PRAKASH RANJAN KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) Both the Letters Patent Appeals arise out of a common judgment dated 31.5.2007 passed by a learned Single Judge of this Court whereby two writ petitions preferred by similarly situated persons working in Bihar Education Service (BES) as per recommendation by the Bihar Public Service Commission on the basis of 31st Combined Competitive Examination, have been dismissed. The writ Petitioners had challenged the inclusion of 87 private Respondents by way of adjustment in BES as well as grant of seniority to them above the Petitioners on the ground that the Respondents concerned had been recommended by the Bihar Public Service Commission albeit for a different service on the basis of 30th Combined Competitive Examination. For different reasons names of 5 private Respondents stand deleted.

(2.) Initially the writ petitions filed in the year 1996 were confined to a challenge to two notifications of September, 1996 by which five persons working in the Adult Education Scheme were adjusted in the BES. Subsequently, by an order dated 17.7.1997 those five Respondents were granted seniority above the 31st batch. Thereafter, on 13.1.1999 further 82 officers from the 30th batch were merged in the BES and 87 posts were created for adjustment of all the 87 persons. The seniority of 82 officers who were Respondents was dependant upon the outcome of the writ petition bearing CWJC No. 12348/ 1996 which has also been dismissed by the impugned order under appeal. The subsequent orders relating to encadrement of further 82 officers in BES and grant of seniority to them above the officers of 31st batch were also challenged by the Petitioners who are Appellants herein. Learned Single Judge considered the relevant facts, the objections to encadrement based mainly upon the provisions in the BES (Class-I) and BES (Class-II) Recruitment Rules, 1973 (hereinafter referred to as the Rules) made under the proviso to Article 309 of Constitution of India. Learned Single Judge held that the rules provided only for entry into statutory cadre through direct appointment or promotion but did not debar amalgamation of non-cadre posts with cadre posts and the Government was well within its powers to create further posts in the cadre by such amalgamation which is a procedure well known to service jurisprudence having approval in catena of judgments which were discussed by the learned Single Judge in detail. Accordingly, it was held that it was permissible to transfer holder of a non-cadre post to cadre post and such transfer will not fall in the category of recruitment and amalgamation also is no recruitment understood under the Rules. The challenge to adjustment of the respondents in the statutory cadre under BES was, thus, repelled on the ground that the statutory rules are silent as regards transfer or amalgamation and hence, such powers could be exercised by the Executive. On analyzing the admitted facts, the learned Single Judge held that in the present case the adjustment of 87 persons in the BES had been effected by combining amalgamation and transfer. Admittedly, posts held by them were transferred and amalgamated to the posts in BES as per normal course and thereafter five private Respondents were transferred to such permanent posts. The transfer of remaining 82 Respondents had remained incomplete due to order of status quo passed in the writ petition but in the final order the learned Single Judge found no legal impediment in transferring the remaining 82 Respondents to the posts in the BES. Learned Single Judge did not find any allegation of mala fide so as to affect the validity of the impugned actions and allowed seniority to the Respondents mainly on the ground that "those 87 persons were appointed to permanent posts in the Government prior to the date of appointment of the first appointee of the 31st Combined Competitive Examination". Hence, it was held that all the 87 Respondents will have seniority above Petitioners as per their merit inter se in the 30th Combined Competitive Examination.

(3.) Before considering the various submissions advanced by the parties, it would be useful to take note of the relevant facts in brief. Advertisement for the 30th Combined Competitive Examination was issued in the year 1981. The vacancies indicated for different services show only six vacancies in the BES. On 11.7.1984, 201 candidates on the basis of marks and preference, which could be exercised till the stage of interview, were recommended for appointment to the post of Block Employment Officers/Assistant Employment Officers. In the advertisement this post was at serial No. 8 with pay scale of Rs. 455-840/- whereas seven other posts above this post which included posts in BES were in the pay scale of Rs. 510-1155/-. It is not in dispute that later on the pay scales for both services became common and same. Six posts available for BES were filled up in September, 1984. The posts of Block Employment Officers were abolished after the examination was held and that created obstacles in appointment of 201 candidates recommended for such posts. Since some candidates had obtained higher marks in their category as compared to those who were appointed in other services, they approached this Court through writ petitions and Government decided, in principle, to appoint those candidates who had secured higher marks than the cut-off mark of 584. For accommodating such recommendees, vacancies were searched in other departments. Keeping in view the rules, marks and the reservation policy three persons including one Hasan Waris were appointed in the BES on 15.11.1985. For the remaining candidates the State Cabinet after considering the relevant facts, on 4th September, 1985 decided to appoint 59 candidates on different posts in different services. These included three already appointed in the BES. The Education Department on request disclosed 40 vacancies in Adult Education Scheme for the post of Project Officers. Subsequently, for one reason or the other the State Government decided to find out further posts in the Adult Education Scheme by sending back officers working on deputation and against such posts the remaining recommendees were also to be appointed on the post of Project Officers or the equivalent posts w.e.f. 1.3.1986 but were to be posted after imparting training till 31.3.1986. Annexure-5 to the writ petition dated 12.1.1986 contains a condition that such appointees had to sign an agreement accepting the appointment on the post offered to them otherwise their claim for appointment would stand extinguished.