Lalit Kumar vs The State Of Bihar Through The ...
2021 Latest Caselaw 4633 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.14008 of 2021
     ======================================================

1. Lalit Kumar Son of Surya Dev Ray Resident of DhubauliSube, Muzaffarpur, P.S. Gayghat, District Muzaffarpur.

2. Nilmani Son of Chintamani Prasad Resident of Near Govt Basic School, Harnatanr, P.S. Laukariya Thana, District- West Champaran.

3. Abhijeet Kumar Son of Nonu Sharma Resident of Village Khalkochak, Makhdumpur, P.S. Makhdumpur Thana, District- Jahanabad.

4. Md. Neyaz Anwar Son of Md. Nasim Resident of Near Sikander Pan Dukan, Madhendru, P.S. Sultanganj Thana, District- Patna.

5. Asif Seraj Son of Seraj Uddin Resident of House No. 421 A, New Karimganj, P.S. Civil Lines Karimganj, District- Gaya.

6. Om Prakash Singh Son of Agam Lal Singh Resident of Nayabari, Rasia, Kishanganj, P.S. Pauwakhali, District- Kishanganj.

7. Angad Yadav Son of Shri Ram Yadav Resident of Uchauri, Mubarakpur, P.S. Shadiabad, District- Gazipur (Uttar Pradesh).

8. Md. Ajmal Hussain Son of Md. Aamir Hasan Resident of Ward No. 6, Ankhauli, P.S. Katra, District- Muzaffarpur.

... ... Petitioners Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Principal Secretary, Department of General Administration, Government of Bihar, Patna.

3. The Additional Chief Secretary, Department of Social Welfare, Government of Bihar, Patna.

4. The Bihar Public Service Commission through its Secretary, having its office at 15, Jawaharlal Nehru Marg, bailey Road, Patna.

5. The Chairman, Bihar Public Service Commission, 15, Jawaharlal Nehru Marg, Bailey Road, Patna.

6. The Secretary, Bihar Public Service Commission, 15 Jawaharlal Nehru Marg, Bailey Road, Patna.

... ... Respondents ====================================================== Appearance :

     For the Petitioners   :       Mr.S.D. Sanjay (Senior Advocate) with
                           :       Ms.Parul Prasad (Advocate)
                           :       Ms.Priya Gupta (Advocate)
                           :       Mr.Mohit Agrawal (Advocate)
     For the State         :       Mr.N.H. Khan (SC 1)
     For the B.P.S.C.      :       Mr.Lalit Kishore (AG) (Senior Advocate) with
                           :       Mr.Sanjay Pandey (Advocate)

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL JUDGMENT Patna High Court CWJC No.14008 of 2021 dt.14-09-2021

Date : 14-09-2021

This matter has been taken up for hearing online because

of COVID-19 pandemic restrictions.

2. Sub-Section 1 of Section 34 of the Rights of Persons

with Disabilities Act, 2016 (in short Act) obligates every

appropriate Government within the meaning of Section 2(b) of the

Act to appoint in every Government establishment, not less than

4% of the total number of vacancies in the cadre strength in each

group of posts meant to be filled with persons with benchmark

disabilities of which, 1% each shall be reserved for persons with

benchmark disabilities under Clauses (a), (b) and (c) and 1% for

persons with benchmark disabilities under Clauses (d) and (e). The

nature of disabilities in Clauses (a) to (e), as referred to in Sub-

Section 34, are as under:-

"(a) blindness and low vision;

(b) deaf and hard of hearing;

(c) locomotor disability including cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular dystrophy;

(d) autism, intellectual disability, specific learning disability and mental illness;

(e) multiple disabilities from amongst persons under clauses

(a) to (d) including deaf-blindness in the posts identified for each disabilities:

Provided that the reservation in promotion shall be in accordance with such instructions as are issued by the appropriate Government from time to time:

Provided further that the appropriate Government, in consultation with the Chief Commissioner or the State Commissioner, as Patna High Court CWJC No.14008 of 2021 dt.14-09-2021

the case may be, may, having regard to the type of work carried out in any Government establishment, by notification and subject to such conditions, if any, as may be specified in such notifications exempt any Government establishment from the provisions of this section."

