IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2321 of 2007 1. MAHESH PRASAD MISHRA SON OF LATE GAYATRI PRASAD MISHRA, RESIDENT OF VILLAGE HARAJI, P.S. AWATARNAGAR, DISTRICT SARAN AT PRESENT, COMMERCIAL TAXES OFFICER, BEGUSARAI. 2. SAHDEO RAJAK SON OF LATE JULAB RAJAK RESIDENT OF VILLAGE MADHUSUDAN, P.S. NATHNAGAR, DISTRICT BAHAGALPUR, AT PRESENT POSTED AS COMMERCIAL TAXES OFFICER, BEGUSARAI. 3. NALINI RANJAN SON OF LATE DURGA PRASAD SINHA, RESIDENT OF VILLAGE BAGHRA, P.S. SIWAN, DISTRICT SIWAN, AT PRESENT POSTED AS COMMERCIAL TAXES OFFICER, PATNA SOUTH CIRCLE, PATNA. 4. RAMADHAR PANDEY SON OF LATE DINESH PANDEY, RESIDENT OF VILLAGE DEEP, P.S. JHANJHARPUR, DISTRICT MADHUBANI AT PRESENT POSTED AS THE PRIVATE SECRETARY TO THE HON’BLE AGRICULTURE MINISTER, BIHAR. 5. MANORANJAN DAS SON OF SHRI ARUN CHANDRA DAS RESIDENT OF B.S.T.D.C. COLONY NORTH KRISHNAPURI, P.S. KRISHNAPURI, TOWN AND DISTRICT PATNA AT PREENT POSTED AS ASSISTANT BUDGET CONTROLLER, DEPARTMENT OF FINANCE, BIHAR, OLD SECRETARIAT, PATNA. 6. MOHD. MUZZAFFAR ALAM, SON OF LATE MOHD. NAZIR AKHTAR HUSSAIN, RESIDENT OF VILLAGE UPHRAULI, P.S. KATRA, DIST. MUZAFFARPUR, AT PRESENT POSTED AS COMMERCIAL TAXES OFFICER, PATNA CITY, EAST CIRCLE, DIST. PATNA. 7. RAMJI RAVI DAS SON OF LATE DEOKI MOCHI, MOHALLA JALALPUR, P.S. SOHSARAI, DISTT. NALANDA, AT PRESENT, COMMERCIAL TAXES OFFICER, COMMERCIAL TAXES DEPARTMENT SASARAM. Versus 1. THE STATE OF BIHAR 2. THE COMMISSIONER CUM SECRETARY, DEPARTMENT OF FINANCE(COMMERCIAL TAXES), BIHAR, NEW SECRETARIAT, PATNA. 3. THE SECRETARY, DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS, BIHAR, OLD SECRETARIAT, PATNA. 4. RAMADHAR SINGH A MEMBER OF THE BIHAR FINANCE SERVICE, AT PRESENT POSTED AS TREASURY OFFICER JAMUI, DISTRICT JAMUI. 5. SUBODH RAM, A MEMBER OF THE BIHAR FINANCE SERVICE AT PRESENT POSTED AS ACCOUNTS OFFICER, BIHAR LIVELIHOOD PROJECT, INDIRA BHAWAN, PATNA(RESPOONDENT No.4 AND 5 ARE SELECTED CANDIDATES FROM 36TH JOINT COMPETITIVE EXAMINATION). 6. NAVIN KUMAR A MEMBER OF THE BIHAR FINANCE SERVICE AT PRESENT POSTED AS TREASURY OFFICER MADHUBANI. 7. KISHOR KUMAR SINHA, A MEMBER OF THE BIHAR FINANCE SERVICE AT PRESENT POSTED AS DISTRICT PROVIDENT FUND OFFICR, VAISHALI, HAJIPUR(RESPONDENT No.6 AND 7, SELECTED CANDIDATES FROM 37TH JOINT COMPETITIVE EXAMINATION.) 2 For the petitioners : M/s Rajendra Pd. Singh, Sr. Adv., Amar Nath Mishra, Advocate. For the State : M/s. J.P. Karn, AAG-4, Ranjan Kumar, AC to AAG-4. For respondents 5 to 7 : M/s S.A. Narayan, Sr. Adv., Shailendra Kr. Sinha, Raj Kumar, Advocates. For the intervenor respondent : M/s Aditya Narain Singh, Kundan Kr. Sinha, Advocates. ----------- 05. 30.08.2011 Petitioners are the members of the Bihar Finance Service(hereinafter referred to as the “Finance Service”) appointed through First Bihar Finance Service(Limited) Competitive Examination, 1991 conducted in the light of the provisions contained in Bihar Finance Service(Appointment by Selection) Act, 1990, Bihar Act 16 of 1990(hereinafter referred to as the “1990 Act”). They have filed this writ petition questioning the validity of the seniority list of the members of the Finance Service as on 1.9.1996 communicated to the members of the Service under Memo No.3521 dated 21.08.2006, Annexure-15 on the ground that seniority list has been drawn contrary to Rule 39 of the Bihar Finance Service Rules, 1953(hereinafter referred to as the “1953 Rules”) which inter alia provide that the seniority of the officers appointed to the Finance Service shall be determined with reference to the year of vacancies against which the officers have been appointed, the 3 impugned seniority list, however has been drawn with reference to the date of appointment of the officers showing the officers recruited through 36th, 37th Combined Competitive Examination against the vacancies up to the year 1991 senior to the petitioners who were appointed against the vacancies arising up to the year 1990. In this connection, petitioners had filed C.W.J.C. No.14863 of 2004, Annexure-13 asserting that earlier published final gradation list, Annexure-3 to the said writ petition including the name of the petitioners was published showing the name of the officers recruited through 36th, 37th Combined Competitive Examination against the vacancies arising up to the year 1991 senior to the petitioners who were recruited through First Bihar Finance Service (Limited) Competitive Examination, 1991 conducted in the light of the provisions of the 1990 Act against the vacancies arising up to the year 1990 and petitioners should have been included in the seniority list above the appointees pursuant to 36th, 37th Combined Competitive Examination. 