Holding

Respondents No. 3‑34, appointed via the supplementary list under the 1955 Rules, are senior to the appointees under the 1974 Rules, and the phrase “such candidates” in Rule 20 is not confined to SC/ST candidates.

Summary

The case concerned the inter‑se seniority of Munsifs appointed under two different recruitment regimes in Bihar – the 15th Judicial Service Examination governed by the Bihar Judicial Service (Recruitment) Rules, 1955 and the ad‑hoc recruitment under the Bihar Civil Service (Judicial Branch) Rules, 1974. Thirty‑two respondents (Nos. 3‑34) were appointed later, in 1976, from a supplementary list prepared under Rule 20 of the 1955 Rules to fill SC/ST reserved vacancies that could not be filled initially. Appellants appointed under the 1974 Rules claimed seniority on the basis of their earlier appointment dates, while the respondents argued that seniority should follow the merit‑list ranking and that Rule 20’s phrase “such candidates” was not limited to SC/ST candidates. The Supreme Court held that the supplementary list could include general‑category candidates, that seniority must be based on the merit‑list rank, and that the respondents were senior to the 1974‑Rule appointees. The Court also rejected the contention of res judicata, stating the earlier SLPs did not decide the inter‑se seniority issue. The appeal was dismissed.

Issues considered

The proper interpretation of Rule 20 of the Bihar Judicial Service (Recruitment) Rules, 1955, especially the phrase “such candidates”.
Whether seniority of Munsifs should be determined by date of appointment or by rank in the merit list.
Whether the State could de‑reserve SC/ST posts and fill them with general‑category candidates.
Whether the earlier Supreme Court decisions in Rajendra Sinha’s case bar the present claim (res judicata/constructive res judicata).

Legislation cited

Code of Criminal Procedure, 1973
Constitution of Indias. Art. 14, s. Art. 16, s. Art. 234

Subjects

seniorityservice lawrecruitment rulesSC/ST reservationinter se seniorityRule 20 interpretationres judicataBihar Judicial ServiceMunsifmerit list

Judgment

SURENDRA NARAIN SINGH AND ORS. A
11.

STATE OF BIHAR AND ORS.

APRIL 24, 1998

[K. VENKATASWAMI AND S.P. KURDUKAR, JJ.] B

Service Law :

Bihar Judicial Service (Recruitment) Rules, 1955/Bihar Civil Service
(Judicial Branch) Ad Hoc Recruitment Rules, 1974 : C

Munsifs--Seniority-Munsifs selected in the 15th Examination under
1955 Rules but given appointment as per supplementary list, after additional
temporary Munsifs appointed under 1974 Rules-Inter se seniority-Held,
Muns ifs selected under 1955 Rules would be placed senior to those appointed
under 1974 Rules- Munsifs belonging to Scheduled Castes/Scheduled Tribes D
selected 15th Examination figuring below in merit list though appointed
-" earlier cannot claim seniority over the Munsifs selected in the same
Examination and given appointment as per supplementary list-Expression
"such candidates" occurring in Rule 20 of 1955 Rules referable to the
candidates who figure in the merit list and are, in the opinion of the E
Commission, suitable for appointment to the service.

Bihar Public Service Commission issued, on 3.4. 1973 an advertisement
for 200 posts of Munsifs for the 15th Examination under the Bihar Judicial
Service (Recruitment) Rules, 1955. Out of these 200 posts 152 posts were
to be filled by the general category candidates and 48 posts were reserved F
for Scheduled Castes/Scheduled Tribes. The BPSC after conducting the
y written examination and viva-voce, forwarded to the Bihar Government a list
of 158 candidates, who were appointed as Munsifs between March 1975 and
22.5.1975. Later, 9 more candidates from the said list got appointed, between
14.6.1975 and 4.8.1975. The remaining 33 posts belonging to SC/ST category G
could not be filled up for want of qualifie~ SC/ST candidates.

Meanwhile, on coming into force of the Code of Criminal Procedure,
~ 1973 w.e.f. 1.1.1974 and work of Executive Magistrates being transferred to
Judicial Magistrates, 152 additional temporary posts of Munsifs were created.
In order to fill these posts, the Bihar Civil Service (Judicial Branch) Ad hoc H
1165
1l
1166 SUPREME COURT REPORTS [1998) 2 S.C.R.

A Recruitment Rules, 1974 were framed. The BPSC, after conducting the
written examination and viva-voce tests under the 1974 Rules, sent to the
Government a merit list of 152 candidates who were appointed between
23.5.1975 and 17.11.1976, initially for a period of six months, but the said
period was extended till their confirmation.
,,
B Since there was acute shortage of Munsifs and candidates from SC/
ST categories were not available, the State Government dereserved the 33
posts reserved under the 15th Examination. Accordingly, a supplementary
list of 33 candidates from the r.1erit list of the 15th Examination held under
the 1955 Rules was forwarded to the Government and these candidates were
c appointed between 17.6.1976 and l.9.1976. One of them died later. The
remaining 32 Munsifs (respondents No. 3 to 34) were given seniority over
the Munsifs appointed under the 1974 Rules and were confirmed with effect
from different dates in the year 1977 and 1978 whereas the Munsifs appointed
under the 1974 Rules were confirmed w.e.f. 1980. The Munsifs appointed
under the 1974 Rules as also the Munsifs belonging to SC/ST categories
D appointed under the 15th Examination filed writ petitions challenging
determination of inter-se seniority vis-a-vis the 32 Munsifs (respondents No.
"-
3 to 34) appointed later in point of time under the 1955 Rules.

