Important Points
(1) The expression “such candidates in Rule 20 of Bihar Judicial Services (Recruitment) Rules, 1955 refers to candidates figuring in the merit list out of which supplementary list of candidates was prepared by the BPSC and may also include SC/ST candidates. But the expression does not refer to only SC/ST candidates by giving a restricted meaning to it.
(2) Where the candidates from the supplementary list prepared out of merit list for the 15th Examinations held under Bihar Judicial Services (Recruitment) Rules, 1955 were appointed against vacancies of reserved category for want of qualified candidates from reserved category and they were placed senior to candidates appointed under Bihar Civil Service (Judicial Branch) Adhoc Recruitment Rules, 1974 though their appointment was pursuant to candidates appointed under 1974 Rules because of procedural delay, seniority of such candidates is just, proper and legal as their appointment was delayed for no fault of theirs. Such candidates would also be senior to SC/ST candidates appointed under 1955 Rules because they secured a higher position in merit than SC/ST candidates appointed under 1955 Rules.
(3) The claim of candidates appointed against reserved category under Bihar Judicial Services (Recruitment) Rules, 1955 regarding their seniority is not barred by the decision of Patna High Court in Rajendra Sinha v. Bihar, 1990(2) B.L.J.R. 1332 on ground of application of doctrine of constructive res judicata as the dispute therein related to reckoning of adhoc services for the purposes of seniority and the claim of seniority was never put in issue and consequently there was no determination of inter se seniority.

