Kartik Charan Jha and six v. State of Bihar — 1986 DIGILAW 116 (PAT)

JUDGMENT : Uday Sinha, J. These are petitions under Articles 226 and 227 of the Constitution Common questions of law being involved, they have been heard together and will be governed by this common JUDGMENT :. The facts necessary for deciding the questions in controversy will be taken from C.W.J.C. No. 2335 of 1982. 2. The petitioners and the concerned respondents in the two writ applications are Commercial Taxes Officers in the Department of Commercial Taxes. In ORDER :to determine upon the questions raised in these applications, it will be necessary to refer to the Bihar Finance Service Rules, 1953 and the subsequent amendments which are Annexure-C/1 in C.W.J.C. No. 4827 of 1984. Rules were framed in 1953. In terms of these rules, the Bihar Finance Service consisted of two classes of officers, namely, (a) the Senior branch, and (b) the Junior branch. In terms of rule 3 (2) of the said Rules, the Governor was required from time to time to determine the number of posts in the respective cadres of the Senior and Junior branches. Rule 5 provided for the recruitment of officers to the two branches of the Service. The modes of recruitments were (a) by direct recruitment, and (b) by promotion. Promotion to Senior branch was effected from the Junior branch of the service. Promotion to Junior branch was granted to persons serving in any office under the Government in a permanent post. The question of promotion to Junior branch from other Departments under the State Government is of no concern to us. We may, therefore, forget the question of promotion to the Junior branch. In terms of rule 5 the Governor was to decide in each year the number of vacancies in the service in each of the two branches separately to be filled in. The Proviso thereto laid down that the promotion quota would not be less than 50% of the total number of vacancies to be filled in any year. Rule 6 was amended in December, 1971. After amendment it read as follows : 6. The Proviso thereto laid down that the promotion quota would not be less than 50% of the total number of vacancies to be filled in any year. Rule 6 was amended in December, 1971. After amendment it read as follows : 6. Fixation of vacancies :- The Governor shall declare in each year the number of vacancies in the Service in each of the two branches separately to be filled by direct recruitment and by promotion: Provided that the number of vacancies to be filled by promotion in the Senior branch of the Service in anyone year shall not, unless, the Governor is satisfied that there is not a sufficient number of officers fit for promotion, be less than 50 per cent of the total number of vacancies to be flied in any such year". After the declaration by the Governor in terms of rule 6, the Commission had to announce in each year the number of vacancies in each branch of the service to be filed by direct recruitment on the result of a competitive examination and invite applications from candidates eligible for appointment; subject to the qualifications mentioned in rules 9 and 10. After receiving the applications, the Commission was required to make the Selection and recommend names for appointments to the Senior branch. That was the mode of direct recruitment. Part IV of the Rules provided for promotion of officers already in Government service. Rule 19 provided for promotion from Junior branch to Senior branch. Candidates had to be selected for promotion by a Selection Committee consisting of (1) the Minister of Finance, (ii) the Chief Secretary or in his absence, an officer of the Appointment Department nominated by the Governor, (iii) the Finance Secretary or any other officer nominated by Governor, and the Commissioner of Commercial Taxes. Rule 39 laid down the procedure for determining seniority. It read as follows :- "32. Seniority :- Seniority of officers appointed to the Service shall be determined in accordance with the date of their substantive appointment to the Service. Rule 39 laid down the procedure for determining seniority. It read as follows :- "32. Seniority :- Seniority of officers appointed to the Service shall be determined in accordance with the date of their substantive appointment to the Service. Provided that if more than one officer is substantively appointed at the same time :- (i) to either branch of the Service by direct recruitment, their seniority inter se shall be determined by the ORDER :of the preference assigned to them by the Public Service Commission in the list of their recommendations; (ii) to the Senior branch of the Service by promotion, their relative seniority shall be their ORDER :of seniority inter se in the Junior branch of the Service; (iii) to the Junior branch of the Service by promotion, their seniority inter se shall be determined by the ORDER :of preference assigned to them