SUPREME COURT OF INDIA
Suresh Chandra Jha
Vs
State of Bihar and Others
Appeal (Civil) 4760 of 2006 (Arising Out of S.L.P. (C) No. 23063 of 2003
(Arijit Pasayat and L. S. Panta, JJ)
10.11.2006
ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the legality of the judgment rendered by a
Division Bench of the Patna High Court. By the impugned judgment the Division
Bench set aside the judgment rendered by a learned Single Judge who had quashed
the notification dated 31.1.1991 issued by the State Government purportedly
issued under the Bihar Private Engineering College (Control Ordinance) 1986 (in
short 'Ordinance') which was subsequently replaced by the Bihar Private
Engineering College Control Act 1990 (in short the 'Act'). The appellant had
questioned the legality of Section 5(3) of the Ordinance/Act which was accepted
by learned Single Judge. But the Division Bench by the impugned judgment upset
judgment of learned Single Judge.
Background facts in a nutshell are as follows:
In response to the advertisement for appointment to the post of Assistants in
the Dr. Joggnath Mishra Institute for Technology (a private institution
hereinafter referred to as the 'Institute') appellant and several others
applied for the said post. After selection at a test conducted, 5 persons were
appointed and the appellant was one of them. Appellant was appointed vide order
dated 18.7.1981 and was given six weeks time from the date of issue of the
letter to report for duty to the office of the General Secretary, Mithila Vikas
Sansthan Laheriasarai, Darbhanga/Director of the Institute at Darbhanga. In
case of respondent no.8 P.K. Choudhary, the appointment letter was dated
22.7.81 and he joined on the same day. The appellant who claims to have
received the appointment letter on 23.7.81, in fact, joined on 24.7.81. At this
juncture, it is to be noted that though in the appeal, challenge was made to
the appointment of respondent no.7, the same was not pressed. On the basis of
Section 5(2) of the Act and in purported exercise of powers under Section 5(3)
of the Act, respondent no.8 was retained in service while the appellant was not
retained. The appellant questioned correctness of the procedure adopted. When
there was no positive response, the writ petition was filed before the Patna
High Court which was allowed by learned Single Judge. It was noted by the
learned Single Judge that the order dated 31.1.1991 issued by the State
Government absorbing in service of some of the respondent was contrary to law.
It was noted that the procedure of determining as to who had joined the college
earlier was wrong. It was pointed out that admittedly selection was on
18.7.1981 and six weeks time was granted for joining. Merely because of
fortuitous circumstances, respondent no.8 joined earlier that cannot be a
ground to make him senior to the appellant, though in the merit list prepared
appellant was ranked 20 while respondent no.8 was ranked 43. The learned Single
Judge accepted the stand. In the appeal filed by respondent no.8, different
view was taken by the Division Bench. It was held that the seniority is to be
reckoned on the basis of the date of joining. According to High Court the logic
of last-come first-go was applicable and, therefore, appellant who has joined
later was to be treated as junior to respondent no.8.
Learned counsel for the appellant submitted that the view taken by the Division
Bench is clearly contrary to law. If there are no rules governing the field, it
is the placement in the merit list which is determinative and not the date of
joining. It is accepted that no rules had been framed and, therefore, the merit
as appearing in the rank list has to be taken.
In response, learned counsel for the respondent submitted that right from 1981,
respondent no.8 has worked and he having joined earlier has to be treated as
senior to the appellant.
There is no dispute that the appellant was ranked higher to respondent no.8.
There is also no dispute that in the appointment letter the appellant was given
six weeks time to join. Merely because respondent no.8 joined earlier that did
not in any way affected the merit placement.
This Court in Chairman, Puri Gramya Bank and Anr. v. Ananda Chandra Das and
Ors. 3 held as follows:
"This appeal arises from the Judgment of the High Court of Orissa in
O.J.C. No. 1007/88, dated March 4, 1992. The respondent and others were
selected by direct recruitment as managers of Rural Bank. His rank was No. 9 in
the merit list. He was directed to be given seniority on the basis of the date
of his reporting to duty. It is reported that the first respondent is dead. The
only question in this- case is that what shall be the ranking among the direct
recruits? Is it the date on which they joined duty or according to the ranking given
by the selection board? On comparative evaluation of the respective merits of
the candidates for direct recruitment, the Board has prepared the merit list on
the basis of the ranking secured at the time of the selection. It is settled
law that if more than one are selected, the seniority is as per ranking of the
direct recruits subject to the adjustment of the candidates selected on
applying the rule of reservation and the roster. By mere fortuitous chance of
reporting to duty earlier would not alter the ranking given by the Selection
Board and the arranged one as per roster. The High Court, is, therefore, wholly
wrong in its conclusion that the seniority shall be determined on the basis of
the joining reports given by the candidates selected for appointment by direct
recruitment and length of service on its basis. The view, therefore, is wrong.
However, we need not interfere with the order, since the first respondent has
died."
(Underlined for emphasis)
Since there was no rule in operation, obviously the ranking in the merit list
was to decide the respective seniority. The ratio in Chairman, Puri Gramya
Bank's case (supra) has full application to the facts of the case. Appellant's
claim that he was to be treated as senior to the respondent no.8 was rightly
accepted by learned Single Judge. Unfortunately, the Division Bench did not
address itself to the specific question and has placed undue stress on the
respondent no.8 having joined earlier.
Therefore, the judgment of the Division Bench is set aside and that of the
learned Single Judge is restored. We have, however, make it clear that the
appellant will not be entitled to any salary for the period during which the
respondent no.8 has worked. For all other service benefits, the period in
question shall be reckoned. The official respondents shall explore the
possibility of absorbing respondent no.8 to the suitable post considering the
fact that for nearly quarter of the century he has rendered services. The
payment made to him shall not be recovered.
The appeal is allowed to the aforesaid extent with no order as to costs.