1 CIVIL WRIT JURISDICTION CASE No.454 OF 1992 With CIVIL WRIT JURISDICTION CASE No.6539 OF 1991 ***** In the matter of applications under Articles 226 and 227 of the Constitution of India. ***** In CWJC No.454 of 1992: Ashok Kumar, son of Shri Ishwar Prasad, resident of Village- Dariya Chak, P.S. Barbigha, District- Munger. .... Petitioner. Versus 1. The State of Bihar, through the Secretary, Law Department, Main Secretariat, Patna. 2. Joint Secretary, Law Department, Government of Bihar, Main Secretariat, Patna. 3. Secretary, Human Resources Development Department, New Secretariat, Vikas Bhawan, Patna. 4. Director, Primary Education, Government of Bihar, New Secretariat, Vikas Bhawan, Patna. 5. Bihar Public Service Commission, Bihar, Patna Respondents. ***** For the Petitioner: Mr. Akashdeep, Advocate Mr. Shyameshwar Kumar Singh, Advocate. For the S t a t e : Mr. Anil Kumar Jha, G.A. 2 Mr. Mahesh Prasad, S.C. 8 Mr. Uday Bhan Singh, A.C. to G.A. 2 Mr. R.K. Sinha, A.C. to S.C.8. For the B.P.S.C.: Mr. Sanjay Pandey. ****** In C.W.J.C. No.6539 of 1991: 1. Krishna Prasad, son of Shri Mahabir Prasad, resident of Ramgadh Mathiya Krishna Ghat, P.S. Pirbahor, Town and district- Patna. 2. Md. Nasim Uddin Ahmad (expunged vide order no.7 dated 30.1.1996), son of Jalaluddin Hussain, resident of village and P.O. Devhara, P.S. Goh, district Aurangabad. 3. Sunil Kumar, son of Shri Ramdeo Rai, resident of village Kurkuri, Post Fulwarisharif, district- Patna. 2 4. Tula Nand Lal Das, son of late Umakant Lal Das, resident of village and P.O. Sherpur, P.S. Sakatpur, district- Darbhanga. 5. Ravinda Prasad, son of Shri Prasadi Mahto, resident of village Dariyachak, Post Malilchak, P.S. Barbigha, district- Munger. 6. Ashok Kumar, son of Shri Bangali Singh, resident of village Tandapar, Post Sirnawa, P.S. Chandi, District Nalanda. 7. Nand Kishore Singh, son of Shri Jai Narain Singh, resident of village- Basantpur, Anchal Karyalaya, Dehri-On-Sone, P.S. Dehri-On-Sone, District Rohtas. 8. Mithilesh Kumar Singh, son of Shri Damodar Singh (Headmaster), Rajkiyakrit Uchcha Vidyalaya, Chandwa, Village and P.O. Chandwa, P.S. Chandwa, district- Palamau. 9. Shobhakant Chaudhary, son of Raj Kishore Chaudhary, resident of village and P.O. Ballipur, P.S. Hathauri, District Samastipur. 10. Ashok Kumar Mishra, son of Shri Umakant Mishra, resident of village and PO Salhan, Via Gobindganj, district East Champaran. 11. Mridula Kumari, W/o Shri Parmeshwar Thakur, resident of village Patahi Jagannath, PO Patahi, district- Muizaffarpur. 12. Arun Kumar, son of Shri Rabindra Nath Sinha, resident of village- Maikhadham, PO Anugrahnagar, P.S. Mairwa, district- Siwan. 13. Kameshwar Thakur, son of Shri Harishchandra Thakur, resident of village and P.O. Suvash, Via Ktwatsa Baruari, PO Gaighat, district- Muzaffarpur. 14. Anil Kumar, son of Shri Vakil Singh (Science Teacher), resident of Rajendra Sarowar, P.S. Chapra Town, district Saran, Chapra. 15. Shyam Sunder Singh, S/o B.P. Singh (Teacher), S.S. High School, Baghmara, PO Baghmara, Via Navgadh, P.S. Dadh, District- Dhanbad. 16. Ramjee Rai, S/o Shri Jwala Rai, resident of village and PO Barnahi, P.S. Sahar, district Bhojpur. 17. Md. Javed Alam, son of Sri M. Alam, resident of village Kariana, P.O. Ghostanwa, via Silaw, P.S. Silaw, district Nalanda. 18. Anil Kumar Sharma, son of Shri Sidheshwar Sharma, resident of village Ramtari, P.O. Laud, P.S. Bihta, district- Patna. 19. Suresh Prasad, son of Sri Mahendra Pd., resident of Khajwati, PO Koshila, P.S. Bodh Gaya, district Gaya. 3 20. Kameshwar Prasad Singh, son of Shri Chandrika Prasad, resident of Mohalla South Mandiri, P.S. Budha Colony, town and district- Patna. ....... Petitioners. Versus 1. The State of Bihar, through the Secretary, Human Resources Development Department (Education Department), New Secretariat, Vikas Bhawan, Patna. 2. The Director, Primary Education, Government of Bihar, New Secretariat, Vikas Bhawan, Patna. 3. Bihar State Subordinate Service Selection Board, through the Secretary of the said Board, Main Secretariat Hutment, Patna. ..... Respondents. ***** For the petitioners: Mr. R.K. Sinha No.2, Advocate Mr. Styendra Prasad, Advocate. For the S t a t e: Mr. Anil Kumar Jha, G.A. 2 Mr. Mahesh Prasad, S.C.8 Mr. Uday Bhan Singh, AC to GA2 Mr. R.K. Sinha, AC to S.C. 8. ****** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA ***** S K Katriar, J. The two writ petitions challenge the validity of sub-section (3) of Section 4 of the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Ordinance 1991 (Bihar Ordinance No.33 of 1991) (hereinafter referred to as the “Ordinance”), which provides that a reserved category candidate who is selected on the basis of his merit shall be counted against 50% vacancies of open merit category and not against the reserved category vacancies. The two writ 4 petitions also challenge the validity of sub-section (4) of section 4 of the Ordinance which provides that the same shall apply in supersession of anything to the contrary in the said Ordinance or any other law, rules enforced earlier, or any other judgment and decree of the Court, to all such cases in which all formalities of selection have completed before 1st of November 1990, but the appointment letters have not been issued. 2. The present writ petition was dismissed by order dated 13.4.2000, on the ground that the petitioners had not laid the factual foundation for their contentions. The same was challenged by preferring Civil Appeal Nos.1486 & 1487 of 2001 (Harendra Kumar Dubey Vs. State of Bihar and others), which was allowed by the Supreme Court by order dated 23.2.2001, whereby the order dated 13.4.2000 was set aside, and the matter was remitted to this Court for a fresh decision in accordance with law. We are, therefore, required to re-hear the matter and dispose of the writ petition on merits. 3. A brief statement of facts essential for the disposal of the writ petitions may be indicated. The basic facts shall be drawn from CWJC No.454 of 1992. Resolution Nos.756 and 757, dated 10.11.1978, intended to be of general application, issued by the Government 5 of Bihar in the Department of Personnel and Administrative Reforms, prescribes the percentage of seats allocated to different categories for employment in the Government of Bihar. The State Government sent its requisition dated 8.1.1988 (Annexure 2), to the Subordinate Selection Board (hereinafter referred to as the “Board”), to make recommendations to fill up 424 posts for appointment in the Subordinate Education Service. Consequently, the Board issued advertisement No.5/88, dated 30.5.1988 (Annexure 3), inviting applications for appointment. The advertisement stated that 50% of the seats were reserved in the proportion indicated in the aforesaid resolution dated 10.11.1978. The selection process comprised of written test only. By the resolution of the State Government in the Department of Personnel and Administrative Reforms dated 29.10.1988 (Annexure-4), it was decided that 11.2.1988 should be the cut-off date to count the vacancies. The Board conducted the written test on 8.7.1989 and 9.7.1989. The Government sent its supplementary requisition dated 7.8.1990 (Annexure 5), requesting the Board to recommend candidates for appointment on 240 more posts. The Board issued notices to 664 candidates for verification of testimonials on 20.9.1990 (Annexure 9 to CWJC No.678 of 1991). The petitioners and others appeared on that 6 day for the purpose. The Board published the results which were put up on the notice Board on 22.9.1990, and were published in the newspaper on 18.11.1990 (Annexure-6). By further notifications dated 25.4.1991, 27.9.1991, 15.2.1992 and 1.8.1992, appointments were made by the State Government. A summary of the appointments made by the State Government is reflected in the chart placed on record marked Annexure-D to the Counter affidavit of respondent no.4, according to which 311 candidates of the general category, and 439 candidates of the reserved categories, have so far been appointed. In other words, altogether 750 persons have been appointed. According to the petitioner, this was the first attempt on the part of the respondent authorities to alter the proportion of vacancies available to each category without even executive instructions. 4. The State Government issued executive instructions dated 7.1.1991 (Annexure-7), being the pre-cursor of the later Ordinance which, in its turn, was converted into an Act of the State Legislature, and is the subject matter of adjudication in the present proceedings, whereby it was in substance notified that those of the reserved category candidates who were successful on merits will be appointed against the vacancies allocated to the 7 general category. The same was made retrospectively applicable with effect from 1.11.1990. This accounts for alteration of the vacancies by communication dated 7.11.1990 (Annexure-A). Alteration of vacancies to the detriment of the candidates of the general category led to CWJC No.678 of 1991 (Harendra Kumar Tiwary Vs. The State of Bihar and others), and CWJC No.1338 of 1991 (Ram Prabesh Singh Vs. State of Bihar and others). The writ petition was allowed by a Division Bench on 23.5.1991 (Annexure-9), and the executive instructions dated 7.1.1991 (Annexure-7) was set aside, inter alia, on the ground that the State action cannot adversely affect the rights which have already accrued in favour of the candidates of the general category. It was also set aside on the ground that the Secretary of the Personnel and Administrative Reforms Department was not the competent authority to amend/alter the resolution of the Governor of Bihar (Annexure-7 thereto). Consequently the State Government was directed to issue letters of appointment to the petitioners therein and others for their appointment on the post of Subordinate Education Service for which they were declared successful by the Subordinate Selection Board. No appeal was preferred and the judgment attained finality. 