Lalit Kumar vs The State Of Bihar
2023 Latest Caselaw 3065 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                        Letters Patent Appeal No.612 of 2021
                                            In
                   Civil Writ Jurisdiction Case No.14008 of 2021
     ======================================================

1. Lalit Kumar, Son of Surya Dev Ray, Resident of Dhubauli Sube, 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 - Jehanabad.

4. Md. Neyaz Anwar, Son of Md. Nasim, Resident of Near Sikander Pan Dukan, Mahendru, 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 - Ghazipur (Uttar Pradesh).

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

... ... Appellant/s 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.

... ... Respondent/s ====================================================== Appearance :

     For the Appellant/s   :       Mr. S.D. Sanjay, Sr. Advocate
     For the State         :       Mr. P.K. Verma, AAG-3
     For the B.P.S.C       :       Mr. Lalit Kishore, Sr. Advocate

====================================================== Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE PARTHA SARTHY)

Date : 17-07-2023

1. Heard Mr. S.D. Sanjay, learned senior counsel for

the appellants, Mr. Lalit Kishore, learned senior counsel for the

Bihar Public Service Commission (BPSC) and learned counsel

for the State of Bihar.

2. The instant appeal has been preferred by the writ

petitioners-appellants against the judgment dated 14.09.2021,

passed in CWJC No. 14008 of 2021.

3. The case of the writ petitioners-appellants in brief is

that the BPSC came out with an advertisement dated

09.11.2017, bearing Advertisement Nos. 02/2017, 03/2017 and

04/2017 for appointment on the posts of Assistant Engineer

(Civil), Assistant Engineer (Mechanical) and Assistant Engineer

(Civil) respectively wherein it was mentioned that persons with

disability of 40% or more will get reservation as per the

provisions. The General Administration Department,

Government of Bihar came out with a resolution dated

12.10.2017, published in the Bihar Extraordinary Gazette dated

13.10.2017, wherein, it was resolved that in place of 3%, 4%

horizontal reservation in service would be given to persons with Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

disabilities. The said resolution also provided that in case the

person suffering with disability under the specific category is

not available or for any other reason the vacancy is not filled up,

then that vacancy shall be filled up by a person with disability

from the other category after interchanging it. Further, in case

the vacancy cannot be filled up, then the vacancy shall be filled

up by appointment of any other person and the vacancy shall not

be carried forward to another year or subsequent selection

process.

4. Learned senior counsel appearing for the appellants

submits that the appellants filed applications against

Advertisement No. 02/2017 hoping to get horizontal reservation

irrespective of their falling under any category of disability. The

appellants being under the category of disabled persons having

disability of being Orthopedically Handicapped (OH) applied

for appointment to the post of Assistant Engineer (Civil).

5. The BPSC published the result for the preliminary

examination on 30.01.2019 and the appellants were declared

successful. Subsequent thereto, the Assistant Engineer (Civil)

mains (written) competitive examination was conducted wherein

also the appellants appeared and were declared successful.

6. The General Administration Department, Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

Government of Bihar came out with a resolution published in

the Bihar Extraordinary Gazette on 25.01.2021, wherein, it was

provided that as per section 34(2) of the Rights of Persons with

Disabilities Act, 2016 ('the Act' in short), in case a vacancy for a

particular appointment year cannot be filled due to non-

availability of suitable person with benchmark disability or for

any sufficient reason then such vacancy should be carried

forward in the succeeding recruitment year and if even in the

succeeding recruitment year suitable person with benchmark

disability is not available, then the vacancy may be filled up by

interchanging among the categories. Further, only if no person

with disability is available for the post, then only the vacancy

can be filled up by appointment of a person other than the

person with disability.

7. Further case of the appellants was that they

appeared in the interview and final result was published on

14.07.2021. However, the names of the appellants were missing

in the merit list of the successful candidates. Learned senior

counsel for the appellants submits that the appellants were

surprised to find that even though the nature of disability of the

appellants was mentioned in the mark-sheet but they were

shown to have been considered in the general category. It was Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

further mentioned in the final result that seventeen vacancies

under the category of disabled persons were left vacant due to

their non-availability. The reason of the posts in the category of

disabled persons being left vacant was in view of the resolution

dated 22.01.2021 of the General Administration Department,

Government of Bihar. Not having been selected, the appellants

moved this Court by filing the writ application ie CWJC No.

