Case: SUBHASH KUMAR Vs. THE STATE OF BIHAR &amp; ORS

2020 relegated the petitioner to Bihar Education Service on a justification being tendered that action has been taken in compliance of the order of this Court dated 23rd October, 2019 which is a subject matter of challenge at the instance of the petitioner in the instant proceedings. 7. Learned counsel for the petitioner submits that petitioner has no demur regarding appointment of Baldeo Choudhary who has finally succeeded in his own rights on dismissal of the appeal preferred by the Commission before this Court in Civil Appeal No.3307 of 2015 but he is aggrieved of relegating his cadre from Bihar Administrative Service to Bihar Education Service after he had rendered almost 15 years of service who was neither arrayed as a party to the writ petition nor been heard at any stage, is in violation of the principles of natural justice and in disregard of the order of this Court dated 23rd October, 2019. 8. Learned counsel further submits that this Court under its order dated 23rd October, 2019 confined consideration for appointment of Baldeo Choudhary in his own rights w.e.f. 29th November, 2012 but the directions of this Court have been completely misread by the authorities and the wholesome revision of the merit list has been undertaken by the Commission which was never intended by this Court in its order dated 23rd October, 2019 disturbing the cadre allotment of the persons who were selected on the recommendation made by the Commission held pursuant to an advertisement dated 29th December, 2001 and rightly so, since none of them was arrayed as party to the writ petition nor been heard and further submits that overturning the select list after 15 years and passing of an order dated 23rd July, 2020 having adverse civil consequences without hearing the person is indeed in violation of principles of natural Justice and such action of the respondents in the given facts and circumstances at least qua the petitioner is not sustainable in law. 9. Per contra, learned counsel for the respondents, while supporting the order impugned, submits that the commission has no option but to revise the select list in compliance of the order of this Court dated 23rd October, 2019 after placing Baldeo Choudhary at his place in the order of merit and in consequence, the petitioner being last in the open category in Bihar Administrative Service, rightly relegated from Bihar Administrative Service to Bihar Education Service vide order dated 23rd July, 2020 and submits that their action being in compliance of the order of this Court needs no interference. 10. We have heard the learned counsel for the parties and with their assistance perused the material available on record. 11. This Court was conscious of the fact that although the Division Bench of the High Court in its judgment dated 29th November, 2012 moulded the relief confined to the writ petitioner Baldeo Choudhary as his case is sui generis, disturbing the select list which was recommended by the Commission of the candidates who had participated in the 45th Combined Competitive Examination held pursuant to an advertisement dated 29th December, 2001 after serving for almost 15 years in their respective cadre assigned by the State Government will not be in the interest of justice. But as the Commission had an apprehension in implementing order of the Division Bench dated 29th November, 2012, this Court ruled out the apprehension and made a further clarification under its order dated 23rd October, 2019. 12. In the given circumstances, what was required for the respondents was to place the writ petitioner (Baldeo Choudhary) at the appropriate place in the select list which was recommended by the Commission in reference to 45th Combined Competitive Examination and to be considered for appointment to a particular service to whom he was suitable as per his revised placement in the select list with seniority and other notional benefits of service including continuity of service, increment, etc., to which he was entitled for in compliance of the order of this Court dated 23rd October, 2019. 13. We find justification in what being contended by learned counsel for the petitioner to hold that relegating the petitioner to Bihar Education Service after he had rendered 15 years of service as member of the Bihar Administrative Service entail adverse civil consequences and indeed the order impugned dated 23rd July, 2020 could not have been passed by the respondents without affording him an opportunity of hearing and is in violation of the principles of natural justice. 14. The defence which has been tendered by the respondents in their counter affidavit that impugned action has been taken in compliance of the order of this Court dated 23rd October, 2019 which in our view is completely misplaced and this Court under its order dated 23rd October, 2019, left no manner of doubt in its implementation and there was no justification left for the Commission to hold an exercise and revise the select list of 45th Combined Competitive Examination held pursuant to the advertisement dated 29th December, 2001 and acted upon in 2005 after a lapse of 15 years at the same time the case of Baldeo Choudhary being sui generis was to be considered for appointment w.e.f. 29th November, 2012 in terms of the revised recommendations made by the Commission qua him without disturbing the cadre/seniority of the persons including the petitioner in Bihar Administrative Service to which he was otherwise entitled for in compliance of the order of this Court dated 23rd October, 2019 assigning him seniority and the consequential benefits etc. w.e.f. 29th November, 2012. 15. The respondents in our view, were not at all justified in passing of the order impugned dated 23rd July, 2020 which was neither observed by the Division Bench of the High Court nor expressed by this Court in its order dated 23rd October, 2019 relegating the petitioner from Bihar Administrative Service to Bihar Education Service after he had rendered 15 years of substantive service in the cadre of Bihar Administrative Service.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. This Court was conscious of the fact that although the Division Bench of the High Court in its judgment dated 29th November, 2012 moulded the relief confined to the writ petitioner Baldeo Choudhary as his case is sui generis, disturbing the select list which was recommended by the Commission of the candidates who had participated in the 45th Combined Competitive Examination held pursuant to an advertisement dated 29th December, 2001 after serving for almost 15 years in their respective cadre assigned by the State Government will not be in the interest of justice. But as the Commission had an apprehension in implementing order of the Division Bench dated 29th November, 2012, this Court ruled out the apprehension and made a further clarification under its order dated 23rd October, 2019.12. In the given circumstances, what was required for the respondents was to place the writ petitioner (Baldeo Choudhary) at the appropriate place in the select list which was recommended by the Commission in reference to 45th Combined Competitive Examination and to be considered for appointment to a particular service to whom he was suitable as per his revised placement in the select list with seniority and other notional benefits of service including continuity of service, increment, etc., to which he was entitled for in compliance of the order of this Court dated 23rd October, 2019.13. We find justification in what being contended by learned counsel for the petitioner to hold that relegating the petitioner to Bihar Education Service after he had rendered 15 years of service as member of the Bihar Administrative Service entail adverse civil consequences and indeed the order impugned dated 23rd July, 2020 could not have been passed by the respondents without affording him an opportunity of hearing and is in violation of the principles of natural justice.14. The defence which has been tendered by the respondents in their counter affidavit that impugned action has been taken in compliance of the order of this Court dated 23rd October, 2019 which in our view is completely misplaced and this Court under its order dated 23rd October, 2019, left no manner of doubt in its implementation and there was no justification left for the Commission to hold an exercise and revise the select list of 45th Combined Competitive Examination held pursuant to the advertisement dated 29th December, 2001 and acted upon in 2005 after a lapse of 15 years at the same time the case of Baldeo Choudhary being sui generis was to be considered for appointment w.e.f. 29th November, 2012 in terms of the revised recommendations made by the Commission qua him without disturbing the cadre/seniority of the persons including the petitioner in Bihar Administrative Service to which he was otherwise entitled for in compliance of the order of this Court dated 23rd October, 2019 assigning him seniority and the consequential benefits etc. w.e.f. 29th November, 2012.15. The respondents in our view, were not at all justified in passing of the order impugned dated 23rd July, 2020 which was neither observed by the Division Bench of the High Court nor expressed by this Court in its order dated 23rd October, 2019 relegating the petitioner from Bihar Administrative Service to Bihar Education Service after he had rendered 15 years of substantive service in the cadre of Bihar Administrative Service.