IN THE HIGH COURT OF JUDICATURE AT PATNA
C. REV. No.167 of 2008
1. The High Court of Judicature at Patna, through its
Registrar General.
2. The Registrar Establishment, Patna High Court, Patna.
3. The Assistant Registrar VI, Patna High Court, Patna.
------- Appellants---- Petitioners
Versus
1. Ram Kripal Prasad, son of late Braj Nandan Prasad,
resident of Road No.2, Qrs. No. C/10, Water Tower, P.S.
Kotwali in the Town and District of Patna.
2. Shri Kishori Lal, Son of name not known to the
Petitioner.
3. Anil Kumar Sinha, son of name not known to the
petitioner.
4. Yugal Kishore Singh, son of name not known to the
petitioner.
5. Anil Kumar No.II, son of name not known to the
petitioner.
6. Jai Prakash Narayan Sharma, son of name not known to the
petitoner.
All respondent Nos. 2 to 6 are Assistants of the High
Court of Judicature at Patna.
-------- Respondents---- Opposite Parties
With
C. REV. No.168 of 2008
1. The High Court of Judicature at Patna, through its
Registrar General.
2. The Registrar Establishment, Patna High Court, Patna.
3. The Assistant Registrar VI, Patna High Court, Patna.
------- Appellants---- Petitioners.
Versus
Ram Kripal Prasad, son of late Braj Nandan Prasad, resident
of Road No.2, Qrs. No. C/10, Water Tower, P.S. Kotwali in
the Town and District of Patna.
-------- Respondent-Respondent
-----------
For the Petitioners :- Mr. Lalit Kishore, Sr. Adv.
Mr. Piyush Lal, Adv.
For the Respondents :- Mr. Vindhyachal Singh, Adv.
PRESENT:- Hon'ble Mr. Justice C.M. Prasad
Hon'ble Mr. Justice Mihir Kumar Jha
J U D G E M E N T
2
Mihir Kumar Jha, J.
Both of these review applications arise
out of two separate orders dated 22nd April, 2008
in LPA No. 122 of 2005 and LPA No. 123 of 2005,
emanating from connected writ petitions CWJC No.
467 of 2000 and CWJC No. 90 of 2003 respectively.
Both the aforementioned writ applications filed by
the same writ petitioner, Ram Kripal Prasad were
disposed of by the learned single Judge by his
common judgment and order dated 23.12.2004,
whereafter the petitioner of these review
application, namely, the High Court of Judicature
at Patna and its officials had filed two appeals,
LPA No. 122 of 2005 and LPA No. 123 of 2005 which
were disposed of by the impugned orders dated
22.4.2008 giving rise to these two review
applications Civil Review No. 167 of 2008 and Civil
Review No. 168 of 2008.
2. The facts in brief of these two cases
are however plain and simple. Sri Ram Kripal Prasad
(hereinafter to be referred to as „the writ
petitioner‟) came to be appointed on the post of
Ex-Cadre Assistant in the Patna High Court on
11.8.1973 primarily on the ground that his father
late Brajnandan Prasad, being an employee of this
3
Court holding the post of Section Officer, had died
in harness on 17.1.1973. Such out of turn
appointment of the writ petitioner, therefore,
basically being purely humanitarian ground at a
point of time there was no policy or provision for
appointment on compassionate ground was made
without following the prescribed procedure for
appointment as prevalent under the 1951
Rules/Guidelines. It was therefore an appointment
under special circumstances and eventually had
contained specific terms and conditions, which for
the sake of clarity, is quoted hereinbelow:-
“Memo No. 4280/Accounts, Dated 11.8.73
To
Sri Ram Kripal Prasad
C/O Sri Ram Nandan Prasad, Asstt.,
Administratie (Apptt.) Deptt.,
High Court, Patna.With reference to his application for the
post of an Assistant in the establishment of
the Court, Sri Ram Prasad is hereby informed
that he has been selected for appointment as an
Ex-cadre Assistant on a pay of Rs. 220/- per
month in the scale of pay of Rs. 220-4-240 EB-
5-290 EB-5-315 pluse the usual allowance under
the rules.He is further informed that the
appointment in subject to the condition that he
will have to appear at the general recruitment
test to be held hereafter and qualify himself
for regularizing his appointment.The appointment is purely on a temporary
basis and may terminated without any notice and
4assigning any reason.
No traveling allowance is admissible for
joining the appointment.If he is willing to accept the appointment on the aforesaid terms, he ishereby directed to join his appointment within
a week from the date of receipt of this letter.He is also directed to produce medical
certificate of fitness from the Civil Assistant
Surgeon I/C of a Government Dispensary enjoying
the status of a Deputy Superintendent or from a
Deputy Superintendent of a Government Hospital
at the time of joining the post.If employed in any office, he must bring
with him the relieving certificate from his
employer at the time of joining the pot. He may
also bring with him the original certificates
at the time of joining.Sd./-
Deputy Registrar”
3. At this place, it would be relevant to
mention here that when the appointment of the writ
petitioner was made as Ex-Cadre Assistant, the
ministerial post in the High Court for constituting
the strength of Clerks and above, had the
nomenclature of Lower Division Clerk and Upper
Division Clerk as prevalent in the Secretariat of
the State Government. Thus, all the other Class III
and IV posts below Lower Division Clerk were
promotional post to the post of Lower Division
Clerk and one among them was the post of Ex-Cadre
post having a different lower pay-scale. The
5minimum qualification for the post of Lower
Division Clerk as per the 1951 Rules/Circular of
the High Court was Intermediate whereas any one
could be appointed on the lower Ex-Cadre post even
while holding the qualification of Matriculation.
