STATE OF BIHAR & ORS.versusMITHILESH KUMAR

                   [2010] 10 S.C.R. 161


                STATE OF BIHAR & ORS.                          A
                             v.
                    MITHILESH KUMAR
                (SLP (C) No. 2631 of 2009)
                    AUGUST 19, 2010
                                                                B
       [ALTAMAS KABIR AND A.K. PATNAIK, JJ.]

       Service law - Appointment - Applications invited for
filling up the posts of Assistant Instructors to impart training
to disabled students - Subsequent decision to train the C
persons with disabilities by professionally established NGOs/
institutions - However, State Public Service Commission
recommending the name of the successful candidate in the
interview conducted to the Authority - Candidate not
appointed - Writ petition - High Court directing the Authority D
to appoint the candidate - Interference with - Held: Not called
for- Norms or Rules as existing on the date when the process
of selection begins will control such selection and any
alteration to such norms would not affect the continuing
process, unless specifically the same were given retrospective E
effect - Person may not acquire an indefeasible right to
appointment merely on the basis of selection - Claim of the
candidate to be appointed by Authority was negated by a
change in policy after the selection process had begun -
 Service jurisprudence- Aministrative Law.                       F

    Bihar Public Service Commission advertised the
posts for appointment of ln~tructors and Assistant
Instructors to impart training to the persons with
disabities. The respondent appeared at the interview and
was declared successful. Meanwhile, the Empowered               G
Committee decided to train the students through
professionally established NGOs/institutions and
requested not to send any further recommendations.

                             161                                H
    162       SUPREME COURT REPORTS            (2010] 10 S.C.R.


A Thereafter, the respondent was selected in the interview
  and the BPSC recommended his name to the said
  authority for appointment but the same was rejected. The
  respondent then filed a writ petition. The High Court
  allowed the petition and directed the authority to appoint
B the respondent to the said post. The Division Bench of
  the High Court upheld the order. Therefore, the appellant-
  State filed the instant Special Leave Petition.

          Dismissing the Special Leave Petition, the Court

C        HELD: 1.1 It is not correct to say that the Bihar Public
    Service Commission ought not to have recommended the
    name of the respondent for appointment after the
    Assistant Director, Social Welfare, had requested the
    Commission not to recommend any further names in
D   view of the decision taken by the State to have disabled
    persons trained through professionally established
    NGOs/institutions in place of Instructors/Assistant
    Instructors for which advertisements had already been
    issued by the Commission. Both the Single Judge as also
E   the Division Bench of the High Court rightly held that the
    change in the norms of rec.ruitment could be applied
    prospectively and could not affect those who had been
    selected for being recommended for appointment after
    following the norms as were in place at the time when the
F   selection process was commenced. The respondent was
    selected for recommendation to be appointed as
    Assistant Instructor in accordance with the existing
    norms. Before he could be appointed or even considered
    for appointment, the norms of recruitment were altered
G   to the prejudice of the respondent. [Para 14] [169-E-H;
    170-A-B]

          1.2 The law with regard to the applicability of the
  Rules which were amended and/or altered during the
  selection process is that the norms or Rules as existing
H on the date when the process of selection begins will
  STATE OF BIHAR & ORS. v. MITHILESH KUMAR           163


control such selection and any alteration to such norms     A
would not affect the continuing process, unless
specifically the same were given retrospective effect. In
the instant case, the amendments are introduced to a
recruitment process after the same has begun. [Para 15]
~70-C-D]                                                    B;
    1.3 While a person may not acquire an indefeasible
right to appointment merely on the basis of selection, in
the instant case, the claim of the respondent to be
appointed by the BPSG had been negated by a change
in policy regarding recruitment after the selection         C
process had begun. In these circumstances, there is no
reason to interfere with the impugned judgment of the
Division Bench of the High Court, upholding the
judgment of the Single Judge of the High Court. [Paras
16 and 17] [170-H; 171-A-B]                                 D

     Shankarsan Dash vs. Union of India (1991) 3 SCC 47;
Chairman, Ali India Railway RecruitmentBoard and Anr. vs.
K. Shyam Kumar and Ors. (2010) 6 SCC 614; Y. V. Rangaiah
& Ors. vs. J. Sreenivasa Rao and Ors. (1983) 3 SCC 284;     E
N. T. Devin Katti vs. Karnataka Public Service Commission
and Ors. (1990) 3 SCC 157; Secretary, A.P. Pubic Service
Commission vs. B. Swapna and Ors. (2005) 4 SCC 154;
Secretary, State of Karnataka vs. Uma Devi (2006) 4 SCC 1
- referred to. ·                                            F

     Latham vs. Richard Johnson & Nephew Ltd. (1911-13)
All E.R. 117 - referred to.
                   Case ..Law Reference:
                                                            G
    (1991) 3 sec 47         Referred to.       Para 6
    (2010) 6 sec 614        Referred to.       Para 7
    (1983) 3 sec 284        Referred to.       Para 11
    (1990) 3 sec 157 ·      Referred to.       Para 11      H
                                               I
    164       SUPREME COURT REPORTS               [2010] 10 S.C.R.


