The seniority of officers appointed to the Bihar Finance Service shall be determined in accordance with the date of their substantive appointment to the service.

B.D.Singh, J.

1. This application has been filed by the petitioners, namely, Sri Gaya Prasad Pandey, Assistant Superintendent of Commercial Taxes, and Sri Triloki Nath, Assistant Treasury Officer, for an appropriate writ and order, quashing the fixation of the seniority of the petitioners and respondents 2 to 21 as contained in the gradation list (Annexure F) and for a writ of mandamus directing the State of Bihar (respondent No. 1) to fix the seniority of the two petitioners in accordance with the provisions contained in Rule 39 of the Bihar Finance Service Rules, 1953 (hereinafter referred to as the Rules).

2. In order to apperciate the point involved in this application, it will be necessary to summarise the facts stated by the parties. According to the petitioners, they were appointed on the 2nd February, 1957, on probation to the junior branch of the Bihar Finance Service as a result of a competitive examination held in the month of December, 1955, in accordance with the rules in part II of the Rules. A copy of the notification dated the 2nd February, 1957, by which the petitioners were appointed has been annexed as Annexure A to their petition. They were confirmed to the post in the junior branch of the Bihar Finance Service by Government order contained in notification dated the 20th June, 1960 (vide Annexure B). According to them, respondents 2 to 8 (who) were inspectors in the Commercial Taxes Department of the Government of Bihar were temporarily appointed to the junior branch of Bihar Finance Service by notification dated the 12th April, 1956 (see Annexure C). These respondents were subsequently promoted with effect from 16th September, 1960, to the junior branch cf the Bihar Finance Service and they were put on probation by notification dated the 16th September, 1960 (vide Annexure D). Respondents 9 to 21 were ministerial officers of the Government, like respondents 2 to 8, and were prompted to the junior branch of the Bihar Finance Service and were placed on probation with effect from 16th September, 1960, by another notification of the same date (see Annexure E). The petitioners have itated that in 1963 they came to know about the fixation of their seniority in the junior branch of the Bihar Finance Service by the impugned gradation list (Annsexure F).

3. The main grievance of the petitioners is that due to the fixation of the seniority in accordance with the said gradation list, respondents 2 to 8 were placed at serial numbers 43 to 49 and respondents 9 to 21 were placed at serial Nos. 50 to 62, whereas the petitioners 1 and 2 were placed at serial Nos. 72 and 65 respectively. Therefore, it is contended on behalf of the petitioners that although the petitioners were appointed substantively earlier than respondents 2 to 21, they were arbitrarily and illegally placed junior to respondents 2 to 21.

4. A counter-affidavit has been filed on behalf of State of Bihar and respondents 2 to 21, relevant portion of which is to be found in paragraph 4(j) of the counter-affidavit, which reads as follows:-

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"(j) It is submitted that the appointments of the persons as direct recruits on the one hand, and those promoted on the other, against the vacancies decided to be filled in the year 1956 by the Governor under Rule 6 of the Rules, are deemed to be substantive appointments made "at the same time" within the meaning of the proviso to Rule 39 of the Rules, notwithstanding the different dates on which notifications of their appointment had to be issued by Government as in the instant case. It is further submitted that the expression same time has been wrongly equated by the petitioners with the expression same date. If a bunch of vacancies are to be filled up and steps are taken to fill them all, but exigencies of procedure result in the finalisation of some of the appointments earlier and some later, all those appointments are in fact and law made at the same time, although on different dates."

5. Therefore, the main