IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5691 of 1997 Tapan Kumar, son of Sri Ramashraya Prasad Singh, resident of Village Goreya Kothi, Police Station Goreya Kothi, District Siwan, at present, posted as Stenographer to the Sub-divisional Magistrate, Bagaha district, West Champaran. ------ Petitioner Versus 1. The State of Bihar. 2. The District Magistrate-cum-Chairman of the District Establishment Committee, West Champaran, at Bettiah. 3. Ram Prasad Singh, son of not known to the petitioner, at present posted as Stenographer in the office of the District Magistrate (respondent no.9), Confidential Cell, West Champaran at Bettiah. --------- Respondents ----------- 32 19.5.2011 Having heard Mr. Shivajee Pandey, learned senior counsel for the petitioner and Mr. Narmadeshwwar Jha for the intervener Raj Kumar Jha as also Mr. Sanjay Kumar No.1, S.C.12 for the State, this Court is of the considered opinion that by efflux of time the relief sought in this writ application as with regard to quashing of the order of promotion of the respondent no.3 has lost its importance, inasmuch as, the respondent no.3 has continued to work on a higher post of selection grade Stenographer in terms of the impugned order dated 26.5.1997 for a period of nearly fourteen years. Mr. Pandey, however, has a grievance that such promotion to the respondent no.3 2 was based on a seniority list, which was itself tentative in nature and against which the petitioner’s representation for its correction was pending and, therefore, without deciding the seniority of the petitioner vis-à-vis respondent no.3, the concerned cadre controlling authority, namely, the Collector of the West Champaran district ought to have not given promotion to the respondent no.3. Attractive though the submissions may be, this Court on perusal of the seniority list dated 19.10.1984, which was described to be the final gradation list, would find that even in that seniority list, the petitioner had ranked below the respondent no.3. Mr. Pandey, however, would explain that the aforesaid seniority list was never circulated or made known to any one and that was the reason that another tentative seniority list was issued in the year 1987 and thereafter till 1997. Such submission of Mr. Pandey again proceeds on a assumption that the cadre strength of the Steno-Clerk in the year 1984 had remained the same as in the 3 subsequent year but, on perusal of the final gradation list of the year 1984 and its being compared with the subsequent gradation list, it would be found that the same had contained names of many more persons appointed after 1984 many forms and, therefore, it can not be held that the gradation list of the year 1984 was not a final gradation list. True it is that the petitioner may have a legitimate grievance of its not being known of 1984 gradation list but, the promotion given to the respondent no.3 on the basis of an existing seniority of the year 1984 onwards cannot be faulted in law, inasmuch as, even in the subsequent tentative gradation list issued from time to time as annexed to this writ application, the respondent no.3 has been shown to be senior to the petitioner. As a matter of fact, the Collector of the district considering this aspect of the matter had notified such promotion of the respondent no.3 as a vkSicaf/kd (provisional). Mr. Pandey would then submit that the seniority of the petitioner vis-à-vis 4 respondent no.3 has to be decided in the light of the objection filed by the petitioner and, to that extent, he would point out that since the date of entry of the petitioner in the cadre of Steno-Clerk is in the month of January 1974, whereas, the respondent no.3 had come in the cadre only on 4.12.1975, inasmuch as, he was earlier working in Agriculture Department. The issue of inter-se seniority in a cadre of Steno- Clerk can be either on the basis of appointment or by way of promotion and if the petitioner’s appointment was made in the month of January, 1974, he could not have ranked senior to the respondent no.3 whose date of entry in Government service is shown to be 12.10.1973. The issue, however, would be if the respondent no.3 was working in a different cadre and his such transfer to the cadre of Steno-Typist in the Collectorate was made on his own request, he will not be entitled for counting his seniority of the earlier period but, then, if it is a transfer made by the competent authority in the administrative exigency, he will definitely 5 have a right to continue his earlier period of service from 12.10.1973. In this case, the petitioner has not produced either his order of appointment on the post of Steno-Typist or the order of transfer of the respondent no.3 and, therefore, this Court would find it difficult to decide such question of seniority between him and the respondent no.3. In that view of the matter, as the tentative gradation list of the post of Steno-Typist has yet to be finalized and all the subsequent tentative gradation list issued after the year 1984 are said to be still tentative in nature, this