IN THE HIGH COURT OF JUDICATURE AT PATNA C. REV. No.167 of 2008 1. The High Court of Judicature at Patna, through its Registrar General. 2. The Registrar Establishment, Patna High Court, Patna. 3. The Assistant Registrar VI, Patna High Court, Patna. ------- Appellants---- Petitioners Versus 1. Ram Kripal Prasad, son of late Braj Nandan Prasad, resident of Road No.2, Qrs. No. C/10, Water Tower, P.S. Kotwali in the Town and District of Patna. 2. Shri Kishori Lal, Son of name not known to the Petitioner. 3. Anil Kumar Sinha, son of name not known to the petitioner. 4. Yugal Kishore Singh, son of name not known to the petitioner. 5. Anil Kumar No.II, son of name not known to the petitioner. 6. Jai Prakash Narayan Sharma, son of name not known to the petitoner. All respondent Nos. 2 to 6 are Assistants of the High Court of Judicature at Patna. -------- Respondents---- Opposite Parties With C. REV. No.168 of 2008 1. The High Court of Judicature at Patna, through its Registrar General. 2. The Registrar Establishment, Patna High Court, Patna. 3. The Assistant Registrar VI, Patna High Court, Patna. ------- Appellants---- Petitioners. Versus Ram Kripal Prasad, son of late Braj Nandan Prasad, resident of Road No.2, Qrs. No. C/10, Water Tower, P.S. Kotwali in the Town and District of Patna. -------- Respondent-Respondent ----------- For the Petitioners :- Mr. Lalit Kishore, Sr. Adv. Mr. Piyush Lal, Adv. For the Respondents :- Mr. Vindhyachal Singh, Adv. PRESENT:- Hon’ble Mr. Justice C.M. Prasad Hon’ble Mr. Justice Mihir Kumar Jha J U D G E M E N T 2 Mihir Kumar Jha, J. Both of these review applications arise out of two separate orders dated 22nd April, 2008 in LPA No. 122 of 2005 and LPA No. 123 of 2005, emanating from connected writ petitions CWJC No. 467 of 2000 and CWJC No. 90 of 2003 respectively. Both the aforementioned writ applications filed by the same writ petitioner, Ram Kripal Prasad were disposed of by the learned single Judge by his common judgment and order dated 23.12.2004, whereafter the petitioner of these review application, namely, the High Court of Judicature at Patna and its officials had filed two appeals, LPA No. 122 of 2005 and LPA No. 123 of 2005 which were disposed of by the impugned orders dated 22.4.2008 giving rise to these two review applications Civil Review No. 167 of 2008 and Civil Review No. 168 of 2008. 2. The facts in brief of these two cases are however plain and simple. Sri Ram Kripal Prasad (hereinafter to be referred to as „the writ petitioner‟) came to be appointed on the post of Ex-Cadre Assistant in the Patna High Court on 11.8.1973 primarily on the ground that his father late Brajnandan Prasad, being an employee of this 3 Court holding the post of Section Officer, had died in harness on 17.1.1973. Such out of turn appointment of the writ petitioner, therefore, basically being purely humanitarian ground at a point of time there was no policy or provision for appointment on compassionate ground was made without following the prescribed procedure for appointment as prevalent under the 1951 Rules/Guidelines. It was therefore an appointment under special circumstances and eventually had contained specific terms and conditions, which for the sake of clarity, is quoted hereinbelow:- “Memo No. 4280/Accounts, Dated 11.8.73 To Sri Ram Kripal Prasad C/O Sri Ram Nandan Prasad, Asstt., Administratie (Apptt.) Deptt., High Court, Patna. With reference to his application for the post of an Assistant in the establishment of the Court, Sri Ram Prasad is hereby informed that he has been selected for appointment as an Ex-cadre Assistant on a pay of Rs. 220/- per month in the scale of pay of Rs. 220-4-240 EB- 5-290 EB-5-315 pluse the usual allowance under the rules. He is further informed that the appointment in subject to the condition that he will have to appear at the general recruitment test to be held hereafter and qualify himself for regularizing his appointment. The appointment is purely on a temporary basis and may terminated without any notice and 4 assigning any reason. No traveling allowance is admissible for joining the appointment. If he is willing to accept the appointment on the aforesaid terms, he is hereby directed to join his appointment within a week from the date of receipt of this letter. He is also directed to produce medical certificate of fitness from the Civil Assistant Surgeon I/C of a Government Dispensary enjoying the status of a Deputy Superintendent or from a Deputy Superintendent of a Government Hospital at the time of joining the post. If employed in any office, he must bring with him the relieving certificate from his employer at the time of joining the pot. He may also bring with him the original certificates at the time of