IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1292 of 2009 ***** 1. CHANDRA SHEKHAR PRASAD RAJAK S/O LATE GOPI RAM PRESENTLY POSTED AS JUNIOR ENGINEER, BUILDING CONSTRUCTION DEPT. HAVING HIS PERMANENT ADDRESS AT VILLAGE AND POST- KADIRAGANJ, P.S.- NAWADAH, DIST.- NAWADAH-805104. …. …. Appellant/Petitioner Versus 1. THE STATE OF BIHAR THROUGH ITS PRINCIPAL SECRETARY, ROAD CONSTRUCTION DEPT., VISHWESHWARAYA BHAWAN, BAILEY ROAD, BIHAR, PATNA 2. PRINCIPAL SECRETARY ROAD CONSTRUCTION DEPT., VISHWESHWARAYA BHAWAN, BAILEY ROAD, BIHAR, PATNA 3. ENGINEER-IN CHIEF-CUM-ADDITIONAL COMMISSIONER-CUM- SPECIAL SECRETARY, ROAD CONSTRUCTION DEPT., VISHWESHWARAYA BHAWAN, BAILEY ROAD, PATNA 4. DEPUTY SECRETARY ROAD CONSTRUCTION DEPT., PATNA SECRETARIAT, PATNA. …. …. Respondents/Respondents ----------- For the Appellant : Mr. Naresh Dikshit, Advocate For the State : Mr. P.K.Verma, AAG-XI ------------ 2. 18.3.2010. Heard Mr. Naresh Dikshit learned counsel for the appellant and Mr. P.K. Verma, learned counsel for the State. The appellant being grieved by communication dated 18.8.2009 issued by the Engineer-in Chief -Cum- Additional Commissioner -Cum- Special Secretary, Road Construction Department, Patna rejecting his prayer for grant of seniority for the services rendered in Patna - 2 - Regional Development Authority (for short „PRDA‟) preferred the writ petition for quashment of the same. It was contended before the learned Single Judge that he was appointed in PRDA on 26.11.2990 and thereafter he was appointed in Road Construction Department of the State Government with effect from 30th September, 1995 and was extended the benefit of seniority by the State Government vide Annexure-9 dated 6.2.1997 and hence, could not have been disturbed. It is not disputed at the Bar the said conferral of benefit of seniority was rectified vide order dated 10.3.2003 vide Annexure-12. Thereafter as the factual matrix would show the seniority position was restored vide Annexure-14 dated 28.10.2005. The same was again rectified by order dated 23.12.2008 contained in Annexure-19. The said order dated 23.12.2008 was again rectified by vide order dated 22.5.2009 as per Annexure-21. The same order came to be assailed in C.W.J.C. No. 7955 of 2009 and this Court by order dated 14.7.2009 directed a remit to the competent authority to afford him an opportunity and to take a decision. Thereafter as is evident the communication dated 18.8.2009 - 3 - contained in Annexure-27 was issued. It is submitted by Mr. Dikshit, learned counsel for the appellant that the department has been playing hide and seek with the petitioner as far as determination of his seniority is concerned, which puts an employee in a state of flux, is not to be appreciated. It is urged by him the services rendered by him in PRDA deserves to be computed for the purpose of determination of seniority and that having been done at one point of time could not have been dislodged later on. Per contra, Mr. Verma, learned counsel for the State submitted that the services rendered by the appellant in PRDA could not have been counted as PRDA is a statutory authority constituted under the Bihar Regional Development Authority Act, 1981 and services rendered in a statutory corporation, unless there is a prescription by the rule or an administrative order cannot automatically be computed for the purpose of seniority. At this juncture, we may note with profit that Mr. Dikshit has invited our attention to a decision rendered in B.S.Bajwa & Another v. State of Punjab & Others, (1998) - 4 - 2 SCC 523, especially to paragraph 7 of the said decision, We proceed to reproduce the said paragraph: - “Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the Single Judge and, therefore, the judgments of the Single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of laches because the grievance was made by B.S. Bajwa and B.D. Gupta only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystallized which ought not to have been reopened after the lapse of such a long period. At every stage others were promoted before B.S. Bajwa and B.D. Gupta and this position was known to B.S. Bajwa and B.D. Gupta right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be reopened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ petition.” Relying on the said paragraph it is urged by Mr. Dikshit that the seniority position should not be disturbed at a belated stage as it has been done in the case at hand, hence communication issued by the competent authority of - 5 - the State Government is vulnerable and the concurrence with the same by the learned Single Judge by order in the writ petition is indefensible. The aforesaid submission of Mr. Dikshit on a first flush looks quite attractive and as a proposition of law is right but it would depend upon the facts and circumstances of the case. In the case of B.S.Bajwa & Another (supra) the Apex Court has stated with regard to acceptance of seniority position by the seniors as a consequence of which the juniors marched ahead and once they had accepted and did not challenge the same their Lordships unsettled the order of the High Court wherein an interdiction was made. In this regard, we may refer to decision in P. S. Sadasivaswamy, Appellant v. State of Tamil Nadu, Respondent, A.I.R. 1974 S.C. 2271, wherein their Lordships have held thus: - “… … … A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to - 6 - happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner‟s petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. … … …” The purpose of referring to the aforesaid decision is only to indicate that once a seniority position is acceded to by a senior person, he cannot rise from the slumber and agitate the same after along lapse of time. But the facts in the present case are absolutely different. There is no rule to compute the period of service rendered in PRDA for the purpose of conferral of benefit of seniority in the State Government. As is noticed, the appellant was appointed in the Road Construction Department on the basis of an advertisement. Thus, there is no shadow of doubt it was the first appointment in the State Government. An incumbent who was not in State Government service cannot put forth the claim of seniority solely because he had rendered service in a statutory organization. The matter would have been different had the statutory corporation being absorbed in the State - 7 - Government or had there been a policy decision for the purpose of computing the service period. That being not the position even if there has been rectification and grant of restoration at times the petitioner cannot claim such a benefit which is total inconceivable in law. In view of the aforesaid analysis, we do not perceive any merit in this appeal and accordingly the same stands dismissed without any order as to costs. Pawan/ (Dipak Misra, CJ) (Mihir Kumar Jha, J)