Md. Reyazuddin Ahmad v. The State of Bihar

: Mr. Diwakar Upadhyaya, Advocate. : Mr. Harendra Pd. Singh, G. A. 8 For the respondent-Commission: Mr. P. N. Shahi, Senior Advocate With Mr. Sanjay Pandey, Advocate. ====================================================== PRESENT: HONOURABLE MR. JUSTICE S.N. HUSSAIN ORDER 17 31-01-2013 Heard learned counsel for the petitioner, learned counsel for the respondent-State of Bihar and its authorities as well as learned counsel for the Bihar Public Service Commission. Although notices were twice issued to private respondent nos.5, 6 and 7 and were reported to have been validly served, but in spite of that respondent nos. 5 and 6 Patna High Court CWJC No.9635 of 2006 (17) dt.31-01-2013 - 2 - (Nityanand Jha and Ram Pravesh Singh ) never appeared in the case, whereas respondent no.7 (Chandeshwar Ram) filed his counter affidavit on 28.08.2006, but no one, including his counsel Mr. Manoj Kumar Singh, Advocate appeared when the case was heard on several dates by this Court to press the counter affidavit. However, learned counsel for the petitioner submits that respondent no.7 is not a contesting party as admittedly he was senior to the petitioner and the main contestants were respondent nos.5 and 6.

2. This writ petition has been filed by the petitioner for directing the respondent-authorities, specially the Land Reforms Commissioner-cum-Secretary, Revenue and Land Reforms Department, Govt. of Bihar and the Deputy Secretary, Land Reforms Department, Govt. of Bihar (respondent nos.2 and 3) as follows:- (i) To make appropriate correction in “State Level Seniority List” of Circle Inspectors- cum-Kanoongo, eligible for promotion on the post of Assistant Settlement Officer (Revenue) as on 01.01.1993, and prepare a fresh and correct seniority list, as per merit-cum-selection list, prepared by Bihar Public Service Commission and Revenue and Land Reforms Department Patna High Court CWJC No.9635 of 2006 (17) dt.31-01-2013 - 3 - vide letter No.4505 dated 05.11.1977 and this petitioner at Sl. No.182 (approx) from Sl. No.194, above Sri Nityanand Jha and Ram Pravesh Singh (respondent nos.5 and 6) and others, who are juniors to this petitioner since the date of appointment (Annexure-2), and (ii) Thereafter give promotion petitioner on the post of “Assistant Settlement Officer” from an earlier date the date when juniors petitioner were promoted and not from

09.10.2000 as he has been given.

3. It is not in dispute that the petitioner is working as Assistant Settlement Officer, Bhagalpur under the department of Revenue and Land Reforms, Govt. of Bihar and in the year 1977 the petitioner and several others similarly situated persons were declared successful in competitive examination held by the Bihar Public Service Commission for appointment on the posts of Circle Inspectosr-cum-Kanoongo, whereafter the Department of Revenue and Land Reforms prepared a list of successful candidates according to their merit and marks obtained in the examination held and also as per the recommendation made by the Commission. It is not in dispute that the petitioner and respondent nos.5 and 6 were successful Patna High Court CWJC No.9635 of 2006 (17) dt.31-01-2013 - 4 - in the said competitive examination, but the dispute is as to who would be senior according to the merit list. The predicament here is that merit list is unavailable and hence the facts and circumstances have to be gathered from other sources for ascertaining the question of seniority.

4. The respondent-State of Bihar has filed a counter affidavit dated 18.01.2011 annexing list along with letter dated

21.08.1993 (Annexure-C) written by the Deputy Secretary of the Department concerned Divisional Commissioners. The said letter is accompanied by a list in which Column 10-A is provided showing the positions of the candidates in which petitioner, respondent no.5 and respondent no.6 are shown at serial nos. 34, 7 and 9 respectively. Only on the basis of the said document, the respondents have claimed that the said respondents were seniors to the petitioner and the said list had never been challenged by any one since then.

5. From a bare perusal of the aforesaid list provided by the respondents it is quite apparent that Column 10-A shows the Bihar Public Service Commission gradation, but the said gradation should have been provided for all the candidates included in the list. But the gradation is given only on the 2nd page of the list in which the names of the petitioner and Patna High Court CWJC No.9635 of 2006 (17) dt.31-01-2013 - 5 - respondent nos.5 and 6 are noted, whereas on the other pages of the list no such gradation is provided. This fact clearly proves the list to be untrustworthy and frivolous and cannot be legally relied upon to ascertain the gradation and seniority.

6. Respondent no.2 has filed supplementary counter affidavit on 04.01.2013 in which mark sheet of respondent no.5 Nityanand Jha is annexed as Annexure –L/1. The said mark sheet is dated 24.08.1977 showing that Nityanand Jha had obtained 169 marks as total marks in the examination held by the Commission.

7. On the other hand, learned counsel for the petitioner has filed his 3rd supplementary affidavit on

17.12.2012 in which he has annexed his mark sheet as Annexure-16 series which shows that he had obtained total marks of 173 in the examination held by the Commission in the year 1977. This mark-sheet has not been challenged by any of the respondents.

8. In the said circumstances, it is quite apparent that petitioner had obtained higher marks than respondent no.5 and hence he should have been placed above respondent no.5 in the gradation list of Circle Inspectors-cum-Kanoongo with effect from 1977. Patna High Court CWJC No.9635 of 2006 (17) dt.31-01-2013 - 6 -

9. In the said circumstances, this writ petition is allowed and the respondent-authorities are directed to place the petitioner just above the position of respondent no.5 in the gradation and to give the petitioner all the consequential benefits either with respect to positional benefits or monetary benefits. (S.N. Hussain, J) Sunil/-