Buddhi Nath Chaudhary and Others vs Abhai Kumar and others

N. Pandey, J.—These appeals under the letters patent of the Patna High Court are directed against the judgment and order dated 16th May, 1997, passed in C.W.J.C.Nos. 984 of 1991 with 1948 of 1991, whereby and whereunder, the Transport Commissioner, Bihar, Patna (respondent no.2 to the writ petition) was directed to consider the representation of the petitioners-respondents on merit after due notices to the parties with regard to the validity of the appointments of the Motor Vehicles Inspectors. The Transport Commissioner was also required to examine whether on the date of interview, the contesting respondents did possess valid driving licence and submit a report before the competent authority after examining all such matters in detail. Since questions involved in these appeals are common, it would, therefore, be proper to dispose of them by a common judgment. The dispute in the present cases relates to selection and appointment to the post of Motor Vehicles Inspectors on the ground, inter alia, that appointments of the concerned respondents were made illegally without applying necessary requirements of the prescribed standard of qualification and experience etc. It would appear from the impugned judgment, an advertisement for appointment of the Motor Vehicles Inspectors was made by the Bihar Public Service Commission on 12th May, 1989 fixing 15th June, 1989 as the last date for making applications. Admitted position is that the selection in question was to be made mainly on the basis of qualification and assessment of the merits of the candidates with regard to technical qualifications. The requirement of qualification for such candidates as per advertisement was Diploma in Automobile Engineering or Mechanical Engineering of three years course from recognised institution/Board/University. It was also mentioned that preference will be given to the candidates having Diploma or Post Diploma in Automobile Engineering and equivalent and they should have at least three years practical experience of working in a registered automobile Engineering workshop under Factories Act. A candidate having Diploma in Mechanical Engineering was required to have at least five years practical experience of working in a workshop of automobile engineering registered under the Factories Act and candidates having Diploma in Automobile Engineering were required to have two years'' working experience.

Meanwhile as would appear from the notification dated 12th June, 1989, issued under the provisions of Section 213(4) of the Motor Vehicles Act, 1988, which came into operation from 1st July, 1989 the Central Government also prescribed the minimum qualification of working experience at least one year from any reputed automobile workshop which undertakes repair of both light and heavy vehicles with diesel and petrol engines. That apart a candidate was also required to possess driving licence of heavy motor vehicles.

Admittedly, as would appear from the facts on record, the Commission did not require the candidates to produce driving licences even at the time of interview which took place on 28th December, 1990 ignoring the notification of the Central Government dated 12th June, 1989 (Annexure-6). According to the learned Judge, it was not proper for the respondent Commission to ignore the requirement of a driving licence for appointment to the post of Motor Vehicles Inspectors, when the Central Government had already prescribed such a requirement by the notification contained in Annexure-6. Therefore, it was held that entire selection of the Motor Vehicles Inspectors was illegal since it was in contravention with the requirements prescribed under Annexure-6.

Apart from the aforesaid, certain other irregularities regarding lacking of qualifications and experience etc. of the candidates were also brought to the notice of the Court through the counter affidavits. The Court having found that the genuineness of documents and other disputed facts can not be ascertained in a writ jurisdiction, therefore, in order to have a proper probe of such fact directed the Transport Commissioner to enquire into the matter and submit a report before the appointing authority.

It would be relevant to notice that in view of the said direction, the Transport Commissioner after holding a detailed enquiry submitted his report before the competent authority, a copy of which has also been brought on record as Annexure-1 to the rejoinder, filed on behalf of the appellants to the counter affidavit. This is also not in dispute that in view of the said report the appointing authority by his order dated 20th September, 1999 passed final order. But having regard to the limited scope of these appeals, I am not inclined to express any opinion on these subsequent developments.

