Chandramauli Kumar Pd. and S.K.Sharma JJ.

1. Both the appeals arise out of same order and as such they were heard together and are being disposed of by this common order.

2. Writ petitioners-appellants, aggrieved by the common order dated 28th October, 2008 passed by the learned Single Judge in C.W.J.C. No. 13898 of 2008 and C.W.J.C. No. 14798 of 2008, have preferred these appeals under Clause 10 of the Letters Patent.

3. Short facts, giving rise to the present appeal are; that the writ petitioners-appellants (hereinafter referred to as petitioners) were candidates for appointment as Assistant Public Prosecutor for which the Bihar Public Service Commission made advertisement bearing advertisement no. 2 of 1996. Total number of post advertised was 88 but the advertisement stipulated that the number of vacancies may vary. Thereafter, the Bihar Public Service Commission issued corrigendum and disclosed the number of up-to-date vacancies to be 246. The corrigendum also indicated that other conditions stipulated in the earlier advertisement shall remain the same. In the light of the advertisement, petitioners besides a large number of persons offered their candidature. Petitioners appeared in the written test. The interview of those persons who were successful in the written test, was held in between 16th of June, 1998 to 25th of June, 1998 and ultimately list of 225 successful persons was published on 4th of July, 1998. It seems that some of the candidates who ought to have been called for interview, were not called and ultimately, the interview of three candidates was held on 14th of February, 2004 and one of the candidates who appeared on the said day, selected for appointment.

4. Petitioners sought information in regard to the number of vacancies on the last date of interview, i.e. 14.2.2004 under the Right to Information Act and came to know that 128 vacancies existed on that date.

5. Accordingly, they filed the writ application inter alia praying that all those vacancies which existed on the last date of interview, be filled up from amongst the candidates who have offered their candidature in response to advertisement no. 2 of 1996. Prayer of the petitioners was considered by the learned Single Judge which did not find favour with him and he dismissed the writ application inter alia observing as follows:

"The wholesome principle of Articles 14 and 16 also warrant that subsequent vacancies should be available to persons who became eligible later on and should not be given as a favour to applicants who might have applied several years back. A contrary practice would violate Articles 14 and 16 of the Constitution of India."

6. Mr. Anjani Kumar appearing on behalf of the petitioners submits that undisputedly candidates were interviewed on 14.2.2004 and on that date, 128 vacancies existed and therefore, the petitioners have right to be considered for appointment on all those vacancies. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of Sandeep Singh V/s. State of Haryana and Another reported in (2002)10 SCC 549 and our attention has been drawn to the following passage from the paragraph-3 of the judgment, which reads as follows:

"That apart, even on first principle, it appears to us to commend that the vacancies available in any particular service till the date of interview at least should be filled up from the very same examination unless there is any statutory embargo for the same. In the case in hand, no statutory embargo has been pointed out to us. In this view of the matter, the judgment of this Court in Hooda2 should apply to the facts and circumstances. Be it stated that we have been shown the Government circular of the year 1993 in Hindi and going through the same, we are persuaded to hold that the circular says the same thing that we have indicated earlier in this judgment."

7. Mr. Lalit Kishore, AAG-III appears on behalf of respondent Nos. 1 to 3, 7 &

8. Resp