Shiva Kumar Prasad Verma vs State of Bihar and Others

S.N.P. Singh, J.—This is an application under Article 226 of the Constitution of India in which the appointments of two Munsifs. namely, Pal Leonard Kongardi and Budhdeo Narain Singh, have been challenged and a prayer has been made for canceling their appointments and directing the State of Bihar to fill in the vacancies in accordance with law.

In order to appreciate the contentions raised on behalf of the petitioner, it is necessary to state some facts which are not in dispute. In exercise of the powers conferred under Rule 4 of the Bihar Civil Service (Judicial Branch) Recruitment Ruler, the Bihar Public Service Commission, hearin-after referred to as the Commission, leaned a notice inviting applications for sitting at the competitive examination to be held some time in December 1960-January 1981. According to the notice fifty permanent vacancies in the Bihar Civil Service (Judicial Branch) were to be filled is out of which six posts were reserved for scheduled caste candidates and five for scheduled tribe candidates, if suitable candidate were available in those categories. The petitioner along with other candidates appeared at the examination which was held by the Commission in pursuance of the aforesaid notice. In March 1961 the Commission announced the result of the written examination and the candidates including the petitioner and opposite parties 2 and 3, who had passed out the written examination, were required to appear before the Commission for prasnality test. The Commission initially recommended 54 candidates in order of merit for appointment as Munsifs against 50 vacancies. Out of the recommended candidates, 49 were the general candidates and 5 were from the scheduled caste and scheduled tribe candidates. Amongst the general candidates, Budhdeo Narain Singh (opposite party 3) was given place 38 and the petitioner was given place 49. Amonget the scheduled caste and scheduled tribe candidates. Pal Leonard Kongardi (opposite party 2) was given the first place. It appears that after some Correspondence with, the Government, the Commission recommended one mure candidate, namely, George Bhupendra Soreng, belonging to the scheduled tribe. Subsequently the petitioner as well as other candidates appeared before the medical board. The medical board found the petitioner fit for appointment but found opposite party 2 unfit for service on the ground of his total blindness of the left eye. In the first instance, the State Government appointed 42 candidate from the general list and 4 from the scheduled casts and scheduled tribe list and those appointments were duly notified. Neither the petitioner nor opposite parties 2 and 3 were included in the aforesaid appointment made by the Government. George Bhupendra Soreng was subsequently appointed in one of the posts reserved for scheduled caste and scheduled tribes candidates. Sri Indrajit Mishra was appointed in one of the posts open to the general candidates after considerations of the police report against him by the Government. as two of the candidates, namely, J. M Srivastava and S. K. Jha. who had been recommended by the Commission, did not appear before the medical board and two of the Munsifs, who had been initially appointed by the Government, subsequently resigned, the Government filed in the four posts by appointing Haricharan Mittal Shambhunath Sinha, Badhdeo Narain Singh (opposite party 3) and Pal Leonard Kongardi (opposite party 2) Thus all the 50 posts, out of which 44 went to the general candidates and 6 went to scheduled casts and scheduled tribe candidates, were filed in by the Government. I may state here that by the notification dated 23 May 1962 published in the Bihar Gazette on 13 June 1962. opposite parties 2 and 3 were appointed at Munsifs.

In the application it has been alleged that the petitioner was more suitable and eligible for the appointment of Munslf than Budhdeo Narain Singh (opposite party 3) and Pal Leonard Kongardi (opposite party 2). As I have already stated, the Commission gave place 48 to Budhdeo Narain Singh opposite party 3) and place 49 to the petitioner amongst the general candidates in order of preference. In the application the appointment of Badhdeo Narain Sings has been challenged on the ground that on the date of his appointment as a Munsif, he was already working as a Sub-Deputy Collector. In view of the fact stated in Paras. 17 and 18 of the counter-affidevit filed on bahalf of the State of Bihar, Sri Basudeo Prasad, learned counsel appearing for the petitioner, conceded at the time of argument that it is not possible to question the validity of the appointment of Badhdeo Narain Singh as a Munsif. Learned councel confined his argument soley on the question of the validity of the appointment of Pal Leonard Kongardi.

