Basudeo Purvey v. State Of Bihar — 1983 DIGILAW 2 (PAT)

Judgment Prem Shanker Sahay, J. 1. This application under Articles 226 and 227 of the Constitution has been filed by the petitioner for quashing Annexure-9 dated 19.9.1978 by which the seniority of the petitioner has been re-determined and he has been put below respondent Nos. 3 to 10 without any notice to him. 2. In order to appreciate the points it will be necessary to state some facts. The petitioner after passing M.A. and law examination applied for the post of the Sub-Registrar which was advertised for eight posts some time in the year 1949. He appeared at the interview and his name along with 22 others was recommended for appointment to the Bihar Public Service Commission in order of merit and the petitioner was number one in the aforesaid list. A copy of the recommendation has been filed herewith and marked as Annexure-1. Six persons were appointed from the aforesaid list as probationary Sub-Registrar on 2.6.1950 and they are respondent Nos. 4 to 9. A copy of the appointment letter has been filed and marked -as Annexure-2. By another notification dated 29.7.1950 the petitioner, respondent Nos. 3 and 10 were appointed for the posts as probationary Sub-Registrar. After completing the probationary period of two years the petitioner and the respondents were confirmed on their posts. A copy of the notification dated 6.11.1958 in this connection has been filed and marked as Annexure-3. In the year 1966 a gradation list of the Sub-Registrars was prepared on the basis of the recommendations made by the Public Service Commission in which the petitioner was shown at serial No. 54 and the respondents 3 to 10 were shown below him. A copy of the same has been filed and marked as Annexure-4. 3. Here it may be mentioned that no representation was filed against this gradation list by the contesting respondents. On the basis of the gradation list a civil list for the year 1967 to 1969 was prepared showing the petitioner senior to the respondents. A copy of the same has been filed as Annexure-5 and 5/A. The petitioner received a letter dated 27.5.1971 from the respondent No. 2, inspector General of Registration regarding the revision of gradation list along with a proposed list showing the position of the petitioner and respondent No. 3 to 10, and all concerned were asked to file objection regarding their seniority in the aforesaid gradation list. In this the petitioner was shown at serial No. 61 and below respondents Nos. 2 to 8. He, therefore, filed a representation stating, inter alia, that the gradation list has been finally prepared in the year 1966 and no objections were raised at that time and that had become final and therefore, the authorities were not justified in putting the petitioner below respondents 3 to 10. Thereafter a circular was issued by the State of Bihar on 13th July 1971 that the seniority will be determined on the basis of the preference given in the recommendation sent to the Bihar Public Service Commission. A copy of the circular has been filed and marked as Annexure-5/B. The State Government after considering all the relevant matters took a decision regarding the seniority which was communicated to the petitioner vide memo No. 3978 dated 7.12.1982, a copy of the same has been shown as number one in the aforesaid list. On the basis of the aforesaid decision as contained in Annexure-6 there was again some amendment which was published in the year 1974 in the form of a booklet, and the petitioner was also shown as senior to respondents 3 to 10. A copy of the extract from the booklet has been filed and marked as Annexure-7. 4. The petitioner on the basis of the seniority was promoted to the post of selection grade by the notification of the Government dated 25th April 1974. It may also be mentioned that respondent No. 3 was also promoted along with this petitioner. A copy of the aforesaid notification has been filed and marked as Annexure-8 to this application. The petitioner was given another promotion in the month of May 1978 and he was posted as a District Sub-Registrar. Then all of a sudden the petitioner received a letter dated the 19th of September 1972 by which the seniority of the petitioner as contained in Annexure-7 was altered and he was not below respondent Nos. 4 to 10 and on the representation of respondent Nos. 6, 8 and 10 the petitioner was placed below respondent Nos. 4 to 10. A copy of the same has been filed as Annexure-9. Being aggrieved by the aforesaid order the petitioner has moved this Court. 5. A counter affidavit has been filed on behalf of respondent No. 3 and the stand taken by the petitioner has been supported. 6, 8 and 10 the petitioner was placed below respondent Nos. 4 to 10. A copy of the same has been filed as Annexure-9. Being aggrieved by the aforesaid order the petitioner has moved this Court. 