Manoj Kumar Madhukar vs The State Government Of Jharkhand on 16 June, 2022

[Cites 20, Cited by 0]

Jharkhand High Court

Manoj Kumar Madhukar vs The State Government Of Jharkhand on 16 June, 2022

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

                          1


 IN THE HIGH COURT OF JHARKHAND AT RANCHI

              W. P. (S) No. 244 of 2014

   Manoj Kumar Madhukar, S/o late Dhanik Lal Mishra, At: -
   Shivam Apartment Flat No. 303, Upper Hatia, PS Jagannathpur,
   PO Hatia, District: Ranchi.             ...    ...       Petitioner
                         Versus
1. The State Government of Jharkhand
2. The Principal Secretary, Personnel Administration Reforms and
    Rajbhasha Deptt, Project Building at HEC premises, PO and PS
    Dhurwa, District Ranchi, Jharkhand.
3. Ved Ratna Mohan, Agriculture Department (Gr No. 671)
4. Omprakash Tiwari, Transport Department (Gr No. 672)
5. Kaushal Kishore Jha, Urban Development Department (Gr
    No.673)
6. Sudesh Kumar Verma, Finance Department (Gr No. 674)
7. Baiju Prasad, Rural Development Department (Gr No. 675)
8. Manoj Kumar, Law Department (Gr No. 676)
9. Satyendra Kumar Saha, Water Resource Department (Gr No. 677)
10. Arvind Kumar Sinha, water Resource Department (Gr No.678)
11. Raghvendra Jha, Finance Department (Gr No.679)
12. Anuj Kumar Pandey, Staff Selection Commotion (Gr No. 680)
13. Sudhir Kumar Jha, Law Department (Gr No. 681)
14. Anandmay Banerji, Food Supply Department (Gr No.682)
15. Vimal Nand Mishra, Commissioner Office Dumka (Gr No.683)
16. Pramod Kumar, Home Department (Gr No. 684)
17. Sanjay Kumar Sah, Urban Development Department (Gr No 685)
18. Vishnukant Rai, Finance Department (Gr No. 686)
19. Dhruw Prasad, Rural Development Department (Gr No.687)
20. Devanand Choudhary, D.G.P. Office (Gr No 688)
21. Suman Kumar Shahi, Agriculture Department (Gr No 689)
22. Udaykant Singh, Commissioner Office Dumka, (Gr No 690)
23. Ranjeet Kumar, Health Department (Gr No 691)
24. Akhilesh Kumar, Industries Department (Gr No 692)
25. Madhukant Tripathi, Revenue Department (Gr No 693)
26. Baidyanath Pandey, Cabinet Coordination Dept. (Gr No 694)
27. Manoj Kumar Jha, Science & Technology Department (Gr No
    695)
28. Vijay Kumar Bhagat, Forest & Environment Department (Gr No
    696)
29. Raj Kumar, Excise Department (Gr No 697)
30. Amar Kumar Singh, Advocate General Office (Gr No 698)
31. Manoj Kumar Pathak, Mince & Geology Department (Gr No 699)
32. Braj Madhab, Advocate General Office (Gr No 700)
33. Anup Kumar, Board of Revenue (Gr No 701)
34. Rajesh Ranjan, Revenue & Land Reform Department (Gr No 702)
                          2


35. Ajay Kumar Singh, Personnel Department (Gr No 703)
36. Vikash Kumar, Information Technology Department (Gr No 704)
37. Vishwanath Sinha, Drinking Water & Sanitation Department (Gr
    No 705)
38. Lal Hemant Nath Shahdeb, Urban Development Department (Gr
    No 706)
39. Rajendra Choudhary, Rural Works Department (Gr No 707)
40. Md Vashir Ahmad, Revenue & Land Reform Department (Gr No
    708)
41. Ashwini Kumar Lal Das, Finance Department (Gr No 709)
42. Manoj Kumar, Revenue & land Reform Department (Gr No 710)
43. Krishna Kumar, Forest & Land Reform Department (Gr No 711)
44. Rajivb Ranjan Tiwari, C.M. Secretariat (Gr No 712)
45. Bipin Kumar, Forest & Environment Department (Gr No 713)
46. Rajib Kumar, Tourism Department (Gr No 714)
47. Sushil Kumar, Health Department (Gr No 715)
48. Madan Mohan Jha, Commissioner Office Dumka (Gr No 716)
49. Akhilesh Kumar Pandey, Industries Department (Gr No 717)
50. Arun Kumar Sinha, Welfare Department (Gr No 718)
51. Shailesh Kumar Sinha, Personnel Department (Gr No 719)
52. Sunil Kumar Choudhary, State Election Commission (Gr No 720)
53. Vibhash Chandra Singh, Road Construction Department (Gr No
    721)
54. Vidya Bhushan Karn, Commissioner Office Ranchi (Gr No 722)
55. Dharmvir Raman, Home Department (Gr No 723)
56. Ajay Kumar Jha, Personnel Department (Gr No 724)
57. Rajesh Kumar Gupta, Jharkhand State Information Commission
    (Gr No 725)
58. Sunil Kumar Singh, Road Construction Department (Gr No 726)
59. Yogesh Kumar Singh, Water Resource Department (Gr No 727)
60. Anil Kumar, Road Construction Department (Gr No 728)
61. Ajay Kumar Rai, finance Department (Gr No 729)
62. Ashok Kumar, Art Culture & Sports Department (Gr No 730)
63. Gulam Sarwar, Social Welfare Department (Gr No. 731)
64. Manoj Kumar Jha, Drinking Water & Sanitation Department (Gr
    No. 732)
65. Shivpujan Prasad, Personnel Department (Gr No. 733)
66. Rajkumar Shrivastav, Water Resource Department (Gr No 734)
67. Sunil Kumar, Registration Department (Gr No 735)
68. Rajesh Kumar, Home Department (Gr No 736)
69. Shiv Kumar Kedia, Water Resource Department (Gr No 737)
70. Radhika Raman, Advocate General Office (Gr No 738)
71. Sanjay Kumar Jha, Animal Husbandry & Fisheries Department
    (Gr No 739)
72. Amresh Kumar, Building Construction Department (Gr No 740)
                           3


73. Sudhir Kumar, Human Resource Development Department (Gr No
    741)
74. Raj Kishor Prasad, Chauhan Revenue & Land Reform Department
    (Gr No 742)
75. Ganesh Kumar, Rural Works Department (Gr No 743)
76. Sanjay Kumar Sinha, Water Resource Department (Gr No 744)
77. Ajit Kumar, Home Department (Gr No 745)
78. Prabhunath Sharma, Finance Department (Gr No 746)
79. Suneet Kumar, Office of Tribal Welfare Commissioner (Gr No
    747)
80. Satyanarayan Sahu, Animal Husbandry & Fisheries Department
    (Gr No 748)
81. Mithilesh Pathak, Housing Department (Gr No 749)
82. Awadesh Kumar Jaiswal, Rural Development Department (Gr No
    750)
83. Arun Kumar, Drinking Water & Sanitation Department (Gr No
    751)
84. Sarojini Kumari Singh, Personnel Department (Gr No 752)
85. Jitendra Bahadur Singh, Personnel Department (Gr No 753)
86. Sunil Kumar Jha, Rural Development Department (Gr No 754)
87. Sanjay Prasad Srivastav, Finance (Commercial Taxes) Department
    (Gr No 755)
88. Rakesh Kumar Choudhary, Cabinet Secretariat (Gr No 756)
89. Vishwavnath Jha, Rural Works Department (Gr No 757)
90. Bijay Kumar Singh, Water Resource Department (Gr No 758)
91. Rajesh Kumar Tiwari, Home Department (Gr No 759)
92. Mithilesh Kumar Singh, Revenue & Land Reform Department (Gr
    No 760)
93. Shiv Kishor Mishra, Personnel Department on Deputation to
    Governor Sect. (Gr No 761)
94. Kailash Prasad, Human Resource Development Department (Gr
    No 762)
95. Anand Kumar Sinha, Building Construction Department (Gr No
    763)
96. Thakur Gauri Shankar Sharma, Finance Department (Gr No 764)
97. Harendra Kumar, Drinking Water & Sanitation Department (Gr
    No 765)
98. Manoj Kumar, Home Department (Gr No 766)
99. Sanjay Kumar, Registration Department (Gr No 767)
100. Dilip Kuamr Sah, Water Resource Department (Gr No 768)
101. Rakesh Chand, Home Department (Gr No 769)
102. Avinash Chandra Thakur, Drinking Water & Sanitation
    Department (Gr No 770)
103. Kapil Dev Pandit, Finance Department (Gr No 771)
104. Mitt Ranju Kumar, Office of Director General of Police (Gr No
    772)
                          4


