Jharkhand High Court

Akhileshwar Ram vs State Of Jharkhand on 27 June, 2022

                            1




 IN THE HIGH COURT OF JHARKHAND AT RANCHI

               W. P. (S) No. 3207 of 2013

   Akhileshwar Ram, son of Late Jagat Ram, Resident of - At and
   P.O. -Kauwal, P.S. - Chhatarpur, District- Palamau, Jharkhand.
                                              ...     ...      Petitioner
                         Versus
1. State of Jharkhand.
2. Principal Secretary, Water Resources Department, Government of
   Jharkhand, Nepal House, P.O. and P.S.-Doranda, District-Ranchi,
   Jharkhand.
3. Joint Secretary (Management), Water Resources Department,
   Government of Jharkhand, Nepal House, P.O. and P.S. Doranda,
   District-Ranchi, Jharkhand.
4. Prabhat Kumar, Son of -not Known to the petitioner, at present
   posted as Rehabilitation Officer, P.O. + P.S. -Deoghar, District-
   Deoghar.
5. Birendra Kumar, Son of now known to the petitioner, at present
   posted as Assistant Engineer, Irrigation Sub-Division Chainpur,
   P.O. & P.S. -Gumla, District-Gumla.
6. Chandrashekhar, Son of now known to the petitioner, at present
   posted as Assistant Engineer, Police Construction Corporation,
   P.O. & P.S. -Ranchi, District-Ranchi.
7. Phani Bhushan, Son of not known to the petitioner, at present
   posted as Assistant Engineer, Irrigation Division, Jamshedpur, P.O.
   + P.S.-Jamshedpur, District-Jamshedpur.
8. Sanjay Kumar, Son of-not known to the petitioner, at present
   posted as Assistant Engineer, Minor Irrigation Division
   Jamshedpur-P.O.-Jamshedpur,          P.S.-Jamshedpur,      District-
   Jamshedpur.
9. Uma Shankar, Son of not known to the petitioner, at present posted
   as Assistant Engineer, Irrigation Division Madhupur, P.O. + P.S.-
   Madhupur, District-Deoghar.
10.Sanjiv Kumar, S/o Late Kanhai Rajak, R/o D-305, Triveni
   Apartment, Airport Road, P.O. - Hinoo, P.S.-Doranda, District
   Ranchi.
11.Amrendra Kumar, S/o Late Indradeo Ram, R/o Qr. No. 703,
   Vasundhra Apartment, P.O. + P.S. Argora, District-Ranchi
                                       ...        ...        Respondents

                         With
               W. P. (S) No. 2346 of 2013
                                      2




      1. Bijay Kumar Paswan, son of Late Lakhan Lal Paswan, Resident of
         - Chapha, P.O.-Chapha, Police Station-Asarganj, District-Munger,
         Bihar.
      2. Baidya Nath Prasad, Son of Ram Nandan Ram, Resident of -
         Gwankhap, Post Office-Kusha Narayanpur, Police Station-
         Hussainabad, District-Palamau, Jharkhand.
                                                    ...     ...      Petitioners
                               Versus
      1. State of Jharkhand.
      2. Principal Secretary, Water Resources Department, Government of
         Jharkhand, Nepal House, P.O. and P.S.-Doranda, District-Ranchi,
         Jharkhand.
      3. Joint Secretary (Management), Water Resources Department,
         Government of Jharkhand, Nepal House, P.O. and P.S. Doranda,
         District-Ranchi, Jharkhand.
      4. Prabhat Kumar, Son of-not Known to the petitioner, at present
         posted as Rehabilitation Officer, P.O. + P.S. -Deoghar, District-
         Deoghar.
      5. Birendra Kumar, Son of now known to the petitioner, at present
         posted as Assistant Engineer, Irrigation Sub-Division Chainpur,
         P.O. Gumla, District-Gumla.
      6. Chandrashekhar, Son of now known to the petitioner, at present
         posted as Assistant Engineer, Polish Construction Corporation,
         P.O. & P.S. -Ranchi, District-Ranchi.
      7. Phani Bhushan, Son of not known to the petitioner, at present
         posted as Assistant Engineer, Irrigation Division, Jamshedpur, P.O.
         + P.S.-Jamshedpur, District-Jamshedpur.
      8. Sanjay Kumar, Son of not known to the petitioner, at present
         posted as Assistant Engineer, Minor Irrigation Division
         Jamshedpur-P.O.-Jamshedpur,          P.S.-Jamshedpur,      District-
         Jamshedpur.
      9. Uma Shankar, Son of not known to the petitioner, at present posted
         as Assistant Engineer, Irrigation Division Madhupur, P.O. + P.S.-
         Madhupur, District-Deoghar.         ...        ...        Respondents
                               ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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16/27.06.2022

1. Heard Mr. Manoj Tondon, learned counsel appearing on behalf of the petitioners along with Mr. Saurav Shekhar, Advocate.

2. Heard Mr. Saurav Arun, learned counsel appearing on behalf of the private respondents assisted by Ms. Omiya Anusha, Advocate in both the cases.

3. Heard Mr. Om Prakash Tiwari, learned counsel appearing on behalf of the respondent-State assisted by Mr. Shashank Saurav, Advocate in W.P. (S) No. 2346/2013.

