IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2508 of 2011 ====================================================== 1. Uttam Kumar, son of Late Narayan Lal, R/O Vill- Nimtal (Chakchanda)., P.O- Khusarupur, Distt- Patna. 2. Manoj Kumar Gupta, son of Late Birendra Prasad R/O Devisthan, Bihar Road, P.O+P.S- Hilsa, Distt- Nalanda. 3. Binod Kumar Singh, son of Brahma Singh R/O Vill- Baruna, P.O- Mahima, P.S- Bhabua, Distt- Kaimur. 4. Shashibhusan Sahay, son of Sri Suryanarayan Sahay, R/O - Ambikanagar, P.S- Banjana, Distt- Motihari. 5. Rajesh Kumar, son of Jairam Sharma, R/O Vill- Maniawan, P.O- Kazisarai, Distt- Jehanabad. 6. Dhirendra Kumar Jha, son of Late Kamalkant Jha, R/O Vill- Kahara, P.S- Saharsa Distt- Saharsa. .... .... Petitioners Versus 1. The State Of Bihar 2. The Principal Secretary, General Administration Department , Govt. Of Bihar, Patna. 3. The Principal Secretary, Social Welfare Department Govt. Of Bihar, Patna. 4. The Director, Integrated Child Development Services (ICDS), Indira Bhawan, Boring Canal Road, Patna. 5. Bihar Public Service Commission Through Its Chairman, Patna. 6. Chariman, Bihar Public Service Commission, Patna. 7. Secretary, Bihar Public Service Commission, Patna. .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.1793 of 2011 ====================================================== Subodh Kumar Sinha, son of Late Vinay Drishna Prasad R/O Mohalla- R.M.S. Colony, Sinha Bhawan, Rd. No. -1 Kankarbagh, P.S. - Kankarbagh, Town/Distt. - Patna .... .... Petitioner Versus 1. The State of Bihar 2. The Principal Secretary General Administration Department Govt. Of Bihar, Patna 3. The Principal Secretary, Social Welfare Department Govt. Of Bihar, Patna 4. Principal Secretary Finance Department Govt. Of Bihar, Patna 5. Principal Secretary Agriculture Department, Government Of Bihar Patna 6. The Director, Integrated Child Development Services (ICDS), Indira Bhawan, Boring Canal Road, Patna 7. Bihar Public Service Commission Through Its Chairman, Patna 8. Chairman Bihar Public Service Commission, Patna 9. Secretary Bihar Public Service Commission, Patna .... .... Respondents ====================================================== Patna High Court CWJC No.2508 of 2011 (14) dt.03-04-2013 2/18 with Civil Writ Jurisdiction Case No.3591 of 2011 ====================================================== 1. Ajay Kumar Mishra, son of Sri Dhananjay Mishra Resident Of Village +P.O- Karma Bhagwan, P.S- Aurangabad, District- Aurangabad. 2. Amresh Kumar Singh, son of Late Brajnandan Singh R/O Muhalla- Lakari Bazar, P.O+P.S- Sonepur, District- Chapra. 3. Rama Shankar Vishwakarma, son of Ragho Ram Vishwakarma Resident Of Vill.+P.O- Simri, P.S- Bihta, District- Patna. 4. Chandra Bhushan Singh, son of Deo Prasad Singh R/O Muhalla-Station Road, Bhandhan Tola, Ara, District- Bhojpur. 5. Dev Das, son of Sri Radhe Shyam Das R/O- Muhalla-Rajhanska Dyorhi, Laltali, Patna City, District- Patna. 6. Upendra Prasad, son of Sri Rampati Prasad R/O Villa. Bhatubigha, P.O- Ketari, P.S- Dev, District- Aurangabad. 7. Shiv Sharan Kumar Bhagat, son of Late Rajendra Prasad Bhagat R/O Village- Laltraha, P.O- Amaha, P.S- Gamharia Bazar, District- Supaul 8. Pramod Kumar Sinha, son of Late Kameshwar Prasad R/O Muhalla- Road-B, Ashok Nagar, P.S- Kankarbagh, District- Patna. 9. Raj Kumar, son of Sri Ram Raj R/O Muhalla- Chitrakut Nagar, Danapur, District- Patna. 10. Bindeshwar Singh, son of Sri Ramchandra Singh R/O Village- Manahi, P.O- Amahi, P.S- Ghoghardiha, District- Madhubani. 11. Girja Patinath Sinha, son of Late Rameshwar Pd.Sinha R/O Muhalla- C.H.Colony, Argaghat, Road Giridih, District- Giridih(Jharkhand). 12. Shailendra Kumar Das, son of Sri Gopal Krishna Das R/O Muhalla- Sakari Gali, P.O- Guljarbagh, District- Patna. 13. Mritunjay Jha, son of Sri Sachidanand Jha R/O Village- Maksudpur, Munger, District- Munger. 14. Alind, son of Sri R.S.P. Verma R/O Road No.11, Ashok Nagar, P.S- Kankarbagh, District- Patna. .... .... Petitioners Versus 1. The State of Bihar 2. The Principal Secretary, General Administration Department, Govt. Of Bihar, Patna. 3. The Principal Secretary, Social Welfare Department Govt. Of Bihar, Patna. 4. The Director, Integrated Child Development Services (ICDS), Indira Bhawan, Boring Canal Road, Patna. 5. Bihar Public Service Commission Through Its Chairman Patna. 6. Chairman, Bihar Public Service Commission, Patna. 