105. Gopi Krishna Bablu, Revenue & Land Reform Department (Gr
   No 773)
106. Chandra Bhushan, Finance Department (Gr No 774)
107. Ravindra Ranjan, Personnel Department (Gr No 775)
108. Chandra Prakash Pandey, Cabinet Secretariat Department (Gr
   No 776)
109. Maniji Singh, D.G.P. Office (Gr No 777)
110. Manikant thakur, Labour Employment & Training Department
   (Gr No 778)
111. Shailendra Kumar Singh, Science & Technology Department
   (Gr No 779)
112. Vijay Kumar, DIG Office (Gr No 880)
113. Ranjan Kumar, Revenue & Land Reform Department (Gr No
   781)
114. Dilip Kumar Vishwas, Personnel Department (Gr No 782)
115. Prem Kumar Rai, DGP Office (Gr No 783)
116. Durga Nand Jha, Road Construction Department (Gr No 784)
117. Devendra Kuamr, Human Resource Development Department
   (Gr No 785)
118. Dev Ranjan Singh, Finance (Commercial Taxes) Department
   (Gr No 786)
119. Arun Prakash Singh, Office of Chief Election Officer (Gr No
   787)
120. Navaneet Kumar, Information & Public Relation Department
   (Gr No 788)
121. Ajay Kumar Singh, Human Resource Department (Gr No 789)
122. Vinay Kumar Burnwal, Road Construction Department (Gr No
   790)
123. Arvind Kumar, Water Resource Department (Gr No 791)
124. Jitendra Prasad Pandey, JPSC (Gr No 792)
125. Arvind Kumar, Cabinet Secretariat & Coordination Department
   (Gr No 793)
126. Ajay Kumar Singh, Science & Technology Department (Gr No
   794)
127. Rajeev Kumar Gupta, Water Resource Department (Gr No 795)
128. Ranjiv Kumar Choudhary, DGP Office (Gr No 796)
129. Niraj Kumar Singh, Finance Department (Gr No 797)
130. Santosh Kumar Chaubey, Co-Operative Department (Gr No
   798)
131. Pankaj Kumar, Human Resource Department (Gr No 799)
132. Shivji Verma, Personnel Department (Gr No 800)
133. Lalit Kumar, Personnel Department (Gr No 801)
134. Surendra Kumar Suman Rural Development Department (Gr
   No 802)
135. Upendra Kumar Sinha, Human Resource Development
   Department (Gr No 803)
                           5


136. Dhanesh Kumar, Law Department (Gr No 804)
137. Amresh Kumar Choudhary, Finance Department (Gr No 805)
138. Lalo Prasad Kushwaha, Advocate General Office (Gr No 806)
139. Birendra Kumar, Finance Department (Gr No 807)
140. Kedar Prasad, Finance Commercial Taxes Department (Gr No
   808)
141. Chandrashekhar Prasad, Rural Development Department (Gr
   No 809)
142. Gajeshwar Mahto, Department of Food Supply &
   Consumer Affairs (Gr No 810)
143. Chandrashekhar Gupta, Finance Department (Gr No 811)
144. Manoj Kumar, Home Department (Gr No 812)
145. Manoj Kumar Singh, Forest & Environment Department (Gr
   No 813)
146. Ashok Kumar Choudhary, DGP Office (Gr No 814)
147. Gopal Ji, State Information Commission (Gr No 815)
148. Shambhu Kumar Singh, Rural Development Department (Gr
   No 816)
149. Vinod Kumar, Rural Development Department (Gr No 817)
150. Shiv Shankar Prasad Sinha, Personnel Department (Gr No 818)
151. Manoj Kumar Bhagat, Energy Department (On deputation in
   SSC) (Gr No 819)
152. Sikandar Singh, Welfare Department (Gr No 820)
153. Bhim Ravidas, Cabinet Secretariat & Co-ordination Department
   ((Gr No 821)
154. Suresh Choudhary, Institutional Finance Department (Gr No
   822)
155. Sunil Kumar, Road Construction Department (Gr No 823)
156. Ranjeet Kumar, Drinking Water & Sanitation Department (Gr
   No 824)
157. Raghunandan Sah, Urban Development Department (Gr No
   825)
158. Dharmraj Mahato, Cabinet Co-ordination Department (Gr No
   826)
159. Vinod Kumar Saha, Animal Husbandry Department (Gr No
   827)
160. Brijlala Prasad, DGP Office (Gr No 828)
161. Md. Raquib Anwar, Building Construction Department (Gr No
   829)
162. Ajay Prasad Sah, Labour Employment & Training Department
   (Gr No 830)
163. Tapeshwar Yadav, Advocate General Office (Gr No 831)
164. Ram Murti Singh, Board of Revenue (Gr No 832)
165. Upendra Kumar Singh, Revenue & Land Reform Department
   (Gr No. 833)
                           6


166. Raghuvansh Prasad, Agriculture & Cane Development
   Department (Gr No. 834)
167. Sunil Kumar Poddar, Information & Technology Department
   (Gr No 835)
168. Ras Bihari Prasad, Office of North Chhotanagpur
   Commissioner (Gr No 836)
169. Lalan Kumar Das, Revenue & Land Reform Department (Gr
   No 837)
170. Shivmangal Singh, Finance Commercial Taxes Department (Gr
   No 838)
171. Naresh Prasad Kewat, Food Public Distribution Department (Gr
   No 839)
172. Vinod Kumar Banke, Building Construction Department (Gr
   No 840)
173. Dayanand Prasad, Home Department (Gr No 841)
174. Gharshobhit Pandit, Law Department (Gr No 842)
175. Subodh Kumar, Rural Development Department (Gr No 843)
176. Rishi Raj, Welfare Department (Gr No 844)
177. Vijay Narayan, Personal Department (Gr No 845)
178. Chandra Kanta Singh, Water Resource Department (Gr No 846)
179. Nag Narayan Prasad, Home (Jail) Department (Gr No 847)
180. Sanjay Kumar Rajak, Home Department (Gr No 848)
181. Arshal Jamal, Road Construction Department (Gr No 849)
182. Sanjay Kumar, Animal Husbandry Department (Gr No 850)
183. Prabhat Kumar Ranjan, DGP Office (Gr No 851)
184. Narendra Thakur, Advocate General Office (Gr No 852)
185. Raj Kumar Mandal, Water Resource Department, (Gr No 853)
186. Phulendra Prasad Sharma, Drinking Water & Sanitation
   Department (Gr No 854)
187. Umashankar Prasad Pal, Finance Department (Gr No 855)
188. Sanjay Kumar, Finance Commercial Taxes Department (Gr No
   856)
189. Arun Kumar, Road Construction Department (Gr No 857)
190. Kamal Kishor Patel, Home Department (Gr No 858)
191. Shivshankar Prasad Singh, Rural Development Department (Gr
   No 859)
192. Manju Kumari, Home (jail) Department (Gr No 860)
193. Md. Mazhar Hussain, Welfare Department (Gr No 861)
194. Chandra Bhushan Kumar, Health Department (Gr No 862)
195. Dayanand Kumar, Drinking Water & Sanitation Department
   (Gr No 863)
196. Dhirajan Prasad Sharma, Finance Department, (Gr No 864)
197. Kiran Kumari, Urban Development Department (Gr No 865)
198. Devshankar Das, Directorate of Panchayati Raj (Gr No 866)
199. Birendra Prasad, Home (Jail) Department (Gr No 867)
                          7


200. Shivnath Rai, Animal Husbandry & Fisheries Department (Gr
   No 868)
201. Santosh Kuamr, Human Resource Development Department
   (Gr No 869)
202. Arvind Kumar Thakur, Home Department (Gr No 870)
203. Anil Kumar Sharma, Tourism Department (Gr No 871)
204. Ashok Kumar Singh, Personnel Administrative Reforms
   Department (Gr No 872)
205. Irshad Alam, Drinking Water & Sanitation Department (Gr No
   873)
206. Gagan Prasad, Finance Commercial Taxes Department (Gr No
   874)
207. Md. Shoib Ansari, State Commission for Backward Classes
   (Gr No 875)
208. Ashok Kumar, Agriculture & Cane Development Department
   (Gr No 876)
209. Mithilesh Kumar Niraj, Home Department (Gr No 877)
   151. Md. Shahjad Ahmad, Welfare (Minorities) Department (Gr
        No 878)
210. Naresh Kumar Gupta, Building Construction Department (Gr
   No 879)
211. Md. Tahir Anwar, DGP Office (Gr No 880)
212. Janardan Mahto, Drinking Water & Sanitation Department (Gr
   No 881)
213. Shiv Kumar Choudhary, Finance Commercial Taxes
   Department (Gr No 882)
214. Jago Choudhary, Labor Employment & Training Department
   (Gr No 883)
215. Vijay Kumar Toppo, Forest & Environment Department (Gr No
   884)
216. Uday Shankar, Water Resource Department (Gr No 885)
217. Om Prakash, Building Construction Department (Gr No 886)
218. Janardan Paswan, Personnel Department (Gr No 887)
219. Suresh Rajak, Transport Department (Gr No 888)
220. Surendra Das, Rural Works Department (Gr No 889)
221. Pradeep Kumar Paswan, Finance Department (Gr No 890)
222. Anil Kumar, DGP Office (Gr No 891)
223. Binod Kumar Ram, Personnel Department (Gr NO 892)
224. Bikram Ram, Personnel Department (Gr No 893)
225. Lakhan Ram Nayak, Home Department (Gr No 894)
226. Keshwar Ram, Commissioner Office Palamau, Medininagar
   (Gr No 895)
227. Vijay Kumar, State Election Commissioner (Gr No 896)
228. Uchit Kumar Pal, Home Department (Gr No 897)
229. Lalit Paswan, Cabinet Vigilance Department (Gr No 898)
230. Roshan Oraon, Cm Secretariat (Gr No 899)
                           8


