In Abhay Kumar Patel & Ors. vs. The State of Bihar & Ors. (2025) which is being heard along with Uttam Kumar & Ors. vs The State of Bihar & Ors. in the Supreme Court. The former was registered on October 3, 2023 challenging the 31-page long judgement dated by Patna High Court's Division Bench of Justices Madhuresh Prasad and Chakradhari Sharan Singh. The judgment was authored by Justice Prasad. The latter was registered on March 24, 2025. Supreme Court's Division Bench of Justices J.K. Maheshwari and Vijay Bishnoi passed an order dated August 7, 2025 with reference to Uttam Kumar's SLP saying, 'There appears to be no urgency.' Earlier, April 1, 2025, the Court had issued notice in this case and tagged it with the petition of Abhay Kumar Patel & Ors.
On August 13, 2025, the bench passed an order after the petitions were called on in the Mentioning List, saying "The matter may not be deleted from the List of 19th August, 2025" before a 3-judge bench of Justices Maheshwari, Joymalya Bagchi and and Bishnoi So far the case has been listed on 15 occasions since October 19, 2023.
The petitioners had failed to get relief from the High Court. The petitioners were applicants in response to four advertisement Nos. 01 of 2019, 02 of 2019, both dated March 8, 2019, and advertisement Nos. 03 of 2019 and 04 of 2019, both dated September 13, 2019, issued by the BPSC inviting applications for appointment to the post of Assistant Engineer (Civil, Mechanical and Electrical) in the different departments under the Government of Bihar. They participated in the selection process, which was conducted, as per Bihar Engineering Service Class-II Recruitment Rules, 2019 (Recruitment Rules, 2019). It was the petitioners’ case that at the time of advertisement the Rule did not prescribe any relaxation of minimum age criteria; or for grant of any weightage/ preference for previous work experience as contractual employees. The written examinations were conducted by the BPSC on different dates for applicants under the four advertisements. The merit lists dated June 15, 2022, June 22, 2022 and July 19, 2022, were published for all the four advertisements, wherein, the writ petitioners were declared successful. Thereafter, they were called for document verification by the respondent-Commission and the petitioners' document were verified.
The petitioners were compelled to approach the High Court because of the issuance of a notification dated November 9, 2022, by the nodal department (Road Construction Department), whereby and whereunder an Amendment was made in Rule 8 and a new Clause; Rule 8 (5) granting weightage and preference to persons working on contractual basis, was added to the Recruitment Rules, 2019 with effect from the date of coming into force of the Rules; i.e., March 6, 2019. They had assailed the notification dated November November 9, 2022, bearing No. 5565 (S) whereby and whereunder, the Recruitment Rules, 2019 were amended with effect from March 6, 2029, i.e., the date of coming into force of the Recruitment Rules, 2019. The senior counsel for the petitioners had assailed the validity of the amendment to the Recruitment
Rules, 2019 under impugned notification dated November 9, 2022, submitted that the amendment with retrospective effect was unsustainable.The original Rule or the advertisements, in response to which, the petitioners have applied did not contain any provision for grant of any kind of weightage/preference to those working on contract basis. When the petitioners made their applications, there was no such clause giving any kind of weightage/ preference. They have already participated in the selection process and provisional select lists dated 15.06.2022, 22.06.2022 & 19.07.2022, wherein, the petitioners names figured. After qualifying in the written tests, their documents were also been verified. The impugned notification issued thereafter amounted to changing the Rules of recruitment process after valid rights have been created in the petitioners' favour. Such change in the Rules, after provisional select list, was impermissible.
