Patna High Court
Digambar Thakur vs The State Of Bihar & Ors on 10 November, 2014
Author: R.M. Doshit
Bench: Chief Justice, Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.168 of 2013
IN
Civil Writ Jurisdiction Case No. 4855 of 2008
===========================================================
Digambar Thakur, son of Late Pramod Thakur, Permanent resident of Village-
Bharako, Police Station- Amarpur, District- Banka (Bihar), at present posted as
Assistant Conservator Of Forests, in the office of Regional Chief Conservator of
Forests, Patna, Bihar.
.... .... Petitioner-Appellant
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar.
2. Principal Secretary, Department of Forest and Environment, Government of
Bihar, Patna.
3. Principal Secretary, Department of Finance, Government of Bihar, Patna.
4. Principal Secretary, Department of Personnel & Administrative Reforms,
Government of Bihar, Patna.
5. The State of Jharkhand through the Principal Secretary, Forest & Environment,
Government of Jharkhand, Ranchi.
6. Shri Mihir Kumar Jha, Assistant Conservator of Forests, at present posted as
Assistant Conservator of Forests in the Office of Principal Chief Conservator of
Forests, Bihar, Patna.
7. Shri Dinesh Kumar Das, Assistant Conservator of Forests, at present posted as
Assistant Conservator of Forests in the Office of Chief Conservator of Forests,
Human Resources, Bihar, Patna.
8. Shri Sunil Kumar Sinha, Assistant Conservator of Forests, at present posted as
Assistant Conservator of Forests in the Office of Conservator of Forests, Wild Life
Circle, Patna.
9. Shri Patanjali Chaudhary, Assistant Conservator of Forests, at present posted as
Assistant Conservator of Forests in the Office of Principal Chief Conservator of
Forests, Bihar, Patna.
10. Shri Nand Kumar Manjhi, Assistant Conservator of Forests, at present posted as
Assistant Conservator of Forest in the Office of Regional Chief Conservator of
Forests, Bhagalpur.
11. Shri Sanjay Kumar, Assistant Conservator of Forests, at present posted as
Patna High Court LPA No.168 of 2013 dt. 10-11-2014
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Assistant Conservator of Forests, in the Office of Regional Chief Conservator of
Forests, Patna.
12. Shri Naresh Prasad, Assistant Conservator of Forests at present posted as
Assistant Conservator of Forests, in the Office of Director, Ecology &
Environment, Bihar, Patna.
13. Shri Prabhakar Jha, Assistant Conservator of Forests, at present posted as
Assistant Conservator of Forests in the Office of Division Forest Officer, Banka.
14. Shri Ravindra Nath Mishra, Assistant Conservator of Forests, posted under the
Control of Jharkhand Government, Ranchi. (deleted vide order dated 02.07.2013).
15. Shri Ajay Kumar Melhotra, Assistant Conservator of Forests, posted under the
Control of Jharkhand Government, Ranchi. (deleted vide order dated 02.07.2013).
16. Shri Arun Kumar Singh, Assistant Conservator of Forests, posted under the
Control of Jharkhand Government, Ranchi. (deleted vide order dated 02.07.2013).
17. Shri Premjit Anand, Assistant Conservator of Forests, posted under the Control
of Jharkhand Government, Ranchi. (deleted vide order dated 02.07.2013).
18. Shri Karuna Nidhan Prasad, Assistant Conservator of Forests, posted under the
Control of Jharkhand Government, Ranchi. (deleted vide order dated 02.07.2013).
19. Shri Kali Kinkar, Assistant Conservator of Forests, posted under the control of
Jharkhand Government, Ranchi. (deleted vide order dated 02.07.2013).
20. Shri Ashok Kumar Dube, Assistant Conservator of Forests posted under the
Control of Jharkhand Government, Ranchi. (deleted vide order dated 02.07.2013).
21. Alexius Ekka, Assistant Conservator of Forests, posted under the control of
Jharkhand Government, Ranchi. (deleted vide order dated 02.07.2013).
22. Shri Ramesh Prasad Kamal, Assistant Conservator of Forests, posted under the
control of Jharkhand Government, Ranchi. (deleted vide order dated 02.07.2013).
23. Shri Anil Kumar Mishra, Assistant Conservator of Forests, posted under the
control of Jharkhand Government, Ranchi. (deleted vide order dated 02.07.2013).
24. Awadhesh Kumar Ojha, Assistant Conservator of Forests, at present posted as
Divisional Forest Officer, Begusarai Forest Division, Begusarai.
25. Ranveer Singh, Assistant Conservator of Forests, at present posted as Divisional
Forest Officer, Araria Forest Division, Araria, Bihar.
26. Sanjay Kumar Sinha-3, Assistant Conservator of Forests, at present posted in
the Office of Divisional Forest Officer, Nehrunagar, Patna.
27. Shashi Shekhar, Assistant Conservator Of Forests, at present in the office of
Managing Director, Forest Development Corporation, Bihar, Patna, Purnea.
Patna High Court LPA No.168 of 2013 dt. 10-11-2014
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28. Sudhir Kumar, Assistant Conservator of Forests, at present posted as Divisional
Forests Officer, Saharsa Forest Division, Saharsa.
29. Sunil Kumar-1, Assistant Conservator of Forests, at present posted as
Divisional Forests Officer, Bhojpur Forest Division, Ara.
30. Sudhir Kumar Karn, Assistant Conservator of Forests, at present posted as
Paramarshi Paryavaran, Bihar, Patna.
31. Mokhtarul Haque, Assistant Conservator of Forests, at present posted in the
Office of Nalanda Forest Division, Bihar Sharif.
32. Dipak Sinha, Assistant Conservator of Forests, at present posted as Assistant
Conservator of Forests, Bettiah Forest Division-1, Bettiah (West Champaran).
33. Sanjay Prakash, Assistant Conservator of Forests, at present posted in the office
of Divisional Forest Officer, Kaimur Forest Division, Bhabhua.
34. Hemkant Roy, Assistant Conservator of Forests, at present posted as Divisional
Forest Officer, Working Plan Division, Patna.
35. Nagendra Chaudhary, Assistant Conservator of Forests, at present posted in the
Office of Divisional Forest Officer, Division Chapra.
.... .... Respondents-Respondents
With
===========================================================
Letters Patent Appeal No. 257 of 2013
IN
Civil Writ Jurisdiction Case No. 10925 of 2010
With
Interlocutory Application No. 1527 of 2013
In
Letters Patent Appeal No.257 of 2013
===========================================================
1. Mihir Kumar Jha, son of Shri Bhawanand Jha, Resident of Village- Belahi, P.S.
Pandaul, District Madhubani, posted as Divisional Forest Officer Aurangabad,
District Aurangabad, at present posted as Assistant Conservator of Forest in the
Office of Additional Principal Chief Conservator of Forest (Development), Bihar,
Patna.
