LexD. GANESH RAO PATNAIK AND ORS. versus STATE OF JHARKHAND AND ORS.
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A B D. GANESH RAO PATNAIK AND ORS. V. STATE OF JHARKHAND AND ORS. OCTOBER 6, 2005 [R.C. LAHOTI, CJ., G.P. MA THUR AND P.K. BALASUBRAMANY AN, JJ.] Service law C Bihar Superior Judicial Service Rules, 1946-Rule 6-Seniority--Direct D recruitments vis-a-vis promotees-Promotion in excess of allotted quota subject to court orders-Subsequentzy though quota found in excess regularised- Against subsequent vacancies-Held, direct recruits appointed as against a/lo/led quota shall rank senior to promotees. Words and phrases-'Cadre '-Will mean and include entire cadre including temporary posts. Rule 6-Proviso--Deviation from allotted quota-Promotions in excess of quota-No material lo show any conscious decision by State Government- £ Held, promotions cannot be valid and legal. The appellants-direct recruits and the contesting respondents- promotees besides others were provisionally allocated to the State of Jharkhand and in the said provisional allocation order the names of the appellants were placed above the names of the contesting respondents in F accordance with the administrative decision of the Patna High Court dated 4.9.1996. The Jharkhand High Court promoted the appellants to the posts of District and Sessions Judges in June, 2001, whereas the contesting respondents were promoted on or after August, 2001. Some time in January, 2002 two of the promotee officers, viz., respondent Nos. 9 and 11, filed representations on the administrative side of the Jharkhand High G Court for treating them as senior to the direct recruits. This representation was referred to a committee of two Hon'ble Judges, which, after issuing notices and giving an opportunity of making representations to the appellant, gave a report on recommending that the promotee officers are entitled to be ranked senior to the direct reeruits. The report of the "H I~ D. GANESH RAO PATNAIK '" ST A TE OF .11-IARKHAND I 03 Committee was accepted by the High Court and the contesting respondents A were declared senior to the appellants. The appellants then filed a writ petition before the Jharkhand High Court challenging the aforesaid decision on the administrative side wherein an interim order of stay was passed, but ultimately the writ petition was dismissed. Before this Court appellant contended that the decision of the High B Court in the earlier round of litigation to the effect that the temporary . posts had also to be taken into consideration for determining the quota of the direct recruits had neither been commented upon nor reversed by this Court and, therefore the said decision was binding upon the parties; that the observations made in paragraph 27 of the judgment in the case of 0. P. C Garg supports their case; that the appointment of the contesting respondents was not only contrary to Rules but was fortuitous in nature and they can get no advantage of such fortuitous appointment until a sllbstantive vacancy was available in their quota, which in fact became available much later some time in the year 1993-94, which is long after the appointment of the appellants; that both the appellants and the D contesting respondents were members oJ Bihar Superior Judicial Service and dispute of their inter se seniority had been settled by the Patna High Court on the administrative side vide its decision dated 4.9.1996 whereunder appellants were declared to be senior to the contesting respondents; and that in such circumstances it was not open to the E Jharkhand High Court to reopen the issue and take a contrary view on 29.8.2002 whereunder the contesting respondents were declared to be senior to the appellants, more so when the decision taken by the Patna High Court on 4.9.1996 on the administrative side had already been challenged by filing a writ petition to which respondent Nos. 9 and 11 were parties and the writ petition was still pending. F Respondents submitted that the mere fact that this Court did not specifically advert to the aforesaid part of the judgment of the High Court would not mean that it gave a seal of approval to the same, specially when the appeal preferred by the State of Bihar was allowed and the directions issued in the judgment of the High Court for making further appointments G of direct recruits was set aside; that Rule 6 of the Rules, which says that out of the posts in the cadre of the service, two-thirds shall be filled by promotion and one-third by direct recruitment, i
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