Vijay Kumar vs The State Of Jharkhand
2022 Latest Caselaw 2039 Jhar

                 IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                 W.P.(S) No. 1766 of 2010

            Vijay Kumar, alias Vijay Kumar Singh, Son of Sri Lal Mohan Singh,
            Resident of Village Sarsa, P.O. Ghormara, P.S. Mohanpur, District
            Deoghar                                    ...    ...      Petitioner
                                    Versus
            1. The State of Jharkhand, Through Principal Secretary, Personnel,
               Administrative Reforms and Rajbhasa Department, Jharkhand
               Mantralaya, Project Building, P.O. and P.S. Dhurwa, Ranchi
               834 004.
            2. Deputy Commissioner, Deoghar, P.O., P.S. and District Deoghar.
                                                 ...       ...       Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Sumeet Gadodia, Advocate Mr. Rajiv Ranjan, Advocate For the Respondents : Mr. Achyut Keshav, Advocate

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25/06.06.2022 Heard Mr. Sumeet Gadodia, learned counsel appearing on behalf of the petitioner along with Mr. Rajiv Ranjan, Advocate.

2. Heard Mr. Achyut Keshav, learned counsel appearing on behalf of the respondents.

3. This writ petition has been filed for the following reliefs:

"(i) For issuance of an appropriate writ/order/direction, including Writ of Mandamus, directing the Respondents, particularly Respondent No.2, to immediately appoint the petitioner on the vacant sanctioned Class IV Post in the district of Deoghar especially in view of the fact that the petitioner has secured more marks than that of several candidates who have been given employment by the Respondents-authorities.

(ii) For issuance of further appropriate writ/order/ direction including Writ of Mandamus, directing the Respondents, particularly Respondent No.2, to immediately sanction the roster clearance of remaining 104 admitted sanctioned vacant Class IV posts in the district of Deoghar and appoint the petitioner on any one of the said vacant sanctioned posts forthwith.

(iii) For issuance of further appropriate writ/order/ direction, including Writ of Mandamus, directing the Respondents not to arbitrarily discriminate the petitioner in the matter of his appointment petitioner on Class IV post especially in view of the fact that several similarly situated persons including; Surendra Prasad Das, Dashrath Mahto, Ram Pravesh Kumar, Bhim Kumar Sharma, Kedar Das etc., who have obtained lesser marks than that of the petitioner, have been appointed on the vacant sanctioned Class IV post in the district of Deoghar.

(iv) For issuance of any other appropriate writ/order/ direction as Your Lordships may deem fit and proper in the facts and circumstances of the case."

Arguments of the petitioner

4. The learned counsel for the petitioner has confined his relief to prayer no. (ii).

5. The learned counsel for the petitioner submits that vide advertisement dated 21.11.2001, the Deputy Commissioner, Deoghar invited applications for appointment on the vacant class-IV posts in the pay-scale of 2550- 3200. The said advertisement was published for inviting applications from eligible candidates for preparation of panel for appointment on the vacant class-IV post in the district of Deoghar. He submits that it is not in dispute that total vacancy in the class-IV posts in the district of Deoghar was 129. The learned counsel further submits that in spite of advertisement, the result was not declared for about three years and the District Establishment Committee, in its meeting held on 31.08.2004, decided to conduct the written examination of the level of Class-VIII pursuant to the advertisement dated 21.11.2001. He submits that the said decision dated 31.08.2004 was challenged by the writ petitioner along with similarly situated persons in W.P.(S) No. 5387 of 2004. Similarly situated persons had also filed similar writ petitions which were ultimately dismissed vide judgement dated 16.02.2005 passed in W.P.(S) No. 5387 of 2004 with other analogous cases. The learned counsel submits that the petitioner had filed appeal being L.P.A. No. 141 of 2005 challenging the aforesaid judgment dated 16.02.2005.

