Dinesh Prasad and Others vs Amod Kumar Verma and Others

G.B. Patnaik, C.J.—These three letters patent appeals are directed against the judgment of the learned Single Judge dated 11th August, 1993 passed in a batch of writ applications, namely, C.W.J.C. Nos. 1626, 3630, 3958 and 5556 of 1991. The entire controversy centres around the question as to, whether the reservation meant for most backward class under the carry-forward rule will continue for three recruitment years or can be dereserved after three calendar years and can be filled up by persons belonging to backward class. The learned Single Judge in the judgment under appeal has come to the conclusion that the reservation meant for "most backward" category shall continue for three recruitment years and cannot be dereserved at any prior point of time. The learned Judge has further held that the appointment of the persons belonging to backward category in place of most backward category for whom the posts have been kept reserved is illegal and, therefore, they must make way for persons belonging to most backward class. In implementation of the aforesaid direction of this Court, the Government having annulled the appointment made is favour of the backward class, C.W.J.C. No. 4300 of 1995 has been filed by the persons belonging to backward class.

The short facts necessary for answering the point in issue are that in the State of Bihar there is reservation for Scheduled Caste, Scheduled Tribe, Backward Class and Most Backward Class. Under the Road Construction Department 100 posts of Assistant Engineers were reserved for most backward class. An advertisement had been issued to find out qualified candidates belonging to the most backward class for appointment against those posts. Under the reservation policy in the State 12 percent of the posts are kept reserved for most backward class, initially the Bihar Public Service Commissioned issued Advertisement No. 53 of 1988 wherein 179 posts had been kept reserved for most backward class. After the tests were held only 79 candidates belonging to most backward class were found suitable who were duly appointed. As against the balance 100 posts no further advertisement has been issued by the Commission to find out eligible persons belonging to most backward class. On the other hand, under the orders of the Chief Minister, these posts were dereserved and against those posts persons belonging to backward class were appointed. Hence, the intending applicants belonging to the most backward class had filed the four writ applications which were disposed of by the common judgment dated 11th August, 1993 and is the subject matter of the three L.P.As. Out of the three letters patent appeals, one has been filed by the State of Bihar and two others have been filed by two other persons belonging to backward class.

Mr. Jha, learned Counsel appearing for the State of Bihar and Mr. Singh appearing for the Appellant in one of the letters patent appeals filed by the person belonging to the backward class as well as Mr. Basudeva Prasad appearing for the Appellants in the other letters patent appeals contended that the flearned Single Judge committed gross error in holding that the reservation and carry-forward rule in favour of most backward class shall continue for three recruitment years since there is not an iota of material to bring in the concept of recruitment year in the matter of carry-forward rule. According to learned Counsel appearing for the Appellants in the letters patent appeals, the expression "three years" in the relevant circular would only mean three calender years. It was also further contended that there is no lack of power with the State Government to make dereservation at any time and since denervation has been made under the order of the Chief Minister, there is no infirmity in the order and, therefore, the learned Single Judge committed gross error of law in recording the finding that there has been infraction of carry-forward rule and further directing the appointees as against the reserved posts meant for most backward class to give way for appointment in favour of the most backward class.

Mr. Mukherjee appearing for the Respondents in the letters patent appeals, on the other hand, contended that the relevant circular of the State Government dealing with reservation and carry-forward rule are not susceptible of a construction that the carry-forward rule applies to three calendar years and not three recruitment years. Such an interpretation would frustrate the very object of reservation and carry-forward rule. He also contended that though under the circular power of dereservation lies with the Chief Minister but that power can be exercised only when the preconditions for exercise of that power are satisfied and it is not an unbridled power with the Chief Minister to order dereservation at any point of time he thinks fit and proper. It is thus contended that the order of the Chief Minister dereserving 100. posts which were initially reserved for most backward class before three recruitment years is without jurisdiction and the learned Single Judge, therefore, rightly directed such appointees against the dereserved posts to give way for appointment to be made by suitable candidates belonging to the most backward class. Mr. Mukherjee also contended that the statutory ordinance which has been replaced by an Act was promulgated in the year 1991. The Bihar Reservation of Vacancies in Posts and Services (For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Ordinance, 1991 make it crystal clear that the reservation meant for most backward class as well as reservation meant for backward class shall continue to be reserved for three recruitment years and not for three calendar years and this legislation can be looked into in interpreting the relevant administrative circular which was operative prior to the promulgation of Ordinance dealing with the question with the question of reservation and carry-forward rule.

