BINDESHWARI RAM versus STATE OF BIHAR & ORS.

Citation: [1989] SUPP. 1 S.C.R. 201 · Decided: 19-09-1989 · Supreme Court of India · Bench: M.N. VENKATACHALIAH · Disposal: Dismissed

Judgment (excerpt)

BINDESHWARI RAM 
v. 
STATE OF BIHAR & ORS. 
SEPTEMBER 19, 1989 
[M.N. VENKATACHALIAH, N.D. OJHA AND 
J.S. VERMA, JJ.] 
Bihar Forest Service Rules, 1953: Rule 35(iii)-Seniority-Fixa-
tion of inter-se seniority among Assistant Conservators of Forest-
Determining Factor-lnter-se seniority held as Ranger. 
Administrative Law: Statutory rule-Cannot be modified or 
altered by executive instructions. 
The appellant and respondents 7 to 13 are Asistant Conservators 
of Forest and are governed by the Bihar Forest Service Rules, 1953. As 
per Rule 3 thereof appointment to the said post is made either by direct 
recruitment or by promotion of selected Rangers. 
The appellant and respondents 7 to 12 were promotees and 
respondent 13 was a direct recruit. Though the appellant was promoted 
subsequent to the promotion 'of respondents 7 to 12, his appointment 
was made retrospective. The appellant was the last to be confirmed as 
Assistant Conservator of Forest. As a Ranger also the appellant was 
appointed much later to respondents 7 to 12. On the basis of confirma-
tion seniority has been determined. The appellant challenged the 
seniority of respondents 7 to 13 over him, b)' way of a Writ Petition in 
the. High Court. He relied on a memorandnm to the Cabinet which 
contained a note that if the appellant was found fit for promotion his 
place would be above 10 general category officers and since the 
memorandum was approved by the Cabinet his name in the. seniority 
list should have been placed above those officers. The respondents 
resisted the claim stating that the Cabinet had not approved the 
memorandum in its entirety. The High Court dismissed the Writ Peti-
tion and this appeal, by special leave, is against the said judgment. 
The contentions raised before the High Court were reiterated in 
this appeal. 
Dismissing the appeal, 
201 
A 
B 
c 
D 
E 
F 
G 
1:1 
B 
c 
I) 
202 
SUPREME COURT REPORTS 
[1989] Supp. 1 S.C.R. 
HELD: l. l. Rule 35 of the Bihar Forest Service Rules, 1953 
specifically deals with seniority. In the instant case, Clause (i) of the 
proviso is not attracted. Even Clause (ii) is not attracted inasmuch as 
respondent No. 13' even though was appointed by direct recruitment,. 
was not appointed "at the same time" as the appellant and responde11ts:1 
to 12. It is Clause (iii) which is relevant Jor the determination of.the 
seniority inter-se of the appellant and respondents 7 to 12. On a plain 
reading of this Clause it is apparent that on substantive appointment of 
Rangers to the service by promotion, their seniority inter-se in the 
service is to be governed by "their senior.ity inter-se held as Rangers". 
The appellant as well as respondents 7 to 12 have already been con-
firmed as Assistant Conservator of Forest and meet the requirement of 
"substantive appointment to the service by promotion". In order to 
determine their inter-se seniority as Assistant Conservator of Forest, 
therefore, their seniority inter-se as Rangers shall be the determining 
factor. Respondents '7to 12 had been.appointed as Rangers mudl·beforetlte 
date on which the appellant was appointed as a Ranger. Hence the claim 
of seniority as made by the appellant has no substance. [204D; 205B-E] 
I.2. It is settled law that the provisions of statutory rules cannot 
be modified or altered by executive instructions, and it is only in the 
absence of statutory rules that executive instructions have relevance. As 
such even if for the sake of argument it may be accepted that on account 
of the memorandum to the Cabinet or any other executive Instruction 
E 
the appellant was to be given seniority as claimed by him, it could not be 
done, as in case of a conflict, the statutory provisions contained in 
proviso (iii) of Rule 35 of the Rules shall prevail. [205E-F] 
F 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3982 
ofl989. 
From the Judgment and Order dated 20.4.1988 of the Bihar High 
Court in C.W.J.C. No. 1749 of 1988. 
· 
B.R.L. Iyengar, Govind Mukhoty, K.K. Gupta and Hari Narain 
0 jha for the Appellant. 
Anil Dev Singh, A.K. Sen, D. Goburdhan, T.C. Sharma, Mrs. 
Sushma Suri and. D.P. Mukherjee for the Respondents. 
The Judgment of the Court was delivered by 
JiI 
OJHA, J. Specialleave granted. 
BINDESHWARI RAM v. -STATE OF BIHAR {OJHA, J.] 
203 
This appeal has been preferred against the judgment dated 20th 
April 1988 of the Patna High Court dismissing a writ petition filed by 
the appellant challenging a seniority list. Necessary 

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