MAJOR YOGENDRA NARAIN YADAV Vs. BINDESHWAR PRASAD

JUDGEMENT

(1.) Leave granted in the special leave petitions.

(2.) These appeals have a chequered history. But it is not necessary to burden the judgment with minute details of the entire history of the case. Suffice it to state that Major Yogendra Narain Yadav, the appellant in the main appeal, was a Short Service Commissioned Officer in the Army as Engineer and was appointed on 15/4/1963 and was released from the Army on 25/10/1970. Pursuant to an advertisement for appointment to a post of a temporary Assistant Engineer made in 1973 he was selected by the public service commission and was appointed to that post on 29/7/1974. The government of Bihar had issued a circular dated 21/6/1969 in which it was stated that 30% of the posts of permanent as well as temporary engineers were available to the demobilised Army officers and the date of entry into the State Service would be the date of their attaining the age of eligibility for appointment in the military service or actual date of entry, whichever is later. Pursuant thereto, the appellant made a request by a memorandum to the government to consider his case for permanent post available to the demobilised officers and appoint him to that post with effect from the date on which he joined the Army as a Commissioned Officer. Request was acceded to and an order came to be passed by proceedings dated 6/12/1977 giving him the date of his permanent appointment for the purpose of seniority in terms of the government Circular dated 21/6/1969 with effect from 15/4/1963. Thus he became a permanent Assistant Engineer in Bihar Roads and Buildings Department, which was formerly known as Public Works Department.

(3.) The question arose whether he would be senior to the respondents. After giving him the notional date, he was promoted to the post of Executive Engineer. It appears that the respondents filed a writ petition in the High court which is the subject-matter of CA No. 1394 of 1991. There was a difference of opinion between two learned Judges and consequently reference to a third learned Judge was made. It was held per majority that the appointment of the appellant as Executive Engineer without considering the claims of the respondents was not correct in law. Pending appeal, this court had given direction to the government by order dated 1/4/1991 thus: