IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.425 of 2011 1. RAM UDAY KUMAR S/O RAM CHANDRA PD. R/O VILLAGE NAWADA P.O. TIKKAI,PS- MAKHDUMPUR, DISTT- JAHANABAD (ECONOMICS) 2. NEERAB KUMAR S/O MANDAL MISTRI, R/O VILL-KHETILA PO- TETAR, PS. ATARI, DISTT- GAYA 3. RAVINDRA KUMAR SHARMA S/O YUGAL KISHORE SHARMA R/O VILLAGE- MORE DIHRI, PO- PADRAWAN PS- JAMHAOR, DISTT- AURANGABAD 4. SATYENDRA KUMAR S/O LATE ISHWAR5 MISTRI, R/O VILL- SANOUT, PO- GOHA PS- MUFFASIL, DISTT- GAYA 5. MITHILESH SHARMA, S/O RAVINSHANKAR PD. SHARMA, R/O VILL & PO- KARE, PS- SHEKHPURA DISTT- SHEKHPUR--PETITIONERS. Versus 1. THE STATE OF BIHAR 2. THE CHIEF SECRETARY, BIHAR, PATNA 3. THE PRINCIPAL SECY. HRD DEPARTMENT, BIHAR,PATNA 4. THE DIRECTOR HRD DEPARTMENT, BIHAR PATNA 5. THE SECY. SOCIAL WELFARE DEPTT. GOVT. OF BIHAR,PATNA 6. THE PRINCIPAL SECY. PERSONNEL & ADMINISTRATIVE REFORMS, BIHAR PATNA 7. THE CHAIRMAN, EXTREMELY BACKWARD STATE COMMISSION, BIHAR PATNA 8. THE DIVISIONAL COMMISSIONER, MAGADH DIVISION, GAYA 9. THE DISTRICT MAGISTRATE, GAYA 10. THE DISTRICT WELFARE OFFICER, GAYA 11. THE DISTRICT EDUCATION OFFICER, GAYA 12. THE HEADMASTER, HIGH SCHOOL KARMATHU,BELAGANJ, GAYA 13. THE HEADMASTER PROJECT GIRILS HIGH SCHOOL, TETUA, ATRI, GAYA 14. THE HEADMASTER HIGH SCHOOL BHAROANDHA, GURUA,GAYA 15. THE HEADMASTER, HIGH SCHOOL SAKORDAS, NAWADAH,GAYA 16. THE HEADMASTER, GULABCHAND JANTA HIGH SCHOOL, NIMCHAK BATHANI, GAYA 17. THE ZILA PARISHAD, GAYA THROUGH THE CHIEF EXECUTIVE OFFICER, GAYA 18. THE DDC-CUM-CHIEF EXECUTIVE OFFICER, ZILA PARISHAD, GAYA 19. THE CHAIRMAN, PANEL CONSTITUTION COMMITTEE, ZILA PARISHAD, GAYA. 20. THE DISTRICT TEACHERS APPOINTMENT APPELLATE TRIBUNAL, GAYA THROUGH ITS MEMBER 21. THE MEMBER, DISTRICT TEACHERS APPOINTMENT APPELLATE TRIBUANL, GAYA ----------- For the Petitioners: Mr. Rajendra Pd. Singh,Sr. Advocate With M/s. S. K.Sharma & Arun Kumar Advocates For the State: Mr. S.K.Sharma,Sr. Advocate(G.A.3) Mr. H.K.Akela AC to GA-3 ---------- 3 28.4.2011 Heard learned counsel for the parties. The five petitioners before this Court in the present writ application are aggrieved by the decision which has been rendered in the Case No. 78 of 2010 by the District Teachers - 2 - Appointment Appellate Authority, Gaya. This order is annexure- 14 to the writ application and the subject matter of challenge. The reason why the petitioners have filed this writ application is that this order has a direct fall out on their status as teachers of Zila Parishad for which exercise of appointment has been carried out earlier. The petitioners’ claim for their continuance on the post has been held to be invalid and which entails their removal. The short facts are that an advertisement dated 25.8.2008 was issued by the respondent authority, as a part of on going exercise to fill up the posts of teachers at the block level or even Zila Parishad level spread over the district. The petitioners were applicants and their cases were considered for appointment. The subject matter of dispute is as to the benefit of reservation and the category in which they ought to be considered and benefit granted. Admitted position is that Barhis (carpenter) were being treated as backward class community as per the notification of the State Government which was in existence at the time of advertisement. The reservation had been provided for them against the existing vacancies and claim of the petitioners was initially considered in the category of backward class community. By a notification dated 12.6.2009 the State Government decided to bring them in the category of Extremely Backward Class (in short EBC). Applications were filed by the - 3 - petitioners before the concerned authority to treat them as extremely backward class instead of backward class and to give benefit in the selection and appointment on the basis of the notification of the State. It must also be noticed that though advertisement was issued in the year 2008 the exercise for appointment carried out till the year 2010. Petitioners were treated as extremely backward class and appointments made. Dispute thereafter arose whether they can be given the benefit of reservation of extremely