Letters Patent Appeal No.1602 of 2000 -------- Appeal against the judgment and order dated 8.11.2000 passed by a learned Single Judge in C.W.J.C. No. 5623 of 1991. Krishna Mohan Singh …….Appellant Versus University of Bihar, now B.R.A. Bihar University, Muzaffarpur & ors. .…..Respondents -------- For the appellant : Sri. Ashok Kumar Sinha No. 3. Sri R.P. Singh, Sr. Advocate For the respondents: Mr. Ajay Bihari Sinha. ---------- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE JYOTI SARAN Jyoti Saran, J. This appeal under Clause 10 of the Letters Patent of High Court of Judicature at Patna arises out of the judgment dated 8.11.2000, passed in C.W.J.C. No. 5623 of 1991 (Krishna Mohan Singh Vs. University of Bihar & Ors.), passed by a learned Single Judge of this Court dismissing the writ petition. 2. We shall be referring to the representative facts and the Annexures as present in the writ proceedings unless clarified by specific reference. 3. Shorn of unnecessary details, the facts briefly stated is that the writ petitioner was appointed on temporary basis on the post of lecturer in Zoology in the Jawahar Lal 2 Nehru Memorial College, a constituent of the erstwhile Bihar University now B.R. Ambedkar Bihar University vide letter dated 21.7.1975 (Annexure-5), which post he claims to have joined on 22.7.1975. An advertisement was published in the local daily “Indian Nation” on 11.5.1976 (Annexure-7), by the University Service Commission inviting applications for appointment against different posts including that of a lecturer in Zoology. The petitioner filed his application claiming permanent appointment against the said post of lecturer in Zoology. A corrigendum to the said advertisement was issued on 17.12.1976 (Annexure-8), modifying the prescribed qualifications issued in the earlier advertisement and inviting applications from the eligible candidates with clear directions that those who had applied against the previous advertisement need not apply. The advertisement amongst others invited applications against one post of lecturer in Zoology in Jawahar Lal Nehru Memorial College, East Champaran. The University Service Commission upon completion of selection process recommended the name of the respondent no. 7, namely, Dwivedi Shashi Bhushan Sharma and the writ petitioner in that order of preference for appointment against the post of lecturer in Zoology in the college in question. The said recommendation dated 22.4.1977 is placed at Annexure- 9. The delay in appointment of respondent no. 7 against the solitary post of Lecturer in Zoology despite being the first nominee and non-appointment of the writ petitioner came up 3 for consideration before the Chancellor who issued direction for appointment of respondent no. 7, and with further direction of consideration of the case of the writ petitioner along with others in case of there being another vacancy. Not being satisfied, the writ petitioner moved this Court through C.W.J.C. No. 4139 of 1978 and a consensual order was passed on 4.2.1981 (Annexure-15), the operative portion of which is reproduced hereinbelow for ready reference : “ Now, counsel appearing for all the parties concerned, i.e., the petitioner, the Chancellor, respondent- University, respondent-Governing Body of the college aforesaid and Shri Sharma (respondent no. 6) have agreed that during the pendency of the writ application, the order of the Chancellor should be implemented. Let the respondent-authorities implement the order of the Chancellor, i.e. by appointing respondent no. 6 to the post for which the interview was held and to create a post for the petitioner preferably within two months from today and meanwhile the petitioner shall continue. This order is, however, without prejudice to the final decision in this writ application.” (Emphasis ours) 4. Pursuant to the order passed in C.W.J.C. No. 4139 of 1978, respondent no. 7 was appointed w.e.f. 23.7.1977, and the second post of lecturer in Zoology was created by the State Government with effect from 23.7.1977, 4 as is apparent from the letter dated 13.10.1982 (Annexure-22). Consequent upon the creation of the second post of lecturer in Zoology in the Jawahar Lal Nehru Memorial College, the petitioner was adjusted against the said post having been appointed and working pursuant to the letter dated 25.7.1977 (Annexure-10). In view of the said development, the writ petition filed by the petitioner bearing C.W.J.C. No. 4139 of 1978, was disposed of on 20.3.1985, giving liberty to the petitioner to raise any grievance regarding