2. Sunil Kumar Sinha, son of Late Yadunandan Prasad Sinha, Resident of Village
Nandan Bigha, P.S. Islampur, District Nalanda posted as Divisional Forest Officer,
Gaya in the district of Gaya, at present posted as Assistant Conservator of Forest in
Patna High Court LPA No.168 of 2013 dt. 10-11-2014
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the office of Conservator of Forest, Wild Life Circle, Patna.
.... .... Petitioners-Appellants
Versus
1. The State of Bihar through Chief Secretary, Government of Bihar, Old
Secretariat, Patna.
2. Principal Secretary, Department of Environment and Forest, Government of
Bihar, Sinchai Bhawan, Patna.
3. Principal Secretary, Personnel and Administrative Reforms Department (now
known as General Administrative Reforms Department), Government of Bihar, Old
Secretariat, Patna.
4. Sh. Washir Ahmad Khan, Principal Chief Conservator of Forest- cum- Chairman,
Screening Committee (Gradation List), 4th Floor, Technology Bhawan, Bihar,
Patna.
5. Sh. Akhtar Imam, Joint Secretary- cum- Member, Screening Committee
(Gradation List), Department Of Environment and Forest, Sichai Bhawan, Bihar.
6. Sh. Nagendra Pathak, Deputy Secretary- cum- Member, Screening Committee
(Gradation List), Department Of Environment and Forest, Bihar, Patna.
7. Deputy Secretay-3, Department of Environment and Forest, Bihar, Patna.
8. Sh. Lal Babu Manjhi, presently posted as Divisional Forest Officer, Motihari
Forest Division, Motihari.
9. Sh. Anil Kumar Singh, posted as Divisional Forest Officer, Gopalganj Forest
Division, Gopalganj. (deleted vide order dated 06.08.2013).
10. Sh. Taranand Jha, posted as Assistant Conservator of Forest, Patna Circle, Patna
at Present Divisional Forest Officer, Gopalganj.
11. Sh. Hemkant Rai, posted as Assistant Conservator of Forest in the Office of
Director, Ecology and Environment, Bihar, Patna at present Divisional Forest
Officer, Working Plans Division, Patna.
12. Sh. Shashi Shekhar, posted as Assistant Conservator of Forest in the office of
Conservator of Forest, Purnea Circle, Purnea, at present Divisional Manager, Forest
Development Corporation, Patna.
13. Sh. Shudhir Kumar, posted as Assistant Conservator of Forest, Patna Forest
Division, Patna, at present Divisional Forest Officer, Saharsa Forest Division.
14. Sh. Sudhir Kumar Karn, posted as Assistant Conservator of Forest in the Office
of Principal Chief Conservator of Forest, Bihar, Patna at Present Advisor,
Environment and Forest, Government of Bihar, Sinchai Bhawan, Patna.
Patna High Court LPA No.168 of 2013 dt. 10-11-2014
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15. Sh. Awadhesh Kumar Ojha, posted as Assistant Conservator of Forest, Tirhut
Forest Division, Muzaffarpur, at present Divisional Forest Officer, Begusarai Forest
Division.
16. Sh. Ranvir Singh, present as Assistant Conservator of Forest in the Office of
Regional Chief Conservator of Forest, Patna, at present Divisional Forest Officer,
Araria Forest Division.
17. Sh. Mokhtarul Haque, posted as Assistant Conservator of Forest in the office of
Principal Chief Conservator of Forest, Patna at present Assistant Conservator Of
Forest, Nalanda Forest Division, Biharsharif.
18. Sh. Sanjay Kumar Sinha-III, posted as Assistant Conservator of Forest, Gaya
Forest Division, Gaya at present Assistant Conservator of Forest, Patna Forest
Division, Patna.
19. Sh. Deepak Sinha, presently posted as Assistant Conservator of Forest in the
office of Principal Chief Conservator of Forest, Patna.
20. Sh. Sanjay Prakash, Posted As Assistant Conservator Of Forest, Tirhut Forest
Division, Muzaffarpur, At Present Assistant Conservator Of Forest, Kaimur Forest
Division, Bhabhua.
21. Sh. Ashwani Kumar, presently posted as Assistant Conservator of Forest in the
office of Principal Chief Conservator Of Forest, Patna.
22. Sh. Subhash Chandra Verma, posted as Assistant Conservator of Forest, Saran
Forest Division, Chapra at Present Assistant Conservator of Forest in the Office of
Additional Principal Chief Conservator of Forest cum Chief Wildlife Warden,
Patna.
23. Vijendra Dutt Mishra, posted as Assistant Conservator of Forest, Forest
Division, Munger, Munger.
24. Sh. Nagendra Chaudhary, posted as Assistant Conservator of Forest in the
Office of Conservator of Forest, Bhagalpur Circle, Bhagalpur, at present Assistant
Conservator of Forest, Saran Forest Division, Chapra.
25. Sh. Ram Chandra Pandey, posted as Assistant Conservator of Forest in the
office of Additional Principal Chief Conservator of Forest cum Chief Wild Life
Warden, Bihar, Patna, at Present Assistant Conservator of Forest at the Office of
Director, Valmiki Tiger Project, Bettiah.
26. Sh. Divakar Prasad, posted as Assistant Conservator of Forest, Nalanda Forest
Division, Biharsharif, at Present Assistant Conservator of Forest in the Office of
Chief Conservator of Forest, Working Plan, Research & Training, Patna.
Patna High Court LPA No.168 of 2013 dt. 10-11-2014
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27. Sh. Digambar Thakur, posted as Assistant Conservator of Forest in the Office of
Regional Principal Chief Conservator of Forest, Patna Region, Patna.
28. Sh. Baidyanath Prasad Gupta, posted as Assistant Conservator of Forest in the
office of Training Research and Evolution Division, Patna, at present Assistant
Conservator of Forest in the Office of Additional Principal Chief Conservator of
Forest Cum Chief Wildlife Warden, Patna.
29. Sh. Bir Bahadur Singh, posted as Assistant Conservator of Forest in the Office
of Regional Principal Chief Conservator of Forest, Patna Region, Patna, at Present
Assistant Conservator of Forest in the Office of Additional Principal Chief
Conservator of Forests (Development), Bihar, Patna.
30. Sh. Lalan Jha, posted as Assistant Conservator of Forest in the office of
Principal Chief Conservator of Forest, Patna, at Present Assistant Conservator of
Forest in the Office of Divisional Forest Officer, Valmiki Tiger Project Division-2,
Bettiah.
31. Sh. Mithilesh Kumar Chaudhary, posted as Assistant Conservator of Forest in
the Office of Additional Principal Chief Conservator of Forest (Development),
Patna, at Present Assistant Conservator of Forest in the Office of Divisional Forest
Officer, Rohtas Forest Division, Sasaram.
