1 CIVIL WRIT JURISDICTION CASE No.7725 OF 2005 ( In the matter of applications under Article 226 of the Constitution of India ) SUNIL KR. SINHA & ORS --------------Petitioners Versus THE STATE OF BIHAR & ORS--------------Respondents with CWJC No.7505 oF 2005 BIRENDER KUMAR TEWARI & ORS-----------Petitioners Versus THE STATE OF BIHAR & ORS---------------Respondents With CWJC No.7263 oF 2005 SUBODH KUMAR VERMA--------------------Petitioner Versus THE CHAIRMAN,B.P.S.C. & ORS-----------Respondents With CWJC No.8552 oF 2005 SHREE KANT KUMAR----------------------Petitioner Versus THE STATE OF BIHAR & ORS--------------Respondents with CWJC No.7041 oF 2005 JAI PRAKASH YADAV & ORS---------------Petitioners Versus THE STATE OF BIHAR & ORS--------------Respondents with CWJC No.8032 oF 2005 NIRANJAN PRASAD MANDAL & ORS-----------Petitioners Versus THE STATE OF BIHAR & ORS---------------Respondents with CWJC No.15412 oF 2005 SARAS KUMAR-----------------------------Petitioner Versus THE STATE OF BIHAR & ORS----------------Respondents with CWJC No.8573 oF 2005 MAHENDRA KUMAR VERMA---------------------Petitioner Versus THE STATE OF BIHAR & ORS-----------------Respondents with CWJC No.7386 oF 2005 SHANKAR DAYAL UPADHYAY & ORS-------------Petitioners Versus THE STATE OF BIHAR & ORS-----------------Respondents with CWJC No.7390 oF 2005 SHARMILA SINHA-----------------------------Petitioner Versus THE B.P.S.C. & ORS-------------------------Respondents With 2 CWJC No.10243 oF 2005 BHUPENDRA KUMAR & ANR----------------------Petitioners Versus THE STATE OF BIHAR & ORS-------------------Respondents With CR. WJC No.583 oF 2007 PAWAN KUMAR SINGH & ANR--------------------Petitioners Versus THE STATE OF BIHAR & ORS-------------------Respondents with CWJC No.16093 oF 2007 KRISHNA NANDAN SAW & ORS-------------------Petitioners Versus THE STATE OF BIHAR & ORS-------------------Respondents ***** In CWJC No.7725 of 2005 For The Petitioners : Mr. Vikas Kumar For respondent nos.1 & 2 : Mr. S K Ghosh, AAG II : Mr. Rajesh Kumar Singh,JC For respondent nos.3 to 5, And 7 : Mr. Ashok Kumar Choudhary : Mr. Sanjay Pandey For the Vigilance : Mr. Rakesh Kumar Government Advocate No.IX For respondent nos.8 to16: Mr.Tarakant Jha,Sr.Advocate : Mr. Ravindra Priyadarshi In CWJC No.7505 of 2005 For the Petitioners : Mr.Chittaranjan Sinha, Sr. Advocate : Mr. Mr. Sanjeet Kumar For the State : Mr.Rajesh Kumar Singh,JC to AAG II For the BPSC : Mr. Sanjay Pandey For the Vigilance : Mr. Rakesh Kumar,GA IX In CWJC No.7263 of 2005 For the Petitioners : Mr. Sanjay Kumar Verma For the State : Mr. Rajesh Kumar Singh,JC to AAG II For the BPSC : Mr. Sanjay Pandey For the Vigilance : Mr. Rakesh Kumar, GA IX In CWJC No.8552 of 2005 For the Petitioner : Mr. Rajeev Kumar Singh For the State : Mr. Rajesh Kumar Singh,JC to AAG II For the BPSC : Mr. Sanjay Pandey For the Vigilance : Mr. Rakesh Kumar, GA IX In CWJC No. 7041 of 2005 For the Petitioners : Mr.Rajendra Prasad Singh Senior Advocate For the State : Mr.Rajesh Kumar Singh,JC to AAG II For the BPSC : Mr.Sanjay Pandey For the Vigilance : Mr.Rakesh Kumar, GA IX 3 In CWJC No.8032 of 2005 For the Petitioners : Mr. Rama Nand Poddar For the State : Mr. Rajesh Kumar Singh,JC to For the BPSC : Mr. Sanjay Pandey For the Vigilance : Mr. Rakesh Kumar, GA IX In CWJC No.15412 of 2005 For the Petitioner : Mr.Anil Kumar Sinha For the State : Mr.Rajesh Kumar Singh,JC to For the BPSC : Mr.Sanjay Pandey For the Vigilance : Mr.Rakesh Kumar,GA IX In CWJC No. 8573 of 2005 For the petitioner : Mrs.Neelam Kumari For the State : Mr. Rajesh Kumar,JC to AAG II For the BPSC : Mr. Sanjay Pandey For the Vigilance : Mr. Rakesh Kumar,GA IX In CWJC No.7386 of 2005 For the Petitioners : Mr. Mahesh Narayan Parbat For the State : Mr. Rajesh Kumar Singh,JC to AAG II For the BPSC : Mr. Sanjay Pandey For the Vigilance : Mr. Rakesh Kumar, GA IX In CWJC No.7390 of 2005 For the Petitioner : None For the State : Mr. Rajesh Kumar Singh,JC to AAG II For the BPSC : Mr. Sanjay Pandey For the Vigilance : Mr. Rakesh Kumar,GA IX In CWJC No. 10243 of 2005 For the Petitioner : Mr. Vivek Prasad For