IN THE HIGH COURT OF JUDICATURE AT PATNA
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C.W.J.C. No. No.16567 of 2004
——————
In the matter of an application under Articles 226 of
the Constitution of India.
———
Sushil Chand Srivastava, son of late Pyare Mohan Lal,
R/O village Garhia, P.S. Rosra, District- Balia
(U.P.)…………………………………………………..Petitioner.
Versus
1. The State Of Bihar, through the Secretary, Personnel and
Administrative Reforms Department, Bihar, Patna
2. The High Court of Judicature at Patna, through its
RegistrarGeneral, Patna High Court Patna.
3. The Registrar General, High Court of Judicature at Patna,
Patna High Court, Patna
4. The Bihar Public Service Commission, Bailey Road, Patna
through its Secretary
5. The Chairman, Bihar Public Service Commission, Bailey
Road, Patna
6. Rnjeet Kumar son of late Jageshwar Prasad, R/O Mohalla
Nimtalla Chowk, P.S. Munger, District-Munger, at present
posted as Munsif, civil court Araria.
7. The Addl. Secretary, Personnel and Administrative
Reforms , Govt. of Bihar, Patna…………………Respondents
With
C.W.J.C. No. 16634 of 2004
——–
1 Niraj Kumar Roy, son of late Mangar Prasad Sharma,R/o
Mohalla Ranighat, P.S. Sultanpur, District- Patna
2. Panna Lal, son of Shri Borai, R/o Village-Shahbarepur,
P.S. Zafarabad, District- Jaunpur ( U.P.)
3. Sushil Chand Srivastava, son of late Pyare Mohan Lal, R/o
Village- Garhia, P.S. Rosra, District- Balia ( U.P.)
……………………………………………………………. Petitioners
Versus
1 The State Of Bihar, through the Secretary, Personnel and
Administrative Reforms Department, Bihar, Patna
2
2.The High Court of Judicature at Patna, through its Registrar
General, Patna High Court, Patna.
3. The Registrar General, Patna High Court, Patna
4. The Bihar Public Service Commission, Bailey Road,
Patna, through its Secretary.
5. The Chairman, Bihar Public Service Commission, Bailey
Road, Patna
6. Sanjay Kumar son of name not known, R/o Mohalla-
Gajaradh, Ward No.1, Sasaram, P.S. Sasaram, District-
Rohtas, at present posted as Munsif Civil Court,
Aurangabad
7. Shashidhar Vishwakarma, son of name not known, r/o
Mohalla- Mahaddipur, P.S. Kanshi Bazar, District-
Munger, at present posted as Munsif, Civil Court,
Begusarai
8. Md. Haribullah Ansari, son of name not known, r/o
Mohalla- Muradpur, Darji Tola, P.S. Pirbahore, District-
Patna, at present posted as Munsif, Civil Court,
Biharsharif, Nalanda.
9. Miss Sushma Kashyap, D/o Shri R.B. Kashyap, Kashyap
Building, Mohalla Bal Krishnaganj, P.S. Guljarbagh,
District- Patna, at present posted as Munsif, Civil Court,
Jehanabad
10 Mirtunjay Kumar Singh, son of name not known, r/o
village- Padawara, P.S. – Tarapur, District- Munger, at
present posted as Munsif, Civil Court Begusarai.
11. Raj Kumar Prasad, son of late Narayan Prasad, r/o
village- Bidachhawai, P.S. Kiul (R.S.), District-
Lakhisarai, Pin-811310. at present posted as Munsif,
Civil Court, Khagaria
12. The Deputy Secretary, Personnel and Administrative
Department, Govt. of Bihar, Patna…………. Respondents
with
C.W.J.C. No. 3034 of 2009
——-
1. Ramesh Kumar, Son of Kailash Prasad, Resident of
Village- Umarpur, P.S. Kotwali, Jaunpur City, District-
Jaunpur ( U.P.) ……………………………………. Petitioner
Versus
1. The State Of Bihar through the Secretary, Personnel and
3
Administrative Reforms Department, Bihar, Patna.
2.The Registrar General, High Court of Judicature at Patna,
Patna High Court, Patna.
3, The Registrar General, High Court of Judicature at Patna
4. The Bihar Public Service Commission, Bailey Road,
Patna through its Secretary
5 The Chairman, Bihar Public Service Commission,
Bailey Road, patna.
