CAV JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 03-05-2023 The challenge in the above writ petition is to Rule

16 of the Bihar Excise Constables Cadre (Recruitment And Service-Condition) Rules 2014 (hereinafter referred to as the ‘Rules of 2014’). By Rule 16 of the rules, the inter se seniority of directly recruited candidates are fixed in such a manner as to enable the Home Guards of Bihar and Ex-Army Men, who have been set apart 25% vacancies each, to be seniors in the cadre of Excise Constables appointed in a calendar year. The claim of the petitioners, who are directly recruited candidates in the 50% vacancies considered for direct recruitment from the eligible candidates is that the such classification visits them with hostile discrimination and there is no intelligible differentia with the object sought to be achieved.

2. The learned counsel for the petitioners argued for the position that the directly recruited candidates across the board, dehors such classification, has to be granted seniority in accordance with the merit in the selection process. The petitioners’ counsel also points out that in the cadre of Warder of Prisons of the State wherein also there is a direct recruitment from candidates of the general public and 25% vacancies each, set apart for Home Guards and Ex-Army Men, where there is no such seniority conferred on either of the two categories. The Bihar Warder Cadre Rules, 2014, again projects the hardship occasioned insofar as those recruited to the Cadre of Excise Guards, the classification in which is violative of the principles enshrined in Article 14 of the Constitution of India. 3. The learned counsel for the petitioners to buttress his arguments relied on Deepak Sibal v. Punjab University; (1989) 2 SCC 145, Aashirwad Films v. Union of India; (2007)

6 SCC 624 and Union of India v. N.S. Rathnam; (2015) 10 SCC 681.

4. The learned State counsel argues that the petitioners cannot claim hostile discrimination on the basis of the rules in a totally different cadre. The functions and duties enjoined upon the persons admitted to the different cadres are different and they cannot be equated.

5. It is trite that there cannot be any equality claimed by unequals and there is inteligible differentia insofar as the classification effected between the direct recruits and Home Guards of Bihar and Ex-Army Men.

6. The law is very clear insofar as classification and it cannot at all be said to be anathema to the Constitution of India and the fundamental right to equality; if there is intelligible differentia and there is also found reasonableness in such classification.

7. Deepak Sibal (supra) considered the classification made insofar as admission to evening classes of three year LLB degree courses which were opened for employed persons. The classification insisted upon by the University was with respect to permitting only regular employees of Government/Semi-Government institutions/affiliated colleges, Statutory Corporations and Government Companies alone being entitled and eligible to seek such admission. The University excluded employees of private/public establishments/institutions on grounds of (i) possibility of production of bogus certificates, (ii) the need to impart legal education to Government/Semi- Government Institutional employees, in public interest, (iii) continuity of the employment during the three year period of study and (iv) elimination of wastage of seats.

8. The Hon’ble Supreme Court found the grounds to be untenable and the rule of admission unreasonable, discriminatory and violative of Article 14 of the Constitution of India. It was held that ‘regular employees’ in the context in which it was used in the prospectus could only mean bonafide employees. It was found that the object itself was to enable employed persons who are unable to attend morning classes to get higher education through evening classes. The classification of Government undertakings and companies, though in certain circumst