Pravin Kumar vs State Of Bihar And Ors

The sole petitioner has preferred this writ petition in a representative capacity for and on behalf of all the candidates eligible for appointment to the

posts of Junior Electrical Engineer in the respondent Bihar State Electricity Board (hereinafter referred to as „the Board‟). He challenges the mode

and manner of recruitment of 273 junior engineers from a very restricted category of candidates of the out-going batch of the Government

Polytechnics in Bihar.

A brief statement of facts essential for the disposal of this writ petition may be indicated. The respondent Board is in the process of a massive

transformation under a Central legislation, namely, the Electricity Board Act 2003 (hereinafter referred to as “the Central Actâ€), and may also be

covered by the Bihar Right to Public Service Act, 2011, Bihar Act 4 of 2011 (hereinafter referred to as “the Bihar Actâ€). The last recruitment by

the Board as per the conventional method for similar posts was conducted in 2007. For reasons not disclosed in the present proceedings, the Board did

not make appointments thereafter till it took the decision to do it by the impugned process. In order to meet the emergent situation created by

enforcement of the Central Act, and the impending enforcement of the Bihar Act, coupled with non-recruitment since 2007, the Board decided to

recruit 273 junior electrical engineers from amongst the outgoing batch of the 14 Government Polytechnics in the State of Bihar. The Board decided to

call for lists of candidates from these 14 institutes of the Government of Bihar on the basis of the results up to pre-final year, i.e. the first two years of

the course, of the out-going batch of electrical branch. The Board issued letter dated 4.3.2011 (Annexure-1 series), to the Government of Bihar, in the

Department of Science and Technology, calling for such list of candidates from the out-going batch of the 14 institutes of the State Government and

impugned herein. The relevant portion of the communication is reproduced hereinbelow:

“

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0

1

25

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08

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01

4

09

5

06

6

02

2.1) The letter dated 11.4.2011 (Annexure-1 series), from the Board to the different Polytechnics, is by way of follow- up action, and impugned

herein. The Board has received a list of 400 candidates from these 14 institutes for appointment to 273 posts. In other words, the selection is confined

to the top candidates of the electrical branch of the 14 Polytechnics of the State Government of the outgoing batch. This has to be read with the

statement in the Board‟s counter affidavit that only those of such candidates shall be finally selected who score first division in the final examination

which takes care of their performance in the third year. The selection process has been completed. However, in view of our interim order passed on

17.5.2011, appointment letters have not been issued to the candidates. We are informed by learned counsel for the Board that the results of the out-

going batch have been published on 9.7.2011.

While assailing the validity of the impugned method of recruitment, learned counsel for the petitioner submits that the selection process is confined

to a small group of eligible candidates of the out-going batch to the complete exclusion of the candidates who have already passed out during the

sessions 2004- 07, 2005-08, 2006-09, 2007-10. He submits in the same vein that the impugned method is so restricted as to confine it to the students of

the electrical branch only, in contra-distinction to their advertisement of 2007 where the students of electronics were also considered. He next submits

that the Board has been created by an Act of the Legislature, is a public-sector undertaking of the Government of Bihar, and has to conform to the

mandatory requirements of Articles 14 and 16(1) of the Constitution which is possible only if the vacancies are advertised and all eligible candidates

get the opportunity to apply for consideration. He further submits that the impugned method of selection, fashionably described by the Board as

„Campus Selection‟, is generally resorted to by the private sector who are not required to conform to the constitutional norms. He also submits that

the impugned selection process completely eliminates experience as a factor which is of immense importance to an industry. He has also distinguished

the Division Bench judgment of the Kerala High Court, and that of a learned Single Judge of the Madras High Court, relied on by the learned counsel

for the Board.

