Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 580 (PAT)

Ganpati Singh v. State Of Bihar

2003-05-16

NARAYAN ROY

body2003
Judgment 1. Heard counsel for the parties. 2. By this writ application, the petitioner has prayed for issuance of a writ of mandamus commanding upon the respondents to appoint him on the post of Junior Engineer (Civil) in the Department of Animal Husbandry and Fisheries, pursuant to the recommendation of the Bihar Public Service Commission (hereinafter to be referred to as "Commission"), as contained in letter no. 52 dated 10.9.2002. A further prayer has also been made by the petitioner seeking declaration to the extent that the terms and conditions of the advertisement cannot be changed amidst the selection process or after its completion and appointments are to be made in accordance with the terms and conditions of the advertisement. 3. According to the case of the petitioner, he applied for his appointment pursuant to advertisement no. 99/98, published by the Commission for the post of Junior Engineer (Civil). The petitioner was a successful candidate in the written test and also in the interview and finally result was published by the Commission on 19.6.2002 declaring him successful under Scheduled Tribe category, where he was placed at first position in the merit list out of two scheduled tribe candidates. The Commission thereafter finally recommended the successful candidates including the petitioner for appointment vide letter no. 52 dated 10.9.2002, addressed to the Secretary, Department of Animal Husbandry and Fisheries, Government of Bihar, Patna, as contained in Annexure 6. When appointment letter was not received by the petitioner pursuant to the recommendation of the Commission, as referred to above, he made queries from the concerned Department and he learnt from reliable sources that the respondent authorities were making appointment as per the new reservation policy ignoring the recommendation of the Commission. The petitioner also learnt that as per the reservation policy the quota of scheduled tribes has been reduced from 10% to 1% and, untimately, he approached this Court by this writ application. 4. Learned counsel appearing on behalf of the petitioner submitted that since the petitioner was a successful candidate of the examination held by the Commission pursuant to advertisement no. 99/98 and his case was recommended by the Commission to the appropriate Government for appointment, appointment letter could have been issued to the petitioner as against the reservation quota of scheduled tribe as he was number one. 99/98 and his case was recommended by the Commission to the appropriate Government for appointment, appointment letter could have been issued to the petitioner as against the reservation quota of scheduled tribe as he was number one. It is further submitted by learned counsel appearing on behalf of the petitioner that the selection process, which started pursuant to advertisement no. 99/ 98, was required to be completed according to the existing reservation policy, whereby and whereunder 10% reservations were permissible for scheduled tribe candidates, and, in way, the authorities can be allowed to appoint persons according to the new reservation policy, which came into existence by virtue of the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) (Amendment) (Bihar Act 17 of 2002) Act, 2002 (hereinafter to be referred to as "Bihar Act 17 of 2002"). It is also submitted that in view of the terms and conditions of the advertisement the same cannot be changed in the mid-stream of the selection process or even after its completion, and, therefore, the reservation policy of 2002, as referred to above, cannot apply in the facts and circumstances of the case, retrospectively. 5. Different sets of counter affidavits have been filed on behalf of the respondents. In the counter affidavit filed on behalf of the Commission, it is stated that the Commission is the recommending authority and it has no concern with regard to the appointment, which is to be made by the State Government. 6. In the counter affidavits filed on behalf of respondent nos. 3 and 4, respectively, it is stated that according to the new reservation policy pursuant to Bihar Act 17 of 2002 reservation to scheduled tribes has been reduced according to their population in the State of Bihar, and, therefore, the appointment will be subject to the new reservation policy vide Bihar Act 17 of 2002. 7. The questions, which fail for consideration in this case, are as to whether the new reservation policy pursuant to Bihar Act 17 of 2002, which came into existence with effect from 26th August, 2002 will operate retrospectively, and also as to whether the petitioner since was a successful candidate of the examination pursuant to advertisement no. 7. The questions, which fail for consideration in this case, are as to whether the new reservation policy pursuant to Bihar Act 17 of 2002, which came into existence with effect from 26th August, 2002 will operate retrospectively, and also as to whether the petitioner since was a successful candidate of the examination pursuant to advertisement no. 99/98 is entitled to be appointed on the post of Junior Engineer (Civil) in the scheduled tribes category, for which his name was recommended by the Commission in scheduled tribe category in the first position. 