Patna High Court
Suman Kumar vs The State Of Bihar on 11 August, 2025
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.17892 of 2024
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1. Suman Kumar, Son of Ramdhani Tanti, Resident of Village- Charoum,
Nwagarhi, P.S.- Mufassil, Munger, District- Munger.
2. Munna Kumar, Son of Sri Krishnanandan Tanti, Resident of Village-
Dharhara, P.S.- Dharhara, District- Munger.
3. Rajnish Prasad, Son of Umeshwar Prasad, Resident of Village- Sikariya,
Nawadih, P.S.- Karakat, District- Rohtas.
4. Dhiraj Kumar, Son of Lakhichand Prasad, Resident of Kagzi Mohalla,
Ranchi Road, P.S.- Biharsharif, District- Nalanda.
5. Rahul Kumar, S/o Yugal Kishore Prasad, Resident of Mohalla- Manpur
Shivcharal Lane, Masjid Gali, District- Gaya.
... ... Petitioner/s
Versus
1. The State of Bihar through the Secretary, Labour Resources Department,
Directorate, Employment and Training, Niyojan Bhawan, 4th Floor, Bailey
Road, Patna.
2. The Chairman, Bihar Technical Service Commission, 19 Harding Road,
Patna.
3. The Secretary, Bihar Technical Service Commission, 19 Harding Road,
Patna.
4. The In-charge Secretary, Bihar Technical Service Commission, 19 Harding
Road, Patna.
5. The Deputy Secretary, Bihar Technical Service Commission, 19 Harding
Road, Patna.
6. The Director, Employment and Training, Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ram Shankar Das, Advocate
For the Respondent/s : Mr. Madhukar Mishra, AC to SC -16
For the BTSC : Mr. Nikesh Kumar, Advocate
Mr. Akshansh Shanker, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Patna High Court CWJC No.17892 of 2024 dt.11-08-2025
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Date : 11-08-2025
Heard the parties.
2. The petitioners, who are the aspirants for the post
of Trade Instructor (Fitter) in terms with Advertisement No. 10
of 2023, have approached this Court on being aggrieved with
the Resolution no. 03/Pari-BTSC-64/2019-3343 dated
30.10.2024
, whereby the Bihar Technical Service Commission
(hereinafter referred to as ‘the Commission’) came out with an
important notice in connection with subject “Advertisement”, in
consequent to which the petitioners have been excluded from
the zone of consideration, by changing the rule of game in
midway of the recruitment process. The petitioners further
sought a direction commanding upon the respondent
Commission to select and appoint the petitioners on the basis of
the prescription of the subject “Advertisement” by treating the
petitioners under the prescribed reserved category of Scheduled
Caste, on which category they were falling on the date of
advertisement.
3. Assailing the action of the respondent
Commission and the impugned resolution dated 30.10.2024,
learned Advocate for the petitioners, Mr. Ram Shankar Das
submitted with all vehemence that the method and manner of
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selection in the midst cannot be altered/changed depriving the
petitioners of the guarantee of equal opportunity in the matter of
public employment; so the petitioners are entitled to be
considered for appointment against the post, which were duly
advertised and filled up as per the Rules prevalent at the time of
advertisement.
4. Referring to the Advertisement, especially
Clause 4(vii), learned Advocate for the petitioners submitted
that there was a specific stipulation that the recruitment process
shall be taken place in the light of Memo No. 16144 dated
28.11.2012 issued by the General Administration Department
and there shall be no modification/change in the reservation
category during the recruitment process. Clause 8 thereof
further made it clear that all the certificates pertaining to
eligibility of a candidate, including the certificate for claiming
reservation shall be valid only, the particulars of which was duly
mentioned in the Online application form. However, all the
certificate must have been issued prior to the cut off date on
03.08.2023.
