IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9492 of 2011 ====================================================== Indrajit Bhaskar S/o Late Bhavani Ram, Vill+Post-Dhandiha P.S.-Koilwar, Distt.-Bhojpur. .... .... Petitioner Versus 1. The State of Bihar, through the Chief Secretary, Government of Bihar, Old Secretariat, Patna, Bihar. 2. Principal Secretary, Department of General Administration, Government of Bihar, Patna earlier known as Department of Personnel and Administrative Reforms, Government of Bihar, Patna 3. The Bihar Public Service Commission, through its Chairman, Bailey Road, Patna. 4. The Secretary, Bihar Public Service Commission, Bailey Road, Patna 5. The High Court of Judicature at Patna in its administrative side through the Registrar General, Patna High Court, Patna .... .... Respondents ====================================================== with Civil Writ Jurisdiction Case No.11065 of 2010 ====================================================== 1. Vikas Kumar Singh, S/o Shree Uday Narayan Singh, R/o Vill. +P.O.- Chougain (South Patti), P.S.- Murar, Distt-Buxar (Bihar), Pin-802115 2. Manish Kumar Upadhyay, S/o Shree Sant Prasad Upadhyay R/o- A/25, Road No. 18, P.O.-Keshri Nagar, P.S.-Rajiv Nagar, Patna, Bihar, Pin- 800024 3. Narendra Kumar Pathak, S/o Shree Raj Mani Pathak, R/o Vill. Patehra, P.O.-Bhajanpur, P.S.Jigana, Distt-Mirzapur (U.P.). 4. Deep Chand Pandey, S/o Shree Suresh Kumar Pandey, R/o Vill.- Gulelha, P.O.Sarya (Padrauna), P.S.-Kotwali Padrauna, Distt-Kushi Nagar (U.P.) 5. Balram Das, S/O Shree Premchand R/o. W.N.-9 Mundera Bazae, Chauri Ghaura, P.S. Gorakhpur, Distt-Gorakhpur (U.P.) 6. Gaurav Dwivedi, S/o Shree Pramod Kumar Dwivedi, R/o House No.- Patna High Court CWJC No.9492 of 2011 (9) dt. 20-09-2011 2 / 11 2 K/1112, Ashiyana, P.S.-Ashiyana, Distt-Lucknow(U.P.) 7. Ravi Kant Gupta, S/o Shree Ram Lal Gupta, R/o Vill +P.O.-Rampura, P.S.- Rampura, Distt-Jalaun (U.P.), Pin-285127 .... .... Petitioners Versus 1. The State of Bihar, through the Chief Secretary, Government of Bihar, Old Secretariat, Patna, Bihar. 2. Principal Secretary, Department of General Administration, Government of Bihar, Patna earlier known as Department of Personnel and Administrative Reforms, Government of Bihar, Patna 3. The Bihar Public Service Commission, through its Chairman, Bailey Road, Patna. 4. The Secretary, Bihar Public Service Commission, Bailey Road, Patna 5. The High Court of Judicature at Patna in its administrative side through the Registrar General, Patna High Court, Patna .... .... Respondents ====================================================== With Civil Writ Jurisdiction Case No.12030 of 2010 ====================================================== 1. Randhir Kumar 'Dhiraj', S/o Sri Durga Prasad, R/o Vill. & Post- Andi, P.S.- Asthawan, Distt.- Nalanda. 2. Manish Kumar Shahi, S/o Sri Vaidyanath Prasad Shahi, R/o Inspector's Lodge, Gannipur, Distt.- Muzaffarpur-842002. .... .... Petitioners Versus 1. 1. The State of Bihar, through the Chief Secretary, Government of Bihar, Old Secretariat, Patna, Bihar. 2. Principal Secretary, Department of General Administration, Government of Bihar, Patna earlier known as Department of Personnel and Administrative Reforms, Government of Bihar, Patna 3. The Bihar Public Service Commission, through its Chairman, Bailey Road, Patna. 4. The Secretary, Bihar Public Service Commission, Bailey Road, Patna 5. The High Court of Judicature at Patna in its administrative side through the Registrar General, Patna High Court, Patna Patna High Court CWJC No.9492 of 2011 (9) dt. 20-09-2011 3 / 11 3 .... .... Respondents ====================================================== With Civil Writ Jurisdiction Case No.12519 of 2011 ====================================================== Anish Kumar, S/o-Sri Dadan Singh, R/o Sikratha Sadan,Tilak Nagar, Katira Ara ,Dist-Bhojpur .... .... Petitioner Versus 1. 1. The State of Bihar, through the Chief Secretary, Government of Bihar, Old Secretariat, Patna, Bihar. 2. Principal Secretary, Department of General Administration, Government of Bihar, Patna earlier known as Department of Personnel and Administrative Reforms, Government of Bihar, Patna 3. The Bihar Public Service Commission, through its Chairman, Bailey Road, Patna. 