Kedar Nath Ram v. State of Bihar — 1998 DIGILAW 538 (PAT)

JUDGMENT Aftab Alam & D.S. Dhaliwal, JJ. These two writ petitions relate to disputes of seniority arising as a result of merger of the junior and senior branches of the Bihar Finance Service in the year, 1975. Though the main issues concerning the controversy were earlier decided by this court in a judgment reported in 1986 P.L.J.R. 992, a few cases such as these two seem to have lingered on. C.W.J.C. No. 4082 of 1991 2. Kedar Nath Ram who is the sale petitioner in CWJC No. 4082/1991 seeks a declaration to be treated as senior to respondents 4 and 5 and a consequent direction to the concerned authorities to make necessary corrections in the gradation list, dated 18.4.1987 (Annexure 7) and the final gradation list, dated 29.5.1996 which has been brought on record as Annexure 10 to the amendment petition filed in this case. In the final gradation list the petitioner is shown at serial no. 103 with his date of joining the service being shown as 4.12.1975; respondents 4 and 5, on the other hand, are at serial nos. 86 and 87 with 1.4.1975 being shown as the date of their entering the service. 3. The facts of this case are brief and simple and can be stated thus. On the basis of the 21st combined competitive examination conducted by the Bihar Public Service Commission ('the Commission', hereinafter) both the petitioner and respondents 4 and 5 were selected for appointment to the Bihar Finance Service, Junior Branch and the recommendation for their appointment was made in a letter, dated 23.2.1974 issued by the Secretary of the Commission (Annexure 1). From this letter, it appears that the petitioner was at sl. no. 1 in the reserved category to which he belonged and respondents 4 and 5, in the same category, were at serials 2 and 3, below the petitioner. On the basis of the recommendation made by the Commission both the petitioner and respondents 4 and 5 joined the Bihar Finance Service, Junior Branch. Needless to say that by virtue of his higher position in the select list the petitioner was, at that stage, senior to respondents 4 and 5. The petitioner, evidently not satisfied with his performance in the 21st combined competitive test, sat again in the 22nd combined competitive test and this time he was selected for appointment in the Bihar Finance Service, Senior Branch. The petitioner, evidently not satisfied with his performance in the 21st combined competitive test, sat again in the 22nd combined competitive test and this time he was selected for appointment in the Bihar Finance Service, Senior Branch. The recommendation for his appointment in the senior branch on the basis of the 22nd combined competitive test was made by letter, dated 8.9.1975 issued by the Officer on Special Duty of the Commission. Following the recommendation by the Commission notification, dated 3.12.1975 was issued appointing the petitioner in the senior branch of the Bihar Finance Service and he joined his post in the senior branch on 4.12.1975. It is undeniable that on that date respondents 4 and 5 were still in the junior branch of the service. 4. In the meanwhile, however, the Government had taken a decision to merge the two branches of the Bihar Finance Service by resolution, dated 1.4.1975 (Annexure 4). The resolution also provided the manner and the mode of appointment of officers who were in the junior branch to the senior branch of the service following the merger. This resolution was in Hindi but its English translation as given in the earlier decision of this Court (1986 P.L.J.R 992) is reproduced below: "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. (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. 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." 5. Two aspects of the scheme of merger which requires to be noted here are that all such officers in the junior branch who were to be promoted against the vacancies in the senior branch as existing on 1.4.1974, were kept out of the scheme of merger and they were to get their promotions to the senior branch against those vacancies in due course. The remaining officers of the junior branch were alone covered by the scheme of merger and they were to be appointed to the senior branch in three batches; first batch with effect from 1.4.1974 and the second and the third batches with effect from 1.4.1975 and 1.4.1976 respectively. 