Shiv Kumar Mishra v. State Of Bihar — 1992 DIGILAW 109 (PAT)

Judgment R.M.Prasad, J. 1. By this writ application, the petitioner have pra/yed for quashing of Annexure-5 to the writ petition and Annexure-A to the counter-affidavit filed on behalf of the respondents by an appropriate writ or order and, further, to hold that the rules relating to carry forward of the vacancies in the Government job for the reserved category shall also apply in the case of Economically Backward Class. It has also been prayed that the respondents be directed to consider the cases of the petitioners for appointment against the posts of Junior Engineer (Civil) reserved for Economically Backward Class and to clear all backlong vacancies of the aforesaid category, which according to the petitioners, are 41 in number. 2. The case of the petitioners is that in the year 1985-86 the public Works Department of the State of Bihar prepared a penal for appointment to the posts of Junior Engineer (Civil) and from the said penal some appointments were made till 26-2-1988. In November, 1987, the Irrigation Department, which was later known as Water Resources Department, had been declared as NODAL and had been assigned duties to get the vacancies of all concerned department of the P.W.D., P.H.E., D.R.E.O. and Irrigation Department collected and sent to the B.P.S.C. which would recommend names of suitable candidates to the said Department after complying with all the formalities, including advertisement etc. In the year 1988, the NODAL Department had gathered total number of 1562 vacancies of Junior Engineer and sent it to the B.P.S.C. vide letter No. 29 dated 21-1-1988 requesting it for making recommendation of the suitable candidates for the said posts for appointment from 1985-86 penal prepared by the Commission in the year 1987. A true copy of the said letter dated 21-1-1988 is Annexure-1 to the writ petition. The B.P.S.C. sent the names of only 926 suitable candidates to the NODAL Department from the 1985 penal and cut of whom 12 names were recommended from the category of Economically Backward Class as against 46 reserved posts for them on the basis of 3% of the total 1562 vacancies as already stated above. Out of these 12 persons only 9 of them joined. The letter dated 26-2-1988 of the B.P.S.C. in this regard has annexed as Annexure-2 to the writ petition. Out of these 12 persons only 9 of them joined. The letter dated 26-2-1988 of the B.P.S.C. in this regard has annexed as Annexure-2 to the writ petition. Thus, according to the petitioners, 34 plus 3 vacancies in the reserved category of Economically Backward Class remained to be filled up. 3. On 2-9-1988 a fresh requisition was sent by the NODAL Department to the B.P.S.C. for filling up 1205 vacancies of Junior Engineer along with all backlog reserved quota in different categories in which only 32 posts have been shown to be reserved for Economically Backward category. In pursuance of the said requisition the B.P.S.C. advertised only 535 plus 395 vacancies out of which 32 were shown to be reserved for Economically Backward Class. In response to the said advertisement the petitioners who belong to the Economically Backward Category applied and latter, appeared for interview and was considered as suitable candidates for the aforesaid category. Later however the Engineer in Chief of the Water Resources Department sent letter No. 447, dated 6-9-1990 to the B.P.S.C. informing it that the vacancies reserved for the Economically Backward Class category had been reduced to only six and accordingly the B.P.S.C. recommended the names of only six suitable candidates out of which only four have been appointed on the four backlong vacancies and two on the later vacancies. A true copy of the aforementioned letter has been annexed as Annexure 5 to the writ petition. The petitioners have also stated that according to the advertisement, as contained in Annexure-4 to the writ petition, there was a clause that the vacancy may increase but there was no clause for reducing same. It has also been alleged that no corrigendum to the said advertisement was ever issued. Further, it was submitted that later the Public Works Department sent four more posts to the NODAL Department under Economically Backward Class vide later dated 3-10-1988 and likewise the total vacancy, according to them, in the said category remained to be filled was 41. 4. It has also been alleged that no corrigendum to the said advertisement was ever issued. Further, it was submitted that later the Public Works Department sent four more posts to the NODAL Department under Economically Backward Class vide later dated 3-10-1988 and likewise the total vacancy, according to them, in the said category remained to be filled was 41. 