IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No. 5032 of 2005 1. SANJAY KUMAR MOSES, SON OF HENRY MOSES, RESIDENT OF AND P.O. – CHAMPANAGAR, P.S. – UNIVERSITY THANA, DISTRICT – BHAGALPUR 2. SUDHANSU MOSES, SON OF HENRY MOSES, RESIDENT OF AND P.O. – CHAMPANAGAR, P.S. – UNIVERSITY THANA, DISTRICT – BHAGALPUR ……………….. PETITIONERS. VERSUS 1. THE STATE OF BIHAR 2. THE BIHAR PUBLIC SERVICE COMMISSION, THROUGH ITS SECRETARY, JAWAHAR LAL NEHRU MARG, PATNA 3. THE CHAIRMAN, BIHAR PUBLIC SERVICE COMMISSION, PATNA 4. THE SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, GOVERNMENT OF BIHAR, PATNA ……………….. RESPONDENTS ***** FOR THE PETITIONER: MR. VIVEK PRASAD, ADV. FOR THE B.P.S.C.: MR. VIJAY SHANKAR UPADHYAY, ADV. FOR THE STATE: MR. PUSHKAR NARAIN SAHI ----------- 08. 03/05/2011 Heard learned counsel for the petitioner and the State. Prayer of the petitioners in this application is for quashing the results of 43rd, 44th and 45th Bihar Public Service Commission Combined Competitive Examinations and to publish fresh merit list (results) following the roaster in accordance with Bihar Reservation of Vacancies in Post and Services (For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Amendment Act, 1993 (hereinafter referred to as Reservation Act, 1993). Petitioners’ grievance is that results in all 2 these three Combined Competitive Examination have been published, following the reservation roster in accordance with Bihar Reservation of Vacancies in Post and Services (For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Amendment Act, 2002 (hereinafter referred to as Reservation Act, 2002) in stead of Reservation Act of 1993, irrespective of the fact that through these examinations vacancies of the year 1997, 1998 and 1999 were to be filled and process of selection started prior to bifurcation of State of Bihar as well as prior to coming into force of Reservation Act of 2002. Specific case of the petitioners, who belong to Scheduled Tribe category is that on account of following the reservation roster in accordance with amended Reservation Act of 2002, the percentage of Reservation for Scheduled Tribe categories candidates have been reduced from 10 per cent to 1 per cent and petitioners could not be selected, in either of these three Combined Competitive Examinations. Admitted facts of the case are that the Bihar Public Service Commission (hereinafter referred to 3 as B.P.S.C. for short) published advertisement for 43rd Combined Competitive Examination on 08.08.1999. Preliminary Tests were held on 19.12.1999. Interview was held on 28.12.2002, after the Mains examination and final result was published on 19.01.2003. Petitioners did not succeed in 43rd examination, as such they submitted their applications against the vacancies advertised on the basis of 44th Combined Competitive Examination. Advertisement for 44th Combined Competitive Examination was published on 28.07.2000. Prelims were held on 08.11.2001. Mains examination was held in between 31.05.2002 to 30.06.2002 and final result of 44th Combined Competitive Examination was published on 09.02.2004. In the result of 44th examination, not a single Scheduled Tribe candidate of Code-03 was selected. Petitioners thereafter again submitted their applications in response to advertisement published for 45th Combined Competitive Examination for which advertisement was published on 28.12.2001. Mains examination was held in between 22.09.2001 to 20.10.2002 and the final result was published on 21.10.2004. Since petitioners’ name did not find place in the list of 4 successful candidates, in either of these examinations and in 44th and 45th examination, not a single Scheduled Tribe candidates were selected, as such petitioners made an enquiry and came to know that new Reservation Policy has been enacted by the Government, namely, Bihar Reservation of Vacancies in the Post and Services (For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Amendment Act, 2002 (Bihar Act 17 of 2002) and the same has come into effect on 27.08.2002. The selection of candidates have been made in 43rd, 44th and 45th examination as per the reservation roster of Reservation Act of 2002 and the new reservation policy of the Government. So far the new Reservation Policy of the Government is concerned, it was enacted on account of bifurcation of the State of Bihar and State of Jharkhand. In the new Reservation Policy, the reservation percentage for Scheduled Tribe candidates has been reduced from 10 per cent to 1 per cent and that is the reason that petitioners as well as other Scheduled Tribe Candidates’ name did not figure in the merit list and the published result did not even show a single candidate of Scheduled Tribe category as selected. 5 Counsel for the petitioner submits that applicability of Reservation Act of 2002 in 43rd, 44th and 45th Combined Competitive Examinations is in violation of the settled rule of construction that every statute or statutory rule is prospective, unless expressly or by necessary implication made to have retrospective effect. Since Reservation Act of 2002 is prospective, it could not have been made applicable in respect of selection procedure, which was initiated prior to enactment of the amended Reservation Act. Since the process of selection had already been commenced, when the Reservation Act of 1993 was in vogue, as such only that could have been made applicable for selection of candidates in relations to vacancies, which were of the years 1997, 1998 and 1999 i.e., prior to bifurcation of the State of Bihar. On account of adoption of amended reservation roster as per the Reservation Act, 2002 in the selection process of these examinations, petitioners and other Scheduled Tribe candidates have suffered hardships and the final result published is completely in violation of Article 14 and 16 of the Constitution of India. In support of his submission, the Counsel for the petitioners has placed reliance on decisions 6 reported in AIR 1990 SC 404 (Sukhdarshan Singh etc. Vrs. State of Rajasthan) as well as AIR 1983 SC 1144 (A.A. Kalton Vrs. Director of Education). In the Counter Affidavit filed on behalf of the