Thus, when the writ petitioner was appointed out of
turn on the post of Ex-Cadre Assistant on 11.8.1973
in the pay-scale of Rs. 220-315, he, in terms of
his appointment, had to successfully clear the
general recruitment test for being regularized on
the post of Ex-Cadre Assistant itself before
becoming eligible to be considered for his
promotion on the higher post of Lower Division
Clerk in the pay-scale of Rs. 260-408. The history-
sheet of the writ petitioner would, however, go to
show that even when he had appeared in a series of
general recruitment tests as per his terms and
conditions in the appointment letter dated
11.8.1973 for regularizing his service as Ex-Cadre
Assistant, he could not pass any one of them and
thus could not clear the prescribed condition of
his appointment as Ex-Cadre Assistant.
4. In the year 1977 after merger of the
post of Lower Division Clerk and Upper Division
Clerk as Assistant in the Secretariat, when the
6same pattern was adopted in the High Court, the
writ petitioner became overenthusiastic to stake
claim for the post of Assistant on the ground that
he had continued in service for eight years or so
but, the High Court Establishment did not allow
such prayer of the petitioner and taking into
account of his continued satisfactory service as an
Ex-Cadre Assistant had merely regularized his
appointment as Ex-Cadre Assistant with effect from
27.5.1981 by waiving the conditions imposed in his
appointment letter as would also appear from the
communication made to the petitioner on 6th of
July, 1981 which reads as follows:-
“Memo No. 6612/Accounts, Dated, Patna the 6th
July, 1981
Sri Ram Kripal Prasad,
Ex-cadre Assistant of the Court.
With reference to his application dated
21.01.1981, Sri Ram Kripal Prasad is hereby
informed that his appointment as an Ex-cadre
Assistant has been regularized from
27.05.1981.By order of Hon’ble the C.J.
Sd/- T.L. Verma
Deputy Registrar-I”5. The writ petitioner however was not
satisfied with the aforementioned order and in
July, 1982, he had filed a representation for his
being regularized/absorbed/prescribed on the post
7of Assistant either with effect from 11.8.1973 or
with effect from 11.8.1976 when he had completed
three years service as an Ex-Cadre Assistant and
for this purpose, he had relied on the two
circulars of the State Government dated 12.7.1977
and 17.5.1980. The said representation of the writ
petitioner, however, was rejected on 19.8.1982 in
view of the subsequent decision/policy decision of
the High Court on the administrative side on
17.6.1982 wherein it was pointed out that an Ex-
Cadre Assistant, being only Matriculate and the
qualification of the Assistant being that of
Graduation, anyone who could claim such
regularization on the post of Assistant either by
way of absorption or internal appointment or
promotion must have passed the prescribed
examination/recruitment test for the post of
Assistant. Subsequently, the said administrative
decision of the High Court taken on 17.6.1982 under
the order of the Hon‟ble Chief Justice had slightly
been modified by yet another administrative
decision dated 21.3.1986 wherein Hon‟ble the Chief
Justice had agreed with the proposition that Ex-
Cadre Assistant who had been in service on or
before 17.2.1982 could be given promotion on the
8post of Assistant on the basis of old policy
existing before 17.6.1982. As noted above, before
1982 there was no prescribed recruitment test for
absorption/regularization/promotion of the Ex-Cadre
Assistant to the post of L.D.C./Assistant and as
such, when in the light of this administrative
decision the case of writ petitioner was considered
with nine others and they were temporarily
appointed as Assistant in the Patna High Court in
the pay-scale of Rs. 785-1210 with effect from
30.4.1986, the text whereof reads as follows:-
“HIGH COURT AT PATNA
The following Typist and Ex-cadre
Assistants are appointed temporarily as
Assistants of the Court in the scale of pay of
Rs. 785-25-1135-E.B.-25-1210, with effect from
30th April, 1986.(1) Sri Satish Kumar (Typist) (2) " Madnendra Kishore (Typist) (3) " Tara Kant Das (Typist) (4) " Rama Kant Prasad Sinha (Typist) (5) " Umesh Prasad (Typist) (6) " Dinesh Kumar Verma (Typist)- Ranchi) (7) " Md. Nazimuddin (Typist) - (Ranchi) (8) " Arvind Kumar Sinha (Ex-cadre Assistant) (9) " Ram Kripal Prasad (Ex-cadre Assistant)(10) ” Ajoy Kumar Sinha (Ex-cadre Assistant)
They will not get the benefit of pay
fixation as admissible to promoted employees.Four appropriate vacancies have been kept
reserved.By order of the Registrar,
Sd./- Mudrika Prasad
Deputy Registrar-I
Memo No. 4614-29/Accounts Dated, Patna 5th May,
1986.”9
6. The writ petitioner, therefore, had
been appointed on the post of Assistant only after
the issuance of the said order dated 30.4.1986,
though he was persistently claiming his
retrospective appointment on the post of Assistant
w.e.f. 11.8.1973 or 12.7.1977 and his such claim
specifically raised had been rejected by the High
Court Establishment on 6.7.1982. In fact, it was
after twelve years of rejection of earlier
representation and eight years of his being
appointed on the post of Assistant in the Patna
High Court with effect from 30.4.1986 that he had
filed a representation on 10.10.1994 seeking his
regularization on the post of Assistant with effect
from the same date on which he was appointed as Ex-
Cadre Assistant i.e. 11.8.1973 or in the
alternative from 12.7.1977 in view of the Circular
of the State Government dated 12.7.1977 and
17.5.1980. Such representation of the writ
petitioner, in fact, was once again rejected on
2.4.1995 but then the petitioner had continued with
his unabated spirit to claim the benefit of the
post of Assistant, its seniority and the
consequential promotional benefit and for this
purpose he had filed yet another separate
10representation, this time in the garb of
restoration of his seniority of the post of Ex-
Cadre Assistant, Assistant and Assistant Selection
Grade vide his detailed representation dated
26.9.1995. Such representation being only “old wine
in the new bottle” was once again considered and
