RAM RAJ RAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an angular service dispute between Dr Ram Raj Ram (hereafter referred to as "dr Ram") on one side and Dr Radheyshyam Sharma (hereafter referred to as "dr Sharma") on the other. Civil Writ Jurisdiction Case No. 6230 of 1989 preferred by Dr Sharma was allowed by a division bench of the Patna high court on 19-12-1990 granting to him the sought for reliefs which affected Dr Ram. Similarly, on the same day, the same division bench dismissed Civil Writ Jurisdiction Case No. 6620 of 1989 preferred by Dr Ram denying to him the mandamus sought on whatever achieved beforehand. Civil Appeal No. 1894 of 1991 has arisen from the former case and Civil No. 1895 of 1991 from the latter; Dr Ram being the common appellant herein; Dr Sharma being a respondent common to both. Thus disposal of these appeals by a common judgment.

(2.) On 11/4/1935, the government of Bihar and orissa made Rules known as the Bihar and orissa Veterinary Service Class I Recruitment Rules, to regulate the conditions of service, pay, allowances and pension of members of the Service. A member of service was to mean a person appointed in substantive or officiating capacity under the provisions of the rules to a post in the cadre of service, but not including a member of the Indian Veterinary Service. Rule 16 thereof provided that the post of the Director of Veterinary Services shall remain outside the cadre of service but subject to the provisions of Rule 17, it may be filled at the discretion of the local government by a member of the Service. Rule 17 (with which we are not concerned presently) provides that a member of the Indian Veterinary Service borne on the cadre of Bihar and orissa shall normally be appointed to the post of the Director, but if none is available, assistance of the government of India was to be sought with a view to procuring a suitable selection from among the members of the Indian Veterinary Service in other provinces before any other person was to be appointed to the post. Thus in a given situation, the post of the Director of Veterinary Services could be filled bya member of the Service; the post all the same remaining outside the cadre of the Service. That was the mandate of the Rule. Recognising the relevance of seniority in the context. Rule 14 provided that seniority in the Service shall be determined by the date of the officer's substantive appointment to the Service irrespective of the pay drawn by him.

(3.) The Rules above-mentioned acquired, if not recognized, statutory character by exercise of the legislative power vested in the governor by government notification reproduced hereafter: "appointment department Appointment File No. 3ls-27 of 1960 Rules under Article 309 of the Constitution of India, 1949. Notification No. 3l-27/50-3555-A, dated the 15/04/1959, by the government of Bihar, Appointment Department. * * * In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the governor of Bihar is pleased to make the following rule, namely: All enactments, rules and. orders, whether made under any enactment or otherwise, which regulated the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs which are now the affairs of the State of Bihar and which were in force immediately before the 26/01/1950, shall until provision is made by or under an Act of the State Legislature to regulate such recruitment and conditions of service, be in force as if they had been made by virtue of the powers made under the said proviso. By order of the governor of Bihar sd/- L. P. Singh, Chief secretary, Bihar"