CIVIL WRIT JURISDICTION CASE No.7200 of 2011 ****** In the matter of an application under Article 226 of the Constitution of India. ******** Pravin Kumar, son of Sri Rajeshwar Prasad Singh, resident of Village- Karjan, P.S. Athmalgola, District- Patna. .... .... Petitioner. Versus 1. The State of Bihar. 2. Chairman, Bihar State Electricity Board, Vidyut Bhawan, Patna. 3. Secretary, Bihar State Electricity Board, Vidyut Bhawan, Patna. 4. Joint Secretary, Bihar State Electricity Board, Vidyut Bhawan, Patna. 5. Principal Secretary, Science and Technology Department, Govt. of Bihar, Patna. 6. Director, Science and Technology Department, Govt. of Bihar, Patna. 7. Placement Coordinator, Department of Science and Technology, Govt. of Bihar, Patna. 8. The Principal, Govt. Polytechnic, Gulzarbagh, Patna-7. 9. The Principal, New Govt. Polytechnic, Patliputra, Patna. 10. The Principal, Govt. Women‟s Polytechnic, Sahay Nagar, Phulwarisharif, Patna-6. 11. Principal, Govt. Polytechnic, Darbhanga. 12. Principal, Govt. Polytechnic, Muzaffarpur. 13. Principal, Govt. Polytechnic, Begusarai. 14. Principal, Govt. Polytechnic, Chapra. 15. Principal, Govt. Polytechnic, Gopalganj. 16. Principal, Govt. Polytechnic, Gaya. 17. Principal, Govt. Polytechnic, Bhagalpur. 18. Principal, Govt. Polytechnic, Purnea. 19. Principal, Govt. Polytechnic, Saharsa. 20. Principal, Govt. Women‟s Polytechnic, Muzaffarpur. .... .... Respondents 21. Suryadeo Kishore, S/o Yugal Prasad. 22. Sanjeet Kumar, S/o Arjun Raut. 23. Shankar Kumar, S/o Ganga Mahto. 24. Vivek Kumar, S/o Vinod Prasad 25. Prashant Kumar Jaiswal, S/o Pradeep Kumar. 26. Dharmendra Kumar, S/o Umesh Das. 27. Krishna Kumar Yadav, S/o Chhedilal Yadav. 28. Rajnarayan Thakur, S/o Harendra Thakur. 29. Sarvesh, S/o Sri Sunil Kumar. 30. Pankaj Kumar, S/o Dhruvlal Thakur. 31. Rudreshwar Kumar Singh, S/o Sudhir Prasad Singh. 32. Shreekant Kumar,S/o Rampravesh Paswan. 33. Jitendra Kumar, S/o Rajendra Prasad. 34. Pradeep Kumar, S/oaVishundeo Prasad Chourasiya. 35. Raju Kumar Soni, S/o Damodar Sah. 36. Mukesh Kumar, S/o Yogendra Kumar. 37. Deepak Kumar, S/o Mahendra Prasad. 2 38. Chandan Singh Kiron, S/o Shashi Bhushana Prasad Singh Kiron. 39. Vivek Kumar, S/o Amarendra Singh. 40. Jyoti Prakash Patel, S/o Dharamraj Rai. 41. Pappu Kumar, S/o Ram Naresh Singh. 42. Ranjit Prasad, S/o Sri Rajendra Prasad. 43. Shambhu Kumar, S/o Kamlesh Yadav. 44. Kunal Kumar, S/o Shambhu Paswan. 45. Mithilesh Kumar, S/o Gopal Prasad. 46. Amit Kumar, S/o Prakash Chandra Singh. 47. Vikash Kumar, S/o Late Nand Kishore Prasad. 48. Mrityunjay Kumar, S/o Sitaram Chaudhary. 49. Ravi Kumar, S/o Ram Avtar Prasad. 50. Vikash Kumar, S/o Baban Kumar Singh. 51. Kumar Pankaj, S/o Rama Binod Sah. 52. Raja Kumar, S/o Shivnath Paswan. 53. Lalit Kumar, S/o Ram Chandra Mahto. 54. Ravi Kumar Magdhiya, S/o Ashok Kumar. 55. Sarvan Kumar, S/o Sri Balgobind Prasad. 56. Alok Kumar, S/o Shri Hari Prasad. 57. Ravi Bhashkar, S/o Shree Ashok Kr. Singh. 58. Mrityunjay Kumar, S/o Pramod Prasad. 59. Ashok Kumar, S/o late Janardan Prasad. 60. Alok Kumar, S/o Kameshwar Thakur. 61. Saroj Kumar, S/o Ram Padarth Yadav. 62. Mithlesh Kumar, S/o Ayodhya Choudhary. 63. Narendra Kumar Niraj, S/o Bishnu Narayan Mandal. 64. Ratnesh Chandra, S/o Mahesh Prasad. 65. Mantoo Kumar, S/o Laleshwar Prasad. 66. Bipin Bihari Keshyap, S/o Chandra Shekhar Prasad. 67. Pratibha Priyadarshini, D/o Shri Dayanidhi Prasad Roy. 68. Guriya Kumari, D/o Shri Upendra Roy. 69. Madhu Kumari, D/o Shri Ravindra Singh. 70. Puja Kumari, D/o Shri Binay Kumar Singh. 71. Niraj Kumar, S/o Chandra Bhushan Mehta. 72. Santosh Kumar, S/o Shivmangal Pandit. 73. Rakesh Kumar, S/o Bhuneshvan Roy. 74. Bimlesh Kumar, S/o Dhananjay Jha. 75. Dilip Kumar, S/o Mahendra Choudhary. 76. Ravi Shankar Kumar, S/o Kamlesh Prasad. 77. Chintoo Pandey, S/o Bishwambhar Pandey. 78. Sudhakar Kumar, S/o Arjun Prasad Choudhary. ……Intervener-Respondents. ******* For the Petitioner: Mr. Arbind Kumar and Mr. Prem Chand Yadav, Advocates. For the S t a t e: Mr. Piyush Lal, A.C. to AAG-1 For the Board: Mr. Anand Kumar Oha, Advocate For the private Respondents: Mr. Sanjeet Kumar, Advocate. ******* 3 P R E S E N T THE HON.BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON’BLE MR. JUSTICE VIKASH JAIN ******* S.K. Katriar, J. The sole petitioner has preferred this writ petition in a representative capacity for and on behalf of all the candidates eligible for appointment to the posts of Junior Electrical Engineer in the respondent Bihar State Electricity Board (hereinafter referred to as „the Board‟). He challenges the mode and manner of recruitment of 273 junior engineers from a very restricted category of candidates of the out-going batch of the Government Polytechnics in Bihar. 