In the meantime litigation with regard to the seniority started in the
year 1985 as the Munsifs selected and appointed in subsequent three batches
E of 16th, 17th and 18th Judicial Service Examinations were made senior to
the Munsifs appointed under the 1974 Rules. Rule 9 of the 1974 Rules,
which stated that a Munsif appointed under the Rule would not be entitled
to reckon the period of his service as temporary Munsif for the purpose of
has seniority, was struck down by the High Court, and seniority of the
Munsifs appointed under the 1974 Rules was directed to be refixed Rajendra
F
Sinha & Ors. v. State of Bihar & Ors., (1992) BLJR 1332. Against this
decision some of the Munsifs nf 15th, 16th, 17th and 18th batches of Bihar ,..
Judicial Service Examinations filed special leave petitions before this Court.
The said special leave petitions were dismissed with the observation that the
candidates selected as a result of 15th Examination and whose appointments
G were delayed due to medical examinations and police verification should be
given seniority on the basis of their rank in the merit list; and any one .
appointed subsequent to 23.5.1975, on account of there being no vacancy,
would rank in seniority according to length of service from date of actual ~
appointment.

H The High Court dismissed the writ petitions filed by the Munsifs
S.J\I: SINGH v. STATE 1167
appointed under the 1974 Rules as also those filled by the Munsifs belonging A
to SC/ST categories selected pursuant to the 15th Examination. The former
filed CAs No. 1381-84 of 1991, whereas the latter filed CAs No. 1385-86
of 1991.

It was contended for the appellants that the date of appointment to the
post of Munsif should be the criteria for determining the seniority; that in B
the absence of any provision under the Bihar Judicial Service Rules
permitting the Government to convert the posts reserved for SC/ST to general
category, the Government could not convert the remaining 33 posts of SC/
ST into general category, and these posts would be deemed to be carried
forward and filled by the candidates selected under the 1974 Rules; and C
there being no vacancie.~, respondents No. 3 to 34 could not have at all been
given appointment. It was also contended for the appellants that the
supplementary list mentioned in Rule 20 of the Bihar Judicial Service Rules
must contain in sufficient number the candidates belonging to SC/ST as the
words "such candidates" used in the Rule were referable to only SC/ST
candidates and inclusion of general category candidates in the supplementary D
list to fill the vacant posts reserved for SC/ST would be inconsistent with
the object and intention of Rule 20; and that in view of the order of this Court
in the earlier special leave petitions arising out of Rajendra sinha 's case, the
claim of respondents 3 to 34 was barred by res judicata and/or by constructive
res judicata.
E
Dismissing the appeal, this Court

HELD : 1. Respondents No. 3 to 34 who belong to earlier vacancies of
the 15th Examination held under the Bihar Judicial Service (Recruitment)
Rules, 1955 would be placed senior in the seniority list to the candidates who F
were appointed under the Bihar Civil Service (Judicial Branch) Ad hoc
Recruitment Rules, 1974, namely, the appellants in C.A.s. No. 1381-84 of
1991. As regards the appellants in Civil Appeals No. 1385-86of1991, since
their placement in the merit list was below respondents No. 3 to 34, they
cannot claim seniority over them. The High Court has committed no error
while determining the inter-se seniority of the appellants vis-a-vis respondetns G
No. 3 to 34. [1182-C-F[

2.1. It cannot be said that the BPSC should have submitted a
supplementary list nominating sufficient number of SC/ST candidates by
reviewing the performance of SC/ST candidates who failed to secure in the
15th Examination even minimum 30% of marks fixed by BPSC in consulation H
1Q
1168 SUPREME COURT REPORTS [1998] 2 S.C.R.

A with the High Court. This would involve restructuring of the merit list. Such
a procedure cannot be read in Rule 20 of the 1955 Rules. fl 177-Bf