32. Sh. Jitendra Kumar Singh, posted as Assistant Conservator of Forest, Jamui
Forest Division, Jamui, at Present Assistant Conservator of Forest in the Office of
Principal Chief Conservator of Forest, Bihar, Patna.
.... .... Respondents-Respondents
With
===========================================================
Letters Patent Appeal No. 491 of 2013
In
Civil Writ Jurisdiction Case No.11337 of 2010
===========================================================
1. Nand Kumar Manjhi, son of late Sh. Ram Singhasan Manjhi, resident of
Mohalla Nand Lal Tola, P.S. Chapra (T), District- Saran at Chapra, presently
posted as Assistant Conservator of Forest, O/O Regional Chief Conservator of
Forest, Bhagalpur.
2. Naresh Prasad, son of late Baldeo Prasad, resident of Mithapur, B Area, P.S.
Jakkanpur, District-Patna, presently posted as Assistant Conservator of Forest,
O/O Director, Ecology and Environment, Patna.
Patna High Court LPA No.168 of 2013 dt. 10-11-2014
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.... .... Writ Petitioners-Appellants
Versus
1. The State of Bihar through Chief Secretary, Government of Bihar, Old
Secretariat, Patna.
2. Principal Secretary, Department of Environment and Forest, Government of
Bihar, Sinchai Bhawan, Patna.
3. Principal Secretary, Personnel and Administrative Reforms Department (now
known as General Administrative Reforms Department), Government of Bihar, Old
Secretariat, Patna.
4. Sh. Washir Ahmad Khan, Principal Chief Conservator of Forest cum Chairman,
Screening Committee (Gradation List), 4th Floor, Technology Bhawan, Bihar,
Patna.
5. Sh. Akhtar Imam, the then Joint Secretary cum Members, Screening Committee
(Gradation List), Department Of Environment and Forest, Sichai Bhawan, Bihar.
6. Sh. Nagendra Pathak, ( now superannuated), the then Deputy Secretary cum
Member, Screening Committee (Gradation List), Department Of Environment and
Forest, Bihar, Patna.
7. Deputy Secretay-3, Department of Environment and Forest, Bihar, Patna.
8. Sh. Lal Babu Manjhi, father‟s name not known to the petitioners, presently
posted as Divisional Forest Officer, Motihari Forest Division, Motihari.
9. Sh. Anil Kumar Singh, (now superannuated), father‟s name not known to the
petitioners, the then as Divisional Forest Officer, Gopalganj Forest Division,
Gopalganj. (deleted vide order dated 06.08.2013).
10. Sh. Taranand Jha, father‟s name not known to the petitioners, presently posted
as Divisional Forest Officer, Gopalganj, Forest Division, Gopalganj.
11. Sh. Hemkant Rai, father‟s name not known to the petitioners, presently posted
as Working Plan Officer, Patna.
12. Sh. Shashi Shekhar, father‟s name not known to the petitioners, presently
posted as Assistant Conservator of Forest in the office of Principal Chief
Conservator of Forest, Bihar, Patna.
13. Sh. Shudhir Kumar, father‟s name not known to the petitioners, presently
posted as Divisional Forest Officer, Saharsa.
14. Sh. Sudhir Kumar Karna, father‟s name not known to the petitioners, presently
posted as Advisor, Environment, Department of Environment and Forest, Bihar,
Patna.
Patna High Court LPA No.168 of 2013 dt. 10-11-2014
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15. Sh. Awadhesh Kumar Ojha, father‟s name not known to the petitioners,
presently posted as Divisional Forest Officer, Begusarai.
16. Sh. Ranvir Singh, father‟s name not known to the petitioners, presently posted
as Divisional Forest Officer, Araria.
17. Sh. Mokhtarul Haque, father‟s name not known to the petitioners, presently
posted as Assistant Conservator of Forest, Nalanda Forest Division, Biharsharif.
18. Sh. Sanjay Kumar Sinha-III, father‟s name not known to the petitioners,
presently posted as Assistant Conservator of Forest, Patna Forest Division, Patna.
19. Sh. Deepak Sinha, father‟s name not known to the petitioners, presently posted
as Assistant Conservator of Forest in the office of Principal Chief Conservator of
Forest, Patna.
20. Sh. Sanjay Prakash, father‟s name not known to the petitioners, presently posted
as Assistant Conservator Of Forest, Kaimur Forest Division, Bhabhua.
21. Sh. Ashwani Kumar, father‟s name not known to the petitioners, presently
posted as Assistant Conservator of Forest in the office of Principal Chief
Conservator of Forest, Patna.
22. Sh. Subhash Chandra Verma, father‟s name not known to the petitioners,
presently posted as Assistant Conservator of Forest, in the Office of Additional
Principal Chief Conservator of Forest cum Chief Wildlife Warden, Bihar, Patna.
23. Vijendra Dutt Mishra, father‟s name not known to the petitioners, presently
posted as Assistant Conservator of Forest, Munger Forest Division, Munger.
24. Sh. Nagendra Chaudhary, father‟s name not known to the petitioners, presently
posted as Assistant Conservator of Forest, Saran Forest Division, Chapra.
25. Sh. Ram Chandra Pandey, father‟s name not known to the petitioners, presently
posted as Assistant Conservator in the office of Project Director, Valmiki Tiger
Project, Bettiah.
26. Sh. Divakar Prasad, father‟s name not known to the petitioners, presently posted
as Assistant Conservator of Forest, in the Office of Chief Conservator of Forest,
Working Plan, Research and Training, Bihar, Patna.
27. Sh. Digambar Thakur, father‟s name not known to the petitioners, posted as
Assistant Conservator of Forest in the Office of Regional Chief Conservator of
Forest, Patna Region, Patna.
28. Sh. Baidyanath Prasad Gupta, father‟s name not known to the petitioners,
presently posted as Assistant Conservator of Forest in the Office of Additional
Principal Chief Conservator of Forest Cum Chief Wildlife Warden, Bihar, Patna.
Patna High Court LPA No.168 of 2013 dt. 10-11-2014
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29. Sh. Bir Bahadur Singh, father‟s name not known to the petitioners, presently
posted as Assistant Conservator of Forest in the Office of Principal Chief
Conservator of Forest, Patna Region, Bihar Patna.
30. Sh. Lalan Jha, father‟s name not known to the petitioners, presently posted as
Assistant Conservator of Forest, Valmiki Tiger Project Division-1, Bettiah.
31. Sh. Mithilesh Kumar Chaudhary, father‟s name not known to the petitioners,
presently posted as Assistant Conservator, Rohtas Forest Division, Sasaram.
32. Sh. Jitendra Kumar Singh, father‟s name not known to the petitioners, presently
posted as Assistant Conservator of Forest, in the Office of Principal Chief
Conservator of Forest, Bihar, Patna.
