IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2190 of 2005 1.NAMO NARAYAN PRATIHAST Son of Kusheshwar Pritihast, resident of village Hisar, P.S. Khirhar, District-Madhubani, presently posted at office of the Joint Registrar Co-operative Societies, Darbhanga. 2.Shashi Bhushan Singh son of Late Ram Nandan Singh, resident of Village Kuawari Bujurg, P.S. Ganga Brij, Hazipur, District- Vaishali, presently posted at Circle Office Lalganj Vaishali. 3.Chandra Bhushan Singh son of Late Laxmi Singh, resident of village Bankitikam, P.S. Madhuban, Disrict East Champaran, presently posted at Circle Office Kanti at Muzaffarpur. 4.Yoganand Mishra son of Late Sree Mohan Mishra, Resident of village Bhalpatti P.S. Bhalpatti, District-Darbhanga, presently posted at Sub- Divisional office, Biroul in the Darbhanga District. 5.Ramchandra Jha son of Late Jugnu Jha, Resident of Village Jaideo Patti P.s.Bhalpatti, Disrict-Darbhanga, presently posted at circle office Hayaghat in Darbhanga Disrict. 6.Ram Shreshtha Rai son of Late Bhola Rai, Resident of Village Rapouli Ghat, p.s. Bishanpur, District-Darbhanga, presently posted at the office of District Audit officer Co-operative Societies Darbhanga. 7.Ram Ganesh Jha son of Late Nageshwar Jha, Resident of village Kabilpur, p.s. Bahadurpur District-Darbhanga, presently posted at office of District Recored Room Darbhanga. 8.Satyendra Kumar Singh son of Sri Shambhu Nath Singh, Resident of Village Kharari p.s. Hayaghat District-Darbhanga, presently posted at the office of District Supply Office Darbhanga. 9.Amar Nath Jha son of Ram Charitra Jha, Resident of village Kabilpur, p.S. Bhadurpur District-Darbhanga, presently posted at the office of District Yojana Office Darbhanga. 10.Tripti Narayan choudhary son of Late Madhukant Choudhary, Resident of village Ranipur p.s. Basudeopur (Bira) District-Daqrbhanga, presently posted at Block office Kevati in Darbhanga District. 11.Ritlall Mishra son of late Babu Narain Mishra, Resident of Village Tutumar p.s. Manigachai District-Darbhanga, presently posted at Sub- Divisional office, Benipur Darbhanga Disrict. 12.Umakant Thakur son of Late Ajab Narayan Thakur, Resident of village Dharouli p.s. Baheri District-Darbhanga, presently posted at circle office Benipur, in Darbhanga District. 13.Nawal Kishore Thakur son of Sri Rajeshwar Thakur, Resident of village Srirampur, P.S. Ashokpaper Mill, District-Darbhanga, presented posted at the office of the Assistant Registrar Co-operative Societies Darbhanga. 14.Md. Tayiab Hussin son of Md. Esha, Resident of village Adalpur, p.s. Darbhanga Sadar District-Darbhanga, presently posted at Block office Hanumannagar in Darbhanga District. 15.Raj Kumar Das son of Late Bechan Das, Resident of villazge Biuni p.s. Fekala District-Darbhanga, presently posted at Sub-Divisional office Jainagar in Madhubani District. 16.Kanhaiya Lal Das son of late Dhanush Dhari Lal, Das, Resident of Village Rupnagar p.s. Benipur, District-Darbhanga, presently posted at Block office Hayaghat in Daqrbhanga District. 2 17.Deo Narain Sahu Son of late Rambricha Sahu, resident of village Mahisoul, P.S. Runnaisaidpur, District-Sitamarhi, presently posted at sub- Divisional office Pupri at Sitamarhi District. 18.Ram Narain Mahto son of Sri Yugeshwar Mahto, Resident of Village Bhutani p.s.sonebarsa District-Sitamarhi, presently posted at the office of District panchayat office Sitamarhi. 19.Ram Goptal Sharma son of Late Ram Niranjan Sharma, Resident of village Jatkoulli p.s. Hazipur Sadar, District-Vaishali, presently posted at patahi Block Motihari. 20.Lal Babu Rai son of Late Triloki Rai, Resident of Village Virra p.s. Hazipur sadar District-Vaishali, presently posted at the office of consumer protection Madhepura. 21.Ram Lavline Choudhary son of Late Jangbahadur Choudhary, Resident of Village Amritpur p.s. Prasidhapur District-Vaishali, presently posted at Circle Office Riga Sitamarhi. 22.Rabindra Kumar Jha son of Late Deo Narayan Jha, Resident of village Balbhaladra pur p.s. Bahadurpur District-Daqrbhanga, presently posted at the office of Child Development project, Daqrbhanga (Gramin) Darbhanga. 23,Md. Shoukat Ali sonof Md. Shafik Ahmad, Resident of Village Sarai Sattarkha p.s. Laheriasari, District-Darbhanga, presently posted at Circle office Jale at Darbhanga. 