Patna High Court
Shashank Shekhar Sandilya vs The State Of Bihar on 7 February, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1945 of 2022
======================================================
1. Ankit Kumar Shukla, Son of Shiv Kishor Shukla Resident of Shuklan Ka Purawa,
Naudhiya, P.S. Sangramgarh, District- Pratapgarh, Uttar Pradesh - 230141,
2. Arun Kumar Son of Raj Kumar Resident of Umaria, Pipara, Halia, P.S. - Hallia,
District- Mirzapur, U.P. - 231211.
3. Pradeep Mishra Son of Anil Mishra Resident of Village - Padrahawa, P.O. -
Majhauna, P.S. Campierganj, District- Gorakhpur, U.P. - 273165.
4. Rajnish Kumar Mishra Son of Ram Narayan Mishra Resident of Village - Devali
(Mishrapura), P.O. -Salamatpur, Ghazipur, P.S. - Salamatpur, District- Ghazipur,
U.P. - 275201.
5. Prateek Singh Son of Uday narayan Singh Resident of 257, Saray Bharti, P.S. -
Rasra, District- Ballia, U.P. - 221712.
6. Rahul Joshi Son of R.N. Joshi Resident of 24/25 MMIG, Koshalpuri Colony, Phase
- 1, P.S. Rekabganj, District- Faizabad, U.P. - 224001.
7. Manish Kumar Singh Son of Ravindra Singh Resident of Laudah, Dama,
Mahnagar, P.S. Mehnagar, District- Azamgarh, U.P. - 276204.
8. Alok Mohan Yadav Son of Rajdev Yadav Resident of Siyarampur Tola, Nandpar,
Rampur, Gopalpur, P.S. - Gulthariya, District- Gorakhpur, U.P. - 273007.
9. Shubham Singh Son of Mahendra Pratap Singh Resident of Pure Baburiha, P.O. -
Chhivalaha, Lalganj, P.S. - Sareni, District- Rae Bareli, U.P. - 229216.
10. Sonu Kumar Pandey Son of Munnan Pandey Resident of IIia, Chandauli, P.S. - IIia,
District- Chandauli, U.P. - 232118.
11. Snehi Kumari D/o Dhirendra Kumr Sinha Resident of Birpur Hospital Road, Near
Shiv Mandir, Ward No. 1, Basantpur, P.S. - Birpur, District- Supaul, Bihar.
... ... Petitioner/s
Versus
1. The State of Bihar Through the Additional Chief Secretary, Road Construction
Department, Government of Bihar, Patna.
2. The Secretary, Public Health Engineering Department, Government of Bihar, Patna.
3. The Secretary, Water Resources Department, Government of Bihar, Patna.
4. The Secretary, Building Construction Department, Government of Bihar, Patna.
5. The Secretary, Rural Works Department, Government of Bihar, Patna.
6. The Principal Secretary, Planning and Development Department, Government of
Bihar, Patna.
7. The Principal Secretary, Minor Water Resources Department, Govt. of Bihar, Patna.
8. The Deputy Secretary (Management Cell), Road Construction Department, Govt.
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
2/56
of Bihar, Patna.
9. The Bihar Public Service Service Commission through its Chairman, Patna.
10. The Secretary, Bihar Public Service Commission, Patna.
11. The Joint Secretary - cum - Controller of Examination, Bihar Public Service
Commission, Patna.
12. Robin Kumar (U R Category), Roll No. 225446, Merit SI. No. 2949.
13. Jyoti Kumari (SC Category), Roll No. 212173, Merit SI. No. 2950.
14. Supriya Kumari ST Category), Roll No. 210416, Merit SI. No. 2678.
15. Md. Irshad Ansari (EBC Category), Roll No. 224284, Merit SI. No. 2945.
16. Praveen Kumar (BC Category), Roll No. 210461, Merit SI. No. 2934.
17. Ankita Kumari (BC Lady Category), Roll No. 212350, Merit SI. No. 2847.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 13498 of 2021
======================================================
1. Sudhanshu Kumar S/o Bajindra Singh R/o Village Katauna, P.S. Katrisarai, District
Nalanda
2. Gaurav S/o Lal Babu Thakur R/o Maa Laxmi Complex, 403, Block B, I.A.S.
Colony, P.S. Rupaspur, District Patna.
3. Ankit Singh S/o Sriram Singh R/o Ranipur, Dighwara, P.S. Dariyapur, District
Saran.
4. Shubham Gupta S/o Radhe Shyam Gupta R/o 605/1, Near Kanpur Railway Line,
C.P. Mission Compound, P.S. Sipri, District Jhansi (Uttar Pradesh)
5. Neeraj Kumar Das S/o Chaturanand Das R/o 19 Gopal Vihar Colony, P.S. Sadar
Bazar, District Agra (Uttar Pradesh).
... ... Petitioner/s
Versus
1. The State of Bihar through its Chief Secretary, Govt. of Bihar, Patna
2. Chief Secretary, Govt. of Bihar, Patna.
3. Principal Secretary, Road Construction Department, Govt. of Bihar, Patna.
4. Principal Secretary, Public Health Engineering Department, Govt. of Bihar, Patna.
5. Principal Secretary, Water Resources Department, Govt. of Bihar, Patna.
6. Principal Secretary, Building Construction Department, Govt. of Bihar, Patna.
7. Principal Secretary, Rural Works Department, Govt. of Bihar, Patna.
8. Principal Secretary, Planning and Development Department, Govt. of Bihar, Patna.
9. The Bihar Public Service Commission through its Chairman, Patna.
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
3/56
10. The Secretary, Bihar Public Service Commission, Patna.
11. The Joint Secretary cum Controller of Examination, Bihar Public Service
Commission, Patna.
12. Satyam Kumar S/o Shri Sushil Kumar Mandal R/o Village and P.O.- Valthi
Maheshpur, P.S.- Karsela, District- Katihar, Pin Code- 854101.
13. Sunil Kumar S/o Shri Uma Charan Gupta R/o Mohalla Plus, P.O.- Plus, P.S.-
Shekhpura, Dist- Shekhpura, Pin Code- 811105.
14. Reshikesh Ranjan S/o Shri Mahendra Ram R/o Chitragupatpuri Manipur, Ward
No.-1, P.S.- Kajimuhamadpur, Dist- Muzaffarpur, Pin Code- 842001.
15. Gaurav Kumar S/o Subodh Kumar Chaurasia Resident of Village and Post-
Madaiya, P.S.- Parbatta, Dist- Khagaria, Pin Code- 851212.
16. Sonu S/o Shri Jagdish Sahu Resident of Village- Sohata, P.O.- Giridhpatti, P.S.-
Chhatapur, District- Supaul, Pin Code- 852137.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 6094 of 2022
======================================================
1. Shashank Shekhar Sandilya son of Anant Narayan Tiwari, Resident of Village-
Parsia, P.S.-Brahampur, District-Buxar.
2. Sudhanshu Kumar, Son of Bajindra Singh, Resident of Village-Katauna, P.S.-
Katarisarai, District-Nalanda.
3. Raj Kumar, son of Sanjay Kumar Singh, Resident of Rana Pratap Nagar, Chas,
Bokaro, P.S.-Chas, District-Bokaro (Jharkhand).
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Road Construction
Department, Government of Bihar, Patna.
2. The Secretary, Public Health Engineering Department, Government of Bihar, Patna.
3. The Secretary, Water Resources Department, Government of Bihar, Patna.
4. The Secretary, Building Construction Department, Government of Bihar, Patna.
5. The Secretary, Rural Works Department, Government of Bihar, Patna.
6. The Principal Secretary, Planning and Development Department, Government of
Bihar, Patna.
7. The Principal Secretary, Minor Water Resources Department, Govt. of Bihar, Patna.
8. The Deputy Secretary (Management Cell), Road Construction Department, Govt.
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
4/56
of Bihar, Patna.
9. The Bihar Public Service Commission through its Chairman, Patna.
10. The Secretary, Bihar Public Service Commission, Patna.
11. The Joint Secretary-cum-Controller of Examination, Bihar Public Service
Commission, Patna.
... ... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No. 3389 of 2023
======================================================
Nitesh Kumar Son of Madan Mohan Karn, Resident of Mohalla- Ward No. 15, Barah
Patther Samastipur, P.S.- Samastipur Muffasil, District- Samastipur.
... ... Petitioner/s
Versus
1. The State of Bihar through the Additional Chief Secretary, Road Construction
Department, Government of Bihar, Patna.
