IN THE HIGH COURT OF JUDICATURE AT PATNA. Letters Patent Appeal No.46 OF 1999 (Appeal against the order dated 25.11.1998 passed by Hon’ble Mr. Justice Sri Aftab Alam in C.W.J.C. No. 3881 of 1997. Krishnadeo Pandit, S/o. late Shivjee Pandit, r/o. Village- Dulaur, P.S. Jagdishpur, District- Bhojpur at present working as Temporary Clerk in District- Sub Registry Office, Buxar, District- Buxar. --------------------------------------------(Appellant) Versus 1. The State Of Bihar 2. The Inspector General of Registration Bihar, New Secretariat, Patna. 3. The Assistant Inspector General of Registration, New Secretariat, Patna. 4. The District Registrar Bhojpur, District- Bhojpur. 5. The District Registrar, Buxar, District- Buxar. 6. Shiv Kumar Pandey, s/o. Ram Janam Pandey, Presently working as Temporary Clerk in District Sub Registry Office, Buxar, District- Buxar. -----------------------------------(Respondents) For the Appellant: Mr. Atul Chandra, Advocate. For the Respondent No.6: Mr. S.K. Verma, --Advocate. Mr. V.K. Verma,-- Advocate. For the State/Respondents: Mr. Arjun Prasad Singh, AC to SC-3. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE C.M.PRASAD ---------------- Shiva Kirti Singh C.M. Prasad, JJ. Heard learned counsel for the appellant, learned counsel for the State and learned counsel for respondent No. 6. 2. Appellant has preferred this letters patent appeal against order dated 25.11.1998 whereby the writ petition has been dismissed on merits. The writ petitioner (appellant herein) had claimed seniority over respondent No. 6 in the post of Extra Clerk in the registry office in 2 Bhojpur (Arrah) and on that basis he claimed that he should be appointed on the post of temporary clerk with effect from 2nd June, 1989 and not from 04.11.1995. The writ Court noticed the facts of a writ petition preferred by the appellant earlier in the year 1993 in which the only relief sought for was a direction to the District Registrar, Bhojpur to send a report on the question of seniority between the writ petitioner and respondent no. 6 as asked for by the Inspector General of Registration. After disposal of that writ petition on 10.01.1995 the petitioner filed a contempt petition in the same year but that was dismissed with an observation that I.G. registration had sufficient power to take action if his direction for sending a report was not being obeyed by his subordinate. The writ Court further found that the writ petitioner had been approaching this Court with frivolous prayers and there was no material to doubt the stand taken by the State and its authorities in the counter affidavit that as per seniority list dated 16.02.1976 appended as Annexure-A to the counter affidavit, respondent No. 6 was senior to the writ petitioner. Hence, the writ petition was dismissed. 3 3. Before us it has been submitted that the writ Court should not have placed reliance upon the gradation list in Annexure-A in view of Annexure-7 appended with the writ petition which contains a letter dated 8.02.1995 sent by the District Registrar, Bhojpur to the Inspector General of Registration. It was highlighted that in Annexure-7 earlier letters and circulars relating to criteria for preparation of gradation list were indicated and then circular dated 7.02.1978 was allegedly made effective from a retrospective date as per another letter dated 19.10.1978. According to the District Registrar these two circulars were not given weight and even in the gradation list prepared by the office in 1979 the writ petitioner was shown junior to respondent No. 6 on the basis of the earlier guidelines and criteria mentioned in letter dated 23.09.1975 and by accepting the date of employment of the respondent No. 6 as extra clerk on 29.12.1972 and that of writ petitioner as 30.12.1972. It appeared that after their engagement, as per district registrar, both the contesting parties signed the Duty Register only on 2.1.1973. 4 4. From the materials on record it appears that an amended gradation list dated 13.12.1974 was also prepared on the basis of the date of engagement as extra clerk and in that also the writ petitioner was below respondent No. 6. Same was the position in gradation list of 16.02.1976 contained in Annexure-A to the counter affidavit. According to guidelines of 1978, if the recruitment or engagement on the post of extra clerk was on the basis of written examination then the seniority was to be determined on the basis of the marks obtained in the recruitment test regardless of the date of their joining but otherwise seniority was to be determined on the basis of the date of joining and in case this date was same then the determining factor would be age and the person senior in age would be treated as senior. 