3. Sub-Section (2) of Section 34 of the Act further

mandates that in case in any recruitment year any vacancy cannot

be filled up due to non-availability of a suitable person with

benchmark disability or for any other sufficient reasons, such

vacancy shall be carried forward in the succeeding recruitment

year and if in the succeeding recruitment year also, suitable person

with benchmark disability is not available, it may first, be filled by

interchange among the five categories, as noted above, and only

when there is no person with disability available for the post in

that year, the employer shall fill up the vacancy for appointment of

a person, other than a person with disability.

The Proviso to Sub-Section (2) of Section 34 reads that

if the nature of vacancies in an establishment is such that a given

category of person cannot be employed, the vacancies may be

interchanged among the five categories with the prior approval of

the appropriate Government. A plain reading of Sub-Section (1)

and Sub-Section (2) of Section 34 of the Act leaves no room for

doubt that the provisions are mandatory. This is also for the reason

that Sub-Section (3) of Section 34 uses the word 'may' and thus

enables the appropriate Government to provide for such relaxation Patna High Court CWJC No.14008 of 2021 dt.14-09-2021

of upper age limit for employment of benchmark disability, as it

thinks fit. The use of expression 'shall' in Sub-Section 1 and Sub-

Section (2) of Section 34 of the Act read with clear language of the

said provisions, clearly indicates the legislative intent that the said

provisions are unambiguous and are mandatory in nature.

The State Government of Bihar had issued a resolution

dated 12.10.2017 published in Bihar Gazette on 13.10.2017 in

relation to providing reservation in appointment in the State

Government services and in admission in educational institutions

under the provisions of the Act. Sub Clause (IX) of Clause (2) of

which provided that where in any recruitment year any vacancy

cannot be filled up because of non-availability of suitable person

with disability or for any other reasons, it shall be filled by

interchange among the 4 categories and if there is no person with

disability available for the post in that year, the employer shall fill

up the vacancy by appointment of a person other than a person

with disability. Such vacancy shall not be carried forward for the

next recruitment year, the notification stipulated. The difference

between the statutory mandate under Sub-Section (2) of Section 34

of the Act and Sub-Clause (IX) of Clause (2) of the State

Government notification dated 12.10.2017 is to the effect that

whereas Sub-Section (2) of Section 34 of the Act mandates that the

vacancy shall be carried forward in succeeding recruitment year, if Patna High Court CWJC No.14008 of 2021 dt.14-09-2021

in any recruitment year any vacancy cannot be filled up due to

non-availability of suitable person and only in succeeding

recruitment year, if a suitable person with benchmark disability is

not available, it may first, be filled by interchange among the 5

categories and only when there is no person with disability

available for the post in that year, the employer may fill up the

vacancy for appointment of persons other than those with

disability; Sub-Clause (IX) Clause (2) of the notification dated

12.10.2017 on the contrary proscribes carrying forward the

vacancy in succeeding recruitment year, apparently in conflict with

the requirement under Sub-Section (2) of Section 34 of the Act.

The State Government has issued another notification published in

Bihar Gazette on 25.01.2021 vide resolution dated 22.01.2021,

Clause 9 of which is now in tune with the requirement under Sub-

Section (2) of Section 34 of the Act and provides for carrying

forward the vacancies in succeeding recruitment year, if in any

recruitment year, any vacancy cannot be filled up due to non-

availability of suitable persons with benchmark disability. The

interchange among the five categories has now been stipulated in

the said notification published on 25.01.2021.

4. Be it noted that both the notifications published on

13.10.2017 and 25.01.2021 which are in the nature of executive Patna High Court CWJC No.14008 of 2021 dt.14-09-2021

instructions have been issued for implementation of the provisions

of the Act.

5. The short question which has emerged in the present

writ application is: can Sub-Clause (IX) of Clause 2 of the

executive instructions dated 12.10.2017, which on the face of it

does not conform to the mandatory requirement under Sub-Section

(2) of Section 34 of the Act be permitted to prevail in the matters

relating to appointments in the services under the State

Government of Bihar?

6. The notification dated 12.10.2017 (Annexure 2) is the

sheet anchor of the petitioners who claim to be 'orthopedic

handicapped' (OH), apparently falling under the category (c) of

Sub-Section (1) of Section 34 of the Act viz. 'Locomotor

Disability' and are aspirants for the post of Assistant Engineer

(Civil)/Assistant Engineer (Mechanical) against Advertisement

No. 02/2017, 03/2017 and 04/2017 published by the Bihar Public

Service Commission (in short B.P.S.C.) on 09.11.2017. The said

advertisements stipulated reservation for persons with disability in

the process of selection.