rejected by the High Court Establishment on
21.11.1995, whereafter, the writ petitioner had
remained silent for next two years before filing
yet another representation on 15.12.1997 for the
same purpose of seeking his regularization on the
post of Assistant with effect from 11.8.1973. This
representation was once again rejected on 10.8.1999
and had given rise to CWJC No. 467 of 2000, wherein
the prayer of the writ petitioner was as follows:-
“1(i) For quashing the order issued under the
signature of Assistant Registrar VI dated
10th August, 1999 by which the prayer for
regularization of service of the
petitioner from the date of his joining
has been rejected.(ii) For a further direction to the respondent
authorities for treating the service of
the Petitioner regularized since
14.8.1973, when the petitioner was
appointed on compassionate ground;(iii) For a further direction to the respondent
authorities to grant the petitioner
notional promotion in the cadre of
Assistant with effect from 14.8.1976,
11when he completed 3 years of service in
ex-cadre post and he passed the
intermediate Examination in the year
1974.”7. While the said writ application filed
on 13.1.2000 was pending, the writ petitioner came
with another writ application CWJC No. 90 of 2003,
this time challenging the order of promotion dated
17.5.2002 of five persons, namely, Kishori Lal,
Anil Kumar Sinha, Yugal Kishore Singh, Anil
Kumarand Jai Prakash Narayan Sharma and also
seeking a direction for his promotion on the post
of Section Officer on the ground that he was senior
to the aforementioned five persons arrayed as
respondent nos.4 to 8 in CWJC No. 90 of 2003.
8. Both the writ applications CWJC No. 467
of 2000 and CWJC No. 90 of 2003, being more or less
complementary to each other, were heard together by
the learned single Judge who, by his common
judgment and order dated 23.12.2004, had disposed
of them by virtually rejecting each and every plea
of the writ petitioner holding the writ petitions
to be grossly delayed and the writ petitioner not
entitled to question the terms and condition of his
initial appointment of passing the recruitment test
for regularization of his service as an Ex-Cadre
Assistant and also rejecting the plea of
12discrimination but then holding that regularization
of the service of the petitioner as an Ex-Cadre
Assistant by waiving the condition of appointment
of the petitioner as contained in letter dated
11.6.1973 would amount to his entry in the cadre of
Assistant with effect from 6.7.1981, which would
entitle him for seniority and consequential
consideration of promotion on the post of Assistant
and higher post with effect from 6.7.1981. The
findings and the operative portion of the judgment
and order of the learned single Judge dated
23.12.2004 in the two writ petitions CWJC No. 467
of 2000 and CWJC No. 90 of 2003 need to be
extracted and quoted for appreciating the issue
involved in these two review applications which
reads as follows:-
“17. The petitioner was however regularized by
an order dated 6th July 1981. The order of
regularization shows that there was no
circumstantial change in the position
since the appointment of the petitioner.
The petitioner remained yet to fulfil the
condition of the appointment. At this
stage, the respondents suo moto and
unilaterally decided to regularize his
services on the ground of satisfactory
services and his having completed five
years as an Ex Cadre Assistant and that he
has not earned any adverse remark. Quite
clearly there was no criterion for the
13fixation of this date in July 1981 for
regularization of his services. This Court
therefore comes to the conclusion that the
said date of July 1981 was quite simply a
fortuitous date. The respondents having
decided to grant him the benefit by a
fiction of law would be required to
consider extending it to its logical
conclusion and grant him seniority
accordingly.18. In the circumstances, while holding that
the petitioner is not entitled to
consideration for the relief of promotion
as an Assistant either from 1973, 1976 or
1978, this Court does not find that the
petitioner has been able to make out a
case to be considered for promotion and
placement in the seniority list of
Assistants effective from July 1981 when
he was inducted into the Cadre. In view of
the law laid down in the judgment reported
in AIR 1993 SC 1221 (State of M.P. Vs. Sri
Kant Chapkekar):-4. “—-This Court has repeatedly held
that in a case where the
Court/Tribunal comes to the
conclusion that a person was not
considered for promotion or the
consideration was illegal then the
only direction which can be given is
to reconsider his case in accordance
with law—-”The only proper order that can
therefore be given in the present case is
to hold that the petitioner would be
entitled to the consideration of the case
for seniority and placement in the Cadre
of Assistant with effect from July 1981.
Order accordingly.”9. As the said direction of the learned
14single Judge was against the specific case of the
High Court on the administrative side which had
recognized the entry of the writ petitioner in the
Cadre of Assistant only with effect from 30.4.1986
it had filed two letters patent appeal LPA No. 122
of 2005 and LPA No. 123 of 2005 and they came to be
disposed of by two different orders both dated
22.4.2008. The impugned order was passed in LPA No.
122 of 2005 wherein the Division Bench had found
apparent anomaly in recording the fact by the
learned single Judge that the writ petitioner had
been regularized on the post of Assistant with
effect from 6.7.1981. The Division Bench, however,
having noted that the order dated 6.7.1981 did not
regularize him on the post of Assistant but only as
an Ex-Cadre Assistant, however, took a view that
the subsequent order dated 30.4.1986 appointing the
writ petitioner on the post of Assistant was in
effect, an order of transfer from Ex-Cadre to the
Cadre and as such he was entitled to carry the
experience of the Ex-Cadre Post and therefore the
direction of the learned single Judge was not
required to be interfered. The text of the order
passed by the Division Bench disposing of LPA No.