A         (2005) 4 sec 154         Referred to.          Para 12
          c2oos) 4 sec 1           Referred to.          Para 13
          (1911-13) All E.R. 117 Referred to.            Para 13
B        CIV1L APPELLATE JURISDICTION: SLP (C) No. 2631
    of 2009.

        From the Judgment & Orde1 dated 18.07.2008 of the High
    Court of Judicature at Patna In LP.A. No. 844 of 2007. ·

C         Gopal Singh, Naresh Mathur for the Petitioners.

          Devendra Kr. Singh, Prem Sunder Jha for the Respondent.

          The Judgment of the Court was delivered by

D       ALTAMAS KABIR, J. 1. In 199~. the Department of
  Welfare, Government of Bihar, decided to introduce two new
  trades (Electronic and Electrical Appliances -Repairing) for
  vocational training in the Kamla Nehru Social .Service Institute
  and Handicapped and Rehabilitation Training Centre, Patna,
E for training of persons with disabilities. The said proposal was
  approved by the Empowered Committee constituted under the
  Bihar Public Service Commission under the Chairmanship of
  the Development Commissioner and funds were also
  sanctioned for such training. In the light of the above decision
F on 12th March, 1999, a requisition was sent by the Welfare
  Department, Government of Bihar, to the Bihar Public Service
  Commission, hereinafter referred to as "the B.P.S.C.", for
  appointment of Instructors and Assistant Instructors, but despite
  sanction of funds for the year 1998-99, appointments were not
  made because the Commission failed to make
G recommendations for the said posts. Subsequently, the Scheme
  was not extended by the Empowered Committee, but on 30th
  December, 2001, pursuant to requisition made by the Welfare
  Department, the B.P.S.C. advertised the posts for making
  appointments thereto. The Respondent, Mithilesh Kumar,
H
  STATE OF BIHAR & ORS. v. MITHILESH KUMAR                 165
              [ALTAMAS KABIR, J.]
applied pursuant to the said advertisement and was called for      A
and appeared at an interview on 9th November, 2002, but
immediately, thereafter, on 14th November, 2002, the
Empowered Committee took a decision that from thenceforth
the services of NGOs/institutions would be used for training
persons with disabilities. The Assistant Director, Social          B
Welfare, by his letter dated 14th November, 2002, requested
the B.P.S.C. not to send any further recommendations as the
Scheme was no longer valid and the said Committee had
decided to train students of the two trades through
professionally established NGOs/institutions.                      c
    2. On 5th December, 2002, after the said communication
was received from the Assistant Director, Social Welfare, the
Respondent was declared successful in the interview which had
been held on 9th November, 2002, and despite the reqljest
made by the Assistant Director, Social Welfare, the B.P.S.C.       D
recommended the name of the Respondent to the said authority
for appointment. The "Respondent, in his turn, made a
representation seeking· appointment pursuant to the results
declared by the Commission. Not receiving any response, the
Respondent filed Writ Petition No.543 of 200~ before the           E
Patna High Court on 11th July, 2005, for appropriate relief. The
High Court disposed of the Writ Petition with a direction to the
Director, Social Welfare, Government of Bihar, to dispose of
the Respondent's representation. On 15th December, 2005, the
Director, Social Welfare, considered the representation of the     F
Respondent and rejected the same. .

     3. Aggrieved by the rejection of his representation, the
Respondent filed a fresh Writ Petition, being CWJC No.447 of
2006, before the Patna High Court and the same was duly            G
allowed. The order dated 15th December, 2005, passed by the
Director, Social Welfare, was quashed and the Secretary,
Social Welfare, Government of Bihar and the Director, Social
Welfare, were directed to appoint the Respondent to the post
of Assistant Instructor (Electronics) in Kamla Nehru Social        H
    166      SUPREME COURT REPORTS                [2010] 10 S.C.R.


A   Service Institute and Handicapped and Rehabilitation Training
    Centre, Patna, after obtaining a recommendation for validation
    by the B.P.S.C. A direction was given to issue the appointment
    letter in favour of the Respondent within two weeks from the
    date of receipt/ productio!l of a copy of the High Court's order.
B
       4. The matter was taken to the Division Bench by the State
  of Bihar in LPA No.844 of 2007. On 18th July, 2008, the
  Division Bench of the Patna High Court dismissed the said
  Appeal relying entirely on the judgment of the learned Single
C Judge, without giving any reasons of its own.

