IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.394 of 2011 1. The State of Bihar 2. The Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna. ……..Respondent Nos. 1 and 2 in C.W.J.C. No. 8032 of 2005 . ……..Petitioners in C.Rev. No. 320 of 2009 ….. Appellants Versus 1. Niranjan Prasad Mandal, son of Sri Radha Prasad Mandal, resident of Mohalla_Lohia Nagar, P.S. & Dist. Katihar. 2. Biru Prasad Mandal, son of late Ishwar Prasad Mandal, resident of Mohalla_Barmasia near P & T, Colony Chouk, Katihar, Police Station and Dist.-Katihar. 3. Bipin Chandra Mandal, son of Sri Chhohram Mandal, resident of Mohalla Buddhuchak Katihar, Police Station and District-Katihar. 4. Ramesh Prasad Mandal, son of late Bishwanath Prasad Mandal, resident of Mohalla Jagarnathpuri, Barmasia, Katihar, Police Station and District-Katihar. …….Petitioners in CWJC No. 8032 of 2005 ….. O.Ps. No. 1 to 4 in C.Rev. No. 320 of 2009 … Respondent 1st set 5. The Bihar Public Service Commission, Patna. 6. The Chairman, Bihar Public Service Commission, Patna. 7. The Secretary, Bihar Public Service Commission, Patna. ……..Respondent Nos. 3 to 5 in C.W.J.C. No. 8032 of 2005 …O.P. Nos. 5 to 7 in C.Rev. No. 320 of 2009 … Respondent 2nd Set with LPA No.446 of 2011 1.The State of Bihar, through the Chief Secretary, Old Secretariat, Patna. 2 … Respondent No. 1 in CWJC No. 7041 of 2005 …. Petitioner in C.Rev. No. 318 of 2009 … Appellant Versus 1. Jai Prakesh Yadav, son of Shri Bisheshwar Prasad Yadav, R/at Ward no.4, Professor Colony Kabistan Road, Madhepura, P.S. Madhepura, Dist.-Madhepura, Roll No.113634. 2. Vijay Kumar son of late Jagdish Narayan, R/At Ward No.1 P.S. Madhepura, Distt. Madhepura, Roll No.111107 3. Santosh Kumar Singh son of Shri Sita Ram Singh, R/At Laxmipur, P.S. Madhepura, Dist. Madhepura, Roll No.110171. 4. Lalbabu Prasad, son of Sri Muni Lal R/At Jamuara, P.S. Hilsa, Dist. Nalanda, Roll No. 112650. 5. Kumdan Kumar Kaushik, son of Sri Gaya Prasad Singh R/O Village Manore (Ratanpur) P.S. Obera, Distt-Aurangabad, Roll No.112683. 6. Anand Kumar Tiwari, son of late Ram Pujan Tiwari, R/O Mohalla Dhakanpura, P.O. Anisabad, Patna-2, Roll No.110832. 7. Ram Kumar Singh, son of late Sivprasan Singh, R/at Gardanibagh, Road no.1, P.S. Gardanibagh, Patna-2, Roll No.112866. 8. Binod Kumar Singh, son of Sri Ram Pravesh Singh R/at Kharik P.S. Desheri, Dist- Vaishali, Roll No.111857. …...Petitioners in CWJC No. 7041 of 2005 …. O.Ps. No. 1 to 8 in C.Rev. No. 318 of 2009 … Respondents 1st set 9. The Bihar Public Service Commission through its Secretary, 15 Jawaharlal Nehru Marg (Bailey Road), Patna. 10. The Chairman Bihar Public Service Commission, 15, Jawaharlal Nehru Marg (Bailey Road), Patna. 11. The Deputy Secretary Public Service Commission, 15, Jawaharlal Nehru Marg(Bailey Road), Patna. 3 12. The Controller of Examination Bihar Public Service Commission 15 Jawaharlal Nehru Marg (Bailey Road), Patna …..Respondent Nos. 2 to 5 in CWJC No. 7041 of 2005 …. O.P. Nos. 9 to 12 in C.Rev. No. 318 of 2009 … Respondents 2nd set with LPA No.447 of 2011 The State of Bihar, through Chief Secretary, Govt. of Bihar, Patna. ….. Respondent No. 1 in CWJC No. 8552 of 2005 …. Petitioner in C.Rev. No. 317 of 2009 … Appellant Versus 1.Shreekant Kumar, son of Ram Autar Mahto, resident of Vill- Poiwan, P.S. Aurangabad, Dist.-Aurangabad. …… Petitioner in CWJC No. 8552 of 2005 … O.P. in C.Rev. No. 317 of 2009 …. Respondent. With L.P.A. No. 448 of 2011 1. The State of Bihar. 2. The Chief Secretary Government of Bihar, Old Secretariat, Patna. 3. The Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Old Secretariat, Patna. ….. Respondent Nos. 1 to 3 in CWJC No. 7505 of 2005 ….. Petitioners in C.Rev. No. 312 of 2009 … Appellants Versus 1. Birendra Kumar Tiwari, son of late Ram Suresh Tewari at present working as Statistical Assistant, Statistic and Evaluation Directorate, Government of Bihar. 