7. Secretary, Bihar Public Service Commission, Patna .... .... Respondents ====================================================== (In C.W.J.C No.2508/f 2011, C.W.J.C. No. 1793/2011 & C.W.J.C. No. 3591 of 2011) For the Petitioners : M/s Chittaranjan Sinha, Sr. Advocate, Makan Kumar and Awadhesh Kumar Pandit, Advocates. Patna High Court CWJC No.2508 of 2011 (14) dt.03-04-2013 3/18 (In C.W.J.C. No. 2508/2011 and C.W.J.C.No. 1793/2011) For the B.P.S.C. : Mr. Ashok Kumar Sinha and Shyam Sunder Pandey, Advocates. (In C.W.J.C. No. 3591/2011) For the B.P.S.C. : M/s Lalit Kishore, Sr. Advocate and . Satyavir Bharti, Advocate In CWJC No.1793 of 2011) For Respondent no. 3 : Mrs. Abhanjali, A.C. to G.P. 16 (In CWJC No.3591 of 2011) For the State : Mr. Anil Kumar Verma, A.C. to A.A.G. 13 =================================================== P R E S E N T : HONOURABLE MR. JUSTICE S. N. HUSSAIN O R D E R 14 03-04-2013 Heard learned counsel for the petitioners, learned counsel for the State of Bihar and its authorities as well as learned counsel for the Bihar Public Service Commission (hereinafter referred to as `the Commission’ for the sake of brevity) and its authorities. All the aforesaid three writ petitions have been heard together as analogous cases and are being decided by this common order because the reliefs claimed as well as the respondents impleaded in these writ petitions are same and the points involved are also the same although the dates of appointments of the three sets of petitioners may be different. 2. The reliefs claimed by the respective petitioners of all the aforesaid three cases are same i.e. for directing respondent- authorities to recommend the names of the petitioners and to appoint them on regular basis in admissible pay scale in forthcoming vacancies/appointments including the posts having fallen vacant due to non-joining of the previously recommended Patna High Court CWJC No.2508 of 2011 (14) dt.03-04-2013 4/18 candidates in any department and in result published on 31.12.2010 by the Commission from the merit list of 3rd Graduate Level Competitive Examination in any other departments of State Government in the light of advertisement no.1/1990 instead of their contractual recommendation/appointment as Statistical Assistants in the Integrated Child Development Service (I.C.D.S.), Directorate (Social Welfare Department) with all consequential benefits. 3. Learned counsel for the petitioners claimed that the respondents issued Advertisement no.1/1990 for appointment on Class-III posts of Graduate level in different departments on the specified pay scale and in response thereto the petitioners along with others applied. However, the examinations were conducted by the Commission in the year 1995-96, after which a panel was prepared and only first phase result was published, whereas, subsequent phase results were not published although a large number of vacant posts remained to be filled up. 4. Learned counsel for the petitioners submitted that a large number of such candidates including the petitioners felt deprived and out of them some candidates, namely, Hridyal Kumar and others of the said competitive examination filed C.W.J.C. No. 1376 of 1997 and after considering the pleadings Patna High Court CWJC No.2508 of 2011 (14) dt.03-04-2013 5/18 and materials produced on behalf of both the sides a Bench of this Court disposed of the said writ petition vide order dated 03.02.1998 with the following directions to the authorities concerned :- “22. Accordingly, the Respondents are directed to make requisition immediately within one month from the date of receipt/production of a copy of this judgment with respect to 455 posts, as shown in paragraph no.21 above. Such requisition is to be made to the B.P.S.C. by the concerned competent officer/Secretary/Head of the Department, if no such requisition has been made as yet. 23. So far as the posts of Heath Educator, Statistical Assistant of Divisional level and Directorate of Social Welfare of Welfare Department are concerned, the competent authority/Secretary/Head of the Department will first ascertain the vacancies up to 31st December, 1993, which are still lying vacant and make such requisition, if not yet made, to the B.P.S.C. within three months from the date of receipt/production of a copy of this judgment. 24. The B.P.S.C. and its authorities will make recommendations within one month from the date of each requisition from amongst successful candidates, who have obtained minimum qualifying marks and are eligible for one or other posts. 25. The process and appointment to fill up all the Graduate standard Class-III posts, which are still vacant, are to be completed within a total period of six months from the date of receipt/production of a copy of this judgment. It is for the petitioners to produce a copy of this judgment before the competent authority/Secretary/Head of the Department of the concerned departments of the State of Bihar as well as before the Secretary of the B.P.S.C.”. 5. Learned counsel for the petitioners averred that although in the said order, direction was given by this Court to Patna High Court CWJC No.2508 of 2011 (14) dt.03-04-2013 6/18 fulfil all the Graduate level Class-III posts, which fell vacant between 01.01.1990 and 31.12.1993, in the light of advertisement no.1/1990, but the same was not complied, whereafter the petitioners of that writ case had to file M.J.C. No.1969 of 1999, but the said M.J.C. was disposed of on 27.06.2000 with a direction to the authorities to conclude the process of recommendation within two months. However, when even the said order was not complied fully and only few recommendations were sent, some of the petitioners of that case filed M.J.C. No.3654 of 2000, which was also disposed of by a Bench of this Court vide order dated 05.11.2003 with a direction to the authorities to make appointments pursuant to the recommendation within a time frame and issue appointment orders as soon as might be, but in any case within two months and if any formality was to be observed, it should be done within the said period. 