5. In tune with the terms of the advertisement, the
petitioners, who were the candidates falling under the category
of Scheduled Caste submitted their respective castes certificates
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along with necessary documents. The petitioners along with
others upon receipt of the admit-card participated in the
examination and declared successful, whereupon called for the
document verification. List of selected candidates under
different streams along with respective cut off marks were
issued and they were called for document verification. In the
meanwhile, the Commission vide letter no. 3178 dated
15.10.2024 directed the candidates to submit their valid caste
certificate, failing which the claim of reserved category may be
changed or considered appropriately. It is respectfully submitted
that petitioner no.1 and 2 have filed their Online applications
under Scheduled Caste category and both have claimed their
respective caste category on the basis of their caste as “Tanti-
Tantwa”. However, while the recruitment process was going on
in the meanwhile the Department of General Administration,
Government of Bihar in compliance with the order of the
Hon’ble Supreme Court of India in Dr. Bhim Rao Ambedkar
Vichar Manch Bihar, Patna Vs. The State of Bihar & Ors.
(Civil Appeal No. 18802 of 2017) has issued a Gazette
Notification No. 764 dated 12.08.2024.
6. In the light of the aforesaid Gazette Notification,
the Labour Resources Department vide its Letter No. 2441 dated
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04.09.2024 and further vide letter no. 2594 dated 19.09.2024
has directed the Commission to rectify the merit list in view of
the mandate of the Hon’ble Supreme Court. The Commission
requested the petitioners and other candidates to submit on
record, their respective caste certificates/Non-creamy layer
certificates for grant of reservation benefit in terms with the
judgment rendered by the Hon’ble Supreme Court in SLP
No.18802 of 2017 and clarified the position. In the light of the
decision of the Hon’ble Supreme Court and the Gazette
Notification as well as consequential letters, the caste of all
these petitioners, which was “Tanti-Tantwa” prior to 2015, but
later on their reservation category was declared to be Extremely
Backward Class (EBC) from Scheduled Caste (SC), the
candidatures of the petitioners were considered, however, they
could not get the cut off marks under EBC category and thus
were not selected. The entire action and impugned resolution are
put to challenge by the petitioners.
7. Adverting the aforesaid facts, Mr. Das, learned
Advocate for the petitioners further urged that the caste/category
applicable for reservation in selection process must be based
upon the category existing at the time of advertisement or at the
time of cut off date or submission of application, subsequent
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changes in caste/category will not have any retrospective
application. To support the aforesaid contention, reliance has
been placed on a Bench decision of this Court in the case of
Ram Krishna Babloo Vs. The State of Bihar & Ors.
(C.W.J.C. No. 10518 of 2013). Referring to the decision in the
case of Ashutosh Kumar Vs. the State of Bihar & Ors.,
reported in 2015 (4) PLJR 609, learned Advocate for the
petitioners further submits that once the process for conducting
examination was initiated, the petitioner falling under the
category of Schedule Caste or Backward Caste cannot be
altered. Any resolution though indicated to take effect
immediately can take effect prospectively for future
examinations. The changes made in midway would not effect
the process initiated earlier, otherwise it would have serious fall
out.
8. Further reliance has been placed on a decision in
the case of Kusum Kumari Vs. The State of Bihar & Ors.,
reported in, 2021 (1) BLJ 702 where the Court considering the
fact of changing the reservation category of Most Backward
Class (MBC) to Scheduled Tribe (SC) during on going selection
process has held that the petitioner was entitled for reservation
in terms of the Act of 1991, based upon which she had
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submitted her application under MBC category. Later on, even if
she made correction and claimed to be a candidate under the
category Scheduled Tribe, in view of the amended resolution,
was only a bonafide act of the petitioner and that would not take
away her right to get reservation as Most Backward category
candidate.
9. Reliance has also been placed on a learned
Division Bench decision of this Court in the case of Registrar,
Bihar Animal Sciences University Vs. Md. Aman Hassan &
Ors., (L.P.A. No.829 of 2023) to the effect that introduction of
new criteria after advertisement would render the entire
selection process vulnerable to challenge. Selection process
must adhere to the rules and terms prevailing at the time of
advertisement. Any amendment or imposition of new
requirements during or after the process is not permissible, as it
changes the rules of the game.
