IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13897 of 2004 Dr. Sachidanand Rai, son of Late Ishwar Rai, village Ishwarpura, PS Sahar, District Bhojpur, at present posted as District Indigenous Medical Officer, Madhepura – Petitioner. Vs. 1) The State of Bihar through the Secretary, Department of Medical Education, Family Welfare and Indigenous Medicine, Bihar, Patna. 2) Deputy Secretary, Department of Health (Medical Education, Family Welfare and Indigenous Medicine), Bihar, Patna. 3) Director, Department of Medical Education, Family Welfare and Indigenous Medicine, Bihar, Patna. 4) Dr. Anirudh Mishra, Superintendent, Govt. Ayurvedic College and Hospital, Patna, at present posted as Dy. Director, Ayurved, Indegnous Medicine Directorate, Department of Medical Education, Family Welfare and Indigenous Medicine, Bihar, Patna – Respondents. 7 11.3.2011 The petitioner has filed this writ petition challenging the fixation of his seniority viz-a-viz respondent no.4 Dr. Anirudh Mishra. Respondent no.4 was issued notice. He, however, died during the pendency of this writ petition. Respondent no.4 had moved this court by filing CWJC No. 2353/1987 which was heard by a division bench of this court and disposed of on 4.4.2001. In the said writ petition the dispute related to seniority. Dr. Mishra, being aggrieved by the revised gradation list had filed the writ petition. The seniority of the persons in the gradation list was fixed according to circular no. 15784, dated 26.8.1972 of Personnel & Administrative Reforms Department. It would be relevant to refer to the circular as far as fixation of seniority is concerned of both the petitioner and Late Dr. Mishra who entered into the cadre after merger. In this regard the following paragraphs of the circular are relevant : “ - - - wherever separate cadre of groups of posts are 2 amalgamated to form a single cadre, inter se seniority of incumbents coming from different source is required to be refixed - - -“ The principles laid down for fixing the seniority in such cases is contained in sub-paragraph (ii) read with sub- paragraph (iv) which are as under : “(ii) Where officers serving within the department but in different posts are recruited at the same time by direct appointment, their inter se seniority will be determined according to sub-para (iv) below irrespective of the date of their joining the posts to which they are appointed.” (iv) where officers are promoted to a service at the same time but from different services, their inter se seniority is fixed according to the following (a) - - - (b) - - - (c) Where no such order of merit is fixed, persons who had drawn higher pay, or pay in a higher scale in the lower posts from which they are promoted shall rank senior to another person who had drawn lesser pay, or pay in lower scale. In case the pay scales are identical persons who had drwn higher pay shall rank higher. If two such persons had been drawing pay at the same stage in the identical time scale of two different service their seniority of promotion shall be determined according to age.” The division bench while deciding this issue has referred to a judgment of the Supreme court in the case of Om 3 Prakash Sharma vs. Union of India and others, AIR 1985 SC 1276 and Bihar State Text Book Publishing Corporation vs. Basudeo Singh and others, 1996 (2) PLJR 11 and quoted the judgment in the case of Bihar State Text Book Publishing Corporation which reads as under : “I hold that earlier date of initial appointment to lower grade / grades has got no nexus, for the purpose of determination of seniority in the higher grade, except where the date of entry in the higher grade is the same. It is for the said reason, I hold that the ratio laid down by the learned single Judge that the date of initial appointment in the Corporation will be the criteria for determination of seniority as completely against the law, the same being violative of Articles 14 and 16 of the Constitution of India.” The petitioner is dissatisfied by the fact that after remand of the matter, Annexures 9, 10 and 11 were issued fixing the seniority and showing the petitioner as junior to Dr. Mishra. Annexure 9 is the order by which seniority has been fixed which would indicate that seniority has been fixed considering the fact that both the petitioner and respondent no.4 were receiving the same pay scale after the merger. The Secretary, Department of Health has considered 1972 circular and placed respondent no. 4 as senior to the petitioner. The main challenge of the petitioner is that although he entered into the service earlier to Dr. Mishra, he has been placed as junior only on the basis of the fact that after merger he was younger to Dr. Mishra. It has been pointed out that in the 4 earlier seniority list the petitioner was shown as senior to respondent no. 4. Learned counsel for the petitioner also points out that the seniority list has been prepared without application of mind as several persons, such as, Vishnu Ram born on 4.2.1945 has been shown at serial no.45 of the seniority list, Maheshwar Pandey born on 15.7.1946 has been shown at serial no. 38 and Late Dr. Anirudh Mishra born on 4.12.1947 has been shown at serial no.47. Counsel for the petitioner has attempted to show to this court that there is no consistency in consideration of the 1972 circular viz-a-viz these persons and the petitioner has been singled out and shown as junior to respondent no.4. It has further been submitted that the petitioner was not heard at the time of passing of the impugned order revising the seniority list contained in Annexure 9. It is well settled that if the seniority list is going to affect the persons concerned, then it would have been proper to invite objections from the affected persons before passing the impugned order. The State counsel, on the other hand, submits that the order has been passed in compliance to the orders of this court in CWJC No. 2353/2008. I n the said writ petition all those persons who were affected were made respondents and were, therefore, aware of the order passed by this court. I do not see any defect in the order as far as it concerns the petitioner viz-a-viz respondent no.4 and it purports to follow the procedure for fixation of seniority as laid down in 1972 circular quoted above. 5 In the circumstances I do not find any merit in this writ petition. It is dismissed. haque ( Sheema Ali Khan, J.)