2. Manvendra Prasad Singh, son of Sri Kameshwar Prasad Singh, Assistant Health Department, New Secretariat, Vikash Bhawan, Patna. 3. Deo Narayan Choudhary, son of late Ganesh Mahto, Fitter, Bihar State Police Rodio, R-X Bhawan, Bailey Road, Patna, Dist-Patna. 4 4. Sadhu Sharan Prasad, son of Sri Reghuwar Prasad, Statistical Assistant, Statistics and Evaluation Directorate, Government of Bihar, Patna, Dist. Patna. 5. Suresh Singh, son of Sri Mahavir Singh, Literate Constable, A.D.G (Confidential Branch) CID Patna, District- Patna. 6. Lal Mohammad son of Abdul Hakim, Personal Assistant, Forest and Environment Department, Sinchai Bhawan, Patna, District- Patna. 7. Upendar Kumar son of Sri Deep Narayan Singh, C.E.O. Barh Circle(Joint Registrar, Co-operative Societies), Co-operative Department, Government of Bihar, Barh, District-Patna. 8. Chandrama Prasad, son of Sri Chaathu Paswan, Assistant, Health Department, Vikash Bhawan, New Secretariat, Patna, District-Patna. 9. Krishna Prasad, son of Sri Sasti Ram, Assistant, Rural Engineering Department, Rural Development, Building, Viswasraiya Bhawan, Patna, District- Patna. 10. Gorakh Manjhi, son of late Gulab Manjhi, Assistant, Primary Education, Vikash Bhawan, New Secretariat, Patna, District-Patna. 11. Vidhan Chandra Lal, son of Sri Heera Lal Sub-Inspector, Crime Investigation Department, Government of Bihar, Old Secretariat, Patna, District- Patna. 12. Ram Chandra Paswan, son of late Meghan Paswan Assistant, Information and Public Relation Department, Government of Bihar, Old Secretariat, Patna, Dist. Patna. 13. Vikesh Kumar, son of Awadesh Kumar, Steno Typist, Statistics and Evaluation Directorate, Government of Bihar, Patna, Dist. Patna. 14. Pandev Kumari, wife of Sri Rajendra Ram, A.N.M. at present posted at Primary Health Centre Madhepura, District-Madhepura. 5 15. Jai Narayan Paswan son of late Rasik Lal Paswan, Assistant, Industry Department, New Secretariat, Vikash Bhawan, Patna, District- Patna. 16.Syed Mohiuddin Ahmad son of Syed Ashfaque Ahaam Water Resources Department, Jal Sansadhan Bhawan, Siristabad, Patna, District-Patna. 17. Awadhesh Kumar Singh, son of late Bhubneshwar Singh Assistant Statistical Officer, Directorate of Statistics and Evaluation, Govt. of Bihar, Patna. ………Petitioners in CWJC No. 7505 of 2005 …O.P. Nos. 1 to 17 in C.Rev. No. 312 of 2009 …. Respondents 1st set 18.The Bihar Public Service Commission 15 Jawaharlal Nehru Marg (Bailey road), Patna. 19. The Secretary Bihar Public Service Commission, 15, Jawaharlal Nehru Marg (Bailey Road), Patna. ………Respondent nos. 4 and 5 in CWJC No. 7505 of 2005 …O.P. Nos. 18 and 19 in C.Rev. No. 312 of 2009….Respondents 2nd set with LPA No.449 of 2011 1. The State of Bihar through Chief Secretary Government of Bihar, Patna. 2. The Secretary Personnel and Administrative Reforms Department, Government of Bihar, Patna. …… Respondent Nos. 1 and 2 in CWJC No. 7725 of 2005 …… Petitioners in C. Rev. No. 315 of 2009 …. Appellants Versus 1. Sunil Kumar Sinha, Son of Sri Braj Kishore Prasad, C/O Chandra Mohan Prasad, Advocate, Mohalla-Manikpur, P.O. Mirjanhat, Bhagalpur-5 D.R.D.A. Office, Collectorate Compound, Bhagalpur. 6 2. Vishwajeet Kumar, son of late Man Mohan Prasad, resident of Mohalla-Kharmanchak, Lajpatpark, Bhagalpur, S.D.O. Sadar Office, Bhagalpur. 3. Prakash Chandra Ravidas, son of late Santlal Ravidas, resident of Village-Urdu Bazar (Rekabganj), P.O.-Bhagalpur City, District- Bhagalpur, C.O. Office, Jagdishpur, Bhagalpur. 