by the Public Service Commission, except that where more than one officer is promoted from the same Service or Cadre, their seniority shall be determined by the ORDER :of their position inter se in the Service or Cadre from which they are promoted; and (iv) to either branch of the Service both by direct recruitment and promotion, the officer promoted shall rank senior to the officer recruited direct." Rule 39 was also amended in December, 1971. The amended rule read as follows: "39. Seniority :- Notwithstanding anything to the contrary contained in any law or contract or any JUDGMENT :, decree or ORDER :of any Court, Tribunal or authority the Seniority of the officers appointed to either branch of the Service Shall be determined with reference to the year of vacancies declared under rule 6, against which they are appointed on probation. Seniority :- Notwithstanding anything to the contrary contained in any law or contract or any JUDGMENT :, decree or ORDER :of any Court, Tribunal or authority the Seniority of the officers appointed to either branch of the Service Shall be determined with reference to the year of vacancies declared under rule 6, against which they are appointed on probation. If more than one officer is so appointed against vacancies of a particular year ;- (i) to either branch of the Service by direct recruitment, their seniority inter se shall be fixed according to the ORDER :of merit assigned by the Public Service Commission; (ii) to either branch of the Service by promotion and by direct recruitment, the officer promoted shall take precedence over the officer recruited direct; (iii) to the senior branch of the Service by promotion, their inter se seniority shall be the same which they held in the junior branch of the service; (iv) so the junior branch of the service by promotion from different gazetted services and non-gazetted ranks, their seniority inter se shall be determined by ORDER :of preference assigned to them by the Public Service Commission, except that when more than one officer is promoted from the same service or ORDER :, their seniority shall be determined by the ORDER :of their position inter-se in the service or cadre from which they were promoted; Provided that in the case where officers are promoted both from gazetted and non-gazetted posts, officers promoted from gazatted posts shall rank senior to those promoted from non-gazetted posts;" One aspect must be mentioned here although it is not germane to the main question before us. That is in sub-rule 3 of rule 39 above the provision laying down that rule 39-A be deemed to have been added with effect from the 27th April, 1966. The fixation of the year was quashed by this Court in Gaya Pd. Pandey and another v. State of Bihar and others : 1969 B.L.J.R. page 293. 3. It is not in controversy that promotees would rank senior to direct recruits of the same year. In terms of these rules in 1974 the Governor of Bihar declared 27 vacancies in the Senior branch, out of which twelve were to be filled up by direct recruitment and fifteen by promotion from officers of the Junior branch. 3. It is not in controversy that promotees would rank senior to direct recruits of the same year. In terms of these rules in 1974 the Governor of Bihar declared 27 vacancies in the Senior branch, out of which twelve were to be filled up by direct recruitment and fifteen by promotion from officers of the Junior branch. While steps were being taken to make direct recruitments through the Public Service Commission an incident came to pass which brought about far reaching changes and which, has resulted in the, tug of war before us. By a Government resolution dated 1.4.1975 the State Government decided to merge the Junior branch and Senior branch into one unified cadre. They were all to be known as Commercial Taxes officers thereafter. The rules for merger were as follows : Fifteen were to be promoted in the vacancies for 1974. The Junior branch officers were to be merged in, the Senior branch in three phases. One-third with effect from 1.4.1974 another one-third from 1.4.1975 and the last one-third from 1.4.1976. The amalgamation resolution is Annexurt-5 to C.W.J.C. No. 2335 of 1982. At the time the merger resolution was adopted there were, roughly about 300 officers in the Junior branch. In terms of the resolution the first 102 were merged in the Senior branch. Out of these 102, 25 were deemed to be promoted as against the vacancies of 1973 and 1974 in terms of the Governor's declaration of vacancies for promoted officers. The direct recruits are petitioners in C.W.J.C. No. 2335 of 1982 and respondents in C.W.J.C. No. 4827 of 1984. They do not dispute the seniority of these promotees over them. The rest officers of the Junior branch were merged with the Senior branch with effect from 1.4.1974. The other two-thirds were merged in the Senior branch with effect from 1.4.1975 and 1.4.1976. These, merged officers (i.e. leaving aside the promoted officers) were not considered to be promotees. 