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1986 DIGILAW 99 (PAT)

Lalji Sharan v. State of Bihar

1986-03-31

B.P.SINHA, S.S.SANDHAWALIA

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JUDGMENT : Birendra Prasad Sinha, J. - This application under Articles 226 and 227 of the Constitution of India has been filed for quashing the ORDER :s contained in Annexures - l, 2 and 12 and for directing respondents 1 to 3 to determine the petitioner's claim of seniority and on such determination to appoint him to his appropriate rank. 2. The petitioner was appointed as Sectional officer under the District Engineer, Sarau on 2.8.1951. His appointment was approved on 22.11.1951 (vide Annexure-3). As stated above he has challenged the ORDER :contained in Annexure-1 an ORDER :communicated by the Under Secretary to the Government of Bihar dated 5.7.1980 to the Administrator, Saran District Board and Annexure-2 which is an ORDER :communicated by the Under Secretary to the Government of Bihar dated 18.12.1974 to the Administrator, Saran District Board. By Annexure-12 the Under Secretary to the Government of Bihar by letter dated 25.8.1978 cancelled the ORDER :of the Saran District Board dated 27.6.1978 by which a working arrangement was made authorising the petitioner to perform the duties of Assistant Engineer. It was mentioned therein that question of seniority of the petitioner vis-a vis Pashupati Singh and allied matters were under the consideration of the Government. 3. When the case was taken up for hearing Mr. B. C. Ghose, learned counsel for the petitioner, submitted that petitioner's seniority had now been determined, which will appear from the communication from the Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad, Saran, Chapra dated 3.11.1982 to Shri A. B. S. Sinha. Advocate, High Court, contained in Annexure-E to the Supplementary affidavit filed on behalf of the Zila Parishad. According to this communication it was stated, the seniority of the petitioner had been determined and he had been placed above respondents 4 and 6. Mr. Ghose further stated that the petitioner had now retired from service and submitted that Zila Parished should be directed to give a notional seniority to the petitioner in terms of Annexure-E and the benefits accruing therefrom. Mr. Binod Shankar Tiwary who appeared on behalf of some of the members of Zila Parishad submitted that the decision in Annexure-E was not the decision of Zila Parishad and, therefore, could not be given effect to. However, learned counsels appearing on behalf of respondents 4, 5, and 6 did not object to giving a notional seniority to the petitioner in terms of Annexure-E mentioned above. However, learned counsels appearing on behalf of respondents 4, 5, and 6 did not object to giving a notional seniority to the petitioner in terms of Annexure-E mentioned above. Mr. Tiwary appearing on behalf of some of the members of Zila Parishad submitted that the District Development Commissioner-cum-Chief Executive Officer has no power or authority to decide the question, and it is only the Parishad which can finally decide it. He may be right in his submission; inasmuch as the Parishad is a statutory body and its Administrator is only an Executive Officer. But so far the present case is concerned it is apparent from the supplementary affidavit filed on behalf of the Zila Parishad on 9.11.1982 that in compliance of this Court's ORDER :dated 5.2.1982 the District Development Commissioner-cum-Chief Executive Officer had communicated the decision regarding inter se seniority of the petitioner and respondents 4 to 6. It is, however, not stated in the supplementary affidavit that the decision was of the Zila Parishad. But all the same the affidavit has been filed on behalf of the Parishad and had been sworn by its law clerk who was duly authorised by the Zila Parishad to swear the affidavit. In the instant case, therefore, the Zila Parishad cannot disown this decision. Be that as it may, since the petitioner has superannuated and the contesting respondents have no objection to the seniority given to him, I think this application can be disposed of directing the Zila Parishad to give a notional seniority to the petitioner. The respondent Zila Parishad is, accordingly, directed to give a notional seniority to the petitioner in terms of Annexure-E and consequently all the benefits accruing therefrom. The writ application is, accordingly disposed of. I agree.