In the State of Bihar & Ors. vs. Dhirendra Kumar & Ors, Letters Patent Appeal No.1030 of 2024, Patna High Court's Division bench of Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy set aside the Single Judge’s Judgment by Justice Nani Tagia by his 20-page long judgement dated April 8, 2025.
The Division Bench judgement recorded that the Commission
categorically stated that amongst the writ-petitioners, nobody was in
the category of candidates who qualify to be appointed on the basis of cut-off marks and cut-off date of birth.
Drawing on Supreme Court's decisions in Shankarsan Dash vs. Union of India: (1991) 3 SCC 47; R.S. Mittal vs. Union of India : 1995 Supp.(2) SCC 230 and Food Corporation of India & Ors. vs. Bhanu Lodh & Ors.: (2005) 3 SCC 618, the Division Bench observed: "There is no legal right to appointment but only of being considered, which is subject to bona fide action on the part of the State. An aspirant has no legal right and the superior Court, in exercise of its judicial power of review, would not ordinarily direct issuance of any writ in the absence of any pleading and proof of mala fide or arbitrariness on the part of the employer."
Drawing on Supreme Court's decision in Kashyap & Ors. vs. South East Central Railway & Ors.:(2019) 12 SCC 798, the Division Bench observed: "It is not incumbent upon the employer to fill all posts but discretion not to appoint, must be exercised judiciously. Courts normally would not interfere with the discretion not to fill up posts but exercise of such discretion should not be arbitrary, capricious or whimsical." It concluded: "For the afore-noted reasons, we are of the opinion that it is not a fit case where the impugned judgment could be sustained."
Granting relief to 101 petitioners, in his 56-page long
judgment dated July 18, 2024, Justice Tagia had directed the State of Bihar through the Chief Secretary Additional chief Secretary, Education Department, Secretary, Education Department, and Director, Secondary Education, Education Department, to identify the number of vacancies that had arisen due to non-appointment of the candidates recommended by the B.P.S.C. as primary teacher for class I-V pursuant to the Advertisement No.
26/2023 for want of requisite qualifications and convey it to the respondents, namely, Bihar Public Service Commission, Chairman, Bihar Public Service Commission and Joint Secretary -cum- Examination Controller, Bihar Public Service Commission On receipt of this information, the respondents were required to publish a supplementary result in order of merit from the selection held pursuant to Advertisement No. 26 of 2023, subject to the candidate(s) having secured the cut off marks and meets the cut off date of birth prescribed by the B.P.S.C.
The petitioners had filed the writ petition praying for issuance of an appropriate writ, order, direction in the nature of mandamus commanding the respondent Bihar Public Service Commission to publish thesupplementary / revised merit list for teachers in primary school for Class I-V in advertisement no. 26 of 2023 dated
30.05.2023, against the vacancies that could not be filled due to ineligibility/disqualification of provisionally successful candidates for non-passing of the CTET and
D.El.Ed. Examination.
The petition sought a direction in the nature of mandamus commanding the respondents to publish the result of the petitioners in the fresh supplementary list and call the petitioners for document verification and accordingly, allot respective schools after the publication of the supplementary/revised merit list for teachers inprimary school for Class I-V against advertisement no. 26 of 2023 dated
30.05.2023.
It prayed for direction in the nature of mandamus commanding the respondents to consequently, lower down the cut-off date of birth in all the categories in the supplementary/revised merit list for teachers in primary school for Class I-V against advertisement no. 26 of 2023 dated
30.05.2023, and publish the revised merit list accordingly.
It also sought a direction in the nature of mandamus commanding the respondents to not merge/include the leftover vacancy of advertisement no.
26/2023 dated
30.05.2023 with the future vacancy of teacher recruitment examination.
It prayed for direction in the nature of mandamus commanding the respondents to furnish the details of the vacancies accrued in primary teacher for class I to V due to the candidature rejection of successful candidates in want of CTET &
D.El.Ed. certificates and for any other reason. The petition wanted the Court to declare that the respondent Bihar Public Service Commission is legally bound to publish the supplementary/revised merit list for teachers in primary school for Class I - V in advertisement no. 26 of 2023dated
30.05.2023 and thereafter, on the basis of the supplementary/revised merit list for teachers, the appointments are made.
The Bihar Public Service Commission (BPSC) had published advertisement No.26/2023, dated 30.05.2022 under the signature of the Joint Secretary cum Examination Controller, BPSC inviting on-line
applications for 1,70,461 posts. These advertised posts included 79,943 posts of primary school teachers for class-1 to 5 for the subjects Urdu, Bangla and general subject. For general subject, the number of posts advertised was 67,066. The petitioners are concerned with 67,066/- posts advertised for primary school teachers for general subject. The advertisement, apart from providing eligibility criteria also provided that in case of the candidates obtaining same marks, age will be given precedence and in case, age will be the same, alphabetical order will be given priority. While advertisement provided 12.07.2023 as the last date of submission of on-line applications, B.P.S.C. published a corrigendum dated 22.06.2023, in which, it has been mentioned that the candidates, who had participated in CTET paper-I examination till 31.08.2023, will be allowed to participate in the examination. The petitioners, who possess all the requisite qualification, applied and had appeared in the written examination held on 24.08.2023 and 25.08.2023. The B.P.S.C. published result on 18.10.2023, wherein 62,653 candidates were declared successful for appointment as primary school teacher. At the time of publishing the result, the cut off marks and cut off date of birth for primary teacher for different categories, on the basis of written examination held on 24.05.2023 and 25.05.2023.
The Division Bench judgement has recorded that three kinds of vacancies were identified, viz., (i) the seats remaining vacant because of the Commission recommending lesser number of candidates which was carried forward in the next advertisement; (ii) the seats remaining vacant because of recommendation of same candidate on multiple posts for which a supplementary result of 467 candidates was published and (iii) the seats remaining vacant because of recommendation of ineligible candidates, which also was carried forward in the next advertisement. The vacancy in the third category could be calculated only after the conclusion of examination against next Advertisement No. 27/2023. Because of this, the supplementary result was published against seats which remained vacant due to recommendation of same candidate on multiple posts only.
The judgement reads: "we have taken into account the categorical statement of the Commission that no respondents/writ petitioners met the cut-off threshold of date of birth, though they had obtained marks equal to the selected candidates. We have also considered that the vacancies were carried forward and two consecutive selection process got activated."