2. The Secretary, Public Health Engineering Department, Government of Bihar, Patna.
3. The Secretary, Water Resources Department, Government of Bihar, Patna.
4. The Secretary, Building Construction Department, Government of Bihar, Patna.
5. The Secretary, Rural Works Department, Government of Bihar, Patna.
6. The Principal Secretary, Planning and Development Department, Government of
Bihar, Patna.
7. The Principal Secretary, Minor Water Resources Department, Government of Bihar,
Patna.
8. The Deputy Secretary (Management Cell), Road Construction Department, Govt.
of Bihar, Patna.
9. The Bihar Public Service Commission through its Chairman, Patna.
10. The Secretary, Bihar Public Service Commission, Patna.
11. The Joint Secretary-Cum- Controller of Examination Bihar Public Service
Commission, Patna.
12. Robin Kumar, (UR Category), Roll No. 225446, Merit Sl. no. 2949.
... ... Respondent/s
======================================================
Appearance :
(In Civil Writ Jurisdiction Case No. 1945 of 2022)
For the Petitioner/s : Mr. Mukesh Kumar
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
5/56
For the Respondent/s : Mr. Vikash Kumar (Sc11)
For the BPSC : Mr. Lalit Kishore, Sr. Advocate
Mr. Sanjay Pandey, Advocate
Mr. Ayush Kumar, Advocate
Mr. Kanishka Shanker, Advocate
(In Civil Writ Jurisdiction Case No. 13498 of 2021)
For the Petitioner/s : Mr. P. N. Shahi, Sr. Advocate
Mr. Rajendra Narain, Sr. Advocate
Mr. Bhola Kumar, Advocate
Mr. Harsh Singh, Advocate
Mr. Mukesh Kumar, Advocate
For the Respondent/s : Mr. P.K. Verma, AAG-3
Mr. Suman Kumar Jha, AC to AAG-3
For the BPSC : Mr. Lalit Kishore, Sr. Advocate
Mr. Sanjay Pandey, Advocate
Mr. Nishan Kumar Jha, Advocate
(In Civil Writ Jurisdiction Case No. 6094 of 2022)
For the Petitioner/s : Mr. Mukesh Kumar
For the Respondent/s : Mr. Vikash Kumar ( SC 11 )
Mr. Shushil Kumar, GP-22
For the BPSC : Mr. Lalit Kishore, Sr. Advocate
Mr. Sanjay Pandey, Advocate
Mr. Nishant Kumar Jha, Advocate
(In Civil Writ Jurisdiction Case No. 3389 of 2023)
For the Petitioner/s : Mr. Bhola Kumar, Advocate
For the Respondent/s : Mr. Sushil Kumar ( Gp 22 )
Mr. K. K. Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
CAV JUDGMENT
Date : 07-02-2025
1. These batch of writ petitions having similar set of
questions of law and facts have been heard together and this Court
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
6/56
proceeds to deliver the following judgement to dispose of afore-
mentioned writ petitions by a composite judgement.
2. The Bihar Public Service Commission (hereinafter
referred to as "BPSC" for short) came out with an advertisement
bearing Advertisement Number 02/2017 for selection of
candidates for the post of Assistant Engineer (Civil Engineering)
in various Departments in the Government of Bihar. Petitioners
fulfilling all the eligibility criteria, applied against the
advertisement under the Unreserved Category and finding their
applications and candidature in order, Petitioners were allotted
Roll Numbers and issued admit cards. Petitioners appeared for the
Preliminary Test (PT), which was held on 15.09.2018 and were
declared successful in the result which was published on
30.01.2019
. Thereafter, the Petitioners appeared in the Mains
Examination held between 27.03.2019 to 31.03.2019 and were
again declared successful in the results which were published on
24.01.2021. Thereafter, on 03.02.2021 BPSC published the
schedule and instructions for interview for candidates who had
qualified in the Mains Examination, which was to be held from
22.02.2021 to 13.03.2021. On 20.02.2021 BPSC published another
notification titled “Important Information” on its website whereby
it was inter alia informed that the candidates appearing for
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
7/56
interview were required to fill in and submit their preference for
different Departments in prescribed Form II, which along with
department-wise available vacancies were available on the website
of BPSC. A bare perusal of Notification dated 20.02.2021 and
Form II accompanied by Departmental vacancies appended thereto
would reveal the following:-
i. it was mandatory for the candidates to notify their
preference in Form II and submit the same at the time of the
interview.
ii. the candidature of a candidate would not at all be
considered for such department with respect to which no
preference was indicated by the candidate and the said post of the
department would be allotted to the next candidate, lower in merit
list as per his/her preference.
iii. if a candidate failed to mention preference with
respect to any of the departments, then even if the candidate was
placed in the merit list, the candidate would not be allotted any
post/ vacancy in any department even if the same remained
unfilled.
iv. no application in future would be considered or
entertained for modification of preference indicated by the
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
8/56candidates. Petitioners accordingly appeared for interview on their
respective dates and submitted their preferences.
3. In the interview the Petitioners found that the
questions being put to them were based on the first preference
indicated by them in Form II and in Petitioners’ own assessment,
the Petitioners performed fairly well in the interview. But to the
shock of the Petitioners, in the Final Result published by the
Respondent BPSC on 14.07.2021, they found that the same had
been prepared solely on the basis of merit and not on the basis of
merit cum choice (preference wise) as was mandated under the
Notification dated 20.02.2021.
4. Furthermore, the petitioners found that their names
did not feature on the merit list as their total marks were either
equal to or below the cut-off marks for the Unreserved Category
(477 marks), which was arrived at by preparing the final result
solely on the basis of merit and not on the basis of merit cum
choice. Upon asking for the reason for not preparing the result on
the basis of merit cum choice, viz., that since in another
Advertisement being Advertisement No. 03/2017 issued for
appointment of Assistant Engineers (Mechanical Engineering) for
different departments in Govt. of Bihar, preference had not been
sought from the candidates of the said Advertisement No. 03/2017
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
9/56therefore, despite seeking preference from candidates who had
appeared for interview in the present advertisement
(Advertisement No. 02/2017), results were being published on the
basis of merit list and not merit cum choice and was being sent as
such to the nodal department for the Advertisement i.e. Road
Construction Department.
5. Petitioners submit the reasoning of BPSC to be highly
absurd because Advertisement No. 03/2017 which was published
for appointment on a different post and only 4 out of the 7
departments for which the present advertisement (Advertisement
No. 02/2017) was issued has no bearing on the present
advertisement whatsoever. The above would be further manifest
from the fact that the requirement of educational qualification in
the two advertisements were distinct and that the Preliminary
Tests, Written Examinations, Interviews for the two advertisements
were held on different dates and the respective results were also
published on completely different dates. In fact the selection
process for Advertisement No. 03/2017 had long stood concluded
much before Notification dated 20.02.2021 (Annexure 3 series)
was published by BPSC for the present Advertisement. A chart
setting out the dates on which exams/ interviews were held and
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
10/56results were declared under the two advertisements is being set out
for convenience and kind consideration of this Hon’ble Court:
Advt. 03/ 2017 Advt. 02/2017
Preliminary Test 19.09.2018 15.09.2018
Result of PT - 30.01.2019
Written Exam 05.08.2019 to 27.03.2019 to
09.08.2019 31.03.2019
Result of Written 12.05.2020 24.01.2021
Exam
Interview 15.06.2020 to 22.02.2021 to
19.06.2020 13.03.2021
Final Result 20.06.2020 14.07.2021
6. Learned Advocate for the Petitioner submits that
petitioners have been kept in dark regarding the department wise
cut off in respective categories on the basis of which the final
results ought to have been prepared and published as mandated
under Notification dated 20.02.2021.
7. Petitioner submits that the reason assigned by the
BPSC in the impugned Final Result for deviating from its own
notification is wholly arbitrary, absurd and unsustainable in the
eyes of law in as much as the procedure adopted in a different
advertisement viz., Advertisement No. 03/2017 issued for selection
of Assistant Engineers (Mechanical Engineering) did not have any
bearing whatsoever on the instant advertisement.
8. Interlocutory Application was filed by the petitioner
on 13.09.2021. During the pendency of the instant writ application
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
11/56and after the case was adjourned on 23.08.2021 for enabling the
BPSC to file a comprehensive counter affidavit in the case, the
Road Construction Department, Govt. Of Bihar, Patna, which is
the nodal department for Advertisement No. 02/2017, published a
notification on or about 25.08.2021 on its website, whereby a
decision has been taken by the Department to allot the department
to the successful candidates on the basis of merit cum choice.