Headnote:(i) Service Law-Constitution of India-Article 16-Bihar Judicial Services (Recruitment) Rules, 1955 -Rule 20-Appointment of Munsifs-Reservation-Carry Forward Rule-Conversion of reserved category vacancy to that of general category-Proper in absence of any provision regarding carry forward under 1955 Rules. (Para 6)
       (ii) Constitution of India-Articles 14, 16 and 234-Bihar Judicial Services (Recruitment) Rules, 1955-Rule 20-Bihar Civil Service (Judicial Branch) Adhoc Recruitment Rules, 1974-Inter se Seniority -Determination-Criteria -Appointment of Munsifs-Absence of adequate number of qualified candidates from reserved category-Resulting in appointment of candidates from supplementary list prepared out of merit list of Examinations under 1955 Rules-Procedural delay in appointment of said candidates under 1955 Rules -Said candidates who secured higher position in merit list appointed pursuant to candidates appointed under 1974 Rules-Are senior to candidates appointed under 1974 Rules-Also senior to SC/ST candidates appointed under 1955 Rules as they secured lower merit position-Order of High Court treating said candidates of supplementary list appointed under 1955 Rules senior to SC/ST candidates appointed under 1955 Rules and also to candidates appointed under 1974 Rules-Just and legal.
       Held : It is true that the BPSC after submitting the original list of 152 candidates from General Category, 10 from SC and 5 from ST Categories corresponded with the State Government to convert these 33 vacancies/posts of SC/ST to General Category and in that process, Government ultimately took a decision converting these 33 vacancies/ posts of SC/ST to General Category in 1976 and only thereafter the BPSC submitted the supplementary list of 33 candidates from the merit list to the State Government for appointment as Munsifs. In the absence of any provision under 1955 Rules to carry forward the SC/ST vacancies/posts and in view of mandate of Rule 20, the BPSC was obliged to nominate the candidates from the merit list to the vacant posts reserved for SC/ST. The nominations and appointments of respondent Nos. 3 to 34 (32) candidates was delayed till 1976 because a supplementary list was not prepared because of some misconception of Law for which these respondents cannot be blamed. It is in these circumstances, we are of the considered view that the respondent Nos. 3 to 34 belonged to the batch of 15th Examination held under 1955 Rules in 1974 will have to be given the placement in the seniority list in terms of the merit list. The appellants in Civil Appeal Nos. 1381-84/91 were admittedly selected and appointed as Munsifs pursuant to the 152 posts advertised on October 14, 1974 under the 1974 Rules after the 15th Examination was held under 1955 Rules. These appellants, therefore, cannot claim the seniority over respondent Nos. 3 to 34 in the seniority list. (Para 18)
       We are, therefore of the view that the respondent Nos. 3 to 34 who were appointed to the vacancies of 15th Examination under 1955 Rules will have to be given seniority over the appellants in Civil Appeal Nos. 1381-84/91, although they came to be appointed later than 23.5.1975 but against 33 vacancies which were then existing to which these appellants had no right. Coming to the Civil Appeal Nos. 1385-85/91 filed by two appellants who belonged to the reserved category, were selected in the 15th Examination under 1955 Rules and were appointed between March, 1975 and 22.5.1975. Admittedly, they were below the respondents Nos. 3 to 34 in the merit list. As stated earlier, the merit list of the selected candidates forwarded by the BPSC was required to be adhered to and there could be no change in the merit list. Consequently, these appellants cannot claim seniority over respondent Nos. 3 to 34. The claim of the appellants is therefore without any merit. For the foregoing conclusions, we are of the considered view that the High Court has committed no error while determining the inter-se seniority of the appellants vis-a-vis the respondent Nos. 3 to 34. (Paras 25 to 27)
       (iii) Interpretation of Statutes-Constitution of India-Article 234-Bihar Judicial Services (Recruitment) Rules, 1955-Rule 20-Expression “such candidates” in Rule 20-Cannot be given restricted meaning so as to refer only to SC/ST candidates-It refers to candidates figuring in the merit list out of which supplementary list was prepared by the BPSC-Also may include SC/ST candidates.
       Held : The expression “such candidates” in Rule 20 cannot be given the restricted meaning to include only SC/ST candidates in the supplementary list. The merit list prepared by the BPSC nominating 33 candidates therefrom unmistakably indicated that the BPSC prepared the merit list of 241 candidates who were qualified under Rule 19 of whom only 15 candidates of SC/ST could be nominated. No other qualified candidate of SC/ST was available in the said merit list. There is no provision under the Rules which enables the BPSC to recall or hold fresh written examination and viva-voce test and any exercise in that behalf would be contrary to 1955 Rules. Despite the proviso to Rule 17 no SC/ST candidate could qualify by securing the minimum marks of 30 prescribed by the BPSC in consultation with the High Court. In the facts and circumstances of the case, the expression “such candidates” in Rule 20 would be referable to the candidates who figure in the merit list prepared by the BPSC and out of this merit list a supplementary list of candidates under Rule 20 was required to be prepared who in the opinion of the BPSC have attained the required standard of qualifications and are in all respects suitable for the appointment of service. This may even include SC/ST candidates. Any other construction would result into keeping the 33 posts reserved for SC/ST vacant and consequently there would have been shortage of munsifs to man the Judiciary. It is not the contention of the appellants that SC/ST candidates were available in the merit list who fulfil the qualifying marks yet they were not nominated in a supplementary list. It must be remembered that judiciary being a vital organ to administer the law, any further relaxation may cause a damage to the institutional structure. For these reasons, in our considered opinion the expression “such candidates” appearing in Rule 20 cannot be given restricted meaning. The supplementary list has to contain the names of the candidates from the merit list. Once the merit list is prepared, the same cannot be modified and the same has to remain in force until the supplementary list is prepared to fill in the advertised posts but without any compromise as regards merit. While submitting the supplementary list the BPSC shall nominate sufficient number of such candidates i.e. candidates from the merit list who in its opinion have attained the required standard of qualifications and are in all respects suitable for appointment to the service. In this view of the matter, we must hold that 33 candidates nominated by the BPSC in a supplementary list drawing from the merit list could not be assailed on any ground. (Para 17)
       (iv) Civil Procedure Code, 1908-Section 11-Bihar Judicial Services (Recruitment) Rules, 1955 -Rule 9-Principle of constructure res judicata - Bar-Application-Dispute relating to inter se seniority-Not in issue in previous Judgment-Dispute in previous Judgment related to Rule 9 regarding reckoning of ad hoc services-Claim of respondents regarding their seniority-Not barred by principle of constructive res judicata. (Para 23)