6. The learned counsel further submits that similar issue arose from the district of Hazaribagh and the order passed in the writ petition in those cases was subject matter of appeal in L.P.A. No. 455 of 2005. The order of the LPA has been placed on record which is at Annexure-3. The learned counsel submits that it was indicated in the said order that the appellants had participated in the written test which was scheduled to be held on 24.07.2005, but the result was withheld on account of the order passed by the Court. Consequently, the L.P.A. court considered the submission made on behalf of the respective parties and having regard to the fact that the weightage of 50 marks

which comprised 1/3rd of the total marks was to be awarded to the appellants of the case , did not interfere with the order passed by the learned single judge and the appeal was disposed of by directing the respondents to declare the result of the written test and to select the successful candidates on the basis of written test and weightage to be given in terms of the stipulations made in the counter-affidavit filed by the State.

7. The learned counsel submits that the appeal filed by the petitioner being LPA No. 141 of 2005 with other analogous cases was disposed of vide order dated 19.10.2005 by holding that the case was fully covered by the aforesaid judgement of the Division Bench passed in L.P.A. No. 455 of 2005.

8. The learned counsel thereafter referred to the order dated 25.04.2007 passed in batch of contempt cases being Cont. Case (Civil) No. 472 of 2006 and other analogous cases, wherein a direction was issued to the Deputy Commissioner, Deoghar to conduct the examination and permit the petitioners who were working as daily wagers and after verification of the marks of suitable candidates, they could be adjusted with the panel which contained a number of 310 persons and the preference was to be given to the persons who were found suitable for the job in the light of the order passed by the Division Bench. The learned counsel has submitted that the petitioner was one of the petitioners in the batch of contempt petitions.

9. The learned counsel submits that thereafter, a decision was taken on 08.02.2008 which clearly indicated that out of 129 posts there was roster clearance of only 25 posts and 104 posts were still under process of roster being cleared. He submits that in the said decision it was clearly mentioned that in view of the order passed by the High Court, for the time being, 129 posts were to be considered in anticipation of their roster clearance. The learned counsel submits that pursuant to such decision, the petitioner was issued admit card which is contained at Annexure- 7 and the petitioner participated in the selection process, but ultimately a list of only 50 persons was published in the panel and appointment of only 25 persons were made out of 50 such empaneled persons as roster clearance was available only for 25 posts.

10. The learned counsel for the petitioner further submits that there is no explanation from the side of the respondents as to what ultimately happened to the roster clearance of 104 posts although the examination was conducted in anticipation of roster clearance. The learned counsel submits that the marks obtained by the petitioner in the examination has been mentioned at Annexure- 8 to the writ petition and the petitioner had obtained 147 marks. The learned counsel has further referred to another decision of the committee as contained in Annexure- 11 dated 04.12.2008 which was a decision for publishing the name of 50 persons in the panel to fill up the 25 posts for which roster clearance was available and the panel was also said to be valid only for a period of one year. The learned counsel has also referred to Annexure- 15 to the writ petition dated 29.01.2008 which is a communication issued by the Deputy Secretary to the Government, State of Jharkhand to the Deputy Commissioner, Deoghar stating that the roster clearance has to be done at the stage of the Deputy Commissioner. The learned counsel submits that in spite of such communication dated 29.01.2008, no steps were taken by the Deputy Commissioner for clearance of the roster and ultimately the petitioner having participated in the examination was not selected as only 25 persons were selected. The learned counsel submits that the order of this Court passed in Cont. Case (Civil) No. 472 of 2006 dated 25.04.2007 has not been complied with in letter and spirit and accordingly, the petitioner is entitled for the relief as prayed for in paragraph 1(ii) of the writ petition.

11. The learned counsel has relied upon the judgements passed by Hon'ble Supreme Court reported in (2013) 12 SCC 171 (Manoj Manu and Another Vs. Union of India and Others) (para 10 to 12) and also (2019) 12 SCC 798 (Dinesh Kumar Kashyap and Others Vs. South East Central Railway and Others) (para 5 and 6) and has submitted that the law is well -settled that mere inclusion of a name of a person in the panel does not create right in his favour, but still the respondents cannot act arbitrarily in the matter of filling up of vacancy and there has to be a valid reason for not filling the vacancy. The learned counsel has reiterated that when the petitioner was made to participate in anticipation of roster clearance and there being no

explanation from the side of the respondents for not taking roster clearance, therefore, appropriate direction be issued in terms of prayer made in para 1(ii) of the present petition.