2. This Court disposed of the aforesaid writ petition under orders dated 8.3.2006, Annexure-13 speaking through Barin Ghosh, J directed the respondents to treat the 4 earlier seniority list, Annexure-3 to the said writ petition as the draft gradation list and invite objection in relation thereto within such time as may be determined by the Government and thereafter to dispose of the objection and to finalize the gradation list in accordance with law. 3. In compliance of orders of the High Court dated 8.3.2006, Annexure-13 the State Government constituted a committee of three senior officers of the Finance Service who considered the objection of the petitioners under proceedings dated 5/8.7.2006, Annexure-2 and observed that after merger of the officers of the junior branch with the senior branch in terms of the resolution of the State Government dated 1.4.1975 consequential change was required to be made in the 1953 Rules. The 1953 Rules having not been suitably amended cannot have any application in the matters of fixation of seniority of the petitioners who have been appointed to the service in terms of the 1990 Act, which does not provide for fixation of seniority of the members of the Finance Service with reference to the year of vacancies against which officers have been appointed. In this connection, the committee placed reliance on the Division Bench judgment of this 5 Court in the case of Kartik Charan Jha Versus The State of Bihar and Ors., reported in 1986 PLJR 992. In paragraphs-5, 11 of the said judgment the Division Bench speaking through Uday Sinha, J after quoting the resolution of the Government in paragraph-5 of the judgment observed as follows :- “ 5.---------In terms of the above resolution the Governor ordered that the Bihar Finance Service Rules, 1953 may be amended suitably to incorporate the rules of amalgamation/merger.” “ 11. --------Thus the importance attached to the year of allotment in 1974 disappeared in 1975. Consequential change were required to be made in the 1953 Rules. That is why, it was ordered that the rules should be suitably amended. Unfortunately, no step has been taken in this regard. In the circumstances, however, I have no doubt that the year of allotment lost all significance.” The views/recommendation of the committee not to apply Rule 39 of the 1953 Rules while determining the seniority of the members of the Finance Service recruited either through First Bihar Finance Service(Limited) Competitive Examination, 1991 or 36th, 37th Combined Competitive Examination was accepted by the Government, final seniority list communicated to each of the members of the Finance Service under Memo No.3521 dated 6 21.08.2006, Annexure-15. 4. Learned counsel for the petitioners challenged the aforesaid seniority list, Annexure-15 and the decision of the committee/Government to draw the seniority list ignoring Rule-39 of the 1953 Rules, Annexure-2. In this connection, learned counsel for the petitioners submitted with reference to the resolution dated 1.4.1975 merging the officers of the junior branch into the senior branch of the Finance Service that thereunder Government issued further direction to amend the 1953 Rules. The 1953 Rules were extensively amended in compliance of the instructions of the Government contained in resolution dated 1.4.1975. Under Clause-18 of the notification dated 17.08.1981, the words “either branch of service” in Rules, 39, 39(i), 39(ii) was substituted by the word “Service”. Learned counsel further submitted that in the light of the aforesaid Amendment in the 1953 Rules the anomaly in fixation of seniority of the officers of the Finance Service, which arose after merger of the officers of the junior branch into senior branch disappeared as in terms of amended Rule 39 of the 1953 Rules anyone appointed to the Finance Service his seniority is required to be determined with reference to the year of 7 vacancy against which he is appointed. Learned counsel further submitted that observations made by the Division Bench in the case of Kartik Charan Jha(supra), which has been quoted above has been made without noticing the Amendment made in the 1953 Rules under notification dated 17.08.1981. He further pointed out that in view of the amended Rule-39 of the 1953 Rules, there is no difficulty in coming to the conclusion that the seniority of the officers appointed to the Finance Service is to be determined with reference to the year of vacancies against which the officers are appointed. In this connection, he placed reliance on the requisition dated 17.10.1990, 11.12.1990, Annexures-7, 8 submitted by the Finance Secretary to Bihar Public Service Commission (hereinafter referred to as the Commission) for appointment through First Bihar Finance Service(Limited) Competitive Examination, 1991 in the light of the provisions of the 1990 Act and the 36th, 37th Combined Competitive Examination and submitted that petitioners were appointed against 53 vacancies, which became available up to the date of coming into force of the 1990 Act i.e. 31.08.1990 and respondent nos.5 to 7, intervenor respondents were appointed against 172 vacancies which 8 became available until 31.03.1991 and submitted that if the seniority list is drawn by applying the amended Rule 39 of the 1953 Rules, there is no difficulty in placing the petitioners above the respondent nos.5 to 7, intervenor respondents in the seniority list and as the petitioners have been shown below the private, intervenor respondents in the seniority list, the seniority list suffers from the vice of being drawn contrary to the amended Rule-39 of the 1953 Rules and is fit to be quashed with direction to the State respondents to redraw the seniority list of the members of the Finance Service in the light of the amended Rule-39 of the 1953 Rules. 