7. The advertisement prescribed that main written

examination would be conducted for selection of suitable

candidates and those who qualify in the written test shall be

invited for interview. The advertisement further prescribed that the Patna High Court CWJC No.14008 of 2021 dt.14-09-2021

final merit list would be prepared on the basis of marks scored in

the written examination and interview taken together. Furthermore,

it provided that the B.P.S.C. might conduct a preliminary test in

case of exceeding number of aspirants.

It is the petitioners' case that relying upon the

representation and promise of the State Government in its

notification dated 12.10.2017 and in the advertisement they

applied for the posts advertised with a reason to believe to get

benefit of horizontal reservation 'irrespective of their falling under

any category of disability'. A preliminary test was conducted. The

petitioners were declared successful in the result published by the

B.P.S.C. on 30.01.2019, which mentioned that 4% of horizontal

reservation had been provided for candidates with benchmark

disability. Thereafter, a notification dated 06.02.2019 was

published for filling up forms of the main (written examination),

which too specifically provided that 4% horizontal reservation

shall be provided for candidates with disability. Reliance has also

been placed on Sub-Clause 5 of Clause 6 of the notice for main

(written) examination (Annexure 4) which provided that during the

process of selection there would not be any change or correction in

reservation category. The petitioners participated in the mains

examination and were declared successful in the result published

on 24.01.2021. In the said result, it was mentioned that horizontal Patna High Court CWJC No.14008 of 2021 dt.14-09-2021

reservation as stipulated vide notifications no. 13062 and 962

dated 12.10.2017 and 22.01.2021 had been taken into account.

Knowing well that the B.P.S.C. had taken into account the

subsequent notification dated 22.01.2021; the petitioners

participated in the interview. In the final result was published on

14.07.2021 the petitioners could not find their place. It has been

mentioned in the final result that seventeen vacancies under the

category of disabled persons have been left vacant due to their

non-availability. The said posts have not been filled up in the light

of the resolution of the General Administration Department,

Government of Bihar dated 22.01.2021.

8. In the aforesaid background of the facts, Mr. S.D.

Sanjay, learned Senior counsel appearing on behalf of the

petitioners has submitted that the respondent B.P.S.C. has wrongly

applied the resolution of the State Government dated 22.01.2021

in the present selection process which had begun initially in 2017

when the earlier notification dated 12.10.2017 was operative. He

has contended that at each and every stage of the process of

selection before publication of result of main examination, the

B.P.S.C. had represented that provisions under notification dated

12.10.2017 shall apply for the recruitment process in question. He

has contended that it was impermissible for the B.P.S.C. to have

changed the very process of selection in the midst of selection Patna High Court CWJC No.14008 of 2021 dt.14-09-2021

which has resulted into adverse consequences vis-à-vis the

petitioners. He has heavily relied on the stipulation in the notice

for main examination issued by the B.P.S.C. which had mentioned

that no correction or change in reserved category would be

allowed during the process of selection. He has further submitted

that the subsequent notification issued by the State Government on

22.01.2021 could not have been applied in the present process of

selection, initiated much before issuance of the said notification,

which is apparently prospective in nature and came into force with

effect from. the date of its publication in official gazette. He has

contended that had the B.P.S.C., in conformity with the resolution

dated 12.10.2017, allowed interchange in case of non-availability

of suitable candidates in one of the categories of candidates having

benchmark disability, the petitioners of OH category would have

been selected. He has contended that applying the said resolution,

the B.P.S.C. ought not to have carried forward the vacancies and

instead ought to have filled up the vacancy by the petitioners by

applying the rule of interchange. He has further contended that the

action of the B.P.S.C. is hit by the doctrine of promissory estoppel

and legitimate expectation. He has relied on following Supreme

Court's decisions to bolster his contention:-

1. State of Bihar and Ors.v. Suprabhat Steel Ltd. and

Ors. reported in (1999) 1 SCC 31, Patna High Court CWJC No.14008 of 2021 dt.14-09-2021

2. State of Punjab v. Nestle India Ltd. and Anr.

reported in (2004) 6 SCC 465, and

3. Manuelsons Hotels Pvt. Ltd. v. State of Kerala and

Ors. reported in (2016) 6 SCC 766.

