TaxTMI 
TaxTMI 
2009 (3) TMI 1118
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...., S.D. Sanjay, Sushila Agrawal, Gautam Kejriwal, Sabina Rubab, Akash Chaturvedi in 3937, 9824, Rajendra Prasad Singh, Vishwambhar Prasad in 14772, 14753, 14776, 14775, 14882, 14733, 14730, 14724, 12725, 14726, 14881, 14723, 14859, 14777, 14734, 14625, 14626, 14858, 14859, 14992, 15066, 15078, 14983, 14982, 14934, 14980, 14755, 14937, Tara Kant Jha, Amish Kumar and Baidyanath Thakur in 14984, 15003 For the Respondents : P.K. Shahi, Lalit Kishore, Satyabir Bharti, P.K. Varma, Dr. Mankeshwar Jiwdi, Vikash Kumar, Nirmal Kumar, Tej Pratap Singh and Mr. Sanjay Pandey for the B.P.S.C JUDGMENT C.K. Prasad, A.C.J. In all the writ applications, identical questions of law and facts arise and as such they were heard together and are being disposed of by this common judgment. Facts lie in a narrow compass. All the petitioners belong to the Scheduled Caste category and native of States other than the State of Bihar. They were initially recruited against the vacancies reserved for the members of the Scheduled Caste. All of them have been promoted to higher post after 11.6.1996 on the vacancies reserved for the Scheduled Caste. To provide for adequate representation of Schedul....
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....e candidates residing out of the State of Bihar shall not claim for benefits of reservation under this Act. Its Hindi version, however, is as follows:-- 3. बिहार अधिनियम -3, 1992 के धारा 4 को संशोधन 1 - निम्नलिखित तीसरा परन्तुक उक्त अधिनियम की धारा-4 की उप-धारा (2) में जोड़ा जायेगा :- "परन्तु और कि बिहार राज्य के बाहर के निवासी अभ्यर्थी इन अधिनिय....
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....t that during the hearing of this case, none of the Counsel including the learned Advocate General, who appeared on behalf of the petitioner, in the present case, produced any material to show that the English version of the Act be fore us is the translated version of the Act in Hindi, in accordance with the requirement of Article 348(3) of the Constitution. While publishing the translated version of Section 16(1) under the authority of the Governor of this State, as required by Article 348(3) of the Constitution, how such an important part of that sub-section in Hindi version "जबतक कि उचित किराये से संबंधित विवाद सक्षम न्यायालय के विनिश्चय द्वारा तय न कर दिया जाय was overlooked or omitted is difficult to explain. As such it is proper to proceed construe the effec....
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....2379; उपलब्ध हागो चंकि सरकारो सवाओं में बिहार निवासो आरक्षित वर्गा को प्रतिनिधित्व अपयाप्त है। राज्य सरकार ने यह भो निणय लिया है कि राज्य को सवाओं को सभी श्रेणियों में आरक्षण को सुविधा उन्हों उम्मीदवारों का ....
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....wn its scope vide Rt. Rev. Msgr. Mark Netto vs. State of Kerala SCC para. 6 : AIR para. 6. Also, it is none of the concern of the court whether the legislation in its opinion is wise or unwise. It has been contended on behalf of the petitioners that the third proviso to Section 4(2) of the Act has come into force with effect from 11th of June, 1996 by virtue of Section 3 of Bihar Act 15 of 2003 and hence it is ultra vires Article 14 of the Constitution of India. Section 3 of Bihar Act 15 of 2003 inserting third proviso in Bihar Act 3 of 1992 has also been sought to be declared ultra vires on the ground that it has been made operative with effect from 11.6.1996 without spelling out any reason or relevance of the said date. It has also been pointed out that the accelerated seniority and promotion guaranteed under Article 16(4A) of the Constitution of India have been divested and therefore the proviso under challenge is ultra vires and the act of reversion on that basis is also illegal. It has been emphasized that right accrued cannot be divested by retrospective application of law. In support of the submission, reliance has been placed on a decision of the Supreme Court in the cas....