6. It was also asserted that although the advertisement and all the orders of this Court were with respect to regular appointments, but the Commission, vide letter dated 04.11.2003, recommended for appointment on contractual basis for certain period only and in pursuance thereof as well as in view of the aforesaid orders of this Court, all the petitioners were appointed on temporary/contractual basis for one year, whereafter, the Patna High Court CWJC No.2508 of 2011 (14) dt.03-04-2013 7/18 petitioners immediately joined and since then their contract had been extended from year to year. 7. Against such contractual appointment, which was violative of not only orders of this Court but the terms of the advertisement concerned also, some of similarly situated persons, namely, Raj Mohan Sah and another as well as Subodh Kumar Sinha and others filed C.W.J.C. No. 128 of 2008 and C.W.J.C. No. 17479 of 2009, respectively, for grant of regular pay scale on the post of Statistical Assistant in accordance with law, contrary to the lump sum payment per month being made to them continuously treating their appointment as contractual. However, after considering the respective claims of the parties, a Bench of this Court allowed the said writ petitions and directed that the petitioners shall be deemed to be regular appointees on the posts of Statistical Assistants from the date of their recommendations and appointments. However, in the nature of controversy, this Court considered it proper to hold that this benefit of regular employment from the date of their appointments shall be applicable to them for all other purposes except salary. The regular monetary benefits of pay scale shall be applicable to them from the dates of institution of the writ petitions. 8. Against the said orders, the respondents filed L.P.A. Patna High Court CWJC No.2508 of 2011 (14) dt.03-04-2013 8/18 No. 630 of 2010 and L.P.A. No. 1469 of 2010, which were disposed of by a common order dated 19.07.2011 with the following observations/directions :- “ The learned counsel for the appellant vehemently submitted that persons junior to him in the merit have been given regular appointment while the respondents have not been given regular appointment. This point could have been raised by the petitioners while accepting the contractual appointment which is based on the recommendation of the commission. The recommendation of the commission has not been challenged by the respondent in writ application and commission has stated in its counter affidavit that in the department of Social Welfare Department these Class-III post were temporary post, therefore, there is no reasonable classification and Article 14 is not violated at all. It is still open to the respondent / petitioner to challenge the recommendation. The delay if any is liable to be condoned under the guise of Section 14 of the Limitation Act. The above reproduced facts stated clearly established that the petitioner’s appointment was made on contract basis as per requisition made by the Government and as per recommendation from the select list which was meant earlier for class-III post. The petitioners have been given contractual appointment and are well working. And such post is temporarily being extended from time-to-time. Thus, in view of the factual position the judgment and order of the learned Single Judge is set aside and appeal is disposed of with the direction as to whenever the post hold by the petitioners is made permanent, the petitioners shall be deemed to be to have been regularly appointed from that date.” 9. Learned counsel for the petitioners claimed that some other similarly situated persons filed C.W.J.C. No. 2972 of Patna High Court CWJC No.2508 of 2011 (14) dt.03-04-2013 9/18 2009 for the same reliefs, which was disposed of by a Bench of this Court on 13.01.2010 on the same terms on which C.W.J.C. No. 128 of 2008 was disposed of. Against the said order also, the authorities filed L.P.A. No. 137 of 2011, but the said L.P.A. was also disposed of on 04.12.2012 on the same terms, on which L.P.A. No. 630 of 2010, as mentioned above, was decided. 