Rameshwar Prasad Chaubey and ors Vs the State of Jharkhand Through Chief Secretary and ors - Citation 849030 - Court Judgment

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- what remains to be seen is as to whether pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. if these ingredients are proved by the prosecution then the conviction of the accused under section 304b, ipc will be complete.[para 9] the question is, in the absence of corpus delicti, could it be presumed that the accused persons alone were responsible for the death of pinki. we must hasten to add here that the accused persons have already been acquitted of the murder charge. [para 9] it is clear that pinki's death was caused because of the burns and not in the normal circumstances. the finding of the trial court and the appellate court in that behalf is correct. for this reason we are not impressed by the argument of the learned counsel that in the absence of corpus delicti, the conviction could not stand. [para10] it is clear that the prosecution has not only proved the offence under section 304b, ipc with the aid of section 113b, indian evidence act but also the offence under section 201, ipc. [para 15] held: we have gone through the judgments of the trial court as well as the appellate court carefully and we find that both the courts have fully considered all the aspects of this matter. we, therefore, find nothing wrong with the judgments and confirm the same. the appeal is, therefore, dismissed.[para 16]d.g.r. patnaik, j.1. heard the learned counsel for the parties.2. the petitioners, in these writ applications have prayed for the following reliefs: -(i) to quash the office order no. 56 dated-19.03.2007 (annexure-19), issued under the signature of the respondent no. 3, whereby the final seniority list of junior engineers in the road construction department, government of jharkhand, has been declared.(ii) for quashing the order dated-11.02.2009, passed by the respondent no. 2, whereby a fresh final inter se seniority list of junior engineers has been prepared and declared.(iii) for quashing the order dated-09.07.2008 (annexure-25 to i.a. no. 2687 of 2008), passed by the respondent no. 2 and also to quash the letter dated-28.02.1979 (annexure-1), passed by the principal secretary, labour, employment & training department, government of bihar.3. in course of arguments, learned counsel for the petitioner declares that he would not press the prayer in respect of the order dated-09.07.2008 and the letter dated-28.02.1979. consequently, the reliefs claimed in this writ application is confined only to the reliefs under item nos. (i) and (ii).4. the dispute, in this case, relates to the grievance of the petitioners against the manner in which the inter se seniority has been fixed by the respondent no. 2 between the petitioners and the private respondent no. 6 to 23..5. from the rival submissions of the counsel for the parties, the undisputed facts relating to the present case are as follows: -considering the grievance of a large number of diploma holders in civil engineering who could not obtain employment even after several years of their passing the diploma examination, the government of bihar decided to appoint junior engineers on ad hoc basis, in the road construction department, against sanctioned posts.the state government nominated the engineer-in-chief of the concerned department as the appointing authority.even though, the prescribed rules for the appointments had stipulated a selection process through the state public service commission, but since the proposed appointments were to be made on ad hoc basis, the state government had adopted the circular issued by the labour, employment & training department vide circular dated-28.02.1979 (annexure-1) for selecting the eligible candidates.the circular had provided guidelines for assessing and fixing the eligibility criteria under which, the candidates were to be allotted three extra marks for each year, which they had spent idle after passing the diploma examinations, subject to a maximum ceiling of 20 marks which could be added to the marks obtained in the diploma examination.accordingly, a list (annexure 2) of 237 diploma holders in civil engineering who are found eligible, was prepared and vide notification no. 6018 (s), dated-09.04.1983, altogether 237 diploma holders were appointed to the post of junior engineers on sanctioned posts in the road construction department, government of bihar on ad hoc basis for a period of six months.the list of appointees (annexure-2) included the names of the petitioners as also that of the private respondent nos. 6 to 23.the ad hoc period was extended from time to time and finally by doing away with the requirements of the selection through the public service commission, a notification was issued by the state government in the road construction department on 08.12.1986, whereby the services of all the ad hoc appointees were regularized from the respective dates of their appointment.pursuant to the regularization, a fresh list by way of a gradation list was prepared in which, the names of the petitioners, were placed above the names of the contesting respondent nos. 6 to 23.later, on 22.07.1993, a provisional inter se seniority list (annexure-7) was prepared and issued by the road construction department in respect of the junior engineers, who were appointed between 1979-1991. after receiving objections from the junior engineers, the provisional gradation list was revised on 06.02.1996 and again on 08.05.2000 and later, on 08.08.2001. in each of these provisional gradation lists, the names of the petitioners had figured above the names of the private respondent nos. 6 to 23.it is relevant to mention here that the provisional gradation list was prepared on the basis of the marks, which the appointees had obtained in their respective diploma examinations.after re-organization of the state of jharkhand, the final allocation of cadre was published by the personnel & administrative reforms department and the services of the petitioners as also that of the private respondent nos. 6 to 23 were allotted to the state of jharkhand.in the list of final allocation of cadre, dated-10.07.2002 (annexure-1 1) the names of the present petitioners were placed above the names of the private respondent nos. 6 to 23.while, this was so, one kapildeo prasad, a junior engineer, who was appointed in the scheduled caste category, raised a dispute against the published gradation list in respect of the inter-se seniority pertaining to the scheduled caste seniority lists. the writ application vide c.w.j.c. no. 937 of 1992 (r) was disposed of by a bench of this court on 11.08.2000 with a direction to the respondent-authorities to finalize the gradation list showing the position of the persons as shown in the 'merit list' and appointed on the basis of the advertisement against which the writ petitioners had applied.pursuant to the directions issued in the aforesaid writ application, the respondent-road construction department, government of bihar, issued a final seniority list of the junior engineers, whereby the seniority position as earlier maintained in the provisional gradation lists was altered.being aggrieved upon such alteration of the seniority positions, the association of the diploma holders, of which the petitioners are members, applied before the patna high court vide m.j.c. no. 2753 of 2005 for modification of the order dated-11.08.2000, passed in kapildeo prasad's case vide c.w.j.c. no. 937 of 1992 (r). the application for modification was disposed of on 21.11.2005, with liberty to the petitioners'-association to challenge the combined gradation list, if the occasion arises. the aggrieved junior engineers submitted their representations/objections and after considering the same, the gradation list impugned in the present writ application, was published vide the concerned department of the respondent-state government declaring the same to be final and placing the names of the present petitioners below the names of the private respondent nos. 6 to 23. being aggrieved, the petitioners have filed the present writ application.it may be relevant to note here that during the pendency of this writ application, two of the aggrieved junior engineers, namely, one hari kishun singh and the other, namely, lalan kumar singh had filed writ applications vide w.p. (s) no. 2276 of 2007 and w.p. (s) no. 2974 of 2007 respectively, disputing the propriety of the gradation list of 19.03.2007. both the writ applications were disposed of by a bench of this court remanding the matter to the respondent-state government with liberty to the petitioners therein, to raise their grievances before the appropriate authority. the objections raised by the junior engineers, who were aggrieved with the original gradation list, was considered by the concerned authorities of the respondents and thereafter, the impugned order of 09.07.2008, was passed wherein, it was declared that annexure-2, is the original merit list of the candidates who were appointed to the posts of the junior engineers on ad hoc basis and the inter se seniority would be guided in accordance with the said list.later, the respondent-state government issued a corrigendum by way of a reasoned order, which was notified on 11.02.2009, declaring the decision of the respondent authorities on the dispute relating to the inter se seniority of the persons appointed as junior engineers of 1982-83 and a gradation list was published afresh.however, by an interim order, passed by this court on 11.08.2009, status quo was ordered to be maintained.6. submitting arguments on behalf of the petitioners, mr. anil kumar sinha, learned senior advocate while assailing the impugned gradation lists and the reasons assigned by the respondent no. 2 for preparation of the impugned gradation lists in the manner in which they have been prepared, would raise the following grounds: -(i) the common advertisement no. 3810 (pw 648) - 81-82 against which the appointments of the petitioners and the private respondents were made, had declared that the appointments would be made on the basis of the recommendation of the bihar public service commission and it did not provide for the implementation of the guidelines contained in the letter dated-28.02.1979 (annexure-1) issued by the labour, employment & training department of the state government.(ii) yet, admittedly, the appointments of the junior engineers was made not on the basis of any recommendation of the b.p.s.c. rather, the appointments were made on ad hoc basis by the nominated appointing officer, namely, the engineer-in-chief of the concerned department in accordance with the guidelines issued under annexure-1.(iii) the guidelines as prescribed in annexure-1, were apparently meant only for fixing the eligibility of the candidates for their appointments and for such purposes, extra grace marks were added to the marks obtained by the candidates in their respective diploma examinations for weightage. on the basis of the total marks, including the marks obtained in the diploma examination and the grace marks, the list of appointees (annexure-2), was prepared and the appointments were accordingly made.(iv) the services of all such ad hoc appointees were regularized on 08.12.1986 even without the intervention of the b.p.s.c.(v) the occasion for preparing the seniority list of all such appointees arose only after their regularisation in service and their seniority could be counted only from the date of their substantive appointments. the seniority could be counted only from the date of substantive appointment and it could be prepared only in accordance with the executive rules and the executive instructions.(vi) the rules do not provide for including or adding any extra weightage grace marks. the application of the guidelines as contained in annexure-1 for determination of inter se seniority of the appointees, is totally wrong and the reasons assigned by the respondents-state government for relying upon the same is totally fallacious and misconceived.(vii) the letter (annexure-1) was issued by the labour, employment & training department of the state government, which was one of the several departments of the state. no such letter by way of any circular was issued by the public works department, which is the parent department of the petitioners and the private respondents and neither was the letter (annexure-1), issued by the labour, employment & training department, published with the approval of the department of personnel and administrative reforms. therefore, the circular issued by the labour employment & training department, cannot be made applicable to the employees of the road construction department. even otherwise, the letter cannot be treated to be a government notification. rather, even as indicated in the concluding sentence of the letter, it was merely an advisory letter addressed to all the departments of the state government for issuing the corresponding government notification in the concerned departments.learned counsel argues further that under the rules of executive business, 1979, the departments of the state government have been defined and in which, it is categorically declared that the road construction department having exclusive control over all the officers serving under the department, is totally separate from the department the labour, employment & training and therefore, in the matter of fixing the seniority of the officers of the road construction department, the labour employment & training department has no role to play and neither can any circular issued by the labour, employment & training department be used for the purpose of determining the inter se seniority of the officers belonging to the road construction department.(viii) the circular dated-17.06.1975 (annexure-6), notified by the road construction department, lays down the procedure for determining the inter se seniority of the officers serving under it. the circular was issued with the approval of the personnel and administrative reforms department and framed under article 166 of the constitution of india relying upon sub rule 2 c of the rule of 1934, which has the statutory force of law. the circular (annexure-6) declares that for determination of inter se seniority, the marks obtained by the candidates at the diploma examination would be the guiding factor. even the rule of 1934, which holds statutory force, lays down that the inter se seniority must be determined by a general consideration of merits and by the educational qualification and age. the rule does not provide for any privilege of any weightage of marks due to idleness, in terms of annexure-1. the inter se seniority could be fixed only in accordance with the procedure laid down in annexure-6.(ix) even otherwise, for selection of the candidates, who had applied against the advertisement dated-24th january, 1982 (annexure-28), no selection board was constituted nor any interview held for such appointments and neither was the recommendation of the public service commission, as required under clause 4 of the said advertisement, was obtained.even the serial wise sequence of the names of the appointees mentioned in column-2 of the ad hoc appointment letter (annexure-2), denotes only the eligibility serial number and it cannot be treated as a merit serial number. that the list (annexure-2), was not treated as a merit list, is confirmed by the fact that upon issuing a fresh gradation list after the appointments of the ad hoc appointees were regularized, the names of the private respondents were shown below the names of the petitioners without giving them any benefit of the extra weightage marks allotted at the time of the initial appointment.(x) the judgment of the patna high court in the case of kapildeo prasad and others vide c.w.j.c. no. 937 of 1992 (r), would not apply to the present case because while passing the judgment, the resolution of the state government in the road construction department, dated-17.06.1975 (annexure-6) under which the procedure for fixation and determination of inter se seniority of the engineers of the public works department was issued, was not placed and therefore not considered. the judgment in kapildeo prasad's case (supra), was in the context of the appointments made against a totally different advertisement meant for the appointment of the candidates in the sc/st category. the court while passing the judgment, had proceeded on the premise that the appointment of the junior engineers were made after an interview held by a regularly constituted board. on the other hand, the admitted facts in the present case is that the entire batch of appointees, including the petitioners and the private respondents, who had applied for their appointment against the advertisement dated- 24.01.1982, were not appointed on the basis of any interview, nor was their selection made by any selection board. the dispute in the kapildeo prasad's case (supra), had related to the seniority amongst the members of the schedule castes and the same was not based upon the claim of weightage of marks for the period of idleness. furthermore, neither the petitioners nor the private respondents were parties in the kapildeo prasad's case (supra) and it was upon considering this aspect of the petitioner's case that the patna high court by its order dated-21.11.2005, passed in the application seeking modification of the order passed in the kapildeo prasad's case, had granted liberty to the persons aggrieved by the gradation list to challenge the same before the appropriate authorities of the respondents.(xi) even the provisions of rule 2 c of the 1934 rules would not be applicable in the case of ad hoc appointments of the parties herein, in view of the fact that such appointments were not made by any selection board nor was it made by following any selection process and nor was the recommendation of any public service commission obtained. under such circumstances, the only guiding rule is the rule dated-17.06.1975 (annexure-6), which could be applied for determining the inter se seniority of the parties and according to which, the determination of seniority of the junior engineers shall have to be made on the basis of the marks obtained by them in the diploma examination.7. on the other hand, while vehemently denying and disputing the reliefs claimed by the petitioners, the contesting respondent nos. 6 to 23, through their counter affidavit, would raise a preliminary objection to the maintainability of this writ application on the ground that in the writ applications, filed by hari kishun singh and lalan kumar singh vide w.p. (s) no. 2276 of 2007 and 2974 of 2007 respectively, the same issues as raised by the present petitioners in this writ application, were raised. while disposing of the writ applications, this court had remitted the matter to the state government with a direction to hear both the writ petitioners as also the other similarly aggrieved persons on their points of protests and pass a reasoned order. in compliance of the order, not only the aforementioned writ petitioners but the petitioners in the present writ application also and some of the private respondents herein, had jointly submitted their representation dated-18.02.2008, stating their objections in respect of the final gradation lists of the junior engineers of the department published on 19.03.2007 (annexure-19). the objections were duly considered by the government of jharkhand, which finds mention in the reasoned order dated-09.07.2008 and thereafter, a fresh gradation list of the junior engineers of the department, has been published. therefore, the reliefs claimed in the present writ application has become infructuous and the same, as such, deserves to be dismissed.it is further argued that though in the present writ application, the petitioners have sought for an order to quash the inter se seniority list dated-19.03.2007 but they have not brought on record any chit of paper to show that they have either individually or jointly represented before the concerned authorities of the respondent-state government prior to approaching this court in the instant writ application. the respondents would submit that on this ground also, the present writ application is misconceived and not maintainable.8. adverting to the other grounds, learned counsel for the private respondents would invite attention to the judgments passed by this court in the case of kapildeo prasad (supra) and the observations contained therein, and would argue that the judgment passed in kapildeo prasad's case (supra), has never been challenged either in l.p.a. before the high court or in s.l.p. before the supreme court and therefore, the same has attained finality. reading out certain passages of the order, passed in kapildeo prasad's case (supra), learned counsel would submit that this court has observed in the order that admittedly, the state had not framed any separate rule of seniority for junior engineers and was guided by the general rules/guidelines, issued from time to time and in this context, the court had also observed that the full bench of the patna high court in the case of bisundeo mahto v. the state of bihar and ors. reported in 1982 bbcj 45, had held that the notification of 1934 has the force of statutory rule under the proviso to article 309 of the constitution of india and it has overriding effect on all such circulars, issued from time to time, including the circular dated-26.08.1972, issued by the state government.learned counsel adds further that this court while deciding the ratio in kapildeo prasad's case (supra), has laid down, that full consideration is to be given to the opinion of the board, i.e., the merit as reflected in the merit list. the court has also observed that the petitioners and the contesting respondent nos. 3 to 14 in the aforesaid writ application, having been appointed initially in pursuance to a common advertisement on the basis of a common merit list, seniority between them has to be determined on the basis of their position in the merit list and the same cannot be altered on the basis of the date of joining.9. attacking the circular dated-17.06.1975, (annexure-6) on which the petitioners would want to place heavy reliance, learned counsel for the private respondents would argue that the statutory rules cannot be modified or altered by the executive instruction, as has been held by the supreme court in the case of bindeshwari ram v. state of bihar reported in : (1989) 4 scc 465. the circular (annexure-6), according to the learned counsel, is merely an executive instruction and not a statute and it does not stand on better footing as that of 1979 resolution (annexure- 1).learned counsel would argue further that there appears a typographical error in the notification, which would suggest that the determination of the inter se seniority of the junior engineers of the public works department, appointed after 21.08.1970 is to be made on the basis of the procedure laid down in para 5 ka of the notification, whereas, if read in the entire context in which the circular (annexure-6) was issued, it would be manifest that the procedure for determination of the inter se seniority was laid down for the junior engineers, who were appointed from 1958 to 21.08.1970 and not to those, who were appointed after 1970.10. referring to the earlier gradation lists, which were modified by the state of bihar, in which the names of the petitioners in the present