Mirza Ali Raza vs State Of Bihar .

ITEM NO.1 COURT NO.6 SECTION XVI [CORRECTED COPY OF JUDGMENT] S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition for Special Leave to Appeal (C) No. 204/2010

(Arising out of impugned final judgment and order dated 08/09/2008 in LPA No. 879/2007 passed by the High Court of Judicature at Patna)

MIRZA ARIF RAZA & ORS. Petitioner(s)

VERSUS

STATE OF BIHAR & ORS. Respondent(s)

(With prayer for interim relief and office report) WITH T.C.(C) No. 27/2010 [JAGBANDHU MAHTHO & ANR. V. STATE OF BIHAR & ORS.] (With T.C.(C) No. 28/2010 [BIRENDRA PRASAD V. STATE OF BIHAR & ORS.]

Date : 03/02/2016 These Matters were called on for hearing today.

CORAM : HON'BLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA HON'BLE MR. JUSTICE C. NAGAPPAN

For Petitioner(s) Mr. R. Venaktaramani, Sr. Adv. in SLP 204 Mr. V.A. Mohta, Sr. Adv. Mr. Anshuman Sinha, Adv. Mr. Inam Adam, Adv. Mr. Nilkanth, Adv. Mr. Vijay Kumar Pandey, Adv. Ms. V. Vijay Laxmi, Adv. Ms. Neelam Singh, Adv. Mr. Sameer Singh, Adv. Mr. Renjith B. Marar, A.O.R.

in TC 27 Mr. R. Venkataramani, Sr. Adv. Mr. Kumar Parimal, Adv. Mr. Yashraj Singh Bundela, Adv. Ms. Neelam Singh, Adv. Mr. Aniruddha P. Mayee,Adv.

For Applicant (s) Mr. Shantanu Sagar,Adv. Signature Not Verified Mr. Smarhar Singh, Adv. Digitally signed by CHETAN KUMAR Date: 2016.09.28 Mr. Anmol, Adv. 14:53:21 IST Reason: Mr. T. Mahipal, Adv.

For Respondent(s) Mr. Navin Prakash, A.O.R.

PAGE NO. 1 OF 2 in SLP 204 Mr. Gopi Chand, Adv.

For State of Bihar Mr. Shivam Singh, Adv. Mr. Aditya Awasthi, Adv. Mr. Gopal Singh, A.O.R.

For State of Mr. Jayesh Gaurav, Adv. Jharkhand Mr. Gopal Prasad, Adv.

Mr. Kumar Parimal, Adv. Mr. Aniruddha P. Mayee, Adv.

UPON hearing counsel the Court made the following O R D E R

IA No. 17 seeking impleadment of Anil Kumar Singh is allowed. IA Nos. 16 and 20 seeking transposition of respondent Nos. 13 and 14 are also allowed and they are transposed as petitioner Nos. 4 and 5.

Cause title be amended accordingly.

Pending applications, if any, stand disposed of.

Leave granted.

Heard Mr. R. Venkataramani, learned senior counsel for the appellants, Mr. Shivam Singh, learned counsel for the State of Bihar and Mr. Jayesh Gaurav, learned counsel for the State of Jharkhand.

The appeal and the transferred cases stand

disposed of in terms of the signed reportable

order.

[KALYANI GUPTA] [SHARDA KAPOOR] COURT MASTER COURT MASTER

[SIGNED REPORTABLE ORDER IS PLACED ON THE FILE.]

PAGE NO. 2 OF 2 REPORTABLE CORRECTED COPY IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 857 OF 2016 [ARISING OUT OF SLP(C) NO. 204 OF 2010]

MIRZA ALI RAZA & ORS. ….. APPELLANTS

VERSUS

STATE OF BIHAR & ORS. ….. RESPONDENTS

WITH TRANSFERRED CASE NO. 27 OF 2010

JAGBANDHU MAHTHO & ANR. ….. APPELLANTS

VERSUS

STATE OF BIHAR & ORS. ….. RESPONDENTS

TRANSFERRED CASE NO. 28 OF 2010

BIRENDRA PRASAD ….. APPELLANT

VERSUS

STATE OF BIHAR & ORS. ….. RESPONDENTS

O R D E R

IA No.17 seeking impleadment of Anil Kumar

Singh is allowed. IA Nos.16 and 20 seeking transposition

of respondent Nos. 13 and 14 are also allowed and they C.A. No.......... @ SLP(C) No. 204 of 2010

are transposed as petitioner Nos.4 and 5.

