IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12968 of 2001 SMT.VEENA KUMARI, W/O SRI HEMANT KUMAR, R/O VILLAGE-PANRAH, P.O.-CHAK-BAHAUDDIN, P.S.- DALSINGHSARAI, DISTRICT-SAMASTIPUR, AT PRESENT TYPIST-CUM-CLERK, COLLEGE OF AGRICULTURAL ENGINEERING, P.O.+P.S.-PUSA, DISTRICT-SAMASTIPUR. ……………PETITIONER. Versus 1. THE RAJENDRA AGRICULTURAL UNIVERSITY, BIHAR, THROUGH ITS REGISTRAR, HAVING HIS HEADQUARTERS AT PUSA, DISTRICT-SAMASTIPUR. 2. THE VICE-CHANCELLOR, RAJENDRA AGRICULTURAL UNIVERSITY, BIHAR, P.O.-PUSA, DISTRICT- SAMASTIPUR. 3. THE DIRECTOR OF ADMINISTRATION, RAJENDRA AGRICULTURAL UNIVERSITY, BIHAR, P.O.-PUSA, DISTRICT-SAMASTIPUR. 4. THE DEAN, COLLEGE OF AGRICULTURAL ENGINEERING, P.O.-PUSA, DISTRICT- SAMASTIPUR. 5. SRI VIVEKA NAND MISHRA, S/O NOT KNOWN TO THE PETITIONER, TYPIST-CUM-CLERK, FACULTY OF AGRICULTURAL ENGINEERING, RAJENDRA AGRICULTURAL UNIVERSITY, PUSA(SAMASTIPUR). ……………RESPONDENTS. For the petitioner : M/S Anand K. Ojha, Adv. And Ashok kr. Verma, Adv. For R.A.U. : Mr. M.N.Parbat, Adv. ----------- P R E S E N T HON’BLE MR.JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh,J: Petitioner in this writ application has prayed for a direction to the respondents to determine her inter se seniority vis-à-vis the other employees of the University and particularly of college of Agricultural Engineering, Pusa (hereinafter referred to as the ‘College’) in accordance with their names as appearing in the select list for their appointment, and grant her Junior Selection Grade scale of Typist-cum-Clerk with effect from 13.2.1995, the date from which - 2 - respondent no. 5, junior to her in the select list, has been granted the same, with all consequential benefits. Case of petitioner is that, pursuant to a limited competitive test, held for class-IV employees of the respondent University, petitioner as well as respondent no. 5 were selected for appointment on class-III post of Typist-cum-Clerk in the pay scale of Rs.580-860 in the different units of the University, vide office order no. 1225 dated 5.11.1987 (Anneuxre-1). In the office order, containing the select list, petitioner’s name was shown at serial no. 8 and her services were placed under the control of Dean of the said College. Respondent No. 5, whose name figured at serial no. 14 in the list, was also posted in the same college and his services were also placed under the control of the Dean. With reference to Annexure-2 dated 11.6.1977, a memo of the University, it was contended that the seniority of non-teaching employees of the University was to be decided unitwise and non-teaching employees in a unit were to be treated as belonging to distinct cadre from the employees of the same grade of another unit. Hence, petitioner and respondent no. 5 being the only Typist-cum-Clerk in the said College, the question of inter se seniority had to be decided between them only. The contention of learned counsel for the - 3 - petitioner was that, since petitioner and respondent no. 5 were appointed in the same transaction and by the same office order of the University, their inter se seniority had to be determined as per their position in the said select list. However, without determining their inter se seniority, respondent Dean of the College promoted respondent no. 5 to Junior Selection Grade Scale of Rs.1400-2300, vide office order no. 76 dated 7.6.1996 (Annexure-3). Subsequently he also granted first time bound promotion to the petitioner in the same scale but with effect from 6.11.1997, vide office order no. 153 dated 14.7.1998 (Annexure-4). He submitted that, petitioner being at a higher position in the appointment order, had a right to be treated as senior to respondent no. 5, and thus entitled to promotion to Junior Selection Grade scale, instead of respondent no. 5. Petitioner filed repeated representations before the Director (Administration) of the respondent University between the period 1996 to 2001, copies whereof are annexed as Annexures-5, 6, 7 and 8. Her grievance having not been redressed, petitioner has filed this writ application. By producing an office order of the University as Anneuxre-9, it was contended that, in other units, while granting Junior Selection Grade scale to the incumbents appointed by Annexure-1, their ranking in the said select list has been adhered to. Petitioner has also produced an order of - 4 - this Court passed in C.W.J.C. No. 2502 of 1980, as Annexure-10, wherein the principle of maintaining inter se seniority among the appointees of same transaction, in the light of their position in the appointment order, has been acknowledged and approved. It was lastly contented that there are eight sanctioned posts of Typist-cum-Clerk in the said College, 20% of which has to be treated as Selection Grade posts, which comes to two posts. Hence, petitioner could be promoted in Selection Grade scale on the second post available in the College from the same date, without disturbing respondent no. 5. Petitioner has brought on record other office orders dated 21.9.2002 and 29.11.2002 (Annexures-11 and 12) to show that respondent no. 5 was granted cadre promotion to the post of Accountant in the pay scale of Rs.1400-2600 with effect from the issue of the first order dated 21.9.2002 and his pay was accordingly fixed by the second order. Petitioner again represented by Annexure-13, and thereafter, through Anneuxre-14, an office order dated 18.5.2005, petitioner along with others was granted ACP in the pay scale of Rs.5000-8000 with effect from 6.11.1999 in place of first time bound promotion granted to her earlier, on completion of 12 years of service, in the grade of Assistant itself, in which grade she had been promoted/appointed under the old scale with effect - 5 - from the date of joining vide Annexure-15 dated 9.2.2002. Learned counsel for the petitioner submitted that, in the office order (Annexure-1) petitioner being higher in ranking than respondent no. 5, she has to be treated as senior to him in all respects. Therefore, in the cadre of Typist-cum-Clerk in the said College, she should have been promoted in the Junior Selection Grade Scale, instead of respondent no. 5, and consequent cadre promotion should have been given to her than respondent no. 5. He submitted that, as per settled law, for promotion to selection grade scale, except seniority, no other consideration can be taken into account. In support of this contention, he has referred to judgments of this Court in the case of Lal Mani Prasad Vs. The Chairman, Bihar Public Service Commission & ors. (1998 (2) PLJR 200); in the case of Maheshwar Prasad Singh Vs. The State of Bihar and ors. (2000 (4) PLJR 262) and in the case of Kapildeo Singh & Ors. Vs. The Rajendra Agricultural University Bihar & Ors. (2006 (4) PLJR 420). Hence, he submitted that, for grant of Junior Selection Grade Scale between her and respondent no. 5, only seniority as per placement of their names in the select list, had to be taken into account and nothing else, which the respondent no. 4 has failed to do, violating the rights of the petitioner guaranteed under Articles 14 and 16 of the Constitution of India. - 6 - Respondents have filed counter affidavit and supplementary counter affidavit in the case. It has been contended by the respondents that the said limited competitive test was held to judge the proficiency of typing ability of the candidates in English and Hindi. For qualifying for appointment on the post of Typist-cum-Clerk under the University, cut-off in English was fixed at 35 words per minute and in Hindi at 30 words per minute. In the test, respondent no. 5 had typed 44 words in a minute in English and 37.4 words in a minute in Hindi; whereas petitioner had typed 33.1 words in a minute in English and 38.2 words in a minute in Hindi. Thus, petitioner had not achieved the qualifying words per minute in English. Proceeding of the Selection Committee has been Annexed as Annexure-A to show that whereas, respondent no. 5 was put in the category of candidates who had qualified both in English and Hindi, petitioner was put in the category of candidates who had qualified only in Hindi. It was contended that, in the circumstances, when the Evaluation Committee held its meeting on 5.2.1996, for grant of promotion to eligible candidates to Junior Selection Grade Scale, they found that the respondent no. 5 was higher in merit. Being appointed by the same order and on the same day, the merit of the respondent no. 5 was, therefore, taken as relevant consideration and - 7 - accordingly, he was promoted to the Junior Selection Grade Scale. It is specifically pleaded in the counter affidavit that the names of selected candidates in Annexure-1 was not in accordance with respective merits of the candidates. Therefore, even accepting the general proposition of reckoning seniority of candidates appointed in the same transaction in the light of their respective position in the appointment letter, learned counsel for the respondents asserted that, since Annexure-1 was not prepared in accordance with the inter se merit of the candidates, the position of petitioner vis-à-vis respondent no. 5 therein could not be taken as a relevant factor for determining their inter se seniority. By referring to Annexure-B, an office order of the office of Director (Administration), it was contended that in the said College there were only seven posts of Typist-cum- Clerk out of which only one post was earmarked as post of Junior Selection Grade Scale. Respondent no. 5 having validly promoted to the available Junior Selection Grade Scale post, petitioner’s case could not be considered for the same. It has been contended that petitioner was subsequently promoted in the same scale under time bound promotion scheme and later on she was also given ACP. Thus, there was no substantial financial loss to her and hence, she has no cause of action to agitate in this Court. A supplementary counter affidavit has been - 8 - filed by the respondents in which it is stated that respondent no. 5 was promoted as Accountant on merits being successful in selection process held