SHASHI SHEKHAR PRASAD SINGH Vs. THE STATE OF BIHAR AND OTHERS

JUDGEMENT

(1.) In all these four writ applications the petitioners have challenged the gradation list dated 9.1.1986 of the Inspectors of Excise by which the Government of Bihar has finally fixed the inter se seniority of the petitioners vis -a -vis the contesting respondents. The petitioners in all the writ applications are promotees Excise Inspectors from the cadre of Excise Sub -Inspector. In the first three writ applications all the contesting respondents have been directly recruited as Inspectors of Excise, but in the last writ application out of the contesting respondents, respondent nos. 5 to 11 have been recruited directly as Inspectors of Excise whereas respondent nos. 3, 4 and 12 have been promoted as Inspectors of Excise from the post of Upper Division Assistants in the Excise Department. The petitioners in all the writ applications were appointed and joined the post of Excise Inspectors on dates earlier to the appointment and joining of respondents in all the four cases as Inspector of Excise, but even then the petitioners have been shown as junior to the contesting respondents in the gradation list, referred to above. All the petitioners and all the respondents were confirmed as Excise Inspectors on 23.9.1983. The stand of the State in all the writ applications is that the gradation list has been correctly prepared in accordance with the relevant rules. The petitioners were temporarily promoted as Excise Inspectors in excess of their quota in the vacancy of direct recruits and when the direct recruitment was made, such directly recruited persons ranked senior to the petitioners, i.e., the respondents ranked senior and the promotees in excess of their quota were liable to be pushed down for the purpose of seniority.

(2.) Learned Counsel for the petitioners have challenged the gradation list on two grounds, viz. (i) the State Government has no jurisdiction to determine the seniority of Excise Inspectors and the only competent authority for decrmining the same is the Excise Commissioner which has neither determined the seniority nor prepared the gradation list and (ii) since the petitioners have continuously officiated for years together in the vacancy of direct recruits and merely because the appointment has been made against the vacancy of direct recruits, by appointing the contesting respondents, tile petitioners cannot be pushed down for determining the seniority and shown junior to the contesting respondents.

(3.) It support of the first contention the Learned Counsel has placed before me rules 1 and 4 of the Inspector of Excise Recruitment Rules, 1936 (hereinafter referred to as 'the Rules) which lay down that the Inspector of Excise shall be appointed by promotion of selected Sub -Inspectors of Excise by the Commissioner of Excise. It further lays down that the quota fixed for appointment of Inspectors of Excise by direct recruitment can be relaxed on the recommendation of the Commissioner of Excise. Sec. 2 (7) of the Bihar Excise Act, 1915 (hereinafter referred to as 'the Act') defines the Excise Commissioner to mean the Officer appointed under Sec. 7 (2) (a) of the Act. Sec. 7 (2) (a) lays down that the State Government may by notification appoint an Officer who shall, subject to such control as the State Government may direct for, have the control of the administration of the Excise Department and the collection of excise revenue. Sec. 7 (2) (e) lays down that the State Government may delegate to the Excise Commissioner all or any of the powers conferred upon the State Government by or under the Act, except the power conferred by Sec. 89 of the Act to make rules. Sec. 7 (2) (f) lays down that the State Government may withdraw from any Officer any of the powers conferred upon him by or under this Act. By notifications no. 470 F. dated 15.1.1919 in exercise the of powers conferred under the Act the Lieutenant Governor in Council was pleased to make in clause (ii) of the notification order to the effect that there shall be an Excise Commissioner who shall subject to the general control of the Board will have through out the province of Bihar the control of the administration of the Excise Department and the collection of excise revenue. In clause (iv) of the notification the power to appoint by promotion Inspectors of Excise was delegated to the Excise Commissioner. On a bare perusal of the aforesaid provisions it would appear that the Excise Commissioner is the appointing authority of Inspectors of Excise. It has no where been mentioned in any of these provisions that the Excise Commissioner is vested with the powers of deciding the seniority. The fact that the powers to appoint an Excise Inspector has been only delegated to the Commissioner of Excise by the Mate Government goes to show that the power to decide the seniority of the Inspector of Excise has Dot been vested in the Excise Commissioner and this power has been retained by the State Government. In that view of the matter, the Excise Commissioner has no jurisdiction to determine the seniority of the Inspectors of Excise and the same having been determined by the State Government itself which alone was competent to decide the seniority, the contention raised on behalf of the petitioners must be rejected.