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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7147 OF 2008

Rajni Kant Ojha ..Appellant versus

State of Bihar WITH

CIVIL APPEAL NO. 7161 OF 2008 CIVIL APPEAL NO. 7162 OF 2008

J U D G M E N T

JAGDISH SINGH KHEHAR, J.

The Bihar State Subordinate Selection Board (hereinafter referred to as the 'BSSSB') issued an advertisement on 10.09.1981 advertising  posts  of  Assistant  Probation  Officers,  Labour Inspectors, Investigators and Industrial Extension Officers, all belonging to Class-III service.  Before initiating the process of selection in furtherance of the advertisement dated 10.09.1981, the BSSSB issued another advertisement on 26.12.1981 advertising the posts of Senior Auditor, Block Statistics Supervisors, Enumerators in the Industries Department, Commercial Tax Inspectors, Welfare Inspectors and Industrial Extension Officers, all these posts were also in Class-III service.

A  combined  written  test  was  held  on  1.3.1982,  for selection to the posts advertised on 10.09.1981 and 26.12.1981.  A joint result of the aforesaid test, was published on 11.3.1983. The appellants before this Court came to be appointed as Supply

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Inspectors in the Food, Supply and Commerce Department, Bihar on 14.11.1983.  The appellants were amongst 138 appointments initially made on 14.11.1983.

The private respondents before this Court were appointed much later on 10.02.1986, as Assistant Consolidation Officers, in the Revenue and Land Reforms Department, Bihar.  At this juncture, it would be essential to notice, that the delayed appointment of the private respondents was on account of an acknowledged mistake, committed by the BSSSB.  The delayed appointment of the private respondents cannot be attributed to their lower position in the merit list.  As a matter of fact, it is not disputed, that the private respondents appointed on 10.02.1986, from out of the same process of selection, were placed at positions above the appellants in the merit list. It is in the above view of the matter, that learned counsel for the appellants very fairly states, that he has no objection to the acceptance of the proposition, that the private respondents may be deemed to have been appointed on the same date as the appellants, namely, on 14.11.1983.  In the above view of the matter,  we  shall  proceed  with  the  assumption,  that  the  private respondents, as well as the appellants, were appointed to their respective posts, in their respective departments on the same day, i.e., 14.11.1983.  After the appointments of the appellants, they continued to discharge their duties as Supply Inspectors in the Food, Supply and Commerce Department, Bihar, whereas the private respondents  continued  to  discharge  their  duties  as  Assistant Consolidation Officers in the Revenue and Land Reforms Department. Both the aforesaid posts admittedly belong to independent cadres in

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independent departments. It seems that during 1995, the State Government decided

to suspend a part of the consolidation activities in the Revenue and Land Reforms Department, as such, the private respondents would have  been  rendered  surplus  from  the  Revenue  and  Land  Reforms Department.  In  order  to  accommodate  101  surplus  Assistant Consolidation Officers of the Revenue and Land Reforms Department, a  common  order  dated  21.4.1995  was  issued.   The  text  of  the aforesaid  order  reveals,  that  the  private  respondents  “...were appointed temporarily on adjustment basis, on the posts of Supply Inspectors,  carrying  the  scale  of  Rs.1600-50-2780,  under  the Administrative Control of the Food, Supply and Commerce Department, Bihar, from the date of their joining on the posts...”.  For the present controversy, paragraph 4 of the letter of appointment dated 21.4.1995 is relevant, and is being extracted hereunder:

“4. The inter-se seniority of Supply Inspectors in the department shall be determined later.”

In  a  similar  fashion,  as  has  been  expressed  hereinabove,  on 31.12.1996, 86 Assistant Consolidation Officers who were likewise declared  surplus,  “...were  appointed  temporarily  on  adjustment basis, on the posts of Supply Inspectors, carrying the scale of Rs.1600-50-2780,  under  the  Administrative  Control  of  the  Food, Supply  and  Commerce  Department,  Bihar  from  the  date  of  their joining on the posts...”.  On this occasion, on the subject of seniority, the letter of appointment recorded as under:

“3.  In  the  department  the  seniority  will  be determined in the cadre of Supply Inspectors from the  date  of  joining  on  the  post  of  Supply Inspectors. The seniority will be determined after

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the already working Supply Inspectors on the basis of gradation list received from the Consolidation Directorate.  The date of joining on the post of Assistant  Consolidation  Officers  will  not  create claim  for  seniority  in  the  cadre  of  Supply Inspectors.”

