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1998 DIGILAW 623 (PAT)

Narendra Deo v. State of Bihar

1998-09-02

B.N.AGRAWAL

body1998
JUDGMENT B. N. Agrawal, J. The present application has been filed for commanding the respondent State of Bihar and its officers to consider cases of the petitioners for selection to the posts of village Level Worker/Village Extension Worker (hereinafter to be referred to as 'VLW/VEW') in accordance with the provisions of Bihar Jan Sewak and Gramin (Prasar Karya Karta) Bharti Avam Sewa Sharten) Niyamawali, 1987 (Bihar Village Level worker and Village Extension worker (Recruitment and Condition of Service) Rules, 1987 (hereinafter to be referred to as "Rules"). Further prayer has been made for directing the respondents to complete the process of selection pursuant to different advertisements, contained in annexure 2 series in accordance with the Rules. A prayer has been also made on behalf of the petitioners for quashing advertisement published in a Hindi daily "Hindustan' on 26.1.1993, issued by the Bihar Public Service Commission (hereinafter to be referred to as 'commission'), contained in annexure 3, whereby and where under applications have been invited for appointment to various Class III posts, which included appointment to the posts of VLW/VEW in different Districts of State of Bihar, so far it relates to their appointment only. 2. Short facts are that Governor of Bihar in exercise of power under Article 309 of the Constitution framed a Rule to be known as "Bihar Village Level Worker and Village Extension Worker (Recruitment and Condition of Service) Rules, 1987. Rules 3 of the Rules provides for constitution of a cadre of VLW/VEW for each of the Districts of the State and such cadre will be District Cadre. Under Rule 4 of the Rules, the strength of cadre has to be determined by State Government by issuance of orders from time to time. Rule 7 of the Rules provides for method of selection of eligible persons for imparting them requisite training, Where after they become eligible for consideration for recruitment and appointment in different Districts. Under the Rules, the minimum age, which is prescribed is 18 years and 30 years is the maximum age prescribed as on 1st January in the year of appointment. So far as reserved category persons are concerned, higher age limit has been prescribed. Minimum qualification is matriculation or its equivalent with Mathematics as compulsory subject and good knowledge of Hindi. Selection has to be made by a committee of five persons constituted in terms of Rule 8 of the Rules. So far as reserved category persons are concerned, higher age limit has been prescribed. Minimum qualification is matriculation or its equivalent with Mathematics as compulsory subject and good knowledge of Hindi. Selection has to be made by a committee of five persons constituted in terms of Rule 8 of the Rules. The District Magistrate of the concerned District will be ex-officio Chairman of the Committee and its other four members would be Deputy Development Commissioner of the concerned district, Joint Director of Agriculture in the Concerned Division, District Agriculture Officer of the concerned District and one person to be nominated by the District Magistrate of the concerned District belonging to Scheduled Caste/Scheduled Tribe from amongst Planning Executive Officers or Block Development Officers. Rule 9 of the Rules provides criteria of selection and training of eligible persons. Power of relaxation in the period of training has been provided in relation to those persons, who are having qualification of gradation in Agriculture science or other higher qualification. Upon completion of training, a person is required to appear at the prescribed test and after passing the same, he is entitled to be considered for appointment by the aforesaid selection committee upon any of the aforesaid two posts. 3. In exercise of powers conferred under the Rules, the District Magistrate of Darbhanga, Muzaffarpur, Vaishali, Khagaria, Madhubani, Madhepura, Supaul and Deputy Commissioner of East Singhbhum, who are respondent nos. 3 to 10 in this writ application, issued different advertisements in different newspapers, which are contained in annexures 2 series on different dates in the years 1993, 1994 and 1995 inviting applications from eligible candidates for their selection and training to the posts of VLW/VEW and pursuant to the advertisements, the petitioners, who were possessing eligibility criteria prescribed under the Rules, filed their respective applications within the time notified. Some of the petitioners filed their application in more than one District. Some of the petitioners belong to general category and others belong to reserved category. 4. Upon receipt of the applications, the respective District Magistrates for the reasons best known to them did not take any further steps for holding of the meeting of selection of candidates for being sent for training so as to be eligible for recruitment/appointment to the aforesaid posts. 