Judgment

S.P. Kurdukar, J.-A common question as regards the interpretation of Rule 20 of Bihar Judicial Service (Recruitment) Rules, 1955 arises in all these Appeals under the following circumstances :

2. Bihar Judicial Service (Recruitment) Rules, 1955 (for short ‘Rules’) were framed under Article 234 of the Constitution of India for appointment of Munsifs in the Bihar Civil Service (Judicial) Branch. On coming into force of the new Criminal Procedure Code w.e.f. 1.1.1974 the work earlier done by the Executive Magistrates stood transferred to Judicial Magistrates. Consequently the Bihar Government decided to create 152 additional temporary posts of Munsifs in the State and, therefore, on 18.5.1974 the Bihar Civil Service (Judicial Branch) Adhoc Recruitment Rules, 1974 (hereinafter for short ‘1974 Rules’) were framed under Article 234 of the Constitution.

3. On April 3, 1973 the BPSC issued advertisement for 200 posts of Munsifs for the 15th examination under 1955 Rules. The break up of 200 posts was 152 posts for general category and 48 posts were reserved for SC/ST. The BOPS conducted the written examination sometime in December, 1973. On August 26, 1974 the High Court of Patna conveyed its approval to the proposal of the BPSC to fix qualifying marks at 40 for general category candidates and 30 for SC/ST candidates. Those who were qualified in the written tests in terms of Rule 19 of 1955 Rules were called for viva-voce in August - September, 1974. At the conclusion of these formalities a common Select List based on merits was prepared. Although 48 posts were reserved for SC/ST candidates but only 15 from the SC/ST category could qualify. Thus the BPSC forwarded the list of 158 candidates to the Bihar Government for appointment as Munsifs under 1955 Rules of which 143 candidates belonged to general category and 15 to the SC/ST. These 158 candidates came to be appointed between March 1975 and 22nd May, 1975 as Munsifs under 1955 Rules. While this process was going on, on October 14, 1974, another advertisement under 1974 Rules was issued by the BPSC for appointment of 152 Munsifs to fill in additional temporary posts of Munsifs created by the Bihar Government. After holding the written examination and viva-voce tests, merit list of 152 candidates was sent by BPSC to the Government of Bihar, which appointed them under 1974 Rules between 23.5.1975 and 17.11.1976 initially for a period of six months but the said period was extended thereafter till their confirmation on 22.11.1985. Between June 14, 1975 and August 4, 1975 additional nine candidates as per the merit list prepared under 1955 Rules came to be appointed taking the total number of appointments to 167 candidates comprising of 152 candidates of general category and 15 candidates of SC/ST category. Resultantly 33 posts of SC/ST candidates remained vacant for want of qualified candidates. There was acute shortage of Munsifs and since the candidates from the SC/ST category were not available in the merit list prepared under 1955 Rules, the State Government sometime in June, 1976 de-reserved these 33 posts. In view of this decision, a list of 33 candidates from the merit list prepared under 1955 Rules was forwarded to the Government and accordingly between 17th June, 1976 and 1st September, 1976 these 33 candidates came to be appointment as Munsifs, however one of them died lateron. The respondent Nos. 3 to 34 are appointees falling in this category. These 32 candidates were confirmed on 9.3.1983 w.e.f. the dates they were appointed. These 32 candidates were given the seniority over the appellants who were recruited under 1974 Rules and were in fact appointed earlier to them. Naturally this determination of inter-se seniority between 32 candidates appointed under 1955 Rules and the appellants appointed under 1974 Rules sought to be challenged by the appellants in Writ Petitions under Article 226 of the Constitution of India in the Patna High Court. There were two

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1998 Supreme(SC) 527

Cases Referred (3)