8. From the pleadings of the parties, it is not in dispute that the petitioner appeared in the examination held by the Commission for the post of Junior Engineer (Civil) pursuant to advertisement no. 99/98. It is also not in dispute that the petitioner was declared successful in the merit list by the Commission by publishing final result under the scheduled tribe category on 19.6.2002. It is also not in dispute that the Commission recommended the case of the petitioner and other eligible candidates to the Department of Animal Husbandry and Fisheries, Government of Bihar, Patna, vide letter no. 52 dated 19.9.2002. It further appears from the pleadings of the parties that the selection process was completed by the Commission by publishing the final result of the eligible candidates including the petitioner pursuant to advertisement no. 99/98 on 19.6.2002 and at the time when the advertisement in question was published, the old reservation policy existed and three posts were kept reserved for scheduled tribe candidates out of 33 posts. 9. From the facts, as enumerated above, thus, it is manifestly clear that the selection process in this case was completed on 19.6.2002 much before coming into force of the Bihar Act 17 of 2002. Even assuming that the new reservation policy came into force in 2002 the selection process was required to be completed in terms of advertisement no. 99/98 and the new reservation policy, thus, could not be given effect to with retrospective effect. 10. From the statement made in the counter affidavit, it appears that the new reservation policy vide Bihar Act 17 of 2002 came into force on account of enactment of the Bihar Reorganisation Act, 2000, and, obviously, therefore, it must operate prospectively. 11. 99/98 and the new reservation policy, thus, could not be given effect to with retrospective effect. 10. From the statement made in the counter affidavit, it appears that the new reservation policy vide Bihar Act 17 of 2002 came into force on account of enactment of the Bihar Reorganisation Act, 2000, and, obviously, therefore, it must operate prospectively. 11. The question in issue is no more res Integra and it has been set at rest by various judgments of this Court and the Supreme Court. In the case of A.A. Calton V/s. The Director of Education and another (AIR 1983 Supreme Court 1143) the apex Court held as follows : "..... 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 right, 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. At the instance of the appellant himself in the earlier writ petition filed by him the High Court had directed the Director to exercise that power. 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 19, 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 U.P. Act 26 of 1975 should have been followed in the present case." 12. 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 U.P. Act 26 of 1975 should have been followed in the present case." 12. Again in the case of Y.V.Rangaiah and others V/s. J.Sreenivasa Rao and others, AIR 1983 Supreme Court 852, a question arose as to whether appointment could be made out of the list of the approved candidates prepared by the appointing authority against the vacancies, which had occurred prior to the amendment of the Rules. The apex court held that the vacancies, which had occurred prior to the amended Rules would be governed by old Rules and not by amended Rules. 13. In case of P.Mahendran and others V/s. Matteesh Y. Annigeri and others (AIR 1990 Supreme Court 405) a similar question was answered by the apex court in the following terms : "If a candidate applies for a post in response to advertisement issued by the 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. A bench of this Court in the case of Miss Afshan Azeem and ors. V/s. State of Bihar and Ors. [1993(2) Patna Law Journal Reports 745], faced with the similar facts, held that "Where reservation was available at the time of the advertisement, during the examination and declaration of results, the reservation cannot be withdrawn and appointment denied by promulgating an Ordinance." 15. A similar view has also been taken by a bench of this Court in the case of Sharmila Kumari V/s. The Bihar Public Service Commission and Ors. [1995(1) Patna Law Journal Reports 275]. 16. From the Bihar Act 17 of 2002, it appears that the Act came into force with immediate effect and it has not been made to operate retrospectively. 17. [1995(1) Patna Law Journal Reports 275]. 16. From the Bihar Act 17 of 2002, it appears that the Act came into force with immediate effect and it has not been made to operate retrospectively. 17. For the reasons aforementioned and in view of the legal propositions, as noticed above, it is held that the Bihar Act 17 of 2002, as referred to above, regarding the new policy is not applicable in the instant case, as Section 1(2) of the aforesaid Act reads that it shall come into force with immediate effect, and, therefore, the selection process pursuant to advertisement no. 99/98 is required to be completed according to the then existing reservation policy and in facts and circumstances of the case, the petitioner, whose name had been recommended by the Commission for appointment to the post of Junior Engineer (Civil), is held to be entitled to be appointed on the aforesaid post by the State Government. 18. In the result, this application is allowed and the respondent State is directed to appoint the petitioner on the post of Junior Engineer (Civil) in the Department of Animal Husbandry and Fisheries, Government of Bihar, Patna, for which recommendation has been made by the Commission vide letter no. 52 dated 10.9.2002, as contained in Annexure 6. 19. No order as to costs.