Letters Patent Appeal No.427 OF 2007 (Against judgment and order dated 30.10.2006, passed by a learned Single Judge in CWJC No. 14916 of 2004) ****** 1. THE STATE OF BIHAR through its Chief Secretary Bihar, Patna 2. The Secretary, Personnel and Administraive Reforms Department, Govt. of Bihar, Patna 3. The Secretary, Animal Husbandry and Fisheries Department, Govt. of Bihar, Patna ……… Appellants Versus 1. KRISHNA KANHAIYA son of Sri Bajrangi Mehta at present resident at Mansi at and PS Mansi, District Khagaria …Petitioner/Respondent no.1 2. The Bihar Public Service Commission through its Chairman, Jawaharlal Nehru Marg, Patna … Respondent no.4 in the writ petition/ Respondent 2nd set. ***** For the Appellant : Ms. Nilu Agrawal Govt. Advocate No. 10 For Respondent no.1 : Ms. Namrata Mishra For Respondent no.2 : Mr. Sanjay Pandey ***** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE JYOTI SARAN S K Katriar & Jyoti Saran, J.J. The State of Bihar and its functionaries have preferred this appeal under clause10 of the Letters Patent of the High Court of Judicature at Patna, and are aggrieved by the order dated 30.10.2006, passed by a learned Single Judge of this court in CWJC No. 14916 of 2004 (Krishna Kanhaiya vs. State of Bihar & Ors.), whereby the authorities have been required to prepare the merit list for appointment to the posts of District Fisheries Officer-cum-Chief Executive Officer/Assistant Director on the basis of the available vacancies in existence caused by retrospective promotions. The facts shall be drawn from the writ proceedings, except by specific reference to the present appeal. 2. A brief statement of facts essential for the disposal of the appeal may be indicated. By communication dated 30.3.99 (Annexure 2), the State Government had sent a requisition to the Bihar Public Service Commission (hereinafter referred to as `the Commission’), to fill up 18 vacancies of District 2 Fishery Officer-cum-Chief Executive Officer/Assistant Director, Class II, by direct recruitment. Nine posts were allocated to the general category, two posts to the reserved category of scheduled caste, two posts for the reserved category of scheduled tribes, three posts for the reserved category of most backward class, one post reserved for the backward class, and one post for the reserved category of women of the backward class. Respondent no.2 issued an advertisement which had appeared in the local dailies on 22.12.99 (Annexure 3). After scrutiny of applications, the candidates were called for interview vide notification dated 5.11.2002 (Annexure 4). Interview was held in November 2002. By its communication dated 22.1.2003 (Annexure 7), the Commission recommended16 names for appointment. This was followed by communication dated 18.3.2004 (Annexure A), from the State Government to the Commission, requesting the latter to send a revised list of 12 candidates because of reduction of posts on account of division of the erstwhile State of Bihar. The same had also incorporated the revised list of the posts allocated to different categories as well as the revised roster position. By its communication dated 24.4.2004 (Annexure 10), the Commission replied that the revised list as per Annexure-A was not possible. However, the Commission ultimately recommended 9 names by its communication dated 27.10.2004 (Annexure B). In the meantime, the State Government promoted 5 District Fishery Officers (Class II) to the next higher post of Deputy Director of Fisheries, vide notification dated 30.1.2004 (Annexure 8). It is relevant to state that they were given their seniority as well as money benefits with effect from 1.1.99, 2.8.2000, 3.8.2000, 23.5.2001, and 11.6.2001. The State Government issued appointment letters to nine persons out of whom eight joined, and one Shambhu Prasad Yadav, though a member of the backward category but was really selected in the general category, did not join. The net result is that eight persons have joined as per the number of vacancies and the roster points stated in the aforesaid communication dated 24.4.2004 (Annexure- B). It is further relevant to state that the writ petitioner was originally at sl.no. 14 of the unrevised list (Annexure 7), and was the third person amongst the candidates of the reserved category of most backward class. 3 2.1) After reduction in the number of vacancies, only two posts were allocated to the reserved category of most backward class and, therefore, the writ petitioner was not selected leading to the aforesaid CWJC No.14916 of 2004, which has been disposed of by the impugned order. The learned Single Judge does not seem to have found fault with the reduction in vacancies on account of bifurcation of the erstwhile State of Bihar. He has, however, taken note of the promotion of five District Fishery Officers with retrospective dates, vide notification dated 301.2004 (Annexure 8), and has, therefore, directed the authorities to take these five vacancies into account for the purpose of appointment as per the selection process in question. 