Thereafter a link was provided on the website of the Department
where the candidates were supposed to mandatorily give their
preference with respect to all 7 departments for which requisition
was originally sent.
9. That the above notification further changes the
selection process to the detriment and disadvantage of candidates
like the Petitioners who had obtained the minimum qualifying
marks in the written examination. It is stated that in terms of the
notification dated 20.02.2021 read with Form II appended thereto
issued in connection with the Advertisement, the candidates had
already submitted their preference at the stage of interview. The
said notification has not been withdrawn till date and was not
implemented only on the specious premises that a similar exercise
was not undertaken with respect to another advertisement. It is
submitted that in case the results were published strictly in terms
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
12/56
of notification dated 20.02.2021, a candidate like the Petitioner,
who may not have made it to the merit list in the present result
would also get a chance for being selected. In view of the above
developments which have taken place during the pendency of the
instant writ application the petitioners seek amendment in the
pleadings made in the writ application and incorporated further
pleadings after paragraph 18 of the writ petition mentioning the
same contention in the writ petition as stated above in the gist. And
further adds to the writ application through this Interlocutory
Application that on the basis of the information available on the
website of the RCD and to the best of the Knowledge of the
Petitioners, more than 75 Meritorious reserved candidates (MRC)
will be migrated to their respective category in order to get the 1 st
Department in order of preference i.e. the most preferred
department. Petitioner contends that the filling of these
vacancies/posts of Unreserved category/General Category with
reserved category candidates who are less meritorious than the
petitioners is violative of the Article 14 and 16 of Constitution of
India. Furthermore, it is now well settled that the aggregate
reservation should not exceed the 50% of all the available
vacancies. If the present impugned MRC candidates are adjusted
against the Reserved Category Vacancies, with respect to their
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
13/56
higher preferences and the seats vacated by them in the General
Category are further allotted to other Reserved Category
candidates, the aggregate reservation would possibly exceed 50%
of all the available vacancies which was applicable to the adv. No.
02/2017. That it is also well settled that the vacancy created due to
Migration of Meritorious reserved candidates (MRC) in their
respective categories for getting the most preferred
department/post/service shall be filled by General Pool
Candidates. Petitioner vehemently opposes the notification issued
by Road Construction Department to be unsustainable firstly on
account of the fact that it sharply deviates from the selection
procedure as envisaged in terms of notification dated 20.02.2021
published in connection with Advertisement No. 02/2017 and
secondly because the same is arbitrary, unworkable and violative
of Article 14 & 16 of the Constitution of India.
10. Again an Interlocutory Application 2 was filed by the
petitioner on 08.12.2021. It is submitted by the Petitioner that in
case the results were published strictly in terms of notification
dated 20.02.2021, a candidate like the Petitioners, who may not
have made it to the merit list in the present impugned result would
also get a chance for being selected. For illustration if a candidate
from the reserved category, say SC category, who has qualified in
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
14/56
the unreserved category does not get his first preference as an
unreserved category candidate, he would be considered as a SC
category candidate for allocation of department of his first
preference. In such an eventuality, the last candidate of the SC
category would go out of the merit list and a vacancy would be
created in the unreserved category, which will have to be filled by
the next candidate of unreserved category, who may not have made
it to the merit list i.e. by someone of the likes of the Petitioners.
11. Counter Affidavit on behalf of the Principal
Secretary, Water Resources Department, Government of Bihar was
filed in which they plead that the petitioners are aggrieved by the
impugned result published by the BPSC and they also seek some
direction against the BPSC for re- publication of result. Thus the
grievance of the petitioners relates to the BPSC and its authorities
who have been impleaded as respondent no. 9 to 11 in the writ
application. As such, they are competent to give specific reply to
the averments made in the writ application.
12. Interlocutory Application Number 3 was filed by the
Petitioners on 07.02.2022. That the Respondent Road Construction
Department vide Memo No. 6252(s) dated 31.12.2021 has taken a
decision to allot 1241 successful candidates department-wise
purportedly on the basis of the merit cum choice of the candidates
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
15/56
obtained pursuant to earlier impugned notification (Annexure 8)
and accordingly the departments were allocated to the successful
candidates.
13. Due to allocation of department by the RCD certain
anomalies have occurred namely violation of roster reservation,
increasing the number of seats in certain department and number
of seats were decreased in certain departments. That as per the list
of the department allotment published on 31.12.2021 on official
website of RCD. Govt. of Bihar, there are 122 Meritorious
Reserved Category Candidates who have migrated to their
respective categories for getting the most preferred department in
order of their preference. But the vacancies occurred due to
migration of Meritorious Reserved Category Candidates have not
been filled up by the candidates including the petitioners who are
placed next in the combined merit/general merit list i.e. petitioners.
The aforesaid migration is consistent with Article-14 and 16 of the
Constitution of India. hence, vacancies as shown in UR category
pursuant to advertisement No. 02/2017 should be filled up by the
petitioners and other similarly situated candidates of UR category
who are placed next in the combined merit/general merit list i.e.
petitioners. That at this juncture, the Petitioners considered it
pertinent to bring to the notice of this Court that the Meritorious
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
16/56
Reserved Category Candidates matter so far appointment is
concerned, has already been settled by the Constitution Bench
judgment of the Hon’ble Apex Court in the case of Union of India
Vs. Ramesh Ram since reported in 2010 (7) SCC 234, wherein at
Paragraph 39, the Hon’ble Apex Court has held as follows:-
“A significant aspect which needs to be
discussed is that the aggregate reservation should
not exceed 50% of all the available vacancies, in
accordance with the decision of this Court in
Indra Sawhney vs. Union of India. If Meritorious
Reserved Category Candidates are adjusted
against the reserved category vacancies with
respect to their higher preferences and the seats
vacated by them in the general category are
further allotted to other reserved category
candidates, the aggregate reservation could
possibly exceed 50% of all of the available post”
14. That in Para-42 of the Ramesh Ram (supra) the
Hon’ble Supreme Court has further held that Meritorious Reserved
Category Candidates who avail the benefit of Rule-16(2) and are
eventually adjusted in the reserved category should be counted as
part of the reserved pool for the purpose of computing the
aggregate reservation quotas. The seats vacated by Meritorious
Reserved Category Candidates in the general pool will therefore,
be offered to general category candidates. This is the only viable
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
17/56
solution since allotting these general category seats (vacated by
Meritorious Reserved Category Candidates) to relatively lower-
ranked reserved category candidates would result in aggregate
reservations exceeding 50% of the total number of available seats.
15. In view of aforementioned facts and circumstances
the petitioners have made representation on 07.01.2022 to the
Additional Chief Secretary. Road Construction Department as well
as on 08.01.2022 to the Secretary. Bihar Public Service
Commission requesting therein to fill up the vacant UR seats due
to migration of Meritorious Reserved Category Candidates by
general category candidates who are placed next in the combined
merit/general merit list ie. petitioners. However, their
representation is yet to be considered by the respondents.
16. Counter Affidavit on behalf of Bihar Public Service
Commission was filed on 01.02.2022. It is stated that after the
publication of result of the Written (Mains) Examination, the
Commission published the schedule and instructions for successful
candidates to participate in the interview. The interview was held
from 22.02.2021 to 19.04.2021 and again from 25.06.2021 to
27.06.2021. It is further stated that the Commission again
published a corrigendum on 20.02.2021 and number of posts have
been reduced to 1257. The Commission vide notice dated
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
18/56
20.02.2021 informed the candidates to fill up Form II for
preferences for different departments at the time of interview. It is
further submitted that the preferences were sought from the
candidates for 7 departments in view of vacancies received from
those departments under Advt. No. 02/2017. It is further stated that
under Advt. No. 03/2017 which was published along with Advt.
No. 02/2017 for appointment of Assistant Engineer (Mechanical),
vacancies were received from 4 departments but no preferences
were sought for from the candidates for those departments
therefore, the Commission in its meeting dated 07.07.2021 decided
to send the list of selected candidates on the basis of final result for
appointment on the post of Assistant Engineer (Civil) to the Road
Construction Department without allotment of departments to the
successful candidates.
17. The Learned Senior Counsel submits that it is
relevant to state here that the Commission published the notice
dated 20.02.2021 only to facilitate the selection process. The
Commission never intended to publish the final result on the basis
of preference. Therefore, the final result was published on the basis
of performance of candidates in the written examination as well as
interview. The Commission also published final result in Advt. No.
