CIVIL WRIT JURISDICTION CASE No.1768 OF 2005 In the matter of an application under Articles 226 and 227 of the constitution of India; BAL KRISHAN SAHAY----------------------------------------Petitioner Versus THE STATE OF BIHAR & ORS----------------------------Respondents With CWJC No.10101 oF 2009 1.MAHENDRA JHA 2. RAVINDRA KUMAR SINHA 3.RAMBABU SINGH ------------------------------------- Petitioners Versus THE STATE OF BIHAR & ORS----------------------------Respondents With CWJC No.8403 oF 2010 1-SURENDRA KUMAR SINHA S/O SHRI DEO NARAYAN PRASAD R/O MOH PUNAICHAK, OLD POST OFFICE BUILDING, SCHOOL ROAD, P.S.SACHIVALAYA, DISTT-PATNA-----(Appellant) Versus 1-THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY null GOVT. OF BIHAR, PATNA-----(Respondents) 2-THE ENGINEER IN CHIEF CUM SUPPL. SECRETARY CUM ADDITIONAL COMMISSIONER, RCD null GOVT. OF BIHAR, PATNA-- ---(Respondents) 3-THE PRINCIPAL SECRETARY CUM COMMISSIONER, ROAD CONSTRUCTION DEPARTMENT null GOVT. OF BIHAR, PATNA----- (Respondents) 4-THE SECRETARY, ROAD CONSTRUCTION DEPARTMENT null GOVT. OF BIHAR, PATNA-----(Respondents) 5-THE DEPUTY SECRETARY, ROAD CONSTRUCTION DEPARTMENT null GOVT. OF BIHAR-----(Respondents) 6-THE CHAIRMAN , BIHAR PUBLIC SERVICE COMMISSION null PATNA-----(Respondents) 7-THE SECRETARY, BIHAR PUBLIC SERVICE COMMISSION null null-----(Respondents) 8-JOINT SECRETARY , ROAD CONSTRUCTION DEPARTMENT null GOVT. OF BIHAR, PATNA-----(Respondents) 9-DEPARTMENT OF PERSONAL THROUGH SECRETARY null GOVT.OF BIHAR, PATNA-----(Respondents) 10-YOGENDRA PD. SINGH S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) 11-NARESH KUMAR GUPTA S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) 12-BHUWANESHWAR YADAV S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) 13-CHANDESHWAR RAI S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) 2 14-CHOTE LAL PRASAD S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) 15-BABU LAL PRASAD S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) 16-MD. SAIFULLA S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA---- -(Respondents) 17-RAJENDRA MISHRA S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) 18-VIJAY KUMAR S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA---- -(Respondents) 19-KASHI NATH SHA S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) 20-AWDHESH KUMAR S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) 21-MAHESH PRASAD S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) 22-HARISHANKAR SAH S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) 23-BINOD KUMAR S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA---- -(Respondents) 24-BABLOO KUMAR S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) 25-KAMLESH KUMAR S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) 26-ANIL KUMAR SHARMA S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) 27-BINOD KUMAR JHA S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) 28-RANJIT KUMAR S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) 29-BAL KRISHNA SINGH S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) 30-AJAY KUMAR SINHA S/O NOT KNOWN THROUGH JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT , GOVT. OF BIHAR, PATNA-----(Respondents) With CWJC No.14313 oF 2008 1.RAJIV NAYANAM 2. SANJEEV CHOUDHARY 3. SUDHAKAR KUMAR 4.SUNIL KUMAR SINGH 5.RAMPUKAR SINGH 3 6.JITENDRA PRASAD SINGH 7.BIJAY KUMAR LAL 8.KEDAR PRASAD SAHU 9.MD. KAMALUDDIN KHAN 10. BINDA SINGH 11.MADAN PD. SINGH 12.NAWAL KISHOR SINGH 13. AMRENDRA SINGH 14. SANJAY KUMAR 15. SATYA NAND SINGH 16. RAJNI KANT TIWARY 17. RANA VIDYADHAR 18. AMRENDRA KUMAR 19.BINOD KUMAR GUPTA 20. RAGHUVANSH MANI 21.UMESH CHANDRA RAI 22.DILIP KUMAR 23.MADHURENDRA KUMAR 24. CHITRANJAN PD. SINGH 25. TARIQUE IMAM 26. PRABHAS CHANDRA 27. SACHIDA NAND MISHRA 28. SHIVSHANKAR KAPRI--------------------------------Petitioners Versus THE STATE OF BIHAR & ORS-----------------------------Respondents with CWJC No.2701 oF 2009 1.CHANDRA BHUSHAN PD.SINHA 2.SARFARAJ KHAN ---------------------------------------PETITIONERS Versus THE STATE OF BIHAR & ORS----------------------------Respondents ----------- For The Petitioner :MUKUL SINHA For The Respondent :(GP3) For The Petitioner :RAM NARESH SHUKLA For The Respondent :(AAG11) For The Petitioner :SANJEEV KUMAR For The Respondent :(AAG11) For The Petitioner :SANJEEV KUMAR For The Respondent :(AAG11) For The Petitioner :SANJEEV KUMAR For The Respondent :(AAG11) P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA Mridula Mishra,J:- Petitioners in all these writ applications were appointed in the year 1997, 1998 and lastly in the 4 year 2007 as Assistant Engineers in the Joint Cadre of Road/Building Construction Department, Government of Bihar. They were applicants for appointment against Advertisement No. 93 of 1985. Petitioners are claiming their notional seniority, and placement in the gradation list of Assistants Engineers of Road/Building Construction Department, just below the last person appointed on 13.2.1989, against the vacancy in the General Category, in pursuant to Cabinet decision dated 2.2.1988. Petitioners, thus claim to be senior to respondents, who were appointed in reserved category pursuant to advertisement No. 93 of 1985, as well as against subsequent vacancies, pursuant to advertisements published subsequently. 