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2018 DIGILAW 2739 (JHR)

Rana Moti Lal Singh v. State of Jharkhand

2018-12-13

ANIRUDDHA BOSE, APARESH KUMAR SINGH

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JUDGMENT : Aparesh Kumar Singh, J. 1. The question posed for determination in the instant appeal in substance is whether the writ petitioner/appellant herein is entitled to claim seniority from the date the candidates recommended for the post of Excise Sub-Inspector were appointed pursuant to the recruitment exercise held under Advertisement dated 9th December, 1980, sometime in the year 1983 or from 19th March, 1997 when he joined the said post and was borne on the cadre of Excise Sub Inspector pursuant to the decision rendered in CWJC No. 3873 of 1986 dated 28th October, 1992? 2. In the impugned judgment learned Writ Court has held that petitioner cannot get the seniority from an anterior date on which he was not borne in the cadre of Sub Inspector of Excise, though under fortuitous circumstances the appointment of the petitioner was delayed. Moreover, there was no specific direction by Hon’ble Patna High Court in the aforesaid judgment for appointment with seniority as per the position in the merit-list. 3. In order to determine this question, facts as pleaded by the parties are briefly dealt hereinafter. Writ petitioner participated in the recruitment exercise under advertisement dated 9th December, 1980 conducted by the Bihar Public Service Commission on the request of erstwhile State of Bihar for the post of Excise Sub Inspector. Before publication of result commission was requested to recommend the names against 45 posts only out of total 127 posts advertised as per the facts recorded in the judgment rendered in CWJC No. 3873 of 1986 with CWJC No. 227 of 1987 (writ petition filed by the present petitioner). Out of 45 vacancies against which roster clearance was accorded, 20 vacancies were available for unreserved candidates and remaining 25 vacancies were for reserved candidates of different categories. A grievance was raised that since respondents reserved more than 50% of total posts for the candidates, belonging to the reserved categories, petitioner could not be appointed. On consideration of the entire facts and circumstances and that total reservation on a particular occasion should not exceed 50% of the total vacancies, learned Single Judge of Patna High Court was constrained to hold that decision of Government, allocating posts in excess of 50%, was unjust, arbitrary and against the mandate of Supreme Court. It accordingly held as under: “12. It accordingly held as under: “12. In view of the interim order, passed in these writ applications, three posts of Excise Sub Inspectors have been kept reserved. In that view of the matter, the respondents are directed to take steps for appointment of the petitioners, if they are otherwise qualified for these posts. 13. In result, with the aforesaid observations and directions, these writ applications are allowed to the extent, indicated above. But in the circumstances of the case, there shall be no order as to costs.” 4. It was only pursuant to the contempt petition being M.J.C. No. 1014 of 1994 pursued by the petitioner that he was recommended by the Bihar Public Service Commission vide its letter dated 7th February, 1996 for appointment on the post of Excise Sub Inspector and appointed vide Memo no. 1363 dated 19th March, 1997. It is pertinent to state here that petitioner however had, in the meantime, been working on the post of compiler in the Urban Development Department pursuant to the same recruitment exercise. A provisional seniority list was prepared by the Excise and Prohibition Department, Government of Bihar vide letter dated 17th November, 2005, whereby petitioner’s seniority was fixed from the date of his joining. Petitioner got allocated to the successor State of Jharkhand, who published provisional gradation list vide letter dated 17th December, 2008. Petitioner’s name was at Serial No. 43. He filed objection through letter dated 17th January, 2009 requesting to place his name at Serial No.12 on the basis of merit-list of 4th Intermediate Level Competitive Examination, in between, one Om Prakash Tanti, who at Serial No. 11 had obtained 191 marks and Shailesh Kumar at Serial No.12, who had obtained 187 marks whereas petitioner had scored 188 marks. Petitioner submitted further reminders before the Department. A draft provisional seniority list of Excise Sub Inspector prepared during pendency of the writ application was brought by way of a supplementary affidavit. During pendency of the writ application, the State Government, Department of Excise and Prohibition notified Jharkhand Excise Subordinate Service Cadre (Recruitment and Service Condition) Rules, 2013, which according to the petitioner governs the service condition of the employees in the Excise Department. 