03/2017 and Advt. No. 04/2017 for appointment of Assistant
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
19/56
Engineer, Mechanical and Civil respectively in different
departments of Government of Bihar on the basis of performance
of candidates in Written examination as well as interview and
thereafter, recommendations have been sent Indeed, the
Commission never published final merit list on the basis of
preference under any Advertisement for appointment of Assistant
Engineer. The Learned Senior Counsel finds it relevant to mention
here that earlier also the Commission sent the recommendation of
successful candidates to the Road Construction Department vide
letter no. 166 dated 23.09 2013 in Advt. No. 01/2011 for
appointment on the post of Assistant Engineer (Mechanical) on the
basis of their performance in written examination as well as
interview without allotment of departments.
18. Counter Affidavit was filed on behalf of the state on
19.05.2022. The Learned Additional Advocate General for the
Respondent pleaded that in exercise to allocate the departments on
the basis of merit cum choice, the principles laid down by Hon’ble
Supreme Court in Civil Appeal No. 8499/2012( Arising out of
Civil No. 31979/2010) Alok Kumar Pandit Versus state of Assam
& others at para no. 21, Civil Appeal no. 4310-4311 of 2010
(Arising out of SLP (C) Nos. 13571-72 of 2008 at para no. 32 and
50 (1) ii) & (iv) were taken as guiding principle and after
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
20/56
consideration of the same, departments were allocated accordingly.
In the given exercise, going by merit and choices, some candidates
of reserved categories who had qualified in the unreserved (Open)
category had to be migrated in their reservation category, resulting
in such as many vacancies in unreserved category remaining
vacant, as the allocation was restricted to list of successful
candidates.
19. Rejoinder on behalf of Petitioner to the counter
affidavit filed by Bihar Public Service Commission was filed on
08.03.2023. Learned Counsel states that in reply to Paragraph 4 of
the Counter Affidavit, under reply, it is stated that the Respondent
Commission has admitted to the fact that the Commission is bound
by the Rules and Regulations of the State Government. However,
in the instant case, the Respondent Commission is not following
the guidelines and Rules of the State of Bihar. According to Clause
2 of the minutes of meeting dated 14.01.2022 of Road
Construction Department (RCD), Government of Bihar it is
apparent that on the recommendation of Law Department
Government of Bihar the decision of preference which is based on
Respondent Commission (BPSC) preference through Form -II
prapatra given in the final RCD allotment notification for BPSC
AE (Civil) 02/2017 dated 31.12.2021. The BPSC AE (Civil) result
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
21/56
dated 14.07.2021 and 24.08.2021 for 1241 selected students based
on merit without preference. It is submitted that RCD had followed
the recommendation of Law Department, Government of Bihar as
mentioned in Clause 2 and then BPSC also followed the state
regulation as said in the counter-affidavit paragraph no. 6, then
why there is the variation in the advertised reservation roster by
BPSC notification dated 20.02.2021 and allotment done by RCD.
They further submitted in this regard that the RCD allotment based
upon the BPSC result considering Merit without preference leads
to the violation of reservation roster which is reservation
exceeding > 50% and it has also created 122 vacant seats in UR
unreserved category created due to the migration of Meritorious
reserved candidate (MRC). It is well settled in the judgment of
Hon’ble Apex Court in Union of India v. Ramesh Ram [reported in
2010 (7) SCC 234] that the vacancy created by the migration of
MRC candidates into their respective categories for getting most
preferred department/service/post shall be filled up by General
Pool Candidates (UR, unreserved category). That the Hon’ble
Supreme Court in the said case in Para-39 has held that “a
significant aspect which needs to be discussed is that the aggregate
reservation should not exceed 50% of all the available vacancies,
in accordance with the decision of this Court in Indra Sawhney vs.
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
22/56
Union of India. If MRC candidates are adjusted against the
reserved category vacancies with respect to their higher
preferences and the seats vacated by them in the general category
are further allotted to other reserved category candidates, the
aggregate reservation could possibly exceed 50% of all of the
available post.”
20. It may be appreciated that in Para-42 of the said
judgment, Union of India v. Ramesh Ram [reported in 2010 (7)
SCC 234], the Hon’ble Supreme Court has further held that MRC
candidates who avail the benefit of Rule-16(2) and are eventually
adjusted in the reserved category should be counted as part of the
reserved pool for the purpose of computing the aggregate
reservation quotas. The seats vacated by MRC candidates in the
general pool will therefore, be offered to general category
candidates. This is the only viable solution since allotting these
general category seats (vacated by MRC candidates) to relatively
lower-ranked reserved category candidates would result in
aggregate reservations exceeding 50% of the total number of
available seats. That in reply to the statements made Paragraphs 11
of the Counter Affidavit, under reply, it is reiterated that the
Respondent Commission has erroneously omitted the Petitioners
from the Final Result dated 14.07.2021. It is stated that the
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
23/56
Respondent Commission has prepared the Final Result in utter
disregard and violation of their own Notification dated 20.02.2021
[Annexure 3], in as much as, the Final Result was prepared solely
on the basis of merit marks whereas the scheme of the selection
process clearly provided that final selection would be on the basis
of merit-cum-choice [Notification dated 20.02.2021]. Thus, the
action of the Respondent Commission is not only violative of the
principles of service law but is also barred by the doctrine of
promissory estoppel.
21. It is further submitted in this regard that Total 719
seats of UR category were advertised in Advertisement No.
02/2017 as shown below. However, the number of candidates
finally selected 579 UR candidates as per RCD allotment
notification dated 31.12.2021 (Annexure-g departments are as
below:
Department seats as per seats as per deviation of
BPSC RCD seats between
02/2017 allotment advertised
notification (31.12.2021) reservation
correction roster and
letter dated allotted seats
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
24/5620.02.2021
PLAN(UR) 135 45 -90
MWRD 28 04 -24
WRD 196 170 -26
RCD 104 104 0
PHED 32 32 0
BCD 54 54 0
RWD 170 170 0
Total Seats 719 579 -140
22. From above table it is crystal clear that 90 seats of
UR Category are vacant in Plan and Development Department, 24
Seats in MWRD and 26 seats of WRD departments are vacant.
Cut off marks of any Category is the marks scored by the last
selected candidate consistent to the seats advertised as per
reservation roster in that Category. “Here as mentioned above, 122
seats of UR Category is remaining vacant then how can 477 be the
cut off marks of UR category?” is the question raised in the Court
towards Respondent by the Petitioner. Further, the petitioner No.1,
Mr. Sudhanshu Kumar having merit serial No. 503 and all the
Petitioners will get selected if the 122 vacant seats of UR
Category are filled by the General Pool candidates placed next in
the merit was firmly asserted by the Learned Counsel.
23. In reply to the statements made Paragraphs 12 of the
Counter Affidavit, under reply, it is stated that the Commission is
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
25/56
not permitted, in law, to unilaterally change the already advertised
and notified procedure during an on-going selection process that
too on materials basis of extraneous. It is reiterated that
Advertisement No. 03/2017 relates to appointment of Assistant
Engineer (Mechanical Engineering) and eligibility requirement,
dates of examination, number of vacancies etc are totally different
from the Advertisement No. 02/2017 in question. Therefore, any
omission or commission relating to Advertisement No. 03/2017
cannot be a valid and legal basis to alter/amend the selection
process with respect to Advertisement No. 02/2017 and as such
Resolution dated 07.07.2021 [Annexure D to the Counter
Affidavit] is bad in law and cannot be sustained in the eyes of law.
It is humbly stated and submitted by the Petitioner that vacancies
still remain as lesser number of candidates were selected than the
total vacancies. Therefore, the Petitioners may be
selected/adjusted against such vacant posts in their category i.e
Unreserved (UR) category without interfering with the rights of
other successful candidates.
24. Counter Affidavit on behalf of Road Construction
Department was filed on 06.08.2024. The Learned Counsel
submitted that the Road Construction Department (RCD) is only a
Nodal Department with respect to Public Health Department
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
26/56
(PHED), Water Resources Department (WRD), Building
Construction Department, Rural Works Department and Minor
Water Resource Department Resources Department (MWRD) and
some other works Departments. The RCD is only required to
communicate and forward the names of selected candidates sent
by the BPSC with respect of those Departments individually. On
15.05.2024 the Hon’ble Court was pleased to pass the order para-5
to 7 whereof is quoted as per below:-
“It is submitted by the senior counsel on
behalf of the petitioners that so far as their
knowledge goes there were more than 122 or
more vacancies that occurred due to the interplay
of MRC and UR candidates by way of migration
at the time of placement in a particular
department as per the preference/choice given by
the candidates.