6. Sanjay Kumar, Son of name not known, r/o Mohalla-
Gajaradh, Ward No.1, Sasaram, P.S. Sasaram, District-
Rohtas, at present posted as Munsif, Civl
Court,Aurangabad
7. Shashidhar Vishwakarma, Son of name not known, r/o
Mohalla- Mohaddipur, P.S. Kanshi Bazar, District-
Munger, at present posted as Munsif, Civil Court,
Begusarai
8. Mohd. Habbullah Ansari, son of name not known, r/o
Mohalla- Muradpur, Darji Tola, P.S. Pirbahore,
District- Patna, at present posted as Munsif, Civil
Court, Biharsharif, Nalanda
9. Miss Sushma Kashyap, D/o Shri R.B. Kashyap,
Kashuyap Building, Mohalla Bal Krishnaganj, P.S.
Guljarbagh, District- Patna, at present posted as
Munsif, Civil Court, Jehanabad
10. Mirtunjay Kumar Singh, son of name not known, R/o
village- Padawars, P.S. Tarapur, District- Munger, at
present posted as Munsif, Civil Court Begusarai.
11. Raj Kumar Prasad, Son of late Narayan Prasad, r/o
Village- Bidachhawai, P.S. Kiul ( R.S. ), District-
Lakhisarai, at present posted as Munsif, Civil Court-
Khagaria…………………………………………. Respondents
———
For the petitioners :- Mr. Siya Ram Sahi, Advocate
For the State :- Mr. Sanjay Prakash Verma
A.C. to G.A. 3
( C.W.J.C. Nos 16567of 2004 and C.W.J.C. No.16634/04)
———
For the petitioners:- Mr. Siya Ram Sahi, Advocate &
Mr. M. Mauli, Advocate.
For the State :- A.C. to AAG-14
4
For the B.P.S.C. :- Mr. P.N. Sahi & Mr. Sanjay Pandey
For Patna High Court :- Mr. Jitendra Singh, Sr. Advocate
For private Respts. :- Mr. Ajay, advocate.
PRESENT
THE HON’BLE MR. JUSTICE SHIVA KIRTI SINGH
THE HON’BLE MR. JUSTICE SHIVAJI PANDEY
—————
Shiva Kirti Singh, J The writ petitioners of all the three writ petitions had
taken the 24th Judicial Service Examination conducted by the
Bihar Public Service Commission ( hereinafter referred to as “the
Commission”) pursuant to an advertisement in the year 1990.
They have prayed for quashing the notification no 4691 dated
18.8.2001 issued by the Personnel and Administrative Reforms
Department of State of Bihar contained in annexure-5, whereby 70
candidates were appointed to the post of Munsif in the
general/open category on the basis of their position in the merit
list. The challenge is confined to the appointment of private
respondents 6 to 11, who are at serial nos. 16,20,48,65,66 and 67
of annexure-5 to C.W.J.C. No. 16634 of 2004. Since the cases of
all the petitioners in these three writ petitions are said to be
similar, for the sake of convenience, the facts have been taken,
wherever necessary from the records of aforesaid writ petition
which was argued as the main case. The petitions have made a
5
further prayer for direction to the respondents to appoint them on
the post of Munsif from out of merit list of general category
candidates.
2. Fortunately, the facts are not in dispute. The initial
vacancies advertised by the Commission were seven but with a
stipulation that numbers might be increased. Subsequently, the
number of vacancies was increased to 245 through another
advertisement dated 7-10-1991. The State of Bihar sought to
introduce reservation for some backward categories, beyond the
reservation provided under the Bihar Civil Services (Judicial
Branch ) ( Recruitment ) Rules,1955 ( hereinafter referred to as the
“Rules”) which provide reservation only for S.C. and S.T.
category candidates, through an Ordinance of 1991, which was
later on converted into Act 3 of 1992. By a letter bearing no.
13069 dated Ist. October,1991 the State Government took the
stand that the provisions in the said Act for reservation to various
categories such as Most Back-ward class, Extremely Back-ward
class and women is to be applied to the recruitment through 24th
Judicial Competitive Examination. Accordingly, in the
advertisement dated 7-10-1991 the vacancies were increased to
245, and were categorized as ;- General -123, S.C. -34, S.T. -25,
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M.B.C.- 29, B.C.- 20, E.B.C.-7 and Women-7.
3. The provisions in the Ordinance were subsequently
incorporated in the Act providing for reservation in the Judicial
Service also and these were challenged through C.W.J.C. No.
