The main legal point established in the judgment is that an inoperative executive instruction cannot be used as a ground for carrying forward non-joining posts, and departments must comply with court directions for appointments.

1. Heard the counsel for the parties.

2. Petitioners have filed present writ application for quashing Advertisement No. 1 of 2006 issued by the Bihar Public Service Commission on 31.1.2006 inviting applications for appointment to 422 posts of Assistant Engineers (Civil) in the Road Construction Department, Public Health Engineering Department and the Irrigation Department. Advertisement has been published in the daily newspaper, on the requisition received from the Road Construction Department, Government of Bihar. Out of 422 advertised posts, 206 posts are meant for general cetegory. Petitioners grievance is that 206 posts meant for general category also includes 9 non-joining seats of previous advertisement being Advertisement No. 25 of 1999 against which the petitioners are claiming their appointment. Petitioners prayer is for exclusion of 9 posts in general category posts, advertised by way of Advertisement No. 1 of 2006.

3. Petitioners case is that the Road Construction Department, Government of Bihar, had earlier requisitioned to the Bihar Public Service Commission for appointment on 129 posts of Assistant Engineer (Civil). On such requisition, Bihar Public Service Commission published Advertisement no. 25 of 1999 inviting applications for appointment of 129 Assistant Engineers (Civil) under the Road Construction Department, Government of Bihar. Petitioners and other eligible candidates applied for their appointment. Preliminary tests were held and the result was published. Out of 129 posts, 100 posts were meant for general category candidates. The Bihar Public Service Commission sent recommendation for 127 successful candidates. Petitioners name were also included in the list of recommended candidates. Petitioner no. 1 was at serial no. 87 and petitioner no. 2 was at serial no. 86. Out of 127 recommended candidates, notification was issued for appointment of 82 candidates only. In spite of recommendation, no steps was being taken for left over candidates. Petitioners filed C.W.J.C. No. 4000 of 2004 which was disposed of vide order, dated 10.1.2005 in terms of C.W.J.C. No. 9605 of 2003. The ground taken by the State for not making appointment of rest candidates was that during the pendency of the selection process Bihar Reorganization Act, 2000, came into existence and on account of bifurcation, 1/3rd vacancy out of requisitioned and recommended list of the Bihar Public Service Commission were allocated to the State of Jharkhand. The Jharkhand State was not obliged to appoint candidates who were recommended by the Bihar Public Service Commission. Finally the writ applications were disposed of with a direction to appoint rest of the candidates as there were more vacancies than the number of candidates still awaiting for appointment. It was also held that even after lapse of time the recommendation made by the Bihar Public Service Commission is valid and needs no revalidation for appointment. The direction was to complete entire process of appointment within three months from the date of the order. Petitioners were at serial nos. 87 and 86 in the list of recommended candidates but not well within 2/ 3rd vacancies allocated to the State of Bihar, on account of bifurcation of State of Jharkhand State. There were 16 candidaters who were still waiting for appointment, which included 13 general category candidates, as such, vide notification no. 2592(s), dated 11.5.2005 fresh appointment orders were issued against 16 non-joining seats as per the recommendation made by the Bihar Public Service Commission. Out of 16 recommended candidates, 9 candidates did not join. A press communique was published asking those non-joining candidates to give joining by 12.8.2006, failing which their appointments will be cancelled, still some of the candidates, whose names have been mentioned in paragraph 18 of the writ application, did not join. Number of such persons were four. Though these recommended candiates did not join, posts were