{"id":204561,"date":"2011-02-23T00:00:00","date_gmt":"2011-02-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-high-court-of-judicature-a-vs-ram-kripal-prasad-amp-ors-on-23-february-2011"},"modified":"2019-04-08T17:21:55","modified_gmt":"2019-04-08T11:51:55","slug":"the-high-court-of-judicature-a-vs-ram-kripal-prasad-amp-ors-on-23-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-high-court-of-judicature-a-vs-ram-kripal-prasad-amp-ors-on-23-february-2011","title":{"rendered":"The High Court Of Judicature A vs Ram Kripal Prasad &Amp; Ors on 23 February, 2011"},"content":{"rendered":"
Patna High Court – Orders<\/div>\n
The High Court Of Judicature A vs Ram Kripal Prasad &Amp; Ors on 23 February, 2011<\/div>\n
          IN THE HIGH COURT OF JUDICATURE AT PATNA\n                   C. REV. No.167 of 2008\n\n1. The High Court of Judicature at Patna, through its\n   Registrar General.\n2. The Registrar Establishment, Patna High Court, Patna.\n3. The Assistant Registrar VI, Patna High Court, Patna.\n                           ------- Appellants---- Petitioners\n                            Versus\n1. Ram Kripal Prasad, son of late Braj Nandan Prasad,\n   resident of Road No.2, Qrs. No. C\/10, Water Tower, P.S.\n   Kotwali in the Town and District of Patna.\n2. Shri Kishori Lal, Son of name not known to the\n   Petitioner.\n3. Anil Kumar Sinha, son of name not known to the\n   petitioner.\n4. Yugal Kishore Singh, son of name not known to the\n   petitioner.\n5. Anil Kumar No.II, son of name not known to the\n   petitioner.\n6. Jai Prakash Narayan Sharma, son of name not known to the\n   petitoner.\n   All respondent Nos. 2 to 6 are Assistants of the High\n   Court of Judicature at Patna.\n                    -------- Respondents---- Opposite Parties\n                             With\n\n                   C. REV. No.168 of 2008\n1. The High Court of Judicature at Patna, through its\n   Registrar General.\n2. The Registrar Establishment, Patna High Court, Patna.\n3. The Assistant Registrar VI, Patna High Court, Patna.\n                          ------- Appellants---- Petitioners.\n                            Versus\nRam Kripal Prasad, son of late Braj Nandan Prasad, resident\nof Road No.2, Qrs. No. C\/10, Water Tower, P.S. Kotwali in\nthe Town and District of Patna.\n                               -------- Respondent-Respondent\n                         -----------\n\nFor the Petitioners :-         Mr. Lalit Kishore, Sr. Adv.\n                               Mr. Piyush Lal, Adv.\nFor the Respondents :-         Mr. Vindhyachal Singh, Adv.\n\n\n     PRESENT:-      Hon'ble Mr. Justice C.M. Prasad\n                    Hon'ble Mr. Justice Mihir Kumar Jha\n\n                         J U D G E M E N T\n<\/pre>\n
                                       2<\/span><\/p>\n
Mihir Kumar Jha, J.\n<\/p>\n
                   Both    of    these       review     applications         arise<\/p>\n
        out of two separate orders dated 22nd April, 2008<\/p>\n
        in LPA No. 122 of 2005 and LPA No. 123 of 2005,<\/p>\n
        emanating from connected writ petitions CWJC No.<\/p>\n
        467 of 2000 and CWJC No. 90 of 2003 respectively.<\/p>\n
        Both the aforementioned writ applications filed by<\/p>\n
        the same writ petitioner, Ram Kripal Prasad were<\/p>\n
        disposed of by          the learned single Judge by his<\/p>\n
        common     judgment       and        order       dated       23.12.2004,<\/p>\n
        whereafter        the     petitioner            of      these        review<\/p>\n
        application, namely, the High Court of Judicature<\/p>\n
        at Patna and its officials had filed two appeals,<\/p>\n
        LPA No. 122 of 2005 and LPA No. 123 of 2005 which<\/p>\n
        were   disposed     of    by       the     impugned      orders      dated<\/p>\n
        22.4.2008     giving          rise       to     these        two     review<\/p>\n
        applications Civil Review No. 167 of 2008 and Civil<\/p>\n
        Review No. 168 of 2008.\n<\/p>\n
                   2. The facts in brief of these two cases<\/p>\n
        are however plain and simple. Sri Ram Kripal Prasad<\/p>\n
        (hereinafter       to    be       referred       to     as    \u201ethe    writ<\/p>\n
        petitioner\u201f) came to be appointed on the post of<\/p>\n
        Ex-Cadre    Assistant         in     the      Patna   High      Court    on<\/p>\n
        11.8.1973 primarily on the ground that his father<\/p>\n
        late Brajnandan Prasad, being an employee of this
\n                                   3<\/span><\/p>\n
Court holding the post of Section Officer, had died<\/p>\n
in   harness        on       17.1.1973.        Such      out     of     turn<\/p>\n
appointment         of      the       writ   petitioner,       therefore,<\/p>\n
basically       being       purely      humanitarian      ground       at     a<\/p>\n
point of time there was no policy or provision for<\/p>\n
appointment         on      compassionate         ground        was     made<\/p>\n
without        following          the    prescribed      procedure          for<\/p>\n
appointment            as     prevalent          under         the      1951<\/p>\n
Rules\/Guidelines. It was therefore an appointment<\/p>\n
under        special     circumstances         and      eventually          had<\/p>\n
contained specific terms and conditions, which for<\/p>\n
the sake of clarity, is quoted hereinbelow:-<\/p>\n
        “Memo No. 4280\/Accounts, Dated 11.8.73
\n        To
\n               Sri Ram Kripal Prasad
\n               C\/O Sri Ram Nandan Prasad, Asstt.,
\n               Administratie (Apptt.) Deptt.,
\n               High Court, Patna.<\/p>\n
               With reference to his application for the
\n        post of an Assistant in the establishment of
\n        the Court, Sri Ram Prasad is hereby informed
\n        that he has been selected for appointment as an
\n        Ex-cadre Assistant on a pay of Rs. 220\/- per
\n        month in the scale of pay of Rs. 220-4-240 EB-
\n        5-290 EB-5-315 pluse the usual allowance under
\n        the rules.\n<\/p><\/blockquote>\n
               He      is     further        informed     that        the
\n        appointment in subject to the condition that he
\n        will have to appear at the general recruitment
\n        test to be held hereafter and qualify himself
\n        for regularizing his appointment.\n<\/p><\/blockquote>\n
               The appointment is purely on a temporary
\n        basis and may terminated without any notice and
\n                                      4<\/span><\/p>\n
       assigning any reason.\n<\/p><\/blockquote>\n
              No traveling allowance is admissible for
\n       joining the appointment.\n<\/p><\/blockquote>\n
              If      he        is        willing        to     accept        the\n       appointment         on       the       aforesaid       terms,    he     is\n<\/pre>\n
       hereby directed to join his appointment within
\n       a week from the date of receipt of this letter.\n<\/p><\/blockquote>\n
              He is also directed to produce medical
\n       certificate of fitness from the Civil Assistant
\n       Surgeon I\/C of a Government Dispensary enjoying
\n       the status of a Deputy Superintendent or from a
\n       Deputy Superintendent of a Government Hospital
\n       at the time of joining the post.\n<\/p><\/blockquote>\n
              If employed in any office, he must bring
\n       with    him    the       relieving        certificate          from    his
\n       employer at the time of joining the pot. He may
\n       also bring with him the original certificates
\n       at the time of joining.\n<\/p><\/blockquote>\n
                                                                    Sd.\/-\n<\/p><\/blockquote>\n
                                                        Deputy Registrar”<\/p><\/blockquote>\n
            3. At this place, it would be relevant to<\/p>\n
mention here that when the appointment of the writ<\/p>\n
petitioner         was     made          as    Ex-Cadre        Assistant,           the<\/p>\n
ministerial post in the High Court for constituting<\/p>\n
the    strength           of     Clerks           and     above,         had        the<\/p>\n
nomenclature         of     Lower             Division        Clerk    and     Upper<\/p>\n
Division Clerk as prevalent in the Secretariat of<\/p>\n
the State Government. Thus, all the other Class III<\/p>\n
and    IV     posts       below          Lower      Division          Clerk     were<\/p>\n
promotional        post        to        the    post     of    Lower     Division<\/p>\n
Clerk and one among them was the post of Ex-Cadre<\/p>\n
post    having        a     different             lower        pay-scale.           The
\n                                 5<\/span><\/p>\n
minimum      qualification            for       the       post     of    Lower<\/p>\n
Division Clerk as per the 1951 Rules\/Circular of<\/p>\n
the High Court was Intermediate whereas any one<\/p>\n
could be appointed on the lower Ex-Cadre post even<\/p>\n
while holding the qualification of Matriculation.<\/p>\n
Thus, when the writ petitioner was appointed out of<\/p>\n
turn on the post of Ex-Cadre Assistant on 11.8.1973<\/p>\n
in the pay-scale of Rs. 220-315, he, in terms of<\/p>\n
his   appointment,         had       to    successfully          clear     the<\/p>\n
general recruitment test for being regularized on<\/p>\n
the   post     of       Ex-Cadre          Assistant        itself       before<\/p>\n
becoming      eligible          to        be    considered         for     his<\/p>\n
promotion     on    the    higher          post     of     Lower    Division<\/p>\n
Clerk in the pay-scale of Rs. 260-408. The history-<\/p>\n
sheet of the writ petitioner would, however, go to<\/p>\n
show that even when he had appeared in a series of<\/p>\n
general    recruitment          tests          as   per    his   terms    and<\/p>\n
conditions         in     the        appointment           letter        dated<\/p>\n
11.8.1973 for regularizing his service as Ex-Cadre<\/p>\n
Assistant, he could not pass any one of them and<\/p>\n
thus could not clear the prescribed condition of<\/p>\n
his appointment as Ex-Cadre Assistant.<\/p>\n
           4. In the year 1977 after merger of the<\/p>\n
post of Lower Division Clerk and Upper Division<\/p>\n
Clerk as Assistant in the Secretariat, when the
\n                               6<\/span><\/p>\n
same pattern was adopted in the High Court, the<\/p>\n
writ petitioner became overenthusiastic to stake<\/p>\n
claim for the post of Assistant on the ground that<\/p>\n
he had continued in service for eight years or so<\/p>\n
but, the High Court Establishment did not allow<\/p>\n
such   prayer      of   the       petitioner     and    taking        into<\/p>\n
account of his continued satisfactory service as an<\/p>\n
Ex-Cadre    Assistant          had     merely     regularized          his<\/p>\n
appointment as Ex-Cadre Assistant with effect from<\/p>\n
27.5.1981 by waiving the conditions imposed in his<\/p>\n
appointment letter as would also appear from the<\/p>\n
communication       made      to     the    petitioner     on    6th    of<\/p>\n
July, 1981 which reads as follows:-\n<\/p>\n
       “Memo No. 6612\/Accounts, Dated, Patna the 6th
\n       July, 1981
\n            Sri Ram Kripal Prasad,
\n            Ex-cadre Assistant of the Court.
