Jharkhand High Court
Satyadeo Mohan Ghosh vs The State Of Jharkhand Through The Chief ... on 17 April, 2026
Bench: Sujit Narayan Prasad, Deepak Roshan
2026:JHHC:11185-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 654 of 2018
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Satyadeo Mohan Ghosh, aged about 59 years 11 months, son of Late Baldeo Mohan Ghosh, resident of Birendra Sudha, Flat No-505, Burdwan Compound, P.O. -G.P.O. Ranchi, P.S.-Lalpur, District-Ranchi-
834001 ... ... Petitioner
Versus
1.The State of Jharkhand through the Chief Secretary, having its office at Project Bhawan, Dhurwa, P.O.& P.S.- Dhurwa, District-Ranchi-834004.
2.Development Commissioner, Government of Jharkhand, having its office at Nepal House, PO & PS:
Doranda, District- Ranchi 834002.
3. Additional Chief Secretary, Planning-cum-Finance Department (Finance Division), Government of Jharkhand having its office at Project Bhawan, Dhurwa, P.O.& P.S.-Dhurwa, District- Ranchi-834004.
4. Principal Secretary, Personnel, Administrative, Reforms and Rajbhasha Department, Government of Jharkhand having its office at Project Bhawan, Dhurwa, P.O.& P.S.-Dhurwa, District-Ranchi-834004.
5. Secretary, Road Construction Department, Government of Jharkhand having its office at Project Bhawan, Dhurwa, P.Ο. & P.S.-Dhurwa, District- Ranchi- 834004.
6.Jharkhand Engineering Services Association (JSEA) though its General Secretary Bibhuti Narayan Singh, S/o Baban Singh, R/o- Vidhya Singh Nawag Colony, Kadru, Harmu,, Dist- Ranchi.
7.Ashish Kumar Sinha, S/o Sri Dinesh Kumar Sinha, R/o Vill_Flat No. 4096, Maha Laxmi Palace, New Sahjanand Chowk, P.O. & PS Harmu, Dist-Ranchi .
8. The Secretary, Jharkhand Public Service Commission (JPSC), having its office at Circular Road, Deputy Para, Ahirtoli, P.O &P.S. - Lalpur, Ranchi, Jharkhand.
... ... Respondents with W.P. (S) No. 8 of 2018 Diploma Engineers Association, Jharkhand having its Registration No. 755 dated 16/12/2008, Office at PWD Campus, Jhanda Chowk, PO & PS: Doranda, District- Ranchi- 834 002, through its General Secretary, Shekhar Kumar, son of Late Shiv Govind Prasad, resident of Gandhi Vihar, Lane No. 1, PO & PS Bariatu, District- Ranchi.
Page | 1
2026:JHHC:11185-DB
... ... Petitioner
Versus
1.The State of Jharkhand through the Chief Secretary, having its office at Project Bhawan, Dhurwa, P.O.& P.S.- Dhurwa, District- Ranchi-834004.
2.Development Commissioner, Government of Jharkhand, having its office at Nepal House, PO & PS:
Doranda, District-Ranchi 834002.
3.Additional Chief Secretary Planning-cum-Finance, Department (Finance Division), State of Jharkhand having its office at Project Bhawan, Dhurwa, P.O.& P.S.- Dhurwa, District- Ranchi- 834004.
4. Principal Secretary, Personnel, Administrative, Reforms and Rajbhasha Department, State of Jharkhand having its office at Project Bhawan, Dhurwa, P.O.& P.S.-Dhurwa, District-Ranchi-834004.
5. Secretary, Road Construction Department, State of Jharkhand having its office at Project Bhawan, Dhurwa, P.O. & P.S.-Dhurwa, District- Ranchi- 834004.
6. J.P.S.C. through its secretary Circular Road, Ranchi.
... Respondents with W.P. (S) No. 2189 of 2018 Shyam Das Singh, aged about 59 years, son of Late Ram Jit Singh, resident of PWD Godown Campus, Medical Chowk, PO: Bariatu, PS: Bariatu, District- Ranchi.
Petitioner Versus
1. The State of Jharkhand through the Chief Secretary, having its office at Project Bhawan, Dhurwa, P.O.& P.S.- Dhurwa, District-Ranchi-834004.
2. Development Commissioner, Government of Jharkhand, having its office at Nepal House, PO & PS:
Doranda, District- Ranchi 834002.
3. Additional Chief Secretary, Planning-cum-Finance Department (Finance Division), Government of Jharkhand having its office at Project Bhawan, Dhurwa, P.O.& P.S.-Dhurwa, District- Ranchi-834004.
4. Principal Secretary, Personnel, Administrative, Reforms and Rajbhasha Department, Government of Jharkhand having its office at Project Bhawan, Dhurwa, P.O.& P.S.-Dhurwa, District-Ranchi-834004.
5. Secretary, Road Construction Department, Government of Jharkhand having its office at Project Page | 2 2026:JHHC:11185-DB Bhawan, Dhurwa, P.O. & P.S.-Dhurwa, District- Ranchi- 834004.
6. The Secretary, Jharkhand Public Service Commission (JPSC) having its office at Circular Road, Deputy Para, Ahirtoli, P.O.& P.S. - Lalpur, Ranchi, Jharkhand.
... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner(s) : Mr.Jitendra Singh, Sr. Adv.
Ms. Amrita Sinha, Advocate Mr. Yash Singh, Advocate Ms. ShwetaSuman, Advocate Ms. PraguneeKashyap, Advocate [In WPS Nos. 654/18 & 2189/18] Mr. A.K. Sahani, Advocate Mr. Ajit Kumar, Advocate [In WPS No. 8 of 2018] For the Resp.-State : Mr. Rajiv Ranjan, Advocate General Mr. Shray Mishra, AC to AG For the JESA : Mr. KrishaMurari, Advocate For the JPSC : Mr. SanjoyPiprawall, Advocate Mr. Prince Kumar, Advocate [In WPS Nos. 654/18 & 08/18] Mr. Sameer Saurabh, Advocate [In WPS No. 2189/18]
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C.A.V on 23/03/2026 Pronounced on 17/04/2026 Per Sujit Narayan Prasad, J:
1. Since the issues involved in this batch of writ petitions are identical, therefore, at the request of learned counsel for the parties, the matters have been tagged together.
Accordingly, they are heard together and are being disposed of by this common order.
Prayer in W.P.(S) No. 654 of 2018
2. In the instant writ application, the petitioner is praying for issuance of appropriate writ(s), order(s), direction(s) from this Hon'ble Court for the following reliefs: -
Page | 3 2026:JHHC:11185-DB "a. For issuance of an appropriate writ or a writ in the nature of certiorari for quashing the notification no. 01/Misc-10/13-Road Construction-2376(S) dated the 12th April 2016 issued by the Road Construction Department, Government of Jharkhand published in the official Gazette on 3rd May, 2016 (Annexure-26) making rules regulating appointment, promotion, conditions of service, pay, allowances and pension of the Jharkhand Engineering Service for all of Engineering Works Departments of the Government of Jharkhand being the Jharkhand Engineering Service Rules, 2016 ("impugned Rules") and revival of Bihar Engineering Class-I Service Rules, 1939 enforced and applicable on the date of bifurcation of unified State of Bihar (i.e. 15/11/2000) under the Bihar Re- organisation Act, 2000 in the matter of considering higher promotions with all consequential benefits to the petitioner with retrospective effect as has already been granted to immediate juniors (detailed in Para- 45 of this writ petition) on account of the grounds mentioned in Para- 68 of this writ petition. Or in the alternative For a declaration that the impugned rules contained in Notification no. 2376(S) dated12th April 2016 published in the official Gazette on 3rd May, 2016 (Annexure- 26) has no applicability to the case of the petitioner to the extent that the petitioner's promotion and other service conditions will not be governed by the Impugned Rules; and further that it does not affect the rights vested in the petitioner to be promoted to the post of Assistant Engineer with effect from 27.6.1987; Executive Engineer with effect from 23.11.2009 and Superintending Engineer with effect from 3.2.2016 when the juniors to the petitioner have been granted promotion to the said posts with effect from the said Page | 4 2026:JHHC:11185-DB dates on the Bihar Engineering Service Rules, 1939 without considering the case of the petitioner. b. For issuance of an appropriate writ or a writ in the nature of mandamus commanding upon the respondents to shift back the date of promotion of the petitioner from 03.05.2013 to 27.06.1987 in the rank/post of Assistant Engineer with all consequential benefits, as the Juniors to the petitioner being 13 daily wages Junior Engineers have been treated to be Assistant Engineer (Promotee) on and from 27.06.1987 have been placed in the seniority list dated 5.5.2015 (Annexure- 21/1) at serial number 23 to 61 and the petitioner being senior-most than those, finds place at serial number 575 (Ka) of the Assistant Engineer's seniority list dated 5.5.2015 of Road Construction Department.
