(Per: HONOURABLE THE CHIEF JUSTICE)

Feeling aggrieved by the common judgment and order dated 15th October 2004 made by the learned single Judge in CWJC Nos.9609 of 2003 and 10796 of 2003, the respondent- State of Bihar has preferred these Appeals under Clause 10 of the Letters Patent.

2. Letters Patent Appeal No.867 of 2005 came up for hearing before the Division Bench. The Bench has, in view of the conflicting judgments in the matter of Anil Kumar Mishra Vs. The State of Bihar & Ors. [2004 (3) PLJR 246] and in the matter of The State of Bihar & Ors. Vs. Arun Kumar [2005 (4) PLJR 246], under order dated 30th January 2006 referred the Appeal to the larger Bench. Under order dated 25th October 2010 made by the Division Bench, the above Letters Patent Appeal No.905 of 2005 has been ordered to be heard with the Letters Patent Appeal No.867 of 2005.

3. The matter at dispute relates to appointment of the Assistant Engineers (Civil) under the Road Construction Department of the State Government pursuant to a selection process commenced in 1999. Pursuant to the requisition made by the State of Bihar, the Bihar Public Service Commission (hereinafter referred to as “the Commission”) issued advertisement calling for applications from the eligible candidates to fill up 129 vacant posts of Assistant Engineer in the Road Construction Department of the State of Bihar. Pursuant to the said selection process, the respondents-writ petitioners and many others applied for such selection and appointment. The selection process of conducting a preliminary examination, mains examination and the interview stretched over three years.

4. A select list of 127 candidates was prepared by the Commission and was forwarded to the State Government on 6th January 2003. Pending the selection process, the larger State of Bihar was bifurcated. Under Government Notification dated 15th November 2000, a part of the larger State of Bihar was separated and a new State of Jharkhand was formed. Pursuant to the said bifurcation and under the provisions of the Bihar Reorgnisation Act, 2000; of the 129 vacancies advertised, 85 posts (2/3rd of the total vacancies) were retained by the smaller/present State of Bihar. The rest of the vacant posts were allotted to the State of Jharkhand. The select list forwarded by the Commission on 6th January 2003 was operated to fill in the aforesaid 85 vacancies falling to the share of the smaller/present State of Bihar. The rest of the posts not being available to the State of Bihar were not filled in by operating the select list prepared by the Commission.

5. The writ petitioners are the persons, who had applied for selection and appointment to the posts of Assistant Engineer, were also included in the list of 127 selected candidates, but were not amongst the first 85 of the select list. The petitioners and such others were, therefore, not appointed by the State of Bihar in its employment.

6. Feeling aggrieved, the writ petitioners have approached this Court under Article 226 of the Constitution for a direction to the State of Bihar to appoint the writ petitioners on the existing vacancies in the cadre of Assistant Engineer.

7. The learned single Judge has allowed the writ petitions. The learned single Judge is of the opinion that the State Government had made the requisition for 129 posts. The Commission had prepared a select list of 127 candidates of which 82 candidates have already been appointed. The remaining candidates have a right to appointment on the existing vacancies.

8. The learned single Judge has, therefore, directed the State Government to appoint the remaining 45 candidates on existing vacancies. Feeling aggrieved, the State Government has preferred these Appeals.

9. The first question that arises in these Appeals is whether the candidates selected had indefeasible right to appointment in the State employment. The law is well settled.

10. We do not need elaborate discussion to hold that by mere selection no indefea