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2013 DIGILAW 854 (PAT)

Sudhansu Moses v. State Of Bihar

2013-07-22

NAVANITI PRASAD SINGH

body2013
ORDER 1. The petitioner is aggrieved by his non-selection by the Bihar Public Service Commission (BPSC) pursuant to the 48th to 52nd Combined Competitive Examination held by it. These examinations were for various vacancies in the Bihar Administrative Service, Bihar Police Service, Jail Superintendent, Commercial Taxes, Education Service and several other State Services. 2. Counter affidavits and rejoinders have been filed. Pleadings being complete, with consent of parties, the writ petition has been heard for its disposal at this stage itself. 3. Briefly stated, petitioner’s grievance is that he, being a person belonging to notified Scheduled Tribe, has been wrongly deprived of his chance of appointment. A person, who was also a Scheduled Tribe candidate, had qualified in the general merit list but he was not so treated and he was treated in the Scheduled Tribe list of candidates. The result was that the said respondent being Umesh Kumar Bharti (respondent No 4) having been brought into the list of Scheduled Tribe candidates, petitioner got ousted. In other words, if this Meritorious Reserved Candidate (MRC for brevity) was treated as a general candidate and not a reserved candidate, as has been done by BPSC, petitioner would have come in the select list of reserved candidates. Petitioner, in support of his contention, relies on the judgment of the Apex Court in the case of Union of India & Another –Versus- Satya Prakash & Others since reported in (2006) 4 Supreme Court Cases 550. 4. Shri Satyabir Bharti, learned counsel for the BPSC, on the other hand, draws attention of this Court that Satya Prakash’s case (supra) was referred to Constitution Bench for reconsideration and the judgment of the Constitution Bench reconsidering Satya Prakash’s case (supra) is Union of India Versus Ramesh Ram & Others since reported in (2010) 7 Supreme Court Cases 234 where the judgment of the Court was delivered by Hon’ble the Chief Justice K G Balakrishnan. 5. There is no dispute in regards the fact. Suffice to say but for the inclusion of respondent no 4 Umesh Kumar Bharti in the reserved list, petitioner would have figured in the reserved list and consequently would have had the recommendation of BPSC for appointment to one or the other post. What BPSC did was correct in law or not is the question to be decided. 6. Suffice to say but for the inclusion of respondent no 4 Umesh Kumar Bharti in the reserved list, petitioner would have figured in the reserved list and consequently would have had the recommendation of BPSC for appointment to one or the other post. What BPSC did was correct in law or not is the question to be decided. 6. The matter has been argued at length by both the counsels and both the judgments in question have been extensively referred to. Learned counsel for the petitioner, in his submission, is right so long as Satya Prakash’s case (supra) held the field but no sooner, as pointed out by Shri Satyabir Bharti, Ramesh Ram’s case (supra) came, the tables were turned. The action of BPSC may not have been in conformity with Satya Prakash’s (supra) when it was so done initially but that action in law has stood affirmed by the subsequent Constitution Bench which disapproves Satya Prakash’s case (supra) and, thus, approves the action of BPSC. In order to appreciate, it is necessary to examine the scheme of reservation, so far as relevant, for the present litigation. We are concerned with Bihar Reservation of Vacancies in Posts and Services (For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991 being Bihar Act 3 of 1992. The Act is for providing adequate representation of Scheduled Castes and Scheduled Tribes and other Backward Classes in Posts and Services under the State. The relevant provision would be Section 4 sub-section (2) and sub-section (3) thereof, relevant portion thereof is quoted hereunder: 4. Reservation for direct recruitment – All appointments to services and posts in an establishments which are to be filled by direct recruitment shall be regulated in the following manner, namely:- (1) … … … (2) The vacancies from different categories of reserved candidates from amongst the 50 percent reserved category shall, subject to other provisions of the Act, be as follows :- (in percent) (a) Scheduled Castes 16 (b) Scheduled Tribes 01 (c) Extremely Backward Class 18 (d) Backward Class 12 (e) Women of Backward Class 03 Total 50 (3) A reserved category candidate who is selected on the basis of his merit shall be counted against 50% of vacancies of open merit category and not against the reserved category vacancies. 8. 8. It is the contention of Shri Vivek Prasad that by virtue of sub-section (3) of Section 4 of the said Act, an MRC would be treated as an open merit category candidate and not against the reserved post or reserved candidates whereas the stand of Mr. Satyabir Bharti is that by virtue of sub-section (2) of Section 4, the total reserved candidates availing the benefits of reservation cannot exceed 50% and, thus, if an MRC opts for appointment on basis of reservation of post then he having availed of reservation benefits has to be counted in the reserved candidates list and not as a general candidate. 9. The Apex Court in the case of Satya Prakash’s case (supra) has clearly held that where an MRC, who was entitled to get a post in the general merit list, does not get a suitable post, he cannot be deprived of his status. He would have a right to select a reserved post notwithstanding having qualified on merit but once he does so then a reserved candidate already enlisted as such cannot be displaced out of the list. He would then go out of the reserved list to be adjusted in the general list. The effect was as per the Apex Court intended as well to increase the number of reserved candidates qualifying for appointment or getting appointed. This is exactly what the petitioner wants because if respondent No 4, who was a general meritorious candidate of reserved category even though opted for reserved post, that should not enure to the disadvantage of the petitioner who ought to have been in and remained in the select list. Even if he was to be pushed out then he would get his chance though at the bottom of the general list. This is what he is aggrieved by. This was not done in his case. 10. Even if he was to be pushed out then he would get his chance though at the bottom of the general list. This is what he is aggrieved by. This was not done in his case. 10. It appears this matter that is the judgment of the Apex