IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.414 of 2010 1. MANOJ KUMAR PANDEY S/O LATE ANANT SARAN PANDEY R/O GUDARI BAZAR, P.O. RAJENDRA COLLEGE (CHAPRA), DISTT.- SARAN (CHAPRA) 2. JAVED AHMED S/O LATE MD. MASHHUDDIN R/O NEAR GOVT. HOSPITAL, KRISHI BAZAR ROAD, PURANI BAZAR AT NARKATIA GANJ, P.S. NARKATIAGANJ, WEST CHAMPARAN Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY THE GOVT. OF BIHAR 2. THE COMMISSIONER-CUM-SECRETARY ROAD CONSTRUCTION DEPARTMENT, GOVT. OF BIHAR, PATNA 3. THE SECRETARY RURAL DEVELOPMENT DEPARTMENT, BIHAR, PATNA ----------- 6 25.04.2011 The present appeal has been filed against the order dated 25.01.2010 passed in C.W.J.C. No. 10289 of 2008 filed by appellant herein. The main grievance raised before us is that the appellants have applied for the post of Assistant Engineer under the Advertisement No. 128 of 1996 published by the Bihar Public Service Commission and the respondents were bound to consider their cases against the post arising out from non-joining of persons higher in the panel. It is not in dispute that the panel was published as far back as in May, 2002, for the advertisement which had come in the year 1996. Counsel for the appellants claims for similar relief as was given by order dated 15.05.2007 passed by this Court in C.W.J.C. No. 2 14385 of 2006 giving direction for filling up non-joining posts in pursuance to Advertisement No.25 of 1999. It is also further argued that even though such vacancies were remained unfilled in pursuance of Advertisement No. 128 of 1996, the State Government has stated that no vacancies remained unfilled in pursuance of Advertisement No. 128 of 1996. However, learned Single Judge did not agree with the contention raised by the appellants herein and chosen to dismiss the writ petition upholding that no ground is made out for interference by this Court and a liberty was granted to petitioners to apply afresh for any advertisement. It has further been directed that the respondents shall duly consider them after relaxation of age in accordance with law, keeping in mind that they were otherwise qualified. Aggrieved by the said direction the present L.P.A. has been filed. It has been contended before us that the vacancies are still remain unfilled and hence, the appellants have chosen to point out about the unfilled vacancies. The fact of this case would reveal that a subsequent advertisement has been made by Bihar Public 3 Service Commission vide Advertisement No. 25/99. The process of selection and result thereof creates series of litigation as Advertisement No. 1 of 2006 was also published for filling up further vacancies. It has been observed by the learned Single Judge that even presuming that there are number of vacancies remained unfilled but the appellants have no fundamental right to seek appointment in the unfilled vacancies. More so, the guidelines can be sought from the law laid down by the Hon’ble Apex Court in the case of State of Orissa & Anr. V. Rajkishore Nanda & Ors. Reported in [JT 2010 (6) SC33] wherein the Hon’ble Apex Court has held that even if the vacancies remained unfilled the Court cannot direct for initiation of selection process. It is employer/ State administrations exclusive prerogative and if it makes a bonafide decision to leave certain vacancies unfilled even after preparing the select list courts/tribunals cannot interfere. In view of the law laid down in the aforesaid judgment, it has to be held that no relief can be granted to the candidates who approached the Court after the selection process is over for the unfilled post. 4 Following the law laid down by the Hon’ble Apex Court in the case of Raj Kishore Nanda (Supra) the present L.P.A. stands dismissed. Ashwini/AFR (T.Meena Kumari,J.) (Akhilesh Chandra, J.)