IN THE HIGH COURT OF JAHRKHAND AT RANCHI
L.P.A. No. 597 of 2006
Niranjan Prasad Deo & others ..... Appellants
Versus
The State of Jharkhand and others ...... Respondent
...
CORAM : HON'BLE THE ACTINGCHIEF JUSTICE
HON'BLE MRS.JUSTICE JAYA ROY
.....
For the Appellants : M/s Shree Prakash Sinha & Satya Prakash Sinha,Advocates
For the State : Advocate General
For the Respondents : M/s J.P.Gupta, I.Sen Choudhary, S.P.Roy, R.S.Mazumdar,
Tapas Kabiraj, Saurav Arun, S.N.Prasad,Rajiv Ranjan,
Prabhash Kumar & Manish Mishra,Advocates
…..
C.A.V. On 8th June,2011 Delivered on 11th July,2011
Prakash Tatia, Act.C.J: This Letters Patent Appeal has been preferred to
challenge the order dated 14th July,2006 passed by the learned Single
Judge in W.P.(C)No. 6629 of 2005( Arvind Kumar and ors. Vrs. State of
Jharkhand and ors.), by which the writ petition of the petitioner to
challenge the order of promotion/appointment of some of the
respondents issued vide Notification no. 5775 dated 14th December,
1987 as also the orders of appointment of other respondents, which
were issued vide Notification nos. 1671 dated 13th April, 1988 and 5001
dated 10th August, 1989, has been dismissed after observing that the
petitioners are challenging the promotion and/or appointment of the
respondents and others issued 16 to 21 years back, and so far as issue of
seniority is concerned, the matter having been settled by the Hon’ble
Supreme Court, rendered in the case of Sanjay K.Sinha-II Vrs. State
of Bihar, reported in (2004) 10 SCC 734 , no further order is required
to be given. The learned Single Judge also observed that the State
Government is supposed to act in terms with the aforesaid decision of
the Supreme Court rendered in the case of Sanjay K.Sinha-II (supra)
2.
and if provisional gradation list dated 30th November, 2004 has been
issued in violation of the the Supreme Court’s order and that has been
brought to the notice of the authorities by the petitioners, the State
Government is required to decide such objection expeditiously. The
learned Single Judge further observed that it is expected that the State
Government will finalize the seniority list preferably within four months
from the date of receipt/ production of a copy of the order passed by the
High Court.
2. Aggrieved with the above order dated 14th July, 2006, the
appellants have preferred this Letters Patent Appeal.
3. This Court on 16th May, 2011 found that in the present Letters
Patent Appeal only notices for application under Section 5 of the
Limitation Act were issued as the appeal was preferred after delay of
107 days and since the learned Single Judge vide impugned order dated
14th July,2006 directed the State to take some decision in consonance
with the decision of the Supreme Court delivered in Sanjay K.Sinha-
II’s case , therefore, it was found proper to look into the merit of the
case without service of the notice for condonation of delay upon the
other respondents because if subsequent development has rendered this
appeal infructuous then there is no need to issue notice to the unserved
respondents. The learned Advocate General was requested to assist the
Court in the matter upon which the learned Advocate General pointed
out that he was counsel for the writ petitioners in earlier writ petition
and after taking notice of that fact this Court requested the learned
Advocate General to assist the Court only to address on the back ground
of the case and pursuant thereto the learned Advocate General brought
to our attention to the judgment of the Supreme Court delivered in the
case of Sanjay K.Sinha-II(supra) only, which judgment has already
been considered by the learned Single Judge. However, we have heard
3.
learned counsel for the appellants at length on the question whether the
present Letters Patent Appeal has become infructuous, in view of the
subsequent event or not.
