NITYANAND SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this application under Article 226 of the Constitution of India the petitioner -Nityanand Sinha -an officer of Indian Administrative Service (hereinafter to be referred to as the I.A.S. for the sake of brevity) has prayed for an appropriate writ, order or direction to quash the order of the Government of India (respondent No. 2) communicated to the petitioner by annexure 1 and for a further writ, order or direction to be issued to respondent No. 2 to fix the seniority of the petitioner by allotting him the year 1968 in accordance with the relevant rules to be dealt with hereinafter. By the order as contained in annexure 1, the year of allotment assigned to the petitioner is 1973 whereas the petitioner claims that his year of allotment to the I.A.S. cadre legally should be 1968. Although learned Counsel for the parties have dragged on the hearing of this case for quite a number of days, the point involved, to my mind, is neither a complicated nor a vexed one.

(2.) The facts relevant for the disposal of this application may be stated thus. The case of the petitioner is that respondent No. 2 (the Government of India) has fixed the seniority of the petitioner in the I.A.S. cadre as communicated to him in letter No. 13388 dated the 12th of July, 1978 by the under Secretary to the Government of Bihar, respondent No. 1, wherein the petitioner has been assigned 1973 as the year of allotment in that cadre placing him above one Sri Prakash Keshav, a regular recruit of 1974, and below Sri Atul Krishna Biswas (respondent No. 58) a regular recruit of 1973, in the seniority list of Bihar. It is alleged that the seniority of the petitioner in the I.A.S. cadre has been fixed by ignoring the period of his continuous afficiation in senior posts after inclusion of his name in the Select List and thus respondent No. 2 has determined the petitioner's seniority to his prejudice and disadvantage by acting in violation of the provisions of Rule 3(3)(b) of the I.A.S. (Regulation of Seniority) Rules, 1954 (hereinafter to be referred to as the Seniority Rules). The petitioner was appointed to the State Civil Service on 5th February, 1951. He was appointed as an Additional District Magistrate/Deputy Secretary to the State Government on 15th January, 1962. His name was included in the Select List approved on 6th April, 1973. He was appointed to the cadre post after inclusion of his name in the Select List on 26th April, 1973. He had to his credit a continuous officiation in senior posts of Deputy Development Commissioner -cum -Chief Executive Officer, Zila Parishad, Bhagalpur, District Magistrate, Madhubani, and Director, Panchayati Raj, Bihar, from 26th April, 1973 upto the date of notification No. 14015/30/75 -A. I.S. (I) dated 29 -10 -1977 appointing him by promotion to the Indian Administrative Service on 29th October, 1977. Ever since 26th April, 1973 till the date of his appointment to the Indian Administrative Service on 29th October, 1977 he continuously officiated in senior posts as defined under Rule 2(g) of the Seniority Rules. la the supplementary affidavit filed on behalf of the petitioner it has been clearly specified that after inclusion of his name in the Select List the petitioner was appointed to the cadre post of Deputy Development Commissioner -cum -Chief Executive Officer, Zila Parishad, Bhagalpur, by the State Government's notification No. 2934 dated 4th April, 1973 and the petitioner joined this post on 26th April, 1973. While holding the said office, the petitioner was appointed to another cadre post, namely, the District Magistrate of Madhubani by a notification of respondent No. 1 bearing number 10425 dated 14th June, 1975. Again while holding the post of District Magistrate, Madhubani, he was appointed to the cadre post of Director of Panchayati Raj by State Government's (respondent No. 1) notification No. 12854 dated 13th July, 1977 and while he was still holding this post, he was, as already stated above, appointed to the Indian Administrative Service on 29th October, 1977. These appointments were duly reported by the State Government to the Government of India from time to time as prescribed in Rule 9 of the I.A.S. (cadre) Rules, 1954 (hereinafter to be referred to as the 'Cadre Rules'). The report for the half -year ending 30th September, 1973 was sent to the Government of India in which the petitioner's name was mentioned against serial No. 11 of the report indicating his officiation in the cadre post of Deputy Development Commissioner -cum -Chief Executive Officer, Zila Parishad, Bhagalpur, Similarly, half -yearly reports were sent for the half -years ending 31st March. 1974, 30th September, 1974. 3lst March 1975 and 30th September, 1975 wherein the petitioner's name was mentioned against serial No. 10 of each of such reports indicating his continuous officiation in cadre posts. The half -yearly report for the half -year ending 31st March, 1976 specified his name against serial No. 4 of the report again indicating his coninuous officiation in the cadre post of District Magistrate, Madhubani. In the half -yearly reports for the half -year ending 30th September, 1976 and 31st March, 1977 the petitioner's name was mentioned against serial No. 3 showing his continuous officiation in the cadre post of District Magistrate, Madhubani. In the last relevant half -yearly report for the half year ending 30th September, 1977 also the petitioner's name was noted against serial No. 2 indicating his continuous officiation in the cadre post of Director of Panchayati Raj of the State Government, respondent No. I. The Government of India (respondent No. 2), which considered these reports from time to time, did not see any objection to any of these appointments. And. yet, to come back to the petition as originally filed, the petitioner has asserted that the Central Government has assigned the year 1973 as the year of allotment to him. The seniority of a promoted officer has got to be fixed according to the statutory rules with special reference to Rule 3(3)(b) of the Seniority Rules mentioned above. The petitioner claims that according to the rules referred to above he should be allotted the year 1968 and be placed above one Sri Pratyush Sioha, (respondent No. 3) a regular recruit of 1969, who started continuous officiation in a senior post from 2nd July, 1973. Respondent No. 2 has fixed the seniority of the petitioner by ignoring the period of his continuous officiation in the senior posts in the I.A.S. cadre from 26th April, 1973 upto the date of his appointment to the Indian Administrative Service on 29th October, 1977, The said year of allotment has been assigned to him and some others by the order as contained in annexure 1 which is impugned. The petitioner has suffered in status and consequential benefits emanating therefrom as a result of this arbitrary decision of respondent No. 2 and has been deprived of his rightful place in the I.A.S. cadre against the provisions of such rules. The petitioner made a representation to respondent No. 2 which was rejected as communicated to him by the Special Secretary to Government, Personnel and Administrative Reforms Department, in his letter No. 1611 dated 7th February, 1980.

(3.) The State of Bihar, respondent No. 1, had not chosen to file any counter -affidavit till after the conclusion of the submissions made by learned Counsel for the petitioner. After the arguments on behalf of the petitioner were concluded or a little later, an oral prayer was made by the learned Advocate -General for respondent No. 1 to give him an opportunity to file a counter affidavit, which was rejected by us by an order dated 24th March, 1981, giving detailed reasons therein. Therefore, the facts as stated by the petitioner have been admitted by respondent No. 1 by non -traverse according to the well settled principles of pleadings.