State Of Bihar & Ors vs Mithilesh Kumar

Service Institute and Handicapped and

Rehabilitation Training Centre, Patna, for training

of persons with disabilities. The said proposal 2

was approved by the Empowered Committee constituted

under the Bihar Public Service Commission under the

Chairmanship of the Development Commissioner and

funds were also sanctioned for such training. In

the light of the above decision on 12th March, 1999,

a requisition was sent by the Welfare Department,

Government of Bihar, to the Bihar Public Service

Commission, hereinafter referred to as "the

B.P.S.C.", for appointment of Instructors and

Assistant Instructors, but despite sanction of

funds for the year 1998-99, appointments were not

made because the Commission failed to make

recommendations for the said posts. Subsequently,

the Scheme was not extended by the Empowered

Committee, but on 30th December, 2001, pursuant to

requisition made by the Welfare Department, the

B.P.S.C. advertised the posts for making

appointments thereto. The Respondent, Mithilesh

Kumar, applied pursuant to the said advertisement 3

and was called for and appeared at an interview on

9th November, 2002, but immediately, thereafter, on

14th November, 2002, the Empowered Committee took a

decision that from thenceforth the services of

NGOs/institutions would be used for training

persons with disabilities. The Assistant Director,

Social Welfare, by his letter dated 14th November,

2002, requested the B.P.S.C. not to send any

further recommendations as the Scheme was no longer

valid and the said Committee had decided to train

students of the two trades through professionally

established NGOs/institutions.

2. On 5th December, 2002, after the said

communication was received from the Assistant

Director, Social Welfare, the Respondent was

declared successful in the interview which had been

held on 9th November, 2002, and despite the request

made by the Assistant Director, Social Welfare, the

B.P.S.C. recommended the name of the Respondent to 4

the said authority for appointment. The

Respondent, in his turn, made a representation

seeking appointment pursuant to the results

declared by the Commission. Not receiving any

response, the Respondent filed Writ Petition No.543

of 2005 before the Patna High Court on 11th July,

2005, for appropriate relief. The High Court

disposed of the Writ Petition with a direction to

the Director, Social Welfare, Government of Bihar,

to dispose of the Respondent's representation.

On 15th December, 2005, the Director, Social

Welfare, considered the representation of the

Respondent and rejected the same.

3. Aggrieved by the rejection of his

representation, the Respondent filed a fresh Writ

Petition, being CWJC No.447 of 2006, before the

Patna High Court and the same was duly allowed.

The order dated 15th December, 2005, passed by the

Director, Social Welfare, was quashed and the 5

Secretary, Social Welfare, Government of Bihar and

the Director, Social Welfare, were directed to

appoint the Respondent to the post of Assistant

Instructor (Electronics) in Kamla Nehru Social

Service Institute and Handicapped and

Rehabilitation Training Centre, Patna, after

obtaining a recommendation for validation by the

B.P.S.C. A direction was given to issue the

appointment letter in favour of the Respondent

within two weeks from the date of receipt/

production of a copy of the High Court's order.

4. The matter was taken to the Division Bench by

the State of Bihar in LPA No.844 of 2007. On 18th

July, 2008, the Division Bench of the Patna High

Court dismissed the said Appeal relying entirely on

the judgment of the learned Single Judge, without

giving any reasons of its own.

6

5. The instant Special Leave Petition has been

filed against the said judgment of the Division

Bench of the Patna High Court.

6. Without denying the facts of the case, as

narrated hereinabove, learned counsel appearing for

the State of Bihar submitted that once a request

had been made by the Empowered Committee to

derequisition the posts in question, the B.P.S.C.

ought not to have recommended the name of the

Respondent for appointment as Assistant Instructor

(Electronics). Referring to the Constitution Bench

decision of this Court in Shankarsan Dash vs. Union

of India [(1991) 3 SCC 47], learned counsel

submitted that inclusion in the select panel did

not vest the Respondent with an indefeasible right

to be appointed, even if a vacancy existed.

7. Reference was also made to the decision of this

Court in Chairman, All India Railway Recruitment

Board & Anr. vs. K. Shyam Kumar & Ors. [(2010) 6 7

SCC 614], wherein while considering the scope of

judicial review, this Court had occasion to

consider the aforesaid question also and it was

reiterated that even after vacancies were notified

for appointment and adequate number of candidates

were found successful, they would not acquire any

indefeasible right to be appointed against the

existing vacancies.

8. On the other hand, learned counsel for the

Respondent reiterated the fact that pursuant to the

advertisement published by the Bihar Public Service

Commission on 30th December, 2001 for filling up the

posts of Instructor/Assistant Instructor, the

Respondent had applied and Admit Card was issued to

him in October, 2002. Pursuant to the above, the

Respondent appeared in the selection process and

the results were declared by the Commission on 5th

December, 2002 and after declaration of the results 8

a direction was given by the Minister concerned to

the Director, Social Welfare, Bihar, Patna, the

Petitioner No.3, to appoint the Respondent,

Mithilesh Kumar, forthwith. Pursuant thereto, on

24th February, 2004, the Director of Social Welfare

asked the Respondent to produce all his

certificates before the Assistant Director on 22nd

February, 2004, for verification but, thereafter,

he was not favoured with an appointment letter.

Learned counsel submitted that this compelled the

Respondent to file CWJC No.543 of 2005 for issuance

of a writ in the nature of mandamus for his

appointment to the post in question.

9. Learned counsel submitted that on 5th March,

2005, the Director wrote to the Deputy Secretary of

the Commission to revalidate the recommendation

which had been made by it and had expired during

the pendency of the matter. On 3rd May, 2005, the

recommendation was revalidated for a period of 9

three months. Thereafter, on 11th July, 2005, a

learned Single Judge of the Patna High Court

disposed of CWJC No.543 of 2005 with a direction to

the Director, Social Welfare, to dispose of the

Respondent's representation after seeking

appropriate instruction from the State Government

and to ensure disposal of the said representation

on or before 3rd August, 2005.

10. Learned counsel submitted that the Respondent's

representation was considered and rejected by the

Director, Social Welfare, by his cryptic order

dated 15th December, 2005, which was, thereafter,

affirmed by the Division Bench in LPA No.844 of

2007 on 18th July, 2008, in an even more cryptic

fashion. Learned counsel urged that having been

selected for appointment after a regular process of

selection, the Respondent's claim for appointment

could not have been neutralized simply on the basis

of a request subsequently made by the Assistant 10

Director, Social Welfare, to the B.P.S.C. not to

send any further recommendations as a decision had

been taken in the interregnum to train students in

respect of the trades in question through

professionally established NGOs/institutions.

11. Learned counsel submitted that the conditions

of the advertisement inviting applications for

filling up the posts of Assistant Instructor

(Electronics) in the Kamla Nehru Social Service

Institute and Handicapped and Rehabilitation

Training Centre, Patna, could not have been altered

to the prejudice of the Respondent on account of a

decision taken subsequently to have persons with

disabilities trained by professionally established

NGOs/institutions. Reliance was placed on the

decision of this Court in Y.V. Rangaiah & Ors. vs.

J. Sreenivasa Rao & Ors. [(1983) 3 SCC 284], where

this Court in similar circumstances had held that

when Service Rules are amended, vacancies which had 11

occurred prior to the amended Rules would be

governed by the old Rules and not by the amended

Rules. Reference was also made by learned counsel

to the decision of this Court in N.T. Devin Katti

vs. Karnataka Public Service Commission & Ors.

[(1990) 3 SCC 157], wherein it was reiterated that

where selection process was initiated by issuing

advertisement inviting applications, selection

normally should be regulated by the Rules and

orders then prevailing. It was also emphasized that

service jurisprudence provides that normally

amendments effected during the pendency of a

selection process operate prospectively, unless

indicated to the contrary by express language or by

necessary implication.

