Somesh Chandra Biswas v. State of Bihar — 1999 DIGILAW 8 (PAT)

ORDER : The petitioner seeks to challenge an office ORDER :issued by the Deputy Secretary to the Government in the Department of Building Construction & Housing under his memo no. 5361, dated 11.12.1987 (Annexure 6) by which the representation filed by respondent no. 6 was allowed and in the final gradation list of Assistant Government Architects, he was shown senior to the petitioner. 2. The undisputed facts giving rise to the dispute of seniority between the petitioner and respondent no. 6 can be stated as follows. On 28.8.1963, respondent no. 6 was granted a scholarship (Annexure A) by the Government of Bihar in the Public Works Department for the study in Architecture & Town Planning. The grant of scholarship was subject to the condition that respondent no.6 would have to serve the Government of Bihar for a period not less than five years on completion of his studies. The condition was secured by execution of a bond by respondent no.6. On completion of the studies, respondent no.5 in pursuance of the condition attached to the scholarship was appointed as Architectural Assistant for a period of six months from the date of his joining by notification, dated 10.11.1957 (Annexure B). While respondent no. 6 was working on that basis, advertisement no. 5/1968 (Aimexure D) was issued by the Bihar Public Service Commission ('the Commission', hereinafter) on 2.2.1968 inviting application for appointment against three posts of Architectural Assistant (one post being reserved for SC/ST subject to availability of candidates) in the pay scale of Rs. 325-505/Both the petitioner and respondent no.6, along with others, made application in response to that advertisement. The Commission made its recommendations for appointment to the post of Architectural Assistant by its letter dated 26.7.1968 addressed to the Secretary, Building Construction. Department. In this letter, the names of the recommended candidates were listed in ORDER :of preference with the names of the petitioner and respondent no.6 at serial 1 and 2 respectively. In the case of the petitioner, the recommendation to give him, at the time of appointment, one advance increment and in the case of respondent no.6 two advance increments. 3. Following the Commission's recommendation, notification no. 23657, dated 2.12.1968 (Annexure 7 = Annexure E) was issued appointing respondent no.6 as an Architectural Assistant with effect from 27.7.1968 and placing him on probation for two years. 3. Following the Commission's recommendation, notification no. 23657, dated 2.12.1968 (Annexure 7 = Annexure E) was issued appointing respondent no.6 as an Architectural Assistant with effect from 27.7.1968 and placing him on probation for two years. It was further stipulated in the appointment notification that his seniority would be as per the Commission's recommendation. 4. In the meanwhile, the six months' period of his appointment under notification dated 10.11.1967 having already expired another notification no. 23659 (Annexure C) was. also' issued on the same date (2.12.1968) by which his period of service was" extended from 11.5.1968 to 26.7.1968, the date following which he was appointed on a regular basis on the Commission's recommendation. 5. Though the' name of the petitioner was at serial no.1 in the Commission's recommendation, no notification appointing him was issued., at that time and the petitioner also does not seem to have raised any objection to the action of the State Government in not appointing him at that stage. It appears that after the Commission's recommendation lapsed after one year from the date of its issuance, the State Government requested the Commission to revalidate the recommendation and the Commission by letter, dated 21.11.1969 (Annexure FI) revalidated its earlier recommendation in respect of the petitioner and another candidate for appointment to the post of Architectural Assistant. following the revalidation of the Commission's recommendation. notification dated 24.1.1970 (Annexure 1/ A = Annexure G) was issued appointing the petitioner as an Architectural Assistant w.e.f. the date of his joining and placing him on probation for two years. In' this notification also it was stipulated that the petitioner's seniority would be as per the Commission's recommendation. It appears that at that stage the petitioner was for some reason not in a position to join and he made a request for being allowed some longer time for joining. Allowing this request the Government. by letter, dated 12.6.1970 (Annexure 6) asked him to take over the charge of the post of Architectural Assistant, Public Works Department, by the last week of July, 1970 and he finally joined the post on 30.7.1970. 