4. It will be appropriate to recapitulate the facts of the case. The writ
petitioners have challenged the appointment of the respondent nos. 9
and 10, who were appointed on the posts of Assistant Conservator of
Forests, by competing in competitive examination in the year, 1985 and
were appointed vide notification no. 5775 dated 14th December, 1987,
which appointment, according to the petitioners, were given beyond the
advertised seventeen vacancies for general candidates and for quashing
the appointment of ten candidates, namely, respondent nos. 11 to 13 and
respondent nos. 14 to 20, whose appointment were made in two phases
vide notification no. 1671 dated 13th April, 1988 and vide notification
no. 5001 dated 10th August, 1989, which, according to the petitioners,
was made without any advertisement and was only to fill up the vacant
seats, allotted to the State of Bihar in the Training College, run by
Government of India. Then the petitioners have prayed for quashing the
retrospective seniority, given to 1987 batch promotee Assistant
Conservators of Forests (respondent nos. 21 to 41), who, according to
the petitioners, were already held to be appointed irregularly against
non-existing substantive vacancies, as held by the Hon’ble Court in the
case of Sanjay K.Sinha-II (supra). Then, the petitioners further prayed
for quashing the promotion and consequential seniority of respondent
no. 42, who was promoted to the post of Assistant Conservator of
Forests on 31st December, 1985 by the Government of Bihar, in
violation of letter dated 23rd September, 1985 of the Chief Conservator
of Forests, Bihar, whereby, it was already disclosed that quota for the
said promotion has already been occupied by the preoccupied by the
4.
source of recruited persons. The petitioners are aggrieved against the
placement of respondent no.42 Mr. R.L. Panna at first place in the
seniority list by the Forest & Environment Department, Government of
Jharkhand, vide resolution no. 2920 dated 26th July, 2004, over and
above 25 direct recruits of 1985 examination. Then the petitioners
further prayed for quashing of retrospective promotion and
consequential seniority, given to the promotee Assistant Conservators of
Forests (respondent nos. 43 to 48) w.e.f. 30th March, 1990, which
retrospective promotion was given in spite of the fact that petitioners’
names were recommended by the Bihar Public Service Commission,
much earlier vide letter no. 363 dated 3rd November, 1989. Then the
petitioners prayed for quashing the induction of respondent nos. 49 and
50 into Bihar Forest Services Cadre, as Assistant Conservators of
Forests, despite they having acquired Honours Degree in Forest Training
prior to 26th December, 1989, which, according to the petitioners, is in
violation of Rule 3(aa), added into the the Bihar Forest Services Rules,
1953. Then the petitioners further prayed for prohibiting the Forest and
Environment Department, Government of Jharkhand, from acting upon
resolution no. 2920 dated 26th July, 2004 of Government of Jharkhand
and tentative gradation list, by sending the names of the officer of State
Forest Services Cadre for induction into Indian Forest Services Cadre or
any promotional benefits to the respondents, without publishing final
gradation list, in view of the various objections to the tentative gradation
list dated 30th November, 2004 and lastly prayed for a direction to the
respondent-State of Jharkhand to publish the final gradation list, at the
earliest, keeping in view the objection to the tentative gradation list
dated 30th November, 2004 in the light of the judgment of the Hon’ble
Supreme Court, delivered in the case of Sanjay K.Sinha-II (supra).
5. A bare perusal of the reliefs, referred above, clearly indicate that
5.
the petitioners have prayed for several different reliefs, which may not
have any direct relation with each other, but, since the learned Single
Bench of this Court was of the view that the petitioners’ challenge to the
promotion/appointment of the respondents, made after 16 to 21 years,
cannot be entertained and since, the issue regarding seniority has already
been decided by the Hon’ble Supreme Court and the guidelines have
already been given in the judgment in the case of Sanjay K.Sinha-
II(supra), then the State should act in consonance with the views
expressed in the said case and therefore, we may examine the limited
issue as to whether the appellants can maintain the Letters Patent Appeal
to challenge the appointment referred above as well as the others and
appellants are entitled to any relief beyond the relief granted by the
learned Single Judge by issuing direction to the State to take a decision
regarding the above claim of seniority of the officers, in the light of
Sanjay K.Sinha-II’s case.
6. From the facts referred above, it is clear that the appellants had
challenged the appointment made vide notification no.5775 dated 14th
December, 1987 and the appellants are appointees of the year 1990, as
has been admitted in paragraph-4 of the writ petition. The writ
petitioners are direct recruits of the Batch of 1990. In Sanjay K.Sinha-
II’s case, the same appointment made on 14th December, 1987 were
under challenge and matter came up before Hon’ble Supreme Court and
Hon’ble Supreme Court in Sanjay K.Sinha-II and others Vrs. State of
Bihar and others, reported in (2004)10 SCC 734 examined the
challenge to the appointment made vide order dated 14th December,
1987, when it was challenged by the promotees in the service. The
Hon’ble Supreme Court after considering the cadre strength of Bihar
Forests Service and distribution of a post to promotees and direct
recruits in paragraph-12 held as under :
6.
