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required. It is the settled legal proposition that no relief can be granted to the candidate if he approaches the court after the expiry of the select list. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the court at a belated stage. (Vide J. Ashok Kumar v. State of A.P, State of Bihar v. Mohd. Kalimuddin, State of U.P. v. Harish Chandra, Sushma Suri v. Govt. of NCT - 4 - of Delhi, State of U.P v. Ram Swarup Saroj, K. Thulaseedharan v. Kerala State Public Service Commission, Deepa Keyes v. Kerala SEB and Subha B. Nair.) Similar is the view expressed by Hon’ble Supreme Court in the case of Public Service Commission Uttaranchal vrs. Manta Bisht & Others which is reported in 2010 (3) PLJR 100 (SC). Learned counsel for the BPSC has drawn the attention of this Court to paragraph-6 of the said decision which too is reproduced herein below: Para-6: “It is settled legal proposition that vacancies over and above the number of vacancies advertised cannot be filled up. Once all the vacancies are filled up, the selection process comes to an end. In case a selected candidate after joining resigns or dies, the vacancy, so occurred cannot be filled up from the panel, which stood already exhausted. (Vide Rakhi Ray & Ors. vs. The High Court of Delhi & Ors., AIR 2010 SC 932)” In view of what has been observed by the Hon’ble Supreme Court in similar and identical matter, this Court has difficulty in entertaining the application or request of the petitioner for giving a direction upon the State or the Bihar Public Service Commission to make a fresh recommendation for her appointment on the so called vacancy which is still available by way of non- joining, as has been asserted by the petitioner in the supplementary affidavit. Hon’ble Supreme Court has rightly held that select list cannot be treated as reservoir for the purpose of appointments. Taking cue from the observation of Hon’ble Supreme Court this Court can draw an analogy by stating that - 5 - appointments are not like vacant berths in a train which ought to be filled up by passengers from RAC or wait list categories, on a perpetual basis. There is no merit in the claim of the petitioner This writ application is dismissed. RPS (Ajay Kumar Tripathi, J.)