9. He has submitted that the petitioners had changed

their position by responding to the representation made by the

B.P.S.C. to the effect that horizontal reservation shall be provided

to candidates falling in various categories under Section 34 (1) of

the Act in accordance with the stipulation made in the notification

dated 12.10.2017, by submitting application their forms. The

B.P.S.C., according to him, is now estopped from reverting back

from the promise made in the advertisement by adopting a

notification issued subsequently on 22.01.2021.

This submission in the Court's opinion is preposterous

and is wholly untenable in the facts and circumstances of the

present case, and is accordingly rejected.

10. Mr. Lalit Kishore, learned Senior counsel appearing

with Mr. Sanjay Pandey for the B.P.S.C. has relied on a co-

ordinate Bench decision of this Court dated 12.12.2019 rendered

in C.W.J.C. No. 17528 of 2019 (Atul Ranjan v. The State of

Bihar and Ors.) wherein this Court, taking note of various

provisions under the Act has held Sub-Clause (IX) of Clause (2) of

the resolution dated 12.10.2017 to be illegal being in conflict with Patna High Court CWJC No.14008 of 2021 dt.14-09-2021

the mandatory statutory provision under Sub-Section (2) of

Section 34 of the Act. He has submitted that the State of Bihar and

the B.P.S.C. have acted in the light of the observations and

direction made in case of Atul Ranjan (supra) by issuance of

subsequent notification dated 22.01.2021. In compliance of the

observations made in case of Atul Ranjan (supra), the B.P.S.C. has

published the result, which cannot be put in question by the

petitioners who had participated in the process of interview

knowing well the publication of notification dated 22.01.2021.

11. In reply, Mr. S.D. Sanjay, learned Senior counsel for

the petitioners has submitted that the said decision in case of Atul

Ranjan (supra) cannot not have retrospective effect and should be

treated to have prospective effect only. He has urged that if any

change was essentially required in the process of selection for any

reason including violation of the provisions under the Act, the

advertisement itself ought to have been cancelled. He has

commented that this Court in case of Atul Ranjan (supra) could

have quashed the advertisement itself instead of asking the

B.P.S.C. to change the selection procedure, as prescribed in the

advertisement. He has further argued that said judgment in case of

Atul Ranjan (supra) is in a different context where the challenge

was denial of reservation by the State to the candidates under the

multiple disability categories in breach of the provision under the Patna High Court CWJC No.14008 of 2021 dt.14-09-2021

Act. He has then contended that the basic question which had

arisen in case of Atul Ranjan (supra) was as to whether the

respondents had defied the statutory requirement under Section 34

of the Act. Referring to certain observations made in case of Atul

Ranjan (supra), he has submitted that this Court, despite noticing

similar defect in the results of 63 rd and 64th Combined Competitive

Examination with respect to reservation for multiple disability

category, refused to interfere with the outcome of the said two

examinations. He has further urged that the question of carrying

forward was neither raised nor was in issue in case of Atul Ranjan

(supra) and, therefore, this Court had no occasion to decide the

issue in that case .

12. This Court in case of Atul Ranjan (supra) has

expressly held in paragraph 15 which reads as under:-

"15. Further, I find substance in the submission made on behalf of the petitioner that clause (ix) of the resolution dated 12.10.2017 (Annexure-C to the counter affidavit of Commission) to the extent it prohibits carrying forward the vacancies for subsequent selection process, if the persons suffering with disabilities are not available, is in clear breach of Section 34 (2) of the Act, which mandates that in the event in any recruitment year, any vacancy could not be filled up Patna High Court CWJC No.14008 of 2021 dt.14-09-2021

due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, vacancies may be filled up by interchange among the five categories and only if there is no person with disability is available for the post in the subsequent year, the appropriate Government shall fill up the vacancy by appointment of a person, other than a person with disability. Clause (ix) of the resolution dated 12.10.2017, in my view, is not legally sustainable and, therefore, this Court has no other option but to declare the same illegal and consequently stands struck down. The respondents, as consequence thereof will have the obligation to proceed, in letters and spirit and in accordance with the prescription under sub-section (2) of Section 34 of the Act."

