CIVIL WRIT JURISDICTION CASE No.16552 OF 2001 -------- In the matter of an application under Article 226 of the constitution of India. PRANAY RAJ SHARAN SINHA, S/O LATE SHRI SIA SHARAN SINGH, R/O D 404 CHARMINAR APARTMENTS ROAD NO.12, RAJENDRA NAGAR, PATNA-800006. ……………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. BIHAR PUBLIC SERVICE COMMISSION THROUGH ITS SECRETARY, BAILEY ROAD, PATNA. 3. THE SECRETARY, HEALTH MEDICAL EDUCATION, GOVERNMENT OF BIHAR, PATNA. ……………RESPONDENTS. For The Petitioner : Mr.A.AMANULLAH, Adv. and Mr.Mithilesh Kumar Pathak, Adv. For The Respondent : Mr.Nirmal Kumar Sinha, Adv. P R E S E N T THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Jayanandan Singh, J. Petitioner had initially filed this writ application for a direction to the respondents to fill up all vacant posts of Lecturers of all the faculties of all the Medical Colleges of the State on the basis of examination held by the Bihar Public Service Commission (hereinafter referred to as „the BPSC‟) in the year 2000 and for a direction to the BPSC to prepare complete merit list on the basis of the said examination. However, after liberty granted by this Court by order dated 04.02.2002, petitioner amended his writ application by confining his prayer for filling up of vacant post of Lecturers in the subject of Orthopaedics only. Subsequently, an I.A. No. 1178 of 2002 was also filed by the petitioner 2 formally for such amendment in terms of the time granted by this Court by order dated 05.02.2002. Since the I.A. filed pursuant to liberty granted by this Court and there is no opposition to the same, the same is allowed. The short facts of the case are that the petitioner joined Bihar Health Service in March 1988 and in July, 1995 he became Medical Officer in Patna Medical College and Hospital, Patna (for short „PMCH‟) and subsequently occupied the post of Resident and Registrar also. In 1997, in terms of 1997 Rules, which was published in the Bihar Gazette (Extraordinary) on 24.5.1997 (Annexure-1) Medical Education Cadre was separately created of the doctors working in the Medical Colleges of the State, as per the Rules. On the post of Lecturer, which was entry point in the Medical Education Cadre, appointment had to be made by direct recruitment through BPSC. Accordingly, after formation of the cadre, BPSC advertised 137 vacant posts of Lecturers of different faculties of different Medical Colleges through advertisement dated 17.12.1998 (Annexure-2). As per the case of the petitioner, the total number of vacancies in the Department of Orthopaedics was not notified by the State Government and, therefore, not included in the advertisement. However, petitioner applied in response to the advertisement and appeared in 3 the examination which was held in September, 2000. It is stated that petitioner and other candidates kept on approaching the authorities of the Department to send requisition to the BPSC for total number of vacancies, but nothing tangible came out. They also formed an Association of which petitioner was nominated as Secretary. They filed representations also in the matter and kept on making efforts at different levels for the purpose, but to no avail. BPSC published the result of written examination on 28.09.2001 in which it declared 174 candidates to have passed (Annexure-5). Petitioner was also one of them. Petitioner and others thereafter started making efforts for getting the entire merit list sent to the Government for appointment against all available vacancies. Meanwhile, the BPSC held interview from 5th to 12th of November, 2001 and finally published the list of 60 successful candidates on 21.11.2001 (Annexure-7). It is stated that only because of shortage of notified vacancies the successful persons in the written test could not make up to the final list, although large number of vacancies were available. In the supplementary affidavit, it has been stated that another advertisement was published by the BPSC on 31.12.2001 in respect of 332 vacant posts of Lecturers in various Medical Colleges, in various subjects, which 4 showed that vacancies were available at the time of earlier advertisement also. Some precedent has also been cited in the supplementary affidavit of the respondents having appointed more successful candidates than the original numbers of posts advertised. Thus, it has been contended that, as much more vacancies were available in the various Medical Colleges in different subjects, the respondents ought to have sent requisition to the BPSC for all the available vacancies, and the BPSC in turn should have sent the complete merit list to the Department for appointment against all available vacancies. Counter affidavits have been filed by the BPSC as well as by the authorities of the Department. In the counter affidavit, the facts with regard to the examination held have been narrated. It is stated that the petitioner could not come within the consideration zone after final result as he secured only 74 marks whereas the last candidate in his category had secured 83.5 marks. It is also stated that the State Government had sent requisition for only two vacant posts of lecturers of the Department of Orthopaedics out of which one post was for general candidate and one post was for schedule caste candidate. The Controller of the Examination in his affidavit has stated that informations were 5 sought for and received from the Principals of the Medical Colleges and on the basis of the same vacancies were notified and requisition was sent to the BPSC. In respect of one Dr.Rakesh Kumar whose example was cited by the petitioner in the writ application, it is stated that his posting was done on the orders of this Court. A copy of a judgment dated 20.02.2002 passed by this Court in CWJC NO. 15769 has been annexed as Annexure-A to contend that a similar matter has already been dismissed by this Court. In the supplementary counter affidavit filed by the respondent State authorities, it is stated that only two vacancies were available in the subject of Orthopaedics, out of which one was for general candidate and one was for schedule caste candidate and appointments were made accordingly. Petitioner has filed a rejoinder to the counter affidavits in this case on 29.03.2010. In the rejoinder, it is stated that the notification of Dr. Rakesh Kumar dated 17.05.2004 shows that at least there was one more vacancy of the post of Lecturer in the Department of Orthopaedics was available at the relevant time. Thus, in this