4. Upon receipt of the applications, the respective District Magistrates for the reasons best known to them did not take any further steps for holding of the meeting of selection of candidates for being sent for training so as to be eligible for recruitment/appointment to the aforesaid posts. In the meantime, on 26.1.1998 an advertisement was issued by the Commission in Hindi daily 'Hindustan' circulated from Patna inviting applications from eligible candidates for appointment in different Districts' on the posts of Assistants/Clerks, VLW/VEW and Gram Sewika (Village Lady Worker) purporting to act under executive instructions, issued by the State Government under its resolution dated 6.12.1995, contained in memo no. 11243 dated 6.12.1995 (annexure 4), by which power to make appointment upon class III posts was vested in the Commission. It appears that according to the aforesaid decision of the Government, the respective District Magistrates communicated the vacancies upon class III posts specially mentioning therein the vacancies of VLW/VEW to the Commission, which included the vacancies to be filled up on the posts of VLW/VEW, for which the petitioners had already applied pursuant to the advertisements, referred to above, much before the aforesaid Government decision taken in the years 1995. 5. Stand of the petitioners in this case is that for recruitment to the post of VLW/VEW statutory Rules were framed in the years 1987 by the State of Bihar under Article 309 of the Constitution, according to which selection and appointment was required to be made by a committee headed by the District Magistrate of the concerned District and merit list was required to be prepared in accordance with Rule 9 of the Rules, in which 100 marks were allocated and out of the total marks, 67 per cent marks were allocated for securing marks by a candidates in Secondary Examination or its equivalent 25 percent marks were allocated for interview and 8 per cent marks were allocated in accordance with the instructions of the State Government in relation to age of the candidates. No amendment has been made by the State Government in the aforesaid statutory Rules framed in the years 1987 and in the aforesaid Government decision dated 6.12.1995, power to make appointment upon Class III posts has been vested in the Commission. No amendment has been made by the State Government in the aforesaid statutory Rules framed in the years 1987 and in the aforesaid Government decision dated 6.12.1995, power to make appointment upon Class III posts has been vested in the Commission. According to the said Government decision, selection has to be made on the basis of the marks secured in written test, which is required to be conducted in three subjects, namely, General Knowledge, Hindi and Mathematics. According to the petitioners, the aforesaid Government decision dated 6.12.1995 shall be applicable for filling up only those Class III posts in the State of Bihar for recruitment of which no statutory Rules have been framed and as recruitment to the posts of VLW/VEW is required to be made under statutory Rules, the same shall have no application for filling up these posts, which would be evident from the fact that in the aforesaid decision State Government has advisedly made no reference of the posts of VLW/VEW, but has simply enumerated Class III posts, and, thus, the same shall apply for filling up Class III posts. 6. Further stand is that the process of recruitment started by issuance of advertisement and submission of application by the candidates under the Rules, which was in existence from before the aforesaid Government decision dated 6.12.1995 came into force; therefore, the same is required to be completed in accordance with the Rules, which were in existence when the process of selection started, as certain rights have been created in favour of the petitioners under the Rules, which could not have been impaired or taken away by the aforesaid Government decision dated 6.12.1995. 7. In this case, four counter affidavits have been filed-two on behalf of Director of Agriculture in the Directorate. In the first affidavit it was stated that selection is required to be made by a selection committee constituted under the Rules and the Agriculture Department had no knowledge of issuance of advertisement by the Commission. In the second affidavit, it has been simply stated that as posts of VLW/VEW fall under class III, the aforesaid Government decision shall have application. No other reason has been assigned in this counter affidavit. The third affidavit has been filed by the District Magistrate, Muzaffarpur, respondent no. 4, in which it has been stated that after the aforesaid government decision dated 6.12.1995, respondent no. No other reason has been assigned in this counter affidavit. The third affidavit has been filed by the District Magistrate, Muzaffarpur, respondent no. 4, in which it has been stated that after the aforesaid government decision dated 6.12.1995, respondent no. 4 had communicated all the vacancies to the commission including the vacancies on the posts of VLW/VEW, which were in existence from before the aforesaid Government decision dated 6.12.1995, which included the vacancies already advertised under annexure 2 series and against which the petitioners had already applied before the aforesaid Government decision. 