Patna High Court
Prakash Kumar vs The State Of Bihar on 24 January, 2024
Bench: Chief Justice, Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.6246 of 2022
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1. Prakash Kumar, S/o Ramakant Ram, R/o Jagdamba Colony, Sanchi Patti,
Hajipur, Vaishali-844101.
2. Aryan Raj, S/o Lalan Prasad, R/o Chintamanpur, East Champaran-845416.
3. Abhishek Anand, S/o Rajesh Kumar Singh, R/o Sukoon, Ward No.-7,
Bhardwaj Tola, Semaria, Begusarai-851126.
4. Kapildeo Kumar, S/o Rameshwar Singh, R/o Sukoon, Bahuria Bigha, Riur,
Aurangabad-824112.
5. Piyush Kumar, S/o Santosh Kumar, R/o 11/d, Vyapar Mandal, Near Ragni
Sinha Hospital, East Mohan Bigha, Dehri, Rohtas-821307.
6. Rakesh Prakash, S/o Chandra Bhushan Prakash, R/o Hilsa, Nalanda 801302.
7. Pinki Kumari, D/o Shriram Chandra Prasad, R/o Village Haribela, Ward
No.-12, Harri, Sitamarhi-843317.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar.
2. The Bihar Public Service Commission through its Chairman, 15 Jawahar Lal
Nehru Marg, Bailey Road, Patna-800001.
3. The Secretary, Bihar Public Service Commission, 15 Jawahar Lal Nehru
Marg, Bailey Road, Patna-800001.
4. The Additional Chief Secretary, Prohibition, Excise and Registration
Department, Government of Bihar.
5. The Additional Chief Secretary, General Administration Department,
Government of Bihar, Patna.
6. The Excise Commissioner-cum-IG, Registration, Prohibition, Excise and
Registration Department, Government of Bihar, Patna.
7. The Joint Secretary, Prohibition, Excise and Registration Department,
Government of Bihar, Patna.
8. The Joint Commissioner, Prohibition, Excise and Registration Department,
Government of Bihar, Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Dhananjay Kumar, Advocate
Mr. Kumar Amit, Advocate
For the Respondent/s : Mr. P.K. Shahi, Advocate General
Mr. Vikash Kumar (SC-11)
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJIV ROY
CAV JUDGMENT
Patna High Court CWJC No.6246 of 2022 dt. 24-01-2024
2/10
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 24-01-2024
The petitioners, directly appointed 'Inspectors,
Prohibition' pursuant to the 63rd Combined Competitive
Examination (for brevity 'CCE') conducted by the Bihar Public
Service Commission (for brevity 'BPSC') are aggrieved with
the alleged downgrading of the post from gazetted to non-
gazetted. The petitioners contend that the advertisement for the
63rd 'CCE' was under the Bihar Excise Service (Recruitment
and Service Conditions) Rules, 2009 (hereinafter referred to as
'Rules of 2009'). After the advertisement issued on 09.11.2017,
the 7th Pay Commission recommended restructuring of the cadre
of Bihar Excise Service.
2. Considering the policy of Prohibition having been
implemented within the State, there was also rechristening of
the department as 'Prohibition, Excise and Registration
Department'. Based on the recommendation of the 7th Pay
Commission, the post of 'Inspector, Excise' which was the entry
cadre under the 'Rules of 2009' was made non-gazetted and the
same included under the Bihar Non-Gazetted Excise Officers
(Recruitment and Service Conditions) Rules, 2017. These rules,
after the rechristening of the department, were renamed as the
Bihar Non-Gazetted Excise Officers (Recruitment and Service
Patna High Court CWJC No.6246 of 2022 dt. 24-01-2024
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Conditions) Rules, 2017 (hereinafter referred to as the 'Rules of
2017').