It was also submitted that the policy, guidelines and procedure contained in resolution dated January 22, 2021 was issued by the General Administration Department, much after issuance of the four advertisements, in response to which, the petitioners applied. Prior to this date, there was no such policy. Even, this policy provided for grant of weightage/ preference during regular employment against only those posts, on which post, the contractual employee had worked. The grant of weightage/preference in regular appointment process, to all contractual employees irrespective of the post on which they have worked on contract basis, as per impugned notification dated November 9, 2022, therefore, was clearly unsustainable. It was pointed out that the persons working on contract basis, form a class unto themselves. The petitioners were not contractual employees, and form a distinct class. Both were, thus, unequals. The impugned notification, therefore, is violative of Articles 14 and 16 of the Constitution of India inasmuch as these two distinct classes were treated at par in the matter of recruitment, which was wholly impermissible. The Amendment was also assailed by submitting that Rule- 12 of the Recruitment Rules, 2019 and Appendix- 1, to the Rule regarding allocation of marks was not amended. In its unamended existing form, it contained a method of allocation of marks, which cannot be reconciled with sub-Rule- 2 of the impugned notification, which deals with grant of additional marks in lieu of weightage for work experience. The prescription for grant of marks for preference/ weightage to contractual employees was unworkable. In support of his contention, the senior counsel contended that the Amendment could not be permitted to have retrospective effect has referred to decisions of the Supreme Court in Jayam and Company vs. Assistant Commissioner and Anr. reported in (2016) 16 SCC 125 and Chairman, Railway Boards and Ors. vs. C.R. Rangadhamaiah & Ors. reported in (1997) 6 SCC 623. In support of his submission, he relied upon decisions of the Supreme Court in the case of Prakash Chandra Meena and Ors. Versus State of Rajasthan and Ors. reported in (2015) 8 SCC 484 and Moti Ram Deka vs. General Manager, North East Frontier Railway, reported in AIR 1964 SC 600. He submitted that the Authorities issued the impugned notification in exercise of power of delegated legislation under the proviso to Article 309 to the Constitution of India, which cannot be invoked to bring about an amendment to the Rule with retrospective effect. The impugned notification, is unsustainable in the eyes of law, and also causing grave prejudice to the petitioners. Therefore it was fit to be quashed.
The Advocate General submitted that since the State Government was making recruitment on contract basis for some time throughout the establishment, a policy decision was taken to give weightage to all contractual employees during regular recruitment process. This policy was recognizing the services offered by persons working on contractual basis in the State Government, who had been appointed through a legal process. It was not to be extended to illegal appointees, daily wagers or those serving through outsource agent/s. As per the resolution dated July 18, 2007, bearing Memo No. 2401 issued by the General Administration Department only those contractual employees who were appointed against sanctioned post, possessed the requisite qualifications for the post, duly advertised and whose recruitment was made through a selection/ screening committee through proper recruitment process were considered eligible for grant of weightage/preference. It also required the contractual appointment to be by the Competent Authority and after following the principles and roster for reservation. Since the Recruitment Rules, 2019 had overlooked the existing policy, the impugned Amendment notification dated November 9, 2022 was necessitated. It was only rational that the Amendment was made effective from the date of framing of the Rule.
The Advocate General relied upon decisions of the Supreme Court in State of Uttar Pradesh vs. Karunesh Kumar and Ors. (2022 SCC Online SC 1706), the full bench decision of the High Court, in the case of Krishna Pratap Singh vs. State of Bihar reported in 2017 (3) PLJR 642, decision of the Hon’ble Apex Court in CMD/Chairman, Bharat Sanchar Nigam Limited and Ors. vs. Mishri Lal and Ors. reported in (2011) 14 SCC 739. He concluded that grant of weightage or age relaxation was only in furtherance of a policy pre existing the issuance of the advertisements in question in the year 2019. The Amendment was not retrospective, rather it has been made effective from the date of coming into force of the recruitment Rules, 2019. The petitioners cannot claim any prejudice, as no right has accrued in their favour in the process of selection. In fact, if the persons, who have rendered services in the State Government on contractual basis after having been appointed in accordance with law, after due advertisement against sanctioned post and by the Competent Authority etc., were to be left out in the process of regular appointment, the same would be opposed to the expected conduct of the State as a model employer. The Court should, therefore, not interfere in the impugned notification.
