IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.135 of 2011 1. Dayanand Kumar S/o Late Ram Prit Prasad, resident of village Saffepur, P.S. Kako, District Jehanabad, presently posted as Commandant, BMP (3) Gaya ..........Appellant Versus 1. The State Of Bihar represented through the Chief Secretary, Government of Bihar, Old Secretariat, Patna 2. The Home Secretary, Deptt. Of Home Affairs, Government of Bihar, Patna 3. The Director General cum Inspector General of Police, Bihar, Patna 4. The Principal Secretary, Deptt. Of General Administration, Government of Bihar, Patna 5. The Additional Personal Secretary, Government of Bihar, Patna 6. The Additional Secretary, Home (Police), Government of Bihar, Patna .........Respondents ----------- For the Appellant: Mr. Vivekanand Pd. Singh, Advocate For the State: Mr. Prabhakar Tekriwal, GA 1 --------- 7 04-07-2011 Heard learned counsel for the appellant and learned counsel for the State. The writ court has dismissed the claim of the appellant/ writ petitioner for benefit of seniority on the basis of past service rendered by him under the Indian Air Force in the year 1971. No doubt certain amendments in the rules of 1972 have been made by way of executive decision in the year 2005 but the writ court has rightly considered the claim of the appellant in the wider perspective and in accordance with law laid down by the Supreme Court in the case of Ram Janam Singh V. State of Uttar Pradesh 2 and another, (1994) 2 SCC 622. The relevant observations in paragraphs 10 to 12 of that judgement will govern the case of appellant also and those paragraphs have been extracted by the writ court. In paragraph 12 of that judgement it has been held that the benefits extended to such persons who were commissioned during national emergencies are if extended even to the members of the Armed Forces who joined during normal times, members of the Civil Services can make legitimate grievance that their seniority is being affected by persons who are below them in the service on account of being recruited later or may be on account of being lower in the merit list. On behalf of the State of Bihar, such benefit appears to have been introduced in favour of certain category of defence personnel vide decision of the State Government dated 29-9-1967 contained in annexure-2 to the memorandum of appeal. Subject of the governmental decision is rehabilitation of Emergency Commissioned and Short Service Regular Commissioned Officers after their release from the 3 Armed Forces. No other decision after 1967 for such rehabilitation was brought to our notice. The said decision naturally cannot refer to the recruitment made in the year 1971 and, hence, refers only to Military service rendered by any person during the “Emergency” created by the Chinese aggression and Pakistani conflict. The Pakistani conflict also led to emergency in the year 1965. Annexure-2 is illegible at several places and the typed copy also does not appear to be free of errors but it is apparent from the said decision that for rehabilitation of such Emergency Commissioned and Short Service Regular Commissioned Officers the State provided for a limited competitive examination, as mentioned in paragraph 5 of that decision, to be held by the Bihar Public Service Commission concurrently with the regular combined competitive examination. The candidates from Military services were required to take only three subjects in the written examination. The rules of 1972, on which learned counsel for the appellant has placed reliance clarify in paragraph 2 that where ex defence personnel are appointed then in their case, as per specific 4 instructions applicable to them, seniority will be determined vis-à-vis persons recruited through direct recruitment. Further provisions in respect of such ex defence personnel are mentioned in clause-6 also. The issue in the present case is not how the seniority is to be determined but whether the appellant/writ petitioner belongs to the category of ex defence personnel who are entitled for the benefits flowing from decision of the State Government in the year 1967 for rehabilitation of certain categories of defence personnel. The writ court has answered the issue in negative and we do not find any good material to take a different view. The submission advanced on behalf of the appellant that some people in similar situation have been given benefit of seniority can not be of any help in view of law laid down by the Apex Court and the right of the appellant is dependant upon the decision of the State Government. If in past some people have been wrongly given the benefit of seniority, although they were not recruited during emergency as provided in the 5 Government decision, this court cannot force the State Government to follow the same path in the case of appellant. The basic issue in such a case is, when and to what extent general principle of seniority on the basis of decision in the merit list or actual length of service can be compromised even by the State authorities. If exception is created and benefit of seniority is granted in favour of those who had opted to serve the defence service during National Emergency, as held by the Supreme Court, the grant of benefit of seniority on account of past Military service may be justified but if such benefit is granted to those who joined defence service when there was no National Emergency and if the State Government has not come forward with any rehabilitation Programme in favour of persons like the appellant, this court cannot direct for granting any extra benefit in matters of seniority. Although National Emergency was declared on 3-12-1971 but appellant was admittedly recruited in the Indian Air Force on 10th July, 1971. 6 In the facts of the case when no benefit could legally accrue to the appellant, challenge to the action of the State in amending the rules in 2005 with retrospective effect cannot help the appellant. We find no merit in this appeal. It is, accordingly, dismissed. BKS/- (Shiva Kirti Singh, J.) (Shivaji Pandey, J.)