14008 of 2021 praying therein for the following relief(s) :-

"1. (i) For a direction to the Respondents to declare the results of the Petitioners under the category of persons with benchmark disabilities by extending the benefit of reservation as provided by the Resolution dated 12.10.2017 of General Administration Department, Government of Bihar for the advertisement No. 02 of 2017 for appointment of the Assistant Engineer, Civil Competitive;

(ii) For a direction to the Respondents to declare the results of the Petitioners under the category of persons with benchmark disabilities by extending the benefit of reservation as mentioned in Assistant Engineer (Civil) Preliminary Competitive Examination Result dated 31.01.2019 and the Notification dated 06.02.2019 for filling of forms for Mains (Written) Competitive Examination;

(iii) For a direction to the Respondents to declare the results of the Petitioners under the category of persons with benchmark disabilities by extending the benefit of reservation as extended to the Applicants of the Advertisements Nos. 03/2017 and 04/2017 Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

dated 09.11.2017 published in the same Notification alongside the Advertisement No.02/2017;

(iv) For issuance of an appropriate Writ directing the Respondents to revisit the Results of the Petitioners and grant them the benefit of reservation by interchangeability of candidates among the different categories of Disabled Persons to fill up the 17 number of posts which has been left vacant on the ground of non-availability of Disabled Persons in particular categories;

(v) For issuance of an appropriate direction to the Respondents not to keep 17 posts vacant and to consider the case of the Petitioners as they have obtained higher cut-off marks in the category of Disabled Persons other than their own category;

(vi) For issuance of an appropriate writ for grant of stay on any further action by the Respondents for filling up the 17 vacancies for the post of Assistant Engineer Civil either by carrying forward in the subsequent selection process during the pendency of the present Writ Application and/or for any other relief(s) for which the Petitioner may be found entitled to in the facts and circumstances of the present case."

8. By Judgment dated 14.09.2021, the learned Single

Judge not finding any merit in the writ application was pleased

to reject the same. It is against this judgment that the instant

appeal has been preferred.

9. Counter affidavits have been filed on behalf of the Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

respondent-State of Bihar as also on behalf of the BPSC.

10. It was submitted by learned senior counsel

appearing for the appellants that the advertisement in question

having been published in the year 2017 itself, the rules of the

game could not be changed midway in the process of selection.

So far as the judgment dated 12.12.2019, in the case of Atul

Ranjan vs. The State of Bihar & Ors. (CWJC No. 17528 of

2019) is concerned, the mains examination in the selection

process had already been conducted on 21.08.2019 and there

was no question of its applicability. It was submitted that the

learned Single Judge failed to consider that the candidates under

the disabled category would become overage by the time the

next vacancies were published and so far as the applicability of

the resolution dated 22.01.2021 and the judgment in the case of

Atul Ranjan (supra) are concerned, they should not have been

made applicable to the ongoing process of selection but to future

selection processes. It was submitted that the Rights of Persons

with Disabilities Act, 2016 was a beneficial legislation and the

same had been legislated to confer benefit of reservation on

persons with disability and not to deprive them by keeping the

vacancies unfilled. It was also contended that the prescription to

interchange the vacant posts to other categories in the same Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

recruitment year was a conscious decision of the State

Government quite realizing the fact that, in the State of Bihar

recruitments are not carried out in every year and those entitled

under the disability category for the recruitment year would be

deprived of an opportunity by the time the next recruitment

takes place for reason only of their having crossed the maximum

age limit.

11. Learned senior counsel appearing for the

appellants relied on the judgments in the cases of Nair Service

Society vs T.Beermasthan & Ors [(2009) 5 SCC 545],

Bedanga Talukdar vs Saifudaullah Khan & Ors. [(2011) 12

SCC 85] and Tar Babu Yadav vs The State of Bihar & Ors

[2011 (4) PLJR SC 185] in support of his contentions.

12. Mr. Lalit Kishore, learned senior counsel

appearing for the BPSC submitted that pursuant to the

requisition from the concerned department, the BPSC published

Advertisement No.02 of 2017 on 03.03.2017, inviting

applications for appointment on the posts of Assistant Engineer

(Civil). Preliminary examination for the same was held on

15.09.2018 and result thereof published by the BPSC on

30.01.2019. Thereafter, the written (mains) examination was

held and the result was published on 24.01.2021. Interviews Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

were conducted from 22.02.2021 to 19.04.2021 and again from

25.06.2021 to 27.06.2021. The appellants appeared in the

interview but were not declared successful as they secured lesser

marks than the cut of marks in their category. The final result

was published by the BPSC on 14.07.2021, declaring 1240

candidates to be successful.