7619 of 1991. That writ petition was allowed on 6.8.1993 vide
Judgment reported in 1993(2) PLJR (Deepak Kumar Singh Vrs.
State of Bihar) which was challenged by the State of Bihar
through SLP ( Civil ) No. 16476 of 1993 before the Supreme
Court. The Court allowed the selection process to go on but stayed
appointments vide interim order dated 13.5.94 which was partly
modified on 16.5.95. The matter remained pending there for
sometime but ultimately the said S.L.P. leading to Civil Appeal
No. 9072/1996 ( State of Bihar Vrs. Bal Mukund Sah) was
dismissed by the Supreme Court on 14-3-2000.
4. It is not in dispute that on its administrative side the
High Court by letter dated 18-3-94 advised the Commission to fix
the cut off marks at 45% for the general candidates and at 35% for
S.C./S.T. candidates, with further stipulation that candidates not
more than three times the number of vacancies be called for
interview and for that purpose the qualifying marks may be raised.
Such advice was in accordance with Rule 15 of the Rules.
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4. The result of written examination was published on 18-
4-1994 in which 539 candidates of different categories were
declared qualified for the viva-voce test. In this list the number of
general category candidates was 377 at cut- off marks of 473,
whereas 162 candidates were shown qualified for different
reserved categories viz. S.C. -66, S.T. -2, M.B.C.-20, B.C.-71 and
Women-3. On 9th May, 1994 the Commission published a list of
195 successful candidates which included 123 candidates of
general category and 72 of reserve category which included 38
O.B.C. and 34 S.C. The final result dated 16-5-94 is annexure-1
to the writ petition.
5. On account of interim order passed by the Hon’ble
Supreme Court in the connected SLP on 13-5-1994, no
appointment could be made till that order was modified on 16-5-
95 permitting appointment of the selected candidates only for
filling up the general category posts but subject to re-
determination of their seniority and subject to result of the Special
Leave Petition. Appointment to reserved posts was kept stayed
with certain conditions relating to determination of seniority, if
reservation was ultimately upheld. The appointment of 123
candidates of General Category was made by notification dated
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30-11-1995.
6. After dismissal of the appeal by the Supreme Court on
14-3-2000,the Personnel Department of the State Government by
letter no. 6749 dated 18-8-2000 ( Annexure-2) conveyed the
decision of the State Government in the mater to the Commission.
The decision was that in the light of the Judgment of the Supreme
Court no appointment was to be made in the Bihar Judicial
Service from back-ward categories, 34 vacancies for the
Scheduled caste may be filled up from the candidates of that
category recommended vide letter no. 158 dated 16-5-94
(annexure-1); the sole S.T. candidate recommended may be
appointed against one of the 24 vacancies for the Scheduled Tribes
but the rest 23 vacancies were to be carried over as per the
provisions in the Act 3 of 1992 for three recruitment years; and
against the 64 other reserved vacancies, appointment may be made
on the basis of merit from general category. It was pointed out
that two persons namely Ranjit Kumar and Ashok Kumar Gupta
who were candidates belonging to the Back-ward category, had
already been appointed earlier because of recommendation made
by the Commission of 9 candidates ( on merit ) through letter no.
606 dated 28-6-97 and their applications were not being returned
9
with applications and papers of other backward category
candidates. It was emphasized that for the remaining vacancies
which were to be treated as vacancy in general category, the
recommendation should be on the basis of merit lists prepared in
respect of 24th Judicial Service Examination.
6. It is further not in dispute that the direction to carry over
vacancies reserved for Scheduled Tribes was challenged through
C.W.J.C. No. 8655 of 2000 and the writ petition was allowed on
24-1-2001. The particular direction for carrying over the 23
S.T.vacancies was quashed with the direction to act in accordance
with Rule-20 which provides for filling up the unfilled reserved
vacancies of S.T. and S.C. categories with qualified candidates
from the general merit list.
7. The Commission made further recommendation to fill
up the available vacancies treating them to be general category and
accordingly appointments were made on the basis of further
results prepared on the basis of merit in accordance with Rule 19
and published on 1.1.2001 ( Annexure-3) for 64 candidates and
on 17-5-2001 ( Annexure-4) for 23 candidates. This included the
appointments of private respondents on the basis of aggregate
marks obtained by them in the viva voce test and in the written
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examination as per provisions in Rule 19 of the Rules.
