LexUDAY PRATAP SINGH AND ORS. versus THE STATE OF BIHAR AND ORS.
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A B c UDAY PRATAP SINGH AND ORS. v. THE STATE OF BIHAR AND ORS. AND D.N. SINHA AND ORS. v. THE STATE OF BIHAR AND ORS. SEPTEMBER 29, 1994 [KULDIP SINGH, B.L. HANSARIA AND S.B. MAJMUDAR, JJ.] Service law-Merger of Junior Branch and Senior Branch of Bihar Finance Service by government resolution of November 2, 1975-Junior Branch members appointed to the Senior Branch retrospectively from April 1, 1974 and given seniority over earlier direct recruits in the Senior D Brancl>-Held, no retrospective effect could be given to the merger so as to affect vested rights of incumbents in higher branclt-Constitution of India, Articles 14, 16. Constitution of India, Article 309-Bihar Finance Service Rules, 195J-Merger of Junior Branch with Senior Branch by government resolution E retrospectively giving seniority to merged members of Junior Branch over incumbents in Senior Brancl>-Held, statutory rules cannot be whittled down by an executive order nor can any retrospective effect be given to such order. F Constitution of India, Article 136-Special Leave Petition against ear- lier High Court decision upholding retrospective implementation of impugned resolution summarily rejected by non-speaking order-Held, cannot be said Supreme Court put its imprimature on observations in judgment of the High Court-<:onstitution of India. Article 141--l'ractice and Procedure. The Appellants, belonging to the Junior Branch of the Bihar Finance G Service, were merged with and appointed retrospectively from April 1, 1974 to the Senior Branch by a government resolution of November 2, 1975. The respondents, who were incumbent direct recruits in the Senior Branch at the time of merger were appointed on May 12 and 25, 1974. Under the Bibar State Finance Service Rules, 1953 under Article 309 H of the Constitution, seniority was to be reckoned from date of substantive 72 U.P. SINGHv. STATEANDSINHAv. STATE 73 appointment. However, the Patna High Court In the case of Kartik Charan A Iha v. State, held that the seniority of the mergees vis-a-vis the direct recruits of the Senior Branch had to be reckoned from April 1, 197 4. The Supreme Court dismissed, by a non-speaking order, the Special Leave Petition against the High Court' Order in Jha's case. Accepting the appellant's claim to seniority over the respondents, the State of Bibar issued a provisional gradation list which was challenged by B the respondents by a writ petition. The Patna High Court allowed the petition holding that merger could not be given retrospective effect and that the seniority of the appellants bad to be reckoned from November 2, 1975 the date on which they were substantively appointed to the Senior C Branch. Dismissing the Appeal, this Conrt HELD : 1. No retrospective effect could be not given to any merger of erstwhile lower branch into higher branch in the cadre so as to affect the D vested rights ofincumbents already occupying posts in the erstwhile higher branch of the cadre. The respondents who entered the Senior Branch much prior to November 2, 1975 were entitled to be treated as seniors to the appellants. Otherwise, the respondents would clearly get their constitution- al rights guaranteed under Articles 14 and 16 violated. [78-G, 80-C] Kartik Iha v. State, (decision dated Aprll 8, 1986 of Patna High Court in Writ Petition Nos.4827 of 1984 and 2335 of 1982), partly overruled. E Director, Lift Irrigation Corporation Ltd. and Ors. v. Pravat /(jran Mohanty, [1991) 2 SCC 295; Nirmal Kumar Choudhary and Ors. v. State of F Bihar and Ors., [1988) Suppl. SCC 107; Union of India and Ors. etc. v. Dr . . Krishna Murthy and Ors., [1989) 4 SCC 689, explained and distinguished. Bishan Sarup Gupta etc. v. Union of India etc., [1973) 3 SCC 1, referred to. 2. By an executive order the statutory rules cannot be whittled down nor can any retrospective effect be given to such executive order so as to destroy any right which had become and crystallised. [78-E) T.R. Kapur and Ors. v. State of Haryana and Ors., AIR (1987) SC 415, G followed. H A B 74 SUPREME COURT REPORTS [1994] SUPP. 4S.C.R. 3. It is true that against the earlier decision of the High Court, Special Leave Petition was rejected by this Court but as it was not by speaking order, it cannot be said that court had put its imprimatur on the observations in flia's case. (79-C] Indian Oil Co1poration v. State of Bihar, AIR (1986) SC 1780, fol- lowed. CIVIL AP
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