12. Learned counsel lastly referred to the decision

of this Court in Secretary, A.P. Pubic Service

Commission vs. B. Swapna & Ors. [(2005) 4 SCC 154],

wherein while considering the norms for 12

recruitment/selection for filling up vacancies

which had been initially advertised, this Court was

of the view that such norms of selection cannot be

altered after commencement of the selection process

and Rules prescribing qualification, which were

amended during the continuation of the selection

process, have prospective operation unless

something to the contrary is indicated expressly or

by necessary implication.

13. Replying to the submissions made on behalf of

the Respondent, learned counsel for the Petitioner

submitted that the Respondent was not also entitled

to any relief having regard to the decision of this

Court in Secretary, State of Karnataka vs. Uma Devi

[(2006) 4 SCC 1], where in paragraphs 13 and 35,

the Constitution Bench quoted with approval the

observations of Farwell, L.J. in Latham vs. Richard

Johnson & Nephew Ltd. [(1911-13) All E.R. 117] to

the effect that the Supreme Court in exercise of 13

its jurisdiction under Article 142 has to be very

careful not to allow sympathy to affect its

judgment.

14. We have carefully considered the submissions

made on behalf of the parties and we are not

impressed with the stand taken by the Petitioner,

State of Bihar, that the Bihar Public Service

Commission ought not to have recommended the name

of the Respondent for appointment after the

Assistant Director, Social Welfare, had requested

the Commission not to recommend any further names

in view of the decision taken by the State to have

disabled persons trained through professionally

established NGOs/institutions in place of

Instructors/Assistant Instructors for which

advertisements had already been issued by the

Commission. Both the learned Single Judge as also

the Division Bench rightly held that the change in

the norms of recruitment could be applied 14

prospectively and could not affect those who had

been selected for being recommended for appointment

after following the norms as were in place at the

time when the selection process was commenced.

The Respondent had been selected for recommendation

to be appointed as Assistant Instructor in

accordance with the existing norms. Before he could

be appointed or even considered for appointment,

the norms of recruitment were altered to the

prejudice of the Respondent. The question is

whether those altered norms will apply to the

Respondent.

15. The decisions which have been cited on behalf

of the Respondent have clearly explained the law

with regard to the applicability of the Rules which

are amended and/or altered during the selection

process. They all say in one voice that the norms

or Rules as existing on the date when the process

of selection begins will control such selection and 15

any alteration to such norms would not affect the

continuing process, unless specifically the same

were given retrospective effect. As far as the

decision in Uma Devi's case (supra) is concerned,

we share the sentiments as set out in paragraph 35

of the judgment but we are only considering a

situation where amendments are introduced to a

recruitment process after the same has begun. The

question of allowing sympathy to affect our

judgment does not, therefore, arise in this case.

Our focus is not on any individual, but on a legal

principle which has been settled by this Court in

various decisions, as referred to hereinbefore.

There is no reason for us to have any disagreement

with the decision of this Court in All India

Railway Recruitment Board case (supra) regarding

the right to appointment even of selected

candidates, but this is not a case of the

Respondent having acquired any indefeasible right 16

which has to be cancelled on account of certain

exigencies. On the other hand, this is a case

where although selected for the purpose of

appointment by the B.P.S.C., Patna, the case of the

Respondent was not even considered as there was a

change in policy regarding recruitment in the

meantime.

16. While a person may not acquire an indefeasible

right to appointment merely on the basis of

selection, in the instant case the fact situation

is different since the claim of the Respondent to

be appointed had been negated by a change in policy

after the selection process had begun.

17. In these circumstances, we do not see any

reason to interfere with the impugned judgment of

the Division Bench of the High Court dated 18th

July, 2008, in LPA No.844 of 2007, affirming the

judgment of the learned Single Judge dated 31st 17

July, 2007, in CWJC No.447 of 2006. The Special

Leave Petition is, therefore, dismissed, without

any order as to costs.

................................................J. (ALTAMAS KABIR)

................................................J. (A.K. PATNAIK) New Delhi, Dated: 19.08.2010