Holding

Seniority in the Bihar Forest Service is to be measured from the date of a substantive appointment, and because the appellants' 1988 appointment was illegal and not substantive, their seniority is deemed to commence only from their regularisation on 3 October 2005.

Summary

The State of Bihar advertised 40 Assistant Conservator of Forests (ACF) posts in 1985 and filled them by December 1987. Unsuccessful candidates, including the appellants, lobbied the government and were appointed on 13 April 1988 despite the merit list being exhausted, an appointment the Court held to be illegal and fortuitous. Their services were later regularised on 3 October 2005, and the State placed them at the bottom of the seniority list in 2010. The appellants challenged this placement, arguing that seniority should date from their 1988 appointment. The Supreme Court, applying Rule 35 of the Bihar Forest Service Rules, held that seniority is determined by the date of a substantive appointment, and since the 1988 appointment was not substantive, seniority could only be counted from the regularisation date. Consequently, the Court dismissed the appeals and affirmed the High Court’s order.

Issues considered

The appointment of the appellants as ACFs on 13 April 1988 was a substantive appointment within the meaning of Rule 35 of the Bihar Forest Service Rules, 1953.
Whether seniority of the appellants should be reckoned from the date of their initial appointment (13 April 1988) or from the date of their regularisation (3 October 2005).
Whether the State could regularise an illegal appointment and grant seniority based on that regularisation.
Whether the appointments contravened the provisions of Rules 22, 24 and the principle that vacancies cannot be filled beyond the advertised number.

Legislation cited

Bihar Forest Service Rules, 1953s. Rule 22, s. Rule 24, s. Rule 35, s. Rule 3(aa)
Constitution of Indias. Article 14, s. Article 16(1)

Subjects

senioritysubstantive appointmentillegal appointmentBihar Forest Service RulesRule 35public service recruitmentregularisationconstitutional lawArticle 14Article 16

Judgment

[2019] 6 S.C.R. 653 653

NAND KUMAR MANJHI & ANR. ETC. A
v.
THE STATE OF BIHAR & ORS. ETC.
(Civil Appeal Nos. 4020-4022 of 2019)
APRIL 22, 2019 B
[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
Bihar Forest Service Rules, 1953 – rr.3(aa), 22, 24 & 35 –
Respondent No.1-State published advertisement on 24.07.85 inviting
applications for filling up 40 posts of Assistant Conservator of
C
Forests (ACF) through direct recruitment – Posts filled up vide
Notification dtd.14.12.87– Appellants participated in the selection
but were unsuccessful in getting appointed – Appellants with some
other unsuccessful candidates made representations inter alia to Chief
Minister, Minister of Forests and Environment for appointment
against vacant posts beyond the 40 advertised posts – Commission D
recommended the names of 12 candidates, including the appellants,
for appointment as ACFs – Notification dtd. 13.04.88 issued
appointing 11 candidates, including the appellants – In 1987, 52
Forest Rangers were also promoted as ACFs – Further appointments
were made through direct recruitment and promotion in 1990, 1992
E
and 1995 – Proposal to regularise the services of the appellants
approved by the Governor on 03.10.05 – Appellants confirmed vide
notification dtd. 04.10.10 w.e.f. from the date of their regularisation
i.e. 03.10.05 – State published the Final Seniority List – Appellants
placed at the bottom of the Seniority List, below the 1987 Promotees,
the Direct Recruits and Promotees of 1990, the 1992 Promotees, F
and Promotees of 1995 – Objected by the appellants – Appellants
filed writ petitions – Dismissed – LPAs also dismissed – Held: As
per r.35 of the Bihar Forest Service Rules, 1953, the seniority of
officers appointed to the Bihar Forest Service has to be determined
with reference to the date of their substantive appointment – An
G
appointment in substantive capacity is one which is not fortuitous
or ad hoc, and is made in compliance with the extant rules and
regulations – Appointment of the appellants were made beyond the
vacancies advertised in 1985 – Appellants admittedly secured

H
653
654 SUPREME COURT REPORTS [2019] 6 S.C.R.

