IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2899 of 2009 Abhash Chandra Mandal & Ors Versus The State Of Bihar & Ors For the Petitioner: Mr. Sarvadeo Singh Md. Anjum Akhtar. For the State: Mr. Pushkar Narain Shahi, A.A.G. XIV Mr. Mritunjay Kumar Kumar, A.C. to A.A.G. XIV For Respondent Nos.4 to 6: Mr. Akashdeep, Adv. Mr. Shyameshwar Kr. Singh, Adv. For Respondent Nos.7 to 10, 12 & 13: Mr. Basant Kumar Choudhary, Sr. Adv. Mr. Bibhakar Tiwary, Adv. 5/ 19/08/2011 Heard learned counsel for the petitioner, the State and private respondents-4 to 13. The controversy in the present application relates to seniority inter se between direct recruits and promotees on the post of District Fisheries Officer- cum-Chief Executive Officer (hereinafter referred to as the D.F.O.) in the Bihar Fisheries Service, Class-2. The Animal Husbandry and Fisheries Service Recruitment Rules,1993, (hereinafter referred to as the „Rules‟) provide for direct recruitment on 50% posts of D. F. O and 50% posts are to be filled by promotion from the feeder post of Fisheries Extension Officer, a Class-3 service. A Fisheries Extension Officer was eligible to be promoted as a D.F.O. under the promotion quota rules after completing six year‟s of service in the feeder post. Respondent Nos.4 to 13 while holding the substantive post of Fisheries Extension Officer were 2 given officiating charge as D.F.O. from separate dates commencing on 17.6.1996 till 31.5.2001. By a notification dated 23.3.2007 they have been given retrospective seniority on the post of D.F.O. from the date of such officiating charge. Petitioners-1 and 3 were appointed as Fisheries Extension Officer in 2002. Petitioners -2 and 4 were appointed in 2003 and petitioner No.5 in 1994. They were thus junior to respondent Nos. 4 to 13 on the substantive post of Fisheries Extension Officer. The petitioners while working on the substantive post of Fisheries Extension Officer appeared at the recruitment examination conducted in the year-2005 for direct appointment against the 50% quota successfully and came to be appointed as D. F. O. under a recommendation dated 12.8.2005. On the date that the petitioners were appointed as D. F. O. after selection, the private respondents were already holding officiating charge of D.F.O. since earlier. The petitioners are aggrieved by the retrospective grant of seniority over them to the private respondents 4 to 13 on the post of D.F.O. from the date of such continuous officiation by the order dated 23.3.2007. Learned counsel for the petitioners submitted that he does not question grant of retrospective 3 seniority to those prior to 23.5.2001. Private respondents Bidyapati Jha, Subodh Kumar Shrivastava, Bijendra Kishore Das and Sunil Kumar therefore fall outside the present discussion. That effectively leaves 7 private respondents so given officiating charge of D.F.O. on 23.5.2001/26.5.2001/31.5.2001. Learned counsel for the petitioners acknowledges that vacancy existed in the promotional quota of D. F. O on the date that the private respondents were given officiating charge. But procedures under the Rules were not followed before such officiating charge was given by obtaining roster clearance, vigilance clearance and Lokayukta clearance. In fact, the process for roster clearance was initiated only in 2003-2004 and concluded on 13.2.2004. Respondents Dilip Kumar Singh, Gauri Shankar, Devendra Nayak, Suman Kumar, Subodh Kumar, Jay Prakash and Shailendra Kumar were given officiating charge till such time that recommendation for regular appointment from the Bihar Public Service Commission was not received. There is nothing to indicate that they were asked to officiate as D. F. O. against the 50% promotional quota. Consequent to the preparation of the 4 provisional gradation list of D. F. O. and inviting of objections, the petitioners filed their objections which have not been properly considered. The procedures prescribed in the Finance Department Notification dated 22.2.1988 have not been followed as no prior roster clearance was obtained for the officiating arrangement. Reliance was placed on (1993) 3 SCC 271 (STATE OF WEST BENGAL Versus AGHORE NATH DEY), (2008) 1 SCC 747 (R.K.MOBISANA SINGH Versus K.H.TEMBA SINGH AND OTHERS), (2008) 12 SCC 572 (STATE OF PUNJAB AND ANOTHER Versus ASHWANI KUMAR AND OTHERS), (2009) 6 SCC 428 (M.P. PALANISAMY AND OTHERS Versus A. KRISHNAN AND OTHERS) and AIR 1987 S.C.294 (Nilangekar Patil Versus Dr. Mahesh Madhab Gosabi and others). It was fairly acknowledged on behalf of the petitioners that if vacancy in the promotional quota existed on the date that officiating charge of D. F. O. was given and that in accordance with roster vacancy in the category of the private respondents was available, the petitioners could not stake a claim to seniority above the private respondents. It was also fairly acknowledged that the 5 petitioners had