the State : Mr. Rajesh Kumar Singh,JC to AAG II For the BPSC : Mr. Sanjay Pandey For the Vigilance : Mr. Rakesh Kumar,GA IX In CrWJC No.583 of 2007 For the Petitioners : None For the State : Mr.Amrendra Kumar JC to AAG IV For the Vigilance : Mr. Rakesh Kumar In CWJC No. 16093 of 2007 For the Petitioners : Mr. Rajeev Kumar Verma Senior Advocate Mr. Ranjeet Kumar For the State : Mr.Rajesh KumarSingh,JC AAG II For the Vigilance : Mr. Rakesh Kumar,GA IX ****** 4 P R E S E N T THE HON'BLE MR.JUSTICE SUDHIR KUMAR KATRIAR S K Katriar, J. This is a batch of 13 writ petitions under Article 226 of the Constitution of India, questioning the validity of the selection process of the Bihar Administrative Service First Limited Competitive Examination 2003 (hereinafter referred to as `the Selection Process`), conducted by the Bihar Public Service Commission (hereinafter referred to as `BPSC’). All the writ petitions (except Cr.WJC No.583 of 2007 and CWJC No.16093 of 2007) have been preferred by unsuccessful candidates, some of whom want cancellation of the selection process from the stage of the advertisement, some other want the selection process from the post-advertisement stage and fresh examination to be held, and still others want the selection process to be upheld and preparation of fresh merit list in accordance with law after excluding the charge-sheeted candidates. Cr.WJC No. 583 of 2007 has been preferred by the successful candidates and pray for the direction that the investigation may be concluded expeditiously. CWJC No.16093 of 2007 has been preferred by some of the successful candidates and pray that they may be appointed after eliminating the charge-sheeted candidates. The representative facts shall be taken from CWJC No.7725 of 2005 (Sunil Kumar Sinha vrs. State of Bihar & Others), except where facts by specific reference is derived from any other writ petition. 5 2. In exercise of the powers conferred by Article 309 of the Constitution of India, the Bihar Government framed the Bihar Administrative Service (Appointment by Limited Competitive Examination) Rules 1991 (hereinafter referred to as the Rules) (Annexure A, at page 79),published in the Bihar Gazette, dated Patna 19 January 1994, Part II. In substance it provides that upto maximum of 25% of Class II posts filled up by the direct competitive examination held by BPSC, shall be selected from amongst the existing class III employees of the State Government on the basis of a limited competitive examination to be conducted by BPSC. In view of rule 12, eligible persons shall be entitled to appear at the examination and will be considered against the vacancies from 1982 to 1991. The period 1982 to 1991 has been substituted by the period 1982 to 1998 by Government Notification dt.27.6.2000 (Annexure D), issued in the name of the Governor of Bihar, published in the Bihar Gazette Extra-ordinary Issue, Patna, dated 8.9.2000. In other words, the Rules provide for promotion opportunities to the serving class III employees of the State Government to the gazetted ranks of the Bihar Government with detailed terms and conditions of vacancies, eligibility, mode and manner of selection process to be conducted by BPSC, etc. 3. The State Government sent its requisition to BPSC to conduct the limited examination as per the Rules. BPSC accordingly issued the advertisement (Annexure 1), which was published in the local dailies on 21.5.2003. Altogether 4364 applications were received, 1754 applications were rejected, and the 6 remaining 2610 candidates appeared at the limited examination held on 19.10.2003. The results were published in the local dailies on 20.5.2005(Annexure 1 to CWJC No.7505 of 2005), publishing the results of 184 successful candidates. It was followed by a corrigendum published in the local dailies on 24.5.2005 (Annexure 4 of CWJC No.8573 of 2005). The State Government had received the letter of recommendation dt.24.5.2005 of BPSC on 29.5.2005.It was a list of recommendation of 184 Class III employees prepared in order of merit, for appointment to Class II service. 