A appointment as ACFs through the back-door by making various
representations and persistent lobbying – Pursuant to these
representations, the State appointed the appellants on 13.04.88
purportedly with reference to the 1985 advertisement – This was
illegal and fortuitous, since the posts advertised in 1985 had been
filled up from its merit list which stood fully exhausted – There is no
B
provision for maintaining a Wait List under the 1953 Rules– Hence,
the appointment of the appellants was wholly illegal and contrary
to the statutory rules – Proposal to regularise the services of the
appellants was initiated, taking a humanitarian view, since by then
the Appellants had already served for almost 17 years – High Court
C rightly held that the seniority of the appellants can be reckoned
only from the date of their regularisation in service w.e.f. 03.10.05,
and not from the date of their initial appointment on 13.04.88, as
claimed by them – Impugned judgment affirmed.
Dismissing the appeals, the Court
D HELD: 1.1 As per Rule 35 of the Bihar Forest Service
Rules, 1953, the seniority of officers appointed to the Bihar Forest
Service has to be determined with reference to the date of their
substantive appointment. An appointment in substantive capacity
is one which is not fortuitous or ad hoc, and is made in compliance
E with the extant rules and regulations. The Appellants had
admittedly secured appointment as ACFs through the back-door
by making various representations to the Chief Minister on
12.06.1987, the Minister of Forests and Environment on
21.08.1987, and the Secretary, Department of Forests and
Environment on 06.11.1987. Pursuant to these representations,
F the State appointed the Appellants on 13.04.1988 purportedly
with reference to the 1985 advertisement. This was completely
illegal and fortuitous, since the posts advertised in 1985 had been
filled up from the merit list. [Paras 8.1, 8.2 and 8.3][666-D;
668-A-C]
G 1.2 The recruitment initiated by the 1985 Advertisement
culminated with the appointment of ACFs by the State vide
Notification dated 14.12.1987 against the posts advertised. With
their appointment, the Merit List prepared in pursuance of the
1985 Advertisement stood exhausted, and no further
H
NAND KUMAR MANJHI v. THE STATE OF BIHAR 655

appointments could have been made from it. Rule 22 of the Bihar A
Forest Service Rules, 1953 provides for the preparation of the
Merit List on the basis of the aggregate marks secured by a
candidate in the written examination as well as viva voce test. It
provides that the Commission shall nominate such number of
candidates from the merit list as may have been fixed by the
B
Governor. There is no provision for maintaining a Wait List under
the Bihar Forest Service Rules, 1953. Hence, the appointment
of the Appellants was wholly illegal and contrary to the statutory
rules. IThe appointments of the Appellants were made beyond
the vacancies advertised in 1985, which was in contravention of
the well-settled principle of law. [Paras 8.4-8.6][668-E-G; C
669-A-B]
1.3 As a result of the persistent lobbying by the Appellants,
they were able to secure appointment as ACFs on 13.04.1988
purportedly against the 1985 Advertisement. The appointment
of the Appellants was wholly illegal, and in contravention of the D
Bihar Forest Service Rules, 1953. The posts advertised in 1985
were duly filled up by the selected candidates. The list of the
1985 advertisement stood fully exhausted. [Paras 8.7][670-C-D]
1.4 Proposal to regularise the services of the Appellants
was initiated, taking a humanitarian view of the matter, since by E
then the Appellants had already served for almost 17 years. In
the proposal, it was mentioned that the appointment of the
Appellants as ACFs in 1988 was “irregular”. However, the
cancellation of the appointments at that juncture would result in
further litigation, since it was made on the basis of a letter from
the Commission. [Paras 8.11][670-G-H; 671-A] F

1.5 In the aforesaid background facts, the High Court was
fully justified in dismissing the Writ Petitions and the Letters
Patent Appeals filed by the Appellants. The High Court rightly
held that the seniority of the Appellants can be reckoned only
from the date of their regularisation in service w.e.f. 03.10.2005, G
and not from the date of their initial appointment on 13.04.1988,
as claimed by them. The impugned Judgment passed by the High
Court is affirmed. [Paras 8.14, 8.15][671-E; 672-A]

H
656 SUPREME COURT REPORTS [2019] 6 S.C.R.

A Baleshwar Dass & Ors. v. State of U.P. & Ors. (1980) 4
SCC 226 : [1981] 1 SCR 449 ; O.P. Singla & Anr. v.
Union of India & Ors., (1984) 4 SCC 450 : [1985]
1 SCR 351 ; Rakhi Ray & Ors. v. High Court of Delhi
& Ors. (2010) 2 SCC 637 : [2010] 2 SCR 239 – relied
on.
B
Sanjay k. Sinha -II & Ors. v. State of Bihar & Ors.
(2004) 10 SCC 734 : [2004] 2 Suppl. SCR 834
– referred to.
Case Law Reference
C [2004] 2 Suppl. SCR 834 referred to Para 2.11
[1981] 1 SCR 449 relied on Para 8.2
[1985] 1 SCR 351 relied on Para 8.2
[2010] 2 SCR 239 relied on Para 8.4
D
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4020-
4022 of 2019.
From the Judgment and Order dated 10.11.2014 of the High Court
of Judicature at Patna in Letters Patent Appeal Nos. 491, 257 and 509
of 2013.
E
Rakesh Dwivedi, Sr. Adv., Rudreshwar Singh, Ms. Isha Singh,
Ms. Snehil Sonay, Siddhartha Iyer, Kaushik Poddar, Advs. for the
Appellants.
Dinesh Dwivedi, Nagendra Rai, Sr. Advs., Chandra Prakash,
F Chandan Kumar, Yasharth Kant, Gaurav Agrawal, Abhinav Mukerji, Ms.
Bihu Sharma, Ms. Pratishthaq Vij, Ms. Purnima Krishna, Adv. Ms. Prerna
Singh, Shantanu Sagar, Advs. for the Respondents.
The Judgment of the Court was delivered by
INDU MALHOTRA, J. Leave granted.
G
1. The present Civil Appeals arise out of Special Leave Petition
(Civil) Nos. 11320-11322 of 2015 wherein the impugned Judgment and
Order dated 10.11.2014 passed by the Patna High Court in Letters Patent
Appeal Nos. 491 of 2013, 257 of 2013 and 509 of 2013 has been
challenged.
H
NAND KUMAR MANJHI v. THE STATE OF BIHAR 657
[INDU MALHOTRA, J.]

