AKHAURI DADAN PRASAD Vs. VISHWANATH JHA

JUDGEMENT

(1.) This letters patent appeal arises out of a judgment and order passed by a learned Single Judge of this Court in a writ petition, C.W.J.C. No. 130 of 1980, which respondent No. 1 herein (hereinafter referred to as 'the respondent') had preferred seeking quashing of orders and notification giving retrospective appointment and seniority on the post of Mechanical Overseer (now Mechanical Junior Engineer) to the appellant vis-a-vis the respondent, and rejecting the representation filed by the respondent in the matter. He also sought quashing of the gradation list, Annexure-19. By amendment the respondent also challenged the promotion of the appellant to the post of Sub-divisional Officer vide order contained in Annexure-21. The learned Single Judge has held that although the appellant initially ranked senior to the respondent, on account of his retrenchment from service and fresh appointment there was break in service and consequently the respondent became senior to the appellant. He, accordingly, quashed the gradation list showing the respondent junior to the appellant, Since, however, the appellant had merely been asked to perform the duties of the post of Sub-divisional Officer, the learned Judge did not think it necessary to quash the order as contained in Annexure-21, The facts of the case, shortly stated, is hereunder.

(2.) The appellant was appointed in a work charged establishment called 'Special Relief Organisation', in the Public Health Engineering Department on 14.3.67. On 21.7.67 an order as contained in Annexure-6 was passed putting him in the 'regular' establishment as per the sanctioned strength of posts created under the Special Relief Organisation. On 27.9.67 vide order as contained in Annexure-7, he was retained as "skeleton staff" till 31.10.67 in the Mechanical Division at Gaya from where he was relieved on the due date i.e. 31.10.67, On 10.2.68 vide order as contained in Annexure-9 he was again appointed for the Drilling Programme under the Community Development Scheme on temporary basis in the work charged establishment with effect from 1.2.68. On 20.2.73 vide order as contained in Annexure-10 he was appointed in the regular establishment with effect from the date of the order. The order described him as a work charged employee and stipulated the past service rendered by him in the work charged establishment will not be counted for the purpose of seniority. Later, on 6.6.77, by one of the impugned orders as contained in Annexure-11, the previous order dated 10.2.68 appointing the appellant in the work charged establishment with effect from 1.2.68 was partly modified to the effect that his appointment.in the work charged establishment was made effective from 1.11.67 itself. On 17.1.78 an office order was issued giving seniority to the appellant with effect from 21.7.67. The respondent filed representation on which the said order was stayed on 21.1.78. However, the stay order dated 21.7.78 and the appellant's seniority with effect from 21.7.67 was maintained. Later, on 4.12.78 a notification was issued purporting to regularise the period of service between 1.11.67 and 19.2.73 and giving seniority with effect from 21.7.67. The said order was stayed on representation filed by the respondent on 18.12.78 but the stay order was given cancelled on 6.8.79 by the impugned notification as contained in Annexure-16. The respondent again represented but the same was finally rejected on 20.12.79 whereafter the writ petition was filed challenging the orders as contained in Annexures 11, 16 and 20 as well as the gradation list contained in Annexure-19.

(3.) The facts regarding the appointment of the respondent are short and simple. He was appointed in work charged establishment of Department (PHED) on 26.4.67. On 16.5.69 he was appointed in the regular establishment (cadre). His services were confirmed on 25.1.74. There is no dispute about these facts.