IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1612 of 2011 In Civil Writ Jurisdiction Case No. 10720 of 2006 With Interlocutory Application NO. 7482 of 2011 In Letters Patent Appeal No. 1612 of 2011 ====================================================== 1. The State of Bihar through the Commissioner Cum-Secretary, Department of Transport, Government of Bihar, Patna. 2. The State Transport Commissioner, Government of Bihar, Patna. 3. The District Transport Officer, Patna. .... .... (Respondents in the writ petitioner)/Appellant/s Versus Dinesh Paswan, S/o Late Ram Lakhan Paswan, R/o Village-Mirchaiya Tola, P.O.-Gulzarbagh, P.S.-Alamganj, District-Patna, posted as Assistant D.T.O Officer, Patna. .... .... (Writ Petitioner)/Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Ashok Kumar Keshari, AAG XI with Mr. Ujjwal Kumar Sinha, A.C. to AAG XI For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 2 03-11-2011 This Appeal under Clause 10 of the Letters Patent is preferred by the State Government 197 days beyond the period of limitation against the judgment and order dated 3rd December 2010 passed by the learned single Judge in above CWJC No. 10720 of 2006. The matter at issue is promotion of the writ petitioner, one Dinesh Paswan, a Scheduled Caste employee, to the post of Enforcement Sub Inspector reserved for a Scheduled Patna High Court LPA No.1612 of 2011 (2) dt.03-11-2011 2 / 5 2 Tribe candidate in the Road Transport Department, Government of Bihar. Reservation in the State service is governed by the Bihar Reservation of Vacancies in posts and service (For Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991 (hereinafter referred to as ‘the Act of 1991). The said Act applies, inter alia, to the Government offices and departments. Clause (e) of Section 2 thereof defines “recruitment year” to mean “the calendar year during which a recruitment is actually made”. Section 4 thereof provides, inter alia, for reservation for Scheduled Castes and Scheduled Tribes in the matter of promotion. Sub- section (6) of Section 4 thereof provides for carrying forward of the reserved vacancies for three recruitment years in case of non-availability of a suitable candidate from the Scheduled Castes and Scheduled Tribes. Sub-section (6)(a) reads as under: “In case of non-availability of suitable candidates from the Scheduled Castes and Scheduled Tribes for appointment and promotion in vacancies reserved for them, the vacancies shall continue to be reserved for three recruitment years and if suitable candidates are not available even in the third year, the vacancies shall be exchanged between the Scheduled Castes and Scheduled Tribes and the vacancies so filled by exchange shall be treated as reserved for the candidates for that particular community who are actually appointed.” It is the above provision that was pressed in service by the petitioner to claim promotion as an Enforcement Sub Inspector on a vacancy reserved for Scheduled Castes. Patna High Court LPA No.1612 of 2011 (2) dt.03-11-2011 3 / 5 3 It is not in dispute that at the relevant time the appointment of Enforcement Sub Inspector in the Department of Transport was made by promotion. The advertisement was issued in 1991 declaring the vacancies in the post of Enforcement Sub Inspector to be filled in by promotion. Pursuant to the said advertisement, the recruitment process and selection were made in 1997. Admittedly, all the vacancies reserved for Scheduled Castes candidates were filled in. The petitioner although was selected could not be promoted for want of vacancy. It is also not in dispute that the vacancy reserved for Scheduled Tribe candidate could not be filled in for want of suitable candidate. The petitioner, therefore, lodged a claim that after completion of three years from 1997, he was entitled to promotion on the vacancy reserved for Scheduled Tribe candidate as a suitable Scheduled Tribe candidate was not available. The petition was contested by the State Government. According to the State Government, the State Government has, in exercise of power conferred by Section 213 of the Motor Vehicles Act, 1988 read with the proviso to Article 309 of the Constitution, framed Recruitment Rules, 2003 for the post of Enforcement Sub Inspector. According to the said Rules, the vacancies are required to be filled in by direct recruitment. The petitioner, therefore, cannot be appointed as such by promotion. The learned single Judge has rejected the contention on the premise that 2003 Recruitment Rules cannot defeat the right to promotion accrued to the petitioner in or around the year 2000. Therefore, the present Appeal. Learned Advocate Mr. Ashok Kumar Keshari has appeared for the appellant State of Bihar. He has submitted that Patna High Court LPA No.1612 of 2011 (2) dt.03-11-2011 4 / 5 4 the learned single Judge has failed to appreciate that the aforesaid Section 4 (6) (a) of the Act of 1991 contemplates ‘a recruitment year’ and not ‘a calendar year’. The recruitment year has been defined to mean a calendar year during which the recruitment is actually made. He has submitted that the learned single Judge has erred in holding that a right to promotion had accrued to the petitioner on completion of three calendar years from the last promotion made in 1997. He has submitted that since 1997 no recruitment has taken place. Therefore, until 2003 no right to promotion had accrued to the petitioner. Since 2003 the only manner in which the post can be filled in is by direct recruitment. He has submitted that the statutory Rules of 2003 shall prevail over the executive instructions contained in the Circular dated 21st March 1991. We do agree with Mr. Keshari that the statutory Rules of 2003 shall prevail over the executive instructions and that since 2003, in view of the statutory Rules, the recruitment shall be made by direct recruitment in accordance with the statutory Rules. We also agree with Mr. Keshari that the above referred Section 4(6) (a) of the Act of 1991 contemplates ‘a recruitment year’. The recruitment year, as defined in Clause (e) of Section 2 of the Act of 1991, envisages the calendar year in which the recruitment is actually made. That necessarily means that in a calendar year if no recruitment is actually made, such year cannot be said to be ‘a recruitment year’. In other words, the benefit of interchange of reservation contemplated in Clause (a) of Sub-section (6) of Section 4 of the Act of 1991 can be availed of after three recruitment processes and not after three calendar years irrespective of the fact that in any such calendar year no Patna High Court LPA No.1612 of 2011 (2) dt.03-11-2011 5 / 5 5 recruitment had taken place. Though, we do agree with the submission made by Mr. Keshari, we are unable to entertain this Appeal because the State Government has failed to bring the facts either before the learned single Judge or before us. Though, it is vehemently argued that since 1997 no recruitment has taken place, the submission is not supported by factual pleadings/averments. Neither in the writ petition before the learned single Judge nor in Appeal before us, the State Government has made a categorical statement that since 1997 no recruitment process was undertaken and that the three recruitment years contemplated in Clause (a) of Sub-section (6) of Section 4 of the Act of 1991 did not expire until 2003 and that the petitioner was not entitled for being considered for promotion on the vacancy reserved for Scheduled Tribe candidate. In absence of such factual material before us, we cannot grant relief to the appellant- State of Bihar. For the aforesaid reasons, we dismiss this Appeal and the Interlocutory Application. Sujit/- (R.M. Doshit, CJ) (Birendra Prasad Verma, J)