BIJAY KUMAR SRIVASTAVA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE two petitioners were in Indian Defence Services (Air Force) employed under Short Services Selection. Thereafter, they joined the Bihar Administrative Service, Junior Selection Grade in the years 1989 -93 respectively. On joining the Bihar Administrative Service, their seniority was determined as per the prevalent Government policy decision, as contained in circular dated 26th August, 1972 (Annexure -2). This circular, inter alia, provided giving benefit of their past services in the Defence for calculating their seniority in the Bihar Administrative Service. Their seniority was, accordingly, determined. Now after 12 years of their service, and three and half decades after issuing the 1972 circular (supra), wisdom has dawned on State Government once again and they have by their circular dated 2.3.2005 (Annexure -9) sought to explain that the policy decision of 1972 was incorrect and wrong and the clause laying down conditions for determination of seniority of Ex -servicemen in the 1972 circular was deleted. Consequently, the benefit which was earlier promised and given to Ex -servicemen joining Bihar Government Service stood withdrawn. This was not left to be done prospectively but it was done retrospectively from the date when this criteria for grant of seniority was laid down that is with retrospective effect from 1972 itself. The result was that both the petitioners ' seniority in the gradation list was redetermined and now the petitioners lost considerable seniority. It is these actions that are challenged in the present writ application. State has filed counter affidavit stating that in 1967, pursuant to decision of Government of India to give a sort of rehabilitation package to Indian Soldiers involved in Chinese and Pakistani aggressions, certain benefits were extended to defence personnels. 1972 policy decision was taken apparently in ignorance thereof which was realised in 2005 that is after three and half decades and, as such, the principles and the policy for determination of seniority as laid down in 1972 were deleted with retrospective effect.

(2.) HAVING heard the learned counsel for the parties and considering the matter and with their consent, I think it appropriate to dispose of this writ application at this stage itself.

(3.) A reference to the 1972 circular would show that it was issued in terms of Article 166 of the Constitution of India and, thus, would have statutory force in terms of Article 309 of the Constitution of India. It was duly published in the name of the Governor of Bihar. Its opening paragraph clearly mentions that there were confusions in principles being applied for determining inter se seniority which needed to be clarified. Therefore, it was a conscious decision of the State Government. The State Government was aware of the exception being made in respect of exdefence personnels. Being aware of such exceptions, a principle was laid down in terms of clause 3(vi) thereof. This was an incentive to an ex -defence personnel joining State Service. These principles being available to the petitioners, they accepted the services of the State Government. They cannot be now told that they joined services on an assurance of certain principles of determination of seniority but after having served twelve years, the very basis would be withdrawn. In other words, the principles laid down for fixation of seniority in a service matter was a part of the contract in the service contract. Such an essential part of the service contract could not be withdrawn retrospectively and that too unilaterally. Thus, the retrospective withdrawal of clause 3(vi) of the 1972 circular is clearly arbitrary and unreasonable. What may be the legality thereof so far as prospective application of withdrawal is concerned would be a question to be decided in an appropriate proceeding but this Court is satisfied that retrospectively the same could not have been done. It took away the vested right of the petitioners and a right on basis whereof they had entered into service. Therefore, I am left with no option but to hold that Annexure -9 being the notification No. 1509 dated 2.3.2005 would have no retrospective application and seniority as determined prior thereto would continue to operate as such. Subsequent actions of the respondents in redetermining the inter se seniority of the petitioners is, thus, unsustainable and is quashed accordingly.