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2023 DIGILAW 723 (PAT)

Abhay Kumar Patel v. State of Bihar

2023-07-05

CHAKRADHARI SHARAN SINGH, MADHURESH PRASAD

body2023
Madhuresh Prasad, J. – Heard learned counsel for the petitioners, learned counsel for the State, learned counsel for the Bihar Public Service Commission ( for short ‘ the BPSC’) and learned senior counsel for the intervenor respondents. 2. The petitioners before this Court are applicants in response to four advertisement Nos. 01 of 2019, 02 of 2019, both dated 08-03-2019, and advertisement Nos. 03 of 2019 and 04 of 2019, both dated 13-09-2019, issued by the BPSC inviting applications for appointment to the post of Assistant Engineer (Civil, Mechanical and Electrical) in the different departments under the Government of Bihar. They participated in the selection process, which was conducted, as per Bihar Engineering Service Class-II Recruitment Rules, 2019 (Recruitment Rules, 2019 for short). It is the petitioners’ case that at the time of advertisement the Rule did not prescribe any relaxation of minimum age criteria; or for grant of any weightage/ preference for previous work experience as contractual employees. The written examinations were conducted by the BPSC on different dates for applicants under the four advertisements. Merit lists dated 15.06.2022, 22.06.2022, 19.07.2022, were published for all the four advertisements, wherein, the writ petitioners were declared successful. Thereafter, they were called for document verification by the respondent-Commission and the petitioners' document were verified. 3. One development thereafter has prompted the petitioners to file the instant writ proceedings. The development is issuance of a notification dated 09.11.2022, by the nodal department (Road Construction Department), whereby and whereunder an Amendment was made in Rule 8 and a new Clause; Rule 8 (5) granting weightage and preference to persons working on contractual basis, was added to the Recruitment Rules, 2019 with effect from the date of coming into force of the Rules; i.e., 06.03.2019. Rule 8 (5) of the Recruitment Rules, 2019, reads as follows: – “8(5) Basis of Selection. – (i) The Selection for appointment to the posts of Assistant Engineers (Civil/Mechanical/Electrical) in the basic category of Assistant Engineer (Civil/Mechanical/Electrical) cadre shall be made by the Commission after calculating The marks obtained in the competitive examination conducted by the Commission and the preference of work done on the contract basis. The work experience of all government/non-private (central government, panchayat, municipal bodies etc.) offices/ institutions under the State of Bihar shall be valid for the preference of work done on contract basis. The work experience of all government/non-private (central government, panchayat, municipal bodies etc.) offices/ institutions under the State of Bihar shall be valid for the preference of work done on contract basis. Candidates having experience of working on the post of Assistant Engineer (Civil/Mechanical/Electrical) on contract basis, who fulfill the essential qualifications for the recruitment in this cadre, shall be given preference in selection by giving additional marks according to sub-rule (ii) of this Rule.” 4. The preference was made applicable to the four recruitment processes where the petitioners had participated. Petitioners have thus assailed the notification dated 09.11.2022, bearing No. 5565 (S) whereby and whereunder, the Recruitment Rules, 2019 have been amended with effect from 06.03.2029, i.e., the date of coming into force of the Recruitment Rules, 2019. 5. The learned senior counsel for the petitioners, assailing the validity of the amendment to the Recruitment Rules, 2019 under impugned notification dated 09.11.2022, submits that the amendment with retrospective effect is unsustainable. The original Rule or the advertisements, in response to which, the petitioners have applied did not contain any provision for grant of any kind of weightage/preference to those working on contract basis. When the petitioners made their applications, there was no such clause giving any kind of weightage/ preference. They have already participated in the selection process and provisional select lists dated 15.06.2022, 22.06.2022 & 19.07.2022, Annexure 2 series has also been published, wherein, the petitioners names figure. 6. After qualifying in the written tests, their documents have also been verified. The impugned notification issued thereafter amounts to changing the Rules of recruitment process after valid rights have been created in the petitioners' favour. Such change in the Rules, after provisional select list, is impermissible. 