Patna High Court
Ashok Kumar Pathak & Ors vs The State Of Bihar & Ors on 30 March, 2010
Author: Jayanandan Singh
Bench: Jayanandan Singh
CIVIL WRIT JURISDICTION CASE No.7098 OF 1993
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In the matter of an application under Article 226 of the
Constitution of India.
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1.Ashok Kumar Pathak, son of Sri Braj Bihari Pathak, resident
of Baghuwa Tola, P.S. Pirpainti, District- Bhagalpur
2.Siyaram Singh, son of Late Harihar Singh, resident of
village Madhura Simanpur, P.S. Pirpainti, District-
Bhagalpur
3.Smt.Rekha Kumari, wife of Sri Jitendra Kumar Mishra,
resident of Sharma Niwas, 171, Anandpuri, West Boring Canal
Road, P.S. Budha Colony, District- Patna
4.Gita Kumari C/o Sri Ram Pravesh Sharma, resident of village
Jhunathi, P.S. Karpee, District- Jehanabad
................ Petitioners
Versus
1.The State Of Bihar
2.Secretary, Human Resources Development Department,
Govt. of Bihar, Patna
3.Director, Secondary Education, Human Resources Development
Department, Govt. of Bihar, Patna
4.Vidyalaya Seva Board, Bihar, Patna through its Secretary,
6th Floor, Biscomaun Tower, West Gandhi Maidan, Patna-
800001
5.Chairman, Vidyalaya Seva Board, 6th Floor, Biscomaun Tower,
West Gandhi Maidan, Patna-800001.
............Respondents
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For the Petitioners : Mr.Gyanand Roy, Advocate
For the State : Mr.Anil Kumar Jha, Sr.Adv. (G.A.2)
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P R E S E N T
THE HON'BLE MR. JUSTICE JAYANANDAN SINGH
Jayanandan Singh,J: Four petitioners have filed this writ
application for a direction to the respondents to
appoint them on the post of Instructors (Vocational
Education) in Government +2 Schools on the basis of
their selection made pursuant to an advertisement
published in the newspapers on 25.12.1991.
Petitioners have also prayed for holding the
Ordinance No.18 of 1993 promulgated with effect from
27.4.1993, named as Scheduled Castes, Scheduled Tribe and other Backward Classes) (Second Amendment) -2- Ordinance, 1993, as ultra vires, as it made the provisions of the Ordinance retrospective in operation affecting the rights of the petitioners to get appointment on the basis of completed selection process for appointment on the post of Instructors.
2. This writ application was filed on 21.7.1993. However, when the case was taken up on 14.12.1993, learned counsel for the petitioners stated that he would not raise the question of validity of the said Ordinance for the time being. Since it appeared to this Court that the Ordinance was under challenge with some other matters, the case was adjourned. Case was finally admitted for hearing on 16.5.1994 and it was ordered to be listed on 11.7.1994. When the case was taken up by a Division Bench on 13.12.2001 for hearing, learned counsel for the petitioners drew the attention of the Court towards order dated 14.12.1993 which had noticed the stand of learned counsel for the petitioners that he was not going to challenge the validity of the said Ordinance. Hence, the Division Bench directed the case to be placed before an appropriate Bench. Therefore, the case has been listed before a single Bench and finally heard by this Bench.
3. Case of the petitioners is that an advertisement was issued by the Vidyalaya Seva Board on 25.12.1991 (Annexure-2) inviting applications for selection and appointment on the post of Instructors in Vocational Education in different trades. Last date of -3- submission of applications was 31.1.1992. Petitioners applied in time and they were issued interview letters. Between 19.8.1992 to 10.9.1992 petitioners appeared in the interview for the respective trades they had applied. After completion of the interview, Vidyalaya Seva Board prepared select list some time in December, 1992 and forwarded the same to the State Government. The Appointment Committee met on 8.4.1993 to consider the names recommended by the Board and decided the place of postings of the candidates. A copy of the proceedings of the said Appointment Committee dated 8.4.1993 is annexed as Annexure-5 to the writ application. Names of four petitioners figure in the list and their place of postings are also indicated. It is contended that petitioner nos.1 and 2 belong to economically backward category and petitioner nos.3 and 4 belong to female category. However, inspite of assignment of posts to the petitioners by the Appointment Committee, appointment letters were not issued to them. Therefore, they have moved this Court.
4. It appears that while the process of appointment pursuant to the advertisement was pending, the State Government promulgated an Ordinance, namely, Ordinance No.9 of 1993, providing for reservation of vacancy in posts and services for Scheduled Castes, Scheduled Tribes and other Backward Classes, by effecting changes in the Act of 1991. The ordinance changed the reservation criteria provided earlier, -4- and the reservation provided to economically backward classes and female category were removed and replaced by Socially and Economically backward classes. Petitioners got affected by this change as they belong to economically backward category and female category. Subsequently, another Ordinance, namely, Ordinance No.18 of 1993 was promulgated by the State Government which came into effect on 27.4.1993. This Ordinance also introduced some changes in the Act and also introduced a non-obstante clause by making the amendments retrospective in operation. These two amendments came up under challenge before a Bench of this Court in the case of Sharmila Kumari Vs. BPSC and by judgment reported in 1995(1) PLJR 275, the Division Bench held that the amended provision would not affect the right accrued to the candidates under economically backward category and female category prior to the Ordinance coming into force and it would not operate retrospectively. This judgment of the Division Bench was squarely to the benefit of the petitioners. However, it appears that the State Government moved the Apex Court against this judgment in Civil Appeal No.9763 of 1996. The appeal of the State Government was allowed by the Apex Court by its order dated 23.9.1998 which held that the Ordinance would have retrospective operation. However, non- obstante clause contained in Ordinance No.18 of 1993 was interpreted by the Apex Court in the following manner :-
"In our opinion, the interpretation -5- placed by the High Court is wholly erroneous. A plain reading of the Non- Obstante clause clearly indicates that the provisions of unamended Section 4 were to apply only to such of those cases in which all formalities of selection had been completed before 20th April, 1993, but the appointment letter had not been issued.
