SURESH CHANDRA JHAversusSTATE OF BIHAR AND ORS.

                          SURESH CHANDRA JHA                                       A
                                       v.
                        STA TE OF BIHAR AND ORS.

                            NOVEMBER 10, 2006

        [ARIJIT PASA YAT AND LOKESHWAR SINGH PANTA, JJ.]                           B

      Service Law:

      Seniority-Determining factor-Ranking in the merit (ist vis-a-vis date
ofjoining-Held: Jn the absence of rules governing the field, the placement C
in merit list is determinative of seniority and not the date ofjoining-Bihar
Private Engineering College Control Act, 1990-Sections 5(2),(3).

       Appellants and several others had applied for the post of Assistant in a
Private Institution. Five persons including appellant and respondent no.8 were
appointed. Appellant joined two days after the joining of Respondent no.8. On D
the basis of Section 5(2) of the Bihar Private Engineering College Control
Act, 1990 and in purported exercise of powers under Section 5(3) of the Act,
respondent no.8 was retained in service while the appellant was not retained.
The appellant questioned correctness of the procedure itdopted but did not
receive positive response. Thereafter, he filed writ pe~ition before the High E
Court which was allowed by Single Judge, holding that merely because of
fortuitous circumstances, respondent no.8 joined earlier and that cannot be a
ground to make him senior to the appellant, though in the merit list prepared
appellant was ranked 20 while respondent no.8 was ranked 43. On appeal filed
by respondent no.8, Division Bench held that the seniority is to be reckoned
on the basis of the date of joining.                                            F
      In appeal to this Court, appellant contended that the view taken by the
Division Bench is clearly contrary to law; and that there are no rules governing
the field, hence it is the placement in the merit list which is determinative
and not the date of joining.
                                                                                   G
      Partly allowing the appeal, the Court

     HELD: 1.1. There is no dispute that the appellant was ranked higher to
respondent no.8. Merely b~cause respondent no.8 joined earlier did not in
                                     831                                           H
      832                     SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

 A any way affect the merit placement. (834-B-CJ
             1.2. Since there was no rule in operation, obviously the ranking in the
      merit list was to decide the respective seniority. Appellant's claim that he
      was to be treated as senior to the respondent no.8 w_as rightly accepted by
      Single Judge. Unfortunately, the Division Bench did not address itself to the
 B    specific question and has placed undue stress on respondent no.8 having joined
      earlier. (834-H; 835-Al

            Chairman, Puri 'Gramya Bank and Anr. v. Ananda Chandra Das and
      Ors., (1994) 6 SCC 361, held applicable.

 c          2. However, the appellant will not be entitled to any salary for the period
      during which respondent no.8 has worked. For all other service benefits, the
      period in question shaJI be reckoned. The official respondents shall explore
      the possibility of absorbing respondent no.8 to the suitable post considering
      the fact that for nearly quarter of the century he has rendered services. The
, D   payment made to him shall not be recovered. (835-B-CJ

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4760 of2006.

            From the Judgment and Order dated 22.7.2003 of the High Court of
      Judicature at Patna in L.P.A. No. 283 of 1997.

 E         P.S. Mishra, Tathagat H. Vardhan, Upendra Mishra, Ravi C. Prakash,
      D.K. Jha and Pavan Kumar for the Appellant.

           M;.P· Jha, Ram Ekbal Roy, Harshvardhan_ Jha, Anil K. Chopra, Gopal
      Singh and Sanjay R. Hegde for the Respondents.

 F          The Judgment of the Court was delivered by

            ARIJIT PASAYAT, J. Leave granted.

            Challenge in this appeal is to the legality of the judgment rendered by
      a Division Bench of the Patna High Court. By the impugned judgment the
 G    Division Bench set aside the judgment rendered by a learned Single Judge
      who had quashed the notification dated 3 l.1.1991 issued by the State
      Government purportedly issued under the Bihar Private Engineering College
      (Control Ordinance) 1986 (in short 'Orcinance') which was subsequently
      replaced by the Bihar Private Engineering College Control Act 1990 (in short
 H    the 'Act'). The appellant had questioned the legality of Section 5(3) of the
          SURESHCHANDRAJHA v. STATE OF BIHAR[PASAYAT, J.]                  833
Ordinance/Act which was accepted by learned Single Judge. But the Division        A
Bench by the impugned judgment upset judgment of learned Single Judge.