3. The 'Inspector, Prohibition', the erstwhile
'Inspector, Excise' was made a promotional post at the top of
the hierarchy among the non-gazetted posts. For the gazetted
service, Bihar Prohibition Service (Recruitment and Service
Conditions) Rules, 2018 (for short 'Rules of 2018') was brought
in. Therein, the 'Superintendent, Prohibition' was made the
entry cadre, which was earlier the promotional post of an
'Inspector, Excise'; both of which belonged to the gazetted
ranks, as per the 'Rules of 2009'. The petitioners challenge the
down-gradation of the post to which applications were called
for, after the advertisement and before the appointments. The
petitioners further challenge the 'Rules of 2017' downgrading
the post of 'Inspector, Excise' as a non-gazetted post and seek
for protecting the interest and seniority of all directly appointed
'Inspector, Prohibition' on the basis of the 63rd 'CCE'.
4. Learned counsel for the petitioners submitted that
the rules of the game should not be changed mid-way and the
down gradation of the post was arbitrary and illegal. The
petitioners had a legitimate expectation to be appointed as a
gazetted officer while the appointment was made to a non-
Patna High Court CWJC No.6246 of 2022 dt. 24-01-2024
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gazetted post. In fact, the persons who were appointed pursuant
to the 67th 'CCE' as 'Superintendent, Prohibition' have stolen a
march over those appointed as 'Inspectors, Prohibition' under
the 63rd 'CCE'. The petitioners also seek upgradation of the
persons appointed under the 63rd 'CCE' as Superintendent,
Prohibition. The petitioners rely on P. Mahendran and others v.
State of Karnataka and others; (1990) 1 SCC 411 and I.J.
Divakar and others v. Government of Andhra Pradesh and
another; (1982) 3 SCC 341.
5. Shri Vikash Kumar, learned Government Advocate
argues that there can be no allegation of 'change in rule mid-
way', since the selection process continued based on the
advertisement and there was no change in the procedure of
selection as prescribed in the advertisement. The petitioners
were appointed to the post which was advertised; which in the
interregnum had been made the highest hierarchical post in the
non-gazetted cadre. The petitioners could not have objected to
such restructuring of cadre and in any event, the petitioners
accepted the appointment and joined without demur. The
petitioners also continued therein and the present writ petition
was filed long after; alleging that the persons who were
appointed under the 67th 'CCE' were seniors to them. The
Patna High Court CWJC No.6246 of 2022 dt. 24-01-2024
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persons under the 67th 'CCE' were appointed to the post of
'Superintendent, Prohibition', the entry level at the gazetted
rank as per the new rules.
6. The petitioners were appointed after selection based
on the advertisement produced as Annexure-2. When the
advertisement was issued in the year 2017, specifically on
09.11.2017
, the cadre rules were that of 2017 and the post of
Excise Inspector was not an entry cadre in the gazetted rank.
The 'Rules of 2009' were amended by the 'Rules of 2017',
which came into force on 28.07.2017 even before the
advertisement was issued on 09.11.2017. Further, as has been
argued by the learned Government Advocate, the petitioners
accepted the appointment without demur, with open eyes,
knowing that they were appointed to the non-gazetted cadre.
The petitioners have now sought for an upgradation of the post,
challenging the 'Rules of 2017', in the year 2022 on the ground
that the persons appointed under the 67th 'CCE', though juniors
would be deemed seniors to the persons appointed earlier.
7. The argument of the petitioners, discounts the fact
that there has been a total cadre restructuring in the department.
The advertisement was to the post of Excise Inspector which
even if was in the gazetted cadre, before the advertisement, by
Patna High Court CWJC No.6246 of 2022 dt. 24-01-2024
the time the advertisement was issued and the appointment was
carried out, the cadre was restructured. The post to which the
selection was conducted was made a non-gazetted post and it
was placed at the top of the hierarchy of non-gazetted posts. The
restructuring of the cadre resulted in the 'Superintendent,
Prohibition' being made the entry level post. The petitioners
could not have been appointed to the entry level since it was a
higher post which had a higher scale of pay also. In fact, there
was a restructuring of posts and not a redesignation. As noticed
above, the petitioners had accepted the appointment and joined
the service without demur. Those who were appointed under the
67th 'CCE' were appointed to the post of 'Superintendent,
Prohibition', a higher post than that of 'Inspector, Prohibition'.