Learned counsel for the appellants, however, contended that to avoid multiplicity of litigation, the Court should take into consideration the subsequent events, which took place after the impugned judgment. Because it is well settled that an appeal is a continuity of the original proceeding. It is always open to a Court of appeal to consider the subsequent events to grant appropriate relief for the ends of justice in appropriate cases. In support of such a submission, learned counsel also placed reliance on some of the decisions; like AIR 1941 5 (Federal Court) , Pasupuleti Venkateswarlu Vs. The Motor and General Traders, , Gajadhar Lodha Vs. Khas Mahatadih Colliery Co. and Others, and M.M. Quasim Vs. Manohar Lal Sharma and others, .

In my view, there can not be any dispute that a Court of appeal in order to avoid multiplicity of unnecessary litigation can take into consideration the subsequent events. But such consideration will depend upon the fact of the particular case and the nature and scope of the events. In these cases, from a bare reference to the subsequent events including the findings recorded by the Transport Commissioner it would appear that it may require verification and examination of several disputed facts.

In the present case one of the question relevant for consideration is whether selection of the Motor Vehicles Inspector should have been made as per the qualification and other eligibility criteria as prescribed in the advertisement dated 12th May, 1989 (Annexure-3) by the Bihar Public Service Commission or such a selection was required to be made in terms of the notification of the Central Government dated 12th June, 1989 u/s 213(iv) of the Motor Vehicles Act.

According to the learned Judge as would appear from his findings that the respondent-Commission was not justified to ignore the criteria prescribed by the Central Government. Because this is not a case where the rule relating to recruitment was changed after the process for recruitment was initiated. Since as per the statutory notification it was essential for a candidate to have a Motor Vehicles driving licence for such an appointment, any selection made by the respondent-Commissioner without adopting such criteria will have to be treated illegal.

But apart from the aforesaid defect, certain other irregularities were also brought to the notice of the Court in the process of selection. Therefore, direction was issued to the Transport Commissioner to enquire into the matter. Because it was not possible for a writ court to decide such questions nor can enter into the factual controversy as to whether the certificates filed by the candidates regarding their technical qualification etc. were genuine.

Undisputedly prior to the notification of the State Government dated 12.6.1989, as contained in Annexure-6, the eligibility criteria etc. for appointment of the Motor Vehicles Inspectors were not prescribed statutorily. Therefore, in view of the previous norms, the eligibility criteria was prescribed by the Bihar Public Service Commission vide its advertisement dated 12.4.1989. This is also not in dispute that vacancies in question were already in existence prior to 4.7.1988 i.e. the day on which the State Government sent the requisition to the Bihar Public Service Commission for advertisement and selection. The criteria which the Central Government prescribed was notified for the first time on 12.6.1989. Therefore, such a rule was not applicable to the appointments made on or before 1.7.1989. The notification did not, however, provide that it would also apply to a selection process, which had already commenced with effect from 12.5.1989 i.e. the day on which applications were invited by the Bihar Public Service Commission. Undisputedly, it will be the prerogative of the Legislatures to prescribe such a criteria with retrospective effect subject to constitutional limitations. But it is also well settled that no retrospective effect should be given to such a provision so as to impair or take away the existing right, unless the Statute either expressly or by necessary implication directs that it shall have the retrospective effect. A reference in this regard can be usefully made to a passage from the judgment in the case of A.A. Calton Vs. Director of Education and Another, as under:

5.... It is true that the Legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect.....

Placing reliance on the views expressed in the case of A.A. Calton (supra), in the case of P. Mahendran and others Vs. State of Karnataka and others, , also it was held by the Apex Court that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. For a better appreciation I may usefully quote the relevant passage of the aforesaid report in these words:

It is well settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule can not be given retrospective effect except in the matter of procedure. The amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect......