.... .... Respondents-Respondents
With
===========================================================
Letters Patent Appeal No. 509 of 2013
In
Civil Writ Jurisdiction Case No.11160 of 2010
With
Interlocutory Application No.2893 of 2013
In
Letters Patent Appeal No.509 of 2013
===========================================================
1. Patanjali Kumar Chaudhary, S/O Late Ravindra Chaudhary, resident of Village
and P.O. Shaibani, P.S. Bakhtiarpur, District - Patna, presently posted as Assistant
Conservator of Forest in the office of the Additional Principal Chief Conservator of
Forest ( Development ), Bihar, Patna.
2. Dinesh Kumar Das, S/O Sri Chandra Kant Lal Das, resident of Qr. No. 9,
Professor's Colony, Munnachak, Kankarbagh, Patna - 20, presently posted as
Assistant Conservator of Forest in the office of Chief Conservator of Forest,
Administration and Human Resource Development, Bihar, Patna.
.... .... Writ petitioners-Appellants
Versus
1. The State of Bihar, through the Chief Secretary, Government of Bihar, Old
Secretariat, Patna.
2. The Principal Secretary, Department of Environment and Forest, Government of
Bihar, Sichai Bhawan, Patna.
Patna High Court LPA No.168 of 2013 dt. 10-11-2014
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3. The Principal Secretary, Personnel and Administrative Reforms Department,
(Now Known as General Administrative Reforms Department), Government of
Bihar, Old Secretariat, Patna.
4. Washir Ahmad Khan, Principal Chief Conservator Of Forest -cum - Chairman,
Screening Committee ( Gradation List ), 4th Floor, Technology Bhawan, Bihar,
Patna.
5. Akhtar Imam, Joint Secretary - cum - Member, Screening Committee (Gradation
List), Department Of Environment and Forest, Sichai Bhawan, Bihar, Patna.
6. Nagendra Pathak, Deputy Secretary - cum - Member, Screening Committee
(Gradation List), Department Of Environment and Forest, Sichai Bhawan, Bihar,
Patna.
7. The Deputy Secretary - 3, Department of Environment and Forest, Bihar, Patna
8. Lal Babu Manjhi, presently posted as Divisional Forest Officer, Motihari, Forest
Division, Motihari.
9. Anil Kumar Singh, Ex- Divisional Forest Officer, Gopalganj, Forest Division
Gopalganj (Now Superannuated). (deleted vide order dated 06.08.2013).
10. Taranand Jha, Ex- Assistant Conservator of Forest, Patna Circle, Patna,
presently posted as Divisional Forest Officer, Gopalganj Forest Division,
Gopalganj.
11. Sh. Hemkant Rai, Ex- Assistant Conservator Of Forest, Posted In The Office
Of Director, Ecology & Environment, Bihar, Patna; presently posted as Divisional
Forest Officer, Working Plan division, Patna .
12. Shashi Shekhar, Ex- Assistant Conservator of Forest, posted in the office of
Conservator of Forest, Purnea Circle, Purnea; at present posted As Assistant
Conservator of Forests in the office of Principal Chief Conservator of Forest, Bihar,
Patna.
13. Sudhir Kumar, Ex- Assistant Conservator of Forest, Patna Forest Division,
Patna, Presently Posted As Divisional Forest Officer, Saharsa Division, Saharsa.
14. Sudhir Kumar Karna, Ex- Assistant Conservator of Forest, Posted in the office
of the Principal Chief Conservator of Forest, Bihar, Patna presently posted as
Advisor Environment and Forest Department, Government of Bihar, Patna.
15. Awadhesh Kumar Ojha, Ex- Assistant Conservator of Forest, Tirhut Forest
Division, Muzaffarpur presently posted as Divisional Forest Officer, Begusarai
Forest Division, Begusarai.
16. Ranvir Singh, Ex- Assistant Conservator of Forest, posted in the Office of
Patna High Court LPA No.168 of 2013 dt. 10-11-2014
11/27
Regional Chief Conservator of Forest, Patna presently posted as Divisional Forest
Officer, Araria Forest Division, Araria.
17. Mokhtarul Haque, Ex- Assistant Conservator of Forest, posted in the Office of
Principal Chief Conservator of Forest, Patna Presently Posted as Assistant
Conservator of Forest, Nalanda Forest Division, Bihar-Sharif.
18. Sanjay Kumar Sinha - III, Ex - Assistant Conservator of Forest, Gaya Forest
Division, Gaya, presently posted as Assistant Conservator of Forest, Patna Forest
Division, Patna.
19. Deepak Sinha, presently posted as Assistant Conservator of Forest in the office
of the Principal Chief Conservator of Forest, Bihar, Patna
20. Sanjay Prakash, Ex - Assistant Conservator of Forest, Tirhut Forest Division,
Muzaffarpur, presently posted as Assistant Conservator of Forests, Kaimur Forest
Division, Bhabhua.
21. Ashwani Kumar, presently posted as Assistant Conservator of Forest in the
Office of Principal Chief Conservator of Forest, Patna.
22. Subhash Chandra Verma, Ex - Assistant Conservator Of Forest, Saran Forest
Division, Chapra, presently posted as Assistant Conservator of Forests in the
office of the Additional Principal Chief Conservator of Forest - cum - Chief Wild
Life Warden, Bihar, Patna.
23. Vijendra Dutt Mishra, presently posted as Assistant Conservator of Forest,
Unger Forest Division, Munger.
24. Nagendra Chaudhary, Ex - Assistant Conservator of Forest, posted in the office
of Conservator of Forest, Bhagalpur Circle, Bhagalpur, presently posted as
Assistant Conservator of Forests, Saran Division, Chapra.
25. Ramchandra Pandey, Ex - Assistant Conservator Of Forests, posted in the office
of the Additional Principal Chief Conservator of Forest - cum - Chief Wild Life
Warden, Bihar, Patna, presently posted as Assistant Conservator of Forests in the
office of the Conservator of Forest - cum - Project Director, Valmiki Tiger Project,
Bettiah.
26. Divakar Prasad, Ex - Assistant Conservator of Forests, Nalanda Forest Division,
Bihar Sharif, presently posted as Assistant Conservator of Forests, in the office of
Chief Conservator Of Forest, Working Plan, Research And Training, Bihar, Patna.
27. Digambar Thakur, presently posted as Assistant Conservator of Forest in the
Office of Regional Chief Conservator of Forest, Patna Region, Patna.
28. Baidyanath Prasad Gupta, Ex - Assistant Conservator of Forests, posted in the
Patna High Court LPA No.168 of 2013 dt. 10-11-2014
12/27
office of Chief Conservator of Forests, Training Research and Evolution Division,
Patna, presently posted as Assistant Conservator of Forest in the office of
Additional Principal Chief Conservator of Forest - cum - Chief Wild Life Warden,
Bihar, Patna.