122 of 2005 in fact reads as follows:-
"In 1973, the sole respondent was 15 appointed as an Ex-Cadre Assistant on thecondition that he would be required to sit and
pass the examination to be conducted in future
for appointment of Assistants. This appointment
was granted to the respondent considering the
death of his father, an employee of the High
Court, who died in harness. Although,
admittedly at the time when this appointment
was given, a compassionate appointment to a
member of the family of a deceased High Court
employee, who has died in harness, was not
available. The respondent failed to succeed in
the examination for appointment of Assistants
although he sat in at least one of the
examinations held for that purpose. On the same
terms and conditions, the respondent worked
until July, 1981, when waiving the term that he
would be required to sit and succeed in an
examination to be held for recruitment of
Assistants, the services of the respondent was
regularized considering his past five years
services. Respondent was regularized as an Ex-
cadre Assistant. He was not regularized as an
Assistant. Ex-cadre Assistants are entitle to a
lesser pay scale than Assistants. In 1986,
respondent was appointed as an Assistant. In
the writ petition, respondent contended that he
should be treated to be an Assistant since 1973
or since 1976 or since 1978. The Court rejected
such claim. By the Judgment appealed against,
Court held that the respondent should be
entitle to seniority as an Assistant with
effect from July, 1981 and treating the
respondent as such his case for further
promotion should be considered.In the present appeal, appellant contends
that in July, 1981 respondent was regularized
16as an Ex-cadre Assistant and not as an
Assistant, he became an Assistant only in 1986
and accordingly, seniority of the respondent as
an Assistant cannot be taken note of from July,
1981.The fact remains that in July, 1981
respondent, on being regularized as an Ex-cadre
Assistant, became a Government employee. In
such view of the matter, immediately before he
was made an Assistant, he was a Government
employee and accordingly, could not be
appointed afresh for it is no body’s case that
before such appointment respondent resigned. In
such view of the matter, one is required to
ascertain whether appointment of the respondent
in 1986 as Assistant was a promotion or a
transfer. If it was a promotion than of course
the respondent was entitle to count his
seniority as Assistant from the date of his
promotion and not from a date prior thereto.
The order by which respondent was appointed or
made an Assistant states, amongst others, that
the respondent shall not be entitle to fixation
of pay as admissible to promoted employees.
That clearly denotes that the respondent was
not promoted, but was transferred from Ex-cadre
to Cadre.It is well settled in law that a person
working in Ex-cadre, while transferred to the
Cadre, carries with him experience he has
earned in the Ex-cadre post.Accordingly, we see no infirmity in the
order except that the learned Judge by mistake
did not take note of the fact that the
regularization of the respondent in July,
1981was in the post Ex-cadre Assistant.With the observations, as above, the
17appeal is disposed of without any order as to
costs.”10. In the light of the aforementioned
order in LPA No. 122 of 2005, the division Bench
has also dismissed the LPA No. 123 of 2005 by a
separate order on the same date recording as
follows:-
“The facts and the circumstances of the
case are identical to those dealt with by us in
L.P.A. No. 122 of 2005. In such view of the
matter, we feel that the law applicable in
relation thereto is also identical.in those circumstances, for the reasons
recorded in the Judgment and order rendered by
us in L.P.A. No. 122 of 2005, we also find no
reason to interfere with the Judgment and Order
under appeal. The appeal fails and the same is
dismissed without any order as to costs.”11. Mr. Lalit Kishore, learned senior
counsel for the petitioner ably assisted by his
junior counsel Mr. Piush Lal had submitted before
us that it is the conclusion of the Division Bench
of treating the appointment of the writ petitioner
on the post of Assistant dated 30.4.1986 as his
transfer from Ex-Cadre Assistant to the post of
Assistant, which is an apparent error on the face
of record in view of the specific wordings of the
order dated 30.4.1986. In this context, he has also
contended that if the basic concept of service
18jurisprudence of reckoning seniority on the post in
question of the Assistant as per the statutory
rules namely Patna High Court Officers and Staff
(Condition of service and conduct) Rules, 1997 is
applied, the writ petitioner cannot claim seniority
on the post of Assistant from any other date save
and except 30.4.1986. He has also contended that if
the view taken by the Division Bench of treating
the appointment of the writ petitioner as an
Assistant dated 30.4.1986 is to be treated as an
order of transfer from the post of Ex-Cadre
Assistant to the post of Assistant, it would give
rise to serious complication and in fact would
amount to re-writing the Cadre Rules for
appointment and seniority on the post of Assistant.