4. Nagendra Prasad Sah, son of Sri Bateshwar Sah, resident of Quarter No.13, Jhauwa Kothi, P.O. Bari Khanjarpur, District-Bhagalpur, at present posted as Steno, in the office of Deputy Development Commissioner, Collectorate Compound, Bhagalpur. …… Petitioners in CWJC No. 7725 of 2005 …… O.P.Nos. 1 to 4 in C. Rev. No. 315 of 2009 …. Respondents 1st Set 5. Bihar Public Service Commission through its Secretary, Patna. 6. Chairman Bihar Public Service Commission, Patna. 7. Controller of Examination, Bihar Public Service Commission, Patna …… Respondent Nos. 3 and 5 in CWJC No. 7725 of 2005 …… O.P. Nos. 5 to 7 in C. Rev. No. 315 of 2009 …. Respondents 2nd set with LPA No.450 of 2011 1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna. 2.The Secretary-cum-Commissioner, Department of Personnel and Administrative Reforms, Old Secretariat, Patna. ……….Respondent Nos. 1 and 2 in CWJC No. 8573 of 2005 ………. Petitioners in C.Rev. No. 313 of 2009 ….. Appellants Versus 1. Mahendra Kumar Verma, son of late Dashrath Lal, resident of Vill + P.O. Sri Dhandibhitha, P.S. Sursaul, Dist- Sitamarhi, presently posted as 7 a Clerk, District Certificate Auction Office, Sitamarhi, District- Sitamarhi. ………. Petitioner in CWJC No. 8573 of 2005 ………. O.P. No. 1 in C.Rev. No. 313 of 2009 ….. Respondent 1st set 2. The Chairman, Bihar Public Service Commission, 15 Jawaharllal Nehru Marg (Bailey Road), Patna. 3. The Secretary Bihar Public Service Commission, Bailey Road, Patna. 5 4. The Deputy Secretary Public Service Commission, Bailey Road, Patna. 5. The Under Secretary Public Service Commission, Bailey Road, Patna ……….Respondent Nos. 3 and 4 in CWJC No. 8573 of 2005 ………. O.P. Nos. 2 to 5 in C.Rev. No. 313 of 2009 ….. Respondents 2nd set with LPA No.451 of 2011 1. The State of Bihar through its Chief Secretary, Patna. 2. The Secretary, Personnel and Administrative Reforms Department Government of Bihar, Patna ……. Respondent Nos. 1 and 2 in CWJC no. 16093 of 2007 ….. Petitioners in C. rev. No. 319 of 2009 …. Appellants Versus 1. Krishna Nandan Saw, son of Sri Jhapsi Saw, resident of Vill- Kalyanpur, P.O. Lakshmipur, P.S. Barahiya Dist. Lakhisarai, Local address Mohalla-Hanumannagar, Shiv Prasad Nagar Colony, P.O. Lohiya Nagar, Patna-20. 2. Upendra Prasad, son of late Mukhlal Roy, 8210 Officers Hostel Beli Road, Patna. 3. Dr. Triloki Nath, son of Ram Shubhag Thakur, Lecturer 10 +2 B.M Inter College, Gopalganj. 8 4. Dharma Nath Baitha, son of Shukh Lal Baitha, resident of Majlishpur, P.O. Bhaishmara, P.S. Garkha, Dist. Saran (Chapra). 5. Dr. Maheswar Prasad Gupta, son of late Ashique Lal Gupta, resident of Village-Maula Bag, Ara. 6. Sachchida Nand Kumar, son of Satya Narayan Lal, resident of Mohallah-Noon Ka Chauraha Patna City, Patna. 7. Ajay Kumar, son of late Ashrfi Malik, resident of Village-Sundar Pur, Chhathi Pokhar, P.O.+ District-Dharbhanga. 8. Maheswar Roy, son of late Tilak Roy, D.M. Office, Collectorate Vaishali. 9. Raj Kumar Chaudhary, son of Bhola Chaudhary, resident of Village- Alampur, Indore Bhaya Dhansoyee, Dist-Buxer. 10. Sahagird Majhi, son of late Manana Manjhi, resident of village and P.O. Tarawara, Dist. Siwan. 11. Alkh Niranjan Prasad, son of Mauji Raut at Tourism Department, Old Secretariat, Patna. 12. Pramod Kumar Mandal, son of Bhuneswar Mandal at Barmashiya, Budha Chak, District-Katihar ……. Petitioners in CWJC no. 16093 of 2007 ….. O.P. Nos. 1 to 11 in C. rev. No. 319 of 2009 …. Respondents with LPA No.452 of 2011 1. The State of Bihar through its Chief Secretary. 2. The Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Patna ……… Respondent Nos. 1 and 2 in CWJC No. 15412 of 2005 ……… Petitioners in C. Rev. No. 316 of 2009 ……. Appellants Versus 9 1. Saras Kumar, son of Sri Dinesh Chandra Prasad, resident of Mohalla-Sheopur, Mahendru, P.O. Mahendru & P.S. Sultanganj, Dist. Patna. ……… Petitioner in CWJC No. 15412 of 2005 ……… O.P. No. 1 in C. rev. No. 316 of 2009 ……. Respondent 1st set 2. The Chairman, Bihar Public Service Commission 15, Jawaharlal Nehru Marg (Bailey Road), Patna. 