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. The respondent Board is in the process of a massive transformation under a Central legislation, namely, the Electricity Board Act 2003 (hereinafter referred to as “the Central Act”), and may also be covered by the Bihar Right to Public Service Act, 2011, Bihar Act 4 of 2011 (hereinafter referred to as “the Bihar Act”). The last recruitment by the Board as per the conventional method for similar posts was conducted in 2007. For reasons not disclosed in the present proceedings, the Board did not make appointments thereafter till it took the decision to do it by the impugned process. In order to meet the emergent situation created by enforcement of the Central Act, and the impending enforcement 4 of the Bihar Act, coupled with non-recruitment since 2007, the Board decided to recruit 273 junior electrical engineers from amongst the outgoing batch of the 14 Government Polytechnics in the State of Bihar. The Board decided to call for lists of candidates from these 14 institutes of the Government of Bihar on the basis of the results up to pre-final year, i.e. the first two years of the course, of the out-going batch of electrical branch. The Board issued letter dated 4.3.2011 (Annexure-1 series), to the Government of Bihar, in the Department of Science and Technology, calling for such list of candidates from the out-going batch of the 14 institutes of the State Government and impugned herein. The relevant portion of the communication is reproduced hereinbelow: “vuqjks/k gS fd bl iz;kstukFkZ jkT; ds lHkh ljdkjh ikSfyVsduhd laLFkkuksa dks ;g funsZ’k nsus dh d`ik djsaxs fd duh; fo|qr vfHk;arkvksa ds fu;kstu gsrq izh QkbZuy o"kZ rd ds fjtYV ds vk/kkj ij vius&vius laLFkkuksa ds fo|qr vfHk;kaf=dh fo"k; ds vafre o"kZ ds fo|kfFkZ;ksa dh es/kk lwph muds vadks ds izfr’kr ds lkFk fuEu izdkj ls ,d lIrkg ds Hkhrj cksMZ dks miyC/k djkus dh d`ik djsa%& Dze la0 vkj{k.k oxZ fo|kkfFkZ;ksa dh la[;k 1 vukjf{kr 'kh"kZ 25 fo|kFkhZ 2 vuqlwfpr tkfr 'kh"kZ 08 fo|kFkhZ 3 vuqlwfpr tu tkfr 'kh"kZ 01 fo|kFkhZ 4 vfr fiNM+k oxZ 'kh"kZ 09 fo|kFkhZ 5 fiNM+k oxZ 'kh"kZ 06 fo|kFkhZ 6 fiNM+k oxZ dh efgyk 'kh"kZ 02 fo|kFkhZ 5 2.1) The letter dated 11.4.2011 (Annexure-1 series), from the Board to the different Polytechnics, is by way of follow- up action, and impugned herein. The Board has received a list of 400 candidates from these 14 institutes for appointment to 273 posts. In other words, the selection is confined to the top candidates of the electrical branch of the 14 Polytechnics of the State Government of the outgoing batch. This has to be read with the statement in the Board‟s counter affidavit that only those of such candidates shall be finally selected who score first division in the final examination which takes care of their performance in the third year. The selection process has been completed. However, in view of our interim order passed on 17.5.2011, appointment letters have not been issued to the candidates. We are informed by learned counsel for the Board that the results of the out-going batch have been published on 9.7.2011. 3. While assailing the validity of the impugned method of recruitment, learned counsel for the petitioner submits that the selection process is confined to a small group of eligible candidates of the out-going batch to the complete exclusion of the candidates who have already passed out during the sessions 2004- 07, 2005-08, 2006-09, 2007-10. He submits in the same vein that the impugned method is so restricted as to confine it to the students 6 of the electrical branch only, in contra-distinction to their advertisement of 2007 where the students of electronics were also considered. He next submits that the Board has been created by an Act of the Legislature, is a public-sector undertaking of the Government of Bihar, and has to conform to the mandatory requirements of Articles 14 and 16(1) of the Constitution which is possible only if the vacancies are advertised and all eligible candidates get the opportunity to apply for consideration. He further submits that the impugned method of selection, fashionably described by the Board as „Campus Selection‟, is generally resorted to by the private sector who are not required to conform to the constitutional norms. He also submits that the impugned selection process completely eliminates experience as a factor which is of immense importance to an industry. He has also distinguished the Division Bench judgment of the Kerala High Court, and that of a learned Single Judge of the Madras High Court, relied on by the learned counsel for the Board. 