JUDGMENT : Pramath Patnaik, J. 1. In the captioned writ application, prayer has been made for direction upon the respondents to prepare the final gradation/seniority list of Excise Sub Inspector posted under Excise Department, Government of Jharkhand after due consideration and upon appropriate decision on the objections made to the Draft Provisional Seniority Gradation list dated 17.12.2008 including the objection dated 17.01.2009. Further prayer has been made for direction commanding upon the respondents to prepare final seniority/gradation list of Excise Sub Inspectors posted under Excise Department, Government of Jharkhand upon properly fixing the seniority of the petitioner by placing the petitioner considering the marks obtained by the petitioner in the 04th Intermediate Level Competitive Examination conducted by the State Public Service Commission and accordingly, the name of the petitioner may be placed at appropriate position i.e. just after Om Prakash Tanti, who obtained 191 marks in the 4th Intermediate Level Competitive Examination as petitioner who obtained 188 marks in the 4th Intermediate Level Competitive Examination and the Excise Sub Inspectors as Shri Shailesh Kumar whose name appears after Shri Om Prakash Tanti in the 2 provisional gradation list having obtained 187 marks in the 4th Intermediate Level Competitive Examination. 2. The facts in brief are that in the year 1980, Bihar Public Service Commission issued an advertisement inviting application for holding competitive examination for direct recruitment of non-gazetted posts like Excise Sub Inspector etc. The petitioner being eligible and qualified submitted the application and appeared in the said competitive examination. Before publication of result, the Commission was requested to send recommendation for direct recruitment against 45 posts of Excise Sub-Inspectors only. As against the advertised 45 posts, 50 per cent of the total posts belonging to the reserved category and the petitioner belonging to the General category could not be appointed. Being aggrieved by the non-appointment, the petitioner approached the Hon’ble Patna High Court in C.W.J.C. No. 227 of 1987. The said writ petition and another writ petition seeking similar relief was filed bearing C.W.J.C. No. 3873 of 1986 (R). Vide common judgment dated 28.10.1992, both the writ applications were allowed and the Hon’ble Court directed the respondents to take steps for appointment of the petitioner, if they otherwise, qualify for these posts. The said writ petition and another writ petition seeking similar relief was filed bearing C.W.J.C. No. 3873 of 1986 (R). Vide common judgment dated 28.10.1992, both the writ applications were allowed and the Hon’ble Court directed the respondents to take steps for appointment of the petitioner, if they otherwise, qualify for these posts. In spite of the order passed by the Hon’ble Patna High Court, since the same was not complied, the petitioner filed Contempt being M.J.C. No. 1014 of 1994 (R). During pendency of the contempt application, the respondents recommended the name of the present petitioner for appointment on the post of the Excise Sub-Inspector and after more than 5 years, since the date of disposal of C.W.J.C. No. 227 of 1987 (R) and after more than one year, since the recommendation made by the Commission for appointment, the petitioner was appointed on the post of the Excise Sub-Inspector. After joining on the said post, the petitioner was posted at Giridih and subsequently posted at Palamau-cum-Latehar. Since the petitioner was not placed in the appropriate position in the seniority list of the Excise Sub-Inspector, an application was made by him for necessary correction in the seniority list. The petitioner claimed for necessary correction in the seniority list by placing the petitioner in the appropriate position on the basis of the marks obtained by him in the competitive examination held by the Commissioner. A provisional gradation list of Excise Sub-Inspector working/posted under the Excise & Prohibition Department, Government of Jharkhand was published and circulated vide letter dated 17.12.2008, issued by the Deputy Commissioner (H.Qr.), Jharkhand, Ranchi and the said letter was received by the petitioner on 15.01.2009. The name of the petitioner found place at Serial No. 43 in the said list. Vide letter dated 17.01.2009, the petitioner submitted his objection to the head of the concerned office regarding the Draft provisional seniority list, praying therein, to place the name of the petitioner at Serial No. 12 instead of Serial No. 43 on the basis of the merit list of 04th Intermediate Level Competitive Examination, 1980, since Shri Om Prakash Tanti at Serial No.11 obtained 191 marks and Shri Shailesh at Serial No. 12 obtained 187 marks, whereas, the petitioner has secured 188 marks in the aforesaid examination. The petitioner, thereafter also submitted several applications including reminders. The petitioner, thereafter also submitted several applications including reminders. During pendency of the writ application, a Draft provisional seniority list was published for preparation of the seniority list of Excise Sub-Inspector, which has been brought on record by way of a supplementary affidavit. Further during pendency of the writ application, the State of Jharkhand has notified Rules governing the service conditions of the employees of the Excise Department. Being aggrieved by the non-placement in the appropriate position in the seniority list, in spite of the objection/representations submitted by the petitioner, the petitioner has been constrained to approach the Court under Article 226 of the Constitution of India for redressal of his grievances. 3. Learned counsel for the petitioner submitted with vehemence that the action of the respondents in not rectifying the position of the petitioner in the provisional Gradation list of the Excise Sub-Inspector amounts to unfair and unreasonable action of the respondents. Learned counsel further submits that on perusal of Rule 12 read with Rule 10 (vi) of the Rules, meant for the employees of the Excise Department, it would be apparent that the seniority is decided according to the merit list prepared by the Commission. Learned counsel has referred to the decision rendered in the case of State of U.P.