writ application were placed above the names of the private respondents, learned counsel would argue that such lists were only tentative and provisional and they had never attained finality. the final gradation list dated-10.03.2003 of the junior engineers, for the state of bihar and the state of jharkhand was prepared by the cadre controlling authority under the provisions of the bihar re-organization act, 2000. such gradation list was prepared in consonance with the observations as contained in the judgment passed in kapildeo prasad's case.according to the learned counsel, in the final gradation list dated-10.03.2003, the names of the petitioners have been placed below the names of the private respondent nos. 6 to 23 and such gradation list having been prepared after considering all the objections raised by the aggrieved junior engineers, the same is not liable to be disturbed.11. learned advocate general arguing, for the respondent-state government, would adopt the entire arguments advanced by the learned counsel for the private respondents and in particular, the arguments that the circular (annexure-6) suffers from typographical error. learned advocate general would submit that in the context of the rules of 1934, which continues to hold statutory force, the procedure as laid down in the government circular (annexure-6), would not be applicable to the junior engineers, who were appointed after 21.08.1970. the final gradation list, which was prepared by the cadre controlling authority of the erstwhile state of bihar, being in consonance with the ratio decided in kapildeo prasad's case, would be binding on the junior engineers, whose services were allocated on cadre division to the state of jharkhand.the rank given in the select list (annexure-2) prepared at the time of appointment has accordingly, to be deemed as the merit list, which declares the rank of the individual appointees and this has to prevail at the time of determining the inter se seniority of the appointees. in support of this argument, learned counsel would refer to and rely upon the judgment of the supreme court in the case of pilla sita ram patrudu and ors. v. union of india and ors. reported in : (1996) 8 scc 637.12. learned counsel would argue finally that as has been laid down by the supreme court in several judgments, a writ of mandamus is issued in favour of a person who establishes a legal right in himself and such writ can be issued against a person who has a legal duty to perform but has failed and/or neglected to do so or where a public authority is given power to determine a matter, the writ of mandamus does not apply to compel that authority to reach some particular decision.13. having heard the rival submissions, i would first refer to the objections raised by the respondents regarding maintainability of the writ application.there cannot be any dispute regarding the scope of the powers, which the high court can exercise for issuing a writ of mandamus under article 226 of the constitution of india. in the case of union of india and anr. v. s.b. vohra and ors. reported in : (2004) 2 scc 150, while explaining the scope of the powers under article 226, the supreme court has observed as follows: -20. there is thus no doubt that the high courts in india exercising their jurisdiction under article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant consideration or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. in all such cases and in any other fit and proper case a high court can, in the exercise of its jurisdiction under article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the government or a public authority, and in a proper case, in order to prevent injustice resulting to the parties concerned, the court may itself pass an order or give directions which the government or the public authority should have passed or given had it properly and lawfully exercised its discretion.in the same judgment, while referring to the observations of the apex court in the case of mansukhlal vithaldas chauhan v. state of gujarat : (1997) 7 scc 622, the supreme court has thus observed: -22. mandamus which is a discretionary remedy under article 226 of the constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature. statutory duty may be either directory or mandatory. statutory duties, if they are intended to be mandatory in character, are indicated by the use of the words 'shall' or 'must'. but this is not conclusive as 'shall' and 'must' have, sometimes, been interpreted as 'may'. what is determinative of the nature of duty, whether it is obligatory, mandatory or directory, is the scheme of the statute in which the 'duty' has been set out. even if the 'duty' is not set out clearly and specifically in the statute, it may be implied as correlative to a 'right'.in the present case, the grievance of the petitioners is that the concerned authorities of the respondents have infringed the petitioner's right of seniority over the private respondents, by failing to adhere to the mandatory rules in the matter of preparing the gradation list of the junior engineers. it is in this context that the issues raised in this dispute, have to be addressed to assess as to whether the findings arrived at on the relevant issues would invite the necessity to issue a writ of mandamus against the concerned authorities of the respondents.14. referring now to the other grounds, as it appears from the rival submissions, the controversy involves the main question as to whether the select list (annexure-2) should be deemed as a merit list and therefore, to be accepted as the guiding factor for determining the inter se seniority of the junior engineers, who were appointed on the same date against the common advertisement of 1982?15. there can be no dispute to the principle of law that seniority would be counted from the date of regularization and not from the date of initial appointment on ad hoc basis. in this context, one may refer to the judgment of the supreme court in the case of excise commissioner, karnataka v. v. srikanta reported in air 1993 sc 1560.16. there cannot also be any dispute to the principle of law that the inter se seniority of the direct recruits has to be determined in accordance with the rules prescribed.in the present case, while the respondent-state as also the contesting respondents would claim that the 1934 rules continues to have statutory force and should be applied for determining the inter se seniority of the appointees appointed on the same date and for this, they would want to obtain support from the observations contained in the judgment of this court in the case of kapildeo prasad (supra), the petitioners on the other hand, would insist that the 1934 rules are not attracted in the peculiar facts and circumstances, relating to the manner in which the appointments of the junior engineers of the present case was made and that the guidelines laid down in the circular issued by the parent department vide circular dated -17.06.1975 (annexure-6), has to be applied.17. in kapildeo prasad's case, this court had declared that the 1934 rules have statutory force and is to be applied for guidance for determining the inter se seniority of the direct appointees. however, for proper appreciation of the observations of the ratio decided in kapildeo prasad's case, reference to the facts pleaded and the context in which the ratio was decided, needs to be looked into.18. the grievance of the writ petitioner kapildeo prasad was against the provisional inter se seniority list of junior engineers of scheduled castes, appointed from the year 1980 to 1984. the provisional inter se seniority list dated-18.12.1991 of junior engineers of scheduled castes appointed from the year 1982-84, in which his name was placed below the names of the private respondents. the claim of seniority was based on the p.w.d. resolution dated-17.06.1975, corresponding to the circular (annexure-6), in the present case. the appointments of the disputing parties in kapildeo prasad's case (supra), was made against an advertisement dated-13th march, 1983, which had invited applications from the scheduled castes, scheduled tribes and very backward castes and female candidates for appointment to the reserved temporary vacant posts of junior engineers on ad hoc basis for six months. this aspect appears to be a distinguishing feature from the facts of the present case, in as much as, in the present case, the appointments were made against a different advertisement, which was an invitation to all categories of candidates and not confined to the reserved category alone.19. the facts on the basis of which kapildeo prasad's case was decided, were as follows: -(a) the appointments of the petitioner, kapildeo prasad and the contesting respondents in the case, was made against an advertisement dated-13th march, 1983, which had invited applications from candidates belonging to the scheduled castes/scheduled tribes and the extreme backward classes for their appointment on the post of junior engineers on ad hoc basis.(b) the provisional gradation list, which was challenged in the writ application, was pertaining to the candidates belonging to the scheduled castes/scheduled tribes appointed in between 1980 and 1984.(c) the selection of the appointees was made by a selection committee on the basis of interview of the candidates and a list of all such appointees was prepared, declaring the same to be a merit list in which the names of the candidates were denoted by reference to their merit serial numbers.(d) the dispute in the case had emanated from the fact that the impugned provisional gradation list was prepared by reference to the date of joining of the appointees and not on the basis of their position as reflected in the merit list prepared at the time of appointment as ad hoc junior engineers. this being the main issue, while deciding the same, this court had observed that there is no separate rule of seniority of the junior engineers framed by the state government and they are guided by the general rules/guidelines, issued from time to time. referring to the full bench decision in the case of bishundeo mahto v. state of bihar and ors. reported in 1982 b.b. c.j. 45, the court observed that the state government's notification of 1934, has force under the proviso to article 309 of the constitution of india and that the statutory rule of 1934 has overriding effect on the circular issued from time to time including the circular dated-26th august, 1982. the court made further observations as follows: -admittedly, the 1934 rule is still in vogue having not superseded by any other rule framed under proviso to article 309 of the constitution of india. in terms with the said rule, if officers are recruited by direct recruitment, in pursuance of merit list, full consideration is given to the opinion of the board, i.e. the merit, as reflected in the merit list.on the basis of the aforesaid observations, the court had held that the 'inter se seniority between the appointees has to be determined on the basis of their position in the merit list and the same cannot be altered on the basis of the date of joining, joining being based on fortuitous circumstances.20. from a reading of the entire judgment in kapildeo prasad's case (supra), it appears that though the petitioner kapildeo prasad had relied upon the p.w.d. circular dated-17.06.1975, but no discussion on the said circular was made in the judgment at all. perhaps, any discussion on the circular dated-17.06.1975, was not called upon in view of the admitted fact that at the time of appointment of the junior engineers, albeit on ad hoc basis, a merit list was prepared by a selection committee and therefore, the situation at once invited the application of the 1934 