29. Bir Bahadur Singh, Ex - Assistant Conservator of Forests, posted in the office
of Regional Chief Conservator of Forests, Patna Region, Patna presently posted as
Assistant Conservator of Forest in the office of Additional Principal Chief
Conservator of Forests (Development), Bihar, Patna.
30. Lalan Jha, Ex - Assistant Conservator of Forests, posted in the office of the
Principal Chief Conservator of Forests, Bihar, Patna presently posted as Assistant
Conservator of Forests, Valmiki Tiger Project Division - II, Bettiah.
31. Mithilesh Kumar Chaudhary, Ex - Assistant Conservator of Forests, posted in
the office of the Additional Principal Chief Conservator of Forests (Development),
Bihar, Patna, presently posted as Assistant Conservator Of Forests, Rohtas Forest
Division, Sasaram.
32. Jitendra Kumar Singh, Ex - Assistant Conservator of Forests, posted in Jamui
Forest Division, Jamui presently posted as Assistant Conservator of Forests in the
office of the Principal Chief Conservator of Forests, Bihar, Patna.
.... .... Respondents- Respondents
===========================================================
Appearance :
(In LPA No. 168 of 2013)
For the Appellant : Mr. Rajendra Narain, Senior advocate
Mrs. Anju Narain, Advocate
Mr. Kamal Kishore Jha, Advocate
Mr. Subodh Jha, Advocate
For the Respondent-State : Mr. Satish Narain Singh, A.C. to G.A.-2
For the Respondent-State of Jharkhand: Mr. Nishi Nath Ojha, Advocate
For the Respondent No.13 : Mr. Sarvesh Kumar Singh, Advocate
For the Respondent No.24 : Mr. Siddhartha Prasad, Advocate
For the Respondent Nos.26, 28-31 : Mr. Vinod Kumar Kanth, Senior Advocate
Mr. Abhinav Shrivastava, Advocate
For the Respondent No. 34 : Mr. Gopal Prasad Roy, Advocate
(In LPA No. 257 of 2013)
For the Appellants : Mr. Y. V. Giri, Senior Advocate
Patna High Court LPA No.168 of 2013 dt. 10-11-2014
13/27
Mr. Raju Giri, Advocate
For the Respondent-State : Mr. Subhash Pd. Singh, G.A. -2
Mr. Bajrangi Lall, A.C. to G.A.-2
For the Respondent No.11 : Mr. Gopal Prasad Roy, Advocate
For the Respondent Nos.13, : Mr. Vinod Kumar Kanth, Senior Advocate
14, 15, 17 & 18 Mr. Abhinav Shrivastava, Advocate
For the Respondent No.16 : Mr. Siddhartha Prasad, Advocate
(In LPA No. 491 of 2013)
For the Appellants : Mr. Jitendra Singh, Senior Advocate
Mr. Sarvesh Kumar Singh, Advocate
For the Respondent-State : Mr. Subhash Pd. Singh, G.A. -2
Mr. Bajrangi Lall, A.C. to G.A.-2
For the Respondent No.11 : Mr. Gopal Prasad Roy, Advocate
For the Respondent Nos.13,: Mr. Vinod Kumar Kanth, Senior Advocate
14, 15, 17 & 18 Mr. Abhinav Shrivastava, Advocate
(In LPA No. 509 of 2013)
For the Appellants : Mr. Dhirendra Kumar Jha-II, Advocate
Mr. Krishna Chandra Jha, Advocate
For the Respondent-State : Mr. Subhash Pd. Singh, G.A. -2
Mr. Bajrangi Lall, A.C. to G.A.-2
For the Respondent No.11 : Mr. Gopal Prasad Roy, Advocate
For the Respondent Nos.13,: Mr. Vinod Kumar Kanth, Senior Advocate
14, 15, 17 & 18 Mr. Abhinav Shrivastava, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
And
HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
CAV JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE) Date: 10th November 2014 These four Appeals preferred under Clause 10 of the Letters Patent arise from the common judgment and order dated 6th November 2012 passed by the learned single Judge insofar as CWJC Patna High Court LPA No.168 of 2013 dt. 10-11-2014 14/27 Nos. 4855 of 2008, 10925 of 2010, 11337 of 2010 and 11160 of 2010 are concerned.
The matter at dispute is the inter-se seniority amongst the Assistant Conservators of Forest in Bihar Forest Service appointed by direct recruitment and by promotion, an age old never ending dispute.
The appointment to the Bihar Forest Service is governed by the Bihar Forest Service Rules, 1953 (hereinafter referred to as „the 1953 Rules‟) framed by the Government of Bihar in exercise of the power conferred by the proviso to Article 309 of the Constitution. Rule 3 thereof provides for mode of appointment to the Bihar Forest Service. The said rule provides for appointment by promotion of the selected Rangers (now known as „Range Officers of Forest) and by direct recruitment selected and recommended by the Bihar Public Service Commission (hereinafter referred to as "the Commission") after holding competitive examination. Part II of the 1953 Rules comprising rules 5 to 8 provides for direct recruitment. Part III of the 1953 Rules contains supplementary instructions in respect of selection to be made by the Commission and preparation of the merit list. Rule 29 thereof, since its amendment under the Notification published on 30th August 1985, provides, inter alia, that an Assistant Conservator of Forests (hereinafter referred to as „the Assistant Conservator") appointed by direct recruitment shall be confirmed against the permanent post after he successfully undergoes the professional training for a period of two years at Forest Research Institute and College, Dehradun. The only provision made in respect of seniority of the officers appointed to the Bihar Forest Service is found in Rule 35 of the 1953 Rules. Rule 35 reads as under:-
" 35. Seniority of officers appointed to the service shall be determined with reference to the date of their substantive appointment to the service:
Provided that -
Patna High Court LPA No.168 of 2013 dt. 10-11-2014 15/27
(i) in the case of members of the service appointed by direct recruitment at the same time, their seniority inter se shall be the order of merit in which their names are placed in the list of successful candidates at the Final Examination of the Indian Forest College, Dehra Dun;
(ii) in case where appointments are made to the Service both by direct recruitment and promotion of selected Rangers at the same time, the promoted members of the service shall be senior to the members directly recruited; and
(iii) the seniority inter se of Rangers on substantive appointment to the Service by promotion at the same time shall be their seniority inter se held as Rangers."
The general instructions issued by the State of Bihar in this regard provide that in case of direct recruits and promotees appointed as a result of the „same transaction‟, the promotees shall rank senior to the direct recruits. The dispute requires to be examined and resolved in the backdrop of the above Rules and the general rule of seniority of the Government servants in respect of inter se seniority amongst the direct recruit and promotee officers.