13. Learned senior counsel appearing for the BPSC

further submitted that the BPSC and the State of Bihar acted in

light of the observations and directions made in the case of Atul

Ranjan (supra), wherein, this Court taking note of various

provisions under the Rights of Persons with Disabilities Act,

2016 had held clause 2(ix) of the resolution dated 12.10.2017 to

be illegal being in conflict with section 34(2) of the Act. It was

for this reason that the BPSC departed from the earlier

reservation policy as notified on 12.10.2017 and adopted the

reservation policy as contained in resolution dated 22.01.2021. It

was submitted that the appellants participated in the selection

process and only after being declared unsuccessful that they

have challenged the same.

14. Having heard learned counsel for the parties, the

relevant facts in the instant case are that on requisition by the

concerned departments of the Government of Bihar, the BPSC Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

published Advertisement No. 02/2017 on 03.03.2017, inviting

applications for appointment on the posts of Assistant Engineer

(Civil). The preliminary examination was held on 15.09.2018

and the result of the same published on 30.01.2019. The BPSC

published the advertisement for the written (mains) examination

on 06.02.2019, the mains examination were held from

27.03.2019 to 31.03.2019 and the result thereof published on

24.01.2021, in which 3167 candidates including the appellants

were declared successful. Thereafter, the interview was

conducted from 22.02.2021 to 19.04.2021 as also from

25.06.2021 to 27.06.2021 and the final result selecting 1240

candidates was published by the BPSC on 14.07.2021.

15. As is evident, from the facts and submissions

stated herein above, the case of the appellants is that the process

of selection having commenced in the year 2017, the BPSC

should have proceeded with the selection in terms of notification

dated 12.10.2017 and should not have followed the notification

dated 22.01.2021, as by then the selection process had almost

come to an end; since it would amount to changing the rule of

the game midway.

16. At this stage, it would be relevant to mention that

section 34 of the Rights of Persons with Disabilities Act, 2016 Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

provides for reservations of not less than 4% in every

government establishment with persons with benchmark

disabilities as provided in the said section. For ready reference

section 34 of the Act is quoted herein below:-

"34. Reservation.- (1) Every appropriate Government shall appoint in every Government establishment, not less than four per cent 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, one per cent. each shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:-

(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 Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

State Commissioner, as 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.

(2) Where 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 dis- ability 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:

Provided 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.

(3) The appropriate Government may, by notification, provide for such relaxation of upper age limit for employment of persons with benchmark disability, as it thinks fit."

(emphasis supplied)

17. It may be mentioned here that the State Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

government came out with resolution dated 12.10.2017

(published in the Bihar Gazette on 13.10.2017), clause 2(ix) of

which provided that where in any recruitment year any vacancy

cannot be filled up because of non-availability of suitable

persons with disabilities or for any other reason, it shall be filled

by interchange among the four 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.

18. It may be mentioned here itself that Clause 2(ix)

of the resolution dated 12.10.2017, was clearly in the teeth of

section 34(2) of the Act which provided 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 was to be carried

forward to the succeeding recruitment year and only thereafter if

once again in the succeeding recruitment year also suitable

person with benchmark disability was not available, the same

could be filled up by interchange among the five categories and

only when there was no person with disability available for the

post in that year, the employer was to fill up the vacancy by

appointment of a person other than a person with disability. Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

19. The issue of Clause 2(ix) of the resolution dated

12.10.2017 being in breach of section 34(2) of the Act came up

for consideration of this Court in the case of Atul Ranjan

(supra) wherein the Court observed and held as follows:-

"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 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 Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

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) "जहहाँ ककिससी भरर्ती वरर्ष ममें कदिव्ययांगजन अकधिकिकार

अकधिकनयम, 2016 किसी धिकारका -34 किक अकधिन ककिससी

करककर किक कवरूद्ध उपयरर्षकर कदिव्ययांग व्यककर किसी

अनरपलब्धिरका किक किकारण यका ककिन्हसी अन्य पयर्याप्र किकारण

सक भरका नहसी जका सकिरका हह , रतो इसक उससी समव्यवहकार

ममें चकाररों प्रवगरर्गों किक बसीच परस्पर पकरवरर्षन दकारका भरका जका

सकिकगका और किकवल रभसी जब वरर्ष ममें पदि किक कलए

कितोई कदिव्ययांग व्यककर उपलब्धि नहहीं हह , कनयतोजकि

कदिव्ययांग व्यककर सक कभन्न ककिससी अन्य व्यककर किसी

कनयरककर किरकिक करककर कितो भरकगका , वहयां ऐससी करककर

अगलक वरर्ष ममें अग्रकणर नहहीं किसी जकायकगसी।"

10. Following is the near translation of the said part of the resolution:-

"Where in a recruitment year the vacancy is not filled up due to unavailability of the aforesaid disabled person or any other sufficient reasons against any vacancy, under Section 34 of Rights of Persons with Disabilities Act, 2016, it shall be filled up by mutual change among all the four sub categories of disability in the same transaction, but only when no disabled person is available Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

for the post in that year, the employer shall fill up the vacancy by appointing person other than disabled person (Differently abled) but in that case such vacancy shall not be carried forward in the next year.

