IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11528 of 2004 ASHOK KUMAR MANDAL S/O LATE MEDI PRASAD MANDAL R/O VILL-BHAKHARPUR, PS-PIRPAITI, DISTT- BHAGALPUR, BIHAR----------------PETITIONER Versus 1. THE STATE OF BIHAR 2. THE CHIEF SECRETARY, BIHAR, PATNA 3. THE COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF PERSONNEL & ADMINISTRATIVE REFORMS, BIHAR,PATNA 4. THE HON’BLE HIGH COURT, THROUGH THE REGISTRAR GENERAL,PATNA, BIHAR.---------RESPONDENTS. ----------- For the Petitioner: Mr. Bindhyachal Singh, Advocate Mr. Ram Binod Singh,Advocate For the State: Mr. S.S.Mishra, Advocate For the High Court: Mr. Piyush Lal, Advocate. ---------- 5 7 /9/2010 Petitioner wants a direction upon the respondent authority to appoint him on the post of peon in the Civil Court, Saharsa pursuant to the advertisement No. 8/41-8/01-02 published in a local newspaper AAJ on 14.1.2002. The above mentioned advertisement was issued by the District & Sessions Judge, Saharsa for appointment on the posts of clerks and peons in the Civil Court at Saharsa. Petitioner states that he was an eligible candidate belonging to Scheduled Tribes (S.T), fulfilling all the requirements and he made an application. He was issued an Admit Card and was even given an interview call which was scheduled to be held on 22.8.2002. Petitioner is supposed to have appeared in the said interview and as per his assessment he performed rather well before the Interview Board. Result of the exercise for recruitment was published on 9.10.2002 and list was forwarded by the District & Sessions Judge, Saharsa to the High Court for approval. According to the petitioner the list contained recommendation of 56 candidates - 2 - however the High Court approved only 43 for appointment. Petitioner’s name did not figure in the list of recommended candidates for appointment. It is his case that he enquired into the matter and he learnt that the petitioner was denied the benefit of appointment because the respondents applied a new reservation policy notified by the State of Bihar in the official gazette on 27.8.2002. By virtue of the said gazette notification the quota for reservation of Scheduled Tribes candidates was brought down from 10% to 1% which could not be done in case of the present appointment. The stand of the counsel is that since the advertisement was issued in January, 2002 the subsequent gazette notification effecting change in the quota for Scheduled Tribes issued on 27.8.2002 could not be applied retrospectively. The process of appointment should have been carried out on the basis of the old rule and application of new reservation policy has proved detrimental to the interest of the petitioner’s right for appointment. The petitioner has brought on record letter no. 477 dated 11.10.2003 issued by the Department of Personnel and Administrative Reforms, which shows that the reservation policy prevalent at the time of sending the requisition to the BPSC, before bifurcation of the State, would govern the issue and not the changed reservation policy. According to the petitioner since the requisition for advertisement was issued prior to the changes brought about in the reservation quota meant for Scheduled Tribes, the respondents - 3 - could not have reduced the percentage of reservation of Scheduled Tribes to 1% as per the new reservation policy. Counter affidavits have been filed on behalf of the State as well as the High Court. Their stand is that the old reservation policy in existence in the State of Bihar applied to the undivided Bihar. The quota for Scheduled Tribes was fixed on the basis of population in existence before the division of Bihar and creation of Jharkhand as a separate State. The ground reality is that after the division of the State, majority population of Scheduled Tribes fell within the jurisdiction of newly created Jharkhand. This compelled the State authority to rework the benefit of reservation for the candidates belonging to the Scheduled Tribes. After due diligence and deliberation the State of Bihar came to a considered opinion that looking at the tribal population left in the State of Bihar, the benefit of reservation for Scheduled Tribes have to be brought down to 1% from 10%. The exercise of filling up of the post was carried out after the bifurcation of the State of Bihar and only the advertisement was issued before the amendment was notified. The actual selection and appointment has been made after the new reservation policy was notified and the benefit of reservation has to be extended at the point of appointment and not during the course of selection. The respondents have applied the reservation policy which was in operation. Even according to the petitioner, the notification was notified on 27.8.2002 and the result was published and appointment - 4 - made on 9.10.2002. The respondents have done no wrong in applying the policy in existence at the time of appointment. Not continuing with earlier reservation policy was the need of the hour as it would have given undue representation to the Scheduled Tribes, even though their proportionate representation in the State had drastically gone down after the bifurcation. Further submission on behalf of the respondents is that there is no material or pleading in the writ application which would show that the petitioner was denied appointment only due to change in the reservation policy. There is nothing to show that he came within the zone of consideration in terms of the result published after selection. The claim of the petitioner is based more on hypothesis. It is a presumption that he would have come in the select list, as one of the successful candidate, if 10% reservation was extended to candidates belonging to Scheduled Tribes category. The advertisement issued by the respondents did not indicate as to what would be reservation policy which would apply in the matter of selection. However selection is one aspect and appointment is another. Benefit of reservation comes into play only after the selection and not during the process of selection. It is also the stand of the High Court that the selection and recommendation for appointment made by the High Court would show that there is wide representation from all categories of persons who are getting benefit of reservation policy. The claim of the petitioner that continuance of the reservation policy - 5 - would have expanded his chance for appointment is more hypothetical rather than actual state of affairs. The benefit of reservation is based on the demographic representation of the populace and the historical discrimination which they have socially suffered over many a century. The benefit of reservation and fixing of percentage thereof is based on demographic distribution as well as the data gathered by the State, before a policy decision is notified, extending such a benefit. The fact that the State of Bihar came to be divided on 15th November, 2000 and a separate State of Jharkhand came to be created primarily on the basis of long struggle and demand of Scheduled Tribes of that area for a separate State. In this background the State of Bihar has had to relook at the changed ground reality. The percentage of reservation to be made available to the left over population of the State had to be reworked. The ground reality has been reflected by the notification dated 27.8.2002 and it cannot be ignored only to allow benefit of expanded zone of consideration to some persons including the present petitioner. In fact, the Court is of the opinion that applying the old principle of reservation which was in existence before bifurcation and extending the benefit of reservation beyond the percentage of the population of Scheduled Tribes would be prejudicial to the interest of other castes and community who remained in Bihar, after the bifurcation. In addition to that the Court has taken note of the fact that the benefit of reservation is to be - 6 - applied at the time of appointment and not during the process of selection. After the selection process is gone through, the question would arise as to how many posts are to be offered to which castes depending on the reservation policy existing at the time of appointment. Since the new reservation policy was already in place on 27.8.2002 and the appointment came to be made on 9.10.2002, the respondents have done no wrong by applying the new policy. The Court is also in agreement with the submission of the respondents that the case of the petitioner is based more on hypothesis than the ground reality. In absence of any empirical evidence that continuance with the old reservation policy would have brought the petitioner within the zone of consideration for selection and appointment the writ seems to be misplaced. Petitioner’s name does not figure in the merit list prepared by the respondents either in the category of selected candidates or in the category of wait listed candidates. This writ application is more of a fishing kind of application without any substantive facts and law in favour of the petitioner. This writ application is dismissed. RPS (Ajay Kumar Tripathi, J.)