REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (CIVIL) No.2631 OF 2009

State of Bihar & Ors.          … Petitioners  Vs.

Mithilesh Kumar … Respondent

J U D G M E N T ALTAMAS KABIR, J.

1.   In 1998, 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, 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 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  

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, applied pursuant to the said advertisement  

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and was called for 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 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.  

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 request  

made by the Assistant Director, Social Welfare, the  

B.P.S.C. recommended the name of the Respondent to  

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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 2005 before the 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  

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 allowed.  

The order dated 15th December, 2005, passed by the  

Director,  Social  Welfare,  was  quashed  and  the  

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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  

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/  

production of a copy of the High Court’s order.   

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 Judge, without  

giving any reasons of its own.

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5. The  instant  Special  Leave  Petition  has  been  

filed  against  the  said  judgment  of  the  Division  

Bench of the Patna High Court.   

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  

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  SCC  47],  learned  counsel  

submitted that inclusion in the select panel did  

not vest the Respondent with an indefeasible right  

to 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  

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SCC 614], wherein while considering the scope of  

judicial  review,  this  Court  had  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.

8.  On  the  other  hand,  learned  counsel  for  the  

Respondent 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 appeared in the selection process and  

the results were declared by the Commission on 5th  

December, 2002 and after declaration of the results  

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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, 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 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  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  

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three months.  Thereafter, on 11th July, 2005, a  

learned  Single  Judge  of  the  Patna  High  Court  

disposed of CWJC No.543 of 2005 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.   

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  

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  Assistant  

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Director, Social Welfare, to the B.P.S.C. not 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  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 to have persons with  

disabilities trained by professionally established  

NGOs/institutions.  Reliance  was  placed  on  the  

decision of this Court in Y.V. Rangaiah & Ors. vs.  

J. Sreenivasa Rao & Ors. [(1983) 3 SCC 284], where  

this Court in similar circumstances had held that  

when Service Rules are amended, vacancies which had  

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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.  Karnataka  Public  Service  Commission  &  Ors.  

[(1990) 3 SCC 157], 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  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. Swapna & Ors. [(2005) 4 SCC 154],  

wherein  while  considering  the  norms  for  

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recruitment/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,  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 the Respondent was not also entitled  

to any relief having regard to the decision of this  

Court in Secretary, State of Karnataka 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 Supreme Court in exercise of  

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its jurisdiction under Article 142 has to be very  

careful  not  to  allow  sympathy  to  affect  its  

judgment.  

 14. We  have  carefully  considered  the  submissions  

made  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 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 Single Judge as also  

the Division Bench rightly held that the change in  

the  norms  of  recruitment  could  be  applied  

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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  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.   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  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  

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any alteration to such norms would not affect the  

continuing  process,  unless  specifically  the  same  

were given retrospective effect.  As far as 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 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  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  

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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 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 case the fact situation  

is different since the claim of the 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  the  High  Court  dated  18th  

July, 2008, in LPA No.844 of 2007, affirming the  

judgment  of  the  learned  Single  Judge  dated  31st  

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July, 2007, in CWJC No.447 of 2006.  The Special  

Leave  Petition  is,  therefore,  dismissed,  without  

any order as to costs.  

…………………………………………J.    (ALTAMAS KABIR)

…………………………………………J.    (A.K. PATNAIK)

New Delhi, Dated: 19.08.2010

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