231. Sahdev Paswan, Urban Development Department (Gr No 900)
232. Birendra Kumar Ram, Building Construction Department (Gr
   No 901)
233. Suresh Kumar Das, Road Construction Department (Gr No
   902)
234. Devanand Ram, Commissioner Office Palamau, Medininagar
   (Gr No 903)
235. Ashok Kuamr Rajak, Building Construction Department (Gr
   No 904)
236. Upendra Ram, Human Resource Development Department (Gr
   No 905)
237. Rajesh Kuamr, Planning & Development Department (Gr No
   906)
238. Maheshwar Paswan, Finance Department On Deputation To
   J.P.S.C. (Gr No 907)
239. Nawal Kishor Rai, Urban Development Department (Gr No
   908)
240. Sunil Kumar, Labor Employment & Training Department (Gr
   No 909)
241. Mannu Choudhary, Personnel Department (Gr No 910)
242. Pradeep Kumar, Drinking Water & Sanitation Department (Gr
   No 911)
243. Anand Surin, Social Welfare Department (Gr No 912)
244. Albert Das, Agriculture Department (Gr No 913)
245. Sita Sharan Choudhary, Home Jail Department (Gr No 914)
246. Vijay Kumar, Home Department (Gr No 915)
247. Rambali Manjhi, Energy Department (Gr No 916)
248. Rakesh Ranjan, Urban Development Department (Gr No 917)
249. Harendra Kishor Ram, Health Department (Gr No 918)
250. Sudhir Kumar, Road Construction Department (Gr No 919)
251. Prem Lal Mehra, Welfare Department (Gr No 920)
252. Binod Kumar, DGP Office (Gr No 921)
253. Pratap Kisku, Water Resource Department (Gr No 922)
254. Shiv Shankar Hansda, Drinking Water & Sanitation
   Department (Gr No 923)
255. Rajkishor Khakha, State Election Commission (Gr No 924)
256. Prisilla Murmu, Road Construction Department (Gr No 925)
257. Rejyus Barh, Road Construction Department (Gr No 926)
258. Anandit Bage, Office of Chief Conservator of Forest, Ranchi
   (Gr No 927)
259. Sunita Herenj, Office of Chief Conservator of Forest, Ranchi
   (Gr No 928)
260. Rita Khalko, Office of Chief Conservator of Forest Ranchi (Gr
   No 929)
261. Binod Ekka, Food & Public Supply (Gr No 930)
                                        9


      262. Anal Pratik Minj, Office of Chief Conservator of Forest, Ranchi
         (Gr No 931)
      263. Rajesh Bakhala, Water Resource Department (Gr No 932)
      264. Rameshwar Leyangi, Human Resource Development
         Department (Gr No 933)
      265. Late Anidrayas Topno (Gr No 934)
      266. Antoni Sanga, Transport Department (Gr No 935)
      267. Chandra Shekhar Prasad, Finance Department (Gr No 936)
      268. Pranita Khalkho, Health Department (Gr No 937)
      269. Pushpanjali Horo, Office of North Chhotanagpur Commssioner
         (Gr No 938)
      270. Satyajeet Jon Balihar, Social Welfare Department (Gr No 939)
      271. Philip Lakra, Office of South Chotanagpur Commissioner,
         Ranchi (Gr No 940)
      272. Dena Kisku, Home Jail Department (Gr No 941)
      273. Jaysri Toppo, Office of Chief Conservator of Forest, Ranchi
         (Gr No 942)
      274. Lalima Dadel, Cabinet Co-ordination Department (Gr No 943)
      275. Ghanshyam Prasad, Home Guard Office (Gr No 944)
      276. Tulsi Prasad, Water Resource Department (Gr NO 945)
      277. Surendra Das, Personnel Department (Gr No 946)
      278. Rajkishor Kumar, Personnel Department (Gr No 947)
      279. Ghanshyam Prasad Singh, Agriculture & Cane Development
         Department (Gr No 948)
      280. Chand Hembram, Rural Development Department (Gr No 949)
                                           ...       ...        Respondents
                              ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

---

14/16.06.2022

1. Heard Ms. Khalida Haya Rashmi, learned counsel appearing on behalf of the petitioner along with Mr. Zeeshan Ahmad Khan, Advocate.

2. Heard Mr. Rohit, Mr. Sreenu Garapati and Mr. Manav Poddar learned counsel appearing on behalf of the respondent-State.

3. Heard Mr. Manoj Tandon, learned counsel appearing on behalf of the private respondents along with Ms. Sneha Kumari, Advocate.

4. This writ petition has been filed for the following reliefs: -

"(i) For issuance of an appropriate writ(s)/order(s)/direction(s) or a writ of or in the nature of Mandamus directing and commanding upon the respondent authorities to amend and rectify the final gradation list of Officers and Assistants of Jharkhand Secretariat Service published vide letter no. 3606 dated 01-07-2011 especially 10 with respect to petitioner and place him in between serial 670 and 671 of the gradation list instead of his position at serial 950 of the said list for which the petitioner is entitled because an Assistant of the same batch of 1985 to which the petitioner belongs namely Nand Kishore Mishra is placed at serial no. 670 and thereafter from serial no. 671 onward up to serial 949 Assistants of 1993 batch are placed who are 8 years junior batch wise, under the provision as contained in different relevant circulars, issued in the year 1934 and 1972 and cadre rules notified in the year 1992 and 2010 for determination of seniority.

(ii) For issuance of any other writ/writs, order/orders, direction/directions for which the petitioner is found entitled and also for doing conscionable justice to the petitioner."

Arguments of the petitioner

5. Learned counsel for the petitioner submits that an advertisement No. 11/85 was issued in the year 1985 for recruitment of Assistants in Jharkhand Secretariat Service. The examination was held in the year 1987, the result was declared in the month of July, 1990 and the list of candidates in the first merit list was declared in the month of September, 1990.

6. Though the advertisement stated that the vacancies up to the year 1985-86 would be filled up, but it did not disclose the exact number of vacancies for the purposes of appointment. She submits that the Selection Board made recommendation in the light of communication dated 25.08.1987 issued by the Joint Secretary in the Department of Personnel and Administrative Reforms to the Secretary of the Board which gave the vacancy in a tabular form indicating the total number of vacancies as 357. On the basis of Board's recommendation, 309 candidates were given appointment by the State. Candidates in the general category, who secured more than 50% marks in the selection test, were to wait in anticipation of release of further vacancies by the State. The State Government issued a letter dated 08.08.1991 asking the Commission to issue fresh advertisement and hold fresh competitive examination for the appointment of secretariat assistants.

7. The learned counsel submits that in this background, a writ petition being C.W.J.C. No. 2912/1991 was filed before the Hon'ble Patna High Court and the writ petition was allowed vide judgment 11 dated 11th October, 1991, wherein it was directed by the Hon'ble High Court that panel would be given effect to for filling up all vacancies which were in existence till 31st December, 1988. She further submits that the matter went up to the Hon'ble Supreme Court which was disposed of vide judgment dated 8th October, 1993 reported in (1994) 1 SCC 126 and I.A. Nos. 5 and 6/1984 was filed making a grievance that the State Government was not complying with the order of the Hon'ble Supreme Court. The State Government was then directed to file an affidavit stating the number of vacancies which were existing on 31.12.1988 and further to make the records available for perusal of the Court. The Hon'ble Supreme Court recorded the total number of vacancies which were available on 31.12.1988 and could be filled up by the candidates who were selected in the competitive examination held in the year 1987 were 239. She submits that ultimately, the Hon'ble Supreme Court held that the vacancies up to 31.12.1988 were to be filled up from the same recruitment process arising out of advertisement No. 11/1985. The learned counsel submits that ultimately the petitioner, who had participated in the examination held pursuant to the advertisement of the year 1985, was appointed vide letter dated 08.09.1998 and the appointment letter is contained at Annexure-2 to the writ petition.