4. The Secretary, Bihar Public Service Commission, Bailey Road, Patna 5. The High Court of Judicature at Patna in its administrative side through the Registrar General, Patna High Court, Patna .... .... Respondents ====================================================== Appearance : (In CWJC No. 9492 of 2011) For the Petitioner : Mr. Amit Pandey, Advocate For the Respondent State : Mr. S.D.Sanjay, AAG-12 For the Respondent BPSC : Mr. Lalit Kishore, Senior Advocate with Mr. Vikash Kumar, Advocate For the Respondent High Court: Mr. Chittaranjan Sinha, Senior Advocate Mr. Binodanand Mishra, Advocate (In CWJC No.11065 of 2010) For the Petitioner : Mr. Mrigank Mauli, Advocate with Mr. Kumar Brijnandan, Advocate For the Respondent State : Mr. S.D.Sanjay, AAG-12 For the Respondent BPSC : Mr. Lalit Kishore, Senior Advocate with Mr. Sanjay Pandey, Advocate For the Respondent High Court: Mr. Chittaranjan Sinha, Senior Advocate Patna High Court CWJC No.9492 of 2011 (9) dt. 20-09-2011 4 / 11 4 Mr. Binodanand Mishra, Advocate (In CWJC No.12030 of 2010) For the Petitioner : Mr. Yugal Kishore, Senior Advocate with Mr. Ujjwal Kumar, Advocate Mr. Nagesh Pratap Singh, Advocate For the Respondent State : Mr. S.D.Sanjay, AAG-12 For the Respondent BPSC : Mr. Lalit Kishore, Senior Advocate with Mr. Sanjay Pandey, Advocate For the Respondent High Court: Mr. Chittaranjan Sinha, Senior Advocate Mr. Binodanand Mishra, Advocate (In CWJC No.12519 of 2011) For the Petitioner : Mr. Nirmal Kumar Tripathi, Advocate For the Respondent State : Mr. S.D.Sanjay, AAG-12 For the Respondent BPSC : Mr. Lalit Kishore, Senior Advocate with Mr. Vikash Kumar, Advocate For the Respondent High Court: Mr. Chittaranjan Sinha, Senior Advocate Mr. Binodanand Mishra, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA C.A.V. ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 9. 20-09-2011 Encouraged by the administrative decision of the Patna High Court to call for 50 names from the panel of wait list pursuant to the 26th Bihar Judicial Service Competitive Examination, 2005, the writ petitioners, the unsuccessful applicants in the above referred 26th Bihar Judicial Service Competitive Examination, 2005, have filed these petitions under Article 226 of the Constitution for a direction to the State Government and to the Bihar Public Service Commission to send a panel of 50 candidates from the merit list of 26th Bihar Judicial Service Competitive Examination, 2005. Patna High Court CWJC No.9492 of 2011 (9) dt. 20-09-2011 5 / 11 5 Pursuant to the requisition made by the Government of Bihar, the Bihar Public Service Commission (hereinafter referred to as ‘the Commission’) published Advertisement No. 43/2005 on 18th November 2005, notifying 318 vacancies in the cadre of Civil Judge (Junior Division). Pursuant to the said advertisement, the competitive examination was held in 2007 and a select list of 318 successful applicants was published on 14th August 2007. The said 318 successful applicants have been appointed as Civil Judge (Junior Division). It appears that pursuant to the observations made and directions issued by the Hon’ble Supreme Court in the matter of Malik Mazhar Sultan(3) and another v. U.P. Public Service Commission and others, [(2008) 17 SCC 703], the Patna High Court decided to call for names of 50 candidates from the wait list pursuant to the aforesaid 26th Bihar Judicial Service Competitive Examination, 2005. As the said request was not acceded to by the State Government, the Registry was directed to take follow-up action under High Court Resolution dated 7th September 2010. Pursuant to the said Resolution, the Registrar General under his communication dated 17th September 2010 wrote to the State Government to send the names of 50 candidates from the wait list of 26th Bihar Judicial Service Competitive Examination, 2005. It is the said communication which is being used as a lever by these writ petitioners to assert their right to appointment. Pursuant to the aforesaid Advertisement No.43/2005, the writ petitioners also had applied for selection and appointment as Civil Judge (Junior Division). Evidently, the writ petitioners did not succeed. It is now the case of the writ petitioners that in view of the observations made and the directions issued by the Hon’ble Supreme Court in the matter of Malik Mazhar Sultan(3) (supra) Patna High Court CWJC No.9492 of 2011 (9) dt. 20-09-2011 6 / 11 6 the Commission was obliged to prepare a select list containing the names twice the number of vacancies advertised and that such list was required to be operated to fill-in the vacancies available till the date of preparation