\n            With reference to              his application dated
\n       21.01.1981, Sri Ram Kripal Prasad is hereby
\n       informed that his appointment as an Ex-cadre
\n       Assistant        has        been      regularized        from
\n       27.05.1981.\n<\/p><\/blockquote>\n
                                  By order of Hon’ble the C.J.\n<\/p><\/blockquote>\n
                                                 Sd\/- T.L. Verma
\n                                             Deputy Registrar-I”<\/p><\/blockquote>\n
           5.    The    writ       petitioner    however        was    not<\/p>\n
satisfied       with    the    aforementioned          order    and     in<\/p>\n
July, 1982, he had filed a representation for his<\/p>\n
being regularized\/absorbed\/prescribed on the post
\n                                7<\/span><\/p>\n
of Assistant either with effect from 11.8.1973 or<\/p>\n
with effect from 11.8.1976 when he had completed<\/p>\n
three years service as an Ex-Cadre Assistant and<\/p>\n
for     this    purpose,        he       had    relied        on    the     two<\/p>\n
circulars of the State Government dated 12.7.1977<\/p>\n
and 17.5.1980. The said representation of the writ<\/p>\n
petitioner, however, was rejected on 19.8.1982 in<\/p>\n
view of the subsequent decision\/policy decision of<\/p>\n
the     High    Court    on        the     administrative           side     on<\/p>\n
17.6.1982 wherein it was pointed out that an Ex-<\/p>\n
Cadre    Assistant,       being          only   Matriculate          and    the<\/p>\n
qualification       of        the    Assistant           being      that     of<\/p>\n
Graduation,         anyone           who        could         claim        such<\/p>\n
regularization on the post of Assistant either by<\/p>\n
way     of     absorption       or       internal        appointment         or<\/p>\n
promotion        must     have            passed        the        prescribed<\/p>\n
examination\/recruitment                  test     for     the       post     of<\/p>\n
Assistant.       Subsequently,            the     said    administrative<\/p>\n
decision of the High Court taken on 17.6.1982 under<\/p>\n
the order of the Hon\u201fble Chief Justice had slightly<\/p>\n
been     modified        by        yet     another        administrative<\/p>\n
decision dated 21.3.1986 wherein Hon\u201fble the Chief<\/p>\n
Justice had agreed with the proposition that Ex-<\/p>\n
Cadre    Assistant       who       had     been    in    service       on    or<\/p>\n
before 17.2.1982 could be given promotion on the
\n                                8<\/span><\/p>\n
post     of    Assistant       on     the    basis      of   old   policy<\/p>\n
existing before 17.6.1982. As noted above, before<\/p>\n
1982 there was no prescribed recruitment test for<\/p>\n
absorption\/regularization\/promotion of the Ex-Cadre<\/p>\n
Assistant to the post of L.D.C.\/Assistant and as<\/p>\n
such,     when   in     the    light        of   this   administrative<\/p>\n
decision the case of writ petitioner was considered<\/p>\n
with     nine        others     and     they       were      temporarily<\/p>\n
appointed as Assistant in the Patna High Court in<\/p>\n
the    pay-scale       of     Rs.    785-1210      with      effect   from<\/p>\n
30.4.1986, the text whereof reads as follows:-<\/p>\n
                            “HIGH COURT AT PATNA
\n               The     following        Typist       and      Ex-cadre
\n        Assistants      are         appointed      temporarily        as
\n        Assistants of the Court in the scale of pay of
\n        Rs. 785-25-1135-E.B.-25-1210, with effect from
\n        30th April, 1986.\n<\/p><\/blockquote>\n
        (1)    Sri Satish Kumar (Typist)\n        (2)    \" Madnendra Kishore (Typist)\n        (3)    \" Tara Kant Das (Typist)\n        (4)    \" Rama Kant Prasad Sinha (Typist)\n        (5)    \" Umesh Prasad (Typist)\n        (6)    \" Dinesh Kumar Verma (Typist)- Ranchi)\n        (7)    \" Md. Nazimuddin (Typist) - (Ranchi)\n        (8)    \" Arvind Kumar Sinha (Ex-cadre Assistant)\n        (9)    \" Ram Kripal Prasad (Ex-cadre Assistant)\n<\/pre>\n
        (10)   ” Ajoy Kumar Sinha (Ex-cadre Assistant)
\n               They will not get the benefit of pay
\n        fixation as admissible to promoted employees.\n<\/p><\/blockquote>\n
               Four appropriate vacancies have been kept
\n        reserved.\n<\/p><\/blockquote>\n
                                      By order of the Registrar,
\n                                            Sd.\/- Mudrika Prasad
\n                                              Deputy Registrar-I
\n        Memo No. 4614-29\/Accounts Dated, Patna 5th May,
\n        1986.”\n<\/p><\/blockquote>\n
                                  9<\/span><\/p>\n
             6.     The     writ      petitioner,      therefore,         had<\/p>\n
been appointed on the post of Assistant only after<\/p>\n
the issuance of the said order dated 30.4.1986,<\/p>\n
though        he       was         persistently        claiming            his<\/p>\n
retrospective appointment on the post of Assistant<\/p>\n
w.e.f. 11.8.1973 or 12.7.1977 and his such claim<\/p>\n
specifically raised had been rejected by the High<\/p>\n
Court Establishment on 6.7.1982. In fact, it was<\/p>\n
after        twelve       years       of     rejection       of        earlier<\/p>\n
representation            and        eight    years    of        his     being<\/p>\n
appointed on the post of Assistant in the Patna<\/p>\n
High Court with effect from 30.4.1986 that he had<\/p>\n
filed a representation on 10.10.1994 seeking his<\/p>\n
regularization on the post of Assistant with effect<\/p>\n
from the same date on which he was appointed as Ex-\n<\/p><\/blockquote>\n
Cadre        Assistant          i.e.       11.8.1973        or     in      the<\/p>\n
alternative from 12.7.1977 in view of the Circular<\/p>\n
of     the     State        Government        dated    12.7.1977           and<\/p>\n
17.5.1980.           Such       representation         of        the     writ<\/p>\n
petitioner, in fact, was once again rejected on<\/p>\n
2.4.1995 but then the petitioner had continued with<\/p>\n
his unabated spirit to claim the benefit of the<\/p>\n
post     of         Assistant,         its     seniority          and      the<\/p>\n
consequential          promotional           benefit   and        for    this<\/p>\n
purpose        he     had       filed        yet   another         separate
\n                             10<\/span><\/p>\n
representation,           this        time        in     the        garb     of<\/p>\n
restoration of his seniority of the post of Ex-<\/p>\n
Cadre Assistant, Assistant and Assistant Selection<\/p>\n
Grade     vide      his    detailed          representation            dated<\/p>\n
26.9.1995. Such representation being only “old wine<\/p>\n
in the new bottle” was once again considered and<\/p>\n
rejected     by     the     High       Court           Establishment         on<\/p>\n
21.11.1995,        whereafter,        the     writ       petitioner          had<\/p>\n
remained silent for next two years before filing<\/p>\n
yet another representation on 15.12.1997 for the<\/p>\n
same purpose of seeking his regularization on the<\/p>\n
