Letters Patent Appeal No.1542 of 1995 With Letters Patent Appeal No.1543 of 1995 With Civil Writ Jurisdiction Case No.527 of 1994 With Civil Writ Jurisdiction Case No.394 of 1994 With Civil Writ Jurisdiction Case No.2640 of 1994 With Civil Writ Jurisdiction Case No.6770 of 1995 With Civil Writ Jurisdiction Case No.9420 of 1995 With Civil Writ Jurisdiction Case No.10143 of 1995 With Civil Writ Jurisdiction Case No.10144 of 1995 With Letters Patent Appeal No.718 of 2003 With Letters Patent Appeal No.120 of 1996 ......... Against the judgment and order dated 19.10.1995, passed by a learned Single Judge of this Court in CWJC No.6549 of 1995 and CWJC No.5937 of 1995, and in the matter of applications under Article 226 of the Constitution of India. ****** In LPA No.1542 of 1995: Ashok Kumar Khare, son of Late D.N. Khare, resident of Ravi Niketan, Opposite Arrah Garden, P.O. Bihar Veterinary College, P.S. Danapur, District Patna, at present Inspector of Police, Special Branch, posted at Airport, Patna. ..... Appellant. Versus 1. The State of Bihar. 2. The Home Secretary, Bihar, Patna. 3. The Director General of Police –cum- Inspector General of Police, Bihar, Patna. 4. Inspector General of Police, Special Branch, Bihar, Patna. ..... Respondents. ***** For the Appellant: Mr. Y.V. Giri, Senior Advocate with Mr. Raju Giri, Mr. Sanjeev Kumar and 2 Mr. Ashish Giri, Advocates. For the S t a t e: Mr. Narmdeshwar Jha, AAG 7 with Mr. Satyendra Kumar Jha, A.C. to AAG-7. ****** LPA No.1543 oF 1995: Krishna Chandra, son of late Ganga Das, resident of village Saidpur, P.S. Kanhauli, Distrit Vaishali, at present posted as Circle Inspector-Cum O/C, Kotwali P.S. Bhagalpur. ..... Appellant. Versus 1. The State of Bihar. 2. The Home Secretary, Bihar, Patna. 3. The Director General of Police –cum- Inspector General of Police, Bihar, Patna. 4. Inspector General of Police, Bhagalpur Range, Bhagalpur. .....Respondents. ***** For the Appellant: Mr. Y.V. Giri, Senior Advocate with Mr. Raju Giri, Mr. Sanjeev Kumar and Mr. Ashish Giri, Advocates. For the S t a t e: Mr. Narmdeshwar Jha, AAG 7 with Mr. Satyendra Kumar Jha, A.C. to AAG-7. ****** CWJC No.527 of 1994 Sachchidanand Singh, son of late Bodh Nath Singh, resident of Village Senduar, P.S. Janta Bazar, District Saran, at Present Special Branch Officer, Sursand, Sitamarhi. ..... Petitioner. Versus 1. The State of Bihar. 2. Director General of Police, Bihar, Patna. 3. Inspector General of Police, Spl. Branch, Bihar, Patna. .....Respondents. ***** For the Petitioner : None. For the S t a t e : Mr. Narmdeshwar Jha, AAG-7 with Mr. Satyendra Kumar Jha, A.C. to AAG-7 ****** 3 CWJC No.394 oF 1994 Kamdeo Singh, son of late Shyam Baran Singh, resident of Village-Alawalpur, P.S. Gaurichak, District Patna. ..... Petitioner. Versus 1. The State of Bihar. 2. Director General of Police, Bihar, Patna. 3. Inspector General of Police, Spl. Branch, Bihar, Patna. .....Respondents. ***** For the Petitioner : None. For the S t a t e : Mr. Narmdeshwar Jha, AAG-7 with Mr. Satyendra Kumar Jha, A.C. to AAG-7. ****** CWJC No.2640 of 1994: Sudarshan Pandey, son of late Ram Vyas Pandey, resident of village Simari, P.S. Simri, District Buxar, at present working as Sub-Inspector of Police, Town P.S., Samastipur, District Samastipur. ..... Petitioner. Versus 1. The State of Bihar. 2. Director General of Police, Bihar, Patna. 3. Deputy Inspector General Headquarter. .....Respondents. For the petitioner: None. For the Respondents: None. ***** CWJC No.6770 of 1995: Satyendra Prasad Deo, son of late Hari Prasad Deo, resident of Village Sangram Nodiha, P.S. Jasidih, distrit Deoghar at present posted as Dy.S.P. Headquarters, Dumka. ..... Petitioner. Versus 1. The State of Bihar. 2. Home Secretary, Government of Bihar, Patna. 3. Director General of Police, Bihar, Patna. 4. Brij Bihari Prasad, Superintendent of Police, Sheikhpura. 5. Ramjas Singh, Commandant, B.M.P.