Bihar & Ors. Vs. Mithilesh Kumar  INSC 653 (19 August 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION
(CIVIL) No.2631 OF 2009 State of Bihar & Ors. ... Petitioners Mithilesh
Kumar ... Respondent
In 1998, the Department of Welfare, Government of Bihar, decided
to introduce two new trades (Electronic and Electrical Appliances Repairing)
for vocational training in the Kamla Nehru Social 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as the Scheme was no longer valid and the said Committee had decided to train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
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.
December, 2005, the Director, Social Welfare, considered the representation of
the Respondent and rejected the same.
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.
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.
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.
The instant Special Leave Petition has been filed against the said
judgment of the Division Bench of the Patna High Court.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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.
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
is not on any individual, but on a legal principle which has been settled by
this Court in various decisions, as referred to hereinbefore.
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.
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.
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)