IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.919 of 2011 In CWJC No. 4361 of 2011 ====================================================== 1. Subodh Kumar, Son of Sri Rampati Pandit, resident of Raja Bunglow, near Jawahar Talkies, P.O. & P.S. Jhumari Tilaiya, District Koderma- 825409 (Jharkhand). 2. Md. Safi Akhtar, Son of late Md. Mojibur Rahman, resident of Said Manzil, Village & P.O. Khiriyawan, P.S. Madanpur, District- Aurangabad (Bihar). 3. Kanhaiya Prasad, Son of Sri Ram Girdhari Ram, resident of Village & P.O. Jamuaon, Via Jitora, District Bhojpur. 4. Gupteshwar Prasad, Son of Sri Sahbu Bedia, resident of village and P.O. Ordana, P.S. Peterwar, District-Bokara (Jharkhand) 5. Jivan Kumar Bhagat, Son of late Mahali Bhagat, resident of Village Madai, P.O. Bayasi, P.S. Chanhi, District Ranchi (Jharkhand). 6. Amitabh Singh, Son of Sri Kamal Narayan Singh, resident of Flat No. 59, Block No.2, Sector No.6, MIG Housing Colony, Bahadur, Patna. .... .... Appellant/s Versus 1. The State of Bihar through the Principal Secretary, Road Construction Department, Old Secretariat, Government of Bihar, Patna. 2. The Principal Secretary, Road Construction Department, Old Secretariat, Government of Bihar, Patna. 3. The Principal Secretary, General Administrative Department, Government of Bihar, Old Secretariat, Patna 4. The Principal Secretary, Rural Development Department, Government of Bihar, Patna 5. Bihar Public Service Commission through its Secretary, Bailey Road, Patna-800 001. ... .... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Bindhyachal Singh, Advocate Patna High Court LPA No.919 of 2011 (3) dt.04-07-2011 2 For the Respondent/s : Mr. Binit Kumar, A.C. to G.A.-9 with Mr. K.B. Nath, with Mr. S.C. Jha with Mr. Durga Naraya, Advocates ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 3 04-07-2011 This appeal under Clause X of the Letters Patent is preferred by the writ petitioners against the order dated 9th March 2011 made by the learned single Judge in above CWJC No.4361 of 2011. According to the appellants, pursuant to an advertisement published in the year 1996, the appellants had applied for appointment as Assistant Engineer (Civil) in Rural Engineering Organization under the State of Bihar. After due selection process, the appellants were selected. Under communication dated 6th May 2002 addressed by the Bihar Public Service Commission, the names of the appellants and the others were recommended for appointment on 200 vacancies advertised. Nevertheless till the date the appellants are not issued appointment orders. As the appellants were not appointed for many years, they approached this Court in above CWJC No.4361 of 2011 filed under Article 226 of the Constitution. The learned single Judge has dismissed the writ petition on the ground of abnormal delay. Therefore, the present appeal. Learned Advocate Mr. Vindhyachal Singh has appeared for the appellants. He has submitted that pursuant to the Patna High Court LPA No.919 of 2011 (3) dt.04-07-2011 3 advertisement published for 200 vacancies the appellants were selected for appointment on the said vacancies. Once the Bihar Public Service Commission had recommended the names of the appellants for appointment as Assistant Engineer (Civil), the State of Bihar was under an obligation to appoint the appellants as Assistant Engineer (Civil). Reliance is placed on a communication dated 7th June 1977 addressed by the Government of Bihar to all its departments. The aforesaid communication contains a general instruction in respect of recruitment in different States Services pursuant to the Combined Competitive Examination conducted by the Bihar Public Service Commission. The said instructions were issued for prompt appointment of selected candidates. The Government has framed a time schedule to be followed by the Commission and concerned department of the Government. Clause 13 of the said instructions provides : “Number of vacancies once communicated to the Commission shall not be altered”. Mr. Vindhyachal Singh has submitted that the aforesaid instructions are still in operation. The State Government was, therefore, under an obligation to make appointment on 200 vacancies advertised by the Bihar Public Service Commission. The Bihar Public Service Commission, had after due selection procedure, recommended 199 candidates for appointment as Assistant Engineer (Civil). Out of the said recommendation only 133 appointments were made leaving the remaining 66 selected candidates. He has submitted that this was done in view of bifurcation of the State of Bihar under the Bihar Re-organization Act, 2000. Some of the parts of Bihar State were separated to Patna High Court LPA No.919 of 2011 (3) dt.04-07-2011 4 form the State of Jharkhand. Pursuant to the said bifurcation, the State of Bihar decided to fill in 2/3rd of the vacancies advertised. Mr. Singh has also relied upon the various notings made on the File in respect of appointment of the appellants. He has submitted that the matter is under continuous consideration by the State Government. This being the continuous cause of action, the petition could not have been dismissed on the ground of delay alone. Mr. Singh has also relied upon the judgment of this Court in the matter of “State of Bihar and Others Vs. Arun Kumar [L.P.A. No.567 of 2005]” decided on 31st July 2005 by a Division Bench of this Court [Coram : J.N. Bhatt, C.J. and Shashank Kr. Singh, J] . In the said matter this Court directed the State of Bihar to fill in the posts of Block Welfare Officer advertised prior to the Bihar Re-organization Act, 2000. 1/3rd of the vacancies were not filled in on account of bifurcation of the State of Bihar and formation of the State of Jharkhand. At the outset we must note that the instructions issued in 1977 with respect to the recruitment to different state services pursuant to the Combined Competitive Examination conducted by the Bihar Public Service Commission are indeed binding upon the authorities. However, the said instructions would apply in normal circumstances. In the present case because of unforeseen circumstance of bifurcation of the State of Bihar, the said instructions could not be followed in letter and spirit. On account of bifurcation of the erstwhile State of Bihar, the State lost part of its territory and also the manpower. Keeping in view the reduced area and the manpower the reorganized State of Bihar decided to make appointment on 2/3rd of the vacancies advertised. The above referred 1977 instructions are mere executive instructions Patna High Court LPA No.919 of 2011 (3) dt.04-07-2011 5 and are not statutory provisions which can not be deviated from in any circumstances. Further by mere selection and recommendation, the appellants did not acquire an indefeasible right to appointment. We agree with the learned single Judge that the claim of the appellants made in the year 2011 for appointment on the basis of the recommendations made by the Bihar Public Service Commission in the year 2002 was grossly belated and was rightly rejected on the ground of delay. The explanation that the matter is still under consideration and gives continuous cause of action is not palatable. Even the notings produced on the record suggest that since 2005 the matter is lying dormant. The claim made by the appellants was indeed liable to be rejected on the ground of delay and laches. No case for interference is made out. The appeal is dismissed in limine. M.Rahman/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)