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2022 DIGILAW 1097 (PAT)

Ravi Kumar Singh v. State of Bihar

2022-12-20

ASHUTOSH KUMAR, NAWNEET KUMAR PANDEY

body2022
Ashutosh Kumar, J. – L.P.A. No. 39 of 2022 (Ravi Kumar Singh vs. the State of Bihar) and L.P.A. No. 13 of 2022 (Ram Babu Azad vs. the State of Bihar) have been taken up together and are being disposed of by this common Judgment. 2. The appellants in L.P.A. No. 39 of 2022 and the State in L.P.A No. 13 of 2022 have challenged the judgment and order dated 07.12.2021, passed by the learned Single Judge of this Court in C.W.J.C. No. 2310/2020, wherein, the Advertisement (Vivran Pustika) issued by the Department of Revenue and Land Reforms, Govt. of Bihar dated 21.12.2019 for appointment on 1767 posts of Amins has been cancelled / set aside, reserving the liberty to the State to notify the posts in terms of Bihar Amin Cadre Rules, 2013 (hereinafter referred to as 2013 Rules) within a period of three months from the passing of the order. 3. The aforesaid order was passed by the learned Single Judge on finding that the qualification fixed in the Advertisement was not in terms of Rule 6 of 2013 Rules. The learned Single Judge, it has been urged, did not take into account that the qualification required for appointment of Amins was lowered by the amendments in the 2013 Rules in the year 2016 and 2017. 4. In order to appreciate the contention of the parties, it would be appropriate to refer to the provisions of appointment contained in the amended 2013 Rules. Rule 6 of the unamended 2013 Rules provides that the direct appointment to the post of Amins shall be made on the basis of the recommendation obtained from the Bihar Staf Selection Commission through competitive examination conducted for the post of Amins. Sub-clause-(II) of Rule 6 further specifies that separate requisition of the District Sub-Cadre, Directorate of Consolidation Sub-Cadre and Directorate of Land Records and Survey Sub-Cadre shall be sent to the Commission. Sub-clause (III) further indicates that it would be essential for the candidates to have certificate of Intermediate (10+2) or equivalent qualification from a recognized Board or equivalent Institutions and degree of Amanat from a Govt. recognized Institute or success in the training of Surveyor from I.T.I. (Emphasis provided by us) 5. Out of sheer necessity, it would also be relevant to refer to Rule -7 of 2013 Rules, which provides for the written syllabus for the competitive examination. recognized Institute or success in the training of Surveyor from I.T.I. (Emphasis provided by us) 5. Out of sheer necessity, it would also be relevant to refer to Rule -7 of 2013 Rules, which provides for the written syllabus for the competitive examination. For appointment to the post of Amins, the Rules prescribe that there shall be a competitive examination to be conducted by the Staf Selection Commission consisting of two papers with full marks of 100, viz. General Knowledge, Current Events, General Science for 50 marks and General Hindi for 50 marks in first paper and General Mathematics for 50 marks of matric level and 50 marks for Amanat related questions in the second paper. 6. The afore-noted 2013 Rules were amended in 2016 and 2017 as noted above. 7. The 2016 amendment to the Rules came on 15.06.2016 which substituted Sub-clause-(III) of Rule 6 of the 2013 Rules, specifying that for appointment to the post of Amin, the candidate must have passed the Intermediate (10+2) or any other equivalent examination from any recognized Board/equivalent Institution and marks will also be given for experience of Amanat obtained for the services in the State Govt. The maximum marks for experience would be 25 and five marks for each year would be allocated. The calculation of experience would be made as per the calendar year and more than six months of experience would be counted as one year and less than six months experience would be counted as zero year. 8. Rule 7 of 2013 Rules was also amended. 9. The syllabus now, according to the 2016 amendment, would comprise competitive examination of 75 marks to be held by the Commission for appointment to the posts of Amin. There would be one question paper in which, there shall be three parts ; part-I consisting of General Knowledge, Current Afairs, General Science and General Hindi of 25 marks; part -II of General Maths of 25 marks ; and part -III, of questions related to Amanat for 25 marks. 10. Thus, the basic qualification required for being appointed as Amin was drastically lowered from 2013 Rules which required the aspirants to have a certificate of Intermediate (10+2) and degree of Amanat from a Govt. recognized Institute or success in the training of Surveyor from I.T.I. 11. 