background the petitioner has made a prayer for direction to the respondents to publish the complete merit list and fill up all posts of Lecturers in the 6 subject of Orthopaedics in different Medical Colleges. From the pleadings of the petitioner, it is clear that his entire grievance is that the total number of vacant posts of Lecturer in the subject of Orthopaedics was not notified by the State Government and requisition in respect of the same was not sent to the BPSC on account of which other eligible persons who were successful in the written examination could not be considered. The stand of the respondents in reply is that as per the information received from the Medical Colleges, the vacancies were calculated and requisition was sent to the BPSC for recommendation. In the requisition only two vacant posts of Lecturers in the subject of Orthopaedics was included. In support of the case of the petitioner, learned counsel has relied upon a judgment of the Apex Court in the case of S.S.Balu and Anr. Vs. State of Kerala and Ors. (AIR 2009 SC 1994). In this case the Division Bench on the concession of the State had directed for appointment of all the original 18 writ petitioners on available vacancies. The appellants before the Apex court raised a grievance that, they being senior in the panel than the original writ petitioners, had also legal right to get appointed on the available vacancies though not notified and covered by 7 original advertisement. The following observations made by the Apex Court in paragraph 14, 15 and 16 are relevant in the present context:- 14. The matter might have been different, had the learned single Judge as also the Division Bench come to a conclusion that in fact there existed 125 vacancies where for requisition was sent to the Commissioner. The existence of actual number of vacancies being in dispute, it is difficult for us to opine as has been contended by the learned counsel that all such vacancies existed. Before the Division Bench of the High Court, the State conceded that 18 original writ petitioners may be appointed stating that they were the actual beneficiaries of the judgment. Such a stand on the part of the State was accepted. The division bench of the High Court did not go into the other contentions raised by the parties thereto. No factual foundation, therefore, has been laid before us for arriving at the conclusion that all the 125 vacancies existed. 15. There is another aspect of the matter which cannot also be lost sight of. A person does not acquire a legal right to be appointed only because his name appears in the select list. [See Pitta Naveen Kumar & Ors. Vs. Raja Narasaiah Zangiti & Ors. (2006) 10 SCC 261) 16. The State as an employer has a right to fill up all the posts or not to fill them up. Unless discrimination is made in regard to the filling up of the vacancies or an arbitrariness is committed, the concerned candidate will have no legal right for obtaining a writ of or in the nature of mandamus. [See Batiarani Gramiya Bank Vs. Pallab Kumar & Ors. (2004) 9 SCC 100) In Shankarsan Dash Vs. Union of India [(1991) 3 SCC 47], a Constitution Bench of this Court held: 8 “7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.” In State of Haryana Vs. Subhash Chander Marwaha [(1974) 3 SCC 220], this Court held: “The mere fact that a candidate‟s name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government and departed from the rules in this respect… “11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr. Rai Shivendra Bahadur V. Governing Body of the Nalanda College that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who 9 are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived.” In Pitta Naveen Kumar & Ors. Vs. Raja Narasaiah Zangiti & Ors. (2006) 10 SCC 261), this Court held: “……A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise……” In State of Rajasthan & Ors. Vs. Jagdish Chopra [(2007) 8 SCC 161], this Court held: “9. Recruitment for teachers in the State of Rajasthan is admittedly governed by the statutory rules. All recruitments, therefore, are required to be made in terms thereof. Although Rule 9(3) of the Rules does not specifically provide for the period for which the merit list shall remain valid but the intent of the legislature is absolutely clear as vacancies have to be determined only once in a year. Vacancies which arose in the subsequent years could be filled up from the select list prepared in the previous year and not in other manner. Even otherwise, in absence of any rule, ordinary period of validity of select list should be one year. In State of Bihar V. Amrendra Kumar Mishra (2006)12 SCC 561, this Court opined: (SCC p.564, para 9) “9. In the aforementioned situation, in our opinion, he did not have any legal right to be appointed. Life of a panel, it is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel.” It was further held: (SCC 10 p.565, para 13) “13. The decisions noticed hereinbefore are authorities for the proposition that even the wait list must be acted upon having regard to the terms of the advertisement and in any event cannot remain operative beyond the prescribed period.” XXX XXX XXX 11. It is well-settled principle of law that even selected candidates do not have legal right in this behalf. (See Shankaran Dash V. Union of India (1991) 3 SCC 47, and Asha Kaul Vs. State of J&K (1993)2 SCC 573)” (emphasis is mine) In the present case also, it is clear that the actual number of available vacancies was not disclosed by the petitioner on oath before this Court at any stage. Just a sweeping claim has been made by the petitioner that total number of vacancies were not notified and requisitioned by the Government. What the petitioner has sought for in this case is an order in the nature of writ of mandamus to direct the State to fill up all vacancies available after obtaining recommendations from the BPSC. In paragraph 16 as quoted above, the Apex Court had made it clear that State as an employer is at liberty to fill up all the posts or not to fill them up. It is settled law that no legal duty is cast upon the State in this regard and, therefore, no writ of mandamus can issue upon the respondents as prayed for by the petitioner. The judgment relied upon by learned 11 counsel for the petitioner itself defeats the case of the petitioner as tried to be made out by him in the writ application. This Court need not say more. The writ application is dismissed. Patna High Court The 28th September, 2010 N.A.F.R./Arvind ( J. N. Singh, J.)