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2009 DIGILAW 379 (PAT)

Khichri Ram v. State Of Bihar

2009-03-04

CHANDRAMAULI KR.PRASAD, DHARNIDHAR JHA

body2009
JUDGEMENT Chandramauli Kr.Pd., J. 1. In all the writ applications, identical questions of law and facts arise and as such they were heard together and are being disposed of by this common judgment. 2. Facts lie in a narrow compass. 3. All the petitioners belong to the Scheduled Caste category and native of States other than the State of Bihar. They were initially recruited against the vacancies reserved for the members of the Scheduled Caste. All of them have been promoted to higher post after 11.6.1996 on the vacancies reserved for the Scheduled Caste. 4. To provide for adequate representation of Scheduled Caste, Scheduled Tribe and Other Backward Classes in post and services under the State, the Governor of the State promulgated successive Ordinances and ultimately the Legislature of the State enacted the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991 (Bihar Act 3 of 1992). Section 4 of Bihar Act of 1992, which is relevant for the purpose, as initially enacted reads as follows: 4. Reservation for direct recruitment. All appointments to services and posts in an establishment which are to be filled by direct recruitment shall be regulated in the following manner namely: (1) The available vacancies shall be filled up (a) from open merit category 50% (b) from reserved category 50% (2) The vacancies from different categories of reserved candidates from amongst the 50% reserved category shall, subject to other provisions of this Act, be as follows: (a) Scheduled Castes 14% (b) Scheduled Tribes 10% (c) Extremely Backward Class 12% (d) Backward Class 8% (e) Economically Backward Women 3% (f) Economically backward 3% Total 50% Provided that the State Government may, by notification in the official Gazette, fix different percentage for different districts in accordance with the percentage of population of Scheduled Castes/Scheduled Tribes and Other Backward Classes in such districts: Provided further that in case of promotion, reservation shall be made only for Scheduled Castes/Scheduled Tribes in the same population as provided in this section. XXX XXX XXX 5. Later on, Legislature of the State enacted Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Act, 2003 (Bihar Act 15 of 2003). XXX XXX XXX 5. Later on, Legislature of the State enacted Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Act, 2003 (Bihar Act 15 of 2003). Section 2 of Bihar Act 15 of 2003, inter alia, provides that Section 3 of the said Act shall come into force with effect from 11th of June, 1996. Section 3 of Bihar Act 15 of 2003 provided for insertion of third proviso to sub-section 2 of Section 4 in Bihar Act 3 of 1992. Same reads as follows: "3. Amendment of Section 4 of Bihar Act 3,1992:The following third proviso shall be added to sub-section (2) of Section 4 of the said Act: "Provided further that the candidates residing out of the State of Bihar shall not claim for benefits of reservation under this Act." Its Hindi version, however, is as follows: ***Local Language*** 6 It is relevant here to state that the State Government in the Department of Personnel and Administrative Reforms by letter dated 11 th of June, 1996 informed to the Secretary of Bihar Public Service Commission that the candidates of the reserved classes belonging to other States be not given the benefit of reservation. In the said letter, it has been observed that in matters of direct recruitment in the State of Uttar Pradesh and Madhya Pradesh, benefit of reservation is given only to the reserved category candidates of that State. Accordingly it has been observed that the State Government has taken the decision that benefit of reservation shall be given only to such candidates, who are the permanent residents of State of Bihar i.e. all those who are the native of the State. 7. As the petitioners are not native of the State of Bihar and though they belong to a caste which is Scheduled Caste in the State of their origin and also the State of Bihar but they having been promoted to the vacancies reserved for the members of the Scheduled Caste, in view of insertion of third proviso in Section 4(2) of the Bihar Act 3 of 1992 they have been reverted to the respective posts which they were holding before their promotion. 8. In these writ applications, prayer of the petitioners is to quash those orders by issuance of an appropriate writ. 9. 8. In these writ applications, prayer of the petitioners is to quash those orders by issuance of an appropriate writ. 9. It is worth mentioning here that there is difference between Section 3 of Bihar Act 15 of 2003 in Hindi and English version. There is no dispute that the official language of the State Legislature is Hindi and they carry out their proceedings and introduce Bills in Hindi. Section 206 of the Bihar Official Language Act has adopted Hindi in Devnagri script as the language to be used for the official purposes of the State of Bihar. In that view of the matter, in case of difference Hindi version would prevail. Reference in this connection can be made to a decision of the Full Bench of this Court in the case of Dr. Sachidanand Sinha vs. The Collector, Patna & Ors. [ 1990 BBCJ 55 ] [:1989 PLJR 1141] in which it has been held as follows: "10. It may be pointed out that, during the hearing of this case, none of the Counsel including the learned Advocate General, who appeared on behalf of the petitioner, in the present case, produced any material to show that the English version of the Act before us is the translated version of the Act in Hindi, in accordance with the requirement of Article 348(3) of the Constitution. While publishing the translated version of Section 16(1) under the authority of the Governor of this State, as required by Article 348(3) of the Constitution, how such an important part of that sub-section in Hindi version [****] was overlooked or omitted is difficult to explain. As such it is proper to proceed construe the effect of subsection (1) of Section 16 on the basis of the Hindi version of sub-section (1) of Section 16." 