IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.11528 of 2004
ASHOK KUMAR MANDAL S/O LATE MEDI PRASAD MANDAL
R/O VILL-BHAKHARPUR, PS-PIRPAITI, DISTT-
BHAGALPUR, BIHAR----------------PETITIONER
Versus
1. THE STATE OF BIHAR
2. THE CHIEF SECRETARY, BIHAR, PATNA
3. THE COMMISSIONER-CUM-SECRETARY, DEPARTMENT OF
PERSONNEL & ADMINISTRATIVE REFORMS, BIHAR,PATNA
4. THE HON'BLE HIGH COURT, THROUGH THE REGISTRAR
GENERAL,PATNA, BIHAR.---------RESPONDENTS.
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For the Petitioner: Mr. Bindhyachal Singh, Advocate
Mr. Ram Binod Singh,Advocate
For the State: Mr. S.S.Mishra, Advocate
For the High Court: Mr. Piyush Lal, Advocate.
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5 7 /9/2010 Petitioner wants a direction upon the respondent
authority to appoint him on the post of peon in the Civil Court,
Saharsa pursuant to the advertisement No. 8/41-8/01-02 published in
a local newspaper AAJ on 14.1.2002. The above mentioned
advertisement was issued by the District & Sessions Judge, Saharsa
for appointment on the posts of clerks and peons in the Civil Court
at Saharsa.
Petitioner states that he was an eligible candidate
belonging to Scheduled Tribes (S.T), fulfilling all the requirements
and he made an application. He was issued an Admit Card and was
even given an interview call which was scheduled to be held on
22.8.2002. Petitioner is supposed to have appeared in the said
interview and as per his assessment he performed rather well before
the Interview Board. Result of the exercise for recruitment was
published on 9.10.2002 and list was forwarded by the District &
Sessions Judge, Saharsa to the High Court for approval. According
to the petitioner the list contained recommendation of 56 candidates
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however the High Court approved only 43 for appointment.
Petitioner’s name did not figure in the list of
recommended candidates for appointment. It is his case that he
enquired into the matter and he learnt that the petitioner was denied
the benefit of appointment because the respondents applied a new
reservation policy notified by the State of Bihar in the official
gazette on 27.8.2002. By virtue of the said gazette notification the
quota for reservation of Scheduled Tribes candidates was brought
down from 10% to 1% which could not be done in case of the
present appointment.
The stand of the counsel is that since the
advertisement was issued in January, 2002 the subsequent gazette
notification effecting change in the quota for Scheduled Tribes
issued on 27.8.2002 could not be applied retrospectively. The
process of appointment should have been carried out on the basis of
the old rule and application of new reservation policy has proved
detrimental to the interest of the petitioner’s right for appointment.
The petitioner has brought on record letter no. 477
dated 11.10.2003 issued by the Department of Personnel and
Administrative Reforms, which shows that the reservation policy
prevalent at the time of sending the requisition to the BPSC, before
bifurcation of the State, would govern the issue and not the changed
reservation policy. According to the petitioner since the requisition
for advertisement was issued prior to the changes brought about in
the reservation quota meant for Scheduled Tribes, the respondents
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could not have reduced the percentage of reservation of Scheduled
Tribes to 1% as per the new reservation policy.
Counter affidavits have been filed on behalf of the
State as well as the High Court. Their stand is that the old
reservation policy in existence in the State of Bihar applied to the
undivided Bihar. The quota for Scheduled Tribes was fixed on the
basis of population in existence before the division of Bihar and
creation of Jharkhand as a separate State. The ground reality is that
after the division of the State, majority population of Scheduled
Tribes fell within the jurisdiction of newly created Jharkhand. This
compelled the State authority to rework the benefit of reservation for
the candidates belonging to the Scheduled Tribes. After due
diligence and deliberation the State of Bihar came to a considered
opinion that looking at the tribal population left in the State of Bihar,
the benefit of reservation for Scheduled Tribes have to be brought
down to 1% from 10%.
The exercise of filling up of the post was carried out
after the bifurcation of the State of Bihar and only the advertisement
was issued before the amendment was notified. The actual selection
and appointment has been made after the new reservation policy was
notified and the benefit of reservation has to be extended at the point
of appointment and not during the course of selection. The
respondents have applied the reservation policy which was in
operation. Even according to the petitioner, the notification was
notified on 27.8.2002 and the result was published and appointment
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made on 9.10.2002. The respondents have done no wrong in
applying the policy in existence at the time of appointment. Not
continuing with earlier reservation policy was the need of the hour
as it would have given undue representation to the Scheduled Tribes,
even though their proportionate representation in the State had
drastically gone down after the bifurcation.
Further submission on behalf of the respondents is
that there is no material or pleading in the writ application which
would show that the petitioner was denied appointment only due to
change in the reservation policy. There is nothing to show that he
came within the zone of consideration in terms of the result
published after selection. The claim of the petitioner is based more
on hypothesis. It is a presumption that he would have come in the
select list, as one of the successful candidate, if 10% reservation was
extended to candidates belonging to Scheduled Tribes category. The
advertisement issued by the respondents did not indicate as to what
would be reservation policy which would apply in the matter of
selection. However selection is one aspect and appointment is
another. Benefit of reservation comes into play only after the
selection and not during the process of selection.
It is also the stand of the High Court that the
selection and recommendation for appointment made by the High
Court would show that there is wide representation from all
categories of persons who are getting benefit of reservation policy.
The claim of the petitioner that continuance of the reservation policy
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would have expanded his chance for appointment is more
hypothetical rather than actual state of affairs.
The benefit of reservation is based on the
demographic representation of the populace and the historical
discrimination which they have socially suffered over many a
century. The benefit of reservation and fixing of percentage thereof
is based on demographic distribution as well as the data gathered by
the State, before a policy decision is notified, extending such a
benefit. The fact that the State of Bihar came to be divided on 15th
November, 2000 and a separate State of Jharkhand came to be
created primarily on the basis of long struggle and demand of
Scheduled Tribes of that area for a separate State. In this
background the State of Bihar has had to relook at the changed
ground reality. The percentage of reservation to be made available to
the left over population of the State had to be reworked. The ground
reality has been reflected by the notification dated 27.8.2002 and it
cannot be ignored only to allow benefit of expanded zone of
consideration to some persons including the present petitioner.
In fact, the Court is of the opinion that applying the
old principle of reservation which was in existence before
bifurcation and extending the benefit of reservation beyond the
percentage of the population of Scheduled Tribes would be
prejudicial to the interest of other castes and community who
remained in Bihar, after the bifurcation. In addition to that the Court
has taken note of the fact that the benefit of reservation is to be
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applied at the time of appointment and not during the process of
selection. After the selection process is gone through, the question
would arise as to how many posts are to be offered to which castes
depending on the reservation policy existing at the time of
appointment.
Since the new reservation policy was already in
place on 27.8.2002 and the appointment came to be made on
9.10.2002, the respondents have done no wrong by applying the new
policy.
The Court is also in agreement with the submission
of the respondents that the case of the petitioner is based more on
hypothesis than the ground reality. In absence of any empirical
evidence that continuance with the old reservation policy would
have brought the petitioner within the zone of consideration for
selection and appointment the writ seems to be misplaced.
Petitioner’s name does not figure in the merit list prepared by the
respondents either in the category of selected candidates or in the
category of wait listed candidates. This writ application is more of a
fishing kind of application without any substantive facts and law in
favour of the petitioner.
This writ application is dismissed.
RPS (Ajay Kumar Tripathi, J.)