2. The factual matrix in the present Civil Appeals is as under: A
2.1. The Respondent No. 1 – State of Bihar published an
advertisement on 24.07.1985 inviting applications for filling
up 40 posts of Assistant Conservator of Forests (“ACF”)
through direct recruitment under the Bihar Forest Service
Rules, 1953. B
On the basis of the examination conducted in December
1985 and viva voce, the Bihar Public Service Commission
(“the Commission”) prepared a list of successful candidates.
On the recommendations of the Commission, the posts
of ACFs advertised were filled up by the State vide C
Notification dated 14.12.1987. On filling up of the advertised
posts, the Merit List got exhausted.
The Appellants, in the present case, had participated in
the selection, but were unsuccessful in getting appointed.
D
2.2. The Appellants and some other candidates who were
unsuccessful in obtaining appointment as ACFs in the 1985
selection, made representations before the Chief Minister
on 12.06.1987, the Minister of Forests and Environment on
21.08.1987, and the Secretary, Department of Forests and
Environment on 06.11.1987 for appointment against vacant E
posts beyond the 40 advertised posts.
2.3. On 21.10.1987, the State took a decision to fill the existing
vacant posts of ACFs from the list of successful candidates
who had qualified in the Competitive Examination conducted
in 1985 and 1986 respectively, but did not get appointed. F
2.4. On 15.02.1988, the State Government sought the names of
13 successful candidates from the Commission, as per the
Merit List prepared pursuant to the selection against the
1985 advertisement.
The Commission vide letter dated 20.02.1988 G
recommended the names of 12 candidates, which included
the names of the Appellants, for appointment as ACFs.

H
658 SUPREME COURT REPORTS [2019] 6 S.C.R.

A The State issued a Notification dated 13.04.1988
appointing 11 candidates, including the Appellants, from the
list forwarded by the Commission as ACFs.
2.5. On 10.08.1989, 8 more candidates were appointed to the
posts of ACF which fell vacant on account of non-joining of
B candidates appointed vide Notifications dated 14.12.1987
and 13.04.1988. The names of these 8 candidates were also
shown against the 1985 Advertisement.
2.6. On 12.06.1987, the State Government sent a requisition to
initiate the process for appointment of 40 more ACFs
C through direct recruitment.
Pursuant to the requisition made by the State on
12.06.1987, a fresh Advertisement for 40 posts of ACFs
through direct recruitment was published by the Commission
on 20.12.1987. The Commission conducted written
D examination in September 1988.
The State appointed 35 direct recruits as ACFs on
30.03.1990 against the vacancies notified in the 1987
advertisement.
2.7. The State promoted 30 Range Officers, including
E Respondent Nos. 21-321, as ACFs w.e.f. 30.03.1990 vide
Notifications dated 16/17.08.1990, 18.07.1991 and
02.09.1992, respectively.
2.8. During the period from 20.06.1987 to 17.10.1987, the
State further promoted 52 Forest Rangers to the post of
F ACF.
2.9. The Bihar Forest Service Rules, 1953 were amended to
insert Rule 3(aa) on 26.12.1989 with retrospective effect.
As per Rule 3(aa), Range Officers of Forests who have
passed the Ranger Course after securing Honours shall be
G deemed to be eligible to be appointed as Assistant
Conservators of Forests, and shall be treated as direct
recruits.

1
Names of Respondent Nos. 21-22, 24 and 28 have been deleted from the array of
H parties vide Order dated November 6, 2017 passed by the learned Chamber Judge.
NAND KUMAR MANJHI v. THE STATE OF BIHAR 659
[INDU MALHOTRA, J.]

