SURENDRA NARAIN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) A common question as regards the interpretation of Rule 20 of Bihar Judicial Service (Recruitment) Rules, 1955 arises in all these appeals under the following circumstances:

(2.) Bihar Judicial Service (Recruitment) Rules, 1955 (for short 'Rules') were framed under Article 234 of the Constitution of India for appointment of Munsifs in the Bihar Civil Service (Judicial) Branch. On coming into force of the new Criminal Procedure Code w.e.f. 1-1-1974 the work earlier done by the Executive Magistrates stood transferred to Judicial Magistrates. Consequently the Bihar Government decided to create 152 additional temporary posts of Munsifs in the State and, therefore, on 18-5-1974 the Bihar Civil Service (Judicial Branch) Ad hoc Recruitment Rules, 1974 (hereinafter for short '1974 Rules") were framed under Article 234 of the Constitution.

(3.) On April 3, 1973 the BPSC issued advertisement for 200 posts of Munsifs for the 15th examination under 1955 Rules. The break up of 200 posts was 152 posts for general category and 48 posts were reserved for SC/ST. The BPSC conducted the written examination sometime in December, 1973. On August 26, 1974 the High Court of Patna conveyed its approval to the proposal of the BPSC to fix qualifying marks at 40% for general category candidates and 30% for SC/ST candidates. Those who were qualified in the written tests in terms of Rule 19 of 1955 Rules were called for viva-voce in August - September, 1974. At the conclusion of these formalities a common Select List based on merits was prepared. Although 48 posts were reserved for SC/ST candidates but only 15 from the SC/ST category could qualify. Thus the BPSC forwarded the list of 158 candidates to the Bihar Government for appointment as Munsifs under 1955 Rules of which 143 candidates belonged to general category and 15 to the SC/ST. These 158 candidates came to be appointed between March 1975 and 22nd May, 1975 as Munsifs under 1955 Rules. While this process was going on, on October 14, 1974, another advertisement under 1974 Rules was issued by the BPSC for appointment of 152 Munsifs to fill in additional temporary posts of Munsifs created by the Bihar Government. After holding the written examination and viva-voce tests, merit list of 152 candidates was sent by BPSC to the Government of Bihar, which appointed them under 1974 Rules between 23-5-1975 and 17-11-1976 initially for a period of six months but the said period was extended thereafter till their confirmation on 22-11-1985. Between June 14, 1975 and August 4, 1975 additional nine candidates as per the merit list prepared under 1955 Rules came to be appointed taking the total number of appointments to 167 candidates comprising of 152 candidates of general category and 15 candidates of SC/ST category. Resultantly 33 posts of SC/ST candidates remained vacant for want of qualified candidates. There was acute shortage of Munsifs and since the candidates from the SC/ST category were not available in the merit list prepared under 1955 Rules, the State Government sometime in June, 1976 de-reserved these 33 posts. In view of this decision, a list of 33 candidates from the merit list prepared under 1955 Rules was forwarded to the Government and accordingly between 17th June, 1976 and 1st September, 1976 these 33 candidates came to be appointed as Munsifs, however one of them died lateron. The respondents Nos. 3 to 34 are appointees falling in this category. These 32 candidates were confirmed on 9-3-1983 w.e.f. the dates they were appointed. These 32 candidates were given the seniority over the appellants who were recruited under 1974 Rules and were in fact appointed earlier to them. Naturally this determination of inter-se seniority between 32 candidates appointed under 1955 Rules and the appellants appointed under 1974 Rules sought to be challenged by the appellants in Writ Petitions under Article 226 of the Constitution of India in the Patna High Court. There were two sets of writ petitions (1) the appellants (writ petitioners) who were selected and appointed under 1974 Rules and (2) the SC/ST candidates who were selected and appointed under 1955 Rules. It is a common premise that the respondents Nos. 3 to 34 were in fact appointed later in point of time than these appellants. At this stage it needs to be stated that these 32 respondents were placed above the SC/ST candidates in the merit list prepared under 1955 Rules.