2. Advertisement No. 93 of 1985 was published by the Bihar Public Service commission on 13.10. 1985 for appointment of 245 regular Assistant Engineers in the joint Cadre of Road/Building Construction Department. The selection process started, continued, viva voce held and subsequently the State Government sent requisition to the Bihar Public Service Commission vide letter dated 20.5.1986 and 10.6.1986 that total 738 vacancies available in works departments till 20.8.1986 will be filled from the panel of Advertisement No. 93 of 1985. The Bihar Public Service Commission on 6.4.1987 sent names of 593 general candidates, 273 reserved candidates and 5 more posts 5 falling vacant on account of non-joining. Thus total posts were filled and 593 candidates from general category, 273 from reserved category and 5 more candidates were finally appointed and thus, the transaction initiated vide Advertisement No. 93 of 1985 was almost closed. After the first transaction of appointment was coming to closure, on 2.2.1988, the Cabinet took a decision to fill up all vacancies till 31.12.1987, from the panel of Advertisement No. 93 of 1985. On the basis of this cabinet decision 702 general candidates, 11 economically backward candidates were recommended and last person appointed under general category was Rajesh Kumar Mishra on 13.9.1989. Since all the posts of general category were filled up and reserved posts for Scheduled Castes and Scheduled Tribes remained vacant, the Cabinet took decision to fill up these posts by issuing fresh advertisement. Pursuant to this Cabinet decision, the State took a decision dated 28.4.1988 that Road Construction Department, which was the Nodal Department will send special requisition to the Bihar Public Service commission for filling up posts reserved for Scheduled Castes and Scheduled Tribes by publication of fresh advertisement. The request was sent to the Bihar Public Service Commission for filling 77 post of Scheduled Castes, 55 for Scheduled Tribes, 181 for Economically Backward Category, 42 for Backward Category, 2 for 6 Economically Backward Women Category and 35 for women. The Bihar Public Service commission vide letter dated 12.12.1988 informed the Secretary, Road Construction Department that advertisement had been issued for 392 reserved posts and interview were held from 1.10.1988 to 13.10.1988. It was also informed that 175 posts reserved for Scheduled Castes and Scheduled Tribes remained unfilled as suitable candidates were not available. 3. Advertisement No. 1 of 1994 was published for filling vacancies of Scheduled Castes and Scheduled Tribes candidates and advertisement no. 16 of 1994 for filling vacancies in extremely backward category. Despite these advertisement vacancies of all posts in reserved category could not be filled. There remained 72 vacancies in S.T. category which was being carried forward through three consecutive advertisements. So far general category candidates are concerned, all vacancies were already filled and last appointee was Rajesh Kumar Mishra. Since reserved posts, as per Cabinet decisions were decided to be advertised for three years, 387 persons in the panel of general category could not be appointed. Writ applications, such as CWJC Nos. 2093 of 1989, 526 of 1990 and 3072 of 1990 were filed for a direction to fill up all the vacancies available till 31.12.1987, as per the Cabinet decision dated 2.2.1988. CWJC No. 2093 of 1989 and analogous cases 7 were allowed vide order dated 18.5.1990, in terms of a consent order of the parties. A direction was issued for taking steps in the light of the Cabinet decision dated 2.2.1988 and to identify vacancies. Life of panel was directed to remain alive, till all vacancies till 31.12.1987 were filled. The State of Bihar filed Civil Appeal No. 7517-20 of 1996 against the order passed by the High Court. The Apex Court confirmed the order passed by the High Court and directed for filling up vacant posts in terms of the cabinet decision dated 2.2.1988. The Supreme Court also directed that the Government will make fresh exercise to identify whether there exist vacancies either for general category candidates or for reserved category candidates and if so, report it to High Court and fill up these vacancies from amongst the candidates in the waiting list. 4. Subsequently the state filed an Interlocutory application in CWJC No. 2093 of 1989, in compliance of the Supreme Courts’ direction, informing the High Court that no vacancies are available in General Category occurring prior to 31.12.1987, except 72 vacancies in reserved ST category. The Interlocutory application was dismissed, with a direction to comply the earlier order passed in writ application. However, the State remained inactive, as such contempt petitions were