Justice Prasad observed that "grant of weightage/ preference under the impugned Amendment notification is in furtherance of a policy of the year 2018, which is pre existing the issuance of advertisements in-question." He also found that no right was accrued in favour of the petitioners in the process of selection. They had merely participated in the process, which process has not attained finality in favour of the petitioners. The policy for grant of weightage/ preference was founded on relevant and genuine consideration recognising services rendered by persons in the contractual establishment. The policy of weightage/ preference was made applicable to such contractual employees whose appointments were made in accordance with law, after due advertisement and following the reservation policy and roster etc., by a competent selection committee. If the services rendered by such persons for years in the contractual establishment was to be ignored altogether, the same may possibly be considered as being opposed to the concept of State as a model employer. "The genuineness and bona fides of the policy for granting weightage/ preference, therefore, in the opinion of this Court cannot be doubted in any way. 22. This Court would also observe that the weightage/preference granted under the impugned Amendment notification, while giving advantage to the contractual employees, in proportion to the number of years served in the contractual employment, does not altogether exclude others from the selection process. The weightage/ preference is limited to maximum 25 marks on a scale of 100, based on 5 marks for each year, for maximum of 5 years. Whether such weightage would result in a person being selected over and above another, who has never served in the contractual employment, would still depend upon the marks obtained by the contractual employee, with reference to his performance for the remaining 75 marks out of 100. The policy, therefore, does not exclude the element of competition. The advantage, therefore, has a rational basis, recognising the services rendered by persons working in the contractual establishment who form a separate and distinct class, from the others, who have never served in the Government. This is for the simple reason that they have put in years of service in the contractual employment, which the State is, in the opinion of this Court justified in recognising."
The Court observed: "Another relevant consideration is that the State would only benefit from the experience and expertise gained by those who have already served for years in the contractual establishment. This expertise is an additional attribute possessed by those working on contractual basis, which the petitioners do not possess. The grant of weightage therefore cannot be said to be discriminatory. 23. The beneficiaries have also entered the contractual establishment after due compliance with Articles 14 and 16 of the Constitution of India, as a result of a process of selection with due advertisement, following the principles and roster for reservation and by a competent selection committee after fulfillment of requisite qualifications. The policy for granting weightage/ preference, therefore, in our opinion does not suffer from any infirmity whatsoever."
Justice Prasad examined as to whether the Amendment notification can have retrospective effect, or not. The Court considered the decisions of the Supreme Court in the case of K. Nagraj & Ors. vs. State of Andhra Pradesh & Anr. reported in 1985 1 SCC 523. He observed that the Court's decision in State of Uttar Pradesh versus Karunesh Kumar and Ors. (2022 SCC Online SC 1706), full bench decision of the High Court, in Krishna Pratap Singh versus State of Bihar reported in 2017 (3) PLJR 642, CMD/Chairman, Bharat Sanchar Nigam Limited and Ors. versus Mishri Lal and Ors. reported in (2011) 14 SCC 739. relied upon by the Advocate General "also support the State action of retrospective insertion of Rule 8 (5) by the Amendment notification."
He observed that in the light of these pronouncements of the Supreme Court, "the impugned Amendment notification, can very well be having retrospective operation since power to legislate includes the power to legislate with retrospectivity; as long as it does not take away substantial vested rights, and the retrospective application is explicit from the Rule. The Rules in-question was framed under the proviso to Article 309 of the Constitution of India, and in the instant case are also in exercise of legislative powers under the Constitution of India; and not Rule making power under any Statute." The Court has held "retrospective operation of such Rules, as in the instant case to be permissible." Justice Prasad opined that "The decisions of the Hon’ble Apex Court relied upon by the learned Advocate General merits favourable consideration in the facts and circumstances of the instant case. 27. The decisions relied upon by the learned counsel appearing for the petitioners, no doubt contain binding expressions on legal principles, but for the above noted reasons, are not applicable to the facts and circumstances of the instant case."