2. Cause title be amended accordingly.

3. Leave granted.

4. Heard Mr. R. Venkataramani, learned senior

counsel for the appellants, Mr. Shivam Singh, learned

counsel for the State of Bihar and Mr. Jayesh Gaurav,

learned counsel for the State of Jharkhand.

5. By this order, we dispose of Civil Appeal

arising out of SLP© NO.204 of2010 as well as Transferred

Cases Nos. 27 and 28 of 2010. For passing appropriate

orders in these cases, it is necessary to refer to

certain facts which necessitated the filing of this

appeal by the appellants.

6. There was a selection made by the State of

Bihar for various common posts in the Gazetted Cadre.

An advertisement was made on 9th January, 1989 which was

known as 36th Combined Competitive Examination. At the

time when the advertisement was issued the issue

relating to reservation policy was covered by the

Resolution dated 10th November, 1978. Subsequent to the

advertisement, there was another Resolution pertaining

to reservation policy which came into being on 30 th

October, 1990. By order dated 7th January, 1991, the

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State Government declared that the policy resolution

dated 30th October, 1990 would apply even to the

examinations already held for which results were not

announced.

7. The selection which was made pursuant to the said

36th Combined Examination was proceeded with and

according to the candidates who belonged to the general

merit category, in respect of Government Order dated 7 th

January, 1991, the Resolution dated 30th October, 1990

was not violated. The said Selection was subject matter

of challenge in C.W.J.C. No.10892/1994 and 3699/1993.

The said writ petitions came to be disposed of by the

learned Single Judge by order dated 14 th May, 1999. The

learned Judge took the view that those writ petitioners

having not challenged the result published and the

appointment made pursuant to the result which was on 11 th

May, 1991 and the posts having been filled up there was

no scope to interfere with the selection. The learned

Single Judge also noted that in the absence of the

selected candidates having been impleaded as party

respondents before the Court there was no scope to

interfere with the selection. The learned Single Judge

therefore declined to consider the prayer for creating

any shadow post to accommodate such of the candidates in

the general merit category whose claim according to them

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was prejudiced by the presence of candidates who

otherwise belonged to reserved category. The learned

Judge while declining the said prayer made it clear

that it was in the domain of the State authorities and

not for the Court to give any such directions.

8. The order of the learned Single Judge was

challenged by way of Letters Patent Appeal and in LPA

NO. 92 of 1999, the Division Bench reversed the order of

the learned Single Judge and with a view to, apparently,

salvage the situation gave the following directions:-

“In our view, perhaps it was not brought to the notice of the learned Judge that the Government's resolution dated 30th October, 1990 was already quashed by this Court on 23.05.1991 even before publication of the result by the Commission. The result of the examination was, in fact, published on 11.05.1991. Therefore, undisputedly, the candidates who got higher position in the panel getting the benefit of reservation policy notified vide resolution of the government dated 30th October, 1990, are affected by the judgment of this Court dated 23.05.1991. Because the said reservation policy was already quashed, therefore, it is incumbent upon the State Government either to create shadow posts to accommodate the appellants against higher posts or higher pay scale or to take a decision to push down the candidates, who got appointments on the basis of the reservation policy, which was already quashed. It goes without saying in case it is necessary to push down some of the candidates, who were appointed earlier on the basis of Resolution dated 30th October, 1990, the State Government will be required to give notice to such candidates, who may be affected.” [underlining is ours]

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9. The Division Bench passed its order on 22nd

February, 2000. Initially, there was no challenge to

the order of the Division Bench. A contempt proceedings

came to be initiated at the instance of the appellants

in Letters Patent Appeal in MJC NO. 1938 of 1999.

Notice was initially issued by order dated 15 th March,

2004. Thereafter, the State Government appeared to have

consulted the State Public Service Commission who opined

unanimously that since the contestants in the Letters

Patent Appeal were merely four in number even while

complying with the order of the Division Bench dated

22nd February, 2000, the same may confined to those four

appellants by providing supernumerary posts. However,

the State Government passed orders on 30 th April, 2004 by

which it chose to go in for the second option provided

in the order of the Division Bench dated 22 nd February,

2000 and the said order resulted in dislocating as many

as 27 officers of whom the appellants in this appeal by

way of special leave as well as the petitioners in the

transferred cases, nine of whom were included.

10. Be that as it may, the order dated 20 th

February, 2000 of the Division Bench was subject matter

of challenge in this Court in SLP (C) No.20589 of 2004

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and this Court by order dated 24th September, 2004

declined to entertain the Special Leave Petition and

thereby the said order of the Division Bench became

final and conclusive.

