IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.12863 of 2009 Ram Gulam Prasad Versus The State Of Bihar & Ors 5/ 05/09/2011 Heard learned counsel for the petitioner, the State and respondent No.6. The petitioner is aggrieved by the re- determination of his seniority vis-à-vis respondent No.6 by order dated 20.5.2009 and 31.7.2009 in pursuance of an objection raised by the latter on 4.3.2009 that there was a break in service of the petitioner as he was terminated on 8.5.1977 and reinstated on 24.5.1977. A preliminary objection has been raised on behalf of the respondents that the petitioner seeks to challenge an order issued as far back as 24.5.1977 in a writ petition filed in the year-2009. The Court is not persuaded to uphold that objection on the ground that it can reasonably be said based on the developments that took place in the meantime till respondent No.6 questioned the seniority of the petitioner on 4.3.2009 that there was no occasion for him to question the order dated 24.5.1977, as discussed hereinafter. Learned counsel for the petitioner submits that by the order dated 24.5.1977 the petitioner was not appointed afresh but he was reinstated. Only warning was given to him for his alleged conduct. He 2 was held not to be entitled for any salary or wages for the period in between as a punishment. A break in service was a major punishment for which a regular proceeding was required to be held when no such procedure was followed. The respondents published a seniority list on 1.7.1989 in which respondent No.6 was shown at serial- 1 while petitioner at serial-3. The recitals alongside his name referred to the aforesaid period as a break in service. The petitioner represented against the same that he was reinstated and that it was not a break in service. The respondents on 5.4.1986 granted him promotion to the junior selection grade with effect from 1.4.1981 and senior selection grade on 14.11.1990 with effect from 1.8.1986 acknowledging continuity in service including the disputed period. After considering his objections to the earlier seniority list, accepting the correctness of the same, in the seniority list dated 27.8.2001 and 25.9.2002 the petitioner has been shown as senior to respondent No.6. Once the seniority list of 1.7.1989 was corrected and the respondents accepted his contention that there was no break in service, there was no occasion for him to question the order dated 24.5.1977. A counter affidavit has been filed today by one Shri Arun Kumar Singh, Executive Engineer, 3 P.H.E.D., Planning Division, which wrongly describes himself as respondent No.6. It does not deny the assertions of the petitioner that no proper proceedings in accordance with law were held before issuance of the original order dated 8.5.1977 removing the petitioner from service. The counter affidavit does not deny the grant of junior selection grade and senior selection grade to the petitioner based on continuity of service for the period in question. It seeks to justify the actions by referring to the respondent No.6 questioning the grant of seniority and senior selection grade to the petitioner above him. That the Chief Engineer then proceeded to decide inter se seniority between the petitioner and the respondent No.6 by order dated 20.5.2009 as affirmed on 31.7.2009. Learned counsel for the respondent No.6 urged that there was in fact a break in service of the petitioner which he did not question. Respondent No.6 therefore automatically became senior. The enquiry has done no more than to invite the attention of the authorities to the issue. If there is a serious controversy with regard to seniority the matter should be appropriately remanded to the authorities to be decided in accordance with law. The power to decide seniority vests in the 4 official respondents. Whether it be the Central Civil Services (Classification, Control and Appeal) Rules, as applicable then or the Bihar Board Miscellaneous Rules, 1958, both equally provide for a regular procedure to be followed by a departmental proceeding before imposing a major punishment of dismissal/removal. In absence of any denial in the counter affidavit by the official respondents, it goes beyond the pale of any controversy that before issuance of the punishment order dated 8.5.1977 no such procedure was followed. Quite obviously, the impugned order dated 8.5.1977 could not have been passed in the manner done. The Court can take a view that to challenge such order was a statutory right which could be waived by the petitioner and which probably he did when he did not question that order. But when the respondents reinstated him and also accepted his plea on his objection to the seniority list of 1.7.1989 and also granted him junior selection grade and senior selection grade by continuity of service for the period in question there was no occasion for him to challenge the same or the order dated 24.5.77. The respondents if they so intended could have certainly stated in the order dated 24.5.77 that the period in between shall amount to a break in service. 5 To hold otherwise may amount to upholding an order of termination passed contrary to law on 8.5.77. An interpretation affirming an illegal order has to be avoided. Respondent No.6 did not question when the petitioner was given junior and senior selection grade by giving him continuity of service for the period in question disturbing the seniority list of 1.7.1989 granting seniority to the petitioner in the seniority list of 27.8.2001 and 29.5.2002. The objection to the grant of seniority to the petitioner was sought to be raised belatedly only on 4.3.2009. The cause of action had accrued to Respondent No.6 on 5.4.1986, again on 14.11.1990. It again accrued when the respondents corrected the seniority list of 1.7.1989 as also when the seniority list on 27.8.2001/29.5.2002. Perhaps, if the official respondents had been a little more careful in filing the counter affidavit after going through the pleadings in the writ petition and dealing with them appropriately, better assistance may have been rendered to the Court in the matter. The counter affidavit is disappointing. The Court is not persuaded to remand matters. It shall only prolong the litigation. The Court therefore holds that on the facts the official respondents and the private respondent by 6 their conduct have consciously accepted a situation where the order dated 24.5.1977 has been read, understood and interpreted by them as not amounting to a break in service of the petitioner. The orders dated 20.5.2009 and 31.7.2009 are held to be not sustainable to that extent. The writ application stands allowed. KC ( Navin Sinha, J.)