JUDGMENT

Shivaji Pandey, J. - Heard learned counsel for the petitioner, learned counsel for the High Court, learned counsel for the State and learned Senior counsel for the Bihar Public Service Commission.

2. In the present case, the petitioner is seeking appointment against the post advertised vide Advertisement No.06 of 2018 as having claimed that she secured identical marks of 517 as that of last candidate, who has been selected under the unreserved category. It has further been submitted that six persons under the unreserved category did not join the post and as such, the petitioner being next one in the merit list having secured 517 marks to be appointed on that post.

3. The facts of this case are that an Advertisement No.06 of 2018 was issued by the Bihar Public Service Commission for the appointment of 349 candidates on the posts of Civil Judge (Junior Division). The petitioner applied and appeared in the examination but, could not get her place in the final select list. Sri Amit Kumar Singh, who is the last candidate selected on the post of Civil Judge (Junior Division) having secured 517 marks. It has been brought to our notice that about six candidates under the unreserved category did not join the post, which is apparently clear from the Notification issued by the State Government vide Memo no.3339 dated 03.03.2020 whereby the recommendation of Pankaj Kumar Srivastava, Ashwani Kumar Upadhyay, Nawnit Kashyap and Sandeep Mani, have been cancelled as they failed to join the post and vide memo no.11698 dated 10.012.2020 the appointment of three persons namely, Abhishek Kumar, Suman Grewal and Rakesh Kumar have been cancelled. Out of seven candidates, six candidates belong to unreserved category.

4. The petitioner has brought to our notice that she sought information from the State Government under the Right to Information Act to give the name of last person who has been appointed on the post of Civil Judge (Junior Division) as also the names of persons who have secured same marks i.e. 517. The petitioner got information that altogether 10 persons have secured 517 marks and her position is below to Anita Kumari, as although she secured 517 marks but, she obtained 457 marks in the written examination whereas, the petitioner obtained 452 marks in the written examination, so Anita Kumari secured higher place in the merit list than that of the present petitioner. However, it has been pointed out by learned counsel for the petitioner that Anita Kumari belongs to Backward Category and she has been appointed in that category, so after Anita Kumari, the present petitioner would be the next candidate to be adjusted against remaining six vacancies.

5. Learned counsel for the petitioner has placed reliance on the judgment of Hon ble Supreme Court rendered in the case of Malik Mazhar Sultan (3) and Anr. vs. Uttar Pradesh Public Service Commission, (2008) 17 SCC 703 and submits that the petitioner is entitled to be adjusted against vacant post under the unreserved category.

6. Counter affidavits have been filed by the Bihar Public Service Commission, High Court as well as the State. The respondents have not disputed that the present fact but, learned counsel for the State has made submission that as there is a Government Resolution dated 15.07.2007, in which it has been decided that if any candidate fails to join the post, the said post will go to the next recruitment year. On that basis, learned counsel for the State submits that the posts not filled-up on account of non-joining of the selected candidates will be added in next requisition for recruitment.

7. Learned counsel for the Bihar Public Service Commission submits that the duty of the Commission is to recruit the persons and to make panel of selected candidates and that has been done by the Commission and if there is no direction from the State Government or the High Court for furnishing the names below the last recruited candidate, the Commission is not obliged to recommend further