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2004 DIGILAW 796 (JHR)

Nand Gopal Choubey v. State Of Jharkhand

2004-08-06

TAPEN SEN

body2004
ORDER Tapen Sen, J. 1. Heard the parties. 2. This writ petition has been filed by two petitioners who are both promotees and were so promoted (as stated in paragraph 11) to the post of Assistant Conservators of Forest with effect from 20.6.1987 and 17.10.1987. 3. According to Mrs. Ritu Kumar, learned counsel for the petitioners, 19 direct recruits had moved the Honble Supreme Court of India against a judgment of a Division Bench of the Patna High Court dismissing their writ petition in which they had challenged the final seniority list in which they were shown to be junior to the promotees in service. Four of these direct recruits, according to Mrs. Ritu Kumar, have now been allotted the Bihar Cadre. In that view of the matter, according to the petitioners, only 14 direct recruits remain and therefore, they claim that their case should be reconsidered and promotions granted vis-a-vis the direct recruits. 4. Annexure-1 is the judgment of the Supreme Court and the observations of the said Honble Court at running page 38 hereof is worth reproducing and it reads as follows :-- "This leads to the conclusion that the appointments of the respondents promotees between June and November, 1987 as ACFs were against non-existing posts." 5. The aforementioned observation obviously applies to the petitioners case. They were both promoted on 20.6.1987 and 17.10.1987. 6. It is also to be taken note of, taking into consideration the observations of the Honble Supreme Court of India that when posts were not available at all, the question of availability of posts is a question which can be best answered on the basis of records. In that context, the Honble Supreme Court of India held as follows and the same is to be found at running page 39. "Thus we hold that the appointments of respondents/promotes made between June and November, 1987 to the posts of ACFs cannot be termed as substantive appointments to the service and therefore, they cannot confer any benefit of seniority on the respondents over and above the appellants who were directly appointed to the service vide notification dated 14th February, 1987." 7. "Thus we hold that the appointments of respondents/promotes made between June and November, 1987 to the posts of ACFs cannot be termed as substantive appointments to the service and therefore, they cannot confer any benefit of seniority on the respondents over and above the appellants who were directly appointed to the service vide notification dated 14th February, 1987." 7. Honble Supreme Court has also observed, which is evident at running page 40 hereof that :-- "It is settled law that appointments made contrary to the rules are merely fotuitious and do not confer benefit of seniority on the appointees over and above the regular/substantive appointees to the service." 8. The aforementioned observation of the Supreme Court therefore, also applies upon these petitioners. In that context, it would also be relevant to take note of the other observations of the Honble Supreme Court, which is to be found at page 42 and it reads as follows :-- "While the State Government may regularize the appointment of the respondent promotees, we hold that the respondents cannot be given seniority over and above the petitioners appellants." 9. In view of the aforementioned specific observations of the Honble Supreme Court of India, this Court cannot confer seniority to these petitioners over and above the direct recruits. However, at this stage, Mrs. Ritu Kumar submits that the petitioners are not wanting promotion over the 14 (fourteen) direct recruits who were parties before the Supreme Court of India, but the petitioners are wanting seniority over the rest 9 (nine) who were not parties before the Supreme Court and who were involved in another round to litigation before the Patna High Court in CWJC No. 8306 of 1989 in which these petitioners were arrayed as respondent Nos. 4 and 46. In that case these remaining direct recruits had claimed seniority in the Grade of Assistant Conservator of Forest above those 46 which included these petitioners. 10. The submission of Mrs. Ritu Kumar cannot be accepted for the simple reason that the Apex Court has already observed that all these promotees who had been promoted between June and November 1987 were against non-existent posts. 10. The submission of Mrs. Ritu Kumar cannot be accepted for the simple reason that the Apex Court has already observed that all these promotees who had been promoted between June and November 1987 were against non-existent posts. Therefore, their appointments were contrary to rules and therefore they cannot be conferred with the benefit of seniority over and above regular/substantive appointees to service unless they are able to show that firstly, they were regularly absorbed against vacant posts and after such absorption, the 9 persons were appointed. No such details have been given nor have these persons been impleaded as respondents thereby preventing this Court to have full knowledge of these facts. 11. Consequently, this Court is unable to pass orders in favour of the petitioners. Accordingly, this writ petition, is dismissed. There shall however be no order as to costs. 12. After the aforementioned order had been dictated, Mrs. Ritu Kumar, learned counsel for the petitioner drew attention of this Court to the fact that the petitioners have filed a Review Application before the Honble Supreme Court for review of the judgment dated 31.5.2004 as contained in Annexure-1 to the present writ petition. This Court does not make any comment as that is a matter relating to the Apex Court and this Court, for the present, is only concerned with the interpretation of the judgment already given by the Honble Supreme Court of India and the relevant portions there of which have been quoted above.