1 IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1620 of 2009 1. THE STATE OF BIHAR 2 THE SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVT.OF BIHAR, PATNA 3. THE JOINT SECRETARY, ROAD CONSTRUCTION DEPRTMENT, GOVT.OF BIHAR, PATNA 4. THE UNION OF INDIA THROUGH CHAIRMAN, CENTRAL WATER COMMISSION, MINISTRY OF IRRIGATION, SEVA BHAWAN, R.K. PURAM, NEW DELHI, GOVT. OF INDIA .....Appellants Versus SHRI SHIVENDU PATHAK S/O SHRI JAGDISH PATHAK R/O CLUB ROAD AURANGABAD, P.S- AURANGABAD, DISTT- AURANGABAD ......Respondent ----------- For the State of Bihar: Mr. Prashant Kr. Choudhary, AC to GP VII For the Union of India: Mr. P. L. Jaiswal (C.G.C) For the Respondent: Mr. Rajendra Prasad Singh Sr. Advocate Mr. Ashok Kumar, Advocate -------- P R E S E N T The Hon’ble Mr. Justice Shiva Kirti Singh The Hon’ble Mr. Justice Birendra Prasad Verma O R D E R Shiva Kirti Singh, J. Heard the parties. 2. This appeal under clause 10 of the Letters Patent of this court is directed against the judgement and order dated 8-5-2009 passed by learned Single Judge of this court whereby a writ petition bearing CWJC No. 698/2003 preferred by the sole respondent/writ petitioner has been allowed. As a consequence the appellants 2 (respondents in the writ petition) have been directed to grant to the writ petitioner seniority by counting the period from 18-6-1986 to 24-7-1987 which he had spent working for the Central Water Commission, an instrumentality of Government of India. The writ petitioner has also been held entitled to consequential benefits. 3. The relevant facts are not in dispute. The writ petitioner claimed that after passing B. Tech. examination in Civil Engineering from Bangalore he worked with the Central Water Commission for the period 18-6-1986 to 24-7-1987. He took the competitive examination conducted by the Bihar Public Service Commission (BPSC for brevity) and on that basis he was appointed as Assistant Engineer (Civil) in the Bihar Government where he joined on 25-7-1987. His representation for conferring extra seniority on the basis of service rendered in Central Water Commission was rejected by the Bihar Government as evidenced by letter dated 18-11-2002 contained in annexure-1 to the writ petition which was challenged through the writ petition 3 in question. The stand of the State Government as appearing in letter dated 18-11-2002 is that service under the Central Water Commission, Ministry of Irrigation, Government of India may be considered for the purpose of pension/gratuity in the light of a decision of the Finance Department, Government of Bihar but that would not confer further seniority upon the writ petitioner. 4. In the writ petition some instances were cited of some Junior Engineers who were earlier known as Over-seers and at the relevant time occupied non gazetted posts, to show that their seniority had been fixed after considering service rendered under the Central Government or in other departments of Government of Bihar. The order under appeal shows that the writ court granted several adjournments to seek specific reply to such averments. The official respondents ultimately took a stand in their second supplementary counter affidavit. The relevant paragraph of that supplementary counter affidavit, that is, paragraph 13 has been extracted in the judgement under appeal which runs as follows:- 4 “13. That it is further stated that no express order rescinding/canceling in each individual cases have not been passed. The irregularities/illegality has been rectified by issuing the aforesaid gradation list”. 5. In support of their stand, the official respondents annexed the extracts of the final gradation list but the learned Single Judge came to the conclusion that the stand was wholly inadequate to meet the charge of discrimination by the State Government in the matter. The writ petition was therefore allowed. 6. On behalf of the appellants, the relevant rules/ governmental decisions were placed to show that subject to various conditions, past services of the nature involved in this case may be considered for grant of benefits of pension/gratuity. In respect of seniority, learned counsel for the State has placed reliance upon several circulars including the circular of the Personnel Department dated 2nd March, 1973 to demonstrate that the present rules of seniority are guided by two well established principles. In case of appointment by 5 promotion, the inter se seniority in the lower post is required to be maintained and in case of direct appointments such as through the Commission, the seniority shall be as per merit determined by the competent authority and reflected by the merit list. In the circular dated 2nd March, 1973, it is provided under Clause- 3 (Ga) (iii) that if any officer is transferred from one service to another on his request then services rendered in the past shall not be considered for the purpose of seniority. However, if the transfer is by the Government in accordance with the policy then the past service will be counted for seniority. Even in the matters of promotion through a Selection Board or Public Service Commission, the seniority of the promoted officer is required to be as per his placement in the merit list. 7. On the basis of such policy decisions and circulars, learned counsel for the State has submitted that only on the basis of some irregular/illegal orders in the past which are contrary to prevailing rules/policy decisions, the writ court should not have allowed the 6 prayer made by the writ petitioner; the relief granted to the writ petitioner would disturb the seniority of persons appointed with him on the basis of selection by the Commission and determined on the basis of position in the merit list; and that the writ court should not have passed such order in absence of persons likely to be affected. As per submissions, such a relief as granted to the writ petitioner will disturb the well established principles governing seniority of direct recruits for no good reasons. 8. On the other hand, learned counsel for the sole respondent/writ petitioner reiterated the stand and arguments as noted by the writ court. 9. On considering the policy decisions and circulars governing seniority, it is clear that claim of the writ petitioner is not supported by any rule or policy decision. If any such benefit was earlier granted to some employees like over-seers or others, there is now no basis for the same under any relevant rules or policy decisions. What factual circumstances laid to grant of such benefits in the past is not available on records of the 7 case but the authorities of the State of Bihar have accepted that such benefits were irregularly or illegally given. It is further clear that the relief granted to the writ petitioner will run counter to the principles governing seniority of direct recruits like the writ petitioner which has to be according to the merit list prepared at the time of selection by the Commission. 10. As a result of aforesaid discussions and findings, we are constrained to interfere with the order under appeal. The same is, accordingly, set aside and the writ petition is dismissed. The appeal stands allowed. No costs. Birendra Prasad Verma, J. I agree. Patna High Court The 10th August, 2010 AFR/BKS (Shiva Kirti Singh, J.) (Birendra Prasad Verma, J.)