Now I shall come to the hard facts shorn of the unnecessary details, in a nutshell. The appellants in Letters Patent Appeal Nos. 257 of 2013, 491 of 2013 and 509 of 2013 are one Mihir Kumar Jha, Sunil Kumar Sinha, Patanjali Kumar Choudhary, Dinesh Kumar Das, Nand Kumar Manjhi and Naresh Prasad, the Assistant Conservators appointed on 13th April 1988 and 10th August 1989 by direct recruitment pursuant to 1985 selection process. It appears that pursuant to the requisition made by the Government of Bihar for direct appointment on 40 posts of Assistant Conservator of Forests, the Commission initiated a recruitment process under the advertisement published on 24th July 1985. Pursuant to the said recruitment process, 40 candidates were selected and recommended Patna High Court LPA No.168 of 2013 dt. 10-11-2014 16/27 for appointment. The said 40 candidates selected by the Commission were appointed on 14th December 1987. The above referred six appellants were also the candidates in the said recruitment process, but were not selected by the Commission, nor were they appointed as Assistant Conservators. Nevertheless, undeterred by their failure to clear the competitive examination conducted by the Commission, some eighteen unsuccessful candidates relentlessly pursued the State Government to appoint them as Assistant Conservators. Ultimately, they succeeded in their efforts and were appointed as Assistant Conservators in two batches on 13th April 1988 and 10th August 1989 respectively. Their appointment came to be questioned by some direct recruit and some promotee Assistant Conservators before the State Government. At one time, the concerned Minister was of the opinion that their appointment was totally illegal and that their service should be terminated. Nevertheless, the said eighteen persons were continued in service. Out of the said eighteen Assistant Conservators ten were, on bifurcation of the larger State of Bihar, transferred and allocated to the State of Jharkhand. The remaining eight such officers have continued in service. On 3rd October 2005, the then Governor of Bihar proposed that their service be regularised. Ultimately, the State Government gave in and under Notification dated 4th October 2010 regularised the appointment of the said eight officers with effect from 3rd October 2005, the date of recommendation made by the Governor of Bihar. Accordingly, the said eight officers have been given seniority in the final gradation list effective from 3rd October 2005.
It is the said action of the State Government which was the subject matter of challenge in CWJC Nos. 10925 of 2010; 11160 of 2010 and 11337 of 2010 filed by the appellants Mihir Kumar Jha, Sunil Kumar Sinha, Patanjali Kumar Choudhary, Dinesh Kumar Das and Nand Kumar Manjhi and Naresh Prasad. According to the said Patna High Court LPA No.168 of 2013 dt. 10-11-2014 17/27 appellants, they were duly appointed on 13th April 1988 and 10th August 1989 respectively. Their appointment was never questioned and cannot be held to be bad or illegal after a long, undue and unexplained delay. The appellants are, therefore, entitled to seniority from the date of their appointment on the principle of continuous officiation.
The learned single Judge has rejected the contentions. The learned single Judge has held that the appointment of the said writ petitioners- appellants was totally illegal. Their appointment was questioned before the State Government. The issue was, however, never decided by the State Government. At one point of time, the concerned Minister had proposed termination of their service. However, while the State Government was under the Governor‟s rule, on 3rd October 2005 the Governor proposed to regularise their service. The State Government has, therefore, regularised their service as on 3rd October 2005. The learned single Judge has noticed that the requisition was made for 40 vacancies. After due selection process, 40 successful candidates were appointed as Assistant Conservators. The said 40 selected Assistant Conservators have successfully undergone training in forestry. Once the select list was exhausted, there was no occasion for the State Government to oppress the Commission into recommending further names and make more appointments. Nevertheless, that is what the State Government actually did. The Commission resisted at first but gave in to the pressure of the State Government and made recommendation of eighteen candidates. Ten such candidates were appointed on 13th April 1988 and eight on 10th August 1989. The aforesaid appellants are the six of the said Assistant Conservators appointed on 13th April 1988 and 10th August 1989. The learned single Judge has also noticed that after completion of the selection process pursuant to the advertisement dated 24th July 1985, Patna High Court LPA No.168 of 2013 dt. 10-11-2014 18/27 on 12th June 1987, the State Government had made a fresh requisition for recruitment for 40 posts of Assistant Conservator of Forests in Bihar Forest Service. Pursuant to the said requisition, the Commission had commenced the recruitment process under advertisement dated 19th December 1987. Pursuant to the said selection process, some 40 officers were selected and appointed on 30th March 1990. It was pending the said selection process, the above mentioned 18 persons were appointed as Assistant Conservators in total disregard of the 1953 Rules and general principles for appointment in public service.
Now in the final gradation list published on 10th February 2010, the said appellants have been given seniority from the date of their regularization in service on 3rd October 2005 and have been placed at the rock bottom of seniority at serial nos.321 and below. As recorded hereinabove, the challenge to the seniority has been rejected by the learned single Judge. The learned single Judge has considered the submissions made on their behalf and the case law in extenso. The learned single Judge has observed, "Thus, on the aforesaid basis, I hold that the appointment of the second and third phase direct recruits pursuant to 1985 advertisement after the advertised posts had been filled up, was a rank illegality and cannot be termed as an irregularity or a minor deviation from the Rules. It was a misadventure from the very beginning on which those petitioners had embarked. They cannot invoke equity in their favour. The law does not support them."
It is this decision of the learned single Judge which is the subject matter of challenge in the above Letters Patent Appeals Nos.257 of 2013, 491 of 2013 and 509 of 2013.
Learned counsels Mr. Y. V. Giri and Mr. Jitendra Singh and learned advocate Mr. Dhirendra Kumar Jha-2 have appeared for the appellants. Learned counsels in their marathon arguments have relied upon the 1953 Rules, voluminous records and the case law in the matters of M.S. M. Sharma Vs. Dr. Shree Krishna Sinha and others Patna High Court LPA No.168 of 2013 dt. 10-11-2014 19/27 [AIR 1960 SC 1186]; of Roshan Lal and others Vs. International Airport Authority of India and others [1980 (Supp) SCC 449]; of Supreme Court Employees' Welfare Association Vs. Union of India and another [AIR 1990 SC 334]; of The Direct Recruit Class II Engineering Officers' Association and others Vs. State of Maharashtra and others [AIR 1990 SC 1607]; of Prem Singh and others Vs. Haryana State Electricity Board and others [(1996) 4 SCC 319]; of Rudra Kumar Sain and others Vs. Union of India and others [AIR 2000 SC 2808]; of Suvidya Yadav and others Vs. State of Haryana and others [(2002) 10 SCC 269]; of Ramadhar Shrivas Vs. Bhagwandas [(2005) 13 SCC 1]; of India Household and Healthcare Ltd.
Vs. LG Household and Healthcare Ltd. [(2007) 5 SCC 510]; of Amarjeet Singh and others Vs. Devi Ratan and others [(2010) 1 SCC 417]; of Union of India and another Vs. Kartick Chandra Mondal and another [(2010) 2 SCC 422]; of Rakhi Ray and others Vs. High Court of Delhi and others [(2010) 2 SCC 637]; of H.S. Venkani and others Vs. State of Gujarat and others [ (2010) 4 SCC 301]; of Shankar Raju Vs. Union of India [(2011) 2 SCC 132]; of Shankara Cooperative Housing Society Limited Vs. M. Prabhakar and others [(2011) 5 SCC 607]; and of Royal Orchid Hotels Limited and another Vs. G. Jayarama Reddy and others [(2011) 10 SCC 608].