10. Thus, the basic qualification required for being appointed as Amin was drastically lowered from 2013 Rules which required the aspirants to have a certificate of Intermediate (10+2) and degree of Amanat from a Govt. recognized Institute or success in the training of Surveyor from I.T.I. 11. Under the 2016 Rules, it is pointed out, the eligibility prescribed is 10+2 certificate but the candidate would be awarded marks for experience of Amin. The methodology of calculating the experience for awarding specific marks has also been provided in the 2016 amendment Rules. 12. The 2013 Rules again underwent an amendment in July 2017, whereby Rule 2 of 2013 Rules was further amended, declaring that examination authority under the 2013 Rules would now mean either the Bihar Staf Selection Commission (BSSC) or Bihar Combined Entrance Competitive Examination Board (BCECEB) or any other authority selected by the Revenue and Land Reforms Department. The 2017 amendment further provides that the direct appointment on the posts of Amins shall be made on the basis of recommendation obtained as per the result declared in the examination conducted for the posts of Amins by the examination authority by adding the obtained marks and marks determined for the experience. It further provides that the applications received from the candidates for direct appointment to the posts of Amins would be shortlisted on the basis of marks obtained in the Intermediate or equivalent Intermediate examination and experience obtained by the Amins working under the State Govt. on the basis of their experience, which will not be less than ten times of the total vacancies. 13. Some amendments were also carried out in syllabi for written competitive examination. 14. Under the amendment Act of 2017, the syllabus for the written competitive examination which would be of 75 marks and would be held by Examination Authority authorized for selecting Amins, there shall be one question paper having two parts; the first part containing General Knowledge, Current Afairs, General Science and General Hindi of 50 marks and second part of General Maths of 25 marks. 15. The syllabus also, as can be seen, has been made less exacting for the candidates/aspirants. 16. As it appears from the records, these amendments were necessitated as only few candidates were found eligible in the earlier appointment process. 17. The posts of Amins in various revenue departments remained vacant. 18. 15. The syllabus also, as can be seen, has been made less exacting for the candidates/aspirants. 16. As it appears from the records, these amendments were necessitated as only few candidates were found eligible in the earlier appointment process. 17. The posts of Amins in various revenue departments remained vacant. 18. The Land and Revenue Department thus felt the necessity of inducting competent personnel for measuring land, using new technologies like CORS, Rovers, ETS and other computer based methods. The traditional Amanat course did not ofer training to persons undertaking that course in the present-day technologies. The other reason for taking a decision of lowering the educational qualification for Amins was that the Revenue and Land Department itself had started, in recent past, provision for an in-house training at Revenue and Surveyor Training Institute, Gaya and Patna. The degree of Amanat from State recognized institutions were not found to be of great use as newer techniques had arrived in the market for which, as noted above, in-house training was being given by the Land and Revnue Department of the Govt. of Bhar. The efort of the Department, then, was to attract brighter students, having some experience, who could then have been imparted the real training in such State sponsored Institutes in current techniques of Amanat. It was precisely for this reason that the Govt. of the day initiated and carried out such amendments in the 2013 Rules. 19. It would not be out of place here in this context to mention that earlier, under the unamended 2013 Rules, the Revenue and Land Reforms Department, Govt. of Bihar had issued requisition to Bihar Staf Selection Commission for filling up 721 posts of Amin. In the Advertisement for the said process, the basic educational qualification was fixed in terms of 2013 Rules. In the examination, many persons / aspirants had applied and were also declared to be successful but they did not have the degree of Amanat from any State recognized Institutions. Most of them had obtained the degree of Amanat from Institutes which were only registered as Societies. 20. In the examination, many persons / aspirants had applied and were also declared to be successful but they did not have the degree of Amanat from any State recognized Institutions. Most of them had obtained the degree of Amanat from Institutes which were only registered as Societies. 20. Several writ petitions came to be filed in the High Court at that time; Some seeking directions to the State to carry forward the appointment process whereas some others sought cancellation of the entire process for the reason that according to their information, the selected candidates did not have the requisite qualification in Amanat from the recognized Govt. Institutes. Ultimately, the result was cancelled and the appeal against such cancellation also failed. 