24.Baidnath Ram son of Late Hariram, Resident of village Partapur p.s. Maheshi District-East champaran, presently posted at Block office Manigachi of Darbhanga. 25.Baidhnath Choudhary son of Sukhari Choudhary, Resident of village Jagdishkamtoll p.s.Kudhni, District-Muzaffarpur, presently posted at Circle office Kebti at Muzaffarpur. 26.Durga Prasad Sharma son of Sri Ram jee Rai, Resident of Village Kewatliya p.s. Darouli, District-Siwan, presently posted at Circle office, EKMA District Saran. 27.Suresh Chandra Mishra son of Sri Ramayan Mishra, Resident of Village Bhringi chok p.s. kataiya District-Gopalganj, presently posted at the office of Deputy Magistrate (Establishment) Gopalganj. 28.Chandra Bhushan Prasad Singh son of Late Ram Eakbal Singh, Resident of Village Fatehpur (Chakpar) p.s. Didarganj District-Patna, presently posted at the office of Joint Registrar co-operative Societies Patna Division Patna. 29.Blegirath Sah son of Late Laxmi Sah, Resident of village Dhaka Ramchandra p.s. Dhaka, District-East Champaran, presently posted at Circle office Motipur District Muzaffarpur. 30.Dasharath Das son of Late Chathu Das, Resident of village Salempur, P.S. Pipra Kothi, District East Champaran, presently posted at Muzaffarpur Collectoriate Muzaffarpur. Versus 1.THE STATE OF BIHAR, though Chief Secretary, Old Secretariate, Patna. 2.The Finance Commissioner Govt. of Bihar, Old Secretariat, Patna. 3.The Commissioner cum Secretary, Department of Co-operative, Govt. of Bihar New Secretariate, Patna. 4.The Registrar, Department of co-operative Govt. of Bihar, New Secretariate, Patna. 3 5.The Joint Registrar, Co-operative Societies Patna Division, Patna. 6.The Joint Registrar, Co-operative Societies, Darbhanga, Division, Darbhanga. 7.The Director Department of Social Welfare (I.C.D.S. Directorate) Govt. of Bihar Indira Bhawan Bailey Road Patna. 8.The District Magistrate Darbhanga. 9.The District Magistrate Vaishali. 10.The District Magistrate Muzaffarpur. 11.The District Magistrate, Madhubani. 12.The District Magistrate sitamarhi. 13.The District Magistrate Motihari. 14.The District Magistrate Madhepura. With CWJC NO.8490 of 2002 1. KRISHNA MURARI PATHAK, son of Late Rambadan Pathak, Resident of Village-Bhawadih, Police Station Karghar, District-Rohtas. Versus 1.THE STATE OF BIHAR through commissioner-Cum-Secretary, Co- operative Societies, Govt. of Bihar, New Secretariate, Patna. 2.The Registrar, Department of co-operative Societies, Govt. of Bihar, New Secretariate, Patna. 3.The Joint Regisrar co-Operative Societies Magadh Division, Gaya. 4.Asstt. Registrar, Co-Operative Societies, Aurangabad Circle, Aurangabad. 5.Tahsheen Salim Asraf, Fathers name not known, Assistant in the office of Assistant Registrar Co-Operative Societies, Aurangabad Circle, Aurangabad. ------- 9 29/6/2009 Heard counsel for the petitioners and counsel for the State. In C.W.J.C. No. 2190 of 2005 which was pressed by Mr. Singh the prayer made by the petitioner reads as follows:- “That this is an application for issuance of a writ in the nature of certiorari for quashing of the Clause 3 and Clause 6 of the Resolution containing in Memo No. 1235 dated 26.2.2004 issued under the signature of the Secretary, Department of Co-operative, Govt. of Bihar, Patna by which the Department has denied the benefit of previous service of the petitioners for the purpose of their pension and for the purpose of their promotion/seniority in Government of Bihar Services. As per the Clause-3 of the impugned order all the petitioners shall be treated to be in Government job only for ten years for the purpose of pension even if a person does not complete 10 years of service under the Govt. of Bihar and the same 4 treatment is to be given to the persons who even continue for more than 10 years of service. AND By Clause 6 of the impugned order the respondents have decided to treat five years of service (under District Cadre fund) equal to one year in the newly assigned job for the purpose of recknowing/fixing their seniority which is not only arbitrary exercise of power but also against the observation of the Hon’ble Supreme Court of India. Relief:- (A)The respondent may kindly be directed to count the entire period of service as Paid Managers for the purpose of their seniority in the present job and for the purpose of pension in view of the Judgment reported in 1998 (Vol.8) SCC page 218 in the