Therefore, in my view, having regard to the above line of the decisions, the respondent Commission had no option but to proceed with the selection process as per the norms prescribed under the advertisement itself. The eligibility criteria as prescribed by the Central Government vide notification, contained in Annexure-6, had no retrospective effect. Therefore, candidates, who had made applications as per the terms and criteria prescribed under the advertisement, had acquired a right to be considered as per the norms prescribed in that advertisement. In absence of any express provision or necessary intendment by any notification, right of such candidates can not be taken away by giving the retrospective effect of the notification. In support of the views expressed above, apart from the decisions which have already been noticed, a reference can also be made to the case of T.R. Kapur & anr. vs. State of Haryana & ors., 1986 Suppl. SCC 584, where it was held that a Rule is subject to well recognised principle that benefits acquired under an existing Rule can not be taken away by an amendment with retrospective effect. Any Rule laying down qualifications for promotion with retrospective effect must necessarily satisfy the test of Articles 14 and 16 of the Constitution.

On behalf of the respondents, no reference was given to any such statutory provision on the basis of which the amended notification of the Central Government as notified vide Annexure-6, can be applied with retrospective effect nor any decision was brought to my notice to justify the effect of such a notification retrospectively. However, a reference was made to a decision of the Apex Court in the case of Mrs. Rekha Chaturvedi vs. University of Rajasthan & ors., 1993 AIR SCW 1488 and yet another decision in the case of State of M.P. and Others Vs. Raghuveer Singh Yadav and Others, to show that a candidate by merely passing the selection examination does not acquire any vested right for appointment. If the Government amended the Rules altering the qualification for eligibility, the selection can be made by issuing a fresh notification for appointment on the basis of the amended Rules. The candidates, who had passed the written examination had only legitimate expectation for consideration of their claims according to the Rules then in vogue. In my view, the ratio of the above mentioned cases may not be applicable to the facts of the present case. In the said case the Government had withdrawn the previous notification and had issued a fresh notification for selection on the basis of the amended Rules. But in the case before me, the position is quite different. Because admittedly the same selection process was given effect which was initiated before amending notification was brought into existence. Therefore, in my view, the effect of the notification of the Central Government, contained in Annexure-6, can not be applied retrospectively. The selection process had to continue as per the eligibility and other criteria prescribed in the advertisement itself. Hence for the reasons stated above, the impugned order to that extent has to be set aside, having found contrary to the views expressed by the Apex Court.

But the question the remains for consideration whether in view of the doubt raised by this Court on the previous occasion about the genuineness and validity of the certificates produced by the candidates about their qualification and experience, will it be proper to rely on the report of the Transport Commissioner or in the facts and circumstances of the case, it requires a fresh verification. There is no doubt that in view of the direction of this Court, the Transport Commissioner enquired into the matter on the basis of relevant materials placed before him and had also submitted the report declaring certain candidates disqualified for appointments, not only for want of required experience rather some of them had no valid driving licence for motor. Some of the appellants including the interveners have also made grievances although this Court had directed the Transport Commissioner to examine the matter after giving them opportunity, but in fact no opportunity was given. That apart, even the interpretation and analysis of the experience and qualificational certificates of the candidates were not properly evaluated, as a result of which there was no fair and proper assessment of the merits of the candidates, who were already appointed.

Accordingly, for the reasons stated above, the impugned order is set aside with a direction to the Transport Commissioner to examine the matter afresh as per the requirement prescribed by the respondent-Commission in the advertisement as contained in Annexure-3. He shall also verify the genuineness of the educational and experience certificates of the candidates after giving notice and opportunity of hearing to the writ petitioners and the candidates, who were appointed against those posts. The Transport Commissioner shall submit its report before the appointing authority within a period of two months from the date of receipt of the order and thereafter, on receipt of such a report the appointing authority will pass appropriate order within four weeks.

Since this case requires a fresh consideration as per the terms and conditions of the advertisement, the report of the Transport Commissioner and subsequent order/orders, passed by the appointing authority are also set aside. It is further directed that having regard that public interest may not suffer, the interim order in this case dated 29.9.1999 shall continue until final order by the appointing authority, but no right shall accrue to any candidate on such continuance. In the result, to the extent indicated above, these appeals are allowed, but without any order as to costs.

Shiva Kirti Singh, J.

I agree.