Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1200 (PAT)

Bijay Kumar Srivastava v. State Of Bihar

2007-07-24

NAVANITI PRASAD SINGH

body2007
Judgment 1. The two petitioners were in Indian Defence Services (Air Force) employed under Short Services Selection. Thereafter, they joined the Bihar Administrative Service, Junior Selection Grade in the years 1989-93 respectively. On joining the Bihar Administrative Service, their seniority was determined as per the prevalent Government policy decision, as contained in circular dated 26th August, 1972 (Annexure-2). This circular, inter alia, provided giving benefit of their past services in the Defence for calculating their seniority in the Bihar Administrative Service. Their seniority was, accordingly, determined. Now after 12 years of their service, and three and half decades after issuing the 1972 circular (supra), wisdom has dawned on State Government once again and they have by their circular dated 2.3.2005 (Annexure-9) sought to explain that the policy decision of 1972 was incorrect and wrong and the clause laying down conditions for determination of seniority of Ex-servicemen in the 1972 circular was deleted. Consequently, the benefit which was earlier promised and given to Ex-servicemen joining Bihar Government Service stood withdrawn. This was not left to be done prospectively but it was done retrospectively from the date when this criteria for grant of seniority was laid down that is with retrospective effect from 1972 itself. The result was that both the petitioners seniority in the gradation list was redetermined and now the petitioners lost considerable seniority. It is these actions that are challenged in the present writ application. State has filed counter affidavit stating that in 1967, pursuant to decision of Government of India to give a sort of rehabilitation package to Indian Soldiers involved in Chinese and Pakistani aggressions, certain benefits were extended to defence personnels. 1972 policy decision was taken apparently in ignorance thereof which was realised in 2005 that is after three and half decades and, as such, the principles and the policy for determination of seniority as laid down in 1972 were deleted with retrospective effect. 2. Having heard the learned counsel for the parties and considering the matter and with their consent, I think it appropriate to dispose of this writ application at this stage itself. 3. In deciding principles for determining seniority and/or in laying down principles for determining seniority, the State is competent to fix various criteria. The criteria fixed, if not otherwise arbitrary, are rules for determination of seniority. 3. In deciding principles for determining seniority and/or in laying down principles for determining seniority, the State is competent to fix various criteria. The criteria fixed, if not otherwise arbitrary, are rules for determination of seniority. In the present case, a reference to the decision of the Government as reflected in the circular of 1972 (Annexure-2) would show that the State Government was conscious of various confusions that were arising in matter of fixing seniority in respect of its employees in different cadres. The circular is clear that in order to clear confusions and lay down a clear cut principles to be followed in determining inter se seniority, various principles were laid down for different contingencies. The one with which we are concerned was contained in clause 3(vi) thereof which dealt with specifically Ex-servicemen. It clearly provided that Exservicemen joining State Services would get the benefit of their past services but would rank lower than direct recruits of the same year. This being the basis and the principle for determining seniority, the petitioners joined the State Services as indicated above in 1989 and 1993 respectively. Those were the rules of policy as available to them and considering the same to be just, the petitioners joined. In other words, these policy principles for determining seniority was a part of the bargain which the petitioners entered into with the State Government, service being a contractual obligation. Having joined the service, their seniority was determined in the cadre in view of the provisions of 1972 circular accordingly. Twelve years after they joined service and three and half decades after the 1972 circular by the impugned circular dated 2.3.2005 (Annexure-9), the State Government, giving the reason as noted above, deleted clause 3(vi) of the 1972 circular totally and that too with retrospective effect. The effect of this retrospective deletion became that one of the essential conditions of determination of inter se seniority effecting the petitioners was retrospectively taken away and the petitioners seniority was redetermined in the cadre. In my view, whatever may be said about the propriety of such a deletion validity of which I have my doubt, such an action could not be taken retrospectively. 4. In my view, whatever may be said about the propriety of such a deletion validity of which I have my doubt, such an action could not be taken retrospectively. 4. A reference to the 1972 circular would show that it was issued in terms of Article 166 of the Constitution of India and, thus, would have statutory force in terms of Article 309 of the Constitution of India. It was duly published in the name of the Governor of Bihar. Its opening paragraph clearly mentions that there were confusions in principles being applied for determining inter se seniority which needed to be clarified. Therefore, it was a conscious decision of the State Government. The State Government was aware of the exception being made in respect of exdefence personnels. Being aware of such exceptions, a principle was laid down in terms of clause 3(vi) thereof. This was an incentive to an ex-defence personnel joining State Service. These principles being available to the petitioners, they accepted the services of the State Government. They cannot be now told that they joined services on an assurance of certain principles of determination of seniority but after having served twelve years, the very basis would be withdrawn. In other words, the principles laid down for fixation of seniority in a service matter was a part of the contract in the service contract. Such an essential part of the service contract could not be withdrawn retrospectively and that too unilaterally. Thus, the retrospective withdrawal of clause 3(vi) of the 1972 circular is clearly arbitrary and unreasonable. What may be the legality thereof so far as prospective application of withdrawal is concerned would be a question to be decided in an appropriate proceeding but this Court is satisfied that retrospectively the same could not have been done. It took away the vested right of the petitioners and a right on basis whereof they had entered into service. Therefore, I am left with no option but to hold that Annexure-9 being the notification No. 1509 dated 2.3.2005 would have no retrospective application and seniority as determined prior thereto would continue to operate as such. Subsequent actions of the respondents in redetermining the inter se seniority of the petitioners is, thus, unsustainable and is quashed accordingly. 5. While doing so, I may place reliance on a judgment of this Court in the case of Dr. Subsequent actions of the respondents in redetermining the inter se seniority of the petitioners is, thus, unsustainable and is quashed accordingly. 5. While doing so, I may place reliance on a judgment of this Court in the case of Dr. (Capt.) Kameshwar Prasad Singh vs. State of Bihar & Others, being CWJC No. 11201 of 2001 dated 4.8.2005 wherein this same very circular came to be considered and, in particular, the retrospective part thereof which was clearly disapproved by the Court. This Court held that the said decision, as contained in the said circular, would have only prospective application. The same is also my view as aforesaid. 6. For the reasons aforesaid, this writ application is allowed.