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2005 DIGILAW 962 (PAT)

Damodar Prasad v. State of Bihar

2005-10-26

body2005
C.K. PRASAD, J.:- This application has been filed for quashing that portion of the gradation list dated 9.11.1999 (Annexure-15), whereby the petitioner has been shown as junior to respondent no. 7 and placed at Serial No. 2 whereas respondent no. 7 has been placed at Serial No.1. 2. Shorn of unnecessary details, facts giving rise to the present writ application are that the Bihar State Housing Board, hereinafter referred to as the Board, published avdertisement in the daily Newspaper, inviting applications from the eligible candidates for appointment to the post of Steno-typist. Petitioner as well as respondent no. 7 Dinesh Sharma besides other eligible candidates offered their candidatures. According to the petitioner, the Board considered the candidature of all the eligible candidates and prepared a merit list, in which petitioner has been placed at Serial, No.3, whereas respondent no. 7 at Serial No.5. Accordingly, by letter as contained in memo dated 16th of April, 1974 (Annexure-1), petitioner and respondent no. 7 were appointed as Steno-typist and posted in the office of the Executive Engineer, Public Health Engineering Department, Patna and Executive Engineer, Patna Division No.2, Patna respectively. The name of the petitioner finds place at Serial No.3 and that of respondent no. 7 at Serial No. 5 of the letter of appointment. In pursuance of the aforesaid letter of appointment, petitioner joined as Steno-typist on 17.4.1974; whereas respondent no. 7 joined as such on 22.4.1974, later on, by order as contained in memo dated 4th of July, 1977 (Annexure-1-A), services of the petitioner as also respondent no. 7 were regularised from the date of their joining. 3. Respondent no. 7, later on, posted as Steno-typist in the office of the Executive Engineer, Muzaffarpur Division, Muzaffarpur and he made request for his transfer to Patna for treatment of his daughter suffering from Polio. The respondent Board considered his request and by order as contained in memo dated 15.10.1977 (Annexure-3) transferred him in the office of the Superintending Engineer, Housing Board, Patna Circle, Patna Ultimately, by letter dated 6.1.1978 (Annexure-5), respondent no. 7 was posted at the Headquarters of the Board. 4. On amalgamation and upgradation of the post of Steno-typist, by order as contained in memo dated 20.8.1991 (Annexure-8), petitioner as also respondent no. 7 was posted at the Headquarters of the Board. 4. On amalgamation and upgradation of the post of Steno-typist, by order as contained in memo dated 20.8.1991 (Annexure-8), petitioner as also respondent no. 7 were promoted as Personal Assistants in order of seniority with effect from 7.8.1987 in which the name of the petitioner is at Serial No.1 whereas that of respondent no. 7 is at Serial No.2. 5. It is relevant here to state that the respondent Board treating the post of Steno-typist working in its Mufassil offices and its Headquarter to be belonging to different cadres, promoted one Sachida Nand Sinha to the post of Senior Personal Assistant. Dinesh Sharma respondent no. 7 herein aggrieved by the same filed C.W.J.C. No.6763 of 1990 (Dinesh Sharma Vs. The State of Bihar & Ors.) before this Court in which the petitioner herein was arrayed as respondent, no. 5 whereas said Sachida Nand Sinha as respondent no. 4. In the said writ application, petitioner had prayed that he be declared senior to respondent nos. 4 to 7 and to quash the order by which Sachida Nand Sinha was promoted to the post of Senior Personal Assistant. The plea of respondent no.7 herein, who was the writ petitioner in the aforesaid writ application was that there cannot be any "discrimination between the Steno-typist working in the Headquarter of the Board and the Steno-typist working in the regional offices of the Board" and "there is only one cadre of Steno-typist in the Board". The Board and the contesting respondents tried to defend the action by contending that the Steno-typists posted in the mufassil offices of the Board and Headquarter, constitute different cadre. This Court considered the plea put forth by the party in the said case and held that Steno-typist working in the mufassil offices and headquarter of the Board constitute one cadre and accordingly, directed the Board to determine the inter se seniority of the Steno-typist keeping in view the observation made in the said judgment. While doing so, this Court observed as follows: xxx xxx xxx "This being so all the steno typists employed by the Board whether working at the Boards headquarters or to other offices of the Board belong to the same cadre and, therefore, could not be subjected to unequal treatment as has been done by designating the respondent no. While doing so, this Court observed as follows: xxx xxx xxx "This being so all the steno typists employed by the Board whether working at the Boards headquarters or to other offices of the Board belong to the same cadre and, therefore, could not be subjected to unequal treatment as has been done by designating the respondent no. 4 as Personal Assistant and then promoting him as Senior Personal Assistant and denying promotion to the petitioner and the respondent nos. 5 to 7. As regards the grievance of the petitioner that respondent nos. 5 to 7 could not have been promoted as Personal Assistant and they rank junior to him in my view is misconceived as the Steno-typists constitutes a single cadre in the Board and all the Steno-typists posted either at the headquarters or in the Regional Offices of the Board have to be treated alike, more so when the relief claimed by the petitioner was that he be promoted as Personal Assistant with effect from 7.8.1987." 