NARAYAN DAS SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) As same point is involved in these two writ petitions, they have been heard together and are disposed of by this common order. The dispute relates to filling of the vacancies meant for the Scheduled Tribes in the Bihar Subordinate Judicial Service. C.W.J.C. No. 8655/2000 relates to 24th Judicial Service Examination while C.W.J.C. No. 11341/2000 relates to the 25th Examination. In the former, the petitioners seek quashing of the decision of the State Government to keep the vacancies in question reserved for three years in terms of Sub -section 6(a) of Section 4 of the Bihar Reservation of Vacancies in Posts and Services (For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1992 (Act 3 of 1992)(in short 'Reservation Act"). The said decision of the Government is contained in para 2 of letter No. 6749 dated 18.8.2000 of the Deputy Secretary, Personnel and Administrative Reforms Department. In the other case, i.e., C.W.J.C. No. 11341/2000, the petitioner seeks quashing of the decision of the Bihar Public Service Commission (in short 'the Commission1) to keep the unfilled posts in the Scheduled Tribes category vacant on account of non -availability of eligible candidates. In both the cases, the petitioner seek consequential direction to fill the vacancies as per the procedure laid down in Rule 20 of the Bihar Civil Service (Judicial Branch) Recruitment Rules, 1955 (in short 'the Recruitment Rules'), and to consider them for appointment against those vacancies.

(2.) There is no dispute about the factual aspects of the case. The salient facts may be noted from C.W.J.C. No. 8655/2000 as under. In 1990, advertisement was issued by the Commission inviting applications for the 24th Judicial Service Examination for appointment in the Bihar Judicial Service. The petitioners, who are practising advocates in this Court, submitted applications. The written examination was held in April 1991. The result thereof was published on 18.4.94. In the meantime, the Ordinance was promulgated in 1991 providing for reservation in posts and services for other backward classes, besides scheduled castes and scheduled tribes, which was later replaced by the Reservation Act in 1992. The applicability of the said Ordinance/Act in vis -a -vis the subordinate judicial service was challenged in this Court in C.W.J.C. No. 7619/91. The writ petition was allowed on 6.8.93. It was held that the Reservation Ordinance/Act does not apply to recruitment in the Judicial Service and the same was ultra vires Article 234 of the Constitution/The State of Bihar preferred SLP (Civil) No. 16476/93 in the Supreme Court. During pendency of the SLP, as mentioned above, result of the written examination was published on 18.4.94. Thereafter, interview of the successful candidates was held and the final result was published on 14.5.94. However, ho appointment was made pursuant to the interim order passed by the Supreme Court a day earlier on 13.5.94. The said interim order was latter modified on 16.11.95. The Court clarified that if selection process is over, the selectees may be appointed subject to the result of the SLP and further subject to the seniority that may be required to be adjusted if reservation is upheld and the candidates in the reserved slots are selected any time hereinafter and become entitled for appointment. The SLP, however, was eventually dismissed on 14.3.2000 along with Civil Appeal No. 9072 of 1996 preferred by the State against another decision of this Court relating to appointment in the Bihar Superior Judicial Service. The Supreme Court held that Section 4 of the Reservation Act does not apply to recruitment in the Bihar Subordinate Judicial Service or Bihar Superior Judicial Service, which are governed by the statutory rules framed under Article 234 of the Constitution namely Bihar Civil Services (Judicial Branch)(Recruitment) Rules, 1955 and Bihar Superior Judicial Service Rules, 1951, respectively. The said judgment entitled State of Bihar v. Bal Mukund Sah and Ors. is . In the light of the said decision of the Supreme Court, the Deputy Secretary, Personnel and Administrative Reforms Department, Government of Bihar, wrote the impugned letter No. 6749 dated 18.8.2000 to the Commission conveying its decision regarding filling up the vacancies in the reserved categories. In these cases, we are concerned with the vacancies meant for the scheduled tribes category alone and the direction of the Government in that regard. As indicated at the outset, the State Government directed the Commission to reserve 23 posts in the scheduled tribes category for three years on account of non -availability of suitable candidates, under Sub -section 6(a) of Section 4 of the Reservation Act. It may be mentioned here that 24 vacancies were earmarked for the scheduled tribes candidates against which only one candidate was recommended by the Commission as no other candidate was found suitable.

(3.) The Commission has filed counter -affidavit stating that the function of the Commission is limited to holding examination and recommending the names of successful candidates in different categories, it has no say in matters relating to number of vacancies, categories under which recommendations are to be made, nor it has any say in the matter relating to de -reservation of any reserved vacancy. The State Government has also filed counter -affidavit, sworn by the author of the impugned letter, namely, Shri Kunj Bihari Das, Deputy Secretary, Personnel and Administrative Reforms Department, stating that pursuant to the decision of the Supreme Court, by the impugned letter dated 18.8.2000, the Commission has been asked to recommend candidates of general category against the vacancies meant for the candidates of OBC category and the recommendations of the Commission with respect to OBC candidates sent earlier have been returned to it. As already indicated above, in this case we are not concerned with the reservation/ de -reservation of vacancies meant for the OBC candidates. The only thing which may be said to be relevant for the purpose of this case has been stated in para 7 of the affidavit to the effect: Rule 20 of 1995 Rules is not clear regarding preparation of supplementary list by the B.P.S.C. It does not provide whether the supplementary list may contain the names of general category candidates also or not.