11. He contends that whereas the law mandates carrying forward, of unfilled vacancies due to non- availability of persons with benchmark disability, the State Government has taken a decision not to carry the vacancies forward for subsequent processes of selection, which is illegal and against clear mandate of law.

.....................................................................

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 Comission) 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 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 Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

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."

20. Subsequent to the order dated 12.12.2019, in the

case of Atul Ranjan (supra) the State of Bihar came out with

the resolution dated 22.01.2021 (published in the Bihar Gazette

on 25.01.2021). Hence the notification though brought out

midway to the selection was not a change in rule brought about

by the government; but was a consequence of a judicial order

and a change made to bring the reservation and consequent

selection in tune with the central legislation mandating such

reservation. A bare perusal of the said resolution would show

that the clause 2(ix) of the earlier resolution dated 12.10.2017,

which was in the teeth of section 34(2) of the Act was removed

and this resolution was consistent with the provisions of the Act.

The BPSC, thereafter, came out with the results of the main

examination on 24.01.2021, wherein, the appellants were

declared successful and after holding interview came out with Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

the final results 14.07.2021.

21. So far as the judgments relied upon on behalf of

the appellants are concerned, in the opinion of the Court they are

of no assistance to the appellants. Learned senior counsel for the

appellants has referred to and placed reliance on paragraph

no.56 of the judgment in the case of Nair Service Society

(supra) which provides that different State governments may

have different methods of providing reservations and in the

opinion of the Hon'ble Supreme Court, the rules made by the

State government did not suffer from any infirmity or illegality.

In the case of Bedanga Talukdar (supra), learned senior

counsel has referred to paragraph nos. 29 to 32 thereof, wherein,

the Hon'ble Supreme Court held that the High Court committed

an error in directing that the condition with regard to the

submission of the disability certificate either along with the

application form or before appearing in the preliminary

examination could be relaxed in the case of respondent no.1.

Lastly, in the case of Tar Babu Yadav (supra) learned senior

counsel has referred to paragraph no.10 thereof wherein, a

Division Bench of this Court held that where the advertisement

specifies a last date or filing of supporting or other documents,

any document received after such date is to be rejected by the Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

selecting authority and in appropriate case where the selecting

authority is of the view that the time for furnishing of documents

should be extended, it may grant such extension by issuing a

public notice so that all the candidates may get the benefit of

such extension.

22. In the opinion of the Court, none of these

judgments relied upon on behalf of the appellants have any

application or are of any assistance to the appellants' case

herein.

23. So far as the facts of the instant case are

concerned, the advertisement for selection was first published on

03.03.2017. On perusal of the Advertisement nos. 02/2017,

03/2017 and 04/2017 dated 09.11.2017 brought on record as

Annexure-1 to the writ application, in the very first paragraph it

clearly mentions that pursuant of the order passed in CWJC no.

5799/2017 (Kumud Ranjan Prabhat and Ors. vs The State of

Bihar and Ors), in the Advertisement nos. 02/2017, 03/2017

and 04/2017 as the cut-off date for the minimum age has been

changed from 01.8.2016 to 01.8.2017, as such the last date for

filing application is fixed as 5 pm on 06.12.2017 and the new

vacancies which have occurred in the meantime are also being

included in this advertisement.

Patna High Court L.P.A No.612 of 2021 dt.17-07-2023

24. Further the notification on which great reliance is

being placed by the appellants came on 12.10.2017. As already

discussed above Clause 2(ix) of the resolution dated 12.10.2017

clearly being in the teeth of section 34(2) of the Act as has also

been held in the case of Atul Ranjan (supra), the respondents

came out with a resolution dated 22.01.2021. It was subsequent

thereto that the result of the mains examination wherein the

appellants were also successful was published on 24.01.2021

and after holding of interview the final result of the interview

was published by the BPSC on 14.07.2021.

25. Having considered all these materials, the learned

Single Judge by his judgment dated 14.09.2021 rejected the writ

application filed by the appellants. The Court finds no illegality

in the judgment of the learned Single Judge and no merit in the

instant appeal.

26. The appeal is dismissed.

(K. Vinod Chandran, CJ)

(Partha Sarthy, J) avinash/-

AFR/NAFR
CAV DATE                N/A
Uploading Date          17.07.2023
Transmission Date       N/A