In such view of the matter this court is of
the opinion that the State Government should
come up with the actual numbers of vacancies
remaining in Assistant Engineer (Civil) service
the and selection on which were of the
examination done on the basis of Adv. No.02 of
2017. After having such numbers of vacancies
calculated the State Government shall also come
up with the amended cut off mark. The State
Government will be at liberty to take the help of
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
27/56the expertise of Bihar Public Service Commission
(BPSC).”
25. That in compliance of the Hon’ble Court’s order, the
replying respondent submits the following facts:-
26. The selection held by the BPSC, vide Adv. No.02 of
2017 was for the post of Assistant Engineer (civil) which was
based on the requisition of vacancies made by various works
department separately viz, (i) RCD- 236, (ii) PHED- 64, (iii)
MWRD- 31(iv) WRD- 284 (v) BCD- 122 (vi) RWD- 250 (vii)
Planning and Development Department- 270.
27. Thus , the total number of vacancies put together
against which the names were to be recommended by the BPSC
for the respective departments was 1257.
28. The BPSC after undertaking selection process
recommended the names of total 1241 candidates category wise
against 1257 vacancies stating non availability of 16 Physically
Handicapped (PH) candidates, vide its revised recommendation
dated 24.08.2021. However, the recommendation was made
neither department-wise nor after undertaking choice/ preference
made by the candidates so taken in Form-II.
29. It may be noted that all the department who had made
their separate requisition to the BPSC for selection and
recommendation, are independent and separate departments and
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
28/56
the cadre of Assistant Engineer (Civil) are separate cadres in each
of those Departments.
30. Since, the RCD had been made a Nodal Department
the said recommendation of the BPSC was referred to the RCD
for allocation to all the department. The RCD was required only to
allocate the recommended candidates to their respective
departments for appointment but as the BPSC had not
recommended the names, department wise, after undertaking the
exercise as per merit -cum choice/preference taken from
individual candidates, as was required, the RCD had to do the
exercise as per merit-cum-choice/ preference made by the
recommended candidates for the purpose of allocation of
department.
31. It is relevant to submit that a total number of 703
candidates were recommended against the consolidated
unreserved vacancies of 719 (16 PH not available). This list of
703 of unreserved candidates (Annexure-B) included the
Meritorious Reserved Category (MRC) candidates also. In
addition 147 candidates were recommended against 147 vacancies
of SC, 4 candidates against 4 vacancies of ST, 230 candidates
against 230 vacancies of EBC, 92 candidates against 92 vacancies
of BC and 65 candidates against 65 vacancies of BC Lady.
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
29/56
Evidently, the aforesaid numbers are consolidated numbers of
vacancies appertaining to 7 separate departments noted above.
32. While making allocation of department to candidates
on the basis of their merit cum choice/ preference submitted by
the individual candidates, the MRC vis-à-vis the candidates of the
reserved category to which that MRC originally belonged was
also considered as per the law laid down by the Apex Court.
Accordingly, the preference of department given by an MRC
candidate compared to that of the candidate belonging to his
reserved category, was allowed on the basis of marks obtained in
the merit list. While doing so 124 MRC under the unreserved
category were given the choice of department vis-à-vis their
respective reserved category candidates. Accordingly, those
candidates belonging to the reserved category got the department
left by the said MRC.
33. After allocation of the department made on the basis
of merit-cum- choice/preference through a software developed by
the NIC, all the 1241 recommended candidates were given
appointment by the respective departments. The appointment
letters of these 1241 candidates have been issued in year 2021-22
itself and consequent thereof they have joined their posts in the
respective departments and are working since past more than 2
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
30/56
years. Thus actually in fact no vacancy is left to be filled under the
Adv. No.02/2017 for the post of Assistant Engineer (Civil) except
16 meant for PH candidates which was not recommended by the
BPSC due to non-availability.
34. Learned Counsel submits that 1241 the recommended
candidates have been appointed against the 1241 vacancies as per
recommendation made by BPSC and no further vacancy is
available against the Advertisement no.02/2017 except 16
Physically Handicapped as no names were recommended by
BPSC due to non-availability. However, it is clarified that no
further vacancy is available against the Advertisement no.
02/2017, as all the 1241 recommended candidates have been
appointed against the 1241 vacancies.
35. Supplementary Counter Affidavit was filed by Road
Construction Department on 13.08.2024 where the learned
counsel clarifies that allotment of department has been made
through a software where some discrepancy has been noticed.
Like in the Road Construction Department against the 236
vacancies, 259 candidates have been appointed it was decided that
such discrepancy would be removed by adjustment in future
appointment to be made.
36. These are all about the pleadings of the parties.
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
31/56
37. Mr. Rajendra Narain, learned Sr. Advocate appearing
on behalf of the petitioners makes his submission on the basis of
the principles relating to vertical reservation in connection with
Meritorious Reserved Candidates and the unreserved candidates
laid down in Union of India v. Ramesh Ram & Ors., reported in
(2010) 7 SCC 234. Paragraph No. 32 of Ramesh Ram (supra) held
as hereunder: –
“32. There is an obvious distinction
between qualifying through an entrance test for
securing admission in a medical college and
qualifying in UPSC examinations since the
latter examination is conducted for filling up
vacancies in the various civil services. In the
former case, all the successful candidates
receive the same benefit of securing admission
in an educational institution. However, in the
latter case there are variations in the benefits
that accrue to successful candidates because
they are also competing amongst themselves to
secure the service of their choice. For example,
most candidates opt for at least one of the first
three services [i.e. Indian Administrative
Service (IAS), Indian Foreign Service (IFS) and
Indian Police Service (IPS)] when they are
asked for preferences. A majority of the
candidates prefer IAS as the first option. In this
respect, a reserved category candidate who has
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
32/56qualified as part of the general list should not
be disadvantaged by being assigned to a lower
service against the vacancies in the general
category especially because if he had availed
the benefit of his reserved category status, he
would have got a service of a higher preference.
With the obvious intention of preventing such an
anomaly, Rule 16(2) provides that an MRC
candidate is at liberty to choose between the
general quota or the respective reserved
category quota.”
38. On the question, whether the reserved category
candidates, who are selected on merit, i.e., MRCs and placed in
the list of general category candidates can be considered as
reserved category candidates at the time of service allocation, the
Hon’ble Supreme Court in Ramesh Ram (supra) has placed
reliance on an earlier decision in the case of State of Kerala v. N.
M. Thomas, reported in (1976) 2 SCC 310. Paragraph 26 of N. M.
Thomas (supra) states as follows:-
“26. The respondent contended that
apart from Article 16(4) members of Scheduled
Castes and Scheduled Tribes were not entitled to
any favoured treatment in regard to promotion. In
T. Devadasan v. Union of India [T. Devadasan v.
Union of India, AIR 1964 SC 179] reservation was
made for Backward Classes. The number of
reserved seats which were not filled up were
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
33/56carried forward to the subsequent year. On the
basis of ‘carry forward’ it was found that such
reserved seats might destroy equality. To illustrate,
if 18 seats were reserved and for two successive
years the reserved seats were not filled and in the
third year there were 100 vacancies the result
would be that 54 reserved seats would be occupied
out of 100 vacancies. This would destroy equality.
On that ground ‘carry forward’ principle was not
sustained in Devadasan case [T. Devadasan v.
Union of India, AIR 1964 SC 179] . The same
view was taken in M.R. Balaji v. State of Mysore
[M.R. Balaji v. State of Mysore, AIR 1963 SC 649]
. It was said that not more than 50 per cent should
be reserved for Backward Classes. This ensures
equality. Reservation is not a constitutional
compulsion but is discretionary according to the
ruling of this Court in Rajendran case [AIR 1968
SC 507] .”
39. In Paragraph 42 of Ramesh Ram (supra), the Hon’ble
Supreme Court observed as under:-
“42. Therefore, we are of the firm
opinion that MRC candidates who avail the
benefit of Rule 16(2) and are eventually adjusted
in the reserved category should be counted as
part of the reserved pool for the purpose of
computing the aggregate reservation quotas. The
seats vacated by MRC candidates in the general
pool will therefore be offered to general category
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
34/56candidates. This is the only viable solution since
allotting these general category seats (vacated by
MRC candidates) to relatively lower-ranked
reserved category candidates would result in
aggregate reservations exceeding 50% of the total
number of available seats. Hence, we see no
hurdle to the migration of MRC candidates to the
reserved category.”
40. It is submitted by Mr Rajendra Narain, learned Sr.
Advocate appearing for the petitioners that if the Respondents
followed the policy of migration of MRC candidates to the
reserved category, there would have been vacancy between
advertised reservation roster and allotted seats, numbering 140
candidates. If those 140 candidates were to be accommodated in
the selection list, there would have been lowering down of cut-off
mark in the general category quota and the petitioners might have
got chance for selection in the service.