4. Heard Mr. Suresh Kumar, learned counsel appearing on behalf of the respondent-State assisted by Mr. Anshuman Kumar, Advocate in W.P. (S) No. 3207/2013.

5. It has been submitted by the learned counsel for the parties that identical issues for consideration are involved in the present cases and similar relief has been prayed for.

6. The argument has been advanced by the parties referring to the pleading in W.P. (S) No. 2346/2013.

7. So far as the State is concerned, the learned counsel for the State in W.P. (S) No. 3207/2013 has adopted the argument of the learned counsel for the State in W.P. (S) No. 2346/2013.

8. W.P. (S) No. 2346 of 2013 has been filed for the following reliefs: -

"a. For issuance of an appropriate writ/writs, order/orders, direction/directions for quashing the order as contained in Letter No. 1978 dated 02.04.2013 [Annexure -13], issued under the signature of Respondent No. 3 so far as it relates to the petitioners, whereby and whereunder a final seniority list of the year 2013 has been published by the respondents Department with respect to the Assistant Engineers (Civil) to Engineer-in-Chief (Civil) whereby and whereunder, the position of the petitioners have remarkably been reduced from Sl. No. 836 to 896 and 840 to 900 respectively and the private respondents have been shown senior from Sl. No. 862 to 869 and they have been placed from Sl. No. 848 to 855 while both the petitioners have been placed at Sl. No. 896 and 900 respectively.

b. For issuance of an appropriate writ/writs, order/orders, direction/directions for quashing the order as contained in Letter No. 1977 Dated 02.04.2013 [Annexure-12], issued under the signature of Respondent No. 3, by which the objection preferred by the petitioner in connection with the provisional seniority list dated 04.06.2012 has been rejected.

c. For issuance of an appropriate writ/writs, order/orders, direction/directions upon the respondents to forthwith issue a fresh revised seniority list on the basis of the Circular Dated 26.08.1972 which is still in vogue and not have been rescinded or recalled by the State of Jharkhand which provides that the promoted Assistant Engineers from

the post of Junior Engineer in a calendar year will be senior over and above the direct recruit Assistant Engineers and the private respondents have been appointed in the calendar year directly to the post of Assistant Engineer and as such, they have to be placed below the petitioners in pursuance to the Circular as contained in Letter dated 26.08.1972.

d. For issuance of an appropriate writ/writs, order/orders, direction/directions commanding upon the respondents to declare the position of the petitioners in the seniority list as were placed in the seniority list published on 13.06.2007, as contained in Memo No. 2380, in which the petitioner no. 1 has been placed at Sl. No. 836 while the petitioner no. 2 was published at sl. No. 840 for all practical purposes.

                                      AND/OR
           e.    Pass    such     other    writ/writs,   order/orders,

direction/directions as Your Lordship may deems fit and proper."

W.P. (S) No. 3207 of 2013 has been filed for the following reliefs: -

"a. For issuance of an appropriate writ/writs, order/orders, direction/directions for quashing the order as contained in Letter No. 1978 dated 02.04.2013 [Annexure -12], issued under the signature of Respondent No. 3 so far as it relates to the petitioner, whereby and whereunder a final seniority list of the year 2013 has been published by the respondents Department with respect to the Assistant Engineers (Civil) to Engineer-in-Chief (Civil) whereby and whereunder, the position of the petitioner has

respectively and the private respondents have been shown senior from Sl. No. 862 to 869 and they have been placed from Sl. No. 848 to 855 while the petitioner has been placed at Sl. No. 897.

b. For issuance of an appropriate writ/writs, order/orders, direction/directions for quashing the order as contained in Letter No. 1977 Dated 02.04.2013 [Annexure-11], issued under the signature of Respondent No. 3, by which the objection preferred by the petitioner in connection with the provisional seniority list dated 04.06.2012 has been rejected.

c. For issuance of an appropriate writ/writs, order/orders, direction/directions upon the respondents to forthwith issue a fresh revised seniority list on the basis of the Circular Dated 26.08.1972 which is still in vogue and not have been rescinded or recalled by the State of Jharkhand which provides that the promoted Assistant Engineers from the post of Junior Engineer in a calendar year will be senior over and above the direct recruit Assistant Engineers and the private respondents have been appointed in the calendar year directly to the post of

Assistant Engineer and as such, they have to be placed below the petitioner in pursuance to the Circular as contained in Letter dated 26.08.1972.

d. For issuance of an appropriate writ/writs, order/orders, direction/directions commanding upon the respondents to declare the position of the petitioner in the seniority list as were placed in the seniority list published on 13.06.2007, as contained in Memo No. 2380, in which the petitioner has been placed at Sl. No. 837 for all practical purposes.

                                        AND/OR
            e.    Pass    such     other     writ/writs,    order/orders,

direction/directions as Your Lordship may deems fit and proper."

Arguments of the petitioners in both the cases

1. Learned counsel for the petitioners submits that the impugned order contained in Memo No. 1977 dated 02.04.2013 annexed as Annexure-12 of the writ petition arises out of objection filed by the petitioners who were promoted to the post of Assistant Engineer from the post of Junior Engineer being a diploma holder. The learned counsel submits that a provisional seniority list was published as contained in Memo No. 2579 dated 04.06.2012 (Annexure-9) and the objection to the same was filed from the side of the petitioners on account of the fact that the petitioners were shown junior to that of the private respondents and the said objection has been rejected by the impugned order dated 02.04.2013.

