CIVIL WRIT JURISDICTION CASE No.2629 OF 1994 ( In the matter of an application under Articles 226 and 227 of the Constitution of India.) ******* SRI RAMA KANT SHARMA, Son of Late Parashar Rai, resident of Village-Dhanchhuhan, P.S. Sahar, District- Bhojpur. -----------Petitioner Versus 1. The State of Bihar, through the Chief Secretary, Government of Bihar. 2. The Secretary, Department of Personnel and Administrative Reforms, Government of Bihar, Patna. 3. The Secretary, Department of Industries, Govt. of Bihar, Patna. 4. The Direcotr of Industries, Govt. of Bihar, Patna. 5. Bihar Public Service Commission, 15 Bailey Road, Patna, through its Secretary -----------------Respondents ******** P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA THE HON'BLE MR. JUSTICE JYOTI SARAN ********* Navin Sinha & Jyoti Saran, J.J. Heard learned counsel for the petitioner and the State. The petitioner seeks the relief for appointment on the post of “Enumerator” in the Department of Industries, Government of Bihar. The claim is specific in context of the Economically Backward Class category (06). In 1982, the Bihar State Subordinate Services Selection Board (hereinafter called the Board) issued an advertisement for the first graduate level examination for appointment on various Class-III posts in different departments of the State Government. One of the categories - 2 - for reservation was 06, based on economic backwardness classified as “Economically Weaker Section”, of persons having an annual income of below Rs. 8000/- per annum. A certificate of the concerned authority certifying the income was required to be annexed to the application. The petitioner appeared at the selection examination held in 1982 successfully. On 12.7.1988, the Board directed the petitioner to produce his original income certificate to consider recommending his name for appointment to the concerned department. After his papers were found in order, on 26.12.1989, he was recommended for appointment in the Irrigation Department (now re-designated as the Water Resources Department} for the post of Research Assistant. On 4.1.1990, he appeared for interview before the Irrigation department. The recommendation made by the Board was returned by the Irrigation Department contending that in view of the reservation roster there was no vacancy in the department under the 06 category. On 26.7.1990, the Board made an enquiry of vacancies in the 06 category in the Industries Department. On 22.9.1990, the Industries Department informed that there were twenty vacancies of “Enumerators” of which one vacancy was for the 06 category. On 27.2.1991, the Board recommended the name of the petitioner for appointment on the aforesaid post subject to verification of his papers by the department of Industries. The - 3 - petitioner appeared for interview in the department of industry on 25.3.1991. Before he could be appointed, a complaint was received in the Industries Department on 5.4.1991. It was signed by one Sri Navnit Kumar Singh who described himself as a member of the “Yuva Samaj Dal, Sahar, Bhojpur” and Sri Rabindra Kishore Sharma, “Nav Jagriti Munch, Sahar Bhojpur”. It stated that they had learnt that the petitioner was attempting to obtain appointment in the Industries department under a conspiracy in which certain employees of the department were also involved. That the petitioner belongs to the “Bhumihar” caste from a big agriculturist family. His brother in the joint family was a Principal in a High School and another brother was a Lecturer while yet another was a Doctor. How could the petitioner be classified as Economically Backward Class category? If it were to be so then what shall be the nomenclature of a higher economic condition. It was therefore requested that it was also a matter for investigation how the Block Office had issued an Economically Backward Category certificate to the petitioner. Naturally, the appointment of the petitioner was put on hold. On 13.9.1991, at the request of the Director of Industries the District Magistrate submitted a perfunctory report inconclusive in nature. Industries department asked for a fresh report from the District Magistrate on 8.10.1991. - 4 - The District Magistrate then submitted a fresh report dated 11.4.1992 after enquiry including from the Sub Divisional Officer confirming that the petitioner had an annual income of Rs. 6000/- per annum. This was below the cut off amount of Rs. 8000/- per annum. When appointment was still not forthcoming, the petitioner filed the present writ petition. Learned counsel for the petitioner contended that there is no allegation of infirmity in the selection process or ineligibility of the petitioner to deny him appointment. The petitioner had been found otherwise eligible but based on a frivolous complaint by a busy body, he has been denied appointment. It is the specific case of the petitioner that at no stage his economically backward category status-06 certified by the competent authority, has been cancelled. Learned counsel for the State contended from the counter affidavit that undoubtedly the name of the petitioner was recommended by the Board to the department of Industries, after the department in response to query from the Board had informed it of 20 vacancies on the post of “Enumerator” inclusive of one post in the Economically Backward Category-06. The recommendation was on that basis. Before the petitioner could be appointed, the reservation roster prepared by the department was not approved by the Personnel department. Under the revised and approved reservation roster the existed no vacancy in the - 5 - Economically Backward Category-06 on which the petitioner could be appointed. He had only been selected and cannot claim any right to appointment. No vested right of appointment accrued on such recommendation. Undisputedly, the petitioner was an applicant under the Economically Backward Category-06 under the advertisement. He submitted his certificate from an appropriate authority. That certificate has never been doubted or cancelled. On the contrary, on a complaint being made, the authorities have re-enquired into the matter and reaffirmed the factual correctness of the categorization given by them on certification to the petitioner. It is unfortunate that the respondents lent unnecessary credence to what was otherwise a non-issue upon an allegation made by a busy body. Had the allegation been made by a rival competing candidate, the Court may have found