5. Petitioner being aggrieved with the action/inaction of the respondent department in not placing him at the correct seniority position approached the Writ Court for redressal of his grievances. 5. Petitioner being aggrieved with the action/inaction of the respondent department in not placing him at the correct seniority position approached the Writ Court for redressal of his grievances. He contended that the action of the respondents is unfair and unreasonable. As per Rule 10 read with Rule 10(vi) seniority is decided according to merit-list prepared by the Commission. Relying upon the decision rendered in the case of State of U.P. Vs. Rafiquddin & Others reported in AIR 1988 SC 162 , petitioner contended that seniority in service should be determined on the basis of the ranking in the merit-list irrespective of the date of appointment. Before us, learned counsel for the appellant has after placing these facts assailed the impugned judgment inter alia on the following grounds: (i) Petitioner is entitled to reckon his seniority from the date on which persons from the same merit-list were appointed pursuant to the common recruitment exercise under advertisement dated 9th December, 1980 by the Bihar Public Service Commission. (ii) Patna High Court in its judgment dated 28th October, 1992 passed in CWJC No. 3873 of 1986 and CWJC No. 227 of 1987 held the action of the respondent as arbitrary and unfair and directed them to take steps for appointment of the petitioners, if they are otherwise qualified for these posts. (iii) Delay in appointment of the petitioner (vide memo dated 19th March, 1997) was attributable to the resistance and inaction on the part of the State of Bihar. It was only after the direction passed in the contempt petition being M.J.C. No. 1014 of 1994 dated 30th January, 1997 that such appointment was made. (iv) Petitioner, therefore, could not be denied the benefit of seniority as per the merit-list from the dates when candidates similarly placed and even junior to him were appointed. 6. It was only after the direction passed in the contempt petition being M.J.C. No. 1014 of 1994 dated 30th January, 1997 that such appointment was made. (iv) Petitioner, therefore, could not be denied the benefit of seniority as per the merit-list from the dates when candidates similarly placed and even junior to him were appointed. 6. In support of the submissions, learned counsel for the petitioner has relied upon the following judgments: (i) 1987(Supp) SCC 401; State of U.P. Versus Rafiquddin & Others; (ii) (1996) 8 SCC 637 ; Pilla Sitaram Patrudu Versus Union of India & others; (iii) (1998) 9 SCC 641 ; Dalilah Sojah Versus State of Kerala & others (iv) (2003) 5 SCC 604 ; Bimlesh Tanwar Versus State of Haryana & Others (v) (2007) 1 SCC 405 ; Suresh Chandra Jha Versus State of Bihar & Others (vi) (2008) 7 SCC 728 ; Balwant Singh Narwal & others Versus State of Haryana & others. Learned counsel for the petitioner further submitted that Hon’ble Patna High Court had by an interim order dated 6th March, 1987 passed in CWJC No. 227 of 1987 directed one post of Excise Sub Inspector to be kept pending till hearing of the case. 7. Learned counsel for the respondent State in reply has urged the following grounds: (i) Writ petition and present appeal suffers from non-joinder of necessary party. Persons likely to be affected, if the prayer of the writ petitioner for correction of the seniority list is allowed, have not been impleaded. Moreover, State of Bihar and Bihar Public Service Commission have also not been impleaded as party. (ii) Petitioner is not entitled to claim seniority from an anterior date than when he was not borne in the cadre. Petitioner was appointed on 19th March, 1997 while other 45 persons were appointed sometime in the year 1983 on the basis of the recommendation made by the Service Commission on the request of the State of Bihar to make recommendation against 45 posts of Excise Sub Inspector only as against 127 posts advertised. (iii) Petitioner, as such, was not out of service but working as compiler in the Urban Development Department pursuant to the recommendation made by the Commission against Unreserved Category. He joined the post of Excise Sub Inspector on being relieved after 14 years of service in the Urban Development Department, Government of Bihar. (iii) Petitioner, as such, was not out of service but working as compiler in the Urban Development Department pursuant to the recommendation made by the Commission against Unreserved Category. He joined the post of Excise Sub Inspector on being relieved after 14 years of service in the Urban Development Department, Government of Bihar. Reference is made to Page nos. 75 to 78 containing statements made at Para-8(a) and (b) of the counter affidavit of the respondent filed in the writ petition. (iv) Hon’ble Patna High Court in its judgment dated 28th October, 1992 in the case of the writ petitioner did not make any specific direction to treat the seniority of the petitioner as per the merit-list from the date on which other 45 candidates were appointed. 