4. This was followed by the present writ petition lodged in this Court on 5.7.2005, followed by other writ petitions. By order dated 11.7.2005, passed in the analogous CWJC No.7041 of 2005, the appointments were to be made subject to the result of the case. This was followed by the order dated 24.10.2005, passed in CWJC No. 7725 of 2005. “…………Let it be clarified that the State Government should desist from taking any step which will render the present batch of writ petitions either infructuous or troublesome for the successful party…..” The State Government has not so far made any appointment/promotion from the aforesaid merit list. 5. By the same order of 24.10.2005, learned counsel for the BPSC was directed to make available for the inspection and perusal of the learned counsel for the parties in all the writ petitions the original records relating to recommendations of the Commission in the present matter, which took place. This was followed by the order dated 21.11.2005, whereby BPSC 7 was directed to make available the answer books of all the petitioners as well as the successful candidates for inspection of the learned counsel for the parties appearing in this batch of writ petitions in the High Court on 5.12.2005 and 6.12.2005. The order was not carried out and BPSC instead filed an interlocutory application for modification of the said order dated 21.11.2005, praying therein that the Commission has no objection to production of the answer books for perusal of the Court only and the order may accordingly be modified. During the course of submissions with respect to the interlocutory application of BPSC, learned Additional Advocate General II appeared with the Deputy Superintendent of Police (Vigilance), and produced a copy of Govt. Order dated 7.12.2005, issued under the signature of the Addl.Director General of Police, Cabinet (Vigilance), constituting a team of the functionaries under him for investigation of the allegations of gross irregularities and corruption with respect to the Selection Process which is the subject matter of the present proceedings. Learned AAG II further informed the Court that the team visited the premises of the Commission that day (7.12.2005) at 12.30 p.m., and was camping there when the order dt. 7.12.2005 was being dictated at 3.08 p.m. He further submitted that the functionaries of BPSC were not allowing the team to investigate the allegations, and were not being allowed to seize the documents because of pendency of the present proceedings and the said order dated 21.11.2005. The submission of the learned counsel for BPSC in his own words was incorporated as follows in 8 the order dated 7.12.2005, and is reproduced hereinbelow:- “The Commission will be co- operating in the entire process of the investigation but the only request is that till the matter is sub-judice, the Vigilance Department will not seize the answer books.” (Emphasis added) 6. The submission was rejected. The Court proceeded to direct stay of operation of the aforesaid order of this Court of 21.11.2005, whereby BPSC had been directed to produce the answer books for inspection of the learned counsel for the parties. The Commission and its functionaries were directed to extend full co-operation to the Vigilance Department for the purpose of investigation, and pendency of the batch of writ petitions shall not come in its way. The team shall be entitled to seize any document or answer book that it deemed fit in exercise of its powers of investigation. This Court placed reliance on the judgment of the Supreme Court in the cases of King Emperor vs. Khwaja Nazir Ahmad (AIR 1945 Privy Council 18), as well as State of Bihar vs.J.A.C.Saldhana (1980 Vol.I SCC 554). This batch of writ petitions were placed periodically before this Court with a view to monitor the investigation. The Addl. Director General of Police (Vigilance) submitted the progress report of investigation in sealed cover on every occasion. 