5. Counsel for the State, private, intervenor respondents have opposed the prayer. They submitted that after merger of members of the junior branch into the senior branch of the Finance Service under resolution dated 1.4.1975 anyone appointed to the Finance Service his seniority is required to be determined with reference to the date of appointment and not with reference to the year of vacancy against which he has been appointed. In this connection, it was further submitted that year of vacancy against which the appointee is appointed lost its significance 9 for fixing the seniority of the members of Finance Service as by virtue of Rule 12 of the Bihar Administrative Service(Appointment by Limited Examination) Rules, 1991(hereinafter referred to as the “1991 Rules”) framed under proviso to Article 309 of the Constitution of India, the 1991 Rules are also applicable to the members of the Finance Service who may have entered the service either through First Bihar Finance Service (Limited) Competitive Examination, 1991 or through combined competitive examination. The 1953 Rules have no relevance in the matter of fixation of seniority of the petitioners appointed through First Bihar Finance Service (Limited) Competitive Examination, 1991 pursuant to 1990 Act or the private, intervenor respondents appointed through 36th, 37th Combined Competitive Examination. Learned counsel for respondent nos.5 to 7 referred to paragraph-10 of the counter affidavit filed on behalf of respondent nos.5 to 7 and submitted that petitioners were appointed pursuant to First Bihar Finance Service (Limited) Competitive Examination, 1991 against 72 vacancies which became available up to the year 1993. Reliance in this connection, is placed on the letter of the Commercial Taxes Department addressed to the 10 Secretary of the Commission bearing no.351 dated 12.01.1994, Annexure-R/1. Learned counsel for the intervenor respondents with reference to the averments made in paragraph-4 of I.A. No. 4980 of 2007 also submitted that petitioners were appointed against 72 vacancies, which arose up to the year 1993 but further added that intervenor respondents were appointed against 172 vacancies, which arose up to March, 1991, for which advertisement was issued in the year 1989 and filled up through 36th, 37th Combined Competitive Examination held in the year, 1990. In this connection, learned counsel for the intervenor respondents also relied on the judgment of the Hon’ble Supreme Court in the case of Pawan Pratap Singh and Others Vs. Reevan Singh and Others, reported in (2011) 3 Supreme Court Cases 267, paragraph 45(ii), 60 and submitted that date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing the seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory Rules, executive instructions or otherwise must be consistent with the requirement of Articles-14 and 16 of the 11 Constitution. In the light of the aforesaid observation of the Hon’ble Supreme Court learned counsel for the intervenors further submitted that if Rule-39, 39(i) of the 1953 Rules are applied to the members of the Finance Service, there shall be a chaotic situation and to avoid such chaotic situation this Court should affirm the seniority list drawn on the basis of the date of entry in the service. 6. In order to consider the correctness or otherwise of the rival submissions made by the parties, it is relevant to take notice of the relevant provisions of the Act and the Rules for adjudicating the issues raised by the parties. In terms of the 1953 Rules, the Finance Service initially consisted of two classes of officers(senior branch and junior branch). Under resolution of the Government dated 1.4.1975 the officers of the junior branch were merged with the officers of the senior branch of the Service. In the light of the direction given in the resolution of the State Government dated 1.4.1975 merging the officers of the junior branch into the senior branch to amend the Rules, the Rules were extensively amended under notification dated 17.08.1981. Rule-4 of the amended Rules provide the members of the Finance Service gazetted status. Rule 5 of 12 the amended Rules provide for recruitment to the Finance Service through direct recruitment, promotion in accordance with Rules in part-III, IV respectively. Rule 6 provides for declaration of the vacancies by the State Government to be filled by direct recruitment, promotion at the point of entry into the Finance Service in the beginning of each year