He has, therefore, submitted that once the Division
Bench had found that the whole premises of the
direction given by the learned single Judge in his
judgment and order dated 23.12.2004 was based on an
incorrect premises of the reading of the order of
regularizing the services of the writ petitioner as
an Ex-Cadre Assistant dated 6.7.1981, the logical
conclusion was to quash that part of the order
instead of approving it on a ground of transfer of
the writ petitioner from the post of Ex-Cadre
19Assistant to the post of Assistant which was not
even the case of the writ petitioner either in the
writ application or in the counter affidavit filed
by the writ petitioner in the connected letters
patent appeal and to that extent, he has relied on
the averments made by the writ petitioner filed in
the writ application and the counter affidavit
filed in the appeal by placing reliance on
paragraph no.10 of the counter affidavit filed by
the writ petitioner in the connected LPA No. 122 of
2005, reading as follows:-
“—— As an ex-cadre Assistant as on
27.5.1981 he was Graduate and also passed the
Departmental examination. Therefore, he was
entitled to be promoted by appointment to the
cadre of Assistant on any date after the
regularization in May 1981.”12. Mr. Lalit Kishore in this context has
also taken us to the whole scheme of appointment on
the post of Ex-Cadre Assistant right from 1951 and
its marked distinction with the post of Assistant
and in this context, he has also explained that not
only qualification for the post of Ex-Cadre
Assistant initially being Matriculation and later
on upgraded as Intermediate was lower than the
prescribed qualification for the post of Assistant
being Graduate in any discipline but the said post
20of Assistant had all along been a higher post with
higher pay-scale and, therefore, an Ex-Cadre
Assistant cannot even remotely claim his transfer
on the post of Assistant which has to be filled up
only by two modes, namely, either direct
appointment from open market or appointment from
amongst the subordinate Class-3 employees holding
the lower post to that of Assistant by following
the prescribed norms. It is in this context that he
has also taken us to the present prevailing
practice under 1997 Rules where 50% post of
Assistant have to be filled up from direct
recruitment and remaining 50% post have to be
filled up on the basis of limited departmental
examination/recruitment test for the working
employees of the High Court categorized into two
groups, namely (a) Class-4 employees and (b) Class-
3 employees. He has, therefore, commended before us
that the Division Bench in the impugned judgment
had committed an apparent error on the face of
record by holding the order of appointment of the
petitioner dated 30.4.1986 to be an order of his
transfer from the post of Ex-Cadre Assistant to the
higher post of Assistant.
13. Per contra, Mr. Vindhyachal Singh,
21learned counsel for the writ petitioner has
submitted that the scope of review being well
circumscribed, the writ petitioner cannot be
allowed to make out a third case and the order of
the learned single Judge recognizing the services
of the writ petitioner as Assistant with effect
from 6.7.1981 needed no interference. In this
context, he has relied on the principle of
continuous officiation to contend that once the
services of the writ petitioner was regularized on
6.7.1981 even when he had not passed the
recruitment test as per the original terms and
conditions of his appointment dated 11.8.1973, it
will be deemed that the writ petitioner‟s
appointment on the post of Assistant had got
regularized with effect from 6.7.1981. In this
context, he had also tried to explain that though
the writ petitioner was Matriculate at the time of
his appointment on 11.8.1973 and had joined the
service on account of untimely death of his father
but he had improved his qualification and had
become Intermediate in the year 1974 and as such
when he had also completed a period of three years
of service as on 11.8.1976, it was incumbent on the
part of the High Court to regularize his service on
22the post of Assistant on completion of three years
well before the merger of the post of Lower
Division Clerk and Upper Division Clerk which had
come into being only with effect from 1.4.1977. He
had accordingly canvassed for not disturbing the
view taken by the Division Bench while correcting
the error of the learned single Judge as with
regard to the interpretation of the order dated
6.7.1981 and yet giving substantial relief to the
writ petitioner for his being treated to have been
absorbed on the post of Assistant with effect from
6.7.1981 which had resolved the long pending
grievances of the writ petitioner.
14. In the considered opinion of this
Court, the whole issue in this review application
is as to whether the order dated 30.4.1986
appointing the petitioner on the post of Assistant
can be treated to be an order of transfer from the
post of Ex-Cadre Assistant to the Assistant? If,
the facts of the case of the writ petitioner can
still justify his being transferred from the post
of Ex-Cadre Assistant to the post of Assistant,
there would be no difficulty in holding such
appointment of the petitioner on the post of
Assistant even by way of transfer, inasmuch as, it
23is well settled in service jurisprudence that there
can be appointment on the post by direct
recruitment, by promotion, by absorption or by
transfer.
15. It is, however, well known that
transfer of a person can only be made if he is
holding the same rank and post which are
interchangeable and transferable. In the present
case, it is more than clear that in the High Court
Establishment, the post of Assistant has always
been a higher post to the post of Ex-Cadre
Assistant. At all point of time, an Ex-Cadre
Assistant had to be appointed by way of promotion
to the higher post of Assistant and in fact, that
was the case of the writ petitioner either before
the learned single Judge or before the Division
Bench as is clear from the extracted portion of the
counter affidavit. As a matter of fact, the date on
which the petitioner was appointed as an Ex-Cadre
Assistant and that too subject to his passing the
prescribed recruitment test for the post of Ex-
Cadre Assistant, the pay scale of the post of Ex-
Cadre Assistant was Rs. 220-315, whereas the post
of Assistant (LDC) was Rs. 260-408.
16. This distinction in the pay-scale
24based on rationale of different qualifications
earlier Matriculation and later on Intermediate for
the post of Ex-Cadre Assistant and Graduation for
the Assistant has all along been maintained in the
establishment of the High Court and the following
chart would go to show that the post of Ex-Cadre
Assistant and that of Assistant had never carried
the same pay-scale so as to make two posts
transferable.
Date Pay-Scale of Ex- Pay-Scale of Cadre Assistant Assistant 1973 220-315 260-408 1981 535-765 785-1210 1986 975-1540 1500-235017. Since the petitioner‟s case as allowed
by the Division Bench in the impugned order is one
of transfer, a question would arise as to whether
the petitioner drawing the salary in the pay-scale
of Rs. 535-765 as an Ex-Cadre Assistant could be
transferred to the post of Assistant having the
pay-scale of Rs. 785-1210. It is here that the
concept of transfer under Rule 54 of Bihar Service
Code will directly come into play which recognizes
the transfer from an identical post having
identical pay-scale to another post having the same
scale of pay. Thus the order dated 7.6.1981, which
only had regularized the services of the petitioner
25on the post of Ex-Cadre Assistant by
condoning/relaxing the requirement of passing the
recruitment test as originally imposed in the order
of his appointment dated 11.8.1973 was only by way
of recognition of his service as Ex-Cadre Assistant
and not as an Assistant, inasmuch as, he was never
given the pay-scale of Assistant by the order dated
6.7.1981. Once this aspect becomes clear that the
regularization of the writ petitioner on 6.7.1981
was made only against the post of Ex-Cadre
Assistant as was also held by the Division Bench in
the impugned judgment, the logical outcome of the
expression „appointment‟ expressly used in the
order dated 30.4.1986 would be that the petitioner
was appointed on the post of Assistant w.e.f.