2. The learned counsel has referred to the order of rejection and submitted that the order of rejection is a cryptic order and the same has been passed by referring to order passed in C.W.J.C. No. 5996/2002 dated 12.05.2005. The learned counsel submits that the order of Hon'ble Patna High Court in C.W.J.C. No. 5996/2002 (Annexure-4) is annexed with the writ petition and he submits that the matter of inter se seniority was not decided by the said order rather it was still left to the authorities to consider the objection, if any, to the seniority list. The learned counsel further submits that the other order, which has been referred to in the impugned order, is order of L.P.A. No. 603/2005 annexed as Annexure-E to the counter-affidavit dated 26.09.2013 filed by the respondent Nos. 4 to 8. He submits that it has been mentioned in the impugned order that pursuant to the order passed in L.P.A. No. 603/2005, the State of Bihar had issued a fresh

seniority list in the year 2008. The learned counsel submits that this aspect of the matter itself reflects gross error of record, in as much as, the order of L.P.A. was passed only on 26.08.2010. The learned counsel further submits that a number of points were raised in the objection which was filed by the petitioners before the authority and those aspects of the matter have not been taken into consideration while passing the impugned order and the impugned order itself suffers from error of record.

3. While advancing his argument on the point of merit of the case, the learned counsel for the petitioners has submitted that the petitioners are primarily aggrieved by non-consideration of circular dated 26.08.1972 (Annexure-2) which determines the inter se seniority between direct recruits and promotees. He submits that the aforesaid circular of 1972 was specifically referred to in the objection, but while dismissing the objection, the authority has not bothered to deal with the same. The learned counsel submits that the objection raised by the petitioners having not been considered by the authority, the impugned order cannot be sustained in the eyes of law.

4. The learned counsel, while referring to the circular dated 26.08.1972, has referred to the clause dealing with inter se seniority and has submitted that as per the provision of inter se seniority, it has been clearly mentioned therein that if the officers are to be inducted by way of single transaction, by way of promotion and direct recruitment, then under such circumstances, the promotees will be put senior to those of direct recruits. The learned counsel also refers to the explanation to the aforesaid norms of determination of inter se seniority which also defines the meaning of "single transaction". The learned counsel submits that the aforesaid rule of 1972 has not been taken into consideration and if the same would have been taken into consideration, then the petitioners (the promotees) would have been placed senior to the private respondents (the direct recruits).

5. The learned counsel during the course of argument has submitted that the petitioners as well as the private respondents were appointed in the year 1995 itself and accordingly, the petitioners being promotees were required to be put above that of the private

respondents. The learned counsel submits that as the objection of the petitioners to the provisional seniority list has been wrongly rejected, all consequential relief should follow and the final seniority list be also set-aside. The learned counsel has also submitted that the seniority of the petitioners stands settled for about 18 years and the same should not have been disturbed by the impugned order.

Arguments of the respondents in both the cases

6. Learned counsel appearing on behalf of the private respondents has submitted that the entire selection process of the direct recruits and promottees has been summarized in Annexure-7 filed by the petitioners which is dated 03.01.2008. The learned counsel has referred to clause 2 (ja) of the said order dated 03.01.2008, wherein it has been recorded that the vacancy for direct recruitment was for the period 01.04.1989 to 31.03.1994 and consequently the Bihar Public Service Commission completed the selection process for the direct recruits during the period from 27.09.1994 to 01.10.1994 and the list of selected candidates was provided to the Road Construction Department of the then State of Bihar and the respondents were consequently appointed directly to the post of Assistant Engineer on 16.05.1995/17.08.1995. The learned counsel has also submitted that the entire selection process, so far as the direct recruits are concerned, was completed on 14.12.1994 (total 88 candidates) and 28.02.1995 (total 27 reserved category candidates). The learned counsel, by referring to clause 2 (ja) of the said order dated 03.01.2008, further submits that so far as the promotees in reserved category are concerned, it has been mentioned therein that the vacancies were identified on 31.03.1993, but the writ petitioners had completed the qualifying period of service for promotion i.e., "Kalawadhi" on 20.01.1995 or on subsequent date. After completion of "Kalawadhi" and upon recommendation made by BPSC they were recommended for promotion and were granted promotion on 24.11.1995 to 17.09.1997 by B.P.S.C.

7. The learned counsel submits that the selection process of the private respondents commenced and completed much prior to the

promotion given to the petitioners, in as much as, the private respondents were recruited directly on 16.05.1995/17.08.1995 and the petitioners were promoted on 24.11.1995 to 17.09.1997. He also submits that when the recruitment process had begun, at that point of time, the petitioners had not even completed the requisite period i.e., "Kalawadhi" for grant of promotion as they acquired their "Kalawadhi" for promotion only on 20.01.1995 and on subsequent dates. The learned counsel submits that not only the recruitment process, but also the decision for recruitment of the direct recruits and promotees was totally distinct and on the date and time when the recruitment process of the direct recruits began, the petitioners were not even entitled for consideration of promotion.