matter of State of Bihar and others Vs. Bihar Rajya Sahkarita Prabandhak Sewa Sangh, Patna.” By an order dated 11.2.2009 in C.W.J.C. No. 8490 of 2002 it was recorded that the issues involved therein is identical as in C.W.J.C. No. 2190/2005 and as such both of them have been heard together and are being disposed of by a common order. Counsel for the petitioners in support of the aforementioned prayers had invited attention of this Court to the order of the Apex Court as also to the different documents relating to the past service history of the petitioners and they were of the view that once the petitioners were absorbed on Class-III post in the Government service their past services ought to have been counted as a whole either for the purposes of pay fixation or for seniority or for pensionary benefits. Mr. Anshuman Singh in defence of the impugned 5 order on the other hand would contend that here was a special case where the petitioners were not taken back in service by way of absorption in the Government service on account of abolition of any Government department or wing or in Government Directorate which alone in terms of 1972 circular would qualify for counting the entire past services. He would further expand his submission by taking a plea that here is a case of simple direct appointment under the orders of the Supreme Court by following the particular mode of limited departmental examination. He, therefore, is of the view that all said and done the order passed by the Apex Court in favour of the petitioner was for their direct appointment in service and therefore the impugned Government decision to give weightage of one year for every five years of earlier service rendered as Paid Manager of a Co-operative Society, does not suffer from any arbitrariness so as to be interfered by this Court in exercise of power under Article 226 of the Constitution of India. This Court, having taken into account the aforementioned submissions as also the materials on records is of the considered opinion that the aforesaid impugned Government decision does not suffer from any anomaly or arbitrariness, inasmuch as, it was open for the Government to take any rational decision as with regard to giving weightage for the past services while making their direct appointment on Class-III posts in terms of the Supreme Court’s order dated 20.8.1998 since reported in 6 1998(8) SCC 218 relevant portion whereof reads as follows:- “A reasonable number of posts available- including even those in the process of recruitment-be set apart for being filled up by the respondents. A separate recruitment test/examination be held. They cannot be asked to take the same examination prescribed for fresh candidates for entering the government service. The question paper(s) for the eligible respondents must be so prepared bearing in mind the conditions of the respondents such as age, past service, etc. After taking such examination(s), the eligible respondents may be absorbed subject to reasonable conditions as to their past service, seniority and pension” It has to be noted here that the Apex Court had never directed to give weightage of any particular length of service towards seniority to the petitioners and infact such an issue was left to the discretion of the State Government, which was only directed to absorb the paid Manager who would pass/qualify in the recruitment test examination subject to reasonable conditions as to their past service, seniority and pension Thus such absorption of the petitioners infact was in effect appointment in the cadre of PACS Manager and could not have taken away vested right of seniority of existing incumbents of the cadre on the date of appointment of petitioners even by way of absorption in keeping with the existing Rules of the government in resolution dated 26.8.1992. It has to be also taken into account the impugned decision to the effect that : - ^^vr% ekuuh; mPpre U;k;ky; ds vkns'k ds vkyksd esa ljdkjh lsok esa fu;qDr iSDl izca/kdksa dks 7 muds iSDl izca/kd ds :i esa dh x;h lsok dk ykHk nsrs gq, fu;qDr laoxZ esa dk;Zjr deZpkfj;ksa ds chp ojh;rk fu/kkZj.k gsrq rdZlaxr 'kRrZ yxkus ij fopkj fd;k x;kA fopkjksijkUr ik;k x;k fd izlaxk/khu ekeyk u rks iw.kZr;k lh/kh HkrhZ dk gS vkSj u ljdkj dh ,d lsok@laoxZ ls nwljh lsok@laoxZ esa varj.k dk u gh fu;ferdj.k dk cfYd ekeyk fo'ks"k ifjfLFkfr;ksa