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IN THE HIGH COURT OF JUDICATURE AT PATNA
NAVANITI PRASAD SINGH, J.
Hem Kant Roy, son of late Sri Krishna Kumar Roy
Digambar Thakur son of late Pramod Thakur
Awadhesh Kumar Ojha son of Binod Ojha & Ors.
Mihir Kumar Jha son of Shri Bhagwanand Jha & Anr.
Patanjali Kumar Choudhary son of late Ravindra Choudhary & Anr.
Nand Kumar Manjhi & son of late Sh. Ram Singhasan Manjhi & Anr. – Petitioners
Versus
The Government of Bihar through the Chief Secretary, Bihar, Patna & Ors. – Respondents
Civil Writ Jurisdiction Case No 141, 880, 4855 of 2008, 6639 of 2009, 10925, 11160, 11337 of 2010
Decided on: 6.11.2012
The Court examined the inter se seniority of various petitioners and private respondents of the Bihar Forest Service, a service of the State Government under the Bihar Forest Service Rules 1953 (hereinafter referred to as the Rules), as amended from time to time.
Fact of the Case:
1. All these writ petitions were heard at length and with consent of parties are being disposed of at this stage itself. 2. These seven writ petitions have been filed at different times by officers of the Bihar Forest Service, a service of the State Government under the Bihar Forest Service Rules 1953 (hereinafter referred to as the Rules), as amended from time to time. Ultimately, the question to be determined by this Court is, as to the dispute regarding inter se seniority of various petitioners and private respondents of the said service because during long pendency of these writ petitions, the Government has, on 02.07.2010, published and notified the final gradation list.
Finding of the Court:
96. Before parting with this order, I would wish to observe that this whole mess and controversy is because of governmental action, both on count of miscalculations and misadventure. In order to obviate further complications, it is desirable that before any further recruitment or promotion to the cadre is done by taking proper steps in the matter, regular cadre strength should be notified consisting of duly notified sanctioned posts which is all the more necessary as the consequence of bifurcation of the State. Once that is done then recruitment and promotions must be made in consonance to the quota rule by balancing the recruitment for promotion process. Once the balance is restored then on superannuation of a promotee, the vacancy should be filled up by the promotee and vice versa for the direct recruit. The State is bound to act in a non-arbitrary and non-discriminatory manner and set its house in order.
Issues: 1. Whether the direct recruits appointed in the second and third phase pursuant to the advertisement issued in 1985 are entitled to seniority over the promotees who have been shown to be promoted with effect from 30.03.1990? 2. Whether the promotees are entitled to seniority over the direct recruits appointed on 30.03.1990? 3. Whether the direct recruits of 1985 advertisement in the second and third phase are entitled to seniority from the date of their initial appointment or from the date of their confirmation with effect from 03.10.2005?
Ratio Decidendi: 1. The direct recruits appointed in the second and third phase pursuant to the advertisement issued in 1985 are not entitled to seniority over the promotees who have been shown to be promoted with effect from 30.03.1990. 2. The promotees are entitled to seniority over the direct recruits appointed on 30.03.1990. 3. The direct recruits of 1985 advertisement in the second and third phase are entitled to seniority from the date of their confirmation with effect from 03.10.2005 and not from the date of their initial appointment.
Final Decision: All the writ petitions are disposed of in accordance with the observations and directions, as contained above and the State would act accordingly.
1. All these writ petitions were heard at length and with consent of parties are being disposed of at this stage itself.
2. These seven writ petitions have been filed at different times by officers of the Bihar Forest Service, a service of the State Government under the Bihar Forest Service Rules 1953 (hereinafter referred to as the Rules), as amended from time to time. Ultimately, the question to be determined by this Court is, as to the dispute regarding inter se seniority of various petitioners and private respondents of the said service because during long pendency of these writ petitions, the Government has, on 02.07.2010, published and notified the final gradation list.
3. The first four writ petitions were filed prior to the publication of the final gradation list and, as such by various applications in view of subsequent events, the final gradation list is now in question. I may indicate that out of the first four writ petitions, two of them virtually became infructuous upon publication of the final gradation list but were not permitted to be withdrawn by this Court as the petitioners were respondents in the last three writ petitions filed later challenging the final gradation list. Position of parties having materially changed in the final gradation list. Court thought it proper to decide once and for all, all disputes of inter se seniority so that the matter could effectively be put to rest in presence of all parties concerned and/or affected.
4. In CWJC No 141 of 2008, which was filed on 02.01.2008, the sole petitioner Hem Kant Roy, who is positioned at serial no 212 in the final gradation list (now published), had originally challenged that he ought to have been shown senior to private respondents No 5 to 15, who were direct recruits, pursuant to advertisement issued in 1985 and who were appointed on 14.12.1987 as against the 40 vacancies advertised. The apparent ground was that he had been appointed and was working as Assistant Conservator of Forest (ACF) since 31.03.1986 but was wrongly shown as appointee with effect from 26.12.1989. He claims his appointment vide amended Rule 3 (aa). By amendment petition, he has challenged the final gradation list in which he has been placed at serial no 212 whereas the contesting respondents are in the group starting with serial no 121 upto 157. Therefore, in this case, the question would be as to the relative date of appointment of the petitioner in the service vis-à-vis the private respondents.
5. In CWJC No 880 of 2008, again filed by petitioner Hem Kant Roy on 09.01.2008, he had originally challenged the validity of appointment of the private respondents No 6 to 13 and consequential seniority given to them over the petitioner. The private respondents are direct recruits appointed pursuant to advertisement issued in 1985 but were appointed after initial appointments, as per advertisement, had been completed. They were, thereafter, from the panel already prepared subsequently appointed on 13.04.1988 and 10.08.1989. During pendency of the writ petition, by amendment petition, the final gradation list was brought on record by which petitioner was given seniority over this group of appointees. Petitioner was placed at serial No 212 and the private respondents were placed in the group from serial 321 to serial 338. This petition, in view of the final gradation list, virtually became infructuous but in view of the fact that these very private respondents had challenged the final gradation list including the position given to the petitioner, this writ petition was not permitted to be withdrawn so that the matter could effectively be decided.
6. The third writ petition that is CWJC No 4855 of 2008 has been filed by Digambar Thakur on 17.03.2008. This petitioner is one from the group of those Range Officers of Forest who were shown to be promoted in this service with effect from 30.03.1990 though promotions were granted in the years, 1990, 1991 and 1992. Petitioner is at seria
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