From the letter dated 31.12.1996, it is apparent, that by the time the instant letter was issued, the State Government had taken its decision on how to fix the seniority of the Assistant Consolidation Officers  of  the  Revenue  and  Land  Reforms  Department,  Bihar,  on their transfer to the Food, Supply and Commerce Depoartment, Bihar, as Supply Inspectors.  Paragraph 4 of the letter dated 21.4.1995, for all intents and purposes, will have to be read as paragraph 3 of the letter dated 31.12.1996.  

The same process was adopted for the third time when 34 surplus declared Assistant Consolidation Officers, were similarly appointed as Supply Inspectors in the Food, Supply and Commerce Department, Bihar, through a letter dated 7.5.1999, wherein it was clearly mentioned, that they “...were appointed temporarily on the post  of  Supply  Inspectors,  with  pay  scale  of  Rs.5000-150-8000, under  the  Control  of  department  of  Food,  Supply  and  Commerce, Government of Bihar...”. At this juncture also, paragraph 3 which was similar to the one in the letter dated 7.5.1999 was made a part of  the  express  conditions,  for  the  determination  of  their seniority.

The  final  gradation  list  of  Supply  Inspectors  in  the Food, Supply and Commerce Department was published on 26.09.1995 in consonance  with  the  terms  and  conditions  of  letters  dated 21.4.1995, 31.12.1996 and 7.5.1999.  The respondents were placed at

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the  bottom  of  the  gradation  list.   The  instant  action  of  the authorities  in  placing  the  respondents  at  the  bottom  of  the gradation  list,  was  sought  to  be  assailed  by  the  private respondents  herein,  by  approaching  the  Patna  High  Court  by preferring  C.W.J.C.  No.9263  of  2002.   It  would  be  relevant  to mention, that the aforesaid writ petition was disposed of with, inter alia, the following directions:

“In the facts and circumstances of this case, this court has no option but to quash Annexure-12 and direct the respondents authorities to proceed first by  publishing  the  provisional  gradation  list  in view of the directions as made above and call for objections and after considering and disposing of the  same  publish  a  final  gradation  list  in accordance  with  law  as  laid  down  and  after following the directions of the Supreme Court and this Court.”

A perusal of the aforesaid directions reveals, that the authorities were required to follow the directions expressed by this Court.  In order to understand the tenor of the aforesaid direction, it is relevant  to  record,  that  the  Supreme  Court  had  passed  certain directions in Civil Appeal No.1606 of 1987 on 10.04.1997 (State of Bihar vs. Kaushal Kishore Singh and others).  The challenge before this Court had arisen as a consequence of decision rendered by the Patna High Court while disposing of C.W.J.C. No. 686 of 1984, vide order dated 17.02.1986.  Vide the above order, the High Court had identified the grievance of the parties before the High Court as under:

“...The  grievance  of  these  petitioners  is  that persons who had obtained less marks than them were given  supply  Department  where  they  have  been appointed as supply Inspectors.  The petitioner say that since there was no guideline nor any norms were  fixed  for  allotment  of  the  department,  the

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authorities acted arbitrarily.  It is said that the petitioners  having  obtained  higher  marks  should have been allotted the supply Department where they could be appointed as supply Inspectors...”  

And  while  addressing  the  above  grievance,  the  High  Court  had directed as under:    

“...  Having  considered  the  matter,  therefore,  I quash  all  the  recommendations  and  subsequent appointments of Supply Inspectors made after the interim order was passed on 23rd on March 1984 and also the appointments of these petitioners.  The commission will now ask for options of department from  the  petitioners  and  also  from  the  persons whose  appointments  have  been  quashed  and  will thereafter  re-allot  departments  to  the  affected person keeping in view their position in the merit list and the options claimed.”  

It is only relevant to mention, that the conclusions drawn by the High Court in C.W.J.C. No. 686 of 1984 were set aside by this Court in Civil Appeal No. 1606 of 1987.  In other words, this Court had recorded the conclusion, that neither inter se merit, nor option of the candidates concerned, was relevant for the allocation of the department, consequent upon their having been selected through a common process of selection.

It would be relevant to mention, that in order to claim seniority on the basis of the merit determined by the BSSSB, the private respondents had approached the High Court by preferring C.W.J.C. No. 9263 of 2002 (Ashok Kumar and others vs. State of Bihar and others), as has already been narrated hereinabove. The said petition was allowed, whereupon challenge to the order passed in C.W.J.C. No. 9263 of 2002 was raised by the appellants herein before a Division Bench of the High Court, by preferring Letters Patent Appeal No. 753 of 2003 (Rajni Kant Ojha vs. State of Bihar

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and others).  The aforesaid challenge having been declined, the appellants have approached this Court by preferring the instant appeals.

