SHASHI BHUSHAN PRASAD SINGH v. THE STATE OF BIHAR

specified that the educational qualification required for the post of Junior Engineer (Civil) as under:

"Educational Eligibility.

a) Junior Engineer (Civil)

i. Diploma-in-Civil Engineering conferred by the

concerned Technical Educational Council/University recognised by All India Council of Technical Education, New Delhi.

ii. Diploma-in-Civil Engineering through non- distance mode conferred by the concerned Deemed University established under the UGC Act provided the Deemed University is duly approved by the University Grants Commission for the said Course." It is pertinent to note that this requirement is drawn from and is identical to Rule 9(1)(iii) of the Bihar Water Resources Department Subordinate Engineering (Civil) Cadre Recruitment Rules, 2015 (the 'Rules') as amended in 2017.

4. The private Respondents in the present appeal were the Writ Petitioners before the High Court. They were all applicants who possessed a Diploma from Private Universities/Institutions established by statute and approved by the University Grants Commission. Their applications were found ineligible by the BTSC on the ground that their institutions were not approved by the All-India Council of Technical Education ('AICTE'). Aggrieved, they approached the High Court seeking the quashing of Rule 9(1)(iii) of the Rules as being inconsistent with other

3

statutory provisions and judgement of the Apex Court in

Bharathidasan University & Anr. vs. AICTE & Ors. 2001 (8) SCC 676 wherein, on an interpretation of the provisions of the All-India Council of Technical Education Act 1987, it was held that Universities are excluded from the purview of technical institutions and are thus not required to obtain approvals from the AICTE before introducing technical courses/programs.

5. The Writ Petitioners relied on public notice dated 09.02.2022 issued by the AICTE, to the VCs of all Central/State and Private Universities about AICTE approval for 2022-23, stating as follows:

"Dear Sir/Madam, lt is intimated that Hon'ble Supreme Court of India in case of Bharathidasan University & Another Vs AICTE & Others has interpreted the provisions of the AICTE Act and has held that university do not require prior approval of AICTE to commence a new department of course and programmes in technical education. Universities have obligation or duty to conform to the standards and norms laid down by the AICTE. For the purpose of ensuring coordinated and integrated development of technical education and maintenance of standards, AICTE may cause an inspection of the university, which has to be as per the provisions under relevant rules/regulations of the AICTE. Further, all affiliated institutions running technical education programmes requires prior approval of AICTE. However, it has been observed that some of the Central / State / Private Universities are taking partial approval of AICTE for some selected Technical Courses /

4

Programmes, which is creating confusion among the stakeholders.

Therefore, AICTE decided that no partial approval of technical courses will be given to Universities in order to avoid confusion among stakeholders.

Accordingly, all universities are hereby informed that either they take full approval of all technical courses, or they can continue without approval of AICTE."

6. It is relevant to note that the stand of the Writ Petitioners was reinforced by the AICTE before the High Court, as made explicit by their Counter Affidavit dated 12.05.2022, which read as under:

"8. That so far the statements made in paragraph no. 15 of the writ petition concern it is submitted that AICTE vide its public notification for approval process 2021-22 had categorically clarified that the central/state public private universities are not required to take approval of the AICTE for technical programs except ODL and online courses. This position has also been confirmed in the public notice issued for approval process 2022-23………….."

7. At this stage, it is apposite to observe that prior to the filing of CWJC No. 3411/2022, the High Court was already hearing several analogous writs challenging different provisions of the Rules as applicable to the selection process under the Advertisement. Accordingly, vide order dated 02.05.2019 passed in CWJC No. 9887/2019, the BTSC was permitted to continue the selection process, with the results to be kept in a sealed cover,

5

pending the outcome of the proceedings. This order was later modified vide order dated 06.12.2019 in CWJC No. 21651/2018 whereby the High Court allowed the selection process to be completed but directed that all orders of appointments must state that appointments are subject to the outcome of the writ petitions and therefore, the selected candidates cannot claim any equity.

8. Accordingly, on 02.04.2022, the BTSC published its selection list for the posts advertised under the Advertisement ('Select List') and the selected candidates were also allotted to specific departments. In compliance with the aforenoted interim orders, the Select List reproduced the directions given by the Court in order dated 06.12.2019 and explicitly stated that the Select List shall be affected in light of the final order in the pending proceedings.

9. Thereafter, in a separate analogous writ proceeding being CWJC No. 7312/2021, vide order dated 19.04.2022, Rule 4(A) of the Rules which granted 40% institutional reservation to diploma holders from State-run Polytechnic Institutes was found to be arbitrary and unreasonable. Consequently, Select list prepared in terms of Rule 4(A) was set aside and the BTSC was directed to prepare a fresh select list granting 40% institutional reservation to diploma holders from any polytechnic institute,

6

recognized by the AICTE and affiliated with the State Board of Technical Institutions, Bihar and located within the State.