30.4.1986 by way of internal recruitment as he was
appointed prior to 17.2.1982 in terms of the
administrative decision taken on 21.3.1986 vide
Annexure-7 to the review application (C.Rev. No.
167 of 2008).
18. It, therefore, becomes clear that the
writ petitioner was required to appear in the
examination for his promotion on the higher post of
Assistant in the pay-scale of Rs. 785-1210 at a
point of time when he was on the lower post in the
26pay-scale of Rs. 535-765 which in turn would lead
to an irresistible conclusion that his entry in the
cadre of Assistant could have been on no other date
save and except the date indicated in the order
dated 30.4.1986 which had not only fixed the date
of his appointment as an Assistant as 30.4.1986 but
also had made it clear that no promotional benefit
would be available to the petitioner in the matter
of pay-fixation as was admissible to the other
promoted employees. It was thus curtains for the
writ petitioner and the writ petitioner having not
challenged the said order dated 30.4.1986 at any
point of time cannot now wriggle out by taking
different plea at different point of time. Once
this aspect becomes clear that the appointment of
the petitioner on the post of Assistant was made
with effect from 30.4.1986, his seniority in the
cadre of Assistant will have to be counted only
with effect from 30.4.1986 and not from any earlier
date. It is, therefore, manifest that the concept
of transfer of the petitioner from the post of Ex-
Cadre Assistant to the post of Assistant by the
order dated 30.4.1986 as introduced and upheld by
the Division Bench in the impugned order is an
apparent error on the face of record, inasmuch as,
27either on fact or in law that the said order of
appointment of the writ petitioner dated 30.4.1986
on the post of Assistant cannot be read as an order
of his transfer from lower post of Ex-Cadre
Assistant to the higher post of Assistant.
19. In our considered opinion, there
infact has been some sort of complete confusion in
understanding the concept of the expression „Ex-
Cadre Assistant‟ in its true perspective in the
context of High Court Establishment in which the
said post has been all along in existence till
date. The post of Ex-Cadre Assistant has never been
an equivalent post of Assistant in the High Court
rather the qualification for the two posts, the
pay-scale and the channel of earning promotion by
way of internal recruitment from the post of Ex-
Cadre Assistant to the post of Assistant would only
go to show that the post of Ex-Cadre Assistant is
an equivalent post of Routine Clerk in the
secretariat of the State Government which has only
channel of promotion to the post of Assistant with
other eligible Class-3 employees whenever such post
of Assistant is to be filled up on quota basis. The
prescribed procedure, therefore, either in the
State Government or in the High Court is that
28certain percentage of vacancy is left open for the
internal recruitment from amongst the eligible
employees who also can be appointed on the post of
Assistant which otherwise is the basic post of the
cadre of ministerial officer in the High Court or
in the State Government. Simply because the word
„Ex-Cadre‟ has been tagged with the word
„Assistant‟ in designating the post of Ex-Cadre
Assistant in the establishment of the High Court,
it does not mean that the two posts are equal or
comparable or that the High Court has certain
number of post of Assistant in the sanctioned
strength and certain post of Assistant in the Ex-
Cadre Establishment. The post of Ex-Cadre Assistant
was initially a lower post to L.D.C. and how the
post of Assistant and has become only a feeder post
for filling up the post of Assistant which as per
the prescribed rule and procedure has to be filled
up either from direct recruitment or from internal
recruitment.
20. Once this aspect becomes clear, there
would be no difficulty in coming to the conclusion
that there was an apparent error of record in
holding the petitioner to have been transferred
from the Ex-Cadre Establishment to the Cadre
29Establishment on the post of Assistant as on
6.7.1981, which is the only basis for not
interfering with the operative portion of the order
of the learned single Judge dated 23.12.2004 in the
two writ applications filed by the writ petitioner.
For the same reason, we find it difficult to accept
the submission of learned counsel for the
petitioner supporting the impugned order on the
ground that in the year 1986, on 30.4.1986, the
petitioner having already been continuing in the
Establishment of the High Court on an Ex-Cadre
Assistant could not have been appointed on the post
of Assistant. The concept of appointment in the
service jurisprudence will never connote or mean
only direct appointment (recruitment) from open
market but it can also be appointment by way of
internal recruitment as per the Cadre Rules.
21. As noted above, there has always been
practice even before 1976 to allocate certain
percentage of post for the working class-3
employees or even class-4 employees to be
considered for appointment on the post of Assistant
and, therefore, the reasoning that such persons
would be required to resign from their post held by
them in order to be appointed on the post of
30Assistant also does not seem to be correct.
