Zaffir Ahmad Ansari vs The State Of Bihar
2021 Latest Caselaw 3701 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.4096 of 2020
     ======================================================

1. Zaffir Ahmad Ansari Son of Azizul Haque, Resident of Sitalpur, P.S.-

Dighwara, District- Saran (Chhapra)

2. Ali Akbar son of Mohammad Islam Resident of 86 KH, Chhitauli, P.S.-

Pasrampur, District- Gopalganj

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna

2. The Principal Secretary, Department of Finance, Govt. of Bihar, Patna

3. The Joint Secretary, Department of Finance, Govt. of Bihar, Patna

4. The Secretary (Resource/expenditure) Finance Department, Bihar

5. The Additional Chief Secretary General Administration Department, Bihar, Patna

6. The Bihar Public Service Commission, through its Secretary, Bailey Road, Patna, Bihar

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Krishna Chandra, Advocate For the State : Mr. Raghwendra Kumar, SC 22 For the BPSC : Mr. Sanjay Pandey, Advocate Mr. Nishant Kumar Jha, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE PARTHA SARTHY CAV JUDGMENT Date : 27-07-2021

Heard learned counsel for the petitioners,

learned Standing Counsel for the State and learned counsel for

the Bihar Public Service Commission.

                            The     petitioners    have    filed     the    instant

      application for the following reliefs:

            i.   For   directions    to   the     respondents      concerned      to

recommend the name of the petitioners and to issue Patna High Court CWJC No.4096 of 2020

appointment letter to the post of Accounts Officer.

ii. For direction to the respondent to appoint the petitioner in

light of Rule 15 of Bihar Accounts Services Rules 2000

(as Amended from time to time).

iii.For directions to respondents to recommend the name of

the petitioners for appointment on the post remained

vacant due to non-joining of the some of the earlier

recommended candidates.

iv.For holding and a declaration of Rule 15 of Bihar

Accounts Services Rules 2000 (as amended) and

recommendation of the petitioners name for

appointment, as he is eligible to be appointed on the

post, after vacancy due to non-joining of recommended

candidates.

v. For holding and a declaration with regard to the

petitioners' candidature as eligible who is placed at Sl.

No.- 129 and 135 respectively in combined merit list and

now is fit to be appointed in his own category due to

non-joining of some of the successful candidates of his

category.

vi.For directions upon the respondents to complete the

process of appointment in light of the Rules and to Patna High Court CWJC No.4096 of 2020

consider the representation of the petitioners filed before

the concerned authority.

vii. For grant of any other relief or reliefs to which the

petitioner is found entitled in the facts and circumstances

of the case.

The case of the petitioners in brief is that

pursuant to the vacancy on the post of Accounts Officer under

the Finance Department, Government of Bihar, the Bihar Public

Service Commission (hereinafter referred to as "the

Commission") came out with Advertisement no. 3/2015 for

filling up 100 posts which included 18 seats under the

Extremely Backward Class (EBC) category to which the

petitioners belong. The petitioners being eligible filed their

applications and appeared in the preliminary test. On being

declared successful, both the petitioners appeared in the main

written test. Once again they were declared successful and were

called for interview by the Commission wherein they appeared

along with the documents of their educational qualifications.

The result against 100 advertised vacant posts including 18

under the EBC category was published on 1.10.2018. This was

from the combined merit test of 195 candidates for all category

of Account Officer competitive examination (Advertisement no. Patna High Court CWJC No.4096 of 2020

03/ 2015) published by the Commission.

It is further case of the petitioners that vide

letter no. 10135 dated 19.12.2019 the candidature of altogether

11 recommended candidates were cancelled by the Finance

Department. Four out of the eleven candidates belonged to the

EBC category.

In the meantime, a writ application being

C.W.J.C. No. 19220 of 2019 ( Prabhas Pathak versus State of

Bihar and others) was filed in this Court seeking a direction to

the respondents to recommend his name for appointment as

Account Officer against such posts which remained vacant

because of non-joining of the recommended candidates.

Pursuant to the direction of this Court in the said writ

application, the Commission came out with a revised result on

16.1.2020, whereby the earlier result was revised. It is the case

of the petitioners that on perusal of the revised result dated

16.1.2020 it would transpire that the candidates, namely, Shiv

Shankar and Kamal Nath Thakur who were earlier placed in the

EBC category, in the revised result were in the general category.

Thus, these two vacancies together with the four earlier

vacancies on account of non-joining, a total of 6 vacancies came

to be created in the EBC category. In the EBC category of the Patna High Court CWJC No.4096 of 2020

amended result dated 16.1.2020 the last candidate to be adjusted

was one Vinod Kumar. In the combined merit list Vinod Kumar

was at serial number 128, the petitioner no.1 Zaffir Ahmad

Ansari was at serial number 129 and petitioner no. 2 Ali Akbar

at serial number 135.