” It is clear from the admissions made on behalf of the
respondents by way of affidavits filed in judicial proceedings that
sanctioned number of posts were not available in the year 1987
when the respondents were promoted as ACFs, rather the
promotions were made against non existing posts. Can such
promotions confer any right on the officers concerned
particularly over and above the other duly appointed officers in
the service like the appellants ? In this connection we have to note
that Rule 35 of Bihar Forest Service Rules provides that seniority
of officers appointed to the service is to be determined with
reference to the date of their substantive appointment. In order to
become a number of the service the persons concerned has to
satisfy at least two conditions – first, appointment must be in
substantive capacity, and second, the appointment has to be to the
post of service according to the Rules and within the quota to a
substantive vacancy ( per Keshav Chandra Joshi v. Union of
India)”
Further, in paragraph-13, it has been held as follows :
” In the present case, neither of the two conditions is
satisfied. The post to which substantive appointments were to
be made were not available, therefore, there could be no
appointment to the service when there is no appointment to
the service, much less substantive appointment to the service,
the promotees could not be given seniority with effect from
the purported date of their promotions”
7. However, inspite of holding that at the relevant time, the posts
were not available for appointment over which appointments have been
given to the persons vide order dated 14th December, 1987, the Hon’ble
Supreme Court did not choose to declare those appointment illegal nor
has quashed the said appointment. However, for other relief with respect
to seniority of the appellants over the respondents, the appointee, by
virtue of the order dated 14th December, 1987 , the Hon’ble Supreme
Court held that the State Government may regularize the appointment of
the respondent- promotees , obviously who were appointed in excess to
the quota and available seats, vide order dated 14th December, 1987,
but at the same time held that such respondents cannot given seniority
over and above the appellants-petitioners. Obviously the direct recruits
who were the appellants before the Hon’ble Supreme Court as well as
the writ petitioners. The Hon’ble Supreme Court then quashed the
seniority list dated 24th July, 1989 and direction was issued to the State
7.
Government to issue fresh seniority list, fixing the seniority of the
appellants over the respondents in accordance with the judgment
delivered by the Hon’ble Supreme Court.
8. In view of the above, any challenge to the appointment made by
notification dated 14th December, 1987 cannot be made as said issue has
been decided by the Hon’ble Supreme Court, though when challenged
by the other persons and not by the petitioners as well as by the direct
recruit, and Hon’ble Supreme Court refused to quash the said
appointment. Therefore, writ petition is not maintainable so far this
releif is concerned. Not only this, apart from the above fact that the
issue has been decided by the Hon’ble Supreme Court, the learned
Single Judge was also right in holding that the petitioners have
approached the Court after delay of 16 to 21 years and that is factually
correct and furthermore, the petitioners are challenging the order of the
appointment made by order dated 14th December, 1987 whereas they
themselves born in the cadre only in the year 1990 and, therefore, if they
had the grievance of giving appointment without there being any
vacancy in the direct recruit quota or promotional quota then that fact
was in their knowledge when they sought appointment in the process
initiated wherein they themselves were selected in the year 1990 then
also the writ petition of the petitioner suffers from delay and laches
which has been submitted in the year 2005 to unsettle the position which
stands settled decade ago and by the judgment of the Supreme Court
delivered in the year 2004 in Sanjay K.Sinha-II’s. Therefore, also the
petitioners were not entitled to any relief. In addition to above, if
petitioners want to take benefit of judgment delivered in the case of
Sanjay K.Sinha-II then also these petitioners were sitting on the fence
and in view of the judgment of Supreme Court relied upon by learned
counsel for the petitioners( though on different point ) delivered in the
8.
case of State of Orissa & ors. Vrs. Mamta Mohanty, reported in (2011)
3 SCC 436 , the petitioners “cannot wake up from deep slumber and
claim impetus from judgment in case where some diligent persons had
approached the Court within reasonable time”.