of the select list. In other words, the respondents were not only obliged to fill-in 318 vacancies advertised in November 2005 but they were also obliged to fill-in all vacancies that occurred thereafter till the date of the select list i.e. up to 14th August 2007. The petitioners have now, after more than three years, filed these petitions under Article 226 of the Constitution to assert their right to be appointed on the vacancies occurred till 14th August 2007. The petitions are contested by the learned Additional Advocate General-1 Mr. Lalit Kishore appearing for the Bihar Public Service Commission; by learned advocate Mr. S.D. Sanjay appearing for the State Government, and; by learned advocate Mr. Chittaranjan Sinha appearing for the High Court. Before we proceed, we must make reference to the Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955 (hereinafter referred to as ‘the Rules’). The Rules have been framed, in exercise of powers conferred by Article 234 of the Constitution of India, by the Governor of Bihar in consultation with the High Court of Judicature at Patna and the Bihar Public Service Commission. The Rules provide for appointment to the posts of Munsif by direct recruitment and for appointment to the posts of Subordinate Judge by promotion of Munsifs. The direct recruitment of Munsifs is required to be made pursuant to the competitive examination to be held by the Bihar Public Service Commission. The Commission is empowered to make a preliminary election of candidates to be admitted to the written examination. The Commission is also Patna High Court CWJC No.9492 of 2011 (9) dt. 20-09-2011 7 / 11 7 empowered to fix the qualifying marks at the written examination. The select list is required to be prepared in order of merit on the basis of the aggregate marks obtained at the written examination and the viva voce. Success at the examination confers no right to appointment. Thus, it is apparent that the Rules do not provide for preparation of a separate wait list. The Rules provide for one composite merit list which shall be operated for appointment of as many candidates as may be fixed by the Governor. In the aforesaid matter of Malik Mazhar Sultan(3) a Bench of two Judges of the Hon’ble Supreme Court, concerned about the delay and the piling-up of the cases, issued certain directions to expedite recruitment process for filling up of vacancies. Before doing so the Hon’ble Court said, “It is necessary to note that selections are required to be conducted by the authorities concerned as per the existing Judicial Service Rules in the respective States/Union Territories. We may, however, note that, progressively, the authorities concerned would consider, discuss and eventually may arrive at a consensus that the selection process be conducted by the High Court itself or by the Public Service Commission under the control and supervision of the High Court”. Having said thus, the Bench proceeded to issue direction that the recruitment process be monitored by a Selection Committee constituted by the Chief Justices of the High Court. In respect of the appointment to the posts of Civil Judge (Junior Division), the Bench issued a time frame right from notifying the vacancies by the High Court till the last date of joining by the selected candidates. In respect of the select list the Bench observed, inter alia, “Select list be published in order of merit and should be double the number of Patna High Court CWJC No.9492 of 2011 (9) dt. 20-09-2011 8 / 11 8 vacancies notified”. In respect of the validity of the select list the Bench observed, “The select list prepared for all categories of officials shall be valid till the next select list is published”. It is the above referred observations which are pressed into service by the writ petitioners. In the submission of the learned advocates appearing for the writ petitioners the above referred directions enjoin the Public Service Commission to prepare a select list double the number of vacancies notified (318 in the present case) and that the said select list shall be operated till the next select list is published. Admittedly, the next select list is not yet published. The petitioners, therefore, have a right to be considered for appointment in order of merit by operating the said select list. The above referred directions have been considered by a three-Judge Bench of the Hon’ble Supreme Court in the matter of Rakhi Ray and others