IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.919 of 2011
In
CWJC No. 4361 of 2011
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1. Subodh Kumar, Son of Sri Rampati Pandit, resident of Raja Bunglow,
near Jawahar Talkies, P.O. & P.S. Jhumari Tilaiya, District Koderma-
825409 (Jharkhand).
2. Md. Safi Akhtar, Son of late Md. Mojibur Rahman, resident of Said
Manzil, Village & P.O. Khiriyawan, P.S. Madanpur, District-
Aurangabad (Bihar).
3. Kanhaiya Prasad, Son of Sri Ram Girdhari Ram, resident of Village &
P.O. Jamuaon, Via Jitora, District Bhojpur.
4. Gupteshwar Prasad, Son of Sri Sahbu Bedia, resident of village and P.O.
Ordana, P.S. Peterwar, District-Bokara (Jharkhand)
5. Jivan Kumar Bhagat, Son of late Mahali Bhagat, resident of Village
Madai, P.O. Bayasi, P.S. Chanhi, District Ranchi (Jharkhand).
6. Amitabh Singh, Son of Sri Kamal Narayan Singh, resident of Flat No.
59, Block No.2, Sector No.6, MIG Housing Colony, Bahadur, Patna.
.... .... Appellant/s
Versus
1. The State of Bihar through the Principal Secretary, Road Construction
Department, Old Secretariat, Government of Bihar, Patna.
2. The Principal Secretary, Road Construction Department, Old
Secretariat, Government of Bihar, Patna.
3. The Principal Secretary, General Administrative Department,
Government of Bihar, Old Secretariat, Patna
4. The Principal Secretary, Rural Development Department, Government
of Bihar, Patna
5. Bihar Public Service Commission through its Secretary, Bailey Road,
Patna-800 001.
... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Bindhyachal Singh, Advocate
Patna High Court LPA No.919 of 2011 (3) dt.04-07-2011
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For the Respondent/s : Mr. Binit Kumar, A.C. to G.A.-9 with
Mr. K.B. Nath, with
Mr. S.C. Jha with
Mr. Durga Naraya, Advocates
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
3 04-07-2011 This appeal under Clause X of the Letters Patent is
preferred by the writ petitioners against the order dated 9 th March
2011 made by the learned single Judge in above CWJC No.4361
of 2011.
According to the appellants, pursuant to an
advertisement published in the year 1996, the appellants had
applied for appointment as Assistant Engineer (Civil) in Rural
Engineering Organization under the State of Bihar. After due
selection process, the appellants were selected. Under
communication dated 6th May 2002 addressed by the Bihar Public
Service Commission, the names of the appellants and the others
were recommended for appointment on 200 vacancies advertised.
Nevertheless till the date the appellants are not issued
appointment orders. As the appellants were not appointed for
many years, they approached this Court in above CWJC
No.4361 of 2011 filed under Article 226 of the Constitution.
The learned single Judge has dismissed the writ petition
on the ground of abnormal delay. Therefore, the present appeal.
Learned Advocate Mr. Vindhyachal Singh has appeared
for the appellants. He has submitted that pursuant to the
Patna High Court LPA No.919 of 2011 (3) dt.04-07-2011
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advertisement published for 200 vacancies the appellants were
selected for appointment on the said vacancies. Once the Bihar
Public Service Commission had recommended the names of the
appellants for appointment as Assistant Engineer (Civil), the State
of Bihar was under an obligation to appoint the appellants as
Assistant Engineer (Civil). Reliance is placed on a
communication dated 7th June 1977 addressed by the Government
of Bihar to all its departments. The aforesaid communication
contains a general instruction in respect of recruitment in
different States Services pursuant to the Combined Competitive
Examination conducted by the Bihar Public Service Commission.
The said instructions were issued for prompt appointment of
selected candidates. The Government has framed a time schedule
to be followed by the Commission and concerned department of
the Government. Clause 13 of the said instructions provides :
"Number of vacancies once
communicated to the Commission shall not be
altered".
Mr. Vindhyachal Singh has submitted that the aforesaid
instructions are still in operation. The State Government was,
therefore, under an obligation to make appointment on 200
vacancies advertised by the Bihar Public Service Commission.
The Bihar Public Service Commission, had after due selection
procedure, recommended 199 candidates for appointment as
Assistant Engineer (Civil). Out of the said recommendation only
133 appointments were made leaving the remaining 66 selected
candidates. He has submitted that this was done in view of
bifurcation of the State of Bihar under the Bihar Re-organization
Act, 2000. Some of the parts of Bihar State were separated to
Patna High Court LPA No.919 of 2011 (3) dt.04-07-2011
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form the State of Jharkhand. Pursuant to the said bifurcation, the
State of Bihar decided to fill in 2/3rd of the vacancies advertised.
Mr. Singh has also relied upon the various notings made on the
File in respect of appointment of the appellants. He has submitted
that the matter is under continuous consideration by the State
Government. This being the continuous cause of action, the
petition could not have been dismissed on the ground of delay
alone. Mr. Singh has also relied upon the judgment of this Court
in the matter of “State of Bihar and Others Vs. Arun Kumar
[L.P.A. No.567 of 2005]” decided on 31st July 2005 by a
Division Bench of this Court [Coram : J.N. Bhatt, C.J. and
Shashank Kr. Singh, J] . In the said matter this Court directed
the State of Bihar to fill in the posts of Block Welfare Officer
advertised prior to the Bihar Re-organization Act, 2000. 1/3rd
of the vacancies were not filled in on account of bifurcation of the
State of Bihar and formation of the State of Jharkhand.
At the outset we must note that the instructions issued in
1977 with respect to the recruitment to different state services
pursuant to the Combined Competitive Examination conducted
by the Bihar Public Service Commission are indeed binding upon
the authorities. However, the said instructions would apply in
normal circumstances. In the present case because of unforeseen
circumstance of bifurcation of the State of Bihar, the said
instructions could not be followed in letter and spirit. On account
of bifurcation of the erstwhile State of Bihar, the State lost part of
its territory and also the manpower. Keeping in view the reduced
area and the manpower the reorganized State of Bihar decided to
make appointment on 2/3rd of the vacancies advertised. The
above referred 1977 instructions are mere executive instructions
Patna High Court LPA No.919 of 2011 (3) dt.04-07-2011
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and are not statutory provisions which can not be deviated from
in any circumstances. Further by mere selection and
recommendation, the appellants did not acquire an indefeasible
right to appointment.
We agree with the learned single Judge that the claim of
the appellants made in the year 2011 for appointment on the basis
of the recommendations made by the Bihar Public Service
Commission in the year 2002 was grossly belated and was rightly
rejected on the ground of delay. The explanation that the matter is
still under consideration and gives continuous cause of action is
not palatable. Even the notings produced on the record suggest
that since 2005 the matter is lying dormant. The claim made by
the appellants was indeed liable to be rejected on the ground of
delay and laches.
No case for interference is made out. The appeal is
dismissed in limine.
(R.M. Doshit, CJ)
(Birendra Prasad Verma, J)
M.Rahman/-