IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12275 of 1996 ABDUL QUDUS, son of late Hafiz Mohammad Salim, resident of village Betaha, P.S. Bela, District Sitamarhi, retired Clerk from the office of the Drug Inspector, Sitamarhi … Petitioner Versus 1. THE STATE OF BIHAR 2. The Commissioner, Department of Health, Medical Education and Family Welfare, Vikash Bhawan, New Secretariat, Patna 3. The Director-in-chief, Health Services, Department of Health, Medical Education and Family Welfare, Vikash Bhawan, New Secretariat, Patna 4. The Civil Surgeon cum Chief Medical Officer, Sitamarhi 5. Drug Inspector, Sitamarhi 6. Parmeshwar Prasad, son of name not known to the petitioner, Clerk in the Super Time Selection Grade Scale, posted in Sadar Hospital, Sitamarhi 7. Ramesh Chandra Prasad, son of not known to the petitioner, clerk in the Supertime Selection Grade Scale, posted in the office of the Civil Surgeon cum Chief Medical officer, Sitamarhi … Respondents. ----------- 6. 5.8.2010 Heard Mr. Ganesh Prasad Singh, learned Senior counsel for the petitioner and the counsel for the State. No one appears for the private respondents. The prayer of the petitioner in this writ application reads as follows: “This is an application for issuance of a writ in the nature of certiorari to quash the order, as contained in Memo No. 2505 dated 17.9.1996, issued under the signature of the Civil Surgeon cum Chief Medical Officer, Sitamarhi whereby juniors to the petitioner 2 have been given promotion in suppertime selection grade scale of clerk and the petitioner has been wrongly given promotion in the senior selection grade scale, not with appropriate date, and for issuance of a consequential writ in the nature of mandamus directing and commanding the respondents to grant promotion to the petitioner in the super time selection grade scale of clerk at least with effect from the date, juniors to him have been so given i.e. 1.4.1992, as also to grant promotion to the petitioner in the selection grade scale, at least with effect from 1.4.1986, for which he is entitled and, thereafter, to make payment of differences of salary of the promoted post and fix post retirement benefit to the petitioner as per the new enhanced pay scale of promoted post by virtue of the fact that the petitioner has superannuated with effect from 31.10.1996 and for issuance of an appropriate writ, order or direction, for which the petitioner is found entitled to by this Hon‟ble Court in the facts and circumstances stated hereunder.” Mr. Singh would submit that as a matter of fact when the petitioner was 3 appointed on the post of Correspondence Clerk on 31.8.1962 and the private respondents had been appointed after him, his seniority could not have been disturbed so as to deprive him the promotion in Senior Selection Grade and Super Time scale. In this connection he has further explained that the petitioner‟s seniority could not have been taken away only because he had passed the departmental accounts examination in 1974, whereas the private respondents had passed the examination in the year 1972. In fact he had gone to the extent to submit that there was no requirement in the year 1972 to pass such a departmental examination, inasmuch as the same was brought into existence by an executive order of the year 1955 which could not have amended the statutory Bihar Board Miscellaneous Rules and for this purpose he has also relied on the Division Bench Judgment of this Court in the case of (Mrs.) Rekha Prasad vs. the State of Bihar & ors., reported in 1984 BBCJ 833 as also in the case of Mohammad Shamsudin & ors. vs. the State of Bihar & ors., reported in 1983 PLJR 4 347. He has also submitted that the petitioner‟s name being consistently junior in various gradation list issued by the office of the Civil Surgeon after merger of the post of L.D.C. and U.G.C. in the year 1977 was also bad and in fact the petitioner‟s seniority could not have been taken away on the aforesaid ground of his passing departmental examination after the private respondents. Counsel for the respondent State, on the other hand, with the help of the counter affidavit would submit that that the petitioner in fact had lost his seniority way back in the year 1972 itself when the juniors to him holding the post of Lower Division Clerk having passed the departmental examination in the year 1972 were promoted on the post of Upper Division Clerk and therefore, after the merger of the post of L.D.C. and U.D.C. those private respondents promoted already in the year 1972 having been not reverted to the post of L.D.C. on account of passing of the examination by the petitioner in the year 1974 could not have been made junior to the 5 petitioner and that is how