joining. Sd./- Deputy Registrar” 3. At this place, it would be relevant to mention here that when the appointment of the writ petitioner was made as Ex-Cadre Assistant, the ministerial post in the High Court for constituting the strength of Clerks and above, had the nomenclature of Lower Division Clerk and Upper Division Clerk as prevalent in the Secretariat of the State Government. Thus, all the other Class III and IV posts below Lower Division Clerk were promotional post to the post of Lower Division Clerk and one among them was the post of Ex-Cadre post having a different lower pay-scale. The 5 minimum qualification for the post of Lower Division Clerk as per the 1951 Rules/Circular of the High Court was Intermediate whereas any one could be appointed on the lower Ex-Cadre post even while holding the qualification of Matriculation. Thus, when the writ petitioner was appointed out of turn on the post of Ex-Cadre Assistant on 11.8.1973 in the pay-scale of Rs. 220-315, he, in terms of his appointment, had to successfully clear the general recruitment test for being regularized on the post of Ex-Cadre Assistant itself before becoming eligible to be considered for his promotion on the higher post of Lower Division Clerk in the pay-scale of Rs. 260-408. The history- sheet of the writ petitioner would, however, go to show that even when he had appeared in a series of general recruitment tests as per his terms and conditions in the appointment letter dated 11.8.1973 for regularizing his service as Ex-Cadre Assistant, he could not pass any one of them and thus could not clear the prescribed condition of his appointment as Ex-Cadre Assistant. 4. In the year 1977 after merger of the post of Lower Division Clerk and Upper Division Clerk as Assistant in the Secretariat, when the 6 same pattern was adopted in the High Court, the writ petitioner became overenthusiastic to stake claim for the post of Assistant on the ground that he had continued in service for eight years or so but, the High Court Establishment did not allow such prayer of the petitioner and taking into account of his continued satisfactory service as an Ex-Cadre Assistant had merely regularized his appointment as Ex-Cadre Assistant with effect from 27.5.1981 by waiving the conditions imposed in his appointment letter as would also appear from the communication made to the petitioner on 6th of July, 1981 which reads as follows:- “Memo No. 6612/Accounts, Dated, Patna the 6th July, 1981 Sri Ram Kripal Prasad, Ex-cadre Assistant of the Court. With reference to his application dated 21.01.1981, Sri Ram Kripal Prasad is hereby informed that his appointment as an Ex-cadre Assistant has been regularized from 27.05.1981. By order of Hon’ble the C.J. Sd/- T.L. Verma Deputy Registrar-I” 5. The writ petitioner however was not satisfied with the aforementioned order and in July, 1982, he had filed a representation for his being regularized/absorbed/prescribed on the post 7 of Assistant either with effect from 11.8.1973 or with effect from 11.8.1976 when he had completed three years service as an Ex-Cadre Assistant and for this purpose, he had relied on the two circulars of the State Government dated 12.7.1977 and 17.5.1980. The said representation of the writ petitioner, however, was rejected on 19.8.1982 in view of the subsequent decision/policy decision of the High Court on the administrative side on 17.6.1982 wherein it was pointed out that an Ex- Cadre Assistant, being only Matriculate and the qualification of the Assistant being that of Graduation, anyone who could claim such regularization on the post of Assistant either by way of absorption or internal appointment or promotion must have passed the prescribed examination/recruitment test for the post of Assistant. Subsequently, the said administrative decision of the High Court taken on 17.6.1982 under the order of the Hon‟ble Chief Justice had slightly been modified by yet another administrative decision dated 21.3.1986 wherein Hon‟ble the Chief Justice had agreed with the proposition that Ex- Cadre Assistant who had been in service on or before 17.2.1982 could be given promotion on the 8 post of Assistant on the basis of old policy existing before 17.6.1982. As noted above, before 1982 there was no prescribed recruitment test for absorption/regularization/promotion of the Ex-Cadre Assistant to the post of L.D.C./Assistant and as such, when in the light of this administrative decision the case of writ petitioner was considered with nine others and they were temporarily appointed as Assistant in the Patna High Court in the pay-scale of Rs. 785-1210 with effect from 30.4.1986, the text whereof reads as follows:- “HIGH COURT AT PATNA The following Typist and Ex-cadre Assistants are appointed temporarily as Assistants of the Court in the scale of pay of Rs. 785-25-1135-E.B.