Swati Chaturvedi vs The State Of Bihar
2021 Latest Caselaw 1164 Patna

           IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.3952 of 2020
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Swati Chaturvedi, aged about 29 years (Female), Daughter of Atal Bihari Chaturvedi, resident of N 1 / 23, Panchkoshi Road, P.S.- Lanka, District- Varanasi (U.P.). At present resident of Village + P.O.- Sahbajpur, P.S.- Mohania, District- Kaimur (Bhabhua).

... ... Petitioner Versus

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

2. The Bihar Public Service Commission through its Chairman.

3. The Chairman, Bihar Public Service Commission.

4. The Joint Secretary-cum-Examination Controller, Bihar Public Service Commission.

5. The High Court of Judicature of Patna in its Administrative Side through the Registrar General, Patna High Court, Patna

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr. Kumar Brijnandan, Advocate For the State : Mr. Sheo Shankar Prasad, SC-8 For the B.P.S.C. : Mr. D.K. Sinha, Senior Advocate Mr. Anil Kumar Singh, No.1, Advocate For the High Court : Mr. Piyush Lall, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY And HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHIVAJI PANDEY)

Date : 01-03-2021

Heard learned counsel for the petitioner, learned

counsel for the High Court, learned counsel for the State and

learned Senior counsel for the Bihar Public Service

Commission.

2. In the present case, the petitioner is seeking

appointment against the post advertised vide Advertisement Patna High Court CWJC No.3952 of 2020 dt.01-03-2021

No.06 of 2018 as having claimed that she secured identical

marks of 517 as that of last candidate, who has been selected

under the unreserved category. It has further been submitted that

six persons under the unreserved category did not join the post

and as such, the petitioner being next one in the merit list having

secured 517 marks to be appointed on that post.

3. The facts of this case are that an Advertisement

No.06 of 2018 was issued by the Bihar Public Service

Commission for the appointment of 349 candidates on the posts

of Civil Judge (Junior Division). The petitioner applied and

appeared in the examination but, could not get her place in the

final select list. Sri Amit Kumar Singh, who is the last candidate

selected on the post of Civil Judge (Junior Division) having

secured 517 marks. It has been brought to our notice that about

six candidates under the unreserved category did not join the

post, which is apparently clear from the Notification issued by

the State Government vide Memo no.3339 dated 03.03.2020

whereby the recommendation of Pankaj Kumar Srivastava,

Ashwani Kumar Upadhyay, Nawnit Kashyap and Sandeep

Mani, have been cancelled as they failed to join the post and

vide memo no.11698 dated 10.012.2020 the appointment of

three persons namely, Abhishek Kumar, Suman Grewal and Patna High Court CWJC No.3952 of 2020 dt.01-03-2021

Rakesh Kumar have been cancelled. Out of seven candidates,

six candidates belong to unreserved category.

4. The petitioner has brought to our notice that she

sought information from the State Government under the Right

to Information Act to give the name of last person who has been

appointed on the post of Civil Judge (Junior Division) as also

the names of persons who have secured same marks i.e. 517.

The petitioner got information that altogether 10 persons have

secured 517 marks and her position is below to Anita Kumari, as

although she secured 517 marks but, she obtained 457 marks in

the written examination whereas, the petitioner obtained 452

marks in the written examination, so Anita Kumari secured

higher place in the merit list than that of the present petitioner.

However, it has been pointed out by learned counsel for the

petitioner that Anita Kumari belongs to Backward Category and

she has been appointed in that category, so after Anita Kumari,

the present petitioner would be the next candidate to be adjusted

against remaining six vacancies.

5. Learned counsel for the petitioner has placed

reliance on the judgment of Hon'ble Supreme Court rendered in

the case of Malik Mazhar Sultan (3) and Anr. vs. Uttar

Pradesh Public Service Commission reported in (2008) 17 SCC Patna High Court CWJC No.3952 of 2020 dt.01-03-2021

703 and submits that the petitioner is entitled to be adjusted

against vacant post under the unreserved category.

6. Counter affidavits have been filed by the Bihar

Public Service Commission, High Court as well as the State.

The respondents have not disputed that the present fact but,

learned counsel for the State has made submission that as there

is a Government Resolution dated 15.07.2007, in which it has

been decided that if any candidate fails to join the post, the said

post will go to the next recruitment year. On that basis, learned

counsel for the State submits that the posts not filled-up on

account of non-joining of the selected candidates will be added

in next requisition for recruitment.

7. Learned counsel for the Bihar Public Service

Commission submits that the duty of the Commission is to

recruit the persons and to make panel of selected candidates and

that has been done by the Commission and if there is no

direction from the State Government or the High Court for

furnishing the names below the last recruited candidate, the

Commission is not obliged to recommend further name or

names, inasmuch as, the Commission has not prepared wait list.