9. Apart from the above, there is another releif claimed by the
petitioners that the respondents, for the reason unknown, placed below
the writ petitioners in the seniority list for which the tentative seniority
list was published on 30th November, 2004 and petitioners have
submitted their objection against that tentative seniority/gradation list.
The learned Single Judge held that the State Government is bound to
decide the objection of the petitioners in finalizing seniority list. In fact,
the appellants got that relief which were sought in the writ petition as
their last relief. So, there was no occasion for these writ petitioners-
appellants to prefer Letters Patent Appeal in the light of the order issued
by the learned Single Judge, as referred above.
10. So far initial grievance of the appellants that State Government
was sitting over the finalization of the seniority list inspite of the
representation submitted by the petitioner is concerned, for that now the
final seniority list has been declared , as admitted by the appellant-writ
petitioner in the supplementary affidavit dated 7th June, 2011, and
petitioners-appellants admitted that Government of Bihar accepted the
recommendation dated 29.6.2010 of the High Level Committee and
accordingly published the final gradation list on 2nd July, 2010 and copy
of which has already been brought on record by the State of Bihar as
Annexure-E annexed with the supplementary counter affidavit.
According to the appellants, by this seniority list dated 2nd July,2010 the
appellant have been given relief, as prayed for in para-B & E , however,
it is also submitted by the learned counsel for the parties that several
writ petitions and counter writ petitions have been filed to challenge this
9.
final seniority list dated 2nd July, 2010 and those writ petitions are
pending. Therefore, also the writ petitioners-appellants’ relief, for
direction to the State Government, to consider and publish final
gradation list has already stand fulfilled and if, appellants are aggrieved
against the said list , as a whole or in part, then that is a separate and
independent cause of action and the scope of this litigation cannot be
enlarged to adjudicate upon the seniority/final gradation list dated 2nd
July, 2010 and, therefore, the present Letters Patent Appeal has become
infructuous.
11. It is also another issue that whether gradation list declared by the
Government of Bihar dated 2nd July, 2010 is binding upon the
Government of Jharkhand and if the State of Jharkhand is not accepting
this position, as contended by the appellants that the list published by
the State of Bihar is binding upon the State of Jharkhand , then that is
also a subsequent cause of action and this Letters Patent Appeal cannot
be converted into an entirely new lis between the petitioners-appellants
and State of Jharkhand, which has no relation with the original reliefs,
claimed by the writ petitioners, in the light of facts pleaded by the
parties.
12. Learned counsel for the appellants have cited several judgments
of the Hon’ble Supreme Court in support of his contention that
appointment beyond the number of post as well as appointment given
against non existent post are absolutely illegal and can be challenged at
any time by relying upon the judgments delivered in the case of Mukul
Saikia and ors. Vrs. State of Assam & ors.(2009)1 SCC 386, Rakhi
Ray Vs. High Court of Delhi & ors. (2010)2 SCC 637, Dr.M.S. Patil
Vrs. Gulbarga University and ors. (2010) 10 SCC 63, State of Orissa
& ors. Vrs. Mamta Mohanty (2011) 3 SCC 436. But, we are of the
considered opinion that in view of the judgment of the Hon’ble Apex
10.
Court in Sanjay K.Sinha-II’s case (supra), the second challenge to the
appointment referred above of the year 1987 , in the year 2005, cannot
be sustained when once the Hon’ble Supreme Court refused to entertain
the said challenge.
13. In sum and substance , in our opinion, the petitioners’ challenge
to the appointment was rightly rejected by the learned Single Judge
because of the reasons mentioned above by us. The appellants cannot
succeed in Letters Patent and further so far their request for
consideration of their representation and publication of final seniority
list is concerned, that has already given and if, appellants are aggrieved
against the new final seniority list on any count, including on the count
of list published by the State of Bihar which is not treated as binding
upon the State of Jharkhand, then that is a separate and independent
cause of action for which in this Letters Patent Appeal as well as in
original writ, no relief can be granted to the writ petitioners-appellants.
Hence, the Letters Patent Appeal preferred by the appellants is
dismissed, for the reasons mentioned above.
( Prakash Tatia, A.C.J. )
( Jaya Roy, J )
G.Jha/