- (1.) These two appeals by special leave arise out of the judgment rendered by a division bench of the Patna High court in Civil Writ Jurisdiction Case No. 2223 of 1987 decided on 16/3/1988. The High court has allowed the writ petition of the writ petitioners. Two batches of the aggrieved respondents concerned have filed the present Civils.
(2.) The short facts leading to these proceedings deserve to be noted at the outset. The appellants and the original writ petitioners who are respondents in these appeals belong to the Bihar Finance Service. The Bihar Finance Service was originally consisting of two branches, namely, the Senior Branch and the Junior Branch. As per the Bihar Finance Service Rules, 1953 framed under Article 309 of the Constitution of India, seniority was to be reckoned from the date of the substantive appointment of the incumbent concerned. The appellants herein were appointed to the Junior Branch while the original writ petitioners were appointed as direct recruits in the Senior Branch. So far as the original writ petitioners, respondents herein, are concerned, some of them were directly recruited and appointed in the Senior Branch on 12/5/1974 and rest of the original writ petitioners were appointed as direct recruits on 25/5/1974. The State government of Bihar decided to merge the different cadres existing in the Civil Services, Finance Service and Education Service. Accordingly, by a government resolution issued by Finance (Commercial Taxes) Department dated 1/4/1975, the State government decided that both the Senior and Junior Branches of the Bihar Finance Service be merged. The merger of Junior and Senior Branches was to be effective from 1/4/1974. It is pertinent to note that prior to the aforesaid decision regarding the merger of two branches, the Bihar Finance Service Rules, 1953, which were statutory rules, were framed under the proviso to Article 309 of the Constitution of India. Rule 3 indicated that the members of the Senior and the Junior Branches of the Bihar Finance Service shall have gazetted rank and as per Rule 5 of the said rules one of the sources of recruitment to the Senior Branch was by promotion according to Rules in Part IV from the Junior Branch. Thus prior to the government resolution of 1/4/1975, a person belonging to the Junior Branch in Bihar Finance Service could aspire to reach the Senior Branch by way of promotion. So far as the appellants are concerned, by government notification dated 2/11/1975 (Annexure 5 to the special leave petition) 102 officers belonging to the Junior Cadre of the Bihar Finance Service were appointed in the Senior Branch with effect from 1/4/1974. That was done as a result of the aforesaid merger of the Senior Branch and the Junior Branch of the Bihar Finance Service. The appellants are covered by the said government notification dated 2/1 1/1975. As per the said government notification they were appointed w. e. f. 1/4/1974though the order appointing them was passed on 2/11/1975. They claimed seniority in the merged cadre of erstwhile Junior and Senior Branches w. e. f, 1/4/1974. They contended that as the original writ petitioners, respondents herein, were directly recruited to the erstwhile Senior Branch on 12/5/1974 and 25/5/1974 respectively, they have to be treated as junior to the appellants who got appointed retrospectively on 1/4/1974. The claim of the appellants was tentatively accepted by the State of Bihar and a provisional gradation list was issued by the State of Bihar placing the appellants higher to the respondents in the list. Objections to the said provisional gradation list were also invited. The contesting respondents direct recruits of the 21st Combined Competitive Examination filed the aforesaid writ petition in the Patna High court for quashing the provisional gradation list. It may be mentioned at this stage that earlier the Patna High court in Writ Petition Nos. 4827 of 1984 and 2335 of 1982 in the case of Kartik Charon Jha v. Staler decided on 8/4/1986 had held that on account of merger of the Junior Branch and the Senior Branch in the Bihar Finance Service with effect from 1/4/1974, the seniority of these mergees had to be reckoned from the date of the merger of these branches i. e. 1/4/1974 vis-a-vis the direct recruits to the Senior Branch who had to reckon their seniority from the dates of their appointments. Against this decision a special leave petition was unsuccessfully carried to this court and the same was dismissed on 13/8/1986 by a non-speaking order. It is thereafter that the aforesaid impugned provisional gradation list was prepared by the State of Bihar which came to be challenged in Writ Petition No. 2223 of 1987, as aforesaid, by the direct recruits. A division bench of the Patna High court after hearing the writ petitioners and the contesting respondents came to the conclusion that as the direct recruits were appointed to the Senior Branch of the Bihar Finance Service on 12/5/1974 and 25/5/1974 respectively while the appellants were appointed to the merged cadre on 2/11/1975 and as their appointments could not be made retrospectively with effect from 1/4/1974 nor could merger of the two branches of the two cadres be effected retrospectively from 1/4/1974, the seniority of the respondents had to be reckoned from 12/5/1974 and 25/5/1974 respectively while the seniority of the appellants had to be reckoned from 2/11/1975 being the date on which they were appointed to the merged combined cadre of the Senior Branch of the Bihar Finance Service. Accordingly, the writ petition was allowed. The placing of Respondents 4 to 61 who were in erstwhile Junior Branch above the respondents in the gradation list was held to be invalid and violative of Articles 14 and 16 of the Constitution. The respondent-State of Bihar was directed to make necessary corrections in the gradation list in the light of the High court's judgment. As noted earlier it is this judgment of the division bench of the Patna High court that is impugned in these two appeals.
(3.) As both these appeals arise from the same judgment, the learned counsel appearing in both these appeals for the respective contesting parties addressed common arguments and accordingly these two appeals are also being disposed of by common judgment.;