8. Learned counsel for the High Court submits that Patna High Court CWJC No.3952 of 2020 dt.01-03-2021

earlier identical question came for consideration before this

Court in the case of Kislay Chaubey vs. The State of Bihar and

Ors. (C.W.J.C. No.7104 of 2008) and the Division Bench of this

Court vide judgment and order dated 17.09.2008 placing

reliance on the Circular of 1977 has held that if any vacancy

could not be filled up on account of non-joining of selected

candidate, the same will go to the next recruitment year. He

further submits that the judgment relied upon by learned counsel

for the petitioner in the case of Malik Mazhar Sultan (3) and

Anr. vs. Uttar Pradesh Public Service Commission reported in

(2008) 17 SCC 703 with respect to giving direction for

preparation of the wait list is not in general context.

9. Learned counsel for the petitioner has strongly

placed reliance on the judgment of Malik Mazhar Sultan case

(supra) as in that case the Hon'ble Supreme Court was in seisin

of the matter of recruitment of Judicial Officers at different

branches viz. filing up of vacancies in the cadre of District

Judge, filling up of vacancies in the cadre of Civil Judge (Senior

Division) to be filled up by promotion and for filling up the post

of Civil Judge (Junior Division) by direct requirement, which is

subject matter at hand. In Clause-1 of paragraph no.7(D) of the

aforesaid judgment, it has been provided that in what manner Patna High Court CWJC No.3952 of 2020 dt.01-03-2021

the vacancies to be calculated, which speaks that '(a) existing

vacancies (b) future vacancies that may arise within one year

due to retirement (c) future vacancies that may arise due to

promotion, death or otherwise, say ten per cent of the number of

posts. Item No.11 thereof speaks in the manner "declaration of

final select list and communication to the appointing authority

(a) result may be put on the website and also published in the

newspaper (b) select list be published in order of merit and

should be double the number of vacancies notified. Clause-12

thereof speaks in the manner "issue of appointment letter by the

competent authority for all existing vacant posts as on date.

Paragraph no.14 of the said decision says that select list

prepared for all categories of officials shall be valid till the next

select list is published and paragraph no.15 says that ten per cent

of unforeseen vacancies would be in respect of sanctioned posts

and not vacancies occurring in a particular year. It appears that

Patna High Court was a party to the proceeding, which is

apparently clear from paragraph no.11 of the said judgment.

10. It also appears that the same matter again came for

consideration before the Hon'ble Supreme Court for

modification of earlier order dated 04.01.2007, which is

reported in (2009) 17 SCC 24 (Malik Mazhar Sultan and Patna High Court CWJC No.3952 of 2020 dt.01-03-2021

Another vs. Uttar Pradesh Public Service Commission and

Others) wherein certain portion of directions are under

consideration before the Hon'ble Supreme Court, which has

been explained in paragraph no.2 of the said decision, which

reads as under:-

"2. It has been pointed out by the counsel appearing for the various High Courts that 10% of the sanctioned posts are notified in some States. A large number of posts are to be notified whereas there was corresponding number of vacancies to be filled if the candidates are selected in the select list. There may be an expectation for such candidates to get appointment and this creates unwanted litigation by the candidates and it is prayed that the existing vacancies alone be notified along with the anticipated vacancies that may arise in the next one year and some candidates also be included in the wait list prepared by the High Courts/ PSCs.

Ultimately, in paragraph no.3 of the said decision

the Hon'ble Supreme Court passed the following order:-

"3. In superssesion of the order passed by this Court on 04.01.2007, this Court directs that in future the High Courts / PSCs shall notify the existing number of vacancies plus the anticipated vacancies for the next one year and some candidates also be included in the wait list. To this extent earlier order is Patna High Court CWJC No.3952 of 2020 dt.01-03-2021

modified."

So, the Hon'ble Supreme Court made it clear to

what extent the earlier order has been modified.

11. Learned counsel for the High Court submits that

the aforesaid modification is in the context of paragraph no.02

of the earlier judgment, but from the said order, it appears that

direction has been issued in context of para-15 of the earlier

judgment, which speaks that ten per cent of unforeseen

vacancies would be in respect of sanctioned posts and not

vacancies occurring in a particular year. However, this

paragraph cannot be read in isolation but, it has to be read in

entirety.

12. Learned counsel for the State has placed reliance

on Government resolution but, the Government resolution is not

applicable in the Judicial Service but, it may be applied to the

general service in view of specific consideration and directions

of the Hon'ble Supreme Court in the case of Malik Mazhar

Sultan case (supra). Further, the Government resolution which

has been placed reliance by the State contending that vacant

posts cannot be of any avail in favour of petitioner, is required to

be refuted as resolution has no statutory force as it is neither an

enactment or rule as is fortified from the judgment of Hon'ble Patna High Court CWJC No.3952 of 2020 dt.01-03-2021

Supreme Court in the case of State of Jharkhand vs. Jitendra

Kumar Srivastava reported in 2013(3) PLJR 458 (S.C.).