7. The Cabinet (Vigilance) Department of the Government of Bihar proceeded with the investigation, seized all the answer books and other documents for the purpose of investigation leading to arrest of the following persons:- 9 i) Dr. Ram Singhasan Singh Chairman of BPSC ii) Dr. Sheo Balak Choudhary Member of BPSC iii) Dr. Deo Nandan Sharma Member of BPSC iv) Syed Masum Ali Member of BPSC v) Smt. Razia Tabassum Previous Chairman of BPSC vi) Six officials and staff of BPSC vii) 17 successful candidates viii) Dr. Subodh Kumar, a Doctor in Animal Husbandry Department, Govt. of Bihar, who acted as go-between. Altogether 29 persons were arrested during the course of investigation. Altogether 109 persons have been charge-sheeted, out of whom 97 are successful candidates, described elsewhere in the judgment as beneficiaries, and have found their way into the merit list comprising of 184 persons. 8. During the pendency of the present proceedings and ongoing investigation, some of the successful candidates preferred three Criminal Writ Petitions in this Court which were ultimately disposed of with certain directions. By the order dated 19.6.2006, passed in Cr.WJC No. 380 of 2006 (Mod. Farooquzzaman & Others vs. State of Bihar), a learned single Judge stayed further arrests during the course of investigation. It is of immense importance to point out that the learned single Judge also observed that “…. I do not find any reason to hold that investigation is being done with any malice…”. By the order dated 13.10.2006, passed in Cr.WJC No. 592 of 2006 (Md. Farooquzzama & Others vs. The State of Bihar), and the analogous Cr.WJC No.608 of 2006 (Sheoyogi Singh vs. The State of Bihar), the learned single Judge finalised the questionnaire for the use 10 of the investigating agency to elicit informations from suspected persons during the course of investigation. The investigation made little progress after the orders were passed in the three criminal writ petitions and the investigation agency felt helpless. It ultimately submitted charge-sheets against 109 persons, out of whom 97 are successful candidates who have found their way into the merit list comprising of 184 persons, and is now pending trial before the learned Special Court (Vigilance), Patna. The matter now comes up for final disposal of the writ petitions. In view of the common issues involved in the writ petitions, the same are being disposed of by a common judgment. CWJC No. 7725 of 2005 9. This writ petition has been preferred by four petitioners who had appeared in the examination but were not included in the merit list. The merit list (Annexure 1, at page 28 of CWJC No.7505 of 2005), prepared by BPSC and forwarded to the State Government, recommended appointment by promotion of 184 persons. By order dated 2.7.2008, a few successful candidates have been impleaded as respondent nos. 8 to 16 herein. Respondent nos. 1 and 2 are the State of Bihar and its functionaries, respondent nos. 3 to 5 and 7 are BPSC and its functionaries, and respondent no. 6 is the Vigilance Investigation Bureau, Govt. of Bihar, through Additional Director General of Police (Vigilance). Respondent nos. 8 to 16 are successful candidates and three of them, namely,respondent no.10 (Prem Shankar Yadav), respondent no.12 (Mohd. Sagiuddin Ahmad), and respondent no. 13 (Kapildeo 11 Prasad Yadav) are charge-sheeted employees. Though CWJC No.7725 of 2005 was initially preferred with the prayer to cancel the results and direct the respondent authorities to hold fresh examination in accordance with law, learned counsel for the petitioners during the course of oral submissions, has modified the relief prayed for and submitted that the existing selection process may not be scrapped altogether and the results may be revised after excluding the charge- sheeted employees because tainted answer books and the candidates have been identified. He submits that altogether 184 vacancies have to be filled up and 97 successful candidates have been charge-sheeted. It is submitted that the remaining candidates have been found to be unblemished and, therefore, the present results may be set aside with the direction to prepare a fresh list on the basis of the examination already conducted. He has, inter alia, submitted that the vacancies have remained unfilled since 1992, and some or many of the candidates would be retiring soon. He has relied on a number of reported judgments. 