It appears that by notification No. III/RI-402/55A-7568 (?), dated 22 August 1956, the Governor of Bihar, is exercise of the powers conferred on him by Article 234 of the Constitution of India, after consultation with the High Court of Judicature at Patna and the Bihar Public Service Commission, made rules for regulating the recruitment to the Bihar Civil Service (Judicial Branch) the Commission had issued notice inviting applications for recruitment to the Bihar Civil service (Judicial Branch) in conformity with the provisions contained in the Bihar Civil Service (Judicial Branch) Recruitment Rules made by the Governor under Article 234 of the Constitution of India. The Commission attached along with the notice "Regulations as to the physical examination of candidates " (appendix E to the notice).

Sri Basudeo Prasad appearing for the petitioner raised the following contentious:

(i) That Pal Leonard Kongardi was not eligible for appointment as a Munsif in view of the admitted fact that his left eye was totally blind.

(ii) That the report of the medical board to the effect that opposite party 2 was unfit for service in view of the total blindness of his left eye, which was not set aside in appeal by the appellate board, was binding on the Government and as such the Government were not competent to appoint opposite party 2 as a Munsif.

(iii) That even if it be held that the Government were competent to appoint opposite party 2 in spine of the adverse report by the medical board, the Government had no power to review their previous decision regarding the acceptance of the medical report and the consequent rejection of the candidature of opposite party 2.

(iv) That the Government had, in effect, decided to fill in only five posts out of the category of scheduled caste and scheduled tribe candidates by accepting the report of the medical board and rejecting the candidature of opposite party 2 and the Government were not competent to revise their previous decision in this regard.

(v) That the appointment of opposite party 2 as a Munsif amounted to denial of equality of opportunity to the petitioner under Article 16(1) of the Constitution of India.

Rule 7(a) of the Bihar Civil Service (Judicial Branch) Recruitment Rules reads as follows:

A candidate must be of sound health, good physique and active habits and free from any physical defect likely to interfere with the efficient performance of the duties of a member of the service, A candidate who is found After examination by a medical board not to satisfy these requirements will not be selected for appointment.

Sri Basudeo Prasad, relying on the first part of Rule 7(a) read with Regulations 6 of the Regulations as to the physical examination of candidates referred to above, submitted that opposite party 2 was not eligible for appointment as a Munsif in view of the admitted fact that his left eye was totally blind. In my opinion, there is no substance in this contention. The first part of Rule 7(a), which has been relied upon by learned counsel, in express term does not either debar a candidate who is totally blind of one eye from appearing in the examination for the post of a Munsif or prevent the Government from appointing such a person as a Munsif. It is not possible to hold that the total blindness of one of the eyes in a candidate is such a physical defect which is likely to interfere with the efficient performance of the duties as a Munsif. Regulation 6 of the " Regulations as to the physical examination of candidates" provides, inter alia, that each eye must have a full field of vision as tested by hand movement. There is also a note, which reads as fellows:

Note.-No candidate will be accepted for appointment if his vision does not come up to the requirements specified above without the use of contact glasses. (A contact glass or lens is defined as a glass shell, the concavity of which is in contact with the globe of the eye a layer of liquid being interposed between the lens and the cornea. The meaning of the word ''glasses'' wherever used, above is to be interpreted as not covering contact glasses.) For this purpose the value of contact glasses in correcting the eyesight will be considered as if they were ordinary glasses.

Relying on the aforesaid provision in the regulation and the note quoted above, Sri Basudeo Prasad put forward the argument that the total blindness of the left eye of opposite party 2 made him ineligible for appointment as a Munsif. According to Sri Basudeo Prasad, the regulation was binding on the Government. This contention is also without substance. It is manifest that the "Regulations as to the physical examination of candidates" had been made for the guidance of the medical examiners and they were not binding on the Government. I would refer in this connexion to the opening paragraph of the regulations which reads as follows:

These regulations which apply to men as well as woman candidates are published for their convenience and in order to enable them to ascertain the probability of their coming up to the required physical standard. But it must be clearly understood that the Government of Bihar reserve to themselves an absolute discretion to reject as unfit any candidate whom they may consider on the report of the medical board to be physically disqualified for any Service and that their discretion is in no respect limited by these regulations. These regulations are intended merely for the guidance of medical examiners and are not meant to restrict their discretion in any way. A lady doctor will be co-opted as a member of the medical board whenever a woman candidate is to be examined.