filed. In the show cause filed on behalf of the Secretary, Road Construction Department, 72 vacancies 8 available in S.T. category were admitted, since these vacancies were being carried forward for three years, as such the Government decided to de-reserve these posts. During the pendency of the contempt application, the State Government issued notification contained in memo No. 5640 (s) dated 25.8.1997 and appointed petitioners against the 72 vacancies in reserved category, which were de-reserved by cabinet decision. Since these vacancies were available prior to 31.12.1987, as such the petitioners who were applicants, of aforesaid advertisement and also in the waiting list, were appointed against 72 posts. One post out of 72 still remained vacant, as such CWJC No.767 of 2001 was filed by the petitioner of CWJC No. 1768 of 2005 for his appointment against the one vacancy and he was appointed against that vacancy. CWJC No. 1768 of 2005 has been filed by him claiming seniority with effect from 27.6.1987 i.e. the date since he was appointed on ad-hoc basis. 5. Petitioners have challenged the gradation list on the ground that persons who were obviously juniors to them on account of being appointed pursuant to subsequent advertisements have been shown senior to them in the gradation list. They have been considered senior to petitioners on account of their joining prior to the petitioners. Subsequent to advertisement No. 93 of 1985, BPSC has advertised vacancies for appointment of Assistant Engineers 9 in the year 1988, 1989,1990,1991,1995 and 1997 and near about 300 appointments had been made. Petitioners’ grievance is that the Government, contrary to norms, regulations and precedents, have shown respondents senior to the petitioners, merely in view of the date of appointment, ignoring the fact that all appointees of Advertisement No. 93 of 1985 should have been placed higher to the appointees of subsequent advertisement. In the gradation list appointees of subsequent advertisement had been placed in between 656 to 1148. Petitioners are claiming that they should be placed above Serial no. 656 in the gradation list. 6. Petitioners’ claim of notional seniority is based on the ground that they belonged to the panel prepared by the Bihar Public Service Commission vide Advertisement No. 93 of 1985, and pursuant to Cabinet decision dated 2.2.1988, their appointment should be considered to be in the same transaction. They, for this reason, should be taken to have been appointed along with the last person appointed under General category i.e. Rajesh Kumar Mishra. Since, petitioners’ appointment process was also initiated vide advertisement no. 93 of 1985. They were empanelled for appointment against vacancies occurring prior to 31.12.1987, they should have been allowed seniority, just below Rajesh Kumar Mishra, in the Gradation list. Petitioners’ claim of seniority over the respondents and others is also 10 based on the submission that High Court vide its order dated 21.1.1995 passed in CWJC No. 2093 of 1989 and connected writ applications had directed to fill up the vacant posts from the panel prepared by the Bihar Public Service Commission (Annexed as Annexures 2,4 and 5 of the writ applications). On the other hand counsel appearing for the respondents submits that the list of candidates contained in these Annexure is not a panel prepared according to merit, but simply a list of all appearing candidates showing their marks obtained in the interview have been enlisted. Petitioners have further based their claim on the basis of the order passed by the Supreme Court in Civil Appeal No. 7516- 17/1996 dated 8.4.1996. According to the petitioners, these two judgments have finally clinched the issue also for the purpose of fixing their seniority. Petitioners have placed reliance on two case laws, namely, (1998) 5 SCC 246 (Surendra Narain Singh Vs. State of Bihar and others) and (2008) 7 SCC 728 ( Balwant Singh Narwar Vs. State of Bihar and others). These decisions have been cited by the petitioners on the point that if appointments made or ought to have been made, out of the same transaction, seniority must be given notionally from the date appointment ought to have been made, but on account of some legal impediment, the same could not be done. 11 7. Advertisement No. 93 of 1985 was originally published for selection of Assistant Engineers only for 245 posts but more vacancies were added thereto and the Bihar Public Service commission sent additional names for filling 593 posts in General Category, 273 in reserved category and 5 posts which had earlier remained vacant on account of non-joining. Total 871 posts were filled and the transaction initiated through advertisement No. 93 of 1985 almost reached to a closure. So far these writ petitioners are concerned, they could not have been appointed because they were not within the consideration zone of 593 candidates in general category. This was the reason that they were left out in the first transaction of appointment. However in the