4. The petitioners being aggrieved by the aforesaid letter dated 6-9-1990 as contained in Annexure-5 to the writ petition, filed the present writ application which admitted on 16-12-1991 and on that date an interim order was passed restraining the respondents from making any appointment pursuant to the advertisement (Annexure-4) as also further vacancies which were sought to be filled up the same transaction on the basis of the reservation without extending the benefit of the carry forward rule to the Economically Backward Class, 5. Initially, a counter-affidavit had been filed on behalf of the respondents affirmed by Section Officer employed in the office of respondent Nos. 2 and 3 which was not accepted by this Court because of the infirmities recorded in the order dated 19-2-1984. Later, another counter-affidavit was filed on behalf of the respondents by the Joint Secretary in the office of respondent Nos. 2 and 3 in which the facts that 32 vacancies were reserved for Economically Backward Class in the advertisement has been accepted but it has been stated that in the advertisement itself there was a clear stipulation that the vacancy might be increased or decreased. However, from the advertisement contained in Annexure-4 to the writ petition, I do not find any such stipulation that the vacancies could also be decreased. 6. The case of the respondents from the counter-affidavit appears to be that in course of roster clearance the personnel and Administrative Reforms Department, Bihar after due deliberation, found only six vacancies to be reserved for the Economically Backward Class as, according to them, the backlog vacancies in the case of Economically Backward Class are not to be carried over and this resulted in the decrease of the vacancies reserved for them. A copy of the roster clearance has been annexed as Annexure-A to the counter-affidavit, the validity of which has also been challenged by the petitioners in their reply affidavit. A copy of the roster clearance has been annexed as Annexure-A to the counter-affidavit, the validity of which has also been challenged by the petitioners in their reply affidavit. Further, certain facts regarding the vacancies have also been controverted to which the petitioners have also filed a detailed reply over which I need not dwell upon as the only question to be decided in this case is as to whether candidates belonging to the reserved category, namely, Economically Backward Class are also entitled for equal treatment as that of those belonging to different reserved categories, including the Backward Class. According to the State Government, the Economically Backward Class have been excluded from the benefit of the carry forward rule as prescribed by the State Government. 7. After final hearing of the case had commenced petition was filed on behalf of the petitioners seeking further additional relief challenging the validity of the provision regarding carry forward of the vacancies meant for the reserved categories other than E. B. C. and E. B. W. C. for three recruitment years as provided under the provisions of the Bihar Ordinance No. 33 of 1991 on the ground that the same is arbitrary, unreasonable and discriminatory and contravenes the provisions of Articles 14 and 16 of the Constitution of India so far as it denies the same benefit to the candidates belonging to the Economically Backward Class and Economically Backward Women. 8. Mr. Shyama Prasad Mukherjee, learned Senior Counsel appearing for the petitioners, in support of the case of the petitioners has submitted that the Economically Backward Class and/or Backwoard Class both are socially Backward and, therefore they cannot be discriminated inasmuch as the State Government cannot apply different standards for the purpose of laying down the service conditions for them. According to him, the Economically Backward Class are not separate from Backward Class so far as social backwardness is concerned. Social backwardness is a direct outcome of poverty. Learned Counsel very forcefully submitted that there is distinction between caste and class and poverty is the main basis for determining the class and not the caste. The Constitution also provides for reservation of appointment or posts in favour of any backward class of citizens which, in the opinion of the State is not a equately represented in the service under the State and not on the basis of caste. The Constitution also provides for reservation of appointment or posts in favour of any backward class of citizens which, in the opinion of the State is not a equately represented in the service under the State and not on the basis of caste. In support of this contention learned Counsel has placed reliance on the Supreme Court decision reported in AIR 1969 SC 1 Triloki Nath and Anr. V/s. State of Jammu and Kashmir and Ors. wherein the Supreme Court has held that the expression "Backward Class" is not used as synonymous with "Backward Caste" or "Backward community". The members of the entire caste or community may in the social, economic and educational scale of values at a given time be backward and may on that account be treated as a Backward Class, but that is not because they are members of a caste or community, but because they form a class. It has further been held that in its ordinary connotation the expression "Class" means a homogeneous section of the people grouped together because of certain likeness or common traits, and who are identifiable by some common attributes such as status, rank, occupation, residence in a locality, race, religion and the like. Learned Counsel has also placed