- (1.) JUDGMENT Heard learned counsel for the parties.
(2.) THIS Letters Patent Appeal is preferred by the private respondents as well as by the State Government to challenge the judgment dated 23rd June 2010 passed in W.P.(S) No. 2325 of 2007, whereby the writ petition of the petitioner was allowed and the provisional gradation list dated 19th March 2007 and final gradation list dated 11th February 2009 of the Diploma Engineers in the Road Construction Department of the State Government, have been quashed and the respondent authorities were directed to prepare a fresh final seniority list of the Junior Engineers of the concerned Department by applying the procedure laid down in the Circular Dated 17th June 1975 issued by the Department. Facts of the case are that in view of the long unemployment of the Diploma Engineers, a cabinet decision was taken on 9th January 1979 so as to give appointment to some of the Junior Engineers and for that purpose, some guidelines were framed. Gist of the guidelines have been conveyed vide order dated 28th February 1979 issued from the Department of Labour, Employment and Training Department, Government of Bihar and it was circulated to the various departments. In the guidelines, it has been mentioned that for the purpose of appointment on the post of Junior Engineer from the candidates of Diploma and Degree holders, percentage of marks obtained in the final year of the Diploma / Degree will be the percentage of marks allotted for the purpose of appointment. In addition to the above marks, further three marks would be allotted to the candidates for the each year which they have passed since their last technical centre examination. Meaning thereby the candidate will get 03 marks for one completed year and this can be up to 20 marks and it has been further explained by giving mode of counting of "idle marks  in the communication dated 28th February 1979 that, in a case a candidate obtained 70 percent marks in the final examination and his case is considered for appointment after four years of his passing final examination, then he will get 4 x 3 marks in addition to his 70 percent marks, which will make him having 82 marks and this way maximum 20 marks can be awarded. It was also made clear in the communication dated 28th February 1979 that the appointment shall be made without any interview or any other further inquiry. But this selection shall be without there being any further process of judging the merit of any person.
(3.) IN pursuance of the communication dated 28th February 1979, 676 posts were advertised. However, against these posts, only 237 candidates got appointment. Appointment letters were issued on 09th December 1982 and along with the general order for appointment, a list of the employees who were selected for appointment, was annexed. In this list, column no. 2 has heading merit (Yogyata). In this list, writ petitioners' names were below the names of appellants non petitioners in the writ petition. As we have already noticed that this appointment was because of the reason that there was no appointment given for the past number of years and therefore, to meet the grievances of the Diploma / Degree holders, Engineers, this procedure was adopted for making ad -hoc appointment without getting recommendation from the State Public Service Commission. These appointments were only for six months. However, these appointments continued and ultimately on 29th October 1986, an Ordinance was issued for regularization of the services of the various Engineers including the selected 237 candidates. A consequential order was issued by the Government on December 1986 regularizing the services of all 237 employees from the date of their initial appointment. Along with this order of 8th December 1986, the list of employees was also enclosed. In this list of employees, writ petitioners were shown above the present appellants. This placement was not challenged by the appellants and thereafter, in the year 1993, 1996, 2001 and 2002 provisional gradation lists were published, but those gradation lists were not challenged. However, it is the case of the appellants that they submitted representation against this gradation list so as to get seniority above the writ petitioners and their those representations were rejected but admittedly said lists were never challenged in Court.;