Rule 3(aa) is reproduced hereinbelow: A
“3. The appointments of the service shall ordinarily
be made by -…
…(aa) The Range Officer of Forest, who passes the
Ranger Course securing Honours shall be eligible
for admission to the 2nd year/2 (two) years of State B
Forest Service Course in Forestry conducted by
Government of India. They shall be treated as direct
recruit to the Bihar Forest Service Cadre (as Assistant
Conservator of Forests) and the provisions as laid
down in the Rule 29, shall be applicable to these C
selected Range Officers of Forests…”
The State Government vide various Notifications
dated 09.03.1990, appointed 10 Range Officers who had
obtained Honours in the Rangers Course, including
Respondent Nos. 8 and 9 as ACFs. D
2.10. The State published a final Seniority List on 24.07.1989,
wherein the ACFs who were promoted on 06.10.1987 and
23.11.1987, were placed above the Direct Recruits appointed
on 14.12.1987.
Insofar as the Appellants in these Appeals are E
concerned, they were accorded seniority w.e.f. the date of
their appointment i.e. 13.04.1988.
2.11. The Seniority List came to be challenged by the Direct
Recruits appointed on 14.12.1987 by way of CWJC No.
8305 of 1989 before the Patna High Court. F
CWJC Nos. 8305 of 1989 culminated in the Judgment
dated 31.05.2004 passed in Sanjay K. Sinha – II & Ors.
v. State of Bihar & Ors.2 by this Court. It was held that
the appointments of the 1987 Promotees were fortuitous
since they were made against non-existent posts, and could G
not confer any benefit of seniority from the purported date
of promotion. The final Seniority List dated 24.07.1989 was
quashed, and the State was directed to prepare a fresh
Seniority List. This Court granted liberty to the State to
2
[(2004) 10 SCC 734] H
660 SUPREME COURT REPORTS [2019] 6 S.C.R.

A regularise the appointment of the 1987 Promotees, whilst
holding that seniority could not be given to them over the
Direct Recruits appointed on 14.12.1987. This Court noted
that there were only 133 posts in the Bihar Forest Service,
and not 277 as contended by the 1987 Promotees.
B 2.12. Upon creation of the State of Jharkhand, several officers
from the Bihar Forest Service were transferred to the
Jharkhand cadre, including some of those who were
appointed along with the Appellants on 13.04.1988 and
10.08.1989.
C 2.13. After bifurcation of the State of Bihar and creation of the
State of Jharkhand, the validity of the appointments of the
Appellants and other ACFs appointed by the State on
13.04.1988 and 10.08.1989 was discussed at different levels
during President’s Rule in Bihar, as is apparent from the
File Notings placed on record.
D
The Law Department was of the opinion that these
appointments were irregular since they were appointed
purportedly against the advertisement of 1985, even though
the Select List had got exhausted. It was however observed
that cancellation of their appointment would result in
E litigation, since the appointments were made on the basis
of the recommendations of the Commission. Furthermore,
the appointees had by now served for about 17 years. It
was suggested that such appointments may be regularised
since they were irregular, but not illegal.
F The issue of their inter se seniority vis-à-vis the 1987
Promotees was also considered, and a decision was sought
from the State Government. The proposal for regularisation
of the appointments of these ACFs was submitted for
approval before the Governor on 03.10.2005.
G 2.14. A perusal of letter dated 15.07.2006 addressed by the
Additional Secretary to the Government to the Secretary,
Bihar Legislative Assembly indicates that the proposal was
approved, and the “…State Government after Enquiry
regularised these appointments and closed this
episode.”.
H
NAND KUMAR MANJHI v. THE STATE OF BIHAR 661
[INDU MALHOTRA, J.]

The Appellants came to be regularised by the State A
Government w.e.f. 03.10.2005.
2.15. On 09.03.2010, shadow posts were created by the State
since the “…working force [was] in excess than created
force…since 1987…”.
The State confirmed the services of the Appellants w.e.f. B
03.10.2005, by issuance of Notification dated 04.10.2010.
2.16. On 31.03.2010, a Provisional Seniority List was published,
wherein the Appellants were placed below the Direct
Recruits and Promotees who were appointed w.e.f.
30.03.1990, Respondent No. 10 – Hemkant Rai, the 1992 C
Promotees and the 1995 Promotees.
2.17. Objections were raised by the Appellants regarding their
placement in the Seniority List. A High-Level Scrutiny
Committee was constituted by the State to look into their
grievances. D
The High-Level Scrutiny Committee rejected the
objections raised by the Appellants.
It was noted that they were regularised only w.e.f.
03.10.2005, and hence were not entitled to being placed
E
above the persons appointed in 1987, 1990, 1992 and 1995.
2.18. The Final Seniority List was published on 02.07.2010. The
Appellants were placed at the bottom of the Seniority List
at Serial Nos. 321 to 338 i.e. below the 1987 Promotees,
Direct Recruits as well as Promotees appointed w.e.f.
F
30.03.1990, Respondent No. 10 – Hemkant Rai, the 1992
and 1995 Promotees.
2.19. Several Writ Petitions were filed before the Patna High
Court by various officers appointed in the Bihar Forest
Service cadre to challenge their inter se seniority in the
cadre as per the Final Seniority List dated 02.07.2010. G

2.20. The Appellants before this Court filed CWJC Nos.10925,
11160 and 11337 of 2010 to challenge their placement below
the 1987 Promotees (Serial Nos. 167 and 209), Respondent
No. 10 – Hemkant Rai (Serial No. 211) and T.N. Jha (Serial
No. 212), 1987 Direct Recruits (Serial Nos. 215 to 249) H
662 SUPREME COURT REPORTS [2019] 6 S.C.R.