-V , Patna. .....Respondents. ***** 4 For the Petitioner : None. For the S t a t e : Mr. Narmdeshwar Jha, AAG-7 with Mr. Satyendra Kumar Jha, A.C. to AAG-7. ****** CWJC No.9420 of 1995: Bhim Pandey, son of Shri Nandji Pandey, resident of village Chausa, P.S. Buxar, district Buxar, at present working as Sub- Inspector of Police Hq. P.T., Bihar, Patna. ..... Petitioner. Versus 1. The State of Bihar. 2. Director General- cum- Inspector General of Police, Bihar, Patna. 3. The Deputy Inspector General, Head Quarters, Bihar, Patna. .....Respondents. ***** For the Petitioner : None. For the S t a t e : None. ***** CWJC No.10143 of 1995: Smt. Sushila Dwivedi, wife of Shri Sukdeo Dwivedi, resident of Flat No.3 (Inspector Flat), Lalbahadur Shastri Nagar, P.S. Shastrinagar, district Patna, at present working as Inspector of Police, Mahila Cell, Crime Branch, Bihar, Patna. ..... Petitioner. Versus 1. The State of Bihar, through Home Secretary, Govt. of Bihar, Patna. 2. Director General –cum- Inspector General of Police, Bihar, Patna. 3. Deputy Inspector General of Police, Headquarters, Bihar, Patna. 4. Inspector General of Police, Crime Branch, Bihar, Patna. .....Respondents. ***** For the Petitioner : N o n e . For the S t a t e: Mr. Narmdeshwar Jha, AAG 7 with Mr. Satyendra Kumar Jha, A.C. to AAG-7. 5 CWJC No.10144 of 1995: Binod Kumar Mishra, son of late Jaynandan Mishra, resident of Flat No.a/9 C.I.D. Colony, Shastrinagar, P.S. Shastrinagar, district Patna. ..... Petitioner. Versus 1. The State of Bihar,through Home Secretary, Govt. of Bihar, Patna. 2. Director General- cum- Inspector General of Police, Bihar, Patna. 3. The Deputy Inspector General of Police, Headquarters, Bihar, Patna. 4. Inspector General of Police, Special Branch, Bihar, Patna. .....Respondents. ***** For the Petitioner : None. For the S t a t e : None. ****** LPA No.718 oF 2003: 1. The State of Bihar. 2. The Home Commissioner, Government of Bihar, Patna. 3. The Director General and Inspector General of Police, Bihar, Patna. 4. The Inspector General of Police (Administration), Bihar, Patna. ..... Appellants. Versus Arun Kumar Sinha, son of Shri Maheshwar Prasad, resident of Village- Abhorda Pokhar, P.S. Laheria Sarai, District Darbhanga. .....Respondent. ***** For the Appellants: Mr. Ahshanuddin Amanullah, Standing Counsel No.17 For the Respondent: None. ****** L.P.A. No. 120 of 1996: 1. The State of Bihar. 2. The Home Commissioner, Bihar, Patna. 3. The Director General of Police and Inspector General of Police, Patna. 6 4. The Inspector General of Police (Administration), Bihar, Patna. ..... Appellants. Versus Ramashray Singh, son of Sri Kuldeep Narain Singh, Inspector of Police, C.I.D. (Food), Old Sectt., Patna. ..... Respondent. **** For the Appellants: Mr. Narmadeshwar Jha, AAG-7. For the Respondent: Mr. Tej Bahadur Singh, Advocate. ***** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL ***** S K Katriar, J. These matters raise the common question of grant or otherwise of the benefit of continuous officiation to the employees of the State Government in a situation where their cases were considered at the Range level and given officiating promotion to the next higher post, without consideration at the level of the Director General of Police (i.e. the State level), and also without taking into account the cases of all eligible candidates within the zone of consideration, accompanied with the situation that the continuous officiation has gone on for a fairly long length of time. 2. We shall first of all take up L.P.A. No.1542 of 1995 (arising out of C.W.J.C. No. 5937 of 1995), and L.P.A. No.1543 of 1995 (arising out of CWJC No.6549 of 1995). The petitioners of C.W.J.C. No.6549 of 1995, and C.W.J.C. No.5937 of 1995, have preferred the two appeals under the provisions of Clause 10 of the 7 Letters Patent of the High Court of Judicature at Patna and are directed against the common judgment dated 19.10.1995, whereby both the writ petitions were dismissed. 