for the same. Petitioner has filed rejoinder to the counter affidavit of the respondents. Along with the said rejoinder she has produced another office order of the office of the Director (Administration) of the respondent University, namely office order no. 1226 dated 5.11.1987 (Annexure-R/1), to show that the candidates, who were found qualified only in one test, were separately appointed on the post of Typist-cum-Clerk on provisional basis, with a condition that they had to achieve required speed within two years in the subject in which they could not qualify, failing which their appointments were liable to be automatically terminated, which was also made clear by a letter of the Director (Administration) dated 14.3.1989 (Annexure-R/2) addressed to different units of the respondent University. Petitioner has also produced a letter of the State Government, dated 22.11.1983 (Annexure- R/3), to show that the State Government had prescribed standard of typing speed as 30 words per minute in English and 35 words per minute in Hindi for appointment of Typist-cum-Clerk in all Muffasil offices under the Government. It was contended that the same Government standard was accepted by the University also, vide letter dated 29.3.1989 - 9 - (Annexure-R/4). Petitioner has contended in the rejoinder that the units of the University has to be treated as at par with Mufassil establishments of the Government and, therefore, the standard of speed as laid down by the Government by letter Annexure- R/3, has to be applied for its units as well. She has also challenged the stand of the respondents that she had qualified in Hindi only, and has contented that, had it been so, her name would have been in the second list as contained in Annexure-R/1 and not in Anneuxre-1. She also contended that there was nothing in Annexure-1 to show that it was not based on inter se merit of the candidates. It is also stated in the rejoinder that in Mufassil establishments of Government, English typing is not as important as Hindi typing. Lastly she contended that the Evaluation Committee could not decide seniority without asking for any explanation from her. The respondents have also filed reply to the rejoinder, in which, on the basis of a letter of the Assistant Director of the University as contained in Annexure-C with the reply, it is asserted that the name of petitioner and one Basudeo Sharma was included in the office order no. 1225 dated 5.11.1987 (Anneuxre-1) by mistake, although both of them had failed in English typing. The entire advertisement, pursuant to which the limited competitive examination was held and selection was - 10 - made, is annexed with the reply as Annexure-D. Petitioner has filed second rejoinder. In this rejoinder she has claimed that, after the final test held on 3.6.1986, initially a list was prepared with cut-off marks as 35 words per minute for English and 30 words per minute for Hindi for posts available in units of the University. For University offices the same was fixed as 40 and 30. But before finalizing the said list, the same was revised, and for University offices cut-off marks in English was brought down from 40 to 35, and for units of the University the same was reversed and 30 words per minute was fixed for English and 35 words per minute for Hindi. Thereafter the list, initially prepared, was revised and petitioner was found to have qualified in both and hence was included in the first list (Anneuxre-1). The first list was therefore revised and a fresh list of successful candidates in both subjects, after reversal of the standard for qualification, was prepared by the respondents, in view of the meeting of the Board of Management dated 10.5.1988. Thus, petitioner, having later on found qualified in both the subjects, and included in the first list above respondent no. 5, was entitled for being treated as senior to the respondent no. 5. Learned counsel for the petitioner has submitted that petitioner and respondent no. 5 being in the same list, she had a valid claim to be - 11 - treated as senior to respondent no. 5 and as such entitled for all consequential benefits of promotion etc., and grant of the same before respondent no. 5, or at least from the date he was granted the same. It is true that the law is well settled that, in case appointments are made in the same transaction, the inter se seniority of the incumbents has to be determined on the basis of their respective position in the appointment letter. The judgment of this Court annexed as Annexure-10, and relied upon by the petitioner, rightly acknowledges and accepts the settled legal proposition. But that legal proposition pre-supposes that the names placed in the appointment order is in accordance with respective merits of the candidates. Presumption does arise of preparation of list for appointment of several candidates in accordance with their respective merits, and in absence of any material to show otherwise, or in absence of any challenge to the same, the said position has to be accepted. But in this