4. After the merger had been effected comes another batch of direct recruits who are petitioners in C.W.J.C. No. 2335 of 1982 and respondents in the other writ application. They were appointed Commercial Taxes officers by notifications dated 18.12.1977 and 29.4.1977. The notifications in regard to their appointments are Annexures-2 and 3 to this petition. The notification in regard to petitioner No. 2 has not been annexed. They were appointed Commercial Taxes officers by notifications dated 18.12.1977 and 29.4.1977. The notifications in regard to their appointments are Annexures-2 and 3 to this petition. The notification in regard to petitioner No. 2 has not been annexed. Thus between 1976 there were three classes of officers in the Commercial Taxes Department, namely, (i) the direct recruits, (ii) promotees, and (iii) merged officers who will hereinafter referred to as 'mergees'. The clash is between direct recruits appointed by Annexures-2 and 3 and the officers who had been merged in there different stages. All 'Mergees' became officers of the Senior branch prior to the appointment of the direct recruits. The direct recruits claim that they had been appointed as, against declared vacancies of 1974 and 1975 and therefore, they should rank Senior to the mergees, who had not been promoted. According to them, the mergees were Ex-cadre. The stand of the 'mergees,' on the other hand is that although they were not promoted officers, but they had entered the cadre of Commercial Taxes officers, i.e. the Senior branch before the direct recruits had been appointed. Question is of the status of the 'mergess'. The short question thus falling for consideration is whether mergees are seniors or the direct recruits are seniors. It the mergees are held to be officers of the Senior branch from the day they merged, they must be held to, be seniors to the direct recruits. If, on the other hand, the mergees are held to be waiting on the side lines, the direct recruits must be held to be seniors. 5. In ORDER :to determine the core question it is necessary to set the resolution for the merger; An English reading of the relevant aspects of the resolution reads as follows :- "The proposal of amalgamation of the Bihar Finance Service Junior and Senior branches was under consideration of the State Government. The State Government, after mature consideration, has resolved that the two branches of the Bihar Finance Service be amalgamated/merged. The two branches shall be merged as follows: (a) The merger of the Senior and Junior branches shall be effective from 1.4.1974. (b) The officers of Junior branch of the Bihar Finance Service shall be merged with the officers of Senior branch. The two branches shall be merged as follows: (a) The merger of the Senior and Junior branches shall be effective from 1.4.1974. (b) The officers of Junior branch of the Bihar Finance Service shall be merged with the officers of Senior branch. (c) Leaving aside such of those officers, who will be promoted to the Senior branch of the Service in accordance with the available vacancies on 1.4.1974, the other officers shall be merged serially within three years, One-third officers of the Junior branch shall be merged in ORDER :of seniority with effect from 1974. The next one-third from 1975 and the rest one-third in 1976. (d) As a result of the amalgamation leaving aside such of the officers, who may be promoted to the Senior branch from the Junior branch in accordance with the available vacancies of 1974, other officers merged with the Senior branch shall not be deemed to have been promoted to the Senior branch. Their salaries will be fixed in terms of rule 78 (a) of the Bihar Finance Code in the Senior branch at the first stage. (e) Where the Bihar Public Service Commission had held competitive examination for appointments to the Junior branch of the Finance Service, they shall be appointed to the Junior branch and later they will be absorbed in the Senior branch in the third stage. (f) After the amalgamation, appointments shall be made only to the Senior branch" In terms of the above resolution, the Governor ORDER :ed that the Bihar Finance Service Rules 1953 may be amended suitably to incorporate the rules of amalgamation/merger. It is not in controversy that at ORDER :ed in the resolution (Annexure-5), the 1953 Rules have not been amended. Thus no rules have been made for the ‘mergees'. Question is are they in a state of suspended animation or are they in the cadre of officers of the Senior branch in the Bihar Finance Service? 