BIHAR PUBLIC SERVICE COMMISSION AND ANR.versusSTATE OF BIHAR AND ORS.

A          BIHAR PUBLIC SERVICE COMMISSION AND ANR.
                                          v.
                        STATE OF BIHAR AND ORS.

                             NOVEMBER 22, 1996

B             [K. RAMASWAMY AND G.B. PATTANAIK, .TJ.]

           Service Law-Bihar State Subordinate Service Selection Board-Con-
    ducted examination and recommended candidates-Selection board
    abolished-Irregularities and illegalities in conducting examination-
C   Respondent's name included in select list-Juniors Appointed-High Court
    issued mandamus requiring appointment of respondent-Held, High Court
    committed gross error of law in issuing the mandamus-Board had no juris-
    diction in recommending candidates-Appointment to respondent set-aside.

          The Bihar State Subordinate Service Selection Board conducted
D examination and recommended names of candidates. The Government of
  Bihar issued a resolution deciding to abolish the selection board and the
  job of selection board was entrustert to Bihar Pnblic Service Commission.
  The respondent whose name was included in the list sent blthe Board filed
  a writ petition in the High Court alleging that persons jnnior to him were
E appointed. The High Court directed the public service commission to
  consider the case of respondent for appointment. Meanwhile in another
  proceeding the Patna High Court appointed Shri S.N. Biswas to inquire
  into the irregularities committed by the Board in conducting the examina-
  tion. The Enquiry report indicated gross irregularities committed by the
  selection board in conducting tests. The High Conrt directed the State to
F cancel the result of the examination and conduct fresh examination for
  filling up the vacancies. Petition of the respondent was allowed on the
  gronnd that junior persons had been appointed. Against the said order the
    present ·appeal has been preferred.

G         The contention of the appell.mt was that giving appointment to the
    respondent would amount to legalising and accepting the gross ir-
    regularities and illegalities committed by the Board. It was further con-
    tended that the Board had no jurisdiction to sent fresh recommendation
    as it had already been abolished.

H         On the other hand the contention of the respondent was that when
                                     144
                    BIHARPUBLICSERVICECOMN. v. STATE                        145
    persons junior to him in the selection list were appointed and the State's A
    special leave petition against the similar order has been dismissed by
    the court, the present appeal should also be dismissed.

-         Allowing the appeal, this Court
                                                                                  B
          HELD : 1. The court did not entertain a special leave petition of
    State of Bihar as the report of Biswas Committee had not been brought
    to the notice of the Court and the Court was aware of the gross
    irregularities and illegalities committed by the subordinate service selec-
    tion board. Had the irregularities and illegalities have been brought
    before the Court, the Court would have entertained the matter and             c
    cancelled the lists altogether. [149-E-F]

          2. The High Court committed gross error of law in issuing the man-
    damus requiring the Public Service Commission and the State to give
    appointment to the respondent even after going thorough the Biswas Com- D
    mittee Report which has indicated the gross irregularities and illegalities
    committed by the Service Selection Board in the matter of holding examina-
    tion and drawing list of successful candidates. (149-G-H]

          3. The Board having been abolished by the Government had no
                                                                                  E
    further jurisdiction to publish a revised list and in recommending
    candidates including the respondent. The list containing respondent's
    name is a list wholly without jurisdiction and the persons recommended
    thereunder including the respondent had no enforceable right for which
    a mandamus could be issued by the High Court. [149-H; 150-A-B]
                                                                                  F
          4. The Bihar Public Service Commission did not act upon the list
    prepared by the State Service Selection Board nor did it recommend any
    names for different posts in class - II from the list. But the appointments
    already made out of the list are not annulled. [150-B-D]
                                                                                  G
          5. The appointment of the respondent No. 5 is set aside. If the
    respondent No 5 makes fresh application to the Bihar Public Service
    Commission pursuant to any advertisement and is found to be over-aged
    then the period which has been spent in pursuing the present litigation
    should be excluded by the public service commission. (150-F]            H
A
    146

    1996.
                           SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14753 of
                                                                                 .   ..

B
          From the Judgment and Order dated 26.9.94 of the Patna High Court
    in C.W.J.C. No. 379 of 1993.