12. The learned counsel for the petitioner has further submitted that since the panel of only 50 persons was published and the panel for filling up the vacancy of entire 129 posts was not published, therefore, the name of the petitioner could not find place in the panel. Had the panel for filling up of total 129 posts been published, the name of the petitioner would have figured in the panel and could have been considered by the respondents for appointment.

Arguments of the Respondents

13. The learned counsel appearing on behalf of the respondents, on the other hand, has submitted that a counter-affidavit has been filed in the present case indicating that the petitioner had participated in the process of selection and the name of the petitioner did not figure in the panel of 50 persons as he had obtained much less marks as compared to others. The learned counsel has also submitted that the life of the panel, as clearly mentioned at various decisions taken up for the purposes of filling up the post, was only for a period of one year and since the roster clearance was available only for 25 persons, therefore, only panel of 50 persons was prepared and out of them, the vacancy of 25 posts was filled up. The learned counsel has further submitted that the panel of 50 persons was published after the order passed by this Court in Cont. Case (Civil) No. 472 of 2006 dated 25.04.2007 and the publication of panel was pursuant to decision taken on 04.12.2008.

14. During the course of arguments, the learned counsel for the respondents is not in a position to give any response as to why the roster clearance for the remaining posts was never done although a letter dated 29.01.2008 was issued by the State Government and addressed to the Deputy Commissioner, Deoghar stating that the roster clearance has to be done at the end of the Deputy Commissioner himself.

15. However, the learned counsel for the respondents has reiterated that as on date no direction be issued to fill up the vacancies in terms of the earlier process of selection as the panel has already expired and it is not in dispute that the name of the petitioner never figured in the

panel of 50 persons so prepared for filling up of 25 posts. The learned counsel for the respondents has submitted that much time has elapsed and the present age of the petitioner is more than 40 years and therefore, he cannot be offered appointment.

16. The learned counsel has relied upon the judgement dated 21.04.2015 passed by this Court in L.P.A. No. 336 of 2013 and has referred to para 3(ii) of the said judgement to submit that the select list prepared can operate only for the vacancies published and not for the future vacancies and it comes to an end upon expiry of one year. Rejoinder arguments of the petitioner

17. In response, the learned counsel for the petitioner has submitted that though the life of a panel is ordinarily for one year, but the petitioner cannot be denied appointment if he had made the representation during the subsistence of the panel. The learned counsel has relied upon the judgements reported in (2009) 5 SCC 368 (Bharat Sanchar Nigam Limited and Others vs. Abhishek Shukla And Another); (2020) SCC OnLine Jhar. 968 (Balkishun Ram and Others vs. State of Jharkhand and Others) and (2018) SCC OnLine Jhar. 1433 (Umar Farooque Vs. Birsa Agriculture University and Others).

Findings of this court

18. On 21.11.2001(Annexure-1), Advertisement was published by the office of Deputy Commissioner, Deoghar inviting application for appointment on the vacant Class-IV post but the number of posts was not mentioned. The petitioner and other similarly situated persons who were working on daily wage duly applied but the result was not published for a number of years. On 31.08.2004 District Establishment Committee of Deoghar took a decision to conduct a written examination of the level of Class-VIII. Being aggrieved, the petitioner and other similarly situated persons challenged the decision to take written examination by filing writ petition being W.P.(S) No. 5387 of 2004 which was dismissed with other analogous cases vide order dated 16.02.2005 (Annexure-2). The submission of the learned Advocate General, as recorded in the final order of the writ petition in para 8 is as follows: -

"8. Learned Advocate General in reply submitted that in the district of Deoghar, a very large number of applications namely 11341 were received and therefore, the District Establishment Committee decided to conduct simple objective/multiple choice type written examination to ensure appointment within the time frame, while maintaining transparency. Altogether 8853 candidates were issued admit cards, out of which 6149 candidates appeared in the written examination in 117 centres, under strict vigilance. The examination was objective/multiple choice type. Large scale arrangements were done. By this, evaluation was completed on the same day as contemplated in the notice (Annexure-10). Some of the petitioners appeared in the written examination but failed. Some of them boycotted it. A merit list of 310 candidates was prepared and published against the vacancy of 129 posts and in terms of the orders passed by this Court, certain candidates were given age relaxation....."