In view of the rival stand of the parties, the question that arises for consideration is whether under the relevant circular which was operative at the time when the Chief Minister ordered for dereservation of posts meant for most backward class the provision for carry-foward was intended to continue for three recruitment years or for three calendar years. The learned Single Judge has found that the carry-forward was intended to be continued for three recruitment years. It is not in dispute that prior to the promulgation of Ordinance of the year 1991 the matter of reservation and carry forward was occupied by relevant administrative instructions issued from time to time. It would, therefore, be necessary to notice the relevant circular. The first such circular is dated 10.11.1978 which deals with reservation for backward class. Clause 4 of that Circular stipulates that out of the 20 percent reserved posts, 12 percent would be kept reserved for most backward class and 8 percent for backward class. It further says that the reservation meant for most backward class will be carried forward for three years. The entire bone of contention of learned Counsel appearing for the Appellants in the letters patent appeals centres round the expression rhu o"kksZa rd. It is urged on behalf of the Appellants that the expression rhu o"kksZa rd is not susceptible of an interpretation of three recruitment years and on the other hand can only be interpreted to be three calendar years. Clause 6 of the said Circular confers power on the Chief Minister for dereservation. A plain reading of the aforesaid clause would mean that there cannot be any dereservation without the order of the Chief Minister. But it does not confer an absolute discretion and unbridled power on the Chief Minister to order for dereservation at any point of time he thinks fit and proper. In other words, only when the conditions set out in the Circular for dereservation are satisfied then such dereservation can be made but only under the orders of the Chief Minister. The next Circular is dated 20.11.1979 which deals with the question as to how the reservation meant for women will be filled up by the Scheduled Castes, Scheduled Tribes, backward class and most backward class. The said Circular is not relevant for our purpose in the case in hand. The next Circular is dated 30.6.1983 on which learned Counsel for the Appellants very much relied upon. That Circular merely indicates that the reservation is the policy of the Government and dereservation is not included in it. Dereservation is an exception for which the Chief Minister''s approval through the Commissioner, Cabinet Secretariat is essential and in anticipation of the Chief Minister''s order the reserved posts would not be dereserved. The next Circular is of the year 1985 which is a roster circular and that circular also does not speak of the principle of carry-forward. The next Circular is dated 21.11.1990 and that undoubtedly stipulates that the reservation made for most backward class will be carried forward for three recruitment years rhu HkrhZ o"kZ rd (See Clause 8 of the Circular), but the argument advanced on behalf of the Appellants is that the aforesaid Circular is only meant for block level and district level �izeaMy ,oa ftyk Lrj�. The next Circular is dated 27.12.1990. That Circular speaks of the fact that the carry-forward in respect of the reserved posts meant for most backward class would be for three years and thereafter if no person belonging to most backward class is available then those reserved posts must be filled up by other backward classes. Then comes the Ordinance of the year 1991, which undoubtedly defines the recruitment I year in Section 2(e) and Section 4(6)(b) speaks of carry-forward in favour of extremly backward classes. It would be appropriate for us to extract the said provision:

In case of non-availability of suitable candidates from the Extremly Backward Classes and Backward Classes the vacancies so reserved shall continue to be reserved for them for three recruitment years and if suitable candidates are not available even in the third year also, the vacancies shall be filled by exchange between the candidates from the extremly Backward and Backward Classes and the vacancies so filled by exchange shall be treated as reserved for the can didates of that particular community who are actually appointed.

The plain reading of the Ordinance makes it explicit clear that the reservation meant for most backward classes shall continue to be reserved for three recruitment years and the concept of calendar year is foreign to the Ordinance. It is undoubtedly true that the Ordinance is of the year 1991, but a subsequent legislation in the field can be looked into in order to see what is the proper construction to be put upon an earlier provision operating in the field. Lord Sterndale had observed thus:

I think it is clearly established in Attorney-General v. Clarkson that sub sequent legislation on the same subject may be looked to in order to see what is the proper construction to be put upon an earlier Act where that earlier Act is ambiguous.� (Cape Brandy Syndicate v. Inland Revenue Commissioners 1921 2 K.B. 403).