10. Learned counsel for respondent nos. 1 and 2 has submitted that the petitioners cannot be permitted to alter the reliefs prayed for in the writ petition without amendment of pleadings. He has further submitted that the examination as well as the results may be set aside. However, fresh selection process may be directed to be published as per the present advertisement (Annexure 1). He has relied on diverse circumstances, set out in detail in the supplementary counter affidavit on behalf of respondent no. 6, that the selection process from the 12 very beginning is not in accordance with law and is vitiated. 11. Learned counsel for BPSC has submitted that they are not in a position to comment on the fairness or otherwise of the selection process and shall abide the result of the writ petitions. 12. Respondent no.6 has placed on record its counter affidavit indicating the latest position as well as the details which have emerged during the course of investigation culminating in the charge- sheets. It is submitted that the entire examination was vitiated ever since the stage of screening of the applications and, therefore, fresh examination is imperative. 13. Learned counsel for respondent nos. 8 to 16 has submitted that the tainted candidates have been identified and charge-sheeted. The rest are unblemished and, therefore, the present merit list may be set aside and a revised list may be prepared. He has submitted that respondent nos.10, 12 and 13 have been charge-sheeted and, therefore, their cases along with other charge-sheeted employees may be excluded from fresh consideration. He has relied on the order dated 11.7.2005, passed in CWJC No. 7041 of 2005, whereby it was directed that “...Meanwhile appointments made will be subject to the result of the case.” CWJC No. 7505 of 2005 14. This writ petition has been preferred by 17 unsuccessful candidates. Respondent nos.1, 2, and 3 are State of Bihar and its functionaries, respondent nos.4, 5, and 7 are BPSC and its functionaries, and 13 respondent no.6 is the Vigilance Investigation Bureau. Learned counsel for the petitioners has submitted that the present merit list may be quashed and a revised list may be prepared as per rule 5 after excluding the charge-sheeted candidates. He further submits that the results had to be published batch-wise, i.e. 25% of the total number of seats of a particular batch of direct recruits. In his submission, BPSC has committed the gross error of publishing a combined merit list which has no nexus with a particular batch. He relies on the following reported judgments: (i) AIR 1967 SC 1910 (Sant Ram vs.State of Rajasthan) (ii)(1999) 3 PLJR 255 (Ashok Kumar vs. The Union of Inida) (iii)(2003) 7 SCC 285 (Para 6) (Union of India vs. Rajesh P.U.,Puthuvalnikathu & Another (iv)(2008) 3 PLJR 271 (Dhananjay Malik vs.State of Uttaranchal) v) 2008(1) PLJR 623 (Paras. 3 & 4) (State of Bihar vs.Pramod Kumar) He lastly submits that rule-12 stipulates that the vacancies between 1982 to 1991 shall be filled up by the first limited competitive examination under the Rules. The same was issued in terms of Article 309 of the Constitution. He submits that the same has been amended by administrative instructions bearing Notification dated 27.6.2000, published in the Bihar Gazette Extra-ordinary of 8.9.2000, and is ultra vires. He relies on the judgment of a Division Bench of this Court in the case of Patna High Court Ministerial Officers Association vs.State of Bihar, reported in 1990 PLJR 446. 15. Learned counsel for the official respondents have taken just the same stand as in CWJC No.7725 of 2005. 