light of the cabinet decision dated 2.2.1988 cut off date regarding vacancies was extended and some more vacancies occurring up till 31.12.1987 were decided to be filled from the panel of Advertisement No. 93 of 1985. On the basis of the Cabinet decision additional 702 general candidates, 11 economical backward candidates were recommended for appointment. Out of that 315 candidates in general category were appointed on 13.9.1989 and the second transaction was also closed. Till the second phase of appointment, petitioners were no where in the consideration zone. Only vacancies in the reserved category for SC and St remained vacant. These posts as per cabinet decision were re- 12 advertised with some more vacancy in the reserved category, which occurred later on. The vacancies in the reserved category were advertised on three occasions. But on account of non-availability of the Scheduled Tribe candidates 72 posts in the ST category still remain unfilled, which was subsequently de-reserved and the petitioners were appointed against those posts. All these facts indicate that so far petitioners’ appointments are concerned, it cannot be said to be appointments in the same transaction. The first transaction ended when 593 from general category, 273 from Reserved category and 5 posts falling vacant due to non-joining were filled. Second transaction started in view of cabinet decision dated 2.2.1988 and all vacancies till 31.12.1987 were decided to be filled from the panel of advertisement no. 93 of 1985. On the basis of this decision also total 702 appointments, ( 315 in general category) and other reserved category were made. Till then also petitioners were no-where within the consideration zone. Only when reserved posts were advertised through three different advertisement and still 72 posts in ST category remained unfilled a decision was taken to de-reserve these posts. Petitioners were appointed through notification in the year 1997, 1998 and 2007 on the post reserved for ST, subsequently decided to be de-reserved, in order to comply the direction of the High Court and the Supreme Court. I do 13 not find any merit in the submission of the petitioners that their appointments being in the same transaction, they are entitled for notional seniority with effect from the date the last candidate in the general category was appointed from the panel of advertisement No. 93 of 1985. 8. So far two case laws, namely, ( 1998) 5 SCC 246 (Surendra Narain Singh Vs. State of Bihar and others) and (2008) 7 SCC 728 ( Balwant Singh Natwar Vs. State of Bihar and others) are concerned, I do not find any applicability of these cases in the facts and circumstances of the present case. In both these cases the appointments could not be made on account of litigation and the interim order passed by the Hon’ble High Court and hence the court found that appointment of petitioners could have been taken place in the first transaction itself. Notional seniority was thus allowed in those cases. In those cases there were no dispute regarding vacancy and the appointment of petitioners were delayed entirely on account of litigation. So far the present applications are concerned, the appointment of petitioners were not delayed on account of any litigation. The petitioners could not be appointed simply because there were no vacancies in the general category. Only when ,subsequently, posts reserved in S.T. category remained vacant, even after three consecutive advertisements, a decision was taken to de-reserve these 72 posts, 14 petitioners’ got advantage and benefit of appointment. Since the petitioners have already got one advantage, there is no justification for giving the benefit of notional seniority. It is well settled law that notional seniority is permissible in exceptional circumstances, when there is some legal impediment in making appointment. No one can claim notional promotion as a matter of right or as a matter of course, as it is not a civil or statutory right. It is only awarded by the Court under Article 226 of the Constitution on the basis of equity, in cases of injustice and hardship caused by the circumstances beyond the control of the petitioners. In the present case, petitioners do not deserve exercise of discretionary power because apparently there is no case of injustice or hardship in their appointment, rather they have been benefited on account of their appointment on reserved posts, even though originally they did not compete for appointment in the general category. The so called delay in their appointment was not on account of any legal impediment or act of the State, rather had the rules regarding filling up the unfilled reserved post been properly implemented, petitioners might not have been appointed at all. Hence the petitioners cannot be given double benefit, one of appointment and another of notional promotion. 