-25-1210, with effect from 30th April, 1986. (1) Sri Satish Kumar (Typist) (2) ” Madnendra Kishore (Typist) (3) ” Tara Kant Das (Typist) (4) ” Rama Kant Prasad Sinha (Typist) (5) ” Umesh Prasad (Typist) (6) ” Dinesh Kumar Verma (Typist)- Ranchi) (7) ” Md. Nazimuddin (Typist) – (Ranchi) (8) ” Arvind Kumar Sinha (Ex-cadre Assistant) (9) ” Ram Kripal Prasad (Ex-cadre Assistant) (10) ” Ajoy Kumar Sinha (Ex-cadre Assistant) They will not get the benefit of pay fixation as admissible to promoted employees. Four appropriate vacancies have been kept reserved. By order of the Registrar, Sd./- Mudrika Prasad Deputy Registrar-I Memo No. 4614-29/Accounts Dated, Patna 5th May, 1986.” 9 6. The writ petitioner, therefore, had been appointed on the post of Assistant only after the issuance of the said order dated 30.4.1986, though he was persistently claiming his retrospective appointment on the post of Assistant w.e.f. 11.8.1973 or 12.7.1977 and his such claim specifically raised had been rejected by the High Court Establishment on 6.7.1982. In fact, it was after twelve years of rejection of earlier representation and eight years of his being appointed on the post of Assistant in the Patna High Court with effect from 30.4.1986 that he had filed a representation on 10.10.1994 seeking his regularization on the post of Assistant with effect from the same date on which he was appointed as Ex- Cadre Assistant i.e. 11.8.1973 or in the alternative from 12.7.1977 in view of the Circular of the State Government dated 12.7.1977 and 17.5.1980. Such representation of the writ petitioner, in fact, was once again rejected on 2.4.1995 but then the petitioner had continued with his unabated spirit to claim the benefit of the post of Assistant, its seniority and the consequential promotional benefit and for this purpose he had filed yet another separate 10 representation, this time in the garb of restoration of his seniority of the post of Ex- Cadre Assistant, Assistant and Assistant Selection Grade vide his detailed representation dated 26.9.1995. Such representation being only “old wine in the new bottle” was once again considered and rejected by the High Court Establishment on 21.11.1995, whereafter, the writ petitioner had remained silent for next two years before filing yet another representation on 15.12.1997 for the same purpose of seeking his regularization on the post of Assistant with effect from 11.8.1973. This representation was once again rejected on 10.8.1999 and had given rise to CWJC No. 467 of 2000, wherein the prayer of the writ petitioner was as follows:- “1(i) For quashing the order issued under the signature of Assistant Registrar VI dated 10th August, 1999 by which the prayer for regularization of service of the petitioner from the date of his joining has been rejected. (ii) For a further direction to the respondent authorities for treating the service of the Petitioner regularized since 14.8.1973, when the petitioner was appointed on compassionate ground; (iii) For a further direction to the respondent authorities to grant the petitioner notional promotion in the cadre of Assistant with effect from 14.8.1976, 11 when he completed 3 years of service in ex-cadre post and he passed the intermediate Examination in the year 1974.” 7. While the said writ application filed on 13.1.2000 was pending, the writ petitioner came with another writ application CWJC No. 90 of 2003, this time challenging the order of promotion dated 17.5.2002 of five persons, namely, Kishori Lal, Anil Kumar Sinha, Yugal Kishore Singh, Anil Kumarand Jai Prakash Narayan Sharma and also seeking a direction for his promotion on the post of Section Officer on the ground that he was senior to the aforementioned five persons arrayed as respondent nos.4 to 8 in CWJC No. 90 of 2003. 8. Both the writ applications CWJC No. 467 of 2000 and CWJC No. 90 of 2003, being more or less complementary to each other, were heard together by the learned single Judge who, by his common judgment and order dated 23.12.2004, had disposed of them by virtually rejecting each and every plea of the writ petitioner holding the writ petitions to be grossly delayed and the writ petitioner not entitled to question the terms and condition of his initial appointment of passing the recruitment test for regularization of his service as an Ex-Cadre Assistant and also rejecting the plea of 12 discrimination but then holding that regularization of the service of the petitioner as an Ex-Cadre Assistant by waiving the condition of appointment of the petitioner as contained in letter dated 11.6.1973 would amount to his entry in the cadre of Assistant with effect from 6.7.1981, which would