14 CWJC No. 7263 of 2005 16. The sole petitioner is an unsuccessful candidate and has preferred this writ petition with the prayer to set aside the results of the limited examination and re-publish the results after excluding the charge-sheeted candidates. BPSC should not have published a combined merit list and should have instead published it having nexus with a particular batch of direct recruitment by BPSC. He also submits that the candidates who have been allocated to the State of Jharkhand should be excluded from consideration. He further submits in the alternative that a fresh selection process may commence and the non-charge sheeted employees may be allowed to appear without the age bar operating against them. CWJC No. 8552 of 2005 17. The sole petitioner is an unsuccessful candidate and seeks cancellation of the entire selection process from the stage of advertisement, and prays for fresh advertisement in accordance with law after taking into account the provisions of reservation for handicapped persons in terms of the Persons with Disabilities (Equal opportunities, Protection of rights, and Full participation) Act 1995 (hereinafter referred to as the Disabilities Act). The petitioner claims to be a handicapped person, participated in the selection process, was unsuccessful but is not a charge-sheeted employee. He next submits that the first advertisement published on 21.5.2003, leading to the present selection process, as well as the second advertisement published in the local dailies on 25.5.2005 which has not made any 15 headway, may be set aside for the same reasons, and prays for republication of fresh advertisement in accordance with law. 18. The State of Bihar has not filed counter affidavit in this case and has not, inter alia, answered the question whether or not the second advertisement be cancelled. 19. BPSC has filed a counter affidavit wherein it is stated that the advertisements are published in accordance with the requisition made by the State Government. In view of the position that the State Government did not make any stipulation in its two requisitions for reservation for handicapped persons, such a provision was not incorporated in the two advertisements. Learned counsel for the State submitted that having participated in the selection process, he cannot challenge it on the ground of reservation. He relies on the following reported judgments:- (i) 1986 (Supp) SCC 285 (Om Prakash Shukla vs. Akhilesh Kumar Shukla) (ii) (1995) 3 SCC 486 ( Madanlal vs. State of Jammu & Kashmir) 20. The remaining respondents have taken the same stand as in the first writ petition. CWJC No.7041 of 2005 21. Six persons have preferred this writ petition who had participated in the selection process and could not find their way to the merit list. According to them, they have not been charge-sheeted. Learned counsel for the petitioners submits that the entire selection process from the stage of written 16 examination be set aside. He has pointed out a number of defects thereto including the requirement to write with pencil which was purposive so that the writings should be altered. He has submitted that the criminal intent had commenced soon after the advertisement was published and the very format for the written papers prescribed by the Rules was changed. 22. The respondents have taken the same stand as in the first writ petition. CWJC No. 8032 of 2005 23. Four persons have preferred this writ petition who had participated in the selection process, could not find their way to the merit list and prayed that the same may be cancelled and a fresh revised list may be prepared after allotting 21 posts to the reserved category of Scheduled Tribe as stipulated in the advertisement. The four petitioners are members of Scheduled Tribe and complain that the same was reduced from 21 to 5 posts. 24. Learned counsel for the State of Bihar submits that the original advertisement did stipulate that 21 posts should be reserved for members of the Scheduled Tribes, whereas the merit list has allotted only 5 seats to the members of Scheduled Tribe as per the communication of the State Government without issuing the requisite corrigendum to the advertisement. In his submission, if the contention of the petitioners is upheld, then the advertisement will have to be set aside to give way to a fresh advertisement in accordance with law. 17 CWJC No.