8. The learned counsel submits that although the petitioners have harped upon the aforesaid circular of the year 1972, but even if the same is taken into consideration, the petitioners do not even have a prima facie case for reconsideration by the authorities. Learned counsel for the respondents, though does not dispute the fact that circular of 1972 was referred to in the objection filed by the petitioners and was not even considered by the concerned authorities while rejecting the objection, but he submits that the same has no bearing as the rule referred to by the petitioners has no impact. The comparison of direct recruit and promotees could take place only if the entire recruitment process was a part of single transaction as contemplated in the circular of the year 1972 of inter se seniority. The learned counsel has also submitted that the petitioners in the writ petition as well as the objection have not even stated that they are entitled to be placed higher than private respondents on account of induction being made out of single transaction and in para-21 of the writ petition, the petitioners have specifically mentioned the circular dated 26.08.1972 to submit that recruitment of promoted Assistant Engineers and directly recruited Assistant Engineers having been made in the same calendar year, therefore the promoted Assistant Engineers should be posted senior to that of the directly recruited Assistant Engineers (private respondents).

9. The learned counsel for the respondents has also referred to a judgment passed by Hon'ble Patna High Court reported in 1982 0 BBCJ 45 (Bishundeo Mahto vs. State of Bihar) and submitted that the term "in one transaction" has been interpreted by Hon'ble Full Bench. The learned counsel submits that merely because the respondents have not dealt with circular of the year 1972, the same itself is not enough to set-aside the impugned order, in as much as, the petitioners have not been able to make out even a prima facie case in their favour by referring to the circular of 1972.

10. Learned counsel for the private respondents has also relied upon the judgment passed by the Hon'ble Supreme Court reported in (1994) 2 SCC 622 and submits that the date of entry of service is a relevant factor and in the present case, the private respondents have been appointed to the post prior to that of the petitioners.

Arguments of the State of Jharkhand

11. Learned counsel for the State of Jharkhand has referred to para 7 and 8 of the counter affidavit dated 24.06.2013 to submit that in the impugned gradation list, the names of the directly recruited Assistant Engineers who were appointed against vacant posts existed in between 01.04.1989 to 31.03.1994, are placed above the names of promoted Assistant Engineers who were given promotion on 20.01.1995 or after completion of required working period (kalawadhi) in lower post i.e., as Junior Engineer.

12. The learned counsel has further referred to para-9 of the counter-affidavit to submit that prior to finalization of seniority list, objections were invited from the concerned Engineers. The petitioners along with many other persons submitted their objections before the Department. The Department examined the objections and disposed the same with full care giving reasons against each objection vide departmental memo no. 1977 dated 02.04.2013 and the department has given sufficient opportunity to raise their objections and after considering the objections the final gradation list in question has been published.

Rejoinder arguments of the Petitioners

13. Learned counsel for the petitioners, in response, has referred to I.A. No. 3670/2016 filed in W.P. (S) No. 2346/2013 and submitted that the counter-affidavit which was filed by the State in C.W.J.C. No. 5996/2002 before Hon'ble Patna High Court has been annexed as Annexure-IA/2 to the interlocutory application. The learned counsel submits that it was the specific statement made in para-3 of the counter-affidavit which was filed by the State in C.W.J.C. No. 5996/2002 that the petitioners of the said case were appointment on the post of Assistant Engineer directly in the year 1995 on the recommendation of B.P.S.C. against vacancies of 1992-93. In November 1995, about 100 Junior Engineers of Scheduled Caste/Scheduled Tribes were promoted on the post of Assistant Engineer against the same vacancies i.e., 1992-93 and accordingly, a stand was taken that both the Assistant Engineers either directly recruited or promoted were appointed/ promoted on the post of Assistant Engineers in a single transaction. It was also stated in the counter-affidavit that as a rule, if appointment and promotion were made in single transaction, then the promoted one will rank senior than the directly recruited and hence the stand was taken that the Assistant Engineers who were appointed by promotion would rank senior to those of the Assistant Engineers who were appointed by direct recruitment. The further stand which was taken by the State in the aforesaid case was that the petitioners of the said case were appointed by direct recruitment hence they were enlisted in lower position in the gradation than the Assistant Engineer appointed by promotion vide order dated 11.09.2001 of Water Resources Department. It was also mentioned therein that the order No. 1713 dated 28.07.2001 was already quashed by order No. 1183 dated 20.06.2002 from which the due date of promotion was announced to the Assistant Engineers or private respondents who were appointed by promotion.

14. However, the learned counsel for the petitioners during the course of argument has not disputed the foundational facts of the case as mentioned in clause 2(ja) of Annexure-7 to the writ petition filed by the petitioners. The petitioners have themselves annexed the order

dated 03.01.2008 as Annexure-7, but these foundational facts as recorded in clause 2 (ja) are neither in dispute in the pleadings before this Court nor the same has been disputed by the petitioners during the course of arguments of this case.

15. The learned counsel for the petitioners has also referred to the consequential order passed by the State of Bihar as contained in Memo No. 602 dated 27.02.2006 (Annexure-5), which was passed pursuant to the order passed in C.W.J.C. No. 5996/2002 by the Hon'ble Patna High Court.

Findings of this Court

16. It is not in dispute that the petitioners as well as the private respondents belong to reserved category. The petitioners are the promotees and private respondents are the direct recruits and the dispute is with regards to their inter-se -seniority.