but not later than 30th of June. Proviso to Rule 6, however require that not less than 50% of the vacancies shall be filled by direct recruitment. Rule 7 requires the Commission to announce in each year the number of vacancies in the Service to be filled by direct recruitment on the result of competitive examination. Rule 9 provides for age and educational qualification of candidates. Rule 11 provides for procedure for deposit of fee and application form etc. Rule 20 provides for procedure for promotion of officers to the Finance Service. Rule 39 provides for determination of the seniority of the members of the Finance Service with reference to the year of vacancies declared under Rule 6. For ready reference both the amended Rules 6 and 39 are extracted hereinbelow : Rule-6 :- Fixation of vacancies :- The Governor may declare in the beginning of each year, not later than the 30th June, the number of vacancies existing in the cadre and 13 the number of vacancies to be filled by direct recruitment and by promotion at the point of entry into the service provided, however, not less than 50 per cent of the vacancies shall be filled by direct recruitment”. Rule-39 :- Seniority :- “notwithstanding anything to the contrary contained in any law or contract or any judgment, decree or order of any Court, Tribunal or authority, the seniority of the officers appointed to the Service shall be determined with reference to the year of vacancies declared under Rule 6, against which they are appointed on probation. If more than one officer is so appointed against vacancies of a particular year- i. to(Service) by direct recruitment, their seniority inter se shall be fixed according to the order of merit assigned by the Public Service Commission; ii. to (Service) by promotion and by direct recruitment, the officer promoted shall take precedence over the officer recruited direct; iii.(XXXX) iv. to the (Service) by promotion from different gazetted services and non-gazetted ranks, their seniority inter se shall be determined by the order of preference assigned to them by the Public Service Commission, except that when more than one officer is promoted from the same service or cadre, their seniority shall be determined by the order of their position inter se in the service or cadre from which they were promoted : Provided that in the case where officers are promoted both from gazetted and non- gazetted posts, officers promoted from gazetted posts shall rank senior to those promoted from non-gazetted posts. 7. It appears the Division Bench in the case of 14 Kartik Charan Jha(supra) could not notice the amended Rules, 6, 39 of the 1953 Rules and such mistake occurred as the market publication of the Rules which was placed before the Division Bench had not incorporated the amended provisions. Aforesaid presumption is being drawn by me as the market publication of the 1953 Rules contained in Bihar Local Laws, Vol.-6 Ist Edition, published by Pritam Law House Pvt. Ltd. does not take note of the Amendment made in Rule 39 of the 1953 Rules vide notification dated 17.08.1981. After extensively amending the 1953 Rules under notification dated 17.8.1981 Government enacted 1990 Act to regulate appointment by selection in the Finance Service from amongst the Government servants. Section-2 of the 1990 Act is the definition clause. Sub-Clause-(g) of Section 2 of the 1990 Act defines Rules to mean the 1953 Rules. Sub-Clause (j) of Section 2 defines Service to mean the Bihar Finance Service. Sub-Clause(m) of Section 2 defines limited competitive examination to mean competitive examination conducted for appointment from amongst the Government servants to the Finance Service. Sub-Section(1) of Section-3 enables the Government to fix the number of vacancies in the Finance Service by 31st 15 March of every year for direct recruitment and for appointment by selection from amongst the Government servants. Proviso to Sub-Section-(1) of Section 3 limits the vacancies to be filled from appointment by selection from amongst the Government servants in any year, not to exceed 25% of total vacancies for that year. Section 4 of the 1990 Act provides for filling up of 25% vacancies of the year through limited examination conducted by the Commission from amongst the Government servants. Section 5 provides for qualification of the candidates for appointment in the Service through limited competitive examination conducted by the Commission. Section 6 provides for syllabus for limited competitive examination. Section 9 requires the Government to communicate the vacancies for appointment by limited competitive examination to the Commission by 30th June of every year. Section 10 of the 1990 Act requires that list of successful candidates in order of merit be prepared by the Commission for filling the vacancies and sent to the Commissioner, Commercial Taxes for appointment. Sub-Section-(1) of Section 11 provides that the declared vacancies up to the date of coming into force of