BISHUNDEO MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) These two writ applications have been referred to the Full Bench to consider the correctness of a Bench decision of the Court in Shri Rajib Ranjan Pathak v. State of Bihar (C.W.J.C. 290 of 1969) decided on 28th April, 1970. In this case the Bench interpreted the State Government Circular No. 6509-A dated 12-12-1934 in relation to the determination of seniority of officers in State and Subordinate Services where more than one officer is appointed to the service at the same time. Since by virtue of the notification issued by the State Government (Notification No. 3555-3, 27/50-A dated 15-4-1950) the aforesaid notification of 1934 has the force of rules made under Article 309 of the Constitution of India, I shall refer to the said notification as the 1934 Rules.

(2.) Both in the State Services as well as in Subordinate services a number of posts are permanent. Temporary posts are also created from time to time which, according to exigency of the services, may be made permanent at a later stage. Appointments to permanent posts are sometimes on substantive basis, and in some cases on probation, officiating or temporary basis. The probationary and officiating appointments are of a temporary nature. Similarly so far as the temporary posts are concerned substantive appointments can be made and are, in fact sometimes made even on temporary posts. Appointments to services may be made either by direct recruitment or by promotion under the rules governing the services, or a valid governmental instruction. It is, therefore, natural that the State Government should lay down the rules or criteria for the determination of seniority to the services in these differing situations.

(3.) In relation to the determination of seniority the State Government framed rules of general application in 1934. These, therefore, apply where there are no special rules governing a particular, service. Where, however, there are such rules they apply and not the rules of 1934-Generalia specialibus non derogant. The 1934 Rules are as follows: