Mahesh Prasad Mishra v. The State of Bihar & Ors.

Manoranajan Das S/o Sri Arun Chandra Das, Resident of B.S.T.D.C. Colony, North Krishnapuri, P.S- Krishnapuri Town and District- Patna, at present posted as Assistant Budget Controller, Department of Finance, Bihar, Old Secretariat, Patna.

Mohd. Muzzaffar Alam S/o Late Mohd. Nazir Akhtar Hussain, Resident of Village- Upharauli, P.S- Katra, District- Muzaffarpur, at present posted as Commercial Taxes Officer, Patna City, East Circle, District- Patna. 2 Patna High Court LPA No.1875 of 2011 (7) dt. 10-01-2013

Ramji Ravi Das S/o Late Deoki Mochi, Mohalla- Jaalpur, P.S- Sohsrai, District- Nalanda, at present Commercial Taxes Officer, Commercial Taxes Department Sasaram. …. …. Petitioners-Respondents 1st Set

Ramadhar Singh at present posted as Assistant Commissioner, In-Charge Munger Circle, Munger.

Subodh Ram at present posted as Accounts Officer, Bihar Rural Livelihood Project, Indira Bhawan, Patna.

Navin Kumar, Commercial Tax Officer In-Charge Jhanjharpur Circle, Jhanjharpur Division, Madhubani.

Kishore Kumar Sinha, Assistant Commissioner, Commercial Taxes, Begusarai Circle, Begusarai. …. …. Respondents-Respondents 2nd Set

The Secretary, Department of Personnel and Administrative Reforms, Bihar, Old Secretariat, Patna. ====================================================== .... .... Respondents-Performa Respondents With Letters Patent Appeal No.1927 of 2011 IN Civil Writ Jurisdiction Case No. 2321 of 2007 With Interlocutory Application No. 8597 of 2011 In Letters Patent Appeal No.1927 of 2011 ======================================================

Sujay Prakash Upadhayaya, Son of Sri Diwakar Upadhaya, Resident of Mohalla Flat No. 22, Arya Apartment, Patel Nagar, Police Station Shastri Nagar, District Patna, presently posted as Commercial Tax Officer (CTO) , Patna City East Circle ( 36th BPSC Batch).

Rajesh Kumar son of Late Dinesh Chandra Jha, Resident of Mohalla - 804, Mahesh Apartment, Khajpura Police Station Barari, District - Bhagalpur, presently posted as Commercial Tax Officer (CTO) , North Circle ( 36th BPSC Batch). .... .... Interveners Respondents-Appellants 3 Patna High Court LPA No.1875 of 2011 (7) dt. 10-01-2013

1. The State of Bihar. Versus

2. The Commissioner-cum-Secretary, Department of Finance (Commercial Taxes) Bihar, New Secretariat, Patna.

The Secretary, Department of Personnel and Administrative Reforms, Bihar, Old Secretariat, Patna. …. …. Respondents-Respondents 1st Set

Mahesh Prasad Mishra Son of Late Gayatri Prasad Mishra Resident of Village Haraji, P.S. Avtarnagar, District Sarat, at present Commercial Tax Officer, Begusarai.

5. Sahdeo Razak Son of Late Julab Razak, Resident of Village Madhusudan, P.S. Nathnagar, District - Bhagalpur, at present Commercial Tax Officer, Begusarai.

6. Nalini Ranjan Son of Late Durga Prasad Sinha, Resident of Village - Baghra, P.S. - Siwan, District - Siwan, at present posted as Commercial Taxes Officer, Patna South Circle, Patna

7. Ramadhar Pandey Son of Late Dinesh Pandey, Resident of Village Deep, P.S. Jhanjharpur, District - Madhubani at present posted as the Private Secretary to the Hon’ble Agriculture Minister, Bihar

8. Manoranjan Das Son of Shri Arun Chandra Das Resident of B. S. T. D. C. Colony, North Krishnapuri, P.S. Krishnapuri, Town and District Patna at present posted as Assistant Budget Controller, Department of Finance, Bihar, Old Secretariat, Patna

9. Mohd Muzaffar Alam Son of Late Mohd. Nazir Akhtar Hussain Resident of Village - Uphrauli, P.S. Katra, District - Muzaffarpur, at present posted as Commercial Taxes Officer, Patna City, East Circle, District Patna

10. Ramji Ravi Das Son of Late Deoki Mochi Mohalla - Jalalpur, P.S. Sohsarai, District - Nalanda, at present, Commercial Taxes Officer, Commercial Taxes Department, Sasaram …. …. Petitioners-Respondents 2nd Set

11. Ramadhar Singh, a Member of Bihar Finance Service at present posted as Treasury Officer, Jamui, District - Jamui

12. Subodh Ram, a Member of Bihar Finance Service at present posted as Accounts Officer, Bihar Livelihood Project, Indira Bhawan, Patna

Navin Kumar, a Member of Bihar Finance Service at present posted as 4 Patna High Court LPA No.1875 of 2011 (7) dt. 10-01-2013 Treasury Officer, Madhubani

Kishore Kumar Sinha, a Member of Bihar Finance Service at present posted as District Provident Fund Officer, Vaishali, Hajipur .... .... Respondents-Respondents 3rd Set ====================================================== Appearance : (In LPA No.1875 of 2011) For the Appellants : Mr. Siddhartha Prasad, A.C. to AAG-4 For the Respondents : Mr. Rajendra Pd. Singh, Senior Advocate Mr. Amar Nath Mishra, Advocate (In LPA No.1927 of 2011) For the Appellants : Mr. Y.V.Giri, Senior Advocate Mr. Sanjeev Kumar, Advocate For the Respondent State: Mr. Siddhartha Prasad, A.C. to AAG-4 For the Respondent Nos.5-11: Mr. Rajendra Prasad Singh, Senior Advocate ====================================================== Mr. Amar Nath Mishra, Advocate CORAM: HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH C.A.V. JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

7. 10-1-2013 Feeling aggrieved by the judgment and order dated 30th August 2011 passed by the learned single Judge in C.W.J.C. No.2321 of 2007, the respondent State of Bihar has preferred L.P.A. No.1875 of 2011 and the interveners have preferred L.P.A. No.1927 of 2011. The matter at issue is the inter-se seniority of the officers in Bihar Finance Service directly recruited by the Bihar Public Service Commission through 36th and 37th Combined Competitive Examination and the officers recruited by the Bihar Public Service Commission through Limited Competitive 5 Patna High Court LPA No.1875 of 2011 (7) dt. 10-01-2013 Examination held pursuant to the Bihar Finance Service (Recruitment by Selection) Act, 1990 (hereinafter referred to as “the Act of 1990”). The question posed for consideration by this Court is whether the inter-se seniority of the aforesaid officers would be regulated by Rule 39 of the Bihar Finance Service Rules, 1953 (hereinafter referred to as “the Rules of 1953”) or shall it be governed by the date of appointment on the principle of continuous officiation.

The learned single Judge has upheld the contention of the writ petitioners that the seniority shall be governed by Rule 39 of the Rules of 1953 and not by the principle of continuous officiation. Therefore, these Appeals. In our opinion, the principle of continuous officiation is a general rule of seniority accepted under the service jurisprudence in absence of specific rules of seniority. i.e. if the enactment or the rules governing the seniority provides for a particular mode of seniority other than the rule of continuous officiation, such statutory provision shall prevail over the general rule of continuous officiation. This leaves us to consider whether the Rules of 1953 or the Act of 1990 makes specific provision for determination of seniority of the officers appointed to Bihar Finance Service. The Government of Bihar has, in exercise of power conferred by proviso to Article 309 of the Constitution, framed the Bihar Finance Service Rules, 1953.

The said Rules came to be amended under the Government Notification dated 17th August 1981 issued in exercise of power conferred by proviso to Article 309 of the Constitution. The Rules of 1953, amended as aforesaid, provides for one cadre of Bihar Finance Service 6 Patna High Court LPA No.1875 of 2011 (7) dt. 10-01-2013 that consists of several posts ranging from Additional Commissioner of Commercial Taxes to the Assistant Treasury Officer. The said Rules also empower the Government to create or include any other post/s connected with the financial and tax administration of Bihar in the said cadre of Bihar Finance Service. The said Rules also enjoin the Government to review and ascertain the cadre strength at the beginning of each year. Rule 6 of the Rules of 1953 empowers the Governor to declare in the beginning of each year the number of existing vacancies in the cadre and the number of vacancies to be filled by direct recruitment and by promotion.

It further provides that not less than 50% of the vacancies shall be filled by direct recruitment. In other words, the Rules of 1953 provides for appointment to the Bihar Finance Service by direct recruitment and by promotion in the ratio of 1:1. Part III of the Rules of 1953 provides for eligibility and the manner in which the recruitment shall be made by the Bihar Public Service Commission. Part IV of the Rules of 1953 provides for eligibility and the manner in which the appointments be made by promotion. Rule 39 of the Rules of 1953 provides for seniority on the basis of the year of vacancy. The said Rule 39 as amended by 1981 Notification reads as under: “39. Seniority.- Notwithstanding anything to the contrary contained in any law or contract or any judgment, decree or order of any Court, Tribunal or authority, the seniority of the officers appointed to the Service shall be determined with reference to the year of vacancies declared under rule 6, against which they are appointed on probation.