esa ekuuh; loksZPp U;k;ky; ds vkns'kkuqlkj fu;qfDr gSA fQj Hkh of.kZr ifjLFkfr esa ljdkj }kjk vioknLo:i iSDl izca/kd ds :i esa dh x;h iw.kZ lsok dk ykHk dafMdk&6 esa mfYyf[kr :i ls djrs gq, ojh;rk esa vf/kekurk nsus dk fu.kZ; fy;k gSA ;g Hkh fu.kZ; fy;k x;k gS fd ladYi la[;k 600 fnukad 08@03@2000 dh dafMdk&9 esa iSDl izca/kdksa dh ojh;rk muds }kjk nh x;h lhfer izfr;ksfxrk ijh{kk ds vk/kkj ij yksd lsok vk;ksx }kjk iszf"kr es?kk lwph esa izkIr LFkku ds vuqlkj djus ds 'kRrZ dks foyksfir djus dk fu.kZ; fy;k gSA ljdkjh lsok esa fu;qDr iSDl izca/kdksa }kjk iSDl izca/kdksa ds :i esa dh x;h izR;sd ikap o"kksZ dh lsok dh x.kuk ljdkjh lsok laoxZ esa mudh ojh;rk fu/kkZj.k ds iz;kstkukFkZ ,d o"kZ ds :i esa dh tk,xh vkSj rnuqlkj ml lsok laoxZ esa mudh ojh;rk fu/kkZj.k ds iz;kstkukFkZ ,d oxZ ds :i esa dh tk,xh vkSj rnuqlkj ml lsok lanHkZ esa mudh ojh;rk dk fu/kkZj.k fd;k tk,xkA** by way of exception to the general rule was taken by the government under extra ordinary circumstances. This Court can also not ignore that under similar situation when services of the persons under private and non-governmental employment had been taken in Government Service by way of takeover/nationalization, there has always been some sort of similar rationale followed by the State Government. One can take into account that when the affiliated colleges were made constituent college of the different universities by the State Government, the Government had laid down condition of counting only 1/3rd services rendered by them towards their seniority in the 8 constituent colleges. The only benefit in such case of absorption in terms of Section 4 (14) of the Bihar State Universities Act was that their pay fixation was made either on their present pay or by giving benefit of past services for the purpose of seniority. If the Government therefore has taken a conscious decision to give weightage of one year service by way of seniority for the five years services rendered by them as Paid Manager in the non- governmental co-operative society the same cannot be said to be irrational or arbitrary in any manner. Counsel for the petitioners were also not in a position to point out any specific rule in this regard which would permit counting of their entire services towards seniority on the post of PACS Manager and based their entire submissions by taking a plea of equity claiming that the petitioners earlier were working in the co-operative society whose business was capable of being regulated by the Registrar of the Co-operative society and as such once they were appointed by way of absorption as Government servant they ought to have been also given full benefit of their entire past services. When this Court however had put a pointed question to the learned counsel as to whether in past also when the Paid Managers working in private co-operative society were appointed in Government service as PACS Manager they had been also given such benefit of seniority, they were not in a position to answer this question in affirmative. The said aspect in fact has a crucial bearing on the result of this case inasmuch as the concept of seniority under 9 service jurisprudence is always referable to entry in cadre. Seniority in the cadre is always gathered or counted from the date of initial appointment to ensure that the rights of the existing incumbents of the cadre is not adversely affected on account of giving retrospective seniority to the new enterant in the cadre. Obviously, when the petitioners have been now appointed in the Government services and seniority to them has been given by giving certain weightage of one year for every five years of services in co-operative society, the interest of the earlier PACS Managers appointed prior to the petitioners in the government service could not have been entirely sacrificed. It has to be always kept in mind that the petitioners were the employees of the private Co-operative Society and such Co-operative Society were not under direct control of the State Government and their service conditions were also not identical. Infact the different co-operative society had adopted its own parameters for appointing the petitioners and as such if they were to be given the benefit of their entire past services rendered in the private co-operative society, they could have became senior to all the existing members of the cadre in the government who were appointed earlier to the petitioners causing an upheaval in the entire cadre, which was never intended by the Apex Court in its order dated 20.8.1998. That being so, the seniority which has been given to the petitioners, though not strictly permissible in law, must be treated to be one conferred in terms of the Supreme Court’s order. 