rules, which was declared to have a statutory force.21. it would be manifest from kapildeo prasad's case (supra) that the facts therein were quite different from the facts of the present case and the dispute involved in the present case is not exactly in the same context as raised in kapildeo prasad's case (supra).even otherwise, in the application, filed by the association of diploma engineers of which the petitioners are members, praying for a suitable modification of the order dated-11.08.2000, passed in kapildeo prasad's case (supra), the patna high court by its order dated-21.11.2005, passed in m.j.c. no. 2753 of 2005 had granted liberty to the petitioners therein, to challenge the combined gradation list (annexure-15), if the occasion arises. furthermore, neither the present petitioners nor the contesting respondents were the parties in the writ application, filed by kapildeo prasad.furthermore, there was no occasion for the court, while considering the dispute in kapildeo prasad's case, to decide as to whether a select list of candidates appointed on the basis of grace marks, could be considered as the merit list? for the above reasons, the ratio decided in kapildeo's case, in my opinion, would not be applicable to the facts of the present case.22. in the present case, as it appears, though on the date of appointment of the junior engineers, the then existing statutory rules had prescribed the procedure for appointment of the junior engineers through a selection board and through the public service commission, but the rules were not followed for the appointment of the junior engineers of the present case. rather, an exceptional rule was carved out by adopting a circular (annexure-1) issued by the labour, employment & training department of the state government, which provided guidelines for assessing the eligibility of the candidates for their appointment. the exceptions, which were carved out in the matter of appointment of the candidates, were,(i) no selection committee was constituted. rather, the executive engineer was nominated to appoint the candidates after assessing their eligibility,(ii) the requirement of the candidates being screened through the public service commission, was avoided,(iii) as per the guidelines prescribed in annexure-1, the eligibility of the applicants was assessed by granting three extra grace marks for each idle years, spent by the candidates after passing the diploma examination with a limit up to 20 grace marks, and by adding such grace marks to the marks obtained by the candidates at the diploma examination.thus, all such unemployed candidates, who could not secure eligible marks in their diploma examinations or who could not otherwise succeed for whatever reasons to obtain employment, got the opportunity to become eligible for their appointment. the list of all such appointed candidates (annexure-2) was published by way of an appointment notification on 09.12.1982. column no. 1 of the list contains the serial numbers. column no. 2 is indicated, refers to 'the eligibility serial number'. column no. 3 contains the names of the individual appointees. column no. 4 indicates the categories (general/reserved) of the appointed candidates. the list does not indicate in any of its columns that it is a merit wise list of the appointed candidates. rather, it amply indicates that it was only a select list and the sequence of names in the list have been mentioned beginning with the name of the candidate, whose total marks (including the grace marks) was the highest and in that order.the merit of a candidate is reflected by the marks obtained by him in his qualifying examination and certainly not by the grace marks bestowed upon him. it would be difficult therefore, to accept the argument that the ad hoc appointment of as many as 271 junior engineers against the common advertisement dated-24.01.1982, was made upon consideration of their respective merits. it would also be difficult to accept the proposition that the list (annexure-2) containing the names of the appointees was deemed to be a merit list of the appointees. the list as prepared in respect of the appointed candidates of the present case is therefore, totally different in context and nature from the list of appointees, referred to in the case of kapildeo prasad (supra).furthermore, no rule has been pointed out either by the respondent-state government or by the contesting respondents, which provides for assessment of merits of the candidates on the basis of grace marks. the guidelines (annexure-1) , which was prepared and was adopted by the state government was only for the purpose of assessing the eligibility of the candidates who had applied against the common advertisement of 1982. the public works department, which is the parent department of the petitioners and the contesting respondents, is a distinct and separate department altogether, exercising a certain degree of autonomy and control over the employees working under it. the rule (annexure-6), framed by the parent department, laying down the procedure for assessing the inter se seniority, would therefore, be binding upon the employees working under the department and such guidelines, as may have been prescribed by any other department, including the guidelines as laid down in annexure-1, issued by the labour, employment & training department, cannot be applied for determining the inter se seniority of the junior engineers of the public works department.23. coming now to the controversy regarding the application of the 1934 rules. for better appreciation, the 1934 rules may be noted as under: -wariyata (seniority)1[copy of government of bihar & orissa appointment department no. 6509-a, dated 1jh december, 1934. from, sri r.b. russel, chief officiating secretary to government.]the local government have recently had under consideration the principles to be followed in determining the seniority of officers of the provincial and subordinate services, when more than one officer is appointed to a service at the same time. it has been decided that the following instructions should be observed in future ---(a) where officers are recruited by promotion and by direct appointment at the same time, the promoted officers shall take precedence over the officers directly recruited.(b) promoted officer shall keep the position inter-se which they held in the service from which they were promoted.(c) the decision regarding the seniority of direct recruits shall be made by the authority entitled to appoint at the time of their first appointment. in all cases such decisions shall be final.2. government do not consider it practical to lay down definite criteria to determine the seniority of direct recruits. the following suggestions however, are made for the guidance of departments concerned ------.(a) direct recruits at the time of their first appointment may be given an opportunity to supply any information which may be of value in determining their seniority.(b) when direct recruits have been placed in order of merit by a selection board, full consideration should be given to the opinion of such board.(c) seniority may be determined by general consideration of merit, by educational qualifications, or by age.(d) it is not possible to give a scale showing the relative value of educational qualifications but if departments experience difficulty, the advise of the director of public instructions may be taken.3. these instructions shall not apply to the provincial civil service (judicial branch).24. clause 1 (c) of the instructions of the 1934 rules lays down that the decision regarding the seniority of direct recruits shall be made by the authority entitled to appoint at the time of their first appointment and in all cases, such decision shall be final.this instruction would not apply in the facts of the present case, as because the list of the appointees, prepared at the time of appointment of the petitioners and the contesting respondents does not suggest that it was a merit list.clause 2 (b) of the instructions would apply when the direct recruits have been placed in order of merit by a selection board and full consideration should be given to the opinion of such board.this instruction, also would not apply to the facts of the present case for the reason that no selection board was constituted for the selection of the appointees against the common advertisement of 1982 and neither does the appointing authority appear to have placed such direct recruits in order of merit.the only guideline as indicated in clause 2 (c) of the 1934 rules, which may be of relevance is that the seniority may be determined by general consideration of merits, by educational qualifications or by age. thus, while clause 1 (c) of the instructions of the 1934 rules and clause 2 (b) of the guidelines laid down in the said rules, may not call for application in the facts of the present case. the only guideline, which may be availed from the 1934 rules, is the guideline, which has been given in clause 2 (c) of the 1934 rules. this guideline appears to have been fully adopted in the circular dated-17.06.1975, issued by the state government in the public works department, which provides for determining the inter se seniority of the direct appointees, who were appointed on the same day and which lays down that the inter se seniority of the diploma holders should be decided on the basis of the marks obtained by them at the diploma examination and if two or more candidates had obtained the same marks, then their seniority would be decided on the basis of their respective age.it being a circular, declaring the rules adopted by the concerned department, cannot be ignored by claiming that it does not have any statutory force.25. in the light of the above facts and circumstances, i find force in the claim of the petitioners that the inter se seniority of the direct appointees including the petitioners and the contesting respondents, have to be prepared in accordance with the rules stipulated in the p.w.d. circular (annexure-6). the contention of the respondents that the circular (annexure-6) suffers from typographical errors, cannot be accepted, firstly because the state government has till date not come up with any corrigendum, acknowledging any such purported clerical or typographical error in the circular and secondly, because the guidelines for determining the inter se seniority are in consonance with the instructions as contained in the 1934 rules.26. from the facts and the discussions made above, it is apparent that the impugned provisional as also the final gradation list, prepared by the respondent- state government on the basis of the belief that kapildeo prasad's case had laid down a general rule for application in respect of all appointments made in between 1982 to 1984 in the public works department, is in my opinion, improper and suffers from a basic misconception of the correct rules, which have to be applied for determining the inter se seniority of the appointees, who were appointed against the common advertisement of 1982.27. in the light of the facts and circumstances of the case, i find merit in this writ application. accordingly, this writ application is allowed. the impugned provisional gradation list dated-19.03.2007 and the final gradation list dated-11.02.2009 of the junior engineers in the road construction department of the state government, are hereby quashed. the respondents-authorities are directed to prepare a fresh final seniority list of the junior engineers of the concerned department by applying the procedure laid down in the circular dated-17.06.1975 (annexure-6) issued by the department. this exercise must be completed within a period of three months from the date of receipt/production of a copy of this order.