2.2. In the facts and circumstances of the case, the expression "such
candidates" in Rule 20 of the 1955 Rules would be referable to the candidates
who figured in the merit list prepared by the BPSC and out of this merit list
B a supplementary list of candidates under Rule 20 was required to be prepared
who in the opinion of the BPSC have attained the required standard of
qualifications and are in all respects suitable for the appointment to the
service. This may even includ~ SC/ST candidates. Any other construction
would result into keeping the 33 posts reserved for SC/ST vacant and
c consequently there would have been shortage of Munsifs to man the judiciary.
Judiciary being a vital organ to administer the law, any further relaxation
may cause a damage to the institutional structure. For these reasons the
expression "such candidates" appearing in Rule 20 cannot be given restricted
meaning. The supplementary list has to contain the names of the candidates
from the merit list. 11178-B-D]
D
Bright Bros. (P) ltd v. J.K. Sayani, AIR (1976) Mad. 55 and Union of
India v. Waziar Singh, AIR (1980) Raj. 252, cited.
2.3. Once the merit list is prepared, the same cannot be modified and
the same has to remain in force until the supplementary list is prepared to
fill in the advertised posts but without any compromise as regards merit.
E
(1178-Ef
3. There is no provision under the 1955 Rules to carry forward the
vacancies/posts reserved for SC/ST. Therefore, it was not permissible for
the BPSC or the State Government to adopt such course; and, in view of the
mandate of Rule 20, the BPSC was obliged to nominate the candidates from
F ~he merit list to the vacant posts reserved for SC/ST. The nomination and
appointment of respondents No. 3 to 34 was delayed till 1976 since the
supplementary list could not be prepared because of som~ misconception of
law for which these respondents cannot be blamed. It is in these circumstances
'
that respondents No. 3 to 34 belonging to the batch of the 15th Examination
G held under the 1955 Rules in 1974 will have to be given the placement in
the seniority list in terms of the merit list. The appellants in Civil Appeals
No. 1381-84 of 1991 were admittedly selected and appointed as Munsifs
pursuant to the 152 posts advertised on October 14, 1974 under the 1974
Rules after the 15th Examination was held under the 1955 Rules. These -<
appellants, therefore, cannot claim seniority over respondents No. 3 to 34 in
H the seniority list. 11179-B-EI
)t
S.N. SINGH v. STA TE J 169
1
4. The seniority given to the respondents No. 3 to 34 over the appellants A
in Civil Appeals No. 1381-84of1991 cannot be said to be contrary to the
order of this Court passed in the special leave petition arising out of Raje11dra
Si11lu1's case. The dispute raised in that case was confined to the challenge
to a part of Rule 9 of the 1974 Rules and writ petitioners/appellants in Civil
Appeals No. 1381-84of1991 prayed that their ad hoc services be reckoned
for the purposes of seniority. The claim of respondents No. 3 to 34 being
B
senior to the appellants was never put in issue and consequently there was
no determination of inter se seniority in Raje11dra Sinha 's case. The claim
of the respondents No. 3 to 34 cannot be rejected in the present proceedings
on the ground of res judicata or constructive res judicata.
(1181-G-H; 1182-A] c
Rajendra Sinha v. State of Bihar, (1990) 2 8.L.J.R. 1332, referred to.
5. The 33 vacant posts to which respondents no. 3 to 34 were appointed
were meant for the candidates who appeared for the 15th Examination under
the 1955 Rules. These 33 vacancies were never carried forward when the
fresh advertisement was issued on 14th October, 1974 for appointment of D
152 Munsifs under the 1974 Rules. These 152 posts were created first time
.>,
under the 1974 Rules because of amendment to the Criminal Procedure
Code whereby the judicial powers of the Executive Magistrate came to be
withdrawn and, in order to cope with this additional work, these additional
152 posts were specially created under the 1974 Rules. Accordingly, the 33
vacancies of the 15th Examination under the 1955 Rules continued to exist E
not only on 23.5.1975 but alsa on the date they were filled in by the
supplementary list nominating respondents No. 3 to 34 by the B.P.S.C.
[1181-C-DI
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1381-84
of 1991. F
)'-
From the Judgment and Order dated 3.5.90 of the Patna High Court in
C.W.J.C. Nos. 4759/87, 1043/88, 1686/87 and 233of1988.

WITH

Civil Appeal Nos. 1385-1386 of1991. G

From the Judgment and Order dated 3.5.90 of the Patna High Court in
C.W.J.C. No. 1686/87 (R) and 233/88(R).

Rakesh Dwivedi, V.A. Bobde, P.P. Tripathi, S.B. Upadhyay, P.O. Sharma,
M.P. Jha, Alok K. Shanna, K.V. Viswanathan and Anil Agarwalla) for Mis/ L.P. H
1170 SUPREME COURT REPORTS [1998] 2 S.C.R.

A Aggarwalla!& Co., Ranjit Kumar, Chandra Bhusan Pd. and B.B. Singh for the
appearing parties.

The Judgment of the Court was delivered by

S.P. KURDUKAR, J. A common question as regards the interpretation
B 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 Muns ifs in the Bihar Civil Service (Judicial) Branch. On coming into force
C of the new Criminal Procedure Code w. e. f. I. I. 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) Adhoc Recruitment Rules, 1974 (hereinafter for short
D '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 of200 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
E 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
F 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
G 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
H initially for a period of six months but the said period was extended thereafter
S.N. SINGH v. STATE [S.P. KURDUKAR, J.] 1171
till their confirmation on 22. 11. 1985. Between June 14, 1975 and August 4, A
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 SCI
ST category. Resultantly 33 posts of SC/ST candidates remained vacant for
want of qualified candidates. There was acute shortage of Munsifs and since B
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 !st September, 1976 these 33
candidates came to be appointed as Munsifs, however one of them died C
lateron. The respondent 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
appGinted. 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 Ruks D
. 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 (I) the appellants (writ petitioners) who were selected and
appointed under I 974 Rules and (2) the SC/ST candidates who were selected
and appointed under 1955 Rules. It is a common premise that the respondent E
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.

