ASHOK KUMAR SON OF SHRI ISHWAR PRASAD Vs. STATE OF BIHAR THROUGH THE SECRETARY, LAW DEPARTMENT, MAIN SECRETARIAT

JUDGEMENT

(1.) S .K.Katriar, J.

(2.) THE two writ petitions challenge the validity of sub -Section (3) of Section 4 of the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Ordinance, 1991 (Bihar Ordinance No. 33 of 1991) (hereinafter referred to as the "Ordinance"), which provides that a reserved category candidate who is selected on the basis of his merit shall be counted against 50% vacancies of open merit category and not against the reserved category vacancies. The two writ petitions also challenge the validity of sub -Section (4) of Section 4 of the Ordinance which provides that the same shall apply in supersession of anything to the contrary in the said Ordinance or any other law, rules enforced earlier, or any other judgment and decree of the Court, to all such cases in which all formalities of selection have completed before 1st of November 1990, but the appointment letters have not been issued. The present writ petition was dismissed by order dated 13.4.2000, on the ground that the petitioners had not laid the factual foundation for their contentions. The same was challenged by preferring Civil Appeal Nos. 1486 & 1487 of 2001 (Harendra Kumar Dubey vs. State of Bihar and Others), which was allowed by the Supreme Court by order dated 23.2.2001, whereby the order dated 13.4.2000 was set aside, and the matter was remitted to this Court for a fresh decision in accordance with law. We are, therefore, required to re -hear the matter and dispose of the writ petition on merits.

(3.) A brief statement of facts essential for the disposal of the writ petitions may be indicated. The basic facts shall be drawn from CWJC No. 454 of 1992. Resolution Nos. 756 and 757, dated 10.11.1978, intended to be of general application, issued by the Government of Bihar in the Department of Personnel and Administrative Reforms, prescribes the percentage of seats allocated to different categories for employment in the Government of Bihar. The State Government sent its requisition dated 8.1.1988 (Annexure -2), to the Subordinate Selection Board (hereinafter referred to as the "Board"), to make recommendations to fill up 424 posts for appointment in the Subordinate Education Service. Consequently, the Board issued advertisement No. 5/88, dated 30.5.1988 (Annexure -3), inviting applications for appointment. The advertisement stated that 50% of the seats were reserved in the proportion indicated in the aforesaid resolution dated 10.11.1978. The selection process comprised of written test only. By the resolution of the State Government in the Department of Personnel and Administrative Reforms dated 29.10.1988 (Annexure -4), it was decided that 11.2.1988 should be the cut -off date to count the vacancies. The Board conducted the written test on 8.7.1989 and 9.7.1989. The Government sent its supplementary requisition dated 7.8.1990 (Annexure -5), requesting the Board to recommend candidates for appointment on 240 more posts. The Board issued notices to 664 candidates for verification of testimonials on 20.9.1990 (Annexure 9 to CWJC No. 678 of 1991). The petitioners and others appeared on that day for the purpose. The Board published the results which were put up on the Notice Board on 22.9.1990, and were published in the newspaper on 18.11.1990 (Annexure -6). By further notifications dated 25.4.1991, 27.9.1991, 15.2.1992 and 1.8.1992, appointments were made by the State Government. A summary of the appointments made by the State Government is reflected in the chart placed on record marked Annexure -D to the counter affidavit of respondent no. 4, according to which 311 candidates of the general category, and 439 candidates of the reserved categories, have so far been appointed. In other words, altogether 750 persons have been appointed. According to the petitioner, this was the first attempt on the part of the respondent authorities to alter the proportion of vacancies available to each category without even executive instructions.