seniority if the need so arose in future (Annexure-25). The petitioner upon being appointed against the second post started claiming seniority over respondent no. 7, and arrears of salary by reason of having been appointed and working in the College with effect from 21.7.1975. The inaction on the part of the respondent authorities to fix the seniority led to the filing of C.W.J.C. No. 6922 of 1987, at the instance of respondent no. 7, inter alia seeking a direction to the University to fix the pay-scale with effect from 23.7.1977, and declaring him senior to the writ petitioner. The writ petition was disposed of on 23.11.1990 (Annexure-28), with the direction to the University to decide the question of inter-se seniority of respondent no. 7 (who was the writ petitioner in the said application), and the present writ petitioner on the post of lecturer in the Department of Zoology. 5. In the meantime, the University fixed the pay of the writ petitioner which was communicated through Memo dated 26.6.1989/29.6.1989, with effect from the date of 5 creation of the second post i.e. 23.7.1977 (Annexure-27). The writ petitioner represented against the said fixation which was disposed of by the Vice-Chancellor and communicated by the Registrar of the University, vide letter dated 13.2.1991 (Annexure-1), upholding the pay-fixation (Annexure-27). At the same time, the Vice Chancellor also disposed of the representations preferred by the contesting parties herein declaring respondent no. 7 senior to the writ petitioner and communicated vide Memo dated 1.6.1991 (Annexure-2). The representation of the writ petitioner before the Chancellor for fixation of salary w.e.f. 21.7.1975, and payment of arrears also did not find favour and was rejected as communicated by letter dated 11.6.1991 (Annexure-3), leading to the filing of the writ petition in question. 6. The writ petitioner had, inter alia, assailed the order of fixation of the inter se seniority by the respondent authorities declaring respondent no. 7, Dwivedi Shashi Bhushan Sharma, senior to the petitioner on the post of lecturer in Zoology in the Jawahar Lal Nehru Memorial College, Ghorasahan, in the district of East Champaran, a constituent unit of the erstwhile Bihar University, since renamed as B.R. Ambedkar Bihar University, Muzaffarpur. Some ancillary reliefs were also prayed claiming salary from 21.7.1975. 7. The writ petition was dismissed by the impugned order and hence the present appeal. Mr. Ashok Kumar Sinha 6 No. 3, learned counsel appearing on behalf of the writ petitioner, submitted that on the principle of continuous officiation as the writ petitioner was working against the post of lecturer in the College with effect from 21.7.1975, notwithstanding the creation of the post with effect from 23.7.1977, the period rendered by him on the post with effect from 21.7.1975 to 22.7.1977, ought to have been counted for the purpose of seniority and he should have been declared senior to respondent no. 7, and regular salary for the said period ought to have been paid to him. He relied upon a judgment of the Apex Court reported in A.I.R. 1990 SC 1607 (Direct Recruits Class II Engineering Officers’ Versus State of Maharashtra and others). He further stated that even on the basis of the statutes governing the 18 Months Rule, the services rendered by him prior to his substantive appointment should have been counted by the authorities for the purpose of determination of seniority and payment of arrears of salary, and the learned Single Judge while passing the impugned order not having appreciated the said relevant factors, the order was unsustainable and fit to be set aside. It was submitted that the petitioner was entitled not only to the regular salary to the post with effect from 21.7.1975, but was also entitled to seniority over respondent no. 7. 8. Mr. Ajay Bihari Sinha, learned counsel appearing on behalf of the University, supported the impugned order passed by the learned Single Judge, and submitted that the 7 contention advanced on behalf of the writ petitioner has no lawful support. He submitted that the admitted position is that respondent no. 7 was recommended as the first nominee for appointment against the solitary post advertised for appointment of lecturer in Zoology in the College in question and on which post he was duly appointed w.e.f. 23.7.1977. He further submitted that admitted position is that the second post was subsequently created though with retrospective effect from 23.7.1977. It was thus submitted that in the circumstances that where the second post itself came into existence subsequently, even though with effect from 23.7.1977, but no advantage could be claimed by the writ petitioner for the period anterior to the said date. It was stated that the appointment of the petitioner vide letter dated 21.7.1975 (Annexure-5), was temporary and did not bestow any right upon him of continuous officiation. It was submitted that even the statutes governing 18 Months Rule was not applicable in the case of the petitioner. In the circumstances, it was contended that the claim of the writ petitioner did not merit consideration and was rightly rejected by the learned Single Judge. 