The question of reservation meant in favour of most backward class and its carry-forward were being dealt with by the administrative circular of the Government until promulgation of the Ordinance. If the Ordinance is looked into for ascertaining the true state of affairs in the matter of reservation the conclusion becomes inescapable that the reservation meant for most backward class was to be carried forward for three recruitment years as has been found by the learned Single Judge and not three calendar years as was contended by learned Counsel appearing for the Appellants.

But even without looking to the Ordinance of the year 1991 and on interpretation of the relevant Government Circulars which were operative at the point of time when the dereservation was made by the Chief Minister, we are also of the considered opinion that the reservation meant for most backward class was intended to be carried forward for three recruitment years which is apparent from the roster arrangement as well as the very purpose for which such reservation and carry forward rule has been enacted. If the expression in 1978 Circular is given a literal interpretation as contended by learned Counsel appearing for the Appellants then it would cause manifest injustice and even would lead to an absurdity and frustrate the very purpose of reservation itself meant in favour of the most backward class. Where a true literal adherence to the words of a Circular appears to produce an absurdity or an injustice, it will be the duty of the Court of construction to consider the state of the law at the time the circular was issued with a view to ascertaining whether the language of the circular is capable of any other fair, interpretation. We need not delve any further into the matter, as in our opinion, the question has been set at rest by the decision of the Supreme Court in the case of Harish Chandra Ram v. Mukh Ram Dubey and Ors. : (1994 Supp. (2) SCC 490). Their Lordships of the Supreme Court on consideration of the Circulars of the Bihar Government dated 30.6.1983 and 21.11.1990 have come to the conclusion thus:

It is thus clear that the recruitment year is the year in which recruitment takes place, but not each three successive years in which the vacancy exists. The same yardstick would apply to fill in the reserved vacancy. Dereservation will be considered only at the end of third recruitment year provided reserved candidates are not available, or considered at the recruitment and found not fit for promotion or carried forward for three successive recruitment years. Then the matter should be placed before the competent authority for consideration for dereservation of the reserved post and a resolution or order should be made dereserving the posts. Then those alone reserved, posts or vacancies will be thrown open for recruitment by the general candidates.

In the aforesaid case what was being contended before the Supreme Court is that the reserved vacancies having remained unfilled for three successive years must be deemed to have been dereserved and open to the general candidates which were rejected by the Apex Court and the law was laid down in the matter of dereservation. In view of the aforesaid authoritative pronouncement of the Supreme Court on the basis of the very circulars, which we have considered in the case in hand, the conclusion is irresistible that the question of dereservation can only be after three recruitment years and then the competent authority, namely, the Chief Minister can pass orders for dereservation whereafter the persons from other categories can be appointed. In view of our aforesaid conclusion, we see no infirmity with the judgment of the learned Single Judge in the matter of interpretation of the relevant circulars and the conclusion that the reserved posts meant for most backward class can be dereserved only after three recruitment years. The contention of learned Counsel appearing for the Appellants to the contrary cannot be accepted.

While, therefore, we do not find any justification for our interference with the inpugned judgment of the learned Single Judge, but the argument advanced by learned Counsel for the Petitioners in C.W.J.C. No. 4300 of 1995 persuaded us to issue certain directions in their favour. Admittedly on dereservation being made several persons belonging to the backward class have been appointed as Assistant Engineers and have already served for more than five years. Persons belonging to backward classes also require a preferential treatment and, in fact, reservation has been made in their favour. By now all appointees must have been age-barred and to take away their services at this length of time would not be in the larger interest of the State. In the circumstance, we think it proper to allow those appointees belonging to the backward classes who have been appointed on dereservation of posts meant for ''most backward class'' to continue and the State Government may create such number of supernumerary posts to accommodate such appointees. These posts will be adjusted against the quota meant for backward class and until such adjustment is complete no further recruitment be made from the backward class. We make it clear that in accommodating such appointees belonging to the backward class, it would not be necessary for the State to create other posts to maintain the ratio of the reservation. These posts will be created to accommodate such appointees of the backward class, who had been appointed on account of dereservation to resolve the impasse-This direction is given in the larger interest of all concerned, including the State of Bihar itself. Subject to the aforesaid observations, L.P.A. Nos. 72, 77 and 81 of 1993 are dismissed and C.W.J.C. No. 4300 of 1995 is disposed of.

Nagendra Rai, J.

I agree.