41. It is further submitted by the learned Sr. Advocate
appearing on behalf of the petitioners that the candidates were
directed under Praptra-II to fill up their choice of departments for
which candidates should be recommended. If the candidate does
not fill up any recommendation, he will not be considered for any
of the posts. It is clearly stated in Praptra-II by way of a
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
35/56
declaration to be submitted by a selected candidate, which is as
follows:-
महत्वपपूररर- उपरररक्त ससाररणी ममें अधधिमसानतसा
ककोड एवव धवभसाग कसा नसाम कसा उल्ललेख स्पष्ट रूप सले
करमें तथसा धरक्त ककॉलम कको स्पष्टतर ककॉस (x) कर
दमें। धजिस धवभसाग कले पद/धरधक्त कले धलए आपकले दसारसा
अधधिमसानतसा कम नहहीं भरसा जिसारलेगसा उस धवभसाग कले पद
/ धरधक्त कले धलए आपकणी उम्मणीदवसारणी पर ककोई धवचसार
नहहीं धकरसा जिसाएगसा एवव उक्त धवभसाग कसा पद /धरधक्त
मलेधिसा कम ममें आपसले नणीचले धस्थत उम्मणीदवसार कको उनकले
दसारसा दणी गई अधधिमसानतसा कले आधिसार पर आववधटित कर
धदरसा जिसारगसा। ससाथ हणी रह भणी स्पष्ट धकरसा जिसातसा हह
धक रधद आपकले दसारसा धकसणी भणी धवभसाग कले पद /धरधक्क
कले धलए अधधिमसानतसा नहहीं अवधकत कणी जिसातणी हह तको मलेधिसा
सपूचणी ममें रहनले एवव धवभसाग कसा पद /धरधक्त उपलब्धि रहनले
कले बसावजिपूद भणी आपकको धवभसाग कसा पद / धरधक्तव
आववधटित नहहीं धकरसा जिसारलेगसा।
42. Therefore, it is clear that the rule of recruitment
depended upon a successful candidates’ filling up of all posts
showing preference of the department. If any candidate does not
suggest any preference or fails to give preference of his
department, he will not be considered for such department, and the
said candidature will go to the next candidate on merit. In other
words, even if a candidate is selected on merit, he may not be
appointed due to failure of his part to submit preference under
Prapatra – II. This condition has been violated by the State
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
36/56
Respondents and without considering the preferences, candidates
were appointed. This obviously is a gross departure from the rule
of game of selection to the post of Assistant Engineer (Civil),
which is not permissible after the selection process started.
43. In support of his contention, Mr. Rajendra Narain,
learned Sr. Advocate refers to the result which was published on
14th of July, 2021 (Annexure- 4) only on the basis of merit and
preference was given a go-bye. Inherent fallacy in the process of
recruitment did not end here. B.P.S.C. sent the names on merit
basis on 14th of July, 2021 to the nodal department, i.e., Road
Construction Department, but the nodal department vide
Annexure- 7 issued notification on its website, stating, inter alia,
that allotment of the department shall be based on merit cum
choice. All qualified candidates shall have to indicate on-line
choices of the department. Though the said notification was not
withdrawn, it was not implemented only on the ground that a
similar exercise was not undertaken with respect to other
Advertisement No. 3 of 2017.
44. It is submitted by the learned Sr. Advocate for the
petitioners that non-adherence to the recruitment contained in
Praptra – II violated petitioners’ right under Article 14 and 16 of
the Constitution of India on the ground that if a candidate from
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
37/56
reserved category who has qualified in the unreserved category
does not get his first preference as an unreserved category
candidate, he would be considered as a SC category candidate for
allocation of department of his first preference. In such an
eventuality, the last candidate of the SC category would go out of
the merit list and the vacancy would be created in the unreserved
category, which will have to be filled up by the next candidate of
unreserved category, who may not have merit to the merit-list like
that of the petitioners. In other words, if the candidate of reserved
category is selected on his own merit in unreserved category, but
on indicating his choice, he would not be treated as a successful
candidate of unreserved category, he would switch over to his
reserved category candidate, but the vacancy would remain in
unreserved category for the choice he has made. If B.P.S.C. would
have created the merit-list on the basis of merit cum preference,
there would have been vacancy in the unreserved category,
causing reduction of cut-off mark.
45. As for illustration, the learned Sr. Advocate appearing
on behalf of the petitioners refers to Annexure- 6 at page 50 of the
writ petition. One of the candidates, namely Kajal Kumari, did not
get appointment letter though she got higher marks than the cut-
off mark. The said candidate belonged to backward class. She got
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
38/56
511 marks while the cut-off mark was 510, but she was not
appointed on the ground that she gave the preference only for the
post of Bihar Police Sewa (Police Upadhikshak). For selection in
Bihar Police Sewa (Police Upadhikshak), she did not get adequate
marks and therefore in spite of getting higher marks, she was not
selected. If the merit cum preference of department was taken in
the instant case, there would have been the same condition in the
instant selection process also.
46. The learned Sr. Advocate appearing on behalf of the
petitioners has urged referring to the supplementary counter
affidavit filed by the Road Construction Department on 13 th of
August, 2024, where the nodal department admitted that allotment
of department was made through a software and some
discrepancies have been noticed in Road Construction Department
that against 236 vacancies, 259 candidates have been appointed
and such discrepancy has been removed by adjustment in future
appointment to be made by the Government.
47. The above statement made on behalf of the Road
Construction Department is undoubtedly hopeless and
unfortunate. An existing appointment in excess of vacancy cannot
be adjusted from future vacancy for the simple reason that it
would take away the right of the future candidates who would be
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
39/56
eligible in future for the post. Secondly, the averments is in the
nature of an admission that the rule of recruitment was not
followed and either additional or less recruitment was made in
different departments of the Government by virtue of the
examination held on the basis of Advertisement No. 2 of 2017.
48. The learned Sr. Advocate next refers to paragraph 11
of the counter affidavit filed on behalf of the Respondent Nos. 1
and 8 on 23rd of May, 2022. Paragraph Nos. 11 and 12 of the said
counter affidavit runs :-
“11. That in the exercise to allocate the
departments on basis of merit cum choice, the
principles laid down by Hon’ble Supreme Court
Judgement in Civil Appeal No. 8499/2012
(Arising out of (Civil) No. 31979/2010) Alok
Kumar Pandit Versus State of Assam & Others at
para no. 21, Civil Appeal No. 4310-4311 of 2010
(Arising out of SLP (C) Nos. 13571-72 of 2008 at
para no. 32 and 50(I) (ii) & (iv) was taken as
guiding principle after consideration of
departments were done accordingly.
12. That in given exercise, going by
merit and choices, some candidates of reserved
categories who had qualified in the unreserved
(Open) category had to be migrated in their
reservation category, resulting in such as many
vacancies in unreserved category remaining
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
40/56vacant, as the allocation was restricted to list of
successful candidates.”
49. It is urged by the learned Sr. Advocate on behalf of
the petitioners that after above-mentioned affidavit, the
Respondents cannot say that the selection process in question was
governed on the principle of Ritesh R. Sah v. Dr. Y.L. Yamul &
Ors., reported in (1996) 3 SCC 253 and Tripurari Sharan & Ors.
v. Ranjit Kumar Yadav & Ors., reported in (2018) 2 SCC 656.
50. Mr. P. K. Verma, learned Additional Advocate
General, on the other hand, submits that the counter affidavit filed
by the Road Construction Department in C.W.J.C. No. 13498 of
2021 may be treated as the case on behalf of the State
Respondents in all the writ petitions. The case made out by the
Road Construction Department against the above-mentioned writ
petitions is depicted in paragraph 4 of the counter affidavit, dated
6th of August, 2024.
51. It is stated in paragraph 4 of the counter affidavit that
the petitioners have prayed for quashing the final result of the
selection test held on Advertisement No. 2 of 2017 for the
appointment to the post of Assistant Engineer (Civil) dated 14 th of
July, 2021 on the ground that the said result was not published on
the basis of merit cum choice. Subsequently, by filing I. A. No. 01
of 2021, the petitioners have prayed for amendment of the relief
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
41/56
adding a prayer to quash the notification of Road Construction
Department issued on or about 25th of August, 2021. By another I.