7. The policy, guidelines and procedure contained in resolution dated 22.01.2021 was issued by the General Administration Department, much after issuance of the four advertisements, in response to which, the petitioners applied. Prior to this date, there was no such policy. Even, this policy provided for grant of weightage/ preference during regular employment against only those posts, on which post, the contractual employee had worked. The grant of weightage/ preference in regular appointment process, to all contractual employees irrespective of the post on which they have worked on contract basis, as per impugned notification dated 09.11.2022, therefore, is clearly unsustainable. 8. Even, this policy provided for grant of weightage/ preference during regular employment against only those posts, on which post, the contractual employee had worked. The grant of weightage/ preference in regular appointment process, to all contractual employees irrespective of the post on which they have worked on contract basis, as per impugned notification dated 09.11.2022, therefore, is clearly unsustainable. 8. It is also submitted that the persons working on contract basis, form a class unto themselves. The petitioners are not contractual employees, and form a distinct class. Both are, thus, unequals. The impugned notification, therefore, is violative of Articles 14 and 16 of the Constitution of India inasmuch as these two distinct classes are being treated at par in the matter of recruitment, which is wholly impermissible. 9. The Amendment is also assailed by submitting that Rule- 12 of the Recruitment Rules, 2019 and Appendix- 1, to the Rule regarding allocation of marks has not been amended. In its unamended existing form, it contains a method of allocation of marks, which cannot be reconciled with sub-Rule- 2 of the impugned notification, which deals with grant of additional marks in lieu of weightage for work experience. The prescription for grant of marks for preference/weightage to contractual employees is unworkable. 10. The learned senior counsel, in support of his contention, that the Amendment could not be permitted to have retrospective effect has referred to decisions of the Apex Court in the case of Jayam and Company vs. Assistant Commissioner and Anr. reported in (2016) 16 SCC 125, Chairman, Railway Boards and Ors. vs. C.R. Rangadhamaiah & Ors. reported in (1997) 6 SCC 623 . In support of his submission that by resort to delegated legislation under the proviso of Article 309 of the Constitution of India, the Authorities could not take away the rights accrued in favour of the petitioners by virtue of their being empanelled in the provisional select list; and after their documents have also been verified in the process of selection, he has relied upon decisions of the Apex Court in the case of Prakash Chandra Meena and Ors. vs. State of Rajasthan and Ors. reported in (2015) 8 SCC 484 and Moti Ram Deka vs. General Manager, North East Frontier Railway, reported in AIR 1964 SC 600 . 11. vs. State of Rajasthan and Ors. reported in (2015) 8 SCC 484 and Moti Ram Deka vs. General Manager, North East Frontier Railway, reported in AIR 1964 SC 600 . 11. Lastly, it is submitted that the Authorities have issued the impugned notification in exercise of power of delegated legislation under the proviso to Article 309 to the Constitution of India, which cannot be invoked to bring about an amendment to the Rule with retrospective effect. 12. The impugned notification, is unsustainable in the eyes of law, and also causing grave prejudice to the petitioners. The same is, thus, fit to be quashed. 13. Learned Advocate General made submissions on behalf of the State Government. He submits that since the State Government has been making recruitment on contract basis for some time throughout the establishment, a policy decision was taken to give weightage to all contractual employees during regular recruitment process. This policy was recognizing the services offered by persons working on contractual basis in the State Government, who had been appointed through a legal process. It was not to be extended to illegal appointees, daily wagers or those serving through outsource agent/s. 14. As per the resolution dated 18.07.2007, bearing Memo No. 2401 issued by the General Administration Department only those contractual employees who were appointed against sanctioned post, possessed the requisite qualifications for the post, duly advertised and whose recruitment was made through a selection/ screening committee through proper recruitment process were considered eligible for grant of weightage/preference. It also required the contractual appointment to be by the Competent Authority and after following the principles and roster for reservation. Since the Recruitment Rules, 2019 had overlooked the existing policy, the impugned Amendment notification dated 09-11-2022 was necessitated. It is, thus, only rational that the Amendment has been made effective from the date of framing of the Rule. 15. The writ petitioners, till date are only applicants. By virtue of their participation in