            L.R. Singh for the Appellants.
                                                                                 -
            B.B. Singh, A Sharan, A.P. Singh for the Respondents.

            The .Judgment of the Court was delivered by :

C           PATTANAIK, J. Leave granted.

          This appeal by special leave is directed against the judgment of the
    Patna High Court dated 26th September, 1994 passed in CWJC No. 379 of
    1993.

D        The short facts of the case are that the Bihar State Subordinate
  Services Selection Board was constituted by the Government of Bihar on
  20th April, 1981 for selecting candidates and recommending their names
  to various posts in Class - III in various departments of the Government.
  On 13th May, 1987 the said Selection Board issued an advertisement
  inviting applications from eligible candidates in the prescribed proforma
E and the last date for receipt of the applications was 8th June, 1987. The
  Board conducted a written examination on 27/28th February, 1988 and the
  result of the written examination was announced on 7th April, 1991.
  Candidates were required to appear for Physical test on 21st April, 1991.
  A list of 199 successful candidates was placed on the Notice Board of the
p Board on 17th May, 1991. Out of the said list names of 26 persons were
  recommended for being appointed as Assistant Jailor to the Inspector
  General Prisons on 17th July, 1991. The Government of Bihar issued a
  resolution on 22nd October, 1991 deciding to abolish the Subordinate
  Service Selection Board and the job of the Subordinate Services Selection
  Board was entrusted to Bihar Public Service Commission. It was, however,
G indicated in the said resolution that the examination which has already
  been conducted by the Board, the result thereof will be published by 27th
   February, 1992 and thereafter, all personnels and assets of the Board shall
   be deemed to have been transferred to the Bihar public Service Commis-
   sion. On 6th December, 1991, on the recommendation of the Service
H Selection Board 11 persons were appointed as Assistant Jailor and again
        BIHARPUBLICSERVICECOMN.v.STATE[PATTANAIK,J.]                  147

 on 20th December, 1991, 4 persons were appointed to the post of Assistant A
 Jailor. The Service Selection Board published a revised list of successful
 candidates containing 238 candidates on 28th February, 1992. The Govern-
 ment of Bihar in the Personnel & Administrative Reforms Department
 found that while recommending the names for appointment, the Service
Selection Board is not adhering to the roaster point and, therefore, under B
the order of the Government the Inspector General of Prisons wrote a
letter to the Service Selection Board on 29th February, 1991 requesting the
Board to recommend 8 Scheduled Castes and 8 Scheduled Tribes can-
didates for the appointed as Assistant Jailors. The Board recommended 15
candidates by its letter dated 4th March, 1992 but the said recommendation
did not contain the names of Scheduled Castes and Scheduled Tribes C
persons. The respondent's name was included in the said list submitted on
4th March, 1992. The Inspector General of Prisons by his letter dated 8th
May, 1992 did not act upon the said list and again requested the Board to
send Scheduled Castes and Scheduled Tribes candidates. As the respon-
dent could not be appointed, he filed a writ petition in the High Court D
alleging therein that persons securing less marks and occupying position
below him have been appointed elsewhere and yet he has not been ap-
pointed and, therefore, sought for issuance of a writ of mandamus. Bythe
impugned order the High Court having directed the Public Service Com-
mission and the State to consider the case of the respondent for appoint-
ment against a vacant post of Assistant Jailor or any other equivalent post, E
the present appeal has been preferred.