5. In the writ petition there is no claim that the writ petitioner or respondent No. 6 were appointed on the post of extra clerk pursuant to any written examination. Such a defence has been taken by respondent No. 6 in this appeal as he had not filed any counter affidavit before the writ Court. However, no documents have been annexed to 5 show that any such written examination was held for the purpose of recruitment. Only a claim remains that respondent No. 6 had obtained more marks and therefore even according to 1978 Circular (Annexure-12) he had rightly been shown senior to the writ petitioner. So far as the stand of the appellant is concerned, at the time of admission of this appeal some documents were brought on record and emphasis has been laid particularly on Annexure-14, which is appended to a reply to the counter affidavit of respondent No.6, for highlighting that in a waiting list of the candidates, writ petitioner’s name is above that of respondent No.6. The photo copy of the document annexed as Annexure-14 appears to be dated 18.12.1972 but it does not show that there was any written examination and the waiting list is its result on the basis of marks obtained by the candidates in such examination. The heading of the list is merely waiting list of candidates. It is not in dispute that recruitment in those days used to be made through modes other than written examination also. 6. Thus, on a careful consideration of rival contentions and stand of the parties, it is clear that only 6 when respondent No. 6 has taken a stand at the appellate stage that he has obtained more marks in a written recruitment test, the writ petitioner has taken a counter stand that in such a written test he was placed higher to respondent No. 6. We have already noticed that respondent No. 6 has no documents to support his case of written examination and the document contained in Annexure-14 relied upon by the appellant also does not show that the recruitment was pursuant to any written test or that the waiting list was on the basis of marks obtained by the candidates. Hence, Annexure-14 also cannot be treated to be relevant for the purpose of deciding the issue whether there was any written recruitment test or not. It is also not relevant for the purpose of deciding seniority which can be only on the basis of the result of a written recruitment test or on the basis of date of recruitment/engagement. 7. The only other issue relevant for deciding inter se seniority is date or dates on which the writ petitioner and respondent No.6 were engaged on the post of extra clerk. On this issue the consistent stand of the 7 respondent State is that the respondent No. 6 occupied the post on 29.12.1972 and the writ petitioner on 30.12.1972. No doubt in Annexure-7, the District Registrar, Bhojpur reported that from the relevant register it appears that both have signed there presence in the office on 02.01.1973. But beyond this there is no other material to enable this Court to decide such a disputed question of fact. 8. On behalf of appellant it has been asserted that the date of appointment of respondent No. 6 has been wrongly shown as 21.12.1972 and in fact both were appointed on same date and on that basis the writ petitioner/appellant should have been shown senior because he is senior in age and has better qualification. 9. From the materials on record, we find ourselves unable to decide this disputed fact. It is clear from the gradation lists of 1974 and 1976 that respondent No.6 has been always shown senior to the writ petitioner on the basis of his date of employment on the post of extra clerk as 29.12.1972. It is clear that opportunity was available to the employees concerned to protest against their placement in the gradation list but the materials on 8 record show that the present dispute was raised by the writ petitioner only after 1989 when respondent No. 6 was granted promotion to the post of temporary clerk and ultimately he preferred the present writ petition in 1997 after he was also promoted as a temporary clerk with effect from 04.11.1995. There is no representation filed by the writ petitioner challenging the correctness of entries in the gradation list of 1976. In absence of such representation, we have no option but to accept the objection raised on behalf of respondent No.6 that the gradation lists have remained operational and were never interfered with or set aside in the past even after Annexure-7 and hence the writ petition must be treated to be belated and dismissed on grounds of delay and laches. 10. It is also relevant to notice that the stand of the State and its official in the counter affidavit filed before the writ Court supports the case of respondent No. 6. According to them, respondent No.6 had been engaged on the post of extra clerk earlier to the writ petitioner and therefore he has been treated as senior in the gradation list. 11. In view of aforesaid facts and discussions, 9 we agree with the submissions advanced on behalf of respondent No. 6 and the State that highly disputed issues of facts have been raised which can not be decided for lack of adequate materials, through this writ petition. Further, the writ petitioner is apparently belated and in fact the challenge in the writ petition filed in the year 1997 is to the gradation list of 1976, made after more that two decades. In the facts of the case, we find no merit in this appeal. It is accordingly dismissed but without costs. Patna High Court, Dated, 26th February 2010, N.A.F.R./ Mkr. (Shiva Kirti Singh, J.) (C.M. Prasad, J.)