11. After the order of the State Government dated

30th April, 2004, the Division Bench also closed the

contempt proceedings in MJC NO. 1938 of 2000 by order

dated 5th May, 2004. While concluding the said

proceedings, the Division Bench has noted a very

relevant factor namely, that two of the aggrieved

applicants in the contempt proceedings namely, Devendra

Kumar Singh and Deobana Kumar Singh were benefitted by

the said order dated 30th April, 2004 and that insofar as

two other applicants namely, Sudhanshu Shekhar Tripathi

and Shashi Bhushan Jha were concerned, since the State

Government claimed to have complied with the direction

of the Division Bench in the order dated 20 th February,

2000, if they were still aggrieved, it will be open for

them to workout their remedy in regard to their

grievance in the manner known to law.

12. It must be noted that barring the above said

four persons no other person had any grievance relating

to the selection made in the 36th Combined Competitive

Examination. Even Special Leave Petition preferred by

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one of the aggrieved contempt applicant in SLP (C) NO.

20732 of 2004 was also dismissed by this Court by order

dated 7th November, 2005.

13. It was in the above stated background the

appellants before us as well as the petitioners in the

Transferred Cases approached the High Court challenging

the order dated 30th April, 2004 in two writ petitions in

W.P.NO.2024 and 2027 of 2004. The writ petitions were

initially allowed by the learned Single Judge by order

dated 17th September, 2007. In fact while initially

entertaining the writ petition, the status of the

petitioners along with the others were protected by way

of an interim order dated 17th May, 2004. In the final

order dated 17th September, 2006, the learned Judge

while setting aside the order insofar as the writ

petitioners were concerned also directed to maintain

their status quo as it existed on the date of passing of

the orders till they get an opportunity to move the

appropriate forum for redressal of their grievances.

However, three days later by order dated 20 th September,

2007, the resultant portion of the order was modified to

the effect that their writ applications were dismissed

and the impugned order was not being quashed but even

while maintaining the status quo of the petitioners as

it existed on that day for a period of eight weeks, they

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were given liberty to move the appropriate forum for the

redressal of their grievances.

14. Aggrieved by the said order of the learned

Single Judge,the appellants filed LPA and by the

impugned judgment dated 8th September, 2008, the Division

Bench recorded the statement made on behalf of the State

Government to the effect that it decided to allow eight

officers whose service came to be terminated apart from

joining the 27 officers who were affected by the order

dated 30th April, 2004 in the changed service cadre by

creating shadow posts wherever needed. The Division

Bench while accepting the said proposal made on behalf

of the State Government, directed that until fresh

orders are issued, the appellants before the Division

Bench should not be removed from service. The Division

Bench also took the view that the grievances of the

appellants before it was fully redressed by accepting

the statements of the State Government and nothing

further need be done in the Letters Patent Appeal.

15. Aggrieved by the said order of the Division

Bench, the appellants and the petitioners in the

transferred cases are before us.

16. Mr. R. Venkataramani, learned senior counsel in

his submissions, submitted that by the proposal

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submitted before the Division Bench of the High Court

namely, by allowing the 27 officers which included the

appellants herein in the Changed Service Cadre and by

creating shadow posts, the real challenge made by them

in the writ petition as well as in the Letters Patent

Appeal cannot be said to have been fully redressed.

According to the appellants and the petitioners in the

transferred cases, when the State Government chose to

follow the second option referred to in the order dated

20th February, 2000 there should have been an opportunity

extended to them and since they were taken aback unaware

by the order dated 30th April, 2004 there was every

justification for setting aside the said order. The

learned senior counsel submitted that the learned Single

Judge while passing the order dated 17th September, 2007

having noted that there was no intrinsic change in the

policy of the year 1978 or 1990 in selecting the

reserved candidates when they faired well in the open

merit category and thereby the reservation policy would

not be in any way affected, the interference with the

said selection was wholly uncalled for. The learned

senior counsel also pointed out that the selection came

to be made in the year 1990, appointments came to be

issued in the year 1992 and the appellants and the

petitioners in the transferred cases were all continuing

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in their respective posts in which they came to be

originally appointed till this date by virtue of the

interim orders granted by the Court and in that process

25 years have gone by and it would be harsh to allow the

State Government to proceed with the stand expressed

before the Division Bench and thereby upset the entire

matter of selection initially made which remained in

force till this date.