       During the pendency of the writ petition filed by the respondent, in
another proceeding registered as CWJC No. 1412 of 1992 several allega-
tions of favourtism and nepotism having been made against the Service F
Selection Board, a Bench of the Patna High Court had appointed Shri S.N.
Biswas, Commissioner & Secretary to the Government, Department of
personnel and Administrative Reforms to enquire into the correctness of
the allegations made pertaining to the examination conducted by the Bihar
State Service Selection Board and submit a report to the Court. Said Shri G
S.N. Biswas pursuant to the aforesaid order of the High Court enquired
into the matter and submitted a report which clearly indicated gross
irregularities committed by the Subordinate Service Selection Board in
conducting test pursuant to the advertisement issued on 13th May, 1987
and recommending names for being appointed to different posts in Class
- III under the Bihar Government. It is indeed surprising to note that the H
    148                  SUPREME COURT REPORTS [1996) SUPP. 9 S.C.R.
A   Subordinate Service Selection Board even though was dissolved by the
    Government of Bihar with effect from 22nd October, 1991 yet in February
    1992 the Board published a revised list of 238 persons. Shri S.N. Biswas,
    the Commissioner appointed by the High Court ultimately came to the             •
    conclusion that no credence should he given to the examination and
    subsequent actions of the Board a recommended cancellation of the result
B
    of the examination and for filling up the vacancies by issuing a fresh
    advertisement and holding a fresh examination. On the basis of the
    aforesaid report and considering rival submissions of the parties the Patna
    High Court in CWJC No. 7141 of 1991 came to conclusion as under:

c           From the report of Sh. Biswas there cannot be any doubt what-
            soever that a great deal of bungling had been done by the Officers
            of the State of Bihar. It is really surprising as to how the State of
            Bihar had been tolerating such officers and as to why the services
            of all such persons who had illegally been appointed had not been
            terminated.
D
          The said writ application was ultimately disposed of with the direc-
    tion that the State should immediately take remedial measures by cancell-
    ing the result of the examination for which three merit lists had been
    prepared any by filling up the vacancies by fresh advertisement and upon
E   taking a fresh examination. Notwithstanding the aforesaid judgment of the
    Patna High Court dated 23rd March, 1994 passed in CWJC No. 7141 of
    1991, by the impugned judgment dated 26th September, 1994 the writ
    application was allowed solely on the ground that some persons lower in
    the rank than the respondent had been appointed.
F
           Mr. L.R. Singh the learned counsel appearing for the appellants
    contended that in view of the irregularities pointed out by the Biswas
    Committee no Court could issue a mandamus for giving appointment to an
    applicant from the recommendations made by the Subordinate Service
    Selection Board as that would tantamount to legalising and accepting the
G   gross irregularities and illegalities committed by the Service Selection
    Board in the matter of selection of persons. He further contended that the
    Service Selection Board having been dissolved on 22nd October, 1991, the
    said Board had no jurisdiction to send fresh recommendations on 4th
    March, 1992 containing the name of the respondent and, therefore, the said
H   list submitted by Service Selection Board could not have conferred any
        BIHARPUBLICSERVICECOMN.v.STATE[PATTANAIK,J.]                      149

right of appointment upon the respondent. Lastly, he submitted that the A
Inspector General of Prisons having requested the Board to recomend 8
Scheduled Castes and 8 Schedule Tribes candidates as the Board had not
followed the roaster while recommending earlier, the Board could not have
sent a list of general candidates again including the name of the respondent
and, therefore, no enforceable right can be said to have been conferred
                                                                             B
upon the respondent for being appointed. Mr. Sharan, learned counsel
appearing for the respondent on the other hand contended that no
credence should be given to the said report of Shri S.N. Biswas as he had
been indicted by the High Court in some other case. He also submitted
that when persons junior to the respondent in the list submitted by the
Service Selection Board have already been appointed and the State's              c
Special Leave Petition against the similar order has been dismissed by this
Court, the present appeal should also be dismissed.

        Having given our anxious consideration to the rival contentions of
 the parties and on carefully examining the materials on record we find          D
 sufficient force in the contentions raised by the learned counsel for the
 appellant and we are unable to agree with the submissions 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     E
of Shri Biswas 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 our mind that if the irregularities and illegalities found by Shri      F
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           G
even after going through the Biswas Committee Report which in no uncer-
tain 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 person on 28th February,   H
     150                   SUPREME COURT REPORTS (1996] SUPP. 9 S.C.R.

A 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
B.   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 act 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
C    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 interferred 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
D    the appointments already made. But so far as respondent 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 appoint-
     ment had been made because of the impugned direction of the Patna High
     Court in C}VJC No. 379 of 1993 and it was specifically indicated in the
     letter of appointment that the appointment would be subject to the decision
E    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 averaged
F    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.

     S.V.K.I.                                                    Appeal allowed.