8. The learned counsel submits that considering the fact that the petitioner is an appointee of the same recruitment process of the year 1985, though appointed in the year 1998 by virtue of order passed by the Hon'ble Supreme Court, is required to be placed immediately after the candidates recruited by virtue of the recruitment process of 1985 and is required to be placed as the last candidate amongst them.

9. The learned counsel submits that in the meantime, there was another selection process held in the year 1993 for the recruitment of vacant post after 1988 till 1993 and the result of the 1993 recruitment process was declared in the year 1995 and consequently, some persons were recruited. She submits that even if, those persons were recruited in the year 1995, but the fact remains that their selection process was pursuant to the advertisement of the year 1993 and accordingly, placement of the petitioner in the seniority list should be with respect to the selection process arising out of advertisement of the year 1985.

The learned counsel submits that no fresh examination was held pursuant to the advertisement of the year 1985 and the petitioner was an appointee pursuant to the same examination process which was held in the year 1985. She also submits that once the Hon'ble Supreme Court had directed that the vacancy up to 31.12.1988 was to be filled up, all consequences arising out of filling up of such vacancies are to be given effect to.

10. The learned counsel has referred to the Rules governing the seniority published in Bihar Gazette dated 1st June, 1992 and has referred to clause 14(2) (ka) to submit that the seniority of the persons who are selected by virtue of one selection process, are to be placed one after another and merely because the appointment letter of the petitioner was issued later on in the year 1998, the same will have no bearing, considering the aforesaid rule. The learned counsel submits that the seniority of the persons recruited from the same selection process is to be determined only amongst the persons who are selected by the same process. She submits that the petitioner has been placed much below only on the ground that the petitioner was selected in the year 1998 without caring for the fact that the selection of the petitioner was a part of the selection process of the year 1985 itself.

11. The learned counsel has further referred to the order dated 15.02.2022 passed by this Court in the present petition to submit that the respondents have always been giving the seniority with respect to the advertisement irrespective of the date of the selection of the person concerned. She submits that such stand has been taken by the respondents in the counter-affidavit which has been duly explained by the petitioner in the rejoinder and recorded in the order dated 15.02.2022. She submits that the petitioner cannot be treated differently. The learned counsel also submits that one person, namely, Nand Kishore Mishra, who was selected out of the same selection process, was given seniority just after the persons who were selected in first merit list and same treatment should be given to the petitioner and accordingly, the petitioner should be placed just below Nand Kishore Mishra.

12. Learned counsel for the petitioner has relied upon the following judgments: -

(i) (1998) 1 PLJR 905 which gives the background of the entire selection process.

(ii) (1998) 9 SCC 641 to submit that the litigant should not suffer on account of delay and laches in make appointment out of the selection process.

(iii) (1998) 5 SCC 246 to submit that the seniority has to be counted on the basis of the year of examination, even if, the vacancies are subsequently filled.

Arguments of the Respondents

13. Learned counsel appearing on behalf of the respondent-State as well as the private respondents do not dispute the fact that the petitioners are governed by 1992 Rules.

14. Learned counsel appearing on behalf of the respondent-State by referring to interpretation of clause 14(2) (ka) has submitted that even in the same selection process, if the candidates are declared successful in different years, then their inter se seniority is to be counted qua the other persons who are selected in the same year and so far as the subsequent selection of persons in subsequent year are concerned, their placement in the seniority list would not be compared with those whose selection has been made in earlier year, even if, they are appointed arising out of the same selection process. He submits that the petitioner was born in the cadre only in the year 1998 and he could not claim seniority from those persons who were born in the cadre in the year 1995 and were working with the department, merely because the persons who were appointed in the year 1995 were selected out of subsequent recruitment process of 1993.

15. The learned counsel has further submitted that so far as the appointment letter issued to the petitioner is concerned, the same itself indicates that the date of appointment of the petitioner will be the date of issuance of the appointment letter. He submits that once the appointment letter gives the date of appointment, there is no question of giving any seniority to the petitioner prior to that date. He submits that the clause in the appointment letter is not under challenge. He also submits that the appointment letter was issued as back as in the year 1998 and the petitioner did not raise his grievance for long years, even 14 the seniority list which was published by the State of Bihar, which is the combined seniority list affecting the persons posted in the State of Jharkhand as well as the State of Bihar, the position of the petitioner has not been challenged at any point of time. Once the combined seniority list was published in the year 2005 and the same has been followed by the State of Jharkhand and if the seniority position of the petitioner is altered, that would amount to altering the seniority position of the 2005 list itself. The final publication of seniority list of the year 2005, having not been challenged by the petitioner has attained finality and that may not be disturbed.

16. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court reported in AIR 2021 SC 4648 (State of Bihar vs. Arbind Jee) to submit that the seniority benefit can accrue only after the person joins service and it cannot be earned retrospectively.

17. So far as the discrepancy in connection with the treatment of the petitioner qua other persons is concerned, the learned counsel submits that their position in the seniority list which was reflecting in the year 2005 by virtue of the combined seniority list published by the State of Bihar has not been changed by the State of Jharkhand and if upon correct interpretation of the rules of 1992, the petitioner is not entitled for the seniority being claimed, the same may not be extended to the petitioner merely because such relief has been extended to any other person. The learned counsel has also submitted that the petitioner has already attained the age of superannuation from the post he has worked and the seniority list may not be disturbed at this stage.

18. Learned counsel appearing on behalf of the private respondents have supported the arguments advanced on behalf of the State. The learned counsel submits that their seniority position may not be altered and the law is well-settled that the seniority is counted from the date the person is born in the cadre and the petitioner cannot take advantage of the seniority with retrospective date during which the petitioner never born in the cadre.

19. In response, the learned counsel for the petitioner has submitted that the judgment of the Hon'ble Supreme Court was not complied within time and for which, the petitioner cannot be made to suffer.

20. After conclusion of the arguments, the matter was posted for judgement on 02.05.2022. However, on 02.05.2022 the learned counsel for the Respondent State Mr. Sreenu Garapati along with A.C. to A.G.-I to Mr. Rohit and Mr. Manav Poddar, Advocates sought leave of this court and advanced further arguments and relied upon the following judgments in support of their case : -

(i) (1194) 1 SCC 126 (State of Bihar and Others Vs. Secretariat Assistant Successful Examinees Union 1986 and Others)

(ii) 1998 SCC Online Pat 183 (Secretariat Assistant Successful Examinees Union and Others Vs. State of Bihar and Others)

(iii) (2010) 1 SCC 756 (Edulkanti Kistamma (Dead) through Lrs. Vs. S. Venkatareddy (dead) through LRS

(iv) 2011 (2) ALJ 659 (Pawan Pratap Singh & Ors. vs. Reevan Singh & Ors.

(v) (2019) 16 SCC 28 (Ganga Vishan Gujrati & Others vs. State of Rajasthan and Others

(vi) (2020) 5 SCC 689 ( K. Meghachandra Singh & Others vs. Ningam Siro & Others)

(vii) (2013) 8 SCC 693 (P. Sudhakar Rao and Others vs. U. Govinda Rao and Others

(viii) AIR 1986 SC 2086 (K. R. Mudgal & Ors. vs. R.P. Singh & Ors.)

(ix) (2010) 12 SCC 471 (Shiba Shankar Mohapatra & Others vs. State of Orissa and Others)

(x) AIR 2021 SC 4648 (State of Bihar vs. Arbind Jee)

21. Learned counsel for the petitioner, in response, has submitted that Jharkhand Secretariat Cadre Rules, 2010 is already on record and she has also referred to circular of the then Government of Bihar and Orisha dated 12th December, 1934 for consideration in the matter of determination of seniority. She has also referred to the decision dated 13th July, 1971 and submitted that both these circular/decisions are relevant for the determination of inter-se seniority. She has reiterated that the point of discrimination, as has been argued in the case, has still not been answered by the respondents.

Findings of this Court

22. At the time of filing of the writ petition the petitioner was working as section officer belonging to Jharkhand Secretariat Services Cadre under the control of Personnel Administrative Reforms and Rajbhasha Deptt., Government of Jharkhand and was posted in the Directorate of Social Welfare, Engineering Hostel No. 2 (HEC Premises), Golchakkar, Dhurwa, Ranchi. It is not in dispute that at present the petitioner has superannuated from service.

