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(Per: HONOURABLE THE CHIEF JUSTICE) Date: 19-05-2015
In this batch of Letters Patent Appeals, the common order dated 3.4.2014, passed by the Learned Single Judge in C.W.J.C. No.14965/13 and batch is challenged. The unsuccessful petitioners are the appellants. The matter pertains to the appointment to the post of Sub-Inspectors in the State of Bihar. Ever since the notification was issued on 21.9.2004 proposing to appoint 1510 Sub-Inspectors, virtually there was a spate of litigation. As a part of selection process, written examination was held and results were declared. A batch of writ petitions was filed raising the plea that the modal answers for the questions in the test paper were not correct. The Bihar Staff Selection Commission (for short „the Commission") itself realized that there were mistakes in the answers and on a re-evaluation of the answer scripts, 160 candidates, who were earlier selected, have been dropped. That, in turn, has given rise to filing of writ petitions by the aggrieved persons. It is not necessary to refer to the other details about that litigation, at this stage. Suffice it to say that the Commission published a list of 2149 candidates recommending for appointment. Ultimately, on 26.6.2009, the orders of appointment were issued.
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The writ petitions filed questioning the correctness of the answers were ultimately dismissed. Batch of Letters Patent Appeals filed against the same, were also rejected. The matter was taken to the Hon"ble Supreme Court in the form of S.L.P. (Civil) 20279 of 2009 and batch. On 2.2.2011, the said S.L.Ps. were heard by the Hon"ble Supreme Court. The number of petitioners in Special Leaves, who were agitating the issue, was found to be 223. On behalf of the State, it was represented that 299 posts of Sub-Inspectors remain vacant at that time, and in the examination to be held for those posts, the 223 persons who were unsuccessful, in the selection referable to the 2004 advertisement, would be permitted to appear by relaxing the age limits. An order was passed on that date taking note of the same. However, an impression was gathered by the Commission, as though the 223 candidates alone would be entitled to participate in the selection process for 299 posts, and other similarly situated candidates were not extended that benefit.
On 28.11.2011, the Hon"ble Supreme Court
clarified its order dated 2.2.2011 to the effect that in the written test, to be held for 299 posts, not only the 223 unsuccessful candidates, but also other similarly situated
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persons, apart from fresh candidates, shall be permitted to appear.
In the course of selections and appointment of candidates for 2149 vacancies, which included 1510 notified under advertisement dated 21.9.2004 and 639 vacancies that arose at a later stage, 67 candidates belonging to various reserved categories were denied appointment on the ground that their claim, as to social status is not acceptable. Those candidates filed writ petitions and relief was granted to them. The appointment of 67 persons was to result in the removal or displacement of equal number of candidates, in the bottom of the merit list of the respective categories. When the same was pointed out, a Bench of this Court observed that it would be open to the State to take necessary steps in accordance with the law, in respect of the candidates who were liable to be removed. The judgment of the Division Bench in this behalf was affirmed by the Hon"ble Supreme Court. It was mentioned that the observations contained in the last paragraph of the order passed by the High Court are reiterated with a rider that the same shall not be used for adversely affecting the rights of more meritorious candidates.
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There was some uncertainty, if not inconsistency, on the part of the State and the Commission as regards the implementation of the observations of this Court and the Hon"ble Supreme Court. At one stage, an attempt was made to continue the 67 persons who are to be displaced on account of the relief granted to equal number of candidates from reserved categories, but the same was dropped. When all this was going on, the State intended to issue an advertisement to fill up the 299 vacancies that were existing earlier and about 800 vacancies that arose later on. The appellants and other similarly situated candidates, (numbering about 223) whose S.L.Ps. were pending before the Hon"ble Supreme Court, took objection to this and wanted that a separate test be held exclusively for 299 vacancies. Their contention was accepted. The advertisement for 800 and odd vacancies were issued and even examination was conducted. In respect of 299 vacancies, advertisement was issued a bit later and the examination/written test is proposed to be held in a month or two.