reliance on -- M.R. Balaji and Ors. V/s. The State Mysore and Ors. wherein the Supreme Court held the sub-classification made by the order of the Mysore Government between Backward Classes and more Backward Classes to be not warranted by Article 15(4) of the Constitution. In that case it has been held that the sub-classification between Backward Class and more Backward Class does not appear to be justified under Article 15(4) of the Constitution. Article 15 (4) authorises special provision being made for the really Backward Classes. Their Lordships of the Supreme Court in paragraph 23 of the said judgment held as follows: ...It is not unlikely that in some States some Muslims or Christians or Jains forming groups may be socially backward. That is way we think that though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or the dominant test in that behalf. Social backwardness is on the ultimate analysis the result of poverty to a very large extent. That is way we think that though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or the dominant test in that behalf. Social backwardness is on the ultimate analysis the result of poverty to a very large extent. The classes of citizens who are deplorably poor automatically become socially backward. They do not enjoy a status in society and have, therefore, to be content to take a backward seat. It is true that social backwardness which results from poverty is likely to be aggravated by considerations of caste to which the poor citizens may belong, but that only shows the relevance of both caste and poverty in determining the backwardness of citizens. 9. Learned Counsel for the petitioner has also emphatically submitted that the decision to deprive the benefit of carry forward rule to the Economically Backward Class or Economically Backward Women Class is arbitrary inasmuch as there is no logic and reasoning behind the same. I find substance in the submission of the learned Counsel. Once the State Government has given the benefit of reservation to Economically Backward Class, there cannot be any justification to deprive them of the benefit arising from the provisions relating to carry forward of the vacancies for three recruitment years. Further he was justified in his submission that the discrimination is writ large as the candidates of other Backward Classes will get three opportunities whereas the candidates of Economically Backward Class will get only one opportunity. According to him, denial of the same benefit to Economically Backward Class and Economically Backward Women Class is a fraud on power, in support of which he has placed reliance on Balajis case reported in AIR 1963 SC 649 (supra) The learned Counsel has referred to the Government Resolution No. 757, dated 10th November, 1978 which deals with the provisions for reservation Government service for the class of people mentioned therein. He has also referred to Government Resolution No. 890, dated 9th December, 1978 in this regard and has submitted that these resolutions were taken in the light of the Directive Principles of the State Policy as enshrined in Article 46 of the Constitution of India. He has also referred to Government Resolution No. 890, dated 9th December, 1978 in this regard and has submitted that these resolutions were taken in the light of the Directive Principles of the State Policy as enshrined in Article 46 of the Constitution of India. The very first sentence of the resolution dated 10th November, 1978 refers to Article 46 of the Constitution for taking the said decision. 10. Article 46 of the Constitution provides that the State shall promote with special care the educational and economic interests of the weaker section of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and forms of exploitation. It is in this background that the Government took the aforesaid decision for reserving certain percentage of posts for the Economically Weaker section of the people. In this background also he has submitted that there is no justification to discriminate between persons belonging to Economically Backward Class from these of the other Backward Class as both are enqually entitled for protection from social injustice and/or from all forms of exploitation and in the matter of educational as well as economic interest which also includes the job opportunity. 11. Mr. Mukherjee, learned Senior Counsel appearing for the petitioners, also submitted that the word "community" used in. Clause (a) of Sub-sec. (6) of Sec. 4 of the Ordinance is contrary to the scheme and object enshrined in the different provisions of the fundamental rights guaranteed under the Constitution. On the contrary, Articles 15 and 16 prohibit discrimination on grounds of religion, race, caste, sex and place of birth. According to him, the meaning of the word "community" used in the aforesaid clause is nothing but to classify it with a particular caste. On the other hand, learned Advocate General appearing for the State has referred to Clause (c) of the aforesaid provision which would show that the word "community" used herein is nothing to do with a particular caste rather it is referable to a particular class of people. In