6. On completion of the two years period of probation, respondent no.6 was confirmed on that post w.e.f. 11.11.1969 by notification dated 8.6.1971 (Annexure F). 6. On completion of the two years period of probation, respondent no.6 was confirmed on that post w.e.f. 11.11.1969 by notification dated 8.6.1971 (Annexure F). It is thus evident that for the purpose of confirmation his service, prior to the recommendation of the Commission and on the basis of the notification dated 10.11.1967 was also taken into account. 7. Later, by notification, dated 30.10.1972 (Annexure I) the petitioner was confirmed in service w.e.f. 31.7.1972 on completion of the two years period of probation from the date of his joining on 30.7.1970. 8. Later by notification nos. 4411 and 4412 respectively issued on 8.3.1973 (Annexure 3) the petitioner and respondent no.6 were given promotion to the post of Assistant Government Architect in anticipation of recommendation by the Commission, for a period of six months or till the coming of the Commission's recommendation whichever being earlier. 9. On 18.11.1974 both the petitioner and respondent no.6 were given permanent" promotion to that post by notification nos. 20638 and 20639 respectively (Annexure 4 = Annexure J & K) w.e.f. the date of their joining the post. 10. On 4.6.1986 an office ORDER :no.4088 (Annexure 5) was issued enclosing a provisional gradation list of Assistant Government Architects. In the provisional list the petitioner was shown at serial no.3, above respondent no.6 at serial no.4. Respondent no.6 filed a representation for correction of the gradation list claiming seniority over the petitioner. His representation was finally allowed by office ORDER :, dated 11.12.1987 (Annexure 6) and in the final gradation list he was shown as senior to the petitioner. It is this gradation list which comes under challenge in this writ petition. 11. The petitioner had earlier sought to challenge the gradation list before the Bihar Administrative Tribunal but the Tribunal got dissolved before making adjudication on the dispute and then the petitioner had to come to this court. This sufficiently explains the delay in coming to this Court and the petitioner's challenge to the gradation list is, therefore, not to be rejected on the ground of delay or laches alone. 12. The petitioner assails the ORDER :dated 11.12.1987 and bases his claim of seniority over respondent no.6 relying upon the following facts and circumstances: (i) In the Commission's recommendation which was made in ORDER :of preference the petitioner was at serial no.1 and respondent no.6 at serial no.2. 12. The petitioner assails the ORDER :dated 11.12.1987 and bases his claim of seniority over respondent no.6 relying upon the following facts and circumstances: (i) In the Commission's recommendation which was made in ORDER :of preference the petitioner was at serial no.1 and respondent no.6 at serial no.2. (ii) In the appointment letters of both the petitioner and respondent no.6 the stipulation was made that their respective seniority would be as per the Commission's recommendation. (iii) At the time of their promotion to the post of Assistant Government Architect the notification concerning the petitioner preceded the notification of respondent no.6. 13. Mr R.N. Mukhopadhya learned counsel for the petitioner submitted that in these facts and circumstances the petitioner must rank senior to respondent no.6 on the basis of the Government decision dated 12.12.1934. He invited my attention to para 2(b) of the Government decision which is as follows : "2(b) : When direct recruits have been placed in ORDER :of merit by a Selection Board full consideration should be given to the opinion of such Board." 14. The respondent on the other hand supports the ORDER :dated 11.12.1987 and resists the petitioner's claim of seniority by pointing out that on the basis of the Commission's recommendation he was appointed on 2.12.1968, that is to say, more than a year before the notification appointing the petitioner was issued on 24.1.1970 and more than a year and half before the petitioner joined the post on 31.7.1970; that if the difference is to be counted from the dates of their respective joining, the gap would be even longer with respondent no.6 joining the post (prior to the Commission's recommendation, for a fixed period, on the basis of the bond executed by him) on 10.11.1967, that is to say, more than three years and eight months before the petitioner joined the post on 31.7.1970. It is further pointed out on behalf of respondent no.6 that the same gap existed between their respective dates of confirmation to the posts of Architectural Assistant; respondent no.6 was confirmed w.e.f. 11.11.1969, taking into account his service prior to the Commission's recommendation and the petitioner on the other hand was confirmed w.e.f. 31.7.1972 after more than three years and eight months from the date of confirmation of respondent no.6. According to respondent no.6, therefore, the stipulation made in their letters of appointment was wholly formal and inoperative and the preceding number of notification for the petitioner's promotion to the -post of Assistant Government Architect was of no consequence. 