SANJAY K. SINHA-II AND ORS. versus STATE OF BIHAR AND ORS.

Citation: [2004] SUPP. 2 S.C.R. 834 · Decided: 31-05-2004 · Supreme Court of India · Bench: BRIJESH KUMAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
SANJA Y K. SINHA-II AND ORS. 
v. 
STATE OF BIHAR AND ORS. 
MAY 31, 2004 
B 
[BRIJESH KUMAR AND ARUN KUMAR, JJ.] 
Service Law : 
Bihar Forest Service Rules-Ru/es 3 and 35-Post of Assistant 
C Conservators of Forests-Direct Recruits and promotees-lnter se 
seniority-Determination of-Posts to be filled by 50% direct recruits and 
50% promotees-Candidate appointed to substantive posts by direct 
recruitment-Appointment of candidates from feeder posts against non-
existing posts du~ing the relevant period-Thereafter, appointment order 
D of direct recruits issued-Final seniority list issued showing direct recruits 
junior to promotees-Validity of-Held: Appointments made contrary to 
the rules are merely fortuitous and do no confer benefit of seniority on 
appointees over and above the regular/substantive appointees to the 
service-On facts, substantive posts not being available and promotion 
E being made against non-existing post, there could be no appointment in 
service and as such promotees could not be given seniority with effect from 
the purported date of their promotion over and above the direct recruits-
Hence, final seniority list quashed-Also the direct recruits cannot be non-
suited on the ground of delay in challenging the promotion order of 
F promotees. 
In the State Forest Service, 50% posts of Assistant Conservators 
of Forests (ACFs) were to be filled by promotion and the other 50% 
by direct recruitment. Appellants were appointed as ACFs by direct 
recruitment. The process of direct recruitment was completed by 
G 8.6.1987 but the notification regarding appointment was issued on 
14.12.1987. Meanwhile, on 20.6.1987 the Departmental Promotion 
Committee was constituted to consider promotion from feeder posts 
and promotees were appointed to the posts of ACFs by notifications 
dated 6.10.1987 and 23.ll.1987. It was the appellant's case that as per 
H the notification of 12.8.1987, at the relevant time the cadre strength of 
834 
S.K. SINHA v. ST A TE 
835 
the post of ACF was only 172 and the promotees were already A 
occupying more than 50% posts. Thereafter, in 1989 final seniority list 
was issued showing the appellants who are direct recruits as juniors 
to the promotees. Appellants filed writ petition challenging the final 
seniority list; High Court dismissed the same on 3.4.1996. High Court 
again dismissed the writ petition on merits on 13.7.1998, after the B 
remand order was passed by this Court. It rejected the case of the 
appellant challenging the promotions of the promotees. Meanwhile, on 
9.2.1996 another Division Bench of High Court quashed the notifications 
of 6.10.1987 and 23.11.1987 and also the final seniority list. State 
Government was permitted to issue fresh notification with regard to C 
the appointments of promotees but there was delay and, as such the 
promotees filed contempt application. The notification was ultimately 
issued on 15.7.2002 stating that the promotees could be appointed with 
effect from the date mentioned against their names, which is 20.6.19.87. 
In appeal to this Court, appellant - direct recruits contended that D 
the posts of ACF were not available in the year 1987 for appointment 
of the promotees without first restoring the balance in the service but 
still respondents went ahead with appointments; and that the notification 
of 12.8.1987 is a resolution which only determines the cadre strength 
and is a decision which remains to be implemented. 
Allowing the appeal, the Court 
E 
HELD: 1. Rule 35 of the Bihar Forest Service Rules provides that 
seniority of officers appointed to the service is to be determined with F 
reference to the date of their substantive appointment. In order to 
become a member of the service the person concerned has to satisfy 
that the appointment must be in substantive capacity and has to be to 
the post in the service according to the rules and within the quota to 
a substantive vacancy. Further, it is settled law that the appointments 
made contrary to the rules are merely fortuitous and do no confer G 
benefit of seniority on the appointees over and above the regular/ 
substantive appointees to the service. (845-B-C; 847-B-C) 
C.K Antony v. B. Muraleedharan and Others, [1998) 6 SCC 630; 
MS.L. Patil, Asstt. Conservator of Forests, Solarpur (Maharashtra) and H 
836 
SUPREME COURT REPORTS [2004] SUPP. 2 S.C.R. 
A Others v. State of Maharashtra and Others, f 1996( ll sec 361 and State 
of Maharashtra and Another A. W. Dhope 

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