A and Promotees (Serial Nos. 250 to 289), some of whom
are Respondents in the present proceedings.
2.21. The Writ Petitions were heard together and disposed of by
the common Judgment and Order dated 06.11.2012 passed
by the learned Single Judge.
B The Writ Petitions filed by the Appellants herein (CWJC
Nos.10925, 11160 and 11337 of 2010) were dismissed.
The learned Single Judge held that:
i) The Appellants were rightly placed at the bottom of the
C Seniority List since their initial appointments on 13.04.1988,
were purportedly from the list of candidates prepared for
the 1985 advertisement. Since the appointment of the
Appellants was beyond the 40 advertised vacancies, it was
completely illegal.
II) The Appellants persuaded the State to appoint them, which
D
was a rank illegality, which cannot be termed just as a mere
irregularity, or minor deviation from the Rules.
iii) On a humanitarian basis, the Appellants were deemed to
be regularised w.e.f. 03.10.2005 i.e. the date of their
confirmation in service. This date has to be taken as the
E
legitimate date of entry into the cadre; upto this date their
entry into the cadre was a rank illegality.
2.22. The Appellants preferred Letters Patent Appeal Nos. 257,
491 and 509 of 2013 before a Division Bench against the
common Judgment dated 06.11.2012 passed by the learned
F
Single Judge of the Patna High Court.
2.23. The Letters Patent Appeals were dismissed by a common
Judgment dated 10.11.2014, wherein it was held that:
I) The Appellants cannot claim seniority on the principle of
G continuous officiation from the date of their appointment
i.e. 13.04.1988. The seniority accorded to them from the
date of their regularisation in the cadre i.e. 03.10.2005, does
not call for any interference in exercise of the powers of
judicial review.

H
NAND KUMAR MANJHI v. THE STATE OF BIHAR 663
[INDU MALHOTRA, J.]

II) The appointment of the Appellants was illegal, and in A
contravention of all canons of service jurisprudence. It was
based on the generosity of the State.
iii) The recruitment process commenced pursuant to the 1985
Advertisement for 40 posts of ACFs, was completed on the
appointments made on 14.12.1987. B
iv) The recruitment process having been completed, there was
no occasion for the State to make any further appointments
pursuant to the 1985 Advertisement.
v) The Appellants were persons who had not been selected or
recommended by the Commission, nor were they wait-listed C
candidates.
vi) The appointment of the Appellants ought to be considered
non est.
vii) The State Government vide Notification dated 04.10.2010 D
regularised their services w.e.f. 03.10.2005.
3. The Appellants filed the present Special Leave Petitions to
challenge the common Impugned Judgment dated 10.11.2014 passed by
the learned Division Bench of the Patna High Court.
4. Mr. Rakesh Dwivedi, learned Senior Counsel, appeared on E
behalf of the Appellants, and prayed for setting aside the impugned
Judgment dated 10.11.2014 passed by the Division Bench.
Mr. Abhinav Mukerji, learned Advocate, appeared on behalf of
the State, and the official respondents from the Department of
Environment & Forests, and Personnel and Administrative Reforms F
Department, Government of Bihar.
Mr. Dinesh Dwivedi, learned Senior Advocate, appeared on behalf
of some of the Direct Recruits from the 1990 batch (Respondent Nos.
13, 15, 16, 17 and 19).
5. We have perused the record with the able assistance of the G
Counsel for the parties.
The issue which arises for our consideration in the present Civil
Appeals is whether the Appellants have rightly been placed at the bottom
of the Seniority List dated 02.07.2010, by according them seniority from
H
664 SUPREME COURT REPORTS [2019] 6 S.C.R.