post of Assistant with effect from 11.8.1973. This<\/p>\n
representation was once again rejected on 10.8.1999<\/p>\n
and had given rise to CWJC No. 467 of 2000, wherein<\/p>\n
the prayer of the writ petitioner was as follows:-<\/p>\n
        “1(i) For quashing the order issued under the
\n             signature of Assistant Registrar VI dated
\n             10th August, 1999 by which the prayer for
\n             regularization            of         service      of      the
\n             petitioner from the date of his joining
\n             has been rejected.\n<\/p><\/blockquote>\n
        (ii) For a further direction to the respondent
\n             authorities for treating the service of
\n             the      Petitioner             regularized             since
\n             14.8.1973,      when           the     petitioner         was
\n             appointed on compassionate ground;\n<\/p><\/blockquote>\n
        (iii) For a further direction to the respondent
\n             authorities         to     grant          the   petitioner
\n             notional      promotion          in       the   cadre      of
\n             Assistant      with       effect       from     14.8.1976,
\n                              11<\/span><\/p>\n
              when he completed 3 years of service in
\n              ex-cadre       post     and     he      passed        the
\n              intermediate         Examination      in      the     year
\n              1974.”<\/p><\/blockquote>\n
             7. While the said writ application filed<\/p>\n
on 13.1.2000 was pending, the writ petitioner came<\/p>\n
with another writ application CWJC No. 90 of 2003,<\/p>\n
this time challenging the order of promotion dated<\/p>\n
17.5.2002      of   five     persons,       namely,       Kishori        Lal,<\/p>\n
Anil     Kumar      Sinha,        Yugal     Kishore       Singh,         Anil<\/p>\n
Kumarand      Jai      Prakash      Narayan        Sharma     and        also<\/p>\n
seeking a direction for his promotion on the post<\/p>\n
of Section Officer on the ground that he was senior<\/p>\n
to     the   aforementioned          five    persons        arrayed        as<\/p>\n
respondent nos.4 to 8 in CWJC No. 90 of 2003.<\/p>\n
             8. Both the writ applications CWJC No. 467<\/p>\n
of 2000 and CWJC No. 90 of 2003, being more or less<\/p>\n
complementary to each other, were heard together by<\/p>\n
the     learned     single        Judge     who,     by     his     common<\/p>\n
judgment and order dated 23.12.2004, had disposed<\/p>\n
of them by virtually rejecting each and every plea<\/p>\n
of the writ petitioner holding the writ petitions<\/p>\n
to be grossly delayed and the writ petitioner not<\/p>\n
entitled to question the terms and condition of his<\/p>\n
initial appointment of passing the recruitment test<\/p>\n
for regularization of his service as an Ex-Cadre<\/p>\n
Assistant        and     also       rejecting         the         plea     of
\n                                  12<\/span><\/p>\n
discrimination but then holding that regularization<\/p>\n
of the service of the petitioner as an Ex-Cadre<\/p>\n
Assistant by waiving the condition of appointment<\/p>\n
of    the    petitioner         as     contained             in    letter      dated<\/p>\n
11.6.1973 would amount to his entry in the cadre of<\/p>\n
Assistant with effect from 6.7.1981, which would<\/p>\n
entitle       him       for         seniority           and        consequential<\/p>\n
consideration of promotion on the post of Assistant<\/p>\n
and    higher      post    with        effect          from       6.7.1981.         The<\/p>\n
findings and the operative portion of the judgment<\/p>\n
and    order       of     the        learned          single       Judge       dated<\/p>\n
23.12.2004 in the two writ petitions CWJC No. 467<\/p>\n
of    2000    and       CWJC     No.        90    of       2003       need     to    be<\/p>\n
extracted      and      quoted        for        appreciating           the    issue<\/p>\n
involved      in    these       two     review          applications           which<\/p>\n
reads as follows:-\n<\/p>\n
       “17. The petitioner was however regularized by
\n              an order dated 6th July 1981. The order of
\n              regularization            shows         that      there    was    no
\n              circumstantial            change         in       the     position
\n              since the appointment of the petitioner.
\n              The petitioner remained yet to fulfil the
\n              condition         of     the       appointment.           At    this
\n              stage,       the        respondents            suo      moto     and
\n              unilaterally            decided         to     regularize        his
\n              services         on     the    ground        of     satisfactory
\n              services         and     his       having      completed        five
\n              years as an Ex Cadre Assistant and that he
\n              has not earned any adverse remark. Quite
\n              clearly      there       was       no    criterion        for    the
\n                          13<\/span><\/p>\n
       fixation of this date in July 1981 for
\n       regularization of his services. This Court
\n       therefore comes to the conclusion that the
\n       said date of July 1981 was quite simply a
\n       fortuitous        date.      The     respondents        having
\n       decided      to    grant       him     the    benefit     by    a
\n       fiction      of        law   would       be    required        to
\n       consider      extending           it     to    its     logical
\n       conclusion         and         grant         him     seniority
\n       accordingly.\n<\/p><\/blockquote>\n
18.    In the circumstances, while holding that
\n       the    petitioner            is        not     entitled        to
\n       consideration for the relief of promotion
\n       as an Assistant either from 1973, 1976 or
\n       1978, this Court does not find that the
\n       petitioner has been able to make out a
\n       case to be considered for promotion and
\n       placement         in     the       seniority         list      of
\n       Assistants effective from July 1981 when
\n       he was inducted into the Cadre. In view of
\n       the law laid down in the judgment reported
\n       in AIR 1993 SC 1221 (State of M.P. Vs. Sri
\n       Kant Chapkekar):-\n<\/p>\n
       4.     “—-This Court has repeatedly held
\n              that    in    a  case    where   the
\n              Court\/Tribunal    comes    to    the
\n              conclusion that a person was not
\n              considered for promotion or the
\n              consideration was illegal then the
\n              only direction which can be given is
\n              to reconsider his case in accordance
\n              with law—-”\n<\/p>\n
              The only proper order that can
\n       therefore be given in the present case is
\n       to    hold    that       the      petitioner         would     be
\n       entitled to the consideration of the case
\n       for seniority and placement in the Cadre
\n       of Assistant with effect from July 1981.