backward class to an advertisement issued in the year 2008 because the issue was whether the notification dated 12.6.2009 would be prospective in nature or retrospective in nature. The Deputy Development Commissioner who happens to be the nodal officer looked into the claims and after a detailed consideration came to a considered opinion that any appointment made of the petitioners by giving them the benefit of reservation under extremely backward class was invalid because the appointment had to be made on the basis as they stood at the time of advertisement. Even otherwise the effect of notification dated 12.6.2009 would be prospective in nature and not retrospective. Since the petitioners were not satisfied with such a decision they filed appeal before the appellate authority, Gaya and it is the decision which is annexure-14 which is being challenged by the petitioners because the appellate authority after detailed - 4 - consideration affirmed the decision of D.D.C. by holding that no infirmity was caused in such adjudication. Submission of learned Senior counsel is that if the benefit of reservation by virtue of the notification had undergone a change the ground reality should have been taken into consideration and the status of these petitioners on the date of appointment should govern the issue. An alternative argument is that since there are no claimants to such those posts, a humane approach should be adopted and petitioners should not be disturbed from their post in the light of such decision and decisions taken by the respondents. It is also stated that the appellate authority has mechanically affirmed the order of D.D.C. without considering all those aspects which were raised before them. A counter affidavit on behalf of the state has been filed. Some facts are not disputed that the petitioners were under the Backward Class category at the time of advertisement and their status had undergone change. The question is whether the changed status would be prospective in nature or retrospective. In this regard the law is well settled not only by this Court but even by the Hon’ble Supreme Court. In the case of Gopal Krushna Rath vrs. M.A.A. Baig (Dead) by LRS. & others, reported in (1999) 1 SCC 544, emphasis on paragraph-6 : Para-6: When the selection process has actually commenced and last date for inviting applications is over, any subsequent change in the requirements regarding qualifications by the University Grants Commission will not affect the - 5 - process of selection which has already commenced. Otherwise it would involve issuing a fresh advertisement with the new qualifications. In the case of P. Mahendran v. State of Karnataka this Court has observed (SCC p. 416, para 5) “5. It is well-settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect.” The Court further observed that: “Since the amending Rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment.” After going through the decision of the Hon’ble Apex Court coupled with the rational and reasonings rendered by the appellate authority, the Court has no hesitation in holding that D.D.C or the appellate authority has committed no error of law by holding that the petitioners were not entitled to the benefit of reservation by virtue of the notification dated 12.6.2009. Their appointments had to be made on the basis of the position existing at the time of advertisement. The subsequent development as per the requirement of notification dated 12.6.2009 including the reservation will not give any benefit to these petitioners as they were not entitled for reservation under extremely backward class. If the mistake was committed by the respondents - 6 - by giving the benefit of reservation to the petitioners under Extremely Backward class when they were in Backward category, their cases had to be reconsidered and appointments of these petitioners will have to be undone in terms of the orders passed by the DDC and affirmed by the appellate authority. This Court does not want to interfere with the orders as the same are in conformity with the settled law. This writ application has no merit and it is dismissed. RPS (Ajay Kumar Tripathi,J.)