A the date of their regularisation in the service on 03.10.2005, and not
from the date of their initial appointment i.e. 13.04.1988.
6. SUBMISSIONS OF PETITIONERS
6.1. The counsel for the Appellants submitted that the
Appellants ought to have been accorded seniority w.e.f.
B the date of their initial appointment i.e. 13.04.1988.
Otherwise, they would lose 17 years of service by being
placed at the bottom of the final Seniority List dated
02.07.2010.
6.2. It was further submitted that the Appellants were
C appointed as ACFs on the basis of the recommendation
of the Commission vide letter dated 20.02.1988. The
recommendation was sent after receiving a requisition
from the State Government vide letter dated 15.02.1988.
6.3. All the private Respondents were appointed after the
D Appellants in 1989, and thereafter.
6.4. The final Seniority List published by the State on
24.07.1989 was never challenged by the Respondents
insofar as it related to the seniority of the Appellants.
6.5. The action of the State in according seniority to the
E
Respondents from the dates of their appointment, while
denying the same to the Appellants was wholly arbitrary
and unjustified.
6.6. Both the Appellants and the private Respondents were
appointed beyond the cadre strength, and their
F
appointments were regularised after the creation of
shadow posts vide Notification dated 09.03.2010.
7. SUBMISSIONS OF RESPONDENTS
7.1. The Counsel for the Respondents defended the common
G impugned Judgment dated 10.11.2014, and stated that the
Appellants have correctly been accorded seniority only
from the date of their regularisation w.e.f. 03.10.2005.
i) It was submitted that the appointment of the Appellants
was de hors the Bihar Forest Service Rules, 1953 since
H
NAND KUMAR MANJHI v. THE STATE OF BIHAR 665
[INDU MALHOTRA, J.]

they were made beyond the 40 vacancies notified by A
the 1985 Advertisement. The Select List prepared
pursuant to the 1985 Advertisement, stood exhausted
with the appointment of the 39 candidates on
14.12.1987. The appointments of the Appellants were
not in accordance with the Bihar Forest Service Rules,
B
1953.
ii) Rule 35 of the Bihar Forest Service Rules, 1953
mandates that seniority is to be reckoned form the date
of substantive appointment.
The Appellants were not appointed against C
substantive posts of ACFs on the date of their initial
appointment on 13.04.1988.
iii) The mere continuance in service over a long period of
time, would not entitle the Appellants to claim seniority
from the date of their initial appointment; at best, their D
claim could be considered only after they were
regularised w.e.f. 03.10.2005.
iv) It was further submitted that the final Seniority List
published on 24.07.1987 wherein the Appellants had
been accorded seniority w.e.f. the date of their E
appointment i.e. 13.04.1988 was quashed by this Court
vide Judgment and Order dated 31.05.2004 in Sanjay
K. Sinha – II & Ors. v. State of Bihar & Ors.3.
7.2. The Counsel for the State and the Official Respondents
supported the common impugned Judgment and Order F
dated 10.11.2014, and submitted that the Appellants would
be entitled to seniority only from the date of their
regularisation i.e. 03.10.2005.
I) It was submitted that the Appellants were appointed on
13.04.1988 on the recommendation of the Commission
G
sent on a requisition made by the State, after the Select
List against the 1985 advertisement had got exhausted.

3
[(2004) 10 SCC 734]
H
666 SUPREME COURT REPORTS [2019] 6 S.C.R.

A ii) By the Notification dated 09.03.2010, shadow posts
were created for appointments, which were found to
have been made against non-existent vacancies.
iii) The appointments of the Appellants came to be
regularised on 03.10.2005, after a proposal to that effect
B was approved by the Governor.
iv) It was submitted that the inter se seniority of the
Appellants was fixed in the final Seniority List dated
02.07.2010 after obtaining the opinion of the High-Level
Scrutiny Committee headed by the Principal Chief
C Conservator of Forests, Bihar.
8. DISCUSSION AND ANALYSIS
8.1. As per Rule 35 of the Bihar Forest Service Rules, 1953, the
seniority of officers appointed to the Bihar Forest Service
has to be determined with reference to the date of their
D substantive appointment.
Rule 35 is extracted hereinbelow for ready reference:
“35. Seniority of officers appointed to the Service shall
be determined with reference to the date of their
substantive appointment to the Service.
E
(i) in the case of members of the Service appointed by
direct recruitment at the same time, their seniority inter
se shall be in the order of merit in which their names
are placed in the list of successful candidates at the
Final Examination of the Indian Forest College, Dehra
F
Dun;
(ii) in case where appointments are made to the Service
both by direct recruitment and promotion of selected
Rangers at the same time, the promoted members of the
Service shall be senior to the members directly recruited;
G and
(iii) the seniority inter se of Rangers on substantive
appointment to the Service by promotion at the same
time shall be their seniority inter se held as Rangers.”

H (emphasis supplied)
NAND KUMAR MANJHI v. THE STATE OF BIHAR 667
[INDU MALHOTRA, J.]