c. For issuance of an appropriate writ or a writ in the nature of mandamus directing the respondents to give promotion to the petitioner to the next higher rank (post) of Executive Engineer with all consequential benefits from 23.11.2009, the date from which said Juniors to the petitioner have been considered and subsequently promoted vide order/ notification dated01.12.2014, 29.04.2015 & 06.05.2015 (Annexure- 19, 20 & 23 respectively) and if necessary, supernumerary posts in the grade of Executive Engineers should also be created for the purpose of accommodating the petitioner on the basis of such retrospective promotions in Road Construction Department.
d. For issuance of an appropriate writ, order or direction on the respondents to consider the case of the petitioner for promotion to the next higher rank of Superintending Engineer, with all consequential benefits from 03.02.2016 in the pay scale of PB-IV Rs.37400-67000/- Grade Pay Rs. 8700/-, which shall Page | 5 2026:JHHC:11185-DB be further fixed in the revised pay structure of 7th Pay Revision accepted by the Government of Jharkhand and further higher promotion (if any is granted to such junior persons) by granting relaxation in respect of required "Kalavadi" with effect from the date, the Juniors to the petitioner have been granted promotion vide notification issued under Memo No. 761(S) dated 03.02.2016 (Annexure- 24) and if necessary, supernumerary post in the grade of Superintending Engineer and Chief Engineer may also be created for the purpose of accommodating the petitioner and all arrears of salary and allowances should also be paid to the petitioner on the basis of such retrospective promotions in Road Construction Department. e. For issuance of an appropriate writ or a writ in the nature of mandamus directing the respondents to rearrange the inter-se-seniority list dated 05.05.2015 of the Assistant Engineers under control of Road Construction Department, Government of Jharkhand inasmuch as the juniors to the petitioner have been placed at serial number 23 to 61 and the petitioner being senior-most to them finds place at serial number 575 (Ka), which is contrary to the findings as in order dated 28.9.15 passed by this Hon'ble Court in LPA No. 106 of 2015 and guidelines of the Central Government, Department of Personnel and Training. f. For issuance of an appropriate writ in the interest of justice by way of interim relief during the pendency of the present writ petition, the respondents may kindly be directed to consider the case of the petitioner for promotion to the post of Executive Engineer as per earlier rules i.e. Bihar Engineering Service Class-I Rules, 1939 against his due entitlement out of 28% promotional post of Executive Engineers from Assistant Engineers (promotee) of Diploma holders at least from 23/11/2009 on which date the juniors to him have Page | 6 2026:JHHC:11185-DB been promoted particularly in view of the fact that Assistant Engineers direct recruits and promotees those possessing AMIE/degree engineering have entitlement of only 72% promotional posts of Executive Engineers in terms of order dated 28/9/2015 passed in LPA No. 106 of 2015 and also considering that 30 posts of Executive Engineer were left unfilled by the Departmental Promotion Committee during its meeting held on 28/11/2014 considering the representation of Diploma Engineers Association (hereinafter to be referred to as "the Association') dated 25.11.2014 particularly in terms of law laid down by the Constitution Bench of the Hon'ble Supreme Court in para-47 (C) and (G) of the decision reported in (1990) 2 SCC 715 as well as para-35 of the decision reported in (2015) 10 SCC 292 and other decisions too within a shortest specified period before his superannuation date (28/2/2018) to bring him minimum at par with the juniors to him some of them are already availing of such benefits from 23.11.2009 and / or from 1.12.2014.
g. Any other relief or reliefs for which the petitioner is legally entitled; and h. For any other appropriate Writ(s), Order(s), Direction(s) as may be deemed fit and proper by Your Lordships for doing substantial and conscionable justice to the Petitioner."
Prayer made in W.P.(S) No. 08 of 2018
3. In the instant writ petition, the petitioner is praying for issuance of appropriate writ(s), order(s), direction(s) from this Hon'ble Court for the following reliefs:-
"a. For issuance of an appropriate writ or a writ in the nature of certiorari for quashing the notification issued Page | 7 2026:JHHC:11185-DB by the Road Construction Department, Government of Jharkhand being Notification dated 12th April 2016 Published in the official Gazette on 3rd May, 2016 (Annexure-28) making rules regulating appointment, promotion, conditions of service, pay, allowances and pension of the Jharkhand Engineering Service for all the Works Departments of the Government of Jharkhand on account of the grounds mentioned in para- 61 of this writ petition.
Or in the alternative.
For a declaration that the impugned rules contained in Notification dated 12th April 2016 Published in the official Gazette on 3rd May, 2016 (Annexure 28) has no applicability to the case of the members of the petitioner to the extent it affects the rights vested in them petitioner in the matter of promotion to the post of Assistant Engineer with effect from 27.6.1987; Executive Engineer with effect from 23.11.2009 and Superintending Engineer with effect from 3.2.2016 when the juniors to the general category members of the petitioner have been granted promotion to the said posts with effect from the said dates without considering the case of the general category members of the petitioner.
b. For issuance of an appropriate writ or a writ in the nature of mandamus commanding upon the respondents to shift back the date of promotion of the general category senior members of the petitioner from 03.05.2013 to 27.06.1987 in the rank/post of Assistant Engineer with all consequential benefits, as the Juniors to the general category members of the petitioner being 13 daily wages Junior Engineers have been treated to be Assistant Engineer (Promotee) on and from 27.06.1987 have been placed in the seniority list dated 5.5.2015 (Annexure-23) at serial number 23 to 61 and the general category members of the Page | 8 2026:JHHC:11185-DB petitioner being senior-most than those find place at serial number 500, 505, 514 and 565 to 600respectively of the Assistant Engineers seniority list dated 5.5.2015 of Road construction Department.
c. For issuance of an appropriate writ directing the respondents to give promotion to the general category members of the petitioner to the next higher rank (post) of Executive Engineer with all consequential benefits from 23.11.2009, the date from which said Juniors to the general category members of the petitioner have been considered and subsequently promoted vide order/ notification dated 01.12.2014, 29.04.2015 & 06.05.2015 (Annexure- 19, 21 & 25 respectively) and if necessary, supernumerary posts in the grades of Executive Engineers should also be created for the purpose of accommodating them on the basis of such retrospective promotions in Road Construction Department.
d. For issuance of an appropriate writ, order or direction on the respondents to consider the case of the general category members of the petitioner for promotion to the next higher rank of Superintending Engineer, with all consequential benefits from 03.02.2016 in the pay scale of PB-IV Rs.37400- 67000/- Grade Pay Rs. 8700/- and further higher promotion (if any is granted to such junior persons) by granting relaxation in respect of required "Kalavadi"
with effect from the date, the Juniors to the general category members of the petitioner have been granted promotion vide notification issued vide Memo No. 761(S) dated 03.02.2016 (Annexure-26) and if necessary, supernumerary posts in the grades of Superintending Engineers and Chief Engineers may also be created for the purpose of accommodating them and all arrears of salary and allowances should also Page | 9 2026:JHHC:11185-DB be paid to such general category members of the petitioner on the basis of such retrospective promotions in Road Construction Department.
