Subhash Kumar vs The State Of Bihar

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION(CIVIL) NO(S). 798 OF 2020

SUBHASH KUMAR ...Petitioner(s)

VERSUS

THE STATE OF BIHAR & ORS. ...Respondent(s)

JUDGMENT

Rastogi, J.

The instant petition is directed against the order dated 23 rd

July, 2020 passed by the first respondent relegating the

petitioner after serving as member of the Bihar Administrative

service for almost 15 years to Bihar Education Service without

affording an opportunity of hearing to him in alleged

compliance of the order of this Court stated 23 rd October 2019 Signature Not Verified Digitally signed by GEETA AHUJA

in Civil Appeal No. 3307 of 2015 left with no option with the Date: 2020.11.17 17:49:34 IST Reason:

petitioner to approach this Court for redressal of his grievance.

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2. The brief facts of the case led to filing of this petition are

that Bihar Public Service Commission (hereinafter referred to

as the “Commission”) published an advertisement dated 29 th

December, 2001 in various newspapers inviting applications

from eligible candidates for conducting the 45 th Combined

Competitive Examination. The petitioner had participated in

the selection process and after being finally selected and as per

his placement in the order of merit, was appointed into Bihar

Administrative Service vide order dated 21 st March, 2005 and

after successful period of probation, became a substantive

member of Bihar Administrative Service (BAS).

3. Shri Baldeo Choudhary (respondent no. 5) had also

participated along with the petitioner in the 45th Combined

Competitive Examination held by the Commission pursuant to

an advertisement dated 29th December 2001, could not

succeeded in fulfilling his wishes to become a member of Bihar

Administrative Service. He challenged his unsuitability held by

2 the Commission after almost four years of the process attain

finality by filing a writ petition before the High Court of Patna

in the year 2008 and finally succeeded in persuading the

learned Single Judge vide judgment dated 19 th March, 2012 in

holding that an error has been committed by the Commission

in evaluation of his answer script of Paper­II General Studies.

It may be noted that none of the selected candidates including

the present petitioner who on their selection, being appointed

and became member of Bihar Administrative Service, were

impleaded as a party to the writ petition.

4. The order of the learned Single Judge dated 19 th March,

2012 was the subject matter of challenge in Letters Patent

Appeal filed at the instance of the Commission which came to

be decided vide judgment dated 29th November 2012 wherein

the Division Bench of the High Court of Patna moulded the

relief granted by the learned Single Judge under its order dated

19th March, 2012. The relevant extract is reproduced

hereunder:­

3 “We are alive that the writ petitioner has approached the Court after a considerable delay i.e. by the time the writ petition was filed, the result was declared and all appointments were made. We are, therefore, not inclined to grant relief to the writ petitioner with retrospective effect.

In the event after declaring the result as directed by the learned single judge, the writ petitioner, on account of his placement in the select list becomes entitled to appointment in a particular service: the writ petitioner will be appointed as such: but the writ petitioner will not be entitled to retrospective benefit. In other words, the writ petitioner will take seniority and other service benefits from the date of his appointment and not from any earlier date.”

5. The order of the Division Bench became the subject

matter of challenge at the instance of the Commission before

this Court in Civil Appeal No. 3307 of 2015 and while

dismissing the appeal, this Court in its order dated 23 rd

October, 2019 ruled out the apprehension exhibited by the

Commission and the extract of the order is reproduced

hereunder:­

“It is brought to the notice of the Court by learned counsel for the respondent that had the respondent been selected in the examination in question, he would have been ranked second. The same is, however, disputed by learned counsel appearing for the Commission. Be that as it may, it is brought to the notice of this Court that the respondent is already working in the Sales Tax Department of the State. Having regard to the totality of facts and circumstances of the case, interest of justice would be met in case the respondent is declared qualified

4 to be appointed from the date of the judgment of the Division Bench, i.e. from 29th November, 2012. From that day onwards, the respondent should be given notional benefits of service such as continuity of service, increments etc. Since the respondent is already in service, he is not awarded any salary. Since, now he stands qualified for appointment, the State shall consider the respondent’s case for appointment on a suitable place and pay him salary. The process shall be completed within a period of three months from this day and the salary will be paid from the date of his joining the duty.”

The bare reading of the order passed by the Division Bench

which has been confirmed by this Court with a clarification

under its order dated 23rd October, 2019 remained restricted to

revise the placement of original writ petitioner (Baldeo

Choudhary) who was aggrieved of his own rights in reference to

the alleged error which had been committed in proper

evaluation of his answer script for his placement in the select

list published by the Commission pursuant to which the

appointments were made in reference to an advertisement

dated 29th December, 2001 and this Court taking note of the

apprehension which was intended by the Commission, made a

clarification that the appointment pursuant to a judgment of

the Division Bench of the High Court has to be offered to the

writ petitioner (Baldeo Choudhary) w.e.f. 29 th November 2012

5 (i.e. date of Judgment of the Division Bench) with notional

benefits of service such as continuity of service, increment, etc.

as he was already in service, no salary for the interregnum

period be awarded to him.

6. The Commission under the guise of the order of this

Court dated 23rd October, 2019 revised the recommendations of

45th Combined Competitive Examination held pursuant to an

advertisement dated 29th December, 2001 and forwarded it to

the Government of Bihar, Patna vide letter dated 4 th May, 2020

while placing the original writ petitioner (Baldeo Choudhary) in

the revised recommendations at Sl. No. 2 and displacing the

petitioner relegating his placement from Bihar Administrative

Service to Bihar Education Service. In furtherance thereof, the

State Government vide its order dated 23 rd July, 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.

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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. 29 th

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 23 rd

7 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 29 th 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

8 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 29 th

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

9 made a further clarification under its order dated 23 rd 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 45 th 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 23 rd July,

10 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 23 rd 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 45 th

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

11 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 23 rd July, 2020 which was

neither observed by the Division Bench of the High Court nor

expressed by this Court in its order dated 23 rd 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.

16. Consequently, in our considered view, the writ petition

deserves to succeed and is accordingly allowed and the order

impugned dated 23rd July, 2020 qua the petitioner is hereby

quashed. No costs.

..…………………………J. (L. NAGESWARA RAO)

…………………………..J. (HEMANT GUPTA)

.………………………….J. (AJAY RASTOGI) NEW DELHI November 17, 2020

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