M.Y.EQBAL, J. - (1.) IN this writ application the petitioner has prayed for quashing the order dated 4.4.1994 whereby the Member Board of Revenue Bihar, Patna set aside the order of the Commissioner and allowed the appeal filed by respondent No. 5 and held that respondent No. 5 is senior to the petitioner.
(2.) THE petitioner 'scase is that he was appointed as Lower Division Assistant on 14.4.1956 and was promoted to Upper Division Clerk in 1961. In 1973 when Giridih district was bifurcated from Hazaribagh District, the petitioner was promoted as Selection Grade Assistant w.e.f. 1973 and his services was transferred to Giridih District. He was confirmed on the post of Upper Division Clerk and on the post of Selection Grade Assistant on 29.8.1978 and 1.10.1978 respectively. The petitioner said to have passed accounts examination in 1961 and was promoted to Super Selection Grade on 1.4.1981. According to the petitioner respondent No. 5 jointed on the post of Lower Division Assistant on 29.6.1955 and passed accounts examination on 24.11.1963 and hence he was promoted to the post of Upper Division Clerk on 23.5.1964. Respondent No. 5 was given Selection Grade and Super Selection Grade in 1978 and 1981 respectively and as such he is all along remain junior to the petitioner. In the year 1990 a seniority list was prepared in which the petitioner 'sname appeared at serial No. 7 where as the name of respondent No. 5 appeared at serial No. 10. Respondent No. 5 never filed any objection to the seniority list. However, on the basis of belated representation filed by respondent No. 5 the Deputy Commissioner vide his order dated 28.8.1992 modified the seniority list and directed that the respondent No. 5 shall be treated as senior to the petitioner. The Deputy Commissioner after modification of seniority list promoted respondent No. 5 to Super Time Scale in 1992 without considering the case of the petitioner. The decision of the Deputy Commissioner was set aside by the Commissioner, North Chotanagpur Division, Hazaribagh by his order dated 26.7.1993 but the said order was ultimately set aside by the Member Board of Revenue by passing the impugned order. The respondent No. 5 in his counter affidavit has stated that he was appointed on the post of Lower Division Clerk much earlier than that of the petitioner. It is only because the petitioner cleared his accounts examination prior to respondent No. 5 he has been claiming seniority over him. It is contended by respondent No. 5 that he was granted promotion on passing preliminary accounts examination and according to the guidelines laid down by the State Government, if the senior clerk passed the accounts examination within two years from the date of grant of promotion to the junior clerk, then the junior clerk has to be reverted and the senior clerk has to be restored back to his seniority.
(3.) SIMILAR is the stand taken by the respondent -State in the counter affidavit that respondent No. 5 cleared the accounts examination on 24.11.1963 i.e. well within two years period as laid down in the rule and therefore, he was eligible to be promoted as Upper Division Clerk on his passing the accounts examination after reversion of his junior i.e., the petitioner. It is contended that the action of the respondents State is perfectly in accordance with law.;