Candidate in a Bihar Public Service Commission selection scored 246 against an EBC cutoff of 248 and sought appointment claiming vacancies arose from non-joining of selected candidates. Court held he had no claim as he was not declared successful and the list cited was not a wait list; distinguished all precedents relied upon.
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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.1661 of 2023
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Akhilesh Kumar, Son of Krishna Prasad, Resident of Village- Purani Sahar, Ward No.- 06, Post Office and Police Station- Aurangabad, DistrictAurangabad.
... ... Petitioner/s
Versus
... ... Respondent/s
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Appearance : For the Petitioner : Mr.Dhanendra Chaubey, Advocate For the State : Mr.Sarvesh Kumar Singh, AAG-13 Mr.Tej Pratap Singh, AC to AAG-13 For B.P.S.C. : Mr.K.K.Jha, Sr. Advocate Mr.Amish Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT
Date : 24-07-2023
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ATMA/Assistant Director, Agriculture Services, Category-1 (Agronomy and equivalent). He has approached this court being aggrieved by his non-selection and seeks a direction upon the respondents to allow the petitioner to join services for which the selection process was conducted. The joining is claimed with effect from the date on which others selected candidates have joined in the Agriculture Department.
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selection process was conducted.
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No. 378 having total marks 246. It is his case that the last candidate recommended from his category was Raju Kumar Gupta at Serial No. 375, who did not join. He, therefore, submits that the two vacancies left on account of non-joining of the two candidates in the merit wise list at Serial No. 256 and 291 should be filled up by recommending the petitioner since he was the next candidate after Raju Kumar Gupta in the merit wise list.
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for appointment.
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(supra), is inapplicable to the facts and circumstances of the instant case. In the case of Sudhir Kumar Tiwary (supra), the court considered the fact that the petitioner therein had obtained the same marks as the last candidate. Such is not the position in the instant case where admittedly the petitioner has obtained 246 marks whereas the cutoff marks for candidates in the petitioner’s category (EBC) was 248. The instant case is not a case of tie up. The decision in the case of Akash Kumar (supra) is also inapplicable to the facts and circumstances of the instant case, for the reason that division bench in that case had also considered the petitioner’s case as the petitioner therein had obtained the same marks (536) as that of the last selected candidate in his category (Backward Class Category). It is in this circumstance that the division bench held the petitioner entitled to consideration. Once again the division bench as in the case of Sudhir Kumar Tiwary (supra) has considered the fact that the petitioner was having same marks as the last selected candidate, which is not the position in the instant case. Similar was the situation in the case of Manoj Manu and Another (supra). It is in this context that the Hon’ble Apex Court in paragraphs 16 and 17 of the said judgment has considered and directed as follows:-
“ 16. It is not the case of UPSC that under no
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circumstances the names are sent by way of supplementary list, after sending the names of the candidates equal to the vacancies. As per UPSC itself, names of “repeat/common” candidates are sent and in the present case itself, three names belonging to such category were sent. However, exclusion of the persons like the appellants has clearly resulted in discrimination as one of those three candidates Rajesh Kumar Yadav had also secured 305 marks and once he was appointed to the post in question, the appellants with same marks have been left out even when the vacancies were available.
17. We are, therefore, of the opinion in the facts of the present case, the decision of UPSC in forwarding three names against requisition of DoPT for six vacancies was inappropriate. We, accordingly, allow the present appeal, set aside the order of the High Court [Manoj Manu v. Union of India, WP (C) No. 3297 of 2011, decided on 16-5-2011 (Del)] as well as the Tribunal [Manoj Manu v. Deptt. of Personnel and Training, OA No. 3511 of 2010, order dated 29-3-2011 (CAT)] and issue a mandamus to UPSC to forward the names of the next three candidates to DoPT for appointment to the post of Section Officer's grade. They shall get the seniority from the date when Rajesh Kumar Yadav was appointed to the said post. Their pay shall notionally be fixed, without any arrears of the pay and other allowances. No costs. ”
for the petitioner is that of Prince and Others (supra). This judgment also does not apply to the facts of the instant case. The division bench in that case had considered the statutory rules wherein there was a requirement of operating a wait list/panel for a period of two years in respect of the anticipated vacancies occurring within this period for being filled up in the said manner in order of merit. No such rule has been brought to
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the notice of this court by learned counsel for the petitioner, based on which the petitioner can claim that the authorities were obliged to maintain a wait list or panel. In fact, it is an admitted position that final result of selected candidates was to the exclusion of the petitioner. The last candidate selected in his category was having more marks than him. The petitioner in fact was having less than cutoff marks based on which the final result was published.
(Madhuresh Prasad, J)
shashank/-
| AFR/NAFR | NAFR |
|---|---|
| CAV DATE | NA |
| Uploading Date | 24.08.2023 |
| Transmission Date | NA |
1 issue framed by the court
Whether a candidate scoring below the category cutoff can be recommended for appointment from a merit-wise list when selected candidates did not join.
Colour shows how this judgement treated each authority
Manoj Manu and Another versus Union of India and OthersDistinguished¶10
(2013) 12 SCC 171 · Who else cites this
Sudhir Kumar Tiwary versus The State of Bihar and OthersDistinguished¶10
C.W.J.C. No. 7419 of 2020
Akash Kumar versus The State of Bihar and OthersDistinguished¶10
C.W.J.C. No. 1586 of 2023
Prince and Others versus State of Bihar and OthersDistinguished¶11
2023 (4) BLJ 137
Akhilesh Kumar
The State of Bihar
The Secretary, Department of Agriculture
The Joint Secretary, Department of Agriculture
The Director, Department of Agriculture
The Bihar Public Service Commission
Madhuresh Prasad
As recorded by the court registry
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