Kumar Amarnath Prasad v. The State of Bihar

Appearance : (In CWJC No.8703 of 2013) For the Petitioner/s : Mr. Ebrahim Kabir, Adv. Ms. Shruti Sinha, Adv. For the Respondent/s : Mr. A.C. to A.A.G.-7 Mr. Lalit Kishore, P.A.A.G. Mr. S. Bharti, Adv. (In CWJC No.9203 of 2013) For the Petitioner/s : Mr. Pramod Mishra, Adv. Mr. P.C.Thakur For the Respondent/s : Mr. Lalit Kishore, P.A.A.G. Mr. S. Bharti, Adv. Mr. A.C. to A.A.G.-10 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER

7. 26-11-2013 Heard. Since in both the writ petitions, similar questions were raised, both the writ petitions were heard together and are being disposed of by this common order. In the 1st writ petition i.e. C.W.J.C. No. 8703 of 2013, the petitioner had participated in written examination for 53rd, 54th & 55th Combined Joint Competitive Examination - 2011, which was conducted by respondents/Bihar Public Service Commission (for short “BPSC”). Though, the petitioner, after qualifying in preliminary test, appeared in Main Written Patna High Court CWJC No.8703 of 2013 (7) dt.26-11-2013 Examination, but he remained unsuccessful. In the 2nd writ petition i.e. C.W.J.C. No. 9203 of 2013, petitioners had not at all participated in aforesaid examination nor they were applicants. In the 1st writ petition, the petitioner has primarily prayed for quashing of final result published by the BPSC on 11-04-2013. In the 2nd writ petition, petitioners have prayed for restraining the respondents from filling-up of vacancies other than vacancies, which were advertised, as per Annexure „1‟ to the writ petition. Learned counsel for the petitioners in both the aforesaid cases have argued that as per advertisement published in 2011, vide Annexure „1‟ to the writ petition, for conducting examination of 53rd to 55th combined entrance examination, total vacancy was advertised i.e. 257, whereas, the result has been published to fill up vacancies to the tune of more than one thousand and as such, it was argued that unless vacancies were advertised, the respondents were not at Patna High Court CWJC No.8703 of 2013 (7) dt.26-11-2013 all authorized to fill-up vacancies beyond the advertised vacancies. Learned counsel for the petitioners have placed heavy reliance on a judgment of the Apex Court reported in (2012) 5 SCC 559 (Arup Das & Ors. –Versus- State of Assam & Ors.). In sum and substance, it has been submitted that the Apex Court has already held that vacancies beyond advertisement cannot be filled-up. Accordingly, taking aid of the judgment of the Apex Court in Arup Das‟s case (supra), it has been prayed to set aside the result of candidates pertaining to fill-up the posts beyond the posts advertised i.e. 257 and it has been prayed to restrain the respondents from filling-up posts beyond the advertised posts. At the very outset, it was submitted by Sri Lalit Kishore, learned senior counsel appearing on behalf of respondents/BPSC that after the publication of result and during the pendency of the writ petition, the persons, who were selected, have already been given appointment letters and they have joined. Even then, the Patna High Court CWJC No.8703 of 2013 (7) dt.26-11-2013 petitioners have not bothered to implead them as party in the present writ petitions and as such, in absence of such persons in favour of whom right has accrued, no order can be passed in the present writ petitions. Sri Lalit Kishore, learned senior counsel has taken the Court to Annexure „1‟ to the writ petition and submits that advertisement itself had contemplated to fill-up the remaining vacancies, which were likely to be made available by different departments. He has specifically placed first paragraph of the advertisement i.e. Annexure „1‟ to the writ petition, which is quoted here-in-below:- ÞlkekU; iz”kklu foHkkx ] fcgkj ljdkj ds i=kad 7691 fnukad 06-08-2010 }kjk 53oh ls 55oh lfEefyr la;qDr izfr;ksfxrk ijh{kk vk;ksftr djus dh lalwfpr lgefr ds (cid:216)e esa ljdkj ds fofHkUu lsokvksa@laoxksZa ;Fkk] ¼1½fcgkj iz”kklfud lsok ¼mi lekgrkZ½ ¼2½ fcgkj vkj{kh lsok ¼vkj{kh mik/kh{kd½ ¼3½ ftyk lekns’Vk ¼x`g j{kk okfguh laxBu‰ …4‰ fcgkj fo(cid:217)k lsok …okf.kT; dj inkf/kdkjh½ ¼5½ fcgkj f”k{kk lsok ¼6½ fcgkj Je lsok …Je v/kh{kd ,oa fu;kstu