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2003 DIGILAW 427 (PAT)

Jagjit Singh v. State Of Bihar

2003-04-16

NAGENDRA RAI, R.S.GARG

body2003
Judgment 1. The appellant Jagjit Singh has filed this letters patent appeal under Clause (10) of the Letter Patent being aggrieved by the order dated 19.10.2001 passed in C.W.J.C. No. 10534 of 1992 wherein the Hon ble Single Judge has allowed the writ application filed by the respondent no.10, Keshawant Singh directing that the said petitioner/present respondent no.10 would rank senior to the original respondents no. 5 to 10 and the respondent authorities were directed to make necessary corrections in the gradation list and to give to the said petitioner all consequential benefits on the basis of his seniority over the said private respondents. The appellant figured as respondent no. 6 in the original writ application. 2. The original writ petitioner filed the writ application challenging the gradation list of Drug Inspectors of 72-73 batch contained under Memo. No. 1619 (15) dated 30.9.1992 (Annexure-14) issued by the Joint Secretary in the Department of Health. In the said gradation list the petitioner was shown at Sl. No. 7 junior to the original respondents no. 5 to 10, who were placed at Sl. Nos. 1 to 6 in the list. During pendency of the writ application the original petitioner filed two amendment applications seeking to challenge Annexure-21, notification dated 14.10.1998 under which the original respondent no.6 (present appellant) in addition to his substantive post of Drug Inspector was given the additional charge of the post of Assistant Drugs Controller, Bihar; and under the second application the petitioner sought to challenge the final gradation list of the Drug Inspectors issued under notification dated 27.2.2001 (Annexure-29) wherein the petitioner is shown at Sl. No. 12 while the original respondents No. 5 to 10 were placed at Sl. Nos. 6 to 11. From the order passed by the learned Single Judge it appears that both the applications were allowed. 3. Vide advertisement No. 79/1969 the Bihar Public Service Commission to fill-up a single post of Chief Hospital Pharmacist. The petitioner who fulfilled requisite qualification etc. submitted his candidature, was selected and recommended for appointment by the Commission. The recommendations were accepted and the Deputy Secretary to the Government, for and on behalf of the Governor issued notification/memo. No. 3177(2) dated 1.9.1970 (Annexure-1). The petitioner who fulfilled requisite qualification etc. submitted his candidature, was selected and recommended for appointment by the Commission. The recommendations were accepted and the Deputy Secretary to the Government, for and on behalf of the Governor issued notification/memo. No. 3177(2) dated 1.9.1970 (Annexure-1). By this notification in exercise of the powers under Section 21 read with Section 3(e)(ii) of the Drugs and Cosmetics Act, 1940 the appropriate Government appointed the petitioner as Chief Hospital Pharmacist in Darbhanga Medical College and Hospital on temporary basis for a period of six months from the date of his joining the post. On 8.3.1971 (Annexure-2) issued in exercise of powers under Section 21 read with Section 3(e) (ii) of the Act, before completion of the above referred six months period the petitioner was posted temporarily on the post of Chief Hospital Pharmacist on a regular basis with effect from 14.3.1970. 4. While the petitioner was occupying the post of Chief Hospital Pharmacist, the Commission issued yet another advertisement No. 47/1971 for filling-up a number of post of Drug Inspectors. The advertisement clarified that the post of the Drug Inspector was to carry the same pay scale as that of Chief Hospital Pharmacist. The Government required that the minimum qualification should be in accordance with Rule 49 of the Drugs and Cosmetics Rules, 1945, which apart from a degree in Pharmacy provided for other qualifications. The petitioner who was already occupying the office/post of Chief Hospital Pharmacist temporarily at Darbhanga Medical College and Hospital made an application in response to the said advertisement No. 49/1991. After submission of his application the Department forwarded the same to the Commission. The Commission entertained the application and treated the petitioner as one of the candidates in response to Advertisement No. 47/1971. At that point of time everybody appears to be oblivious of the fact that in response to Advertisement No. 79/1969, the petitioner was selected and recommended for appointment and was appointed as Chief Hospital Pharmacist. It was also not brought to anybodys notice that if the petitioner was already appointed as Chief Hospital Pharmacist then he was not required to apply afresh for his appointment to the post of Drug Inspector, a post which was carrying the same pay scale of Chief Hospital Pharmacist. It was also not brought to anybodys notice that if the petitioner was already appointed as Chief Hospital Pharmacist then he was not required to apply afresh for his appointment to the post of Drug Inspector, a post which was carrying the same pay scale of Chief Hospital Pharmacist. After the selection process was over the Commission prepared a list of 12 selected candidates and sent the same to the Health Commissioner on 13.4.1972 (Annexure-B). From the records it appears that one Sangeet Kumar Sinha was recommended against single vacancy in the permanent post and rest of the 11 candidates were recommended against vacancies in the temporary post of Drug Inspector. Undisputedly the petitioner was shown at Sl. No. 9 below the original respondents no. 5 to 10. The records show that on 24.2.1973 (Annexure-C) a memorandum was prepared and was placed before the Cabinate. The petitioner figured both as candidate selected by the Commission and Drug Inspector in service. Finding the anomaly the Health Commissioner thrashed the matter and found that petitioners appointment by the Commission in response to Advertisement No. 49/1971 would not affect his seniority