\n       Order accordingly.”\n<\/p>\n
      9. As the said direction of the learned
\n                              14<\/span><\/p>\n
single Judge was against the specific case of the<\/p>\n
High Court on the administrative side which had<\/p>\n
recognized the entry of the writ petitioner in the<\/p>\n
Cadre of Assistant only with effect from 30.4.1986<\/p>\n
it had filed two letters patent appeal LPA No. 122<\/p>\n
of 2005 and LPA No. 123 of 2005 and they came to be<\/p>\n
disposed    of    by   two    different        orders   both    dated<\/p>\n
22.4.2008. The impugned order was passed in LPA No.<\/p>\n
122 of 2005 wherein the Division Bench had found<\/p>\n
apparent    anomaly      in       recording    the   fact    by     the<\/p>\n
learned single Judge that the writ petitioner had<\/p>\n
been   regularized       on       the   post   of   Assistant      with<\/p>\n
effect from 6.7.1981. The Division Bench, however,<\/p>\n
having noted that the order dated 6.7.1981 did not<\/p>\n
regularize him on the post of Assistant but only as<\/p>\n
an Ex-Cadre Assistant, however, took a view that<\/p>\n
the subsequent order dated 30.4.1986 appointing the<\/p>\n
writ petitioner on the post of Assistant was in<\/p>\n
effect, an order of transfer from Ex-Cadre to the<\/p>\n
Cadre and as such he was entitled to carry the<\/p>\n
experience of the Ex-Cadre Post and therefore the<\/p>\n
direction    of    the    learned        single     Judge    was    not<\/p>\n
required to be interfered. The text of the order<\/p>\n
passed by the Division Bench disposing of LPA No.<\/p>\n
122 of 2005 in fact reads as follows:-<\/p>\n
            \"In    1973,          the   sole    respondent      was\n                               15<\/span>\n\n\n\n\nappointed          as        an        Ex-Cadre          Assistant         on       the\n<\/pre>\n
condition that he would be required to sit and
\npass the examination to be conducted in future
\nfor appointment of Assistants. This appointment
\nwas granted to the respondent considering the
\ndeath of his father, an employee of the High
\nCourt,        who            died           in      harness.              Although,
\nadmittedly at the time when this appointment
\nwas   given,        a        compassionate               appointment             to    a
\nmember of the family of a deceased High Court
\nemployee,      who           has        died       in    harness,          was      not
\navailable. The respondent failed to succeed in
\nthe examination for appointment of Assistants
\nalthough       he        sat           in     at       least        one    of       the
\nexaminations held for that purpose. On the same
\nterms    and       conditions,                   the     respondent            worked
\nuntil July, 1981, when waiving the term that he
\nwould    be    required                to     sit       and    succeed         in     an
\nexamination             to        be    held        for       recruitment             of
\nAssistants, the services of the respondent was
\nregularized         considering                    his       past    five       years
\nservices. Respondent was regularized as an Ex-
\ncadre Assistant. He was not regularized as an
\nAssistant. Ex-cadre Assistants are entitle to a
\nlesser    pay       scale              than      Assistants.              In    1986,
\nrespondent was appointed as an Assistant. In
\nthe writ petition, respondent contended that he
\nshould be treated to be an Assistant since 1973
\nor since 1976 or since 1978. The Court rejected
\nsuch claim. By the Judgment appealed against,
\nCourt     held          that           the       respondent           should          be
\nentitle       to        seniority             as        an    Assistant          with
\neffect     from          July,              1981        and     treating            the
\nrespondent          as        such           his        case        for     further
\npromotion should be considered.\n<\/p>\n
        In the present appeal, appellant contends
\nthat in July, 1981 respondent was regularized
\n                            16<\/span><\/p>\n
as    an      Ex-cadre          Assistant             and        not    as        an
\nAssistant, he became an Assistant only in 1986
\nand accordingly, seniority of the respondent as
\nan Assistant cannot be taken note of from July,
\n1981.\n<\/p>\n
        The        fact    remains       that          in        July,       1981
\nrespondent, on being regularized as an Ex-cadre
\nAssistant,          became      a   Government              employee.             In
\nsuch view of the matter, immediately before he
\nwas    made        an    Assistant,          he    was       a    Government
\nemployee           and     accordingly,                could           not        be
\nappointed afresh for it is no body’s case that
\nbefore such appointment respondent resigned. In
\nsuch view of the matter, one is required to
\nascertain whether appointment of the respondent
\nin    1986     as       Assistant       was       a    promotion             or   a
\ntransfer. If it was a promotion than of course
\nthe     respondent          was     entitle             to        count       his
\nseniority as Assistant from the date of his
\npromotion and not from a date prior thereto.
\nThe order by which respondent was appointed or
\nmade an Assistant states, amongst others, that
\nthe respondent shall not be entitle to fixation
\nof    pay     as    admissible          to    promoted            employees.
\nThat clearly denotes that the respondent was
\nnot promoted, but was transferred from Ex-cadre
\nto Cadre.\n<\/p>\n
        It is well settled in law that a person
\nworking in Ex-cadre, while transferred to the
\nCadre,       carries       with     him           experience            he    has
\nearned in the Ex-cadre post.\n<\/p>\n
        Accordingly, we see no infirmity in the
\norder except that the learned Judge by mistake
\ndid     not    take        note     of       the       fact        that        the
\nregularization            of      the    respondent                in        July,
\n1981was in the post Ex-cadre Assistant.\n<\/p>\n
        With        the    observations,               as        above,       the
\n                              17<\/span><\/p>\n
     appeal is disposed of without any order as to
\n     costs.”\n<\/p>\n
           10.   In    the    light    of    the    aforementioned<\/p>\n
order in LPA No. 122 of 2005, the division Bench<\/p>\n
has also dismissed the LPA No. 123 of 2005 by a<\/p>\n
separate    order      on    the     same   date     recording        as<\/p>\n
follows:-\n<\/p>\n
            “The facts and the circumstances of the
\n     case are identical to those dealt with by us in
\n     L.P.A. No. 122 of 2005. In such view of the
\n     matter,     we   feel    that    the   law    applicable    in
\n     relation thereto is also identical.\n<\/p><\/blockquote>\n
            in those circumstances, for the reasons
\n     recorded in the Judgment and order rendered by
\n     us in L.P.A. No. 122 of 2005, we also find no
\n     reason to interfere with the Judgment and Order
\n     under appeal. The appeal fails and the same is
\n     dismissed without any order as to costs.”\n<\/p><\/blockquote>\n
           11.   Mr.       Lalit     Kishore,      learned      senior<\/p>\n
counsel for the petitioner ably assisted by his<\/p>\n
junior counsel Mr. Piush Lal had submitted before<\/p>\n
us that it is the conclusion of the Division Bench<\/p>\n
of treating the appointment of the writ petitioner<\/p>\n
on the post of Assistant dated 30.4.1986 as his<\/p>\n
transfer from Ex-Cadre Assistant to the post of<\/p>\n
Assistant, which is an apparent error on the face<\/p>\n
of record in view of the specific wordings of the<\/p>\n
order dated 30.4.1986. In this context, he has also<\/p>\n
contended    that     if     the   basic    concept     of   service
\n                                18<\/span><\/p>\n
jurisprudence of reckoning seniority on the post in<\/p>\n
question       of   the   Assistant         as    per     the     statutory<\/p>\n
rules namely Patna High Court Officers and Staff<\/p>\n
(Condition of service and conduct) Rules, 1997 is<\/p>\n
applied, the writ petitioner cannot claim seniority<\/p>\n
on the post of Assistant from any other date save<\/p>\n
and except 30.4.1986. He has also contended that if<\/p>\n
the view taken by the Division Bench of treating<\/p>\n
the     appointment       of    the        writ    petitioner        as   an<\/p>\n
Assistant dated 30.4.1986 is to be treated as an<\/p>\n
order     of      transfer      from       the    post       of    Ex-Cadre<\/p>\n
Assistant to the post of Assistant, it would give<\/p>\n
rise    to     serious    complication            and   in    fact    would<\/p>\n
amount       to     re-writing         the        Cadre       Rules       for<\/p>\n
appointment and seniority on the post of Assistant.\n<\/p><\/blockquote>\n
He has, therefore, submitted that once the Division<\/p>\n
Bench had found that the whole premises of the<\/p>\n
direction given by the learned single Judge in his<\/p>\n
judgment and order dated 23.12.2004 was based on an<\/p>\n
incorrect premises of the reading of the order of<\/p>\n
regularizing the services of the writ petitioner as<\/p>\n
an Ex-Cadre Assistant dated 6.7.1981, the logical<\/p>\n
conclusion was to quash that part of the order<\/p>\n
instead of approving it on a ground of transfer of<\/p>\n
the    writ     petitioner          from    the    post      of    Ex-Cadre
\n                               19<\/span><\/p>\n
Assistant to the post of Assistant which was not<\/p>\n
even the case of the writ petitioner either in the<\/p>\n
writ application or in the counter affidavit filed<\/p>\n
by the writ petitioner in the connected letters<\/p>\n
patent appeal and to that extent, he has relied on<\/p>\n
the averments made by the writ petitioner filed in<\/p>\n
the    writ     application         and    the    counter      affidavit<\/p>\n
filed     in     the       appeal    by     placing       reliance         on<\/p>\n
paragraph no.10 of the counter affidavit filed by<\/p>\n
the writ petitioner in the connected LPA No. 122 of<\/p>\n
2005, reading as follows:-\n<\/p>\n
                “—— As an ex-cadre Assistant as on
\n        27.5.1981 he was Graduate and also passed the
\n        Departmental       examination.         Therefore,     he   was
\n        entitled to be promoted by appointment to the