3. We shall draw the basic facts from the proceedings of C.W.J.C. No.5937 of 1995, except by specific reference to any other proceeding. According to the writ petition, the petitioner was appointed as Sub-Inspector of Police (hereinafter referred to as „S.I.‟) in 1975. After completion of training, he joined on 24.1.1976. He was confirmed on the post of S.I. with effect from 1.1.1978. At the meeting of the S.B. Range Selection Board held on 7.7.1981 (Annexure-14), presided over by the D.I.G., Special Branch, the petitioner was found fit for promotion as Inspector of Police. In view of the order dated 24.7.1981 (Annexure-1), the petitioner was allowed to officiate as Inspector with effect from 10.7.1981. His pay-scale as Inspector was accordingly fixed as per the order dated 10.2.1982 (Annexure-1/A herein). The petitioner was found fit for promotion to the post of Inspector at the meeting of the Director General Selection Board (previously known as Inspector General‟s Board), held in March/April 1985. The petitioner was thus substantively promoted to the post of Inspector of Police as per the order dated 29.4.1985 (Annexure-2 herein). It is further stated in the writ petition that the petitioner‟s ad hoc promotion on officiating basis as Inspector was recognised by the 8 State Government, vide its communication dated 16.9.1995 (Annexure 2/B herein). The State Government‟s notification dated 19.8.1995 (Annexure 2/C herein), reflected the same position. By order dated 28.6.1999 (Annexure-16), his services were confirmed as Inspector of Police with effect from 1.2.1993. He submitted his representation dated 6.8.1994 (Annexure-11), to fix his seniority with effect from 10.7.1981. The representation suffered inaction and, in the meanwhile, one Satyadeo Singh, Inspector of 1981 batch, was promoted to the post of Dy.S.P. with effect from July 1995. The petitioner was not given the benefit of continuous officiation with effect from 10.7.1981, as a result of which he was not given promotion to the post of Dy. S.P. leading to the aforesaid C.W.J.C. No.5937 of 1995, wherein it has in substance been prayed that the petitioner‟s seniority may be reckoned after giving him the benefit of continuous officiation as Inspector with effect from 10.7.1981, and the consequential reliefs. The learned Single Judge dismissed the writ petitions on the ground that the petitioner cannot be given the benefit of continuous officiation with effect from 10.7.1981, because the order dated 24.7.1981 (Annexure 1 herein), giving officiating promotion, was a mere stop-gap arrangement, and he was substantively promoted to the post of Inspector of Police by order dated 25.1.1986 (Annexure-2/A herein). It has, therefore, been concluded that the claim of the 9 petitioner to grant him the benefit of seniority in the rank of Inspector with effect from 10.7.1981, cannot be accepted. Hence this appeal. 4. While assailing the validity of the impugned order, learned counsel for the petitioner (the appellant herein) submits that, in view of the legal position that the Range Selection Board was the competent authority to make the recommendation for promotion to the post of Inspector, his promotion described as officiating promotion with effect from 10.7.1981 was after following the prescribed procedure and cannot be termed as stop- gap arrangement. He has taken us through various provisions of Bihar Police Manual, Vol-I, read with Appendix 72 of Vol. III. He next submits that, in view of the law laid down by the Supreme Court in the case of the Direct Recruit Class-II Engineering Officers’ Association and others vs. State of Maharashtra and others (A.I.R. 1990 SC 1607), the petitioner is entitled to the benefit of continuous officiation. He also submits that the Range Selection Board after all found him fit for promotion which has not been disapproved by the Director General‟s Board. He relies on the following reported judgments: (i) A.I.R.1990 S.C. 1607 (The Director Recruit Class-II Engineering Officers’ Association and others vs. State of Maharashtra and others); 10 (ii) A.I.R. 1981 S.C. 41 (Baleshwar Dass and others etc. vs. State of U.P. and others etc.). (iii) A.I.R. 2000 S.C. 2306 (State of Bihar and others vs. Kameshwar Prasad Singh and Another). (iv) (2000)8 S.C.C. 25 (Rudra Kumar Sain and others vs. Union of India and others), Paragraphs 20. 