6. Following the merger scheme respondents 4 and 5 were appointed to the senior branch with' effect from 1.4.1976 by a notification dated 23.9.1976 (Annexure 5). The notification contained a list of 29 persons all of whom were appointed to the senior branch with effect from 1.4.1976. The names of respondents 4 and 5 figure at serial nos. 5 and 6 of this notification. It is thus evident that till that date (23.9.1976) the petitioner was senior to respondents 4 and 5 as he had joined the senior branch of service, as a direct recruit, on 4.12.1975. The names of respondents 4 and 5 figure at serial nos. 5 and 6 of this notification. It is thus evident that till that date (23.9.1976) the petitioner was senior to respondents 4 and 5 as he had joined the senior branch of service, as a direct recruit, on 4.12.1975. This position continued till much later when the petitioner was promoted as Assistant Commissioner, Commercial Taxes on 26.11.1981 while respondents 4 and 5 got this promotion about five years later in 1987. This position, however, changed when a provisional seniority list of the members of the Bihar Finance Service was published on 18.4.1987 (Annexure 8). In the provisional gradation list respondents 4 and 5 were shown at serial nos. 388 and 389 with their date of entry into the service being shown as 1.4.1975 (and not 1.4.1976) from which date they were appointed to the senior branch by notification, dated 23.9.1976 as contained in Annexure 5) and the petitioner was at serial no. 407. The same position was confirmed in the final gradation list, dated 25.9.1996 (Annexure 10). 7. It may be stated here that no order or notification was brought to our notice by which the date of appointment of respondents 4 and 5 in the senior branch was shifted back by one year from 1.4.1976 to 1.4.1975. The reason for shifting back of the date is, however, explained in the following manner. It is stated that under the scheme of merger all those officers in the junior branch who were due to be promoted against vacancies in the senior branch, as existing on 1.4.75, were kept outside the scheme of merger and they were to get their due promotions. However, at the time the scheme was announced, the exact number of vacancies existing on 1.4.1975 was unascertainable for various reasons. In some cases it was also not clear whether a particular officer would be able to get the promotion on account of some disciplinary proceeding pending at that time. As a result, the vacancies available in the senior branch, as on 1.4.1975, continued to arise till much later against which individual officers were given notional promotions. This in turn resulted in vacancies in the first and second batches of appointments to the senior branch under the merger scheme. As a result, the vacancies available in the senior branch, as on 1.4.1975, continued to arise till much later against which individual officers were given notional promotions. This in turn resulted in vacancies in the first and second batches of appointments to the senior branch under the merger scheme. In other words an officer who was earlier appointed to the senior branch in the second phase with effect from 1.4.1976, could be adjusted, due to the resultant vacancy, in the first batch/phase with effect from 1.4.1975. The date of appointment to the senior branch thus got shifted back by one year. 8. According to the respondents this uncertainty was, thus, inherent in the scheme of merger and it was for this reason that the petitioner after having maintained his seniority over respondents 4 and 5 for more than a decade found himself junior to them in the provisional gradation list published on 18.4.1987. 9. It is further to be noted that what is stated above, is only an explanation as to what might have happened. It is, however, not clear that it actually happened because no order or notification shifting back the date of appointment of respondents 4 and 5 by one year was brought on the record either in the counter affidavit filed on behalf of the State or on behalf of the two contesting respondents. CWJC No. 4287/1991: 10. Coming now to the facts of the next case CWJC No. 4287/1991 it is found that Kanhaya Prasad, the sole petitioner in this case was appointed in the junior branch of the Bihar Finance Service on 7.2.1972 following his selection in the 19th combined competitive test held by the Commission. While a member of the junior branch of the service, he sat again in the 22nd combined competitive examination and was selected for appointment in the senior branch of the service. According to the petitioner his selection in the 22nd combined competitive test was for appointment against a post falling vacant in 1973. In other words, it is the case of the petitioner that 1973 was the year of allotment concerning his appointment in the senior branch of the service. 11. According to the petitioner his selection in the 22nd combined competitive test was for appointment against a post falling vacant in 1973. In other words, it is the case of the petitioner that 1973 was the year of allotment concerning his appointment in the senior branch of the service. 