SURESH CHANDRA JHA versus STATE OF BIHAR AND ORS.

Citation: [2006] SUPP. 8 S.C.R. 831 · Decided: 10-11-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed
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Judgment (excerpt)

SURESH CHANDRA JHA 
A 
v. 
STA TE OF BIHAR AND ORS. 
NOVEMBER 10, 2006 
[ARIJIT PASA Y AT AND LOKESHWAR SINGH PANT A, JJ.] 
B 
Service Law: 
Seniority-Determining factor-Ranking in the merit (ist vis-a-vis date 
of joining-Held: Jn the absence of rules governing the field, the placement C 
in merit list is determinative of seniority and not the date of joining-Bihar 
Private Engineering College Control Act, 1990-Sections 5(2),(3). 
Appellants and several others had applied for the post of Assistant in a 
Private Institution. Five persons including appellant and respondent no.8 were 
appointed. Appellant joined two days after the joining of Respondent no.8. On D 
the basis of Section 5(2) of the Bihar Private Engineering College Control 
Act, 1990 and in purported exercise of powers under Section 5(3) of the Act, 
respondent no.8 was retained in service while the appellant was not retained. 
The appellant questioned correctness of the procedure itdopted but did not 
receive positive response. Thereafter, he filed writ pe~ition before the High E 
Court which was allowed by Single Judge, holding that merely because of 
fortuitous circumstances, respondent no.8 joined earlier and that cannot be a 
ground to make him senior to the appellant, though in the merit list prepared 
appellant was ranked 20 while respondent no.8 was ranked 43. On appeal filed 
by respondent no.8, Division Bench held that the seniority is to be reckoned 
on the basis of the date of joining. 
F 
In appeal to this Court, appellant contended that the view taken by the 
Division Bench is clearly contrary to law; and that there are no rules governing 
the field, hence it is the placement in the merit list which is determinative 
and not the date of joining. 
Partly allowing the appeal, the Court 
HELD: 1.1. There is no dispute that the appellant was ranked higher to 
respondent no.8. Merely b~cause respondent no.8 joined earlier did not in 
831 
G 
H 
832 
SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R. 
A any way affect the merit placement. (834-B-CJ 
1.2. Since there was no rule in operation, obviously the ranking in the 
merit list was to decide the respective seniority. Appellant's claim that he 
was to be treated as senior to the respondent no.8 w_as rightly accepted by 
Single Judge. Unfortunately, the Division Bench did not address itself to the 
B specific question and has placed undue stress on respondent no.8 having joined 
earlier. (834-H; 835-Al 
c 
, D 
E 
F 
Chairman, Puri 'Gramya Bank and Anr. v. Ananda Chandra Das and 
Ors., (1994) 6 SCC 361, held applicable. 
2. However, the appellant will not be entitled to any salary for the period 
during which respondent no.8 has worked. For all other service benefits, the 
period in question shaJI be reckoned. The official respondents shall explore 
the possibility of absorbing respondent no.8 to the suitable post considering 
the fact that for nearly quarter of the century he has rendered services. The 
payment made to him shall not be recovered. (835-B-CJ 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4760 of2006. 
From the Judgment and Order dated 22.7.2003 of the High Court of 
Judicature at Patna in L.P.A. No. 283 of 1997. 
P.S. Mishra, Tathagat H. Vardhan, Upendra Mishra, Ravi C. Prakash, 
D.K. Jha and Pavan Kumar for the Appellant. 
M;.P· Jha, Ram Ekbal Roy, Harshvardhan_ Jha, Anil K. Chopra, Gopal 
Singh and Sanjay R. Hegde for the Respondents. 
The Judgment of the Court was delivered by 
ARIJIT PASAYA T, J. Leave granted. 
Challenge in this appeal is to the legality of the judgment rendered by 
a Division Bench of the Patna High Court. By the impugned judgment the 
G Division Bench set aside the judgment rendered by a learned Single Judge 
who had quashed the notification dated 3 l.1.1991 issued by the State 
Government purportedly issued under the Bihar Private Engineering College 
(Control Ordinance) 1986 (in short 'Orcinance') which was subsequently 
replaced by the Bihar Private Engineering College Control Act 1990 (in short 
H the 'Act'). The appellant had questioned the legality of Section 5(3) of the 
SURESHCHANDRAJHA v. STATE OF BIHAR[PASAYAT, J.] 
833 
Ordinance/Act which was accepted by learned Single Judge. But the Division A 
Bench by the impugned judgment upset judgment of learned Single Judge. 
Background facts in a nutshell are as follows: 
In response to the advertisement for appointment to the post of 
Assistants in the Dr. Joggnath Mishra Institute for Technology (a privat
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