Narendra Singh v. State of Bihar — 1999 DIGILAW 831 (PAT)

Order This writ petition has been filed for quashing the notification published in daily newspaper AAZ on 2.6.1999 and 6.6.1999, contained in Annexures 1 and 2 in relation to advertisement no. 126/96 whereby and whereunder the respondent Bihar Public Service Commission (in short Commission) had notified the date and syllabus for written examination, which is being conducted for appointment to the post of Assistant Engineer. 2. There is no controversy that advertisement no. 128/96 was issued by the Commission for filling up 200 posts of Assistant Engineer (Civil) class II earmarked for the Rural Engineering Organisation (in short REO) of the Government of Bihar. It would further appear that this court while disposing of CWJC No. 2309 of 1989 and analogous cases, which were filed on behalf of the unemployed Civil Engineers' Association and others had already held that these 200 posts belong to REO. The judgment of this Court was ultimately approved by the apex court by the order dated 8.4.1996 in Civil Appeal No. 751617 of 1996 with a direction to the State Government to fill up these vacancies on direct recruitment through the Commission. It was further directed that ad hoc employee who were already working in the department would also apply for recruitment and selection will be made according to the rules. A copy of the said order is Annexure 17. 3. It further appears, later a petition under Article 32 of the Constitution was also filed before the apex Court bearing Civil Petition (C) 16733 of 1996, whereby an attempt was made to reopen the matter with regard to filling up these 200 vacancies of the REO. The apex Court while dismissing the civil petition on 18.4.1996 observed that in case any of the daily wage or ad hoc employee is called for direct recruitment by the Commission, the State Government would consider the necessity of relaxation of the age equal to the extent of the period of service which they had rendered as ad hoc employee in the REO. The State Government thereafter having regard to the direction of the Supreme Court by letter dated 12.7.1996 (Annexure 19) requested the BPSC to advertise these 200 posts for filling up in accordance with the direction by the Supreme Court. It was also clarified since these vacancies were already in existence prior to 31.12.1987, all the necessary formalities of reservation and recruitment procedure and criteria etc. It was also clarified since these vacancies were already in existence prior to 31.12.1987, all the necessary formalities of reservation and recruitment procedure and criteria etc. were required to be adopted in accordance with the Government's policy and Rules/criteria etc. available at that time. Ultimately on such a request of the State Government, the Commission advertised the posts in newspaper vide Adv. No. 128/96, a copy of which is Annexure 20. 4. Unfortunately, this was not the end of the battle and a writ petition bearing CWJC No. 4794 of 1998 was filed for quashing of the said advertisement. But ultimately on 3.5.1999, the same was dismissed holding that the apex court had already accepted that these 200 vacancies belong to REO and they were required to be filled up on direct recruitment basis. But the Commission was directed to give one more opportunity to the ad hoc engineers of REO to apply in pursuance of the aforesaid advertisement in terms of the order of the apex Court. 5. The grievance of the petitioner is that neither in the original advertisement no. 128/96 nor in the Government's decision contained in Annexure 19, dated 12.7.1996, there was any requirement that ad hoc engineers of the REO would also be required to sit at a written examination. Even until the last date of the decision of this Court in CWJC No. 4794 of 1998 on 3.5.1939, no such condition was imposed by the Commission. It was in fact for the first time on 2.6.1999 and 5.6.1999 by notices in a newspaper such condition was imposed, which is contrary to the Government decision dated 12.7.1996 as contained in Annexure 19 or the terms of Advertisement no. 128/96. 6. The submission is that in these background to compel the ad hoc engineers who have worked for a period of 10-12 years, and have attained the age of 52 to 55 years to appear at a written test on the basis of the impugned prescribed syllabus along with the freshers cannot be a fair procedure. 128/96. 6. The submission is that in these background to compel the ad hoc engineers who have worked for a period of 10-12 years, and have attained the age of 52 to 55 years to appear at a written test on the basis of the impugned prescribed syllabus along with the freshers cannot be a fair procedure. A question has also been raised whether having regard to the Government's decision dated 12.7.1996, contained in Annexure 19, when these vacancies were directed and required to be filled up as per the Government's policy and procedure prescribed prior to 31.12.1987, will it be open to the Commission to adopt a different procedure at a time when in view of Adv. No. 128/98, selection process had already commenced and admit cards were also issued. 7. It was further contended that the State Government also vide letter contained in Annexure 19 considering that these vacancies were available prior to 31.12.1987 and having regard that almost all the ad hoc engineers had passed engineering examination as back as in the year 1980-82 directed the Commission to prepare a panel and recommend names on the basis of the criteria which was prescribed at the relevant time after holding interview. Even in the Advertisement No. 128/96, in question it was mentioned that such appointments are being made against the vacancies which were created and lying vacant prior to 31.12.1987. Therefore, it was not open to the respondent Commission to adopt a new criteria as published in the notice dated 2.6.1999 and 6.6.1999, Annexures 1 and 2 respectively. 