MOHAMMAD MUZAFFAR ALAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal is directed against the judgment of the Division Bench of the patna High Court in CWJC no. 10489/94. The appellant who was a candidate for the post of Commercial Tax Officer applied to the Public Service Commission on the basis of the advertisement issued by the said Commission. He also appeared at the examination but as his results were not declared he made a request to the Public Service Commission to intimate him the marks he had secured in the said examination. Instead of intimating the marks to him, the commission on the other hand issued a show cause notice to him indicating therein that since he had not been confirmed in the post in the Class-Ill on the 1st of April, 1991, he was therefore ineligible for being considered in terms of Rule 5 of the bihar Finance Service (Appointment through Selection) Rules, 1990.

(2.) The appellant filed a reply to the public Service Commission annexing the order of the State Government confirming him with effect from 1.12.1985 on expiry of two years of probation. The commission however was of the view that this order of the State Government having been passed subsequently though having given retrospective effect the provisions of Rule 5 of the Recruitment Rules cannot be held to have been complied with and, therefore, he was ineligible for being considered for the post he applied for. The appellant thereafter approached the High Court. The High Court in the impugned judgment was of the opinion that since the appellant had not been confirmed till 1 st of April, 1991, the subsequent order of confirmation giving it retrospective effect will not make him eligible for being considered for the post and therefore he was rightly not considered by the Public Service Commission. The High Court having dismissed the writ petition, the appellant is before us.

(3.) Mr. Dwivedi, the learned senior counsel appearing for the appellant, contended that under the Rules, the probation period is only for two years and thereafter every employee is entitled to be confirmed, the Government itself realised this position and had passed order of confirmation though in the year 1994, but making the appellant confirmed w. e. f. the expiry of two years of the period of probation which was in december, 1985 and in this view of the matter, the Public Service Commission as well as the High Court were in error in coming to the conclusion that the appellant did not satisfy the requirement of Rule 5 (iii) of the Recruitment Rules. Mr. Dwivedi also further contended that several others similarly situated' have been considered by the Public Service commission and have even been appointed and therefore the appellant should not be singled out.