5. A counter affidavit has been filed on behalf of respondent No. 3 and the stand taken by the petitioner has been supported. Another counter-affidavit has been filed on behalf of the remaining respondents, and the action taken by the State Government has contained in Annexure-9 has been justified, 6. Mr. Ram Nandan Prasad learned Counsel for the petitioner has submitted that the gradation list which was prepared after notice to all concerned on 7.12,1972, had become final and that could not be altered, He has further submitted that even if alteration could have been made it could not have been done without notice to the petitioner and this has been done in clear violation of the principle of natural justice and the valuable right which had accrued to the petitioner has been affected. He has further submitted that the gradation list which was prepared in the year 1972 could not have been disturbed after a lapse of four years and this will mar the future prospect, promotion and other avenues in the service of the petitioner. Lastly it has been submitted that though the petitioner was appointed on the date subsequent to respondent Nos. 4 to 10, the appointment shall be deemed to be in the same transaction and the petitioner was made senior to those respondents in view of the recommendations made to the Bihar Public Service Commission and also the letter of the Personnel Department dated 26.8.1972. 7. Mr. Shyama Prasad Mukherji learned Counsel appearing on behalf of respondent No. 8 has fully endorsed the submission made on behalf of the petitioner and he has further submitted that the fixing of seniority by the State is an exercise of a quasi judicial power and cannot be changed frequently. He has further submitted that it will be deemed to be final in view of the fact that the list was prepared after inviting the objections from all persons concerned and it will amount to disposing of the objections in this regard. He has also supported the contention raised on behalf of the petitioner that this could not have been done without notice to the person concerned. He has also supported the contention raised on behalf of the petitioner that this could not have been done without notice to the person concerned. Further he has argued that the order passed by the State Government on 7.12.1972 as contained in Annexure-6 had become final and respondents 4 to 10 having not challenged the same and now estopped from the principle of acquiescence cannot challenge the seniority of the petitioner. In support of their respective contentions reliance has been placed on a number of decisions which I shall presently refer. 8. Learned G.P. VI appearing for the state has submitted that the petitioner joined the service later than the respondents 4 to 10 and he was also confirmed later and in that view of the matter he was junior to respondent Nos. 4 to 10 and the seniority list as contained in Annexure-9 should not be disturbed. He has further submitted that this mistake was deleted by the State Government which is apparent and in that view of the matter the petitioner was not entitled to any notice. Lastly it has been submitted that justice has been done by putting the respondents higher than the petitioner who joined later and by allowing this writ, injustice will be done in this case and this Court should not interfere with this matter. 9. After hearing the learned Counsel for the parties and after going through the relevant orders and notifications, in our opinion the contention raised on behalf of the petitioner can be disposed on the first point itself. The petitioner was number one in the list which was sent to the commission (Annexure-I), but for some reason or the other the petitioner was appointed after respondents 4 to 9 joined the service. They were also confirmed on different dates. Seniority list was prepared in the year 1966 as contained in Annexure-4. and as we have said earlier his name was shown at serial No. 54 and the respondents were all below him. No representation was filed on their behalf, and the position continued till 1967 to 1969 which will be clear from the civil list Ext. 5 and Ext. 5/1. The State Government wanted to revise the gradation list and a letter was sent on 27.5.1971 to the petitioner and the respondents. No representation was filed on their behalf, and the position continued till 1967 to 1969 which will be clear from the civil list Ext. 5 and Ext. 5/1. The State Government wanted to revise the gradation list and a letter was sent on 27.5.1971 to the petitioner and the respondents. There was a notification on the 13 of July 1971 that their seniority would be determined on the basis of the preference given in the recommendation sent to the Bihar Public Service Commission by the selection board. The State Government after considering the objections took a decision and issued a fresh seniority list pursuant to the aforesaid decision which is Annexure-6 and in that the petitioner was shown as number one. Thereafter the petitioner got promotion which will be clear from the facts mentioned above. But again the seniority list was revised on 19.1.1978 without any notice to the petitioner. Thus it is clear that after the seniority list was determined by Annexure-l, no objection was raised by any of the respondents and they were satisfied with the decision of the State Government. From Annexure-9 it seems that respondent Nos. 6, 8 and 10 had filed representation before the State Government and on that the impugned Annexure had been passed, giving a complete go by to the seniority list prepared by the State Government as contained in Annexure-6, the petitioner who was number one in Annexure-6 has been shown as number eight in Annexure-9. It is certainly a decision after going into the merits of the case and it is not a mere arithmetical or clerical error. It is difficult to accept the contention raised on behalf of the State that the mistake was detected and this correction has been made. Nothing is mentioned in Annexure-9 and we may add that no reason has been given as to why the previous decision has been altered. 