17. Learned senior counsel also pointed out that

only four persons were really aggrieved relating to the

selection made in the year 1991 and of whom grievances

of two of the persons have been safely redressed while

two others were given liberty to work out their remedy

who chose not to proceed further and thereby they have

accepted the order passed by the Division Bench in the

Contempt Petition No. MJC NO.1938/1999 dated 5 th May,

2004. The learned senior counsel, therefore, contended

that it would be wholly inequitable and inappropriate if

the order of the Division Bench is allowed to remain.

18. Mr. Shivam Singh, learned counsel for the

respondent State of Bihar and Mr. Jayesh Gaurav, learned

counsel appearing for the State of Jharkhand also tried

to contend that since the order of the Division Bench

dated 20th February, 2000 has become final and

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conclusive, it was incumbent upon the State Government

to comply with the said order especially when the State

Government was facing contempt of the said order in MJC

NO. 1938 of 1999. The learned counsel for the State of

Bihar, therefore, submitted that while exercising its

second option as directed in the said order dated 22 nd

February, 2000, it became inevitable for the State of

Bihar to pass the order dated 30th April, 2004 behind the

back of the petitioners. Insofar as the State of

Jharkhand is concerned, we find that by virtue of the

order dated 30th April, 2004, when the dislocation of the

appellants and petitioners in the transferred cases, in

particular, Mr. Paras Nath Yadav and Jagbandhu Mahto

are concerned, as a result of the said order the State

of Jharkhand had directed both of them to get themselves

repatriated to the State of Bihar.

19. Having heard and having noted the respective

submissions and having perused the material papers, we

find that having regard to the position that prevails as

on date, we can pass orders directing the respective

State Governments to continue to allow the appellants

and petitioners in the transferred cases who have come

before us to hold the respective posts for which they

came to be originally appointed and by passing such

orders no prejudice can be caused either to the

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respective State Governments or to those aggrieved

officers who initiated the proceedings by filing their

writ petitions, namely, Writ Petitions - CWJC NO.

10892/94 and CWJC No.3699/1993 which later on culminated

in the order of the Division Bench dated 22 nd February,

2000 passed in LPA NO. 692 of 1999. As was noted by us

earlier in the order dated 5th May, 2004, all the four

appellants Devendra Kumar Singh, Deoband Kumar Singh

got their respective posts changed by the order dated

30th April, 2004 in the higher post of Bihar Education

Service and thereby their grievances stood redressed.

By effecting the said change, none of the appellants and

petitioners in the transferred cases were affected.

Insofar as two other appellants namely, Sudhanshu Kumar

Tripathi and Shashi Bhushan Jha are concerned, though

they raised a grievance in the contempt petition namely,

MJC NO. 1388 of 1999 as against the order dated 30 th

April, 2004, the Division Bench while passing its order

in contempt petition on 5th May, 2004, made it clear that

the compliance reported in the order dated 30 th April,

2004 was acceptable to it and it was not inclined to

proceed with the contempt application. It, however,

gave liberty to those two officers to work out their

remedy in accordance with law if they are so advised.

The fact remains that both of them have not chosen to

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make any further challenge. Thereby the grievance of

those four officers now stands concluded and no further

orders are necessary in their cases.

20. In the said situation, since the appellants and

petitioners in transferred cases have been holding the

post from the date of their initial appointment and are

continuing as such till this date namely for the past

more than 25 years and in the absence of any serious

challenge to their holding of the respective posts, we

are convinced that by allowing them to continue to

retain their posts till they reach the age of

superannuation no prejudice will be caused to anyone.

With that view by holding that the appellants and the

petitioners in the transferred cases stands and they

shall be allowed to hold their posts in which they came

to be initially appointed without reference to the order

dated 30th April, 2004 and also making it clear to the

State Governments not to interfere with the said posting

initially made and the subsequent benefits accrued to

them based on such posting and also allow them to retire

on their reaching the age of superannuation. The appeal

and the transferred cases stand disposed of.

21. The benefit granted under this order should

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enure to the applicants in IA NOs. 16, 17 and 20 who are

identically placed like that of the appellants and who

have been pursuing their remedies till this date. Their

status quo ante should be restored. We hasten to add

that this order shall not be and cannot be quoted as a

precedent in any other case, inasmuch as this order is

being passed in the peculiar facts and circumstances of

the cases on hand, as noted by us in detail in the

earlier part of our order.

…...................................J [FAKKIR MOHAMED IBRAHIM KALIFULLA]

…...................................J [C. NAGAPPAN]

NEW DELHI FEBRUARY 03, 2016.

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