Surendra
Narain Singh & Ors Vs. State of Bihar & Ors [1998] INSC 243 (24 April
1998)
K. Venkataswami,
S.P. Kurdukar S.P. Kurdukar. J.
ACT:
HEAD NOTE:
A
common question as regards the interpretation of Rule 20 of Bihar Judicial
Service (Recruitment) 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 Articles 234 of the Constitution of India for appointment of Munsifs
in the Bihar Civil Service (Judicial) Branch. On coming into force of the new
Criminal procedure Code w. e. f. 1. 1. 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 '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 of 200 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 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 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. Those 158 candidates came to
be appointed between March 1975 and 22nd May, 1975 as Munsifs under 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 initially for a period of
six months but the said period was extended thereafter till their confirmation
on 22. 11. 1985. Between June
14, 1975 and August 4, 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 SC/ST category. Resultantly 33 posts of
SC/ST candidates remained vacant for want of qualified candidates. There was
acute shortage of Munsifs and since the candidates from the SC/ST category were
not available in the merit list prepared under 12955 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 1st
September, 1976 these 33 candidates came to be appointed as Munsifs, however
one of them died 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 appointed. 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
Rules 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 (1) the appellants (writ petitioners) who were
selected and appointed under 1974 Rules and (2) the SC/ST candidates who were
selected and appointed under 1955 Rules. It is a common premise that the respondent
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
15th Judicial Service Examination under 1955 Rules were 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. 1. 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 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 1985
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 Munsifs
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 the Rule was sustained by the High Court being unjust
and arbitrary 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 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 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 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 dated of actual appointment".
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:
"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 parties to the present proceedings may 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 from 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 Special Leave Petition
Nos.8698, 9354 and 11565/86 must be treated conclusive and binding upon the
respondents and in view thereof the respondents 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 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
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 belong to SC/ST
group. They were appointed as Munsifs on the basis of the merit list 15th Bihar
Judicial Service Examination held under 1995 Rules. They pleaded that since
they were appointed against the reserved posts earlier to respondent Nos.3 to
34 although they were placed higher in the merit list, they could not
legitimately claim seniority over them. The seniority must be 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 by the Government
of Bihar.
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 15th
Judicial Examination under 1955 Rules followed the correct procedure laid down
under Rules 19 and 20 and prepared a merit list of 24% candidates and
recommended 158 candidates for appointment as Munsifs. The break up was 143
form 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 in addition t one more recommendation from
general category on 24. 8. 1977. It was pleaded that there was a procedural
delay in de-reserving 3 vacant posts to general category and there was no fault
of theirs. These 33 vacancies of Munsifs were earmarked for 13th examination
and were in existence at the time when respondents Nos. 3 to 34 were appointed.
The appellants have no 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 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 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 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 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 of marks obtained in the optional papers. From the 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".
11.
After preparation of the list in terms of Rule 19 if the number of qualified
candidates belonging to SC/ST does not contain an adequate number 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, which submitting their recommendations under Rule 19,
consider the claims of qualified candidate belonging to the 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 Casts
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 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 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" that therein assume great
importance. Respondent Nos.3 to 34 figured in the supplementary list, which was
submitted by the BPSC under Rule 20 of 1955 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 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
reserved categories were not available, the BPSC prepared a supplementary list
in terms of Rule 20 nominating these 33 candidates from the General Category
from the merit list of 15th Examination held under 1955 Rules. The 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 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 1st
September, 1976 were
given the seniority over these appellants who were appointed between March,
1975 and 22nd may, 1975. In substance the claim led by both sets of appellants
in these appeals is that the date of 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 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 vs. Bihar, 1990 (2) B.L.J.R. 13323 the controversy
stood concluded in favour of the appellants inasmuch as this decision of the Patna
High Court was unsuccessfully challenged in Special 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 Appeal
Nos.1381-84/91 urged that Rule 20 is in two parts (1) 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 number of such
candidates as they are in their opinion attained the required 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 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 and are in all
respects suitable for the appointment to the service.
14.
These submission at the first flush appear to be attractive. If thus submission
is to be accepted the necessary consequence would be to review the performance
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 t 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 given in the Black's Law Dictionary 6th Edition at page 1432:
"Such
of that kind, having particular quality or character specified. 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 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. vs. J.K. Sayani,
AIR 1976 madras 55 (at page 59) and Union Of India vs. Waziar Singh AIR 1980
Rajasthan 252 (at page 253).
16.
Countering this submission, it was urged on behalf of the respondents 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
the 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 permissible. Since the candidates from SC/ST were not available fulfilling
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 interpretation 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 lest. The merit list prepared by the
BPSC nominating 33 candidates therefrom unmistakably indicated that the BPSC
prepared the merit list of 241 candidates who were qualified under Rule 19 of
whom only 15 candidates of SC/ST could be nominated. No other qualified
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 candidate 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
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 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
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 name cannot be modified and the same has to remain in force until
the 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 appointments to
the service. In this view of the matter, we must hold that 33 candidates
nominated by the 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 1991, since their placements, they
cannot claim seniority over them.
18. It
was then urged that the BPSC and the State Government have no owner 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 carried forwarded.
This submission does not appeal to us for the reason that there is no provision
under 1955 Rules to carry forward the vacancies/posts 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 courses. 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 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 Munsifs. 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 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 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 the 15th Examination was held under 1955
Rules. These appellants, therefore, cannot claim the seniority over respondent
Nos.3 to 34 in the seniority list.
19.
Mr. Tripathy 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 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 in
constitutional on the ground that their adhoc services were 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, laid this Court by
filling three Special Leave Petition Nos.8698, 9354 and 11656 of 1986.
This
Court dismiss these Special Leave Petition 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 to 26 that the candidates who
were selected as a result of the 15th Examination and whose appointment was
delayed on account of the 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".
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".
21.
Mr. Tripathy 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 of their rank in the merit
list of the 15th Examination. He further urged that any appointment other than
two categories referred to in the above quoted order of this Court, from the
Select List of 15th Examination made subsequent to 23-5-1975 must rank in 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 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 order ? We have already held that the respondent Nos.3 to 34 belonging to
the patch 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 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.
22.
Mr. Tripathi then urged that the appellants who came to be appointed on
23-5-1975 to the 152 posts of Munsifs under 1974 Rules, must be deemed 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 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 Criminal Procedure Code
whereby the judicial powers of the Executive Magistrate came to be withdrawn
and in order to code 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 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. 1381-84 of 19, therefore, cannot claim that
they were appointed when the advertisement did 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 in Civil Appeal Nos.
1381-84 of 1991 cannot be said to be contrary to the above outed order of this
Court.
23.
Coming to the second limp 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 the part of
the Rule and writ petitioners/appellants in Civil Appeal Nos. 1381-84/91 prayed
that their adhoc services be recorded 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 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 of this Court on SLPs is quite clear to which we
have already made a reference in the preceding para. We are of the new 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 Court in Vijay
Kant vs. State of Bihar. 1986 BBCJ 677 for interoreting
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 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.
26.
Coming to the Civil Appeal Nos. 1385-85/91 filled 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 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 any of
these appeals. Appeals to stand dismissed but, however, in the circumstances of
the cases, parties are directed to bear their own costs.
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