21. In the batch of L.P.As, the lead appeal being L.P.A. No 1657 of 2015, a Division Bench of this Court had declared that the certificate of I.T.I. Surveyor or Amanat was required to be in accordance with statutory rules framed under Article 309 of the Constitution of India. Since the rules specifically required that such degrees be from a Government recognized Institute or on successfully completing the training as Surveyor from an I.T.I., the bar could not have been lowered to accommodate either the persons having no qualification or having qualification but from the Institutes which were not recognized by the Government. The Division Bench was categorical in its finding that no recruitment could be made in deviation of the prescribed qualification in terms of the advertisement and the rules governing such appointments; for deviation would be arbitrary and discriminatory, being in breach of Articles 14 and 16 of the Constitution of India [refer to J & K Public Service Commission vs Dr Narinder Mohan 1194 (2) SCC 630; State of Bihar vs. Ramdeo Yadav 1996 SCC 493 ]. The Bench, while parting, had, with much consternation, observed that the work of Amins were having performed by the persons who were appointed on contractual basis and that was because there were no Institutes recognized by the Govt. of Bihar for imparting training in Amanat. It was high time that the State considered and took appropriate measures that the persons be appointed on the post on the basis of open, fair and transparent process of selection. 22. of Bihar for imparting training in Amanat. It was high time that the State considered and took appropriate measures that the persons be appointed on the post on the basis of open, fair and transparent process of selection. 22. However, against the afore-noted judgment of the Division Bench dated 10.12.2015, a review petition also was filed, bringing to the notice of the Bench that the 2013 Rules, which had been heavily relied upon, had not been published in the official gazette but had only been forwarded to the Superintendent of Govt. Press, Gulzarbagh for publishing it in the Bihar Gazette, which was never done and thus it had no statutory force. 23. The Bench refused to review its order, citing many reasons viz., (I) that at no point of time, either before the learned Single Judge or before the Division Bench was this plea ever taken and (ii) that the review petitioners could not satisfy that they had no knowledge about the issuance of such notification containing the 2013 Rules. Additionally, it was held by the Bench that even in the absence of the Rules, it would have been open for the State to lay down minimum basic qualification for appointment to a post having nexus with the duties to be performed by a person to be appointed on the said post. Since the review petitioners did not have the requisite qualification as set out in the Advertisement on the basis of 2013 Rules, they could not have been considered. Their plea that they had acquired such qualification from Institutes which may not have got the State recognition but which were registered under the Societies Registration Act, was also rejected as certificates by such Institutes did not satisfy the requirements under the 2013 Rules. The last of the reasons given by the Bench for rejecting the review petition was that the 2013 Rules was silent over the mode of its publication and the only requirement in the 2013 Rules (unamended) was that it would come into force from the date of publication of the notice. The requirement definitely was not specifically for publication in the official gazette but publication for the knowledge of the citizen. 24. The Bench had many precedents for the afore-noted reasoning. The requirement definitely was not specifically for publication in the official gazette but publication for the knowledge of the citizen. 24. The Bench had many precedents for the afore-noted reasoning. [Refer to Chandigarh Administration through the Director Public Instructions (Colleges), Chandigarh vs. Usha Kheterpal Waie and Ors., 2011(9) SCC 645 and Vimal Kumari vs The State of Haryana & Ors., 1998 (4) SCC 114 . 25. In Chandigarh Administration through the Director Public Instructions (Colleges), Chandigarh (supra), the Supreme Court, relying upon Abraham Jacob & Ors. vs. Union of India, 1998 (4) SCC 65 , had found that even in the absence of valid rules, it could not be said that the Advertisement was invalid. In the exercise of its executive powers, the State could issue Administrative instructions from time to time with regard to all matters which may not be governed by any statute or rule made under the Constitution or the statute. In that case, the State had issued instructions on 20.08.1987 directing that the lecturers from the U.T. Cadre should be promoted as Principals. The corresponding Punjab Rules governing the service condition of its employees was relied upon for issuing the notification. In that case, fresh directions were issued with regard to qualification for recruitment. The recruitment rules made by the Administrator in that instance had been duly notified and it mattered not, according to the Bench, if those were not the rules under Article 309 of the Constitution of India. Those set of rules remained valid as administrative instructions issued in exercise of executive power in absence of any other rule governing the matter. 