BINDESHWARI RAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) Special leave granted.

(2.) This appeal has been preferred against the judgment dated 20/04/1988 of the Patna High court dismissing a writ petition filed by the appellant challenging a seniority list. Necessary facts in brief are these: The appellant and respondents 7 to 13 are Assistant Conservators of Forest in Bihar Forest Service. Their service conditions are governed by the Bihar Forest Service Rules, 1953 (hereinafter referred to as 'the Rules') made by the government of Bihar in exercise of the powers conferred on it by the proviso to Article 309 of the Constitution of India. According to Rule 2 (vii) of the Rules "the service" means the Bihar Forest Service. Rule 3 provides that the appointments of the service shall ordinarily be made by (a) direct recruitment in accordance with the rules in Part II of these Rules by competitive examination to be held by the Commission; and (b) by promotion in accordance with the rules contained in Part V of selected rangers specified therein. The appellant and respondents 7 to 12 were selected rangers and were appointed as Assistant Conservator of Forest by promotion under Rule 3 (b). As is apparent from the counter-affidavit on behalf of respondents 8 to 10, respondent 11 was promoted as Assistant Conservator of Forest on 21/12/1976, respondents 7, 8, 9 and 1 2/11/1977 and respondent 10 on 15/12/1978. Insofar as the appellant is concerned, even though, he was appointed subsequently, his appointment was made effective retrospectively from 29/11/1977. Respondent 13 on the other hand, as is apparent from the seniority list which was challenged by the appellant, was appointed under Rule 3 (a) of the Rules by direct recruitment on 3/05/1978. The counter-affidavit further indicates that respondent 13 was confirmed as Assistant Conservator of Forest on 30/06/1983. Respondents 7 to 11 were confirmed on 30/08/1983 and respondent 12 was confirmed on 5/08/1986 whereas the appellant was confirmed on 31/12/1986. In the said counter-affidavit, the dates of appointment as rangers of respondents 11,7,8,9, 10, 12 and the appellant respectively are stated as 3/04/1958, April 4, 19 5/04/1958, April 9, 19 5/04/1959, April 1, 1966 and 2/04/1967. Even though a rejoinder has been filed by the appellant, the correctness of the aforesaid facts has not been denied therein nor has it been urged by the learned counsel for the appellant before us that these facts are inaccurate. It is on the basis of these facts, therefore, that the respective submissions made by learned counsel for the parties have to be considered.

(3.) It has been urged by learned counsel for the appellant mainly relying on a memorandum to the Cabinet dated 24/11/1977 which contains a note that if the appellant was found fit for promotion by the selection committee, his place will be above 10 general category rank officers mentioned therein, that in the seniority list the name ofthe appellant should have been placed above those officers. According to the learned counsel for the appellant the memorandum was approved by the Cabinet on the same date and yet in the impugned seniority list the aforesaid direction was not carried out. For the respondents, it was urged that the Cabinet had not approved the memorandum in its entirety. In our opinion, however, it is not necessary to go into this controversy. It was on the above premise that the writ petition challenging the seniority list was filed by the appellant in the High court and according to his learned counsel, the High court committed an error in dismissing the same.