9. We have heard the rival contentions of the parties and considered the materials available on record. Whether the services rendered by the petitioner on the post of Lecturer in Zoology pursuant to the order of appointment on 21.7.1975 (Annexure-5), could be counted for the purpose of seniority is 8 the sole issue requiring our opinion. 10. Though a number of claims were put forth on behalf of the petitioner before the learned Single Judge, but the arguments in appeal centered around his claim for declaration of seniority over respondent no. 7 by reason of his continuous working on the post since 22.07.1975. Alternatively it was contended that following the 18 months absorption statute of the University dated 16.11.1978 contained in Annexure-12 as modified by Annexure-13, his seniority should relate back to the date of his initial appointment. 11. Respondent no. 7 was admittedly recommended as the first nominee by the University Service Commission for appointment against the solitary post of lecturer in the Zoology Department in Jawahar Lal Nehru Memorial College under the erstwhile Bihar University, presently known as the B.R. Ambedkar Bihar University vide letter dated 22.04.1977 (Annexure-9). 12. Preferential treatment being given to the writ petitioner at the hands of the governing body of the college who endeavoured to appoint the writ petitioner, being the second nominee in spite of the Commission having recommended the name of respondent no. 7 as the first nominee, led to filing of a representation by respondent no. 7 before the Chancellor. The Chancellor vide order passed on 4.4.1978, was pleased to order for appointment of respondent 9 no. 7 on the sanctioned and advertised post of lecturer in Zoology being the first nominee of the Commission. The Chancellor, at the same time, was further pleased to observe that upon there being another vacancy and if the writ petitioner had completed 18 months service, then his case be also submitted along with the cases of other temporary lecturers for absorption on permanent basis. Pursuant to the said direction, respondent no. 7 was appointed as lecturer in Zoology with effect from the date of consideration of the Commission’s recommendation i.e. 23.07.1977. The said developments are found in the communication of the Registrar dated 25.4.1978 (Annexure-11). The decision of the Vice- Chancellor as expressed in the letter dated 25.4.1978 of the Registrar (Annexure-11), was endorsed by the Chancellor in his order dated 12.10.1978 (Annexure-14A), and direction was issued for appointment of respondent no. 7, Dwivedi Shashi Bhushan Sharma, as lecturer in Zoology with effect from the date of consideration of the recommendation of the Commission. The writ petitioner was allowed to continue for the present. The Chancellor in his order dated 12.10.1978, held the preference given to the writ petitioner despite being second nominee as untenable. The Chancellor was also of the view that the appointment of the writ petitioner could not be made by way of absorption by resorting to the 18 months statute for the reason that the consent of the Chancellor was necessary in such cases and the same had not been obtained. 10 The order of the Chancellor was assailed before this Court in C.W.J.C. No. 4139 of 1978, and a consensual order was passed on 4.2.1981, already re-produced hereinabove. The petitioner thus consented to the implementation of the order of the Chancellor of University and for the appointment of respondent no. 7 herein against the post of lecturer in Zoology pursuant to the recommendation of the Commission dated 22.04.1977 (Annexure-9). 