Completion of the process of selection was thus constituted as the relevant factor for the applicability of the old provisions of the Act. All those cases where the process of selection was completed and only the appointment letters had to be issued, were to be treated to be an exception to the amended provisions of the Act. Obviously, if the process of selection comprising of written examination and viva voce had not been completed, the whole exercise had to be done in accordance with the amended provisions of the Act."
5. Learned counsel for the petitioner submits that in view of the interpretation given by the Apex Court about non-obstante clause of the Ordinance, petitioners are fully protected from the operation of the Ordinance against them. He submits that the Apex Court has clearly carved out an exception to the retrospective operation of the Ordinance in respect of the cases in which entire selection process was complete except for issue of appointment letters. He submits that Annexure-5 clearly shows that before the Ordinance No.18 of 1993 came into force, selection process had completed in all respects and even the place of postings were also decided by the Appointment Committee. However, appointment letters could not be issued because of change of policy by the State Government in respect of providing reservation in the said category.
6. Sri Anil Kumar Jha, learned Government Advocate -6- No.2 has submitted that the non-obstante clause in Ordinance No.18 of 1993 covered the cases of the petitioners and the like also and therefore, there was no exception in the operation of the said Ordinance with retrospective effect.
7. This submission of learned Government Advocate No.2 is in the teeth of interpretation given by the Apex Court to the said clause. In view of interpretation of the Apex Court, it is not open to this Court or any authority to interpret the said clause in any other manner. While interpreting the said clause, the Apex Court has clearly held that the cases, in which selection process had completed in all respects but appointment letters had not been issued, shall not be covered by the amended provisions, and unamended Section 4 shall apply to these cases. Therefore, submission of learned Government Advocate No.2 in this respect is fit to be rejected and is hereby rejected.
8. Learned Government Advocate No.2 next submitted that the writ application was filed in 1993 and admitted for hearing thereafter. There was no interim order passed by this Court in the case at any point of time. Therefore, if the reliefs are granted to the petitioners after passage of almost 17 years, that will amount to unsettling the settled position. Referring to the judgment of the Apex Court in the case of S.S.Balu Vs. State of Kerala, reported in (2009)2 S.C.C. 479, he submits that any candidate who -7- may be included in the rank list does not get a right to be appointed and it is always open to the State Government to decide not to proceed to make appointment against the vacancies existing and advertised. Referring to the same judgment, he also submitted that the writ application has to be dismissed on account of delay and laches.
9. This submission of learned Government Advocate No.2 has also no substance. Firstly, petitioners had moved this Court promptly. The delay has occasioned in this Court due to pendency of cases and it is a settled law that no party should suffer for the delay caused in the Court in hearing the matters. Secondly, it is not the question of petitioners' name merely appearing in the select list. Definite case of the petitioners, as evident by Annexure-5, is that their appointments had already been finalized and the place of their postings had also been assigned. It was only that the appointment letters were not issued because they belonged to economically backward category and female category which reservation was abolished by the Ordinance whereas other candidates were appointed pursuant to the said decision of the Appointment Committee. Now, that in view of the interpretation given by the Apex Court to the Non-Obstante clause and protecting cases of those candidates whose selections had been finalized but appointment letters were not issued, petitioners are entitled for issue of appointment letters pursuant to Annexure-5 and -8- their appointment.
10. Learned Government Advocate No.2 further submitted that the petitioners have not shown that the vacancies still exist and therefore, they cannot be appointed against the vacancies or posts as assigned to them by Annexure-5.
11. This submission of learned Government Advocate No.2 has some substance. In absence of any interim order, it is difficult to assume that the posts on which petitioners were assigned are still vacant. Therefore, this Court cannot direct the respondents to appoint the petitioners on the posts indicated against their names in Annexure-5.
12. Learned Government Advocate No.2 next submitted that the amendment was merely explanatory in nature and it only redefined the reservation.
13. This submission of learned Government Advocate No.2 is not correct. Apparently there were changes introduced in the Reservation Policy, and backward and female categories were taken out from the category of Reservation and other categories were included in the same.
14. In the circumstances, in view of the interpretation of the Apex Court to the operation of the said Ordinance and exceptions of the same carved out in the order as quoted above, this Court finds that the petitioners are entitled for consideration for appointment on the basis of their selection and on the basis of resolution of the Appointment -9- Committee, as contained in Annexure-5. It is true that the petitioners cannot now be appointed on the posts as mentioned against their names on which they were assigned by Annexure-5, but they are nevertheless entitled for appointment. Therefore, this Court directs the respondents to consider the cases of the petitioners for appointment on next available vacancies in the respective trades. Orders in this respect must be passed within three months from the date of receipt/production of a copy of this order. Once the petitioners join their posts, they shall be given parity in service vis-à-vis the other candidates appointed pursuant to Annexure-5 in respect of continuity of service, pay scale, seniority etc. except for being entitled for salary of the period.
15. This writ application is thus allowed with the aforesaid observations and directions.
(J. N. Singh, J.) Patna High Court The 30th March, 2010 N.A.F.R./Pradeep/