entitle him for seniority and consequential consideration of promotion on the post of Assistant and higher post with effect from 6.7.1981. The findings and the operative portion of the judgment and order of the learned single Judge dated 23.12.2004 in the two writ petitions CWJC No. 467 of 2000 and CWJC No. 90 of 2003 need to be extracted and quoted for appreciating the issue involved in these two review applications which reads as follows:- “17. The petitioner was however regularized by an order dated 6th July 1981. The order of regularization shows that there was no circumstantial change in the position since the appointment of the petitioner. The petitioner remained yet to fulfil the condition of the appointment. At this stage, the respondents suo moto and unilaterally decided to regularize his services on the ground of satisfactory services and his having completed five years as an Ex Cadre Assistant and that he has not earned any adverse remark. Quite clearly there was no criterion for the 13 fixation of this date in July 1981 for regularization of his services. This Court therefore comes to the conclusion that the said date of July 1981 was quite simply a fortuitous date. The respondents having decided to grant him the benefit by a fiction of law would be required to consider extending it to its logical conclusion and grant him seniority accordingly. 18. In the circumstances, while holding that the petitioner is not entitled to consideration for the relief of promotion as an Assistant either from 1973, 1976 or 1978, this Court does not find that the petitioner has been able to make out a case to be considered for promotion and placement in the seniority list of Assistants effective from July 1981 when he was inducted into the Cadre. In view of the law laid down in the judgment reported in AIR 1993 SC 1221 (State of M.P. Vs. Sri Kant Chapkekar):- 4. “----This Court has repeatedly held that in a case where the Court/Tribunal comes to the conclusion that a person was not considered for promotion or the consideration was illegal then the only direction which can be given is to reconsider his case in accordance with law----” The only proper order that can therefore be given in the present case is to hold that the petitioner would be entitled to the consideration of the case for seniority and placement in the Cadre of Assistant with effect from July 1981. Order accordingly.” 9. As the said direction of the learned 14 single Judge was against the specific case of the High Court on the administrative side which had recognized the entry of the writ petitioner in the Cadre of Assistant only with effect from 30.4.1986 it had filed two letters patent appeal LPA No. 122 of 2005 and LPA No. 123 of 2005 and they came to be disposed of by two different orders both dated 22.4.2008. The impugned order was passed in LPA No. 122 of 2005 wherein the Division Bench had found apparent anomaly in recording the fact by the learned single Judge that the writ petitioner had been regularized on the post of Assistant with effect from 6.7.1981. The Division Bench, however, having noted that the order dated 6.7.1981 did not regularize him on the post of Assistant but only as an Ex-Cadre Assistant, however, took a view that the subsequent order dated 30.4.1986 appointing the writ petitioner on the post of Assistant was in effect, an order of transfer from Ex-Cadre to the Cadre and as such he was entitled to carry the experience of the Ex-Cadre Post and therefore the direction of the learned single Judge was not required to be interfered. The text of the order passed by the Division Bench disposing of LPA No. 122 of 2005 in fact reads as follows:- “In 1973, the sole respondent was 15 appointed as an Ex-Cadre Assistant on the condition that he would be required to sit and pass the examination to be conducted in future for appointment of Assistants. This appointment was granted to the respondent considering the death of his father, an employee of the High Court, who died in harness. Although, admittedly at the time when this appointment was given, a compassionate appointment to a member of the family of a deceased High Court employee, who has died in harness, was not available. The respondent failed to succeed in the examination for appointment of Assistants although he sat in at least one of the examinations held for that purpose. On the same terms and conditions, the respondent worked until July, 1981, when waiving the term that he would be required to sit and succeed in an examination to be held for recruitment of Assistants, the services of the respondent was regularized considering his past five years services. Respondent was regularized as an Ex- cadre Assistant. He was not regularized as an