\n        cadre    of    Assistant     on    any     date   after     the
\n        regularization in May 1981.”<\/p><\/blockquote>\n
           12. Mr. Lalit Kishore in this context has<\/p>\n
also taken us to the whole scheme of appointment on<\/p>\n
the post of Ex-Cadre Assistant right from 1951 and<\/p>\n
its marked distinction with the post of Assistant<\/p>\n
and in this context, he has also explained that not<\/p>\n
only     qualification         for        the    post     of    Ex-Cadre<\/p>\n
Assistant initially being Matriculation and later<\/p>\n
on    upgraded        as   Intermediate         was   lower    than       the<\/p>\n
prescribed qualification for the post of Assistant<\/p>\n
being Graduate in any discipline but the said post
\n                                20<\/span><\/p>\n
of Assistant had all along been a higher post with<\/p>\n
higher     pay-scale          and,       therefore,       an      Ex-Cadre<\/p>\n
Assistant cannot even remotely claim his transfer<\/p>\n
on the post of Assistant which has to be filled up<\/p>\n
only     by      two     modes,          namely,        either      direct<\/p>\n
appointment from open market or appointment from<\/p>\n
amongst the subordinate Class-3 employees holding<\/p>\n
the lower post to that of Assistant by following<\/p>\n
the prescribed norms. It is in this context that he<\/p>\n
has    also    taken         us     to    the     present       prevailing<\/p>\n
practice      under      1997       Rules       where     50%     post   of<\/p>\n
Assistant      have      to       be     filled     up     from     direct<\/p>\n
recruitment       and    remaining          50%    post     have    to   be<\/p>\n
filled   up      on    the    basis      of     limited     departmental<\/p>\n
examination\/recruitment                  test     for     the      working<\/p>\n
employees of the High Court categorized into two<\/p>\n
groups, namely (a) Class-4 employees and (b) Class-<\/p>\n
3 employees. He has, therefore, commended before us<\/p>\n
that the Division Bench in the impugned judgment<\/p>\n
had committed an apparent error on the face of<\/p>\n
record by holding the order of appointment of the<\/p>\n
petitioner dated 30.4.1986 to be an order of his<\/p>\n
transfer from the post of Ex-Cadre Assistant to the<\/p>\n
higher post of Assistant.\n<\/p>\n
           13.    Per        contra,      Mr.     Vindhyachal       Singh,
\n                                 21<\/span><\/p>\n
learned      counsel       for        the     writ       petitioner       has<\/p>\n
submitted      that       the    scope       of    review     being      well<\/p>\n
circumscribed,          the      writ        petitioner       cannot       be<\/p>\n
allowed to make out a third case and the order of<\/p>\n
the learned single Judge recognizing the services<\/p>\n
of the writ petitioner as Assistant with effect<\/p>\n
from    6.7.1981        needed        no     interference.        In     this<\/p>\n
context,      he     has        relied       on    the     principle      of<\/p>\n
continuous     officiation             to    contend      that    once    the<\/p>\n
services of the writ petitioner was regularized on<\/p>\n
6.7.1981      even        when        he     had     not    passed       the<\/p>\n
recruitment        test    as        per    the    original      terms   and<\/p>\n
conditions of his appointment dated 11.8.1973, it<\/p>\n
will    be     deemed           that        the    writ     petitioner\u201fs<\/p>\n
appointment        on     the     post       of    Assistant      had     got<\/p>\n
regularized        with    effect           from   6.7.1981.      In     this<\/p>\n
context, he had also tried to explain that though<\/p>\n
the writ petitioner was Matriculate at the time of<\/p>\n
his appointment on 11.8.1973 and had joined the<\/p>\n
service on account of untimely death of his father<\/p>\n
but    he    had   improved           his    qualification        and    had<\/p>\n
become Intermediate in the year 1974 and as such<\/p>\n
when he had also completed a period of three years<\/p>\n
of service as on 11.8.1976, it was incumbent on the<\/p>\n
part of the High Court to regularize his service on
\n                                     22<\/span><\/p>\n
the post of Assistant on completion of three years<\/p>\n
well    before          the     merger         of   the        post    of    Lower<\/p>\n
Division Clerk and Upper Division Clerk which had<\/p>\n
come into being only with effect from 1.4.1977. He<\/p>\n
had accordingly canvassed for not disturbing the<\/p>\n
view taken by the Division Bench while correcting<\/p>\n
the    error       of    the        learned     single         Judge    as     with<\/p>\n
regard to the interpretation of the order dated<\/p>\n
6.7.1981 and yet giving substantial relief to the<\/p>\n
writ petitioner for his being treated to have been<\/p>\n
absorbed on the post of Assistant with effect from<\/p>\n
6.7.1981       which          had        resolved      the      long        pending<\/p>\n
grievances of the writ petitioner.\n<\/p>\n
             14.    In        the        considered       opinion       of     this<\/p>\n
Court, the whole issue in this review application<\/p>\n
is     as    to     whether              the   order      dated        30.4.1986<\/p>\n
appointing the petitioner on the post of Assistant<\/p>\n
can be treated to be an order of transfer from the<\/p>\n
post of Ex-Cadre Assistant to the Assistant? If,<\/p>\n
the facts of the case of the writ petitioner can<\/p>\n
still justify his being transferred from the post<\/p>\n
of Ex-Cadre Assistant to the post of Assistant,<\/p>\n
there       would       be     no        difficulty       in     holding       such<\/p>\n
appointment         of        the    petitioner         on       the    post     of<\/p>\n
Assistant even by way of transfer, inasmuch as, it
\n                               23<\/span><\/p>\n
is well settled in service jurisprudence that there<\/p>\n
can    be    appointment           on        the    post        by    direct<\/p>\n
recruitment,       by     promotion,          by    absorption         or    by<\/p>\n
transfer.\n<\/p>\n
            15.    It     is,      however,         well    known        that<\/p>\n
transfer of a person can only be made if he is<\/p>\n
holding      the       same     rank         and    post        which       are<\/p>\n
interchangeable and transferable. In the present<\/p>\n
case, it is more than clear that in the High Court<\/p>\n
Establishment,         the    post      of    Assistant         has    always<\/p>\n
been   a    higher       post      to    the       post     of       Ex-Cadre<\/p>\n
Assistant.        At    all     point        of    time,    an       Ex-Cadre<\/p>\n
Assistant had to be appointed by way of promotion<\/p>\n
to the higher post of Assistant and in fact, that<\/p>\n
was the case of the writ petitioner either before<\/p>\n
the learned single Judge or before the Division<\/p>\n
Bench as is clear from the extracted portion of the<\/p>\n
counter affidavit. As a matter of fact, the date on<\/p>\n
which the petitioner was appointed as an Ex-Cadre<\/p>\n
Assistant and that too subject to his passing the<\/p>\n
prescribed recruitment test for the post of Ex-<\/p>\n
Cadre Assistant, the pay scale of the post of Ex-<\/p>\n
Cadre Assistant was Rs. 220-315, whereas the post<\/p>\n
of Assistant (LDC) was Rs. 260-408.\n<\/p>\n
            16.    This       distinction          in     the    pay-scale
\n                            24<\/span><\/p>\n
based    on    rationale        of   different   qualifications<\/p>\n
earlier Matriculation and later on Intermediate for<\/p>\n
the post of Ex-Cadre Assistant and Graduation for<\/p>\n
the Assistant has all along been maintained in the<\/p>\n
establishment of the High Court and the following<\/p>\n
chart would go to show that the post of Ex-Cadre<\/p>\n
Assistant and that of Assistant had never carried<\/p>\n
the     same   pay-scale        so   as   to   make   two    posts<\/p>\n
transferable.<\/p>\n
\n\nDate                Pay-Scale of Ex-           Pay-Scale       of\n                    Cadre Assistant            Assistant\n1973                220-315                    260-408\n1981                535-765                    785-1210\n1986                975-1540                   1500-2350\n\n\n<\/pre>\n
           17. Since the petitioner\u201fs case as allowed<\/p>\n
by the Division Bench in the impugned order is one<\/p>\n
of transfer, a question would arise as to whether<\/p>\n
the petitioner drawing the salary in the pay-scale<\/p>\n
of Rs. 535-765 as an Ex-Cadre Assistant could be<\/p>\n
transferred to the post of Assistant having the<\/p>\n
pay-scale of Rs. 785-1210. It is here that the<\/p>\n
concept of transfer under Rule 54 of Bihar Service<\/p>\n
Code will directly come into play which recognizes<\/p>\n
the     transfer   from         an   identical     post     having<\/p>\n
identical pay-scale to another post having the same<\/p>\n
scale of pay. Thus the order dated 7.6.1981, which<\/p>\n
only had regularized the services of the petitioner
\n                                25<\/span><\/p>\n
on     the     post        of         Ex-Cadre            Assistant       by<\/p>\n
condoning\/relaxing the requirement of passing the<\/p>\n
recruitment test as originally imposed in the order<\/p>\n
of his appointment dated 11.8.1973 was only by way<\/p>\n
of recognition of his service as Ex-Cadre Assistant<\/p>\n
and not as an Assistant, inasmuch as, he was never<\/p>\n
given the pay-scale of Assistant by the order dated<\/p>\n
6.7.1981. Once this aspect becomes clear that the<\/p>\n
regularization of the writ petitioner on 6.7.1981<\/p>\n
was    made   only        against       the        post     of    Ex-Cadre<\/p>\n
Assistant as was also held by the Division Bench in<\/p>\n
the impugned judgment, the logical outcome of the<\/p>\n
expression     \u201eappointment\u201f            expressly          used   in     the<\/p>\n
order dated 30.4.1986 would be that the petitioner<\/p>\n
was    appointed     on    the       post     of    Assistant       w.e.f.<\/p>\n
30.4.1986 by way of internal recruitment as he was<\/p>\n
appointed     prior       to    17.2.1982          in     terms   of    the<\/p>\n
administrative       decision          taken       on   21.3.1986       vide<\/p>\n
Annexure-7 to the review application (C.Rev. No.<\/p>\n
167 of 2008).\n<\/p>\n
          18. It, therefore, becomes clear that the<\/p>\n
