IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6523 of 2004 DAYA NAND KUMAR son of late Ram Prit Prasad, resident of village – Saffepur, P S – Kako, District – Jehanabad, presently posted as Deputy Superintendent of Police (HQ) Bhagalpur _______ Petitioner Versus 1. THE STATE OF BIHAR through Chief Secretary, Old Secretariat, Patna. 2. Home Secretary, Govt. of Bihar, Patna. 3. Director General cum Inspector General of Police, Bihar, Patna. 4. The Personnel Secretary, Govt. of Bihar, Patna. 5. The Additional Personnel Secretary, Govt. of Bihar, Patna. 6. The Additional Secretary, Home (Police), Govt. of Bihar, Patna. ________ Respondents ----------- For the petitioner: Mr. Viveka Nand Pd Singh. For the State : Mr. Chhote Lal Nr. Singh, SC-1 and Mr. Mohan Kumar Singh, AC to SC-1. ---------- 07. 9/11/2010 Petitioner was appointed as a Dy. S.P. under the State of Bihar on the recommendation of the Bihar Public Service Commission (in short, BPSC) as per the notification dated 15.9.1984. Petitioner is an appointee of the 30th Combined Competitive Examination. After undergoing training he was confirmed on the post with effect from 10.10.1987. He has been working on the said post thereafter. The reason for his filing the present writ application is that he wants the benefit of seniority based on the past service rendered by him under the Indian Air Force in the so-called 1971 War. He was on the rank of an aircraft man and was discharged from service on 31.7.1976. If the respondents are directed to grant him seniority from the period he served the Indian Air Force, he would be a beneficiary as his service and seniority would be reckoned not from 1984 but from 1971. 2. The reason for making such a claim is the so-called notification of the Department of Personnel and Administrative 2 Reforms issued on 26th of August, 1972 where a provision was made to provide benefit of such kind to ex-service men. The circular in question has been annexed as Annexure-4 to the writ application. This circular was further clarified or modified on 2nd of March, 1973 and according to the petitioner it still occupies the field. 3. Since repeated plea of the petitioner failed to get him appropriate response, he decided to file the present writ application for issuance of a writ of mandamus in this regard. 4. Brief facts are that the petitioner joined Indian Air Force on the rank of Aircraft Man on 10.7.1971 during Indo Pak War. He subsequently came to be discharged on 31.7.1976 as he failed to re- classify to AC-I and was not willing to accept re-mustering in any other trade. Petitioner has annexed Annexure-1 in support or proof of the above fact. After his discharge from the Indian Air Force he sat for the 30th Combined Competitive Examination held by the BPSC and qualified for appointment on the post of Dy. S.P. 5. State was directed to file a counter affidavit and state their position which has now been done. They do not deny that certain benefit of the kind was sought to be offered by the State like many other States for such persons who came to be appointed by the Short Service Commission or Emergency Commission during Chinese or Pakistani Aggression. But such a provision was created for the emergent situation, meant for persons who had served the armed forces during the emergency which the country faced. 6. The State of Bihar taking into consideration that since 3 1971 no situation of the kind existed, issued a notification on 2.3.2005 withdrawing such a benefit including the 1972 circular contained in Annexure-4 along with corresponding amendments thereto. The said notification has been annexed as Annexure-C to the counter affidavit filed on behalf of the respondents 4 and 5. The stand of the State further is that this notification has been issued keeping in mind the relevant rule which was in existence at the relevant time issued by the Central Government. 7. The circular contained in Annexure-C has now come to be challenged by the petitioner saying that the said circular cannot be withdrawn from retrospective date. It can only have prospective application. The benefit of past service and the claim of the petitioner has to be considered in light of the demand made by him and the same cannot be denied on the basis of a subsequent notification dated 2.3.2005. He submits that the said notification is a kind of delegated legislation and the same cannot be repealed from the back date. The matter will have to be considered in the light of 1972 circular. 