Rule 35 came up for consideration before this Court in a A
previous round of litigation pertaining to inter se seniority of the
1987 Promotees in Sanjay K. Sinha-II & Ors. v. State of Bihar
& Ors.4. This Court held that:
“12. In this connection we have to note that Rule 35 of
the Bihar Forest Service Rules provides that seniority B
of officers appointed to the service is to be determined
with reference to the date of their substantive
appointment. In order to become a member of the service
the person concerned has to satisfy at least two
conditions — first, appointment must be in substantive
capacity, and second, the appointment has to be to the C
post in the service according to the Rules and within
the quota to a substantive vacancy (per Keshav
Chandra Joshi v. Union of India [1992 Supp (1) SCC
272 : 1993 SCC (L&S) 694 : (1993) 24 ATC 545] ).
13. In the present case neither of the two conditions is D
satisfied. The posts to which substantive appointments
were to be made were not available, therefore, there
could be no appointment to the service. When there is
no appointment to the service, much less substantive
appointment to the service, the promotees could not be E
given seniority with effect from the purported date of
their promotion…
17. It is settled law that appointments made contrary to
the rules are merely fortuitous and do not confer benefit
of seniority on the appointees over and above the F
regular/substantive appointees to the service. (See C.K.
Antony v. B. Muraleedharan [(1998) 6 SCC 630 : 1998
SCC (L&S) 1624] , M.S.L. Patil, Asstt. Conservator of
Forests v. State of Maharashtra [(1996) 11 SCC 361 :
1997 SCC (L&S) 241] and State of
Maharashtra v. Sanjay Thakre [1995 Supp (2) SCC G
407 : 1995 SCC (L&S) 867 : (1995) 30 ATC 132] ).”
(emphasis supplied)

4
[(2004) 10 SCC 734].
H
668 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 8.2. An appointment in substantive capacity is one which is not
fortuitous or ad hoc, and is made in compliance with the
extant rules and regulations.5
8.3. The Appellants had admittedly secured appointment as ACFs
through the back-door by making various representations to
B the Chief Minister on 12.06.1987, the Minister of Forests
and Environment on 21.08.1987, and the Secretary,
Department of Forests and Environment on 06.11.1987.
Pursuant to these representations, the State appointed
the Appellants on 13.04.1988 purportedly with reference to
C the 1985 advertisement. This was completely illegal and
fortuitous, since the posts advertised in 1985 had been filled
up from the merit list.
8.4. Reference may also be made to Rule 24 which provides as
under:
D “24. No recommendations except those invited in form
of the application will be taken into consideration. Any
attempt on the part of a candidate to obtain support for
his application by other means will disqualify him for
appointment.”
E The recruitment initiated by the 1985 Advertisement
culminated with the appointment of ACFs by the State vide
Notification dated 14.12.1987 against the posts advertised.
With their appointment, the Merit List prepared in
pursuance of the 1985 Advertisement stood exhausted, and
F no further appointments could have been made from it.6
8.5. Rule 22 of the Bihar Forest Service Rules, 1953 provides
for the preparation of the Merit List on the basis of the
aggregate marks secured by a candidate in the written
examination as well as viva voce test. It provides that the
G Commission shall nominate such number of candidates from
the merit list as may have been fixed by the Governor.
5
Baleshwar Dass & Ors. v. State of U.P. & Ors., (1980) 4 SCC 226 (paragraphs 31
and 32); O.P. Singla & Anr. v. Union of India & Ors., (1984) 4 SCC 450 (paragraph 81).
6
See Rakhi Ray & Ors. v. High Court of Delhi & Ors., (2010) 2 SCC 637
H (paragraphs 7 to 13).
NAND KUMAR MANJHI v. THE STATE OF BIHAR 669
[INDU MALHOTRA, J.]

There is no provision for maintaining a Wait List under A
the Bihar Forest Service Rules, 1953.
Hence, the appointment of the Appellants was wholly
illegal and contrary to the statutory rules.
8.6. In the background facts set out hereinabove, it is abundantly
clear that the appointments of the Appellants were made B
beyond the vacancies advertised in 1985, which was in
contravention of the well-settled principle of law enunciated
in Rakhi Ray & Ors. v. High Court of Delhi & Ors.7.
The relevant extract from the decision of this Court in Rakhi
Ray & Ors. v. High Court of Delhi & Ors. is reproduced C
hereinbelow for ready reference:
“7. It is a settled legal proposition that vacancies cannot
be filled up over and above the number of vacancies
advertised as “the recruitment of the candidates in excess
of the notified vacancies is a denial and deprivation of D
the constitutional right under Article 14 read with Article
16(1) of the Constitution”, of those persons who acquired
eligibility for the post in question in accordance with the
statutory rules subsequent to the date of notification of
vacancies. Filling up the vacancies over the notified
vacancies is neither permissible nor desirable, for the E
reason, that it amounts to “improper exercise of power
and only in a rare and exceptional circumstance and in
emergent situation, such a rule can be deviated from
and such a deviation is permissible only after adopting
policy decision based on some rationale”, otherwise the F
exercise would be arbitrary. Filling up of vacancies over
the notified vacancies amounts to filling up of future
vacancies and thus, is not permissible in law. (Vide Union
of India v. Ishwar Singh Khatri [1992 Supp (3) SCC
84 : 1992 SCC (L&S) 999 : (1992) 21 ATC 851], Gujarat
State Dy. Executive Engineers’ Assn. v. State of G
Gujarat [1994 Supp (2) SCC 591 : 1994 SCC (L&S)
1159 : (1994) 28 ATC 78] , State of Bihar v. Secretariat
Asstt. Successful Examinees Union 1986 [(1994) 1

7
(2010) 2 SCC 637 (paragraph 7). H
670 SUPREME COURT REPORTS [2019] 6 S.C.R.