Assistant. Ex-cadre Assistants are entitle to a lesser pay scale than Assistants. In 1986, respondent was appointed as an Assistant. In the writ petition, respondent contended that he should be treated to be an Assistant since 1973 or since 1976 or since 1978. The Court rejected such claim. By the Judgment appealed against, Court held that the respondent should be entitle to seniority as an Assistant with effect from July, 1981 and treating the respondent as such his case for further promotion should be considered. In the present appeal, appellant contends that in July, 1981 respondent was regularized 16 as an Ex-cadre Assistant and not as an Assistant, he became an Assistant only in 1986 and accordingly, seniority of the respondent as an Assistant cannot be taken note of from July, 1981. The fact remains that in July, 1981 respondent, on being regularized as an Ex-cadre Assistant, became a Government employee. In such view of the matter, immediately before he was made an Assistant, he was a Government employee and accordingly, could not be appointed afresh for it is no body’s case that before such appointment respondent resigned. In such view of the matter, one is required to ascertain whether appointment of the respondent in 1986 as Assistant was a promotion or a transfer. If it was a promotion than of course the respondent was entitle to count his seniority as Assistant from the date of his promotion and not from a date prior thereto. The order by which respondent was appointed or made an Assistant states, amongst others, that the respondent shall not be entitle to fixation of pay as admissible to promoted employees. That clearly denotes that the respondent was not promoted, but was transferred from Ex-cadre to Cadre. It is well settled in law that a person working in Ex-cadre, while transferred to the Cadre, carries with him experience he has earned in the Ex-cadre post. Accordingly, we see no infirmity in the order except that the learned Judge by mistake did not take note of the fact that the regularization of the respondent in July, 1981was in the post Ex-cadre Assistant. With the observations, as above, the 17 appeal is disposed of without any order as to costs.” 10. In the light of the aforementioned order in LPA No. 122 of 2005, the division Bench has also dismissed the LPA No. 123 of 2005 by a separate order on the same date recording as follows:- “The facts and the circumstances of the case are identical to those dealt with by us in L.P.A. No. 122 of 2005. In such view of the matter, we feel that the law applicable in relation thereto is also identical. in those circumstances, for the reasons recorded in the Judgment and order rendered by us in L.P.A. No. 122 of 2005, we also find no reason to interfere with the Judgment and Order under appeal. The appeal fails and the same is dismissed without any order as to costs.” 11. Mr. Lalit Kishore, learned senior counsel for the petitioner ably assisted by his junior counsel Mr. Piush Lal had submitted before us that it is the conclusion of the Division Bench of treating the appointment of the writ petitioner on the post of Assistant dated 30.4.1986 as his transfer from Ex-Cadre Assistant to the post of Assistant, which is an apparent error on the face of record in view of the specific wordings of the order dated 30.4.1986. In this context, he has also contended that if the basic concept of service 18 jurisprudence of reckoning seniority on the post in question of the Assistant as per the statutory rules namely Patna High Court Officers and Staff (Condition of service and conduct) Rules, 1997 is applied, the writ petitioner cannot claim seniority on the post of Assistant from any other date save and except 30.4.1986. He has also contended that if the view taken by the Division Bench of treating the appointment of the writ petitioner as an Assistant dated 30.4.1986 is to be treated as an order of transfer from the post of Ex-Cadre Assistant to the post of Assistant, it would give rise to serious complication and in fact would amount to re-writing the Cadre Rules for appointment and seniority on the post of Assistant. He has, therefore, submitted that once the Division Bench had found that the whole premises of the direction given by the learned single Judge in his judgment and order dated 23.12.2004 was based on an incorrect premises of the reading of the order of regularizing the services of the writ petitioner as an Ex-Cadre Assistant dated 6.7.1981, the logical conclusion was to quash that part of the order instead of approving it on a ground of transfer of the writ petitioner from the post of Ex-Cadre 19 Assistant to the post of Assistant which was not even the case of the writ petitioner either in the writ application or in the