inkf/kdkjh‰…7‰ fcgkj dkjk lsok ¼dkjk/kh{kd ,oa izksos”ku inkf/kdkjh½ ¼8½ fcgkj lgdkfjrk lsok oxZ & 2 vUrxZr ftyk vads{k.k inkf/kdkjh ,oa lgk;d fucU/kd …lg;ksx lfefr;k¡‰ …9‰ bZ[k inkf/kdkjh …10‰ fcgkj fuc/kau lsok …voj fucU/kd‰ …11‰ voj fuokZpu inkf/kdkjh …12‰ mRikn fujh{kd …13‰ tulEidZ inkf/kdkjh ,oa …14‰ uxj dk;Zikyd inkf/kdkjh esa fuEufyf[kr lsokvksa@laoxksZa ls izkIr dqy 257 fjfDr;ksa] fcgkj vkj{kh lsok & 34] ftyk lekns’Vk& 09 izkscs”ku ink/khdkjh& 56] ftyk vads{k.k inkf/kdkjh& 03] lgk;d fuca/kd …lg;ksx lfefr;k¡‰ Patna High Court CWJC No.8703 of 2013 (7) dt.26-11-2013 &09] voj fucU/kd & 56] okf.kT;dj inkf/kdkjh & 49] mRikn fujh{kd & 03] Je v/kh{kd & 05] fu;kstu inkf/kdkjh &06 ,oa uxj dk;Zikyd ink/khdkjh & 27] vkSj vU; foHkkxksa ls izkIr gksus okyh fjfDr;kas dh izR;k”kk esa] lq;ksX; Hkkjrh; ukxfjdksa ls vk;ksx }kjk fu/kkZfjr vkosnu i=] tks eq[; Mkd/kj] iVuk lfgr fcgkj jkT; ds lHkh ftyk eq[;ky; fLFkr ,oa vU; dqy 52 Mkd?kjks a ls fnukad 15-01-2011 ls fo(cid:216); fd;k tk,xk] esa vkosnu vkefU=r fd, tkrs ga 14-02-2011dh la/;k 5%00 cts rd Hkjs gq, vkosnu i= dk fyQkQk lEcfU/kr Mkd?kj esa tek djuk lqfuf”pr djsaA lEcfU/kr Mkd?kjksa dh lwph uhps vafdr gS ] ftls vk;skx ds osclkbZV & http://bpsc.bih.nic.in ij ns[kk tk ldrk gSA^^ SA fnukad It has been argued that it is not a case that there was specific contemplation in the advertisement to fill-up specified vacancies, but there was possibility of increase of vacancies, as contemplated advertisement. He submits that almost similar question was raised in a case before this Court reported in 2013 (4) P.L.J.R. 169 (Dhananjay Kumar Mishra & Ors. –Versus- The Bihar Staff Selection Commission through its Secretary, Veterinary College, Patna-800014 & Ors.). By referring to paragraph nos. 31, 32 & 33 of the aforesaid judgment, he submits that in the said examination also almost similar provision was mentioned and a single bench of this Court relying on a Judgment of the Apex Court, reported in 2012 (4) S.C.C. 115 (K. Laxshmi – Patna High Court CWJC No.8703 of 2013 (7) dt.26-11-2013 Versus- State of Kerala & Ors.) has set the point at rest. He submits that since there was already indication of increase of vacancies, the petitioners may not raise an issue against these vacancies, which had occurred subsequent to advertisement. Sri Lalit Kishore has specifically referred to paragraph – 33 of the said judgment of Dhananjay Kumar Mishra‟s case (supra). For just decision in the matter, it is quoted here-in- below:- “33. This Court, therefore, would find nothing wrong in increase of number of posts and the selection made in respect of them. Law in this regard is also well settled that while future vacancies may not be included in a selection process but anticipated vacancies can very well be included. In the present case in the advertisement itself it was mentioned that the number of vacancies could be increased before holding of the Main Examination and in fact before forms in the Main Examination were filled up by the candidates including the petitioners declared successful in Preliminary Test, the number of vacancies were increased and notified by the Commission. This procedure of including the anticipated vacancies has been invariably approved by the Apex Court. Reference in this connection may usefully be made to the judgment of the Apex Court in the case of K. Laxshmi vs. State of Kerala & Ors., reported in (2012) 4 SCC 115 [:2012 (2) PLJR (SC) 416] and in the case of Arup Das & Ors. Vs. State of Assam & Ors., reported Patna High Court CWJC No.8703 of 2013 (7) dt.26-11-2013 in (2012) 5 SCC 559.” In view of the fact that point in issue has already been set at rest by this Court, it would be difficult to record any contrary finding. Moreover, so far as 1st case i.e. C.W.J.C. No. 8703 of 2013 is concerned, the petitioner had participated in the aforesaid examination, but he did not qualify in the Main (Written) Examination and as such, at subsequent stage, they may not be allowed to raise such issue. Since the issue has already been decided by this Court in Dhananjay Kumar Mishra‟s case (supra), there is no reason to pass any other order, but to reject both the writ petitions. Both the writ petitions stand dismissed. (Rakesh Kumar, J.) Anay