Nand Kumar Manjhi And Anr, Etc vs The State Of Bihar Etc

2. The factual matrix in the present Civil Appeals is as under:

On the basis of the examination conducted in December 1985 and viva voce, the Bihar Public Service Commission (“the Commission”) prepared a list of successful candidates.

On the recommendations of the Commission, the posts of ACFs advertised were filled up by the State vide Notification dated 14.12.1987. On filling up of the advertised posts, the Merit List got exhausted.

The Appellants, in the present case, had participated in the selection, but were unsuccessful in getting appointed. 2 2.2. The Appellants and some other candidates who were unsuccessful in obtaining appointment as ACFs in the 1985 selection, made representations before the Chief Minister on 12.06.1987, the Minister of Forests and Environment on 21.08.1987, and the Secretary, Department of Forests and Environment on 06.11.1987 for appointment against vacant posts beyond the 40 advertised posts.

2.3. On 21.10.1987, the State took a decision to fill the existing vacant posts of ACFs from the list of successful candidates who had qualified in the Competitive Examination conducted in 1985 and 1986 respectively, but did not get appointed. 2.4. On 15.02.1988, the State Government sought the names of 13 successful candidates from the Commission, as per the Merit List prepared pursuant to the selection against the 1985 advertisement.

2.6. On 12.06.1987, the State Government sent a requisition to initiate the process for appointment of 40 more ACFs through direct recruitment.

4 2.7. The State promoted 30 Range Officers, including Respondent Nos. 21­321, as ACFs w.e.f. 30.03.1990 vide Notifications dated 16/17.08.1990, 18.07.1991 and 02.09.1992, respectively.

2.8. During the period from 20.06.1987 to 17.10.1987, the State further promoted 52 Forest Rangers to the post of ACF. 2.9. The Bihar Forest Service Rules, 1953 were amended to insert Rule 3(aa) on 26.12.1989 with retrospective effect. As per Rule 3(aa), Range Officers of Forests who have passed the Ranger Course after securing Honours shall be deemed to be eligible to be appointed as Assistant Conservators of Forests, and shall be treated as direct recruits.

7 The Law Department was of the opinion that these appointments were irregular since they were appointed purportedly against the advertisement of 1985, even though the Select List had got exhausted. It was however observed that cancellation of their appointment would result in litigation, since the appointments were made on the basis of the recommendations of the Commission. Furthermore, the appointees had by now served for about 17 years. It was suggested that such appointments may be regularised since they were irregular, but not illegal.

The issue of their inter se seniority vis­à­vis the 1987 Promotees was also considered, and a decision was sought from the State Government. The proposal for regularisation of the appointments of these ACFs was submitted for approval before the Governor on 03.10.2005.

The State confirmed the services of the Appellants w.e.f. 03.10.2005, by issuance of Notification dated 04.10.2010. 2.16. On 31.03.2010, a Provisional Seniority List was published, wherein the Appellants were placed below the Direct Recruits and Promotees who were appointed w.e.f. 30.03.1990, Respondent No. 10 – Hemkant Rai, the 1992 Promotees and the 1995 Promotees.

03.10.2005, and hence were not entitled to being placed above the persons appointed in 1987, 1990, 1992 and 1995. 2.18. The Final Seniority List was published 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, Direct Recruits as well as Promotees appointed w.e.f. 30.03.1990, Respondent No. 10 – Hemkant Rai, the 1992 and 1995 Promotees.

2.19. Several Writ Petitions were filed before the Patna High Court by various officers appointed in the Bihar Forest Service cadre to challenge their inter se seniority in the cadre as per the Final Seniority List dated 02.07.2010.

The Writ Petitions filed by the Appellants herein (CWJC Nos.10925, 11160 and 11337 of 2010) were dismissed.

iii)The mere continuance in service over a long period of time, would not entitle the Appellants to claim seniority from the date of their initial appointment; at best, their claim could be considered only after they were regularised w.e.f. 03.10.2005.

13. In the present case neither of the two conditions is satisfied. The posts to which substantive appointments were to be made were not available, therefore, there could be no appointment to the service. When there is no appointment to the service, much less substantive appointment to the service, the promotees could not be given seniority with effect from the purported date of their promotion…

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.

8.15. In view of the aforesaid findings, the present Civil Appeals are dismissed with no order as to costs. The impugned Judgment and Order dated 10.11.2014 passed by the Patna High Court 26 in L.P.A. Nos. 491 of 2013, 257 of 2013 and 509 of 2013 is hereby affirmed.

Pending I.A.s, if any, are disposed of by the present Judgment.

Ordered accordingly.