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1999 DIGILAW 832 (PAT)

Surendra Prasad Singh v. State of Bihar

1999-08-27

N.PANDEY

body1999
Order 1. The petitioner in the instant writ petition has sought for a direction to the respondents to admit the students in the Netarhat Residential School strictly in terms of the criteria published in the daily newspaper "Hindustan" dated 8.10.1997, as contained in Annexure-1. I have heard the learned counsel for the parties and with their consent, the writ petition as well as interlocutory application both are being disposed of by this order. 2. It would appear from the aforementioned advertisement, as contained in Annexure-1, that altogether 100 seats were advertised out of which 69 were fixed for the candidates of General category, 14 for the Scheduled Castes and 13 for the candidates, belonging to Scheduled Tribes whereas four seats for the Backward Class (category-I). The petitioner also appeared at the test pursuant to the aforesaid advertisement and his roll number was 1226. 3. It is stated when the result of the examination was published in the daily newspaper vide Annexure-3, it was detected that only 50 seats were allowed to General Category instead of 69 advertised earlier, 10 seats to the Scheduled Tribe as against 13, which was fixed earlier, 16 seats to the Scheduled Caste candidates though earlier it was at 14, 14 seats for the Backward Class (Category-I) as against four seats and 10 seats to Backward Class (Category-II), though such posts were not reserved for this category. 4. The grievance is that after allotment of 69 seats to the General category at the time of advertisement, it was not open to the respondents to reduce such number of seats prospectively by virtue of any subsequent decision of the authorities. It is further stated that in view of such a malafide decision of the authorities, meritorious candidates who had even obtained marks of 1st Class and 2nd Class could not be admitted whereas the candidates who had much lower marks got entry. 5. A counter affidavit has been filed on behalf of the respondents admitting that in the advertisement, which was published on 8.10.1997, 69 seats out of 100 were allotted to the candidates of General Category. 5. A counter affidavit has been filed on behalf of the respondents admitting that in the advertisement, which was published on 8.10.1997, 69 seats out of 100 were allotted to the candidates of General Category. But later in view of resolution of the State Government dated 1.7.1998, a copy of which is Annexure-A, quota was fixed for admission of such students in the following manner: Scheduled Castes 14%, Scheduled Tribes-10%, Backward Class (Annexure-I)-14%, Backward Class (Annexure-II)-10% and Backward Class (Woman)-2% and rest 50 per cent to the candidates of General Category. 6. From the facts, noticed above, there is no dispute that the quota of General Category was reduced in terms of the aforementioned decision of the Government dated 1.7.1998 whereas the advertisement was published on 8.10.1997, allotting 69 seats. This is also in dispute that in the advertisement there was no provision for reservation to backward class (category II) or certain other classes. Therefore, only question relevant for consideration is whether after the publication of the advertisement, allotting certain number of seats to the candidates of different categories, it was open to the authorities to reduce such number of seats and substitute other categories of candidates for whom neither any quota was fixed nor there was any decision. Because even according to the respondent, the resolution of the Government to grant the benefit of reservation to other classes and to reduce the quota of general candidates were taken on 1.7.1998 whereas advertisement in question was already published on 8.10.1997. 7. In my view, from the facts noticed above, undisputedly prior to the advertisement, when number of seats were allotted to different categories, there was no decision of the Government to introduce the policy of reservation for the Backward Class (category-I) nor any quota was fixed in the manner prescribed by the resolution dated 1.7.1998. This is also not the case of the respondents that any rule was framed by the Government under Article 309 of the Constitution to apply such a reservation policy with retrospective effect. True it is in the absence of any statutory rule, the State Government can by a resolution take decisions but it can not be applied retrospectively, it will have only the prospective effect. Reference in this regard can be usefully made to the decisions of the Apex Court in the case of A.A. Calton Vs. True it is in the absence of any statutory rule, the State Government can by a resolution take decisions but it can not be applied retrospectively, it will have only the prospective effect. Reference in this regard can be usefully made to the decisions of the Apex Court in the case of A.A. Calton Vs. The Director of Education & ors., AIR 1983 SC 1143 and P. Mahendran & Ors. Vs. State of Karnataka & ors., A.I.R. 1990 SC 405. Even a Bench decision of this Court in the case of Ranjit Kumar Choubey & ors. Vs. The State of Bihar & Ors., 1993 (2) PLJR 463 had taken similar view. 8. Yet another question equally important may also arise whether on the terms and condition of the advertisement dated 8.10.1997 the selection processes having been commenced, can be altered adversely to the interest of candidates who had already made applications. In my view, this question also is no longer res integra, because by virtue of different decisions of this Court and that of the Apex Court, once the process of selection had commenced on the basis of the commitments of the authorities at the time of publication of advertisement, it can not be altered or taken away adversely to the interest of the candidates by adopting any subsequent principle either it be in a form of resolution or by a rule framed under Article 309 of the Constitution, unless such a rule is expressly or by necessary implication directs application retrospectively. Reference in this regard can usefully be made to a decision of the Apex Court in the case of V.V. Rangaiah & ors. Vs. J. Sreenivasa Rao & ors., A.I.R.1983 SC 852 and another case of A.A. Calton Vs. The Director of Education & anr. (supra). Similar view akin to it was also expressed by this Court in the case of Miss Afshan Azeem & ors. Vs. State of Bihar & ors., 1993 (2) PLJR 745 , Ranjit Kumar Choubey & ors. Vs. State of Bihar & ors. (supra) and yet another decision in the case of Sharmila Kumari Vs. The Bihar Public Service Commission & ors., 1995 (1) PLJR 275 . 9. Learned Government Advocate however, contended that second and third tests for the candidates had already taken place after the instant resolution of the Government. Vs. State of Bihar & ors. (supra) and yet another decision in the case of Sharmila Kumari Vs. The Bihar Public Service Commission & ors., 1995 (1) PLJR 275 . 9. Learned Government Advocate however, contended that second and third tests for the candidates had already taken place after the instant resolution of the Government. Therefore, it can not be alleged that any prejudice was caused to the candidates. In my view, such a submission of the learned counsel may not have any bearing to the proposition answered above. Because by virtue of the instant resolution, quota allotted to the candidates as per the advertisement dated 8.10.1997 (Annexure-1) cannot be altered prospectively so as to impair or take away the existing right of the candidates, unless any statute either expressly or by necessary implication provides such application retrospectively. 10. I, therefore, for the reasons, stated above, allow this application with a direction to the respondent authorities to admit the petitioner to the institute provided he is otherwise found eligible to be admitted on the basis of the merit list of the general candidates.