3. Learned Government Advocate submits that the learned Single Judge has erred in taking into account the five vacancies caused by promotion which is an event much after the conclusion of the selection process. She next submits that a recommendee has no right to appointment in case of refusal or failure on the part of the authorities to fill up certain posts, even though notified in the advertisement. Such decision of the authorities can not per se be set aside, and the State Government is entitled to offer for consideration of the court plausible and bona fide explanation. She relies on the following reported judgments:- (i) (1991) 3 SCC 47 (Shankarsan Dash v. Union of India) (ii) 2004(3) PLJR 246 (Anil Kumar Mishra v. State of Bihar & Ors.) She further submits that the State Government is willing to fill up 12 posts provided recommendations were made by the Commission. It had recommended nine names out of whom one candidate did not join. The explanation for not filling the remaining posts is that two posts in the revised list have been allocated to the reserved category of scheduled caste, and one of the selected candidates belonged to the State of Jharkhand. In so far as the reserved category of scheduled tribes is concerned, one post was allocated and the selected candidate belonged to the State of Jharkhand. In her submission, those of the candidates of the reserved category who belonged to the State of Jharkhand shall, after creation of the State of Jharkhand, not be entitled to get the benefit of reservation. In so far as the reserved category of backward class of women is concerned, one post was 4 allocated, but the Commission did not recommend any name because no suitable candidate was available. The net result is that 9 persons were recommended by the Commission and appointment letters were issued to all of them. 4. Learned counsel for the Commission submitted that it acts entirely as per the requisition of the State Government. The Commission has forwarded the revised list dated 29.12.2006 (Annexure A to the appeal), as per the direction contained in the impugned order, wherein the writ petitioner figures. 5. Learned counsel for the writ petitioner has supported the impugned order. In her submission, the learned Single Judge has rightly directed the authorities to take into account the five vacancies caused by promotion in a situation where the selection process had not been closed. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. It is evident from a perusal of the impugned order that none of the parties has objected to the reduction of posts caused by bifurcation of the erstwhile State of Bihar. The learned Single Judge has also not found fault with the same. In other words, reduction of seats from 18 to 12 is unassailable. 7. We are in this connection reminded of the judgment dated 6.5.2009 of a Division Bench of this Court to which one of us (S K Katriar,J.) was a party, in LPA No.904 of 2006 (State of Bihar vs. Vinod Kumar Singh & Ors.). That was a case where the selection process was held for appointment of a large number of Lecturers for various subjects in different universities of the undivided State of Bihar. After completion of the selection process, altogether 1052 candidates were recommended for appointment college-wise and subject-wise. The advertisement appeared in the local dailies on 1.4.97, and the results were finally published on 8.12.2002, whereby 930 candidates were recommended for appointment to the various universities which now fall in the present State of Bihar, and 122 candidates were recommended for appointment to the three universities which now fall in the present State of Jharkhand. In other words, altogether 1052 candidates were recommended for appointment. 930 candidates recommended for appointment to the various universities in the present State of Bihar were duly 5 appointed. The remaining 122 candidates recommended for appointment in various universities in the State of Jharkhand were disowned by the State of Jharkhand who ultimately filed the writ petition. The same was allowed by a learned single Judge of this Court, and the authorities in the State of Bihar were directed to accommodate the said 122 candidates in various universities in the present State of Bihar. The Division Bench disagreed with the same and observed that the recommendations made for the universities which now fall within the State of Jharkhand cannot be imposed on the present State of Bihar. The judgment is applicable to the present case on all fours. In the instant case, therefore, we uphold the reduction of seats occasioned by creation of the State of Jharkhand. 8. In so far as the explanation offered with respect to the remaining three posts are concerned, we entirely disagree with the approach adopted by the Commission and accepted by the State Government without demur. It has been stated on behalf of the Commission as well as the State of Bihar that, out of the two suitable persons of the reserved category of scheduled caste, one belonged to the State of Jharkhand. The suitable candidate for the post reserved for the category of scheduled tribe also belonged to the State of Jharkhand. The Commission as well as the State Government have taken the stand before us that the benefit of reservation has been discontinued to persons belonging to the State of Jharkhand after its creation on 15.11.2000. Law is well settled that the benefit of reservation to the candidates belonging to the State of Jharkhand shall be available to them with respect to vacancies which occurred in the undivided State of Bihar, prior to 15.11.2000. Therefore, the two vacancies had occurred prior to bifurcation of the State. We are equally in no doubt that the two persons selected for the reserved categories of scheduled caste and scheduled tribe are entitled to the benefit of reservation and appointment, even though they belonged to the State of Jharkhand because those vacancies had occurred prior to creation of the State of Jharkhand on 15.11.2000. The issue fell for the consideration of this Court in the case of Dr. Surendra Kumar v. State of Bihar, [2005 (4) PLJR 478], wherein the same view has been taken. We are mindful of the position that it is the decision of a learned single Judge, but we agree with the view taken there. 