26. Be it noted that in Abraham Jacob (supra), the Supreme Court had held that an administrative decision to act in accordance with even the draft rules which were to be finalized later, would be valid wherever such draft rules were framed. 27. Similar was the finding in Vimal Kumari (supra) declaring that the Government of the day was free to regulate the service condition of the employees for whom the rules framed were only at the stage of draft but with the caveat that the State had clear intention to enforce those rules in near future. 28. 27. Similar was the finding in Vimal Kumari (supra) declaring that the Government of the day was free to regulate the service condition of the employees for whom the rules framed were only at the stage of draft but with the caveat that the State had clear intention to enforce those rules in near future. 28. On these grounds, the judgment of the Division Bench was refused to be reviewed and the basic qualification for being considered for the posts of Amins remained as was ordained in 2013 Rules (unamended), regardless of the fact that those rules were not notified in the official gazette. 29. Four years thereafter, another Division Bench of this Court had the occasion to consider similar issues with respect to appointment of Amins under the Bihar Amin Cadre Rules of 2013, but together with Bihar Amin Cadre (Amended) Rules of 2016 and 2017. In this instance, the Bench had noticed that the 2013 Rules was not notified in the official gazette, whereas the Amendment Rules of 2016 and 2017 were published in the official gazette. 30. It was argued before that Division Bench that in the absence of parent Act/Rule having been notified in the official gazette, the amendment to such Acts/Rules could not have been given efect to; notwithstanding those Amendment Acts/Rules having been published in the official gazette. 31. On the issue of the parent Rules, 2013 being silent over the mode of publication, the Bench, relying upon B.K. Srinivasan & Another Etc. vs State of Karnataka & Ors; 1987 (1) SCC 658 and Union of India & Ors. vs M/s Ganesh Das Bhojraj; 2000 (9) SCC 461 and Section 4 (36) of the Bihar and Orissa General Clauses Act, 1917, held that an obligation was cast on the State to publish the notification containing rules in the official gazette, failing which the rules would remain unimplementable. 32. Section 4(36) of the Bihar and Orissa General Clauses Act, 1917, defines notification as a notification in the official gazette. 33. The Bench, therefore, was positively of the view that unless the notification, containing rules, was published through the customarily recognized official channel, namely, the official gazette, it shall not take efect. The Bench, therefore, restrained the State in its concerned Department to act in furtherance of those rules until its publication in the official gazette. 34. 33. The Bench, therefore, was positively of the view that unless the notification, containing rules, was published through the customarily recognized official channel, namely, the official gazette, it shall not take efect. The Bench, therefore, restrained the State in its concerned Department to act in furtherance of those rules until its publication in the official gazette. 34. At this stage, it would be apposite for us to remind ourselves that in the event of the Division Bench, later in point of time difering with the opinion rendered by a Division Bench constituted earlier on the same issue, judicial propriety demanded that the matter be referred to a Larger Bench. 35. The judgment of the Division Bench, referred to in the immediately preceding paragraph, has clearly taken note of the earlier Division Bench judgment, especially with respect to the mandatory requirement of publishing of rules in the official gazette, for it to become implementable or vice-versa, the controversy was required to be settled by a Larger Bench. 36. Be that as it may, it appears that taking note of the aforesaid anomaly, namely, the parent rules not having been published in the official gazette but the amendment in such rules finding its place in the official gazette, the 2013 Rules, in its entirety, was later published in the official gazette on 14.12.2019, but without incorporating any of the amendments which were carried out in the parent 2013 Rules in the years 2016 and 2017 referred to above. 