Shambhu Mandal vs State of Bihar and Others

S.J. Mukhopadhaya, J.—The petitioner has preferred this writ petition for consideration of his case for appointment to the post of Bihar Administrative Service (B.A.S.) or Bihar Education Service (B.E.S.) and to appoint him w.e.f. 30th May, 1996 i.e. the date from which he had been appointed to the post of Probation Officer in the Home (Prison) Department.

The brief fact of the case shows that the petitioner applied for appointment in the year 1994 in pursuance of 39th Combined Competitive Examination, for appointment to Gazetted Class II posts of different services, as also isolated posts.

He was declared successful in preliminary test and also came out successful in main examination, held in 1995, as Scheduled Tribes candidate. Thereafter, interview held in May '' 95 when the petitioner opted for appointment in the service like Bihar Police Service ; Bihar Administrative Service; Bihar Education Service; Bihar Excise Service; Sub-Registrar, etc.

The final result was published by Bihar Public Service Commission (B.P.S.C.) on 4th June, 1995. Altogether 12 candidates were declared successful/selected from amongst Scheduled Tribes (S.T.) Category., including the petitioner. The list of 12 successful S.T. candidates included three persons of Lohar Community, who were placed above the petitioner in the merit list. However, the petitioner had not knowledge relating to Caste (Lohar) of above three candidates, who were shown above the petitioner,

On 4th January, 1996, one S.T. candidate was recommended and appointed as Jail Superintendent ; another as Excise Inspector and third in the Bihar Education Service. The three candidates of Lohar Community, whose names were shown above the petitioner as S.T. candidates were also appointed in Bihar Administrative Service (B.A.S.) on 4th January, 1996. The petitioner, on the basis of his position in the merit list was offered appointment on 3rd May,-1996 a Probation Officer, in Home. (Jail) Department.

At this stage, it is pertinent to mention that some candidates of Lohar Community moved before this Court for a declaration that the ''Lohars'' are Scheduled Tribes. Such declaration was given by this Court in another case, in pursuance of which State authorities granted S.T. certificate to number of person, who belonged to Lohar Community, Against such decision, certain persons moved before the Supreme Court, in the case of Nityanand Sharma and Anr. v. State of Bihar and Ors. Civil Appeal No. 2688 of 1996. In the said case, the Supreme Court by its judgment dated 2nd February, 1996 held that the ''Lohars'' not a Scheduled Tribes, but ''Other Backward Category''. However, as in the meantime, three persons, namely, Prabhat Kumar; Sanjay Kumar Sharma and Rakesh Ranjan Sharma were appointed in Bihar Administrative Service on 4th January, 1996 treating them as Scheduled Tribes, after decision of Supreme Court, the State of Bihar issued notification on 13th May ''97 and cancelled the appointment of said S/Shri Prabhat Kumar ; Sanjay Kumar Sharma ; and Rakesh Ranjan Sharma. The matter was also intimated to the B.P.S.C.

The B.P.S.C. vide their letter dated 19th September ''97 giving reference of aforesaid three appointments asked the State whether the three vacancies to be filled up out of 39th Combined Competitive Examination or not. It further intimated that if names are recommended out of 39th Combined Competitive Examination, seven persons may be affected or on the basis of their option, it may require further modification in the earlier recommendation, changing the Departments of such seven candidates who have been allowed to join other Department. The State of Bihar in their turn vide letter No. 4737 dated 30th April, 1998 intimated the B.P.S.C. that the posts fell vacant because of cancellation of three appointments be clubbed with the future vacancies for appointment:

According to petitioner, he had right to be considered for appointment against all the posts including the post of B.A.S. and B.E.S. The vacancies being there, his case should have been considered for appointment against such post. If certain persons were illegally appointed against the posts, on rectification of mistake, the posts are liable to be filled up from 39th Competitive Examination and case of the petitioner should be considered against such post.

The Counsel for the petitioner submitted that the appointments being illegal, void ab initio, the result and vacancies should be filled up from amongst successful candidates of 39th competitive Examination, including those who have already been appointed against lower grade post.

According to the Counsel, the post against which the petitioner has been appointed is of lower scale of pay than the post of B.A.S./B.E.S. If the three persons had not been appointed, on the basis of merit list, petitioner would have been appointed against such post of B.A.S. /B.E.S.

According to the Counsel for the State, inclusion of name in the merit list does not confer airy right to be appointed. If some vacancies remain unfilled after selection is finally closed, no candidate can claim any right for appointment.

The question relating to filling up posts on non-jointing or which falls vacant during the process of selection or thereafter, fell for consideration before Courts from time to time. In the case of Shankarsan Dash Vs. Union of India, , the Supreme Court held that inclusion of names of candidates in the merit list do not confer any right upon them to be appointed. Unless, the relevant requirement rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. The decision not to fill up the vacancies has to be taken bona fide, for appropriate reasons.

In the case of Ranjit Kumar Singh Vs. The State of Bihar and Others, , this Court took into consideration the circular issued by the State on 17th June, 1977 to streamline the process of recruitment to different State Services on the basis of Combined Competitive Examination conducted by B.P.S.C. Paragraph-3 of the Resolution takes note of the fact that in actual working, inordinate delay takes place in the matter of appointment of candidates to various services and post. In order to get round the difficulties and to ensure appointment of successful and suitable candidates in time, while it framed some schedule in consultation with B.P.S.C., vide Sub-clause (xii) of Paragraph-3, it was decided that once allotment made, the same cannot be changed. At Clause (xiv) of said Paragraph-3, it was further stipulated that the unfilled vacancies for any reason are to be carried forward to the next year of selection.

On the other hand, in the cases like the case of Bhogeshwarudu v. Andhra Pradesh Public Service Commission 1989 (4) JT 130, the Supreme Court directed to fill up the non-joining vacancies out of selected candidates of the concerned examination. Similar view was also taken by this Court in the case of Ranjeet Kumar Singh (supra) by this Court.

In the present case, the vacancies in question were filled in accordance with law, as was in vogue. The three persons of Lohar Community who were appointed on 4th June'' 95 as S.T. candidates, were above the petitioner. Till any decision was given by a Court of law, there was no occasion for the State to recall the order of appointment as made in favour of those three persons. The appointments of three persons were cancelled after more than one year from the date of appointment of the petitioner. Thereby, the vacancies occurred after one year of the appointment of the petitioner.

In terms with Government policy decision taken vide Resolution dated 17th June, 1977, the State Government made clear vide letter No. 4737 dated 30th April, 1998 to carry forward the vacancies which cannot be held to be arbitrary. The petitioner having already appointed, had no right to be considered against the vacancies occurred after one year of his appointment.

In the circumstances, no relief can be granted in favour of the petitioner, as it has got no merit.

The writ petition is, accordingly, dismissed.