SAMIAHMADMZHARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) The grievance of the petitioner in this application is against an order dated 15-3-1991 as contained in Annexure-1 whereby the conditional promotion given to him by order No. 1486 dated 15-2-1989 has been cancelled and be has Hen reverted to his original p st. It would apper from the aforesaid order dated 15-2-1989 (Annexure-4 to the writ application) that provisional promotion wai given to the petitioner subject to the condition Inter alia that the promotion may be cancelled if be is found to be junior in the State level gradation list determining inter se seniority of the persons in the said cadre.

(2.) Mr. Raghib Ahsan appearing on behalf of the petitioner contended that the State Government has not yet finally determined the Inter se seniority of the persons concerned and that against the provisional gradation list dated 1-12-1989 he has filed objection, although belatedly. It was submitted on bebaif of the learned counsel for the State and also Mr. Pusbkar Narayan Sbahi appearing on behalf of the intervenor Birendra Kumar OJha that the petitioner was junior to the said Birendra Kumar Ojba in the gradation list and therefore, the provisional promotion has rightly been cancelled. In this connection they pointed out that Birendra Kumar Ojha joined the service on 13-8-1955, while the petitioner joined the service on 9-3-1956, It was further pointed out that this Court in CWJC No. 3940 of 1981 (Bashishth Narain v. The Stale of Bihar and others) had directed the Stats Government to prepare a gradation list of the correspondence clerk and others holding equivalent posts in the regional offices, on the basis or the date of entry in the service. Thus there is no infirmity in the impugned order and that this Court should not interfere merely on the ground that the gradation list dated 1-12-1991 (Annexure-2) is only provisional in nature and view of their respective dates of entry, the question of continuance of the petitioner on the senior post on promotion should not await the preparation of the final gradation list. Mr. Raghib Ahsan in this connection submitted that although the intervenor joined the service on 13-8-1955 there was a break of seven days in the service and after such a break he joined a new post oo 7-4-1956 and therefore, he should be deemed to be junior to the petitioner.

(3.) We have looked into the service-book of the intervenor which has been brought on record by the petitioner himself as Annexure-10 to the writ application. A perusal thereof shows that the Intervenor had been transferred by order of the Superintending Engineer dated 17-3-1956 and it was in pursuance of that order that he was relieved from the erstwhile post on 31-3-1956 and submitted nis joining on 7-4-1956. It would, accordingly, follow that there was no break in his service, and on the basis of his prior date of entry in the service the intervenor must be held to be senior to the petitioner. We agree with the contention of the learned counsel for the State and Mr. Shahi that the ordor (Annexure-5) merely because it has been described as provisional, should not be construed as determination of inter se seniority between the parties. It would logically follow, in view of the several judgments of the Supreme Court, as well as the aforementioned judgment of this Court in tha case of this very cadre, that the petitioner is junior in service and his provisional promotion teas been rightly cancelled and, therefore, the impugned order dated 15-3-1991 does not suffer from any infirmity.