they have all along been given their promotion earlier to the petitioner. In this context he would rely on the circular of the State Government bearing No. 8524 dated 24.8.1955 and its clarification in letter no. 5025 dated 25.4.1980 (Annexure „C‟ to the counter affidavit). Counsel for the State in fact would also submit that at all point of time the Lower Division Clerk/ Upper Division clerk/ Assistant were required to pass a departmental examination in terms of Rule 157(j) of the Bihar Board‟s Miscellaneous Rules and this aspect also has been conclusively decided by the Full Bench of this Court in the case of Maheshwar Prasad Singh & ors. vs. the State of Bihar & ors., reported in 2000(4) PLJR 262. In the opinion of this Court the submission of the counsel for the State must be accepted. From a reading of the relevant circular, Annexure „C‟, it becomes clear that at the given point of time if a L.D.C. being senior in the cadre did not pass the departmental examination and junior to him had passed such departmental accounts 6 examination and was eventually promoted on the post of Upper Division Clerk he would become senior provided the senior person would pass the departmental examination and would also get promoted on the post of Upper Division Clerk within a period of two years leading to reversion of his junior, so promoted on account of his passing the departmental examination earlier. In fact the aforesaid 1955 circular was also reiterated by the Government subsequently in its letter dated 25.4.1980 and as such, at all point of time the requirement of passing the departmental examination being condition precedent for earning promotion, when the petitioner did not pass the departmental examination in 1972 and his juniors had done so and also got promoted to the post of U.D.C., the subsequent passing of the departmental examination by the petitioner in the year 1974 and earning his promotion on the post of U.D.C. on 18.2.1976 i.e. after four years of promotion of the private respondents would have made little impact and in fact no difference on the seniority already acquired by them on the post of 7 U.D.C. Once this position becomes clear that the petitioner had become junior to the private respondents on the post of U.D.C. way back in 1972 he would be also deemed to be junior to them even on re- designated post of Assistant after merger of the post of L.D.C. and U.D.C. in the year 1977. Therefore, the petitioner could not have even claimed much less have given promotion in the Junior Selection Grade, Senior Selection Grade, Super Time Scale prior to the private respondents and to that extent the decision taken by the Civil Surgeon does not suffer from any error. The last part of desperate submission of Mr. Singh is that as a matter of fact the petitioner‟s seniority could not have been adversely affected on account of his not passing the departmental examination in view of the judgment of Rekha Prasad and Md. Shamsudin (supra) also cannot be accepted, inasmuch as they have no longer remained the law on the subject after authoritative pronouncement of the Full Bench in the case of Maheshwar Prasad Singh 8 & ors. vs. the State of Bihar & ors., reported in 2000(4) PLJR 262, wherein it was held as follows: “ On the basis of the above discussion I have no hesitation in holding that the State Government was fully competent to amend rule 157(3)(J) of the Board‟s Miscellaneous Rules by executive instructions and the amendment made vide correction slip no. 30 dated 29.3.1982 was a valid amendment. Thus, clerks were required to pass the final examination in Accounts as a condition for promotion to the selection grades after 29.3.1982.” Once this aspect becomes clear, it would be difficult to hold that the petitioner was not at all required to pass the departmental examination in the year 1972. The plea that 1955 executive instructions could not have amended, statutory Bihar Board‟s Miscellaneous Rules also is not correct because there was all along statutory requirement of passing of the departmental examination in terms of Rule 157 of the Bihar Board Miscellaneous Rules. Moreover, the petitioner having himself earned promotion only on the basis 9 of departmental examination in 1976 as is clearly stated in the order of his promotion dated 18.2.1976, cannot be allowed to now take a contrary stand when his seniority had been affected way back in 1972. In fact the writ application filed after twenty four years of the petitioner becoming junior to respondents no. 6 and 7 is itself wholly belated. That being so, this Court would not find any error in the impugned order and accordingly, this application being devoid of any merit is hereby dismissed. (Mihir Kumar Jha,J.) Surendra/