case there is challenge to the same by the respondents who are custodian of the records and there are also materials to show otherwise. In the first counter affidavit itself respondents have specifically pleaded that Annexure- 1 was not prepared in accordance with merits of the candidates. Further, by producing the advertisement (Annexure-D), and the result sheet and the - 12 - proceedings of the Establishment Committee as Annexure-A, they have shown that, for English the qualifying speed was 35 words per minute and for Hindi it was 30 words per minute, which the petitioner had not achieved. Hence, as evident from the proceeding of the Selection Committee (Annexure- A), while finally preparing the result sheet, the Selection Committee itself had put respondent no. 5 in the category of the candidates who had passed in both the tests, whereas it had put the petitioner in the category of candidates who had passed only in Hindi. For this reason, the respondents have claimed that petitioner could not be included in the list of successful candidates for appointment, which was a mistake, and she ought to have been placed in the second list. If this was the position, it is obvious that, Annexure-1 was not prepared in accordance with the merits of the candidates and possibly the name of the petitioner was included in the said Annexure- 1 by mistake. Petitioner has tried to explain this anomaly in Annexure-1, by producing the Government letter of 1983, issued to its subordinate offices, annexed as Annexure-R/3, and in her last rejoinder, has contended that in view of the said decision of the Government, the Board of Management in its meeting dated 10.5.1998, had resolved to reverse the qualifying standard by fixing 30 words per minute, instead of 35 words per minute, for English and 35, - 13 - instead of 30, words per minute for Hindi. But the fact remains that, this meeting of the Board of Management of the University, as claimed by the petitioner, was said to be held on 10.5.1998 whereas the appointment order (Annexure-1) and the order of provisional appointment of other candidates (Annexure-R/1) were both issued on 5.11.1987. No other material is available on record to substantiate the claim of the petitioner that the initial merit list, prepared on the basis of 35 words per minute in English and 30 words per minute in Hindi as qualifying standard, was later on revised on the basis of reversal of standard, and another merit list was prepared on the basis of 30 qualifying words in English and 35 qualifying words in Hindi, and on that basis the office order (Anneuxre-1) was issued with names of successful candidates arranged in accordance with merit. Petitioner in her last rejoinder has claimed that, if the standard of qualifying words as 35 and 30 are to be accepted for final results, then some candidates, who had not qualified in both the subjects could not be included in the second list. The fact that they were included in the second list, annexed as Annexure-R/1, therefore shows that the qualifying standard was subsequently changed. This pleading of the petitioner was not relied upon by learned counsel for the petitioner during the course of arguments. Therefore, the pleading remains only a - 14 - part of the record without any supporting material or without any assertions made during the course of arguments for verification of the same. In the circumstances, as per materials produced by the parties on the records of the case, it is established that petitioner had not qualified in both the subjects in the said limited competitive examination, still, some how her name was included in the first list (Annexure-1) and she was appointed on the basis of the same. In view of the materials available on record, as noticed above, this is also establishes that Annexure-1 was not prepared in accordance with the inter se merit of the successful candidates. Therefore, the general proposition of law, as relied upon by the learned counsel for the petitioner, has no application in this case. In view of the peculiar facts emerging from the records of the case, the presumption of the common appointment letter having been prepared on the basis of the inter se merit of the candidates, stands rebutted by the materials produced by the respondents in this case. Hence, this Court finds that the Evaluation Committee was perfectly justified in considering the inter se merit of the petitioner vis-a-vis respondent no. 5 on the basis of result of the limited competitive examination for promotion to the Junior Selection Grade Scale, for which no notice was required to be given to petitioner. Therefore, - 15 - no fault can be found in promotion of respondent no. 5 to Junior Selection Grade Scale prior to the petitioner. This Court, therefore, does not find that petitioner is entitled for the reliefs prayed for by her in this writ application. In the result, this Court does not find any merit in the writ application and the same is dismissed. Patna High Court The 18th December,2009 N.A.F.R./Arvind (J. N. Singh, J.)