The court emphasized that vacancies till the date of interview must not be filled up at a time to avoid selecting persons of lower merit and imposing long-term financial liability.

S.K.Katriar, J.

1. Petitioner No. 2 of C.W.J.C No. 172 of 2000 (Rabindra Nath Kanth and Another vs. The State of Bihar and Others), has preferred L.P.A. No. 1031 of 2005, under Clause 10 of the Letters Patent of High Court of Judicature at Patna, and is aggrieved by the order dated 21.7.2005, whereby the writ petition was dismissed. The appellant seeks a direction to the respondent authorities to fill up the posts of Assistant Public Prosecutor which have fallen vacant till the date of interview as per the selection process in question. The appeal and the two writ petitions raise identical issues with respect to the same advertisement and the selection process and have, therefore, been heard together and are being disposed of by a common judgment.

2. A brief statement of facts giving rise to the appeal may be indicated. On the request of the State Government, the Bihar Public Service Commission (herein after to be referred to as "the Commission"), published advertisement on 31.7.1996, inviting applications to fill up 88 posts of Assistant Public Prosecutor, The Commission thereafter issued a corrigendum whereby the number of posts to be filled up were raised to 246, out of which 28 were reserved for the Scheduled Tribe candidates. Petitioner No. 2 (the appellant in this appeal), participated in the selection process. The Commission published the result on 4.7.1998. The result was published roll-wise, according to which 225 candidates were successful. It appears that, out of 28 vacancies reserved for Scheduled Tribe candidates, only 7 were found fit and recommendations were accordingly made. In other words, no recommendation could be made for the remaining 21 vacancies for the reserved category of Scheduled Tribes. The writ petitioners did not figure in the final list. They approached this Court by preferring the aforesaid C.W.J.C. No. 172 of 2000, wherein they submitted that all the vacancies of Assistant Public Prosecutor falling vacant till the date of interview should be filled up by the selection process in question, During the course of oral submissions, it was also pointed out that persons were still being appointed in a surreptitious manner after the selection process had been finally closed by the Commission. The writ petition has been dismissed by the impugned order. Hence this appeal by petitioner no. 2.

3. While expressing grievance with respect to the impugned order, the appellant submits that the learned Single Judge has committed error in not issuing a writ of mandamus to fill up the vacancies as prayed for. He also submits that three persons have been appointed much after the Commission had finally closed the selection process and recommendation has been finally made. In support of his contention, the appellant has relied upon a decision of the Supreme Court in the case of Sandeep Singh vs. State of Haryana and Another reported in (2002)10 SCC 549.

4. Mr. Rajendra Prasad Singh appearing for the petitioners in C.W.J.C. No. 6315 of 1999, and C.W.J.C. No. 16456 of 2008, has advanced common set of submissions in support of the two writ petitions. He submits that the advertisement dated 31.7.1996 (Annexure-2), inter alia, stated that "RIKTIYON Kl SANKHIA MEN PARIVARTAN HO SAKTA HAI". He next submits that the Commission had indeed issued corrigendum published on 15.11.1996 (Annexure-3), whereby the number of vacancies were increased. There is no restriction on the part of the Commission or the State Government to revise the vacancies. He next submits that a copy of advertisement in question was not part of the writ proceedings of C.W.J.C. No. 172 of 2000, and the learned Single Judge was, therefore, unable to take into account the relevant terms and conditions in the advertisement to the effect that there could be alteration of vacancies. He also relies on the judgment of the Supreme Court in the case of Sandeep Singh vs. State of Haryana and Another (supra). He lastly submited that petitioner nos. 2, 3, 8 an