6. In the light of the aforesaid order, the Board re-determined the seniority and amended the gradation list by order as contained in memo dated 18.11.1995 (Annexure-10) and placed petitioner no. 1 at Serial No.1 and that respondent no. 7 at Serial No.2. 7. According to the petitioner, suddenly without any notice to him, the Board by the impugned order dated 9.11.1999 (Annexure-15), modified and amended the gradation list dated 18.11.1995 (Annexure 10) and placed respondent no. 7 at Serial No. 1 and the petitioner at Serial No. 2 respectively. 8. Counter affidavit has been filed on behalf of respondent nos. 3 to 6, that is, the Board and its functionaries. Inspite of service of notice on respondent no. 7, he did not chose to appear and only when the case was being heard on 4.10.2005, Mr. Rajendra Sharma, learned counsel stated that he shall appear on his behalf and file vakalatnama during the course of the day. At his request, the case was adjourned to 6.10.2005. On 6.10.2005, the case was heard but no counter affidavit was filed on behalf of respondent no. 7. 9. In the counter affidavit filed by respondent nos. 3 to 6, they have not denied the assertion made by the petitioner that in the merit list prepared for appointment as Steno-typist, petitioner was placed at Serial No. 3 whereas respondent no. 7 at Serial No.5. 7. 9. In the counter affidavit filed by respondent nos. 3 to 6, they have not denied the assertion made by the petitioner that in the merit list prepared for appointment as Steno-typist, petitioner was placed at Serial No. 3 whereas respondent no. 7 at Serial No.5. Further there is no denial of the fact that the gradation list, published earlier has been modified without giving any opportunity to the petitioner. Only plea of the answering respondents is that the gradation list has been modified in the light of letter of the Personnel and Administrative Reforms Department dated 7.8.1987. 10. From the plea of the party, there is no escape from the conclusion that in the merit list prepared for appointment to the post of Steno-typist, petitioner was above respondent no. 7 and further in the gradation list (Annexure-10) published in the light of the order of this Court, petitioner has been placed senior to respondent no. 7, which has been altered without giving any opportunity to the petitioner. 11. Mr. Ram Balak Mahto, Senior Advocate appearing on behalf of the petitioner, submits that the petitioner being above respondent no. 7 in the merit list, he ought not to have been shown junior to him. 12. Mr. Rajiv Nayan Singh, however, appearing on behalf of the respondent Board, contends that in the light of the letter of the Personnels Administrative Reforms Department, the Board considered the issue of inter se seniority between the petitioner and respondent no.7 to be senior to the petitioner and accordingly, modified the gradation list. 13. Mr. Rajendra Sharma, appearing on behalf of the respondent no.7 contends that he having been posted at the Headquarter of the Board, was rightly found senior to the petitioner and the impugned gradation list does not suffer from any error. 14. Having appreciated the rival submission, I do not find any substance in the submission of Mr. Singh and Sharma. This Court in the earlier writ application in which the petitioner, respondent no. 7 as also the Board were party, clearly held that Steno-typists employed by the Board, whether working at the Board's Headquarter or in its other offices, belong to the same cadre and, therefore, could not be subjected to unequal treatment. Undisputedly, petitioner's position is higher in the merit list prepared for appointment as Steno-typist. 7 as also the Board were party, clearly held that Steno-typists employed by the Board, whether working at the Board's Headquarter or in its other offices, belong to the same cadre and, therefore, could not be subjected to unequal treatment. Undisputedly, petitioner's position is higher in the merit list prepared for appointment as Steno-typist. How the letter of the Personnel and Administrative Reforms Department, which according to the answering respondents weighed to alter the seniority has any bearing for determination of inter se seniority has not been explained at all. I am of the opinion that the petitioner has been wrongly shown junior to respondent no. 7 without any justification. Not only this, his seniority was altered without giving any notice or opportunity to him. 15. In the result, this application is allowed, the impugned gradation list dated 9.11.1999 (Annexure-15) to the extent that it had shown the petitioner junior to respondent no. 7, is quashed and it is held that the petitioner is senior to him. Petitioner shall also be entitled to the cost of this litigation, which I assess at Rs. 5000/- to be paid to him by respondent no. 3 to 6.