4. Learned counsel for the Board has supported the impugned action. He submits that the same has been adopted to meet an emergent situation, so that the power generation and distribution in the State of Bihar does not collapse with particular emphasis on the implementation of the Central Act, and the Bihar 7 Act. He submits in the same vein that the Central Act has been implemented in all the States of the country, except the State of Bihar and one more. He also submits that the impugned method of selection, known in common parlance described as „campus selection‟, has been widely adopted by different public sector undertakings in this country. He submits in the same vein that the writ petitioner completely overlooks an important reality that the Board is after all engaged in activities which are essentially commercial in nature. He relies on the following judgments: (i) Judgment of a Division Bench of the Kerala High Court dated 20.07.2005, passed in W.P.(C) No.17789 of 2004 (Federation of Central Government SC/ST Employees vs. Kochi Refineries Ltd.). (ii) The judgment of a learned Single Judge of the Madras High Court of 25.11.2010, passed in W.P. No.5554 of 2009 and M.P. Nos.1 and 2 of 2009 (Chennai Petroleum Employee‟s Union vs. The General Manager H.R. Petroleum Corporation Ltd.), to the same effect, and is based on the aforesaid judgment of the Kerala High Court. He lastly submits that it is a one-time measure which will 8 leave a large number of vacancies unfilled and shall be filled up by the conventional method. 5. Learned counsel for respondent nos.5 to 20 have supported the impugned action, and have adopted the contentions advanced on behalf of the Board. 6. Respondent nos.21 to 78 are party respondents, have been impleaded by order dated 13.7.2011, and are candidates who are part of the selection process. They have supported the impugned action 7. We have perused the materials on record and considered the submissions of the learned counsel for the parties. The issues are not free from difficulties, and much can be said on both sides. We, however, take the view that we have taken for the reasons indicated hereinafter. As stated hereinabove, the respondent-Board is in the throes of a massive transformation by way of implementation of the Central Act, and the Bihar Act which is about to be implemented. We take notice of the position, as per the submission advanced on behalf of the Board, that the central Act has been implemented in all the States of the country except the State of Bihar and one more State. The two Acts in their combined effect completely restructure and reorient the Board, almost to the extent of metamorphosis, and are intended to make it 9 far more efficient and answerable, to cope up with the requirements which have emerged after globalization of the Indian economy. These two Acts also incorporate prospects of generation and distribution of power by private entrepreneurs, thereby giving spur to commercial competition. 7.1) We further take judicial notice of the fact that appointment to this category of employees was last made by the Board in the year 2007. Appointments have not been made for more than four years in a situation where the Central Act has already been brought on the statute book, unimplemented in Bihar, and with enforcement of the Bihar Act round the corner. We can, therefore, see the over-arching anxiety on the part of the Board, and also of the State Government, to ensure implementation of the provisions of the two Acts without further loss of time. 7.2) This background substantially explains the extra- ordinary step taken by the Board to tide over the emergent situation. 8. We now pass on to another aspect of the matter, whether or not the solution to meet the emergent situation is arbitrary, or just and reasonable. Campus selection is really given to the commercial world on the non-governmental side or the instrumentalities of the government, i.e. private entrepreneurs, who 10 are not „State‟ within the meaning of Article 12 of the Constitution, and are not required to conform to the constitutional norms. But then the Board was earlier, and would now in far greater measure under the two Acts in question, be discharging duties which will be essentially commercial in nature. Law is well settled that all public employment in this Country is a national wealth and every citizen should have unrestricted access to the same which is possible only if the vacancies are given wide publicity, so that every eligible person has the opportunity to apply for consideration in accordance with law. We must emphasise that this principle of law requiring strict adherence to the constitutional norms with respect to public employment apply with all its rigours to government offices exercising sovereign and regal functions. In view of the scheme of the Central Act and the Bihar Act, we are convinced that the Board is discharging duties which are essentially