17. It is apparent from the facts of this case that the selection process of the private respondents commenced much prior to that of the petitioners and at the relevant point of time, the petitioners had not even completed the qualifying period of service for promotion. This aspect of the matter has been considered in details in the later part of this judgement with the relevant dates. Both the parties have relied upon the circular dated 26.08.1972 dealing with inter se seniority between direct recruits and promotes.

18. After, the petitioners were granted promotion on 24.11.1995 (Annexure-1), the combined seniority list was published by the State of Bihar vide letter No. 2166 dated 11.09.2001 (Annexure-3) and the position in the seniority list was at serial No. 4845 and 4856 with respect to petitioner Nos. 1 and 2 in W.P. (S) No. 2346/2013 and at serial No. 4846 with respect to that of sole petitioner in W.P. (S) No. 3207/2013, who was also promoted on the same dated i.e., 24.11.1995. The seniority list was prepared in line with one memo No. 1713 dated 28.07.2001.

19. A writ petition was filed by direct recruits before the Hon'ble Patna High Court being C.W.J.C. No. 5996/2002 challenging the validity of one memo No. 1713 dated 28.07.2001, whereby the date of

promotion of the concerned respondents ( promotees) was shifted from the date of completion of "Kalawadhi" and in consequence thereof their seniority vis-à-vis direct recruits (Petitioners of the said case) was fixed vide seniority list dated 11.09.2001. The order passed by Hon'ble Patna High Court in C.W.J.C. No. 5996/2002 dated 12.05.2005 is contained in Annexure-4 to the present writ petition.

20. In the said writ petition, a counter-affidavit was filed on behalf of the State annexing a copy of the order contained in Memo No. 1183 dated 20.06.2002, whereby the Memo No. 1713 dated 28.07.2001 was cancelled and consequently, it was submitted by the State of Bihar that the writ petition had become infructuous as the order impugned i.e., Memo No. 1713 dated 28.07.2001 was already cancelled by the State Authorities.

21. In the aforesaid background, it was submitted that once the order impugned in the writ petition being C.W.J.C. No. 5996/2002 was itself cancelled, the seniority fixed as per gradation list dated 28.07.2001 prepared on such decision contained in Memo No. 1713 dated 28.07.2001 also could not sustain. The Hon'ble Patna High Court while disposing of the writ petition observed as follows: -

"I find substance in the submission of the learned counsel for the petitioners. It is not disputed that the petitioners as well as the concerned respondents both belong to the reserved category. Sub-paragraph (Kha) of paragraph 3 of the gradation list (Annexure 2) shows that their seniority was fixed pursuant to Annexure 1, which has been cancelled vide Annexure D. Thus, the question of fixation of seniority of the petitioners vis- à-vis the concerned respondents vide Annexure 2, cannot stand. The State authorities will have to fix their seniority afresh.

Mr. Mukhopadhyay, learned counsel appearing for some of the concerned respondents has submitted that after issuance of Annexure D, the concerned respondents have represented for their promotion against due quota as claimed by them, which is still pending.

In the facts and circumstances aforementioned, the writ petition is disposed of with the direction that the inter se seniority of the petitioners vis-à-vis the respondents fixed vide Annexure-2 cannot stand and the State authorities shall invite objection from them and fix their seniority afresh, in accordance with law.

It is further made clear that any promotion, if any, made after filing of the writ petition on the basis of the seniority fixed vide Annexure 2 cannot also stand and the authorities shall

examine this aspect and issue necessary consequential order within two weeks."

22. The Hon'ble Patna High Court clearly held that the State Authorities will have to decide inter se seniority in accordance with law.

23. The writ petition being C.W.J.C. No. 5996/2002 was disposed of vide order dated 12.05.2005. Consequently, the reasoned order was passed by the Water Resources Department of the State of Bihar vide Memo No. 602 dated 27.02.2006 (Annexure-5) and a finding was given that there was no infirmity in the previous seniority list dated 11.09.2001 and held that the promoted Assistant Engineers in the year 1995 will stand senior to the directly recruited Assistant Engineers.

24. Thereafter, upon cadre division, the State of Bihar prepared a provisional seniority list dated 09.04.2007 with regards to the employees retained by the State of Bihar, and upon considering the objections, published final seniority list dated 03.01.2008 (Annexure-

7) mentioning the entire background of the matter of inter-se seniority between the direct recruits of assistant engineers of reserved category and promotees of assistant engineers of reserved category, both recruited in the year 1995. It also indicated that a decision was taken to supersede the earlier reasoned order dated 27.02.2006 (Annexure-5) and consequently, the direct recruits in reserved category were placed at Sl. no. 1409 to 1460 and promotees in reserved category were placed at Sl.no. 1461 to 1550 i.e., below the direct recruits. Thus, direct recruits were placed senior to the promotees in seniority list dated 03.01.2008.

25. In the meantime, the appeal filed against order dated 12.05.2005 in C.W.J.C. No. 5996 of 2002 before Patna High Court being L.P.A. No. 603 of 2005 was taken up and the appeal was disposed of with the following observations and directions: -

"4. The present appeal stood dismissed for non-prosecution by order dated 21.05.2007, and it was restored to its original file by order dated 4.7.2008. In the meantime, by its order dated 3.1.2008, the State Government decided the issue remitted by the learned Single Judge. In the facts and circumstances obtaining as on date, it appears to us that the

State Government has finally decided the matter by its order dated 3.1.2008, which gives rise to a fresh cause of action to the parties. We are thus of the view that the appeal was neither at the inception nor at the present stage, is maintainable, mainly for the reason that the learned Single Judge did not decide any aspect of the matter and only remitted the matter to the State Government for consideration and final order."

