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2025 Supreme(Pat) 232
IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHUTOSH KUMAR, ACJ and PARTHA SARTHY, J.
LPA No.1030 of 2024 in CWJC No.1151 of 2024
(8.4.2025)
State of Bihar & Ors. ... Appellants
vs.
Dhirendra Kumar & Ors. ... Respondents
For the Appellants : M/s P.K. Shahi, AG, Ajay, GA-5, Saurav Kumar, AC to GA-5.
For the Respondents: M/s Y.V. Giri, Sr. Adv., Pranav Kumar, Shristi Singh.
For the Intervenor : M/s Mrigank Mauli, Sr. Adv., Prince Kumar Mishra, Sanket, Navin Kumar Singh, Jagjit Roushan.
For the Commission : M/s Sanjay Pandey, Nishant Kumar Jha.
Headnote:
Bihar State School Teachers (Appointment, Transfer, Disciplinary Proceedings and Service Conditions) Rules, 2023 – Rule 7 – Appointment of Primary School teachers – Respondents claiming appointment on vacant posts of Primary School Teachers for Class I to V in Advertisement No. 26/2003 dated 30.5.2023 – They claim to process all the requisite qualifications but their names were not included in the List of candidate – The laws operating in the field in this behalf is neither in doubt nor in dispute – There is no legal right to appointment but only on being considered, which is subject to bona fide action on the post of the State – An aspirant has no legal right and the Superior Court, in exercise of its judicial power of review, would not ordinarily direct issuance of any writ in the absence of any pleading and proof of mala fide or arbitrariness on the part of the employer – It is not incumbent upon the employer to fill all posts but discretion not to appoint, must be exercised judiciously – Courts normally would not interfere with the discretion not to fill up posts but exercise of such discretion should not be arbitrary, capricious or whimsical – It is categorically stated by the Commission that no respondents/writ petitioners met the cut-off threshold of date of birth, though they had obtained marks to equal to the selected candidates – Vacancies have been carried forward and two consecutive selection process got activated – Not a fit case to interfere with the impugned judgment – Impugned judgment set aside – Appeal allowed. (Paras 24 to 30)
Ashutosh Kumar, ACJ. – Heard the learned counsel for the parties.
2. The State of Bihar and the Bihar Public Service Commission (in short the Commission) and others have challenged the judgment dated 18.07.2024 passed by a learned Single Judge of this Court in C.W.J.C. No. 1151 of 2024, whereby the State of Bihar and the Director of Secondary Education have been directed to identify the number of vacancies that had arisen due to non-appointment of the candidates recommended by the Commission as Primary Teachers for Class-I to V pursuant to Advertisement No. 26/2023 for want of requisite qualifications and convey the same to the Commission and on receipt of such information, the Commission has been directed to publish a supplementary result in order of merit from the selection held pursuant to Advertisement No. 26/2023, subject to the candidate(s) having secured the cut-off marks and meets the cut-off date of birth prescribed by the Commission.
3. The respondents/applicants had approached the High Court for issuance of a mandamus to the Commission to publish a supplementary/revised merit list for teachers in Primary Schools for Class-I to V in Advertisement No. 26/2023, dated 30.05.2023, against the vacancies that could not be filled due to ineligibility/disqualification of provisionally successful candidates for non-passing of the CTET and D.El.Ed. Examinations; to publish the result of the respondents in the fresh supplementary list and call them for document verification and allot respective schools; to lower down the cut-off date of birth in all the categories in the supplementary/revised merit list for teachers in Primary Schools for Class-I to V and for a direction to the appellants not to merge/include the left-over vacancy of Advertisement No. 26/2023 dated 30.05.2023 with the future vacancy of Teachers’ Recruitment Examination.
4. The Commission had published an advertisement, bearing No. 26/2023, dated 30.05.2023, inviting online applications for 1,70,461 posts for appointment of Primary School Teachers for Class-I to V; Secondary School Teachers for Class-IX and X and Senior Secondary School Teachers for Class- XI and XII. For the posts of Primary School Teachers for Class-I to V for general subjects, the number of posts advertised was 67,066 with which the respondents are concerned.
5. The advertisement provided the eligibility criteria that in case of candidates obtaining same marks, age would be given precedence and in case, age will be the same, the alphabetical order would be given the priority.
6. The respondents claimed to possess all the requisite qualifications, but their names were not included in the list of successful candidates, numbering 62,653.
7. At the time of publishing of the result, the cut-off marks and the cut-off date of birth for Primary Teachers for different categories, on the basis of the written examination held on 24.05.2023 and 25.05.2023, was also published.
8. The claim of the respondents before the learned Single Judge was that they had secured qualifying marks as published by the Commission for Primary School Teachers, but their names were not included in the merit list because of the cut-off date of birth fixed by the Commission, in which the respondents were lesser in age than the selected candidates. The grievance of the respondents before the learned Single Judge was that against 67,066 posts advertised under the general subject category, only 62,653 candidates were selected. Apart from this, many of the selected candidates had not joined on account of multiple selection of some of them for different posts and some were not found to possess the requisite qualification, which vacancy was 4619. Under such circumstances, the respondents had contended, the Commission ought to have published supplementary/additional select list to fill up the vacancies.
9. The selection and appointment of teachers is made under the Bihar State School Teachers (Appointment, Transfer, Disciplinary Proceeding an
