ATULYA KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) ALL these writ petitions have been heard together. Since it was submitted on behalf of the counsel appearing for the Bihar Public Service Commission that all the cases pending before this court, will be governed by the judgment of the Supreme Court in Civil Appeal No. 14753 of 1995 dated November, 22, 1996 [reported in 1997 (2) PLJR 10 (SC)]. A copy of the judgment of the Supreme Court has been placed on record and counsel for the parties have made their submission after perusing the judgment. The relevant part of the judgment reads thus: "Having given our anxious consideration to the rival contentions of the parties and on carefully examining the materials on record we find sufficient force in the contentions raised by the learned counsel for the appellant and we are unable to agree with the submission of Mr. Saran, the learned counsel for the respondent. True it is, this court did not entertain a special leave petition on September 5, 1994 when State of Bihar had challenged an order of the Patna High Court. But it is crystal clear that when the court did not entertain the special leave petition, the report of Shri Bishwas had not been brought to the notice of the Court nor the court was aware of the gross irregularities and illegalities committed by the Subordinate Service Selection Board in the matter of making selections and recommending names for different posts in class III. We have no doubt in bur mind that if the irregularities and illegalities found by Shri Biswas would have been placed before the Court, the Court would not have hesitated in entertaining the matter and cancelling the lists altogether. Be that as it may, we are of the considered opinion that the High Court committed gross error of law in issuing the mandamus requiring the Public Service Commission and the State to give appointment to the respondent even after going through the Biswas Committee Report which in no uncertain terms indicates the gross irregularities and illegalities committed by the Service Selection Board in the matter of holding the examination and drawing the list of successful candidates. Further the Board having been abolished by the Government decision dated 22nd October, 1991 had no further jurisdiction to publish a revised list of 238 persons on 28th February, 1992 and in recommending 15 candidates on 4th March, 1992 including the respondent. The said list of 15 persons containing the respondent's name recommended on 4th March, 1992 is a list wholly without jurisdiction and the persons recommended thereunder including the respondent had no enforceable right for which a mandamus could have been issued by the High Court. In the aforesaid premises, we set aside the impugned order of the Patna High Court and the writ petition filed by the respondent stands dismissed. We also further direct that the Bihar Public Service Commission need not take any further action upon the lists prepared by the State service Selection Board nor recommend any names for different posts in Class -III from three lists. But so far as the appointments already made from out of the said lists, since in several cases appointments have been made pursuant to the orders of the court and in some cases those orders have not been interfered with by this Court though not being aware of the illegalities and irregularities in the matter of conducting the examination and preparation of the list of successful candidates, we are not annulling the appointments already made. But so far as responden0t no. 5, Shri Krishna Singh Vimal is concerned, though he has been appointed by the Government of Bihar by letter dated 30th May, 1995, but the said appointment had been made because of the impugned direction of the Patna High Court in C.W.J.C. No. 379 of 1993 and it was specifically indicated in the letter of appointment that the appointment would be subject to the decision of the Supreme Court in the Special Leave Petition filed by the Bihar Public Service Commission. In this view of the matter the appointment of said respondent no. 5 is set aside, in view of our earlier conclusion. If the said respondent no. 5 makes a fresh application to the Bihar Public Service Commission pursuant to any advertisement and is found to be over aged then the period which the respondent has spent in pursuing the present litigation should be excluded by the Public Service Commission. This appeal is allowed with the aforesaid directions and observations but in the circumstances there will be no order as to costs."

(2.) WE have carefully read the judgment of the Supreme Court and heard the submissions urged on behalf of the parties.

(3.) Mr. Katriar, counsel appearing on behalf of the petitioners in C.W.J.C. No. 5340 of 1995 submitted that the judgment of the Supreme Court nullifies all the appointments made, save and except those who have been given appointment pursuant to an order of this Court or the Supreme Court. According to him, except the appointments of this category of persons, all other appointments made, have been nullified. We are unable to accept the submission because the language of the judgment of the Supreme Court is quite clear. The apex court observed that so far as the appointments already made from out of the said lists, since in several cases appointments have been made pursuant to the orders of the court and in some cases those orders have not been interfered with by this Court though not being aware of the illegalities and irregularities in the matter of conduct in the examination and preparation of the list of successful candidates, those appointments already made were not being annulled. Counsel submitted that 'appointments already made' must mean only 'appointments made pursuant to the orders of the court' and not other appointments made by the Government. The language of the judgment does not permit the interpretation put by the learned counsel, because the judgment refers to appointments already made, some of them having been made under the orders of the High Court and not interfered with by the Supreme Court. The "appointments already made", therefore, consists of appointments made by the Government as also appointments made pursuant to the orders of the High Court and not interfered with by the Supreme Court. The category of 'appointments already made', therefore, consists not only of the appointments made pursuant to the orders of the Court, but also other appointments made by the Government.