JAGJIT SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appellant Jagjit Singh has filed this letters patent appeal under Clause (10) of the Letter Patent being aggrieved by the order dated 19.10.2001 passed in C.W.J.C. No. 10534 of 1992 wherein the Hon ble Single Judge has allowed the writ application filed by the respondent no.10, Keshawant Singh directing that the said petitioner/present respondent no.10 would rank senior to the original respondents no. 5 to 10 and the respondent authorities were directed to make necessary corrections in the gradation list and to give to the said petitioner all consequential benefits on the basis of his seniority over the said private respondents. The appellant figured as respondent no. 6 in the original writ application.

(2.) THE original writ petitioner filed the writ application challenging the gradation list of Drug Inspectors of 72 -73 batch contained under Memo. No. 1619 (15) dated 30.9.1992 (Annexure -14) issued by the Joint Secretary in the Department of Health. In the said gradation list the petitioner was shown at Sl. No. 7 junior to the original respondents no. 5 to 10, who were placed at Sl. Nos. 1 to 6 in the list. During pendency of the writ application the original petitioner filed two amendment applications seeking to challenge Annexure -21, notification dated 14.10.1998 under which the original respondent no.6 (present appellant) in addition to his substantive post of Drug Inspector was given the additional charge of the post of Assistant Drugs Controller, Bihar; and under the second application the petitioner sought to challenge the final gradation list of the Drug Inspectors issued under notification dated 27.2.2001 (Annexure -29) wherein the petitioner is shown at Sl. No. 12. while the original respondents No. 5 to 10 were placed at Sl. Nos. 6 to 11. From the order passed by the learned Single Judge it appears that both the applications were allowed.

(3.) WHILE the petitioner was occupying the post of Chief Hospital Pharmacist, the Commission issued yet another advertisement No. 47/1971 for filling -up a number of post of Drug Inspectors. The advertisement clarified that the post of the Drug Inspector was to carry the same pay scale as that of Chief Hospital Pharmacist. The Government required that the minimum qualification should be in accordance with Rule 49 of Shambhu Singh Versus State Of Bihar the Drugs and Cosmetics Rules, 1945, which apart from a degree in Pharmacy provided for other qualifications. The petitioner who was already occupying the office/post of Chief Hospital Pharmacist temporarily at Darbhanga Medical College and Hospital made an application in response to the said advertisement No. 49/1991. After submission of his application the Department forwarded the same to the Commission. The Commission entertained the application and treated the petitioner as one of the candidates in response to Advertisement No. 47/1971. At that point of time everybody appears to be oblivious of the fact that in response to Advertisement No. 79/1969, the petitioner was selected and recommended for appointment and was appointed as Chief Hospital Pharmacist. It was also not brought to anybody 's notice that if the petitioner was already appointed as Chief Hospital Pharmacist then he was not required to apply afresh for his appointment to the post of Drug Inspector, a post which was carrying the same pay scale of Chief Hospital Pharmacist. After the selection process was over the Commission prepared a list of 12 selected candidates and sent the same to the Health Commissioner on 13.4.1972 (Annexure -B). From the records it appears that one Sangeet Kumar Sinha was recommended against single vacancy in the permanent post and rest of the 11 candidates were recommended against vacancies in the temporary post of Drug Inspector. Undisputedly the petitioner was shown at Sl. No. 9 below the original respondents no. 5 to 10. The records show that on 24.2.1973 (Annexure -C) a memorandum was prepared and was placed before the Cabinate. The petitioner figured both as candidate selected by the Commission and Drug Inspector in service. Finding the anomaly the Health Commissioner thrashed the matter and found that petitioner 's appointment by the Commission in response to Advertisement No. 49/1971 would not affect his seniority because he was in service from before, did possess the minimum qualifications for appointment and was appointed on basis of an earlier notification issued by the Government following the recommendations of the Commission. The Health Commissioner also observed that post of Chief Hospital Pharmacist and Drug Inspector were treated as equivalent and inter transferable. Making certain more observations in favour of the petitioner the Health Commissioner opined that there was no occasion to reappoint the petitioner and the petitioner can be given a post like Drug Inspector who were in service from before and the other 11 selected candidates were required to be given appointment. The Memo/recommendation of the Health Commissioner were approved by the Minister, who was pleased to observe that the petitioner may be appointed by transfer so that his seniority may not be adversely affected. Thereafter notification dated 12.4.1973 (Annexure -6) was issued wherein 11 candidates recommended by the Commission were appointed as Drug Inspectors; it would be clear from the said notification that the petitioner was not appointed alongwith the other 11 candidates but his case was dealt with separately in the same notification and he was simply transferred and appointed as Drug Inspector for Singhbhum district. The words "appointed" in the said notification in fact was not to indicate that the petitioner was being appointed for the first time, it appears that the word "appointed" used in the said notification for the petitioner was used to show his posting, while in case of the other 11 including the original respondents no. 5 to 10 it was to show their appointment for the first time. The learned Single Judge has observed that the appointment of respondents no. 5 to 10 was made in the sense of their entry in service. Thereafter vide notification dated 30.4.1987 (Annexure -3) petitioner and respondents 6, 9 and 10 were confirmed in service; petitioner 'sdate of confirmation was shown as 14.9.1971 while date of confirmation of those three respondents was shown as 18.7.1974. Thereafter in yet another notification the order of seniority was maintained but in the tentative gradation list dated 28.10.1990 (Annexure -8) the order was changed and the petitioner was placed at Sl. No. 24 while the respondents no. 5 to 10 were placed above him at Sl. Nos. 17 to 23. The petitioner, from the records it appears made a representation for correcting his position, the representation was accepted and a corrigendum was issued (Annexure -10A) placing the petitioner at Sl. No. 7 and the original respondents below him. Despite earlier gradation list and seniority list and issuance of the corrigendum in the final gradation list the petitioner was placed below the respondents showing him junior to the original respondents, therefore, he had come to this Court.