8 5. Instead of implementing the judgment of the Court, the State Government issued Bihar Ordinance No.33 of 1991, published in the official Gazette on 26.9.1991 (Annexure-1), namely “THE BIHAR RESERVATION OF VACANCIES IN POSTS AND SERVICES (FOR SCHEDULED CASTES, SCHEDULED TRIBES AND OTHER BACKWARD CLASSES) ORDINANCE, 1991”, to provide for adequate representation of Scheduled Castes and Scheduled Tribes and other Backward classes in posts and Services in the State and made retrospectively applicable with effect from 1.11.1991. It is a measure intended to consolidate the said executive instructions dated 7.1.1991 (Annexure-7). This led to the present writ petition. 6. By the order dated 22.10.1991 of the State Government, the duties and functions of the Board were transferred to the Bihar Public Service Commission (hereinafter referred to as the “Commission”), with effect from 1.3.1992. During the pendency of the present proceedings, the Ordinance was replaced by Act No.3 of 1992 (Annexure 1/A). On the heels of it came the letter dated 12.8.1992 (Annexure-11 = Annexure-B), of the State Government to the Commission, whereby the latter was informed that altogether 930 vacancies have to be filled up, and 750 vacancies had till then been filled up. The Commission was, therefore, requested to 9 recommend 177 more persons to fill up the vacancies in the various reserved categories. By order dated 30.9.1992, this Court stayed the operation of the said letter dated 12.8.1992 (Annexure-11), directed maintenance of Status Quo, and is in force till date. 7. While assailing the validity of the impugned action, learned counsel for the petitioners submitted that the terms and conditions of the advertisement cannot be altered after the selection process has commenced. He relies on the following reported judgments: (i) A.I.R. 1989 S.C. 49 (State of Kerala Vs. S.K.G. Madhvan Pillai and others); (ii) A.I.R. 1968 S.C. 718 (The Union of India and others Vs. M/s Anglo Afghan Agencies etc); (iii) A.I.R. 1979 S.C. 1628 (Ramana Dayaram Shetty Vs. The International Airport Authority of India and others); (iv) A.I.R. 1984 S.C. 362 (British India Corporation Ltd. Vs. Industrial Tribunal, Punjab and others); (v) 1990 (6) S.L.R. 79 (Anuj Gupta and others Vs. State of Himachal Pradesh and others) (vi) 1993 (1) P.L.J.R. 391 (Namita Jayaswal Vs. The State of Bihar and others). 10 7.1) He next contended that the State Government has stated in its letter dated 12.8.1992 (Annexure-11), that 930 vacancies were required to be filled up in which case 465 vacancies must be filled up by candidates of the General category without taking aid of transfer of vacancies. 7.2) He also submitted that if the selection process has made substantial headway, retrospectivity of legislation shall not apply to the existing procedure obtaining on the date of the advertisement. 7.3) Counsel next contended that retrospectivity of legislation cannot take away the rights which have already accrued in favour of candidates. He relies on the following reported judgments: (i) (1966) 3 S.C.R. 682= A.I.R. 1966 S.C. 1942= (1967) Labour Tribunal 698 (B.N. Nagarajan & ors. Vs. State of Mysore and others); (ii) A.I.R.1983 S.C. 1143 = (1983)3 S.C.C. 33 (A.A. Calton Vs. The Director of Education and another); (iii) (1983)3 S.C.C. 284 = A.I.R. 1983 S.C. 852 (Y.V. Rangaiah and others Vs. State of Andhra Pradesh and Anr.); 11 (iv) 1988 (Supp.) S.C.C. 740 (P. Ganeshwar Rao and others Vs. State of Andhra Pradesh and others); (v) (1990)3 S.C.C. 157 (N.T. Devin Katti and others Vs. Karnataka Public Service Commission and others); (vi) (1997)6 S.C.C. 623 (Chairman Railway Board and others Vs. C.R. Rangadhamaih and others) paragraphs 14 to 22; (vii) 1980 (Supp) S.C.C. 524 = 1981 (1) S.C.R. 1024 = AIR 1981 SC 561 (B.S. Yadav and others Vs. State of Haryana and others); (viii) (1983)2 S.C.C. 33= (1983)2 S.C.R. 287= AIR 1984 SC 161 (State of Gujarat and another Vs. Raman Lal Keshav Lal Soni and others). 