RAJNIKANT OJHA Vs. STATE OF BIHAR & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 7147 of 2008, Judgment Date: Oct 07, 2015
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7147 OF 2008
Rajni Kant Ojha ..Appellant
versus
State of Bihar ...Respondent
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 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 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 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 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
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 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 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) 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 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.
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 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]
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
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