writ   petitioner     was           required       to   appear     in   the<\/p>\n
examination for his promotion on the higher post of<\/p>\n
Assistant in the pay-scale of Rs. 785-1210 at a<\/p>\n
point of time when he was on the lower post in the
\n                          26<\/span><\/p>\n
pay-scale of Rs. 535-765 which in turn would lead<\/p>\n
to an irresistible conclusion that his entry in the<\/p>\n
cadre of Assistant could have been on no other date<\/p>\n
save and except the date indicated in the order<\/p>\n
dated 30.4.1986 which had not only fixed the date<\/p>\n
of his appointment as an Assistant as 30.4.1986 but<\/p>\n
also had made it clear that no promotional benefit<\/p>\n
would be available to the petitioner in the matter<\/p>\n
of   pay-fixation   as   was   admissible   to   the   other<\/p>\n
promoted employees. It was thus curtains for the<\/p>\n
writ petitioner and the writ petitioner having not<\/p>\n
challenged the said order dated 30.4.1986 at any<\/p>\n
point of time cannot now wriggle out by taking<\/p>\n
different plea at different point of time. Once<\/p>\n
this aspect becomes clear that the appointment of<\/p>\n
the petitioner on the post of Assistant was made<\/p>\n
with effect from 30.4.1986, his seniority in the<\/p>\n
cadre of Assistant will have to be counted only<\/p>\n
with effect from 30.4.1986 and not from any earlier<\/p>\n
date. It is, therefore, manifest that the concept<\/p>\n
of transfer of the petitioner from the post of Ex-<\/p>\n
Cadre Assistant to the post of Assistant by the<\/p>\n
order dated 30.4.1986 as introduced and upheld by<\/p>\n
the Division Bench in the impugned order is               an<\/p>\n
apparent error on the face of record, inasmuch as,
\n                           27<\/span><\/p>\n
either on fact or in law that the said order of<\/p>\n
appointment of the writ petitioner dated 30.4.1986<\/p>\n
on the post of Assistant cannot be read as an order<\/p>\n
of   his    transfer     from       lower     post    of    Ex-Cadre<\/p>\n
Assistant to the higher post of Assistant.<\/p>\n
           19.    In    our     considered         opinion,        there<\/p>\n
infact has been some sort of complete confusion in<\/p>\n
understanding the concept of the expression \u201eEx-<\/p>\n
Cadre Assistant\u201f in its true perspective in the<\/p>\n
context of High Court Establishment in which the<\/p>\n
said post has been all along in existence till<\/p>\n
date. The post of Ex-Cadre Assistant has never been<\/p>\n
an equivalent post of Assistant in the High Court<\/p>\n
rather the qualification for the two posts, the<\/p>\n
pay-scale and the channel of earning promotion by<\/p>\n
way of internal recruitment from the post of Ex-<\/p>\n
Cadre Assistant to the post of Assistant would only<\/p>\n
go to show that the post of Ex-Cadre Assistant is<\/p>\n
an   equivalent        post    of    Routine       Clerk      in     the<\/p>\n
secretariat of the State Government which has only<\/p>\n
channel of promotion to the post of Assistant with<\/p>\n
other eligible Class-3 employees whenever such post<\/p>\n
of Assistant is to be filled up on quota basis. The<\/p>\n
prescribed       procedure,     therefore,         either     in     the<\/p>\n
State   Government      or     in   the     High   Court    is      that
\n                                28<\/span><\/p>\n
certain percentage of vacancy is left open for the<\/p>\n
internal       recruitment          from   amongst       the       eligible<\/p>\n
employees who also can be appointed on the post of<\/p>\n
Assistant which otherwise is the basic post of the<\/p>\n
cadre of ministerial officer in the High Court or<\/p>\n
in the State Government. Simply because the word<\/p>\n
\u201eEx-Cadre\u201f        has     been        tagged          with     the     word<\/p>\n
\u201eAssistant\u201f      in     designating        the    post       of    Ex-Cadre<\/p>\n
Assistant in the establishment of the High Court,<\/p>\n
it does not mean that the two posts are equal or<\/p>\n
comparable       or     that    the    High      Court       has    certain<\/p>\n
number    of     post    of     Assistant        in    the     sanctioned<\/p>\n
strength and certain post of Assistant in the Ex-<\/p>\n
Cadre Establishment. The post of Ex-Cadre Assistant<\/p>\n
was initially a lower post to L.D.C. and how the<\/p>\n
post of Assistant and has become only a feeder post<\/p>\n
for filling up the post of Assistant which as per<\/p>\n
the prescribed rule and procedure has to be filled<\/p>\n
up either from direct recruitment or from internal<\/p>\n
recruitment.\n<\/p>\n
           20. Once this aspect becomes clear, there<\/p>\n
would be no difficulty in coming to the conclusion<\/p>\n
that   there     was     an    apparent       error      of    record   in<\/p>\n
holding    the    petitioner          to   have       been    transferred<\/p>\n
from     the    Ex-Cadre        Establishment           to    the     Cadre
\n                                 29<\/span><\/p>\n
Establishment        on    the        post     of     Assistant      as     on<\/p>\n
6.7.1981,     which        is         the     only     basis       for     not<\/p>\n
interfering with the operative portion of the order<\/p>\n
of the learned single Judge dated 23.12.2004 in the<\/p>\n
two writ applications filed by the writ petitioner.<\/p>\n
For the same reason, we find it difficult to accept<\/p>\n
the    submission          of        learned        counsel       for      the<\/p>\n
petitioner     supporting             the    impugned       order    on    the<\/p>\n
ground that in the year 1986, on 30.4.1986, the<\/p>\n
petitioner having already been continuing in the<\/p>\n
Establishment        of    the        High    Court    on    an     Ex-Cadre<\/p>\n
Assistant could not have been appointed on the post<\/p>\n
of Assistant. The concept of appointment in the<\/p>\n
service jurisprudence will never connote or mean<\/p>\n
only   direct       appointment             (recruitment)      from       open<\/p>\n
market but it can also be appointment by way of<\/p>\n
internal recruitment as per the Cadre Rules.<\/p>\n
            21. As noted above, there has always been<\/p>\n
practice     even     before          1976     to     allocate       certain<\/p>\n
percentage      of        post        for     the     working        class-3<\/p>\n
employees      or     even           class-4        employees        to     be<\/p>\n
considered for appointment on the post of Assistant<\/p>\n
and,   therefore,         the        reasoning      that    such     persons<\/p>\n
would be required to resign from their post held by<\/p>\n
them   in    order    to     be       appointed       on    the     post    of
\n                               30<\/span><\/p>\n
Assistant also does not seem to be correct.<\/p>\n
          22. To us it is very clear that the post<\/p>\n
of    Assistant      being     basic    post       of   the    Cadre     of<\/p>\n
ministerial officer has to be                  essentially filled<\/p>\n
up both by way of direct recruitment and internal<\/p>\n
recruitment and in either case, it still remains a<\/p>\n
case of appointment wherein the promotional benefit<\/p>\n
of    giving        12.5%    of      salary        fixation     is      not<\/p>\n
admissible      as     per        the   Government           Rules.     We,<\/p>\n
therefore,      are     constrained           to     hold      that     the<\/p>\n
conclusion arrived by the Division Bench in the<\/p>\n
impugned order that since the writ petitioner was<\/p>\n
not given the promotional benefit of the post of<\/p>\n
Assistant      by    way     of     salary    fixation,        it     would<\/p>\n
amount to his being transferred to the Cadre of<\/p>\n
Assistant, suffers from an apparent error on the<\/p>\n
face of record. Consequently, we would hold that<\/p>\n
the petitioners have made out a case for review of<\/p>\n
the   impugned       order.        Additionally,        we   would     hold<\/p>\n
that the moment the Division Bench in the impugned<\/p>\n
judgment of the learned single Judge had found a<\/p>\n
clear error that the regularization of the writ<\/p>\n
petitioner by          the order dated 6.7.1981 was not<\/p>\n
made on the post of assistant but only on the post<\/p>\n
of Ex-Cadre Assistant it was not even required to
\n                              31<\/span><\/p>\n
go beyond the pleadings made in the writ petition<\/p>\n
specially when the learned single judge had himself<\/p>\n
found otherwise no merit in either of the two writ<\/p>\n
petitions on any other ground. It has to be noted<\/p>\n
that the learned single judge in his judgment in<\/p>\n
paragraph no.10 had held as follows:-<\/p>\n
      “10. It would be apparent from the aforesaid
\n             sequence of representations and rejections
\n             that the present writ application could
\n             easily be throw out at the threshold on
\n             the simple ground of delay. It needs no
\n             reiteration that delay in service matters
\n             is vital since it has a cascading effect
\n             on issues of regularization and consequent
\n             seniority etc. The mere filing of repeated
\n             representations could not bring succour to
\n             the petitioner. Reference may be made to
\n             the judgments of the Supreme Court in this
\n             context reported in AIR 1992 SC 1414 and
\n             1990(2) BLJ 236. Learned Senior Counsel
\n             Shri       Singh,    appearing   on    behalf    of   the
\n             petitioner, very fairly conceded that the
\n             issue of delay was a substantial obstacle
\n             in    the    path    of   seeking     relief    for   the
\n             petitioner.”<\/p><\/blockquote>\n
         23.        Again,       the     learned     single        judge,<\/p>\n
having holding the two writ petitions to be grossly<\/p>\n
delayed, which by itself, was good enough for their<\/p>\n
dismissal,        the     following      findings      on    the     non-<\/p>\n
joinder of the parties of the learned single Judge,<\/p>\n
was   also     sufficient          for    non-suiting        the     writ
\n                              32<\/span><\/p>\n
petitioner:-\n<\/p>\n
      “15. Before        concluding       the     matter    this      Court
\n             further holds that the petitioner was for
\n             seniority      as     Assistant       over    persons        who
\n             are    wrongly       promoted       ignoring    his      case.