8. On behalf of the respondent Commission, a counter affidavit was filed stating inter alia that notifications for holding written test and syllabus etc., which were published on 2.6.1999 and 6.6.1999, were in fact issued on the basis of the recruitment rules framed by the State Government under Article 309 of the Constitution of India for appointment to the post of Assistant Engineer vide notification dated 13.9.1989 which provides that selection of the candidates shall be made on the basis of the written test and interview. The apex Court also while disposing of Civil Appeal No. 7516-26 of 1998 by the Order dated 8.4.1996 directed that ad hoc employees may also apply for recruitment and seek selection in accordance with the rules. The apex Court also while disposing of Civil Appeal No. 7516-26 of 1998 by the Order dated 8.4.1996 directed that ad hoc employees may also apply for recruitment and seek selection in accordance with the rules. In the facts and circumstances of the case, a question relevant for consideration is whether vacancies, notified by Advt. No. 126/96 and admit cards having been issued to the candidates, should be filled up on the basis of the decision of the Government, contained in Annexure 19 dated 12.7.1996 or such vacancies are to be filled up on the basis of criteria prescribed by the Commission vide notices issued in the newspaper on 2.6.1999 and 6.6.1999, as contained in Annexure 1 and 2. Undisputedly as would appear from the decision of this court in CWJC No. 2309 of 1989 and analogous cases and the letter of the State Government, contained in Annexure 19, dated 12.7.1996, all these 200 posts of Assistant Engineers were created for REO prior to 31.12.1987. This is also not in dispute the State Government, having regard to the direction of the Supreme Court, by the aforesaid letter dated 12.7.1996, had requested the Commission to take steps for selection against these posts as per the criteria and procedure prescribed at the relevant time. 10. True it is, as per the rules notified by the Government on 13.9.1989, the selection of the Assistant Engineers are required to be made on the basis of a written test and interview. But having regard that such vacancies were created much before the amendment of the rules and because of the laches on the part of the respondent authorities, the vacancies could not be filled up earlier at the relevant time, will it be proper to adopt a fresh criteria other than what was available at the time the vacancies were created and decision was taken to allot such posts to REO? To answer the question a reference in this regard can be usefully made to a decision of the apex court in the case of Y.V. Rangaiah and others Vs. To answer the question a reference in this regard can be usefully made to a decision of the apex court in the case of Y.V. Rangaiah and others Vs. J. Sreeniwasa Rao & Others ( AIR 1983 SC 852 ) or yet another decision at page 1143 of the same volume in the case of A.A. Calton vs. Director of Education and another [ (1983)3 SCC 33 : AIR 1983 SC 1143 ] where it was held that vacancies which had occurred prior to the amended rules should be filled up as' per the old rules. In that case, as per the provisions of the old Rules, a panel was to be prepared for appointment to the post of Sub Registrar Grade II at the time when old rules were operating. Because of the laches on the part of the authorities, steps for preparation of panel were delayed and could only be taken after the new rule came into existence. 11. Apart from what has been noticed above, it is well settled rule of construction that every statute or statutory rules is prospective unless it is expressly or by necessary implication made to have retrospective effect. In absence of any express provision no rule can be applied retrospectively because the amended rule cannot affect the existing right of the candidates for whose benefit such posts were created. Reference in this regard can be usefully made to a decision of the Supreme Court in the case of P. Mahendran and others Vs. State of Karnataka and others ( AIR 1990 SC 405 ). In my view, probably, the State Government being alive with such interpretation of the statutory rules had, by the letter dated 12.7.1996 contained in Annexure 19 issued direction in clear terms to the Commission that since such vacancies were created prior to 31.12.1987, therefore, steps were to be taken for selection as per the prescribed rules and other norms available at that time. 12. It has also not been disputed that the respondent Commission in terms of the aforesaid direction of the Government did not prescribe any criteria for holding written test on the basis of the new syllabus in the Advt. No. 126/1996. In fact it was for the first time that such conditions were incorporated vide notices contained in Annexures 1 and 2. 13. No. 126/1996. In fact it was for the first time that such conditions were incorporated vide notices contained in Annexures 1 and 2. 13. Apart from the views expressed above, I have already noticed that almost all the ad hoc. engineers had passed Engineering examination as back as in the year 1982-83 and now they have become aged about 52-53 years. Therefore, to my mind, it will not be fair and proper for the Commission to ask them to sit at the written examination along with the freshers. A situation more or less identical to the present one had also cropped up before the apex Court in the case of State of Bihar and others vs. Bihar Rajya Sahkarita Prabandhak Seva Sangh, Patna and others, 1998 (8)SCC 218 : 1999(1) PLJR 35 (SC). It was held since most of the candidates have worked for a pretty long time and crossed the age of 50, they should not be asked to take the same examination prescribed for fresh candidates to enter the Government service. The question papers for such candidates must be prepared bearing in mind the condition of the candidates such as age, and past services etc. 14. Therefore, keeping in mind all such objective considerations and the decision of the Government as notified vide Annexure 10, dated 12.7.1996 as also having regard to the views expressed by the apex Court particularly as reported in AIR 1983 SC 852 (supra) in my view since these 200 posts of Assistant Engineers were created prior to 31.12.1987 much before the new rule was notified on 13.8.1989 and continued vacant, such posts should be filled up as per the rules or procedures prescribed by the Government at that time. 15. In the result for the reasons stated above and having regard to the authoritative pronouncements of the apex Court, I direct the Commission to proceed with the selection process strictly in terms of the decision of the State Government dated 12.7.1996 as contained in Annexure 19. 16. With the above directions/observations, this writ petition and I.A. are disposed of.