8. P. Mahendran (supra) was relied on by the learned
counsel for the petitioners. Therein, the issue was whether the
selection carried out as per the earlier rules was proper or not. In
the cited decision, the rules regarding qualification for eligibility
was amended, during continuance of the process of selection.
This would have disqualified persons who were eligible as per
the advertisement brought out on the basis of the earlier rules.
The selection procedure was completed under the old rules and
select-list finalized accordingly. It was held that the selection is
Patna High Court CWJC No.6246 of 2022 dt. 24-01-2024
not vitiated by the amendment to the rules. The amendment
made was to the very qualification of the candidates who are
eligible to apply and this would have definitely prejudiced the
persons who applied under the old rules, some of whom would
have been disqualified based on the amendment to the rules.
This is the circumstance under which the Hon'ble Supreme
Court upheld the selection carried out as per the old rules. The
prescription as to 'there can be no change in the rules after the
game has commenced' applies to the selection process and not
to the post to which appointment is made.
9. When a selection is carried out to a post which was
gazetted at the time of advertisement, which post was made a
non-gazetted post in the course of the selection process, the
appointing authority has two courses open to it, either to make
appointments to the lower post or shelve the entire selection
process so as to facilitate a fresh selection based on the new
rules and the cadre restructuring. In the present case, the
Government adopted the first course only because in the
selection process a lot of effort and money would have been
invested.
10. The appointees who were aware of the cadre
restructuring could have refused to take such appointment or at
Patna High Court CWJC No.6246 of 2022 dt. 24-01-2024
least challenged the appointment immediately on the ground of
the restructuring being bad. In any event, we are not convinced
that there is a flaw in the Government having appointed the
persons to the post advertised, the cadre in which it was
included was restructured, even before the advertisement was
issued.
11. Reliance was also placed on I.J. Divakar (supra).
The aforesaid judgment does not aid the petitioners and goes
against the very contention of the petitioners. The Hon'ble
Supreme Court held that there is no right to a post till the
selection is finalized. The Public Service Commission, in the
cited case, invited applications for direct recruitment and also
carried out the viva-voce test of the candidates. However, prior
to the finalization of the select-list, a Government order was
issued excluding recruitment to the aforesaid post from the
purview of the Public Service Commission. It was held that
inviting applications for a post does not by itself create any right
to the post in the candidate, who in response to the
advertisement makes an application. The candidate only gets
eligible for being considered for the post and as has been
noticed by us, the candidate could have refused to take
appointment on the restructuring made to the cadre.
Patna High Court CWJC No.6246 of 2022 dt. 24-01-2024
12. The candidate definitely would have the argument
of anyone offered an employment not being in a position to
refuse it. Considering the prevalent dearth of employment
opportunities, none could afford such refusal. The Government
on the other hand, as we noticed, has the compelling argument
of having invested considerable time, effort and money in the
selection process, which persuaded them to take the option of
offering appointment to the persons selected, without any
obligation on such persons offered appointment to take up the
appointment. Otherwise there would be occasioned further delay
in appointment, since the entire exercise would have to be
commenced, continued and concluded.
13. Learned counsel for the petitioners also relied on
the recommendation of the Fitment Committee and the 7 th Pay
Commission, produced as Annexure-4. The recommendation as
found in Annexure-4 is that due heed should be paid to the
interests of the personnel appointed directly to the post of
Inspector. The caution was expressed, since the post of Inspector
was the entry level post for the Bihar Excise Service before
transformation of the cadre, by which direct recruitment took
place at the level of Superintendent. The said observation or
recommendation is only applicable to the existing 'Inspectors,
Patna High Court CWJC No.6246 of 2022 dt. 24-01-2024
Excise' and not to those persons recruited subsequently. The
Rules admittedly were brought out in 2017 and the
appointments were made as per Annexure-3 on 19.02.2020.
14. The writ petition is devoid of merit and dismissed.
(K. Vinod Chandran, CJ)
Rajiv Roy, J: I agree.
(Rajiv Roy, J)
P.K.P./-
AFR/NAFR
CAV DATE 18.01.2024
Uploading Date 24.01.2024
Transmission Date