8. The last counter affidavit has been filed on behalf of the Commission, in which stand has been taken that the aforesaid Government decision dated 6.12.1995 shall apply for filling up the posts of VLW/VEW as well as nothing was done upon the applications received by the respective District Magistrates pursuant to the aforesaid advertisement issued prior to the aforesaid Government decision, therefore, the aforesaid posts are also required under law to be filled up in accordance with Government decision dated 6.12.1995 and the commission was empowered to issue advertisement for filling up the vacancies of VLW/VEW, which are in existence from before the date of the Government decision. 9. Undisputedly, in the present case, no amendment has been made in the Rules. As the same are statutory and have been duly notified, the amendment to the said rules could have been made only by specific notification specifying therein amendments of the relevant Rules, which were proposed to be made. By the aforesaid Government order dated 6.12.1995, it cannot be said that Rule 8 of the Rules requiring constitution of selection committee for making appointment on the posts of VLW/VEW stands amended and in place of selection committee in terms of Rule 8 of the Rules, Bihar Public Service Commission stands substituted. From a bare perusal of the said Government decision dated 6.12.1995, contained in annexure 4, it would appear that state Government advisedly did not say anything in the aforesaid decision in relation to filling up the posts of VLW/VEW, as the said decision was applicable for filling up only those class III posts in relation to which there was no statutory Rule under Article 309 of the Constitution. 10. 10. Second ground for coming to the conclusion that the aforesaid Government decision shall have no application for filling up the posts of VLW/VEW is that the said decision can be at the highest treated to be an executive instruction within the meaning of Article 162 of the constitution. It is well settled position in law, which has been accepted by all the parties that executive instruction can be issued only to supplement statutory Rules and not to supplant it. In the present case, if such a Government decision is made applicable in relation to the cases of VLW/VEW treating the same to be an executive instruction within the meaning of Article 162 of the Constitution, it would amount to allowing the Government to issue executive instruction not to supplement statutory Rule but to supplant it, which is not permissible in law, as provisions in the Rules and the said orders are in conflict with other in view of the fact that according to the Rules, selection has to be made by a committee, whereas, according to the Government decision dated 6.12.1995, selection has to be made by the Commission. This being the position, I am clearly of the view that the Government decision, contained in annexure 4, shall have no application in filling up the posts of VLW/VEW. 11. In view of my conclusion that Government decision dated 6.12.1995 shall have no application for filling up the posts of VLW/VEW and further in light of the foregoing discussions, I am clearly of the view that the Commission had no jurisdiction to issue advertisement, contained in annexure 3 for filing up the posts of VLW/VEW as well and to that effect the same is fit to be struck down. 12. Alternatively, it may be stated that as process of selection started by issuance of advertisement for filling up the posts of VLW/VEW and submission of applications by the petitioners and others pursuant thereto between the years 1992 and 1995., that is, much before the Government decision taken on 6.12.1995, the same was required to be completed in accordance with the Rule, Which was then in existence. In the case of A.A. Calton V. The Director of Education and another (AIR 1983 Supreme Court 1143), it has been laid down that process of selection commences from the stage of calling for applications for a post up to the date on which the authority becomes entitled to make selection and at every stage in that process certain rights are created in one or the other person. It has been further laid down that change of appointing authority cannot constitute as merely procedural provision. In the said case, power to make appointment was vested in the Director of Education in terms of Section 16 (F) (4) of Uttar Pradesh Intermediate Education Act, 1921 at the time when advertisement was issued and applications were filed for filling up the posts. But before actual appointment could be made, amendment was made in the said Statute and the power vested in the Director for making appointment in relation to minority institution was taken away and vested in another body. In spite of amendment in the Statute, Director made the appointment, which was challenged before Allahabad High Court. The writ Petition was dismissed and when the matter was taken to the apex court, the appeal was dismissed on the ground that as the process of selection had already started by issuance of advertisement and at that time, Director was vested with the powers to make appointment under law then in existence the amendment made in law taking away the power of Director could not have been made applicable for filling up those vacancies, as the process of selection had already started and the amendment was not given retrospective effect either expressly or by necessary implication. The Court laid down the law follows: "The process of selection under Section 16-F of the Act commencing from the stage of calling for applications for a post up to the date on which