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2003 DIGILAW 637 (JHR)

Maharaj Sharan Singh v. State Of Bihar

2003-06-03

M.Y.EQBAL

body2003
JUDGMENT M.Y. Eqbal, J. 1. In this writ application the petitioner has prayed for quashing the order dated 4.4.1994 whereby the Member Board of Revenue Bihar, Patna set aside the order of the Commissioner and allowed the appeal filed by respondent No. 5 and held that respondent No. 5 is senior to the petitioner. 2. The petitioners case is that he was appointed as Lower Division Assistant on 14.4.1956 and was promoted to Upper Division Clerk in 1961. In 1973 when Giridih district was bifurcated from Hazaribagh District, the petitioner was promoted as Selection Grade Assistant w.e.f. 1973 and his services was transferred to Giridih District. He was confirmed on the post of Upper Division Clerk and on the post of Selection Grade Assistant on 29.8.1978 and 1.10.1978 respectively. The petitioner said to have passed accounts examination in 1961 and was promoted to Super Selection Grade on 1.4.1981. According to the petitioner respondent No. 5 jointed on the post of Lower Division Assistant on 29.6.1955 and passed accounts examination on 24.11.1963 and hence he was promoted to the post of Upper Division Clerk on 23.5.1964. Respondent No. 5 was given Selection Grade and Super Selection Grade in 1978 and 1981 respectively and as such he is all along remain junior to the petitioner. In the year 1990 a seniority list was prepared in which the petitioners name appeared at serial No. 7 where as the name of respondent No. 5 appeared at serial No. 10. Respondent No. 5 never filed any objection to the seniority list. However, on the basis of belated representation filed by respondent No. 5 the Deputy Commissioner vide his order dated 28.8.1992 modified the seniority list and directed that the respondent No. 5 shall be treated as senior to the petitioner. The Deputy Commissioner after modification of seniority list promoted respondent No. 5 to Super Time Scale in 1992 without considering the case of the petitioner. The decision of the Deputy Commissioner was set aside by the Commissioner, North Chotanagpur Division, Hazaribagh by his order dated 26.7.1993 but the said order was ultimately set aside by the Member Board of Revenue by passing the impugned order. 3. The respondent No. 5 in his counter affidavit has stated that he was appointed on the post of Lower Division Clerk much earlier than that of the petitioner. 3. The respondent No. 5 in his counter affidavit has stated that he was appointed on the post of Lower Division Clerk much earlier than that of the petitioner. It is only because the petitioner cleared his accounts examination prior to respondent No. 5 he has been claiming seniority over him. It is contended by respondent No. 5 that he was granted promotion on passing preliminary accounts examination and according to the guidelines laid down by the State Government, if the senior clerk passed the accounts examination within two years from the date of grant of promotion to the junior clerk, then the junior clerk has to be reverted and the senior clerk has to be restored back to his seniority. 4. Similar is the stand taken by the respondent-State in the counter affidavit that respondent No. 5 cleared the accounts examination on 24.11.1963 i.e. well within two years period as laid down in the rule and therefore, he was eligible to be promoted as Upper Division Clerk on his passing the accounts examination after reversion of his junior i.e., the petitioner. It is contended that the action of the respondents State is perfectly in accordance with law. 5. I have heard learned counsel appearing for the parties. 6. In course of argument my attention was drawn to Rule 157 of the Bihar Board Miscellaneous Rules. Rule 157 prescribes the rule and the procedures in the matter of passing the accounts examination. It provides that any clerk who has not passed the preliminary examination in accounts, will be neither confirmed nor be allowed to cross the efficiency bar. He shall also not be promoted to the selection grade. The proviso to Rule 157 and the explanation are reproduced hereinbelow. "Provided that the junior clerk temporarily promoted to the Selection grade shall be reverted to the post of clerk if the clerk senior to him passes the final Accounts examination within two years from the date of his first supersession and is promoted with effect from any date within the said two years, otherwise the senior clerk would be treated junior to all the clerks promoted to the Selection grade prior to him. Explanation.--Under proviso to (c), the date of passing the examination of Accounts would be the date on which the examination was held and the post of selection grade held by the junior clerk shall be deemed to be vacant from that very date for the purpose of promoting senior clerk. But, for the fixation of pay etc, the junior clerk shall be deemed to have been reverted from the date with effect from which the senior clerk will be promoted. The seniority of the reverted junior clerk shall be effective from the date on which he will again be promoted permanent to the Selection grade. 7. As noticed above respondent No. 5 cleared the Account examination on 24.11.1963 i.e., well within two years from the date when the petitioner had cleared his Accounts examination. The respondent No. 5 was therefore, eligible to be promoted as Upper Division Clerk on his passing the Accounts examination after reversion of petitioner who was admittedly junior to respondent No. 5. The Member Board of Revenue rightly held that the decision of the Deputy Commissioner restoring seniority of respondent No. 5 is in accordance with the prescribed rules as contained in Rule 157 of the Board Miscellaneous Rules. I do not find any illegality or Infirmity in the order passed by the Member Board of Revenue. 8. For the aforesaid reason, there is not merit in this writ application which is accordingly dismissed.