CAV JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 24-01-2024 The petitioners, directly appointed ‘Inspectors, Prohibition’ pursuant to the 63rd Combined Competitive Examination (for brevity ‘CCE’) conducted by the Bihar Public Service Commission (for brevity ‘BPSC’) are aggrieved with the alleged downgrading of the post from gazetted to non- gazetted. The petitioners contend that the advertisement for the 63rd ‘CCE’ was under the Bihar Excise Service (Recruitment and Service Conditions) Rules, 2009 (hereinafter referred to as ‘Rules of 2009’). After the advertisement issued on 09.11.2017, the 7th Pay Commission recommended restructuring of the cadre of Bihar Excise Service.

2. Considering the policy of Prohibition having been implemented within the State, there was also rechristening of the department as ‘Prohibition, Excise and Registration Department’. Based on the recommendation of the 7th Pay Commission, the post of ‘Inspector, Excise’ which was the entry cadre under the ‘Rules of 2009’ was made non-gazetted and the same included under the Bihar Non-Gazetted Excise Officers (Recruitment and Service Conditions) Rules, 2017. These rules, after the rechristening of the department, were renamed as the Bihar Non-Gazetted Excise Officers (Recruitment and Service Conditions) Rules, 2017 (hereinafter referred to as the ‘Rules of

2017’).

3. The ‘Inspector, Prohibition’, the erstwhile ‘Inspector, Excise’ was made a promotional post at the top of the hierarchy among the non-gazetted posts. For the gazetted service, Bihar Prohibition Service (Recruitment and Service Conditions) Rules, 2018 (for short ‘Rules of 2018’) was brought in. Therein, the ‘Superintendent, Prohibition’ was made the entry cadre, which was earlier the promotional post of an ‘Inspector, Excise’; both of which belonged to the gazetted ranks, as per the ‘Rules of 2009’. The petitioners challenge the down-gradation of the post to which applications were called for, after the advertisement and before the appointments. The petitioners further challenge the ‘Rules of 2017’ downgrading the post of ‘Inspector, Excise’ as a non-gazetted post and seek for protecting the interest and seniority of all directly appointed ‘Inspector, Prohibition’ on the basis of the 63rd ‘CCE’. 4. Learned counsel for the petitioners submitted that the rules of the game should not be changed mid-way and the down gradation of the post was arbitrary and illegal. The petitioners had a legitimate expectation to be appointed as a gazetted officer while the appointment was made to a non-

gazetted post. In fact, the persons who were appointed pursuant to the 67th ‘CCE’ as ‘Superintendent, Prohibition’ have stolen a march over those appointed as ‘Inspectors, Prohibition’ under the 63rd ‘CCE’. The petitioners also seek upgradation of the persons appointed under the 63rd ‘CCE’ as Superintendent, Prohibition. The petitioners rely on P. Mahendran and others v. State of Karnataka and others; (1990) 1 SCC 411 and I.J. Divakar and others v. Government of Andhra Pradesh and another; (1982) 3 SCC 341.

5. Shri Vikash Kumar, learned Government Advocate argues that there can be no allegation of ‘change in rule mid- way’, since the selection process continued based on the advertisement and there was no change in the procedure of selection as prescribed in the advertisement. The petitioners were appointed to the post which was advertised; which in the interregnum had been made the highest hierarchical post in the non-gazetted cadre. The petitioners could not have objected to such restructuring of cadre and in any event, the petitioners accepted the appointment and joined without demur. The petitioners also continued therein and the present writ petition was filed long after; alleging that the persons who were appointed under the 67th ‘CCE’ were seniors to them. The persons under the 67th ‘CCE’ were appointed to the post of ‘Superintendent, Prohibition’, the entry level at the gazetted rank as per the new rules.

6. Th