Justice Prasad concluded: "32. Thus, in our opinion, submission of the learned Advocate General that Rule 2 of the Amendment notification does not militate against Rule 12 of the Amendment notification, is correct. 33. No case is made out for interfering with the impugned notification dated 09.11.2022, whereby Rule 8 (5) have been added to Recruitment Rules 2019, with effect from the date of coming into force of the said Rules; 06.03.2019. 34. The writ petition is, thus, devoid of merit and the same is accordingly, dismissed."
The petitioners had also relied on the following decisions but to no avail:
1. I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, (1996) 6 SCC 634
2. State of H.P. v. Rajesh Chander Sood, (2016) 10 SCC 77
3. Punjab State Coop. Agricultural Development Bank Ltd. v. Coop.
Societies, (2022) 4 SCC 363 Patna High Court CWJC No.644 of 2023 dt.
27-08-2024 13/37
4. G. Sadasivan Nair v. Cochin University of Science & Technology, (2022) 4 SCC 404
5. Dr. Punam Singh v. The State of Bihar & Ors. in C.W.J.C. No. 3697 of 2020 dated January 19, 2024
It may be recalled that Supreme Court has held that amendment could not be permitted to have retrospective effect. It has been held in Jayam and Company vs. Assistant Commissioner and Anr. reported in (2016) 16 SCC 125 and Chairman, Railway Boards and Ors. vs. C.R. Rangadhamaiah & Ors. reported in (1997) 6 SCC 623.
In the former, the Supreme Court had to consider the validity of Section 19(10) of the Tamil Nadu Value Added Tax Act, 2006. After having analysed the legal principles and the statutory provisions the Supreme Court, while upholding the constitutional validity of Section 19(20) of the Tamil Nadu Value Added Tax Act, 2006, held in paragraph 12 as under:-
"12. It is a trite law that whenever concession is given by statute or notification, etc. the conditions thereof are to be strictly complied with in order to avail such concession. Thus, it is not the right of the "dealers" to get the benefit of ITC but it is a concession granted by virtue of Section 19. As a fortiori, conditions specified in Section 10 must be fulfilled. In that hue, we find that Section 10 makes original tax invoice relevant for the purpose of claiming tax. Therefore, under the scheme of the VAT Act, it is not permissible for the dealers to argue that the price as indicated in the tax invoice should not have been taken into consideration but the net purchase price after discount is to be the basis. If we were dealing with any other aspect dehors the issue of ITC as per Section 19 of the VAT Act, possibly the arguments of Mr Bagaria would have assumed some relevance. But, keeping in view the scope of the issue, such a plea is not admissible having regard to the plain language of sections of the VAT Act, read along Patna High Court CWJC No. 9108 of 2021 dt.08-09-2023 with other provisions of the said Act as referred to above."
In the latter, the appeals and special leave petitions were heard against the decision of the Full Bench and those other Benches of the Central Administrative Tribunal (CAT) under the Administrative Tribunals Act, 1985. Some of these matters were placed before a Bench of three Judges of the Supreme Court on March 28,1995 on which date the following order was passed.
"Two questions arise in the present case, viz., (i) what is the concept of vested or accrued rights so far as the Government servant is concerned and (ii) whether vested or accrued rights can be taken away with retrospective effect by rules made under the proviso to Article 309 or by an Act made under that Article, and which of them and to what extent. We find that the Constitution Bench decisions in Roshan Lal Tandon v. Union of India, [1968] 1 SCR 185, B.S. Vadera v. Union of India, [1968] 3 SCR 5741 and State of Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors., [1983] 2 SCR 287 have been sought to be explained by two three Judges Bench decision in Ex-Capt. K.C. Arora & Anr. v. State of Haryana & Ors., [1985] 3 SCR 6231 and K. Negaraj & Ors. v. State of Andhra Pradesh & Anr. & Ors., [1985] 1 SCC 5231 in addition to the two-Judges Bench decision in P.D. Aggarwal & Ors. v. State of U.P. & Ors, [1987] 3 SCC 6221 and K. Naryana & Ors. Etc. v. State of Karnataka & Ors. Etc., [1993] Supp. 1 SCC 441. Prima facie, these explanations go counter to the ratio of the said Constitution Bench decisions. It is not possible for us sitting as three Judges Bench to resolve the said conflict. It has, therefore, become necessary to refer the matter to a larger Bench. We accordingly refer these appeals to a Bench of five learned Judges." It was in this backdrop, that these matters came up before the 5-Judge Constitution Bench of Chief Justice J.S. Verma, M.M. Punchhi, S.C. Agrawal Dr. A.S. Anand and S.P. Bharucha.