not disclosed in their pleadings that they were juniors to the private respondents on the substantive feeder post of Fisheries Extension Officer. The petitioners have therefore voluntarily concealed a relevant fact from the Court. It was their bounden duty to make full disclosure of all relevant facts. Learned counsel for the State urged that vacancies existed in the promotional quota since 1991. The proceedings of the Departmental Promotion Committee of the Bihar Public Service Commission dated 5.4.2006 and by which the decision to grant retrospective promotion from the date of officiation by the private respondents was given, adequately discusses and recites that it was done against the 18 posts available from the promotion quota, approval from internal vigilance and the office of the Lokayukta. The roster clearance of 2003-2004 referred to on behalf of the petitioners was only a fresh additional exercise carried out after the bifurcation of the State to ensure that no promotions even with retrospective effect were granted contrary to the roster. The private respondents were given officiating charge in 2001 as D. F. O. as they fulfilled all other conditions of eligibility including six years of service as Fisheries Extension Officer. Since the private respondents were 6 lawfully officiating against their own quota they are entitled to their seniority from the date of continuous officiation. Roster clearance was in fact taken on 11.9.1986 before the officiating charge was given to any. In fact, the roster point against each of the private respondents is also mentioned in the order dated 23.3.2007 giving them retrospective promotion. Reliance has been placed on (1999) Supp. 1 SCC 335 (BALDEO PRASAD AND OTHERS Versus AKHOURI SACHINDRA NATH AND OTHERS). Learned counsel for the private respondents supported the argument of the State. It was contended that their officiating charge as D. F. O. was fully in accordance with law and therefore they are entitled to count their period of officiation retrospectively for purposes of seniority. The petitioners did not place relevant facts before the Court and have surreptitiously tried to steal a march over the private respondents. The writ application should be dismissed on this ground alone. The question for determination by the Court therefore is (a) if the private respondents fulfill 6 years of service as Fisheries Extension Officer to be eligible for promotion as D.F.O. from the feeder post (b) if 7 vacancy was available on the post of D.F.O. under the 50% promotion quota when they were given officiating charge (c) if such officiating charge was in accordance with the roster and is vigilance clearance available from the date of such officiation. If these requirements are fulfilled, no error can be found with grant of retrospective seniority to them. Conversely, if the officiation was contrary to law and rules, purely as an ad hoc working arrangement no benefit of retrospective seniority can follow. That the petitioners may have been junior to the private respondents on the feeder post of Fisheries Extension Officer may be a relevant fact but not a necessary fact to hold them guilty of suppression for dismissing the writ application. Availability of vacancy on the post of D.F.O. against the promotional quota on the date that such officiating charge was given to the private respondents is not denied by the petitioners. Likewise, it is not denied that vacancy as per the roster point also was available. The contention of the petitioners is that it was a post facto exercise. That does not appear to be correct as the respondents have also referred to the roster clearance of 1986 reiterated in 2003 and that no appointments against the promotional quota had been made since 1991. There is no objection against the 8 private respondents either by vigilance or the Lokayukta as on the date of such officiating charge. In the case of Aghorey Nath Dey (supra) it has been held at paragraph-22 and 25 as follows:- “22…. It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed „according to rules‟. The corollary set out in conclusion (A), then is, that „where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot be taken into account for considering the seniority‟. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. 