7.4) He also submits that Section 4(3) of the Ordinance prescribes different dates for its enforcement which is impermissible in law. He relies on the judgment of the Supreme Court in P. Tulsi Das & ors. Vs. Government of Andhra Pradesh (A.I.R. 2003 S.C. 43), paragraphs 11 to 14. 8. Learned counsel for the petitioners in CWJC No.6539 of 1991 has adopted the aforesaid arguments, and has added that a large number of vacancies are still available, all vacancies till 12 the date of interview must be filled up by the selection process in question. He relies on the judgment of the Supreme Court In Sandeep Singh Vs. State of Haryana and another, reported in (2002)10 SCC 549. 9. Mr. Anil Kumar Jha, learned Government Advocate No.2, has opposed the writ petitions. In his submission, the petitioners have not been able to make out a case that retrospectivity of the Ordinance really affects them. No vested right has been adversely affected. He submits in the same vein that the Legislature has the power and the authority to enact laws retrospectively applicable. He relies on the following reported judgments: (i) 1995 supp.(1)SCC 596( Jilubhai Nanbhai Khachar and others Vs. State of Gujrat and Another), paragraph 18. (ii) (1997)1 SCC 326 (State of Tamil Nadu Vs. Arooran Sugars Ltd), paragraph 13. 9.1) He also submitted that the Legislature has the legislative competence to transfer vacancies in the manner as has been done. He relies on the following reported judgments: (i) 1993 S.C. 477 (Indra Sawhney etc. Vs. Union of India and others) paragraph 94A. (ii) A.I.R. 1996 S.C. 488 (Union of India and others Vs. Virpal Singh Chauhan etc.) paragraph 28. 13 9.2) He lastly submitted that a writ of mandamus cannot be issued to fill up vacancies. 10 Mr. Sanjay Pandey appearing for the Commission submitted that the issues raised by the petitioners are in the domain of the State Government. He has also submitted that the petitioners have no legal right to be appointed because their names figured in the merit-list, unless they are able to establish discrimination and/or arbitrariness. He relies on the judgment of the Supreme Court in S.S. Balu and Another Vs. State of Kerala and others, reported in (2009)2 S.C.C. 479 (paragraphs 12 and 13). 11. We have perused the materials on record and considered the submissions of learned counsel for the parties. While setting aside the order of this Court dismissing the present writ petition, the Supreme Court allowed the appeal by the following order dated 23.2.2001, passed in Civil Appeal No.1486 and 1487 of 2001 (Harendra Kumar Dubey and others Vs. State of Bihar and others): “Heard learned counsel for the parties. Leave granted. In pursuance of our order dated 8th January 2001, respondent no.1 has produced the record pertaining to the results/merit list of the candidates interviewed in the year 1988 by the Bihar State Subordinate Selection Board. The Bihar State Public service Commission has also produced for 14 our perusal only tabulation statement and the results of the interviews held in the year 1988 by the Bihar State Subordinate Selection Board. Considering the aforesaid results, learned counsel for the respondents also agrees that the case of the appellants and intervenors requires to be reconsidered by the High Court on the basis of the Reservation Policy. In this view of the matter, the impugned order dated 13th April, 2000, passed by the High Court in CWJC No.454 of 1992 is set aside. The High Court is directed to reconsider the case on merits after giving an opportunity of hearing to the appellants as well as intervenors and the respondents. The respondent authorities would produce the aforesaid documents before the High Court for its perusal at the time of hearing of the matter. With these observations, these appeals are disposed of with no order as to costs.” The matter has thereafter been placed before this Court on 11 occasions and, in spite of clear directions, the documents have not been produced before us. 12. Learned counsel for the petitioners has submitted that the terms and conditions of advertisement cannot be altered after the selection process has commenced and has progressed substantially. He has relied on the judgment of the Himachal Pradesh High Court in Anuj Gupta vs. State of Himachal Pradesh (Supra), which was with respect to admission to Engineering College. The admission brochure (prospectus) stipulated that the students having passed 10+2 examination were entitled to 15 admission in the college on the basis of merit. The selection process was later changed for merit to be determined on the basis of the result at the pre- entrance test. The Himachal Pradesh High Court held that change of policy, and super-imposition of pre- entrance test, after issuance of the prospectus, was unfair and unsustainable in law. 12.1) A Division Bench of this Court had the occasion to apply the aforesaid proposition of law in Namita Jayaswal Vs. The State of Bihar (Supra). That was a case where the State Government had taken a policy decision incorporated in the prospectus to grant 30 additional marks to girl candidates for admission in the Engineering Colleges of the State Government. The same was later on altered and the benefit was given only to those girl students who sought admission in the Bihar Engineering College, Patna. The same was not approved by this Court. 