some justification of the need for enquiry. A perfunctory report is rejected calling for a fresh report, which is in his favour. Despite the report being in his favour appointment is yet denied to him. The conduct of the respondents was more in the nature of a fishing enquiry to find a bait and somehow deny appointment. Before vacancies are notified or requisition sent for appointment, the exercise of vacancies available according to the roster has to be worked out. It was not without reason that on a requisition by the Board the industries department - 6 - informed of 20 vacancies on the post of “Enumerator” inclusive of one in the Economically Backward Category-06. This single act on part of the respondents in classifying the vacancy concerning the petitioner, is complete evidence that the requisitioned vacancies were as per reservation roster, as otherwise there was no occasion for them to point out in the requisition that one vacancy was in the Economically Backward Category. The explanation that the personnel department did not approve the reservation roster is clearly an after thought, another bait in the fishing conduct of the respondents to somehow or the other justify denial of appointment. The attitude of the respondents in putting the cart before the horse is difficult to understand. In any event of the matter, they requisitioned 20 vacancies and according to the counter affidavit roster vacancy approved by the Personnel department suddenly comes down to 17 vacancies. How and in what manner the vacancies itself got reduced by three and to which category they belonged has not been dealt with or explained in the counter affidavit. In the entirety of the matter, upon consideration this Court is satisfied that in fact the respondents have no real justification to deny appointment to the petitioner but have adopted a fishing attitude in the hope that the bait shall stick somewhere. We are therefore satisfied that the petitioner has been wronged for no justifiable reason at all. - 7 - The aspect of the nature of the right in the petitioner by virtue of a recommendation for appointment only is appropriately answered in 1995 Supp (2) SCC 230 R.S. Mittal Vs. Union of India holding at Paragraph 10 as follows:- “10. The Tribunal dismissed the application by the impugned judgment on the following reasoning: (a) The selection panel was merely a list of persons found suitable and does not clothe the applicants with any right to appointment. The recommendations of the Selection Board were directory and not mandatory and were not therefore enforceable by issue of a writ of mandamus by the Court. (b) The letter of Ministry of Home Affairs dated 8.2.1982 which extends the life of panel till exhausted is not relevant in the present case. In the circumstances the life of the panel in this case cannot go beyond 18 months and as such expired in July 1989. It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government’s approach in this case was wholly unjustified.” - 8 - The next question is the nature of relief to be granted today. “Enumerator” is a person who does compilation work of data. Learned counsel for the petitioner acknowledged that appointment today to the petitioner shall leave an employment duration of less than even six years before he reaches superannuation. Nonetheless, he contended that since the petitioner has been wronged, he must be given appointment from 25.3.1991. He shall not claim salary but would only seek protection of notional seniority inclusive of time bound promotion etc. In that event he would be deemed to have completed the qualifying service for grant of pension and shall have the benefits of superannuation from service. That would be adequate compensation to him for the opportunity lost due to the action of the respondents in otherwise what would have been an active service career. The fact of the matter is that those who participated in the selection process along with the petitioner came to be so appointed in 1991 itself. The petitioner came to this Court in time. The writ petition has remained pending before this Court for 16 odd years. Even if the fairness of the petitioner not to claim salary is acknowledged by the Court, it cannot lose sight of the cascading effect that may follow if he is granted notional seniority. It shall undoubtedly ruffle feathers of those who may be sanguine of their seniority as of date. Another issue which cannot be lost sight of by us is - 9 - that the petitioner has not actually worked with the Government. Pension is not a matter of right but a statutory claim based on qualifying service given in recognition and acknowledgment of the good services rendered by a Government employee. The petitioner has in fact not rendered any service to the government. Even if we were to accept the argument that the petitioner could not render service for no fault of his and that grant of pension to him would be adequate compensation for the wrong done to him, we cannot be oblivious and shut our eyes to the financial and other implications of the matter upon the respondents if the petitioner was to be treated by fiction to be a person fulfilling the qualifying service for purposes of pension. Undoubtedly, it would impose a continuing financial burden on the State Government in respect of an employee who never worked for it. The quid pro quo for grant of pension does not exist. We, therefore, find it difficult on the aforesaid reasoning to grant the relief of appointment despite the fairness shown on the part of the petitioner. Rule 27 of the Bihar Pension Rules states that it includes gratuity. Rule 28 states that Pensionable Service- means service which qualifies the Government servant performing it to receive pension from general revenues (emphasis ours). Having arrived at the conclusion that the petitioner - 10 - has been wronged that the State adopted an attitude of fishing in the hope that the bait will stick somewhere but keeping in mind that he would hardly have a few insignificant years of service left and that pension was a continuing benefit for actual service rendered, we consider it proper to mould the grant of relief by directing payment of compensation of 1.5 lakhs to the petitioner, to be paid within a maximum period of four months from the date of receipt/production of a copy of this order. The writ application stands allowed. No order as to costs. Patna High Court Dated 12th of July 2010 P. Kumar/ NAFR (Navin Sinha, J.) (Jyoti Saran, J.)