5. In the result, we dispose of this appeal with the liberty to the aggrieved party to challenge the order dated 3.1.2008, along with the cognate issues in accordance with law. It is made clear that the observations made by the learned Single Judge in the impugned order shall not be taken to be conclusive of any issue, except that part of the order whereby the matter was remitted to the State Government for its final decision."

26. The petitioners have also disclosed that the seniority list dated 03.01.2008 has been challenged by the aggrieved party before the Hon'ble Patna High Court in writ petition being C.W.J.C. No. 2290/2011, wherein an order of status quo dated 28.04.2011 (Annexure-8) has been passed.

27. Thus, the seniority list which has been prepared by the State of Bihar pursuant to the directions of the Hon'ble Patna High Court vide order dated 12.05.2005 in C.W.J.C. No. 5996 of 2002 after considering the objections, if any, of the assistant engineers of the State of Bihar is sub-judice before the Hon'ble Patna High Court in writ petition being C.W.J.C. No. 2290/2011.

28. So far as the State of Jharkhand is concerned, the Water Resources Department, State of Jharkhand published one seniority list contained in order No. 2380 dated 13.06.2007 on the basis of the aforesaid reasoned order passed by the State of Bihar. The said reasoned order was superseded by the State of Bihar while preparing the final seniority list dated 03.01.2008 published by State of Bihar which has been challenged by the aggrieved party before the Hon'ble Patna High Court in writ petition being C.W.J.C. No. 2290/2011 which is pending.

So far as present W.P. (S) No. 2346/2013 is concerned, in aforesaid seniority list dated 13.06.2007, the name of petitioner No. 1 stood at

serial No. 836 while that of petitioner No. 2 at serial No. 840 and that of private respondents stood at serial Nos. 862 to 869 and thus the petitioners stood senior to that of the private respondents. So far as petitioner in W.P. (S) No. 3207/2013 is concerned, the name of the petitioner stood at serial No. 837 and that of the private respondents stood at serial Nos. 862 to 869 and thus the petitioner in W.P. (S) No. 3207/2013 stood senior to the private respondents.

29. It was after publication of seniority list by the State of Jharkhand contained in order No. 2380 dated 13.06.2007 (Annexure-

6), the final seniority list dated 03.01.2008 was published by the State of Bihar wherein the earlier reasoned order dated 27.02.2006 (Annexure-5) was superseded. The final seniority list dated 03.01.2008 published by the State of Bihar has been challenged by the aggrieved party before the Hon'ble Patna High Court in writ petition being C.W.J.C. No. 2290/2011 which is pending.

30. From the records of this case, it further reveals that so far as the State of Jharkhand is concerned, the objection with regard to inter se seniority between the direct recruits and promotees pursuant to order passed in C.W.J.C. No. 5996/2002 dated 12.05.2005 was called for, for the first time, only vide Memo No. 2579 dated 04.06.2012, pursuant to which objections were raised vide Annexure-10 and were rejected vide impugned order contained in Memo No. 1978 dated 02.04.2013 (Annexure-13) and the seniority list with regard to promotees appointed as Assistant Engineer in reserved category during the period from 1995 to 1997 and direct recruit appointed as Assistant Engineer in reserved category in the year 1995 became final by virtue of the impugned order, which is under challenged.

31. In view of the aforesaid background, final publication of seniority list by the state of Jharkhand vide Memo No. 2380 dated 13.06.2007 (Annexure-6) has no bearing in the matter.

32. It has also been argued by the respondents that the seniority list stood settled for last 18 years. This Court finds that the matter regarding inter-se-seniority between the promotees to the post of Assistant Engineer in the reserved category and direct recruits to the post of Assistant Engineer in the reserved category has been subject

matter of litigation since long and before the matter could finally settle, the State of Jharkhand was created and cadre division was effected and thereafter the State of Bihar and State of Jharkhand took their respective decisions pursuant to order passed in C.W.J.C. 5996 of 2002 read with the order passed in L.P.A. No. 603 of 2005 wherein the order of C.W.J.C. 5996 of 2002 was challenged. Thus, the argument of the petitioners that their seniority stood settled for about 18 years, is not correct.

33. The petitioners made objection to the said provisional seniority list dated 04.06.2012 alleging that the parameters which were fixed by virtue of the Circular of inter se seniority dated 26.08.1972 was not followed and the reasoned order dated 27.02.2006 by which the seniority list dated 11.09.2001 was affirmed was also not followed while preparing the provisional seniority list dated 04.06.2012. The said objection filed by the petitioners was rejected by virtue of the impugned order No. 1977 dated 02.04.2013. The reasons for rejection of the objection of the petitioners/promotees in reserved category stated as under: -

i. Vide letter No. 2380 dated 13.06.2007, the promotee Assistant Engineers were shown senior in the seniority list till 1995-96 to that of direct recruits of the year 1995;

ii. The fresh seniority list was prepared in view of order passed in C.W.J.C. No. 5996/2002 and subsequent reasoned order passed by the State of Bihar iii. The reliance was placed on the fresh seniority list prepared by State of Bihar in the year 2008 dated 03.01.2008 where direct recruits Assistant Engineers were put senior to that of promotee Assistant Engineers.