10. Learned Advocate for the petitioners further
cited the Division Bench decision of this Court in the case of
State of Bihar & Ors. Vs. Archana Kumari & Ors., reported
in 2024 (2) PLJR 645 and submitted that to abandon the earlier
selection process is held to be impermissible by the learned
Division Bench. The Court having taken note of the fact that the
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selection process initiated under the 2018 Rules, but
subsequently fresh advertisement issued under 2023 Rules
altering the mode of selection, held that it constituted a change
of rule midway, prejudicing earlier applicants and thus set aside
the subsequent advertisement.
11. Mr. Nikesh Kumar, learned Advocate for the
Commission and Mr. Madhukar Mishra, learned Advocate for
the State dispelling the aforesaid contention have submitted that
the contention of the petitioners is wholly misplaced in view of
the decision of the Hon’ble Supreme Court in the case of Dr.
Bhim Rao Ambedkar Vichar Manch Bihar, Patna Vs. The
State of Bihar & Ors. (Civil Appeal No. 18802 of 2017) and
other analogous cases bearing SLP (Civil) No.18294 of 2021
whereby the Court while setting aside the Resolution dated
01.07.2015 issued by the General Administration Department
held that all such posts of the Scheduled Castes reserved quota
which have been extended to the members of the “Tanti-
Tantwa” community appointed subsequent to the Resolution
dated 01.07.2015 be returned to the Scheduled Castes Quota and
all such members of the “Tanti-Tantwa” community, who have
been extended such benefit may be accommodated under their
original category of Extremely Backward Classes, for which the
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State may take appropriate measures.
12. The Gazette notification dated 12.08.2024 has
been duly issued in deference with the decision rendered in the
case of Dr. Bhim Rao Ambedkar Vichar Manch Bihar, Patna
(supra); since the recruitment process has not been culminated
and as such the Gazette notification has been made applicable
and the petitioners have been treated as the candidate under the
Extremely Backward Class category. Furthermore, the
petitioners did not get the cut off marks under the EBC category,
hence they have been non-suited.
13. Mr. Nikesh Kumar, learned Advocate for the
Commission has also placed reliance upon a decision of the
learned Division Bench of this Court in the case of Ashutosh
Kumar Vs. The State of Bihar & Ors. (LPA No. 399 of 2022)
and submitted that identical issue had come up for consideration
and the Court held that in absence of any specific observation
made by the Hon’ble Supreme Court, one cannot draw inference
that it has prospective effect. Placing reliance upon the decision
rendered in the case of Kanishk Sinha and Another Vs. The
State of West Bengal and Another, reported in, 2025 LiveLaw
(SC) 259, held that if there is no observation made by the
Hon’ble Supreme Court to the extent whether any Judgment has
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prospective or retrospective effect in that event one has to draw
inference that it has retrospective effect. In identical situation,
the learned Division Bench did not interfere with the order of
the learned Single Judge dismissing the writ petition seeking
similar reliefs.
14. Having bestowed anxious consideration to the
submissions advanced by the learned Advocate for the
respective parties and on careful consideration of the materials
available on record, it appears that the position is admitted that
the petitioners before this Court, falling under the category of
“Tanti-Tantwa” as Scheduled Caste category, but on account of
re-location/restoration from Scheduled Castes to Extremely
Backward Class, as also having not obtain the cut off marks
under the Extremely Backward Class category, they have been
left out in the revised recommendation list, which has been
published in terms with the Extraordinary Gazette Notification
dated 12.08.2024 by the Department of General and
Administration in compliance with the order passed by the
Hon’ble Supreme Court in the case of Dr. Bhim Rao
Ambedkar Vichar Manch Bihar, Patna (supra).
15. In order to appreciate the issue as formulated
here, it would be pertinent to refer the mandate of the Hon’ble
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Supreme Court, as rendered in the aforenoted case. The
correctness of the judgment and order dated 03.04.2017 passed
by a Division Bench of this Court, affirming and validating the
second part of the Resolution dated 01.07.2015, whereby
“Tanti-Tantwa” caste was sought to be merged with Entry-20
of the Scheduled Castes list, namely, the caste of “Pan, Sawasi,
Panr” and extending all the benefits of Scheduled Castes, has
come up for consideration before the Hon’ble Supreme Court.