        5. The instant Special Leave Petition has been filed
    against the said judgment of the Division Bench of the Patna
    High Court.

0      6. Without denying the facts of the case, as narrated
  hereinabove, learned counsel appearing for the State of Bihar
  submitted that once a request had been made by the
  Empowered Committee to derequisition the posts in question,
  the B.P.S.C. ought not to have recommended the name of the
E Respondent for appointment as ,Assistant Instructor
  (Electronics). Referring to the Constitution Bench decision of
  this Court in Shankarsan Dash vs. Union of India [(1991) 3
  sec 47], learned counsel submitted that inclusion in the select
  panel did not vest the Respondent with an indefeasible right to
F be appointed, even if a vacancy existed.

       7. Reference was also made to the decision of this Court
  in Chairman, All India Railway Recruitment Board & Anr. vs.
  K. Shyam Kumar & Ors. [(2010) 6 SCC 614], wherein while
  considering the scope of judicial review, this Court had
G occasion to consider the aforesaid question also and it was
  reiterated that even after vacancies were notified for
  appointment and adequate number of candidates were found
  successful, they would not acquire any indefeasible right to be
  appointed against the existing vacancies.
H
   STATE OF BIHAR & ORS. v. MITHILESH KUMAR                     167
              [ALTAMAS KABIR, J.]
     8. On the other hand, learned counsel for the Respondent           A
reiterated the fact that pursuant to the advertisement published
by the Bihar Public Service Commission on 30th December,
2001 for filling up the posts of Instructor/Assistant Instructor, the
Respondent had applied and Admit Card was issued to him
in October, 2002. Pursuant to the above, the Respondent                 B
appeared in the selection process and the results were
declared by the Commission on 5th December, 2002 and after
declaration of the results a direction was given by the Minister
concerned to the Director, Social Welfare, Bihar, Patna, the
Petitioner No.3, to appoint the Respondent, Mithilesh Kumar,            c
forthwith. Pursuant thereto, on 24th February, 2004, the Director
of Social Welfare asked the Respondent to produce all his
certificates before the Assistant Director on 22nd February,
2004, for verification but, thereafter, he was not favoured with
an appointment letter. Learned counsel submitted that this              D
compelled the Respondent to file CWJC No.543 of 2005 for
issuance of a writ in the nature of .mandamus for his
appointment to the post in question.

     9. Learned counsel submitted that on 5th March, 2005, the
Director wrote to the Deputy Secretary of the Commission to             E
revalidate the recommendation which had been made by it and
had expired during the pendency of the matter. On 3rd May,
2005, the recommendation was revalidated for a period of three
months. Thereafter, on 11th July, 2005, a learned Single Judge
of the Patna High Court disposed of CWJC No.543 of 2005                 F
with a direction to the Director, Social Welfare, to dispose of
the Respondent's representation after seeking appropriate
instruction from the State Government and to ensure disposal
of the said representation on or before 3rd August, 2005.
                                                                        G
     10. Learned counsel submitted that the Respondent's
representation was considered and rejected by the Director,
Social Welfare, by his cryptic order dated 15th December,
2005, which was, thereafter, affirmed by the Division Bench in
LPA No.844 of 2007 on 18th July, 2008, in an even more cryptic          H
    168      SUPREME COURT REPORTS              [2010) 10 S.C.R.


A fashion. Learned counsel urged that having been selected for
  appointment after a regular process of selection, the
  Respondent's claim for appointment could not have been
  neutralized simply on the basis of a request subsequently made
  by the Assi~tant Director, Social Welfare, to the B.P.S.C. not
B to send any further recommendations as a decision had been
  taken in the interregnum to train students in respect of the
  trades in question through professionally established NGOs/
  institutions.

        11. Learned counsel submitted that the conditions of the
C advertisement inviting applications for filling up the posts of
  Assistant Instructor (Electronics) in the Kamla Nehru Social
   Service Institute and Handicapped and Rehabilitation Training
   Centre, Patna, could not have been altered to the prejudice of
  the Respondent on account of a decision taken subsequently
D to have persons with disabilities trained by professionally
  established NGOs/institutions. Reliance was placed on the
  decision of this Court in Y. V. Rahgaiah & Ors. vs. J.
   Sreenivasa Rao & Ors. [(1983) 3 SCC 284), where this Court
   in similar circumstances had held that when Service Rules are
E amended, vacancies which had occurred prior to the amended
                 '
  Rules would, be governed by the old Rules and not by the
  amended Rules. Reference was also made by learned counsel
  to the decision of this Court in N. T. Devin Katti vs. Kamataka
  Public Serv,ice Commission & Ors. [(1990) 3 SCC 157],
F wherein it was reiterated that where selection process was
  initiated by' issuing advertisement inviting applications,
  selection normally should be regulated by the Rules and orders
  then prevailing. It was also emphasized that service
  jurisprudence provides that normally amendments effected
G during the pendency of a selection process operate
  prospectively, unless indicated to the contrary by express
  language or by necessary implication.

