====================================================== Shahnawaz Anwer son of Md. Mustafa, resident of Mohalla- Khatari, P.S. Ara(Town), District v. 1.The State Of Bihar & Ors
Case Details
Patna High Court CWJC No.18729 of 2010 (12) dt.10-12-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18729 of 2010 ====================================================== Shahnawaz Anwer son of Md. Mustafa, resident of Mohalla- Khatari, P.S. Ara(Town), District Bhojpur (Ara) .... Petitioner Versus 1.The State Of Bihar & Ors .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Abdul Mannan Khan, Advocatge Md. Najmul Hoda, Advocate For the State : Mr. Mr. Pratik Kumar Sinha, AC to SC XI For the Staff Selection Commission: Mr. S.S. Sundaram, Advocate For Pvt. Respondent : Mr. Rajeev Kumar Singh, Advocate Miss. Arpana Kumari, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 12 10-12-2013 The petitioner seeks direction to the respondent State Selection Commission to make additional recommendation against unfilled posts of Swagatak in General Category in the Bihar Tourism Department pursuant to the advertisement dated 15.3.2007 contained in annexure-3. As 3 of the general category candidates did not join, the petitioner being next in the merit list has staked his claim for appointment. 2. The facts of the case in short is that on requisition of Tourism Department, the Staff Selection Commission (hereinafter referred to as ‘the Commission’) published an advertisement on 15.3.2007 inviting applications for 14 posts of Swagatak in Tourism Department. In August, 2010. The Commission completed the selection process and recommended 14 candidates
Legal Reasoning
Patna High Court CWJC No.18729 of 2010 (12) dt.10-12-2013 2 for appointment against 14 vacancies. 7 candidates were recommended under general category and 7 candidates under other categories. 3 candidates in general category and 1 candidate under B.C. category did not join. The petitioner next being in merit list even as per respondents has prayed for appointment against unfilled post. 3. It appears that neither the State Government made requisition for recommendation of additional name nor the Commission obliged the petitioner by making further recommendation in view of clause 16 of notification dated 16.7.2007 of Personnel nor Administrative Reforms Department published under orders of Governor of Bihar. Clause 16 of the notification states that the posts which are not filled up due to non- joining of the candidates would be carried forward for the next recruitment. 4. The issue is if some of the selected candidates do not join, whether the same can be filled up from next in the merit list. 5. The petitioner submits that the notification dated 16.7.2007 would not come to the aid of the State as selection process started on 15.3.2007 much prior to the issuance of the said notification. It is well settled that the selection process starts with the issuance of the advertisement and it ends once the selection is finalized and Patna High Court CWJC No.18729 of 2010 (12) dt.10-12-2013 3 posts are filled up. In the instant case the advertisement was issued on 15.3.2007 much prior to the issuance of notification dated 16.7.2007 and as such the said notification would not cover the selection process commenced prior to it. Thus the guide lines contained in notification dated 16.7.2007 would not be of any aid to the State. 6. The issue would be whether still the petitioner has made out a case for issuance of mandamus to the respondents to recommend his name against the existing vacancies on account of non-joining of selected candidate in his respective category. 7. One of the earliest of the resolutions on the issue is resolution dated 29.10.1988 of Personnel and Administrative Reforms Department. Clause 5 of it, which is relevant in the context, states that in case some of the selected candidates do not join, then in such eventuality on the request of the requisitioning/appointing authority, the Commission can make additional recommendation from the merit panel. The provision of the said circular would definitely help the petitioner’s case provided further changes have not altered the said position. The Legislature in the year 2002 in order to bring uniformity in the selection of Technical and Non- technical Class 3 posts under the administrative control of the Bihar Government enacted Bihar Staff Selection Commission Act, Patna High Court CWJC No.18729 of 2010 (12) dt.10-12-2013 4 2002. Section 12 of the Act confers rule making power on the State Government and the Commission was conferred with the power of making Regulations. 8. In terms of section 12 of the Act, the Government in the Department of Personnel and Administrative Reforms framed Bihar Staff Selection Rules, 2003. Rule 3 of the Rules, 2003 states that the recommendation of the Commission would remain valid for a year. If number of recommendation is more than the vacancy requisitioned, then recommendation from such list as per merit position can be made in case of non-joining of selected candidates. 9. The Hon’ble Apex Court in the case of Bihar State Electricity Board Vs Suresh Prasad & Ors, reported in (2004) 2 SCC 681observed that in absence of any statutory rules to the contrary, the employer is not bound to prepare a waiting list in addition to the panel of selected candidates and to appoint the candidates on the waiting list in case the candidates on the panel do not join. The decision of the Hon’ble Apex Court has been followed by a Division Bench of this court in the case of Alok Kumar Vs State of Bihar, reported in 2009(2) PLJR 123. The Division Bench observed that against the vacancy occurred due to non-joining, the candidate who is in waiting list is not entitled to be appointed on the unfilled vacancy because of non-joining of candidates or Patna High Court CWJC No.18729 of 2010 (12) dt.10-12-2013 5 leaving the service after joining. 10. It is relevant to state here that the expiry of panel of recommended candidate or waiting list wherever the statute so provided would not be defeated if the same has expired during the pendency of litigation. Reference can be made to the decision in the case of State of U.P. vs Ram Swarup Saroj, reported in (2000) 3 SCC 699. 11. Further more, Hon’ble Apex Court in the case of Purshottam vs Chairman, Maharashtra State Electricity Board, reported in (1999)6 SCC 49 has observed that the expiry of panel would not be relevant when post has been usurped by an illegal candidate. The petitioner has tried to contend that the Commission has recommended names of more than 14 candidates. The petitioner in support of his submission has referred to merit list obtained under Right to Information Act contained in Annexure-9.
