IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12746 of 2004 DR.SATYENDRA KUMAR JHA S/O LATE UPENDRA NATH JHA, R/O SHREE BHAWAN, KAVI RAMAN PATH, BORING PS- BUDHA COLONY, DISTT- PAPTNA---PETITIONER Versus 1. THE STATE OF BIHAR 2. THE SECY. ART, CULTURE & YOUTH AFFAAIRS, DEPATT. GOVT. OF BIHAR, PATNA 3. THE JOINT SECY. ART, CULTURE & YOUTH AFFAIRS DEPATT. GOVT. OF BIHAR, PATNA 4. THE DIRECTOR, DIRECTORATE OF ARCHAEOLOGY, ART CULTURE& YOUTH AFFAIRS, DEPTT. GOVT. OF BIHAR, PATNA 5. THE DIRECTOR, DIRECTORATE OF MUSEUMS, ART, CULTURE & YOUTH AFFAIRS DEPTT. GOVT. OF BIHAR, PATNA 6. SECY. PERSONNEL & ADMINISTRATIVE REFORMS, DEPTT. GOVT. OF BIHAR, PATNA 7. DR. KUMAR ANAND, S/O BALRAM LAL, R/O SHIVPURI, BEUR ROAD, PO & PS- ANISABAD, DISTT- PATNA---RESPONDENTS. ----------- For the Petitioner: Mr. Dhirendra Jha-2 and Mr. K.C. Jha, Advocates For the State: Mr. A.N.Pandey, AC to GP-2. ---------- 3 6.8.2010 Heard learned counsel for the parties. It is a fight for seniority between the petitioner and private respondent no.7 which the petitioner has brought to the High Court in the present writ application. His claim for seniority made before the respondents stands rejected vide annexure-18 dated 24.8.2004. A brief background to the present dispute is necessary to be recorded as some of the facts and events have a bearing on the issue which has been raised by the petitioner. An Advertisement No. 16 of 1987 dated 13.12.87 was issued by Bihar Raj Awar Seva Chayan Parishad for recruitment on the posts of technical assistant for the Directorate of Archaeology and Museum. Based on the examination conducted for such recruitment, the selected candidates were recommended on the basis of their merit. The recommendation has been brought on - 2 - record by the petitioner as annexure-3. Annexure-3 is dated 29.9.88. In the said merit list the name of private respondent figured at serial no.2 and that of the petitioner at serial no.4. It now transpires from the counter affidavit that the private respondent has got 65 marks and petitioner 61.05 marks. After the selections were made and recommendation for their appointment forwarded, the Department of Art, Culture and Youth Affairs decided to bifurcate the Directorate of Museum and Archaeology, keeping in mind the nature of the work associated with the two Directorates. Those who came to be selected were appointed in the two Directorates according to their choice or option given to them. Petitioner was issued a letter of appointment and he joined the directorate of Archaeology. The notification is dated 5.10.88 contained in annexure-5. Private respondent with some others chose to join the Directorate of Museum as per notification no. 317 dated 6th October 1988. But soon thereafter, private respondent wanted to join the Archaeology wing and he made a request in this regard, which was accepted. He returned back, joined and thereafter a gradation list came to be prepared and issued which irked the petitioner because the private respondent, namely Dr. Kumar Anand was shown one notch higher than the petitioner in the final gradation list dated 16.12.2000. He represented to the respondents on the issue and the respondents have rejected his claim by impugned order contained in annexure- - 3 - 18. Submission of learned counsel is primarily two folds. The notification by virtue of which the petitioner was appointed has come to be issued at least a day earlier than the private respondent no.7. Not only this it is evident from the record itself that thereafter due to change of mind the private respondent joined the Directorate of Museum much later, which is about ten days. Since the joining of the private respondent in the Directorate of Archaeology is after the joining of the petitioner, therefore he is junior to the petitioner. The so called letter of appointment by virtue of which the private respondent joined is dated 15th of October, 1988 giving the private respondent seniority in this background would be unfair to the petitioner. Learned counsel for the petitioner also relied on a so called clarification or circular issued by the Department of Personnel which has been brought on record as annexure-16. This circular talks in terms of fixation of enter-se-seniority and petitioner presses the circular dated 26th August, 1972 in his support. He relies on paragraph 3 ( c)(iii) which is reproduced for ready reference:- 3 (c) (iii) “Where an incumbent is transferred from one service to another on his own request, services rendered by him in the previous posts shall not count for seniority. But in case such transfer follows a policy decision taken by the Government, his services in the previous post shall count for seniority.” He also relied on a decision of the Hon’ble Apex - 4 - Court rendered in the case of Baleshar Dass & others vrs. State of U.P. reported in AIR 1981 (SC) 41. Learned counsel for the State based on the assertions in the counter affidavit states that the decision communicated to the petitioner in annexue-18 is totally in conformity with the actual state of affairs and the status of seniority of the two employees. This would be evident from the basic fact that the private respondent figured higher on the merit list when the recommendation was made by Awar Seva Chayan Parishad after due selection. When the recruitment was made there was only one Directorate under the department of Art, Culture and Youth Affairs but for better functional arrangement two Directorates were separated and the candidates who were selected were bifurcated between the two Directorates. There never was any division of cadre, nor was the two Directorates treated as separate entity. In fact, there was movement of persons from one Directorate to other and it is not a case that the petitioner or the private respondent ended up in two different cadres when they came to be appointed after their selection. Since the bifurcation had taken place after selection there was some confusion with regard to allocation of the selected candidates between the two Directorates and the candidates themselves opted from one Directorate or the other and some even changed their mind as was the case of private respondent. Merely because the private respondent returned to the Directorate of Archaeology after being - 5 - initially chosen in the Directorate of Museum it does not mean that the initial seniority fixed by the Bihar Raj Seva Chayan Parishad got upturned or unseated. Right from the point of recommendation the private respondent did figure senior to the petitioner in the merit list since he was more meritorious. Movement from one Directorate to other at the time of initial appointment or recruitment will not make him junior to the present petitioner. Similar is the stand taken by the private respondent. In fact, he takes a stand that the averment made in the writ application by the petitioner is not only misleading but unfair because petitioner wants to somehow gain unfair advantage when admittedly he stood below the private respondent in the merit list, which he is not willing to talk about now. The Court has gone through the records, various notifications on which the selection and joining has taken place. Those were initial hitch at the time of recruitment. The respondents have done no wrong in holding that it is the seniority based on the recommendation of Karmachari Chayan Ayog which is being maintained by them. Rest of the issues sought to be raised by the petitioner is a bogey to upturn and initial merit list. The so called circular contained in annexure-16 does not cover the case of the present petitioner because it was not a case of transfer of private respondent from one service to another. Both, the petitioner and the private respondent were holding the post under the same department but it was just for a while that the private - 6 - respondent initially joined the Directorate of Museum and then decided to return to Archaeology within ten days of such arrangement. Reliance placed by the petitioner on the decision of the Hon’ble Apex Court has no application to the facts or to the law applicable in the present case. The seniority of the private respondent will have to be maintained by virtue of the position in the merit list recommended by Karmchari Chayan Ayog and the other factors pleaded by the petitioner will not make a difference to over all seniority since both, the petitioner and the private respondent have been appointed through a common mechanism and recommended on the same date on the merit and performance of the candidates in such a recruitment process. In the totality there is no infirmity in annexure-18 which requires interference in any manner. This writ application is dismissed being devoid of merit. RPS (Ajay Kumar Tripathi, J.)