of commercial nature, and is scheduled to be in line for competition with the private sector. Law is equally well settled that administration must be allowed some play in the joints. The requisite latitude must be allowed to the Board to make appointments as per its own volition, which may not strictly conform to the constitutional norms, but should surely be just and reasonable and on objective basis so that it may have the requisite leeway to make a reasonable 11 classification which must be founded on a reasonable differentia which distinguishes persons or things that are grouped together from others left out of the group, and that the differentia must have a rational relation to the object sought to be achieved by the impugned action. 9. The classic enunciation of law in this behalf in the judgment of the Supreme Court in the case of Ram Krishna vs. Justice Tendolkar and others, AIR 1958 SC 538, may be recalled. Paragraph 11 of the judgment is reproduced hereinbelow: 11. The principal ground urged in support of the contention as to the invalidity of the Act and/or the notification is founded on Article 14 of the Constitution. In Budhan Choudhry v. State of Biha, 1955-1 SCR 1045: ((S) AIR 1955 SC 191) (A) a Constitution Bench of seven Judges of this Court at pages 1048-49 (of SCR): (at p.193 of AIR) explained the true meaning and scope of Article 14 as follows: “The provisions of Article 14 of the Constitution have come up for discussion before this Court in a number of cases, namely, Chiranjit Lal v. Union of India, 1950 SCR 869: (AIR 1951 SC 41) (B), State of Bombay v. F.N. Balsara, 1951 SCR 632: (AIR 1951 SC 318) (C), State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284: (AIR 1952 SC 75) (D), Kathi Raning Rawat v. State of Saurashtra, 1952 SCR 435: (AIR 1952 SC 123) (E), Lachmandas Kewalram v. State of Bombay, 1952 SCR 710: (AIR 1952 SC 235) (F), Qasim Razvi v. State of Hyderabad, 1953 SCR 589: (AIR 1953 SC 156) (G) and Habeeb Mohamad v. State of Hyderabad, 1953 SCR 661: (AIR 1953 SC 287) (H). It is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of 12 permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.” 10. Coming to the facts and circumstances of the present case, we are able to see that the Board has called for a list of 25 top students of the general category, and lesser number of top candidates for each reserved category, strictly and most objectively on the basis of their performance in first two years of the course. The further guarantee of objectivity and elimination of favouritism is ensured by the statement made in the Board‟s counter affidavit that only those students of the out-going batch shall be selected who score first division in the final examination. These two objective factors, in our view, ensure selection on merit, and eliminate chances of arbitrariness and favouritism. The yard-stick prescribed by the Supreme Court in the case of Ram Krishna Dalmia vs. Justice S.R. Tendolkar (supra), is clearly satisfied in the present case. 11. We must consider the two judgments relied on by the learned counsel for the Board. Those decisions deal with 13 comparable situations. The employers were public sector undertakings of the Government of India who resorted to campus selection, and have been approved by the two High Courts, and support the Board‟s case. Really the selection process of the Board in the instant case stands on a better footing than the situation obtaining in the two judgments because of the two factors indicated hereinabove, namely, the best students most objectively selected from the out-going batch read with the condition of scoring first division marks in the final examination, which were absent in the two judgments. 12. We note the serious deficiency in the present selection process that the Board ought to have formulated a detailed procedure before they proceeded with the current selection process. However, we ignore it in view of the aforesaid circumstances, namely, the emergent situation, and creation of the zone of selection on a very objective and qualitative basis. We also note the submission of the learned counsel for the Board that the present selection process shall leave a large number of vacancies of this category unfilled, and the Board shall have the requisite time to make the recruitment process as per the conventional method which shall be completed within a period of six months from today. 14 13. In the result, we dismiss this writ petition with the undertaking given by the Board indicated in paragraph 12 hereinabove. In the circumstances of the case, there shall be no order as to costs. (S.K. Katriar, J) Vikash Jain, J. I agree. (Vikash Jain, J.) Patna High Court, Patna. Dated the 26th day of July, 2011. S.K.Pathak/ (AFR).