8. Learned counsel for the State in support of the submission has relied upon the following judgments: (i) (2008) 6 SCC 797 (paragraphs 16, 17 and 19) on the issue of non-joinder of parties. (ii) (1991) Supp(1) SCC 334 (Paragraphs 8 and 12 on the proposition that no person can be promoted with retrospective effect from a date he was not borne in the cadre so as to adversely affect the seniority of others. Seniority is to be reckoned on the basis of length of service (iii) (2015) 17 SCC 744 (Paragraph 10, 11, 15, 16 and 17) on the issue of determination of seniority whether to be based on merit in the combined written test or the date of joining. 9. Writ petitioner in reply has made further submission to the effect that seniority list of Sub Inspector published on 21st June, 2013 compared with provisional seniority list dated 17th December, 2008 would show that it is not the final list of the said provisional list. The name of the petitioner is at Sl. No. 19 in the final seniority list but name of several persons including Om Praksh Tanti are not there in the said list. Moreover, the list was never communicated to the writ petitioner. It is an afterthought to defeat his claim. Learned counsel for the appellant further submitted that gradation list of Excise Inspector published on 26th May, 2015 shows that persons from Sl. Nos. 12 to 27 are promotees whose seniority is based on provisional seniority list dated 17th December, 2008. Moreover, the list was never communicated to the writ petitioner. It is an afterthought to defeat his claim. Learned counsel for the appellant further submitted that gradation list of Excise Inspector published on 26th May, 2015 shows that persons from Sl. Nos. 12 to 27 are promotees whose seniority is based on provisional seniority list dated 17th December, 2008. There is no mention of the final gradation list dated 21st June, 2013 in the final gradation list of Excise Inspector dated 26th May, 2015. Shree Om Prakash Tanti at Sl. No. 14 in the list of Excise Inspector is shown to have joined the post on 15th June, 2012 prior to the publication of gradation list of Excise Sub Inspector on 21st June, 2013. Several other persons from the provisional gradation list dated 17th December, 2008 have joined on the post of Excise Inspector in between 12th to 18th January, 2012 that is prior to publication of so called final seniority list dated 21st June, 2013. All these facts prove that objection of the writ petitioner was never considered. Hence, seniority of the writ petitioner should be fixed as per marks obtained by him in the 4th Intermediate Level Competitive Examination just below Sri Om Prakash Tanti and he should be granted promotion with effect from the date the persons below him have been promoted, with all consequential benefits. 10. Considered the submission of learned counsel for the parties, relevant material facts pleaded and taken note above as also the decision of Hon’ble Supreme Court relied upon by rival parties. Writ petitioner joined the post of Sub Inspector Excise on his appointment on 19th March, 1997 pursuant to the direction issued in the writ petition being CWJC Nos. 3873 of 1986 and 227 of 1987. Undisputedly, petitioner had joined the post of Complier in the Urban Development Department pursuant to the recommendation of the Commission on the basis of the same recruitment exercise under advertisement dated 9th December, 1980 i.e., 4th Intermediate Level Competitive Examination. Against 127 posts of Excise Sub Inspector advertised initially, the Commission recommended names of 45 candidates to the post of Excise Sub Inspector on the request of the State Government before declaration of the results. Against 127 posts of Excise Sub Inspector advertised initially, the Commission recommended names of 45 candidates to the post of Excise Sub Inspector on the request of the State Government before declaration of the results. These candidates were appointed sometime in the year 1983 and at the same time petitioner was appointed on the basis of the recommendation of the Commission on the unreserved post of compiler in Urban Development Department vide letter no. 1015 dated 13th August, 1983. Petitioner