the 1990 Act shall be deemed to be the vacancies of the year 16 1990. Section 12 of the 1990 Act provides that the provisions of the Act shall have overriding effect over the contrary provisions of the 1953 Rules. Section 13 of the 1990 Act provides that the Government servants who have been nominated against 25% vacancies during the period between 1982-1987 shall also be eligible to appear in the First limited competitive examination and after becoming successful shall be appointed in the Finance Service. After enacting the 1990 Act Government in exercise of the powers contained in proviso to Article 309 of the Constitution framed 1991 Rules. Rule 12 of the 1991 Rules provides that the provisions of the 1991 Rules shall also apply to the other State Services. Under notification dated 27.06.2000, Annexure-19 the State Government allowed those who were eligible for nomination in the Bihar Administrative Service between the years 1982-1991 to appear in the first limited competitive examination and after being successful to be appointed in the Bihar Administrative Service. Notification dated 27.06.2000, Annexure-19 is akin to Section 13 of the 1990 Act. 8. Having analysed the different provisions of the 1953 Rules, as amended under notification dated 17 17.08.1981, the 1990 Act and the 1991 Rules, there is hardly any difficulty in concluding that there is no material difference between the amended Rule-6 of the 1953 Rules and Sub-Section-(1) of Section 3 of the 1990 Act, which provide for fixation of number of vacancies to be appointed in the Finance Service by 30th June/31st March of every year through direct recruitment from open market by conducting combined competitive examination as also for appointment by selection from amongst the Government servants through limited competitive examination. There is also no difficulty in concluding that seniority of the members of the Finance Service recruited either through First Bihar Finance Service (Limited) Competitive Examination, 1991 held in terms of the 1990 Act or through combined competitive examination is to be regulated by amended Rule 39 of the 1953 Rules, which inter alia provide that the seniority of the officers appointed to the Finance Service shall be determined with reference to the year of vacancy declared under Rule-6 of the 1953 Rules against which officers were appointed. Sub- Section(1) of Section 3 of the 1990 Act enables the Government to fix the number of vacancies in the Finance Service by 31st March of every year for direct recruitment 18 and for appointment by selection from amongst the Government servants. Amended Rule 39 of the 1953 Rules being not in conflict with any of the provisions of the 1990 Act shall determine the seniority of the members of the Finance Service recruited either through First Bihar Finance Service (Limited) Competitive Examination, 1991 conducted in terms of 1990 Act from amongst the Government servants or through combined competitive examination from the open market as from both the sources recruitment is being made to the Finance Service. The Submission of the counsel for respondent nos.5 to 7, intervenor respondents that the 1991 Rules shall have application in conducting the limited competitive examination for recruitment of the Government servants into the Finance Service is wholly misconceived as by virtue of Rule 12 of the 1991 Rules, 1991 Rules are made applicable to only such State Services for which there is no other enactment for recruitment of the Government servants to the other State Service(s). For recruitment of the Government servants to the Finance Service, there is 1990 Act incorporating the 1953 Rules, as such, there is hardly any scope for applying the 1991 Rules for conducting the limited 19 competitive examination for recruitment of Government servants to the Finance Service. Subject matter of recruitment of Government servants in the Finance Service already covered by the 1990 Act incorporating the 1953 Rules, there is hardly any substance in the argument of the learned counsel for the private, intervenor respondents that 1991 Rules are applicable in the matters of appointment of the Government servants in the Finance Service. Learned counsel for the intervenor respondents while relying on paragraphs-45(ii), 60 of the judgment of the Hon’ble Supreme Court in the case of Pawan Pratap Singh(supra) failed to notice the following well settled principles of law noted by the Hon’ble Supreme Court in paragraph 45(ii) of the said judgment “ Inter se seniority in a particular service has to be determined as per the service rules”. Failure of the learned counsel to notice the aforesaid well settled principles of law in the written notes of argument, in my opinion is not proper. The seniority list communicated to the members of the Service under Memo No.3521 dated 21.08.2006, Annexure-15 has been drawn with reference to the date of appointment ignoring the date of vacancies against which the officers of the Finance