State, it has been stated that the grievance have been raised by the petitioners at a very belated stage. Results of all these examinations have been published much earlier. All vacancies have been filled up and petitioners themselves have have appeared in 46th, 47th and 48th Combined Competitive Examination held for filling up vacancies of the year, 2000, 2001 and 2002, as such petitioners’ grievances can not be entertained at this belated stage. It has also been stated that after bifurcation of State of Bihar, the Reservation Act, 2002 came in force with effect from 27.08.2002, wherein reservation percentage for Scheduled Tribe was reduced from 10% in 1993 Reservation Act to 1% in Reservation Act of 2002. This amendment was brought in view of the change in demographical changes on account of bifurcation of territorial area of State of Bihar. After bifurcation of State of Bihar, territorial area wherein majority of Scheduled Tribe Population resided, became part of Jharkhand State. 7 The vacancies in the existing bifurcated State of Bihar had to be considered in consonance with the demographical representation as existing in the State. This change led to the issuance of new Reservation Policy of 2002, as the continuance of earlier Reservation Policy of 1993 would have been in violation of the ratio of population and the reservation of law existing on the date of appointment. Admittedly, entire concept of reservation is based on the principles of representation of castes or community inhibiting in the demographical area of State. Since percentage of Scheduled Tribe population in the bifurcated State of Bihar is less than one per cent of the total population, as such in the amended Reservation Policy the percentage of reservation for Scheduled Tribe Category was reduced to 1 per cent. Counter Affidavit discloses that so far the 43rd Combined Competitive Examination is concerned, the vacancies were filled up, in accordance with reservation roster of the Reservation Act, 1993. On the basis of 43rd Combined Competitive Examination, names of 27 candidates for appointment of Bihar Administrative 8 Service have been recommended by the B.P.S.C. after obtaining roster clearance according to the 1993 Reservation Policy of the Government. Process for 44th and 45th examinations was initiated by B.P.S.C. on its own without obtaining instruction of Department of General Administration and the Government regarding number of vacancies prior to bifurcation of the State, but the requisition of vacancies were sent to the B.P.S.C. after bifurcation, on the basis of the then existing Reservation Policy, i.e., Reservation Policy under the Reservation Act, 2002 and on the basis of this requisition roster points were made available to the B.P.S.C. The reason behind following the reservation roster as per Reservation Act, 2002 was that vacancies existing in the bifurcated State of Bihar had to be considered with demographical representation as in existence. At this stage, there was no reason for continuance of earlier Reservation Policy of 1993 as it would have been in violation of the law, existing on the date of appointment. The basic object behind reservation is to give representation to each and every class and category of the population, since the ratio of population of Scheduled Tribe category had reduced 9 from 10% to 1% at the time of final selection of 44th and 45th Combined Competitive Examination, as such the new Reservation Policy was observed for filling up the vacancies. Counsel for the State has placed reliance on earlier decisions in similar matter, passed in C.W.J.C. No. 1989 of 2004 and C.W.J.C. No. 234 of 2003. Similar issue was under consideration in these two decisions, and considering the fact and the law it has been held that “no doubt when the advertisement was issued, it was for the undivided Bihar. The appointments, however, will have to be made on the basis of law or rule as it exists, when the recommendations are made by the B.P.S.C. and when actual appointment is made by the State. It will be logical to accept that the State of Bihar will continue to make appointments on the posts which are no longer available to be filled up and on the basis of a policy when a large section of claimants i.e., Scheduled Tribes have already got a separate State. The vacancies existing in the State of Bihar will have to be considered with demographical representation as in existence, which led to issuance of new Reservation Policy of 2002. The submission of the Counsel appearing for the 10 petitioner that the earlier Reservation Policy of 1992 relating back to the date of advertisement must continue, would be doing violation of the law, which existed on the date of the appointment. The historical facts, based on which the bifurcation took place and the change of demographical population and its representation, can not be overlooked, because the whole concept of Reservation is based on the principles of representation of castes or community, which inhibits the geographical area of the State.” Considering the fact that after completion of appointments on the basis of 43rd, 44th and 45th Combined Competitive Examinations, the selection process for filing administrative posts on the basis of examinations up to 48th to 52nd batches have been completed by the B.P.S.C. under the provisions of rule 4 of Bihar Administrative Service Recruitment Amendment Rules, 2007 and all these posts have already been filled up, the issue, which has been raised by the petitioners has got no merit at this stage. There are two reasons for it, efflux of time and another is the change in demographical scenario in the bifurcated State of Bihar as well as the date of 11 publication of final result and appointment, which have already been made after bifurcation of the State of Bihar. The reliance placed by the petitioners’ Counsel on an unreported Division Bench decision of this Court in C.W.J.C. No. 2563 of 2003 has no application in the present case, considering the difference in the facts of both the cases. Accordingly, I do not find any merit in this Writ Application and it is dismissed. SKM (Mridula Mishra, J.)