23. As per the case of the petitioner in the writ petition, the petitioner was appointed against the vacancies advertised on 25.08.85 vide notice no. 11/85, wherein number of vacant posts was not mentioned for which a competitive examination was held in November 1987 and result was published in July 1990. Out of successful candidates, some were appointed as Assistant in the same year 1990 in the first batch in which the petitioner was not included. It is further case of the petitioner that some successful candidates of the first batch who were not offered appointment moved the Hon'ble High Court Patna on the point of number of vacant posts as the number was not disclosed in the advertisement no. 11/85. The matter travelled up to the Hon'ble Supreme Court which ended in judgement dated 08 th Oct 1993 in Civil Appeal no. 5298 arising out of SLP (c) No. 7423/92 filed by the Government of Bihar, wherein total number of vacancies as assessed by the Government in the year 1987 to the extent of 357 was given finality by the Supreme Court and further direction was also given to the respondent-State to fill up all the 357 posts from the successful candidates of 1987 competitive examination only. It is further case of the petitioner that the State Government could not fully comply the orders of Hon'ble Supreme Court as all the 357 vacancies could not be filled by 1993 and in the mid-way another advertisement no. 1/93 for fresh appointment to the post of Assistant was published for which examination was conducted in 1994 and appointments were made in the year 1995 and 1996. It is also the case of the petitioner that a fresh writ being C.W.J.C. No. 12882 of 1996 was again filed, as all the 357 vacancies identified till 31.12.1988 was not filled up for which orders were already given by the Supreme Court long back in the year 1993 itself, which was decided on 17.03.1998 with cost 17 [reported in 1998 (1) PLJR 905] in which the respondent authorities were ordered to make appointment within two months. Further case of the petitioner is that pursuant to the orders passed by the Hon'ble Patna High Court in C.W.J.C. No. 12882 of 1996 the petitioner was communicated vide letter No. 508 dated 23.07.1998 for verification of his certificates and credentials and upon being satisfied respondent authorities appointed the petitioner on the post of Assistant in the Secretariat in the Cane Department vide appointment letter being Memo No. 650 dated 08.09.1998 and the petitioner joined immediately.

24. Upon reorganization of State, a new State of Jharkhand was created on 15.11.2000 and the services of the petitioner has been placed with the new State of Jharkhand. The State Government of Jharkhand in the Personnel Administrative Reforms and Rajbhasha Department published provisional gradation list of secretariat Assistant vide letter No. 6139 dated 11.10.2010 and invited objections if any from the members of the Assistant cadre. The petitioner submitted his objection through proper channel which was forwarded to the respondent authorities vide letter No. 4517 dated 10.11.2010 issued under the signature of Deputy Secretary to the Water Resource Department where the petitioner was posted at that time. Vide representation contained at Annexure-4, the petitioner requested to rectify the gradation list by placing him at the last along with the 1985 batch of Assistant and above 8 years junior batch of Assistants appointed against vacancies of 1993. However, the respondent authorities ignored the objections filed by the petitioner and placed him below the Assistant junior by 8 years batch wise, which has caused loss of seniority and pay both in utter violation of law.

25. The petitioner has summarized different circulars issued from time to time in the writ petition itself and submits that specific cadre rule meant for Secretariat Assistant also contain rules for fixation of seniority whose relevant portions have been referred as follows: -

(a) Relevant portion, as contained in clause 2 (b) of circular being No. 6509 - A dated 12th December, 1934, reads as under: -

"When direct recruits have been placed in order of merit by a Selection Board full consideration should be given to the opinion of such Board".

(b) Relevant portion, as contained in clause 3(i)(k) of circular being No. 15784 dated 26.08.1972, reads as under: -

"On the basis of precedence and different government circular issued from time to time, general principle for determination of inter-se seniority is as follows: -

Present rule with respect to Seniority

(i) If officers are recruited together by promotion and direct recruitment then

(k) Promoted officers would be given priority over the direct recruits.

(c) Relevant portion, as contained in clause 14 (2) (k) of Secretariat Assistant Joint Cadre Rule 1992, reads as under: -

"Inter se seniority of the Assistants appointed on the basis of competitive examination will be in accordance with the merit of the result. Successful candidates of a particular year, if appointed on different dates, their seniority will be determined on the basis of merit of successful candidates of that year. (Translated by the petitioner from Hindi version of the rule)

(d) Relevant portion, as contained in clause 12 (II) (a) of Secretariat Services Rule 2010, reads as under: -

"Direct recruits shall be ranked inter se in the order of merit in which they are placed at the competitive examination on the 19 result of which they are recruited, the recruits of an earlier examination being ranked senior to those of later examination."

26. It is the case of the petitioner that the respondent authorities in complete disregard of all the norms for determination of seniority as stated above, published the final gradation list vide letter No. 3606 dated 01.07.2011, wherein the petitioner has been segregated from person appointed pursuant to advertisement of the year 1985 instead of placing the petitioner between last position of 1985 batch and above 8 years junior batch of 1993 at serial 671, has placed the petitioner at serial 950, without considering and meeting justified objections of the petitioner.

27. The petitioner has relied upon the aforesaid circulars/letters with regards to determination of inter-se seniority to submit that the petitioner having been appointed pursuant to advertisement of the year 1985 cannot be placed junior to the persons who have been appointed pursuant to the advertisement of the year 1993 even if the appointment of the petitioner in the year 1998 was subsequent to their appointment.

28. Thus, the issue to be decided in this case is-

Whether the petitioner, being an appointee of the year 1998 against vacancies up to the year 1988, can claim seniority over appointees of the year 1995-96, and thereby claim retrospective seniority, merely on the ground that the petitioner has been appointed pursuant to participation in the examination conducted in terms of advertisement of the year 1985 and the private respondents have been appointed pursuant to the advertisement of the year 1993 against vacancies subsequent to the year 1988.

29. From the arguments of both the parties, it is not in dispute that the foundational facts of the present case have been mentioned in the judgement passed by the Hon'ble Supreme Court in the case of State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986, (1994) 1 SCC 126. From the perusal of the aforesaid judgement, it is apparent as follows: -

(a) By the then Bihar State Subordinate Service Selection Board, advertisement No. 11 of 1985 was issued for 20 appointment to the post of Assistant and other connected officers of the Government of Bihar and the vacancies up to the year 85-86 were to be filled up after holding the examination but the number of vacancies were not notified.

(b) The examination was held in November, 1997 and result was published in 1990.

(c) As per the breakup of vacancies, a total number of 357 vacancies were provided and on the basis of recommendation of the Board dated 31st July, 1990, 309 candidates amongst those who qualified in the examination were given appointment.

(d) Further the candidates securing 50% marks in general category and whose names in the select list were empaneled, were made to wait in anticipation of release of further vacancies by the State, but no further appointment could be made.

(e) The persons whose names appeared in the select list in the order of their merit represented before the State government for appointment and such representation was rejected.

(f) On 8th August, 1991, a letter was issued by the State Government requiring the board to issue fresh advertisement.

(g) The empaneled persons who had participated in the selection process of advertisement No. 11/1985 filed the writ petition before Patna High Court being CWJC No. 291 of 1991 seeking a direction to their appointment and a plea was raised that as per the normal practice, the vacancies available till the date of publication of result were filled up from the merit list therefore all the empaneled candidates on the select list were entitled to be appointed against vacancies as existing as on the publication of result in the year 1990.

(h) This plea was opposed by the State who opposed adjustment against vacancies arising after 1988.

(i) The High Court noticed that there was no fresh advertisement after 1985 and that the result of the examination held in the 1987 was declared in 1990, directed 21 that the vacancies up till July, 1990 were to be filled up from the candidates of advertisement No. 11 of 1985. The High Court had also directed to fill up the vacancies up to the 1991 from the list of selected candidates who had been empaneled after declaration of result in 1990.

(j) On May 12, 1992, the Hon'ble Supreme Court directed to fill up vacancies till 1988.

(k) The Hon'ble Supreme Court vide judgment dated 08.10.1993 reported in (1994) 1 SCC 126 (supra) held in paragraph 8 as follows: -

"8. It is now well settled that a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right to be appointed unless relevant service rule says to the contrary. (See Shankarsan Dash v. Union of India and Babita Prasad v. State of Bihar.)"

