TARAKA NATH SHARMA Vs. THE STATE OF BIHAR AND OTHERS

JUDGEMENT

(1.) Petitioner has questioned the validity of a notification dated 5.9.1979 issued by the Commissioner of Commercial Taxes, Bihar showing the inter se seniority between the petitioner and respondents 2 to 19 (hereinafter to be referred to as 'the respondents') in the Junior Branch of Bihar Finance Service (hereinafter to be referred to as 'the Service'). In the said notification petitioner has been shown junior to the aforesaid respondents although, according to the Petitioner, he was throughout senior to them. There is no dispute that the petitioner and the respondents were temporarily promoted to the Service from the non -Gazetted rank on 28.7.1969 in accordance with the provisions of rule 20 of the Bihar Finance Service Rules (hereinafter to be referred to as 'the Rules'), on the recommendation of a selection committee constituted under the said Rules and on the advice of the Bihar Public Service Commission (hereinafter to be referred to as 'the Commission'). It has been asserted on behalf of the petitioner that he was given the highest position by the Selection Committee as well as by the Commission. In support of the aforesaid assertion, a copy of the notification dated 28.7.1969, the Minutes of the Selection Committee and the advice of the Commission has been annexed.

(2.) On 29.7.1971 the petitioner as well as the respondents were appointed on probation in the service against the permanent posts retrospectively with effect from the dates they had joined on basis of the aforesaid notification dated 28.7.1969 appointing them on temporary basis in the service. As the petitioner was senior in the initial appointment he was shown the senior -most even in the notification dated 29.7.1971. In view of rules 23 and 24 of the Rules, before confirmation, the petitioner and the respondents had to pass the departmental examination. Respondents, who were junior to the petitioner, passed the departmental examination before expiry of two years from the dates of their joining on basis of notification aforesaid dated 28.7.1969. the petitioner however, passed the departmental examination on 31.12.1971 later than the respondents.

(3.) By the notification dated 5.9.1979, which is under challenge, respondents have been confirmed with effect from the dates they completed the period of two years on probation from the dates of their joining in this service on basis of their initial appointment on 28.7.1969, whereas the petitioner has been confirmed with effect from 31.12.1971, the day he passed the departmental examination although he had completed the period of two years of probation much before that. As the petitioner was confirmed from a later date he has been shown junior to the respondents in the seniority list which is under challenge. According to the petitioner, the said notification is arbitrary and illegal because the seniority of the petitioner in the service cannot be effected merely because the petitioner passed the departments examination required by the Rules after the respondents. The stand of the petitioner is that once he passed the departmental examination and was confirmed, he shall rank senior to the respondents as he was throughout.