Stating that there is acute shortage of Sub- Inspectors in the State, the Government and the Commission have taken a decision to appoint 67 candidates
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who were likely to be discontinued from service as a result of the implementation of the judgement of this Court. However, since the continuance of those 67 candidates was to result in excessive reservations, a decision was taken to appoint corresponding number of candidates from other categories, particularly, the unreserved category, from the merit list that was prepared with reference to the advertisement of the year 2004. The corresponding number emerged as 184. This resolution of the State was challenged in the present set of proceedings. The plea of the appellants was that the State Government cannot operate the merit list that was prepared with reference to the advertisement of the year 2004; and it cannot appoint more candidates than the number of posts advertised. Other similar contentions were also urged.
The State and the Commission opposed the writ petitions stating that the petitioners do not have any right to challenge the decision taken by the State to continue 67 candidates and to appoint 184 persons from the merit list and that the directions issued by the Hon"ble Supreme Court are being implemented in letter and spirit. Learned Single Judge dismissed the writ petitions. Hence ,these appeals.
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Extensive arguments are advanced by Shri Rajendra Prasad, learned Senior Counsel, Shri Chakrapani, and other advocates on record for the appellants and Shri Lalit Kishore, learned Principal Additional Advocate General and Shri Binod Kumar Kanth, learned Senior Counsel for the respondents, and we took note of the same. Introduction of the case, within the permissible limits of brevity, has been made in the preceding paragraphs. The recruitment of Sub-Inspectors pursuant to the advertisement issued in the year 2004 resulted in appointment of 2149 candidates in the year 2009. The litigation in relation to the said notification continues even now. In the S.L.Ps. filed by the appellants herein and other similarly situated candidates, the Hon"ble Supreme Court initially passed an order on 2.2.2011 which reads as under:-
"Leave is granted. These appeals emanate from a common judgment dated 7.7.2009 passed by the High Court of Judicature at Patna in L.P.A. No.305/2009 and 475/2009. We have heard the learned counsel for the parties. Mr. Ranjit Kumar, learned senior counsel appearing for the appellants submits that 2,149 candidates have already been selected for the posts of Sub Inspectors of Police in the State of Bihar. Mr. Gopal Singh, learned standing counsel for the State of Bihar submits that requisition for appointment of 299 posts of Sub Inspectors of Police through direct recruitment has been sent to the Staff Selection Commission.
In the peculiar facts and circumstances of these
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cases, we direct the Bihar Staff Selection Commission to hold fresh examinations for the 299 posts of Sub Inspectors of Police and only the appellants, who were writ petitioners before the High Court of Judicature at Patna, whose cases were adjudicated upon or are pending before the High Court (total 223 only as per the list given in Court by Mr. Ranjit Kumar, learned senior counsel) would be at liberty to appear in the physical and written examinations.
The schedule of examinations would be decided by the respondents and all those who pass the physical and written examinations would be appointed by the respondents and for the remaining posts of Sub Inspectors, a fresh advertisement would be issued by the Staff Selection Commission and appointments would be made in accordance with law.
We hope and trust that the entire process of fresh selection would be completed expeditiously, in any event, within six months from the date of communication of this order.
With these observations, these appeals are disposed of, leaving the parties to bear their own costs. All the pending I.As. are dismissed.
S.L.P. (C) Nos.25288-25289/2009 and
4283/2010:
Leave granted in all the matters.
These appeals are also disposed of in terms of the aforesaid order, leaving the parties to bear their own costs."
On the basis of this, the State was proceeding as though the written test shall be held only for 223 persons and not for other similarly situated persons. Doubt was also entertained as to whether the other eligible candidates who apply afresh can be permitted to compete for those posts. On an interlocutory application filed before it, the Hon"ble Supreme Court passed an order on 2.2.2011. The same was explained on 28.9.2011, as under:
… "Various applications have been filed by the
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applicants who are similarly situated with the appellants seeking permission to appear in the physical and written examination for appointment to the 299 posts of Sub Inspectors in terms of the aforesaid order. We have heard learned counsel for the parties. Applications seeking permission to file application for directions are allowed.
By the aforesaid order dated 2ndFebruary, 2011, we had permitted only 223 candidates to appear in the examination. But now, after perusing the applications and hearing the counsel for the parties, we deem it appropriate to permit all these applicants who are similarly situated and also all those candidates who are eligible, to appear in the examination for 299 posts of Sub Inspector of Police. Uniform standard would be made applicable to all the candidates and all the candidates appearing for the above post will have to undergo similar physical and the written examination.