37. The appellants contend that such notification in the official gazette, without incorporating the amendments, was only for the purposes of removing the defect of 2013 Rules remaining unimplementable in view of the later Division Bench judgment for the same not having been published in the official gazette. 38. The sum and substance of the argument of the appellants is that only the defects have been removed, making the 2013 Rules implementable and as the amendment in the rules were also notified in the official gazette, those amendments also shall be read in the 2013 Rules, though notified in 2019. 39. 38. The sum and substance of the argument of the appellants is that only the defects have been removed, making the 2013 Rules implementable and as the amendment in the rules were also notified in the official gazette, those amendments also shall be read in the 2013 Rules, though notified in 2019. 39. The learned counsel for the appellants have tried to assail the impugned judgment setting aside the advertisement itself, thereby setting at naught the entire process carried out by the Commission, on the ground that such order was passed without hearing them and that the learned Single Judge, while passing the order, was not intimated and thus not aware of the amendments carried out in 2013 Rules in the years 2016 and 2017, lowering the basic minimum qualification for being eligible for being considered for the post of Amins. 40. This rendered the judgment impugned not only per incuriam, but bad in law otherwise also. 41. Mr. Dinu Kumar, the learned Advocate for most of the respondents, has vehemently argued that the appellants were not required to be heard by the learned Single Judge when the issue was being decided with respect to breach of the 2013 Rules regarding eligibility. He further submits that the contention of the State and of the appellants that the advertisement in question was issued on the basis of amended 2013 Rules is incorrect in as much as the amended 2013 Rules have been notified only in 2019. He further submits that the publication of the amendment acts/rules in 2016 and 2017 in official gazette would not remedy the defects in the event of principal Act/Rule of 2013 (unamended) having been rendered unimplementable because of the same not having been notified in the official gazette. 42. Mr. Kumar has further found out that the 2013 Rules, which now stands published in 2019 in the official gazette, does not incorporate the amendments carried out in 2016 and 2017 and, therefore, this being the last of the notification, is to be read in supersession of all other rules including the Amendment Acts/Rules of 2016 and 2017. 43. A further objection has been raised by Mr. Kumar with respect to the advertisement in question having been issued out by the Land Reforms Department of the Government. 43. A further objection has been raised by Mr. Kumar with respect to the advertisement in question having been issued out by the Land Reforms Department of the Government. He argues that the 2017 amendment provides that the examination authority, as contemplated in the Rules, would mean either Bihar Staf Selection Committee or Bihar Combined Entrance Competitive Examination Board (BCECEB) or any other authority selected by the Revenue and Land Reforms Department. The advertisement thus could not have been issued by the Revenue and Land Reforms Department of the Government. It (Department) could have only sent requisition to the designated agency for it to publish the advertisement and carry out the process of selection for the Department to appoint Amins. 44. Thus, it has been contended that if at all the provisions in the Amendment Acts/Rules of 2016 and 2017 were in contemplation of the rule making authority, the same would have surely been incorporated in the notified rules in the year 2019. That not having been done, the advertisement, which has been set aside by the learned Single Judge, still falls foul of the extant rules, leaving no justification for this appellate Court to interfere with the order passed by the learned Single Judge. 45. After having heard the learned counsel for the parties, we find that the 2013 Rules remained inadvertently unpublished in the official gazette. Necessary communication was made for its publication, but for reasons which could not be known, it was not published in the official gazette, but the rules were later modified/amended and, therefore, it cannot be said that the Government was acting in silos. 46. Even assuming that the unamended 2013 Rules, framed under proviso to Article 309 of the Constitution, was not published in the official gazette, there was no difficulty in construing the contents of the Rules as a set of administrative instructions, governing the conditions under which selection and appointment of Amins could be made. 47. 