6. The question of inter-se seniority became critical in 1982 when the time came to promote officers to the rank of Assistant Commissioner, Commercial Taxes. The direct recruits apprehending that they may not get their due moved this Court by C.W.J.C. No. 2335 of 1982. It was asserted by them that promotions, had to be made from a gradation list and since no gradation list had been prepared, the State Government was not entitled to make any promotion. The direct recruits apprehending that they may not get their due moved this Court by C.W.J.C. No. 2335 of 1982. It was asserted by them that promotions, had to be made from a gradation list and since no gradation list had been prepared, the State Government was not entitled to make any promotion. The promotions have brought about the two writ applications. 7. The respondents, on the other hand asserted that there is a gradation list, but it is tentative as Ad-hoc, since the principles of seniority have not been determined authoritatively, by this Court and the Supreme Court. The promotions also, therefore, will be Ad-hoc, subject to the decisions of this Court and the Supreme Court. We have, therefore, to decide the rules of seniority consistent with Articles 14 and 16 (2) of the Constitution. 8. It is elementary that recruitments to any cadre must be made in accordance with the rules. Those rules may be statutory in terms of Article 309 of the Constitution or may be of the nature of notification or Departmental Instructions to fill the gap in absence of statutory rules. In terms of the Bihar Finance Service Rules 1953 as amended from time to time, there were only two modes of recruitments to the Bihar Finance Service (Senior branch). One was by direct recruitments through Bihar Public Service Commission and the other by promotion from the Junior branch. The status of merged officers could not have been covered in the 1953 Rules, since merger de hors the rules. 9. Learned counsel for the petitioners (in C.W.J.C. No. 2335 of 1952) has contended that the rules contemplate only two modes of entries into the Bihar Finance Service Senior branch. There being only two modes, namely, by direct recruitment and by promotion the 'Mergees' cannot claim to be in the cadre of Senior branch officers in the Commercial Taxes Department. On that basis it has been contended that the 'Mergees' must be held to be, Ex-cadre and must rank junior to the direct recruits. This submission is fallacious. The ‘Mergees' were previously, undoubtedly in the cadre of Junior branch officers. In 1975 the two cadres were amalgamated. As a result of amalgamation, it must be held that the cadre of Senior branch officers swelled in the terms of the merger resolution. This submission is fallacious. The ‘Mergees' were previously, undoubtedly in the cadre of Junior branch officers. In 1975 the two cadres were amalgamated. As a result of amalgamation, it must be held that the cadre of Senior branch officers swelled in the terms of the merger resolution. The two cadres having been made one, it is axiomatic that every one in the Junior branch got a berth in the cadre of Senior branch officers. They cannot be held to be waiting on the side lines. In my concluded opinion, therefore, the 'Mergees' did enter the cadre of Commercial Taxes Officers (Senior branch) from 1.4.1974. Thus the submission urged on behalf of the direct recruits that the 'Mergees' were Ex-cadres must be rejected as untenable. That must be so in regard to all the Junior direct officers merged in the Senior branch on 1.4.1974, 1.4.1975 and 1.4.1976. 10. It is true the 'Mergees' cannot be equated with the promotees, since, the merger ORDER :quoted earlier in paragraph 5 clearly states that such of those, who have not been promoted will not be deemed to have been promoted to the Senior branch. Yet it cannot be doubted that all the merged officers became officers of the Senior branch from the date of merger. The declaration that the merged officers would not be deemed to have been promoted to the Senior branch was only for the purpose of fixation of their salaries. That is why in the same sentence it was stated that their salary would be fixed in accordance with rule 78 (a)1-(v/1) of the Bihar Service Code at the first stage of the Senior branch. The declaration that they would not be considered promotees was only for the purpose of fixation of their salary/emoluments in the Senior branch. In all other-respects, it cannot be doubted, they became officers of the Senior branch from the dates of merger. 