12.2) We must candidly state that acts of administrative discretion had given rise to the two cases, and were not based on legislative intervention as the case here is. 13. The Supreme Court has held in one line of cases that the selection process should take place in accordance with the terms and conditions of the 16 advertisement read with the Rules and orders in force on the date of advertisement. The candidate acquires a vested right to be tested accordingly except where the process has been altered by legislative intervention during the pendency of the selection process provided clearly or by necessary intendment. The judgments of the Supreme Court in A.A. Calton vs. The Director of Education (supra), and N.T. Devin Katti Vs. Karnataka Public Service Commission (supra), are to that effect. This principle of law on first flush seems to be applicable to the present case. However, another line of cases relevant in the present context must be noticed before a final view could be taken. 14. The Supreme Court has held in a long line of cases that retrospectivity of legislation has to confirm to the constitutional norms and must not contravene fundamental rights of the citizens. A Constitution Bench of the Supreme Court in B.S. Yadav Vs. State of Haryana (supra), held that the power exercised by the Governor under the proviso to Article 309 partakes the characteristics of the legislative, not executive, power, and it is open to him to give retrospective operation to the Rules made under that provision. When the retrospective effect extends over a long period, the date from 17 which the Rules are made to operate must be shown to bear, either from the face of the Rules or by extrinsic evidence, reasonable nexus with the provisions contained in the Rules (SCR p.1068: SCC p. 557, para 76). 15 A Constitution Bench of the Supreme Court in the case of State of Gujarat v. Raman Lal Keshav Lal Soni (supra) has held as follows: “52...The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the do‟s and don‟ts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene Fundamental Rights. The law must satisfy the requirements of the Constitution today taking into account the accrued or acquired rights of the parties today. The law cannot, say twenty years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with today‟s rights and not yesterday‟s. A legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years. That would be most arbitrary, unreasonable and a negation of history.” 16. The issue came up for consideration of the Supreme Court in Chairman, Railway Board vs. C.R. Rangadhamaiah (supra), and the aforesaid law was reiterated. Paragraphs 23 and 24 of the 18 judgment are reproduced hereinbelow for the facility of quick reference: “23. The said decision in Raman Lal Keshav Lal Soni5 of the Constitution Bench of this Court has been followed by various Division Benches of this Court (See K.C. Arora v. State of Haryana6; T.R. Kapur v. Haryana12; P.D. Aggarwal v. State of U.P.8; K.Narayanan v. State of Karnataka9; Union of India v. Tushar Ranjan Mohanty13 and K. Ravindranath Pai v. State of Karnataka14.)” “24. In many of these decisions the expressions “vested rights” or “accrued rights” have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon3, B.S. Yadav4 and Raman Lal Keshav Lal Soni5.” It is thus evident that a legislation or a rule must not be arbitrary, should be reasonable, and must conform to the Constitutional norms. The same should not adversely affect or dilute, or take away vested right of a candidate for appointment. 19 17. The Supreme Court has held on a number of occasions that if a selection process has made substantial headway, retrospectivity of a legislation shall not apply to the existing procedure obtaining on the date of the advertisement. 18. We are thus faced with two seemingly opposite line of cases handed down by the Supreme Court in different situations and decision has to be taken in the light of the peculiar facts and circumstances