A SCC 126 : 1994 SCC (L&S) 274 : (1994) 26 ATC 500 :
AIR 1994 SC 736], Prem Singh v. Haryana
SEB [(1996) 4 SCC 319 : 1996 SCC (L&S) 934]
and Ashok Kumar v. Banking Service Recruitment
Board [(1996) 1 SCC 283 : 1996 SCC (L&S) 298 : (1996)
32 ATC 235 : AIR 1996 SC 976] ).”
B
(emphasis supplied)
8.7. As a result of the persistent lobbying by the Appellants,
they were able to secure appointment as ACFs on
13.04.1988 purportedly against the 1985 Advertisement. The
C appointment of the Appellants was wholly illegal, and in
contravention of the Bihar Forest Service Rules, 1953. The
posts advertised in 1985 were duly filled up by the selected
candidates. The list of the 1985 advertisement stood fully
exhausted.
D 8.8. A fresh selection of ACFs through direct recruitment was
initiated pursuant to an advertisement in 1987.
8.9. While the recruitment process pursuant to the 1987
advertisement was underway, the State requested the
Commission to forward 13 names from the list against the
E 1985 advertisement, which stood exhausted. The
Commission forwarded the names of the Appellants, and
some others purportedly from the list prepared pursuant to
the 1985 advertisement vide letter dated 20.02.1988. This
whole process was completely illegal, as the list of 1985
had got exhausted.
F
8.10. In 1987, 52 Forest Rangers were promoted as ACFs.
Further appointments were made through direct
recruitment and promotion in 1990, 1992, and 1995.
8.11. A proposal to regularise the services of the Appellants was
G initiated, taking a humanitarian view of the matter, since by
then the Appellants had already served for almost 17 years.
In the proposal, it was mentioned that the appointment of
the Appellants as ACFs in 1988 was “irregular”. However,
the cancellation of the appointments at this juncture would
H
NAND KUMAR MANJHI v. THE STATE OF BIHAR 671
[INDU MALHOTRA, J.]

result in further litigation, since it was made on the basis of A
a letter from the Commission. The proposal was approved
by the Governor on 03.10.2005.
The State granted confirmation to the Appellants vide
Notification dated 04.10.2010 w.e.f. from the date of their
regularisation i.e. 03.10.2005. B
8.12. The State published the Final Seniority List on 02.07.2010.
The Appellants were placed at the bottom of the Seniority
List at Serial Nos. 321 to 338 i.e. below the 1987 Promotees,
the Direct Recruits as well as Promotees of 1990,
Respondent No. 10 – Hemkant Rai, the 1992 Promotees, C
and Promotees of 1995 on the basis of the date of regular
appointment as ACF.
8.13. The Appellants raised objections to their position on the
Seniority List, and claimed seniority from the date of their
initial appointment on 13.04.1988 and continuous officiation D
till their regularisation w.e.f. 03.10.2005.
8.14. In the aforesaid background facts, the Patna High Court
was fully justified in dismissing the Writ Petitions and the
Letters Patent Appeals filed by the Appellants. The High
Court rightly held that the seniority of the Appellants can be E
reckoned only from the date of their regularisation in service
w.e.f. 03.10.2005, and not from the date of their initial
appointment on 13.04.1988, as claimed by them. The
Appellants had secured an illegal appointment in 1988
through the back-door, which was wholly illegal and de hors
the Statutory Rules. Their services came to be regularised F
only on 03.10.2005. As per Rule 35 of the Bihar Forest
Service Rules, 1953 the seniority of officers shall be
determined with reference to the date of their substantive
appointment to the service. Hence, the claim for seniority
from the date of their initial appointment was wholly G
untenable, misconceived, and contrary to statutory Rules.
8.15. In view of the aforesaid findings, the present Civil Appeals
are dismissed with no order as to costs. The impugned
Judgment and Order dated 10.11.2014 passed by the Patna
H
672 SUPREME COURT REPORTS [2019] 6 S.C.R.

A High Court in L.P.A. Nos. 491 of 2013, 257 of 2013 and
509 of 2013 is hereby affirmed.
Pending I.A.s, if any, are disposed of by the present
Judgment.
Ordered accordingly.
B

Divya Pandey Appeals dismissed.

C

D

E

F

G

H