the Director becomes entitled to make a selection under section 16-F (4) (as it stood then) is an integrated one. At every stage in that process, certain rights are created in favour of one or the other of the candidates. Section 16-F of the Act cannot, therefore, be construed as merely a procedural provision. It is true that the legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. At every stage in that process, certain rights are created in favour of one or the other of the candidates. Section 16-F of the Act cannot, therefore, be construed as merely a procedural provision. It is true that the legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing rights, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect. In the instant case admittedly the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question." "Although the Director in the present case exercised that power subsequent to August 18, 1975, on which date the amendment came into force, it cannot be said that the selection made by him was illegal since the amending law had no retrospective effect, it did not have any effect on the proceedings which had commenced prior to August 18, 1975, such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings. We do not, therefore, find any substance in the contention of the learned counsel for the appellant that the law as amended by the UP Act 26 of 1975 should have been followed in the present case." 13. In the case of P. Mahendran and others v. State of Karnataka and others (AIR 1990 Supreme Court, 405) same view has been reiterated. In that case, according to Karnataka General Service (Motor Vehicles Branch (Recruitment) Rules (1962), which was also framed under Article 309 of the constitution, the persons having diploma in mechanical engineering, were also eligible for appointment on the posts of Motor Vehicle Inspectors. According to the said Rules, advertisements were issued and applications were filed and before final selection could be made, amendment was made in the Rules, according to which persons, who were having diploma in mechanical engineering, were not eligible 'for consideration for the post of Motor Vehicle Inspector. According to the said Rules, advertisements were issued and applications were filed and before final selection could be made, amendment was made in the Rules, according to which persons, who were having diploma in mechanical engineering, were not eligible 'for consideration for the post of Motor Vehicle Inspector. The selection list was challenged before the Administrative Tribunal on the ground that according to the amended Rules, the persons having diploma in mechanical engineering being not eligible for the post of Motor Vehicle Inspectors could not have been selected. The Tribunal allowed the application and quashed the selection of those candidates, who were holding diploma in mechanical engineering. The Tribunal after quashing the selection directed for fresh advertisement in accordance with the provisions as contained in amended Rules. Challenging the aforesaid Rules an application was filed under Articles 32 of the Constitution. Against the order of Tribunal an appeal was taken to the apex court which was allowed, order of Tribunal was quashed and the State Government was directed to make appointment on the posts of Motor Vehicle Inspectors on the basis of the selection list prepared and finalised by the Commission holding that the process of selection has to be completed in accordance with the existing Rules and the right acquired under the existing Rules cannot be affected by any amendment made in the Rules. The Court observed thus : "If a candidate applies for a post in response to advertisement issued by Public Service Commission in accordance with recruitment Rules he acquires right to be considered for selection in accordance with the then existing Rules. This right cannot be affected by amendment of any Rule unless the amending Rule is retrospective in nature." 14. From a conspectus of the aforesaid decisions it would be plain that in the case in hand, as the process of selection started under the Rules prior to the aforesaid Government decision dated 6.12.1995, contained in annexure 4, the same has to be completed in accordance with the Rules by the Selection Committee at the District level constituted in terms of Rule 8 of the Rules. 15. In the result, the writ application is allowed, advertisement dated 26.1.1998, issued by the Commission, contained in annexure 3, is quashed, so far the same relates to filling up the posts of VLW/VEW and respondent nos. 15. In the result, the writ application is allowed, advertisement dated 26.1.1998, issued by the Commission, contained in annexure 3, is quashed, so far the same relates to filling up the posts of VLW/VEW and respondent nos. 3 to 10 are hereby commanded to consider cases of the petitioners and other similarly situated persons, who had applied pursuant to the advertisements, contained in annexures 2 series, for appointment on the posts of VLW/VEW and complete the entire process of selection in accordance with the provisions of the Rules within a period of six months from the date of receipt/production of a copy of this order by the petitioners before the respective Districts Magistrates. In the circumstances of the case, I direct that the parties shall bear their own costs.