the selection process, publication of provisional select lists or their document verification, no indefeasible right has been created in favour of the petitioners. The petitioners, therefore, cannot contend that they have suffered any prejudice by the impugned Amendment. There is no question of infringement of any right of the petitioners. By virtue of their participation in the selection process, publication of provisional select lists or their document verification, no indefeasible right has been created in favour of the petitioners. The petitioners, therefore, cannot contend that they have suffered any prejudice by the impugned Amendment. There is no question of infringement of any right of the petitioners. The policy of giving weightage/ preference, including age relaxation to contractual employees, is very old now in the establishment and is being uniformly extended to regular recruitment process. 16. Learned Advocate General has placed reliance on the several earlier policy decisions in recognition of services rendered by contractual employees as contained in resolutions dated 17.09.2018 (Annexure- 7) bearing No. 12534 as also the resolution dated 22.01.2021(Annexure-8), bearing No. 1003, and resolution dated 21.05.2013 (Annexure-9) all issued by the General Administration Department. 17. While framing the new Rule- 8(5), additional safeguard has been provided to ensure that the grant of weightage or age relaxation is objective, rationalized and after due authentication by the controlling officer concerned. He has asserted that Rule 12 of the Recruitment Rules, 2019 or Appendix- 1 thereof, does not militate against any provision under the impugned amendment. It is very much workable for providing weightage to persons, who have rendered service on contractual basis in the Government establishments. 18. It is also submitted that the petitioners challenge is directed against a matter of executive policy. The Courts have consistently refrained from exercising their extraordinary discretionary jurisdiction to interfere in such policy matters, but for very limited grounds. In the instant case, no grounds whatsoever, have been made out by the petitioners for assailing the policy. The writ petition should, thus, be dismissed. 19. Learned Advocate General, in support of his submissions has relied upon decisions of the Hon’ble Apex Court in the case of State of Uttar Pradesh vs. Karunesh Kumar and Ors. (2022 SCC Online SC 1706), Full Bench decision of this Court, in the case of Krishna Pratap Singh vs. State of Bihar reported in 2017 (3) PLJR 642 , decision of the Hon’ble Apex Court in the case of CMD/Chairman, Bharat Sanchar Nigam Limited and Ors. vs. Mishri Lal and Ors. reported in (2011) 14 SCC 739 . 20. (2022 SCC Online SC 1706), Full Bench decision of this Court, in the case of Krishna Pratap Singh vs. State of Bihar reported in 2017 (3) PLJR 642 , decision of the Hon’ble Apex Court in the case of CMD/Chairman, Bharat Sanchar Nigam Limited and Ors. vs. Mishri Lal and Ors. reported in (2011) 14 SCC 739 . 20. The learned Advocate General, thus, sums up his submission by saying that grant of weightage or age relaxation is only in furtherance of a policy pre existing the issuance of the advertisements in question in the year 2019. The Amendment is not retrospective, rather it has been made effective from the date of coming into force of the recruitment Rules, 2019. The petitioners cannot claim any prejudice, as no right has accrued in their favour in the process of selection. In fact, if the persons, who have rendered services in the State Government on contractual basis after having been appointed in accordance with law, after due advertisement against sanctioned post and by the Competent Authority etc., were to be left out in the process of regular appointment, the same would be opposed to the expected conduct of the State as a model employer. The Court should, therefore, not interfere in the impugned notification. 21. On consideration of rival submissions on law as also the facts as emerging from the pleadings and submissions advanced by the learned counsels, this Court finds that grant of weightage/ preference under the impugned Amendment notification is in furtherance of a policy of the year 2018, which is pre existing the issuance of advertisements in-question. This Court would also find that no right has accrued in favour of the petitioners in the process of selection. They have merely participated in the process, which process has not attained finality in favour of the petitioners. The policy for grant of weightage/ preference is founded on relevant and genuine consideration recognising services rendered by persons in the contractual establishment. The policy of weightage/ preference has been made applicable to such contractual employees whose appointments have been made in accordance with law, after due advertisement and following the reservation policy