9. Petitioners have also prayed for quashing of part of the gradation list, whereby, appointees of Advertisement 15 No. 33 of 1988 and subsequent advertisements have been shown seniors to the petitioners. Petitioners’ case is that since respondent were appointed in pursuance to subsequent advertisements, through which vacancies occurring subsequently were advertised, as such respondents being appointee of subsequent advertisement cannot be treated to be senior to the petitioners. Counsel for the respondents on the other hand submits that the submission of the petitioners has no merit. Although, respondents were appointed on the basis of subsequent advertisement, admittedly they were appointed prior to the appointment of the petitioners. Petitioners were appointed against 72 posts reserved for ST category occurring prior to 31.12.1987. These vacancies were carried forward and advertised through three consecutive advertisements still due to non availability of suitable candidates, the posts remained vacant and the cabinet took decision to de-reserve the post only after de- reservation of the posts, petitioners could be appointed, though otherwise they could not have been appointed. The transaction through which the petitioners got appointed was not same through which all general category candidates were appointed pursuant to advertisement no. 53 of 1985. Petitioners’ appointment, as such, cannot be considered to be appointment in the same transaction, their appointment was made completely in different transaction, despite the 16 fact that the petitioners have been appointed against vacancies occurring prior to 31.12.1987. They cannot claim their seniority with retrospective date and their claim for notional seniority is not maintainable. I find much substance in the submission of the Respondents, for the reason that 72 posts against which petitioners were appointed were also part of advertisement no. 33 of 1988, pursuant to which some of the respondent were appointed. These vacancies were consecutively advertised up to 1994 and finally 72 posts were de-reserved. Only for the reason that the vacancies against which petitioners were appointed had occurred prior to 31.12.1987, they cannot claim their seniority over the candidates, who were appointed on the basis of subsequent advertisement, who admittedly joined much earlier to the petitioners. There is no reason for quashing of the part of the gradation list, whereby respondents appointed on the basis of subsequent advertisement have been shown senior to the petitioners in the gradation list. 10. Petitioners have also prayed for quashing of the part of the gradation list, whereby persons finally allocated to Jharkhand Cadre but subsequently re-allocated to Bihar Cadre on mutual transfer have been placed above the petitioners in the gradation list. Counsel for the petitioners submits that in terms of conditions in memo no. 14932 dated 17 21.11.2008, claim of seniority of any employee, who is allocated to Jharkhand Cadre and re-allocated to Bihar on mutual transfer basis would not be acceptable. In view of the matter, that respondents had been re-allocated to Bihar cadre on the basis of mutual transfer, they certainly would loose their seniority and should be placed in the bottom of seniority list of this cadre. In the counter affidavit filed on behalf of respondents falling in this category, it has been stated that they have wrongly been placed in the arena of the respondents by the petitioners. These respondents were appointed in the year 1987 much earlier to the appointment of the petitioners in the year 1997, 1998 and 2007. So far allocation of their cadre to the Jharkhand State is concerned, despite the fact services of Respondent no.30 was allocated to the State of Jharkhand, he was never relieved from the State of Bihar. He was retained in the State of Bihar and finally on mutual transfer basis re- allocated the Bihar State Cadre. Even if Respondent no.30 will loose his seniority, on account of mutual transfer, at best he will be placed at the bottom of the list of candidates appointed in 1987. In no case, Respondent could have been placed at bottom of entire gradation list. In this circumstance, there was no reason for losing their seniority on account of allocation and re-allocation of cadre on mutual basis. 18 11. It has also been submitted by the respondent No. 29 that so far new conditions regarding loosing seniority contained in memo no. 4781 dated 6th May, 2008 is concerned, otherwise also that has no application in his case. The respondents were reallocated Bihar State on the basis of mutual transfer prior to issuance of memo no. 4781 dated 6th May, 2008. So far provision under Section 73 of Bihar Re-organization Act and earlier circular in this respect are concerned, there was no such condition regarding loosing of seniority. It has also been stated that when the provisional gradation list was prepared in the year 1994, these petitioners had not even been appointed as Assistant Engineers in the department. In another provisional gradation list published after bifurcation of the State of Bihar also these Respondents were placed higher to the petitioners, though their was