16. The challenge was mainly on the ground that
the State Government had no competence/authority/power to
add a caste or sub-caste to any entry in the Scheduled Castes list
notified under the Presidential Order under Article 341 of the
Constitution of India. Once the list under the Presidential Order
is published, thereafter, any amendment, addition, deletion or
modification to the said list can be made only by law enacted by
Parliament and not otherwise. The Hon’ble Supreme Court after
having given in depth consideration held that the Resolution
dated 01.07.2015 was patently illegal, erroneous as the State
Government had no competence/authority/power to tinker with
the lists of Scheduled Castes published under Article 341 of the
Constitution. The submission of the respondent-State that
Resolution dated 01.07.2015 was only clarificatory, not found
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worth considering for a moment and out rightly rejected. The
Hon’ble Supreme Court observed that the State of Bihar has
tried to read something in order to suit its own ends for
whatever reason and thus held that the High Court fell in serious
error in upholding the said Notification on a completely wrong
premise without referring to Article 341 of the Constitution. The
Hon’ble Supreme Court finally in its penultimate paragraph
ruled as follows:
“39. Now comes the question with
regard to protecting those Members of “Tanti-
Tantwa” community who were extended benefit
of Scheduled Castes pursuant to the Resolution
dated 01.07.2015. In the present case, the action
of the State is found to be mala fide and de hors
the constitutional provisions. The State cannot be
pardoned for the mischief done by it. Depriving
the members of the Scheduled Castes covered by
the lists under Article 341 of the Constitution is a
serious issue. Any person not deserving and not
covered by such list if extended such benefit for
deliberate and mischievous reasons by the State,
cannot take away the benefit of the members of
the Scheduled Castes. Such appointments would
under law on the findings recorded would be
liable to be set aside. However, as we have found
fault with the conduct of the State and not of any
individual member of the “Tanti- Tantwa”
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community, we do not wish to direct that their
services may be terminated or that recovery may
be made for illegal appointments or withdrawal
of other benefits which may have been extended.
We are of the view that all such posts of the
Scheduled Castes reserved quota which have
been extended to the members of the “Tanti-
Tantwa” community appointed subsequent to the
Resolution dated 01.07.2015 be returned to the
Scheduled Castes Quota and all such members of
the “Tanti-Tantwa” community, who have been
extended such benefit may be accommodated
under their original category of Extremely
Backward Classes, for which the State may take
appropriate measures.
40. Accordingly, the Appeals
succeed and are allowed.
41. The impugned Resolution dated
01.07.2015 is, hereby, quashed.
42. It is further directed that such
posts of the Scheduled Castes Quota which had
been filled up by members of “Tanti-Tantwa”
community availing benefit on the basis of
Resolution dated 01.07.2015 may be returned to
the Scheduled Castes category and such
candidates of “Tanti-Tantwa” community be
accommodated by the State in their original
category of Extremely Backward Classes by
taking appropriate measures.”
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17. Bare reading of the mandate of the Hon’ble
Supreme Court there is not even slightest ambiguity that the
Court having been found fault with the conduct of the State and
not of any individual member of the “Tanti-Tantwa”
community have taken a lenient view and directed that their
services may not be terminated by treating it as illegal
appointments or there should not be any order for recovery or
withdrawal of other benefits which may have been extended.
However, all such posts of the Scheduled Castes reserved quota
which have been extended to the members of the “Tanti-
Tantwa” community appointed subsequent to the Resolution
dated 01.07.2015 be returned to the Scheduled Castes Quota and
all such members of the “Tanti-Tantwa” community, who have
been extended such benefit may be accommodated to the
original category of Extremely Backward Classes, for which the
State may take appropriate measures. The Court further clarified
that the posts of the Scheduled Castes Quota which had been
filled up by members of “Tanti-Tantwa” community availing
benefit on the basis of Resolution dated 01.07.2015 may be
returned to the Scheduled Castes category and such candidates
of “Tanti-Tantwa” community be accommodated by the State
in their original category of Extremely Backward Classes by
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18. In the light of the mandate of the Hon’ble
Supreme Court, the Department of General Administration,
Government of Bihar has come out with Gazette Notification
No. 764 dated 12.08.2024 repealing the Resolution No. 9532
dated 01.07.2015.