The question that arises for consideration before us is, whether the High Court was justified in arriving at the conclusion that the private respondents were entitled to a determination of their seniority in the Food, Supply and Commerce Department, on the basis  of  their  merit,  in  the  process  of  selection  held  in furtherance of the written test conducted on 1.3.1982?  While the contention of the learned counsel for the respondents is, that the appellants and the private respondents having been appointed on the basis of a common selection process, they were entitled to the benefit of the merit, and on account of their being placed higher in the merit list in the selection process, they were entitled to a higher position in the seniority list.  Insofar as the instant aspect of the matter is concerned, learned counsel representing the private respondents have placed reliance on the Supply Inspector Cadre Recruitment Rule, 1993 (hereinafter referred to as the '1993 Rules').  For the proposition under consideration, reliance was placed on Rule 18 of the 1993 Rules, which is being extracted hereunder:

“18. SENIORTIY: (1) Seniority of direct recruit shall be decided on the basis of the merit list by the Commission as per Sub-rule (3) of Rule (13). (2) Inter se Seniority of the persons appointed through the limited Competitive Examination shall be decided on the basis of the merit list prepared. (3) The  person  appointed  on  the  basis  of  the

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limited Competitive Examination under rule 11 shall rank  senior  to  those  of  the  persons  appointed through direct recruitment during one transaction in the calender year.”    

It  was  the  vehement  contention  of  the  learned  counsel  for  the private  respondents,  that  the  mandate  of  Rule  18  requires  the determination of inter se seniority of direct recruitments, to be determined on the basis of their merit, prepared by the BSSSB at the time of their selection.  And since, the private respondents were admittedly placed higher in the merit list, in the common selection process, they ought to be placed higher in the seniority list, in the cadre of Supply Inspectors, in the Food, Supply and Commerce Department, Bihar.

When confronted with the issue that Rule 18 of the 1993 Rules was applicable only to determine the inter se seniority of direct recruits, whereas the private respondents were not inducted into the service of the Food, Supply and Commerce Department as direct  recruits,  the  contention  of  the  learned  counsel  for  the appellants was, that Rule 21 of the 1993 Rules, would come to the aid  and  assistance  of  the  private  respondents.   Rule  21 aforementioned, is reproduced hereunder:   

“21. All other Rules, Regulations, circulars, and Orders  issued  by  the  State  Govt.  shall  apply mutatis  mutandis  for  matter  not  covered  by  this rule governing the affairs of the members of this cadre.”      

Whilst  relying  on  Rule  21,  learned  counsel  for  the  private respondents  placed  reliance  on  Government  Instructions   dated 26.8.1972, and invited this Court's attention to paragraphs 3(iii)

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thereof, which reads as under: “(iii) Where an incumbent is transferred from one service to another on his own request, services rendered by him in the previous posts shall not count  for  seniority.  But  in  case  such  transfer follows a policy decision taken by Government, his services  in  the  previous  post  shall  count  for seniority.”

The submissions advanced at the hands of the learned counsel for the private respondents is vehemently contested by the learned counsel for the appellants.  It was the submission of the learned counsel for the appellants, that the private respondents being not direct  recruits,  could  not  claim  the  determination  of  their seniority under the 1993 Rules. It is also the vehement contention of the learned counsel for the appellants, that the seniority of the private respondents was liable to be determined in terms of the orders dated 21.4.1995, 31.12.1996 and 7.5.1999.  It was asserted, that all the private respondents were substantively appointed as Assistant Consolidation Officers in the Revenue, and Land Reforms Department,  Bihar.   Having  been  declared  surplus  in  the  said department, they were inducted into the Food, Supply and Commerce Department,  Bihar  on  temporary  basis.   Their  appointment  could therefore  not  be  described  as  direct  recruitment  in  the  Food, Supply  and  Commerce  Department,  and  their  appointment  was  only based  on  a  policy  decision  taken  by  the  State  Government  to accommodate   them  in  the  Food,  Supply  and  Commerce  Department, rather  than  to  render  them  surplus,  and  therefore  remaining unemployed.  More particularly, reliance was placed by the learned counsel  for  the  appellants  on  paragraph  4  of  the  letter  dated

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21.4.1995, and paragraphs 3 of the letters dated 31.12.1996 and 7.5.1999,  wherein  the  surplus  employees  holding  the  posts  of Assistant Consolidation Officers, who were temporarily adjusted as Supply Inspectors in the Food, Supply and Commerce Department were expressly informed, that they would not be entitled to any benefit of their past service in the Revenue and Land Reforms Department. In fact, the letters of their appointment in the Food, Supply and Commerce Department were express and categoric, to the effect that their date of joining as Supply Inspectors in the Food, Supply and Commerce  Department,  would  be  taken  into  consideration  for assigning  them  seniority  in  the  Food,  Supply  and  Commerce Department.  