Court in Satya Prakash’s case (supra) came up for consideration before a Three Judges’ Bench of the Apex Court and by order, as reported in (2009) 6 Supreme Court Cases 619 (Union of India –Versus- Ramesh Ram), the Three Judges’ Bench, headed by Hon’ble the Chief Justice, referred the matter to Constitution Bench for reconsideration of Satya Prakash’s case (supra) and that is how the matter ultimately came to be decided in Ramesh Ram’s case since reported in (2010) 7 Supreme Court Cases 234. In the Constitution Bench judgment in the case of Ramesh Ram, what the Apex Court has noticed is two essential differences. Firstly, they have noticed that the Statute with which they were dealing had undergone a change after the judgment in the case of Satya Prakash’s case (supra). In my view, what was more significant was the next issue which their Lordships consider. The Constitution Bench, in my view, held that by series of judgment of Apex Court including the celebrated judgment of Indra Sawhney Versus Union of India, 1992 Supp (3) SCC 217, it has now been firmly laid that there is a constitutional embargo on sum total of reservation exceeding 50%. If Satya Prakash’s case (supra) was strictly applied then there would be cases where the total reservation would exceed 50%. Mr. Satyabir Bharti for BPSC says that the present case is illustrative of such a situation because the Reservation Act provides for a 50% reservation straightway and any person availing of reservation incentive being meritorious without displacing another reserved category candidate would automatically result in total reservation exceeding 50%. It is on this ground virtually the Constitution Bench departed from Satya Prakash’s case (supra). 11. It is on this ground virtually the Constitution Bench departed from Satya Prakash’s case (supra). 11. In my view, what the Constitution Bench in Ramesh Ram’s case (supra) decided is if an MRC opts for a general seat then it does not in any manner change or effect the reserved list or post because they remained untouched but if an MRC does not find a suitable post in the general list and opts for a post reserved then he displaces one person from the reserved list who would be pushed out of the select list altogether. He would not come back in the general list as was held in Satya Prakash’s case (supra). This is so because the number of reserved post or reserved candidates cannot exceed 50%. In my view, the true ratio of the Constitution Bench in Ramesh Ram’s case (supra) is that the number of persons availing the benefit reserved for the reserved candidate cannot ever exceed 50%. If this ratio is kept in mind then a person, who is an MRC and goes for a general post, he does not avail of benefits of reservation. He will not disturb a reserved candidate but the moment he avails of the benefit reserved for reserved candidate then he upsets the balance and one reserved candidate will have to go out of the select list. That is the law. That, in my view, is what BPSC has done and rightly so. 13. A word of caution. Preparing a select list is one step, that is a selection process, but opting for a post or a cadre is a distinct exercise. Why I am saying this is while preparing the select list, MRC cannot be counted for in the reserved category. He has to remain in the general. Thus, the initial select list would be of general merit list including reserved candidates who have qualified on their own merit and separate list excluding such MRC for each reserved category groups. Then comes the stage of options. If an MRC opts for a general seat then the reserved table would not be disturbed but if and only if and when an MRC opts for a reserved post then and then alone the reserved table would stand disturbed and the last of the reserved candidate would be pushed out of consideration totally. Then comes the stage of options. If an MRC opts for a general seat then the reserved table would not be disturbed but if and only if and when an MRC opts for a reserved post then and then alone the reserved table would stand disturbed and the last of the reserved candidate would be pushed out of consideration totally. Thus, this implementation has to work on two levels or in two stages. BPSC must take note of this process in all selections and recommendations for appointments. 14. Mr. Vivek Prasad, learned counsel for the petitioner then submitted that the Rules, as obtaining on the day when the advertisement is issued and selection is to be made, has to be applied. They cannot be changed midway. What actually he intends to submit is that the law, as laid down in Satya Prakash’s case (supra), which was holding the field when selection was made in his case should be applied and not the law as subsequently enunciated by the Constitution Bench as that law came after the selection process. This contention is only being noted to be rejected. The reason is simple. What has been submitted by the learned counsel is good for rules and regulations. The law, as I understand, is that the rules and regulations in force when advertisement is issued and selection process is conducted cannot be changed midway but that does not apply to judgments for judgments are interpretation of rules and regulations. They are themselves not rules or regulations. An interpretation of rule or regulation relates back to the date of rule or regulation. Thus, when the Constitution Bench in Ramesh Ram’s case (supra) disapproves Satya Prakash’s case (supra) or departed from that then it has to be assumed that the rules and regulations from inception contemplated what later the Constitution Bench stated. Thus, there is no substance in this contention as raised on behalf of petitioner. 15. In fairness to the counsel for the petitioner, it must be noted, on facts, respondent No 4, the MRC opted for a reserved post. Even if, petitioner ought to have been included in the reserved select list at the first instance, which was not done as a matter of fact, it makes little difference as the moment respondent No 4, the MRC opted for reserved post, petitioner would automatically be pushed out of consideration. Even if, petitioner ought to have been included in the reserved select list at the first instance, which was not done as a matter of fact, it makes little difference as the moment respondent No 4, the MRC opted for reserved post, petitioner would automatically be pushed out of consideration. That was the inevitable result of Ramesh Ram’s case (supra). 16. Thus, in my view, this writ petition merits no consideration and it is, accordingly, dismissed. 17. Respondent No 4 or for that matter respondents No 5 and 6 will not be disturbed in any manner.