\n             The petitioner sought the relief of proper
\n             placement       in     the     seniority        list.        The
\n             grievance was that ever since 1976 persons
\n             junior to the petitioner were consistently
\n             promoted as Assistant ignoring his claim.\n<\/p><\/blockquote>\n
             This        would       have         necessitated            the
\n             impleadment of such persons who could have
\n             been       affected     by     any     decision         to    be
\n             rendered in the present application. This
\n             not    having       been    done,     would    also      be    a
\n             relevant       consideration          for      this      Court
\n             while considering the grant of relief in
\n             view of the pronouncement by the Supreme
\n             Court reported in (2004) 2 SCC 76 (Ram,
\n             Rao & Ors. Vrs. All India Backward Class
\n             Bank Employees Welfare Associations).”<\/p><\/blockquote>\n
         24.       In    fact,     if     these     two     defects        were<\/p>\n
found to be incurable by the learned single Judge<\/p>\n
and   were   still        supplemented           with     the      following<\/p>\n
findings on merit of the case of the petitioner:-<\/p>\n
      “12. On consideration of the rival submissions
\n             made by the counsel for the parties and
\n             the materials available on record, this
\n             Court       finds     that     the     petitioner            was
\n             appointed in 1973 on an Ex cadre post of
\n             Assistant.            The           appointment              was
\n             conditional. Before he could compete in
\n             the general recruitment test and fulfil
\n             the        condition,        this      Court       on        the
\n             administrative         side     did    away     with     that
\n                       33<\/span><\/p>\n
      condition after nearly eight years in 1981
\n      keeping in view the satisfactory services
\n      rendered        by          the         petitioner.             The
\n      conditional nature of the appointment was
\n      clearly accepted by the petitioner from
\n      1973 to 1981. Having availed the benefits
\n      of     confirmation             of     his     service,         the
\n      petitioner cannot be permitted thereafter
\n      and nearly eight years later to challenge
\n      the very condition of his appointment. It
\n      is settled law that a person cannot seek
\n      to retain the benefit accrued by an order
\n      and yet challenge the order. Reference may
\n      usefully be made to the judgment of the
\n      Supreme Court reported in AIR 1975 SC 1058
\n      (Rani    Inder       Kumari           etc.     Vs.    State      of
\n      Rajasthan), more particularly the relevant
\n      extract of para 10 thereof:\n<\/p><\/blockquote>\n
              “The    petitioners            cannot        be   allowed
\n              to    blow       hot    and     cold    in     one     same
\n              breath.      cake        and    have     it.      At    any
\n              rate the after inordinate delay and
\n              even    then       after       enjoying        the     full
\n              benefit under the Act. The petitions
\n              therefore cannot be entertained.”\n<\/p><\/blockquote>\n
13.   Quite apart from the aforesaid issue this
\n      Court holds that the petitioner has not
\n      been    able        to    make        out     any     case      for
\n      discrimination             by        pointing         out      such
\n      persons situated alike whose appointment
\n      as Ex Cadre Assistant was conditional in
\n      like    manner       and       who     were     confirmed        as
\n      Assistants          without          fulfillment          of    the
\n      condition and granted seniority from the
\n      date     of         their            initial         conditional
\n      appointment. To substantiate the issue it
\n      would        have        been        necessary         for     the
\n                  34<\/span><\/p>\n
petitioner        to     spell      out        the    details          of
\nsuch allegations. It would also have been
\nessential to specify whether those persons
\nwere     appointed           conditionally                with        the
\nstipulation            to       clear           the            general
\nrecruitment             test.         Undoubtedly                     the
\npetitioner         has      tried         to        name       certain
\npersons      in        paragraph          7         but     he        has
\nqualified his pleadings himself by saying
\nthat        these           appointment               were            not
\ncompassionate in nature and that no such
\ncondition           was         imposed               in            their
\nappointment. The service rules no doubt
\nprovide      for       confirmation             of        Ex        Cadre
\nAssistants        after       three       years.           But       that
\nwould operate as it did in the case of
\nothers      when       there        was        no     conditional
\nappointment, or the condition prescribed
\nstood fulfilled. The appointment of the
\npetitioner         being       Ex     Cadre          subject          to
\ncondition, and he having failed to qualify
\nin    the   general           recruitment                 test,       the
\npetitioner        cannot       claim       the        status          and
\nbenefits as a regular Assistant for the
\nperiod      in      service         while           he     remained
\noutside the cadre of Assistant. The law is
\nwell   settled         that    this        period          could       be
\ncounted for the purpose of seniority upon
\nhis    confirmation           in     1981           only       if    the
\ninitial appointment had been in consonance
\nwith law, which in the present case would
\nmean   with      no     conditions             and    inside         the
\ncadre. This Court therefore holds that the
\npetitioner        upon       his    induction              into       the
\ncadre under the Rules effective from 1981
\ncannot claim seniority from either 1973 or
\n1976 or 1978. This Court would usefully
\n                          35<\/span><\/p>\n
      place       reliance             upon    a    judgment          of       the
\n      Supreme Court reported in 1998 (5) SCC 262
\n      (Devinder Bathia & Ors. Vs. Union of India
\n      & Ors.):-\n<\/p><\/blockquote>\n
              “… The persons like the appellants
\n              who were posted against those posts
\n              without going through the process of
\n              selection            on        ad-hoc       basis       do       not
\n              have       a    right           to    be     in      the    cadre
\n              unless          and        until          they       are        duly
\n              regularized               after       going          through       a
\n              process of selection. In the case in
\n              hand, this process of selection was
\n              made only in the year 1982 and the
\n              appellants have been absorbed in the
\n              cadre          of        Enquiry          Cum     Reservation
\n              Clerks after being duly selected. In
\n              this       view           of     the        matter,         their
\n              continuance               on     ad-hoc           basis         from
\n              1978 to 1982 cannot be counted for
\n              the       purpose          of    their          seniority        in
\n              the cadre of Enquiry Cum Reservation
\n              Clerk…”\n<\/p><\/blockquote>\n
14.   The   petitioner                 further          cannot      draw      any
\n      benefit        from              the     circular             of        1977
\n      regulating         compassionate                   appointment            as
\n      the   same        was       at     best       effect         from       1975
\n      while       the    petitioner                was        appointed        in
\n      1973.    The       submission                of    the       petitioner
\n      that his services came to be regularized
\n      in 1981 under the influence and guidance
\n      of    the     aforesaid            circular             of    1977       and
\n      therefore          he            would        be        entitled          to
\n      confirmation                of     his        services             as     an
\n      Assistant from 1973 cannot be accepted.