Judgment:

D.G.R. Patnaik, J.

1. Heard the learned Counsel for the parties.

2. The petitioners, in these writ applications have prayed for the following reliefs: -

(i) To quash the office order No. 56 dated-19.03.2007 (Annexure-19), issued under the signature of the Respondent No. 3, whereby the final seniority list of Junior Engineers in the Road Construction Department, Government of Jharkhand, has been declared.

(ii) For quashing the order dated-11.02.2009, passed by the Respondent No. 2, whereby a fresh final inter se seniority list of Junior Engineers has been prepared and declared.

(iii) For quashing the order dated-09.07.2008 (Annexure-25 to I.A. No. 2687 of 2008), passed by the Respondent No. 2 and also to quash the letter dated-28.02.1979 (Annexure-1), passed by the Principal Secretary, Labour, Employment & Training Department, Government of Bihar.

3. In course of arguments, learned Counsel for the petitioner declares that he would not press the prayer in respect of the order dated-09.07.2008 and the letter dated-28.02.1979. Consequently, the reliefs claimed in this writ application is confined only to the reliefs under item Nos. (i) and (ii).

4. The dispute, in this case, relates to the grievance of the petitioners against the manner in which the inter se seniority has been fixed by the Respondent No. 2 between the petitioners and the private Respondent No. 6 to 23..

5. From the rival submissions of the counsel for the parties, the undisputed facts relating to the present case are as follows: -

Considering the grievance of a large number of diploma holders in Civil Engineering who could not obtain employment even after several years of their passing the diploma examination, the Government of Bihar decided to appoint Junior Engineers on ad hoc basis, in the Road Construction Department, against sanctioned posts.

The State Government nominated the Engineer-in-chief of the concerned Department as the appointing authority.

Even though, the prescribed Rules for the appointments had stipulated a selection process through the State Public Service Commission, but since the proposed appointments were to be made on ad hoc basis, the State Government had adopted the Circular issued by the Labour, Employment & Training Department vide Circular dated-28.02.1979 (Annexure-1) for selecting the eligible candidates.

The Circular had provided guidelines for assessing and fixing the eligibility criteria under which, the Candidates were to be allotted three extra marks for each year, which they had spent idle after passing the diploma examinations, subject to a maximum ceiling of 20 marks which could be added to the marks obtained in the Diploma Examination.

Accordingly, a list (Annexure 2) of 237 Diploma Holders in Civil Engineering who are found eligible, was prepared and vide Notification No. 6018 (S), dated-09.04.1983, altogether 237 Diploma Holders were appointed to the post of Junior Engineers on sanctioned posts in the Road Construction Department, Government of Bihar on ad hoc basis for a period of six months.

The list of appointees (Annexure-2) included the names of the petitioners as also that of the private Respondent Nos. 6 to 23.

The ad hoc period was extended from time to time and finally by doing away with the requirements of the selection through the Public Service Commission, a Notification was issued by the State Government in the Road Construction Department on 08.12.1986, whereby the services of all the ad hoc appointees were regularized from the respective dates of their appointment.

Pursuant to the regularization, a fresh list by way of a Gradation List was prepared in which, the names of the petitioners, were placed above the names of the contesting Respondent Nos. 6 to 23.

Later, on 22.07.1993, a provisional inter se seniority list (Annexure-7) was prepared and issued by the Road Construction Department in respect of the Junior Engineers, who were appointed between 1979-1991. After receiving objections from the Junior Engineers, the provisional Gradation List was revised on 06.02.1996 and again on 08.05.2000 and later, on 08.08.2001. In each of these provisional Gradation lists, the names of the petitioners had figured above the names of the private Respondent Nos. 6 to 23.

It is relevant to mention here that the provisional Gradation list was prepared on the basis of the marks, which the appointees had obtained in their respective Diploma Examinations.

After re-organization of the State of Jharkhand, the final allocation of cadre was published by the Personnel & Administrative Reforms Department and the services of the petitioners as also that of the private Respondent Nos. 6 to 23 were allotted to the State of Jharkhand.

In the list of final allocation of cadre, dated-10.07.2002 (Annexure-1 1) the names of the present petitioners were placed above the names of the private Respondent Nos. 6 to 23.

While, this was so, one Kapildeo Prasad, a Junior Engineer, who was appointed in the Scheduled Caste category, raised a dispute against the published Gradation List in respect of the inter-se seniority pertaining to the Scheduled Caste Seniority Lists. The writ application vide C.W.J.C. No. 937 of 1992 (R) was disposed of by a Bench of this Court on 11.08.2000 with a direction to the Respondent-authorities to finalize the Gradation List showing the position of the persons as shown in the 'merit list' and appointed on the basis of the Advertisement against which the writ petitioners had applied.

Pursuant to the directions issued in the aforesaid writ application, the Respondent-Road Construction Department, Government of Bihar, issued a final seniority list of the Junior Engineers, whereby the seniority position as earlier maintained in the provisional Gradation lists was altered.

Being aggrieved upon such alteration of the seniority positions, the Association of the Diploma Holders, of which the petitioners are members, applied before the Patna High Court vide M.J.C. No. 2753 of 2005 for modification of the order dated-11.08.2000, passed in Kapildeo Prasad's case vide C.W.J.C. No. 937 of 1992 (R). The application for modification was disposed of on 21.11.2005, with liberty to the petitioners'-Association to challenge the combined Gradation list, if the occasion arises. The aggrieved Junior Engineers submitted their representations/objections and after considering the same, the Gradation List impugned in the present writ application, was published vide the concerned Department of the Respondent-State Government declaring the same to be final and placing the names of the present petitioners below the names of the private Respondent Nos. 6 to 23. Being aggrieved, the petitioners have filed the present writ application.

It may be relevant to note here that during the pendency of this writ application, two of the aggrieved Junior Engineers, namely, one Hari Kishun Singh and the other, namely, Lalan Kumar Singh had filed writ applications vide W.P. (S) No. 2276 of 2007 and W.P. (S) No. 2974 of 2007 respectively, disputing the propriety of the Gradation List of 19.03.2007. Both the writ applications were disposed of by a Bench of this Court remanding the matter to the Respondent-State Government with liberty to the petitioners therein, to raise their grievances before the appropriate authority. The objections raised by the Junior Engineers, who were aggrieved with the original Gradation List, was considered by the concerned authorities of the Respondents and thereafter, the impugned order of 09.07.2008, was passed wherein, it was declared that Annexure-2, is the original merit list of the candidates who were appointed to the posts of the Junior Engineers on ad hoc basis and the inter se seniority would be guided in accordance with the said list.

Later, the Respondent-State Government issued a corrigendum by way of a reasoned order, which was notified on 11.02.2009, declaring the decision of the Respondent authorities on the dispute relating to the inter se seniority of the persons appointed as Junior Engineers of 1982-83 and a gradation list was published afresh.

However, by an interim order, passed by this Court on 11.08.2009, status quo was ordered to be maintained.

6. Submitting arguments on behalf of the petitioners, Mr. Anil Kumar Sinha, learned senior Advocate while assailing the impugned Gradation Lists and the reasons assigned by the Respondent No. 2 for preparation of the impugned Gradation lists in the manner in which they have been prepared, would raise the following grounds: -

(i) The common Advertisement No. 3810 (PW 648) - 81-82 against which the appointments of the petitioners and the private Respondents were made, had declared that the appointments would be made on the basis of the recommendation of the Bihar Public Service Commission and it did not provide for the implementation of the guidelines contained in the letter dated-28.02.1979 (Annexure-1) issued by the Labour, Employment & Training Department of the State Government.

(ii) Yet, admittedly, the appointments of the Junior Engineers was made not on the basis of any recommendation of the B.P.S.C. Rather, the appointments were made on ad hoc basis by the nominated appointing officer, namely, the Engineer-in-Chief of the concerned Department in accordance with the guidelines issued under Annexure-1.

(iii) The Guidelines as prescribed in Annexure-1, were apparently meant only for fixing the eligibility of the candidates for their appointments and for such purposes, extra grace marks were added to the marks obtained by the candidates in their respective diploma examinations for weightage. On the basis of the total marks, including the marks obtained in the diploma examination and the grace marks, the list of appointees (Annexure-2), was prepared and the appointments were accordingly made.

(iv) The services of all such ad hoc appointees were regularized on 08.12.1986 even without the intervention of the B.P.S.C.

(v) The occasion for preparing the seniority list of all such appointees arose only after their regularisation in service and their seniority could be counted only from the date of their substantive appointments. The Seniority could be counted only from the date of substantive appointment and it could be prepared only in accordance with the Executive Rules and the Executive instructions.

(vi) The Rules do not provide for including or adding any extra weightage grace marks. The application of the guidelines as contained in Annexure-1 for determination of inter se seniority of the appointees, is totally wrong and the reasons assigned by the Respondents-State Government for relying upon the same is totally fallacious and misconceived.

(vii) The letter (Annexure-1) was issued by the Labour, Employment & Training Department of the State Government, which was one of the several Departments of the State. No such letter by way of any Circular was issued by the Public Works Department, which is the parent Department of the petitioners and the private Respondents and neither was the letter (Annexure-1), issued by the Labour, Employment & Training Department, published with the approval of the Department of Personnel and Administrative Reforms. Therefore, the Circular issued by the Labour Employment & Training Department, cannot be made applicable to the employees of the Road Construction Department. Even otherwise, the letter cannot be treated to be a Government Notification. Rather, even as indicated in the concluding sentence of the letter, it was merely an Advisory letter addressed to all the Departments of the State Government for issuing the corresponding Government Notification in the concerned Departments.