e. For issuance of an appropriate writ or a writ in the nature of mandamus directing the respondents to rearrange the inter-se-seniority list dated 05.05.2015 in as much as the juniors to the general category members of the petitioner have been placed at serial number 23 to 61 and the general category members of the petitioner being senior-most to them find place at serial number 500, 505, 514 and 565 to 600 which is contrary to order dated 28.9.15 passed by this Hon'ble Court in LPA No. 106/15 and DoPT guidelines of the Central Government in Road construction Department. f. For issuance of an appropriate writ or a writ in the nature of certiorari for quashing the order dated 20.10.2017 (Annexure-35) whereby and whereunder the representation dated 25.11.2014 read with reminder dated 21.07.2017 (Annexure- 18 and 30 respectively) made by the petitioner pursuant to the order dated 10.7.17 passed by this Hon'ble Court in LPA No. 106/15 has been rejected particularly in view of the fact that the same has beenpassed by the respondent no. 5 who had no jurisdiction or authority in the matter of appointment to the post of Executive Engineer of Class I service without getting approval of Honourable Chief Minister through the Chief Secretary as per the rules of executive business of Jharkhand Government that too in a most mechanical manner and without considering provisions at Clause 5(ii) Notes in Annexure to the DOPT OM dated 22.12.1959 (Annexure-2) as well the law laid down by the Constitution Bench of the Hon'ble Supreme Court especially reported in (1990) 2 SCC 715 Para-47(C) and (G) as well as against the Rules, Regulations and policies of the State Government and in total Page | 10 2026:JHHC:11185-DB disregards to the absurd situation and prima facie error in the matter of seniority list dated 5.5.2015 of the Assistant Engineers under Road Construction joint cadre as pointed out by this Hon'ble court in order dated 28.9.2015 in LPA No. 106 of 2015 (Annexure-
22).
g. For issuance of an appropriate writ in the interest of justice by way of interim relief during the pendency of the present writ petition, the respondents may kindly be directed to consider the case of general category senior members of the petitioner [enlisted in the list of the eligible members of the petitioner at Annexure- 17] for promotion to the post of Executive Engineer as per earlier rules i.e. Bihar Engineering Service Class-1 Rules, 1939 against their entitlement of 28% promotional post of Executive Engineers from Assistant Engineers (promotee) of Diploma holders at least from 1/12/2014 on which date the juniors to them have been promoted particularly in view of the fact that Assistant Engineers direct recruits and promotees possessing AMIE/degree engineering have entitlement of only 72% promotional posts of Executive Engineers in terms of order dated 28/9/2015 passed in LPA No. 106 of 2015 read with interim order dated 17/8/2017 passed in WPS No. 3027 of 2016 with other analogous cases and also considering that 30 posts of Executive Engineers were left unfilled by the Departmental Promotion Committee during its meeting held on 28/11/2014 considering the representation of the petitioner dated 25.11.2014 particularly in terms of law laid down by the Constitution Bench of the Hon'ble Supreme Court in para-47 (C) and (G) of the decision reported in (1990) 2 SCC 715 as well as para-35 of the decision reported in (2015) 10 SCC 292 and other decisions too within a specified period to bring them minimum at par with the juniors to them who are Page | 11 2026:JHHC:11185-DB already availing of such benefits from 23.11.2009 and/or from 1.12.2014.
h. Any other relief or reliefs for which the petitioner is legally entitled; andi. For any other appropriate Writ(s), Order(s), Direction(s) as may be deemed fit and proper by Your Lordships for doing substantial and conscionable justice to the Petitioner." Prayer made in W.P. (S) No. 2189 of 2018
4. In the instant writ petition the petitioner is praying for issuance of appropriate writ(s), order(s), direction(s) from this Hon'ble Court for the following reliefs:-
a. For issuance of an appropriate writ or a writ in the nature of certiorari for quashing the notification no. 01/Misc-10/13-Road Construction-2376(S) dated the 12th April 2016 issued by the Road Construction Department, Government of Jharkhand published in the official Gazette on 3rd May, 2016 (Annexure-26) making rules regulating appointment, promotion, conditions of service, pay, allowances and pension of the Jharkhand Engineering Service for all of Engineering Works Departments of the Government of Jharkhand being the Jharkhand Engineering Service Rules, 2016 ("impugned Rules") and revival of Bihar Engineering Class-I Service Rules, 1939 enforced and applicable on the date of bifurcation of unified State of Bihar (i.e. 15/11/2000) under the Bihar Re-organisation Act, 2000 in the matter of considering higher promotions with all consequential benefits to the petitioner with retrospective effect as has already been granted to immediate juniors (detailed in Para- 45 of this writ petition) on account of the grounds mentioned in Para- 68 of this writ petition. Or in the alternative Page | 12 2026:JHHC:11185-DB For a declaration that the impugned rules contained in Notification no. 2376(S) dated 12th April 2016 published in the official Gazette on 3rd May, 2016 (Annexure-26) has no applicability to the case of the petitioner to the extentthat the petitioner's promotion and other service conditions will not be governed by the Impugned Rules; and further that it does not affect the rights vested in the petitioner to be promoted to the post of Assistant Engineer with effect from 27.6.1987; Executive Engineer with effect from 23.11.2009 and Superintending Engineer with effect from 3.2.2016 when the juniors to the petitioner have been granted promotion to the said posts with effect from the said dates on the Bihar Engineering Service Rules, 1939 without considering the case of the petitioner.
b. For issuance of an appropriate writ or a writ in the nature of mandamus commanding upon the respondents to shift back the date of promotion of the petitioner from 03.05.2013 to 27.06.1987 in the rank/post of Assistant Engineer with all consequential benefits, as the Juniors to the petitioner being 13 daily wages Junior Engineers have been treated to be Assistant Engineer (Promotee) on and from 27.06.1987 have been placed in the seniority list dated 5.5.2015 (Annexure- 21/1) at serial number 23 to 61 and the petitioner being senior-most than those, finds place at serial number 578 of the Assistant Engineer's seniority list dated 5.5.2015 of Road Construction Department. c. For issuance of an appropriate writ or a writ in the nature of mandamus directing the respondents to give promotion to the petitioner to the next higher rank (post) of Executive Engineer with all consequential benefits from 23.11.2009, the date from which said Juniors to the petitioner have been considered and subsequently promoted vide order/ notification dated01.12.2014, 29.04.2015 & 06.05.2015 (Annexure- 19, 20 & 23 Page | 13 2026:JHHC:11185-DB respectively) and if necessary, supernumerary posts in the grade of Executive Engineers should also be created for the purpose of accommodating the petitioner on the basis of such retrospective promotions in Road Construction Department.
d. For issuance of an appropriate writ, order or direction on the respondents to consider the case of the petitioner for promotion to the next higher rank of Superintending Engineer, with all consequential benefits from 03.02.2016 in the pay scale of PB-IV Rs.37400-67000/- Grade Pay Rs. 8700/-, which shall be further fixed in the revised pay structure of 7th Pay Revision accepted by the Government of Jharkhand and further higher promotion (if any is granted to such junior persons) by granting relaxation in respect of required "Kalavadi" with effect from the date, the Juniors to the petitioner have been granted promotion vide notification issued under Memo No. 761(S) dated 03.02.2016 (Annexure-
24) and if necessary, supernumerary post in the grade of Superintending Engineer and Chief Engineer may also be created for the purpose of accommodating the petitioner and all arrears of salary and allowances should also be paid to the petitioner on the basis of such retrospective promotions in Road Construction Department.
