STATE OF BIHAR AND ANR.versusMADAN MOHAN SINGH AND ORS.

A                      STATE OF BIHAR AND ANR.
                                  v.
                     MADAN MOHAN SINGH AND ORS.

                               OCTOBER 13, 1993

B                  [KULDIP SINGH, K. RAMASWAMY AND
                      K. JAYACHANDRA REDDY, JJ)

          Service Law :

C        Bihar Superior Judicial Service-Additional District and Sessions
  Judges-Appointment against direct recruit quota-Advertisement-Selec-
  tion-Merit List-Advertisement and selection process meant to fill up 32
  vacancies-Neither advertisement nor any rule indicating that panel would
  last for one year-Future vacancies in the direct recruit quota-Filling up from
  amongst existing panel-l'ennissibility of-Held panel was valid only for the
D purpose of filling up 32 vacancies and not for future vacancies-Direction to
  issue fresh advertisement for subsequent vacancies issued.

        Pursuant to an advertisement dated 29.9.1989 of the Bihar Govern-
  ment inviting applications to the posts of Additional District and Sessions
E Judges, a written test was conducted on 9.9.1990 in which 129 candidates
  were declared successful· and they were called for viva voce test. On the
  basis of the marks obtained in the written te~t and viva voce test, 32
  candidates were selected against the existing vacancies and their names
  were recommended by the High Court for appointment as Additional
  District and Sessions· Judges in the quota of direct recruits in the Bihar
F Superior Judicial Service. However, on 24.11.1990 the Full Court of the
  Patna· High Court passed a resolution to the effect that if any further
  vacancy in the quota of the direct recruit was required to be filled up within
  a period of one year from the date of resolution the same would be filled
  up by recommending the candidates in order of merit from amongst the
G remaining candidates in the merit list. On 17.7.1991, the Government
  decided to advertise the vacancies afresh as the vacancies of the earlier
  year bad exhausted.

          Some of the unsuccessful candidates, out of the merit list of 129
    candidates, filed petitions in the High Court seeking a direction that l/3rd
H   of the existing vacancies of the quota of direct recruits should be filled up
                                         242
                       STATE v. MADAN MOHAN                             243

from the existing panel. The High Court concluded that since 1979 no A
appointments were made from the Bar and that taking temporary posts
also into consideration the strength of the cadre as on that day was 251
and therefore 1/3rd of the same should be filled up from direct recruit-
ment. Further taking into account the resolution dated 24.11.1990 the High
Court allowed the petitions holding that the panel was to remain valid till B
November, 1991. Accordingly, it directed the State Government to consider
the appointment of writ petitioners and others out of the existing panel.
State's contention that there was no rule permitting the list to be kept valid
for one year and that the selection process was meant to fill up 32 vacancies
and that for future vacancies another selection was to take place, was
rejected by the High Court holding that the decision of the Government C
not to fill up vacancies from amongst the existing panel was arbitrary.

       In appeals to this Court it was contended on behalf of the appellant-
State that (i) from the beginning the advertisement and the selection
process were meant only to fill up 32 permanent vacancies by direct
recruitment and on that basis 129 candidates were called for interview i.e. D
four times the number of vacancies; (ii) after the selection the list of 129
candidates lapsed and the question of filling up the subsequent vacancies
from that list does not arise; and (iii)_ the High Court erred in holding that
the strength of the direct recruits in the cadre was 83 posts on the
erroneous assumption that it included permanent as well as temporary E
posts.