5. The learned Government counsel has supported the order of the learned Single Judge. 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. There are detailed provisions in the Bihar Police Manual to consider the case of eligible persons for promotion to the next higher post in the Bihar Police Force. Cases of promotion from the level of Sub-Inspector of Police to that of Inspector of Police are governed by Rule 649 of the Bihar Police Manual, sub-rules (a) (d) and (e) of which are relevant in the present context and are reproduced hereinbelow for the facility of quick reference: “649. Inspectors and Reserve Inspectors.- (a) The promotion of Sub-Inspectors to Inspectors, and Reserve Sub-Inspectors to Reserve Inspectors will be made by the Inspector-General on the advice of the Inspector General‟s Selection Board [Appendix 72(1)] (For period of probation, see Rule 668). Xxx xxx xxxx xxxx (d) The Range Selection Board [Appendix 72(3)] shall scrutinize the district nominations and shall select from among them in order of merit those 11 whose nominations are to be sent before the Inspector General‟s Selection Board [Appendix 72(1)] on a date to be fixed by the Inspector- General.” (e) The Inspector-General‟s Selection Board [Appendix 72(1)] shall scrutinize the nominations of the Range Selection Board and compile a list of selections which should ordinarily be in order of seniority for promotion as vacancies occur. If an officer is placed higher in the list than his seniority warrants a full note giving reason shall be recorded. This list shall be of as many Sub-Inspectors as there are vacancies plus few anticipatory vacancies depending on averages of last few years. Promotions by the Inspector-General under clause (a) shall be confined to this list but if any one does not get appointed from the list, his case shall be reviewed again at the time of preparation of the next year‟s list and if found fit, he shall be placed above the selected nominees of that year.” It is evident on a plain reading of the provision that the Range Selection Board shall first of all scrutinize all the eligible Sub-Inspectors within the zone of consideration in that Range and shall forward the merit-list to the Inspector-General‟s Selection Board. It may be clarified that the nomenclature „Inspector-General‟s Selection Board‟, has now been replaced by that of „Director-General‟s Selection Board‟, and we shall describe it by the latter name. After scrutiny of the different merit-lists forwarded by the various Range Selection Boards, the D.G.‟s Selection Board shall prepare the final select-list on the basis of which alone promotion of Sub-Inspectors to the post of Inspectors can be done. It is further relevant to state that the cadre of 12 Inspector of Police is all-Bihar cadre and, therefore, no decision for promotion can be taken at the Range level. 7. It is evident on a perusal of the materials on record that the petitioner was given the officiating promotion as Inspector with effect from 10.7.1981 (Annexure-1), under the order of the S.P., Special Branch on the basis of the recommendations of the Range Selection Board. This was obviously in the teeth of the relevant provisions of the Manual indicated hereinabove. A promotion which has to be considered after taking into account all the eligible candidates within the zone of consideration in a centralised manner for the whole of the State of Bihar, the petitioner was given the officiating promotion on the Range level alone, i.e. local level rather than on the basis of the State level.. This surely cannot enure to the benefit of the petitioner and he is disentitled to claim the benefit of continuous officiation with effect from 10.7.1981. He has rightly been assigned the seniority with effect from 25.1.1986, when he was given the promotion on a substantive basis, in a regular manner, and after following the prescribed procedure. 