10. It is not in dispute that the State Government had provided for reservation in promotion to the members of the Scheduled Caste and Scheduled Tribe even before coming into force of Bihar Act 3 of 1992. Further Second proviso to Section (2) thereof provides that in case of promotion, reservation shall be made only for the members of the Scheduled Castes and Scheduled Tribes and it is on that basis that the petitioners were promoted to the higher post giving the benefit of reservation. Further Second proviso to Section (2) thereof provides that in case of promotion, reservation shall be made only for the members of the Scheduled Castes and Scheduled Tribes and it is on that basis that the petitioners were promoted to the higher post giving the benefit of reservation. As the petitioners have been reverted to their respective posts in view of insertion of the third proviso in Section 4(2) of Bihar Act 3 of 1992, they have questioned its constitutional validity. 11. It is relevant here to state that the State Government in its Personnel and Administrative Reforms Department by letter dated 11th of June, 1996 had provided that in all categories of services in the State, the benefit of reservation shall be available only to the members of the reserved category who are the permanent residents and native of this State. While taking the aforesaid decision it had taken note of the fact that the State of Uttar Pradesh and Madhya Pradesh in direct recruitment had made reservation for the natives of their own respective States. The decision taken by the State Government is as follows: ***Local Language*** 12. We have heard Mr. Tara Kant Jha, Senior Advocate, Mr. V.K. Kanth, Senior Advocate, Mr. Rajendra Prasad Singh, Senior Advocate, Mr. Tej Bahadur Singh, Senior Advocate, Mr. S.D. Sanjay, Mr. Bindhyachal Singh and other Advocates on behalf of the petitioners, whereas the respondent-State is represented by the Advocate General. 13. Before I proceed to consider the validity of the provision under challenge, it is apt to consider the scope of judicial review in this regard. It is well settled that an Act ot the legislature can be declared ultra vires only on one ground that it violates some provision of the Constitution. In view of the observations of the Supreme Court in the case of Government of Andhra Pradesh and Others vs. P. Laxmi Devi (Smt.) (2008)4 Supreme Court Cases 720, this issue does not need further deliberation. In the said case, it has been observed as follows: "46. In our opinion, there is one and only one ground for declaring an Act of the Legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. In our opinion, there is one and only one ground for declaring an Act of the Legislature (or a provision in the Act) to be invalid, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt. This violation can, of course, be in different ways e.g. if a State Legislature makes a law which only Parliament can make under List-I to the Seventh Schedule, in which case it will violate Article 246(1) of the Constitution, or the law violates some specific provision of the Constitution (other than the directive principles). But before declaring the statute to be unconstitutional, the court must be absolutely sure that there can be no manner of doubt that it violates a provision of the Constitution. If two views are possible, one making the statute constitutional and the other making it unconstitutional, the former view must always be preferred. Also, the court must make every effort to uphold the constitutional validity of a statute, even if that requires giving a strained construction or narrowing down its scope vide Rt. Rev. Msgr. Mark Netto vs. State of Kerala SCC para 6 : AIR para 6. Also, it is none of the concern of the court whether the legislation in its opinion is wise or unwise." 14. It has been contended on behalf of the petitioners that the third proviso to Section 4(2) of the Act has come into force with effect from 11th of June, 1996 by virtue of Section 3 of Bihar Act 15 of 2003 and hence it is ultra vires Article 14 of the Constitution of India. Section 3 of Bihar Act 15 of 2003 inserting third proviso in Bihar Act 3 of 1992 has also been sought to be declared ultra vires on the ground that it has been made operative with effect from 11.6.1996 without spelling out any reason or relevance of the said date. It has also been pointed out that the accelerated seniority and promotion guaranteed under Article 16(4A) of the Constitution of India have been divested and therefore the proviso under challenge is ultra vires and the act of reversion on that basis is also illegal. It has been emphasized that right accrued cannot be divested by retrospective application of law. It has also been pointed out that the accelerated seniority and promotion guaranteed under Article 16(4A) of the Constitution of India have been divested and therefore the proviso under challenge is ultra vires and the act of reversion on that basis is also illegal. It has been emphasized that right accrued cannot be divested by retrospective application of law. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of State of Gujarat and Another vs. Raman Lal Keshav Lal Soni and Others [AIR 1984 Supreme Court 161 ] and our attention has been drawn to the following passage from paragraph 52 of the said judgment, which reads as follows: "The legislation is pure and simple, self-deceptive, if we may use such an expression with reference to a legislature-made law. The Legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the dos and donts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene Fundamental Rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot say, twenty years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with todays rights and not yesterdays. A Legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years. That would be most arbitrary, unreasonable and a negation of history." 15. Reliance has also been placed on a decision of the Supreme Court in the case of T.R. Kapur and Others vs. State of Haryana and Others [AIR 1987 Supreme Court 415] and our pointed attention has been drawn to the following passage from paragraph 16 of the said judgment, which reads as foliows: "The rules defining qualifications and suitability for promotion are conditions of service and they can be changed retrospectively. This rule is however subject to a well recognized principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso to Art. 309 which affects or impairs vested rights. Therefore, unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules cannot be reverted and their promotions cannot be recalled." 16. Another decision on which reliance is placed is the decision of-the Supreme Court in the case of Chairman, Railway Board and Others vs. C.R. Rangadhamaiah and Others [ (1997)6 SCC 623 ], in which it has been held as follows: "In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution." 17. Yet another decision on which reliance is placed is the decision of the Supreme Court in the case of P. Tulsi Das and Others vs. Govt. of A.P. and Others [ (2003)1 SCC 364 ], in which it has been held as follows: "The provisions of Sections 2 and 3(a) in so far as they purport to take away the rights from 10.2.1967 and obligate those who had them to repay or restore them back to the State are hereby struck down as arbitrary, unreasonable and expropriatory and as such are violative of Articles 14 and 16 of the Constitution of India. No exception could be taken, in our view, to the prospective exercise of powers thereunder without infringing the rights already acquired by the appellants and the category of the persons similarly situated whether approached the courts or not seeking relief individually. The provisions contained in Section 2 have to be read down so as to make it only prospective, to save the same from the unconstitutionality arising out of its retrospective application." 18. Mr. Advocate General, however, appearing on behalf of the State submits that the third proviso of Section 4(2) of Bihar Act 3 of 1992 as inserted by Section 3 of Bihar Act 15 of 2003 under challenge covers the case of the petitioners and they being native of the place other than the State of Bihar are not fit to be considered for promotion on the vacancies reserved for the members of the Scheduled Caste after coming into force of the proviso under challenge. According to him, petitioners have been promoted on vacancies reserved for the members of the Scheduled Caste after coming into force of the proviso under challenge and hence their promotions were illegal and when came to the notice of the State Government they have been rightly reverted to the post they held earlier. According to him, the proviso under challenge is neither arbitrary nor irrational as it tends to benefit the members of the Scheduled Castes and Scheduled Tribes, who are native of the State of Bihar. 19. Having appreciated the rival submission, I do not find any substance in the submission of the learned Counsel and the authorities relied on are clearly distinguishable. It is well settled that when the Legislature has the power to legislate, it can legislate retrospectively. There is no prohibition for the Legislature to take away or impair vested right under existing laws but any law either prospective or retrospective which contravenes fundamental right cannot be made. Further the Legislature may have the power to make law to operate with State, other than the State of Bihar, were treated in similar fashion as that of the Scheduled Caste of this State and therefore later on they cannot be treated unequally. It is emphasized that petitioners once having been treated equally cannot be treated unequal and if done, it shall affect the petitioners right guaranteed under Articles 14 and 16 of the Constitution of India. 20. It is emphasized that petitioners once having been treated equally cannot be treated unequal and if done, it shall affect the petitioners right guaranteed under Articles 14 and 16 of the Constitution of India. 20. I do not find any substance in this submission. The question of discrimination, in my opinion, shall arise only when a person belonging to same class is treated differently. The members of the Scheduled Caste belonging to this State and those belonging to other States constitute different class. It is not the case of the petitioners that Scheduled Caste of other States have been granted benefit and they alone have been discriminated with the Scheduled Caste of this State. In my opinion, the Scheduled Caste of this State and Scheduled Caste of other States constitute different and distinct class and the decision to give benefit to the Scheduled Caste of this State only cannot be said to be discriminatory. 