Learned Counsel argues further that under the Rules of Executive business, 1979, the Departments of the State Government have been defined and in which, it is categorically declared that the Road Construction Department having exclusive control over all the officers serving under the Department, is totally separate from the Department the Labour, Employment & Training and therefore, in the matter of fixing the seniority of the officers of the Road Construction Department, the Labour Employment & Training Department has no role to play and neither can any Circular issued by the Labour, Employment & Training Department be used for the purpose of determining the inter se seniority of the officers belonging to the Road Construction Department.

(viii) The Circular dated-17.06.1975 (Annexure-6), notified by the Road Construction Department, lays down the procedure for determining the inter se seniority of the officers serving under it. The Circular was issued with the approval of the Personnel and Administrative Reforms Department and framed under Article 166 of the Constitution of India relying upon sub Rule 2 C of the Rule of 1934, which has the statutory force of law. The Circular (Annexure-6) declares that for determination of inter se seniority, the marks obtained by the candidates at the diploma examination would be the guiding factor. Even the Rule of 1934, which holds statutory force, lays down that the inter se seniority must be determined by a general consideration of merits and by the educational qualification and age. The Rule does not provide for any privilege of any weightage of marks due to idleness, in terms of Annexure-1. The inter se seniority could be fixed only in accordance with the procedure laid down in Annexure-6.

(ix) Even otherwise, for selection of the candidates, who had applied against the Advertisement dated-24th January, 1982 (Annexure-28), no selection Board was constituted nor any Interview held for such appointments and neither was the recommendation of the Public Service Commission, as required under Clause 4 of the said Advertisement, was obtained.

Even the serial wise sequence of the names of the appointees mentioned in Column-2 of the ad hoc appointment letter (Annexure-2), denotes only the eligibility serial number and it cannot be treated as a merit serial number. That the list (Annexure-2), was not treated as a merit list, is confirmed by the fact that upon issuing a fresh Gradation list after the appointments of the ad hoc appointees were regularized, the names of the private Respondents were shown below the names of the petitioners without giving them any benefit of the extra weightage marks allotted at the time of the initial appointment.

(x) The judgment of the Patna High Court in the case of Kapildeo Prasad and others vide C.W.J.C. No. 937 of 1992 (R), would not apply to the present case because while passing the judgment, the Resolution of the State Government in the Road Construction Department, dated-17.06.1975 (Annexure-6) under which the procedure for fixation and determination of inter se seniority of the Engineers of the Public Works Department was issued, was not placed and therefore not considered. The judgment in Kapildeo Prasad's case (Supra), was in the context of the appointments made against a totally different advertisement meant for the appointment of the candidates in the SC/ST category. The Court while passing the judgment, had proceeded on the premise that the appointment of the Junior Engineers were made after an Interview held by a regularly constituted Board. On the other hand, the admitted facts in the present case is that the entire batch of appointees, including the petitioners and the private Respondents, who had applied for their appointment against the Advertisement dated- 24.01.1982, were not appointed on the basis of any Interview, nor was their selection made by any Selection Board. The dispute in the Kapildeo Prasad's Case (Supra), had related to the seniority amongst the members of the Schedule Castes and the same was not based upon the claim of weightage of marks for the period of idleness. Furthermore, neither the petitioners nor the private Respondents were parties in the Kapildeo Prasad's case (Supra) and it was upon considering this aspect of the petitioner's case that the Patna High Court by its order dated-21.11.2005, passed in the application seeking modification of the order passed in the Kapildeo Prasad's case, had granted liberty to the persons aggrieved by the Gradation list to challenge the same before the appropriate authorities of the Respondents.

(xi) Even the provisions of Rule 2 C of the 1934 Rules would not be applicable in the case of ad hoc appointments of the parties herein, in view of the fact that such appointments were not made by any selection Board nor was it made by following any selection process and nor was the recommendation of any Public Service Commission obtained. Under such circumstances, the only guiding Rule is the Rule dated-17.06.1975 (Annexure-6), which could be applied for determining the inter se seniority of the parties and according to which, the determination of seniority of the junior Engineers shall have to be made on the basis of the marks obtained by them in the Diploma examination.

7. On the other hand, while vehemently denying and disputing the reliefs claimed by the petitioners, the contesting Respondent Nos. 6 to 23, through their counter affidavit, would raise a preliminary objection to the maintainability of this writ application on the ground that in the writ applications, filed by Hari Kishun Singh and Lalan Kumar Singh vide W.P. (S) No. 2276 of 2007 and 2974 of 2007 respectively, the same issues as raised by the present petitioners in this writ application, were raised. While disposing of the writ applications, this Court had remitted the matter to the State Government with a direction to hear both the writ petitioners as also the other similarly aggrieved persons on their points of protests and pass a reasoned order. In compliance of the order, not only the aforementioned writ petitioners but the petitioners in the present writ application also and some of the private Respondents herein, had jointly submitted their representation dated-18.02.2008, stating their objections in respect of the final Gradation lists of the Junior Engineers of the Department published on 19.03.2007 (Annexure-19). The objections were duly considered by the Government of Jharkhand, which finds mention in the reasoned order dated-09.07.2008 and thereafter, a fresh Gradation list of the Junior Engineers of the Department, has been published. Therefore, the reliefs claimed in the present writ application has become infructuous and the same, as such, deserves to be dismissed.

It is further argued that though in the present writ application, the petitioners have sought for an order to quash the inter se seniority list dated-19.03.2007 but they have not brought on record any chit of paper to show that they have either individually or jointly represented before the concerned authorities of the Respondent-State Government prior to approaching this Court in the instant writ application. The Respondents would submit that on this ground also, the present writ application is misconceived and not maintainable.

8. Adverting to the other grounds, learned Counsel for the private Respondents would invite attention to the judgments passed by this Court in the case of Kapildeo Prasad (Supra) and the observations contained therein, and would argue that the judgment passed in Kapildeo Prasad's case (Supra), has never been challenged either in L.P.A. before the High Court or in S.L.P. before the Supreme Court and therefore, the same has attained finality. Reading out certain passages of the order, passed in Kapildeo Prasad's Case (Supra), learned Counsel would submit that this Court has observed in the order that admittedly, the State had not framed any separate Rule of seniority for Junior Engineers and was guided by the General Rules/Guidelines, issued from time to time and in this context, the Court had also observed that the Full Bench of the Patna High Court in the case of Bisundeo Mahto v. The State of Bihar and Ors. reported in 1982 BBCJ 45, had held that the Notification of 1934 has the force of statutory Rule under the proviso to Article 309 of the Constitution of India and it has overriding effect on all such Circulars, issued from time to time, including the Circular dated-26.08.1972, issued by the State Government.

Learned Counsel adds further that this Court while deciding the ratio in Kapildeo Prasad's case (Supra), has laid down, that full consideration is to be given to the opinion of the Board, i.e., the merit as reflected in the merit list. The Court has also observed that the petitioners and the contesting Respondent Nos. 3 to 14 in the aforesaid writ application, having been appointed initially in pursuance to a common Advertisement on the basis of a common merit list, seniority between them has to be determined on the basis of their position in the merit list and the same cannot be altered on the basis of the date of joining.

9. Attacking the Circular dated-17.06.1975, (Annexure-6) on which the petitioners would want to place heavy reliance, learned Counsel for the private Respondents would argue that the Statutory Rules cannot be modified or altered by the Executive Instruction, as has been held by the Supreme Court in the case of Bindeshwari Ram v. State of Bihar reported in : (1989) 4 SCC 465. The Circular (Annexure-6), according to the learned Counsel, is merely an Executive Instruction and not a Statute and it does not stand on better footing as that of 1979 Resolution (Annexure- 1).

Learned Counsel would argue further that there appears a typographical error in the Notification, which would suggest that the determination of the inter se seniority of the Junior Engineers of the Public Works Department, appointed after 21.08.1970 is to be made on the basis of the procedure laid down in Para 5 Ka of the Notification, whereas, if read in the entire context in which the Circular (Annexure-6) was issued, it would be manifest that the procedure for determination of the inter se seniority was laid down for the Junior Engineers, who were appointed from 1958 to 21.08.1970 and not to those, who were appointed after 1970.

10. Referring to the earlier Gradation lists, which were modified by the State of Bihar, in which the names of the petitioners in the present writ application were placed above the names of the private Respondents, learned Counsel would argue that such lists were only tentative and provisional and they had never attained finality. The final Gradation list dated-10.03.2003 of the Junior Engineers, for the State of Bihar and the State of Jharkhand was prepared by the Cadre Controlling Authority under the provisions of the Bihar Re-organization Act, 2000. Such Gradation list was prepared in consonance with the observations as contained in the judgment passed in Kapildeo Prasad's case.

According to the learned Counsel, in the final Gradation List dated-10.03.2003, the names of the petitioners have been placed below the names of the private Respondent Nos. 6 to 23 and such gradation list having been prepared after considering all the objections raised by the aggrieved Junior Engineers, the same is not liable to be disturbed.