      Background facts in a nutshell are as follows:

        In response to the advertisement for appointment to the post of
 Assistants in the Dr. Joggnath Mishra Institute for Technology (a private B
 institution hereinafter referred to as the 'Institute') appellant and several
 others applied for the said post. After selection at a test conducted, 5 persons
 were appointed and the appellant was one of them. Appellant was appointed
 vide order dated 18. 7.198 l and was given six weeks time from the date of issue
 of the letter to report for duty to the office of the General Secretary, Mithila C
Vikas Sansthan Laheriasarai, Darbhanga/Director of the Institute at Darbhanga.
 In case of respondent no.8 P.K. Choudhary, the appointment letter was dated
22. 7.81 and he joined on the same day. The appellant who claims to have
received the appointment letter on 23. 7.81, in fact, joined on 24. 7.8 l. At this
juncture, it is to be noted that though in the appeal, challenge was made to
the appointment of resp0ndent no.7, the same was not pressed. On the basis D
 of Section 5(2) of the Act and in purported exercise of powers under Section
 5(3) of the Act, respondent no.8 was retained in service while the appellant
 was not retained. The appellant questioned correctness of the procedure
 adopted. When there was no positive response, the writ petition was filed
 before the Patna High Court which was allowed by learned Single Judge. It E
 was noted by the learned Single Judge that the order dated 3 l. l.l 991 issued
by the State Government absorbing in service of some of the respondent was
contrary to law. It was noted that the procedure of determining as to who had
joined the college earlier was wrong. It was pointed out that admittedly
selection was on 18.7.1981 and six weeks time was granted forjoining. Merely F
 because of fort•1itous circumstances, respondent no.8 joined earlier that cannot
be a ground to make him senior to the appellant, though in the merit list
prepared appellant was ranked 20 while respondent no.8 was ranked 43. The
learned Single Judge accepted the stand. In the appeal filed by respondent
 no.8, different view was taken by the Division Bench. It was held that the
seniority is to be reckoned on the basis of the date of joining. According to G
High Court the logic of last-come first-go was applicable and, therefore,
appellant who has joined later was to be treated as junior to respondent no.8.

       Learned counsel for the appellant submitted that the view taken by the
Division Bench is clearly contrary to law. If there are no rules governing the    H
field, it is the placement in the merit list which is detenninative and not the
    834                    SUPREME COURT REPORTS [2006) SUPP. 8 S.C.R.

A date of joining. It is accepted that no rules had been framed and, therefore,
    the merit as appearing in the rank list has to be taken.

          In response, learned counsel for the respondent submitted that right
    from 1981, respondent no.8 has worked and he having joined earlier has to
    be treated as senior to the appellant.
B
          There is no dispute that the appellant was ranked higher to respondent
    no.8. There is also no dispute that in the appointment letter the appellant was
    given six weeks time to join. Merely because respondent no.8 joined earlier
    that did not in any way affected the merit placement.
c         This Court in Chairman, Puri Gramya Bank and Anr. v. Ananda Chandra
    Das f;md Ors., [1994] 6 SCC 301 held as follows:

            "This appeal arises from the Judgment of the High Court ofOrissa in
            0.J.C. No. 1007/88, dated March 4, 1992. The respondent and others
D           were selected by direct recruitment as managers of Rural Ba.nk. His
            rank was No. 9 in the merit list. He was directed to be given seniority
            on the basis of the date of his reporti:tg to duty. It is reported that
            the first respondent is dead. The only question in this-case is that
            what shall be the ranking among the direct recruits? Is it the date
            on which they joined duty or according to the ranking given .by the
E           selection board? On comparative evaluation of the respective merits
            of the candidates for direct recruitment, the Board has prepared the
            merit list on the basis of the ranking secured at the time of the
            selection. It is settled law that if more than one are selected, the
            seniority is as per ranking of the direct recruits subject to the
F           adjustment of the candidateB selected on applying the rule of
            reservation and the roster. By mere fortuitous chance of reporting to
            duty earlier would not alter. the ranking given by the Selection
            Board and the arranged one as per roster. The High Court, is,
            therefore, wholly wrong in its conclusi?n that the seniority shall be
            determined on the basis 'Of the joining reports given by the candidates
G
            selected for appointment by direct recruitment and length of service
            on its basis. The view, therefore, is wrong. However, we need not
            interfere with the order, since the first respondent has died."

                                                          (Italicised for emphasis)
H
          Since there was no ·rule in operation, obviously the ranking in the merit
          SURESHCHANDRAJHAv. STATEOFBIHAR[PASAYAT,J.]                      835
list was to decide the respective seniority. The ratio in Chairman, Puri A
Gramya Bank's case (supra) has full application to the facts of the case.
Appellant's claim that he was 10 be treated as senior to the respondent no.8
was rightly accepted by learned Single Judge. Unfortunately, the Division
Bench did not address itself to the specific question and has placed undue
stress on the respondent no.8 having joined earlier.
                                                                                  B
      Therefore, the judgment of the Division Bench is set aside and that of
the learned Single Judge is restored. We have, however, make it clear that the
appellant will not be entitled to any salary for the period during which the
respondent no.8 has worked. For all other service benefits, the period in
question shall be reckoned. The official respondents shall explore the possibility C
of absorbing respondent no.8 to the suitable post considering the fact that
for nearly quarter of the century he has rendered services. The payment made
to him shall not be recovered.

       The appeal is allowed to the aforesaid extent with no order as to costs.
                                                                                  D
D.G.                                                   Appeal partly allowed.