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....e case of Chairman, Railway Board and Others vs. C.R. Rangadhamaiah and Others ((1997) 6 SCC 623), in which it has been held as follows:-- In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. Yet another decision on which reliance is placed is the decision of the Supreme Court in the case of P. Tulsi Das and Others vs. Govt. of A.P. and Others ((2003) 1 SCC 364), in which it has been held as follows:--....
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....nable nexus. Here in the present case, the proviso under challenge came into force with effect from 11th of June, 1996. It cannot be said that the Legislature has chosen this date without any purpose. It is relevant here to state that the State Government in the Personnel and Administrative Department by letter dated 11th of June, 1996 had provided for giving the benefit of reservation to such members of the reserved category who are the native (मूलवासी) of this State. As the aforesaid decision of the State Government was communicated by letter dated 11.6.1996, the Legislature has chosen to make it effective from the said date. It is worth mentioning here that the letter in question had taken note of the decisions of the State of Uttar Pradesh and Madhya Pradesh of not providing the reservation in direct recruitment, but the decision taken by the State Government cannot be confined in the matter of direct recruitment only. The decision of the State Government in no uncertain terms provides for extending the benefit of reservation in all categories of services to permanent residents and native of this State. From the aforesaid decision....
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....has next been contended that on the date of appointment, petitioners who belonged to the Scheduled Caste of the State, other than the State of Bihar, were treated in similar fashion as that of the Scheduled Caste of this State and therefore later on they cannot be treated unequally. It is emphasized that petitioners once having been treated equally cannot be treated unequal and if done, it shall affect the petitioners' right guaranteed under Articles 14 and 16 of the Constitution of India. I do not find any substance in this submission. The question of discrimination, in my opinion, shall arise only when a person belonging to same class is treated differently. The members of the Scheduled Caste belonging to this State and those belonging to other States constitute different class. It is not the case of the petitioners that Scheduled Caste of other States have been granted benefit and they alone have been discriminated with the Scheduled Caste of this State. In my opinion, the Scheduled Caste of this State and Scheduled Caste of other States constitute different and distinct class and the decision to give benefit to the Scheduled Caste of this State only cannot be said to be ....
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.... writ petitions. (Underlining ours) I hasten to add that discrimination on the ground of residence, if founded on unreasonable classification will also be bad but in a case in which the legislature makes discrimination on the ground of residence, it shall not be invalid on that ground. It is relevant here to state that Article 15(1) prohibits discrimination on the ground of place of birth but does not prohibit discrimination on the ground of place of residents. Not only this, Article 15(4) enables the State for making special provision for the advancement of the members of the Scheduled Castes and the Scheduled Tribes. Though Article 16(2) prohibits discrimination on the ground of residence also but Clause (4A) thereof permits making provision for reservation in matters of promotion and seniority in favour of the Scheduled Caste and Scheduled Tribe, which in the opinion of the State are not adequately represented in the services under the State. The preamble of the Act enumerates the purpose of the Act and that is to provide for adequate representation of the Scheduled Castes, Scheduled Tribes and Other Backward Classes in post and services under the State. A legislation prov....
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....promotion but has confined that to the members of the Scheduled Castes of this State. In such a situation, it cannot be said that the proviso under challenge had affected the Scheduled Castes in general and therefore consultation with the Commission is necessary. It has further been contended on behalf of the petitioners that before reverting to the post which they held prior to the promotion, no enquiry was held and as such the reversion is in violation of the right guaranteed under Article 16 and also in violation of Article 311 of the Constitution of India. According to the petitioners, Article 311 of the Constitution of India covers reversion on any ground. I have found that the order of reversion does not suffer from the vice of discrimination guaranteed under Article 16 of the Constitution of India. Petitioners have not been reverted as a measure of punishment but on the ground that their promotion on the vacancies reserved for the members of the Scheduled Castes is illegal. In such circumstance, it cannot be said that an enquiry as contemplated under Article 311(2) of the Constitution of India is necessary. Thus, the reversion of the petitioners cannot be said to be ei....