19. The findings of the writ court while dismissing the writ petition on 16.02.2005 was as follows: -

"It is clear from the said letters dated 3.12.1980 and 25.4.1997 relied on by the petitioners (Annexure- B and B/1) that only certain guide lines were issued by the Chief Secretary, Government of Bihar and there is nothing which can restrain the district administration from conducting written examination. Thus, the impugned decision (Annexure-

9) cannot be said to be contrary to any law adopted by the State Of Jharkhand from the erstwhile State of Bihar. If the district administration adopts certain elimination process for selecting better candidates out of a very very large number of candidates - 11341 candidates in the present case, the said decision cannot be said to be arbitrary or discriminatory, nor against the provisions of Article 11 and 16 of the Constitution of India. All the candidates were given opportunity to appear in the examination. In view of the very large number of candidates, some method had to be evolved for completing the process within the time frame. Thus, it is clear that it is not a case of applying the resolution of the Jharkhand Government retrospectively and therefore, the judgements of A.A. Calton (AIR 1983 SC 1143) (supra), P. Mahendran (1990) 1 SCC 411 (supra) and N.T. Bevin Katti (AIR 1990 SC 1233 (supra) are not applicable in the present case. The District Administration, while acting pursuant to Annexure- B and B/1, evolved the method of written examination in the prevailing situation. In my opinion, the impugned decision as

contained in Annexure- 9 is legal and valid and needs no interference."

20. The petitioner and other similarly situated persons from Deoghar filed L.P.A. No. 141 of 2005 against the judgement dated 16.02.2005 passed in W.P.(S) No. 5387 of 2004 with other analogous cases.

21. Similarly situated persons in the District of Hazaribagh also challenged similar decision of the District Establishment Committee in writ petition being W.P.(S) No. 6669 of 2004 which was also dismissed, against which LPA No. 455 of 2005 was filed which was disposed of vide judgement dated 08.08.2005. The appellant of LPA No. 455 of 2005 had participated in the written examination held on 24.07.2005 pursuant to interim order dated 22.07.2005, however, the result was withheld on account of pendency of L.P.A. While disposing of the L.P.A. No. 455 of 2005 on 08.08.2005, the Hon'ble Division Bench also took care of the interim order dated 22.07.2005. The relevant portion of the aforesaid judgement is quoted as under:

"It may be indicated that pursuant to the order passed by us on 22nd July, 2005, the appellants had sat for the written test, which was scheduled to be held on 24th July, 2005 but the results were withheld on account of the order, passed by this Court.

Having considered the submissions made on behalf of the respective parties and having further regard to the fact that weightage of 50 marks, which comprises 1/3 rd of the total marks to be awarded, is being given to the appellants, there can be little reason for interference with the order passed by the learned Single Judge.

We, therefore, dispose of the appeal by directing the respondents to declare the results of the written test and to select the successful candidates on the basis of the written test and the weightage to be given in terms of the stipulations made in the counter affidavit, filed on behalf of the State. There will be no order as to costs."

22. This court finds that in L.P.A. No. 455 of 2005, which arose from the recruitment process in the district of Hazaribagh, the appellants had participated in the written exam pursuant to interim order and certain weightage was also given to them as per the counter affidavit and while disposing of the appeal this court took into consideration the stand taken in the counter affidavit and the

respondents were directed to declare the results of the written exam and thus the interim order was taken to a logical end.

23. So far as the persons including petitioner from Deoghar District are concerned, L.P.A. No. 141 of 2005 with other analogous cases, was disposed of vide order dated 19.10.2005 in terms of judgement passed in aforesaid L.P.A. No. 455 of 2005. However, there is nothing on record to suggest any interim order passed in L.P.A. No. 141 of 2005 for the district of Deoghar with regards to participation in written exam similar to that of L.P.A. No. 455 of 2005 for the district of Hazaribagh.