Legal Reasoning
It is difficult for me to accept the contention of the petitioner. The merit list of 65 candidates annexed to the information given by the Staff Selection Commission pursuant to queries made under the Right to Information Act is not a list of recommended candidates but it is a mere merit list of candidates as per marks secured by them in the examination. It even contains list of persons who has secured 78.34% of marks as well as candidates who has secured as Patna High Court CWJC No.18729 of 2010 (12) dt.10-12-2013 6 low as 35.52% of marks. 12. On the other hand, it would appear from letter dated 8.10.2010 of the Bihar Staff Selection Commission that only 14 candidates were recommended for selection. Further more, the Tourism Department vide its letter dated 31.8.2010 (Annexure-10) has stated that the Commission has recommended only 14 candidates. The same fact has been reiterated in letter dated 6.7.2011 of Tourism Department contained in Annexure-17. Thus, it is apparent that the Commission has recommended only 14 candidates as against 14 vacancies for which advertisement was issued in 2007 and there was no waiting list. 13. The petitioner has next placed reliance upon order dated 13.1.2012 passed in C.W.J.C. No.15838 of 2011 in the case of Awadhesh Sharma Vs The State of Bihar in identical circumstances. The petitioner Awadhesh Sharma who was next in the merit list amongst the backward category filed a writ application seeking a direction to the respondents for his appointment on vacant post arises consequent upon non-joining of backward candidate. A bench of this court by order dated 13.1.2012 directed the Commission to examine the claims of the petitioner and make an additional recommendation with regard to the next candidate with the next higher marks than the last Patna High Court CWJC No.18729 of 2010 (12) dt.10-12-2013 7 candidate recommended in the B.C. Annexure-2 reserve category within a period of three months. The State is not able to point out major difference between the cases of Awadhesh Sharma vis-a-viz this petitioner save and except that they belong to two different categories, otherwise the facts and issues are common. However, it has taken a plea of having preferred a L.P.A. against the order of learned Single Judge in the case of Awadhesh Sharma (supra). 14. I find that the selection process started on 15.3.2007, prior to resolution of the State Government dated 16.7.2007, prohibiting filling up the post falling vacant due to non-joining of successful candidates and as such would be inapplicable. The resolution of the Personnel and Administrative Reforms Department dated 29.10.1988 contained in clause 5 can be of some relevance as it provides that in case the State Government makes additional requisition within a year of the selection of candidates, the selecting body would make due recommendation. As the petitioner has filed the instant case within a year of recommendation of selected successful candidates by the Commission, it would be open for the State Government to consider his case for making additional requisition without prejudice in accordance with law. It is entirely government’s discretion to consider whether to exercise appropriate discretion under clause 5 of the resolution dated Patna High Court CWJC No.18729 of 2010 (12) dt.10-12-2013 8 29.10.1988 of the Personnel and Administrative Reforms Department or not. 15. The petitioner next contends that in fact if properly calculated, the marks secured by him would come to 65.07% and not 64.72% as calculated by the respondents which would be much more then the maximum marks of 64.80% secured by the last candidate in the general category. Thus as per petitioner he would be well ahead of the last candidate recommended in the general category. The respondents would also examine this aspect of the matter. 16. With the aforesaid observations and directions, this writ
Decision
application stands disposed of. (Samarendra Pratap Singh, J) KHAN/-