10. Following this, the BTSC proceeded to finalise the merit list under the Advertisement but were directed by the High Court vide order 01.12.2022 in CWJC No. 7761/2022 to withhold the declaration of results until leave is granted by the Court. A list was prepared on 19.12.2022, put under sealed cover and permission of the Court was sought by filing an interlocutory application in CWJC No. 7761/2022 (the 'Final Select List'). The hearing of the application was adjourned after the Advocate General informed the Court that the State Government was contemplating a review of the entire process.

11. On 25.01.2023, the Govt. of Bihar convened a high-level meeting of Secretaries from different works departments to consider the legal issues emerging from the numerous pending litigations against the Rules and the Advertisement and the consequent 4-year delay in appointments. A decision was taken inter alia to cancel the appointment process under the Advertisement and to initiate approval for the amended Rules.

12. Once the decision dated 25.01.2023 was brought on record before the High Court, the State Govt. was permitted to implement its decisions dated 25.01.2023 and the Court concluded that nothing remained in the matter. Accordingly,

7

CWJC No. 3411/2022 and all other analogous writs were disposed of in the following manner:

"In the instant writ petitions, petitioners have prayed for the following relief/reliefs:

i. For quashing of Rule 9(1)(ii) of Rules

"Bihar Water Resources Department Subordinate Engineering (Civil) Cadre Recruitment (Amendment) Rules, 2017 contained in Notification no. 3950 dated 07.11.2017 prescribing technical qualification eligibility for selection/appointment to the technical post in the State of Bihar, as being inconsistent with other statutory provisions, in contravention of the Hon'ble Supreme Court's judgment and is violative of fundamental rights guaranteed under the Constitution of India.

ii. For declaration of the aforesaid rules as being ultra vires to the Constitution of India so far amendment of Rule -9(1)(iii) is concerned.

iii. For any other relief/reliefs to which the petitioner is found entitled to.

2. Matter is relating to selection and appointment to the post of Junior Engineer. In this regard, advertisement was issued on 08.03.2019. From time to time, matter was taken up for hearing and during the course of the hearing we have noticed certain errors in the relevant Rules governing the post of Junior Engineer. Ultimately, State Government has taken a decision to cancel the process of recruitment to the post of Junior Engineer with reference to advertisement issued on 08.03.2019 and proposed to issue a fresh or amendment of Rules while rectifying certain errors which have crept

8

in the existing Rules. To that effect, supplementary counter affidavit has been filed on behalf of respondent No. 4 while enclosing decision dated 25.01.2023 vide Annexure - A to the supplementary counter affidavit. Perusal of the same, it is evident that certain errors which have crept in the Rules would be carried in amendment of relevant Rules etc. The proposed action of the State respondents reads as under:

'4. After due deliberations on all aspects, it was resolved that:

a. In view of the legal wrangle crept in presently, the Recruitment process emanating from the Advertisement No.01/2019 notified by the Bihar Technical Service Commission be cancelled.

b. The Department which earlier send its requisition for appointment to the Commission shall withdraw their respective requisition from the Bihar Technical Service Commission and such Department would send their such requisition afresh only after framing of new Recruitment Rules. c. Action be also initiated for cancellation of the Junior Engineer Recruitments Rules which are presently in vogue in various departments and thereafter, the amended Junior Engineer Recruitments Rules be framed.

d. Steps be taken as to the approval of the Council of Ministers be accorded to the amended junior Engineer Recruitment Rules for the appointment of the Junior Engineer.'

3. In the light of these new developments, the present petitions do not survive for consideration. Accordingly, State is permitted to carry out necessary amendment and proceed afresh to advertise for the post of Junior Engineer.

9

4. From the date of last advertisement till date, almost four years have elapsed, therefore, such of those candidates who are likely to be over-aged with reference to ensuing advertisement, for such of those candidates (who are applicants to the advertisement dated 08.03.2019), State Government must make a provision in the proposed amendment insofar as giving age relaxation as a one time measure. The above exercise shall be completed within a period of four months from the date of receipt of this order.

5. Pending I.A., if any, stands disposed of.

6. At this stage, learned counsel for one of the contesting respondent submitted that liberty may be reserved to challenge the proposed amendment. Such liberty is not necessary for the reasons that as and when Rules or amended rules were issued afresh, it would be a fresh cause of action to the respective parties."

13. Learned Senior Counsels for the Appellants, Mr. Rajeev Dhavan, Mr. Ranjit Kumar and Ms. Meenakshi Arora urged before this Court that at the outset, the Writ Petitioners, having knowingly participated in the selection process under the Advertisement were bound by the doctrine of acquiescence and therefore, could not have challenged the eligibility criteria post- facto. Reliance is placed on Punjab National Bank vs. Anit Kumar Das (2021) 12 SCC 80 and The Chairman SBI & Anr. vs. M.J. James (2022) 2 SCC 301.