A. No. 02 of 2021, the petitioners have sought impleading all
candidates who might be affected by the outcome of the present
writ petition. In this regard, it is submitted on behalf of the State
that Road Construction Department (RCD) is only a nodal
department with respect to Public Health Department, Water
Resources Department, Building Construction Department, Rural
Works Department, Minor Water Resources Department and some
other Works Department. The Road Construction Department is
under obligation to communicate and forward the name of the
selected candidates sent by the B.P.S.C. with respect to those
departments individually.
52. It is also stated by the contesting Respondent (Road
Construction Department) that no counter affidavit could be filed
earlier although in compliance of the Court ‘s order passed on 15 th
of May, 2024, an affidavit was prepared and sworn but the same
was not filed as it did not contain the actual details of facts, which
were needed to be brought to the notice of the Court for proper
adjudication. Earlier in C.W.J.C. No. 1945 of 2022, a third
counter affidavit had been filed but the facts in detail could not be
stated. On 15th May, 2024, this Court passed the following order:-
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
42/56“1. On the prayer made by the learned
Senior Counsels on behalf of the petitioners in
C.W.J.C. No. 13498 of 2021 and C.W.J.C. No.
1945 of 2022, C.W.J.C. No. 3389 of 2023 are
also taken up with the above-mentioned two writ
petitions, as the facts and circumstances under
which C.W.J.C. No. 3389 of 2023 has been filed
are similar to the above-mentioned two writ
petitions.
2. Therefore, C.W.J.C. No. 3389 of
2023 is taken up together with the above-
mentioned two writ petitions.
3. All three writ petitions relate to an
issue as to whether there will be any change in
the cut-off marks of unreserved categories of
selected candidates in the Assistant Engineer
(Civil Engineering Recruitment Examination),
pursuant to Advertisement No. 02 of 2017 for the
reason that as per the reservation policy, if the
position of an unreserved candidate is taken up by
reserved Meritorious Reserved Candidates
(M.R.C.) and after submitting preferences of the
department, the M.R.C. will migrate to the
position of the Reserved Candidate (R.C.), then
there would be change of cut-off mark in respect
of the unreserved candidates.
4. In course of hearing of the matter,
Mr. Sahi, learned Senior Counsel appearing in
C.W.J.C. No. 1945 of 2022 refers to paragraph
12 of the counter affidavit filed by the Respondent
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
43/56Nos. 1 and 8, i.e., The State of Bihar and the
Deputy Secretary (Management Cell), Road
Construction Department, Government of Bihar,
Patna. Paragraph 12 of the counter affidavit runs
thus:-
“12. That in given exercise, going by
merit and choices, some candidate of reserved
categories who had qualified in the unreserved
(Open) category had to be migrated in their
reservation category, resulting in such as many
vacancies in unreserved category remaining
vacant, as the allocation was restricted to list of
successful candidates.”
5. It is submitted by the learned Senior
Counsel on behalf of the petitioners that so far as
their knowledge goes, there were 122 or more
vacancies that occurred due to the interplay of
M.R.C. and U.R. candidates by way of migration
at the time of placement in a particular
department as per the preference/choice given by
the candidates.
6. In such view of the matter, this Court
is of the opinion that the State Government should
come up with the actual number of vacancies
remaining in the service of Assistant Engineers
(Civil), the examination and selection of which
were done on the basis of Advertisement No. 2 of
2017.
7. After having such number of
vacancies calculated, the State Government shall
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
44/56
also come up with the amended cut-off mark of
the unreserved category. In assessing such cut-off
mark, the State Government is at liberty to help of
the expertise of the Bihar Public Service
Commission (BPSC)
8. The State Government is directed to
furnish the above information on affidavit within
two weeks after vacation and the matter be
treated as part heard.
9. Matter be fixed on 2nd of July, 2024
for final hearing.”
53. In compliance of the said order, following has been
submitted by the Road Construction Department : –
“a. The selection held by the BPSC,
vide Adv. No. 2 of 2017 was for the post of
Assistant Engineer (Civil) which was based on the
requisition of vacancies made by various works
department separately viz, (i) RCD-236, (ii)
PHED-64, (iii) MWRD-31 (iv) WRD-284, (v)
BCD-122 (vi) RWD-250 and (vii) Planning and
Development Deaprtment-270.
Thus, the total number of vacancies put
together against which the names were to be
recommended by the BPSC for the respective
departments was 1257. Roster of reservation to
various categories was made department wise
separately while making the requisitions.
(b) The BPSC after undertaking the
selection process recommended the names of total
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
45/561241 candidates category wise against 1257
vacancies stating non availability of 16
Physically Handicapped (PH) candidates, vide its
revised recommendation dated 24.08.2021.
However, the recommendation was made neither
department-wise nor after undertaking
choice/preference made by the candidates so
taken in Form-II.
(c) All the department who had made
their separate requisition to the BPSC for
selection and recommendation, are independent
and separate departments and the cadre of
Assistant Engineer (Civil) are separate cadres in
each of those Departments
(d) Since, the RCD had been made
Nodal Department the said recommendation of
the BPSC was referred to the RCD for allocation
to all the department. The RCD was required only
to allocate the recommended candidates
respective to departments appointment but as not
recommended their for the BPSC had the names
department wise after undertaking the exercise as
per merit -cum choice/preference individual taken
candidates, from as was required, the RCD had to
do the exercise as per merit-cum-
choice/preference made by the recommended
candidates for the purpose of allocation of
department.
(e) It is relevant to submit that total
number of 703 candidates were recommended
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
46/56
against the consolidated unreserved vacancies of
719 (16 PH shown not available). This list of 703
of unreserved candidates (Annexure-B) included
the Meritorious Reserved Category (MRC)
candidates also addition 147 candidates were
recommended against 147 vacancies of SC, 4
candidates against vacancies of ST, 230
candidates against 230 vacancies of EBC, 92
candidates against 92 vacancies of BC and 65
candidates against 65 vacancies of BC Lady.
Evidently, the aforesaid numbers are consolidated
numbers of vacancies appertaining 7 separate to
departments noted above.
(f) While making allocation department
to candidates on of the basis of their merit cum
choice/preference submitted by the individual
candidates, the MRC vis-à-vis the candidates of
the reserved category to which that MRC
originally belonged was also considered as per
the law laid down by the Apex Court. Accordingly,
department the preference of given by an MRC
candidate compared to that of the candidate
belonging to his reserved category, was allowed
on the basis of marks obtained in the merit list.
While doing so 124 MRC under the unreserved
category were given the choice of department vis-
à-vis their reserved category Accordingly, those
respective candidates. candidates belonging to
the reserved category got the department left by
the said MRC.
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
47/56
(g) After allocation of the department
made on the basis of merit-cum-choice/preference
through a software developed by the NIC, all the
1241 recommended candidates were given
appointment by the respective departments. The
appointment letters of these 1241 candidates have
been issued in year 2021-22 itself and consequent
thereof they have joined their posts in the
respective departments and are working since
past than more 2 years. Thus actually in fact no
vacancy is left to be filled under the Adv.
No.02/2017 for the post of Assistant Engineer
(Civil) except 16 meant for PH candidates which
was not recommended by the BPSC due to non
availability.”
54. It is submitted by Mr. Verma that the ratio of
Ramesh Ram (supra) would not be applicable in the facts and
circumstances of the case. The examination was held in the instant
case only in respect of one cadre and post of Assistant Engineers
having same pay-scale and status. Ramesh Ram’s judgement has
dealt with UPSC examination where different cadres of posts are
required to be filled up, viz., IAS, IFS, IPS, allied Central Services
and even Group-B services consisting of different cadres. In such
examination, if preference based allotment and distribution of
merit-list on the basis of MRC and filling up of the vacant seats
taken by MRCs by the unreserved candidates, are not taken into
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
48/56
consideration, there would be topsy turvy situation with regard to
the principles of reservation.
55. In the instant case, however, the position is
otherwise. Therefore, the ratio laid down in Ritesh R. Sah and
Tripurari Sharan (both supra) are to be applied.
56. The learned Additional Advocate General has also
placed his reliance in support of his argument to an unreported
decision of the Division Bench of this Court in L.P.A. No. 519 of
2023 in Civil Review No. 21 of 2020 (Kumar Gaurav Singh &
Ors. v. The Bihar Staff Selection Commission & Ors.). In the said
case, the Division Bench of this Court had the occasion to consider
all the above-mentioned judgements and held that the principles
laid down in Ritesh R. Sah and Tripurari Sharan (both supra) are
applicable in the facts and circumstances of this case.
57. The Division Bench of this Court in Kumar Gaurav
Singh & Ors. v. The Bihar Staff Selection Commission & Ors.