3. The Secretary Bihar Public Service Commission 15, Jawaharlal Nehru Marg (Bailey Road), Patna. 4. The Deputy Secretary Bihar Public Service Commission, 15, Jawaharlal Nehru Marg (Bailey Road), Patna. 5. The Controller of Examination, Bihar Public Service Commission, 15, Jawaharlal Nehru Marg(Bailey Road), Patna ……… Respondent Nos. 3 to 6 in CWJC No. 15412 of 2005 ……… O.P. Nos. 2 to 5 in C. Rev. No. 316 of 2009 ……. Respondents 2nd set with LPA No.453 of 2011 1. The State of Bihar through the Secretary Personnel and Administrative Reforms Department, Government of Bihar, Patna. 2. The Secretary Personnel and Administrative Reforms Department, Government of Bihar, Patna ………Respondent Nos. 1 and 2 in CWJC No. 7263 of 2005 …… Petitioners in C. Rev. No. 311 of 2009 ….. Appellants Versus 1. Subodh Kumar Verma, son of late Arjun Kumar Verma, resident of Mohalla-South Chandmari Road, P.S. Kankarbagh, Dist. Patna. ………Petitioner in CWJC No. 7263 of 2005 …… O.P. No. 1 in C. Rev. No. 311 of 2009 ….. Respondents 1st set 10 2. The Chairman, Bihar Service Commission Bailey Road, Patna. 3. The Secretary Bihar Public Service Commission Bailey Road, Patna. 4. The Deputy Secretary Bihar Public Service Commission, Bailey Road, Patna. ………Respondent Nos. 3 to 5 in CWJC No. 7263 of 2005 …… O.P. Nos. 2 to 4 in C. Rev. No. 311 of 2009 ….. Respondents 2nd set ----------- For the Appellants : M/s Pushkar Narain Shahi, A.A.G. 14 Mritunjay Kumar and Ritesh Kumar No. 1, A.Cs. to AAG 14 For the B.P.S.C. : Mr. Sanjay Pandey, Advocate For Respondent Nos. : M/s Rama Nand Poddar & 1 to 3 Girish Chandra, Advocates (in L.P.A. no. 394/2011) ------- 6 02.05.2011 Heard learned counsel for the appellants and learned counsel appearing for the private respondent nos. 1, 2 and 3, who are the writ petitioners. Respondent no. 4 is said to be dead. Also heard learned counsel appearing for the Bihar Public Service Commission and its functionaries who are proforma respondents. 2. On hearing the parties in respect of limitation petitions (I.A. No. 1800/2011, 2042/2011, 2046/2011, 2040/2011, 2038/2011, 2044/2011, 2050/2011, 2048/2011, 2053/2011), the delay of 201 days in 11 preferring these appeals is condoned in view of explanation mentioned in the aforesaid interlocutory applications and because after seeking permission from the Apex Court to prefer these appeals, the delay was of less than two months in preferring the memorandum of appeal. Some more time was consumed in removing the defects after which the appeal was filed on 4.3.2011. In the facts of the case the aforesaid interlocutory applications are allowed and the delay is condoned. 3. The controversy originally raised in the writ petition related to illegalities and irregularities committed by the then functionaries of the Bihar Public Service Commission (hereinafter referred to as “the Commission”) in respect of selection process relating to the Bihar Administrative Service First Limited Examination 2003. The Writ Court found the selection process vitiated on several grounds and hence the selection process as well as the merit list prepared by the Commission were set aside. The second advertisement dated 25.5.2005 was also set aside with a direction to the State Govt. to forward 12 fresh requisitions to the Commission within a period of two months so that fresh selection process may begin by holding fresh examination by the Commission. 