Patna High Court Says BSUSC's Asst Professor Recruitment Drive Not In Line With Reservation Rules, Backlog Vacancies Not Earmarked Separately

While allowing the writ petition filed by Dr. Amod Prabodhi and various others, the single bench of Justice Sanjeev Prakash Sharma instructed the State government and the Commission to reopen the recruitment process after dividing the openings in accordance with the applicable law.

While declaring that the impugned advertisement was unlawful, the Court however granted some relief to newly appointed Assistant Professors who had already started working in their positions following selection, ruling that their appointments would not be "disturbed" and that their appointments would be adjusted to take into account the backlog of openings in their respective categories.

The court also made some important and significant observations with respect to the need to ensure that recruitment processes are carried out in accordance with the law laid down in several judgments passed by the Supreme Court and the High Court.

The entire gravamen of the petition was a challenge to the advertisement dated September 21, 2020 issued by BSUSC inviting application for the appointment of 4,638 Assistant Professor in 13 Universities.

The petitioners contested the selection process, arguing that the positions classified in the advertisement violated the State's 1991 legislation on reservations and that in some cases, the reservations had also exceeded the Supreme Court-prohibited 50% threshold.

Submissions of the Petitioner

The petitioners broadly made the following submissions:

1. The reservation quota has been wrongly applied in the advertisement, resulting in a decrease in the number of General posts and Backward Class posts while increasing the percentage for Scheduled Tribe, women of Backward Class, and Scheduled Caste.
2. The advertisement does not mention the inclusion of backlog posts, and even if included, the calculation has been done wrongly, violating the law laid down by the Supreme Court relating to filling up of posts under Article 16(4)(A) and 16(4)(B).
3. The principle of backlog vacancies has been applied incorrectly to the current advertisement, and the method of calculating backlog posts is erroneous and contrary to Supreme Court principles.
4. The criteria/formula adopted by the respondents for filling backlog posts is alleged to be wholly erroneous and mis-conceived.
5. Reservation for Disabled Category and Wards of Freedom Fighters has been applied incorrectly and needs to be applied horizontally in each category and subject-wise, respectively.

Submissions of the State and BSUSC

Submissions raised by Shri Pawan Chaudhury on behalf of the Commission, and supported by the other co-counsel, Shri Subhash Chandra Mishra were:

1. The reservation policy was framed by the State Government after consulting the concerned universities, and a list of available posts under each category for various subjects in different universities was provided to the Commission. Each university was treated as a separate unit, and the roster was applied at the university level in the subject. The same approach was adopted for horizontal reservation and the identification of backlog posts and disabled categories.
2. An amendment was made to the Reservation Act of 1991, adding a proviso to Section 4(1)(b), which states that while filling up the backlog posts and carry forward vacancies of the previous year with respect to the reserved class, the maximum limit of reservation of 50% would not apply, and it would be treated as a separate and distinct class.
3. The word ‘vacancy’ was to mean posts in terms of the judgement passed in R.K. Sabharwal & Ors. Vs. State of Punjab & Ors. 1995 (2) SCC 745.
4. An amendment was made in the Bihar State Universities Act 2013 and Patna Universities Act authorising Bihar Public Service Commission for making recommendation for appointment of Assistant Professor. The Commission conducted an exercise on the basis of requisition sent from the Universities who did not indicate backlog/carry forward vacancies. The State Government passed a resolution on 20th March 2014, deciding that out of the total number of posts requisitioned by the University, 75% of the total vacancies be filled up subject-wise as current vacancies as per roster clearance and 25% was kept pending as backlog which were to be filled later on. The B.P.S.C. was accordingly sent a requisition for the year 2014 for which the selection process has been almost completed except for some subjects.

Analysis and Judgement

In order to adjudicate the issues raised, the Court categorised the adjudication in the following categories: Backlog, E.W.S. Reservation, Disabled Category, and Wards of Freedom Fighters

The Court observed that the entire answer to the queries raised by the petitioners is essentially application of backlog vacancies.

Need to earmark backlog and fresh vacancies separately

The court further observed that the recruitment agency has to separately earmark backlog vacancies as a separate class and the fresh vacancies have to be marked separately. The word “backlog vacancies” is a term denoting those post of reserved category which could not be filled in the previous recruitment.

Relying on State of Uttar Pradesh & Ors. Vs. Sangam Nath Pandey & Ors. 2011 (2) SCC 105 and Dr. Sudhir Kumar & Ors. Vs. The State of Bihar & Ors. 2018 (2) PLJR 609 the court said that “it is apparent that in the last recruitment conducted in 2014, a resolution was taken on 20th March 2014 by the State Government to fill only 75% vacancies treating them as current vacancies, while 25% was to be kept as backlog.

Thus, in the present selection process, the University Commission was required to have a separate class of backlog posts which would include the 25% vacancies which were not recruited and any post of reserved category which could not be filled under the 2014 selection process. These posts alone can be said to be backlog posts.”

State gave erroneous formula to universities for calculating vacancies

The Court stated that “the State Government gave an erroneous formula to the respective Universities for calculating the backlog. The formula … fails to take notice of those posts which are of Open Category but filled by any meritorious reserved category candidate. … relying upon the total number of persons who have already been appointed from a particular reserved category, the backlog cannot be assessed. … the very basis of calculating backlog posts by the respondent State suffers from a basic fallacy and the same could not have been applied generally to all the Departments in all the Universities.”

Reservation has to apply to all universities together by a common advertisement as opposed to treating every university as a unit

The court further stated that “The respondents have also not been able to explain as to how the reservation has been applied treating University as a unit when the University Act provides for conducting a selection for all the Universities by a common advertisement and a common examination. Therefore, all the posts existing in the various Universities will have to be counted together as one unit for the purpose of application of the roster. …”

State adopted faulty method to deprive reservation to those persons who are separately categorised

Finding irregularities in the application of the law's provisions for horizontal reserves for disabled people and the children of freedom fighters, the court stated that, “The action of the respondents seeks to deprive those persons who have been separately categorised not by the society but by providence. Such persons cannot be allowed to be deprived on account of faulty and handicapped method adopted by the respondents. The reservation which is Horizontal in nature will cut across the Vertical reservations meaning thereby, if a person is of a Disabled Category, he shall be appointed even if he belongs to any of the reserved category and would take away a particular seat of that category. Interpretation of provision is to be done in a manner that the purpose of the Act of 2016 is achieved.”

“... this Court finds that the bifurcation of posts done by the respondent State and the Commission in its advertisement … is illegal and observed to be reviewed in terms of the observations made above,” the court added.

Create a separate legal cell to advise the authorities with regard to application of court judgments and procedures to be followed for recruitments in the future

The court ordering the state government to establish a legal department to clarify the meaning of past high court and supreme court rulings in order to prevent another botched hiring procedure in the future, stated that “The State authorities must create a separate legal cell consisting of a separate cadre as is found in various other State Governments as well as in the Central Government, who would provide legal advice to the State executive authorities with regard to the application of judgments and the procedure to be followed in consonance with law for making recruitments and appointments in the State and subordinate services. It is the duty of the State to see that the litigation as against it is reduced. Judgments passed by the High Court which have attained finality on any question of law are required to be followed in subsequent actions.”

“...it is directed that the respondents shall revise the bifurcation of post on the principle of calculation of backlog posts as observed as given hereinabove,” the court ordered.

Case Title: DR. Amod Prabodhi Vs. The State of Bihar Case No.8932 of 2020

Citation: 2023 LiveLaw (Pat) 10