availed of the appointment and served on the said post till he was relieved to join on the post of Excise Sub Inspector pursuant to his appointment on 19th March, 1997 on the basis of the direction issued in CWJC No. 227 of 1987. Writ petitioner was therefore working against a substantive post in the Urban Development Department on the basis of recommendation made by the Commission under the same recruitment exercise for 14 years. He had also raised a cause of action against non-consideration/appointment to the post of Excise Sub Inspector in the writ petition instituted in 1987. Learned Single Judge of Patna High Court found the action of the State Government to appoint persons from the Reserved Category beyond 50% of the total vacancies as arbitrary and unfair and in teeth of the judgment of the Apex Court. Consequently, the State Government was directed to take steps for appointment of the petitioners if they were otherwise qualified for these posts vide judgment dated 28th October, 1992. However, no specific direction was issued therein to treat the petitioner in the cadre of Excise Sub Inspector from the date on which other persons against 45 posts recommended by the Commission were appointed in the year 1983. In such eventuality, it is to be seen whether the petitioner can legitimately claim seniority from an anterior date when he was not borne on the cadre of Excise Sub Inspector. The normal Rule is that a person is entitled to seniority only from the date when the said person actually joins the post. In the case of Sunaina Sharma and others Vs. State of Jammu and Kashmir and others reported in (2018) 11 SCC 413 , this principle has been reiterated by the Apex Court. The normal Rule is that a person is entitled to seniority only from the date when the said person actually joins the post. In the case of Sunaina Sharma and others Vs. State of Jammu and Kashmir and others reported in (2018) 11 SCC 413 , this principle has been reiterated by the Apex Court. The opinion of the Apex Court as contained in Paras- 13.3, 15, 17, 19 and 20 are profitably quoted hereunder: Paras-13.3 It would be pertinent to mention that in both these cases normal principle that seniority should be considered from the date of appointment has not been overruled but these judgments have been rendered in the peculiar facts and circumstances of these cases. 15. From the judgments referred to hereinabove it is apparent that the normal rule is that a person is entitled to seniority only from the date when the said person actually joins the post. True it is, that there are exceptions and sometimes “in service” candidates can be granted promotion from a date anterior to their being regularly promoted/appointed. However, this can be done only if the rules enable retrospective appointment and on fulfilling the other requirement of the Rules. 17. In Suraj Parkash Gupta case this Court held that direct recruits could not claim seniority from a date anterior to their appointment. The reason is simple. The direct recruits were not even borne in the cadre and were not holding any post in the service. There can be no manner of doubt that direct recruits cannot get seniority from a date prior to their appointment. While interpreting Rule 23, we must also take note of Rule 9 of the Excise Rules which deals with probation. When a person is appointed to the post of ETO whether by promotion or by way of direct recruitment, he shall be on probation for a period of two years. The Explanation to Rule 9 provides that appointment on probation shall be made against substantive vacancies only. The Explanation also provides that any period of officiating service shall be reckoned as period spent on probation when a person is formally appointed to the service. This clearly envisages that the person should have been actually working on the post of ETO to be considered to be on probation. The whole concept of probation is to judge the suitability of the candidate appointed to the post. This clearly envisages that the person should have been actually working on the post of ETO to be considered to be on probation. The whole concept of probation is to judge the suitability of the candidate appointed to the post. There can be no objective assessment if the person is not actually working on the post. The promotees never worked as ETOs prior to their formal promotion. Therefore, though vacancies may have been there in their quota, they having not worked against the post of ETO could not have been appointed and granted seniority from an anterior date. 19. It is well settled that retrospective promotion to a particular group can violate Articles 14 and 16 of the Constitution of India. Even if the Rules enable the State to make