my opinion, the learned Advocate General is right in his aforesaid submission. The words "particular community" used in various provisions of the said Ordinance have nothing to do with any particular caste rather it has been used in respect of a particular class for whom reservation for direct recruitment has been made. 12. In my opinion, the learned Advocate General is right in his aforesaid submission. The words "particular community" used in various provisions of the said Ordinance have nothing to do with any particular caste rather it has been used in respect of a particular class for whom reservation for direct recruitment has been made. 12. In reply to the earlier submission of Mr. Mukherjee the learned Advocate General has submitted that there is no substance in the submissions of the learned Counsel for the petitioners as the classification is permissible within the legislative competence. Sec. 4 of the Ordinance deals with each category/class. According to him, each category is separate and distinct class for the purpose of reservation and that is why for each category/class the different percentage of reservations have been made which is in accordance with the provisions of the Constitution. Further, he has submitted that the property is not a criteria for the purpose of determination of social backwardness In support of this he gave an example that a "Chamar" may have 10 bighas of land but still he will be called socially backward. According to . him, reservation takes into account any class and not an individual. 13. In my opinion, he is right in his submission that the reservation takes into account any class and not an individual. But I am unable to accept the submission of the learned Advocate General that the poverty is not a criterion for the purpose of determination of social backwardness. This submission of the learned Advocate General stands negated by the decision of the Supreme Court in Balajis case (supra) from which the quotation has been made above. 14. I am, therefore, of the view that the words "Economically Backward" classify such citizens who are deplorably poor and did not enjoy a status in a society and have to be content to take a backward seat, and, thus they are undoubtedly socially backward and by the impugned provision a mini classification based on micro-distinction has been sought to be created, which is not permissible under Article 16 of the Constitution, especially when the respondent have not come forward with any plea in support of the rationality behind it. 15. It has been held by the Supreme Court in the case of State of Jammu and Kashmir V/s. Shri Triloki Nath Khosa and Ors. 15. It has been held by the Supreme Court in the case of State of Jammu and Kashmir V/s. Shri Triloki Nath Khosa and Ors. -- that mini classifications based on micro-distinctions are false to our egalitarian faith and only substantial and straight-forward classifications plainy promoting relevant goals can have constitutional validity. In that very paragraph it has been observed that to overdo classification is to undo equality. Instant case is a glaring example of overdoing classification inasmuch as persons belonging to the Backward Class have been treated inequally without there being any justification for the same and a mind-category is being sought to be created within the reserved category only for the purpose of making the benefits admissible to other reserved categories in the matter of their job opportunity and/or service conditions and deprive the remaining two categories, namely, Economically Backward Class and Economically Backward Women Class. 16. I do not find any rationable for the said differentiation. In fact, the poverty in our country by itself is a course, and, for bringing the people of Economically Backward Class and/or Economically Backward Women Class who also belong to the Socially Backward Class in the line of others belonging to the same class cannot be differently treated in the matter of job opportunity and/or service conditions. 17. Further, from the facts and circumstances stated above, I do not find any justification or scope to change the number of vacancies notified in the advertisement contained in Annexure-4 and that too without issuing any corrigendum to that effect before the process of selection pursuant to the said advertisement had commenced and thereby deny the petitioners and other persons similarly situate from consideration of their cases for appointment to the posts of Junior Engineer (civil). 18. I, accordingly, allow the writ application, quash Annexure-A to the counter affidavit and Annexure-5 to the writ petition to the extent that their basis are in conflict with that has been held by me above and hold that the benefit of the provisions of the Ordinance relating to carry forward of the vacancies shall also be extended to the Economically Backward Class and the Economically Backward Women Class of the reserved category by the respondents, and, the vacancies, as notified in the advertisement, contained in Annexure- 4 to the writ petition, be filled up accordingly. However, in the facts and circumstances of the case, there will be no order as to costs.