====================================================== 1. The State of Bihar 2. The Commissioner-Cum-Secretary Health and Family Welfare Department v. 1
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1209 of 2011 In Civil Writ Jurisdiction Case No. 7043 of 2006 With Interlocutory Application No. 5930 of 2011 In Letters Patent Appeal No. 1209 of 2011 ====================================================== 1. The State of Bihar 2. The Commissioner-Cum-Secretary Health and Family Welfare Department, Government of Bihar, Patna 3. The Joint Secretary, Health and Family Welfare Department, Government of Bihar, Patna. .... .... Respondents/Appellants Versus 1. Dr. Jay Narayan Prasad S/O Late Shivjee Prasad, resident of village - Laukahi, P.O.- Laukahi, P.S.- Laukahi, Distt.- Madhubani ……… Petitioner/Respondent 1st set 2. The Bihar Public Service Commission, through its Secretary, Bailey Road, Patna. .... .... Respondent/Respondent 2nd set. ====================================================== Appearance : For the Appellants : Mr. Roy Shivaji Nath, A.A.G. 3 Mr. Divya Verma, A.C. to AAG 3 For the Respondent No. 1: Mr. Suraj Narain Yadav, Advocate. Mr. Yogendra Prasad, Advocate. For the Commission ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE
Legal Reasoning
: Mr. Ashok Kumar Choudhary, Advocate. and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 7 12-08-2013 This Appeal under Clause 10 of the Letters Patent is preferred by the respondent State of Bihar against the judgment and order dated 20th April 2011 passed by the learned single Judge in CWJC No. 7043 of 2006. The matter at issue is the seniority of the writ petitioner in the cadre of Medical Officer in Class -II service under the Department of Health and Family Welfare. 2 Patna High Court LPA No.1209 of 2011 (7) dt.12-08-2013 2 / 5 The respondent writ petitioner approached this Court under Article 226 of the Constitution in above CWJC No. 7043 of 2006 to question his seniority determined from 1st April 1981. According to the writ petitioner, he was appointed in 1976 as a Medical Officer. While serving as Medical Officer he appeared in the competitive examination conducted by the Bihar Public Service Commission (hereinafter referred to as „the Commission‟). He having cleared the selection by the Commission, pursuant to the recommendation made by the Commission, he has been assigned seniority from 1st April 1981. On perusal of the record, it appears that under Notification dated 12th November 1976 issued by the State Government, the writ petitioner was appointed as Civil Assistant Surgeon on ad hoc basis for a period of six months. Since his ad
Decision
hoc appointment, the writ petitioner participated in the recruitment process conducted by the Commission. Having cleared the recruitment and selection by the Commission, on recommendation dated 11th August 1980 received from the Commission, under Notification dated 4th May 1981 the writ petitioner and 45 other Civil Assistant Surgeons were regularized in service with effect from 1st April 1981. That is the date assigned for determination of seniority. The writ petitioner approached this Court in above CWJC No. 7043 of 2006 to claim seniority from 6th December 1976, the date he joined the service pursuant to the ad hoc appointment dated 12th November 1976. The writ petition was contested by the Commission and by the State Government. The learned single Judge has allowed the writ petition and has directed the appellants to assign 3 Patna High Court LPA No.1209 of 2011 (7) dt.12-08-2013 3 / 5 seniority to the writ petitioner from 6th December 1976, the date he joined the service. Therefore, this Appeal. Learned Additional Advocate General Mr. Roy Shivaji Nath has appeared for the appellants. He has submitted that the decision of the learned single Judge is contrary to the settled law. Once the post is required to be filled in by direct recruitment by appointing the persons selected by the Commission, the seniority will be assigned from the date regular appointment is made after due selection. In support of his submission, he has relied upon the judgment of the Hon‟ble Supreme Court in the matter of Santosh Kumar & Ors. vs. G.R. Chawla & Ors.,{(2003) 10 SCC 513}. The Hon‟ble Supreme Court has held that the ad hoc appointment is fortuitous. The period of ad hoc service cannot be counted for the purposes of seniority. The above referred principle laid down by the Hon‟ble Supreme Court has been reiterated by the Hon‟ble Supreme Court and the High Courts time and again and is being followed uniformly. Learned advocate Mr. Suraj Narayan Yadav has appeared for the respondent-writ petitioner. He has submitted that the issue raised in the present proceeding is somewhat different. He has relied upon the provisions contained in the Bihar Gazetted Officers‟ Ad-hoc Appointments Regularizations Act, 1987 (hereinafter referred to as „the Act‟). The Act was enacted by the Government of Bihar with a view to regularizing the ad hoc appointments made in gazetted posts. Section 3(1) of the Act provides that “all ad hoc appointments made by direct recruitment to any of the 4 Patna High Court LPA No.1209 of 2011 (7) dt.12-08-2013 4 / 5 gazetted posts by the State Government which were continuing up to 30th June 1986 are excluded from the purview of the Commission”. Sub-section (2) thereof provides that “the services of all gazetted officers appointed on ad hoc temporary basis up to 30th June 1986 and are continuing in service are regularized and their appointments are deemed to be made on regular basis with effect from the dates of their appointments”. Mr. Suraj Narayan Yadav has submitted that apart from the writ petitioner and 45 others, hundreds of ad hoc temporary appointments were made by the State Government over the years. All such ad hoc appointees appointed prior to 30th June 1986 and continuing up to the date of the Act were given the benefit of the above referred Section 3 of the Act. Their service has been deemed to be regular and valid right from their first appointment. The Medical Officers who were directly appointed on ad hoc basis after the appointment of the petitioner now stand regularized from the date of their first appointment on ad hoc basis. Whereas although the petitioner is entitled to similar benefit under Section 3 of the Act, because he took the competitive examination given by the Commission and passed it; he has been given seniority from the date of his regular appointment after recommendation by the Commission. In the process the Medical Officers who were hitherto junior to the petitioner have gained advantage over the petitioner and now they have become senior to the writ petitioner and have also been further promoted. A grave injustice has thus been caused to the writ petitioner. We do see an arguable point in the submission made by Mr. Suraj Narayan Yadav. But we must observe that that is not 5 Patna High Court LPA No.1209 of 2011 (7) dt.12-08-2013 5 / 5 the plea taken in the writ petition. In absence of proper averments made in the writ petition, the same was not answered by the State Government; nor the learned single Judge had occasion to consider the same. Further, if the writ petitioner claims that several thousand persons have been pushed above him on account of operation of Section 3 of the Act; all those persons are necessary parties to the writ petition. In absence of those persons, the writ petition could not have been entertained. At this stage, Mr. Suraj Narayan Yadav seeks leave to withdraw the writ petition with permission to file a fresh petition in the same subject matter. Learned Additional Advocate General Mr. Roy Shivaji Nath has no objection if the writ petition is allowed to be withdrawn at this stage. For the aforesaid reasons, this Appeal is allowed. Impugned judgment and order dated 20th April 2011 passed by the learned single Judge in CWJC No. 7043 of 2006 is set aside. CWJC No. 7043 of 2010 is disposed of as withdrawn. It is clarified that the writ petitioner will be at liberty to file substantive proceeding in the same subject matter but not without joining the necessary parties. Interlocutory Application stands disposed of. (R.M. Doshit, CJ) (Ashwani Kumar Singh, J) Sujit/-