24. Admittedly, the petitioner had not participated in the written examination which was conducted pursuant to decision dated 31.08.2004 taken by the District Establishment Committee, Deoghar and instead had challenged the decision dated 31.08.2004 by filing the writ petition. It is not in dispute that during the pendency of the writ petition being W.P.(S) No. 5387 of 2004, the written examination was conducted by the District Establishment Committee, Deoghar and a merit list of 310 persons was prepared which has been recorded in order dated 16.02.2005 passed in W.P.(S) No. 5387 of 2004 with other analogous cases.

25. It is important to note that a number of contempt cases were filed on account of alleged non-compliance of order passed in L.P.A. No. 141 of 2005 from the district of Deoghar including Cont. Case (Civil) No. 243 of 2006 which was disposed of with other analogous cases vide order dated 25.04.2007 with the following observations: -

"Without going into the merits of the matter, it would be appropriate to direct Deputy Commissioner, Deoghar to conduct the examination and permit the petitioners who are working as daily wagers and after verification of the marks of suitable candidates they could be adjusted with the panel which contains a number of 310 persons and the preference to be given to the persons who are found suitable for the job in the light of the order passed by the Division Bench."

26. Thus, in view of the order passed in the contempt case, the petitioner, who was daily wager, along with others was to face the written examination and were to be adjusted with the already existing merit list of 310 persons.

27. In order to comply the order passed in the aforesaid contempt petition, a meeting of selection committee was convened on 08.02.2008 wherein a decision was taken to conduct the written examination of daily wage workers like the petitioner. As per the decision dated 08.02.2008, it was mentioned that there was roster clearance of only 25 posts and the competent authority was to be contacted for the purposes of roster clearance of remaining posts and in anticipation of roster clearance, the examination was to be conducted.

As per the said decision, persons twice the number of vacancies were to be included in the panel and were to be adjusted in the merit list of 310 persons prepared earlier and the panel to be ultimately prepared was to remain valid for a period of one year. It was also decided that the panel was to be ultimately published only after having the roster clearance. The decision also reflects that some relaxation was to be given to 420 daily wagers. Benefit of some marks on account of work experience was to be given to those working upto 01.12.2001 and age relaxation was given to some persons.

As per the counter-affidavit, the petitioner had no work experience upto 01.12.2001 and thus the petitioner was neither entitled to any marks on work experience nor any age relaxation was required to be given to the petitioner.

28. In view of order passed in aforesaid contempt case read with aforesaid decision dated 08.02.2008, Admit card dated 22.02.2008 was issued to the petitioner and the exam was to be conducted on 24.02.2008. The petitioner duly participated in the examination and the petitioner obtained 147 marks, but his merit position in the merit list merged with the earlier merit list of 310 candidates remained low as he was not entitled to any marks out of work experience having no work experience prior to 01.12.2001.

29. The minutes of meeting dated 08.02.2008 also reflects that the collectorate, Drinking Water and Sanitation, Forest Department, agriculture Department and Office of the Civil Surgeon-cum-Chief Medical Officer all in the district of Deoghar had 56, 18,13, 12 and 30 vacancies in Class-IV - total being 129 and roster clearance of only forest department and agriculture department i.e. 13+12 = 25 was

available. It also reflects that communication dated 07.04.2008 and 11.07.2007 were already made with collectorate and Drinking Water and Sanitation Department but the roster position/clearance was awaited.

30. A proceeding sheet dated 04.12.2008 of the committee is on record whereby a decision was taken to publish a panel of only 50 persons as there was roster clearance of only 25 posts and the panel was to remain valid only for a period of one year. The panel was prepared upon merging the earlier merit list of 310 candidates. The objection to the said panel was also called for stating that the panel would remain valid only for a period of one year. The list of candidates whose names were to be included in the panel was also mentioned in the minutes of meeting and the name of the petitioner did not find place in the panel of 50 persons. The Civil Surgeon-cum- Chief Medical Officer, Deoghar was directed to take steps for the purposes of roster clearance of 4th Grade employee so that steps may be taken for further appointment. The panel of 50 persons was published on 16.12.2008 and appointment of 25 persons was made on 17.02.2009.