      Allowing the appeals and setting aside the order of the High Court,
this Court
                                                                               F
       HELD: 1. There was nothing in the advertisement that a panel would
be prepared which will be valid for one year and there was no rule also to
that effect. There was only a resolution passed by the High Court to fill up
the vacancies from out of the list of 129 candidates. Further, from a
perusal of the record of the High court it is crystal clear that the adver-
tisement and the whole selection ,process that ensued were meant only to       G
      0
fill up 32 vacancies. [248-B-C; 249-E]

     2. The temporary vacancies arose subsequently. But even otherwise
the particular advertisement and the consequent selection process were
meant only to fill up 32 vacancies and not to fill up the other vacanciess     H
    244                  SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A   the merit list prepared on the basis of the written test as well as the
    viva-voce was to hold good only for the purpose of filling up those 32
    vacancies and no further because the said process of selection for those 32
    vacancies got exhausted and came to an end. If the same list has to be kept
    subsisting for the purpose of filling up other vacancies also that would
B   naturally amount to deprivation of rights of other candidates who would
    have become eligible subsequent to the said advertisement and selection
    process. Consequently to fill up other vacancies, a fresh advertisement has
    to be issued. [249-F-H; 250-D]

          Kai/ash Chandra Shanna v. State of Haryana & Ors., [1989) Suppl. 2
C S.C.C. 696 and O.P. Garg and Ors. etc. etc. v. State of U.P. & Ors., A.l.R.
    (1991) S.C. 1202, cited.

         CIVIL APPEALLATE JURISDICTION: Civil Appeal Nos. 4561-
    62of1992.

D         From the Judgment and order dated 16.12.91 in C.WJ.C.s No. 945
    of 1991 and 5806 of 1991.

                                       With

          SLP (C) No. 1782/93 & IA. Nos. 7-8/93.
E
          Shanti Bhushan, B.B. Singh and Pramod Swarup for the Appellants

         Jayanarayan, S.S. Javali, D.P. Gupta, P.P. Malhotra, S. Mukherjee,
    Govind Mukhoty, B.B. Singh, B.P. Yadav, K.K. Gupta, R.P. Singh, J.
    Gupta, Anil Agarwalla, S.C. Mitra, Ms. Abha R. Sharma, S.K. Sinha and
F   Apurb Lal for the Respondents.

          Pramod Swarup for the impleading party.

          The Judgment of the Court was delivered

G         K. JAYACHANDRA REDDY, J. The State of Bihar, questioning the
    judgment of the High Court in respect of selection of Additional District
    & Sessions Judges, had filed these appeals. The Government of Bihar
    issued an advertisement on 29.9.1989 which was published in the
    newspapers inviting applications for appointment to the posts of Additional
    District & Sessions Judges. Quite a number of applications were received
H   and as envisaged in the notification, a written test was held on 9.9.90. As
              STATEv. MADANMOHAN(K.J.REDDY,J.)                          245

many as 129 candidates who were successful in the written test, were called    A
for the 1-fra-mce test which was held in November, 1990. On the basis of
the marks secured in the written test as well as in the l'iva-voce test, 32
candidates out of 129 candidates were selected against the existing vacan-
cies and the High Court recommended the names of 32 candidates in order
of merit with necessary particulars for their appointment as Additional
District & Sessions Judges in the quota of direct recruits in the Bihar        B
Superior Judicial Service. On 5.2.91 the selected candidates were asked to
appear for medical test. The High Court again by letters dated 4.3.91 and
3.6.91 also requested the Government to appoint the candidate at Serial
No. 33 since one more vacancy had occurred due to the retirement of one
of the officers. On 24.11.90, the Full Court of the Patna High Court passed
a resolution deciding that any further vacancy in the quota of the direct      C
recruits from the Bar within the period of one year would be filled upon
from the merit list prepared by the High Court. The concerned Joint
Secretary of the Government wrote on 17.7.91 to the Registrar informing
him that the Government has decided to advertise the vacancies afresh
because the vacancies of earlier year had exhausted. Three of the can-         D
didates from out of the merit list of 129 candidates, who were not selected,    .·
filed two writ petitions in the High Court seeking a writ of mandamus
directing the Government to fill up 1/3rd vacancies of the sanctioned
strength of the service by direct recruitment from amongst candidates in
the merit list prepared by the High Court on the basis of written test and
viva-voce test held. In other words, they sought a direction that l/3rd or     E
the existing vacancies of th~ quota of direct recruits should be filled up
from the said existing panel prepared by the High Court, the validity of
which panel would expire after November, 1991. It was also contended that
until the expiry of the said merit list which was valid till November, 1991,
no fresh advertisement for any such vacancies should be made. The High
Court holding that the list of 129 candidates prepared by it was to remain     ·F
valid till November, 1991, accepted the contentions of the writ petitioners
and directed the State Government and its authorities to consider the
appointment of the writ-petitioners and others to the posts of Additional
District and Sessions Judges out of the said merit list and accordingly
allowed the writ petitions. As against the said judgment, the present          G
appeals are filed by the State of Bihar. Questioning the judgment of the
High Court on the same grounds, Bihar Judicial Service Association
 through its Secretary has filed S.L.P.(C) No. 1782/93.