4. The controversy as regards the seniority started when the Munsifs
appointed from I 5th Judicial Service Examination under I 955 Rules were F
confirmed by Notification dated 9.3.1983 w. e. f. the different dates in the years
1977 and 78 whereas the Munsifs appointed under 1974 Rules were confirmed
by Government Notification dated 22. 11. 1985 w. e. f. I. 9. 80 which gave
advantage to these 32 respondents. Similarly the Munsifs appointed in
subsequent three batches i. e. 16th, 17th and 18th Judicial Service Examinations G
were also made senior to the Munsifs appointed under 1974 Rules. It would
be appropriate at this stage to refer to the litigation started in I 985 at the
behest of the appellants in CWJC Nos.6216/85 wherein a part of Rule 9 of 1974
Rules was challenged. This Rule says that on absorption of Munsif appointed
under this Rule "will not be entitled to reckon the period of his service as
temporary Munsif for the purpose of his seniority". Challenge to this part of H
1172 SUPREME COURT REPORTS [1998] 2 S.C.R.

A the Rule was sustained by the High Court being unjust and arbitr.:ry and
consequently a direction was issued by the Patna High Court that seniority
of the appointees under 1974 Rules be re-fixed in accordance with law ignoring .;..
the struck down part of Rule 9.

5. The Munsifs appointed under 1974 Rules including some of the
B appellants claimed seniority from the actual date of their appointments i. e.
23.3.1975 and requested that they be placed above the present respondents
Nos 3 to 34. Against the decision rendered by the Patna High Court in CWJC
No.6216/85 some of the Munsifs appointed pursuant to 15th, 16th, 17th and
18th batches apprehending that their seniority might be affected moved this
C Court by filling three Special Leave Petition (Civil) Nos.8699, 9354 and 11565/
86 and the same were dismissed in the following terms:

"Special Leave Petitions are dismissed. We shall make it clear and in
fact it was also conceded by the Counsel for the respondent Nos. 1-
26 that the candidates, who were selected as a result of the 15th
D examination and whose appointment was delayed on account of medical
examination and police verification of antecedents should be given
seniority on the basis of their rank in the merit list in that examination.
Any one appointed subsequent to 23. 5. 75 on account of there being
no vacancy, will rank in seniority according to length of service from
the date of actual appointment".
E
6. The Petitioners in the Special Leave Petition No.9354/86 filed a Review
Petition for clarification of this order but the same was rejected. The order
reads as under:

F "We have gone through the Review Petition and other connected
papers. We do not find any merit in the review petition which is
accordingly dismissed".

On this backdrop, pleadings of the panies to the present proceedings may
G now be summarised. According to the appellants they were appointed in
1975/1976 earlier in point of time to the respondents Nos.3 to 34 and, therefore,
these respondents could not have been, placed above them in the seniority
list. Such a course was illegal, unconstitutional and violative of Articles 14
and 16 of the Constitution of India. The decision of the Patna High Court in
CWJC No.6126/85 and the order passed by this Court while dismissing the
H Special Leave Petition Nos.8698, 9354 and 11565/86 must be treated conclusive
S.N. SINGH v. STATE [S.P. KURDUKAR;J.] 1173
and binding upon the respondents and in view thereof the respondents A
cannot claim the seniority over them. The appellants pleaded that the
respondents projected an incorrect picture before the Supreme Court that the
appointments of some of the Munsifs of 15th Judicial Examination were
delayed on account of medical report and police verification. None of the
respondents belonged to these categories but on the contrary they were B
appointed as Munsifs against the posts reserved for SC/ST. The State
Government had no power to de-reserve these 33 posts without following the
due procedure. These 33 posts must be deemed to have remained vacant and
against these vacancies the appellants came to be appointed. Thus there
existed no vacancy and, therefore, respondents Nos. 3 to 34 could not claim
that they were appointed against such vacant posts. The appellants having C
been appointed earlier, they must be treated senior to respondents Nos.3 to
34. Length of service would be the only proper criteria for fixing the seniority
and any deviation therefrom would be violative of Articles 14 and 16 of the
Constitution of India.

7. The other set of appellants in Civil Appeal Nos.1385-86 of 1991 D
belong to SC/ST group. They were appointed as Munsifs on the basis of the
merit list 15th Bihar Judicial Service Examination held under 1955 Rules. They
pleaded that since they were appointed against the reserved posts earlier to
respondent Nos.3 to 34 although they ~ere placed higher in the merit list,
they could not legitimately claim seniority over them. The seniority must be E
determined on the basis of actual date of appointment and not with retrospective
effect. The order dated 14. 6. 85 of the Standing Committee of the High Court
was illegal inasmuch as these respondents were made senior to them on the
erroneous assumption that these 33 posts reserved for SC/ST were de-reserved
but ignoring that no due procedure was followed by the Government of Bihar.
F
8. The High Court in its counter affidavit which came to be adopted by
the State of Bihar pleaded inter alia that the appellants were appointed under
1974 Rules as ad hoc Munsifs whereas respondents Nos.3 to 34 were appointed
against 200 posts under 1955 Rules. The BPSC pursuant to the advertisement
issued in April, 1973 in respect of J 5t'li Judicial Examination under 1955 Rules G
followed the correct procedure laid down under Rules 19 and 20 and prepared
a merit list of24 I candidates and recommended 158 candidates for appointment
as Munsifs. The break up was 143 from general category and 15 from SC/ST.
They came to be appointed between 8. 3. 1975 to 22. 5. 1975 as per the merit
list keeping in view the reservation for SC/ST. Further recommendations of
eight candidates from general category were made on 14.6.1975 and 4. 7. 75 H
1174 SUPREME COURT REPORTS [1998) 2 S.C.R.