31. Thus, the minutes of aforesaid two meetings indicate that steps were taken by the Deputy Commissioner, Deoghar, who was also the head of the Establishment Committee, to obtain roster clearance from the concerned department for whom the IVth class employees were to be appointed but ultimately the recruitment process remained confined to only 25 posts for which roster clearance was available and no further panel was published for remaining 104 posts for want of roster clearance. As already decided in the minutes of meetings, the panel of 50 candidates against 25 vacancies expired upon expiry of one year.

32. Thus, the argument of the learned counsel for the petitioner that in spite of letter dated 29.01.2008 (Annexure-15), which is a communication issued by the Deputy Secretary to the Government, State of Jharkhand to the Deputy Commissioner, Deoghar stating that the roster clearance has to be done at the stage of the Deputy Commissioner, no steps were taken by the Deputy Commissioner for clearance of the roster, is not correct. The minutes of aforesaid two meetings clearly demonstrates that communications were made to the

various departments within the district of Deoghar for roster clearance so that panel to fill remaining vacant posts could be declared but no such roster clearance was given by the concerned department and ultimately no further panel for 104 posts was published and the recruitment resulted in filling up of only 25 posts having roster clearance. Admittedly the petitioner was not in the panel of 50 persons.

33. The records of the case further indicate that a representation dated 17.02.2009 was filed by various persons including the petitioner before the Hon'ble Governor with a request to absorb them in IV th Grade post as they had been working for 8 to 10 years on daily wage and total number of such persons was mentioned as 29. Consequently, a letter dated 27.04.2009 was issued by the office of the Commissioner, Santhal Pargana Division, Dumka to the Deputy Commissioner, Deoghar in the matter of absorption of the persons like the petitioner who were working on daily wage.

34. From the perusal of the representation dated 17.02.2019 (Annexure- 16) and the communication dated 27.04.2009 (Annexure-

17), it appears that the representation was filed seeking absorption in IVth Grade and no grievance or objection was made regarding non- clearance of the roster of remaining 104 posts and non-publication of the corresponding panel for the remaining 104 posts. In fact, the petitioner along with others has been representing for his absorption in Class-IV post.

35. The petitioner filed representation for absorption on account of being a daily wager but did not file any representation for publishing names of more candidates against remaining vacancy of 104 posts. The petitioner also never filed any objection to the limited panel of only 50 persons against 25 vacancies only out of total vacancy of 129 posts. The petitioner having failed to be selected amongst 25 vacancies pursued his remedy seeking regularization with other 28 daily wagers and did not take any steps for publication of names of more persons from the merit list against remaining vacancies of 104 post.

36. Having failed in his attempt, the present writ petition was filed on 21.04.2010 raising a grievance for the first time that less

meritorious person was appointed and that the petitioner is a reserved category candidate. Such allegation/stand was suitably replied by the respondents in the counter-affidavit stating that the petitioner had no work experience prior to the cutoff date so no additional weightage of marks was given to the petitioner and therefore, the name of the petitioner remained much below in the merit list and also that the petitioner had applied under general category candidate. In the rejoinder to the counter-affidavit, the petitioner has produced a caste-certificate dated 28.02.2008 certifying that the petitioner belongs to scheduled caste category, but admittedly the said caste-certificate was issued after the examination which was held on 24.02.2008 as is apparent from the admit card. The petitioner could not have applied under reserved category as his caste certificate was issued subsequently.

37. Consequently, at the stage of final argument of the case, as already recorded above, the petitioner had confined his relief only to prayer in para 1(ii) seeking direction upon the respondents to immediately sanction the roster clearance of remaining 104 vacancies and further direction to appoint the petitioner on any one of such post.

