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                                                  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  

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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  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,  

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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  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  

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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  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 30  th   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  

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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  

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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  

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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  

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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  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  

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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  

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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.    

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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  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,  

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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  

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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]

NEW DELHI FEBRUARY 03, 2016.

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