A in addition to one more recommendation from general category on 24. 8. 1977.
It was pleaded that there was a procedural delay in de-reserving 33 vacant
posts to general category and there was no fault of theirs. These 33 vacancies >-
of Munsifs were earmarked for 15th examination and were in existence at the
time when respondents Nos. 3 to 34 were appointed. The appellants have no
B claim over these 33 de-reserved posts as they were selected under 1974 Rules.
The decision taken by the Standing Committee of the High Court on 10. 9.
1987 treating the respondent Nos.3 to 34 as seniors to the appellants was
perfectly legal and justified and the earlier decision of the Standing Committee
dated 14. 7. 86 stood rescinded. The appellants have no right to claim seniority
over the respondents Nos. 3 to 34 which was determined in accordance with
C the recommendations made by the BPSC in terms of Rule 20 of 1955 Rules.

9. The Patna High Court after considering the rival contentions of the
parties and no interpretation of Rule 20 of 1955 Rules by its judgment and
order dated May 3, 1991 dismissed all the Writ Petitions. It is against this
judgment and order the appellants (writ petitioners) have filed these Appeals
D by Special Leave to this Court. The Main question that needs to be considered
in these Appeals relates to the interpretation of rule 20 of 1955 Rules and in
particular the words "as such" occurring therein.

10. Rule 19 deals with the preparation of the merit list in terms of the
E marks obtained by the candidates at the written examination and viva-voce
test.

Rule 19 reads thus :

"The marks obtained at the viva -voce test shall be added to the marks
obtained in the written examination. The names of candidates will
F then be arranged by the Commission in order of merit if two or more
candidates obtained equal marks in the aggregate, the order shall be
determined in accordance with the marks secured at the written
examination of the candidates concerned be also equal then the order
shall be decided in accordance with the total number of marks obtained
G in the optional papers. From tl'ie list of candidates so arranged the
Commission shall nominate such number of candidates as may be
fixed by the Governor in order of their position in the list. The
nomination so made shall be submitted to the Governor by such date
in each year as the Governor may fix".

H 11. After preparation of the list in terms of Rule 19 if the number of
S.N. SINGH v. STATE [S.P. KURDUKAR. J.] 1175
qualified candidates belonging to SC/ST does not contain an adequate number A
of such candidates, the Commission shall submit a supplementary list
nominating sufficient number of"such candidates" in terms of Rule 20. Rule
20 reads thus:

"The Commission shall, while submitting their recommendations under
Rule 19, consider the claims of qualified candidate belonging to the B
Scheduled Castes and Scheduled Tribes. If the list of nomination
submitted under Rule 19 does not contain and adequate number of
candidates belonging to the Scheduled Castes and scheduled Tribes
who may be appointed to the vacancies reserved for them, the
Commission shall submit a supplementary list nominating a sufficient
number of such candidates as in their opinion attained the required C
standard of qualifications and are in all respects suitable for
appointment to the service".

12. At the outset, it needs to be stated that the controversy in the
preset appeals is confined to the seniority list of the Munsifs in the Bihar
Judicial Service. The appellants lay claim to the seniority over the respondent D
Nos.3 to 34 by reason of their appointments as Munsifs being earlier in point
of time to these respondents. In order to determine the inter se seniority, the
interpretation of Rule 20 and in particular the words "such candidates" used
therein assume great importance. Respondent Nos.3 to 34 figured in the
supplementary list, which was submitted by the BPSC under Rule 20 of I 955 E
Rules to the appointing authority. From the narration of facts set out
hereinabove. It is clear that respondent Nos.3 to 34 were selected, nominated
and appointed as Munsifs pursuant to the 15th Examination held under 1955
Rules. The appellants in Civil Appeal Nos. 1381-84/91 came to be recommended
by the BPSC for appointment of Munsifs under 1974 Rules and in fact some F
were appointed on 23rd May, 1975 and others on 17th November, 1976 as
Munsifs. There is also no dispute that respondent Nos.3 to 34 were appointed
as Munsifs between 17.6.1976 and 1.9.1976 on the basis of the supplementary
list submitted by the BPSC in terms of Rule 20. The posts on which respondent
Nos.3 to 34 were appointed were reserved for SC/ST candidates in 15th
Examination held under 1955 Rules but since the candidates of the two G
reserved categories were not available, the BPSC prepared a supplementary
list in terms of Rule 20 nominating these 33 car.dictates from the General
' under 1955 Rules. The
Category from the merit list of 15th Examination held
appellants in Civil Appeal Nos.1385-86 of 1991 belonging to the reserved
category and they came to be appointed as per the merit list of 15th Examination H
1176 SUPREME COURT REPORTS [ l 998] 2 S.C.R.