      Shri Shanti Bhushan, learned senior counsel appearing for the appel-
laats contended that only 32 vacancies were there and that advertisement       H
    246                   SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R.

A   was limited to only those \·acancies and that out of the candidates who
    appeared for the qualifying written examination, the lirst 129 candidates
    on the basis of merit in the ratio of I :4 i.e. four candidates against each
    vacancy, were called for interview and that on the basis of the marks
    obtained in the wriuen lest as well as vira-.mce lest, a combined list was
    prepare·d and. the first 32 candidates cm the basis of the merit list were
8   selected and were recommended to the Government for being appointed
    in the existing 32 vacancies which were meant to be lilled up by direct
    recruitment from the Bar. Learned counsel further submitted that the list
    of 129 candidates after the said selection lapsed and the question of filling
    up the vacancies that arose later from that list does not arise and that the
    High Court erred in holding that the strength of the direct recruits in the
c   cadre had to be 82 posts on the erroneous assumption that the Bihar
    Superior Judicial Service included permanent as we"n as temporary posts.
    Learned counsel for the respondents, on the other hand, submitted that
    the cadre of Bihar Superior Judicial Service includes both permanent and
    temporary posts and on that basis the strength of the direct recruits would
D   be 83 posts and in view of the resolution passed by the Full Court, the said
    list of 129 candidates would be valid till end of November, 1991 and
    therefore the High Court was justified in issuing the writ as prayed for by
    the respondents.

          During their respective arguments, the learned counsel incidentally
E raised many other points touching upon Article 233 and on ordinance
    promulgated by the Government on 25th September, 1991 reserving 50%
    seats in the Government appointment for backward classes, scheduled
    casts and scheduled tribes. But 'it may not be necessary to ~nsider these
    submissions in the view we are ultimately, taking. A perusal of the adver-
    tisement shows that it was not mentioned there that a panel would be
F   prepared which would be valid for one year. As per the merit list prepared
    on the basis of the written test, 129 candidates were called for interview
    and of them 32 were selected and recommended to the Government and
    they are already appointed. The question whether the further vacancies
    should be filled up from amongst the remaining candidates in the list of
G   129 candidates would arise provided the advertisement and the selection
    pursuant to the same were meant not only for filling up the 32 vacancies
    but also to fill up the other vacancies that may arise from out of that list.
    If, on the other hand, the advertisement and the selection process were
    strictly meant only to fill up those 32 vacancies and if on that basis the
    selection was made, then there is no basis whatsoever for keeping that list
H
               STATE 1•. MADAN MOHAN [K.J. REDDY, J.)                      247

suhsisting for the purpose of filling up other vaca~cies.                         A

        Learned counsel appearing for the respondents, howe\'er, suhmitkd
that the advertisement docs not indicate that the applications were called
for from the members of the Bar only to fill up 32 vacancies and that on
the other hand the advertisement simply reads that the applications are
invited for the appointment to the higher judicial service and that number        B
of vacancies would be communicated later and that the High Court has
rightly calculated the number of vacancies to be 83 belonging to the quota
of direct recruits on the basis that the cadre includes both permanent and
temporary posts. Learned counsel for the appellants submitted that from
the beginning the advertisement and the selection process were meant only         C
to fill up 32 permanent vacancies by direct recruitment and on that basis
they called 129 candidates for interview i.e. four time of the number of
vacancies. He also submitted that as the last two persons had the same
marks, the number came to 129. It is also submitted that rest of vacancies
came later on and that a perusal of the High Court records would clearly          D
show that the said selection process was meant to fill up only 32 vacancies.