With these observations and directions, all the applications are disposed of."
An advertisement has since been issued for filling up the 299 posts. The appellants are entitled to take part therein. The State has also clarified that the appellants and other similarly situated persons do not have to apply once again.
The subject-matter of the writ petitions and the present set of appeals was the appointment/retention of 67 Sub-Inspectors who were earlier appointed, but were facing retrenchment, if not removal, on account of equal number of meritorious candidates being appointed in compliance with the directions issued by this Court. It has already been mentioned that the 67 candidates belonging to various
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reserved categories were denied appointment on suspicion of their social status and once they were found to be eligible, they became entitled to be appointed. Regarding the possibility of equal number of candidates being removed, the Division Bench left it open to the State to take necessary steps in this behalf. The S.L.P. filed by the State of Bihar against the judgment of this Court was dismissed by the Hon"ble Supreme Court on 12.10.2012. As regards the steps to be taken in respect of 67 candidates who are facing removal, the Supreme Court observed as under:
…"The special leave petitions are accordingly dismissed. However, the observation contained in the last paragraph of order dated 21.4.2011 passed by the High Court is reiterated subject to the rider that the same shall not be used for adversely affecting the rights of more meritorious candidates"…
What the Hon"ble Supreme Court held was that in case it is decided to continue the 67 candidates who were already appointed, it shall be ensured that other meritorious candidates are not affected.
The State was very much entitled to discontinue or remove the 67 candidates who were in the bottom of the merit list of the respective categories. However, there was acute shortage of Sub-Inspectors since hardly any selections were made since the year 2004 and the entire
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issue was caught in the litigation of one kind or the other. The shortage was such that in many criminal cases, the Investigating Officers were/are not being examined as witnesses. The deterioration of law and order is another issue. The recruitment process initiated would take at least 2 to 3 years to materialize, if the litigus tendency of the candidates, is an indication. Under these circumstances, the State has taken a decision to continue the 67 candidates, though there was some initial wavering, in this behalf. If those candidates are to be continued, the percentage of reservation would increase. The only solution to this problem was to appoint the corresponding number of candidates from unreserved category. That worked out to 184 candidates from unreserved category. Obviously, they had to be picked up from the merit list prepared, with reference to the advertisement of 2004; and that was done. It may be true that the merit list prepared with reference to an advertisement or notification would be operative for a limited period, and by and large, the list can be operated only for the number of vacancies that are notified. In the instant case, however, though the advertisement was issued in the year 2004, the actual appointments were made only in the year 2009. Ever since
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then, no other selection has taken place. The appointment of 67 candidates on the basis of the orders passed by this Court in the recent past was only from that list. The judgment of this Court in this behalf was upheld by the Hon"ble Supreme Court as recently as on 12.10.2012. Therefore, the argument that the panel has lapsed, does not hold water.
Other objection is about the number of vacancies. It is true that a Division Bench of this Court held that the appointments in respect of an advertisement or a notification cannot exceed the number mentioned therein. However, it is difficult to treat the same as an absolute principle of law. Much would depend upon the text of advertisement, the circumstances that arose before or after the selection process, and the nature of orders that are passed by the competent courts from time to time in relation to the selections. In the instant case itself, the advertisement was for 1510 posts of Sub-Inspectors. However, by the time the selection process has been completed, 639 more vacancies have arisen and all of them i.e. 2149 were filled up. The appellants did not raise any objection to this. Added to that, 67 candidates have been appointed thereafter. Once the figure that was mentioned in
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the advertisement lost its significance, be it on account of passage of time or the orders passed by the Courts, the appellants cannot make out any genuine grievance out of it. More important is the fact that some of the appellants are themselves going to be beneficiaries of the exercise, which is challenged in the writ petition. At any rate, it is only the fresh candidates who can complain of operation of the old select list for subsequent vacancies, since their chances of being selected would get diminished. The appellants do not belong to that category.
Viewed from any angle, we do not find any basis to interfere with the order under challenge. We, accordingly, dismiss the Appeals.
Interlocutory application, if any, stands disposed of.
There shall be no order as to costs.
(L. Narasimha Reddy,CJ) (Sudhir Singh, J)
K.C.jha/-
A.F.R.
U