13. Further plea has been taken by the High Court that

in Kislay Chaubey vs. The State of Bihar and Ors. (C.W.J.C.

No.7104 of 2008), the Circular of 1977 has been taken into

consideration but, the aforesaid Circular of 1977 has lost its

force in view of decision rendered in Malik Mazhar Sultan

case (supra). Furthermore, identical matter came for

consideration before this Court in Manoj Kumar Tiwari vs. The

State of Bihar and Ors. (C.W.J.C. No. 14921 of 2019), that

matter relates to direct recruitment of District Judge (Entry

Level) Direct from the Bar. The petitioner of that case had

obtained identical marks as that of the last candidate selected on

the post and certain persons did not join the post, so the post

remain unfilled. The Division Bench of this Court after

considering the rival contentions of the parties has given

direction for appointment of the petitioner. It will be relevant to

quote paragraph nos. 9 and 10 of the aforesaid judgment, which

are as follows:-

"9. Consequently, we allow the writ petition and issue a mandamus to the High Court to consider the claim of the petitioner, if he is otherwise eligible in the light of what has been stated Patna High Court CWJC No.3952 of 2020 dt.01-03-2021

above for his selection in the District Judge (Entry Level), Direct from Bar Quota viz-a-viz the advertisement and the examination of 2016 in question within a period of one month from today for which necessary administrative instructions may be issued as directed hereinabove.

10. It is further clear that the petitioner shall be declared to have been selected if he otherwise fulfills the other terms and conditions of the advertisement."

14. Learned counsel for the High Court has not

disputed that petitioner of that case namely, Manoj Kumar

Tiwari has been appointed nor the High Court has challenged

the order rendered in that case before the higher Court, so this

order has now become final order for the purposes of

consideration of this Court.

15. Learned counsel for the High Court has placed

reliance on Rule-19 and 21 of the Bihar Civil Services (Judicial

Branch) (Recruitment) Rules, 1955, and submits that it depends

upon the nomination of the candidates comes from the Bihar

Public Service Commission. However, all the rules has to be

read down in terms of the ratio laid down in the decision of

Malik Mazhar Sultan (supra).

Patna High Court CWJC No.3952 of 2020 dt.01-03-2021

16. Learned counsel for the B.P.S.C. has placed

reliance on a decision of Hon'ble Supreme Court in the case of

Public Service Commission, Uttaranchal vs. Mamta Bisht and

Others. reported in (2010) 12 SCC 204, paragraph nos. 8 and 9,

wherein the Hon'ble Supreme Court has decided that if certain

select candidates have joined and whereafter some of the

candidates tendered resignation or died, in such circumstance,

that vacancies would be treated to have been filled up but, it is

not the facts of the present case. Hence, this decision will not

apply to the facts of the present case.

17. Learned counsel for the B.P.S.C. has placed

reliance on another decision of Hon'ble Supreme Court rendered

in the case of State of Orissa & Anr. v. Rajkishore Nanda &

Ors., reported in AIR 2010 SC 2100 which deals with the

situation that future vacancies cannot be notified, it can only be

confined to the present and anticipated vacancies but, in the

present case, vacancies are not the future vacancies, admitted

position is that six posts are still vacant due to non-joining of

selected candidates and the present petitioner is the next

candidates having the identical marks of 517 as that of last

candidate who has been selected under the unreserved category.

18. In view of the reasons discussed hereinabove as Patna High Court CWJC No.3952 of 2020 dt.01-03-2021

also in light of the decision rendered in the case of Malik

Mazhar Sultan (supra) and the order passed in Manoj Kumar

Tiwari (C.W.J.C. No.14921 of 2019) (supra), we are of the

considered view that the petitioner is entitled for the relief as

sought by him. Accordingly, we direct the State Government to

send the requisition for one post for the present petitioner and in

turn, the Bihar Public Service Commission will recommend the

name of the present petitioner for appointment on the post of

Civil Judge (Junior Division). Thereafter, the matter will be

referred to the High Court on administrative side and the High

Court on administrative side will appoint the petitioner on the

post of Civil Judge (Junior Division) at suitable place. All the

process must be completed within three months from the date of

receipt / production of a copy of this order.

19. With the aforesaid observations and directions, this

writ petition is allowed.

(Shivaji Pandey, J)

( Partha Sarthy, J)

pawan/-

AFR/NAFR                N.A.F.R.
CAV DATE                N/A.
Uploading Date          05.03.2021
Transmission Date