because he was in service from before, did possess the minimum qualifications for appointment and was appointed on basis of an earlier notification issued by the Government following the recommendations of the Commission. The Health Commissioner also observed that post of Chief Hospital Pharmacist and Drug Inspector were treated as equivalent and inter transferable. Making certain more observations in favour of the petitioner the Health Commissioner opined that there was no occasion to reappoint the petitioner and the petitioner can be given a post like Drug Inspector who were in service from before and the other 11 selected candidates were required to be given appointment. The Memo/recommendation of the Health Commissioner were approved by the Minister, who was pleased to observe that the petitioner may be appointed by transfer so that his seniority may not be adversely affected. Thereafter notification dated 12.4.1973 (Annexure-6) was issued wherein 11 candidates recommended by the Commission were appointed as Drug Inspectors; it would be clear from the said notification that the petitioner was not appointed alongwith the other 11 candidates but his case was dealt with separately in the same notification and he was simply transferred and appointed as Drug Inspector for Singhbhum district. The words "appointed" in the said notification in fact was not to indicate that the petitioner was being appointed for the first time, it appears that the word "appointed" used in the said notification for the petitioner was used to show his posting, while in case of the other 11 including the original respondents no. 5 to 10 it was to show their appointment for the first time. The learned Single Judge has observed that the appointment of respondents no. 5 to 10 was made in the sense of their entry in service. Thereafter vide notification dated 30.4.1987 (Annexure-3) petitioner and respondents 6, 9 and 10 were confirmed in service; petitioners date of confirmation was shown as 14.9.1971 while date of confirmation of those three respondents was shown as 18.7.1974. Thereafter in yet another notification the order of seniority was maintained but in the tentative gradation list dated 28.10.1990 (Annexure-8) the order was changed and the petitioner was placed at Sl. No. 24 while the respondents no. 5 to 10 were placed above him at Sl. Nos. 17 to 23. The petitioner, from the records it appears made a representation for correcting his position, the representation was accepted and a corrigendum was issued (Annexure-10A) placing the petitioner at Sl. No. 7 and the original respondents below him. Despite earlier gradation list and seniority list and issuance of the corrigendum in the final gradation list the petitioner was placed below the respondents showing him junior to the original respondents, therefore, he had come to this Court. 5. The learned Single Judge after hearing the parties allowed the writ application. Being aggrieved by the said order the respondent no. 6 has now filed this letters patent appeal. 6. Learned counsel for the appellant submitted that the petitioners earlier appointment was on the post of Chief Hospital Pharmacist and his service on that post can not be taken into account for determining his seniority as Drug Inspector. It is contended that for the post of Drug Inspector the seniority must be determined on the basis of the original petitioners position in the merit list recommended by the Commission. It is contended that for the post of Drug Inspector the seniority must be determined on the basis of the original petitioners position in the merit list recommended by the Commission. On the other hand learned counsel for the original petitioner submitted that the facts which are floating on the surface of records would clearly show that the original petitioner joined the services in response to the advertisement issued much earlier and as the scale of the Chief Hospital Pharmacist is equivalent to that of the Drug Inspector the petitioner could not be reappointed on the said post. It is also contended that the petitioner if under some confusion or because of a folly made an application for his appointment the same would not affect his seniority and career. It is contended that what was done long years back on the strength of the memorandum of the Health Commissioner and was accepted for long many years could not now be undone. He submits that the learned Single Judge was absolutely justified in granting the petition. 7. From the records it would clearly appear that the petitioner was appointed on the recommendations made by the Public Service Commission, who in response to the Advertisement No. 79/1969 had selected the petitioner as a successful candidate. The petitioner was appointed with effect from 1.9.1970 to occupy the office of the Chief Hospital Pharmacist. It is also beyond pale of doubt that the petitioner was later on posted temporarily as Chief Hospital Pharmacist on a regular basis with effect from 14.3.1970 by notification dated 8.3.1971. It would be noteworthy that each of the notification was issued under Section 21 read with Section 3(e) (ii) of the Drugs and Cosmetics Act. It would also appear from the records and is undisputed at this stage that the Health Commissioner wrote a long note to the Minister and recommended the case of the petitioner inter alia submitting that there was no occasion to reappoint the petitioner and the petitioner could be given a post of the Drug Inspector, being in service from before. At this stage it is also not in dispute that the Minister concerned approved the note and directed that the petitioner may be appointed by transfer so that his seniority was not adversely affected. At this stage it is also not in dispute that the Minister concerned approved the note and directed that the petitioner may be appointed by transfer so that his seniority was not adversely affected. These events took place in the year 1973 thereafter notification dated 12.4.1973 was issued, newly recommended 11 candidates were ordered to be appointed for the first time while