14. The learned counsels for the Appellants also contended that the cancellation of the entire selection process after its completion and preparation of the Final Select List, is unjustified

10

and amounts to changing the rules of the game after the declaration of results, which is impermissible. Reliance is placed on K. Manjusree vs. State of Andhra Pradesh & Anr. (2008) 3 SCC 512. It is argued that the Appellants, who emerged successful after the due process of selection which was carried out as per the Advertisement, have a vested right to be appointed and are instead being made to suffer though no fault of their own.

15. They further contended that the decision taken by the State Government and approved by the High Court amounts to arbitrary action as it fails to specify the concern/anomaly with Rule 9(1)(iii) which necessitated the cancellation of the entire process.

16. Learned Counsel for the Private Respondents i.e., the Writ Petitioners before the High Court also contended that the cancellation of the entire selection process, at such a tardy stage would seriously impact their interests. They argue that as per the stand of the AICTE before the High Court, their applications were eligible and should thus be reconsidered along with the applications of the Appellants.

17. Learned Senior Counsel for the State, Mr. Patwalia vehemently contends that the State was well within its domain to scrap the selection process considering the numerous legal issues that cropped up concerning the previously applicable Rules. It is

11

brought to the notice of this Court that in furtherance of its decisions, as approved by the Impugned Order, the Govt. of Bihar has repealed the existing Rules and notified the Bihar Subordinate Engineering (Civil/Mechanical/Electrical) Cadre Rules, 2023 (the 'New Rules') vide Notification No. 1174 dated 07.03.2023. In compliance with the directions of the High Court, appropriate provisions for the grant of one-time age relaxations have also been made under Rule 8(2) of the New Rules. Further, the BTSC has cancelled the Advertisement vide notice dated 10.04.2023 and fresh requisitions have been sent by the Water Resources Department to the BTSC vide letter dated 21.03.2023 for selection against 2252 vacant posts for Junior Engineers in that department.

18. Mr. Patwalia further contends that the completion of the selection process under the Advertisement, resulting in the Select List and in the Final Select List was consistently carried out with the rider that the appointments would be subject to the outcome of the pending litigation. He argues that while the Select List was partially set aside by the High Court vide order dated 19.04.2022, the Final Select List was neither considered by the High Court nor published, and therefore, no right to appointment vests with the Appellants, making any claim to equity untenable.

12

19. At this stage, it is pertinent to note that while issuing notice, this Court vide order dated 24.04.2023 directed the maintenance of status quo which has persisted till date. As per the most recent status report by the State, nearly 9,187 posts of Junior Engineers remain vacant, drastically affecting the day-to-day functioning of the State. As retirements are ongoing, the working strength is continuously decreasing and is currently at 11.7%. In recognition of the peculiar facts and circumstances of this case, Mr. Patwalia has fairly stated before this Court that the State will abide by any appropriate direction given by the Court.

20. We have heard Learned Counsel for the parties and perused the record.

21. As evidenced above, the present case has a chequered history. Before the Advertisement was released, an amendment was brought to the Rules in 2017, more particularly to Rule 9, which restricted the eligibility criteria only to those candidates who possessed a Diploma from an institute approved by the AICTE. This amendment was prima facie contrary to the decision of this Court in Bharathidasan University (supra)

which is solidified by the stand of the AICTE before this Court and their public notice dated 19.02.2022. However, despite this infraction, the Advertisement contained the same restriction,

13

arbitrarily disqualifying persons like the Writ Petitioners from the selection process.

22. Thereafter, the first Select List that was prepared was partly set aside vide order dated 19.04.2022 in CWJC No. 7312/2021 and the BTSC was directed to prepare a fresh Select List as under:

"Accordingly, appointments made to extent in terms of Rule 4(A) of amending Rules, 2017 are set aside and the Bihar State Technical Selection Commission is directed to prepare afresh select/merit list granting 40% institutional reservation to all the diploma holders, who have obtained their diploma certificate from any polytechnic institutes recognized by AICTU and affiliated by State Board of Technical Institutions, Bihar, Patna within the State of Bihar."

23. Consequently, the Select List prepared on 02.04.2022 was impliedly set aside and a Final Select List was prepared by the BTSC in compliance with order dated 19.04.2022 but the same was not released as ordered by the Patna High Court vide order dated 01.12.2022 in another analogous writ proceeding being CWJC No. 7761/2022 as under:

"…Process of selection and appointment, in terms of advertisement dated 8.9.2019, is nearing completion. Under these circumstances, as prayed for, we grant two weeks' time to file reply.