10. Learned counsel for the petitioners argued that the petitioners filed several representations in that regard, but ignoring them, the Commission, in compliance of the order of this Court, took a decision on 31.12.2010 and a list was prepared including persons having lesser marks than the petitioners, but the petitioners were completely ignored. Thereafter, the Deputy Secretary, Revenue and Land Reforms Department also sent letter dated 01.02.2012 to the Examination Controller of the Commission requiring the recommendation for the remaining 60 candidates, including the petitioners, but no such recommendation has been sent by the Commission as yet although in view of the decision of the Division Bench of this Court in L.P.A. No. 630 of 2010 the petitioners should have been appointed by now as per the directions given in that case. 11. Learned counsel for the petitioners further argued that the Commission and its authorities were giving step brotherly Patna High Court CWJC No.2508 of 2011 (14) dt.03-04-2013 10/18 treatment to the petitioners only because they had approached this Court. However, the persons having much lower marks than the petitioners have been given regular appointments and the authorities are continuing to appoint such persons ignoring the claim of the petitioners. It was also argued that inspite of specific requests made by the State Government, the Commission is giving no response with respect to the petitioners intentionally and instead persons having secured lesser marks have been recommended for their regular appointments. Furthermore, the State Government is fully aware that the petitioners can be adjusted/appointed on regular basis in any department of the Government, with respect to which the stand of the State Government was clear in all the cases mentioned above. 12. On the other hand, learned counsel for respondent- Commission vehemently opposed the contentions of learned counsel for the petitioners and stated that the relief claimed by the petitioners is mandamus for regular appointment and there is no claim for removal of any person junior to them, who had been appointed earlier on regular basis, hence their claim is on the basis of allegation of discrimination and bias, in support of which there is no material at all whatsoever. 13. Learned counsel for respondent-Commission Patna High Court CWJC No.2508 of 2011 (14) dt.03-04-2013 11/18 submitted that advertisement no.1/1990 was general in nature and was not for any specific purpose, but all the posts advertised for Statistical Assistants required Mathematics Graduate, but the petitioners are not Mathematics Graduates and hence their non- consideration was not at all discriminatory. 14. Learned counsel for respondent-Commission claimed that the petitioners never challenged the panel prepared by the Commission neither in this case nor in any other case and hence the last recommendation made by the Commission was in the light of the advertisement as well as the specific directions of this Court in the earlier cases for filling up the vacancies. However, it was admitted that 60 posts out of 170 posts remained vacant due to non-joining. 15. Learned counsel for respondent-Commission averred that on 01.02.2012, the Government issued a letter asking the Commission to send recommendation for the remaining 60 posts, whereafter a meeting of the Commission was held on 18.07.2012 and on the basis of the resolution taken in the said meeting, letter dated 21.08.2012 was issued by the Commission to the Government refusing to send recommendation for the remaining 60 posts on the basis of two decisions of the Apex Court in case of Government of Orissa and another vrs. Raj Patna High Court CWJC No.2508 of 2011 (14) dt.03-04-2013 12/18 Kishore Nanda and others, reported in 2010 (6) S.C.C. 777 and in case of Public Service Commission, Uttaranchal vrs. Mamta Bist and another, reported in 2010 (3) P.L.J.R. (S.C.) 100. 16. Learned counsel for respondent-Commission also relied upon a decision of the Division Bench of this Court in case of Subodh Kumar vrs. State of Bihar and others, reported in 2012(2)P.L.J.R. 647, specially paragraphs 19 and 20 thereof, which are as follows :- “ 19. In view of the aforesaid policy of the State Government, the settled law discussed hereinabove and the binding precedents of the Hon’ble Supreme Court and the Division Bench of this Court, we must hold that the judgment in the matter of Niraj Kumr Singh & Anr. (supra) does not set out the correct law and is per incurium the judgment of the Supreme Court in the matter of Bihar State Electricity Board (supra). The finding that the 17th June 1977 Circular (sic:Memorandum) was never followed is not supported by the facts on record and is erroneous. Anyway, in view of the subsequent judgments of the Division Bench, it is not a good law. 20. In view of the binding instructions issued by the State Government to carry forward the unfilled vacancy to the next recruitment process, the relief sought for by the petitioner cannot be granted. Further, since the recruitment pursuant to the Advertisement No. 4 of 2007, the Commission has already commenced the next recruitment process by holding the Preliminary Test preceding the 53rd to 55th Common Combined Competitive Examination.” 