Learned counsel for the Board has supported the impugned action. He submits that the same has been adopted to meet an emergent situation, so

that the power generation and distribution in the State of Bihar does not collapse with particular emphasis on the implementation of the Central Act,

and the Bihar Act. He submits in the same vein that the Central Act has been implemented in all the States of the country, except the State of Bihar

and one more. He also submits that the impugned method of selection, known in common parlance described as „campus selection‟, has been

widely adopted by different public sector undertakings in this country. He submits in the same vein that the writ petitioner completely overlooks an

important reality that the Board is after all engaged in activities which are essentially commercial in nature. He relies on the following judgments:

(i) Judgment of a Division Bench of the Kerala High Court dated 20.07.2005, passed in W.P.(C) No.17789 of 2004 (Federation of Central

Government SC/ST Employees vs. Kochi Refineries Ltd.).

(ii) The judgment of a learned Single Judge of the Madras High Court of 25.11.2010, passed in W.P. No.5554 of 2009 and M.P. Nos.1 and 2 of 2009

(Chennai Petroleum Employee‟s Union vs. The General Manager H.R. Petroleum Corporation Ltd.), to the same effect, and is based on the aforesaid

judgment of the Kerala High Court.

He lastly submits that it is a one-time measure which will leave a large number of vacancies unfilled and shall be filled up by the conventional method.

Learned counsel for respondent nos.5 to 20 have supported the impugned action, and have adopted the contentions advanced on behalf of the

Board.

Respondent nos.21 to 78 are party respondents, have been impleaded by order dated 13.7.2011, and are candidates who are part of the selection

process. They have supported the impugned action

We have perused the materials on record and considered the submissions of the learned counsel for the parties. The issues are not free from

difficulties, and much can be said on both sides. We, however, take the view that we have taken for the reasons indicated hereinafter. As stated

hereinabove, the respondent-Board is in the throes of a massive transformation by way of implementation of the Central Act, and the Bihar Act which

is about to be implemented. We take notice of the position, as per the submission advanced on behalf of the Board, that the central Act has been

implemented in all the States of the country except the State of Bihar and one more State. The two Acts in their combined effect completely

restructure and reorient the Board, almost to the extent of metamorphosis, and are intended to make it far more efficient and answerable, to cope up

with the requirements which have emerged after globalization of the Indian economy. These two Acts also incorporate prospects of generation and

distribution of power by private entrepreneurs, thereby giving spur to commercial competition.

7.1) We further take judicial notice of the fact that appointment to this category of employees was last made by the Board in the year 2007.

Appointments have not been made for more than four years in a situation where the Central Act has already been brought on the statute book,

unimplemented in Bihar, and with enforcement of the Bihar Act round the corner. We can, therefore, see the over-arching anxiety on the part of the

Board, and also of the State Government, to ensure implementation of the provisions of the two Acts without further loss of time.

7.2) This background substantially explains the extra- ordinary step taken by the Board to tide over the emergent situation.

We now pass on to another aspect of the matter, whether or not the solution to meet the emergent situation is arbitrary, or just and reasonable.

Campus selection is really given to the commercial world on the non-governmental side or the instrumentalities of the government, i.e. private

entrepreneurs, who are not „State‟ within the meaning of Article 12 of the Constitution, and are not required to conform to the constitutional norms.

But then the Board was earlier, and would now in far greater measure under the two Acts in question, be discharging duties which will be essentially

commercial in nature. Law is well settled that all public employment in this Country is a national wealth and every citizen should have unrestricted

access to the same which is possible only if the vacancies are given wide publicity, so that every eligible person has the opportunity to apply for

consideration in accordance with law. We must emphasise that this principle of law requiring strict adherence to the constitutional norms with respect

to public employment apply with all its rigours to government offices exercising sovereign and regal functions. In view of the scheme of the Central

Act and the Bihar Act, we are convinced that the Board is discharging duties which are essentially of commercial nature, and is scheduled to be in line

for competition with the private sector. Law is equally well settled that administration must be allowed some play in the joints. The requisite latitude

must be allowed to the Board to make appointments as per its own volition, which may not strictly conform to the constitutional norms, but should

surely be just and reasonable and on objective basis so that it may have the requisite leeway to make a reasonable classification which must be

founded on a reasonable differentia which distinguishes persons or things that are grouped together from others left out of the group, and that the

differentia must have a rational relation to the object sought to be achieved by the impugned action.

