Pramath Patnaik, J. - (1.) In the captioned writ application, prayer has been made for direction upon the respondents to prepare the final gradation/seniority list of Excise Sub Inspector posted under Excise Department, Government of Jharkhand after due consideration and upon appropriate decision on the objections made to the Draft Provisional Seniority Gradation list dated 17.12.2008 including the objection dated 17.01.2009. Further prayer has been made for direction commanding upon the respondents to prepare final seniority/gradation list of Excise Sub Inspectors posted under Excise Department, Government of Jharkhand upon properly fixing the seniority of the petitioner by placing the petitioner considering the marks obtained by the petitioner in the 04th Intermediate Level Competitive Examination conducted by the State Public Service Commission and accordingly, the name of the petitioner may be placed at appropriate position i.e. just after Om Prakash Tanti, who obtained 191 marks in the 4th Intermediate Level Competitive Examination as petitioner who obtained 188 marks in the 4th Intermediate Level Competitive Examination and the Excise Sub Inspectors as Shri Shailesh Kumar whose name appears after Shri Om Prakash Tanti in the provisional gradation list having obtained 187 marks in the 4th Intermediate Level Competitive Examination.
(2.) The facts in brief are that in the year 1980, Bihar Public Service Commission issued an advertisement inviting application for holding competitive examination for direct recruitment of non-gazetted posts like Excise Sub Inspector etc. The petitioner being eligible and qualified submitted the application and appeared in the said competitive examination. Before publication of result, the Commission was requested to send recommendation for direct recruitment against 45 posts of Excise SubInspectors only. As against the advertised 45 posts, 50 per cent of the total posts belonging to the reserved category and the petitioner belonging to the General category could not be appointed. Being aggrieved by the nonappointment, the petitioner approached the Hon'ble Patna High Court in C.W.J.C. No. 227 of 1987. The said writ petition and another writ petition seeking similar relief was filed bearing C.W.J.C. No. 3873 of 1986 (R). Vide common judgment dated 28.10.1992, both the writ applications were allowed and the Hon'ble Court directed the respondents to take steps for appointment of the petitioner, if they otherwise, qualify for these posts. In spite of the order passed by the Hon'ble Patna High Court, since the same was not complied, the petitioner filed Contempt being M.J.C. No. 1014 of 1994 (R). During pendency of the contempt application, the respondents recommended the name of the present petitioner for appointment on the post of the Excise Sub-Inspector and after more than 5 years, since the date of disposal of C.W.J.C. No. 227 of 1987 (R) and after more than one year, since the recommendation made by the Commission for appointment, the petitioner was appointed on the post of the Excise Sub-Inspector. After joining on the said post, the petitioner was posted at Giridih and subsequently posted at Palamau-cum-Latehar. Since the petitioner was not placed in the appropriate position in the seniority list of the Excise SubInspector, an application was made by him for necessary correction in the seniority list. The petitioner claimed for necessary correction in the seniority list by placing the petitioner in the appropriate position on the basis of the marks obtained by him in the competitive examination held by the Commissioner. A provisional gradation list of Excise Sub-Inspector working/posted under the Excise & Prohibition Department, Government of Jharkhand was published and circulated vide letter dated 17.12.2008, issued by the Deputy Commissioner (H.Qr.), Jharkhand, Ranchi and the said letter was received by the petitioner on 15.01.2009. The name of the petitioner found place at Serial No. 43 in the said list. Vide letter dated 17.01.2009, the petitioner submitted his objection to the head of the concerned office regarding the Draft provisional seniority list, praying therein, to place the name of the petitioner at Serial No. 12 instead of Serial No. 43 on the basis of the merit list of 04th Intermediate Level Competitive Examination, 1980, since Shri Om Prakash Tanti at Serial No.11 obtained 191 marks and Shri Shailesh at Serial No. 12 obtained 187 marks, whereas, the petitioner has secured 188 marks in the aforesaid examination. The petitioner, thereafter also submitted several applications including reminders. During pendency of the writ application, a Draft provisional seniority list was published for preparation of the seniority list of Excise Sub-Inspector, which has been brought on record by way of a supplementary affidavit. Further during pendency of the writ application, the State of Jharkhand has notified Rules governing the service conditions of the employees of the Excise Department. Being aggrieved by the non-placement in the appropriate position in the seniority list, in spite of the objection/representations submitted by the petitioner, the petitioner has been constrained to approach the Court under Article 226 of the Constitution of India for redressal of his grievances.
(3.) Learned counsel for the petitioner submitted with vehemence that the action of the respondents in not rectifying the position of the petitioner in the provisional Gradation list of the Excise Sub-Inspector amounts to unfair and unreasonable action of the respondents. Learned counsel further submits that on perusal of Rule 12 read with Rule 10 (vi) of the Rules, meant for the employees of the Excise Department, it would be apparent that the seniority is decided according to the merit list prepared by the Commission. Learned counsel has referred to the decision rendered in the case of State of U.P.- versus-Rafiquddin and others, 1988 AIR(SC) 162, wherein, the Hon'ble Supreme Court has been pleased to inter alia, hold that the seniority in Service is determined on the basis of the year of competitive exam irrespective of date of appointment and the inter se seniority of candidates recruited to the service is determined on the basis of their ranking in the merit list. Therefore, the learned counsel for the petitioner further submits that since the petitioner had secured marks less than Om Prakash Tanti, he should be placed just below the seniority list of Om Prakash Tanti and accordingly, the Gradation list be rectified.;