RAJENDRA NATH SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this application under Articles 226 and 227 of the Constitution of India the petitioner, an officer of the Indian Administrative Service cadre (hereinafter to be referred to as I.A.S.), has prayed for a suitable order OF direction to quash the order of the Government of India, respondent 2, dated 20th July, 1977, by which the petitioners seniority was fixed as contained in Annexure 1, and for a suitable order or direction to issue to respondent 2 to grant the benefit of continuous officiation on cadre post to the petitioner and to allow him the year 1968 as the year of allotment in accordance with the relevant rules.

(2.) THE relevant facts are not much in controversy. The petitioner originally belonged to the State Civil Service cadre. On 6 -4 -1973 his name was first included in the Select List for promotion to I.A.S. Even before his name was included in the Select List of 1973, he had been appointed to officiate on a cadre post of Deputy Secretary, Education Department, from 24th March, 1973. On this post he continuously officiated till 1 -7 -1975. In the meantime, another Select List for the year 1974 had also bean prepared on 20th April, 1974 in which also the petitioners name was included. On 1st July, 1975 (sometime in the afternoon) the petitioner joined the post of Deputy Secretary, Irrigation Department, another cadre post, on which he continuously officiated till 16th December, 1975. In the meantime, the Select List for 1975 had also been prepared on 14th November. 1975. On 17th December, 1975 the petitioner was appointed by promotion to the I.A.S. The petitioner on the aforesaid facts, claims that his year of allotment and fixation of seniority must be made counting the period of his continuous officiation, while his name continued to remain in the Select List, right from 6th April, 1973 to 16th December, 1975 during which he was holding senior cadre posts. When the petitioners seniority was fixed under Annexure 1, he filed a representation before respondent 2 making out his grievance which is the basis of his claim in this writ petition. By an order dated 31st October, 1980 the representation of the petitioner was rejected. That order, however, reached the petitioner in the first week of November, 1980. Thereafter this writ application was filed on 20th July, 1981.

(3.) THE contention of learned Counsel for the petitioner is that for the fixation of his seniority in the I A.S. cadre rule 3(3)(b) and Rule 4(4) of the I.A.S. (Regulation of Seniority) Rules, 1954 (hereinafter to be referred to as 1954 rules) are relevant. It is submitted that it is now settled by the decisions of the Supreme Court in the case of Harjeet Singh V/s. Union of India - - and Amrik Singh V/s. Union of India - - that rule 3(3) (b) as well as rule 4(4) of the Indian Police Service (Regulation of Seniority) Rules, 1954. which are in pari materia with the corresponding rules of the 1954 rules, throw up the date of continuous officiation of an officer in a cadre post as the most important factor both for the purpose of assignment of year of allotment and for the purpose of assignment of seniority. For the purpose of assignment of year of allotment the date of continuous officiation in a senior post is the only relevant factor while for the purpose of assignment of seniority, first, the date of continuous officiation in a senior post, then the date of appointment to the service if the date of commencement of continuous officiation in a senior post of more than one officer is the same and, finally, the order in the Select List if the date of appointment is also the same, are the several relevant factors in that order. The submission put forth on behalf of the petitioner is well founded. A Bench of this Court had occasion to consider these two rules of the 1954 rules and following the decisions of the Supreme Court a Bench of this Court in the case of Nityanand Sinha V/s. State of Bihar 1982. Bihar Law Judgments 354, held that officiation of an officer in senior post after inclusion of his name in the Select List must be counted for determination of the year of allotment. In that case also the petitioner Nityanand Sinha has been continuously officiating in a cadre post from 26th April, 1973 although he was appointed to the I.A.S. on 29th October, 1977. i. e., about 2 years after the petitioners appointment. For the same reasons, which weighed with the Supreme Court in the cases of Harjeet Singh (supra) and Amrik Singh (supra) and those, which weighed with the Bench of this Court in the case of Nityanand Sinha (supra), the petitioner has to be granted the reliefs prayed for.