The Appeals are contested by the State Government and the contesting respondents. Learned advocates Mr. Subhash Prasad Singh and Mr. Satish Narain Singh have appeared for the State Government and learned counsel Mr. Vinod Kumar Kanth for the contesting respondents.
Mr. Vinod Kumar Kanth has relied upon the judgments of the Hon‟ble Supreme Court in the matters of Baleshwar Dass & others Vs. The State of U P and others [AIR 1981 SC 41]; of Sanjay K. Sinha- II and others Vs. State of Bihar and others [(2004) 10 SCC 734]; of Government of Karnataka and others Vs. Gowramma and others [AIR 2008 SC 863]; of Rakhi Ray and others Vs. High Court of Delhi and others Patna High Court LPA No.168 of 2013 dt. 10-11-2014 20/27 [(2010) 2 SCC 637]; of State of Orissa and another Vs. Mamata Mohanty [(2011) 3 SCC 436]; and the judgments of this Court in the matters of Bishnundeo Mahto Vs. The State of Bihar & Ors. [ 1982 BBCJ (FB) 45]; and of Sanjay Kumar Sinha- II & Ors. Vs. The State of Bihar & Ors. [1998 (3) PLJR 121].
Learned advocate for the State has relied upon the judgments in the matter of State of Bihar and others Vs. Sri Akhouri Sachindra Nath and others [AIR 1991 SC 1244]; of Sanjay K. Sinha- II and others Vs. State of Bihar and others [(2004) 10 SCC 734]; and of Uttaranchal Forest Rangers' Association (Direct Recruit) and others Vs. State of U. P. and others [(2006) 10 SCC 346].
I have perused the records and have considered the submissions made by the learned senior counsels and the advocates. Appeals are decided in accordance with the principles laid down in the above judgments.
The learned single Judge having considered the record, the contentions and the case law in extenso, I do not suppose I want to repeat the contentions and the case law extensively dealt with by the learned single Judge. I fully agree with the learned single Judge that the appointment of the said 18 persons including the six appellants before us as Assistant Conservators pursuant to the recruitment process commenced on 24th July 1985 was totally illegal and in contravention of all canons of service jurisprudence. First, the recruitment process had been commenced for 40 posts which were duly filled in by appointment of the selected persons on 14th December 1987. The recruitment process having thus been completed, there was no occasion for the State Government to make further appointments pursuant to the said recruitment process. The appellants were the persons who had not been selected or recommended by the Commission; nor were they placed in the wait list; nor did the State Government have the occasion to operate the Patna High Court LPA No.168 of 2013 dt. 10-11-2014 21/27 wait list. The said appointments made on 13th April 1988 and 10th August 1989, therefore, in my view, were not only totally illegal, should also be considered non est. Nevertheless, the State Government has, under its Notification dated 4th October 2010, regularised their service with effect from 3rd October 2005, the date on which the Governor of Bihar State recommended to regularise their service. The generosity of the State Government should stop there. The appellants cannot claim the benefit of seniority on the principle of continuous officiation. The seniority given to them from 3rd October 2005, the effective date of regularization of their service, should not call for intervention by this Court in exercise of power of judicial review conferred by Article 226 of the Constitution.
For the aforesaid reasons, Letters Patent Appeal Nos.257 of 2013; 491 of 2013 and 509 of 2013 and the concerned CWJC Nos.10925 of 2010; 11337 of 2010 and 11160 of 2010 are dismissed.
The appellant in Letters Patent Appeal No.168 of 2013 is one Digambar Thakur, an Assistant Conservator of Forests in Bihar Forest Service. The said appellant joined the service of the Bihar Government as Range Officer of Forests (hereinafter referred to as "the Range Officer") in 1981. In course of time, he became eligible for promotion to the post of Assistant Conservator of Forests in Bihar Forest Service. His case for promotion along with several other Range Officers was considered by the Departmental Promotion Committee. After the recommendation made by the Departmental Promotion Committee were accepted by the State Government and approved by the Commission, such Range Officers came to be promoted as Assistant Conservators in three different batches in the year 1990, 1991 and 1992, but the promotions were made effective from 30th March 1990. The appellant Digambar Thakur and nine others were promoted as Assistant Conservators under Government Notification Patna High Court LPA No.168 of 2013 dt. 10-11-2014 22/27 dated 18th July 1991. It should be noted here that on 30th March 1990, the State Government had made appointment of several Assistant Conservators by direct recruitment pursuant to the selection process initiated in June 1987. On their promotion, the appellant and such other Assistant Conservators were treated senior to the direct recruit Assistant Conservators appointed on 30th March 1990. The said seniority was objected to by the direct recruit Assistant Conservators appointed on 30th March 1990. Ultimately, in the final gradation list published on 2nd July 2010, the promotee Assistant Conservators were placed below the direct recruit Assistant Conservators appointed on 30th March 1990.
The appellant Digambar Thakur had approached this Court under Article 226 of the Constitution in above CWJC No.4855 of 2008 to challenge the appointment of direct recruit Assistant Conservators appointed under Government Notifications dated 13th April 1988 and 10th August 1989 and for ancillary reliefs. Under the said Notification dated 13th April 1988 one Rabindra Kumar Mishra and ten others were appointed as direct recruit Assistant Conservators in Bihar Forest Service. Of the said eleven Assistant Conservators, six are the appellants before us in the above Letters Patent Appeal Nos.257 of 2013, 491 of 2013 and 509 of 2013. Similarly, under Notification dated 10th August 1989, eight more persons were appointed as Assistant Conservators in Bihar Forest Service by direct recruitment. As I have already discussed above, the appointment of the said Assistant Conservators has been held to be bad and illegal by the learned single Judge. However, in view of the regularization of their service with effect from 3rd October 2005, under Government order dated 4th October 2010 and their placement in the final gradation list below other direct recruit and promotee Assistant Conservators, the challenge to the said Notifications dated 13th April Patna High Court LPA No.168 of 2013 dt. 10-11-2014 23/27 1988 and 10th August 1989 did not survive.
Pending the said writ petitions, the State Government has, on 2nd July 2010, published the final gradation list of Assistant Conservators. In the final gradation list, the appellant and such other Assistant Conservators promoted with effect from 30th March 1990 have been placed below the Assistant Conservators appointed on 30th March 1990 by direct recruitment. It is the said gradation list and the placement of the appellant below the direct recruit Assistant Conservators which really is the matter at dispute which remained to be resolved by the learned single Judge. The learned single Judge has upheld the action of the State Government. Therefore, this Appeal.