11. In the meanwhile following the merger of the two branches on 1.4.1975, a notification was issued on 2.11.1975 by which the petitioner, along with 101 other officers was appointed in the senior branch under the scheme of merger of the two branches of the service. The name of the petitioner figures at sl. no. 84 in this notification (Annexure 3-A). 12. Shortly thereafter a notification was issued on 3.12.1975 (Annexure 4) making appointment of direct recruit in the senior branch of the service on the basis of the results of the 22nd combined competitive test. In this notification too, the name of the petitioner figures at serial no. 40 and it is the grievance of the petitioner that it is date of this notification which has been taken for reckoning his seniority in the service. According to the petitioner by arbitrarily assigning him 3.12.1975 as the date of his entry into service he has been put below a large number of officers who were in fact junior to him. 13. According to Mr. Shiv Kriti Singh, learned counsel appearing on behalf of Kanhaya Prasad (petitioner in CWJC no. 4287/1991) his seniority should be reckoned on the basis that he was appointed as a direct recruit against a post falling vacant in 1973 and he should be given a position in the seniority list taking 1973 as the year of allotment. He alternatively submitted that if that be not possible, the petitioner should at least be given 1.4.1975 as the date of entry into service in terms of the notification, dated 2.11.1975 (Annexure 3-A) by which he was appointed to the senior branch of service with effect from 1.4.1975 under the scheme of merger. Mr. Singh strongly argued that denying the petitioner a position in the seniority list even taking 1.4.1975 as his date of entry in service would be highly unjust, unfair and unreasonable. 14. Mr. Singh strongly argued that denying the petitioner a position in the seniority list even taking 1.4.1975 as his date of entry in service would be highly unjust, unfair and unreasonable. 14. So far petitioner Kedar Nath Ram is concerned (in CWJC No. 4042/1991) it appears to us that putting him below respondents 4 and 5 (Ram Avtar Choudhary and Sudarshan Ram) is highly anomalous, inequitable, unfair and unjust. It is noted above that all the three had joined the service in the junior branch on the basis of the 21st combined competitive examination. In that examination, the petitioner has ranked above respondents 4 and 5 and was, therefore, senior to them in the junior branch of the service. Later, with a view to improve his position he sat in the 22nd combined competitive examination and was in fact successful in achieving the desired object. In the subsequent examination he was selected for the senior branch of service which he joined on 4.12.1975. On 23.9.1976 when respondents 4 and 5 were appointed to the senior branch of the service with effect from 1.4.1976, he still ranked senior to them. He maintained his seniority over respondents 4 and 5 at the time of his promotion to the post of Assistant Commissioner, Commercial Taxes which came five years earlier than respondents 4 and 5 but 10 and behold after having maintained his seniority for more than a decade he found himself being put below respondents 4 and 5 in the provisional seniority list, dated 18.4.1987. The only justification for this inequitable and anomalous turn about is that by virtue of notional promotions given to some other officers room was found for respondents 4 and 5 to appoint them in the senior branch of service in the first phase with effect from 1.4.1975. The explanation does not appeal to us at all. 15. Dr. S.N. Jha, learned counsel appearing for the petitioner in this case submitted that in case respondents 4 and 5 were to be given appointments in the senior branch with effect from 1.4.1975, there was no reason why the petitioner should also not be given notional promotion from the same date for the simple reason that on 1.4.1975 he too was the member of the junior branch and was undeniably senior to respondents 4 and 5. We find substance in the submission made on behalf of the petitioner. 16. Mr. We find substance in the submission made on behalf of the petitioner. 