19. In view of the Gazette Notification noted
hereinabove, the Department of General Administration,
Government of Bihar, Patna also informed the requisitionist
Labour Resources Department vide its letter no. 2441 dated
04.09.2024 and further by letter no. 2594 dated 09.09.2024 to
rectify the merit list in view of the direction of the Hon’ble
Supreme Court in Dr. Bhim Rao Ambedkar Vichar Manch
Bihar, Patna (supra). In the Aforesaid premise, the Commission
has afforded opportunity to all the petitioners to file their
respective caste certificate(s)/non creamy layer certificate(s) for
grant of reservation benefit in terms with the judgment of the
Hon’ble Supreme court and the consequent notification issued
by the General and Administrative Department. However, the
petitioners failed to do so and placed reliance upon their earlier
certificates, which have been filed at the time of filling their
applications. Subsequent thereto, taking note of the fact that the
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caste of all the petitioners prior to 2015 was “Tanti-Tantwa”
and thus their reservation category was changed to Extremely
Backward Class (EBC) from Schedule Caste (SC). Since the
petitioners could not get the cut off marks of selected candidates
in EBC category and thus they were not selected in the fresh
select list, which was published in the Public Notice dated
30.10.2024, whereby the impugned resolution dated 01.07.2015
is quashed and cancelled based upon which resolution, the claim
of the petitioners for reservation under Schedule Caste category
was stood.
20. It would be pertinent to note here that the
submissions of the petitioners that the change in selection
criteria after the commencement of selection process is
impermissible and amounts to altering the rules of game is
wholly misconceived and not applicable in the present case in
view of the mandate of the Hon’ble Supreme Court noted
hereinabove.
21. Suffice it to observe that the Hon’ble Supreme
Court time without number has made it clear that in absence of a
declaration that the decision of the Court would operate
prospectively, it must be given retrospective effect. The Hon’ble
Supreme Court in the case of Directorate Of Revenue
Patna High Court CWJC No.17892 of 2024 dt.11-08-2025
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(3) PLJR (SC) 124 while addressing the issue of retrospective
effect of a judicial decision has been pleased to held in
paragraph no.94, which is as follows:
94. While addressing the issue of
the temporal and retrospective effect of a
judicial decision and declaring that a tribunal
or court is bound by a higher court’s decision
on the point in issue, irrespective of whether it
is declared either prior to or subsequent to the
order which is sought to be called into
question by a party, this Court in Assistant
Commissioner, Income Tax, Rajkot v.
Saurashtra Kutch Stick Exchange Limited
reported in (2008) 14 SCC 171 stated that a
judicial decision acts retrospectively by
placing reliance on the Blackstonian theory.
According to this theory, it is not the function
of the court to pronounce a “new rule” but to
maintain and expound the “old one”.
Therefore, if the subsequent decision alters or
overrules the earlier one, it cannot be said to
have made a new law. The correct principle of
law is just discovered and applied
retrospectively. In other words, if in a given
situation an earlier decision of the court
operated for quite some time and it is
overruled by a subsequent decision, the
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decision rendered subsequently would have
retrospective effect and would serve to clarify
the legal position which was not clearly
understood earlier. Any transaction would then
be covered by the law declared by the
overruling decision. The overruling is
generally retrospective with the only caveat
being that matters that are res judicatae or
accounts that have been settled in the
meantime would not be disturbed. The
relevant observations made by this Court are
reproduced hereinbelow:
“35. In our judgment, it is also well settled
that a judicial decision acts
retrospectively. According to
Blackstonian theory, it is not the
function of the court to pronounce a
“new rule” but to maintain and
expound the “old one”. In other words,
Judges do not make law, they only
discover or find the correct law. The law
has always been the same. If a
subsequent decision alters the earlier
one, it (the later decision) does not make
new law. It only discovers the correct
principle of law which has to be applied
retrospectively. To put it differently,
even where an earlier decision of the
court operated for quite some time, the
decision rendered later on would have
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position which was earlier not correctly
understood.
