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2018 DIGILAW 1944 (JHR)

Subhash Chandra Nayak v. State of Jharkhand

2018-08-25

ANIRUDDHA BOSE, H.C.MISHRA

body2018
JUDGMENT : I.A. No. 550 of 2017 1. I.A. No. 550 of 2017 is an application for condonation of delay of 1 day in filing this appeal. 2. Having gone through this application, we are satisfied that the appellant was prevented by sufficient cause in preferring this appeal within time. We accordingly condone the said delay. I.A. No. 550 of 2017 stands disposed of. L.P.A. No. 07 of 2017 3. Heard learned counsel for the appellant and learned counsel for the State. The respondent No. 5 has not appeared in spite of service of notice upon him. 4. The writ petitioner, having been unsuccessful in W.P. (S) No. 4294/2007, filed by him claiming promotion to the post of Director-in-Chief, Health Services in the State of Jharkhand, has approached this L.P.A. Court. 5. The dispute between the writ petitioner and respondent No. 5 is that the writ petitioner claimed seniority over respondent No. 5, in view of the fact that the initial date of joining of the writ petitioner was 01.07.1974, whereas the initial date of joining of respondent No. 5 was 15.01.1975, due to which he was shown below the writ petitioner in the gradation list. The fact, however, remained that respondent No. 5, before joining the State services, was in Army Service, where he had joined on 05.10.1971, and pursuant to the notification of the State Government dated 26.08.1972, he was given the benefits of the Army Service as well, due to which his date of joining became 05.10.1971. As such, the respondent No. 5 stood senior to the petitioner and he was posted as the Director-in-Chief, Health Services, in the State of Jharkhand. Both the petitioner and the respondent No. 5 have superannuated from service on the same date, i.e. on 31.07.2007. 6. The Hon’ble Single Judge, while disposing of the writ application, has taken note of the fact that the respondent No. 5 was given the benefits of the Army Service by order dated 31.08.2000, which was never challenged by the writ petitioner. The writ petitioner heavily relied upon a notification dated 02.03.2005, whereby the earlier notification dated 26.08.1972 was recalled and the claim of the writ petitioner is that by virtue of the notification dated 02.03.2005, the date of joining of the respondent No. 5 shall revert back to 15.01.1975 and he shall again be junior to the writ petitioner. The writ petitioner heavily relied upon a notification dated 02.03.2005, whereby the earlier notification dated 26.08.1972 was recalled and the claim of the writ petitioner is that by virtue of the notification dated 02.03.2005, the date of joining of the respondent No. 5 shall revert back to 15.01.1975 and he shall again be junior to the writ petitioner. The Hon’ble Single Judge has negated the contention of the writ petitioner, finding that notification dated 02.03.2005 was issued with prospective effect and not with retrospective effect, and the seniority, which was conferred to the respondent No. 5 continued, irrespective of the later notification dated 02.03.2005 and has accordingly, dismissed the writ application, on the ground that for all practical purposes, the respondent No. 5 had to be treated as senior to the writ petitioner. 7. We do not find any illegality in the impugned order dated 06.12.2016 passed by the Hon’ble Single Judge in W.P. (S) No. 4294/2007, which we hereby, affirm. 8. This letters patent appeal, being devoid of any merit, is accordingly, dismissed.