e. For issuance of an appropriate writ or a writ in the nature of mandamus directing the respondents to rearrange the inter-se-seniority list dated 05.05.2015 of the Assistant Engineers under control of Road Construction Department, Government of Jharkhand inasmuch as the juniors to the petitioner have been placed at serial number 23 to 61 and the petitioner being senior-most to them finds place at serial number 578, which is contrary to the findings as in order dated 28.9.15 passed by this Hon'ble Court in LPA No. 106 of Page | 14 2026:JHHC:11185-DB 2015 and guidelines of the Central Government, Department of Personnel and Training. f. For issuance of an appropriate writ in the interest of justice by way of interim relief during the pendency of the present writ petition, the respondents may kindly be directed to consider the case of the petitioner for promotion to the post of Executive Engineer as per earlier rules i.e. Bihar Engineering Service Class-I Rules, 1939 against his due entitlement out of 28% promotional post of Executive Engineers from Assistant Engineers (promotee) of Diploma holders at least from 23/11/2009 on which date the juniors to him have been promoted particularly in view of the fact that Assistant Engineers direct recruits and promotees those possessing AMIE/degree engineering have entitlement of only 72% promotional posts of Executive Engineers in terms of order dated 28/9/2015 passed in LPA No. 106 of 2015 and also considering that 30 posts of Executive Engineer were left unfilled by the Departmental Promotion Committee during its meeting held on 28/11/2014 considering the representation of Diploma Engineers Association (hereinafter to be referred to as "the Association") dated 25.11.2014 particularly in terms of law laid down by the Constitution Bench of the Hon'ble Supreme Court in para-47 (C) and (G) of the decision reported in (1990) 2 SCC 715 as well as para- 35 of the decision reported in (2015) 10 SCC 292 and other decisions too within a shortest specified period before his superannuation date (31/1/2019) to bring him minimum at par with the juniors to him some of them are already availing of such benefits from 23.11.2009 and / or from 1.12.2014.
g. Any other relief or reliefs for which the petitioner is legally entitled; and h. For any other appropriate Writ(s), Order(s), Direction(s) as may be deemed fit and proper by Your Page | 15 2026:JHHC:11185-DB Lordships for doing substantial and conscionable justice to the Petitioner."
Factual Aspect:
5. The brief facts of the case, for the sake of convenience, as per the pleadings made in W.P.(S) No. 654 of 2018, is referred as under:
6. The State of Bihar through its Public Works Department issued an advertisement no. PRD-3810 (PW-648)-81-82 on 24.02.1982 for Ad-hoc appointment against vacancies inviting applications for the post of Junior Engineer (Civil) in the Public Works Department and Rural Engineering Organization of Bihar Government.
Pursuant to an interview, common call letter vide Memo no-1565 (E) Patna Dated 14.05.1982 was issued under the signature of the Engineer- in- Chief-cum- Additional Commissioner-cum-Special Secretary of Road and Building Construction Department, Bihar.
7. The Petitioner(s) said to have possessed the Diploma in Civil Engineering from Government Polytechnics of the State of Bihar, recognized by All India Council for Technical Education, participated in the process of selection. After following due procedure, the petitioner(s) was appointed to the post of Junior Engineer (Civil) on ad-hoc basis from a common select list prepared by the selection committee against earmarked vacancies of Page | 16 2026:JHHC:11185-DB common advertisement dated 24.02.1982. As much as about 304 Junior Engineers, including the petitioner(s), were appointed from the said combined select list.
8. The petitioner was issued letter of appointment dated 10.02.1983 from combined select list against common advertisement by the Road Construction Department of the then Government of Bihar and was appointed on the post of Junior Engineer (Civil), Road Construction Department on ad-hoc basis.
9. Pursuant to aforesaid letter of appointment dated 10.02.1983, the petitioner joined on the said post of Junior Engineer (Civil), Road Construction Department on 10.02.1983 in the office of the Engineer-in-Chief- cum-Additional Commissioner-cum-Special Secretary of the said department at Patna (Bihar).
10. Thereafter, under the provisions of the Bihar Gazetted Officer Ad-hoc Appointment Regularization Act, 1986 enacted under notification no. 512 dated 29th October, 1986 of the Law Department, Government of Bihar, the appointing authority i.e., Engineer-in-Chief- cum-Additional Commissioner, Road Construction, Bihar, Patna vide notification no. 399 Patna dated 08th December 1986 read with Memo no 9629(E) dated 08th December 1986 regularized ad-hoc services of about 1151 Junior Engineers [including the petitioner of WPS Page | 17 2026:JHHC:11185-DB No. 654 of 2018 at Sl. No. 893] appointed as ad-hoc till 30th June 1986 and those were continuing their service from their initial appointment date.
11. The Road Construction Department, Government of Bihar vide an office order dated 12.03.1998, decided the services of 225 Junior Engineers including the Petitioner in the initial entry grade post of Junior Engineer to be made permanent.
12. The petitioner on completion of 12 years regular services was granted the first Assured Career Progression (in Short 1st ACP) on 09.08.1999 admissible to the duty post of Assistant Engineer (Civil) of Gazetted Class-2/Group-'B' (Gazetted).
13. Thereafter, upon creation of the State of Jharkhand, the petitioner was allocated Jharkhand cadre with effect from 15.11.2000. It is stated that the petitioner is governed by provisions including Sections 72 and 73 of Bihar Reorganization Act, 2000 and accordingly his service conditions, as laid down in the Bihar Engineering Service Rules, 1939 which is applicable prior to 15.11.2000, cannot be varied to his disadvantage without previous approval of the Central Government.
Page | 18 2026:JHHC:11185-DB
14. The petitioner was granted his Second Assured Career Progression on completion of 24 years of regular service admissible to the duty post of Class -1 service Executive Engineer (Civil) as per provisions in the Bihar Engineering Service Rule, 1939.
15. The 2nd ACP i.e. the pay scale of Executive Engineer under Class-I service i.e. 2nd promotional post (Executive Engineer) granted to the petitioner with effect from 09.12.2006 (Notional) and 10.2.2007 (Actual) under the provisions of Bihar Engineering Class-1 Service Rules 1939 as the promotional posts of Executive Engineers were actually not made available during that period (9-12-2006 to 10-2-2007) for the petitioner holding Diploma in engineering.
16. Further the petitioner was granted his third Modified Assured Career Progression (MACP) on completion of 30 years of regular service, being entitlement to be promoted further for the next higher grade pay as against post of Superintending Engineer from 9.12.2012.
17. Due to delay and laches on the part of the respondents in the State of Jharkhand including the then Unified state of Bihar, the petitioner was granted regular promotion to the post of Assistant Engineer in Page | 19 2026:JHHC:11185-DB Road Construction Department, Government of Jharkhand on and from 03.05.2013.
18. It is further case of the petitioner that that although the petitioner was promoted to the post of Assistant Engineer but the department did not give effect to the promotion from its due date as notional date when he became eligible to be considered for promotion just after rendering 5 years of service (i.e. from 09.12.1987) in the entry grade post of Junior Engineer (Civil) as per the Central Service Conditions adopted in the Central Public Works Department Rules.
19. The Petitioners are said to be Diploma Holders in Civil Engineering from Government Polytechnics of the State of Bihar, which Diploma is said to be recognized by All India Council for Technical Education.
20. The petitioners having been appointed as Junior Engineers became entitled for promotion to the higher posts of Assistant Engineer, Executive Engineer and Superintending Engineer from their due dates falling on 9.12.1990, 9.12.1998 and 9.12.2005 respectively. However, despite being eligible and entitled to be considered for promotion under Rule 11 of Bihar Engineering Service Class II Rules, 1939 and Rule 17 of Bihar Engineering Service Class 1 Rules, 1939 for these promotions from the due dates the State did not even Page | 20 2026:JHHC:11185-DB consider their cases. Belatedly on 03.05.2013 the State granted them only one promotion i.e. to the post of Assistant Engineer. Yet the State granted promotions to amongst others, Junior Engineers to the post of Assistant Engineer w.e.f. 27.06.1987, Executive Engineer w.e.f. 23.11.2009 and Superintending Engineer w.e.f. 3.2.2016 though these persons were admittedly juniors to the petitioners as they were appointed after the appointment of the petitioners on 09.12.1982 on the post of Junior Engineer which shall be manifest from bare perusal of Annexure 17 to the writ petition read with, inter alia, paragraph no. 45 thereof, which have not been traversed by the respondents. The petitioners were entitled to be granted these three promotions with consequential benefits either independently as per their entitlement and/or from dates juniors were granted these promotions and such denial by the State is in violation of Articles 14 and 16 of the Constitution of India.