11. Having held that the 'Mergees' entered the cadre of Senior branch officers, question now arises whether the direct recruits, who had been appointed against the declaration of vacancies by the Governor for 1974, they should be permitted to rate their seniority from that date. If the old ORDER :had continued, it cannot be doubted that the year of allotment of the direct recruits would have been 1974. If the old ORDER :had continued, it cannot be doubted that the year of allotment of the direct recruits would have been 1974. But in the changed circumstances it is difficult to hold that the direct recruits can reckon their seniority from 1974. The quota rule for appointment to the Senior branch evaporated with the merger. If that was so, there was no question of promoting officers to the Senior branch from the Junior branch. In this behalf, we must forget the promotion of officers to the Senior branch from different departments. That is a separate category and we are not concerned with them. But so far as promotions on Junior branch was concerned, that came to, an end. That having come to an end, the question of year of allotment lost all significance. Every body would now, after the merger ORDER :, be appointed to the Senior branch by direct recruitment. In clause (f) at page 10 of the JUDGMENT :, it has been stated that after the amalgamation appointments would be made only to the Senior branch. Thus the importance attached to year of allotment in 1974 disappeared in 1975. Consequential charge were required to be made in the 1953 Rules. That is why it was ORDER :ed that the rules should be suitably amended. Unfortunately, no step has been tacked in this regard. In the circumstances, however, I have no doubt that the year of allotment lost all significance. That having lost significance and the 'Mergees' having joined the rank of Senior branch officers at a point of time when the direct recruits were not in existence, the former must reckon their seniority from the time they became members of the cadre of the Senior branch officers. The direct recruits were no where till December, 1976, when they were appointed by Annexures 2 and 3. Till the entire batch of 'Mergees' had filled the rank of Senior branch officers, the direct recruits had not found their berth in the Senior branch. The position is, therefore, obvious that the 'mergees' must be held to be Senior to the direct recruits. 12. It is not disputed that the case of the 'Mergees' is not covered by rule 39 of the Bihar Finance Service Rules, 1953. The position is, therefore, obvious that the 'mergees' must be held to be Senior to the direct recruits. 12. It is not disputed that the case of the 'Mergees' is not covered by rule 39 of the Bihar Finance Service Rules, 1953. Question is, are they without any mooring or without any right or can any support be found for them in the rules so as to render justice unto them in terms of Articles 14 and 16 (2) of the Constitution. Our attention has been drawn to a Circular issued by Government of Bihar in the Department of Personal bearing No. 3/H-106-72-P-15784 dated 26th August, 1972 to all Principal Secretaries, Heads of Departments and Divisional Commissioners. This Circular lays down the general principles and procedure for fixation of inter-se seniority in Service Cadres. Paragraph 3 lays down the principles fixation of seniority. Sub-paragraph (vii) the of reads as follows : "(vii) In the event of amalgamation of cadres seniority is determined with reference to the date of appointment in the particular grade on substantive or continuous officiating basis whichever is earlier. But inter se seniority of incumbents in any group of posts as amongst themselves is not to be disturbed in the process of amalgamation." If the above rule is made applicable to the present situation, there is no anomaly in regard to the position and status of the 'Mergees'. In terms of this rule, the date of merger must be held to be the date of appointment in the Senior branch. Thus this rule provides a berth to the 'Mergees'. In conjunction with this rule the merger must be deemed to be a mode of appointment for the purpose of fixing Ire seniority of officers in the cadre of Senior branch. 13. Learned counsel for the direct recruits (petitioners in C.W.J.C. No. 2335 of 1982) contended that the circular cannot be given the status of statutory rule and, therefore, it cannot be brought in aid to the 'Mergees'. I regret, I have difficulty in accepting this submission. It was laid down way back in the case of Sant Ram Sharma v. State of Rajasthan and others : A.I.R. 1967 Supreme Court, 1910 that where the rules are silent, Government circular or resolution may welt fill the gap. In that situation, the circular or notification will have the full force of statutory law. It was laid down way back in the case of Sant Ram Sharma v. State of Rajasthan and others : A.I.R. 1967 Supreme Court, 1910 that where the rules are silent, Government circular or resolution may welt fill the gap. In that situation, the circular or notification will have the full force of statutory law. I see no reason why on the authority of Sant Ram Sharma's case (Supra), it cannot be held that the circular, quoted above, cannot be deemed to the statutory. In my conclude opinion, therefore, the ‘Mergees’ must be deemed to have been appointed substantively (not promoted) from the date of their merger. 