10. The object of the preparation of the seniority list by the State Government is that the persons should know what is their position. It is also well known that the promotions are given on the basis of seniority list prepared by the Government. The seniority of the petitioner and respondent Nos. 4 to 10 was determined as far back as in the year 1966 and again in 1972. It is also well known that the promotions are given on the basis of seniority list prepared by the Government. The seniority of the petitioner and respondent Nos. 4 to 10 was determined as far back as in the year 1966 and again in 1972. It has been held in the case of M.L. Cecil DSouza V/s. Union of India -- that persons who are affected by the seniority list should be vigilant and file representation and should not wait indefinitely for correcting the same. It has been held by their Lordships that satisfactory service conditions postulate that there should be no sense of uncertainty amongst public servants and the persons who are really aggrieved with an administrative decision affecting their seniority should act with due diligence and promptitude and not sleep over the matter. In the case of State of Uttar Pradesh V/s. Singhar Singh -- it was observed by their Lordships that if the chances of future promotion of a person is affected by the alteration of the seniority list and the parson is deprived from getting his benefit of promotion even on the officiating post which he has right to hold such deprivation amounts to penal consequences. Mr. Mukherji appearing for the respondent No. 3 has submitted that the authorities were exercising quasi judicial function and no notice has been given to the petitioner and, therefore, the order has to be struck down. In support of his contention reliance has been placed in the case of Union of India V/s. P.K. Roy -- S.K. Ghosh V/s. Union of India -- Niranjan Dass v. The State of Punjab 1968 S.L.R. 183 E.V. Sheshadri V/s. The State of Mysore A.I.R. 1966 Mys. 31. In the case of Niranjan Dass V/s. State of Punjab (supra) it has been held that if no notice is given to the person affected by seniority and the person gets the benefit of crossing the efficiency bar etc. no such order could have been passed without issuing a show cause before changing the seniority. It has further been observed that once the disputed fact relating to seniority is finally settled, it is final between the parties. no such order could have been passed without issuing a show cause before changing the seniority. It has further been observed that once the disputed fact relating to seniority is finally settled, it is final between the parties. Further it has been observed by their Lordships that in such matter the State exercises a quasi judicial function and the principle of natural justice is a must In the case of S.K. Ghosh V/s. Union of India it has been held that the seniority cannot be revised arbitrarily which affects the civil rights of the person in respect of future promotion must therefore. be struck down as violating Article 16 of the Constitution. Same principle has been reiterated in the case of Union of India v. P.K.R y where it has been held that the gradation list provisional or final has to be prepared by the Government and that has to be done after notice and objections by persons concerned. In the instant case objections were invited in 1971 from all concerned and thereafter Annexure-6 was issued which was an order after disposing of all the objection?, but Annexure-9 was issued without any notice to the persons concerned merely on the representation of three respondents as stated earlier. Mr. Mukherji has also cited on the point of acquisition the decision of Shri Krishna V/s. Kurukshetra University A.I.R. 1976 S.C. 376 and Amresh Kumar V/s. Principal, Medical College 1982 B.B.C.J. 302 where it was held that if the authorities acquiesced in the infirmities and allowed the candidate to appear in the examination then by force of the University Statute the University has no power to withdraw the candidature of the candidate, and it was also held that where a person on whom fraud is committed is in a position to discover the truth by due diligence which is not done then fraud is not proved. 11. It is not necessary to decide this matter in detail because as we have said earlier that the first contention raised on behalf of the petitioner is sufficient to allow this application. It is also difficult to accept the contention of the learned G.P VI that the mistake was detected and thereafter Annexure-9 was issued and for that no notice was necessary to the petitioner. It is also difficult to accept the contention of the learned G.P VI that the mistake was detected and thereafter Annexure-9 was issued and for that no notice was necessary to the petitioner. This argument has to be rejected for the reason that seniority inter se was determined on merit as far back as in the year 1972 after the objections were received and no reason has been assigned for altering the seniority list as contained in the Annexure-9. In view of the facts that the petitioner has succeeded on the first point, it is not necessary to consider the other points raised on behalf of the petitioner or by Mr. Mukherji. 12. In the result the application is allowed. Let writ of certiorari be issued quashing the order of the State Government as contained in Annexure-9 but in the circumstances of the case there will be no order as to costs.