TMI Blog1994 (9) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the date of the substantive appointment of the concerned incumbent. The appellants herein were appointed to the Junior Branch while original writ petitioners were appointed as direct recruits in the senior Branch. So far as the original writ petitioners respondents herein, are concerned, some of them were directly recruited and appointed in the Senior Branch on 12.5.1974 and rest of the original writ petitioners were appointed as direct recruits on 25.5.1974. The State Government of Bihar decided to merge the different cadres existing in the Civil Services, Finance Service and Education Service. Accordingly, by a Government Resolution issued by Finance (Commercial Taxes) Department dated 1.4.1975, the State Government decided that both the Senior and Junior Branches of the Bihar Finance Service be merged. The merger of Junior and Senior Branches was to be effective from 1.4.1974. It is pertinent to note that prior to the aforesaid decision regarding the merger of two branches, the Bihar Finance Service Rules, 1953, which were statutory rules, were framed under the proviso to Article 309 of the Constitution of India. Rule 3 indicated that the members of the Senior and the Junior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments. Against this decision a Special Leave Petition was unsuccessfully carried to this Court and the same was dismissed on 13. 8. 1986 by a non-speaking order. It is thereafter that the aforesaid impugned provisional gradation list was prepared by the State of Bihar came to be challenged in Writ Petition No. 2223 of 1987, as aforesaid, by the direct recruits. A Division Bench of the Patna High Court after hearing the writ petitioners and the contesting respondents came to the conclusion that as the direct recruits were ap- pointed to the Senior Branch of the Bihar Finance Service on 12.5.1974 and 25.5.1974 respectively while the appellants were appointed to the merged cadre on 2.11.1975 and as their appointments could not be made retrospectively with effect from 1.4.1974 nor could merger of the two branches of the two cadres be effected retrospectively from 1.4.1974, the seniority of the respondents had to be reckoned from 12.5.1974 and 25.5.1974 respectively while the seniority of the appellants had to be reckoned from 2.11.1975 being the date on which they were appointed to the merged combined cadre of the Senior Branch of the Bihar Finance Service. Accordingly, the writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pe and ambit of the statutory rules framed under Article 309 of the Constitution which ware holding the field prior to the resolution of the merger of these two branches on 1.4.1975, as the resolution to merger two branches was passed only on 1.4.1975. The actual implementation of merger was subject to rules which were to be framed but never framed under Article 309 of the Constitution. That in the meantime, respondents writ petitioners got appointed under the erstwhile Service Rules on 12.5.1974 and 25.5.1975 respectively. That the appellants came to the merged cadre only for the first time by order dated 2.11.1975. Such an executive order, therefore, cannot operate retrospectively from 1.4.1974 and destroy the right of seniority acquired by the respondent- writ petitioners from the dates of their appointments to the Senior Branch. It was further submitted that the earlier decision of the High Court was rightly distinguished by the Division Bench of the Patna High Court in the impugned judgment as in Kartik Charon Jha's case (supra) the direct recruits were appointed to the Senior Branch only in 1976 while the employees working in the erstwhile Junior Branch got appointed to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed on 2.11.1975 in the merged cadre. It is true their order of appointment purports to give them appointment retrospectively from 1.4.1974 but such effect cannot be given so as to destroy the seniority rights of the writ petitioners, respondents herein, who were inducted as direct recruits in the Senior Branch prior to 2.11.1975. The earlier decision of the Patna High Court in the case of Kartik Charan Jha's case (supra) was rightly distinguished by the Division Bench in the present case as in Jha's ease (supra) the direct recruits were inducted much after 2.11.1975 when the mergees got their Junior Branch's appointments upgraded to the combined merged cadre and became a part and parcel of the Senior Branch earlier to these direct recruits, while in the present case all the contesting respondents had entered the Senior Branch much prior to 2.11.1975 as seen above. Therefore, they Were entitled to be treated as seniors to the appellants. It is true that against earlier decision of the High Court, Special Leave Petition was rejected by this Court but as it was not a speaking order, it cannot be said that this Court had put its imprimatur On the observations found in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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