8. We do not find it possible to grant to the writ petitioners the benefit of continuous officiation with effect from 10.7.1981, for various reasons. Clauses (A) and (B) of paragraph 44 of the judgment in Direct Recruit Class II Engineering 13 Officers’ Association v. State of Maharashtra (supra), are reproduced hereinbelow: “44. 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 seniority. (B) If the initial appointment is not made by following the procedure laid down by the rule 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.” (Emphasis added) The two portions of the judgment have to be read harmoniously. The underlined portion completely prohibits us from showing such a liberal approach to the petitioner. 9. There is yet another difficulty in following such a course. The writ petition does not state that grant of the benefit of continuous officiation with effect from 10.7.1981 shall not adversely affect persons senior to him in the cadre of Sub- Inspectors. The petitioner has also not impleaded the persons senior to him in the cadre of Sub-Inspectors. The issue is really covered by the judgment of the Supreme Court in the State of Bihar Vs. Kameshwar Prasad Singh (Supra), paragraphs 25 and 14 26 of which are reproduced hereinbelow for the facility of quick reference: “25. It is thus evidence that Brij Bihari Prasad Singh having been promoted on officiating basis with a clear stipulation that he will not get seniority in the rank of Inspector till finally selected could not have preferred a claim regarding his seniority on the basis of promotion of Ramjas Singh, though initially junior to him yet substantively promoted in accordance with Rule 660(c) on 8.7.1972 whereas Brij Bihari Prasad Singh was promoted after selection under Rule 649 in 1978. The High Court totally ignored the basic principles governing the service rules and the mandate of law. There was, therefore, no justification of issuing the directions to direct the promotion of Brij Bihari Prasad Singh while deciding the Writ Petition No.697 of 1995 and dismissing the L.P.A. No.1018/95 vide the judgment impugned in this appeal filed against Brij Bihari Prasad Singh. “26. It appears that the High Court totally lost sight of the fact that in his petitions filed from time to time Brij Bihari Prasad Singh had not impleaded any of his seniors as party-respondents. In the absence of persons likely to be affected by the relief prayed for, the writ petitions should have normally been dismissed unless there existed specific reasons for non-impleadment of the affected persons. Neither any reason was assigned by the writ petitioner nor the Court felt it necessary to deal with this aspect of the matter, ignoring such a basic principle of law has resulted in the supersession of 168 Inspectors and 407 Dy. SPs. The writ petition filed Brij Bihari Prasad Singh being totally misconceived, devoid of any legal force and prayers made being in contravention of the rules applicable in the case deserved dismissal, which was unfortunately not done with the result that the interests of many seniors have been threatened, endangered and adversely affected. 15 The appeal of the State has, therefore, to be allowed by setting aside the impugned judgment.” It is relevant to state that the case before the Supreme Court had arisen from a judgment of this Court and dealt with similarly circumstanced persons governed by the Bihar Police Manual. 10.. L.P.A. No.1542 of 1995 is accordingly dismissed. 