retrospective promotion, such promotion cannot be granted at the cost of some other group. Therefore, the only reasonable interpretation can be that the promotees can get promotion from an anterior date only if they have worked against the said post even if it be on temporary or officiating, or ad hoc basis, etc. 20. On analysis of Rule 24 of the Civil Services Rules, it is apparent that as per this Rule the seniority of a person subject to the said Rules is to be determined by the date of first appointment to such service, class, category or grade, as the case may be. Therefore, it is apparent that only the service rendered in a particular service, class, category or grade can be taken into consideration and not the service rendered in some other service, class, category or grade while determining the seniority. Note 1 to the Rules also makes it clear that the date of first appointment shall mean the date of permanent appointment or the first appointment on probation on a clear vacancy. We have already held above that appointment on probation obviously envisages that the person is working against the said post in the particular service, class, category or grade. 45 candidates belonging to different categories were appointed in 1983 on the request of the State Government as against 127 total posts of Sub Inspector Excise initially advertised. We have already held above that appointment on probation obviously envisages that the person is working against the said post in the particular service, class, category or grade. 45 candidates belonging to different categories were appointed in 1983 on the request of the State Government as against 127 total posts of Sub Inspector Excise initially advertised. Petitioner belonging to the General Category could not fall in the list of 45 recommended candidates, but was recommended for appointment to the post of compiler in the Urban Development Department where he joined as well pursuant to the letter dated 13th August, 1983. As such, he was borne on the cadre of complier in a different department from the same recruitment exercise and remained in that cadre till his appointment on 19th March, 1997 as Excise Sub Inspector. Evidently, petitioner could not simultaneously claim to be treated for the period 1983 to 1997 in the cadre of Excise Sub Inspector, even notionally on the basis of the direction issued in CWJC No. 227 of 1987. It would be wholly presumptuous on the part of the petitioner to claim seniority from an anterior date in 1983 in such circumstances. 11. In determination of inter se seniority or seniority which is a civil right, parties whose interest are likely to be affected are necessary parties. If the claim for upgradation of seniority of the petitioner is allowed several persons who were borne on the cadre of Sub Inspector Excise much before him would be affected. However, petitioner has failed to implead such persons or even few of them in representative capacity. Though petitioner has adverted to the final seniority list published on 21st June, 2013 and that certain persons who were on the provisional seniority list dated 17th December, 2008 were promoted in between but none of those persons have been impleaded before the Writ Court though the writ petition was decided on 14th May, 2018 five years thereafter. Respondents have therefore rightly placed reliance upon the judgment of the Apex Court in the case of State of Uttaranchal and another Vs. Madan Mohan Joshi and others (supra). Writ petition and appeal is liable to be dismissed on the ground of non-joinder of necessary parties alone. Learned counsel for the appellant has referred to Service Rules notified on 8th June, 2018. Madan Mohan Joshi and others (supra). Writ petition and appeal is liable to be dismissed on the ground of non-joinder of necessary parties alone. Learned counsel for the appellant has referred to Service Rules notified on 8th June, 2018. These Rules have been made effective from the date of its publication in the gazette. Rule 10(vi) provides for recommendation of candidates as per merit-list prepared on the basis of vacancies notified by the State Government. Rule 12 provides for determination of seniority as per the merit-list in case of appointment through direct recruitment. These Rules replaced the Sub Inspector Recruitment Rules 1954. Rule 37 is the repeal and saving Clause. These Rules being prospective in nature could not be relied upon by the petitioner. Even otherwise, recommendations were made by the Service Commission in the year 1983 on the basis of a merit-list of candidates as against 45 vacancies. Petitioner also was appointed though on a different post in the Urban Development Department out of the same recruitment exercise. As such, on being appointed on 19th March, 1997 on the post of Excise Sub Inspector, petitioner cannot claim seniority from 1983 in such cadre. The question posed at the outset is answered in the native. 