and roster etc., by a competent selection committee. The policy of weightage/ preference has been made applicable to such contractual employees whose appointments have been made in accordance with law, after due advertisement and following the reservation policy and roster etc., by a competent selection committee. If the services rendered by such persons for years in the contractual establishment is to be ignored altogether, we are in agreement with the learned Advocate General that the same may possibly be considered as being opposed to the concept of State as a model employer. The genuineness and bona fides of the policy for granting weightage/preference, therefore, in the opinion of this Court cannot be doubted in any way. 22. This Court would also observe that the weightage/ preference granted under the impugned Amendment notification, while giving advantage to the contractual employees, in proportion to the number of years served in the contractual employment, does not altogether exclude others from the selection process. The weightage/ preference is limited to maximum 25 marks on a scale of 100, based on 5 marks for each year, for maximum of 5 years. Whether such weightage would result in a person being selected over and above another, who has never served in the contractual employment, would still depend upon the marks obtained by the contractual employee, with reference to his performance for the remaining 75 marks out of 100. The policy, therefore, does not exclude the element of competition. The advantage, therefore, has a rational basis, recognising the services rendered by persons working in the contractual establishment who form a separate and distinct class, from the others, who have never served in the Government. This is for the simple reason that they have put in years of service in the contractual employment, which the State is, in the opinion of this Court justified in recognising. Another relevant consideration is that the State would only benefit from the experience and expertise gained by those who have already served for years in the contractual establishment. This expertise is an additional attribute possessed by those working on contractual basis, which the petitioners do not possess. The grant of weightage therefore cannot be said to be discriminatory. 23. Another relevant consideration is that the State would only benefit from the experience and expertise gained by those who have already served for years in the contractual establishment. This expertise is an additional attribute possessed by those working on contractual basis, which the petitioners do not possess. The grant of weightage therefore cannot be said to be discriminatory. 23. The beneficiaries have also entered the contractual establishment after due compliance with Articles 14 and 16 of the Constitution of India, as a result of a process of selection with due advertisement, following the principles and roster for reservation and by a competent selection committee after fulfillment of requisite qualifications. The policy for granting weightage/ preference, therefore, in our opinion does not suffer from any infirmity whatsoever. 24. The above findings take us to the next issue, whether the Amendment notification can have retrospective effect, or not. In this connection, this Court would consider the decisions of the Apex Court in the case of K. Nagraj & Ors. vs. State of Andhra Pradesh & Anr. reported in 1985 1 SCC 523 . 25. Other judgments of the Hon’ble Apex Court reported in the case of State of Uttar Pradesh vs. Karunesh Kumar and Ors. (2022 SCC Online SC 1706), Full Bench decision of this Court, in the case of Krishna Pratap Singh vs. State of Bihar reported in 2017 (3) PLJR 642 , CMD/Chairman, Bharat Sanchar Nigam Limited and Ors. vs. Mishri Lal and Ors. reported in (2011) 14 SCC 739 . relied upon by the Advocate General also support the State action of retrospective insertion of Rule 8 (5) by the Amendment notification. It is clear from the above noted pronouncements of the Hon’ble Apex Court that the impugned Amendment notification, can very well be having retrospective operation since power to legislate includes the power to legislate with retrospectivity; as long as it does not take away substantial vested rights, and the retrospective application is explicit from the Rule. The Rules inquestion was framed under the proviso to Article 309 of the Constitution of India, and in the instant case are also in exercise of legislative powers under the Constitution of India; and not Rule making power under any Statute. The Apex Court, in the above noted judgments, has held retrospective operation of such Rules, as in the instant case to be permissible. 26. The Apex Court, in the above noted judgments, has held retrospective operation of such Rules, as in the instant case to be permissible. 