8. Learned counsel representing the State further submits that the petitioner no doubt had served the Indian Air Force between the year 1971 to 31.7.1976 in the emergency period but from 1976 onwards the petitioner was not in any service and he sat for an open competitive examination and qualified therein. His appointment on the post of Dy. S.P. has been based on his performance in the recruitment exercise carried by the BPSC and his seniority and rank will co-relate to the merit list prepared therefrom. Giving the benefit of past service in the 4 Indian Air Force would be unfair to the other persons who came to be recruited along with the petitioner specially when there was a huge gap between the period petitioner had served during the emergency of 1971 and the time when he came to be selected and appointed under the State of Bihar in 1984. If there was some kind of continuity in service and the petitioner was recruited by the State after he was discharged from Indian Air Force then for the sake of argument his case could have been considered but since his appointment is under open competitive system, the petitioner has no special right to claim benefit of a circular which was in existence a the relevant time due to emergent position subsisting therein. Giving benefit of past service from the year 1971 would be in violation of the principles of seniority and promotion, which will be detrimental to the interest of administration and the general morale of all other persons who came to be recruited through the open competitive source. The appointment of the petitioner on the post of Dy. S.P. was not based on the fact that he was an Ex-Airman but on the fact that he qualified in an open examination which was conducted by the BPSC. The new appointment to the post has no co- relation with his past service or the post which he held in the Indian Air Force. 9. It is a fact that 1972 Circular came in existence due to emergent situation prevailing therein since the country had faced wars in the year 1962 and thereafter in the year 1971.Government of India had made certain provision for all such persons who had worked as Emergency Commission Officers and or under the Short Service 5 Commission. But then the benefit of past service for such persons was decided to be offered in the peculiarity of the situation as it prevailed then. When peace time had returned and the recruitment of the petitioner was not made on the basis of his past service or experience under the Indian Air Force then the benefit which is being sought by him cannot be extended during the peace time. When the petitioner came to be recruited there had been no war or emergent situation thereafter and the past service came to an end way back in the year 1976 before the petitioner was selected and recommended by the BPSC in the year 1984 on the post of Dy. S.P. 10. A decision rendered in the case of Ram Janam Singh v. State of Uttar Pradesh and another, (1994) 2 SCC 622 has been brought to my notice. The Hon`ble Supreme Court had occasion to deal with similar situation. The Court had this to say in para 10 to 12 : “10. From time to time controversy regarding inter se seniority is raised between persons recruited from different sources to the same service. In past, notional seniority used to be given to one group of officers, purporting to mitigate their hardship or to rectify any alleged wrong done to them in the process of recruitment or promotion. Ultimately it was realized that if liberty is given to fix seniority of an officer or group of officers belonging to a particular category with reference to a notional date, that will lead to great uncertainty in public service. The date of entry into a particular service 6 was considered to be the most safe rule to follow while determining the inter se seniority between one officer or the other or between one group of officers and the other recruited from the different sources. After referring to different judgments of this Court, a Constitution Bench in the case of Direct Recruit Class II Engineering Officers’ Assn. v. State of Maharashtra, (1990) 2 SCC 715 : 1990 SCC (L& S) 339 : (1990) 13 ATC 348, came to the same conclusion. The same has been reiterated in the case of State of W. B. v. Aghore Nath Dey, (1993) 3 SCC 371 : 1993 SCC (L&S) 783 : (1993) 24 ATC 932. It is now almost settled that seniority of an officer in service is determined with reference to the date of his entry in the service which will be consistent with the requirement of Articles 14 and 16 of the Constitution. Of course, if the circumstances so require a group of persons, can be treated a class separate from the rest for any preferential or beneficial treatment while fixing their seniority. But, whether such group of persons belong to a special class for any special treatment in matters of seniority has to be decided on objective consideration and on taking into account relevant factors which can stand the test of Articles 14 and 16 of the Constitution. Normally, such classification should be by statutory rule or rules framed under 7 Article 309 of the Constitution. The far-reaching implication of such rules need not be impressed because they purport to affect the seniority of persons who are already in service. For promotional posts, generally the rule regarding merit and ability or seniority-cum-merit is followed in most of the services. As such the seniority of an employee in the later case is material and relevant to further his career which can be affected by factors, which can be held to be reasonable and rational. 