12. In the case of State of U.P. Vs. Rafiquddin & Others (supra) relied upon by the petitioner, the Apex Court held that where subsequent to declaration of the results of competitive exam some unplaced candidates of an earlier competitive examination were, after lowering the requisite minimum marks, appointed to the service, such candidates were appointed in contravention of Rules. Hence they belonged to a different stream and could not claim seniority over the duly appointed candidates of either of the said examinations. The ratio of the said case is of no help to the petitioner. In the case of Pilla Sitaram Patrudu Versus Union of India reported in (1996) 8 SCC 637 , Apex Court found that the appointment of direct recruit was delayed for no fault on his part but due to laches on the part of the department. As such, he was held eligible for promotion according to Rules and entitled to determination of his seniority in the promotional post as per the procedure prescribed in applicable Rules. As such, he was held eligible for promotion according to Rules and entitled to determination of his seniority in the promotional post as per the procedure prescribed in applicable Rules. In the facts of the instant case reliance upon this decision is misplaced, moreover, when petitioner was already serving since 1983 under the State of Bihar on the post of compiler in Urban Development Department on the basis of the same recruitment exercise. The judgment in the case of Daliah Sojah Versus State of Kerala reported in (1998) 9 SC 641 also do not come to aid of the appellant in the present facts and circumstances of the case. In the case of Bimlesh Tanwar Versus State of Haryana & Others reported in (2003) 5 SCC 604 relied upon by the appellant, it was held that inter se seniority of a candidate appointed on the same day would be dependent on the Rules governing the same. Only in the absence of a Rule or executive instruction the Court may have to evolve fair and just principle which could be applied in the facts and circumstances of the case. The appointment of the petitioner on the substantive post having been done in 1997, it is not open for him to contend that he was appointed on the same day as others. As such the ratio of this case does not apply to the case of the appellant. The facts of the case of Balwant Singh Narwal Versus State of Haryana reported in (2008) 7 SCC 728 relied upon by the appellant, reveal that respondent nos. 4 to 16 were denied appointment though being in the selected merit-list of 30 candidates as Punjab & Haryana High Court quashed the recommendation in excess of 18 vacancies of temporary Principal in Higher Secondary School initially notified in an advertisement in January, 1992 though the posts were increased to 37 on a fresh requisition made by the State Education Department to the Commission. The Commission had declared the merit-list of 30 selected candidates on 30th September, 1993 which included respondent nos. 4 to 16. In these circumstances, the Apex Court while allowing Civil Appeal held the seniority of private respondents protected. In the intervening litigation earlier, the Supreme Court had upheld the validity of the entire list of 30 candidates. The Commission had declared the merit-list of 30 selected candidates on 30th September, 1993 which included respondent nos. 4 to 16. In these circumstances, the Apex Court while allowing Civil Appeal held the seniority of private respondents protected. In the intervening litigation earlier, the Supreme Court had upheld the validity of the entire list of 30 candidates. Appellants appointed during the period 1995 to 2000 against vacancies of subsequent years, had approached the Apex Court in the instant Civil Appeal No. 2098 of 2007 being aggrieved by the seniority given to the respondent nos. 4 to 16 as Principal with retrospective effect from 2nd June, 1994 though they were appointed on 26th May, 2000 after the Apex Court had upheld the validity of entire list of 30 candidates. Evidently case of the appellant is entirely distinguishable from the facts of the said case. As such any reliance placed thereupon is misplaced. 13. Having conferred anxious consideration to the entire gamut of facts and circumstances and the position in law as discussed hereinabove, there are no such error or illegality in the decision of the Writ Court which calls for interference in appeal. 14. Appeal being devoid of merit is dismissed. However, there shall no order as to cost(s). Aniruddha Bose, CJ. - I agree. Appeal dismissed.