AWADH PRASAD SINGH AND ORS. versus STATE OF BIHAR AND ORS.

Citation: [1990] 2 S.C.R. 193 · Decided: 27-03-1990 · Supreme Court of India · Bench: B.C. RAY · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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AWADH PRASAD SINGH AND ORS. 
v. 
STATE OF BIHAR AND ORS. 
MARCH 27, 1990 
[B.C. RAY AND K.N. SAIKIA, JJ.] 
Excise Recruitment Rules 1936: Rule 1(3)(2)-Bihar State-
t:xcise Department-Excise Inspectors promoted from Upper Division 
Assistants in Excise Department and Excise Inspectors promoted from 
Sub-Inspectors-Gradation list-Challenge to-Whether valid. 
The subject matter of the Writ Petition is the gradation list dated 
9.1.1986 of the Inspectors of Excise by which the Government of Bihar 
has finally fixed the inter se seniority of the Petitioners who were prom-
oted vis-a-vis th_e appellants in the present appeal who were promoted to 
posts of Inspectors of Excise in 5% quota reserved for promotion from 
the posts of Upper Division Assistants of Excise Department. 
In the gradation list the appellants who joined as Inspectors of 
Excise on 7 .5. 76 were shown as senior to the Excise Inspector who were 
promoted from Sub-Inspectors on 24.4. 74 in the vacancies of direct 
recruits. 
The gradation list was challenged in the High Court by the Re-
spondents on two grounds i.e., (I) the State Government has no jurisdic-
tion to_ determine the seniority or gradation list of the Excise Inspectors, 
the competent authority is the Excise Commissioner (2) The Respon-
dents in the present appeal have been continuously officiated for years 
togath"! in the vacancies of direct recruits and thus could not be pushed 
down for determining tbe seniority and shown as juniors to the contest-
ing appellants. 
The High Court allowed the Writ Petition in part. It was held that 
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5% quota to be filled up by promotion from Upper Division Assistants of 
Excise Department was notified only on 31st March 1975, whereas the 
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appellants have been promoted in the 5% quota of vacancies of the year 
1974-75 .. Hence they have not been promoted in the 5% quota. The 
Respondents in the present appeal were promoted as Excise Inspectors 
on 24.4. 74 in the quota of direct recruits and thus they could not be 
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shown as juniors to those who were promoted and joined on 7.5.76 from 
5% quota of the 1974-75 year vacancies. The High Court quashed the 
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193 
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SUPREME COURT REPORTS 
[ 1990] 2 S.C.R. 
gradation list and directed the State Government to draw up a fresh list 
in the light of the observations made. Further it held that State Govern-
ment is the competent authority to determine inter se seniority, because 
no where in any provisions of Bihar Excise.Act 1915 government has 
vested the Exci•e Commissioner with the power of determining the 
seniority of the Excise Inspectors. Hence the gradation list prepared by 
the State Government is legal and vr\id. 
The appellant• filed Special Leave petition in this Court against the 
High Court Judgment and Order. 
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Allowing the Special Leave Petition, this Court, 
HELD: The appellants claimed to be promoted to the posts of 
Inspectors in the 5% quota set apart for promotion from the Upper 
Division Assistants against the vacancies of the year 1974-75. Since 
under Bihar Excise Act 1915 vide notification No. 417 of 15.1.1919 
clause (iv) the Excise Commissioner was given only the powers to ap-
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point Excise Inspectors by promotions but no_t to determine inter se 
seniority etc. Hence vide Excise Re<Tuitment Rules 1936; Rule No. I 
vide notification No. 411 dated 31.3. 75, after clause (2) clause (3) 
was added making provision for promotion from selected confirmed 
Upper Division Assistants and Head Clerks of the District Excise Office 
and also added at the end of the Rule I that at least 5% of the 
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total vacancies shall be filled up by promotion from among the above 
notified staff. In this rule the provision for relaxation of direct 
recruitment quota was made but there was no relaxation of the quota of 
promotees. [197G; I98C; 199EJ 
.A. 
The State Goverment made this decision and order on 20.3. 74 
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regarding reservation of 5% of the total vacancies to be filled by promo-
tion for the year 1974-75 but the notification to that effect was published 
on 31.3.75. The promotion could not have been given unless the deci-
sion was confirmed by notification. It was only after the notification of 
31.3. 75, that the Upper Division Assistants were promoted as Excise 
Ins_pectors for the first time out of the 5% quota created in the vacancies· 
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of 1'174-75, in the year 1976. [205G-H; 2068] 
The Government has rightly promoted the appellants with

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