Consideration of previous court decisions and policy changes in determining entitlement to benefits for army personnel in seniority matters.

1. The petitioner is an Ex-Army personnel inasmuch as he was a doctor in the Army. He came to be appointed in the State Health Services in the year 1988. At the time when the petitioner was appointed in the State Health Services, there was a policy decision of the State Government issued vide letter no. 15784, dated 26.8.1972 by which the period of service in the Army was clubbed and counted for the purposes of counting the number of years put in in the Health Service. Accordingly, the State Government issued an advertisement in the newspaper dated 23.1.2000 seeking objections to the implementation of the Governments policy dated 26.8.1972 by specifying that the date of joining of the petitioner alongwith other similarly situated would be shifted from 15.3.1988 to 15.2.1983. After issuance of Annexure-9 a formal notification was issued by the State Government declaring that the petitioners date of joining was 15.2.1983. By Annexure-11 the petitioner was placed at serial no. 5866B in the seniority list treating his entry in service to be on 15.2.1983.

2. The petitioner filed objection to the seniority list prepared by the State Government vide Annexure-12 in which it has been stated that the seniority list prepared was defective inasmuch as the State Government had not taken into account that several persons placed senior to the petitioner were appointed on ad hoc basis. The defect in the seniority list thus was that the State Government had considered the date of joining, without considering whether the date of joining was the permanent date of joining or it was on ad hoc basis.

3. In the meantime, the State Government issued Annexure-14 withdrawing the earlier concessions granted to army personnel vide its letter dated 2.3.2005, which was subsequently modified vide Annexure-9, dated 9.10.2007. The State Government came out with a notification withdrawing part of the letter no. 1509, dated 2.3.2005 by stating that the effect of the aforesaid letter would be prospective and as such those persons who had been given the benefit of counting the years of service in the army for the purpose of determining the date of joining in Government service would continue to enjoy the said benefit, and the withdrawal of the said benefit would be prospective i.e. from the date of issuance of the decision withdrawing the benefit i.e. 2.3.2005.

4. Annexure-20 is the final gradation list issued on 8.2.2008 which has completely ignored the fact that the withdrawal of the benefit referred to earlier was made prospective by the Governments letter no. 3434, dated 9.10.2007 (Annexure-19). The petitioner filed a representation for correction of the seniority list in which he has been placed lower to several persons however, no final decision has been taken with respect to the petitioners case.

5. While arguing the matter the petitioner has referred to two decisions. One is of the Supreme Court (Annexure-13) which is for the purpose of showing the date on which the seniority of a person is to be counted which is the date on which he has been confirmed in service. The other decision is referred to in Annexure-19 of the Interlocutory Application numbered as 2051 of 2008 which is the case of Bijay Kumar Srivastava V/s. The State of Bihar reported in 2007(4) PLJR 186 wherein this Court has held that ex-service man joining in the State services having been given the benefit of their past services under the circular of 1972, such benefit could not be withdrawn retrospectively.

6. In the facts aforesaid, it would, therefore, be proper for the Secretary-cum- Commissioner, Department of Health, Family Welfare and Indigenous Medicines, Government of Bihar, to examine the seniority list prepared on 8.2.2008 keeping in view the aforesaid two decisions of this Court after issuing notices to those persons who would be affected by any change as a result of application of the decision of this Court in the case of Bijay Kumar Srivastava and Dr. (Capt.) Akhauri R