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CASE NO.: Appeal (civil)  4760 of 2006

PETITIONER: Suresh Chandra Jha

RESPONDENT: State of Bihar & Ors

DATE OF JUDGMENT: 10/11/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising Out of S.L.P. (C) No. 23063 of 2003

ARIJIT PASAYAT, J.  

       Leave granted.

       Challenge in this appeal is to the legality of the judgment  rendered by a Division Bench of the Patna High Court.  By the  impugned judgment the Division Bench set aside the  judgment rendered by a learned Single Judge who had  quashed the notification dated 31.1.1991 issued by the State  Government purportedly issued under the Bihar Private  Engineering College (Control Ordinance) 1986 (in short  ’Ordinance’) which was subsequently replaced by the Bihar  Private Engineering College Control Act 1990 (in short the  ’Act’).  The appellant had questioned the legality of Section 5(3)  of the Ordinance/Act which was accepted by learned Single  Judge.  But the Division Bench by the impugned judgment  upset judgment of learned Single Judge.   

       Background facts in a nutshell are as follows:

       In response to the advertisement for appointment to the  post of Assistants in the Dr. Joggnath Mishra Institute for  Technology (a private institution hereinafter referred to as the  ’Institute’) appellant and several others applied for the said  post.  After selection at a test conducted, 5 persons were  appointed and the appellant was one of them.  Appellant was  appointed vide order dated 18.7.1981 and was given six weeks  time from the date of issue of the letter to report for duty to  the office of the General Secretary, Mithila Vikas Sansthan  Laheriasarai, Darbhanga/Director of the Institute at  Darbhanga.  In case of respondent no.8 P.K. Choudhary, the  appointment letter was dated 22.7.81 and he joined on the  same day.  The appellant who claims to have received the  appointment letter on 23.7.81, in fact, joined on 24.7.81.  At  this juncture, it is to be noted that though in the appeal,  challenge was made to the appointment of respondent no.7,  the same was not pressed.  On the basis of Section 5(2) of the  Act and in purported exercise of powers under Section 5(3) of  the Act, respondent no.8 was retained in service while the  appellant was not retained. The appellant questioned  correctness of the procedure adopted.  When there was no  positive response, the writ petition was filed before the Patna  High Court which was allowed by learned Single Judge.  It was  noted by the learned Single Judge that the order dated  31.1.1991 issued by the State Government absorbing in

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service of some of the respondent was contrary to law. It was  noted that the procedure of determining as to who had joined  the college earlier was wrong. It was pointed out that  admittedly selection was on 18.7.1981 and six weeks time was  granted for joining.  Merely because of fortuitous  circumstances, respondent no.8 joined earlier that cannot be a  ground to make him senior to the appellant, though in the  merit list prepared appellant was ranked 20 while respondent  no.8 was ranked 43.  The learned Single Judge accepted the  stand.  In the appeal filed by respondent no.8, different view  was taken by the Division Bench. It was held that the seniority  is to be reckoned on the basis of the date of joining.  According  to High Court the logic of last-come first-go was applicable  and, therefore, appellant who has joined later was to be  treated as junior to respondent no.8.  

       Learned counsel for the appellant submitted that the  view taken by the Division Bench is clearly contrary to law.  If  there are no rules governing the field, it is the placement in  the merit list which is determinative and not the date of  joining.  It is accepted that no rules had been framed and,  therefore, the merit as appearing in the rank list has to be  taken.

       In response, learned counsel for the respondent  submitted that right from 1981, respondent no.8 has worked  and he having joined earlier has to be treated as senior to the  appellant.         There is no dispute that the appellant was ranked higher  to respondent no.8. There is also no dispute that in the  appointment letter the appellant was given six weeks time to  join.  Merely because respondent no.8 joined earlier that did  not in any way affected the merit placement.   

       This Court in Chairman, Puri Gramya Bank and Anr. v.  Ananda Chandra Das and Ors. 1994 (6) SCC 301) held as  follows: "This appeal arises from the Judgment of the  High Court of Orissa in O.J.C. No. 1007/88,  dated March 4, 1992. The respondent and  others were selected by direct recruitment as  managers of Rural Bank. His rank was No. 9  in the merit list. He was directed to be given  seniority on the basis of the date of his  reporting to duty. It is reported that the first  respondent is dead. The only question in this- case is that what shall be the ranking among  the direct recruits? Is it the date on which they  joined duty or according to the ranking given  by the selection board? On comparative  evaluation of the respective merits of the  candidates for direct recruitment, the Board  has prepared the merit list on the basis of the  ranking secured at the time of the selection. It  is settled law that if more than one are  selected, the seniority is as per ranking of the  direct recruits subject to the adjustment of the  candidates selected on applying the rule of  reservation and the roster. By mere fortuitous  chance of reporting to duty earlier would not  alter the ranking given by the Selection Board  and the arranged one as per roster. The High  Court, is, therefore, wholly wrong in its  conclusion that the seniority shall be  determined on the basis of the joining reports

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given by the candidates selected for  appointment by direct recruitment and length  of service on its basis. The view, therefore, is  wrong. However, we need not interfere with the  order, since the first respondent has died."

                                               (Underlined for emphasis)

       Since there was no rule in operation, obviously the  ranking in the merit list was to decide the respective seniority.   The ratio in Chairman, Puri Gramya Bank’s case (supra) has  full application to the facts of the case. Appellant’s claim that  he was to be treated as senior to the respondent no.8 was  rightly accepted by learned Single Judge. Unfortunately, the  Division Bench did not address itself to the specific question  and has placed undue stress on the respondent no.8 having  joined earlier.  

Therefore, the judgment of the Division Bench is set aside  and that of the learned Single Judge is restored.  We have,  however, make it clear that the appellant will not be entitled to  any salary for the period during which the respondent no.8  has worked. For all other service benefits, the period in  question shall be reckoned. The official respondents shall  explore the possibility of absorbing respondent no.8 to the  suitable post considering the fact that for nearly quarter of the  century he has rendered services.  The payment made to him  shall not be recovered.   

       The appeal is allowed to the aforesaid extent with no  order as to costs.