-versus-Rafiquddin and others reported in AIR 1988 SC 162 , wherein, the Hon’ble Supreme Court has been pleased to inter alia, hold that the seniority in Service is determined on the basis of the year of competitive exam irrespective of date of appointment and the inter se seniority of candidates recruited to the service is determined on the basis of their ranking in the merit list. Therefore, the learned counsel for the petitioner further submits that since the petitioner had secured marks less than Om Prakash Tanti, he should be placed just below the seniority list of Om Prakash Tanti and accordingly, the Gradation list be rectified. 4. Controverting the averments made in the writ application, a counter affidavit has been filed by the respondents. Therefore, the learned counsel for the petitioner further submits that since the petitioner had secured marks less than Om Prakash Tanti, he should be placed just below the seniority list of Om Prakash Tanti and accordingly, the Gradation list be rectified. 4. Controverting the averments made in the writ application, a counter affidavit has been filed by the respondents. In the counter affidavit, it has been submitted that the name of one Promod Kumar and the petitioner, Excise Sub-Inspectors have been placed in the provisional gradation list published by the Government of Bihar according to the date of their joining on the post of Sub-Inspector of Excise and to settle the demand of fixation of seniority of petitioner, recommendation of Bihar Public Service Commission is necessary, accordingly, the Department of Excise and Prohibition, Jharkhand has sent a letter bearing memo no. 659 dated 27.03.2012, requesting Bihar Public Service Commission to send its recommendation on such demand of seniority of the said Sub Inspectors of Excise, as per Annexure-A series to the counter affidavit and as soon as the recommendation of the Bihar Public Service Commission is received, the concerned respondent would respond to fix the seniority of said Sub Inspectors of Excise. 5. A supplementary counter affidavit has been filed by the respondent nos. 2 to 4, wherein, it has been, inter alia, submitted that before bifurcation of the erstwhile State of Bihar, gradation list in integrated State of Bihar was prepared and issued vide letter dated 17.11.2005, but petitioner has not raised any objection to the same. On the basis of the seniority list provided by State of Bihar, provisional gradation list of Sub-Inspector of Excise was prepared in the State of Jharkhand and certain persons have made objections with regard to the provisional gradation list and the objection of the petitioner and other persons has been considered and after objection petition was not found tenable, the same has been rejected. Ultimately, a final gradation list has been prepared and the same was published vide letter dated 21.06.2013. Gradation list issued on 21.06.2013 has been annexed as Annexure-B to the supplementary counter affidavit. It has further been submitted that on bifurcation of the erstwhile State of Bihar, the service of the petitioner was allotted to the State of Jharkhand and he was given posting as per the seniority allotted by State of Bihar. Gradation list issued on 21.06.2013 has been annexed as Annexure-B to the supplementary counter affidavit. It has further been submitted that on bifurcation of the erstwhile State of Bihar, the service of the petitioner was allotted to the State of Jharkhand and he was given posting as per the seniority allotted by State of Bihar. The petitioner has never challenged the said list and accepted the same as per Annexure-A to the affidavit. The name of the petitioner finds place at Serial No. 71 of the said list. 6. Having bestowed my anxious consideration to the rivalized submissions and on perusal of the records, this Court is not inclined to accede to the prayer of the petitioner due to the following facts and reasons:- (i) In the advertisement published in the year 1980 for direct recruitment of non-Gazetted posts of Excise Sub-Inspector, though there was 127 posts were advertised, but before publication of the result, the State Government decided to curtail certain Scheme, therefore, the Commission decided to send recommendation for direct recruitment of 45 posts of Excise Sub-Inspector in which posts were allocated for different categories i.e. unreserved/backward/ extremely backward/economically backward/Scheduled Castes/Scheduled Tribe/ Ladies etc. Since the petitioner’s case could not come within the zone of consideration, the petitioner along with others filed C.W.J.C. No. 3873/1986 (R) and C.W.J.C. No. 227 of 1987 (R), which was allowed on 28.10.1992 with direction to the respondents to take steps for appointment of the petitioner, if they otherwise qualify for those posts. Although the said writ petitions were disposed of on 28.10.1992 but the same was not immediately complied, which forced the petitioner to file contempt application and during pendency of the contempt application, the petitioner was appointed on the post of the Excise Sub-Inspector on 19.03.1997 by the Commissioner, Excise, Patna. Before bifurcation of the erstwhile State of Bihar, a Gradation list in the integrated State of Bihar was prepared and issued vide Notification dated 17.11.2005. Before bifurcation of the erstwhile State of Bihar, a Gradation list in the integrated State of Bihar was prepared and issued vide Notification dated 17.11.2005. The petitioner never raised any objection to the same and after creation of the State of Jharkhand, the petitioner has been given posting as per the seniority list vide Annexure-A to the supplementary counter affidavit and the position in the seniority list has never been challenged by the petitioner and therefore, on the basis of the provisional list prepared by the State of Bihar, the said list was prepared by the State of Jharkhand and after consideration of the objection made by the petitioner, the final gradation list has been prepared vide Annexure-B to the supplementary counter affidavit. (ii) On perusal of the position of the petitioner in the final gradation list, it appears that there is no illegality in reckoning the seniority of the petitioner from the date of joining i.e. 19.03.1997. Moreover, the petitioner cannot get the seniority from an anterior date in which, he was not borne in the cadre of the Sub-Inspector of Excise, though under fortuitous circumstances, the appointment of the petitioner was delayed. Moreover, there was no specific direction by the Hon’ble Patna High Court in the aforesaid judgment for appointment with seniority as per the position in the merit list. 7. Accordingly, the writ application, being devoid of any merit, stands dismissed.