The provision in Regulation 6, therefore, which has been relied upon by learned counsel, cannot be construed as an essential qualification of a candidate for the appointment of a Munsif so far as his physical fitness is concerned. As there is no express or implied provision in the Bihar Civil Service (Judicial Branch) Recruitment Rules which debars a candidate with blindness of one eye from applying for the post of a Munaif or prevants the Government from appointing such a person as a Munsif and as it has not been shown to our satisfaction that the total blindness of one eye is such a physical defeat which is likely to interfere with the efficient performance of the duties as a Munsif, the first contention raised by Sri Basudeo Prasad that Pal Leonard Kangardi (opposite party 2) was not eligible for appointment as a Munsif in view of the admitted fact that his left eye was totally blind mast fail.

In support of his second contention, Sri Basudeo Prasad solely relied on the second part of Rule 7(a) of the Bihar Civil Service (Judicial Branch) Recruitment Rules. According to learned counsel, if a medical board is satisfied that a candidate suffers from a physical defect likely to interfere with the efficient performance of the duties as a Munsif, the Government cannot select that parson for appointment. This contention is also not sound and it must be rejected. The second part of Rule 7(a) is merely directory and it is for the Government to be satisfied whether a candidate is free from a physical defect likely to interfere with the efficient performance or the duties as a Munsif. The report of the medical board after examination of a candidate has no finality in this regard and on a proper construction of Rule 7(a) it has to be held that the final decision is of the Government whether a particular candidate satisifies the requirements as mentioned in the first part of Rule 7(a) of the said rules. The report of the medical board will no doubt be taken into consideration by the Government under the second part of Rule 7(a) but It will be ultimately for the Gavernment to decide as to whether a particular defect in a candidate mentioned in the report of the medical board will or will not be such a physical defect which would be likely to interfere with the efficient performance of the duties as a Munsif. In the case of opposite party 2, the medical board had submitted the report in the following words:

In view of his totally blind left eye the candidate in unfit for service.

The fact that opposite party 2 is totally blind of his left eye being not disputed, there was no question of preferring any appeal to the appellate medical board. The medical board had given the report about the unfitness of opposite party 2 for service on the basic of the provisions made in Regulation 6 of the "Regulations as to the physical examination of candidates." As I have already stated, the regulations were not binding on the Government. The report of the medical board, therefore, which is based on the provisions made in the regulations was not binding on the Government and the Government had to finally decide whether the total blindness of the left eye was such a defect which was likely to interfere with the efficient performance of the duties as a Mnusif. In Para. 21 of the counter-affidavit filed by the State of Bihar, it has been stated that the Government exercising powers under Rule 52(c) of the Bihar Service Code reconsidered the case of Pal Leonard Kongardi (opposite party 2) on the representation made by him and came to the conclusion that the blindness of one eye would not interfere with the discharge of his duties, as a Munsif. At the time of argument it was fairly conceded by the learned Advocate-General that Rule 52(c) of the Bihar Service Code has been wrongly quoted in the counter-affidavit. However, the second contention raised by Sri Basudeo Prasad fails for the reasons stated above.

For the sake of convenience I will deal with the third and fourth contentions of Sri Basudeo Prasad together. In support of his contention that the Government had no power to review their previous decision, learned counsel relied on a Bench decision of this Court in the case of B. P. Singh v. U.A. Goswami 1983 BLJR 596. In that case the point for consideration before the Court was whether the Chansellor could review his order passed u/s 8(4) of the Bihar State Universities (Patna, University of Bihar, Bhagalpur and Ranchi) Act, 1960. It was held that the power of the Chancellor u/s 8(4) of that Act being a power of a quasi-judicial nature, he could not review his previous decision in the absence of specific power conferred upon him in this regard under the Act or the statute. The contention that the Chancellor had the power to amend or rescind his previous order u/s 24 of the Bihar and Orissa General Clauses Act was repelied on the ground that "the orders " spoken of in Section 24 of the Bihar and Orissa General Clauses Act are orders made or issued in exercise of the power of a kind of subordinate legislation conferred by any Act. In that case It was further observed as follows:

Even If it be assumed that the power of the Chancellor u/s 8(4) of the Act is of an administrative nature, it is abundantly clear that it has to be exercised Judicially within the ambit of the Act and according to the well-established principles of law.