If more than one officer is so appointed against vacancies of a 7 Patna High Court LPA No.1875 of 2011 (7) dt. 10-01-2013 i) iv) particular year- (i) to Service by direct recruitment, their seniority inter se shall be fixed according to the order of merit assigned by the Public Service Commission; (ii) to Service by promotion and by direct recruitment, the officer promoted shall take precedence over the officer recruited direct; (iii) Omitted. (iv) to the service by promotion from different gazetted services and non-gazetted ranks, their seniority inter se shall be determined by the order of preference assigned to them by the Public Service Commission, except that when more than one officer is promoted from the same service or cadre, their seniority shall be determined by the order of their position inter se in the service or cadre from which they were promoted : Provided that in the case where officers are promoted both from gazetted and non-gazetted posts, officers promoted from gazetted posts shall rank senior to those promoted from non-gazetted posts.” The State of Bihar, with a view to providing opportunity of appointment to Bihar Finance Service to the existing Government servants and with a view to incorporating provisions for reservation for Backward Classes, enacted the Act of 1990.

Sub-section (1) of Section 3 of the said Act enjoins the State Government to fix in each year the number of vacancies occurring up to 31st March to be filled separately by direct recruitment and by recruitment through selection from amongst the persons serving under the Government. The 8 Patna High Court LPA No.1875 of 2011 (7) dt. 10-01-2013 proviso thereto provides that not more than 25% of the total vacancies be filled in by appointment through selection. In other words, 50% of the vacancies earmarked for direct recruitment have been divided equally for appointment by direct recruitment in general and for appointment by direct recruitment by selection from amongst the Government servants. Section 12 thereof provides that the provisions contained in the Rules of 1953, if contrary to the provisions of the Act, shall not apply. In other words, the provisions contained in the Rules of 1953, unless contrary to the provisions contained in the Act of 1990, shall apply to the officers in the Bihar Finance Service appointed through Limited Competitive Examination conducted under the Act of 1990.

We may note here that the Act of 1990, though has provided for recruitment to Bihar Finance Service through Limited Competitive Examination and has made provisions related thereto, is silent in respect of seniority of the officers recruited through Limited Competitive Examination inter-se or vis-a-vis the officers appointed by direct recruitment or by promotion. Let us now examine the impact of the Rules of 1953 and the Act of 1990. At the outset we may note that the Act of 1990 is a legislative enactment whereas the Rules of 1953 are the rules framed by the Government of Bihar in exercise of power conferred by proviso to Article 309 of the Constitution. The Act of 1990 shall, therefore, prevail over the Rules of 1953. The Rules of 1953 provide for appointment to Bihar Finance Service by direct recruitment and by promotion in the ratio of 1:1. The Act of 1990 has created a third mode of recruitment by 9 Patna High Court LPA No.1875 of 2011 (7) dt.

10-01-2013 Limited Competitive Examination. Although it is not made explicit, it is apparent that the Act of 1990 makes special provisions for direct recruitment to Bihar Finance Service from amongst the persons serving under the Government of Bihar. Thus, the quota of 50% for direct recruitment, envisaged under Rules of 1953, has been divided between two sources again in the ratio of 1:1 i.e. 50% of the vacancies earmarked for direct recruitment have now been earmarked for direct recruitment from amongst the employees of the Government of Bihar i.e. those 50% of the vacancies (25% of the total vacancies) though will be filled in by direct recruitment it is confined to the Government employees only. The candidates other than the Government employees would compete for the remaining 50% of the vacancies earmarked for direct recruitment (i.e. 25% of the total vacancies). The resultant effect is that of all the vacancies in Bihar Finance Service, 50% are earmarked for appointment by promotion in accordance with Part-IV of the Rules of 1953; 25% of the vacancies will be filled in by direct recruitment in accordance with Part-III of the Rules of 1953 and 25% of the vacancies will be filled in by direct recruitment through Limited Competitive Examination in accordance with the Act of 1990.

True to its character, although the Legislature has enacted the Act of 1990 to provide for recruitment to Bihar Finance Service by Limited Competitive Examination, no specific provision has been made for determination of seniority of the officers appointed to Bihar Finance Service by Limited Competitive Examination. In absence of specific rule of seniority made under the Act of 1990, the seniority of the officers in Bihar Finance 10 Patna High Court LPA No.1875 of 2011 (7) dt. 10-01-2013 Service shall necessarily be governed by Rule 39 of the Rules of

1953. In our opinion, the learned single Judge has rightly held that the seniority of the writ petitioners vis-a-vis the other officers in the Bihar Finance Service particularly the officers appointed pursuant to the 36th and 37th Joint Competitive Examination will be governed by Rule 39 of the Rules of 1953. We also hold that the learned single Judge has rightly issued direction to the State Government to rearrange the seniority of the writ petitioners in accordance with Rule 39 of the Rules of