22. To us it is very clear that the post
of Assistant being basic post of the Cadre of
ministerial officer has to be essentially filled
up both by way of direct recruitment and internal
recruitment and in either case, it still remains a
case of appointment wherein the promotional benefit
of giving 12.5% of salary fixation is not
admissible as per the Government Rules. We,
therefore, are constrained to hold that the
conclusion arrived by the Division Bench in the
impugned order that since the writ petitioner was
not given the promotional benefit of the post of
Assistant by way of salary fixation, it would
amount to his being transferred to the Cadre of
Assistant, suffers from an apparent error on the
face of record. Consequently, we would hold that
the petitioners have made out a case for review of
the impugned order. Additionally, we would hold
that the moment the Division Bench in the impugned
judgment of the learned single Judge had found a
clear error that the regularization of the writ
petitioner by the order dated 6.7.1981 was not
made on the post of assistant but only on the post
of Ex-Cadre Assistant it was not even required to
31go beyond the pleadings made in the writ petition
specially when the learned single judge had himself
found otherwise no merit in either of the two writ
petitions on any other ground. It has to be noted
that the learned single judge in his judgment in
paragraph no.10 had held as follows:-
“10. It would be apparent from the aforesaid
sequence of representations and rejections
that the present writ application could
easily be throw out at the threshold on
the simple ground of delay. It needs no
reiteration that delay in service matters
is vital since it has a cascading effect
on issues of regularization and consequent
seniority etc. The mere filing of repeated
representations could not bring succour to
the petitioner. Reference may be made to
the judgments of the Supreme Court in this
context reported in AIR 1992 SC 1414 and
1990(2) BLJ 236. Learned Senior Counsel
Shri Singh, appearing on behalf of the
petitioner, very fairly conceded that the
issue of delay was a substantial obstacle
in the path of seeking relief for the
petitioner.”23. Again, the learned single judge,
having holding the two writ petitions to be grossly
delayed, which by itself, was good enough for their
dismissal, the following findings on the non-
joinder of the parties of the learned single Judge,
was also sufficient for non-suiting the writ
32petitioner:-
“15. Before concluding the matter this Court
further holds that the petitioner was for
seniority as Assistant over persons who
are wrongly promoted ignoring his case.
The petitioner sought the relief of proper
placement in the seniority list. The
grievance was that ever since 1976 persons
junior to the petitioner were consistently
promoted as Assistant ignoring his claim.This would have necessitated the
impleadment of such persons who could have
been affected by any decision to be
rendered in the present application. This
not having been done, would also be a
relevant consideration for this Court
while considering the grant of relief in
view of the pronouncement by the Supreme
Court reported in (2004) 2 SCC 76 (Ram,
Rao & Ors. Vrs. All India Backward Class
Bank Employees Welfare Associations).”24. In fact, if these two defects were
found to be incurable by the learned single Judge
and were still supplemented with the following
findings on merit of the case of the petitioner:-
“12. On consideration of the rival submissions
made by the counsel for the parties and
the materials available on record, this
Court finds that the petitioner was
appointed in 1973 on an Ex cadre post of
Assistant. The appointment was
conditional. Before he could compete in
the general recruitment test and fulfil
the condition, this Court on the
administrative side did away with that
33condition after nearly eight years in 1981
keeping in view the satisfactory services
rendered by the petitioner. The
conditional nature of the appointment was
clearly accepted by the petitioner from
1973 to 1981. Having availed the benefits
of confirmation of his service, the
petitioner cannot be permitted thereafter
and nearly eight years later to challenge
the very condition of his appointment. It
is settled law that a person cannot seek
to retain the benefit accrued by an order
and yet challenge the order. Reference may
usefully be made to the judgment of the
Supreme Court reported in AIR 1975 SC 1058
(Rani Inder Kumari etc. Vs. State of
Rajasthan), more particularly the relevant
extract of para 10 thereof:“The petitioners cannot be allowed
to blow hot and cold in one same
breath. cake and have it. At any
rate the after inordinate delay and
even then after enjoying the full
benefit under the Act. The petitions
therefore cannot be entertained.”13. Quite apart from the aforesaid issue this
Court holds that the petitioner has not
been able to make out any case for
discrimination by pointing out such
persons situated alike whose appointment
as Ex Cadre Assistant was conditional in
like manner and who were confirmed as
Assistants without fulfillment of the
condition and granted seniority from the
date of their initial conditional
appointment. To substantiate the issue it
would have been necessary for the
34petitioner to spell out the details of
such allegations. It would also have been
essential to specify whether those persons
were appointed conditionally with the
stipulation to clear the general
recruitment test. Undoubtedly the
petitioner has tried to name certain
persons in paragraph 7 but he has
qualified his pleadings himself by saying
that these appointment were not
compassionate in nature and that no such
condition was imposed in their
appointment. The service rules no doubt
provide for confirmation of Ex Cadre
Assistants after three years. But that
would operate as it did in the case of
others when there was no conditional
appointment, or the condition prescribed
stood fulfilled. The appointment of the
petitioner being Ex Cadre subject to
condition, and he having failed to qualify
in the general recruitment test, the
petitioner cannot claim the status and
benefits as a regular Assistant for the
period in service while he remained
outside the cadre of Assistant. The law is
well settled that this period could be
counted for the purpose of seniority upon
his confirmation in 1981 only if the
initial appointment had been in consonance
with law, which in the present case would
mean with no conditions and inside the
cadre. This Court therefore holds that the
petitioner upon his induction into the
cadre under the Rules effective from 1981
cannot claim seniority from either 1973 or
1976 or 1978. This Court would usefully
35place reliance upon a judgment of the
Supreme Court reported in 1998 (5) SCC 262
(Devinder Bathia & Ors. Vs. Union of India
& Ors.):-“… The persons like the appellants
who were posted against those posts
without going through the process of
selection on ad-hoc basis do not
have a right to be in the cadre
unless and until they are duly
regularized after going through a
process of selection. In the case in
hand, this process of selection was
made only in the year 1982 and the
appellants have been absorbed in the
cadre of Enquiry Cum Reservation
Clerks after being duly selected. In
this view of the matter, their
continuance on ad-hoc basis from
1978 to 1982 cannot be counted for
the purpose of their seniority in
the cadre of Enquiry Cum Reservation
Clerk…”14. The petitioner further cannot draw any
benefit from the circular of 1977
regulating compassionate appointment as
the same was at best effect from 1975
while the petitioner was appointed in
1973. The submission of the petitioner
that his services came to be regularized
in 1981 under the influence and guidance
of the aforesaid circular of 1977 and
therefore he would be entitled to
confirmation of his services as an
Assistant from 1973 cannot be accepted.