(l) The Hon'ble Supreme Court was of the opinion that the direction given by the High Court for appointment to the empaneled candidates according to their position in the merit list against vacancy till 1991 was not proper and cannot be sustained and also recorded the callousness of the State in holding the examination in 1987 for vacancies advertised in 1985 and declaring the result as late in 1990 which had caused great hardship to the successful candidates. The Hon'ble Supreme Court modified the judgment of the High Court dated 11.10.1991 by setting aside the direction to fill up the vacancies of 1989,1990 and 1991 out of the select list of candidates who had appeared in the examination held in the year 1987 but upheld the judgment in all other respects including the filling up vacancies which existed till 31 st December, 1988 and issued the following directions in para 10 of the judgment, which is quoted hereunder: -

".................Further, with a view to do justice between the parties and balance the equities, we issue the following directions:

(i) That the appellant State of Bihar shall issue an advertisement inviting applications for the posts of Assistants within 4 weeks from the date of this judgment.

(ii) That the advertisement shall indicate the total number of vacancies actually existing and likely to arise in the cadre till December 31, 1993 which are required to be filled up. Thus, apart from the existing vacancies of 1989-1992 the probable vacancies till December 31, 1993, shall also be included while indicating the number of vacancies to be filled up.

(iii) That the age bar shall be relaxed in favour of candidates of the 1987 examination who had secured 40% or above marks in that examination, to enable them to appear in the fresh examination, if they so choose.

(iv) That the selection process including the holding of the examination and publication of the select list shall be completed within a period of 9 months from the date of the publication of the advertisement/notification inviting applications.

(v) That after the publication of the select list, the appointments shall be made within 4 weeks from the date of the publication of the select list.

(vi) That the rules relating to reservation etc. shall apply to the selections to be made."

30. It was clearly directed by the Hon'ble Supreme Court, that the fresh advertisement was for total number of vacancies till 31st December, 1993 and the age bar was also directed to be relaxed in favour of candidates of 1987 examination (pursuant to 1985 advertisement) who had secured 40% or above marks in the examination to enable them to appear in the fresh examination if they so choose.

31. This Court finds that as per the advertisement No. 11/1985, initially the vacancies were to be filled up only till 1985-86 and they were also filled by virtue of the first list, but ultimately by virtue of judgment dated 08.10.1993 passed by the Hon'ble Supreme Court reported in (1994) 1 SCC 126 (supra), the vacancies till 31st December, 1988 was required to be filled up. Admittedly, the name of the petitioner did not figure amongst the selected candidates in the first list, but the petitioner was declared successful in the second list when the vacancy up till 31st December, 1988 was directed to be filled up by virtue of aforesaid judgment passed by the Hon'ble Supreme Court and ultimately the petitioner was issued letter of appointment dated 08.09.1998 (Annexure-2) after necessary verification.

32. In the meantime, pursuant to the order passed by the Hon'ble Supreme Court, fresh advertisement was issued in the year 1993 for recruitment to the post of Assistant, for which examination was conducted in the year 1994 and the selected candidates pursuant to such recruitment process were appointed in the year 1995-96 i.e. prior to the appointment of the petitioner.

33. Thus, the petitioner was appointed against vacancy up to 31.12.1988 pursuant to participation in the selection process advertised vide advertisement No. 11/1985. However, the fact remains that the advertisement of the year 1985 was issued to fill up vacancies till the year 1985-86, but on account of peculiar facts of the case that the examination was itself held in the year 1987 and result was published in the year 1990, the vacancies up to 31.12.1988 was directed to be filled up from amongst the candidates who participated in the selection process of the year 1985 vide aforesaid judgment of Hon'ble Supreme Court. Thus, the writ petitioner though had participated in the selection process pursuant to advertisement No. 11/1985, but was born in the cadre only on 08.09.1998 (Annexure-2) only by virtue of order passed by the Hon'ble Supreme Court wherein the vacancy till 31.12.1988 was directed to be filled up from the merit list of the selection process of 1985 advertisement.

34. Thus, the claim of the petitioner is that though he was appointed in the year 1998 pursuant to advertisement of the year 1985, he should be placed above those appointees, who were appointed in the year 1995-96 pursuant to the advertisement of the year 1993 and he should also be placed as a last candidate in the seniority list in seriatum to those appointees, who were selected pursuant to advertisement of the year 1985 and appointed in the year 1990 from the first merit list. Thus, the petitioner is claiming retrospective seniority prior to the date he was appointed/born in the cadre.

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

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

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

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

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

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

36. It is to be examined as to what is the position with regards to the claim of retrospective seniority of the petitioner when seen in the light of rules/circular issued by the State Government whose summary has been mentioned in para 17 of the writ petition.

(a) Relevant portion, as contained in clause 2 (b) of circular being No. 6509 - A dated 12th December, 1934, reads as under: -

"When direct recruits have been placed in order of merit by a Selection Board full consideration should be given to the opinion of such Board".

Although the learned counsel for the petitioner has relied upon the aforesaid provision of circular being No. 6509 - A dated 12th December, 1934, but the same does not help the petitioner in any manner whatsoever. In the present case, the advertisement in the year 1985 was issued to fill up vacancies up to 1986 and the petitioner did not succeed as his name was much below in the merit list. However, the name of the petitioner figured only subsequently when a direction issued by the Hon'ble Supreme Court to fill up the vacancies up to the year 1988. The first select list to fill up the post up to vacancy of the year 1986 is certainly different from the subsequent select list to fill up the vacancy upto the year 1988. This Court finds that there is no material on record in support of the petitioner, much less any opinion of the selection board, that the petitioner should be placed just below the persons selected as per first merit list and be given retrospective seniority and placed above the persons appointed much prior to the petitioner though pursuant to subsequent advertisement and vacancies after 1988. In fact, the letter of appointment of the petitioner dated 08.09.1998 (Annexure -2) clearly mentions that the effective date of appointment will be the date of joining, which is essentially the terms of appointment of the petitioner and has never been challenged by the petitioner.

(b) Relevant portion, as contained in clause 3(i)(k) of circular being No. 15784 dated 26.08.1972, reads as under: -

"On the basis of precedence and different government circular issued from time to time, general principle for determination of inter-se seniority is as follows: -

Present rule with respect to Seniority

(i) If officers are recruited together by promotion and direct recruitment then

(k) Promoted officers would be given priority over the direct recruits.

Explanation: Together is referred to as "one transaction "in which "transaction" denotes the decision of competent authority in which number of post has been determined to be filled by the direct recruitment. Due to procedural delay appointment may be done in phases on different dates still then decision for filing up the vacancies has since been taken on a particular single date hence all such appointment would be considered to be done in one transaction" (Translated by the petitioner from Hindi version of circular and quoted in para 17 of the writ petition) This Court is of the considered view that the aforesaid provision relied upon by the petitioner applies for determination of inter-se seniority amongst direct recruits and promotees when officers are recruited together. In the present case, the issue of inter-se seniority is between the petitioner and the private respondents, both of them are direct recruits. Further, the petitioner and the private respondents have been admittedly appointed by two different advertisements and selection process. Thus, the said provision does not apply to the facts and circumstances of this case.

(c) Relevant portion, as contained in clause 14 (2) (k) of Secretariat Assistant Joint Cadre Rule 1992, reads as under: -

"Inter se seniority of the Assistants appointed on the basis of competitive examination will be in accordance with the merit of the result. Successful candidates of a particular year, if appointed on different dates, their seniority will be determined on the basis of merit of successful candidates of that year."

(Translated by the petitioner from Hindi version of the rule and quoted in para 17 of the writ petition) This Court is of the considered view that the aforesaid clause of 1992 rules also does not help the petitioner. It clearly provides that successful candidate of a particular year, if appointed on different dates, their seniority will be determined on the basis of merit of successful candidates of that year. However, in the present case, the petitioner (appointed in the year 1998) to fill up the vacancies up to the year 1988 (i.e., 1987 and 1988) cannot be said to be successful candidate of the 27 same year as compared to those appointed in the year 1990 from the 1st merit list, which filled up the vacancies up to the year 1986 in terms of the advertisement of the year 1985 to fill up vacancies up to the year 1986. The petitioner remained unsuccessful in the first list to fill up vacancies up to the year 1986 as the name appeared below in the merit list. Thus, the petitioner cannot be said to be a successful candidate of the same year as that of the other appointees in the year 1990 from the 1st select list. The case of the candidates like petitioner in the earlier round of litigation was that the vacancies up to the year of declaration of result of the examination i.e. 1990 should have been filled up from the panel and ultimately direction was passed by the Hon'ble Supreme Court in the judgement reported in (1994) 1 SCC 126 (supra) to fill up the vacancies till 31.12.1988 upon recording displeasure of acts and omissions on the part of the State in holding examination in the year 1987 publication of result in the year 1990 for vacancies advertised in the year 1985.

The Hon'ble Supreme Court has also held in para 8 of the aforesaid judgement reported in (1994) 1 SCC 126 (supra) that it is now well settled that a person who is selected does not, on account of being empaneled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right to be appointed unless relevant service rule says to the contrary.