16. Mr. Sunil Kumar, learned counsel for respondents 4 and 5 submitted that at the time of joining the senior branch of the service on 4.12.1975, the petitioner had taken a conscious decision and was, therefore, liable to face the consequences. He also tried to apply the principle of election submitting that it was open to the petitioner not to join the senior branch of the service regardless of his selection in the 22nd combined competitive examination. We are not impressed by the submission at all. The doctrine of election would apply only in a situation where the consequences of adopting one of the two or more course available are clearly known to the person concerned. We have not an iota of doubt in our mind that when the petitioner joined the senior branch of the service as a direct recruit on the basis of his selection in the 22nd combined competitive examination, it would be farthest from his mind that by doing so he would become junior to respondents 4 and 5 who till then were junior to him (and continued so for about a decade thereafter). We are, therefore, satisfied that the authorities in putting the petitioner Kedar Nath Ram below respondents 4 and 5 in the gradation list have acted unreasonably and arbitrarily and the petitioner, on equitable grounds, is entitled to the reliefs claimed by him. 17. We accordingly direct that petitioner Kedar Nath Ram be shown above respondents 4 and 5 and necessary corrections in that regard be carried out in the final gradation list. 18. As regards the 2nd case (CWJC No. 4287/1991), on facts we were half inclined to take the same view as in the first case but for the fact that so far as petitioner Kanhaya Prasad is concerned, his claim of seniority stands concluded by an earlier decision of this court which was also affirmed by the Supreme Court. As noted above, following the merger of the two branches of the Bihar Finance Service, the disputes concerning seniority had earlier come to this Court in CWJC No. 2335/1982 and CWJC No. 4827/ 1984. In CWJC No. 4827/1984 which was filed on behalf of Bhogendra Mishra and three others (who were appointed to the senior branch under the scheme of merger) seniority was claimed over direct recruits. In CWJC No. 4827/1984 which was filed on behalf of Bhogendra Mishra and three others (who were appointed to the senior branch under the scheme of merger) seniority was claimed over direct recruits. In that case the present petitioner Kanhaya Prasad was impleaded as respondent no. 6. It is further to be noted that the two writ petitions were disposed of by a common judgment and order passed by a division bench of this court. That judgment is reported in 1986 P.L.J.R. 992. By that judgment the claim of seniority of the "mergees" was upheld and consequently CWJC No. 2335/1992 was dismissed and CWJC No. 4827/1984, in which the present petitioner was respondent no. 6, was allowed. An appeal against this judgment was also dismissed by the Supreme Court by order, dated 13.8.1986 passed in S.L.P. (Civil) Nos. 6842 and 8152 of 1986. 19. Thus, the petitioner's claim to reckon his seniority taking 1973 as his year of allotment is directly hit by the principle of res judicata. His alternative claim regarding 1.4.1975 being his date of entry in service on the basis of the notification, dated 2.11.1975 is similarly hit by the principle of constructive res judicata. What is more in case the petitioner's claim to take 1.4.1975 as the date of his entry in service is accepted the result would be that he would rank senior to one Subhas Chandra. Now this Subhas Chandra (at serial no. 98 in the notification, dated 2.11.1975 contained in Annexure 3-A) was petitioner no. 3 in CWJC No. 4827/1984 (in which the present petitioner was respondent no. 6). CWJC No. 4827/1984 having been allowed in favour of the petitioners of that case the aforesaid Subhas Chandra now ranks senior to the petitioner. In case, however, the petitioner's claim is accepted, be would assume a higher position than Subhas Chandra. A situation would thus arise that would be contrary to the earlier division bench decision of this court which was also confirmed by the Supreme Court. Mr. Sunil Kumar stated that such would be the consequence of accepting the claim of the petitioner and Mr. Shiv Kriti Singh was not able to deny this statement. Mr. A situation would thus arise that would be contrary to the earlier division bench decision of this court which was also confirmed by the Supreme Court. Mr. Sunil Kumar stated that such would be the consequence of accepting the claim of the petitioner and Mr. Shiv Kriti Singh was not able to deny this statement. Mr. Singh, however, argued at some length that in the earlier decision the issues were different and in that case this court was mainly concerned with the question of inter se seniority between the "mergees" and the direct recruits and, therefore, that decision would not operate as res judicata against the petitioner. 20. We are not satisfied with the submissions made by Mr. Singh and for the reasons stated above, we are of the definite opinion that so far as his claim is concerned it stands concluded by the earlier 'decision of this Court. He, therefore can not be granted any relief in this case. 21. In the result C.W.J.C. No. 4287 of 1991 is dismissed while the other writ petition being C.W.J.C. No. 4082 of 1991 is allowed. There will be no order as to costs.