A held under 1955 Rules. The respondent Nos.3 to 34 were higher in the merit
list of 15th Examination and, therefore though appointed between 17th June,
1976 and lst September, 1976 were given the seniority over these appellants
who were appointed between March, l 975 and 22nd May, 1975. In substance
the claim led by both sets of appellants in these appeals is that the date of
B appointment to the post of Munsif should be the criteria in finalising the
seniority list and if the said principle is followed, the placement of respondent
Nos.3 to 34 must be below the appellants and other similarly situated persons.
The other challenge led in these appeals to the seniority list by the appellants
is that in the absence of any provision under the Rules permitting the
Government to convert the post reserved for SC/ST Candidates to General
C Category, the Government could not have converted 33 vacancies/posts of
SC/St into general Category. It was also submitted that in view of the decision
of Patna High Court in Rajendra Sinha v. Bihar, (1990) 2 B.L.J.R. 1332 the
controversy stood concluded in favour of the appellants inasmuch as this
decision of the Patna High Court was unsuccessfully challenged in Special
D Leave Petition by some of contesting respondents in the Supreme Court and
even Review Petition came to be dismissed. Strong reliance was placed on the
orders of the Supreme Court in Special Leave Petition and Review Petition to
which a reference will be made shortly.

13. Mr. Tripathi, learned Advocate appearing for the appellants in Civil
E Appeal Nos.1381-84/91 urged that Rule 20 is in two parts (I) the BPSC while
submitting the recommendations under Rule 19 finds that the nominees of SC/
ST to be appointed to the vacancies reserved for them do not contain an
adequate number of candidates belonging to such reserved categories and (2)
the Commission shall submit a supplementary list nominating a sufficient
.mmber of such candidates as they are in their opinion attained the required
F standard of qualifications and are in all respects suitable for appointment to
the service. The words "such candidates" used in Rule 20 are referable to
only SC/ST candidates and to none else. He, therefore, urged that the
supplementary list must contain the nominees in sufficient number belonging
to SC/ST inclusion of the General Category candidates in the supplementary
G list to fill in the vacant posts reserved for SC/ST would be inconsistent with
the object and intention of Rule 20. He urged that it was obligatory upon the
BPSC to submit a supplementary list nominating sufficient number of SC/ST
candidates by reviewing their performance and then from an opinion as to
whether such candidates have attained the required standard of qualifications
H and are in all respects suitable for the appointment to the s~rvice.
S.N. SINGH'" STATE [S.P. KUROUKAR, J.] 1177
14. These submission at the first flush appear to be attractive. If this A
submission is to be accepted the necessary consequence would be to review
the perfonnance of SC/ST candidates who failed to secure even minimum 30%
of marks fixed by the BPSC in consultation with the High Court. This would
involve restructuring of the merit list. We are unable to read such procedure
in Rule 20. No other provision was brought to our notice which would permit B
to undertake such exercise. Mr. Tripathi urged that the expression "such"
used in Rule 20 is a descriptive and a relative word referring to the last
antecedent. To support this submission, he drew our attention to the meaning
r
given in the Black's Law Dictionary 6th Edition at page 1432:

"Such of that kind, having particular quality or character specified. C
.Identical with, being the same as what has been mentioned. Alike,
similar, of the like kind. 'Such' represents the object as already
particularised in terms which are not mentioned, and is a descriptive
and relative word referring to last antecedent".

15. Mr. Tripathi relying upon the above quoted definition urged that the D
word "such" referred to in Rule 20 is referable only to SC/ST candidates and
to no other category. He drew our attention to the Judgments in Bright Bros.
(P) Ltd. v. J.K. Sayani, AIR (1976) Madras 55 (at page 59) and Union Of India
v. Waziar Singh, AIR (1980) Rajasthan 252 (at page 253).

16. Countering this submission, it was urged on behalf of the respondents E
that having regard to the scheme of Rules 19 and 20 of 1955 Rules it would
be erroneous to restrict the meaning of the words "such candidates" to ihe
SC/ST Categories. If the contention of the appellants is accepted then the
BPSC will be violating the criteria as regards minimum qualifying marks
prescribed by it in consultation with the High Court and this course would
not be pennissible. Since the candidates from SC/ST were not available fulfilling F
the criteria of qualifying marks, the only course opened to the BPSC was to
prepare the supplementary list of the candidates from the general category
from the existing merit list to fill in the 33 vacancies.

17. Upon careful consideration of the rival contentions on interpretatkin G
of Rule 20, we are of the considered view that the expression "such candidates"
in Rule 20 cannot be given the restricted meaning to include only SC/ST
candidates in the supplementary list. The merit list prepared by the BPSC
nominating 33 candidates therefrom unmistakably indicated that the BPSC
prepared the merit list of24 l candidates who were qualified under Rule 19 of
whom only 15 candidates of SC/ST could be nominated. No other qualified H
1178 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A candidate of SC/ST was available in the said merit list. There is no provision
under the Rules which enables the BPSC to recall or hold fresh written
examination and viva-voce test and any exercise in that behalf would be
contrary to 1955 Rules. Despite the proviso to Rule 17 no SC/ST candidi!te
could qualify by securing the minimum marks of 30% prescribed by the BPSC
in consultation of the case, the expression "such candidates" in Rule 20
B would be referable to the candidates who figure in the merit list prepared by
the BPSC and out of this merit list a supplementary list of candidates under
Rule 20 was required to be prepared who in the opinion of the BPSC have
attained the required standard of qualifications and are in all respects suitable
for the appointment of service. This may even include SC/ST candidates. Any
C other construction would result into keeping the 33 posts reserved for SC/
ST vacant and consequently there would have been shortage of munsifs to
man the Judiciary. It is not the contention of the appellants that SC/ST
candidates were available in the merit list who fulfil the qualifying marks yet
they were not nominated in a supplementary list. It must be remembered that
judiciary being a vital organ to administer the law, any further relaxation may
D cause a damage to the institutional structure. For these reasons, in our
considered opinion the expression "such candidates" appearing in Rule 20
cannot be given restricted meaning. The supplementary list has to contain the
names of the candidates from the merit list. Once the merit list is prepared,
the same cannot be modified and the same has to remain in force until the
E supplementary list is prepared to fill in the advertised posts out without any
compromise as regards merit. While submitting the supplementary list the
BPSC shall nominate sufficient number of such candidates i. e. candidates
from the merit list who in its opinion have attained the required standard of
qualifications and are in all respects suitable for appointment to the service.
In this view of the matter, we must hold that 33 candidates nominated by the
F BPSC in a supplementary list drawing from the merit list could not be assailed
on any ground. Consequently the respondent Nos.3 to 34 who belong to
earlier vacancies of 15th examination held under 1955 Rules would be placed
senior in the seniority list to the candidates who were appointed under 1974
Rules. As regards the other set of appellants in Civil Appeal Nos.1385-86 of
G 1991, since their placement in the merit list was below these respondents they
cannot claim seniority over them.