21. It has next been contended on behalf of the petitioners that the proviso under challenge is ultra vires the constitutional structure by making discrimination on the basis of the place of the residents. It has been pointed out that the petitioners, members of the Scheduled Caste, regardless of their place of birth on migration do not seize to be the members thereof or alter their status of disadvantaged class. According to them, the proviso under challenge makes discrimination on the basis of the place of birth which is in teeth of the guarantee enshrined under Articles 15 and 16 of the Constitution of India. 22. I do not find any substance in the submission of the learned Counsel. The very assumption that they are being discriminated on the ground of place of birth is absolutely misconceived. The benefit of reservation is confined to the members of the Scheduled Caste, who are the native of this place and as a result thereof it is not made available to such members of the Scheduled Caste who are native of other States. Distinction exists between the place of birth and the residence. Although discrimination is not permissible on the ground of place of birth but certainly nothing prohibits discrimination on the ground of residence. Reference in this connection can be made to a decision of the Supreme Court in the case of Dr. Distinction exists between the place of birth and the residence. Although discrimination is not permissible on the ground of place of birth but certainly nothing prohibits discrimination on the ground of residence. Reference in this connection can be made to a decision of the Supreme Court in the case of Dr. Pradeep Jain and Others vs. Union of India and Others [ (1984)3 SCC 654 ], in which it has been held as follows: "6. But, it is clear that so far as admissions to an educational institution such as a medical college are concerned, Article 16(2) has no application. If, therefore, there is any residence requirement for admission to a medical college in a State, it cannot be condemned as unconstitutional on ground of violation of Article 16(2). Nor can Article 16(2) be invoked for invalidating such residence requirement because that article prohibits discrimination on ground of place of birth and not on ground of residence and as pointed out by this Court in P.P. Joshi vs. State of Madhya Bharat, resident and place of birth are "two distinct conceptions with different connotations both in law and in fact". The only provision of the Constitution on the touchstone of which such resident requirement can be required to be tested is Article 14 and that is precisely the challenge which falls to be considered by us in these writ petitions." (Underlining ours) 23 I hasten to add that discrimination on the ground of residence, if founded on unreasonable classification will also be bad but in a case in which the legislature makes discrimination on the ground of residence, it shall not be invalid on that ground. It is relevant here to state that Article 15(1) prohibits discrimination on the ground of place of birth but does not prohibit discrimination on the ground of place of residents. Not only this, Article 15(4) enables the State for making special provision for the advancement of the members of the Scheduled Castes and the Scheduled Tribes. Though Article 16(2) prohibits discrimination on the ground of residence also but Clause (4A) thereof permits making provision for reservation in matters of promotion and seniority in favour of the Scheduled Caste and Scheduled Tribe, which in the opinion of the State are not adequally represented in the services under the State. Though Article 16(2) prohibits discrimination on the ground of residence also but Clause (4A) thereof permits making provision for reservation in matters of promotion and seniority in favour of the Scheduled Caste and Scheduled Tribe, which in the opinion of the State are not adequally represented in the services under the State. The preamble of the Act enumerates the purpose of the Act and that is to provide for adequate representation of the Scheduled Castes, Scheduled Tribes and Other Backward Classes in post and services under the State. A legislation providing for giving benefit to the members of the Scheduled Castes, who are native of this State is thus permissible under Article 16 and thus cannot be said to be ultra vires Articles 1 and 16 of the Constitution of India. 24. It has next been contended that the proviso in question prohibits inter State migration and for which the State Legislature is not competent to make law. It has been pointed out that the legislation in question is covered under Entry No. 81 of List-I of the Seventh Schedule of the Constitution of India and as such it is beyond the competence of the State Legislature. 25. There is no difficulty in accepting the broad submission advanced on behalf of the petitioners that any law made beyond the legislative competence is ultra vires but the question in the present case is as to whether the legislation in question has been made under the entry aforesaid. In my opinion, the legislation in question is not covered under the entry inter State migration. The legislation or for that matter the proviso under challenge does not prohibit inter State migration. It confines the benefit of reservation to the Scheduled Castes and Scheduled Tribes to the native of the State of Bihar. There is no inhibition in migration of Scheduled Caste but when he migrates, he does not and cannot carry any special rights or privileges attributed or granted to him in original State. In respect of State public services, the Legislature of the State has the power to make law in this regard under Entry 41 of List-II of the Seventh Schedule of the Constitution. In that view of the matter, it cannot be said that the State Legislature has no power to make law in this regard. In respect of State public services, the Legislature of the State has the power to make law in this regard under Entry 41 of List-II of the Seventh Schedule of the Constitution. In that view of the matter, it cannot be said that the State Legislature has no power to make law in this regard. As such, it cannot be said that the enactment or the proviso under challenge is beyond the legislative competence of the State Legislature. 