It is submitted on behalf of the petitioners that

the revised result having been published on 16.1.2020, in terms

of Rule 15 of the Bihar Accounts Service Rules 2000, amended

from time to time, the life of the panel was extended for one

year from the date of the said revised result i.e. till 15.1.2021. It

was submitted that the revised result could not be said to be an

amended revised result for the reason that the Commission had

not made a recommendation for only 11 candidates but had

recommended once again for 100 candidates with categories of

some of them having been changed. Further 8.10.2020 was the

last date for the new candidates to join but as they did not join,

the petitioners who were next in the merit list were entitled for

being recommended for appointment w.e.f. 9.10.2020 itself. For

the delay having been caused by the respondents, the petitioners

had been illegally denied opportunity and, thus, the instant writ

application for the reliefs prayed for, as quoted above. In

support of his contention learned counsel for the petitioners Patna High Court CWJC No.4096 of 2020

relied on the judgment in the case of Vijay Kumar Sharma and

others versus Chairman, Food Service Commission and others

(2001)4 SCC 289.

On the other hand, learned counsel for the

Commission submits that the Commission is a recommending

body in matters of appointment which is done in accordance

with the rules and regulations made by the State Government.

The Commission received requisition from the Finance

Department, Government of Bihar for appointment on 54 posts

of Account Officer. The number of vacancies were subsequently

increased to 100. The Commission came out with

Advertisement no.3/2015 for appointment on the post of

Accounts Officer under the Bihar Accounts Service Rules,

2000. The petitioners belonging to the EBC category applied

against the said advertisement and were allotted roll number

200293 and 202852. Both the petitioners appeared and passed

the preliminary and mains written examination and were called

for interview. They appeared in the interview and thereafter, a

combined merit list was prepared on the basis of the marks

obtained in the written examination and interview and selection

were made as per merit list. One hundred candidates were

declared successful and selected with their result published on Patna High Court CWJC No.4096 of 2020

1.10.2018 and their recommendations sent to the department

concerned on 21.12.2018. By letter dated 19.12.2019, the

department informed the Commission regarding non-joining of

11 candidates who had been recommended earlier and requested

to take necessary action. Pursuant to the said letter of the

department as also the order dated 19.12.2019 passed in

C.W.J.C. no.19220 of 2019, the Commission on 15.1.2020

published the revised result and sent the same to the department

on 31.1.2020. The petitioners once again could not be declared

successful as their mark were less than the new cut of mark for

their EBC category. It is submitted by learned counsel appearing

for the Commission that in terms of Rule 15 of the Bihar

Accounts Service Rules, 2000, the life of the panel being one

year or till the next advertisement, whichever is earlier, so far as

the instant panel is concerned exhausted itself on 1.10.2019 that

is on completion of one year from the date of the final result. It

is submitted that there is no merit in the writ application and the

same be dismissed. In support of his contention learned counsel

for the Commission relied on the judgments in the case A.P

Public Service Commission, Hyderabad and another versus

B.Shant Chand and others (1990) 2 SCC 669, the State of Bihar

and others versus Amrendra Kumar Mishra 2006 (4) PLJR 182 Patna High Court CWJC No.4096 of 2020

SC, Dr Poonam Kumari versus State of Bihar and others 2011

(1) PLJR 283, Raj Rishi Mehra versus State of Punjab and

another (2013) 12 SCC 246, Pramod Kumar versus State of

Bihar and others 2020 (2) PLJR 647, Kulvinder Paul Singh

versus State of Punjab and another (2016) 6 SCC 532 as also

order dated 6.10.2020 passed in C.W.J.C. no. 5434 of 2020

Chandra Shekhar Singh and others versus State of Bihar and

others.

Having heard learned counsel for the parties

and having gone through the materials on record, the facts not in

dispute are that on a requisition having been received from the

Finance Department, Government of Bihar, for appointment on

the 54 posts of Account Officer which was subsequently

increased to 100, the Commission came out with Advertisement

no.3/ 2015 for filling up the posts in accordance with the Bihar

Accounts Service Rules, 2000. Rule 15 of the said Rules which

deals with the life of the panel being relevant for the instant case

is being quoted here in below for ready reference: -

"Recommendation of candidates by the Commission:- The Commission shall prepare a merit list on the basis of mark obtained in the written examination and Viva-Voce Test. The Commission shall recommend such number of candidates from the list so prepared as to the Patna High Court CWJC No.4096 of 2020

Government as reported in case of non-joining of any candidate or increase in vacancies. The recommendation of candidates may be made from the merit list (panel) within a year or till further, advertisement whichever is earlier."

So far as the instant case is concerned a

combined merit list of Accounts Officer competitive

examination (Advertisement no.3/2015) was prepared and a

recommendation was made by the Commission to the

Government in different categories of a total number of 100

posts. This included 18 persons under the Extremely Backward

Class to which the two petitioners belong. It would be relevant

to mention here itself that although the combined merit list has

been brought on record as Annexure-B/6 along with the

covering letter dated 9.1.2019 of the Commission, however, the

first recommendation of the Commission as contained in

Annexure-B/5 having been made on 1.10.2018, the date of the

combined merit list would be of 1.10.2018 or earlier.