Learned counsel Mr. Rajendra Narain has appeared for the appellant. He has taken us through the voluminous records and the elaborate judgment of the learned single Judge. He has also relied upon the relevant rules and instructions governing the seniority inter se of the direct recruit and promotee Government officers. In support of his submissions, Mr. Rajendra Narain has relied upon the judgments of the Hon‟ble Supreme Court in the matters of R. N. Nanjundappa Vs. T. Thimmiah and another [(1972 1 SCC 409]; of B. N. Nagarajan and others Vs. State of Karnatka and others [(1979) 4 SCC 507]; of Bindeshwari Ram Vs. State of Bihar and others [(1989) 4 SCC 465]; of Keshav Chandra Joshi and others Vs. Union of India and others [ 1992 Supp (1) SCC 272]; of Ashwani Kumar and others vs. State of Bihar and others [AIR 1997 SC 1628]; of Sanjay K. Sinha-II and others Vs. State of Bihar & others [(2004) 10 SCC 734]; of Uttaranchal Foresh Rangers' Association (Direct Recruit) and others Vs. State of U. P. and others [(2006) 10 SCC 346]; and of Pawan Pratap Singh and others Vs. Reevan Singh and others [(2011) 3 SCC 267].
Mr. Rajendra Narain has also relied upon Rules 67, 41, 28 and 38 of the Bihar Service Code and the Bihar Forest Service Patna High Court LPA No.168 of 2013 dt. 10-11-2014 24/27 Rules, 1953. He has heavily relied upon the general instructions that in case of appointment by direct recruitment and promotion in the „same transaction‟, promotee officers will take seniority above the direct recruit officers. He has vehemently submitted that in 1990, the appellant was eligible for promotion. The appointment of the direct recruit Assistant Conservators was made on 30th March 1990 in the quota of direct recruitment pursuant to the selection process commenced in June 1987. At the same time, the Range Officers were entitled to promotion in the quota for promotion. Appointment of both, the direct recruits and the promotees, were, therefore, part of the „same transaction‟ and as per the prevalent instructions of the State Government, the promotee officers should rank above the direct recruit officers.
The learned single Judge has rejected the contentions raised by the appellant and other similarly situated writ petitioners. The learned single Judge has elaborately discussed the term "same transaction" and the process of recruitment to hold that the direct recruitment made on 30th March 1990 and later promotions made effective from 30th March 1990 were not part of the „same transaction‟.
I fully agree with the learned single Judge. Further, the process for direct recruitment and promotion are entirely different. The direct recruitment and promotion can never be the part of the „same transaction‟.
The next question that arises is whether the State Government was justified in making the promotions effective from 30th March 1990 although the promotions were made later in the years 1990, 1991 and 1992. In absence of any specific rule of seniority to the contrary, the seniority shall be governed by the principle of continuous officiation from the date of substantive appointment. This Patna High Court LPA No.168 of 2013 dt. 10-11-2014 25/27 cardinal principle of seniority is well known and well settled. The same principle should apply in the present case also. That is the provision under Rule 35 of the 1953 Rules. The appellant and such others who were promoted after 30th March 1990 shall take their seniority from the date of their appointment. Ordinarily, the date of appointment is the date on which the appointment order is made. True, it is not unknown or infrequent that the promotions are given with retrospective effect. However, the promotions are made with retrospective effect only in cases where the concerned officer had wrongly been superseded when one or more of his juniors were promoted or he was not promoted on the due date in spite of his being eligible and suitable on account of pending disciplinary proceeding or some such reason. In that case, when the name of the officer is cleared, he is given promotion with retrospective effect from the due date.
In the present case, it is not the case of the appellant or the State Government that the appellant and such other officers were required to be given promotion from retrospective effect, that too from 30th March 1990 for some valid reason. Further, merely because an officer has become eligible for promotion, he does not become entitled to promotion. For promotion to the higher post, a Government servant not only has to be eligible for such promotion, he should also be within the zone of consideration; he should be found suitable for promotion by the Departmental Promotion Committee; his suitability should be accepted by the appointing authority; and a vacant post should be available. In the present case, it has come on the record that the appellant Digambar Thakur did not become eligible till he completed 10 years‟ service as Range Officer in 1991. The fact that the appellant had become eligible for consideration for promotion in 1991 is not in dispute. On mere eligibility, the appellant could not Patna High Court LPA No.168 of 2013 dt. 10-11-2014 26/27 have been promoted as Assistant Conservator until he was found suitable by Departmental Promotion Committee and the recommendation for his promotion to the Bihar Forest Service was approved by the Commission. Indisputably, such process was not completed in 1990. The appellant, therefore, could not have been promoted with effect from 30th March 1990. In all probability the appellant was not eligible for appointment as Assistant Conservator as on 30th March 1990, nor was his suitability as on 30th March 1990 examined by the Departmental Promotion Committee. It has not been brought on the record whether or not the Public Service Commission had been specifically consulted on the point of retrospective promotion. The mischief in the action of the State Government to make promotion to the post of Assistant Conservators in the Bihar Forest Service with effect from 30th March 1990 is apparent. The purpose was to take undue advantage of the term "same transaction"
or "same time" and to rank promotee officers senior to direct recruit officers.
In my opinion, the State Government has rightly undone the said mischief by placing the promotee Assistant Conservators of 1990, 1991 and 1992 below the direct recruit Assistant Conservators appointed on 30th March 1990.
Much is argued on the point of sanctioned strength of the Assistant Conservators, the confusion prevalent in respect of the extent of the sanctioned strength and the sanctioned strength of 133 accepted by the Hon‟ble Supreme Court in the matter of Sanjay K Sinha-II and others Vs. State of Bihar & Ors. [(2010) 4 SCC 734] and the quota for promotion and direct recruitment in the cadre of Assistant Conservators.
In my view, the said arguments are besides the point and have no relevance to the determination of seniority on the principle of Patna High Court LPA No.168 of 2013 dt. 10-11-2014 27/27 continuous officiation.
To me, it appears that a simple issue of determination of seniority on the principle of continuous officiation has been twisted and has been given larger than life proportion by lengthy arguments, voluminous records and irrelevant submissions. The ultimate goal is to win seniority so as to reach the Indian Forest Service, an All India Service by stealing march over the others. The Court, at least the High Court will not be a party to such ill intentions and oblique motives. The learned single Judge has rightly upheld the position of the appellant and such others below the direct recruit Assistant Conservators of 30th March 1990 in the final gradation list published on 2nd July 2010.
No other issue arises in this Appeal.
For the aforesaid reasons, the Letters Patent Appeal No.168 of 2013 and the writ petition CWJC No.4855 of 2008 are dismissed.
Interlocutory Applications stand disposed of.
(R.M. Doshit, CJ) Ashwani Kumar Singh, J. I agree.
(Ashwani Kumar Singh, J) A.F.R. U Sunil/-