Full Judgment Text
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
JUDGMENT
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
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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
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th
advertisement was made on 9 January, 1989 which was
th
known as 36 Combined Competitive Examination. At the
time when the advertisement was issued the issue relating
to reservation policy was covered by the Resolution dated
th
10 November, 1978. Subsequent to the advertisement,
there was another Resolution pertaining to reservation
th
policy which came into being on 30 October, 1990. By
th
order dated 7 January, 1991, the State Government
th
declared that the policy resolution dated 30 October,
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1990 would apply even to the examinations already held
for which results were not announced.
7. The selection which was made pursuant to the
th
said 36 Combined Examination was proceeded with and
according to the candidates who belonged to the general
th
merit category, in respect of Government Order dated 7
th
January, 1991, the Resolution dated 30 October, 1990
was not violated. The said writ petition came to be
disposed of by the learned Single Judge by order dated
th
14 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
th
which was on 11 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
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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
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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
th
Government's resolution dated 30 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
th
government dated 30 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
th
Resolution dated 30 October, 1990, the State
Government will be required to give notice to
such candidates, who may be affected.”
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[underlining is ours]
nd
9. The Division Bench passed its order on 22
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
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Letters Patent Appeal in MJC NO. 1938 of 1999. Notice
th
was initially issued by order dated 15 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
nd
22 February, 2000, the same may confined to those four
appellants by providing supernumerary posts. However,
th
the State Government passed orders on 30 April, 2004 by
which it chose to go in for the second option provided in
nd
the order of the Division Bench dated 22 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.
th
10. Be that as it may, the order dated 20
February, 2000 of the Division Bench was subject matter
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of challenge in this Court in SLP (C) No.20589 of 2004
th
and this Court by order dated 24 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
th
30 April, 2004, the Division Bench also closed the
contempt proceedings in MJC NO. 1938 of 2000 by order
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th
dated 5 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
th
dated 30 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
th
Division Bench in the order dated 20 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
th
to the selection made in the 36 Combined Competitive
Examination. Even Special Leave Petition preferred by one
of the aggrieved contempt applicant in SLP (C) NO. 20732
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of 2004 was also dismissed by this Court by order dated
th
7 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
th
the order dated 30 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
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th
dated 17 September, 2007. In fact while initially
entertaining the writ petition, the status of the
petitioners along with the others were protected by way
th
of an interim order dated 17 May, 2004. In the final
th
order dated 17 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.
th
However, three days later by order dated 20 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.
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14. Aggrieved by the said order of the learned
Single Judge,the appellants filed LPA and by the impugned
th
judgment dated 8 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
th
dated 30 April, 2004 in the changed service cadre by
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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
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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
th
option referred to in the order dated 20 February, 2000
there should have been an opportunity extended to them
and since they were taken aback unaware by the order
th
dated 30 April, 2004 there was every justification for
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setting aside the said order. The learned senior counsel
submitted that the learned Single Judge while passing the
th
order dated 17 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
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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
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accepted the order passed by the Division Bench in the
th
Contempt Petition No. MJC NO.1938/1999 dated 5 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
th
dated 20 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
nd
second option as directed in the said order dated 22
February, 2000, it became inevitable for the State of
th
Bihar to pass the order dated 30 April, 2004 behind the
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back of the petitioners. Insofar as the State of
Jharkhand is concerned, we find that by virtue of the
th
order dated 30 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.
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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
nd
Bench dated 22 February, 2000 passed in LPA NO. 692 of
th
1999. As was noted by us earlier in the order dated 5
May, 2004, all the four appellants Devendra Kumar Singh,
Deoband Kumar Singh got their respective posts changed by
th
the order dated 30 April, 2004 in the higher post of
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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
th
order dated 30 April, 2004, the Division Bench while
th
passing its order in contempt petition on 5 May, 2004,
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made it clear that the compliance reported in the order
th
dated 30 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
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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
th
order dated 30 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
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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]
JUDGMENT
NEW DELHI
FEBRUARY 03, 2016.
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