14. On the basis of my conclusion in regard to the date of appointment of the 'Mergees' in Senior branch, the position which emerges is that all the 'Mergees' had become substantive officer of the Senior branch on 1.4.1974, 1.4.1975 and 1.4.1976. Till those dates, the direct recruits were no where in existence in the cadre of Commercial Taxes Officers. The conclusion, therefore, is inescapable that the 'Mergees' must rank their seniority with effect from the date of their merger. 15. The next question is since what date can the direct recruits reckon their standing in the organisation/service? The quota rule vis-a-vis Junior branch and Senior branch having disappeared in 1975, the question of year of allotment lost significance. The direct recruits, therefore, cannot take advantage of the Governor's declaration some time in 1974. They were appointed in December, 1976 and onwards. They can reckon their standing in office only from the date of their appointment. 16. The JUDGMENT : will not be complete without reference to a Full Bench decision of our own High Court in Bishundeo Mahto v. The State of Bihar and others : 982 B.B.C.J., 45. S. Sarwar Ali, J summarised his conclusions in the leading JUDGMENT : as follows : "19. I may summarise my views as follows : (a) Question of seniority is limited to persons in the cadre. There is no competition with holders of ex cadre post. (b) The rules 1934 apply at the stage of temporary appointment when the appointment is made on consideration of merit. Rajib Ranjan's case (CWJC No. 290/69 disposed of on 23.4.70) in so far as it holds that the rule is applicable at the stage of temporary appointment has been rightly decided. (b) The rules 1934 apply at the stage of temporary appointment when the appointment is made on consideration of merit. Rajib Ranjan's case (CWJC No. 290/69 disposed of on 23.4.70) in so far as it holds that the rule is applicable at the stage of temporary appointment has been rightly decided. (c) Ad-hoc temporary appointment on account of administrative exigency unrelated to the consideration of merit is not to be taken into account for the purpose of reckoning seniority or when the question of promotion is decided. (d) The aforesaid rule is also applicable when non-substantive appointments are made substantive. Rajib Ranjan's case in so far as it takes a contrary view, has in my respectful opinion been wrongly decided. (e) In case of substantive promotions at the same time the seniority shall be determined according to the two rules of 1944. (f) Where substantive appointments/promotions are not made at the same time a person who has been substantively appointed/promoted earlier would be reckoned senior to a person who has been substantively appointed/promoted at a later stage. The only exception would be where the service rules are to the contrary. (g) When can a person be said to be substantively appointed in the light of what has been explained in paragraph 14 of the JUDGMENT :." The conclusion at (a) is not relevant for the present upon my finding/conclusion that the 'Mergees' joined the cadre of Commercial Taxes Officers on the dates of merger, i.e. 1.4.1974, 1.4.1975 and 1.4.1976. They were not ex cadre. The question of an application of 1934 Rules does not arise in the present case. Clause (b), therefore, does not apply to the facts of the present case. The petitioners placed in the cadre of Commercial Taxes Officer were not Ad-hoc on account of administrative exigency". Clause (c) also, therefore, would be irrelevant. Clause (d) has no relevance, since in my view the 'Mergees' must be deemed to be substantive in the cadre from the dates of merger. Clauses (e), (f) and (g) also seem to have no relevance. The case of Bishundeo Mahto (Supra) does not assist the direct recruits in any manner. The present case has no parallel in any decided case. Law and equitable considerations demand that the 'Mergees' should reckon their berth in the cadre from the date of their merger. 17. Clauses (e), (f) and (g) also seem to have no relevance. The case of Bishundeo Mahto (Supra) does not assist the direct recruits in any manner. The present case has no parallel in any decided case. Law and equitable considerations demand that the 'Mergees' should reckon their berth in the cadre from the date of their merger. 17. For the reasons, stated above, I hold that the seniority of the direct recruits vis-a-vis ‘Mergees’ must be decided upon the basis of the principles of entry into the cadre of Senior branch officers. The 'Mergees' must reckon their berth from the date of merger. The direct recruits must take their berth from their dates of appointment i.e. December, 1976 and onwards. 18. Both the applications are disposed of accordingly C.W.J.C. No. 2335 of 1982 is dismissed and C.W.J.C. No. 4827 of 1984 is allowed. In the special circumstances of the case, there shall be no ORDER :as to costs. Nazir Ahmad, J. - I agree.