46. Even assuming that the unamended 2013 Rules, framed under proviso to Article 309 of the Constitution, was not published in the official gazette, there was no difficulty in construing the contents of the Rules as a set of administrative instructions, governing the conditions under which selection and appointment of Amins could be made. 47. The Division Bench in Civil Review No. 98 of 2006, arising out of L.P.A. No. 1657 of 2015 was categorical in its finding that the Supreme Court had made it clear in Abraham Jacob; Chandigarh Administration through the Director Public Instructions (Colleges), Chandigarh and Vimal Kumari (supra) that even in the absence of the notified rules, i.e., even at the stage of rules being at the draft stage, it could be acted upon for issuing advertisement for carrying out the selection process and no fault could be found only on that issue. 48. We are in respectable agreement with the findings of the earlier Division Bench in review. 49. We have also noticed that the respondents in this appeal, most of whom have been represented by Mr. Dinu Kumar, Advocate had not even applied against the advertisement, but were activated only after the process was taken almost to conclusion. We believe that most of these respondents have a degree of Amanat for them to question the correctness of the advertisement as tested on the anvil of the unamended 2013 Rules. If that be so, the lowering of the bar of the requisite qualification would not have ousted them from the zone of consideration. They were, even otherwise, eligible for being considered except that they would have been in a bigger pool of persons from whom selection could be made. For their not having participated in the process, not for any reason of their supposed disqualification in the terms of the advertisement, they would be prevented from questioning the correctness of the contents of the advertisement so far as the eligibility criterion was concerned, when the issue was not agitated in public interest litigation, but in individual litigation. 50. We specify that in the advertisement, the respondents were also eligible with greater chances of being given preference in award of marks, even if their degrees of Amanat were not from any Government recognized Institutes. 51. 50. We specify that in the advertisement, the respondents were also eligible with greater chances of being given preference in award of marks, even if their degrees of Amanat were not from any Government recognized Institutes. 51. By the Amendment Acts/Rules of 2016 and 2017, only the qualification was lowered by excluding the compulsory requirement of having a degree of Amanat from a recognized Government Institute or having successfully completed survey course from I.T.I. With the bench mark having been lowered, the consideration zone expanded, which in any way included the respondents, but they have chosen not to participate in the selection process. 52. We further find that the notification of unamended 2013 Rules in the official gazette in the year 2019 was only to do away with the anomaly pointed out by the later Division Bench, which had found that even in the absence of the specific procedure/modality regarding the mode of notification in the Rules, it was incumbent upon the Government to publish it in the official gazette as it was the only official channel suggesting its dissemination and knowledge to the public at large, that this efort was made for publishing the notification and that also because the Amendment Acts/Rules of 2016 and 2017 were duly published in the official gazette. This fact, namely, publishing of the Amendment Acts/Rules in the official gazette further signify that 2013 Rules (unamended) were not published in the official gazette only because of inadvertence and nothing else. 53. The learned Single Judge, while evaluating the correctness of the advertisement in terms of unamended 2013 Rules, found it to be defective and set aside the entire process, but without taking into account the later developments, namely, the Amendments in the 2013 Rules in the years 2016 and 2017 respectively which permitted lowering of the academic qualification in the advertisement. Even otherwise, when the learned Single Judge was aware that the entire process had been completed and many persons were found to be successful, such an order ought to have been passed only after noticing them as a right had accrued in such persons. 54. In any view of the matter, namely, legal or contextual, in the sense that most of the posts of Amins in the State of Bihar are vacant, we find the judgment and order of the learned Single to be highly unsustainable. 55. 54. In any view of the matter, namely, legal or contextual, in the sense that most of the posts of Amins in the State of Bihar are vacant, we find the judgment and order of the learned Single to be highly unsustainable. 55. For the reasons afore-stated, we set-aside the judgment and order dated 07.12.2021 passed in C.W.J.C. No. 2310 of 2020. 56. The consequence of setting-aside of such order will follow, namely, the revival of the process of selection from the stage from where it was stopped. 57. Both these appeals are allowed. 58. The interlocutory application/s, if any, also stand disposed of in terms of this judgment.