13. In view of the law, as interpreted by this Court in

case of Atul Ranjan(supra), the entire claim of the petitioners

based on the resolution dated 12.10.2017 fails. Patna High Court CWJC No.14008 of 2021 dt.14-09-2021

14. Mr. S.D. Sanjay, learned Senior counsel for the

petitioners is incorrect in his submission that the issue of the

vacancies being carried forward was not raised in case of Atul

Ranjan (supra). It appears that he has missed to see paragraph 9 of

the said decision which reads as under:-

"9. There is another grievance, which has been raised on behalf of the petitioner. It is his case that sub- section (2) of Section 34 of the Act mandates that if in any recruitment year any vacancy cannot be filled up due to non-availability of a suitable person with benchmark disability or for any other sufficient reasons, such vacancy shall be carried forward in the succeeding recruitment year and if in the succeeding recruitment year also suitable person with benchmark disability is not available, it may first be filled by interchange among the five categories and only when there is no person with disability available for the post in that year, the employer shall fill up the vacancy by appointment of a person, other than a person with disability.

Heavy reliance has been placed by Mr. Bindhyachal Singh, learned petitioner's counsel on the language of the proviso to sub-section (2) of the Act which states that if the nature of vacancies in an establishment is such that a given category of a Patna High Court CWJC No.14008 of 2021 dt.14-09-2021

person cannot be employed, the vacancies may be interchanged among the five categories with the prior approval of the appropriate Government. He has submitted that in utter disregard to the provision in sub-section (2) of Section 34 of the Act, which requires unfilled vacancies because of non-

availability of suitable person with benchmark disability to be carried forward, the General Administration Department, Government of Bihar has taken a contrary decision, as contained in the resolution dated 12.10.2017, paragraph (ix) whereof reads thus:-

"(ix) "जहाँ ककसी भरीर वरर मे कदवयां गजन अकधकार अकधकनयम, 2016 की धधरध -34 के अकधन ककसी करककर के कवरर ध उपयर रकर कदवयां ग वयककर की अनर पलबधरा के कारण या ककनही अनय पयारपर कारण से भरा नहीं जा सकरा है , रो इसे उसी समवयवहार मे चारो प्रवगोरं के कबच परसपर पकरवररन दारा भरा जा सकेगा और केवल रभी जब वरर मे पद के कलए कोई कदवयां ग वयककर उपलबध नहीं है , कनयोजक कदवयां ग वयककर से कभनन ककसी अनय वयककर की कनयर ककर कर के करककर को भरे गा, वहां ऐसी करककर अगले वरर मे अग्रकणर नहीं की जाएगी I"

15. The Supreme Court decisions relied on by Mr. S.D.

Sanjay, learned Senior counsel for the petitioners are not at all

applicable in the present facts and circumstances of the case, as

noted above, firstly for the reason that those decisions deal with Patna High Court CWJC No.14008 of 2021 dt.14-09-2021

commercial transactions. In my opinion, mere participation of the

petitioners in the process of selection in response to the so called

promise made by the B.P.S.C. does confer upon them any right on

the petitioner, requiring the B.P.S.C. or the Government of Bihar to

commit illegality and act contrary to law. In any event, the

doctrine of principle of promissory estoppel or legitimate

expectation do not operate against law. As has been discussed in

case of Atul Ranjan (supra), relevant portion of which has been

quoted above, the notification dated 12.10.2017 on which the

petitioners have placed reliance has been held to be contrary to

mandatory statutory provisions under the Act.

16. The submission made by Mr. S.D. Sanjay that the

effect of the said decision in case of Atul Ranjan(supra) should be

held to be prospective and not retrospective, is in the Court's

opinion, not at all tenable. The Court in case of Atul

Ranjan(supra) has simply interpreted the provisions of the Act

which came into force from 27.12.2016.Various provisions under

the Act were the basis for decision in case of Atul Ranjan(supra).

It will have a disastrous consequence if a Court while interpreting

statutory provisions holds the judgment to be prospective, as that

will have the effect of reading the enactment as read by the Court

in its judgment from the date of judgment.

Patna High Court CWJC No.14008 of 2021 dt.14-09-2021

17. Such submission in the Court's opinion is wholly

unreasonable and is accordingly rejected.

18. For the reasons aforesaid, I do not find any merit in

this application.

19. This application is accordingly rejected.

(Chakradhari Sharan Singh, J)

AKASH/-

AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          16.09.2021.
Transmission Date       N/A