GAYA PRASAD PANDEY AND ANOTHER Vs. THE STATE OF BIHAR AND OTHERS

JUDGEMENT

(1.) - The petitioners who were directly recruited to and are members of the junior branch of the Bihar Finance Service (hereinafter called as 'the Service') have filed this application for quashing Annexure 6 to the petition whereby on 30th of Dec., 1971, the State of Bihar, respondent no. 1, amended Rules 6 and 39 of the Bihar Finance Service Rules, 1953 (hereinafter referred to as 'the Rules') and added a new Rule 39A to the Rules. Respondent nos. 2 to 19 are also members of the junior branch of the service, but they were appointed on promotion. As it appeared from the arguments advanced by learned counsel for the parties, the real contest was as to the amendment of Rule 39 only. Before the amendment Rule 39 read as follows:-

(2.) The petitioners were appointed on probation to the junior branch of service by the notification dated 2nd of Feb., 1957 (Annexure 1 to the petition) on the basis of a competitive examination held in the month of Dec., 1955. Respondents 2 to 7 were temporarily appointed to the junior branch of the Service by notification dated 12th of April, 1956 (Annexure 3 to the petition). The petitioners were confirmed in the junior branch of the Service by notification dated 20th of June, 1960 (Annexure 2 to the petition). Respondents 2 to 7 were substantively promoted to the junior branch of the Service with effect from 16th of Sept., 1960 and put on probation by a notification of the very date (Annexure 4 to the petition). Respondents 8 to 19 were also promoted to the junior branch of the Service and put on probation with effect from the same date, the 16th of Sept., 1960 by another notification of the date (Annexure 5 to the petition). They (respondents 8 to 19) were confirmed on various date after 19th of Sept., 1962. In the gradation list prepared by respondent no. 1, the petitioners were shown below respondents 2 to 19. When various representations made by the petitioners were not successful, they filed Civil Writ Jurisdiction Case No. 4 of 1968 before this Court. That was disposed of by order dated 4th of Dec., 1968 (reported in, A.I.R. 1969 Patna 311). The application was allowed, the gradation list showing the petitioners junior to respondents 2 to 19 was quashed and respondent no. 1 was directed to reconsider and fix their seniority according to the provisions embodied in Rule 39, as it then stood, on the basis of the date of their confirmation. Thereafter respondent no. 1 filed petition for leave to appeal to the Supreme Court and the same was dismissed. Then it filed petition for special leave for appeal to the Supreme Court which was finally heard after notice to the petitioners and was dismissed by the Supreme Court on 15th of Oct., 1971. During the pendency of the petition for special leave before the Supreme Court, there was no order staying the operation of the judgment passed by this Court. Then came the impugned amendment.

(3.) The case of the petitioners is that the impugned rules were promulgated only in order to illegally confer seniority to respondents 2 to 19 over the petitioners which they were held not entitled to on the basis of the rules contained in Rule 39 of the Rule in utter disobedience by the State Government of the judgment and orders of this Court dated 4th of Dec., 1968. The whole purpose of the amendment of the rule retrospectively was to validate the seniority list which was declared invalid by this Court. This was being done to favour mala fide a few of the officers similarly situate as the petitioners and was beyond the competence of the rule making authority. The amendment of the rule is an attempt to take away the rights of seniority vested and declared by the court of competent jurisdiction of the petitioners in violation of their fundamental rights guaranteed by Articles 14 and 16(1) of the Constitution of India and to disregard the decision of this Court. The impugned amendment was a colourable exercise of powers by the Government and mala fide.