17. Learned counsel for respondent-Commission Patna High Court CWJC No.2508 of 2011 (14) dt.03-04-2013 13/18 further relied upon another decision of the Division Bench of this Court dated 28.03.2012, by which C.W.J.C. No. 7995 of 2011 was dismissed in limine after arriving at the following findings :- “We may note here that in the present case the Government has fallen into a very unhealthy practice by operating the selection panel not only for years but for decades, of course not without the intervention of the Courts. The recruitment process initiated as early as in 1990 did not culminate into a selection panel until 1995. The selection panel prepared in 1995 is being operated till the date. The last of the appointments have been made as late as on 19th April 2011. It is well-settled that the selection panel or a merit list should have a limited life. Ordinarily, a panel is operated for one year. In the present case, the panel has been operated for more than 15 years. It is high time that the State Government cancels the said panel and undertakes a fresh recruitment process if and when necessary. In any view of the matter, no indefeasible right to appointment has accrued to the petitioners on account of their empanelment in 1995. It is not the case of the petitioners that any person below them on the merit list has been appointed superseding the prior claim of the petitioners. Admittedly, the petitioners are far below on the merit list. They have not been appointed for want of adequate number of vacancies. The petitioners have no enforceable right to appointment.” 18. Learned counsel for respondent-Commission claimed that the reliefs in the aforesaid writ petition were the same as had been claimed by the petitioners in these writ petitions and hence the order of the aforesaid Division Bench is binding on these cases also, specially when the Commission, as per the Patna High Court CWJC No.2508 of 2011 (14) dt.03-04-2013 14/18 aforesaid command of the Division Bench of this Court, has decided not to recommend or open the matter of advertisement no.1/1990. 19. Learned counsel for respondent-Commission also asserted that the appointments of the petitioners of these writ petitions were made on contractual basis in between 2004 and 2009 and they accepted contractual appointments happily and never objected and now after such a long delay they have come to this Court although the claims made by similarly situated persons have been rejected in the meantime. 20. Learned counsel for respondent-Commission argued that the question of seniority has already been decided by a Division Bench of this Court vide order dated 19.07.2011 passed in L.P.A. No. 630 of 2010. Hence the decision of the Commission dated 21.08.2012 is valid and proper based upon settled principles of law. Furthermore after receiving the aforesaid letter of refusal from the Commission, the State government has also become silent due to the principles of law involved and has taken no further steps in that regard. 21. Learned counsel for respondent-State of Bihar and its authorities adopted the arguments raised by learned counsel for respondent-Commission and submitted that he has Patna High Court CWJC No.2508 of 2011 (14) dt.03-04-2013 15/18 nothing to say any further in that regard. 22. Considering the averments made by learned counsel for the parties and the materials on record, it cannot be disputed that the petitioners were among the applicants in response to Advertisement no.1/1990 for appointment on Class III posts of Graduate level in different departments on the specified pay scale and their examinations were conducted in the year 1995- 96, whereafter a panel was prepared and only first phase result as per the said panel was published, whereas, subsequent phase results were not published although a large number of vacant posts remained to be filled up. 23. It is also clear from the records that some of the candidates, who were deprived, immediately filed writ cases; such as C.W.J.C. No. 1376 of 1997, which was disposed of on 03.02.1998 with a direction to make recommendations within one month from the date of each requisition from amongst successful candidates, who had obtained minimum qualifying marks and were eligible for one or other posts and to complete the process and appointment to fill up all the Graduate standard Class-III posts, which were then vacant, within a total period of six months from the date of receipt/production of a copy of the said judgment. Patna High Court CWJC No.2508 of 2011 (14) dt.03-04-2013 16/18 24. The instant writ petitions have been filed by the petitioners after more than 13 years of the said decision without raising any claim in between either before the authorities or before any court of law. Furthermore, in the meantime, the petitioners of all these three writ petitions accepted their appointments on contractual basis for fixed period without raising any such objection and were, thus, happy with their contractual appointments, which were extended from year to year. 25. However, some of the similarly situated employees filed C.W.J.C. No. 128 of 2008 and C.W.J.C. No. 17479 of 2009 for grant of regular pay scale on the post of Statistical Assistant in place of lump sum payment, which was being made to them on the basis of their contractual appointments. The