Case: NAND KUMAR MANJHI AND ANR, ETC Vs. THE STATE OF BIHAR ETC

SCC 637 ( paragraphs 7 to 13) 8.5. Rule 22 of the Bihar Forest Service Rules, 1953 provides for the preparation of the Merit List on the basis of the aggregate marks secured by a candidate in the written examination as well as viva voce test. It provides that the Commission shall nominate such number of candidates from the merit list as may have been fixed by the Governor. There is no provision for maintaining a Wait List under the Bihar Forest Service Rules, 1953. Hence, the appointment of the Appellants was wholly illegal and contrary to the statutory rules. 8.6. In the background facts set out hereinabove, it is abundantly clear that the appointments of the Appellants were made beyond the vacancies advertised in 1985, which was in contravention of the well¬settled principle of law enunciated in Rakhi Ray & Ors. v. High Court of Delhi & Ors. (2010) 2 SCC 637 ( paragraph 7). . The relevant extract from the decision of this Court in Rakhi Ray & Ors. v. High Court of Delhi & Ors. is reproduced hereinbelow for ready reference:"7. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as ?the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution , of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to ?improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale? , otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law. (Vide Union of India v. Ishwar Singh Khatri [1992 Supp (3) SCC 84 : 1992 SCC (L&S) 999 : (1992) 21 ATC 851], Gujarat State Dy. Executive Engineers Assn. v. State of Gujarat [1994 Supp (2) SCC 591 : 1994 SCC (L&S) 1159 : (1994) 28 ATC 78] , State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986 [(1994) 1 SCC 126 : 1994 SCC (L&S) 274 : (1994) 26 ATC 500 : AIR 1994 SC 736 ], Prem Singh v. Haryana SEB [(1996) 4 SCC 319 : 1996 SCC (L&S) 934] and Ashok Kumar v. Banking Service Recruitment Board [(1996) 1 SCC 283 : 1996 SCC (L&S) 298 : (1996) 32 ATC 235 : AIR 1996 SC 976 ] ).? (emphasis supplied)8.7. As a result of the persistent lobbying by the Appellants, they were able to secure appointment as ACFs on 13.04.1988 purportedly against the 1985 Advertisement. The appointment of the Appellants was wholly illegal, and in contravention of the Bihar Forest Service Rules, 1953. The posts advertised in 1985 were duly filled up by the selected candidates. The list of the 1985 advertisement stood fully exhausted. 8.8. A fresh selection of ACFs through direct recruitment was initiated pursuant to an advertisement in 1987. 8.9. While the recruitment process pursuant to the 1987 advertisement was underway, the State requested the Commission to forward 13 names from the list against the 1985 advertisement, which stood exhausted. The Commission forwarded the names of the Appellants, and some others purportedly from the list prepared pursuant to the 1985 advertisement vide letter dated 20.02.1988. This whole process was completely illegal, as the list of 1985 had got exhausted. 8.10. In 1987, 52 Forest Rangers were promoted as ACFs. Further appointments were made through direct recruitment and promotion in 1990, 1992, and 1995. 8.11. A proposal to regularise the services of the Appellants was initiated, taking a humanitarian view of the matter, since by then the Appellants had already served for almost 17 years. In the proposal, it was mentioned that the appointment of the Appellants as ACFs in 1988 was ?irregular?. However, the cancellation of the appointments at this juncture would result in further litigation, since it was made on the basis of a letter from the Commission. The proposal was approved by the Governor on 03.10.2005. The State granted confirmation to the Appellants vide Notification dated 04.10.2010 w.e.f. from the date of their regularisation i.e. 03.10.2005. 8.12. The State published the Final Seniority List on 02.07.2010. The Appellants were placed at the bottom of the Seniority List at Serial Nos. 321 to 338 i.e. below the 1987 Promotees, the Direct Recruits as well as Promotees of 1990, Respondent No. 10 – Hemkant Rai, the 1992 Promotees, and Promotees of 1995 on the basis of the date of regular appointment as ACF. 8.13. The Appellants raised objections to their position on the Seniority List, and claimed seniority from the date of their initial appointment on 13.04.1988 and continuous officiation till their regularisation w.e.f. 03.10.2005. 8.14. In the aforesaid background facts, the Patna High Court was fully justified in dismissing the Writ Petitions and the Letters Patent Appeals filed by the Appellants. The High Court rightly held that the seniority of the Appellants can be reckoned only from the date of their regularisation in service w.e.f. 03.10.2005, and not from the date of their initial appointment on 13.04.1988, as claimed by them. The Appellants had secured an illegal appointment in 1988 through the back¬ door, which was wholly illegal and de hors the Statutory Rules. Their services came to be regularised only on 03.10.2005. As per Rule 35 of the Bihar Forest Service Rules, 1953 the seniority of officers shall be determined with reference to the date of their substantive appointment to the service. Hence, the claim for seniority from the date of their initial appointment was wholly untenable, misconceived, and contrary to statutory Rules.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]In the aforesaid background facts, the Patna High Court was fully justified in dismissing the Writ Petitions and the Letters Patent Appeals filed by theHigh Court rightly held that the seniority of the Appellants can be reckoned only from the date of their regularisation in service w.e.f. 03.10.2005, and not from the date of their initial appointment on 13.04.1988, as claimed by them. The Appellants had secured an illegal appointment in 1988 through the back¬ door, which was wholly illegal and de hors the Statutory Rules. Their services came to be regularised only on 03.10.2005. As per Rule 35 of the Bihar Forest Service Rules, 1953 the seniority of officers shall be determined with reference to the date of their substantive appointment to the service. Hence, the claim for seniority from the date of their initial appointment was wholly untenable, misconceived, and contrary to statutory Rules.