11. The facts of CWJC No.6549 of 1995 (LPA No.1543 of 1995) are substantially common with CWJC No.5937 of 1995 (LPA No.1542 of 1995), except some minor variation of dates, annexures etc., dismissed by a common judgment and impugned herein. The petitioner of CWJC No.6549 of 1995 stands on just the same footing and, therefore, disentitled to any relief. However, both the petitioners shall not be deprived of the other service benefits rendered on ad hoc/officiating basis, consistent with the direction of the Supreme Court in paragraph no. 35(4) of the judgment in the State of Bihar Vs. Kameshwar Prasad Singh (supra), and is reproduced hereinbelow for the facility of quick reference: “35. Under the circumstances, the appeals are allowed/disposed of with the directions that: xxx xxxxx xxxx xxxx (4) It is, however, made clear that despite setting aside of the impugned judgments the service benefits conferred upon Brij Bihari Prasad Singh 16 consequent upon the judgments of the High Court shall not be withdrawn and his appointment/promotion in the IPS cadre not disturbed.” 12. LPA No.1543 of 1995 is accordingly dismissed. . CWJC No.527 of 1994 With CWJC No.394 of 1994 With CWJC No.2640 of 1994 With CWJC No.6770 of 1995: With CWJC No.9420 of 1995 With CWJC No.10143 of 1995 With CWJC No.10144 of 1995: 13. The seven writ petitions have to be taken up together because a learned Single Judge has doubted the correctness of the judgment dated 20.12.1991, passed by this Court in CWJC No.2328 of 1990 (Jamuna Prasad Yadav and others vs. The State of Bihar and others), as well as the correctness of the judgment dated 8.5.1996, passed in CWJC No.2686 of 1991(Anant Tiwari and others vs. The State of Bihar and others), and the analogous cases. We have considered the reasonings assigned by the learned Single Judge while making reference of the seven writ petitions to the Division Bench. We respectfully agree with the same. We are also of the view that the issues are really covered by the judgment of the Supreme Court in the State of Bihar Vs. Kameshwar 17 Prasad Singh (supra), which had arisen from the proceedings of this Court, with respect to the provisions of the Bihar Police Manual, and relating to same and similar categories of employee. We are, therefore of the view that the views expressed in the cases of Jamuna Prasad Yadav and Anant Tiwari should be confined to the peculiar facts and circumstances of those case and any observation with respect to the position in law would be governed by the judgment of the Supreme Court in State of Bihar vs. Kameshwar Prasad Singh (supra). CWJC No.527 of 1994: 14. The petitioner claims to have joined the services of the Bihar Government on 10.5.1963. He claims to be promoted as S.I. on 28.6.1971, and was ultimately confirmed as such with effect from 1.4.1982 by a District Order. The petitioner, therefore, seeks a direction to the respondent authorities to grant him the benefit of continuous officiation as S.I. with effect from 28.6.1971. 15. The respondents have placed on record their counter affidavit, wherein it is stated that the petitioner was given the duties of officiating S.I. on the basis of a local arrangement. 16. We have perused the materials on record and considered the submissions of the learned Government Counsel. It appears to us that the petitioner was given the duty of officiation entirely on the basis of a local arrangement which is in violation of 18 the procedure prescribed in the Bihar Police Manual. He is, therefore, not entitled to the benefit of continuous officiation. 17. CWJC No.527 of 1994 is accordingly dismissed. CWJC No.394 of 1994: 18. According to the writ petition, the petitioner had joined the services of the Bihar Government on 22.3.1961 as a literate Constable, he was given officiating promotion as S.I. on 26.6.1971, and was confirmed as such on 1.5.1981. He, therefore, seeks direction to the respondent authorities to give him the benefit of continuous officiation as S.I. with effect from 26.6.1971, and the consequential reliefs. 19. The respondents have placed on record their counter affidavit, wherein it is stated that the petitioner had initially joined the services of the Bihar Government as a probationer Writer Constable on 1.3.1972, and was confirmed