the petitioner was transferred to the place of his posting. It is also not in dispute that by notification dated 30.4.1987 petitioner and some respondents were confirmed and the petitioner was shown to be confirmed on 14.9.1971 while the appellant and other respondents were shown to be confirmed with effect from 18.7.1974. Till the date of issuance of notification dated 30.4.1987 the Government and the Department were maintaining a distinction and the original petitioner and the original respondents also understood that the original petitioner was simply transferred as a serving candidate while the others were appointed for the first time. It is not the case of the present appellant that he ever challenged the notification dated 30.4.1987 showing his date of confirmation as 18.7.1974 virtually showing him junior to the original petitioner as original petitioners date of confirmation was shown as 14.9.1971. If in the year 1987 the appellant and the petitioner so also the other candidates had accepted the facts and fate then there was no reason either for the Department or for the candidates to feel any grudge or develop any grievances for resettlement or correction of the confirmation order. If in the year 1987 the parties knew their post and their place and did not seek to challenge the date of confirmation then at a later stage it would really be too tough for the appellant to say that he is senior to the other man that too without challenging the order of confirmation. In the present matter the present appellant did not do anything after issuance of notification dated 30.4.1987 (Annexure-3) showing different date of confirmation. It is also not in dispute before us that in the notification dated 9.1.1975 (Annexure-7) the order of seniority was maintained and the petitioner was shown at Sl. No. 9 while the appellant was shown at Sl. No. 12. This seniority list of 1975 does not appear to have been challenged by the present appellant. It is also not in dispute before us that in the notification dated 9.1.1975 (Annexure-7) the order of seniority was maintained and the petitioner was shown at Sl. No. 9 while the appellant was shown at Sl. No. 12. This seniority list of 1975 does not appear to have been challenged by the present appellant. If the seniority list was accepted to be correct for long 15 years then very strong reasons are needed to upset the list and resettle the position of the candidates/incumbents. 8. It appears that in provisional gradation list dated 28.10.1990 the petitioner was shown junior to the original respondents but the petitioners representation was allowed and under corrigendum (Annexure-10A) the mistake was corrected and the petitioner was shown at Sl. No. 7. It is also not the case of the appellant that he ever challenged Annexure-10A or made any representation to the Government/Department that his seniority was adversely affected under Annexure-10A, therefore, the tentative list be treated as the correct list. Once the Government realising its mistake after accepting the representation of the original petitioner issued the corrigendum then it could not ignore the corrigendum nor could it issue any direction contrary to the said corrigendum. If the Government wanted to do away with the corrigendum (Annexure-10A) then it was required to give its reasons and rehear the original petitioner. In absence of such a procedure the action of the State Government in ignoring Annexure-10A would be deemed to be bad. To us if appears that Annexure-10A was kept in oblivion and while issuing the final gradation list dated 30.9.1992 the corrigendum issued under Annexure-10A was not incorporated in the original list. A mistake of the State Government which is floating on the surface of the record and is shown to be demonstrably illegal would not change the course of the stream nor would provide any foundation in favour of the appellant to claim his seniority over the original petitioner. The original petitioner was shown senior in the year 1975, in the year 1987 and in the corrigendum. If everytime he was shown senior to the present appellant then what special reasons persuaded the State Government to treat the present appellant senior ought to have been brought on the record. The original petitioner was shown senior in the year 1975, in the year 1987 and in the corrigendum. If everytime he was shown senior to the present appellant then what special reasons persuaded the State Government to treat the present appellant senior ought to have been brought on the record. In absence of any proper material to justify issuance of the list showing the petitioner junior to the present appellant and others the gradation list not be accepted. 9. It would be necessary to note that the petitioner was appointed as Chief Hospital Pharmacist and the post of Inspector carried the equal remuneration/scale. The post of Chief Hospital Pharmacist and Drug Inspector undisputedly are inter-transferable. The Government treated the post as inter-transferable and on the date of issuance of the second advertisement the petitioner was occupying a post equivalent to the post which was advertised. There is overwhelming material in the writ application to show that the persons appointed under the second advertisement were appointed as Drug Inspector and as Chief Hospital Pharmacist. The records contain the evidence to show that the Officers holding the post of Drug Inspector were transferred and posted as Chief Hospital Pharmacist. 10. The material available on the record certainly shows that present certainly is a case for interference by the High Court because despite everything in favour of the petitioner the Department on face of the corrigendum after accepting the representation of the original writ petitioner issued the wrong gradation list. The learned Single Judge was certainly justified in issuing the directions in favour of the original petitioner. After giving our thoughtful consideration to the facts and circumstances we are of the opinion that the appeal must be dismissed. It is accordingly dismissed.