Rule 15 of the Bihar Accounts Service Rule

2000 (Annexure B/1) is very clear in so far as it categorically

states that in case of non-joining of any candidate or increase in

vacancies, the recommendation of the candidates may be made

from the merit list (panel) within a year or till further Patna High Court CWJC No.4096 of 2020

advertisement whichever is earlier. Thus, the combined merit

list/ first recommendation being of the date 1.10.2018, the merit

list exhausted itself on 30.9.2019. No recommendation by the

Commission nor any appointment could have been made after

30.9.2019.

So far as the contention of the petitioners that

the revised result having been published by the Commission on

16.1.2020 in terms of Rule 15 of the Bihar Accounts Service

Rules, 2000 the life of the panel got extended till 15.1.2021 is

concerned, it would be relevant to look at the contents of the

revised result issued by the Commission. From perusal of the

amended final result (Annexure C/11) it would clearly be

evident that firstly the heading itself speaks about the final result

having been amended and the contents of the said result dated

16.1.2020 clearly mentions that the final result has been

amended in view of non-joining of some of the candidates,

consequent cancellation by the Commission and the direction of

this Court in the orders passed in writ application. The very fact

that it was the final result which has been amended clearly

shows that it was not a fresh result and there is no merit in this

contention of the petitioners. Here also it would be relevant to

mention that Rule 15 of the Bihar Accounts Service Rules 2000 Patna High Court CWJC No.4096 of 2020

talks about recommendation of candidates to be made by the

Commission from the merit list (panel) within a year.

Publication of a revised or amended final result on 16.1.2020

would have no bearing as Rule 15 contemplates that no

recommendation of candidates is to be made from the merit list,

meaning the combined merit list, beyond a year.

Coming to the judgment in the case of Vijay

Kumar Sharma and others versus Chairman, School Service

Commission and others (2001) 4 SCC 289 relied on by the

petitioners, it is stated that the same is of no assistance to the

petitioners in the facts of this case. In paragraph no.8 of the said

case the Hon'ble Apex Court observes that the appellant no.1

belongs to the OBC category and for reasons best known to the

respondents, even though the life of the panel for General

Category had been extended to 2.2.2002, the same was not done

for the panel of the OBC Category. Thus, it proceeded to direct

that the Appellant no.1 be appointed against the vacancies

which are available in the OBC Category. The facts of the

instant case being different and distinct, the said judgment has

no applicability herein.

From the case of State of Bihar versus

Amrendra Kumar Mishra 2006 PLJR 182 (SC), paragraph nos. Patna High Court CWJC No.4096 of 2020

9, 12 and 13 are being quoted here in below for ready reference:

" 9. In the aforementioned situation, in our opinion, he did not have any legal right to be appointed. Life of a panel, it is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel."

"12. Yet again in Surinder Singh and Ors. vs. State of Punjab and Anr. [(1997)8 SCC 488], this Court stated the law thus :

"Prem Singh case was decided on the facts of that case and those facts do not hold good in the present case. In the case of Gujarat State Dy. Executive Engineers' Assn. this Court has explained the scope and intent of a waiting list and how it is to operate in service jurisprudence. It cannot be used as a perennial source of recruitment filling up the vacancies not advertised. The Court also did not approve the view of the High Court that since vacancies had not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed. Candidates in the waiting list have no vested right to be appointed except to the limited extent that when a candidate selected against the existing vacancy does not join for some reason and the waiting list is still operative.

13. The decisions noticed hereinbefore are authorities for the proposition that even the wait- list must be acted upon having regard to the terms of the advertisement and in any event cannot remain operative beyond the prescribed period."

Further paragraph no.15 in the case of Raj Rishi

Mehra and others versus State of Punjab and another (2013)12 Patna High Court CWJC No.4096 of 2020

SCC 243 relied on by learned counsel for the Commission is

being quoted here in below :-

"15. The question whether the candidates whose names are included in the waiting list are entitled to be appointed against the unfilled posts as of right is no longer res integra and must be answered in negative in view of the judgments of this Court in Union of India v. Ishwar Singh Khatri, Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat, State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986, Prem Singh v. Haryana SEB, Ashok Kumar v. Chairman, Banking Service Recruitment Board, Surinder Singh v. State of Punjab, Madan Lal v. State of J&K, Kamlesh Kumar Sharma v. Yogesh Kumar Gupta, State of J&K v. Sanjeev Kumar, State of U.P. v. Rajkumar Sharma, Ram Avtar Patwari v. State of Haryana and Rakhi Ray v. High Court of Delhi."

Thus, from the facts and the contentions of the parties

having been dealt with herein above together with the

judgments relied on by the learned counsel for the Commission,

it is clear that Rule 15 of the Bihar Accounts Service Rules,

2000 clearly stipulates that no recommendation for appointment

can be made by the Commission from the combined merit list/

panel beyond the period of one year. The combined merit

list/panel having been published on or before 1.10.2018, the life

of the panel having exhausted itself in terms of the Rules, no

recommendation or appointment could have been made from the Patna High Court CWJC No.4096 of 2020

same after 30.9.2019.

Thus, the Court finds no merit in the case of the

petitioners and the application is dismissed.

(Partha Sarthy, J) Spd/-

AFR/NAFR               AFR
CAV DATE               5.3.2021
Uploading Date         27.7.2021
Transmission Date