4. So far as setting aside the selection process and initiating fresh selection process by issuing advertisement and holding examination is concerned, the parties are not at all in issue because against the main judgment no appeal was preferred by the State. While preparing for initiating fresh selection process, the Commission and the State found difficulty in accepting the directions contained in paragraphs 53 and 54 of the judgment and order of the learned Single Judge dated 12th September, 2008, whereby C.W.J.C No. 7725 of 2005 and other analogous cases were finally disposed of. In paragraph 53, direction was to consider the cases of even such employees who were allocated to the State of Jharkhand after creation of that State on 15.11.2000, for the purpose of promotion in the State of Bihar for which the Bihar Public Service Commission alone could be competent to hold examination. In paragraph 54 the 13 State was directed to follow the reservation policy as existing on 15.11.2000 because the vacancies directed to be filled up had occurred earlier to that date. 5. The appellants chose to prefer Civil Review applications before the learned Single Judge seeking review of only parts of the order contained in paragraphs 53 and 54 of the judgment and order dated 12.9.2008. All the nine review applications, which have given rise to these nine L.P.As., were rejected by order under appeal passed on 30.6.2010. 6. The short order of rejection indicates that prayer for review could not be allowed because of settled law that all vacancies for promotion occurring prior to bifurcation of the State shall have to be taken into account by the present State of Bihar otherwise the candidates will suffer unnecessarily due to delay and inaction of the authorities. 7. After the rejection of the review applications the appellants approached the Apex Court as appears from the order dated 6.8.2010 contained in Annexure 1, Petition for Special Leave to Appeal (Civil) 14 ………./2010, CC18100/2010 was permitted to be withdrawn with liberty to file a Writ Appeal against the impugned judgment and order. 8. Learned counsel for the appellants has assailed the order rejecting review applications passed on 30.6.2010 on the ground that the learned Writ Court failed to take note of facts stated in review applications which were apparent on the face of the records or were subsequent developments required to be taken note of. He has submitted that in the review petitions it was clearly indicated that the Bihar Public Service Commission by virtue of Section 77 of the Bihar Reorganisation Act, 2000 could be competent to make selection and recommendation only for the existing State of Bihar and not for the erstwhile State of Bihar or the State of Jharkhand. It was further mentioned in the review applications that 25% of the vacancies which had to be filled up by promotion through the Limited Competitive Examination had already been bifurcated and allocated to the Jharkhand State to be filled up by promoting Class III employees working in the State 15 of Jharkhand who may be found entitled for such promotion. It was further indicated in the review petitions that the State of Jharkhand had already taken steps and held Limited Competitive Examination for filling up the part of vacancies allocated to Jharkhand. 9. In the review application it was stated that after bifurcation of erstwhile State of Bihar w.e.f. 15.11.2000, the existing State of Bihar on the basis of population of Scheduled Castes and Scheduled Tribes of the State had altered the earlier quota through ordinance and hence in the fresh advertisement the relevant law altering quota for the Scheduled Castes and Scheduled Tribes candidates could not be ignored. 