8. It is useful to notice at this stage that a batch of writ
petitions were preferred by general category candidates who were
not in the list of 377 general category candidates qualified for viva
voce test on account of cut off marks at 473 for the general
category. They challenged the result of 64 further general
category candidates published on 1-1-2001. Those writ petitions
were finally dismissed by judgment dated 25-9-2001 reported in
2001 (4) PLJR 276 ( Rameshwar Pati Tripathi Vrs. State of Bihar).
In that case the basis of challenge was that even if the aggregate
marks of some candidates, who had faced viva voce test as
reserved category candidates justified their inclusion in the final
merit list, there were at least three such candidates who had less
marks in the written examination than the cut-off mark for the
general cantegory candidates qualified for viva voce test. The
judgment shows that all aspects of the controversy were
considered in detail and it was finally held that though three of the
petitioners might have a hypothetical chance to appear at the viva
voce test but it would not be just and proper to reopen the viva-
voce tests and interfere with the impugned recommendations
merely because some of the petitioners had a possible chance of
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facing Viva-voce test for selection, particularly when the
recruitment process was completed pursuant to the interim orders
of the Supreme Court.´ The Court further held that the persons
from the reserved category were called for viva -voce test bona
fide and as per the terms of the advertisement and although this
Court had held that the reservation for other backward category
was not permissible, the S.L.P. preferred by the State was admitted
and the Supreme Court passed an interim order permitting
selection process to be completed.
9. Respondent nos. 6 to 11 were recommended by the
Commission on 17-5-2001 and subsequently vide notification
dated 18-8-2001 ( annexure-5) they have also been appointed
along with others on the basis of aggregate marks obtained by
them. They were posted as Munsif to different Civil Courts by
notification dated 18-8-2001 and are working since last ten years.
10. On hearing the parties, it is found that the main
challenge to the selection and appointment of respondents 6 to 11
is on the same ground as was raised by the petitioners in the case
of Rameshwar Pati Tripathi Vrs. State of Bihar (supra) which was
rejected by the judgment reported in 2001 (4) PLJR 276 (supra).
It was highlighted that in the written test they had secured less
12
than 473 marks which was the cut-off mark for general category
candidates and hence they should not have been permitted to take
the viva voce test as candidates from the general category. It is
not in dispute that they faced the selection process including viva
voce test on account of terms of advertisement and interim order
of the Apex Court to continue with the selection process. It is also
not in dispute that their aggregate marks are between 571 to 540
and are more than aggregate marks obtained by the petitioners.
On facts it is clear that the case of the writ petitioners in the case
of Rameshwar Pati Tripathi ( supra) was superior because they had
not been given the chance to appear in the viva voce test but the
petitioners in the present cases have actually faced the viva voce
test and in aggregate they have secured lesser marks.
11. The main argument advanced on behalf of petitioners
is that Rule 17 has been violated because the Commission was
required to arrange for viva voce test of the candidates on the basis
of marks obtained at the written examination. According to them
if that had been done, then there was a chance that the respondents
may not have qualified for the viva voce test and hence their result
and selection deserves to be quashed.
12. The main features of the case have already been noticed
13
above and it is evident that the Commission arranged for viva
voce test on the basis of marks obtained at the written
examination, while keeping in view the provisions for reservation
in Act 3 of 1992. The action of the Commission was bona fide and
while the matter was pending before the Supreme Court, there
was a direction to complete the recruitment process. On that basis
the viva voce test was conducted and after the final judgment of
the Supreme Court, the State Government conveyed its decision to
the Commission for recommending required number of candidates
on the basis of merit list so that the reserved seats could be filled
up with general category on the basis of merit ( aggregate marks).
In the circumstances, no fault can be found with the action of the
State Government or the Commission or on the part of private
respondents. It has rightly been submitted by the State that the
basic issue remains the same as already finally decided in the
case of Rameshwar Pati Tripathi (supra) and there is no good
reason for interfering with the recommendations and appointments
of the respondents when no interference was made on similar
ground long back in the year 2001.
13. On consideration of the rival submissions and the relevant
facts, we are of the considered view that there is no justification to
14
interfere with the appointment of the private respondents on the
post of Munsif pursuant to orders of appointment contained in
annexure-5 dated 18th August, 2001. All the writ petitions were
argued on the basis that similar issues are involved in these cases,
hence they all shall stand dismissed by this common judgment.
There shall be no order as to costs.
( Shiva Kirti Singh, J.)
Shivaji Pandey,J, I agree
( Shivaji Pandey, J)
Patna High Court, Patna
Dated the 9th August, 2011.
Naresh, AFR