25. In our opinion, the conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules. This is clear from the opening words of the conclusion (B), namely, „if the initial appointment is not made by following the procedure laid down by the „rules‟ and the latter expression „till the regularisation of his service in accordance with the rules‟. We read conclusion (B), and it must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at 9 the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. In such cases, the deficiency in the procedural requirements laid down by the rules has to be cured at the first available opportunity, without any default of the employee, and the appointee must continue in the post uninterruptedly till the regularisation of his service, in accordance with the rules. In such cases, the appointee is not to blame for the deficiency in the procedural requirements under the rules at the time of his initial appointment, and the appointment not being limited to a fixed period of time is intended to be a regular appointment, subject to the remaining procedural requirements of the rules being fulfilled at the earliest. In R.K. Mobisana Singh (supra) it was held at paragraph- 40, 41 and 42 as follows:- “40……. When promotion is given only in the exigency of situation without following the Rules, the period cannot be counted towards seniority. 41. If they had been given regularisation with retrospective effect, the same by itself may not be a ground to apply the said order ipso facto for determining the inter se seniority…..” 42…. If the Rules were not followed at the time of grant of promotion, question of grant of regularisation with retrospective effect would not arise…….” In Ashwani Kumar (supra) the facts were 10 entirely different as noticed at paragraph-5 of the judgment and therefore it has no application to the facts of the present case. In M.P. Palanisamy, (supra) it was held that an appointment made in public interest owing to emergency otherwise than in accordance with procedure prescribed under the Rules cannot count for purposes of seniority as such appointment is stop gap or a fortuitous arrangement. The case of Shivaji Rao (supra) is not relevant as noticed from paragraph-38 of the judgment sought to be relied upon. The case does not relate to inter se seniority between direct recruits and promotees. The relevant extract of the principles with regard to determination of seniority between promotees and direct recruits culled out from paragraph-47 in (1990) 2 SCC 715 (DIRECT RECRUITS CLASS 2 ENGINEERING OFFICERS‟ ASSOCIATION Versus STATE OF MAHARASHTRA) is as follows:- “47. To sum up, we hold that: (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the 11 seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. The question again fell for consideration in (1991) Sup. 1 SCC 334 (STATE OF BIHAR AND OTHERS Versus AKHAURI SACHINDRA NATH AND OTHERS) as follows:- “6. The sole question which falls for decision in these appeals is whether the inter se seniority between the petitioners- respondents 1 to 5 who are direct recruits and the Overseers belonging to the Bihar Subordinate Engineering Service (Irrigation Department) who had been promoted retrospectively in their 25 per cent quota for the year 1958 as revised by the government orders mentioned in annexures 8, 9 and 10 to the writ petition, is arbitrary, illegal and inoperative as those orders purport to affect prejudicially the seniority of the petitioners-respondents 1 to 5 in the service of Bihar Engineering Service, Class II….” 11. …..For the purpose of determining seniority among promotees, the petitioners should be treated as having been appointed to permanent vacancies from the respective dates of their original appointment and the “entire period of officiating service performed by them should be taken into account as if that 12 service was of the same character as that performed by the substantive holders of permanent posts.” In (2006) 10 SCC 346 (UTTARANCHAL FOREST RANGERS‟ ASSOCIATION (DIRECT RECRUIT) AND OTHERS Versus STATE OF U.P. AND OTHERS) the it was held at paragraphs 37 as follows:- “37. We are also of the view that no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre so as to adversely affect the direct recruits appointed validly in the meantime, as decided by this Court in Keshav Chandra Joshi v. Union of India held that when promotion is outside the quota, seniority would be reckoned from the date of the vacancy within the quota rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be counted from that date and not from the date of his earlier promotion or subsequent confirmation. In order to do justice to the promotees, it would not be proper to do injustice to the direct recruits. The rule of quota being a statutory one, it must be strictly implemented and it is impermissible for the authorities concerned to deviate from the rule due to administrative exigencies or expediency.” The aforesaid discussion leads to the conclusion that the private respondents have completed six years of service on the feeder post, they were given officiating charge against the promotional quota vacancies as per roster on the post of D F O. The 13 officiating charge was neither contrary to rules nor fortuitous in nature. They are thus held entitled to retrospective seniority from the date of such continuous officiation and the order dated 23.3.2007 requires no interference. The writ application is dismissed. KC ( Navin Sinha, J.)