IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12507 of 2011
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Ashutosh Kumar Roy, son of late Anand Mohan Roy, R/o House No. 159/F,
Sri Krishna Puri, P.S. – Sri Krishna Puri, P.O. – G.P.O., District – Patna
(Bihar)
…. …. Petitioner
Versus
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Old
Secretariat, Patna,
2. The Principal Secretary, Department of General Administration, Govt.
of Bihar, Patna, earlier known as Department of Personnel &
Administrative Reforms, Govt. of Bihar, Patna,
3. The Bihar Public Service Commission through its Chairman,
4. The Secretary, Bihar Public Service Commission, Bailey Road, Patna,
5. The High Court of Judicature at Patna in its Administrative Side through
the Registrar General, Patna High Court, Patna
…. …. Respondent/s
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Appearance :
For the Petitioner/s : Mr. Ashutosh Kumar Roy (In person).
For the State : Mrs. Nivedita Nirvikar, GP 3 and
Mr. Deepak Kumar, AC to GP 3.
For the BPSC : Mr. Sanjay Pandey, Advocate.
For the High Court : Mr. Lalit Kishore, AAG 1.
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA
CAV ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
3. 18-08-2011 This petition under Article 226 of the Constitution is
filed by one Ashutosh Kumar Roy, an Advocate by profession.
The matter at dispute is the selection of Munsifs
pursuant to the 24th Bihar Judicial Service Competitive
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Examination conducted by the Bihar Public Service Commission
(hereinafter referred to as “the Commission”). Pursuant to the
advertisement published on 3rd September 1990; after competitive
examination and the interview a merit list was prepared and
appointments were made in 1994.
The grievance of the petitioner is peculiar. The
petitioner claims that as on 31st December 1994, 327 vacancies in
the cadre of Munsif were available; the Commission was,
therefore, obliged to prepare a select list of 327 candidates and to
recommend 327 candidates for appointment as Munsif. The
second prong of the grievance is in respect of abolition of 50 posts
of Munsif to create 40 posts of Sub Judge.
Under the aforesaid advertisement published on 3 rd
September 1990, the Commission invited applications from
eligible candidates for the 24th Bihar Judicial Service Competitive
Examination for 7 vacancies. The advertisement specifically
mentioned that there may be alteration in the vacancy position.
After holding competitive examination, a notice was published on
7th October 1991 indicating that the recruitment would be made for
245 existing vacancies. The notice also indicated the extent of
reservation for various categories. Pursuant to the said
advertisement, the examination was conducted, interview was
held, select list was prepared and appointments were made.
Evidently, the petitioner was not selected for appointment as
Munsif.
Feeling aggrieved, the petitioner filed CWJC No.
2193 of 1995 under Article 226 of the Constitution. The said
petition was dismissed on 19th May 1995 on the ground that the
petition raised disputed questions of fact. One more writ petition,
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being CWJC No. 5511 of 1994, was filed by one Rajesh Kumar
Jha & others in the same subject matter. The present petitioner also
joined in the said writ petition. The said writ petition came to be
dismissed by this Court (Coram: Shiva Kirti Singh, J and
Chandra Mohan Prasad, J) on 6th February 2006. The challenge to
the said judgment before the Hon’ble Supreme Court failed. The
petition for Special Leave to Appeal (Civil) No. 15184 of 2006
was dismissed in limine.
Now, after five years the petitioner has raked up the
same issue again to challenge the filling up of 245 vacancies
against 327 vacancies available as on 31st December 1994 and the
abolition of 50 posts of Munsif.
The petitioner Ashutosh Kumar Roy has appeared in
person. He has submitted that the advertisement published by the
Commission categorically specified that the vacancy position may
change. As the merit list was prepared in 1994, the vacancy as on
31st December 1994 ought to have been filled up by operating the
merit list of the 24th Bihar Judicial Service Competitive
Examination. He has also submitted that pursuant to the 23rd Bihar
Judicial Service Competitive Examination, the vacancies as on the
last date of the interview were filled up on the basis of the result of
the said examination; the same treatment ought to have been given
in respect of the 24th Bihar Judicial Service Competitive
Examination. He has also challenged the action of the State
Government in abolishing 50 posts of Munsif. He has submitted
that all along no Court has considered the petitioner’s grievance in
respect of the abolition of 50 posts of Munsif.
