IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1961 of 2010 In (CIVIL WRIT JURISDICTION CASE 11528/2004) Ashok Kumar Mandal ,Son of Late Medi Prasad Mandal, resident of village-Bhakharpur,Police Station-Pirpaiti, District-Bhagalpur. ….. Petitioner/Appellant Versus 1. The State of Bihar. 2. The Chief Secretary, Bihar, Patna. 3. The Commissioner-cum-Secretary, Department of Personnel and Administrative Reforms, Bihar, Patna. 4. The Hon’ble High Court through the Registrar General, Patna, Bihar. ……Respondents/Respondents. ---------------------------------- 4 16.11.2011 Heard Mr.Bindyachal Singh, learned counsel for the petitioner, Md.Anis Akhtar, A.C. to G.A.3, learned counsel for the State and Mr.D.K.Sinha, learned counsel for the High Court, Patna. This Appeal is directed against the judgment and order of the learned single Judge dated 7.9.2010 whereby writ petition preferred by the appellant has been dismissed. The prayer in the writ petition was to appoint the petitioner/appellant on the post of peon in Civil Court, Saharsa pursuant to the advertisement published on 14.1.2002 which was for appointment against posts of clerks and peons in the Civil Court at Saharsa. The Writ Court has noticed the relevant facts correctly. The petitioner had applied against the Scheduled Tribe category under the 1992 Act providing for reservation in Government Services. Under that, Schedule Tribe was entitled to 10 % as against total reservation of 50%. The advertisement did not specify any terms or 2 conditions for reservation and hence the 1992 Act governing reservation in State of Bihar was to govern the appointments. The applicants for the post of peon were to face an interview which was held in the case of the petitioner on 22.8.2002.The result was published on 9.10.2002. Out of 56 candidates recommended for appointment, 43 appointments were made after approval by the High Court. Admittedly, petitioner’s name was not in the list of the recommended candidates. The petitioner believed that on account of amendment in the Reservation Act introduced through Act No.17 of 2002 w.e.f.27.8.2002, the chances of petitioner’s selection and appointment had suffered adversely because the percentage of reservation for Scheduled Tribes in Bihar was reduced from 10% to 1%. According to petitioner, on account of advertisement being made earlier than a amendment which came into force on 27.8.2002, the percentage of reservation for Scheduled Tribe should have been 10%. We are in agreement with the views of the writ Court that since the petitioner is not included in the list of candidates found eligible and selected, he cannot claim any benefit of reservation, be it 1% or 10%.It is only after selection in accordance with the advertisement and the rules covering selection that the benefit of reservation is to be applied. Those, who occupy higher place in the panel, though belonging to reserved category, have to be included in the general category and thereafter , the 3 remaining candidates who are selected and recommended as suitable, are entitled to be given benefit of reservation if they belong to reserve category and if reserved posts are available. In case no candidate selected or recommended as suitable belongs to the reserved category, at best the reserved posts can be carried forward. No unrecommeded or unsuccessful candidate can claim reserved seat as a matter of right only because he belongs to a reserved category. Other issues were also raised before us by referring to decisions of the Supreme Court and of this Court laying down the law that when an advertisement is issued for recruitment, the rules governing selection and recruitment at the time of advertisement shall govern the selection and appointment process. There is no quarrel with the said proposition because in a large number of cases the aforesaid principle has been re-iterated on the ground that a person acquires various kinds of rights under a selection process which require that his case be considered as per the existing provisions of rules and law. If a person under the earlier existing reservation law was entitled to be treated as a member of one of the reserved caste or groups, such right can not be taken away mid way of selection process unless it is so provided by an Act of competent legislature, which alone has power to legislate even retrospectively subject to such law meeting other constitutional requirements .The legislature can interfere with a selection process by making the law retrospective in explicit terms or by necessary implication. 4 But in a recruitment process, no vested right can be taken away by Executive decision or by rules framed subsequently. In the present case the terms of the advertisement have not been violated by the authorities. So far as the law providing for reservation is concerned, it had to undergo changes on account of bifurcation of the State of Bihar through a Re- organization Act, which came into force with effect from 15.11.2000.The population of ST under the State of Bihar got reduced significantly with corresponding rise in the State of Jharkhand where such population is dense and concentrated. The State of Jharkhand created a new reservation policy providing for 32% of reservation for S.T.The State of Bihar followed suit resulting into Bihar Act 17 of 2002 already noticed earlier. The percentage of reservation has been reduced on account of reduced population of ST in the State of Bihar and therefore, the actual benefit of reservation of ST as a whole remains unchanged. The ST population left in Bihar has not suffered reduction in chances of getting benefit of reservation. If earlier the number of ST was 100 having benefit of 10% of reservation, now their number, if theoretically 10, shall get the same benefit with 1% of reservation. Hence, by amending Act 17 of 2002, no vested rights of ST candidates have been adversely affected. Had the definition of reserved group been changed so as to reduce the status of the petitioner from one of reserved candidate belonging to ST to that of unreserved category, the matter would have been different and may have amounted to interference with a vested right under the 5 unamended law as standing at the time of advertisement. The reservation law as existing prior to selection and appointment has rightly been followed in this case. Under the facts and circumstances of the case we agree with the writ court that the petitioner has not been deprived of any right as a ST candidate .No mandamus could have been issued directing for including him in the list of successful candidates. We find no merit in this appeal and accordingly it is dismissed. Sudha (Shiva Kirti Singh.J) (Ahsanuddin Amanullah, J.)