10 The Supreme Court however as noted above did not direct for conferring such seniority to the petitioners by counting their entire length of service in co-operative society and therefore this Court cannot now expand the order of the Supreme Court. The plea that impugned order fixing seniority is not reasonable infact is no longer available to the petitioners because the contempt application of the petitioners filed before the Apex Court complaining the impugned order to be in teeth of the order of the Apex Court dated 20.8.1998 has since been dismissed by an order dated 9.8.2004 by the Apex Court itself as would be apparent from counter affidavit and its Annexure-C after noticing the decision of the State Government in the impugned order dated 26.8.2004. Thus the dismissal of the contempt petition by the Apex Court infact would mean that what ever directions were given even in respect of past service and seniority of the petitioners stood complied by the State Government by passing the impugned order and as such there would be no scope for this Court to even re- examine much less interfere with the impugned order. At this stage, Mr. Singh, learned counsel for the petitioners would submit that the petitioners are prepared to accept the Government decision in the impugned order, if they are given at least benefit of their pay fixation in terms of the impugned order. In other words, Mr. Singh is of the view that the benefit of post service and seniority as granted by the impugned order would be meaningless if the petitioners are not given benefit of pay 11 fixation in terms of the impugned order. This Court would however find that there is no such alternative prayer to this effect in either of the two writ petitions and therefore, this Court in the first instance cannot decide the matter on that score as that would amount to taking the Respondents by surprise. This Court, therefore, would hold that this part of the grievance of the petitioner should be in the first instance looked into by the State Government and therefore if the petitioners would file their individual representation and explain as to what monetary benefit on account of the impugned order can be claimed by them in terms of Rule 78 of the Bihar Service Code or any other statutory rules, the same would receive immediate consideration of the State Government. As the Government has decided to give them benefit of past service and seniority of certain number of years of service as specified in the impugned order, it is under obligation to consider grant of notional pay fixation on the date of their initial appointment by putting them on a higher basic pay in the pay scale by advancing number of increment for which they would qualify on the basis of their past service in terms of the impugned order. It has to be only recorded that the counsel for the petitioners have conceded that if such notional pay fixation is made in the case of the petitioners in terms of the impugned order they will have no grievance against the impugned order. This Court therefore, without expressing any final opinion on this aspect, would direct the respondent no.2, the 12 Finance Commissioner Government of Bihar to examine the individual cases of the petitioner provided they file their individual representation through proper channel within a period of one month from the date of receipt/production of a copy of this order. Such representation will thereafter be disposed of by a reasoned order by the Finance Commissioner in consultation with the Principal Secretary of the Co-operative Department within a period of six months from the date of filing of this individual representation. It however goes without saying that if any adverse decision is taken on this score by the respondents they will be required to record reasons in brief for the same. With the aforementioned observations/directions these two writ applications are finally disposed of. Abhay Kumar (Mihir Kumar Jha, J.)