AWADH PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Arguments heard. Special Leave granted.

(2.) This appeal on Special Leave is directed against the Judgment and Order dated April 1, 1987 passed by the High Court, Patna in C.W.J.C. No. 4097/1985 allowing the writ petition in part. The subject matter of the writ petition is 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 (respondents in this Appeal) who were promoted visa-vis the respondents Nos. 3 and 4 (appellants in this appeal) who are promoted to posts of Inspectors of Excise in 5% quota for promotion from the posts of Upper Division Assistants of Excise Department in the said Civil Writ Petition.

(3.) The matrix of this case in short is that the appellants Nos. 1 and 2 who were respondents 3 and 4 of the writ petition were promoted to the posts of Excise Inspectors from among the Upper Division Assistants of the Excise Department against the vacancies of the year 1974-75 and they joined as Inspectors of Excise on May 7, 1976. The respondent Nos. 3 and 4 who were Sub-Inspectors of Excise were promoted on 24-4-74 in the vacancy of the year 1974-75 by the Commissioner of Excise, Bihar. In the gradation list prepared by the Government on January 9, 1986 the appellants were shown as seniors to the respondents even though the respondents were promoted from selected Sub-Inspectors of Excise and they joined the posts of Excise Inspectors earlier than the date when the appellants were promoted as Excise Inspectors. This has been challenged by the respondents on the ground that there is an apparent error committed by the State in showing the respondents juniors to' the appellants in the gradation list. The gradation list was challenged mainly on two grounds namely (1) the State Government has no jurisdiction to determine the seniority of Excise Inspectors and the only competent authority for determing the same was the Excise Commissioner who has neither determined the seniority nor prepared the gradation list. (2) That respondents (petitioners of the writ petition) have continuously officiated for years together in the vacancy of direct recruits and merely because the respondents were appointed against the vacancy of direct recruits they could not be pushed down for determining the seniority and shown junior to the contesting appellants. The writ petition was allowed by the High Court holding that the respondents were not appointed in the 5% quota set apart for being filled up by promotion from the posts of Upper Division Assistants in the Excise Department in as much as this quota was notified by the Government on March 31, 1975 even though the Government passed order providing 5% of the total vacancies to be filled by the promotion from among the selected Upper Division Assistants and selected Head Clerks. It has, therefore, been contended that the petitioners Nos. 3 and 4 (respondents Nos. 3 and 4 in this appeal) cannot be shown as juniors to the appellants. Moreover it has been alternatively urged that these respondents having been promoted to the posts of Inspectors of Excise in the quota of direct recruitment for several years, they could not be pushed down and the appellants who joined on promotion to the posts of Inspectors of Excise subsequently cannot be shown as senior to the respondents Nos. 3 and 4 in the said gradation list. The High Court, Patna after hearing the parties held that the respondents Nos. 3 and 4 who were appointed in the vacancies of the promotees of the year 1974-75 and who joined as Inspectors on 24-4-1974 cannot be made juniors to appellants Nos. 1 and 2 who were promoted and joined two years later on 7-5-1976. The High Court allowed the writ petition in part by quashing the gradation list (Annexure 15) and directed the Government to draw up a fresh gradation list in the light of observations made therein.