26. The decisions of the Hon’ble Apex Court relied upon by the learned Advocate General merits favourable consideration in the facts and circumstances of the instant case. 27. The decisions relied upon by the learned counsel appearing for the petitioners, no doubt contain binding expressions on legal principles, but for the above noted reasons, are not applicable to the facts and circumstances of the instant case. 28. In the case of Jayam and Company (supra), the Hon’ble Apex Court found vested right have been created in favour of the dealers/ assessee, in respect of purchases and sales made by them in between 01.01.2007 to 19.08.2010. In this period, the dealer/ assessee was entitled to Input Tax Credit (for brevity ‘ITC’) of Rs. 10/- on resale, which was paid by the dealer as Value Added Tax (for brevity ‘VAT’), while purchasing the goods from the vendors. After the Amendment, the dealer would be entitled to ITC of Rs. 9.50/- only. Such new provision made for the first time was to the detriment of the dealers, since vested right had already accrued in their favour, with respect to earlier purchase and sales. It is in this context that the Hon’ble Apex Court had struck down the Amendment Act 22 of 2010 to the Tamil Nadu VAT Act, 2006 only insofar as its retrospective effect was concerned. 29. Even in the case of CR. Rangadhamaiah & Ors. (supra), the Hon’ble Apex Court dealt with the issue of retrospective Amendment. The Hon’ble Apex Court, in the said judgment, dealt with the law as to what would be treated as an accrued or vested right. Having done so, it has further proceeded to declare that retrospective operation of a Rule would be vulnerable to attack, if it seeks to reverse from an anterior date, a benefit, which has been granted or availed; such as promotion or pay-scale. In such circumstances, it has held that retrospectivity is open to attack on the grounds of violation of Articles 14 & 16 to the Constitution of India. In the instant case, this Court does not find that any vested right had accrued in favour of the petitioners, and therefore, the instant case is factually distinguishable from the case of CR. Rangadhamaiah & Ors. (supra). In the instant case, this Court does not find that any vested right had accrued in favour of the petitioners, and therefore, the instant case is factually distinguishable from the case of CR. Rangadhamaiah & Ors. (supra). For the very same reason, the other decisions, referred to by the learned senior counsel, in the case of Prakash Chandra Meena & Ors. (supra) and Moti Ram Deka (supra), in the opinion of this Court have no application to the facts and circumstances of the instant case. 30. The amendment effected by the impugned notification issued under the proviso to Article 309 of the Constitution of India, providing weightage/ preference to contractual employees, does not in any way change the minimum requisite qualification, or disqualify the petitioners from the process of selection. The giving of additional weightage/ preference, therefore, cannot be said to be a change in the Rules of appointment, prejudicial to the petitioners. Since, Recruitment Rules, 2019, did not take into consideration the existing policy for grant of weightage under the notifications (Annexures 7, 8 & 9) of the General Administration Department, earliest of which is dated 17-09-2018, the impugned amendment notification was necessitated. Even in this notification, the High Level Committee at recommendation No. 9 of Schedule “Ka” has recommended granting of weightage of contractual employees, which has been accepted by the Government. Therefore, the amendment has been given effect to from the date of publication of the Recruitment Rules, 2019. 31. The Court, would also observe that Rule 12 of the Recruitment Rules, 2019 is not in conflict with Rule 2 of the Amendment notification. The procedure for calculation of marks in recognition of weightage for years of contractual service can very well be applied to the scheme of marks contained in Rule 12 of the Recruitment Rules, 2019, since the 2019 Rules provides for appointment process based on a total 400 marks distribution of maximum 25 (5 marks for each year of contractual service rendered) marks out of each 100 marks is thus very much workable. 32. Thus, in our opinion, submission of the learned Advocate General that Rule 2 of the Amendment notification does not militate against Rule 12 of the Amendment notification, is correct. 33. 32. Thus, in our opinion, submission of the learned Advocate General that Rule 2 of the Amendment notification does not militate against Rule 12 of the Amendment notification, is correct. 33. No case is made out for interfering with the impugned notification dated 09.11.2022, whereby Rule 8 (5) have been added to Recruitment Rules 2019, with effect from the date of coming into force of the said Rules; 06.03.2019. 34. The writ petition is, thus, devoid of merit and the same is accordingly, dismissed. Chakradhari Sharan Singh, J. – I agree.