21. It is case of the writ petitioners that the State vide Notification No. 2376(S) dated 12.4.2016, promulgated the Jharkhand Engineering Service Rules, 2016 w.e.f. 3.5.2016. As per Rule 7 read with Schedule II thereto, Assistant Engineers having an engineering degree from a recognized University or Institute such as AMIE alone Page | 21 2026:JHHC:11185-DB are eligible to be promoted to the posts of Executive Engineer and above whereas under the Bihar Engineering Service Class 1 Rules such Assistant Engineers (promoted from Junior Engineer) having a diploma in engineering from an Institute were also eligible to be promoted to the post of Executive Engineer and above. The said new 2016 Rules changed the service conditions of the petitioners to their detriment which could not have been so done by the State without obtaining prior approval of the Central Government under Sections 72 and 73 of the Bihar Re-organisation Act, 2000, which making the said new 2016 Rules ultra vires the powers of the State insofar as Petitioners are concerned being in violation of the said 2000 Act.
22. As the claim for grant of the above three promotions to the petitioners as well as the vacancies dates prior to coming into force of the new 2016 Rules on 3.5.2016, therefore, as an alternative to the above challenge to the said new Rules the petitioners have also prayed that it be declared that the said new Rules would not be applicable to them for the said purpose as it is a settled law that vacancies prior to amendment of Rules would be governed by the un-amended Rules, more so when the State prior to coming into force of the said new Rules granted the three promotions to the juniors to the Page | 22 2026:JHHC:11185-DB petitioners, as above, without even considering their cases. Further, the State cannot take the benefit of delay and laches on its part to deny the same treatment to the petitioners and is a clear violation of Articles 14 and 16 of the Constitution of India.
23. It is further case of the petitioners as well as the association submitted representation/reminder to the respondents-authorities for considering their promotion to higher grades from the date juniors have been promoted, but, it did not evoke any response, as such present writ petitions have been filed for redressal of their grievance, as quoted above.
24. It requires to refer herein that in W.P.(S) No. 654 of 2018, the Co-ordinate Bench of this Court has passed order on 4th September, 2018 on the Interlocutory Application being I.A. No. 6171 of 2018, wherein the Co- ordinate Bench, taking note of the fact that Jharkhand Engineering Service Recruitment Rules, 2016 [hereinafter referred to as 'Rules, 2016'] has already been stayed vide order dated 17th August, 2017 in W.P. (S) No.3027 of 2016 and other batch matters, as such liberty was granted to the authorities to consider the case of the writ petitioner for entitlement for promotion applying the 1939 Rules and should bring to our notice his position on the next date of hearing. However, it was Page | 23 2026:JHHC:11185-DB made clear that the Court is not passing of any further order on implementation of 1939 Rules. For ready reference, order dated 4th September, 2018 is quoted as under:
"I.A. No. 6171 of 2018
The main point involved in this writ petition is as to whether Jharkhand Engineering Service Recruitment Rules, 2016 shall prevail over Bihar Engineering Service Rules, 1939 or not. Under the latter Rules, Assistant Engineers coming from both Graduate and Diploma streams are eligible for promotion to the post of Executive Engineer. Under the former i.e, 2016 Rules, only those Assistant Engineers, who possess degree in engineering are eligible for promotion. In the batch of the writ petitions which are being heard along with W.P.(S) No. 3027 of 2016, operation of 2016 Rules has been stayed by an order passed on 17th August, 2017.
The applicant in the present writ petition comes from the diploma category and has already superannuated. His complaint is that in spite of there being restraint order upon implementation of 2016 Rules, the authorities are not considering the implementation of 1939 Rules for the purpose of promotion. As the applicant has already superannuated during pendency of the said batch of writ petitions, no substantive relief can be given. However, the authorities may consider his entitlement for promotion applying the 1939 Rules and should bring to our notice his position on the next date of hearing.
For the reasons already indicated, we are not passing of any further order on implementation of 1939 Rules. The subsisting order already covers that field.
Matter to be listed on 13rd December, 2018.
The instant I.A. shall stand disposed of in the above terms."
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25. The background of passing of the aforesaid order is that the writ petitioners are claiming their promotion on the basis of Bihar Engineering Service Rules, 1939 (hereinafter referred to as 'Rules, 1939]. The said Rules, 1939 has been superseded by a new rule, i.e., Jharkhand Engineering Service Recruitment Rules, 2016. The new Rules, 2016 has been assailed by filing these writ petitions.
26. These three writ petitions were directed to be tagged with another batch of writ petitions being W.P.(S) No. 3027 of 2016; W.P.(S) No. 2984 of 2016; W.P.(S) No. 3031 of 2016 and W.P.(S) No. 5726 of 2017 by the Co- ordinate Bench of this Court vide order dated 13 th December, 2018.
27. Two Interlocutory Applications being I.A. No. 627 of 2023 in W.P.(S) No. 2189 of 2018 and I.A. No. 628 of 2023 in W.P. (S) No. 654 of 2018 was pressed by learned senior counsel for the petitioners on 01.08.2024 stating that these Interlocutory Applications is with a prayer to bring on record subsequent developments which have taken place during the pendency of these writ petitions as well as for a direction upon the State-Respondents to issue notification of promotions to the petitioners to the higher posts of Executive Engineer and Superintending Engineer in Road Construction Department as Page | 25 2026:JHHC:11185-DB recommended by the Departmental Promotion Committee with all consequential benefits attached thereto. However, on the objection being raised by the respondents and Intervener, the matter was adjourned to be listed on 18th September, 2024. For ready reference, order dated 01.08.2024 is quoted as under:
"Mr. Jitendra Singh, learned Senior Counsel appearing for the petitioners has pressed both these Interlocutory Applications which is with a prayer to bring on record subsequent developments which have taken place during the pendency of these writ petitions as well as for a direction upon the State-Respondents to issue notification of promotions to the petitioners to the higher posts of Executive Engineer and Superintending Engineer in Road Construction Department as recommended by the Departmental Promotion Committee with all consequential benefits attached thereto.
Mrs. Darshana Poddar Mishra, learned A.A.G.-I submits that although she has oral instructions but she has to bring the same on affidavits. She, therefore, seeks three weeks‟ time to file a reply to these Interlocutory Applications.
Mr. Krishna Murari, learned counsel for the Intervenor (Jharkhand Engineering Services Association) has submitted that a copy of the Interlocutory Applications have not been served upon him.
Mr. Jitendra Singh, learned Senior Counsel for the petitioners submits with objection that the copies shall be served upon Mr. Krishna Murari, learned counsel for the Intervenor (Jharkhand Engineering Services Association).
The said exercise should be done by 5th August, 2024.
Let this matter be listed on 18th September, 2024 under the heading "For Orders" for consideration of the Interlocutory Applications as well as the preliminary objection raised by Mr. Krishna Murari, learned counsel for Page | 26 2026:JHHC:11185-DB the Intervenor (Jharkhand Engineering Services Association)."
28. On 18th September, 2024, learned senior counsel for the petitioners in W.P. (S) No. 654 of 2018 ad W.P.(S) No. 2189 of 2018 appeared and submitted that the Department of Road Construction in the year 2015 has already given its recommendation, which is pending for final decision before the Cabinet. In view thereof, the matter was adjourned to be listed on 17.10.2024.
