This petition under Article 226 of the Constitution is referred to the Division Bench by the learned single Judge under order dated 5th August 2011.

2. The respondent no. 4, the Bihar Public Service Commission (hereinafter referred to as “the Commission”) published Advertisement No. 4 of 2007 to invite applications from eligible candidates for the 48th to 52nd Common Combined (Main) Competitive Examination, 2008 for appointment to various cadres in the State Government service. Pursuant to the said advertisement, the petitioner applied under the category of Extremely Backward Class. The petitioner successfully went through the Preliminary Test and the Competitive Test. The petitioner secured aggregate 815 marks at the competitive written examination and the viva voce; the cut-off marks for the candidates in Extremely Backward Class. Nevertheless his name was not recommended by the Commission for want of available vacancy. Therefore, this petition.

3. Learned Advocate Mr. Manan Kumar Mishra has appeared for the petitioner. He has submitted that the petitioner could not have been denied appointment although he had secured the cut-off marks on the ground of want of vacancy. He has submitted that not all successful candidates recommended by the Commission accepted the appointment; many of such candidates did not join the duty resulting into some unfilled vacancies. He has submitted that in the cadre of Labour Superintendent, out of 4 posts reserved for Extremely Backward Class candidates, one person did not report for duty. The said post, therefore, was required to be filled up from the panel prepared by the Commission pursuant to the above-referred 48th to 52nd Common Combined Competitive Examination. The petitioner being the next candidate on the panel, he has a legitimate right to appointment. He has further submitted that the panel is operative till the next panel is prepared. Till the date the next panel is not prepared. Therefore, the panel needs to be operated. The Commission be directed to recommend the name of the petitioner for appointment as Labour Superintendent on unfilled vacancy. He has next submitted that in any view of the matter the vacancies advertised under Advertisement No. 4 of 2007 ought to be filled in by appointment of the empanelled candidates. Therefore also, the petitioner has a right to appointment pursuant to the said selection process.

4. In support of his submissions, Mr. Mishra has relied upon the judgments of the Hon’ble Supreme Court in the matters of Jai Narain Ram Vs. State of U.P. & Ors. [(1996) 1 SCC 332]; of State of Orissa & Anr. Vs. Rajkishore Nanda & Ors. [(2010) 6 SCC 777] and of this Court in the matters of Ashutosh Kumar Vinayak & Ors. Vs. The State of Bihar & Ors. [2000(3) PLJR 495] and of Niraj Kumar Singh & Anr. Vs. The State of Bihar & Ors. [2007(3) PLJR 702].

5. The petition is contested by the State Government and the Commission. Learned Additional Advocate General Mr. Lalit Kishore has appeared for the Commission. He has submitted that as per the policy of the State Government prevalent since 1977 and reiterated in 2007, the panel prepared by the Commission can be operated for filling up the advertised vacancies alone. In case a person appointed does not report for duty, the resulting vacancy is required to be carried forward. In other words, such vacancies will again be advertised and be filled up in the next selection process.

6. Mr. Lalit Kishore has submitted that the judgment of the Hon’ble Supreme Court in the matter of Jai Narain Ram (supra) has been distinguished by the Hon’ble Supreme Court in the matter of Bihar State Electricity Board Vs. Suresh Prasad & Ors. [(2004) 2 SCC 681]. He has also relied upon the judgments of this Court in the matters of Manish Kumar Shahi Vs. The State of Bihar & Ors. [2008(4) PLJR 93]; of Alok Kumar Vs. The State of Bihar & Ors. [2009(2) PLJR 123] and an unreported judgment in the matter of Ranjit Rana & Ors Vs. The State of Bihar & Ors.