MIRZA ARIF RAZA & ORS. Vs. STATE OF BIHAR & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 857 of 2016, Judgment Date: Feb 03, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 857 OF 2016
[ARISING OUT OF SLP(C) NO. 204 OF 2010]
MIRZA ALI RAZA & ORS. ….. APPELLANTS
VERSUS
STATE OF BIHAR & ORS. ….. RESPONDENTS
WITH
TRANSFERRED CASE NO. 27 OF 2010
JAGBANDHU MAHTHO & ANR. ….. APPELLANTS
VERSUS
STATE OF BIHAR & ORS. ….. RESPONDENTS
TRANSFERRED CASE NO. 28 OF 2010
BIRENDRA PRASAD ….. APPELLANT
VERSUS
STATE OF BIHAR & ORS. ….. RESPONDENTS
O R D E R
IA No. 17 seeking impleadment of Anil Kumar Singh is allowed.
IA Nos. 16 and 20 seeking transposition of respondent Nos. 13 and 14 are
also allowed and they are transposed as petitioner Nos. 4 and 5.
2. Cause title be amended accordingly.
3. Leave granted.
4. Heard Mr. R. Venkataramani, learned senior counsel for the
appellants, Mr. Shivam Singh, learned counsel for the State of Bihar and
Mr. Jayesh Gaurav, learned counsel for the State of Jharkhand.
5. By this order, we dispose of Civil Appeal arising out of SLP©
NO.204 of2010 as well as Transferred Cases Nos. 27 and 28 of 2010. For
passing appropriate orders in these cases, it is necessary to refer to
certain facts which necessitated the filing of this appeal by the
appellants.
6. There was a selection made by the State of Bihar for various
common posts in the Gazetted Cadre. An advertisement was made on 9th
January, 1989 which was known as 36th Combined Competitive Examination. At
the time when the advertisement was issued the issue relating to
reservation policy was covered by the Resolution dated 10th November, 1978.
Subsequent to the advertisement, there was another Resolution pertaining to
reservation policy which came into being on 30th October, 1990. By order
dated 7th January, 1991, the State Government declared that the policy
resolution dated 30th October, 1990 would apply even to the examinations
already held for which results were not announced.
7. The selection which was made pursuant to the said 36th Combined
Examination was proceeded with and according to the candidates who belonged
to the general merit category, in respect of Government Order dated 7th
January, 1991, the Resolution dated 30th October, 1990 was not violated.
The said writ petition came to be disposed of by the learned Single Judge
by order dated 14th May, 1999. The learned Judge took the view that those
writ petitioners having not challenged the result published and the
appointment made pursuant to the result which was on 11th May, 1991 and the
posts having been filled up there was no scope to interfere with the
selection. The learned Single Judge also noted that in the absence of the
selected candidates having been impleaded as party respondents before the
Court there was no scope to interfere with the selection. The learned
Single Judge therefore declined to consider the prayer for creating any
shadow post to accommodate such of the candidates in the general merit
category whose claim according to them was prejudiced by the presence of
candidates who otherwise belonged to reserved category. The learned Judge
while declining the said prayer made it clear that it was in the domain of
the State authorities and not for the Court to give any such directions.
8. The order of the learned Single Judge was challenged by way of
Letters Patent Appeal and in LPA NO. 92 of 1999, the Division Bench
reversed the order of the learned Single Judge and with a view to,
apparently, salvage the situation gave the following directions:-
“In our view, perhaps it was not brought to the notice of the learned
Judge that the Government's resolution dated 30th October, 1990 was already
quashed by this Court on 23.05.1991 even before publication of the result
by the Commission. The result of the examination was, in fact, published
on 11.05.1991. Therefore, undisputedly, the candidates who got higher
position in the panel getting the benefit of reservation policy notified
vide resolution of the government dated 30th October, 1990, are affected by
the judgment of this Court dated 23.05.1991. Because the said reservation
policy was already quashed, therefore, it is incumbent upon the State
Government either to create shadow posts to accommodate the appellants
against higher posts or higher pay scale or to take a decision to push down
the candidates, who got appointments on the basis of the reservation
policy, which was already quashed. It goes without saying in case it is
necessary to push down some of the candidates, who were appointed earlier
on the basis of Resolution dated 30th October, 1990, the State Government
will be required to give notice to such candidates, who may be affected.”