18. It was then urged that the BPSC and the State Government have no
power to convert 33 vacancies of SC/ST into General Category. These vacant
posts according to the learned counsel for the appellants ought to have been
H carried forwarded. This submission does not appeal to us for the reason that
S.N. SINGH v. ST ATE [S.P. KURDUKAR, J.] 1179
there is no provision under 1955 Rules to carry forward the vacancies/posts A
reserved for SC/ST. in the absence of any such provision under 1955 Rules,
it was not permissible for the BPSC or the State Government to adopt such
course. It is true that the BPSC after submitting the original list of 152
candidates from General Category, 10 from SC'and 5 from ST Categories
corresponded with the State Government to convert these 33 vacancies/costs B
of SC/ST to General Category and in that process, Government ultimately took
a decision converting these 33 vacancies/posts of SC/ST to General Category
in 1976 and only thereafter the BPSC submitted the supplementary list of 33
candidates from the merit list to the State Government for appointment as
Muns ifs. In the absence of any provision under 1955 Rules to carry forward
the SC/ST vacancies/posts and in view of mandate or Rule 20, the BPSC was C
obliged to nominate the candidates from the merit list to the vacant posts
reserved for SC/ST. The nominations and appointments of respondent Nos.3
to 34 (32) candidates was delayed till 1976 because a supplementary list was
not prepared because of some misconception of Law for which these
respondents cannot be blamed. It is in these circumstances, we are of the
considered view that the respondent Nos.3 to 34 belonged to the batch of D
-". 15th Examination held under 1955 Rules in 1974 will have to be given the
placement in the seniority list in terms of the merit list. The appellants in Civil
Appeal Nos.1381-84/91 were admittedly selected and appointed as Munsifs
pursuant to the 152 posts advertised on October 14, 1974 under'the 1974
Rules after the 15th Examination was held under 1955 Rules. These appellants, E
therefore, cannot claim the seniority over respondent Nos.3 to 34 in the
seniority list.

19. Mr. Tripathi then urged that in view of the order of this Court in
Special Leave Petition, the claim of the respondent Nos.3 to 34 is barred by
res judicata and/or constructive res judicata and they cannot be permitted to F
claim seniority over the appellants.

20. In the case of Rajendra Sinha (supra), the issue involved was that
the appointees under the 1974 Rules challenged a part of the Rule 9 being
arbitrary and unconstitutional on the ground that their adhoc services were G
not reckoned for the purposes of determining their seniority. That part of the
Rule 9 was struck down by the Patna High Court. It appears that some of the
respondents from amongst respondent Nos. 3 to 34 got impleaded to the
proceedings apprehending that their seniority might be affected and, therefore,
moved this Court by filing three Special Leave Petition Nos.8698, 9354 and
11656 of 1986. This Court dismissed these Special Leave Petition in the H
1180 SUPREME COURT REPORTS [ 1998] 2 S.C.R.

A following tenns:

"Special Leave Petitions are dismissed. We shall make it clear and in
fact it was also conceded by the counsel for the respondent Nos. I
to 26 that the candidates who were selected as a result of the 15th
Examination and whose appointment was delayed on account of the
B medical examination and police verification of antecedents should be
given seniority on the basis of their rank in the merit list in that
examination. Any one appointed subsequently 23-5-1975 on account
of their being no vacancy, will rank in seniority according to the
length of the service from the date of actual appointment".

C The order of the Review Petition is as under:-

"We have gone through the Review Petition and other connected
papers. We do not find any merit in the Review Petition which is
accordingly dismissed".

D 21. Mr. Tripathi relying upon this order urged that only such of the
candidates who were selected under the 15th Examination and whose
appointments were delayed on account of medical examination and police
verification of antecedents alone would .be entitled to claim seniority on the
basis ofJheir rank in the merit list of the 15th Examination. He further urged
that any appointment other than two categories referred to in the above
E quoted order of this Court, from the Select List of 15th Examination made
subsequent to 23-5-1975 must rank in the seniority according to the length
of service from the date of actual appointment. As far as the first part of the
order is concerned, there does not seem to be any difficulty in following the
same. On the second part, namely, anyone appointed subsequent to 23-5-1975
F on account of their being no vacancy will rank in the seniority according to
the length of service from the date of actual appointment. What is the
meaning of this second part of the 01der ? We have already held that the
respondent Nos. 3 to 34 belonging to the batch of 15th Examination held
under 1955 Rules and if the supplementary list nominating their names would
have been sent along with the main list prepared in terms of Rule 19, then
G obviously there would have been no difficulty. These respondent Nos.3 to
34 would have been appointed along with the other 158 candidates between
18-3-1975 and 22-5-1975. The difficulty arose because the supplementary list
nominating the respondent Nos.3 to 34 came to be forwarded after 23-7-1975.
Should they suffer for no fault of theirs? Answer is obviously in the negative.