        12. Learned counsel lastly referred to the decision of this
    Court in Secretary, A.P. Pubic Service Commission vs. B.
H



                     •
   STATE OF BIHAR & ORS. v. MITHILESH KUMAR                   169
              [ALTAMAS KABIR, J.]

Swapna & Ors. [(2005) 4 SCC 154], wherein while considering           A
the norms for recruitm.ent/selection for filling up vacancies which
had been initially advertised, this Court was of the view that such
norms of selection cannot be altered after commencement of
the selection process and Rules prescribing qualification, which
were amended during the continuation of the selection process,        B
have prospective operation unless something to the contrary
is indicated expressly or by necessary implication.

     13. Replying to the submissions made on behalf of the
Respondent, learned counsel for the Petitioner submitted that C
the Respondent was not also entitled to any relief having regard
to the decision of this Court in Secretary, State of Kamataka
vs. Uma Devi [(2006) 4 SCC 1], where in paragraphs 13 and
35, the Constitution Bench quoted with approval the .
observations of Farwell, L.J. in Latham vs. Richard Johnson
& Nephew Ltd. [(1911-13) All E.R. 117] to the effect that the D
Supreme Court in exercise of its jurisdiction under Article 142
has to be ver'J careful not to allow sympathy to affect its
judgment.

     14. We have carefully considered the submissions made            E
on behalf of the parties and we are not impressed with the stand
taken by the Petitioner, State of Bihar, that the Bihar Public
Service Commission ought not to have recommended the
name of the Respondent for appointment after the Assistant
Director, Social Welfare, had requested the Commission not            F
to recommend any further names in view of the decision taken
by the State to have disabled persons trained through
professionally established NGOs/institutions in place of
Instructors/Assistant Instructors for which advertisements had
already been issued by the Commission. Both the learned               G
Single Judge as also the Division Bench rightly held that the
change in the norms of recruitment could be appl.ied
prospectively and could not affect those who had been selected
for being recommended for appointment after following the
norms as were in place at the time when the selection process         H
    170      SUPREME COURT REPORTS               [2010] 10 S.C.R.


A was commenced. The Respondent had been selected for
  recommendation to be appointed as Assistant Instructor in
  accordance with the existing norms. Before he could be
  appointed or even considered for appointment, the norms of
  recruitment were altered to the prejudice of the Respondent.
B The question is whether those altered norms will apply to the
  Respondent.

         15. The decisions which have been cited on behalf of the
    Respondent have clearly explained the law with regard to the
    applicability of the Rules which are amended and/or altered
C   during the selection process. They all say in one voice that the
    norms or Rules as existing on the date when the process of
    selection begins will control such selection and any alteration
    to such norms would not affect the continuing process, unless
    specifically the same were given retrospective effect. As far as
D   the decision in Uma Devi's case (supra) is concerned, we
    share the sentiments as set out in paragraph 35 of the judgment
    but we are only considering a situation where amendments are
    introduced to a recruitment process after the same has begun.
    The question of allowing sympathy to affect our judgment does
E   not, therefore, arise in this case. Our focus is not on any
    individual, but on a legal principle which has been settled by
    this Court in various decisions, as referred to hereinbefore.
    There is no reason for us to have any disagreement with the
    decision of this Court in All India Railway Recruitment Board
F   case (supra) regarding the right to appointment even of selected
    candidates, but this is not a case of the Respondent having
    acquired any indefeasible right which has to be cancelled on
    account of certain exigencies. On the other hand, this is a case
    where although selected for the purpose of appointment by the
G   B.P.S.C., Patna, the case of the Respondent was not even
    considered as there was a change in policy regarding
    recruitment in the meantime.

         16. While a person may not acquire an indefeasible right
    to appointment merely on the basis of selection, in the instant
H
  STATE OF BIHAR & ORS. v. MITHILESH KUMAR                   171
             [ALTAMAS KABIR, J.]
case the fact situation is different since the claim of the         A
Respondent to be appointed had been negated by a change
in policy after the selection process had begun.

     17. In these circumstances, we do not see any reason to
interfere with the impugned judgment of the Division Bench of       B
the High Court dated 18th July, 2008, in LPA No.844 of 2007,
affirming the judgment of the learned Single Judge dated 31st
July, 2007, in CWJC No.447 of 2006. The Special Leave
Petition is, therefore, dismissed, without any order as to costs.

N.J.                       Special Leave Petition Dismissed.