IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10313 of 2005 VIJAY KUMAR SINHA @ VIJAY KUMAR SINHA No.2 Versus THE BIHAR STATE ELECTRICITY BOARD & ORS ----------- For the petitioner: Mr. Anand Kumar Ojha For respondent no.8: Mr. Shailendra Kumar For respondent-Board: Mr. Subhash Kishore Verma ----- 08. 28/08/2008 Petitioner wants quashing of the gradation list of Personal Assistants issued under office order No. 848 dated 7.3.2003 contained in annexure-18. His contention is that he is entitled to be placed many notches higher than the private respondents by virtue of certain facts and circulars which occupied the field at the time of entry in the service. Some basic facts are being noticed for proper appreciation of the issues raised in the writ application, stand of the official respondents and the private respondents in the present writ application. Petitioner entered service of Bihar State Electricity Board as Stenographer Class-II on the basis of an appointment letter dated 31.7.1975 issued in his favour. He joined service on 6.8.1975. At the relevant time appointment on the post of Personal Assistant and Stenographer Class-II used to be made from two sources. One was through an examination conducted by the Bihar State Electricity Board and the other through an examination conducted by the Bihar Public Service Commission (hereinafter to be called, BPSC), on an experimental basis, on a decision taken by the Department of Personnel and Administrative Reforms on 29.6.1973. - 2 - The resolution has been brought on record as Annexure-3 to the writ application. Petitioner, it seems, appeared in one of the examinations held by the BPSC in the year 1975. He was declared successful in the result declared on 25.10.1975. Petitioner claims that at the relevant time there were six posts of Stenographer Class-I which were vacant in the Board but despite the said vacancies he was not appointed as Stenographer Class-I. Petitioner’s contention is that based on a Standing Order No. 411 darted 29.4.1974 petitioner should have been considered for appointment as Stenographer Class-I on his passing of examination held by the BPSC in 1975. The respondents did not consider his case and he made several representations. Later on as claimed by the petitioner, persons junior to him were selected and given selection grade on 23.2.1983 but the said benefit accrued to the petitioner only on 23.6.1988 vide Office Order No. 4022 dated 5.7.1988. Petitioner, therefore, filed a writ application where his prayer for grant of seniority from 24.3.1986 was rejected vide CWJC No. 2330 of 1990 which was heard by a Division Bench and dismissed in limine on 20.7.1990. To that extent no relief was granted to the petitioner on the issue. Tentative gradation list thereafter came to be issued of the Personal Assistants on 18.9.1991. Objections were invited. Petitioner submitted his objection and gradation list thereafter came to be finalized only on 13.7.2002. The claim of the petitioner stood rejected. He therefore decided to approach the Chairman of the Board and - 3 - according to the petitioner, a Committee was constituted to look into the matter. His case is that the Committee accepted the claim of the petitioner and made certain recommendations accepting the petitioner as senior-most in the category of Personal Assistants. The recommendation of the Committee however did not weigh with the respondents and Office Order No. 848 dated 7.3.2003 came to be issued which is under challenge in the present writ application. Respondents both official and private were thereafter directed to file their counter affidavit. Respondent Electricity Board have asserted in the counter affidavit that there is no wrong in the gradation list which has been issued by the respondents contained in annexure-18. It reflects true state of affairs and the claim of the petitioner is not only imaginary but also misplaced because as early as in the year 1990 the earlier effort of the petitioner to be declared senior amongst Stenographer Class-I was rejected by the High Court in CWJC No. 2330 of 1990. Once the writ application was dismissed there is a kind of constructive res judicata operating against him and it is not open to him to get the relief now in the present writ application merely because on the earlier settled position the new gradation list has been issued. They do not deny that the petitioner had passed an examination conducted by the BPSC in the year 1975 but the benefit of such passing of the examination would have accrued to the petitioner only after the resolution was taken in this regard by the Board in January, 1978. Petitioner therefore was appointed in Class- I after 1978. His effort now through this writ application is to push - 4 - back his initial appointment to the year 1975 which cannot be permitted. With regard to a Committee and its report which has been pleaded by the petitioner the respondents state and assert that the committee had no legal sanction and the same was constituted without the permission of the Chairman of the Board and if some kind of effort was made to juggle the seniority of the petitioner the same cannot be accepted both in view of 1978 resolution as well as the dismissal of petitioner’s writ application way back on 20.7.1990. They also assert that all the respondents had joined service before the petitioner and he cannot be granted any seniority over and above the admitted seniors in service. The present position in the gradation list has been reflected way back on 18.9.1991 when the tentative gradation list was published and the petitioner was shown below respondent Nos. 4 to 12. That gradation list was never challenged. When the second gradation list was published on 13.7.2002, petitioner’s name figured at serial no.10 and that continues to be the position even in terms of annexure-18 dated 7.3.2003. Private respondents have filed a common counter affidavit and they have also taken a similar stand as the official respondents. They assert that the petitioner’s earlier effort to get himself treated to be senior to these respondents failed on 20.7.1990 when the Division Bench dismissed the writ application of the petitioner after a detailed hearing. The matter cannot be reopened and re-agitated by way of present writ application merely because a gradation list updating the present position of all the entrants in service has come to be issued in - 5 - the year 2003. They reiterate that on 6.8.1975 the petitioner was appointed as a Stenographer Class II in the Board and he had joined the said post. He might have sat and successfully cleared the examination for Stenographer Class I held by the BPSC but that provided the eligibility to the petitioner for being considered for appointment in Stenographer Class I but it does not mean that mere passing of the examination would confer the benefit of Stenographer Class I to the petitioner. The Board vide resolution No. 4286 dated 17.1.1978 decided in its wisdom that those persons who have passed the examination conducted by the BPSC need not appear in the departmental examination conducted by the Board and would be otherwise eligible for appointment in Stenographer Class I. The petitioner availed the benefit of such a decision and he accepted his position in writing and joined the post of Stenographer class I which is dated 1.2.1978. They further submit that in the above stated position, the petitioner has never been senior and merely because he passed examination held by the BPSC he cannot claim seniority even though he was appointed on a post on a subsequent date vis-à-vis these respondents. The stated factual position by the respondent has not been seriously disputed by the petitioner but then he harps upon the facts that there was a concerted effort made by the authorities to deny him the benefit of appointment on Class I Stenographer post based on his passing of the examination in the year 1975. But he has no answer to the question as to whether the dismissal of his earlier writ - 6 - application making a similar grievance way back in the year 1990 comes in his way to the present relief or not. Even if this technical objection is set ignored for the sake of argument which may be difficult in the given facts and circumstances, the Court is still of the opinion that no right has accrued in favour of the petitioner to claim seniority over the private respondents. The petitioner has been appointed on Stenographer Class-I post in the year 1978 and that position is reflected in the gradation list. Private respondents joined the Board much earlier than the present petitioner and merely because an eligibility had been created in favour of the petitioner by passing of an examination of Stenographer Class-I in the year 1975 it does not give him a right to be appointed on the post from the date of passing of the examination. In the opinion of the Court therefore the present writ application has no merit. Given facts and legal position warrants no interference with the gradation list contained in annexure-18. The writ application is dismissed. rkp (Ajay Kumar Tripathi, J)