13. The petitioner having consented to the aforesaid order now cannot be allowed to question the appointment of the respondent no. 7 though a different route of fixation of inter-se seniority. In view of the earlier orders passed by this Court on the issue and the decisions of the Chancellor, it is clear beyond doubt that respondent no. 7 was appointed against the first post, rather the solitary post advertised for appointment of Lecturer in Zoology. The appointment of respondent no. 7 on the solitary post became final with the order of the Chancellor dated 4.4.1978, as referred to in the communication of the Registrar as contained in Annexure-11. The moment respondent no. 7 was appointed and occupied the solitary post of Lecturer, the vacancy got exhausted meaning thereby there existed no fresh post to accommodate the writ petitioner. 14. We may observe that the writ petitioner was rather fortunate in obtaining appointment on the post of Lecturer in Zoology. Our observation flows by reason of the fact that 11 there was only one post of Lecturer in Zoology which was advertised and against which respondent no. 7 was appointed. The second post of Lecturer in Zoology was created pursuant to the observation of the Chancellor referred to in Annexure- 11, and which observation came to be treated as a direction resulting in creation of the second post vide letter dated 13.10.1982 (Annexure-22), though with effect from 23.7.1977. A perusal of the order of the Chancellor dated 4.4.1978 which finds mention in Annexure-11 manifests that there was no direction of the Chancellor for creation of the second post. 15. We refrain ourselves from expressing any opinion on the legality and validity of the order of creation of the second post of Lecturer in Zoology, but hasten to add that the writ petitioner having obtained an appointment purely on equitable grounds should have considered himself fortunate instead of burdening the Court with frivolous litigations. The legal position on this aspect is very clear. No benefit can accrue to any appointee prior to the date of sanction/creation of any post. In the present case, the post on which the petitioner was appointed was created vide letter dated 13.10.1982 with retrospective effect from 23.7.1977. Thus where the second post itself came into existence with effect from 23.7.1977, and on which the petitioner was adjusted, no benefit either in the form of salary or seniority can accrue to the petitioner for any period prior to 23.7.1977. One does not require to resort to interpretations to hold that an appointee 12 to the second post has to rank junior to the appointee of the first post. The case of the writ petitioner is in a worse position. The post on which he was adjusted was created only in the year 1982, though with retrospective effect from 23.7.1977. Thus on either of the counts, the petitioner has no case for securing seniority over respondent no. 7. The principle of continuous officiation nowhere applies to the case of the petitioner and his reliance on the same being completely misconceived has to be rejected and we do so. The judgment of the Apex Court relied upon by the petitioner is not applicable in the present context. 16. The petitioner also does not qualify for consideration of his claim under the 18 months absorption statute. Apart from the ground assigned by the Chancellor regarding non-fulfilment of the essential requirement of obtaining permission from the Chancellor in such cases, even on merit the petitioner has no case. The statutes appended at Annexures 12 and 13 of the writ petition requires the person concerned to have completed 18 months of actual services upto 30.6.1977 for consideration of his case for absorption in addition to fulfillment of the criteria of the academic qualifications. So far as the petitioner is concerned, apart from non-fulfilment of certain essential conditions, he also did not fulfil the criteria of rendering actual service on the post. The petitioner’s actual service can only be said to have started with the date of creation of post which was created with effect from 13 23.7.1977, and thus any service rendered on temporary basis can not fulfill the criteria of 18 months actual service and is of no avail to him. The contention of the petitioner is thus rejected. 17. We are in complete agreement with the reasonings assigned by the learned Single Judge while rejecting the claim of the petitioner. The argument advanced by the learned counsel appearing on behalf of the petitioner could not persuade us to interfere with the judgment and order of the learned Single Judge impugned in this appeal, and we uphold the same. 18. In the result, the L.P.A. is dismissed with costs quantified at Rs. 1000/-. I agree. S.K. Katriar, J. Patna High Court Dated the 2nd of September, 2009 N.A.F.R/S.Sb/- (Jyoti Saran, J.) (S.K. Katriar, J.)