11. Learned Advocate General arguing, for the Respondent-State Government, would adopt the entire arguments advanced by the learned Counsel for the private Respondents and in particular, the arguments that the Circular (Annexure-6) suffers from typographical error. Learned Advocate General would submit that in the context of the Rules of 1934, which continues to hold statutory force, the procedure as laid down in the Government Circular (Annexure-6), would not be applicable to the Junior Engineers, who were appointed after 21.08.1970. The final Gradation list, which was prepared by the Cadre Controlling Authority of the erstwhile State of Bihar, being in consonance with the ratio decided in Kapildeo Prasad's case, would be binding on the Junior Engineers, whose services were allocated on cadre Division to the State of Jharkhand.

The rank given in the select list (Annexure-2) prepared at the time of appointment has accordingly, to be deemed as the merit list, which declares the rank of the individual appointees and this has to prevail at the time of determining the inter se seniority of the appointees. In support of this argument, learned Counsel would refer to and rely upon the judgment of the Supreme court in the case of Pilla Sita Ram Patrudu and Ors. v. Union of India and Ors. reported in : (1996) 8 SCC 637.

12. Learned Counsel would argue finally that as has been laid down by the Supreme Court in several judgments, a writ of mandamus is issued in favour of a person who establishes a legal right in himself and such writ can be issued against a person who has a legal duty to perform but has failed and/or neglected to do so or where a public authority is given power to determine a matter, the writ of mandamus does not apply to compel that authority to reach some particular decision.

13. Having heard the rival submissions, I would first refer to the objections raised by the Respondents regarding maintainability of the writ application.

There cannot be any dispute regarding the scope of the powers, which the High Court can exercise for issuing a writ of mandamus under Article 226 of the Constitution of India. In the case of Union of India and Anr. v. S.B. Vohra and Ors. reported in : (2004) 2 SCC 150, while explaining the scope of the powers under Article 226, the Supreme Court has observed as follows: -

20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant consideration or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the parties concerned, the court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.

In the same judgment, while referring to the observations of the apex Court in the case of Mansukhlal Vithaldas Chauhan v. State of Gujarat : (1997) 7 SCC 622, the Supreme Court has thus observed: -

22. Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory. Statutory duties, if they are intended to be mandatory in character, are indicated by the use of the words 'shall' or 'must'. But this is not conclusive as 'shall' and 'must' have, sometimes, been interpreted as 'may'. What is determinative of the nature of duty, whether it is obligatory, mandatory or directory, is the scheme of the statute in which the 'duty' has been set out. Even if the 'duty' is not set out clearly and specifically in the statute, it may be implied as correlative to a 'right'.

In the present case, the grievance of the petitioners is that the concerned authorities of the Respondents have infringed the petitioner's right of seniority over the private Respondents, by failing to adhere to the mandatory Rules in the matter of preparing the Gradation list of the Junior Engineers. It is in this context that the issues raised in this dispute, have to be addressed to assess as to whether the findings arrived at on the relevant issues would invite the necessity to issue a writ of mandamus against the concerned authorities of the Respondents.

14. Referring now to the other grounds, as it appears from the rival submissions, the controversy involves the main question as to whether the select list (Annexure-2) should be deemed as a merit list and therefore, to be accepted as the guiding factor for determining the inter se seniority of the Junior Engineers, who were appointed on the same date against the common Advertisement of 1982?

15. There can be no dispute to the principle of law that seniority would be counted from the date of regularization and not from the date of initial appointment on ad hoc basis. In this context, one may refer to the judgment of the Supreme Court in the case of Excise Commissioner, Karnataka v. V. Srikanta reported in AIR 1993 SC 1560.

16. There cannot also be any dispute to the principle of law that the inter se seniority of the direct recruits has to be determined in accordance with the Rules prescribed.

In the present case, while the Respondent-State as also the contesting Respondents would claim that the 1934 Rules continues to have statutory force and should be applied for determining the inter se seniority of the appointees appointed on the same date and for this, they would want to obtain support from the observations contained in the judgment of this Court in the case of Kapildeo Prasad (Supra), the petitioners on the other hand, would insist that the 1934 Rules are not attracted in the peculiar facts and circumstances, relating to the manner in which the appointments of the Junior Engineers of the present case was made and that the guidelines laid down in the Circular issued by the Parent Department vide Circular dated -17.06.1975 (Annexure-6), has to be applied.

17. In Kapildeo Prasad's case, this Court had declared that the 1934 Rules have statutory force and is to be applied for guidance for determining the inter se seniority of the direct appointees. However, for proper appreciation of the observations of the ratio decided in Kapildeo Prasad's case, reference to the facts pleaded and the context in which the ratio was decided, needs to be looked into.

18. The grievance of the writ petitioner Kapildeo Prasad was against the provisional inter se seniority list of Junior Engineers of Scheduled Castes, appointed from the year 1980 to 1984. The provisional inter se seniority list dated-18.12.1991 of Junior Engineers of Scheduled Castes appointed from the year 1982-84, in which his name was placed below the names of the private Respondents. The claim of seniority was based on the P.W.D. Resolution dated-17.06.1975, corresponding to the Circular (Annexure-6), in the present case. The appointments of the disputing parties in Kapildeo Prasad's case (Supra), was made against an Advertisement dated-13th March, 1983, which had invited applications from the Scheduled Castes, Scheduled Tribes and very backward castes and female candidates for appointment to the Reserved temporary vacant posts of Junior Engineers on ad hoc basis for six months. This aspect appears to be a distinguishing feature from the facts of the present case, in as much as, in the present case, the appointments were made against a different Advertisement, which was an invitation to all categories of candidates and not confined to the Reserved category alone.

19. The facts on the basis of which Kapildeo Prasad's case was decided, were as follows: -

(a) The appointments of the petitioner, Kapildeo Prasad and the contesting Respondents in the case, was made against an Advertisement dated-13th March, 1983, which had invited applications from candidates belonging to the Scheduled Castes/Scheduled Tribes and the extreme Backward classes for their appointment on the post of Junior Engineers on ad hoc basis.

(b) The provisional Gradation list, which was challenged in the writ application, was pertaining to the candidates belonging to the Scheduled Castes/Scheduled Tribes appointed in between 1980 and 1984.

(c) The selection of the appointees was made by a Selection Committee on the basis of Interview of the candidates and a list of all such appointees was prepared, declaring the same to be a merit list in which the names of the candidates were denoted by reference to their merit serial numbers.

(d) The dispute in the case had emanated from the fact that the impugned provisional Gradation list was prepared by reference to the date of joining of the appointees and not on the basis of their position as reflected in the merit list prepared at the time of appointment as ad hoc Junior Engineers. This being the main issue, while deciding the same, this Court had observed that there is no separate Rule of seniority of the Junior Engineers framed by the State Government and they are guided by the General Rules/Guidelines, issued from time to time. Referring to the Full Bench decision in the case of Bishundeo Mahto v. State of Bihar and Ors. reported in 1982 B.B. C.J. 45, the Court observed that the State Government's Notification of 1934, has force under the proviso to Article 309 of the Constitution of India and that the statutory Rule of 1934 has overriding effect on the Circular issued from time to time including the Circular dated-26th August, 1982. The Court made further observations as follows: -

Admittedly, the 1934 Rule is still in vogue having not superseded by any other rule framed under proviso to Article 309 of the Constitution of India. In terms with the said rule, if officers are recruited by direct recruitment, in pursuance of merit list, full consideration is given to the opinion of the Board, i.e. the merit, as reflected in the merit list.On the basis of the aforesaid observations, the Court had held that the 'inter se seniority between the appointees has to be determined on the basis of their position in the merit list and the same cannot be altered on the basis of the date of joining, joining being based on fortuitous circumstances.

20. From a reading of the entire judgment in Kapildeo Prasad's case (Supra), it appears that though the petitioner Kapildeo Prasad had relied upon the P.W.D. Circular dated-17.06.1975, but no discussion on the said circular was made in the judgment at all. Perhaps, any discussion on the circular dated-17.06.1975, was not called upon in view of the admitted fact that at the time of appointment of the Junior Engineers, albeit on ad hoc basis, a merit list was prepared by a Selection Committee and therefore, the situation at once invited the application of the 1934 Rules, which was declared to have a statutory force.

21. It would be manifest from Kapildeo Prasad's case (Supra) that the facts therein were quite different from the facts of the present case and the dispute involved in the present case is not exactly in the same context as raised in Kapildeo Prasad's case (Supra).

Even otherwise, in the application, filed by the Association of Diploma Engineers of which the petitioners are members, praying for a suitable modification of the order dated-11.08.2000, passed in Kapildeo Prasad's case (Supra), the Patna High Court by its order dated-21.11.2005, passed in M.J.C. No. 2753 of 2005 had granted liberty to the petitioners therein, to challenge the combined Gradation list (Annexure-15), if the occasion arises. Furthermore, neither the present petitioners nor the contesting Respondents were the parties in the writ application, filed by Kapildeo Prasad.