The Constitution Bench concluded:"The Full Bench of the Tribunal has, in our opinion, rightly taken the view that the amendments that were made in Rule 2544 by the impugned notifications dated december 5, 1988, to the extent the said amendments have been given retrospective effect so as to reduce the maximum limit from 75% to 45% in respect of the period from January 1, 1973 to March 31, 1979 and reduce it to 55% in respect of the period from April 1, 1979, are unreasonable and arbitrary and are violative of the rights guaranteed under Articles 14 and 16 of the Constitution...."
In Mahashottam Jha vs. The State Of Bihar and Ors. (2024), Patna High Court's Chief Justice K. Vinod Chandran and Justice Partha Sarthy referred to the judgement of the Constitution Bench in its judgement dated August 22, 2024 with approval. The High Court upheld the vested rights to pension on superannuation. It was heard with four other writ petitions. All the petitions by the teaching and non-teaching staff of the Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna (L.N Mishra Institute) had challenged the sustainability of the amendment to the rules regulating service conditions brought out by notification dated December 19, 2017. By this notification the benefit of pension as per the Old Pension Scheme, as applicable to the Government employees, which was made applicable to the teaching and non-teaching staff of the L.N Mishra Institute by the Lalit Narayan Mishra Institute of Economic Development and Social Change Institute Service Condition Rules, 2017 (Rules of 2017) was amended and modified to one under the Provident Fund Scheme. The petitioners, all of whom were the employees of the L.N Mishra Institute prior to September 1, 2005 had claimed that the notification cannot take away their vested rights to pension on superannuation, brought in by the Rules of 2017. The High Court drew on the settled
position of law that the rule applicable
in matters of determination of pension is
that which exists at the time of retirement. The Supreme Court was unable to find any
legal basis in the action of the
respondent University of selectively
allowing the benefit of Rule 25(a). The
law, as recognised by this Court in Deokinandan
Prasad v. State of Bihar, (1971) 2 SCC
330 : AIR 1971 SC 1409 and State of A.P. v. Syed
Yousuddin Ahmed, (1997) 7 SCC 24: 1997 SCC (L&S) 1587 unequivocally
stated that the pension payable to an
employee on retirement shall be
determined on the rules existing at the
time of retirement. However, the law
does not allow the employer to apply the
rules differently in relation to persons
who are similarly situated.
The High Court observed: '30. The precedents discussed hereinabove lent support
to our view that there is a dichotomy insofar as the employees of
the L.N Mishra Institute; both the teaching and non-teaching
included, insofar as the persons who retired between the date of
the original notification bringing in the Rules of 2017 and
23.07.2024, when Rule 9 stood amended by a notification in the
Official Gazette. The former would be entitled to pension and
the latter will have to challenge the amendment now carried out.
The Rules of 2017, with Rule 9 as originally framed would be
applicable to all those persons, who retired between the
interregnum. 31. Insofar as the persons, who are still serving,
Patna High Court CWJC No.644 of 2023 dt. 27-08-2024
30/37
necessarily the amendment made would apply; subject only to
any challenge made by them. While declaring the eligibility to
pension under the Old Scheme, for all those persons regularly
absorbed to the services of the L.N Mishra Institute after its
take-over, regularized prior to 01.09.2005, who also retired
between the Gazette notification of the Rules of 2017 and
23.07.2024; we leave the serving employees to challenge the
amendment made as per the Official Gazette notification issued
on 23.07.2024.