Thus, the petitioner, though appointed in the year 1998, cannot claim seniority merely on the basis of being a participant in the examination pursuant to advertisement of the year 1985, over private respondents who were appointed in the year 1995-96 pursuant to advertisement of the year 1993 on the basis of the aforesaid rule. In view of the aforesaid discussions, the petitioner cannot be said to be successful candidates of the same year as that of other appointees of the year 1990.

(d) Relevant portion, as contained in clause 12 (II) (a) of Secretariat Services Rule 2010, and quoted in para 17 of the writ petition reads as under: -

"Direct recruits shall be ranked inter se in the order of merit in which they are placed at the competitive examination on the result of which they are recruited, the recruits of an earlier examination being ranked senior to those of later examination."

The petitioner has partly quoted the said Rule 12 in para 17 of the writ petition. The full text of rule 12 of The Jharkhand Secretariat Services Rule 2010 reads as under: -

"12. Seniority: -

(1) The relative seniority of members of the Service appointed to any Grade before the appointed day shall be regulated by their relative seniority as determined before that day:

Provided that, if the seniority of any such officer had not been specifically determined before the day, it shall be as determined by the Department of Personnel, Administrative Reforms and Rajbhasha.

(2) All officers included in the initial constitution of a Grade shall rank senior to all persons appointed to that Grade with effect from any date after the appointed day. (3) The seniority of persons appointed to any Grade after the appointed day shall be determined in the following manner, namely: -

I. Senior Selection Grade, Selection Grade and Grade 1.

Inter-se seniority of officers appointed to the Grade after the appointed day shall be regulated by the order in which their names are included in the Selected List for the Grade.

Provided that an officer included in the Selected List who refuses at any time to be appointed to the Grade for reasons acceptable to the appointing authority shall, on his appointment to the Grade at any time thereafter, be placed immediately after the officer who was last appointed to that grade from the Select List.

II. Section Officers' and Assistants' Grade

(a) Direct recruits shall be ranked inter se in the order of merit in which they are placed at the competitive examination on the results of which they are recruited, the recruits of an earlier examination being ranked senior to those of a later examination.

Provided that the seniority of persons recruited through the competitive examination held by the Commission or as the case may be.

(i) in whose case offer of appointment are revived after being cancelled. or

(ii) who are not initially appointed for valid reasons but are appointed after the appointment of candidates recruited on the basis of results of the subsequent examination or examinations, shall be such as may be 29 determined by the State Government in the Department of Personnel. Administrative Reforms and Rajbhasha.

(b) Persons appointed regularly to a Grade from the Select List for the Grade shall be ranked inter se according to the order in which they are so appointed.

37. The aforesaid rules of Jharkhand Secretariate Service Rules, 2010, clause 12(II) (a) (i) (ii) clearly deals with the cases where the offer of appointment revived after being cancelled and also cases of those persons who are initially not appointed for valid reasons, but are appointed after the appointment of the candidates recruited on the basis of result of subsequent examination. It has been provided that inter se seniority of such appointees will be decided by the State Government in the Department of Administrative Reforms and Rajbhasha. In the present case, admittedly, the petitioner was initially not appointed through the first merit list for a valid reason i.e., the only vacancy up to 1986 were advertised in the advertisement of 1985 and admittedly, the petitioner has been appointed after the appointment of the private respondents recruited on the basis of subsequent examination. In the aforesaid circumstances, the portion of Rule (II) (a) providing that direct recruit shall be ranked inter se in the year of merit, in which they are placed in the competitive examination on the result of which they are recruited and the recruits of an earlier examination to be ranked senior to those of later examination, will not apply to the facts and circumstances in view of the aforesaid exception to the general rule as mentioned in Rule 12 (II) (a) (ii). Thus, the aforesaid rules 12 of the Jharkhand Secretariate Service Rules, 2010, as partially quoted and relied upon by the petitioner also does not help the petitioner in any manner whatsoever. Moreover, the appointment letter of the petitioner clearly stipulates that the appointment of the petitioner will be from the date of his joining.

38. Thus, this Court is of the considered view that the various rules/circulars, on the basis of which the petitioner has claimed to be placed immediately below the direct recruits of the year 1990 from the first merit list pursuant to advertisement of the year 1985, does not help the petitioner as they do not apply to the facts and circumstances 30 of the present case. The petitioner has not been able to satisfy this Court on the point of existence of any circular/rule, which entitles the petitioner to be placed just below the direct recruits of the year 1990 [filling up the vacancy up till 1986 as per the advertisement of 1985] where the appointment was not offered to the petitioner at that point of time for a valid reason i.e., the vacancy only up till the year 1986 was advertised to be filled up and were duly filled up in terms of advertisement. Accordingly, the petitioner cannot be placed immediately below recruits of the year 1990 pursuant to 1985 advertisement in spite of being appointee of the same examination, but appointed in the year in the year 1998 [filling up vacancies from 1987 to 1988 pursuant to aforesaid judgment passed by the Hon'ble Supreme Court] and thus cannot claim seniority above the private respondents who were appointed in the year 1995-96 though pursuant to subsequent advertisement and examination against vacancies post 1988.

39. The learned counsel for the petitioner has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Dalilah Sojah Vs. State of Kerala and Ors. reported in (1998) 9 SCC 641. In the said case, the only question for consideration was relating to seniority of the appellant vis a vis respondent as Legal Assistant in the Department of Law under the Kerela Government. In the said case, a select list was issued on 23.06.1971 and the name of the appellant was included therein and on account of some reservation which was made for OBCs, the appointment of the appellant was not made and she was passed over. It was also an admitted fact in the said case that the appellant was entitled to be appointed against the future vacancy as and when it arose. Thereafter, on 06.10.1972, two vacancies were reported, but in spite of that, the appellant was not appointed and a fresh selection was made which resulted in new list prepared on 22.03.1974 in which the name of the respondent was included and the name of the appellant was placed at Sl. no.1. The respondent had filed writ petition before Kerela High Court challenging the appointment of the appellant and the High Court came to a conclusion that the select list of 23.06.1971 in which the name of the appellant was included had 31 come to an end on 14.06.1973 and therefore, when the second list was prepared on 22.03.1974, the name of the appellant could not have been included in that list, but the High Court did not disturb the appointment of the appellant, but observed that the writ petitioner before the writ court would rank senior to the appellant and consequential orders were issued by the State. The Hon'ble Supreme Court held that the appellant was made to suffer for no fault of hers as it was quite clear that when the two vacancies arose on 06.10.1972, the appellant had a right to be appointed against one of the vacancies and at that point of time, none of the respondents were ever selected for appointment to the said post as they were notified for selection only in the second list which was prepared on 22.03.1974. In this background, the Hon'ble Supreme Court was of the considered view that the right accrued to the appellant for appointment against the vacancy, after she was duly selected, could not have been taken away merely because of delay or inaction on the part of the government in notifying her appointment. It was held that the appellant was selected earlier in point of time than the respondents and her selection should have resulted with filling the vacancy which had arisen on 06.10.1972 as the select list of 23.06.1971 had come to an end only on 14.06.1973. Thus, in the said case, the right of the appellant to be appointed against the select list of 1971 was held to have been accrued in her favour when the vacancy arose on 06.10.1972 and therefore, she was ultimately declared to be senior to the respondents, who were appointed pursuant to select list prepared on 22.03.1974. Further, the name of the appellant in the new select list of 1974 also stood above the respondents.

The aforesaid judgement of Dalilah Sojah Vs. State of Kerala and Ors. reported in (1998) 9 SCC 641 does not apply to the facts and circumstances of this case. In the present case, advertisement was issued in the year 1985 for filling up of vacancies only till the year 1986; the examination was held in 1987; result was declared in 1990 and the appointments against vacancies up to the year 1986 were also made. The name of the petitioner never figured in the first select list issued by the respondents and the petitioner was subsequently 32 appointed in the year 1998 pursuant to the direction passed by Hon'ble Supreme Court to fill up the vacancy up to the year 1988 from the same merit list prepared in connection with the advertisement of the year 1985. Thus, no right ever crystallised in favour of the petitioner to be appointed till the Hon'ble Supreme Court ultimately directed to fill up the vacancies up to the year 1988 vide the aforesaid judgement reported in (1994) 1 SCC 126 (supra). The Hon'ble Supreme Court in para-8 also held as follows: -

"8. It is now well settled that a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right to be appointed unless relevant service rule says to the contrary. (See Shankarsan Dash v. Union of India and Babita Prasad v. State of Bihar)."