H 22. Mr. Tripathi then urged that the appellants who came to be appointed
>
S.N. SINGH v. STATE [S.P. KURDUKAR, J.] 1181
on 23-5-1975 to the 152 posts ofMunsifs under 1974 Rules, must be deemed A
to have been appointed to 33 vacant posts reserved for SC/ST candidates of
15th Examination held under 1955 Rules. If these vacancies were already filled
in by appointees under 1974 Rules on 23-5-1975, the second part of the order
of this Court must take effect and it must be held that there was no vacancy
on/or after 23-5-1975 and consequently the respondent Nos. 3 to 34 would
rank in the seniority from the dates of their actual appointments. There is a B
fallacy in this argument. These 33 vacant posts were meant for the candidates
who appeared for 15th Examination under 1955 Rules. These 33 vacancies
were never carried forward when the fresh advertisement was issued on 14th
October, 1974 for appointment of 152 Munsifs under 1974 Rules. These 152
posts were created first time under 1974 Rules because of amendment to the C
Criminal Procedure Code whereby the judicial powers of the Executive
Magistrate came to be withdrawn and in order to cope with this additional
work, these additional 152 posts were specially created under 1974 Rules. If
this be so, the 33 vacancies of 15th Examination under 1955 Rules continued
to remain vacant until they were filled in by the supplementary list nominating
respondents Nos.3 to 34 by the BPSC. It is, therefore, in these circumstances D
it must follow that these 33 vacancies of 15th Examination under 1955 Rules
were continued to exist not only on 23-5-1975 but also on that date when the
respondent Nos.3 to 34 came to be appointed. The appellants in Civil Appeal
Nos. 1381-84of1991, therefore, cannot claim that they were appointed in 33
vacancies of 15th Examination under 1955 Rules when the advertisement did E
not include these 33 vacancies but on the contrary 152 new posts were •
created under 1974 Rules for which these appellant appeared, got selected
and appointed. This in our considered view is the true interoretation of the
above quoted order of this Court. It must, therefore, follow that the seniority
given to the respondent Nos. 3 to 34 over the appellants in Civil Appeal Nos.
1381-84 of 1991 cannot be said to be contrary to the above qouted order of F
T this Court.

23. Coming to the second limb of the argument based on the order of
this Court in Special Leave Petitions that the present claim of the respondent
Nos. 3 to 34 is barred by constructive res judicata, we find no merit because
the dispute raised in Rajendra Sinha(supra) was confined to the challenge to G
the part of the Rule 9 and writ petitioners/appellants in Civil Appeal Nos.
1381-84/91 prayed that their adhoc services be reckoned for the purposes of
seniority. The claim of the respondent Nos.3 to 34 being senior to the appellants
was never put in issue and consequently there was, no determination of inter
se seniority in the case of Rajendra Sinha (supra). On the contrary, the order H
1182 SUPREME COURT REPORTS [1998] 2 S.C.R.

A of this Court on SLPs is quite clear to which we have already made a reference
in the preceding para. We are of the view that the claim of the respondent
Nos. 3 to 34 cannot be rejected in the present proceedings on the ground of
res judicata or constructive res judicata.

24. Mr. Tripathi sought to rely upon the judgment of the Patna High
B Court in Vijay Kant v. State of Bihar, (1988) BBCJ 677, for interpreting Rules
19 and 20 1955 Rules. We have gone though the judgment and in our opinion,
it does not help the appellants.

25. For the foregoing conclusions, we are of the view that the respondent
Nos. 3 to 34 who were appointed to the vacancies of 15th Examination under
C 1955 Rules will have to be given seniority over the appellants in Civil Appeal
nos. 1381-84/91, although they came to be appointed later than 23-5-1975 but
against 33 vacancies which were then existing to which these appellants had
no right.

D 26. Coming to the Civil Appeal Nos. 1385-86/91 filed by two appellants
who belonged to the reserved category, were selected in the 15th Examination
under 1955 Rules and were appointed between March, 1975 and 22-5-1975.
Admittedly, they were below the respondents Nos. 3 to 34 in the merit list.
As stated earlier, the merit list of the selected candidates forwarded by the
BPSC was required to be adhered to and there could be no change in the merit
E list. Consequently, these appellants can not claim seniority over respondent
• Nos.3 to 34. The claim of the appellants is therefore without any merit.

27. For the foregoing conclusions, we are of the considered view that
the High Court has committed no error while determining the inter-se seniority
of the appellants vis-a-vis the respondent Nos. 3 to 34. There is no merit in
F any of these appeals. Appeals to stand dismissed but, however, in the
circumstances of the cases, parties are directed to bear their own costs.

R.P. Appeal dismissed.