The order inducting the petitioner into
the Cadre of Assistants in July 1981 is
36clear and permits of no ambiguity. This
Court cannot read into the order something
which is explicitly not there. The
argument of the learned counsel for the
petitioner therefore cannot be accepted.”there was little option for the Division Bench to
hold that the two appeals filed by the petitioner
were fit to be allowed specially when it had
already come to a finding that the very basis of
the operative portion of the judgment of the
learned single Judge of bestowing the benefit of
seniority of the post of Assistant with effect from
6.7.1981 was based on a glaring factual error of
the writ petitioner being regularized on the post
of Assistant with effect from 6.7.1981. Once the
Division Bench had come to a finding that the
learned single Judge had committed a mistake in
taking note of the fact that the regularization of
the writ petitioner in July 1981 was only on the
post of Ex-Cadre Assistant and not on the post of
Assistant there was no prospect for issuing any
further direction for giving seniority and
placement of the petitioner in the Cadre of
Assistant with effect from July, 1981 as directed
by the learned single Judge. The Division Bench had
therefore no alternative but to allow the appeal
specially when the writ petitioner also could not
37support the said order dated 30.4.1986 to be any
other order save and except that of his appointment
on the post of Assistant.
25. If the judgment and order of the
learned as approved in the impugned order of the
Division Bench is allowed to remain, the same will
open Pandora box in the matter of fixation of
seniority and promotion right from the year 1981
and would only unsettle the events of last almost
thirty years wherein more than 100 of Assistants
have also been promoted to the post of Assistant
Selection Grade, Section Officers, Administrative
Officer, Deputy Registrar and even up to the post
of Registrar. All such promotion, therefore, will
have to be reconsidered for making place for the
petitioner who even as per the judgment and order
of the learned single Judge had failed to establish
his case on merits and had moved this Court after
inordinate delay of 14-18 years from the date of
first rejection of his representation dated
19.8.1982 after accepting terms of his appointment
as an Assistant in the letter dated 30.4.1986. The
writ petitioner, who had not even impleaded even a
single person against whom he had claimed seniority
as a party in his first writ application nor had an
38answer to the illustrative case of respondent nos.
4 to 8, whom he claimed to his junior for
challenging his promotion, cannot be allowed to
reopen the whole thing at this belated stage when
it is an admitted fact that the entry of the writ
petitioner in the Cadre of Assistant was only with
effect from 30.4.1986 and no person junior to him
in the cadre of Assistant had been promoted on the
higher post earlier to the writ petitioner. It is
not in doubt that the writ petitioner had filed a
writ application after inordinate delay at a point
of time when 1997 Rules have also come into force
providing interalia the following provisions for
grant of seniority:-
“23. Seniority:- Except as provided in rule 24
seniority in each category of post in the
establishment shall be determined by the
date of the order of appointment in a
substantive capacity and where more than
one person are appointed together, by the
order in which their names are arranged in
the said order.24. Seniority of persons already in services:-
Seniority of the persons appointed to a
post in the establishment prior to the
commencement of these rules shall be such
as was on the date of commencement of
these rules.”
26. The writ petitioner‟s claim for
seniority, therefore, on the post of Assistant can
39only be made with effect from the date of his
appointment on the post of Assistant in a
substantive capacity and the appointment of the
writ petitioner on the post of Assistant in the
substantive capacity was made on no other date but
on 30.4.1986. Once this aspect becomes clear and in
fact is also explained by the writ petitioner in
his pleadings before the learned single Judge and
Division Bench that respondent nos. 4 to 8 of CWJC
No. 90 of 2003 were directly recruited on the post
of Assistant unlike the writ petitioner appointed
on the lower post of Ex-Cadre Assistant in a lower
pay-scale, there can hardly be an occasion for the
writ petitioner now to still march over them and
others by claiming his retrospective seniority of
the period when he was holding the lower post of
Ex-Cadre Assistant. The writ petitioner, therefore,
has to get his all due only on the basis of his
date of entry in the Cadre of Assistant on
substantive capacity i.e. with effect from
30.4.1986. Once this aspect becomes clear that such
challenge of the writ petitioner to the orders
passed by the High Court on the administrative side
rejecting his representation by an order dated
10.8.1999 in CWJC No. 467 of 2000, which was the
40forth rejection for the same relief, the earlier
three being orders dated 19.8.1982 followed by the
order dated 2.4.1995 and also by an order dated
21.11.1995, the only logical outcome of his two
writ applications could have been its plain and
simple dismissal and/or the reversal of the learned
single Judge by the Division Bench.
27. Thus, for the reasons indicated above,
both of these review applications are allowed. The
two impugned orders passed by the Division Bench
are hereby recalled and consequently, both the
appeals, LPA No. 122 of 2005 and LPA No. 123 of
2005 are hereby allowed by reversing the order of
the learned single Judge dated 23.12.2004 in CWJC
No. 467 of 2000 and CWJC No. 90 of 2003 and
dismissing the aforementioned two writ
applications.
28. There would be, however, no order as
to costs.
(Mihir Kumar Jha, J.)
I agree.
(C.M. Prasad, J.)
Patna High Court, Patna
Dated, 23/02/2011
NAFR/(Rishi)