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PETITIONER: BIHAR PUBLIC SERVICE COMMN. & ANR.

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT:       22/11/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                      J U D G E M E N T      PATTANAIK, J.      Leave granted.      This appeal  by special  leave is  directed against the judgement of the Patna High Court dated 26th September, 1994 passed in CWJC No. 379 of 1993.      The short  facts of  the case  are that the Bihar State Subordinate Services  Selection Board was constituted by the Government of  Bihar  on  20th  April,  1981  for  selecting candidates and  recommending their names to various posts in class-III in  various departments of the Government. On 13th May, 1987  the said  Selection Board issued an advertisement inviting  applications   from  eligible  candidates  is  the prescribed proforma  and the  last date  for receipt  of the applications was  6th June,  1987.  The  Board  conducted  a written examination on 27/28th February, 1988 and the result of the  written exhumation was announced on 7th April, 1991. Candidates were required to appear for physical test on 21st April, 1991.  A list of 199 successful candidates was placed on the  Notice Board on 17th May, 1991. Out of the said list names of  26 persons were recommended for being appointed as Assistant Jailor  to the  Inspector General, prisons on 17th July, 1991.  The Government  of Bihar issued a resolution on 22nd October,  1991  deciding  to  abolish  the  Subordinate Service Selection  Board and  the  job  of  the  Subordinate Services Selection  Board  was  entrusted  to  Bihar  Public Service Commission.  It was  however, indicated  in the said resolution that  the  examination  which  has  already  been conducted by the Board, the result thereof will be published by 27th  February, 1992  and thereafter,  all personnels and assets of the Board shall be deemed to have been transferred to Bihar Public Service Commission. On 6th December, 1991 on the recommendation of the Service Selection Board 11 persons were  appointed  as  Assistant  Jailor  and  again  on  20th December, 1991, 4 persons were appointed to the said post of Assistant Jailor.  The Service  Selection Board  published a revised  list   of  successful   candidates  containing  238 candidates on  28th February,  1992. The government of Bihar in the  Personnel &  Administrative Reforms Department found that while  recommending  the  names  for  appointment,  the

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Service Selection Board is not adhering to the roaster point and, therefore,  under  the  order  of  the  Government  the Inspector General  of prisons  wrote a letter to the Service Selection Board  on 29th February, 1991 requesting the Board to  recommend   8  Scheduled  Castes  and  Scheduled  Tribes candidates for  being appointed  as Assistant  Jailors.  The Board recommended  15 candidates  by its  letter  dated  4th March, 1992  but the said recommendation did not contain the names of  Scheduled Castes and Scheduled Tribes persons. The respondent’s name was included in the said list submitted on the 4th  March, 1992.  The Inspector  General of  prisons by this letter  dated 8th  May, 1992  did not act upon the said list and  again requested the Board to send Scheduled Castes and Scheduled Tribes candidates. As the respondent could not be appointed,  he filed  a writ  petition in  the High Court alleging  therein  that  persons  securing  less  marks  and occupying position  below him have been appointed else where and yet he has not been appointed and, therefore, sought for issuance of  a writ  of mandamus.  By the impugned order the High Court having directed the Public Service Commission and the State  to  consider  the  case  of  the  respondent  for appointment against a vacant post of Assistant Jailor or any other  equivalent   post,  the   present  appeal   has  been preferred.      During the  pendency of  the writ petition filed by the respondent, in  another proceeding  registered as  CWJC  No. 1412 of  1992 several allegations of favourtism and nepotism having been  made against  the Service  Selection  Board,  a Bench of  the Patna  High  Court  had  appointed  Shri  S.N. Biswas,  Commissioner   &  Secretary   to  the   Government, Department  of   Personnel  and  Administrative  Reforms  to enquire  into   the  correctness  of  the  allegations  made pertaining to  the examination  conducted by the Bihar State Service Selection  Board and  submit a  report to the court. Said Shri S.N. Biswas pursuant to the aforesaid order of the High Court  enquired into  the matter and submitted a report which clearly  indicated gross  irregularities committed  by the Subordinate  Service Selection  Board in conducting test pursuant to  the advertisement  issued on 13th May, 1987 and recommending names for being appointed to different posts in class-III  under   the  Bihar   Government.  It   is  indeed surprising to  note that  the Subordinate  Service Selection Board even  though was  dissolved by the Government of Bihar with effect  from 22nd  October, 1991,  Yet in February 1992 the Board published a revised list of 238 persons. Shri S.N. Biswas,  the   Commissioner  appointed  by  the  High  Court ultimately came to the conclusion that no credence should be given to the examination and subsequent actions of the Board and  recommended   cancellation  of   the  result   of   the examination and  for filling  up the  vacancies by issuing a fresh advertisement  and holding a fresh examination. On the basis  of   the  aforesaid   report  and  considering  rival submissions of  the parties the Patna High Court in CWJC No. 7141 of 1991 came to conclusion as under:      From the report of Sh. Biswas there      cannot be any doubt whatsoever that      a great  deal of  bungling had been      done by  the officers  of the State      of Bihar.  It is  really surprising      as to  how the  State of  Bihar had      been tolerating  such Officers  and      as to  why the services of all such      persons  who   had  illegally  been      appointed had not been terminated.      The said  writ application  was ultimately  disposed of