38. It is not the case of the petitioner that his name was ever included in the panel or select list but his case is, had the panel of remaining 104 vacancies been published, his name could have appeared in the panel. Admittedly, the panel of 50 persons for 25 posts having roster clearance was published having life of only 1 year. The petitioner never raised any objection to publication of limited panel at the relevant point of time.

39. The petitioner has no grievance regarding non-inclusion of his name in list of 50 candidates and the records of the case show that the petitioner never raised any grievance before any authority regarding non publication of panel for 104 posts for which admittedly there was no roster clearance. Such grievance was raised by the petitioner for the first time in writ petition and by this time one year had already expired from the date of preparation of panel of 50 persons for 25 posts.

40. The case of the petitioner is not of a person who was in the panel but not selected in spite of vacancy, but the case is that the selection was restricted to only 25 posts for which panel of 50 persons

was prepared and no panel was prepared for remaining 104 posts for want of roster clearance. This Court has already mentioned above that the initial advertisement never disclosed the number of posts to be filled up, but admittedly there were 129 vacant posts out of which roster clearance was available only of 25 post and a conscious decision was taken to prepare panel for 25 posts and steps were also taken to obtain roster clearance for remaining posts by issuing letters to various departments so that they could be filed up but no further steps could be taken to fill up the remaining vacant posts in absence of roster clearance. Roster clearance is an important step in the matter of filling up of vacancy and its absence is a sound reason to fill up only those vacancy for which roster clearance was available.

41. Accordingly, this Court is of the considered view that no direction can be issued for publishing panel for remaining 104 vacancies from the same merit list for which there is no roster clearance. So far as grant of roster clearance and filling up the remaining vacancies is concerned, it is for the respondents to decide. Suffice is to say that there were ample cogent reasons for limiting the selection process to only 25 posts for which roster clearance was available.

42. It is not in dispute from the side of the petitioner also that government has the right not to fill up the vacancies but such decision should not be arbitrary or unreasonable and must be based on sound, rational and conscious application of mind. For this proposition of law, the learned counsel has relied upon the judgements reported in (2013) 12 SCC 171 (supra) and (2019) 12 SCC 798 (supra). In view of the findings recorded in the foregoing paragraphs that the decision to limit filling up of vacancy up to 25 posts only was a result of conscious decision based on sound reasons, the judgements relied upon by the petitioner on the point do not apply to the facts and circumstances of this case. Clearance of roster and filling up of vacancies is essentially within the domain of the respondents, this court finds no reasons to issue any mandamus as prayed for by the petitioner in para 1(ii) of this writ petition.

43. The other point argued by the petitioner is that the life of the panel is ordinarily for one year but merely on this ground appointment

cannot be denied if he has made representation during the subsistence of panel and for this the petitioner had relied upon judgement of "Bharat Sanchar Nigam Limited and Others Vs. Abhishek Shukla and Another" reported in (2009) 5 SCC 368; "Umar Farooque -vs- Birsa Agriculture University & Others" reported in 2018 SCC OnLine Jhar 1433 and "Balkishun Ram and Others -vs- State of Jharkhand through Chief Secretary and Others" reported in 2020 SCC OnLine Jhar 968.

In the present case, admittedly the name of the petitioner neither figured in the earlier merit list of 310 candidates nor figured in the published panel of 50 candidates from the combined merit list for 25 posts. The representation of the petitioner and others dated 17.02.2009 (annexure-16) filed before the Hon'ble Governor was for regularization of service and such representation was filed after filling up of aforesaid 25 posts having roster clearance. Thus, neither the name of the petitioner figured in any panel nor the petitioner filed any representation raising any grievance regarding the panel nor raised any grievance regarding restricting the panel to 50 candidates for filling up vacancy of 25 posts for which roster clearance was available. In view of the aforesaid findings, the judgements relied upon by the petitioner as mentioned above also do not help the petitioner in any manner whatsoever as they do not apply to the facts and circumstances of this case.

44. As a cumulative effect of the aforesaid findings, this court finds no merits in this writ petition which is accordingly dismissed.

(Anubha Rawat Choudhary, J.) Pankaj