This Court also finds that even as per the letter of appointment issued to the petitioner (Annexure - 2), the petitioner was extended the appointment from the date of issuance of the appointment letter which was never challenged by the petitioner and therefore, the petitioner seeking his seniority by placing himself just below the appointees against first list of 1985 advertisement is practically seeking his appointment with a retrospective effect and consequential seniority. The general law is well settled that a person cannot claim seniority prior to the date he is born in the cadre, the petitioner was born in the cadre in the year 1998 and the reason for not appointing the petitioner by including his name in the first select list was not on account of any fault of the respondents rather, the petitioner was extended the benefit by virtue of orders of the court. Thus, no right to be appointed ever accrued to the petitioner at the time when initial appointment was made pursuant to 1985 advertisement.

40. Learned counsel for the petitioner has also relied upon the judgment passed in the case of Surendra Narain Singh & Ors. vs State of Bihar & Ors. reported in (1998) 5 SCC 246 to submit that the seniority has to be counted on the basis of the year of examination, even if the vacancies are subsequently filled.

In the said case, the dispute related to inter se seniority of Munsifs recruited by two different modes of recruitment: One set of Munsifs recruited on the basis of 15th examination held by Public Service Commission under Bihar Judicial Service (Recruitment) Rules 1955 and another set of Munsifs appointed under Bihar Civil Service (Judicial Branch) Ad Hoc (Recruitment) Rules, 1974 and the recruitment under 1974 Rules became necessary when new Cr.P.C came into force with effect from 01.01.1974 and the work earlier done by Executive Magistrates stood transferred to Judicial Magistrates. Further facts were that under 1955 Rules, 2000 posts were advertised on 03.04.1973. On the basis of 15th examination, total 158 candidates were appointed during the period from March, 1975 to 22.05.1975 and later on, Public Service Commission recommended supplementary list of 33 general category candidates for appointment against vacancies which were reserved with Schedule Caste and Schedule Tribe, but were converted to general vacancies because of non-availability of reserved category candidates and these candidates were appointed between 17.06.1976 to 01.09.1976, who were the respondents before the Hon'ble Supreme Court. In between, another process of recruitment was initiated to fill up 152 posts of Munsif under 1974 Rules and appointments against these posts were made between 23.05.1975 to 17.11.1976 and the contention of the Munsifs recruited under 1974 Rules was that they should rank senior to the 33 candidates subsequently appointed during the period from 17.06.1976 to 01.09.1976. The question which inter alia fell for consideration before the Hon'ble Supreme Court was whether the respondents subsequently appointed under 1955 Rules during the period from 17.06.1976 to 01.09.1976 or the candidates appointed under 1974 Rules during the period from 23.05.1975 to 17.11.1976 should rank senior. The Hon'ble Supreme Court was of the view that there was no provision under 1955 Rules to carry forward the reserved vacancies and in absence of any such provision, it was not permissible for the Commission or the State Government to adopt such a course and the filling up of the vacancies was delayed on account of certain correspondences which were exchanged between the State Government and the Commission for converting the reserved posts 34 into general ones and consequently, the appointment of the respondents was delayed till 1976. Such delay was wholly attributable to the misconception of law on the part of the State and the Commission for which it was held that the 33 respondents appointed subsequently could not be blamed.

The said judgment of Surendra Narain Singh & Ors. vs State of Bihar & Ors. reported in (1998) 5 SCC 246 also does not apply to the facts and circumstances of the present case, in as much as, in the present case, the petitioner though unsuccessful from being finally selected in the first select list which was issued to fill up the vacancies up till 1986 was extended the benefit of being selected up till the vacancy of 1988 by virtue of the orders passed by Hon'ble Supreme Court and rather the petitioner was a beneficiary of the judgment passed by the Hon'ble Supreme Court. There is no such corresponding fact in the present case to indicate that the petitioner had suffered on account of any delay and laches on the part of the respondents which conducted the examination in the year 1987 and published the result in the year 1990 with regard to the advertisement of the year 1985. In absence of any intervention by the courts, there was no occasion for the respondents to fill up the vacancy till the year 1988 when the advertisement was specifically made to fill up vacancy only up to 1986. Thus, the petitioner has become the beneficiary of the delay caused by the respondents and a direction was issued to fill up the vacancy till 31.12.1988 instead of confining it to the vacancy till 1986 as advertised in the advertisement of the year 1985.

41. Having held as aforesaid, this court is of the considered view that the present case is to be governed by the general principle of law as has been held by the Hon'ble Supreme Court in the case of Ganga Vishan Gujrati (Supra), wherein it has been held in para-45 (already quoted above) that there is a consistent line of precedent of the Hon'ble Supreme Court which follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not born on a cadre and seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. In the said judgment, it has also been held that ordinarily 35 notional seniority may not be granted from back date and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. It has also been held that the seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant Service Rules and this is so because the seniority cannot be given on retrospective basis when an employee was not even born in the cadre and by doing so it may adversely affect the employee who have been appointed validly in the meantime. While applying the aforesaid principle of law, the petitioner having been born in the cadre in the year 1998 cannot be placed senior to the private respondents who were validly appointed prior to the petitioner in the year 1995-96.

42. So far as the claim of the petitioner with regard to one Nand Kishore Mishra is concerned, this Court finds that it is not clear from the records as to whether Nand Kishore Mishra was an appointee from the first select list of the year 1990 to fill up vacancies up to 1986 as per the advertisement or was an appointee pursuant to the subsequent select list, under which the petitioner has been appointed in the year 1998 to fill up vacancies up to the year 1988. The counter-affidavit of the private respondents shows that there were another set of appointees pursuant to the advertisement No. 13/1987. The petitioner has not brought on record the select list pursuant to which the petitioner or Nand Kishore Mishra were appointed to demonstrate that both the petitioner and Nand Kishore Mishra were appointed from the same select list. The gap between appointment of the petitioner appointed on 08.09.1998 (annexure-2) and Nand Kishore Mishra appointed on 25.08.1996 is totally unexplained. The appointment letter of Nand Kishore Mishra is also not on record to ascertain the terms and conditions of appointment. As per the letter of appointment of the petitioner, he has been appointed from the date of joining. In the counter-affidavit, the merit position of Nand Kishore Mishra in the merit list has been projected as 154/85 and admittedly 309 persons were appointed pursuant to the first select list from the merit list so prepared. Thus, the petitioner has not been able to satisfy this court 36 that Nand Kishore Mishra is similarly situated as that of the petitioner. Otherwise also, no relief can be granted to the petitioner on the basis of merit position of Nand Kishore Mishra when the petitioner is not otherwise found entitled in law to the relief as prayed for in the writ petition as held above.

43. Accordingly, the claim of the petitioner that he should be placed immediately after the appointees from first merit list of the year 1990 and thus, the prayer of the petitioner to give seniority to him retrospectively from the year 1990, is devoid of any merit, hence rejected.

44. It has also been brought on record by the private respondents that another advertisement being Advertisement No. 13/1987 was issued for the purpose of appointment of Assistants in the Secretariat, but the petitioner has not referred to the Advertisement No. 13/1987. The appointees of Advertisement No. 13/1987 have been placed in the impugned seniority list from serial Nos. 615 to 659 and if the claim in the present writ petition is allowed to stand, then the writ petitioner would rank senior to appointees of Advertisement No. 13/1987 also, but none of them have been arrayed as party respondent in the writ petition.

45. The respondents have brought on record the final seniority list published by the State of Bihar in the year 2005 and the same was circulated vide Letter No. 1221 dated 20.07.2005 by the Personnel, Administrative Reforms and Rajbhasha Department, Government of Bihar. The said seniority list pertained to the combined State of Bihar and Jharkhand and assumes importance as the petitioner as well as private respondents were appointed prior to creation of the State of Jharkhand. In this Seniority list also admittedly, the private respondents have been placed above the petitioner, but the petitioner never challenged the same before the court of law and merit position amongst the appointees from examination conducted under advertisement of the year 1985 was never under challenge. However, this court has determined the core issue of applicability of the aforesaid rules/circulars relied upon by the petitioner and having 37 rejected the claim of the petitioner on merits, nothing further is required to be said about the seniority list published in the year 2005 by the State of Bihar.

46. As a cumulative effect of the aforesaid findings, the issue framed in para 28 above, is decided against the petitioner and in favour of the respondents. It is held that the petitioner, being an appointee of the year 1998 [against vacancies after 1986 and up to the year 1988 pursuant to order of the Hon'ble Supreme Court to fill up vacancy up to the year 1988], cannot claim seniority over the private respondents [appointees of the year 1995-96 against advertisement of the year 1993 for vacancies after 1988] and it is also held that the petitioner is not entitled to claim retrospective seniority merely on the ground that the petitioner has been appointed pursuant to participation in the examination conducted pursuant to advertisement of the year 1985.

47. Accordingly, this writ petition is dismissed.

48. Pending interlocutory application, if any, is closed (Anubha Rawat Choudhary, J.) Mukul

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