v. High Court of Delhi and others, [(2010) 2 SCC 637]. The learned Judges reiterated the well settled law, “It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as “the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution”, of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to “improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after Patna High Court CWJC No.9492 of 2011 (9) dt. 20-09-2011 9 / 11 9 adopting policy decision based on some rationale”, otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law.” The Hon’ble Court reiterated with approval, “currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies” and said course is impermissible in law”. Referring to the judgment in the matter of Malik Mazhar Sultan(3) (supra), the Hon’ble Court observed, “This Court made it clear that appointments in Judicial Service have to be made as per the existing statutory rules.” Once again, the same view is reiterated by the Hon’ble Supreme Court in the matter of Public Service Commission, Uttaranchal v. Mamta Bisht & Ors., [2010 (3) PLJR (SC) 100]. On a conjoint reading of all these judgments, we have no hesitation in holding that in absence of an emergent situation or unavoidable circumstance, the State Government could not have made more than 318 appointments pursuant to the 26th Bihar Judicial Service Competitive Examination, 2005. Admittedly, the writ petitioners did not find place in the select list of 318 successful applicants. The writ petitioners have, therefore, no right to appointment pursuant to the 26th Bihar Judicial Service Competitive Examination, 2005. We may note here that since the appointments made pursuant to the 26th Bihar Judicial Service Competitive Examination, 2005, recruitment process for 27th batch has commenced. The existing vacancies were notified and the preliminary examination was conducted and the result has been Patna High Court CWJC No.9492 of 2011 (9) dt. 20-09-2011 10 / 11 10 published. The requisition for 28th batch has also been made. In view of the above development also the petitioners have no right to appointment on the vacancies not notified for the 26th batch. In view of the above mentioned settled law, appointments could not have been made on more than the vacancies notified. The petitioners, by no stretch of imagination, ever had a right to appointment pursuant to the 26th Bihar Judicial Service Competitive Examination, 2005. We are also of the opinion, no matter what, the administrative decision of the High Court to call for 50 names from the wait list and ensuing correspondence is an internal matter between the High Court and the State Government and the Public Service Commission. Such administrative decision or correspondence did not give a right of action to the writ petitioners. In our opinion, by appearing at the 26th Bihar Judicial Service Competitive Examination, 2005 no right to appointment accrued to the writ petitioners. Nor the writ petitioners have cause of action to file the present Petitions. The Petitions are thoroughly misconceived. To us, it appears that the writ petitioners have, somehow, been able to lay their hands on the administrative decision of the High Court and the internal correspondence with the State Government which have been used as a lever to file these writ Petitions. We deprecate the attempt of the writ petitioners to get to the internal matters of the High Court and the State Government and to lay a totally untenable claim on the strength of such materials. It is not the case of any of the writ petitioners that such materials were obtained by the writ petitioners by resorting to lawful means. For the aforesaid reasons the Petitions are dismissed Patna High Court CWJC No.9492 of 2011 (9) dt. 20-09-2011 11 / 11 11 with cost. Each petitioner will pay a cost of Rs.1,000.00 (one thousand) to each of the respondents in respective writ Petition. The amount of cost will be paid within two months from today. Pursuant to our order dated 21st June 2011, learned Additional Advocate General Mr. Lalit Kishore had on 9th August 2011 produced the records of 26th Bihar Judicial Service Competitive Examination, 2005 in a sealed envelope. The envelope was ordered to be maintained in the safe custody of the Registrar General. The said sealed envelope will be returned to learned Additional Advocate General Mr. Lalit Kishore. Pawan/- A.F.R. (R.M. Doshit, CJ) Birendra Prasad Verma, J I agree. (Birendra Prasad Verma, J)