29. On 17th October, 2024, learned senior counsel for the petitioners in W.P. (S) No. 654 of 2018 ad W.P.(S) No. 2189 of 2018 appeared and made oral submission to withdraw these writ petitions on the ground that the decision has been taken by the Road Construction of the State Government vide resolution dated 09.10.2024 with respect to the petitioners in W.P. (S) No. 654 of 2018 and W.P. (S) No. 2189 of 2018. The learned counsel appearing for respondent no. 6 and 7 opposed to such prayer on the ground that still the issue is to be decided by this Court and during pendency of the lis such decision has been taken. This Court, therefore, directed the Principal Secretary of the Department concerned to file affidavit as to whether before consideration of these cases i.e., the case of petitioners in W.P. (S) No. 654 of 2018 and W.P. (S) No. 2189 of 2018, the case of other identical persons have been referred before the Page | 27 2026:JHHC:11185-DB Departmental Promotion Committee for its consideration or not and if not reason is to be explained. For ready reference, order dated 17th October, 2024 is quoted as under:
1. Reference may be made to order dated 4th September, 2018 passed in W.P. (S) No. 654 of 2018, wherein the Co-ordinate Bench while passing the order took note of the issue that the main point involved in the writ petition is as to whether Jharkhand Engineering Service Recruitment Rules, 2016 shall prevail over Bihar Engineering Service Rules, 1938 or not; and under the later rules, Assistant Engineers coming from both Graduate and Diploma streams are eligible for promotion to the post of Executive Engineer.
2. Mr. Jitendra Singh, learned senior counsel assisted by Ms. Amrita Sinha, learned counsel for the petitioners in W.P. (S) No. 654 of 2018 and W.P. (S) No. 2189 of 2018 has made oral submission to withdraw these writ petitions on the ground that the decision has been taken by the Road Construction of the State Government vide resolution dated 09.10.2024 with respect to the petitioners in W.P. (S) No. 654 of 2018 and W.P. (S) No. 2189 of 2018.
3. Mr. Mahesh Tewari, learned counsel appearing for respondent nos. 6 and 7 has vehemently opposed the prayer for withdrawal of the writ petitions. It has been contended that the order has been passed during pendency of the writ petition when still the issue is to be decided, which has been agitated by the writ petitioners, as pleaded in the writ petition.
4. It has been submitted by referring to resolution dated 09.10.2024 that the said order has been passed only with respect to the petitioners in W.P. (S) No. 654 of 2018 and W.P. (S) No. 2189 of 2018 with specific stipulation that decisions granting promotion will not be treated to be precedence as would appear from paragraph 42 of the said resolution.
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5. This Court, on perusal of the aforesaid resolution, is of the view that the affidavit is required to be sought for from the State as to why the decision taken by the State with respect to the petitioners in W.P. (S) No. 654 of 2018 and W.P. (S) No. 2189 of 2018 with stipulations made therein that this resolution will not be treated to be precedence.
6. This Court needs to know the same as to whether before consideration of these cases i.e., the case of petitioners in W.P. (S) No. 654 of 2018 and W.P. (S) No. 2189 of 2018, the case of other identical persons have been referred before the Departmental Promotion Committee for its consideration or not and if not reason is to be explained.
7. Let such affidavit be filed, explaining the reason, to be filed by the Principal Secretary of the Department on or before the next date of hearing.
8. Ms. Amrita Sinha, learned counsel for the petitioner has argued in W.P. (S) No. 5726 of 2017 and raised the grievance that the petitioner of the present case has not been granted promotion.
9. This matter [W.P. (S) No. 5726 of 2017] will also be considered along with other matters [W.P. (S) No. 654 of 2018 and W.P. (S) No. 2189 of 2018] on the date fixed.
10. List this case on 18.11.2024."
30. Pursuant thereto, affidavit has been filed by the respondent-State, taking the stand that the State only in order to restrict the matter of promotion to two persons, since they have been representing for redressal of their grievance for retrospective promotion such order of promotion has been granted and that is the reason in order to restrict the said decision to two petitioners, the word has been used that this order will not be treated to be precedence.
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31. This Court took cognizance of the fact that such decision has been taken by the Chief Secretary of the State in exercise of power conferred under Rule 27(4) of the Rules of Executive Business, which has got approval by the Cabinet and thereafter notification has been issued, but, this Court has failed to understand that when there is no power conferred to the Chief Secretary of the State under Rule 27(4) of the Rules of Executive Business, then how such decision can be taken in difference to the decision already taken by the Departmental Secretary and in reversal thereto. For ready reference, order dated 18th November, 2024 is quoted as under:
"Reference may be made to the order dated 17th October, 2024, in pursuance thereof, affidavit has been filed by the respondent State of Jharkhand.
2. We have gone through the averments made in the said affidavit and the stand which has been taken by the State that only in order to restrict the matter of promotion to two persons, since they have been representing for redressal of their grievance for retrospective promotion, such order of promotion has been granted and that is the reason in order to restrict the said decision to two petitioners, the word has been used that this order will not be treated to be precedence.
3. There is reference of the provision of Rule 27(4) of the Rules of Executive Business. We have also considered the provision of Rule 27(4) of the Rules of Executive Business and found therefrom that the Chief Secretary has not been conferred with the power to take decision in the matter of Rules of Executive Business, rather, the power has been Page | 30 2026:JHHC:11185-DB conferred to call for any record/document, for ready reference, Rule 27(4) of the Rules of Executive Business is being quoted and referred hereunder as :-
"27 (4) (a) The Chief Secretary may on the orders of the Chief Minister or of any Minister or of his own motion ask to see papers relating to any case in any department and any such request by him shall be complied with by the Principal Secretary/Secretary of the Department concerned. (b) The Chief Secretary may, after examination of the case submit it for the orders of the Minister-in-charge or of the Chief Minister through the Minister-incharge."
4. The averment since has been made that it is on the basis of the decision taken by the Chief Secretary of the State as in exercise of power conferred under Rule 27(4) of the Rules of Executive Business, which has got approval by the Cabinet and thereafter notification has been issued. But, this Court has failed to understand that when there is no power conferred to the Chief Secretary of the State under Rule 27(4) of the Rules of Executive Business, then how such decision can be taken in difference to the decision already taken by the Departmental Secretary and in reversal thereto.
5. Mr. AshutoshAnand, learned Additional Advocate General- III appearing for the State, has sought for time to seek instruction in the matter.
6. We have heard learned senior counsel Mr. Jitendra Singh, assisted by Ms. Amrita Sinha, learned counsel appearing for the petitioners, Mr. Mahesh Tewari and Mr. Krishna Murari, learned counsel appearing for the respondents.
7. Due to paucity of time, the hearing could not be concluded.
8. With the consent of the parties, let this matter be posted on 16.12.2024.
9. It has been submitted that although the written notes of argument has been filed but the same is to be supplemented, as such, submission has been made to allow the learned counsel for the parties to file the written notes of argument Page | 31 2026:JHHC:11185-DB afresh by making addition of subsequent development, if any.
10. Considering the aforesaid submission, permission is granted to file fresh written notes of argument on or before the next date of hearing."
32. Further, it came to the notice of the Court that in some other writ petitions also the different provisions of Jharkhand Engineering Service Rules, 2016 have been challenged, as such prayer has been made to tag those cases along with W.P. (S) No. 654 of 2018 and batch matters. Accordingly, W.P. (S) No. 654 of 2018 was heard together with W.P. (S) No. 2984 of 2016; W.P. (S) No. 3027 of 2016; W.P. (S) No. 3031 of 2016; W.P. (S) No. 5726 of 2017; W.P. (S) No. 08 of 2018 and W.P. (S) No. 2189 of 2018, as would be evident from order dated 27th January, 2025.