34. Although, it has been mentioned in the impugned order that the seniority list of 2008 was prepared by State of Bihar in the light of order passed in Letters Patent Appeal, but the same appears to be an error of record. From perusal of order passed in L.P.A. No. 603/2005, it appears that the same was disposed of on 26.08.2010 by Hon'ble Patna High Court with a liberty to the aggrieved party to challenge the order dated 3.1.2008, along with the cognate issues in accordance with

law. However, it is not in dispute that the State of Bihar had published a fresh seniority list in the year 2008, where the direct recruits on the post of Assistant Engineers in the reserved category recruited in the year 1995 were placed senior to the promotee Assistant Engineers in the reserved category recruited in the year 1995-97.

35. It is not in dispute that the petitioners are promotees to the post of Assistant Engineer from the post of Junior Engineer and the private respondents are direct recruits to the post of Assistant Engineer. The dispute between the petitioners (promotees) and the private respondents (direct recruits) is with regard to their inter se seniority. It is not in dispute that the inter-se seniority between the petitioners and the private respondents will primarily depend upon the applicability of circular dated 26.08.1972 (Annexure-2) which has been relied upon by both the parties and this circular has not been considered by the official respondents while passing the impugned order rejecting the plea of the petitioners claiming seniority over the private respondents although the same was duly referred to and relied upon in the objection filed by the petitioners to the seniority list.

36. During the course of arguments, the learned counsel for the respondents have submitted that on the face of the circular dated 26.08.1972, when applied to the admitted facts on record, the petitioners do not even have a prima-facie case on the point of seniority over the private respondents and therefore the case be decided on merits. The learned counsel for both the parties as well as learned counsel for the State of Jharkhand have advanced their arguments on the merits of the case by referring to the circular dated 26.08.1972.

37. Now, in the aforesaid undisputed factual background, it is required to be seen as to-

Whether, on the undisputed facts, the petitioners -promotees assistant engineers in reserved category, can rank senior to the private respondents - direct recruits in reserved category, by referring to circular dated 26.08.1972 (annexure-2) which has been relied upon by both the parties.

38. In the judgement passed by the Hon'ble Supreme Court in the case of Ganga Vishan Gujrati v. State of Rajasthan, reported in (2019) 16 SCC 28, the principles governing inter-se seniority has been crystalized and it has been held in para 45 as follows: -

"45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra. The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath and State of Uttaranchal v. Dinesh Kumar Sharma8. In Pawan Pratap Singh v. Reevan Singh, this Court revisited the precedents on the subject and observed: (SCC pp. 281-82, para 45) "45. ... (i) The effective date of selection has to be understood in the context of the Service Rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.

(ii) Inter se seniority in a particular service has to be determined as per the Service Rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.

(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.

(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant Service Rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime."

This view has been re-affirmed by a Bench of three Judges of this Court in P. Sudhakar Rao v. U. Govinda Rao."

39. In view of the aforesaid decision, it is required to be examined as to whether, circular being No. 15784 dated 26.08.1972 (Annexure-

2) dealing with inter-se seniority of promotees and direct recruits help the petitioners in any manner although admittedly the private respondents have been appointed through direct recruitment much prior to that of the petitioners appointed through promotion.

40. The clause of circular being No. 15784 dated 26.08.1972 (Annexure-2) which is relevant for the purposes of this case and relied upon by both the parties is as under: -

"वरीयता सम्बन्धी नियम -

(i ) यदि यदि पिादिकारिय ों की भर्ती एक साथ ह प्र न्नदर्त औि सीिी दियुक्ति से की जाये र्त (क) प्र न्नदर्त पिादिकारिय ों क सीिे भर्ती दकए गए पिादिकारिय ों के मुकाबले पूर्वर्ता दमलेगी दिप्पणी : - 'एक साथ ही' से अदभप्रेर्त है 'एक ही सोंर्यर्हाि में ' शब्द सक्षम पिादिकािी के उस दर्दिश्चय का दििे श किर्ता है दजसमे यह दिणवय दलया गया ह दक पि ों में से दकर्तिे पि सीिी दियुक्ति द्वािा भिे जायेंगे। प्र क्र गर्त दर्लम्बा के कािण र्ास्तदर्क दियुक्तिय ों कई प्रक्रम ों में र्तथा दर्दभन्न र्तािीखें क की जा सकर्ती है । दिि भी, रिक्तिय ों क भििे के में चूूँदक एक ही र्तािीख क दर्दिश्चय दकया गया है इसदलए ऐसा सभी दियुक्तिय ों एक ही सोंव्यर्हाि का अोंग समझे जाएगी।"

41. The aforesaid clause clearly provides that the general principle for determination of inter-se seniority is -

(i) If officers are recruited together by promotion and direct recruitment then (क) Promoted officers would be given priority over the

direct recruits.

In the explanation, the meaning of the term - 'एक साथ ही' i.e 'together or at one time', has been explained to mean as "one transaction" which in turn refers to the decision of competent authority, in which, number of posts, out of the total to be filled, is determined to be filled up by direct recruitment. It has been further clarified that due to procedural delay, appointment may be done in phases, on different dates, still the decision for filing up the vacancies having been taken on a particular single date, all such appointment would be considered to be done in "one transaction".

