IMPORTANT POINT
In absence of rule providing otherwise, ranking in the merit list is to decide the respective seniority.

JUDGMENT

Arijit Pasayat, J. - Leave granted.

2. Challenge in this appeal is to the legality of the judgment rendered by a Division Bench of the Patna High Court. By the impugned judgment the Division Bench set aside the judgment rendered by a learned Single Judge who had quashed the notification dated 31.1.1991 issued by the State Government purportedly issued under the Bihar Private Engineering College (Control Ordinance) 1986 (in short Ordinance) which was subsequently replaced by the Bihar Private Engineering College Control Act 1990 (in short the Act). The appellant had questioned the legality of Section 5(3) of the Ordinance/Act which was accepted by learned Single Judge. But the Division Bench by the impugned judgment upset judgment of learned Single Judge.

3. Background facts in a nutshell are as follows:

In response to the advertisement for appointment to the post of Assistants in the Dr. Joggnath Mishra Institute for Technology (a private institution hereinafter referred to as the Institute) appellant and several others applied for the said post. After selection at a test conducted, 5 persons were appointed and the appellant was one of them. Appellant was appointed vide order dated 18.7.1981 and was given six weeks time from the date of issue of the letter to report for duty to the office of the General Secretary, Mithila Vikas Sansthan Laheriasarai, Darbhanga/Director of the Institute at Darbhanga. In case of respondent no.8 P.K. Choudhary, the appointment letter was dated 22.7.81 and he joined on the same day. The appellant who claims to have received the appointment letter on 23.7.81, in fact, joined on 24.7.81. At this juncture, it is to be noted that though in the appeal, challenge was made to the appointment of respondent no.7, the same was not pressed. On the basis of Section 5(2) of the Act and in purported exercise of powers under Section 5(3) of the Act, respondent no.8 was retained in service while the appellant was not retained. The appellant questioned correctness of the procedure adopted. When there was no positive response, the writ petition was filed before the Patna High Court which was allowed by learned Single Judge. It was noted by the learned Single Judge that the order dated 31.1.1991 issued by the State Government absorbing in service of some of the respondent was contrary to law. It was noted that the procedure of determining as to who had joined the college earlier was wrong. It was pointed out that admittedly selection was on 18.7.1981 and six weeks time was granted for joining. Merely because of fortuitous circumstances, respondent no.8 joined earlier that cannot be a ground to make him senior to the appellant, though in the merit list prepared appellant was ranked 20 while respondent no.8 was ranked 43. The learned Single Judge accepted the stand. In the appeal filed by respondent no.8, different view was taken by the Division Bench. It was held that the seniority is to be reckoned on the basis of the date of joining. According to High Court the logic of last-come first-go was applicable and, therefore, appellant who has joined later was to be treated as junior to respondent no.8.

4. Learned counsel for the appellant submitted that the view taken by the Division Bench is clearly contrary to law. If there are no rules governing the field, it is the placement in the merit list which is determinative and not the date of joining. It is accepted that no rules had been framed and, therefore, the merit as appearing in the rank list has to be taken.

5. In response, learned counsel for the respondent submitted that right from 1981, respondent no.8 has worked and he having joined earlier has to be treated as senior to the appellant.

6. There is no dispute that the appellant was ranked higher to respondent no.8. There is also no dispute that in the appointment letter the appellant was given six weeks time to join. Merely because respondent no.8 joined earlier that did not in any way affe