10. It was submitted by learned counsel for the appellants that the subsequent developments and legal position pointed out in the review application showed that the directions in paragraphs 53 and 54 of the judgment of the Writ Court suffered from anomalies and errors apparent on the face of the record which required correction by review under 16 Article 226 of the Constitution. 11. Having heard the parties, we find merit in the submissions advanced on behalf of the appellants that the Bihar Public Service Commission will not have any jurisdiction in view of the provisions of Section 27 of the Bihar Reorganisation Act, 2000 to make any selection and recommendation for granting promotion to Class III employees allocated to State of Jharkhand even for the purpose of filling up the vacancies which occurred prior to 15.11.2000. This view stands supported by judgment of the Supreme Court in the case of State of Uttaranchal v. Sidharth Srivastava reported in (2003) 9 SCC 336. In that case although the erstwhile Public Service Commission of Uttar Pradesh had made recommendation when the State was yet not bifurcated but before the same could be implemented in the areas falling subsequently in the State of Uttaranchal, the latter took the stand that it was not bound to follow the recommendations made by the Commission for the State of U.P. because the same could not be binding on the State of Uttaranchal. The 17 Apex Court upheld the stand of the State of Uttaranchal and held that the recommendations were not binding. 12. In that view of the matter, the directions in paragraph 53 of the judgment which were sought to be reviewed , in our view suffer from errors and anomalies apparent on the face of the record. Further, the subsequent developments are not at all in dispute. Even as the facts stood originally, the Public Service Commission for Bihar could not have made recommendations in respect of Class III employees allocated to the State of Jharkhand. Hence the direction for holding Limited Competitive Examination for all the vacancies existing prior to 15.11.2000 is modified. The Limited Competitive Examination should be held only for the vacancies which have remained with the State of Bihar after a share in the vacancies were allocated to the State of Jharkhand. 13. So far as directions in paragraph 54 of the judgment of the Writ Court are concerned, it is noticed that once the earlier recruitment process had 18 been set aside by the Writ Court, there was no law prohibiting the State of Bihar from following the amended reservation policy reducing the quota for Scheduled Tribes candidates and increasing the quota for Scheduled Castes. Rather the law requires that fresh advertisement should be in accordance with the law as existing on the date of the advertisement, i.e., initiation of the fresh selection process. Only because the vacancies occurred earlier, there could be no question of allowing the State to ignore the law as existing on the date of the fresh advertisement. Rather changes in demographic figures after the bifurcation of the erstwhile State of Bihar were required to be kept in mind by the State for providing effective representation to the Scheduled Castes and Scheduled Tribes categories on the basis of their population figures in the existing State of Bihar. 14. In our considered view, the direction in paragraph 54 of the judgment also suffers from error apparent on the face of the record. Accordingly these appeals are allowed and the State of Bihar is 19 permitted to follow the amended reservation policy as existing on the date of fresh advertisement. The fresh selection process shall be only for Class III employees of existing State of Bihar and in respect of vacancies available for this State. 15. All appeals are allowed to the aforesaid extent. No order as to costs. Spd/- (Shiva Kirti Singh, J.) ( Dr. Ravi Ranjan, J.)