33. Learned Advocate General, in course of hearing on 28th April, 2025, while addressing the Court has submitted that the Government has considered the aforesaid issues, and are taking due steps to get the amendment done at the earliest and as such sought for adjournment of the matter. For ready reference, order dated 28th April, 2025 is quoted as under:
"1.Mr. Sameer Saurabh, learned counsel at the outset has submitted that he is advocate on record in W.P.(S) No. 2984 of 2016, however, he is having instructions to argue the matters being W.P.(S) No. 3027 of 2016 and W.P.(S) No. 3031 Page | 32 2026:JHHC:11185-DB of 2016 and he will file the appearance on behalf of the petitioners.
2. Mr. Sameer Saurabh, learned counsel appearing in aforesaid three writ petitions has submitted that the validity of the Rule 2016 is under challenge.
3. It has been submitted that the petitioners are aggrieved with the insertion of the quota of 50 per cent of the total posts which has been decided to be filled up from the post of Assistant Engineer to that of the post Executive Engineer.
4. It has further been contended that the same is in the teeth of Articles 14 and 16 of the Constitution of India due to the reason that the Assistant Engineers who have been promoted from the post of Junior Engineer in consequence of having certificate from the AMIE and the moment they have inducted into the cadre of Assistant Engineer, they cannot be allowed to get the benefit of such Assistant Engineers by fixing quota of 40 per cent again for the purpose of consideration of their cases to be promoted as Executive Engineer.
5. Learned Advocate General is present and while addressing the Court he has submitted that the Government has considered the aforesaid issues, which would be evident from the affidavit filed on behalf of the State on 06.04.2023 wherein the specific statement has been given at Para 17 that the respondents are taking due steps to get the amendment done at the earliest.
6. The learned Advocate General, on the basis of the aforesaid statement, has submitted that since the Government is thinking to amend the aforesaid part of the Rule 2016 which is under challenge in the writ petitions.
7. As such, the learned Advocate General has sought for adjournment awaiting for the amendment which is under consideration with the State Government.
8. Considering the same, the matter is being adjourned to be listed on 17th June, 2025."
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34. Thereafter, several adjournments were granted for bringing on record the amended rules to Jharkhand Engineering Service Recruitment Rules, 2016.
35. In the meantime, it has been brought to the notice to the Court that other matters challenging Rules, 2016 are also pending, which has been prayed to be tagged together. Accordingly, W.P. (S) No. 2984 of 2016; W.P. (S) No. 3027 of 2016; W.P. (S) No. 3031 of 2016 and W.P. (S) No. 5726 of 2017 was tagged with W.P.(S) No. 654 of 2018; W.P. (S) No. 8 of 2018 and W.P. (S) No. 2189 of 2018.
36. On 22nd January, 2026, learned counsel appearing for the petitioners in W.P.(S) No. 654 of 2018; W.P. (S) No. 8 of 2018 and W.P. (S) No. 2189 of 2018, submitted that these batch mattes are nothing to do with the amended Rules and hence these matters require independent adjudication.
37. So far rest writ petition of the batch cases, i.e., W.P. (S) No. 2984 of 2016; W.P. (S) No. 3027 of 2016; W.P. (S) No. 3031 of 2016 and W.P. (S) No. 5726 of 2017 are concerned, they were heard separately on 22nd January, 2026 and disposed of on 22nd January, 2026 itself. For ready reference, the relevant paragraph of order dated 22nd January, 2026 is quoted as under:
Page | 34 2026:JHHC:11185-DB " 6. Today a show-cause has been filed wherein it is stated that Rule has been formulated, copy thereof has been supplied to the learned counsel for the respective parties, bringing on record the enactment of Jharkhand Engineering Service Appointment and other Service Conditions Rule, 2025 in exercise of power conferred under proviso to Article 309 of the Constitution appended as Annexure-A which has also been notified in the Gazette Notification which is in supersession to the Jharkhand Engineering Service Recruitment Rules, 2016. The Rule 2016 has come in supersession to Bihar Engineering Class-1 Service Rules,1939 now there would be only one Rule i.e. Rule, 2025.
7.Although, after some delay, the Rule has been formulated and, as such, there is substantial compliance of the direction passed by this court. Hence, this court does not intend to proceed further in pursuance to the notice issued under Rule 393 of the Jharkhand High Court Rule. The new Rule has been enacted and as such this court is of the view that keeping these matters pending will be uncalled for. Any promotion granted in the meanwhile will exclusively be governed on the basis of the new Rule.
8.Accordingly, these writ petitions are disposed of with liberty to the petitioners that if any of the parties aggrieved they may challenge the validity of the Rule or any part thereof by approaching the appropriate forum, if so advised.
9.The copy of Gazette Notification has been tendered by the learned counsel for the State which has been kept on record.
10.One question has been raised by the learned counsel for the parties with respect to the promotion having been granted by the order dated 17.8.2017 passed by this Court in WP(S) No. 3027 of 2016, WP(S) 2984 of 2016 and WP(S) 3031 of 2016 from the post of Assistant Engineer (Diploma Holders) to the post of Executive Engineer as per the Bihar Engineering Class-1 Service Rules,1939, as would be evident from paragraph no.20 of the order dated 17.08.2017, that Page | 35 2026:JHHC:11185-DB promotion granted to the petitioner(s) may be saved otherwise he/they will face irreparable loss as most of him/them have already been retired from service.
11. The aforesaid facts have not been disputed by any of the learned counsel(s) appearing on behalf of the respondents.
12. This court is of the view that since the new Rule has been enacted as Jharkhand Engineering Service Appointment and other Service Conditions Rule, 2025 which is in supersession to the Rule 2016 and the Rule 2016 is in supersession to the Rule 1939 hence, promotion granted by virtue of interim order dated 17.8.2017 is to be saved.
38. This Court considering the prayer made by the parties and averments made in those writ petitioners directed to segregate writ petitions being W.P.(S) No. 654 of 2018; W.P. (S) No. 8 of 2018 and W.P. (S) No. 2189 of 2018 from the batch of writ petitions. Accordingly, these writ petitions have been directed to be heard together on the issue of merit.
39. When the matter was heard on 23rd March, 2026 besides arguing the matter on merit, learned counsel for the respondent no. 6-7 [JESA] have pressed one Interlocutory Application being I.A. No. 11333 of 2024, which was filed seeking recall of order dated 04.09.2018.
40. Accordingly, the matter has been heard on merit as also on the Interlocutory Application(s) filed by the parties.
Submission on behalf of petitioners:
Page | 36 2026:JHHC:11185-DB
41. Mr. Jitendra Singh, learned senior counsel for the petitioners appearing in W.P. (S) No. 654 of 2018 and W.P. No. 2189 of 2018 has submitted that the petitioners having been appointed as Junior Engineers became entitled for promotion to the higher posts of Assistant Engineer, Executive Engineer and Superintending Engineer from their due dates, as per Rule 11 of the Bihar Engineering Service Class II Rules, 1939 and Rule 17 of the Bihar Engineering Service Class I Rules, 1939. However, belatedly on 03.05.2013, the State granted them promotion only to the post of Assistant Engineer but the State granted promotion to other Junior Engineers, who are even junior to the petitioners, to the post of Assistant Engineer w.e.f. 27.06.1987; Executive Engineer w.e.f. 23.11.2009 and Superintending Engineer w.e.f. 03.02.2016.
42. Assailing the Rules, 2016, submission has been made that the respondent-State promulgated Rules, 2016, wherein as per Rule 7 read with Article II thereto, the Assistant Engineers having an engineering degree from a recognize University or Institute such as AMIE alone are eligible to be promoted to the posts of Executive Engineer and above whereas under the Bihar Engineering Service Class I Rules such Assistant Engineers [promoted from Junior Engineer] having a Page | 37 2026:JHHC:11185-DB diploma in engineering from an Institute were also eligible to be promoted to the post of Executive Engineer and above.
43. It has emphatically been submitted that Rules, 2016 changed the service conditions of the petitioners to their detriment which could not have been so done by the State without obtaining prior approval of the Central Government under Sections 72 and 73 of the Bihar Re- organization Act, 2000.