6 9. The Commission could not have and rightly did not, recommend the name from the reserved category of back-ward class of women, because a suitable candidate was not available. 10. The primary question for consideration is whether or not the learned Single Judge has rightly taken into account the five vacancies caused by promotion before the matter was closed. The issue is not free from difficulties. We, however, take the view that we have taken for the reasons assigned thereafter. It is correct to state that the promotion order was issued on 30.1.2004 (Annexure 8), whereby five District Fishery Officers (Class II) were promoted to the next higher posts of Deputy Director of Fisheries, causing five consequential vacancies in the category of the former which is the category to which the appointment is being made. They were promoted with effect from different dates mentioned against their names along with the money benefits, namely, with effect from 1.1.99, 2.8.2000, 3.8.2000, 23.5.2001, and 11.6.2001. It is further evident that the State Government had sent the requisition on 30.3.99 (Annexure-2), and the Commission had issued the advertisement on 22.12.1999 (Annexure 3). It thus appears to us that the State Government intended to fill up the vacancies which had occurred during the regime of the undivided State of Bihar. It is another matter that the selection process took more than the needed time. This would, in our view, not change the legal position of not taking into account the future vacancies unless the law so stipulated. No such provision of law with respect to appointment of District Fishery Officer has been brought to our notice. Out of the five persons so promoted with retrospective effect, three have been promoted with effect from the dates prior to bifurcation of the erstwhile State of Bihar, and two after the bifurcation, but then there is no escape from the factual position that the vacancies did not physically occur on the date of the advertisement. We would, therefore, prefer to disagree with the learned Single Judge whereby he has taken into the account the five vacancies which have occurred due to promotion with retrospective effect. 11. A similar situation with respect to the recruitment process of the Bihar Judicial Service had come up before a Division Bench of this Court in the case of 7 Anil Kumar Mishra vs. State of Bihar (supra). The Division Bench of this Court took the same view as we do here. Paragraph-4 of the order in the said case is reproduced hereinbelow for the facility of quick reference:- “4. In the judgment under appeal all the relevant materials have been properly considered and it has rightly been found that according to settled law empanelment does not confer any vested right. In the facts of the case there was no scope to grant relief to the intervenors such as the appellant by invoking the principles of equity and to order for their appointment against later vacancies which were not available for the candidates of the 25th Judicial Service Examination. Such vacancies have to be filled up by holding further Examination in accordance with law so as to give opportunity to others also who are now eligible to the next Examination. We must candidly state that this is not an exhaustive and full-length judgment within the law of binding precedents, but we do agree with the view taken by the Division Bench. 12. The learned Government Advocate has rightly relied on the judgment of the Supreme Court in the case of Shankarsan Dash vs. Union of India (supra), wherein the Supreme Court has observed that the candidate included in the merit list has no indefeasible right to appointment even if a vacancy exists. But the State, while filling up the vacancies, has to act bona fide and not arbitrarily. In case of non-filling up of the vacancies, it is liable to offer a valid and bona fide explanation. The State Government has in the present case offered a plausible, bona fide, and valid explanation for reduction of seats from 18 to 12, and for not taking into account the five vacancies caused by promotion. As stated hereinabove, in view of the communication dated 18.3.2004 (Annexure A), from the State Government to the Commission, the latter had sent a revised list of 9 persons. Further reduction from 12 to 9 has been sought to be explained by the State Government and indicated hereinabove. Amongst the nine persons recommended by the Commission, one Shambhu Prasad Yadav was appointed but did not join. No suitable candidate in the reserved category of women of backward class was available and, therefore, none was recommended by the Commission. We accept the explanation as far as these two posts are concerned. 13. In the result, we modify the order of the learned Single Judge. The Commission is directed to prepare a revised list of 12 persons in accordance with 8 the observations made hereinabove. If circumstances permitting, it will be open to it to take into account the vacancy on account of non-joining. It is made clear that the appointment of eight persons who have already joined shall in any circumstance remain unmutilated. In the facts and circumstances of the case, there shall however be no orders as to costs. ( S K Katriar ) ( Jyoti Saran ) Patna High Court The 5th of August, 2009 AFR/ mrl.