In the meanwhile, process of selection may carry on, but the result shall not be declared without leave of the Court."

14

24. It is pertinent to note that the order dated 19.04.2022 passed in CWJC No. 7312 of 2021 does not appear to have been challenged further and has attained finality. It is stated by the BTSC that the Final Select List was prepared and kept under sealed cover. While an application seeking release of the list was pending before the High Court, the Writ Petition was withdrawn.

25. During the present proceedings, vide order dated 10.09.2024, this Court sought information regarding the Final Select List from the State Government and the same was produced before this Court in sealed cover.

26. Presently, despite the preparation of the Final Select List which signals the conclusion of the appointment process, the State Government seeks to scrap the entire process and undertake a fresh appointment process under the New Rules. In the considered opinion of this Court, this amounts to effectively changing the rules of the game after the game was played which is impermissible and deprives the candidates of their legitimate right of consideration under the previous Rules.

27. The High Court in the impugned order has abruptly and without assigning reasons and without adjudicating any issues involved in the writ petitions, disposed of the same, recording the statement made by the learned counsel for the State, and

15

permitted the State to amend Rules in question. Since, the entire recruitment process was concluded as per the extant Rules till the selection list was declared on 02.04.2022, which has not been specifically set aside by the High Court, and since the AICTE has also continued its stand that its approval is not necessary for the private institutions, and since the order dated 19.04.2022 passed in CWJC No. 7312/2021 has attained finality, in our opinion, the interest of justice would be met if the State/Commission is directed to prepare a fresh select list of meritorious candidates in respect of the Advertisement dated 08.03.2019, keeping in view the above facts and keeping in view that no appointments to the post of Junior Engineer (Civil) have been made since last more than ten years. Hence, it is required to be directed that a fresh selection list for the vacancies advertised in the Advertisement dated 08.03.2019 be prepared of the meritorious candidates, considering the above observations and in compliance with the order dated 19.04.2022 passed by the High Court in CWJC No. 7312/2021 as expedient as possible and preferably within three months of this order.

28. In this regard, the field is held by the three-judge bench decision of this Court in K. Manjusree (supra) wherein the Court, relying on previous decisions, explicitly held that introducing new requirements into the selection process after the entire selection process was completed amounted to changing the rules

16

of the game after the game was played. Relevant portions of the judgement are reproduced as under:

"27. But what could not have been done was the second change, by introduction of the criterion of minimum marks for the interview. The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District & Sessions Judges, (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum marks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier Resolutions dated 24-7- 2001 and 21-2-2002 and held that what was adopted on 30-11-2004 was only minimum marks for written examination and not for the interviews. Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them — P.K. Ramachandra Iyer v. Union of

India [(1984) 2 SCC 141 : 1984 SCC (L&S) 214] , Umesh Chandra Shukla v. Union of India [(1985) 3 SCC 721 : 1985 SCC (L&S) 919] and Durgacharan Misra v. State of Orissa [(1987) 4 SCC 646 : 1988 SCC (L&S) 36 : (1987) 5 ATC 148]

32. In Maharashtra SRTC v. Rajendra Bhimrao Mandve [(2001) 10 SCC 51 : 2002 SCC (L&S) 720] this Court observed that "the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced". In this case the position is much more serious. Here, not only the rules

17

of the game were changed, but they were changed after the game had been played and the results of the game were being awaited. That is unacceptable and impermissible."

29. Therefore, in light of the aforenoted position, the State action of scrapping the entire selection process is not permissible. In view of the peculiar circumstances of this case, particularly the prolonged pendency leading to huge number of vacant posts that hinder the Government's functioning, this Court finds it appropriate for the State/BTSC to proceed with the Fresh Select List submitted in compliance with the order dated 19.04.2022 in CWJC No. 7312/2021 which has attained finality, as also taking into consideration as far as possible, the interest of the candidates who were found successful. Hence, the Fresh Select List must be appropriately revised in the following manner:

(i) The Fresh Select List be prepared in view of order dated 19.04.2022 passed by the High Court in CWJC No. 7312/2021.

(ii) The Fresh Select List shall also include as far as possible those meritorious candidates who were otherwise eligible but were declared ineligible solely on account of the 2017 amendment to the Rules i.e., on account of their institute not being recognised by the AICTE, and all similarly placed successful candidates.

18

(iii) The BTSC is directed to prepare the Revised Select List within 3 months of this Order and the State Government is directed to act upon the Revised Select List submitted by the Commission within a period of 30 days thereafter.

30. Accordingly, the present appeals are disposed of with the aforenoted directions.

……………………………………J.

[BELA M. TRIVEDI]

……………………………………J.

[SATISH CHANDRA SHARMA]

NEW DELHI

OCTOBER 04, 2024

19