26. It has aiso been contended that depriving the members of the Scheduled Castes of other States the benefit of reservation in promotion the State Government ought to have consulted the National Commission for the Scheduled Caste as required under Article 338(9) of the Constitution of India. 27. Even if I assume in favour of the petitioners that no consultation had taken place, that itself shall not render the proviso under challenge to be ultra vires. The proviso under challenge has not deprived the members of the Scheduled Caste the benefits of reservation in matter of promotion but has confined that to the members of the Scheduled Castes of this State. In such a situation, it cannot be said that the proviso under challenge had affected the Scheduled Castes in general and therefore consultation with the Commission is necessary. 28. It has further been contended on behalf of the petitioners that before reverting to the post which they held prior to the promotion, no enquiry was held and as such the reversion is in violation of the right guaranteed under Article 16 and also in violation of Article 311 of the Constitution of India. According to the petitioners, Article 311 of the Constitution of India covers reversion on any ground. 29. I have found that the order of reversion does not suffer from the vice of discrimination guaranteed under Article 16 of the Constitution of India. Petitioners have not been reverted as a measure of punishment but on the ground that their promotion on the vacancies reserved for the members of the Scheduled Castes is illegal. In such circumstance, it cannot be said that an enquiry as contemplated under Article 311 (2) of the Constitution of India is necessary. Thus, the reversion of the petitioners cannot be said to be either in violation of Article 16 or 311 of the Constitution of India. 30. In such circumstance, it cannot be said that an enquiry as contemplated under Article 311 (2) of the Constitution of India is necessary. Thus, the reversion of the petitioners cannot be said to be either in violation of Article 16 or 311 of the Constitution of India. 30. It has lastly been contended that the castes to which the petitioners belong are Scheduled Caste in the States to which they belong and this State also and in that view of the matter they ought not to have been reverted. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of Sudhakar Vithal Kumbhare vs. State of Maharashtra and Others [AIR 2004 Supreme Court 1036] and our attention has been drawn to paragraph 7 of the said judgment, which reads as follows: "7. In view of fact that the appellants case was not referred to the appropriate Committee, the judgment and order under challenge deserves to be set aside. It will be open to the Maharashtra State Electricity Board to refer the matter to the Scrutiny Committee for verifying the eligibility of the appellant. We direct that the appellant shall be reinstated forthwith as Assistant Engineer and shall continue to hold the said post till the matter is decided by the Committee. The appeal is allowed on the aforementioned terms. There shall be no order as to costs." 31. As regards the decision of the Supreme Court in the case of Sudhakar Vithal Kumbhare (supra), the same has no bearing in the facts of the present case. In the said case, a particular Tribe was a Scheduled Caste in both the State of Maharashtra and State of Madhya Pradesh and the Chhindwara region to which the employee belonged had gone into the State of Maharashtra and in that context the Supreme Court while giving opportunity to the employer to refer the matter to the Scrutiny Committee directed for reinstatement of the employee. This is not the situation here. 32. This is not the situation here. 32. To put the record straight, it is relevant here to state that the Advocate General has taken a stand that, law or no law restricting the benefit of reservation to the members of Scheduled Caste of this State only, under the constitutional scheme itself a Scheduled Caste or Scheduled Tribe, native of other State than the State in which benefit of reservation is sought shall not be entitled for benefit of reservation in the matter of employment, which includes promotion. According to him, had there been no decision of the State Government dated 11.6.1996 or Bihar Act 3 of 1992, petitioners would not have been entitled for benefit of reservation in promotion. According to him, against the vacancies reserved for the members of Scheduled Caste itself, petitioners appointments itself were illegal. In view of the fact that the State Government had taken the decision and the State Legislature has made the law, I am not inclined to go into this question in the present writ applications. 33. In the result, I do not find any merit in all these writ applications and they are dismissed but without any order as to costs. Dharnidhar Jha, J. 34 I agree.