In support of his submission, the petitioner has relied
upon the judgments of the Hon’ble Supreme Court in the matter of
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Sandeep Singh Vs. State of Haryana & Anr. [(2002) 10 SCC
549] and of this Court in the matters of Jyoti Kumar Tripathi Vs.
State of Bihar & Or. [1995 (1) PLJR 483] and of Ashok Kumar &
Anr. Vs. The State of Bihar & Ors. [2010 (1) PLJR 734].
The petition is contested by the respondents. Learned
Additional Advocate General Mr. Lalit Kishore has appeared for
the High Court. He has submitted that the petition is barred by
principle of res judicata. The very issues agitated in the present
petition were agitated in the earlier writ petitions, CWJC No. 5511
of 1994 & CWJC No. 2193 of 1995. In the present petition the
petitioner has raised a stale claim and that since 24th Bihar Judicial
Service Competitive Examination the Commission has conducted
25th & 26th Bihar Judicial Service Competitive Examinations. The
27th and 28th Bihar Judicial Service Competitive Examinations are
in the offing. Therefore also, the present petition needs to be
dismissed.
In the matter of Sandeep Singh (Supra), a similar
issue was raised in respect of recruitment for Haryana Civil
Services (Executive Branch). The advertisement in question
indicated the number of vacancies with stipulation that the
vacancy position may change. The Hon’ble Court held, “The
vacancies available in any particular service till the date of
interview at least should be filled up from the very same
examination unless there is any statutory embargo for the
same.” It may be noted that in the present case also the
advertisement did stipulate that the vacancy position may change.
Accordingly, by a subsequent notice published on 7 th October
1991 the precise vacancy position (245 vacancies) was notified.
Hence, in our view, there was no scope for alteration thereafter.
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The matter of Jyoti Kumar Tripathi (Supra) arose
from the proceeding filed under the Contempt of Courts Act. The
Court held that as directed by the order made on the writ petition,
the Bihar Public Service Commission was required to send as
many names as the number of vacancies available as on the date of
the interview.
In the matter of Ashok Kumar (Supra), the question
was that of effect of change in the reservation policy made with
retrospective effect upon the recruitment process already
completed. The matter before us does not relate to the question of
reservation or amendment to the substantive or procedural rule
pending the recruitment process. This judgment, therefore, has no
applicability to the facts of the present case.
We do agree with the learned Additional Advocate
General Mr. Lalit Kishore that the present petition is barred by the
principle of res judicata and that the petition raises a stale claim.
Nevertheless, we do note that the advertisement
published by the Commission on 3rd September 1990 reserved the
liberty to the Commission to alter the number of vacancies. In
exercise of the said liberty the Commission published the notice
dated 7th October 1991 to notify that the recruitment would be
made for 245 existing vacancies. Thereafter, the Commission had
no power or authority to alter the vacancy position. The said
advertisement did not confer a right upon an applicant to assert
how many vacancies shall be filled up pursuant to the said
recruitment process. Besides, it is settled law that the number of
vacancies advertised only can be filled up pursuant to a particular
recruitment process. The vacancy arising after the date of the
advertisement cannot be filled in by the same recruitment process
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unless the intention to do so is mentioned in the advertisement
expressly or by necessary implication. The claim of the writ
petitioner that as the interviews were held in 1994, all vacancies
existing as on 31st December 1994 shall be filled in by the same
recruitment process is contrary to the settled law and is totally
misconceived.
Challenge to the abolition of 50 posts of Munsif is
based on a wrong notion that the petitioner has a right to interfere
in the matter. We must note that the abolition or creation of posts
is the exclusive prerogative of the State Government. In the
present case, it appears that the State Government had abolished
50 posts of Munsif and as against it created 40 posts of Sub Judge.
Obviously, this must have been done keeping in view the
requirement of the number of Judicial Officers at various levels of
the State Judiciary. The petitioner has no locus standi to challenge
the abolition or creation of posts in the State Judicial Service. The
challenge is devoid of merits.
For the aforesaid reasons, the petition is dismissed in
limine.
Having regard to the history of litigation, we are of
the opinion that the repeated attempt of the petitioner to rake up
imaginary grievances amounts to abuse of process of law. The
petitioner is, therefore, required to be visited with exemplary cost.
However, the petitioner being a member of the legal fraternity we
do not impose cost upon him.
(R.M. Doshit, CJ)
NAFR (Birendra Prasad Verma, J)
Dilip.