In my opinion, the decision in the above-mentioned case is not applicable to the facts of the present case. The previous decision of the Government with regard to the acceptance of the medical report and the consequent rejection of the candidature of opposite party 2 was purely an administrative decision. It has not been shown to our satisfaction that by changing their previous decision the Government contravened the provisions of the statutory rules, namely, the Bihar Civil Service (Judicial Branch) Recruitment Rules. The power of the Government to charge or rescind a purely administrative order must be implied otherwise it will be difficult to run the administration. Unless it is shown that the interest of a third party has been affected by the change in the previous decision of the Government or it is proved that the Government exercised their power mala fide in changing their previous decision, it is not possible to question the competency of the Government to alter or rescind their previous decision in purely administrative matters. In the instant case the mere possibility of selection of the petitioner as a Munsif because of the previous decision of the Government did not create any right in the petitioner for appointment to the post of a Munsif. The petitioner was merely asked to appear before the medical board by the letter of the Government, dated 4 July 1961 (a copy of which has been marked as annexure II to the counter-affidavit). In that letter the Government made it perfectly clear that it was not to be treated as a letter of appointment. The letter of the Government or the declaration of the medical board about the physical fitness of the petitioner for the appointment to the post of a Munsif did not give him a right to be appointed on the post. Except for stating the fact that one Jadu Nandan Prasad, who was a candidate for the post of Munsif in the year 1955, was rejected on the ground that he was blind of one eye (vide Para. 2 of the supplementary affidavit), the petitioner has not alleged that the subsequent order of the Government was mala fide. The mare fact that on a previous ocoasion the Government had rejected a candidate who was blind of one eye cannot be taken as a basis for holding that in the instant case the Government accepted the candidature of opposite party 2 bacause of some extraneous considerations. As I have already stated, in the notice, which was issued by the Commission inviting applications for sitting as the compatitive examination, it was mentioned that fifty permanent vacancies in the Bihar Civil Service (Judicial Branch) were to be filled in out of which Six posts were reserved for scheduled casts candidates and five for scheduled tribe candidates, if suitable candidates were available in those categories. By selecting opposite party 2, the Government did not go beyond the limit mentioned in the notics issued by the Commission. Even if it be assumed that by accepting the medical report and as a consequence rejecting the candidature of opposite party 2 the Government had, in effect, decided to fill in only five posts out of the category of scheduled caste and scheduled tribe candidates, it cannot be held that the Government were not competent to review their previous decision in this regard which was also a decision of a purely administrative nature. For the reasons stated above I reject the third and the fourth contentions raised by Sri Basudeo Prasad.

Now remains to consider the last contention of Sri Basudeo Prasad, namely, that the appointment of opposite party 2 as a Munsif amounted to denial of equality of opportunity to the petitioner under Article 16(1) of the Constitution of India. At the time of argument learned counsel simply stated the point without developing it. It is not the case of the petitioner that there has been discrimination in his case inasmuch as any of the persons who has been appointed as a Munsif out of the general candidates has a lesser qualification than the petitioner. Admittedly the petitioner was given the last place (place 49) by the Commission in the category of the general candidates on the result of the written examination and the personality test. As opposite party 2 was a candidate of the category of the scheduled caste and scheduled tribe candidates, there cannot be any question of discrimination between the petitioner and opposite party 2. It is not disputed that opposite party 2 secured the qualifying marks as a result of the written examination and the personality test. Article 16(4) of the Constitution reads as follows:

Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the service under the State.

This sub-article in substance provides for an exception to the fundamental rights guaranteed by Articles 16(1) and 16(2). It cannot be disputed, and indeed it has not been disputed, that the scheduled caste and scheduled tribe candidates come under the category of backward class of citizens. In the Bihar Civil Service (Judicial Branch) Recruitment Rules special qualifications have been laid down for the eligibility of appointment of candidates belonging to the category of scheduled caste and scheduled tribe. The validity of those rules has not been questioned before us. The appointment of opposite party 2 can only be struck down as invalid, being in contravention of Article 16(1) of the Constitution, if it be shown that amongst the scheduled caste and scheduled tribe candidates there has been a discrimination. As the petitioner was a candidate of a different category, no question of contravention of Article 16(1) of the Constitution arises in his case because of the appointment of opposite party 2.

As all the contentions raised by Sri Basudeo Prasad fall, this application is dismissed, but, in the circumstance of the case, there will be no order for costs.

R.L. Narasimham, C.J.

I agree.