(supra) had the occasion to deal with the question of reservation
and the mandate to confine it to 50 per cent so as to not
compromise merit. The application of the principle, on the facts of
the case, resulted in MRC being given their choice districts,
enabled only by reason of their higher merit, leading to ouster of
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
49/56
reserved candidates to accommodate the meritorious general
candidates in the resultant vacancies.
58. In the aforesaid decision, the Division Bench of this
Court had dealt with the applicability of the ratio laid down in
Ritesh R. Sah (supra), Tripurari Sharan (supra), Dega Venkata
Harsha Vardhan v. Akula Ventaka Harshavardhan [(2019) 12
SCC 735], which relate to admission to academic institutions, and
Union of India v. Ramesh Ram (supra) followed by Alok Kumar
Pandit v. State of Assam [(2012) 13 SCC 516], with respect to
appointment to civil services.
59. It would not be out of place to mention at this stage
that the question which was raised in the above-mentioned case
before the Division Bench is as to whether MRCs by virtue of their
merit got their choice districts, would lead to ouster of reserved
candidates to accommodate meritorious general candidates in the
resultant of vacancies. In paragraph 23 of the judgement, the
Division Bench of this Court held as under: –
“23. The instant selection was to the
post of Agricultural Coordinator under the
Directorate of Agriculture, Bihar, Patna. A copy
of the advertisement is produced as Annexure-1 in
the Civil Review cases from which the appeals
arise. A translated copy was also produced across
the Bar. The advertisement indicates the number
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
50/56of vacancies and the reservation quota as eligible
to the various categories entitled to such
reservation. Enumerating the details of vacancies
indifferent districts, the advertisement indicates
the total sanctioned posts in each district from
which the reservation quota and the general
quota were segregated and shown separately.
This is the context in which the candidates were
required to give their option with respect to the 38
districts. It was also specified in the
advertisement that those candidates who failed to
give their option would be allotted the district as
per their merit. Hence, as in Ramesh Ram
(supra), there is no disparity in benefits in the
services to which the applications are called for.
The option to be exercised is also not with respect
to the service; which in the present case is only
one cadre post, and is exercised specifically for
the purpose of allotment of district. There is no
district cadre insofar as the posts are concerned
and the modalities for reservation as provided in
the advertisement does not indicate any
adjustments being made of ‘the MRC’ candidates
in the opted districts, in the reservation post and
thus, dis-entitling the less meritorious reserved
candidates from being considered for
appointment in the reserved vacancies.”
60. The Division Bench also examined the recruitment
rule, i.e., the Agriculture Coordinator Cadre (Recruitment &
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
51/56
Service Conditions) Rules, 2014. The Agriculture Coordinator is
defined as such personnel giving technical and administrative
cooperation in implementing various schemes of the Agriculture
Department, below Block level; which makes it a State Cadre. The
Division Bench found glaring difference between the said rule and
Rule 16(2) of CSE Rules, 2005 and held that there is no rule
similar to rule 16(2) in the Agriculture Coordinator Cadre Rules,
2014.
61. In fact, there is no necessity for such rule since there
is an identity in so far as the post to which the appointment is
made similar to the admission made to a medical course. The
district-wise option does not give any additional benefit to the
appointee other that who being accommodated in the home district
or a district nearby to his district of domicile. In other words, in
the Agriculture Coordinator Cadre Rules, 2014, the MRCs were
only given option of districts within the cadre to Rule 16(2) of
CSE Rules, 2005 deals with common examination conducted by
the UPSC in respect of different cadres like that of IAS, IFS, IPS
and Allied Civil Services under the Union and other services.
Therefore, UPSC examination is conducted for selection of the
candidates constituting different cadres, different pay-scale and
differing hierarchy.
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
52/56
62. Under such circumstances, the principle laid down in
Ramesh Ram (supra) is applicable in such examination. However,
in the case of Agriculture Coordinator, a person having higher
merit would be considered for his or her optional district and it is
in that context that MRC candidates who would be appointed as
Agriculture Coordinator on merit would be shifted to his optional
district in a reserved vacancy, which does not give him any
additional benefit or perceived higher status in the service of a
State. It is more a rule of convenience so as to enable the
meritorious candidate to get a district of his / her option than one
resulting in divergence of status, when a meritorious candidate is
allowed to a higher service having a different status based on the
option exercised. If in the event of identity of status in the service
to which appointment is made, the reserved vacancy is deemed to
have been filled up by MRC candidate allotted to a district of his
choice, then it would be effacing the merit of MRC candidate
belonging to the reserved candidate. Hence, when a notional
adjustment is made on the basis of an option exercised in so far as
the district to which the appointment is to be made, the shifting of
the point is only as against the MRC candidate, and the reserved
candidate having a lesser merit as well have to be considered to the
vacancy created by the shifting made of the MRC candidate. On
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
53/56
the above reasoning in the facts and circumstances of the instant
case, the Division Bench found that the principle in Rameh Ram
(supra) would not apply and that in Ritesh R. Sah and Tripurari
Sharan (both supra) would clearly apply.
63. The learned Additional Advocate General as well as
the learned Sr. Advocate appearing on behalf of the B.P.S.C. have
strongly relied on the Division Bench’s judgement of Kumar
Gaurav Singh (supra). It is submitted by them that the
examination was held in respect of one cadre of Assistant Engineer
(Civil). According to their merit, they had the chance only to
occupy a particular department on the basis of merit. As for
example, if an MRC is of the view that the Department of Road
Construction is most preferential department for him and by virtue
of his merit he is entitled to be appointed in Road Construction
Department, he would be appointed in that department but this
does not mean that the consequent vacancy would go to the lesser
meritorious candidate in unreserved pool.
64. Having heard the learned counsels for the parties at
length, this Court likes to record at the outset that none of the
contesting parties denies that reservation quota would extend up to
50 per cent in terms of the guidelines made by the Hon’ble Apex
Court in Indra Sawhney case.
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
54/56
65. It is needless to say that both Ritesh R. Sah (supra)
and Tripurari Sharan (supra) are decisions on the point of
determination of seats in medical colleges in between MRCs,
reserved candidates and unreserved candidates. The above-
mentioned judgements were delivered by the Hon’ble Supreme
Court taking into consideration that none of the contesting parties
would be refused to get a chance in a medical college of the
country on the basis of their acquiring cut-off mark. The inter se
dispute is with regard to admission in a college of preference by
MRC.
66. In both the above-mentioned cases, the selected
candidates did not constitute separate entities or cadres.
67. However, in the instant case, though B.P.S.C.
selected Assistant Engineers (Civil), they were selected for distinct
and separate departments, constituting separate cadre. In other
words, cadre of RCD is not the same as that of the cadre of Water
Resources Department. In Ramesh Ram (supra), UPSC
examination was held for different Central Services, constituting
different cadres. In the instant case also, a common examination
was held for separate and district cadre posts and the facts of these
cases are not the same as that of Ritesh R. Sah or Tripurari
Sharan (both supra).
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
55/56
68. By virtue of Advertisement No. 2 of 2017, the option
of the candidates was sought for with respect to the service in
different departments. The MRCs were entitled to be appointed in
their preferential departments constituting separate and distinct
cadre. If such exercise was done, there would have been automatic
march of unreserved candidates like the petitioners in the vacant
reserved category. In such event, the cut-off mark would
automatically be decreased. Neither the State Government nor the
B.P.S.C. carried out such exercise resulting in almost 140 vacant
seats in different departments.
69. For the reasons stated above, this Court is of the
view that the principle laid down by the Hon’ble Supreme Court in
Ramesh Ram (supra) would clearly be applicable in the instant
case.
70. Accordingly, all the writ petitions are allowed on
contest.
71. The Respondents are directed to revisit the final
selection list in the light of the principles laid down by the Hon’ble
Supreme Court in Ramesh Ram (supra) and rewrite the cut-off
mark for unreserved candidate within 90 days from the date of this
order. Thereafter, the new list is to be placed before the State
Patna High Court CWJC No.1945 of 2022 dt.07-02-2025
56/56
Government for consideration of the appointments of the
candidates.
72. It is made clear that while doing such exercise, the
State Government shall not disturb the service of the candidates
who have already been appointed as Assistant Engineers (Civil) in
different departments on the basis of their selection list published
earlier by the B.P.S.C.
(Bibek Chaudhuri, J)
skm/-
AFR/NAFR AFR CAV DATE 18.01.2025 Uploading Date 07.02.2025 Transmission Date N/A
[ad_1]
Source link