The classic enunciation of law in this behalf in the judgment of the Supreme Court in the case of Ram Krishna vs. Justice Tendolkar and others,

AIR 1958 SC 538, may be recalled. Paragraph 11 of the judgment is reproduced hereinbelow:

The principal ground urged in support of the contention as to the invalidity of the Act and/or the notification is founded on Article 14 of the

Constitution. In Budhan Choudhry v. State of Biha, 1955-1 SCR 1045: ((S) AIR 1955 SC 191 ()A) a Constitution Bench of seven Judges of this Court

at pages 1048-49 (of SCR): (at p.193 of AIR) explained the true meaning and scope of Article 14 as follows:

“The provisions of Article 14 of the Constitution have come up for discussion before this Court in a number of cases, namely, Chiranjit Lal v. Union

of India, 1950 SCR 869: (AIR 1951 SC 41 )(B), State of Bombay v. F.N. Balsara, 1951 SCR 632: (AIR 1951 SC 318 )(C), State of West Bengal v.

Anwar Ali Sarkar, 1952 SCR 284: (AIR 1952 SC 75 )(D), Kathi Raning Rawat v. State of Saurashtra, 1952 SCR 435: (AIR 1952 SC 123 ()E),

Lachmandas Kewalram v. State of Bombay, 1952 SCR 710: (AIR 1952 SC 235 ()F), Qasim Razvi v. State of Hyderabad, 1953 SCR 589: (AIR 1953

SC 156) (G) and Habeeb Mohamad v. State of Hyderabad, 1953 SCR 661: (AIR 1953 SC 287 ()H). It is, therefore, not necessary to enter upon any

lengthy discussion as to the meaning, scope and effect of the article in question. It is now well established that while article 14 forbids class legislation,

it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions

must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped

together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in

question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is

necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by

the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.â€​

Coming to the facts and circumstances of the present case, we are able to see that the Board has called for a list of 25 top students of the general

category, and lesser number of top candidates for each reserved category, strictly and most objectively on the basis of their performance in first two

years of the course. The further guarantee of objectivity and elimination of favouritism is ensured by the statement made in the Board‟s counter

affidavit that only those students of the out-going batch shall be selected who score first division in the final examination. These two objective factors,

in our view, ensure selection on merit, and eliminate chances of arbitrariness and favouritism. The yard-stick prescribed by the Supreme Court in the

case of Ram Krishna Dalmia vs. Justice S.R. Tendolkar (supra), is clearly satisfied in the present case.

We must consider the two judgments relied on by the learned counsel for the Board. Those decisions deal with comparable situations. The

employers were public sector undertakings of the Government of India who resorted to campus selection, and have been approved by the two High

Courts, and support the Board‟s case. Really the selection process of the Board in the instant case stands on a better footing than the situation

obtaining in the two judgments because of the two factors indicated hereinabove, namely, the best students most objectively selected from the out-

going batch read with the condition of scoring first division marks in the final examination, which were absent in the two judgments.

We note the serious deficiency in the present selection process that the Board ought to have formulated a detailed procedure before they

proceeded with the current selection process. However, we ignore it in view of the aforesaid circumstances, namely, the emergent situation, and

creation of the zone of selection on a very objective and qualitative basis. We also note the submission of the learned counsel for the Board that the

present selection process shall leave a large number of vacancies of this category unfilled, and the Board shall have the requisite time to make the

recruitment process as per the conventional method which shall be completed within a period of six months from today.

In the result, we dismiss this writ petition with the undertaking given by the Board indicated in paragraph 12 hereinabove. In the circumstances of

the case, there shall be no order as to costs.