Court would direct the Collector of the West Champaran district to finalize the said gradation list as contained in Annexure-8 dated 23.9.1995 wherein the seniority of the petitioner vis- à-vis respondent no.3 also must be considered in accordance with law. In order to enable the Collector of the district to take all relevant aspects into consideration while deciding the inter- se seniority between the petitioner and the 6 respondent no.3, this Court would give liberty to the petitioner to file his self- contained representation enclosing all the relevant documents to substantiate his claim of his being senior to the respondent no.3. The Collector of the district will supply a copy of the aforesaid representation of the petitioner to the Respondent no.3 and would elicit his response and if upon such exercise undertaken by the Collector of the district, it is found that the respondent no.3 was junior to the petitioner, he would pass his order deciding the inter-se seniority between the petitioner and respondents. The petitioner would also be entitled for consequential relief and if he has not been promoted till date and if there be also no other post for accommodating the petitioner in senior selection grade Stenographer on account of the promotion of the respondent no.3, he will pass necessary order for reversion of the respondent no.3 by giving such promotion to the petitioner. If, however the petitioner has already been promoted in senior selection grade during the pendency 7 of this writ application, he would only shift the date of promotion of the petitioner from the date of promotion of the Respondent no.3 so that the petitioner does not suffer in any manner in his promotion in future. Let it be noted that despite service of notice on the counsel for the respondent no.3, no one had appeared on behalf of the respondent no.3 to represent his case. If, however, the Collector of the district would find that the respondent no.3 was senior to the petitioner, he would only pass a reasoned order indicating the grounds on which the respondent no.3 has to be treated senior to the petitioner. At this stage, this Court also must take note of the grievance of the intervener Raj Kumar Jha whose interlocutory application was directed to be considered at the time of hearing vide an order dated 25.1.1999. The grievance of Raj Kumar Jha, the intervener, is that even when the petitioner is not qualified to hold the post of P.A. to the Collector, the pendency of this writ application or stay order passed therein has 8 adversely affected the filling up and his continuance on the post of P.A. to Collector. In this regard, Mr. Narmedeshwar Jha, learned counsel for Raj Kumar Jha, the intervener, has submitted that the petitioner is not a Graduate and, therefore, he is not entitled for being considered for the post of P.A. to Collector and, therefore, the claim of inter- se seniority between the petitioner and the respondent no.3 in no event will have any bearing on filling up the post of P.A. to Collector. Since the post of P.A. to Collector is not the subject matter of this writ application and unfortunately a stay order was passed by this Court on 27.8.1997 staying the appointment on the post of P.A. to Collector on a wrong impression created by the petitioner, the grievance of the intervener Raj Kumar Jha, who was authorized to work on the post of P.A. to Collectorate, seems to be genuine. Nonetheless, as the post of P.A. to Collector has not been filled up in view of the interim order passed by this Court on 27.8.1997, this Court while 9 vacating the said stay order dated 27.8.1997 would direct the Collector of the West Champaran district to examine this issue separately as to whether the petitioner was eligible for being appointed on the post of P.A. to the Collector in terms of the statutory rules as clarified in the notification dated 21.1.2000 requiring filling up the said post not only on the recommendation of the Divisional Commissioner but also prior approval of the Member, Board of Revenue. If, therefore, the Collector of the district would find that the petitioner, the Respondent no.3 and/or any other persons including the intervener, namely, Raj Kumar Jha is eligible for appointment on the post of P.A. to Collector, he will make his separate recommendation to the Commissioner of the Division, which will be thereafter filled up in a period of six months from the date of receipt/production of a copy of this order strictly in accordance with law and on the basis of the existing rules. This Court hopes and believes that the entire exercise as with regard to 10 deciding the inter-se seniority between the petitioner and the respondent no.3 as also grant of promotion to the petitioner on the post of Senior Selection grade post of Stenographer and making recommendation to the Divisional Commissioner for filling up the post of P.A. to Collector, will be completed within a period of four months from the date of receipt/production of a copy of this order. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)