       Before we advert to this crucial question, we would like to consider
the reasoning of the High Court. The High Court has noted that 129
candidates were called for interview and a merit list was prepared and out
of them 32 candidates were appointed. The High Court, however,                    E
proceeded to state that since 1979 no appointments were made from the
Bar and that taking temporary posts also into consideration the strength of
the service as on that day was 251 and that should be the cadre and l/3rd
of the same should be filled up by direct recruitment. Then the High Court
took into consideration the resolution of the Full Court which was to the         p
effect that any further vacancy in the quota of direct recruits shall be filled
by within a period of one year from the date of the resolution dated
24.11.90. Thereafter, having considered the rival contentions and also the
scope of Article 16, the High Court reached the conclusion that the
remaining vacancies should be filled up from among the list of 129 can-
didates. The High Court also took the view that the letter of the Joint           G
Secretary dated 17.7.91 intending to call for fresh applications was a
decision without necessary consultation with the High Court. It was con-
tended before the High Court on behalf of the State Government that there
was no rule permitting the list to be kept valid for one year and that the
selection process was meant to fill up 32 vacancies and that in respect of        H
     248                   SUPREME COURT REPORTS {1993) SUPP. 3 S.C.R.

 A future vacancies another selection is to take place since there may be more
     persons available and eligible for those appointment and they should also
     get an opportunity to compete. The High Court rejected this contention
     holding that the decision cf the Government not to fill up the vacancies
     from among the candidates of the merit list was arbitrary.
·B          As rightly contended on behalf of the appellant State of Bihar, there
     was no advertisement that a panel would be prepared which will be valid
     for one year and there was not rule also to that effect. There was only a
     resolution passed by the High Court to fill up the vacancies from out of
     that list of 129 Candidates. As a matter of fact, the High Court initially
 C   recommended only 32 names in order of merit. Learned counsel for the
     respondents, however, submitted before us that the stand taken by the
     appellants namely that the High Court on its administrative side had called
     for interview the candidat11s, four times of the number of vacancies that
     were existing and that accordingly when there were 32 vacancies, a total of
 D   129 candidates were called for and that there was no panel existence, is
     not supported by any material. The High Court in its reply affidavit dated
     1.9.93 stated that on that date 32 vacancies were available' and it was
     resolved by the Full Court in its meeting dated 15.9.90 that four times of
     the number of vacancies i.e. 128 candidates in order of merit should be
     called for interview and that as the last person namely 128th candidate and
 E   the next person thereunder had the same marks, they were also called and
     altogether 129 candidates were called for interview and· that the rest of the
     vacancies of Additional District & Sessions Judges came later on and as
     such the High Court on 24.11.90 recommended 32 candidates out of the
     list but, however, decide.d that the further vacancies in the quota from the
     Bar should. be filled up from among the remaining candidates in order of
 F
     merit and therefore the list amounted to a subsisting panel from out of
     which further vacancies should be filled.

            Having carefully considered the advertisement and the various aver-
     ments in the affidavits and the counter-affidavits, we are of the view that
 G   the crucial question is whether in fact the advertisement and the initial
     decision of the High Court were meant to fill up only 32 vacancies and
     whether accordingly the High Court called only 129 candidates from the
     list, who appeared for the written test in the ratio of 1:4 and whether
     consequently the whole selection process was confined to fill up only those
 H   32 vacan.cies? If the answer is in the affirmative then the question of the
                STATE v. MADAN MOHAN [KJ. REDDY, J.]                     249