[underlining is ours]
9. The Division Bench passed its order on 22nd February, 2000.
Initially, there was no challenge to the order of the Division Bench. A
contempt proceedings came to be initiated at the instance of the appellants
in Letters Patent Appeal in MJC NO. 1938 of 1999. Notice was initially
issued by order dated 15th March, 2004. Thereafter, the State Government
appeared to have consulted the State Public Service Commission who opined
unanimously that since the contestants in the Letters Patent Appeal were
merely four in number even while complying with the order of the Division
Bench dated 22nd February, 2000, the same may confined to those four
appellants by providing supernumerary posts. However, the State Government
passed orders on 30th April, 2004 by which it chose to go in for the second
option provided in the order of the Division Bench dated 22nd February,
2000 and the said order resulted in dislocating as many as 27 officers of
whom the appellants in this appeal by way of special leave as well as the
petitioners in the transferred cases, nine of whom were included.
10. Be that as it may, the order dated 20th February, 2000 of the
Division Bench was subject matter of challenge in this Court in SLP (C)
No.20589 of 2004 and this Court by order dated 24th September, 2004
declined to entertain the Special Leave Petition and thereby the said
order of the Division Bench became final and conclusive.
11. After the order of the State Government dated 30th April,
2004, the Division Bench also closed the contempt proceedings in MJC NO.
1938 of 2000 by order dated 5th May, 2004. While concluding the said
proceedings, the Division Bench has noted a very relevant factor namely,
that two of the aggrieved applicants in the contempt proceedings namely,
Devendra Kumar Singh and Deobana Kumar Singh were benefitted by the said
order dated 30th April, 2004 and that insofar as two other applicants
namely, Sudhanshu Shekhar Tripathi and Shashi Bhushan Jha were concerned,
since the State Government claimed to have complied with the direction of
the Division Bench in the order dated 20th February, 2000, if they were
still aggrieved, it will be open for them to workout their remedy in regard
to their grievance in the manner known to law.
12. It must be noted that barring the above said four persons no
other person had any grievance relating to the selection made in the 36th
Combined Competitive Examination. Even Special Leave Petition preferred by
one of the aggrieved contempt applicant in SLP (C) NO. 20732 of 2004 was
also dismissed by this Court by order dated 7th November, 2005.
13. It was in the above stated background the appellants before us
as well as the petitioners in the Transferred Cases approached the High
Court challenging the order dated 30th April, 2004 in two writ petitions in
W.P.NO.2024 and 2027 of 2004. The writ petitions were initially allowed by
the learned Single Judge by order dated 17th September, 2007. In fact
while initially entertaining the writ petition, the status of the
petitioners along with the others were protected by way of an interim order
dated 17th May, 2004. In the final order dated 17th September, 2006, the
learned Judge while setting aside the order insofar as the writ
petitioners were concerned also directed to maintain their status quo as it
existed on the date of passing of the orders till they get an opportunity
to move the appropriate forum for redressal of their grievances. However,
three days later by order dated 20th September, 2007, the resultant portion
of the order was modified to the effect that their writ applications were
dismissed and the impugned order was not being quashed but even while
maintaining the status quo of the petitioners as it existed on that day for
a period of eight weeks, they were given liberty to move the appropriate
forum for the redressal of their grievances.
14. Aggrieved by the said order of the learned Single Judge,the
appellants filed LPA and by the impugned judgment dated 8th September,
2008, the Division Bench recorded the statement made on behalf of the State
Government to the effect that it decided to allow eight officers whose
service came to be terminated apart from joining the 27 officers who were
affected by the order dated 30th April, 2004 in the changed service cadre
by creating shadow posts wherever needed. The Division Bench while
accepting the said proposal made on behalf of the State Government,
directed that until fresh orders are issued, the appellants before the
Division Bench should not be removed from service. The Division Bench also
took the view that the grievances of the appellants before it was fully
redressed by accepting the statements of the State Government and nothing
further need be done in the Letters Patent Appeal.
15. Aggrieved by the said order of the Division Bench, the
appellants and the petitioners in the transferred cases are before us.
16. Mr. R. Venkataramani, learned senior counsel in his
submissions, submitted that by the proposal submitted before the Division
Bench of the High Court namely, by allowing the 27 officers which included
the appellants herein in the Changed Service Cadre and by creating shadow
posts, the real challenge made by them in the writ petition as well as in
the Letters Patent Appeal cannot be said to have been fully redressed.
According to the appellants and the petitioners in the transferred cases,
when the State Government chose to follow the second option referred to in
the order dated 20th February, 2000 there should have been an opportunity
extended to them and since they were taken aback unaware by the order dated
30th April, 2004 there was every justification for setting aside the said
order. The learned senior counsel submitted that the learned Single Judge
while passing the order dated 17th September, 2007 having noted that there
was no intrinsic change in the policy of the year 1978 or 1990 in selecting
the reserved candidates when they faired well in the open merit category
and thereby the reservation policy would not be in any way affected, the
interference with the said selection was wholly uncalled for. The learned
senior counsel also pointed out that the selection came to be made in the
year 1990, appointments came to be issued in the year 1992 and the
appellants and the petitioners in the transferred cases were all continuing
in their respective posts in which they came to be originally appointed
till this date by virtue of the interim orders granted by the Court and in
that process 25 years have gone by and it would be harsh to allow the
State Government to proceed with the stand expressed before the Division
Bench and thereby upset the entire matter of selection initially made which
remained in force till this date.
