IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3142 of 2004 KULA NAND CHOUDHARY S/O LATE HEMAN CHOUDHARY R/O MOHALLA-D/4, POLICE COLONY GANDHI BIHAR ANISABAD, POS- GARDANIBAG, DISTT- PATNA AT PRESENT SUB-INSPECTOR OF POLICE, SPECIAL BRANCH OLD SECRETARIAT, PATNA—PETITIONER Versus 1. THE STATE OF BIHAR 2. THE DIRECTOR GENERAL & INSPECTOR GENERAL OF POLICE, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 3. DEPUTY INSPECTOR GENERAL PERSONNEL, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA 4. DEPUTY INSPECTOR GENERAL OF POLICE (HUMAN RIGHTS) GOVT. OF BIHAR, OLD SECRETARIAT, BIHAR, PATNA 5. INSPECTOR GENERAL OF POLICE, SPECIAL BRANCH, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA----RESPONDENTS. ----------- For the Petitioner: Mr. Bishnu Kant Dubey, Advocate For the State: Mr. Mohan Kumar Singh AC to SC-1 ----------- 5 17.8.2010 Heard learned counsel for the parties. It is a long battle relating to seniority which has been carried on over many a year by many a persons at different time frame not only before this Court but even before the Hon’ble Supreme Court. The petitioner is also one of those litigant who came before this Court seeking a direction upon the respondents to include his name in the gradation list published on 21.11.2003 by giving him seniority on the basis of earlier promotion granted to him on officiating basis and to promote him in the rank of Sub- Inspector of Police from the date when his juniors has got promotion. It is not disputed that the petitioner had earlier approached this High Court for grant of promotion, as well as to give him seniority in the rank of Sub Inspector of Police on the basis of promotion given on officiating basis and such prayer made on behalf of the petitioner came to be accepted by this - 2 - Court. The benefit of the same accrued to the petitioner. But the matter did not rest at that because such a decision taken by the High Court not only in the case of the present petitioner but some other persons as well had a devastating impact by making many senior persons junior in the seniority list which came to be prepared on the basis of grant of promotion for the period of officiation. Since the matter affected a large number of persons the issue did not rest at the level of the High Court and the matter was taken by the State of Bihar to the Hon’ble Supreme Court which is the case of State of Bihar & others vrs. Kameshwar Prasad Singh & another which was a batch matter, namely, Civil Appeal Nos. 3005, 3006 and 3007 of 2000 reported in 2000(3) PLJR (SC) 81. Looking at the seriousness of the issue raised by the State of Bihar even though appeals were barred by limitation, the Hon’ble Supreme Court condoned the delay of 679 days since the provisions of law and rules decided in the impugned order adversely affected a large number of officers in the department. Here also the issue was whether the seniority in the rank could be claimed on the basis of promotion given on the post on officiating basis since the same had the affect of upsetting the seniority of other persons, though admittedly senior in rank right through their service, before certain persons stall a march over their seniors. Hon’ble Apex Court after taking into consideration various provisions of the Police Manual and the dispute - 3 - categorically held that the benefit of seniority cannot be conferred upon such persons who came to be promoted on the post on an officiating basis and not on substantive basis. The discussion finally culminates in the finding recorded in paragraph-36 of the said decision which is reproduced herein below for ready reference: Paragraph 36: “It is further contended that as the respondent was, in the meantime, appointed/promoted in the IPS cadre and as per requirements of the State Government he has already submitted his resignation from the State service, the acceptance of the appeal and setting aside the directions of the High Court would result in great hardship to him and amount to unsettling his settled service rights particularly when his promotion/appointment to the IPS cadre has not been challenged and is not in dispute. Such a plea by itself cannot be accepted as a ground to dismiss the appeal filed against an order which we have held to be illegal being contrary to law and the Service Rules applicable in the case. Once the judgment is set aside, the consequences have to follow and a person taking advantage or benefit of the wrong orders is to suffer for his own faults which cannot be attributed to anybody else. However, in appropriate cases this Court can mould the relief to safeguard the interests of a person wherever required. For doing complete justice between the parties, appropriate directions can be given to protect the interests of a person who is found to have been conferred the benefits on the basis of judicial pronouncements made in his favour. As the appellant State has been found to be careless and negligent in defending its cases, we feel and are inclined to protect the interests of Brij Bihari Prasad Singh, respondent. We are convinced that the interests of justice would be served by holding that despite setting aside the judgments of the High Court, his interests be protected by not disturbing his promotions made from time to time. However, judgments passed in his favour cannot be permitted to be made a basis for conferment of similar rights upon other persons who are shown to have filed - 4 - writ petitions or representations which, if accepted, are likely to adversely affect the interests of more than 150 Inspectors and 400 officers in the rank of Deputy SP. Similarly, if any benefit has been conferred upon any other person who has superannuated, no useful purpose would be served by directing his demotion retrospectively and recovery of the excess emoluments paid to him. ” Hon’ble Supreme Court had categorically held that the High Court had committed an error by not hearing the persons who were affected by such decision, upsetting their seniority as they were not made parties nor were they issued notice. In the totality of the magnitude and the fall out of the decision, the Hon’ble Supreme Court categorically directed that the seniority will have to be refixed on the basis of promotion given on substantive basis and not on the basis of officiating promotion. Submission of learned counsel for the petitioner is that the benefit acquired by him was based on the decision of the High Court and the same cannot be upturned now by the respondents. The case of the petitioner will have to seen on the basis of the ratio decided by the Hon’ble Supreme Court and under the circumstances under which the Hon’ble Supreme Court passed the order not in personem but in rem, which meant that it shall apply to all those persons who were directly affected by the decision of the respondents in granting promotion and seniority to this petitioner or other persons of the kind who came to claim their seniority on the basis of promotion given to them on officiating basis. - 5 - The earlier decision of seniority and promotion granted will have to be read in the light of the subsequent decision of the Hon’ble Supreme Court and in that context the benefit which had accrued to the petitioner cannot be allowed to be a stand alone case, where one person would derive the benefit of seniority given to him on officiating basis whereas rest of the persons in the same department would get their seniority on the basis of the date of their substantive promotion. This Court has difficulty in accepting the proposition urged at the bar on behalf of the petitioner. In view of the decision of the Hon’ble Supreme Court, the Court comes to a considered opinion that by re-fixing the seniority of the petitioner along with others on the basis of substantive promotion the respondents have committed no wrong. It is based on the direction of Hon’ble Apex Court. The prayer made in the writ application cannot be sustained and the decision of the respondents does not require any interference in view of what has been stated in the earlier part of the order. This writ application has no merit and it is dismissed. RPS (Ajay Kumar Tripathi, J.)