IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1032 of 2011 In Civil Writ Jurisdiction Case No. 7884 of 2006 With Interlocutory Application No. 4713 of 2011 ====================================================== Brajesh Kumar, S/o Tilak Yadav, resident of Mohalla-Sri Krishna Nagar Ahari, P.S.-Town Aurangabad, District-Aurangabad. .... .... Petitioner/Appellant Versus 1. The State of Bihar. 2. The Registrar General of Hon’ble High Court of Judicature at Patna. 3. The learned District and Sessions Judge, Aurangabad. 4. The Registrar, Civil Court, Aurangabad. .... .... Respondents/Respondents. ====================================================== Appearance: For the Appellant : Mr. Sanjay Kumar @ Manu, Advocate. For the High Court : Mr. D.K.Sinha, Advocate. For the State : Mr. Gautam Bose, AAG-8 Mr. Rohit Mishra, Advocate. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 2 19-07-2011 Re. Interlocutory Application No. 4713 of 2011: This application under Section 5 of the Limitation Act is filed by the appellant for condonation of delay of 158 days occurred in filing the present Letters Patent Appeal. On the facts and in the circumstances of the case, the delay is condoned. Interlocutory application stands disposed of. Re. Letters Patent Appeal No. 1032 of 2011: With the consent of the learned advocates this Appeal is heard and decided today. Feeling aggrieved by the order dated 15th November 2010 made by the learned single Judge in above C.W.J.C. No. Patna High Court LPA No.1032 of 2011 (2) dt.19-07-2011 2 7884 of 2006, the writ petitioner has preferred the present Appeal under Clause 10 of the Letters Patent. Pursuant to the advertisement published in the year 2003 for filling up 29 vacant posts in Class-III service in the Civil Court, Aurangabad, Bihar; the appellant applied for selection and appointment in Class-III service. After due selection procedure, the merit list was drawn on 8th July 2005. In the said merit list, the appellant-petitioner was placed at Sl. No. 30 i.e. at Sl. No. 1 in the wait list. The appellant filed the above C.W.J.C. No. 7884 of 2006 for seeking appointment in Class-III service in the Civil Court, Aurangabad, Bihar. According to the appellant, out of the 29 persons selected two did not join the duty. The respondents were duty bound to operate the wait list and appoint two persons from the wait list. The appellant being at Sl. No. 1 on the wait list, he ought to have been appointed in place of one of the vacancies remained unfilled. The petition was contested by the respondents. According to the respondents as the two selected candidates failed to report for duty, the concerned District Judge sought guidance of the Hon’ble High Court in respect of those two unfilled vacancies. The posts, therefore, remained unfilled. The learned single Judge has dismissed the writ petition. First; on the ground that the learned advocate was not present before the learned single Judge and second; on the ground that the validity and life of the panel had expired at the end of the year. Feeling aggrieved the writ petitioner has preferred the present Appeal. Learned Advocate Mr. Sanjay Kumar @ Manu has Patna High Court LPA No.1032 of 2011 (2) dt.19-07-2011 3 appeared for the appellant. He has submitted that in case the learned advocate was not present before the court the learned single Judge ought to have dismissed the matter for default and not on merits. We see no substance in the argument. It is the discretion of the court how to deal with the matter. The recruitment of Class-III and Class-IV service in the subordinate courts in the State of Bihar was, at the relevant time, governed by the Bihar Civil Court Staff (Class III and Class IV) Rules, 1998. Rule 5(iv)(i) of the said Rules reads as under: Rule 5(iv) (i): “The preparation of the final merit list should normally be completed within three months from the date of issuance of the advertisement. All appointment shall be made from the final merit list. In case of non-joining of the candidates selected for appointment within the time mentioned in the appointment letter, such vacancies shall be filled up from the said list but no appointment in excess of the vacancies advertised shall be made from the said list. The panel shall remain subsisting till the end of the year in which it is prepared and after that it will lapse.” It is true that the aforesaid Rule provides that the panel shall remain subsisting till the end of the year. In other words, the panel in question expired on 31st December 2005. It also provides that in case of non-joining of the selected candidates, the vacancies should be filled up from such list. In other words, the unfilled vacancies shall be filled in by operating the wait list. The learned District Judge failed in his duty to fill in the unfilled vacancies by operating the wait list. Instead, he whiled away the time in seeking guidance of the High Court which probably was Patna High Court LPA No.1032 of 2011 (2) dt.19-07-2011 4 never given. In our opinion the right to appointment had accrued to the appellant in the month of July, 2005 when two of the selected candidates did not join the duty. The appellant, therefore, ought to have been appointed on the unfilled vacancy before 31st December, 2005. The learned District Judge failed in his duty for which the appellant cannot be denied his rightful claim. We are informed at the bar that since the aforesaid recruitment made in the year 2005 no recruitment process has been undertaken. For the aforesaid reasons, we allow this Appeal. The order dated 15th November 2010 passed by the learned single Judge in C.W.J.C. No. 7884 of 2006 is set aside. C.W.J.C. No. 7884 of 2006 is allowed. The respondent no. 3 District and Sessions Judge, Aurangabad is directed to appoint the appellant on the unfilled vacancy in Class-III service by operating the wait list prepared on 8th July 2005. Such appointment should be made within three weeks from today. It is clarified that on his appointment to Class- III service, the appellant will be bound by service Rules/ Regulations. The appellant will not be entitled to any consequential benefit such as seniority/wages/pay-fixation pursuant to his appointment made under this order. Sujit/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)