15. As regards the Government decision dated 12.12.1984 it was submitted that the petitioner relied upon sub - para (b) of para 2 overlooking that para 2 of the decision clearly said that those provisions were simply suggestions for the guidance of department concerned. Para 2 of the Government decision is as follows : "2. Government do not consider it practicable to lay down definite criteria to determine the seniority of direct recruits. The following suggestions, however, are made for the guidance of department concerned." 16. On hearing counsel for the parties and on a consideration of the materials brought before this court, I am inclined to' accept the case of the respondent. In my view, it is no longer possible to ignore or disregard the long gap of time (3 years and 8 months) between the respective joining of the posts by respondent no.6 and the petitioner. It is indeed true that in the Commission's recommendation the names of the petitioner and respondent no.6 were at serial 1 and 2, in ORDER :of preference. Further, the Commission had made recommendation to appoint the petitioner with one advance increment and respondent no.6 with two advance increments presumably having regard to the fact that respondent no.6 was already working on that post for the past one year. This in itself would have led to an anamolous position by putting respondent no.6 though being junior to the petitioner in the higher grade of the pay scale. However, leaving aside that anamoly for the moment the fact remains that following the Commission's recommendation only respondent no.6 was appointed by notification dated 2.12.1968. The petitioner could have challenged the action of the State Government in not appointing him and appointing respondent no.6 who was number 2 in the Commission's recommendation. He, however, did not raise any objection at that stage. Perhaps it also suited him at that time because when his appointment notification was finally issued on 24.1.1970, he was not in a position to join immediately and he joined after more than six months from the date of the notification. He, however, did not raise any objection at that stage. Perhaps it also suited him at that time because when his appointment notification was finally issued on 24.1.1970, he was not in a position to join immediately and he joined after more than six months from the date of the notification. It may further be noted that after the appointment of respondent no.6, the recommendation of the Commission lapsed on expiry of one year and it had to be revalidated on a request made by the State before the petitioner could be appointed on that basis. In these facts and circumstances it appears to me that the petitioner lost the advantage of being at serial no.1 in the Commission's recommendation. It further appears to me that though both respondent no.6 and the petitioner were appointed on the basis of the same advertisement and from the same letter of recommendation issued by the Commission, their appointments can hardly be said to be part of the same transaction. The petitioner not having raised any objection to the appointment of respondent no.6 being made much earlier than this own and having joined the post more than three and a half years after respondent no.6 cannot be allowed to claim seniority on the basis of the Commission's recommendation. He did not join the post immediately after the Commission's recommendation as it did not suit his convenience at that stage. Now, accepting his claim of seniority on that basis would amount to allowing him to have his cake and eat it too. In this case the dates of joining, the period of continuous officiation and the date of confirmation on the post of Architectural Assistant are of considerable importance. In my view those are the real concrete facts which cannot be brushed aside by the stipulation made in the letters of appointment. 17. I am, therefore, inclined to accept the submissions made on behalf of respondent no.6 that the stipulation made in their respective letters of appointment was inoperative and of no consequence and respondent no.6 would rank senior on the basis that his date of joining was much earlier. 18. I, therefore, find no infirmity in the impugned ORDER :and the petitioner, in my view, is not entitled to any relief. This writ petition is accordingly dismissed.