Furthermore, there was no occasion for the Court, while considering the dispute in Kapildeo Prasad's case, to decide as to whether a select list of candidates appointed on the basis of grace marks, could be considered as the merit list? For the above reasons, the ratio decided in Kapildeo's case, in my opinion, would not be applicable to the facts of the present case.

22. In the present case, as it appears, though on the date of appointment of the Junior Engineers, the then existing statutory Rules had prescribed the procedure for appointment of the Junior Engineers through a Selection Board and through the Public Service Commission, but the Rules were not followed for the appointment of the Junior Engineers of the present case. Rather, an exceptional rule was carved out by adopting a Circular (Annexure-1) issued by the Labour, Employment & Training Department of the State government, which provided guidelines for assessing the eligibility of the candidates for their appointment. The exceptions, which were carved out in the matter of appointment of the candidates, were,

(i) No selection Committee was constituted. Rather, the Executive Engineer was nominated to appoint the candidates after assessing their eligibility,

(ii) The requirement of the candidates being screened through the Public Service Commission, was avoided,

(iii) As per the guidelines prescribed in Annexure-1, the eligibility of the applicants was assessed by granting three extra grace marks for each idle years, spent by the candidates after passing the Diploma Examination with a limit up to 20 grace marks, and by adding such grace marks to the marks obtained by the candidates at the Diploma Examination.

Thus, all such unemployed candidates, who could not secure eligible marks in their Diploma Examinations or who could not otherwise succeed for whatever reasons to obtain employment, got the opportunity to become eligible for their appointment. The list of all such appointed candidates (Annexure-2) was published by way of an appointment Notification on 09.12.1982. Column No. 1 of the List contains the serial numbers. Column No. 2 is indicated, refers to 'the eligibility serial number'. Column No. 3 contains the names of the individual appointees. Column No. 4 indicates the categories (General/Reserved) of the appointed candidates. The List does not indicate in any of its columns that it is a merit wise list of the appointed candidates. Rather, it amply indicates that it was only a select list and the sequence of names in the list have been mentioned beginning with the name of the candidate, whose total marks (including the grace marks) was the highest and in that order.

The merit of a candidate is reflected by the marks obtained by him in his qualifying examination and certainly not by the grace marks bestowed upon him. It would be difficult therefore, to accept the argument that the ad hoc appointment of as many as 271 Junior Engineers against the common Advertisement dated-24.01.1982, was made upon consideration of their respective merits. It would also be difficult to accept the proposition that the list (Annexure-2) containing the names of the appointees was deemed to be a merit list of the appointees. The list as prepared in respect of the appointed candidates of the present case is therefore, totally different in context and nature from the list of appointees, referred to in the case of Kapildeo Prasad (Supra).

Furthermore, no Rule has been pointed out either by the Respondent-State Government or by the contesting Respondents, which provides for assessment of merits of the candidates on the basis of grace marks. The guidelines (Annexure-1) , which was prepared and was adopted by the State Government was only for the purpose of assessing the eligibility of the candidates who had applied against the common Advertisement of 1982. The Public Works Department, which is the Parent Department of the petitioners and the contesting Respondents, is a distinct and separate Department altogether, exercising a certain degree of autonomy and control over the employees working under it. The rule (Annexure-6), framed by the Parent Department, laying down the procedure for assessing the inter se seniority, would therefore, be binding upon the employees working under the Department and such guidelines, as may have been prescribed by any other Department, including the Guidelines as laid down in Annexure-1, issued by the Labour, Employment & Training Department, cannot be applied for determining the inter se seniority of the Junior Engineers of the Public Works Department.

23. Coming now to the controversy regarding the application of the 1934 Rules. For better appreciation, the 1934 Rules may be noted as under: -

Wariyata (Seniority)

[Copy of Government of Bihar & Orissa Appointment Department No. 6509-A, dated 1jh December, 1934. From, Sri R.B. Russel, Chief Officiating Secretary to Government.]

The Local Government have recently had under consideration the principles to be followed in determining the seniority of officers of the Provincial and Subordinate Services, when more than one officer is appointed to a service at the same time. It has been decided that the following instructions should be observed in future ---

(a) Where Officers are recruited by promotion and by direct appointment at the same time, the promoted Officers shall take precedence over the Officers directly recruited.

(b) Promoted Officer shall keep the position inter-se which they held in the service from which they were promoted.

(c) The decision regarding the seniority of direct recruits shall be made by the authority entitled to appoint at the time of their first appointment. In all cases such decisions shall be final.

2. Government do not consider it practical to lay down definite criteria to determine the seniority of direct recruits. The following suggestions however, are made for the guidance of departments concerned ------.

(a) Direct recruits at the time of their first appointment may be given an opportunity to supply any information which may be of value in determining their seniority.

(b) When direct recruits have been placed in order of merit by a Selection Board, full consideration should be given to the opinion of such Board.

(d) It is not possible to give a scale showing the relative value of educational qualifications but if departments experience difficulty, the advise of the Director of Public Instructions may be taken.

3. These instructions shall not apply to the Provincial Civil Service (Judicial Branch).

24. Clause 1 (c) of the Instructions of the 1934 Rules lays down that the decision regarding the seniority of direct recruits shall be made by the authority entitled to appoint at the time of their first appointment and in all cases, such decision shall be final.

This instruction would not apply in the facts of the present case, as because the list of the appointees, prepared at the time of appointment of the petitioners and the contesting Respondents does not suggest that it was a merit list.

Clause 2 (b) of the Instructions would apply when the direct recruits have been placed in order of merit by a Selection Board and full consideration should be given to the opinion of such Board.

This instruction, also would not apply to the facts of the present case for the reason that no selection Board was constituted for the selection of the appointees against the common advertisement of 1982 and neither does the appointing authority appear to have placed such direct recruits in order of merit.

The only guideline as indicated in Clause 2 (c) of the 1934 Rules, which may be of relevance is that the seniority may be determined by general consideration of merits, by educational qualifications or by age. Thus, while Clause 1 (c) of the Instructions of the 1934 Rules and Clause 2 (b) of the Guidelines laid down in the said Rules, may not call for application in the facts of the present case. The only guideline, which may be availed from the 1934 Rules, is the guideline, which has been given in Clause 2 (c) of the 1934 Rules. This guideline appears to have been fully adopted in the Circular dated-17.06.1975, issued by the State Government in the Public Works Department, which provides for determining the inter se seniority of the direct appointees, who were appointed on the same day and which lays down that the inter se seniority of the Diploma Holders should be decided on the basis of the marks obtained by them at the Diploma examination and if two or more candidates had obtained the same marks, then their seniority would be decided on the basis of their respective age.

It being a Circular, declaring the Rules adopted by the concerned Department, cannot be ignored by claiming that it does not have any statutory force.

25. In the light of the above facts and circumstances, I find force in the claim of the petitioners that the inter se seniority of the direct appointees including the petitioners and the contesting Respondents, have to be prepared in accordance with the Rules stipulated in the P.W.D. Circular (Annexure-6). The contention of the Respondents that the Circular (Annexure-6) suffers from typographical errors, cannot be accepted, firstly because the State Government has till date not come up with any corrigendum, acknowledging any such purported clerical or typographical error in the circular and secondly, because the guidelines for determining the inter se seniority are in consonance with the Instructions as contained in the 1934 Rules.

26. From the facts and the discussions made above, it is apparent that the impugned provisional as also the final Gradation List, prepared by the Respondent- State Government on the basis of the belief that Kapildeo Prasad's case had laid down a general Rule for application in respect of all appointments made in between 1982 to 1984 in the Public Works Department, is in my opinion, improper and suffers from a basic misconception of the correct Rules, which have to be applied for determining the inter se seniority of the appointees, who were appointed against the common advertisement of 1982.

27. In the light of the facts and circumstances of the case, I find merit in this writ application. Accordingly, this writ application is allowed. The impugned provisional Gradation List dated-19.03.2007 and the Final Gradation list dated-11.02.2009 of the Junior Engineers in the Road Construction Department of the State Government, are hereby quashed. The Respondents-authorities are directed to prepare a fresh final seniority list of the Junior Engineers of the concerned Department by applying the procedure laid down in the Circular dated-17.06.1975 (Annexure-6) issued by the Department. This exercise must be completed within a period of three months from the date of receipt/production of a copy of this order.

Subject	Service
Court	Jharkhand High Court
Decided On	Jun-23-2010
Judge	D.G.R. Patnaik, J.
Appellant	Rameshwar Prasad Chaubey and ors.
Respondent	The State of Jharkhand Through Chief Secretary and ors.
Disposition	Petition allowed
Cases Referred	Bishundeo Mahto v. State of Bihar and Ors.

Rameshwar Prasad Chaubey and ors. Vs. the State of Jharkhand Through Chief Secretary and ors. - Court Judgment