36. Salmond in his well-known work states:
“[T]he theory of case law is that a judge
does not make law; he merely declares
it; and the overruling of a previous
decision is a declaration that the
supposed rule never was law. Hence any
intermediate transactions made on the
strength of the supposed rule are
governed by the law established in the
overruling decision. The overruling is
retrospective, except as regards matters
that are res judicatae or accounts that
have been settled in the meantime.”
(Emphaasis supplied)
22. It would also be pertinent to observe here that
identical issue has come up for consideration before the learned
Division Bench of this Court in the case of Ashutosh Kumar
Vs. The State of Bihar & Ors. (L.P.A. No. 399 of 2022)
wherein the appellant, who was a candidate for recruitment to
the post of Assistant Professor in pursuant to the Advertisement
No.52 of 2020 had claimed his candidature under Scheduled
Tribes Category. However, despite the recommendation of his
name for appointment under the aforementioned category, he
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could not be appointed and thus on being aggrieved, the
petitioner preferred C.W.J.C. No.9632 of 2022, but the same did
not get any succor and thus the order of the learned Single Judge
has been put to question before the learned Division Bench of
this Court. It was the specific contention of the appellant that he
had participated in the process of selection in terms of
Advertisement No. 52 of 2020 under the category of Scheduled
Tribe based upon Gazette Notification issued by the State
Government, bearing No.689 of 2016 dated 23.08.2016,
wherein the ‘Lohar Caste’ was included in the Scheduled
Tribes list. Inclusion of ‘Lohar Caste’ in Scheduled Tribes list
dated 23.08.2016 was the subject matter of litigation before the
Hon’ble Supreme Court in the Writ Petition (Civil) No.1052 of
2021 (Sunil Kumar Rai & Ors. Versus The State of Bihar &
Ors.) in which the same was struck down on 21.02.2022.
23. Notwithstanding the aforesaid position, the
appellant had led his submission that on the last date of
submission of application, whatever the status of the candidate
was required to be taken into consideration and since the
Gazette Notification dated 23.08.2016, insofar as inclusion of
‘Lohar Caste in Schedule Tribes List’, was very much existing
in the eye of law. Therefore, exclusion of the petitioner and
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unsuiting him against the post of Assistant Professor under
Scheduled Tribe was wholly illegal. The learned Division Bench
of this Court having taken note of undisputed fact that the
Hon’ble Supreme Court has struck down the State Government
Gazette Notification No.689 of 2016 dated 23.08.2016 in the
case of Sunil Kumar Rai & Ors. (supra), held the contention of
the appellant is not applicable to the matters like status of a
caste. The Court categorically observed that the appellant has no
indefeasible right to claim over the post with reference to
Scheduled Tribe Category. Referring to the decision rendered in
the case of Tej Prakash Pathak and Ors. Vs. Rajasthan High
Court and Ors., reported in, 2024 LiveLaw (SC) 864 it has
further been observed that no right to be appointed merely
because of placement in the select list, but State must justify the
exclusion.
24. The Court further clarified that the judgment
whether it has retrospective or prospective can very well be
looked into by the decision itself; in the absence of any specific
observation made by the Hon’ble Supreme Court, one cannot
draw inference that it has prospective effect. The Hon’ble
Supreme Court in the case of Kanishk Sinha & Another Vs.
The State of West Bengal and Another, reported in, 2025
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LiveLaw (SC) 259, held that if there is no observation made by
the Hon’ble Supreme Court to the extent whether any Judgment
has prospective or retrospective effect in that event one has to
draw inference that it has retrospective effect. The learned
Division Bench finally on being found no merit in the appeal,
dismissed the same.
25. In the case in hand, from bare perusal of the
ruling in Dr. Bhim Rao Ambedkar Vichar Manch Bihar,
Patna (supra), there is no iota of confusion that it has
specifically given retrospective effect with a clear mandate, as
noted hereinabove.
26. In view of the mandate of the Hon’ble Supreme
Court in the case of Dr. Bhim Rao Ambedkar Vichar Manch
Bihar, Patna (supra), as also the subsequent notification(s)
issued by the State Government, this Court does not find any
merit in the writ petition; accordingly it is hereby dismissed.
27. The parties shall bear their own costs.
(Harish Kumar, J)
uday/-
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