11. It appears that the framers of the 1973 and 1980 Rules while treating the persons who had been commissioned on or after November 1, 1962 but before January 10, 1968 and again on or after December 3, 1971, took into account the circumstances and the background in which such persons were commissioned in Armed Forces i.e. when the nation was faced with foreign aggressions and the cry of the time was that persons should join the Armed Forces to defend the integrity and sovereignty of the nation. It is well known that many persons in such situation are not inclined to join Armed Forces and only those with feeling for the honour of the nation rise to such occasions. In this background, if such persons have been treated as a separate class for extending any benefit in the matter of seniority, none can make any grievance and their 8 classification can be upheld even in the light of Articles 14 and 16 of the Constitution. 12. But, we fail to understand as to how persons who joined after the emergency was over i.e. after January 10, 1968 and before December 3, 1971 when another emergency was imposed in view of the foreign aggression, can be treated on a par or on the same level. It need not be pointed out that such persons were on the lookout for a career and joined the Armed Forces of their own volition. It can be presumed that they were prepared for the normal risk in the service of the Armed Forces. Those who joined Armed Forces after November 1, 1962 or December 3, 1971, not only joined Armed Forces but joined a war which was being fought by the nation. If the benefits extended to such persons who were commissioned during national emergencies are extended even to the members of the Armed Forces who joined during normal times, members of the Civil Services can make legitimate grievance that their seniority is being affected by persons recruited to the service after they had entered in the said service without there being any rational basis for the same.” (emphasis mine). 11. Learned counsel thereafter has placed reliance on some of the decisions rendered by this High Court in the case of Bijay 9 Kumar Srivastava and anr. Vs. State of Bihar and others, which is CWJC No.16064 of 2006 decided on 24.7.2007 wherein the Court directed giving benefit of the earlier circular and holding that the notification dated 2.3.2005 would have prospective application and not retrospective. 12. The question is not the effect of 2005 notification in question, withdrawing the earlier notification issued in the year 1972 and whether it has prospective or retrospective application. The issue is whether the benefit of the kind can be continued and given to the persons like the petitioner who has come to be appointed during peace time on the basis of open competitive examination and that too when his past service rendered in the Indian Air Force between 1971 to 1976 has no co relation whatsoever to the present selection. If the principle which has been decided by the Hon`ble Supreme Court is taken into consideration in the case of Ram Janam Singh vs. State of Uttar Pradesh (supra) then it has to be seen whether such a benefit can be extended to the petitioner in the present time in the peace situation which has been prevailing after 1971 War. The emergent situation called for emergent kind of benefit which was extended to the persons who had served the Nation at the particular time but to extend that benefit now would be doing violation to Articles 14 and 16 of the Constitution of India as seniority has to be reckoned from the date of joining of the appointment/service and it cannot co-relate to the period prior thereto since it will have fall out on the other members of the service recruited along with the petitioner. After all the State of Bihar 10 decided to withdraw the said notification of 1972, may be belatedly but then such a decision was the need of the hour and case of the petitioner will have to be adjudicated or decided in light of what the Hon`ble Supreme Court decided in the case of Ram Janam Singh (supra). According to the opinion of the Court therefore, the claim of the petitioner for a direction upon the respondents to give him seniority from the period he had served the Indian Air Force in the year 1971 would be doing violation not only to the decision of the Supreme Court but also to the settled principle to seniority in service jurisprudence. 12. The writ application has no merit. It is dismissed. rkp ( Ajay Kumar Tripathi, J.)