17. Learned senior counsel also pointed out that only four persons
were really aggrieved relating to the selection made in the year 1991 and
of whom grievances of two of the persons have been safely redressed while
two others were given liberty to work out their remedy who chose not to
proceed further and thereby they have accepted the order passed by the
Division Bench in the Contempt Petition No. MJC NO.1938/1999 dated 5th May,
2004. The learned senior counsel, therefore, contended that it would be
wholly inequitable and inappropriate if the order of the Division Bench is
allowed to remain.
18. Mr. Shivam Singh, learned counsel for the respondent State of
Bihar and Mr. Jayesh Gaurav, learned counsel appearing for the State of
Jharkhand also tried to contend that since the order of the Division Bench
dated 20th February, 2000 has become final and conclusive, it was incumbent
upon the State Government to comply with the said order especially when the
State Government was facing contempt of the said order in MJC NO. 1938 of
1999. The learned counsel for the State of Bihar, therefore, submitted that
while exercising its second option as directed in the said order dated 22nd
February, 2000, it became inevitable for the State of Bihar to pass the
order dated 30th April, 2004 behind the back of the petitioners. Insofar
as the State of Jharkhand is concerned, we find that by virtue of the
order dated 30th April, 2004, when the dislocation of the appellants and
petitioners in the transferred cases, in particular, Mr. Paras Nath Yadav
and Jagbandhu Mahto are concerned, as a result of the said order the State
of Jharkhand had directed both of them to get themselves repatriated to the
State of Bihar.
19. Having heard and having noted the respective submissions and
having perused the material papers, we find that having regard to the
position that prevails as on date, we can pass orders directing the
respective State Governments to continue to allow the appellants and
petitioners in the transferred cases who have come before us to hold the
respective posts for which they came to be originally appointed and by
passing such orders no prejudice can be caused either to the respective
State Governments or to those aggrieved officers who initiated the
proceedings by filing their writ petitions, namely, Writ Petitions - CWJC
NO. 10892/94 and CWJC No.3699/1993 which later on culminated in the order
of the Division Bench dated 22nd February, 2000 passed in LPA NO. 692 of
1999. As was noted by us earlier in the order dated 5th May, 2004, all the
four appellants Devendra Kumar Singh, Deoband Kumar Singh got their
respective posts changed by the order dated 30th April, 2004 in the higher
post of Bihar Education Service and thereby their grievances stood
redressed. By effecting the said change, none of the appellants and
petitioners in the transferred cases were affected. Insofar as two other
appellants namely, Sudhanshu Kumar Tripathi and Shashi Bhushan Jha are
concerned, though they raised a grievance in the contempt petition namely,
MJC NO. 1388 of 1999 as against the order dated 30th April, 2004, the
Division Bench while passing its order in contempt petition on 5th May,
2004, made it clear that the compliance reported in the order dated 30th
April, 2004 was acceptable to it and it was not inclined to proceed with
the contempt application. It, however, gave liberty to those two officers
to work out their remedy in accordance with law if they are so advised.
The fact remains that both of them have not chosen to make any further
challenge. Thereby the grievance of those four officers now stands
concluded and no further orders are necessary in their cases.
20. In the said situation, since the appellants and petitioners in
transferred cases have been holding the post from the date of their initial
appointment and are continuing as such till this date namely for the past
more than 25 years and in the absence of any serious challenge to their
holding of the respective posts, we are convinced that by allowing them to
continue to retain their posts till they reach the age of superannuation no
prejudice will be caused to anyone. With that view by holding that the
appellants and the petitioners in the transferred cases stands and they
shall be transferred cases shall be allowed to hold their posts in which
they came to be initially appointed without reference to the order dated
30th April, 2004 and also making it clear to the State Governments not to
interfere with the said posting initially made and the subsequent benefits
accrued to them based on such posting and also allow them to retire on
their reaching the age of superannuation. The appeal and the transferred
cases stand disposed of.
21. The benefit granted under this order should enure to the
applicants in IA NOs. 16, 17 and 20 who are identically placed like that of
the appellants and who have been pursuing their remedies till this date.
Their status quo ante should be restored. We hasten to add that this order
shall not be and cannot be quoted as a precedent in any other case,
inasmuch as this order is being passed in the peculiar facts and
circumstances of the cases on hand, as noted by us in detail in the earlier
part of our order.
…...................................J
[FAKKIR MOHAMED IBRAHIM KALIFULLA]
…...................................J
[C. NAGAPPAN]
NEW DELHI
FEBRUARY 03, 2016.
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