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with the  direction that  the State  should immediately take remedial  measures   by  cancelling   the  result   of   the examination for  which three  merit lists  had been prepared and by  filling up  the vacancies by fresh advertisement and upon  taking   a  fresh   examination.  Notwithstanding  the aforesaid judgement  of the  Patna  High  Court  dated  23rd March, 1994 passed in CWJC No. 7141 of 1991, by the impugned judgement dated  26th September,  1994 the  writ application was allowed  solely on the ground that some persons lower in the rank than the respondent had been appointed.      Mr. L.R.  Singh the  learned counsel  appearing for the appellants contented  that in  view  of  the  irregularities pointed out  by the  Biswas Committee no court could issue a mandamus for  giving appointment  to an  applicant from  the recommendations made  by the  Subordinate Service  Selection Board as  that would  tantamount to legalising and accepting the gross  irregularities and  illegalities committed by the Service Selection  Board  in  the  matter  of  selection  of persons. He  further contended  that the  Service  Selection Board having  been dissolved on 22nd October, 1991, the said board had  no jurisdiction  to send fresh recommendations on 4th March,  1992 containing  the name of the respondent and, therefore, the  said list  submitted  by  Service  Selection Board could not have conferred any right of appointment upon the respondent.  Lastly, he  submitted  that  the  Inspector General of  Prisons having requested the Board to recomend 8 Scheduled Castes  and 8  Scheduled Tribes  candidates as the Board  had  not  followed  the  roaster  while  recommending earlier, the  Board could  not  have  sent  a  list  of  the respondent and,  therefore, no enforceable right can be said to  have  been  conferred  upon  the  respondent  for  being appointed. Mr.  Sharan, learned  counsel appearing  for  the respondent on  the other  hand contented  that  no  credence should be given to the said report of Shri S.N. Biswas as he had been  indicated by the High Court in some other case. He also submitted that when persons junior to the respondent in the list  submitted by  the  Service  Selection  Board  have already  been   appointed  and  the  State’s  special  Leave petition against  the similar  order has  been dismissed  by this Court, the present appeal should also be dismissed.      Having given  our anxious  consideration to  the  rival contentions of  the parties  and on  carefully examining the materials  on   record  we  find  sufficient  force  in  the contentions raised  by the learned counsel for the appellant and we  are unable  to agree  with the  submissions  of  Mr. Saran, the  learned counsel  for the respondent. True it is, this court  did not  entertain a  special leave  petition on September 5,  1994 when  State of  Bihar had  challenged  an order of  the Patna High Court. But it is crystal clear that when the Court did not entertain the special leave petition, the report of Shri Biswas had not been brought to the notice of  the   Court  nor  the  Court  was  aware  of  the  gross irregularities and illegalities committed by the Subordinate Service Selection  Board in  the matter of making selections and recommending  names for different posts in class-III. We have no  doubt in  our mind  that if  the irregularities and illegalities found  by Shri  Biswas would  have been  placed before the  Court, the  Court would  not have  hesitated  in entertaining the  matter and cancelling the list altogether. Be that as it may, we are of the considered opinion that the High Court  committed gross  error of  law  is  issuing  the mandamus requiring  the Public  Service Commission  and  the State to give appointment to the respondent even after going through the  Biswas Committee  report which  in no uncertain terms indicates  the gross  irregularities and  illegalities

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committed by  the Service  Selection Board  in the matter of holding the  examination and  drawing the list of successful candidates. Further  the Board  having been abolished by the Government decision  dated 22nd October, 1991 had no further jurisdiction to  publish a  revised list  of 238  persons on 28th February, 1992 and in recommending 15 candidates on 4th March, 1992  including the  respondent. The  said list of 15 persons containing  the respondent’s name recommended on 4th March, 1992  is a  list wholly  without jurisdiction and the persons recommended  thereunder including the respondent had no enforceable  right for  which a  mandamus could have been issued by  the High Court. In the aforesaid premises, we set aside the  impugned order  of the  Patna High  Court and the writ petition  filed by  the respondent stands dismissed. We also further direct that the Bihar Public Service Commission need not take any further act upon the lists prepared by the State Service  Selection Board  or recommend  any names  for different   posts in  class-III from three lists. But so far as the appointments already made from out of the said lists, since in  several cases appointments have been made pursuant to the  orders of  the court  and in some cases those orders have not been interfered with by this Court though not being aware of  the illegalities  and irregularities in the matter of conducting  the examination  and we are not annulling the appointments already  made. But  so far  as respondent No. 5 Shri Krishna  Singh Vimal  is concerned,  though he  has  be appointed by  the Government  of Bihar  by letter dated 30th May, 1995, but the said appointment had been made because of the impugned  direction of  the Patna High Court in CWJC No. 379 of  1993 and it was specifically indicated in the letter of appointment  that the appointment would be subject to the decision of  the Supreme Court in the special leave petition filed by  the Bihar  Public Service Commission. In this view of the matter the appointment of said respondent No. 5 makes a fresh  application to  the Bihar Public Service Commission pursuant to  any advertisement  and is  found to be overaged then the  period which  the respondent has spent in pursuing the present  litigation should  be excluded  by  the  Public Service  Commission.   This  appeal   is  allowed  with  the aforesaid   directions   and   observations   but   in   the circumstances there will be no order as to costs.