  same list subsisting for one more year for filling up the subsequent vacan- A
  cies did not arise inspite of the resolution of the High Court dated 24.11.90.
  As noted above in the reply affidavit, the Registrar of the High Court
  categorically stated that 32 vacancies were available and to fill up the same,
. 129 candidates were called for interview namely four times of the number
  of vacancies and that the rest of the vacancies arose later. on.· To satisfy B
  ourselves, we have 'also called for the relevant record from the High Court
  and the same is placed before us in a sealed cover. A perusal of the records
 shows that in the Full Court meeting on 55.90 it was resolved that on the
  basis of the result. of the preliminary screening test, four times of number
  of candid~tes to be selected for appointment be called for interview. From
  the proceedings of another Full Court meeting held on 15.9.90 it is clear C
 that it was resolved that 128 candidates alone in order of merit should be
  called for interview. The proceedings of the Full Court meeting dated
 24.11.90 would show that the Full court finalised the selectio·n for filling up
 32 vacancies only and sent a list of 32 candidates in order of merit.
  However, a further resolution was passed that if any further vacancy in the D
  quota of the direct recruits was required to be filled up within a period of
  one year the same be filled up by recommending the candidates in order
  of merit from amongst the remaining candidates in the merit list. It is
  therefore crystal .clear that the advertisement and the whole selection
  process that ensued were meant only to fill up 32 vacancies. Learned E
  counsel for the respondents relying on the decisions of this Court in Kai/ash
  Oiandra Sharma, v. State of Haryana and others, (1989] Suppl 2 S.C.C. 696
and O.P. Garg and others etc. etc. v. State of U.P. and others, AIR (1991)
S.C. 1202, contended that when there are temporary vacancies, the direct
recruits should have their share of quota in respect of temprary vacancies
also. As noted above, the temporary vacancies arose subsequently but even       F
 otherwise in the view we are taking namely that the particular advertise-
  ment and the consequent selection process were meant only to fill up 32
  vacancies and not to fill up the other vacancies, the merit list prepared on .
  the basis of the written test as well as the viva-voce will hold good only for
  the purpose of filling up those 32 vacancies and no further because the said G
                                                  /
  process of selection for those 32 yacancies got exhausted and came to an
  end. If the same list has to be kept subsisting for the purpose of filling up
  other vacancies also that would naturally amount to deprivation of rights
. of other candidates who would have become eligible subsequent to the said
  advertisement and selection process.                                           H
    250                   SUPREME COURT REPORTS [1993] SUPP. 3 S.C.R.
                                                                                     (   ......
A          During the pendency of the writ petition before the High Court, the
    State of Bihar issued an Ordinance on 3.11.91 known as "The Bihar
    Reservation of Vacancies in Courts Service (For Scheduled Castes,
    Scheduled Tribes and other Backward Classes) Ordinance, 1991". This
    Ordinance provides for percentage of reservation for those classes. The
    writ petitioners before the High·Court challenged this Ordinance with an
B   additional prayer that the same may be declared as not applicable to the
    direct appointment of Additional District & Sessions Judges from the Bar
    and by way of abundant caution they challenged the validity of the Or-
    dinance so that it may not be applied to the petitioners in case the writ
    petitions were to be allowed. The High Court, having noted that the
c   Ordinance has been promulgated during the pendency of the writ petitions,
    declared that the said Ordinance would not be applicable to the appoint-
    ments to be made from out of the remaining candidates in the list of 129
    candidates which as per the decision of the High Court should be valid and
    subsisting till November, 1991. We need not go into the question of validity
D   of the Ordinance since we are setting aside the order of the High Court as
    a result of which the question of making more appointment for the vacan-
    cies other than the 32 vacancies already filled up, does not arise. To fill up
    the other vacancies, consequently a fresh advertisement has to be issued. ·
    The applicability· of the Ordinance to such a selection to be made on the
    basis of the fresh advertisement need not be gone into at this stage.
E   Therefore we do not express any opinion on the validity of the Ordinance.


          We are told that a number of vacancies have arisen and it is neces-
    sary that they should be filled up as early as possible. Therefore we direct
    the State of Bihar to issue a fresh advertisement calling for the applications
F   and complete the selection process as early as possible. Accordingly the
    appeals are allowed. In the view we are taking in the appeals filed by the
    State of Bihar, no further orders are necessary in S.L.P.(C) No. 1782/93 as
    well as I.A. Nos. 7-8/93 and they are accordingly disposed of. There will
    be no order as to costs.

    T.N.A.                                                      Appeals allowed.