\n      The order inducting the petitioner into
\n      the Cadre of Assistants in July 1981 is
\n                                36<\/span><\/p>\n
             clear and permits of no ambiguity. This
\n             Court cannot read into the order something
\n             which        is   explicitly             not    there.     The
\n             argument of the learned counsel for the
\n             petitioner therefore cannot be accepted.”\n<\/p><\/blockquote>\n
there was little option for the Division Bench to<\/p>\n
hold that the two appeals filed by the petitioner<\/p>\n
were   fit    to     be    allowed         specially          when    it    had<\/p>\n
already come to a finding that the very basis of<\/p>\n
the    operative      portion         of        the    judgment       of    the<\/p>\n
learned single Judge of bestowing the benefit of<\/p>\n
seniority of the post of Assistant with effect from<\/p>\n
6.7.1981 was based on a glaring factual error of<\/p>\n
the writ petitioner being regularized on the post<\/p>\n
of Assistant with effect from 6.7.1981. Once the<\/p>\n
Division     Bench    had       come       to    a     finding       that   the<\/p>\n
learned single Judge had committed a mistake in<\/p>\n
taking note of the fact that the regularization of<\/p>\n
the writ petitioner in July 1981 was only on the<\/p>\n
post of Ex-Cadre Assistant and not on the post of<\/p>\n
Assistant there was no prospect for issuing any<\/p>\n
further      direction          for        giving           seniority       and<\/p>\n
placement     of     the       petitioner             in    the   Cadre       of<\/p>\n
Assistant with effect from July, 1981 as directed<\/p>\n
by the learned single Judge. The Division Bench had<\/p>\n
therefore no alternative but to allow the appeal<\/p>\n
specially when the writ petitioner also could not
\n                              37<\/span><\/p>\n
support the said order dated 30.4.1986 to be any<\/p>\n
other order save and except that of his appointment<\/p>\n
on the post of Assistant.\n<\/p>\n
          25.     If   the        judgment   and    order   of     the<\/p>\n
learned as approved in the impugned order of the<\/p>\n
Division Bench is allowed to remain, the same will<\/p>\n
open    Pandora    box   in       the    matter    of   fixation    of<\/p>\n
seniority and promotion right from the year 1981<\/p>\n
and would only unsettle the events of last almost<\/p>\n
thirty years wherein more than 100 of Assistants<\/p>\n
have also been promoted to the post of Assistant<\/p>\n
Selection Grade, Section Officers, Administrative<\/p>\n
Officer, Deputy Registrar and even up to the post<\/p>\n
of Registrar. All such promotion, therefore, will<\/p>\n
have to be reconsidered for making place for the<\/p>\n
petitioner who even as per the judgment and order<\/p>\n
of the learned single Judge had failed to establish<\/p>\n
his case on merits and had moved this Court after<\/p>\n
inordinate delay of 14-18 years from the date of<\/p>\n
first    rejection       of        his    representation      dated<\/p>\n
19.8.1982 after accepting terms of his appointment<\/p>\n
as an Assistant in the letter dated 30.4.1986. The<\/p>\n
writ petitioner, who had not even impleaded even a<\/p>\n
single person against whom he had claimed seniority<\/p>\n
as a party in his first writ application nor had an
\n                                 38<\/span><\/p>\n
answer to the illustrative case of respondent nos.<\/p>\n
4   to   8,      whom      he     claimed      to     his    junior     for<\/p>\n
challenging        his     promotion,        cannot     be   allowed        to<\/p>\n
reopen the whole thing at this belated stage when<\/p>\n
it is an admitted fact that the entry of the writ<\/p>\n
petitioner in the Cadre of Assistant was only with<\/p>\n
effect from 30.4.1986 and no person junior to him<\/p>\n
in the cadre of Assistant had been promoted on the<\/p>\n
higher post earlier to the writ petitioner.                           It is<\/p>\n
not in doubt that the writ petitioner had filed a<\/p>\n
writ application after inordinate delay at a point<\/p>\n
of time when 1997 Rules have also come into force<\/p>\n
providing interalia the following provisions for<\/p>\n
grant of seniority:-\n<\/p>\n
     “23. Seniority:- Except as provided in rule 24
\n              seniority in each category of post in the
\n              establishment shall be determined by the
\n              date    of    the      order    of    appointment   in    a
\n              substantive capacity and where more than
\n              one person are appointed together, by the
\n              order in which their names are arranged in
\n              the said order.\n<\/p><\/blockquote>\n
     24.      Seniority of persons already in services:-\n<\/p><\/blockquote>\n
              Seniority of the persons appointed to a
\n              post    in    the      establishment      prior   to    the
\n              commencement of these rules shall be such
\n              as   was     on    the   date    of    commencement      of
\n              these rules.”<\/p><\/blockquote>\n<\/blockquote>\n
           26.       The     writ       petitioner\u201fs         claim      for<\/p>\n
seniority, therefore, on the post of Assistant can
\n                               39<\/span><\/p>\n
only   be   made    with      effect      from      the       date    of    his<\/p>\n
appointment        on     the      post      of     Assistant          in    a<\/p>\n
substantive    capacity            and   the     appointment          of    the<\/p>\n
writ petitioner on the post of Assistant in the<\/p>\n
substantive capacity was made on no other date but<\/p>\n
on 30.4.1986. Once this aspect becomes clear and in<\/p>\n
fact is also explained by the writ petitioner in<\/p>\n
his pleadings before the learned single Judge and<\/p>\n
Division Bench that respondent nos. 4 to 8 of CWJC<\/p>\n
No. 90 of 2003 were directly recruited on the post<\/p>\n
of Assistant unlike the writ petitioner appointed<\/p>\n
on the lower post of Ex-Cadre Assistant in a lower<\/p>\n
pay-scale, there can hardly be an occasion for the<\/p>\n
writ petitioner now to still march over them and<\/p>\n
others by claiming his retrospective seniority of<\/p>\n
the period when he was holding the lower post of<\/p>\n
Ex-Cadre Assistant. The writ petitioner, therefore,<\/p>\n
has to get his all due only on the basis of his<\/p>\n
date   of   entry        in     the      Cadre      of    Assistant          on<\/p>\n
substantive        capacity           i.e.     with       effect           from<\/p>\n
30.4.1986. Once this aspect becomes clear that such<\/p>\n
challenge    of     the    writ       petitioner         to    the    orders<\/p>\n
passed by the High Court on the administrative side<\/p>\n
rejecting    his        representation         by    an       order    dated<\/p>\n
10.8.1999 in CWJC No. 467 of 2000, which was the
\n                                    40<\/span><\/p>\n
         forth rejection for the same relief, the earlier<\/p>\n
         three being orders dated 19.8.1982 followed by the<\/p>\n
         order dated 2.4.1995 and also by an order dated<\/p>\n
         21.11.1995, the only logical outcome of his two<\/p>\n
         writ applications could have been its plain and<\/p>\n
         simple dismissal and\/or the reversal of the learned<\/p>\n
         single Judge by the Division Bench.\n<\/p><\/blockquote>\n
                     27. Thus, for the reasons indicated above,<\/p>\n
         both of these review applications are allowed. The<\/p>\n
         two impugned orders passed by the Division Bench<\/p>\n
         are   hereby      recalled     and   consequently,     both    the<\/p>\n
         appeals, LPA No. 122 of 2005 and LPA No. 123 of<\/p>\n
         2005 are hereby allowed by reversing the order of<\/p>\n
         the learned single Judge dated 23.12.2004 in CWJC<\/p>\n
         No.   467    of   2000   and    CWJC   No.   90   of   2003   and<\/p>\n
         dismissing         the       aforementioned        two        writ<\/p>\n
         applications.\n<\/p><\/blockquote>\n
                     28. There would be, however, no order as<\/p>\n
         to costs.\n<\/p><\/blockquote>\n
                                                (Mihir Kumar Jha, J.)<\/p>\n
                I agree.<\/p><\/blockquote>\n
                                                      (C.M. Prasad, J.)
\nPatna High Court, Patna
\nDated, 23\/02\/2011
\nNAFR\/(Rishi)\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court – Orders The High Court Of Judicature A vs Ram Kripal Prasad &Amp; Ors on 23 February, 2011 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,27],"tags":[],"class_list":["post-204561","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court-orders"],"yoast_head":"\nThe High Court Of Judicature A vs Ram Kripal Prasad &Amp; Ors on 23 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-high-court-of-judicature-a-vs-ram-kripal-prasad-amp-ors-on-23-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The High Court Of Judicature A vs Ram Kripal Prasad &Amp; 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