42. It is not in dispute that the petitioners and the private respondents were appointed in the year 1995 as Assistant Engineers in the erstwhile State of Bihar, prior to the creation of the State of

Jharkhand. The petitioners were promotees and the private respondents were Direct Recruits.

43. During the course of argument, it is not in dispute that the foundational facts of the case has been recorded in the order dated 03.01.2008 (Annexure-7) filed by the petitioners and mentioned in clause 2(ja). The petitioners have themselves annexed the order dated 03.01.2008 (Annexure-7) (in both the cases) passed by Water Resources Department, Government of Bihar, but these foundational facts as recorded in clause 2 (ja) are neither in dispute in the pleadings before this Court nor the same has been disputed by the petitioners during the course of arguments of this case.

44. The petitioners of these writ petitions were the promotees in the reserved category.

It is not in dispute that so far as the promotees in reserved category are concerned, it has been mentioned in clause 2(ja) of the order dated 03.01.2008 (Annexure-7) that the vacancies were identified on 31.03.1993, but the promotees in reserved category had completed the qualifying period of service for promotion i.e., "Kalawadhi" only on 20.01.1995 or on subsequent dates. After completion of "Kalawadhi" and upon recommendation made by Bihar Public Service Commission (B.P.S.C.), they were recommended for promotion and were granted promotion on 24.11.1995 to 17.09.1997 by the B.P.S.C.

45. The private respondents are the direct recruits in the reserved category.

So far as the vacancy for direct recruitment in the reserved category is concerned, it has been mentioned in clause 2(ja) of the order dated 03.01.2008 (Annexure-7), that the same was for the period 01.04.1989 to 31.03.1994; the Bihar Public Service Commission completed the selection process during the period from 27.09.1994 to 01.10.1994; the list of selected candidates was provided to the then State of Bihar; vide letter dated 14.12.1994, total 88 candidates and vide letter dated 28.02.1995, total 27 reserved category candidates, were appointed on 16.05.1995 and 17.08.1995 respectively directly to the post of Assistant Engineer. The entire selection process, so far as the direct recruits are concerned, was completed on 14.12.1994 (total 88

candidates) and 28.02.1995 (total 27 reserved category candidates) and appointed on 16.05.1995 and 17.08.1995 respectively.

46. Thus, it is clear that the petitioners, who are the promotees, had acquired the requisite qualification "Kalawadhi" for promotion to the post of assistant engineer on 20.01.1995 or on subsequent date i.e., much after the initiation of the selection process of the direct recruits which was completed on 14.12.1994 (for total 88 candidates) and 28.02.1995 (for total 27 reserved category candidates). Subsequently, the promotees in reserved category, upon completion of the qualifying period of service for promotion i.e., "Kalawadhi" on 20.01.1995 or on subsequent date, and upon recommendation made by Bihar Public Service Commission (B.P.S.C.) were recommended for promotion and were granted promotion on 24.11.1995 to 17.09.1997 by the B.P.S.C.

47. Thus, the decision as well as the initiation of recruitment process for assistant engineers from direct recruitment of the private respondents was much prior in point of time and at that point of time the petitioners- i.e., the promotees had not even acquired the qualifying period of service for promotion i.e., "Kalawadhi". In such circumstances, by no stretch of imagination, it can be said that the petitioners and the private respondents were inducted through decision by way of the same transaction. Admittedly, the petitioners were appointed as assistant engineers by promotion during the period from 24.11.1995 to 17.09.1997 by the B.P.S.C. and the private respondents were directly recruited as assistant engineers on 28.02.1995 (under reserved category candidates). It is also evident that the private respondents have entered into the cadre of assistant engineers prior to the petitioners who are the promotees.

48. In view of the aforesaid admitted facts of the present case, this Court finds that -

(i) -the decision as well as the initiation of recruitment process for assistant engineers for direct recruitment of the private respondents was much prior in point of time as compared to the decision to fill up certain posts by promotion of the petitioners;

(ii) - admittedly at the relevant point of time, when the decision as well as the initiation of recruitment process for assistant engineers for direct recruitment of the private respondents was taken, the petitioners- i.e., the promotees had not even acquired the qualifying period of service for promotion i.e., "Kalawadhi"

This Court is of the considered view that by no stretch of imagination or even prima-facie, it can be said that the petitioners and the private respondents were inducted through "one transaction" in terms of the aforesaid clause of circular being No. 15784 dated 26.08.1972 (Annexure-2).

The petitioners (promotees in reserved category) have failed to satisfy this court about their claim of seniority above the private respondents (direct recruits in reserved category). Thus, the point formulated in para 37 above, is decided against the petitioners and in favour of the private respondents.

49. In view of the aforesaid findings recorded upon consideration of applicability of circular being No. 15784 dated 26.08.1972 (Annexure-2) to the facts and circumstances of this case as relied upon by both the parties to claim seniority over one another, this Court finds no reason to interfere with the seniority list where the private respondents being direct recruits on the post of Assistant engineers in the reserved category recruited in the year 1995 have been placed senior to the petitioners being promotees Assistant Engineers in the reserved category recruited in the year 1995-97.