Having given our thoughtful consideration to the rival submissions advanced at the hands of the learned counsel, we are satisfied, that the private respondents cannot claim any benefit for determination of their seniority under the 1993 rules.  Rule 18 of the 1993 Rules, relied upon, could have been invoked if the rival parties were direct recruits to the same cadre in the same department.  Even though, originally the appellants and the private respondents  were  direct  recruits  from  a  common  process  of selection, but they were engaged in different cadres of different departments. After the appointment of the private respondents as Assistant Consolidation Officers, in the Revenue and Land Reforms Department,  they  ceased  to  have  any  nexus  with  the  Supply Inspectors appointed to the Food Supply and Commerce Department. Having been so appointed, there remained no connectivity between the two, insofar as the issue of seniority is concerned.  

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The  issue  of  seniority  only  emerged  when  the  private respondents  were  declared  surplus  from  the  post  of  Assistant Consolidation Officers in the Revenue and Land Reforms Department. At  that  juncture,  they  were  temporarily  accommodated  as  Supply Inspectors in the Food, Civil and Commerce Department, with the express condition that their seniority would be determined from the date of their joining the posts of Supply Inspectors. The aforesaid condition  expressed  in  the  letters  of  their  appointment  in  the Food,  Supply  and  Commerce  Department  was  never  assailed  by  the private respondents and therefore has to be considered as binding on them.  We are satisfied, that their inter se seniority in the Food, Supply and Commerce Department was bound to be based on the condition expressed in paragraph 4 of the letter dated 21.4.1995, and  paragraphs  3  of  the  letters  dated  31.12.1996  and  7.5.1999. Thus viewed, we have no doubt in our mind, that the seniority of the private respondents in the Food, Supply and Commerce Department would be regulated on the basis of their appointment in the said department, and not on the basis of their merit, determined by the BSSSB, at the time of their selection.  We are also satisfied, that the instructions dated 26.8.1972 relied upon by the learned counsel for the private respondents in conjunction with Rule 21 of the 1993 Rules, is not applicable to the facts and circumstances of the case.   Normally,  the  above  instructions  will  apply  to  persons transferred  from  one  cadre  to  another,  in  the  same  department, while holding the same post.  Herein, not only were the posts held by the private respondents different from the posts to which they were appointed, their transfer also envisaged their movement from

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one department of the Government, to another. For the reasons recorded hereinabove, the instant appeals

are allowed.  The impugned orders of the High Court are set aside. The State Government is directed to re-determine the seniority of the appellants and the private respondents based on “... the date of  joining  on  the  post  of  Supply  Inspectors...”.   The  private respondents will not be entitled to seniority from “The date of joining on the post of Assistant Consolidation Officers will not create claim for seniority in the cadre of Supply Inspectors”.  The private respondents would therefore, not be entitled to the benefit of their position in the merit list, prepared by the BSSSB, based on which they were appointed as Assistant Consolidation Officers.

…....................J. [JAGDISH SINGH KHEHAR]

NEW DELHI; …....................J. OCTOBER 07, 2015. [R. BANUMATHI]

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ITEM NO.107               COURT NO.4               SECTION XVI                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Civil Appeal  No(s).  7147/2008 RAJNIKANT OJHA                                     Appellant(s)                                 VERSUS STATE OF BIHAR & ORS.                              Respondent(s) (with appln. (s) for directions and exemption from filing O.T. and permission to file additional documents and exemption from filing O.T. and interim relief and office report) WITH C.A. No. 7161/2008  C.A. No. 7162/2008 (With Interim Relief and Office Report) Date : 07/10/2015 These appeals were called on for hearing today. CORAM :           HON'BLE MR. JUSTICE JAGDISH SINGH KHEHAR          HON'BLE MRS. JUSTICE R. BANUMATHI For Appellant(s) Mr. R.P. Bhatt, Sr. Adv. In CA 7147/2008     Mr. Mohit Kumar Shah,Adv. In other appeals Mr. R.P. Bhatt, Sr. Adv.

    Mr. Mohit Kumar Shah,Adv.                     for Mr. E. C. Vidya Sagar,AOR(Not present) For Respondent(s) Mr. Amit Pawan,Adv.

Mr. Suryodaya Prakash Tiwari, Adv. Mr. Abhishek Amritanshu, Adv.                   

 Mr. Chandan Kumar, Adv. for  Mr. Gopal Singh,AOR(Not present)

                  Ms. Meetu Singh, Adv. for Mr. Navin Prakash,AOR(Not present)

                               UPON hearing the counsel the Court made the following                              O R D E R

The appeals are allowed in terms of the signed judgment,  which is placed on the file.

As a sequel to the above, pending applications, if any,  are also disposed of. (Renuka Sadana) (Parveen Kr. Chawla)  Court Master      AR-cum-PS