44. Further submission has been made that vacancies against which the petitioners are seeking promotions were in existence prior to 03.05.2016 i.e., coming into force of Rules, 2016, thus, the petitioners are entitled to get promotions as per Rules, 1939.
45. It has been submitted that on conjoint reading of Bihar Subordinate Engineering Service Rules, 1939; Bihar Engineering Service Class II Rules, 1939 and Bihar Engineering Service Class I Rules, 1939, it is amply clear that there is no prohibition for a person holding diploma in engineering [i.e., holder of diploma in engineering from an institution, not diploma from an Indian Engineering College as per Rule 8,] to be promoted to Class I service as a prohibition cannot be deemed for it has to be specifically provided in the Rules i.e., what is not barred is permissible. Further since Page | 38 2026:JHHC:11185-DB such Assistant Engineers [petitioners] are eligible to be so promoted to the post of Executive Engineer in view of the provisions of Rule 24 Class I Rules, they are also entitled consequential promotion to the posts of Superintending Engineer and Chief Engineer.
46. In support of his argument, learned senior counsel for the petitioner has relied upon the judgment rendered in the case of A. S. Parmar Vs. State of Haryana [(1984) Suppl. SCC 1)] wherein the issue was with regard to interpretation of Punjab Service of Engineers, Class I, P.W.D. (Building and Roads Branch) Rules, 1960 and Punjab Service of Engineers, Class II, P.W.D. (Building and Roads Branch) Rules, 1965 relating to class of Junior Engineer, Assistant Engineer and Executive Engineer and above which also had a different qualification requirement at the entry point for Assistant Engineer and Executive Engineer from those of class of Junior Engineer by way of direct recruitment considered whether the same was also applicable to Assistant Engineer promotee diploma holders categorically held that a similar provision delineated in Rule 6 of the said 1965 Class I Punjab Rules was only applicable for direct recruitment and could not be applied to Assistant Engineer promotee diploma holders while considering could the clauses of the said Punjab Rules (which are Page | 39 2026:JHHC:11185-DB similar to the above said Bihar Rules qua the relevant provisions relating to direct recruitment and promotion) have to be read cumulatively or separately stated that the same depends on the structure of sentence and contents of different clauses and held that Class II promotee Assistant Engineers are not required to fulfill the prescribed qualification in Class I service which is only for candidates applying for direct recruitment to Class I service.
47. Learned senior counsel for the petitioners further submitted that instead of the earlier Bihar Engineering Service Class I and II Rules, 1939 governing Class I and Class II Engineering Service respectively, the 2016 Rules provides for a single rule for both the erstwhile Class I and Class II service under the said 1939 Rules and provide that the posts as included in Schedule I taking into a wider base of posts would constitute this new engineering service in the State.
48. Referring to Rule 7 read with Schedule II of the 2016 Rules submission has been made that it provides for recruitment to the Jharkhand Engineering Service from two sources, one by way of direct recruitment and second by way of promotion. Rule 7 further lays down qualification for consideration; and appointment and promotion shall be in terms of the qualifications laid Page | 40 2026:JHHC:11185-DB down in Schedule II. This Schedule II by providing that apart from regular service of 5 years, the Assistant Engineer has to possess a degree in engineering from a recognized University or Institution such as A.M.I.E. (Associate Member of Institution of Engineers) which directly renders Assistant Engineer (promotee) diploma holders already in service ineligible to be considered and be promoted to the posts of Executive Engineer and above and thus it takes away the vested right of the petitioners conferred under the old Rule 1939 Rules and guaranteed under Article 16 of the Constitution of India. Under Rule 5(2) a person appointed under clause (a) of sub-rule (1) of the Rule-5 shall, on such appointment, be deemed to be a member of the service in the appropriate grade applicable to him under Schedule-1.
49. So far applicability of the judgment rendered in the case of S.K. Md. Amir Ansari Vs. State of Bihar Bihar [(1973) BLJR 223] is concerned submission has been made that it is not having binding precedence so far its observation with regard to interpretation of Rule 8 of 1939 Class I Rules is concerned for the reason that the observation and reference to the interpretation of Rule 8 as it originally stood in the Division Bench Judgment of the Hon'ble Patna High Court is an obiter dictum or a remark made or opinion expressed by the Page | 41 2026:JHHC:11185-DB Hon'ble Court in its decision upon a cause by the way i.e. incidentally and collaterally and not directly upon the issue before the Hon'ble Court. It has been submitted that it is well settled principle of law that only the ratio decidendi of a case is a binding precedent, as such the judgment rendered in the case of S.K. Md. Amir Ansari Vs. State of Bihar (supra) is not applicable in the case at hand.
50. Learned senior counsel for the petitioners has further submitted that promotion has already been granted to the petitioners on consideration of the fact that operation of Rules, 2016 has already been stayed in W.P. (S) 3027 of 2016, as such authority was granted liberty to consider the entitlement of the petitioner apply Rules, 1939, as would be evident from order dated 4 th September, 2018 passed by the Co-ordinate Bench of this Court in W.P.(S) No. 654 of 2018 and basing upon the applicability of Rules, 1939, particularly Rule 8 thereof, the petitioners have been considered eligible to be inducted in Class I Engineering Service and as such the decision taken by the State cannot be said to suffer from error and for the aforesaid reason, the prayer has also been made for withdrawal of the writ petitions.
51. Learned senior counsel has further submitted that the petitioners are having diploma holder and as such in Page | 42 2026:JHHC:11185-DB view of provision of Rule 8 of Rules, 1939 they are eligible for holding the Class I post. It has been contended that Rule, 1939 consists of two parts. Part I contains recruitment/promotion to the Class I Engineering Service whereas part II pertains to recruitment in Class II Engineering Service. The petitioners since have been inducted in service under Subordinate Engineering Service and subsequent thereto he has been promoted to the post of Assistant Engineer [class II], hence, by virtue of the aforesaid promotion they are entitled to be promoted by bringing them to the Cadre of Class I Engineering Service.
52. Further claim has been made for promotion on the basis of promotions granted to juniors, without considering the case of the petitioners, as required under Rule 11 of Class II Rules and Rule 17 of the Class I Rules. Submission has been made that two sets of juniors have been appointed and have enjoyed the fruits of promotions. The first set of diploma holder Junior Engineers, who were junior to the petitioners, having been appointed after the appointment of petitioners on these posts, details of which have been mentioned in part B of Annexure 17 to the writ petition. It has been submitted that they have been granted promotions to the post of Assistant Engineer; Executive Engineer and Page | 43 2026:JHHC:11185-DB Superintendent Engineer even though their qualification is diploma in engineering from an Institute i.e., Government Polytechnic, as that of petitioners. The second set of juniors are degree hold junior engineer, who were juniors to petitioners have been appointed after the petitioners and have been granted promotion to the post of Assistant Engineer, Executive Engineer and Superintendent Engineers from the due date but the petitioners have been precluded from getting the fruits of promotion.
53. Learned senior counsel for the petitioners, based upon the aforesaid ground, while defending the decision so taken by the State in pursuance to order dated 4th September, 2018 passed by the Co-ordinate Bench of this Court in W.P.(S) No. 654 of 2018 granting promotion to the post of Assistant Engineer, has submitted that prayer so made in these writ petitions is fit to be allowed by upholding the decision taken by the State authorities granting promotion in favour of writ petitioners to the post of Assistant Engineer and pursuant they are entitled to get consequential promotion and since now the petitioners are now retired as such they are entitled to consequential monetary benefits.
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54. Mr. A.K. Sahani, learned counsel for the petitioner appearing in W.P.(S) No. 8 of 2018 has adopted the argument advanced by learned senior counsel for the petitioner in W.P. No. 654 of 2018 and W.P.(S) No. 2189 of 2018 and in addition thereto, it has been submitted that since the writ petitioners of W.P.(S) No. 654 of 2018 and W.P.(S) No. 2189 of 2018 have been granted promotion to the post of Assistant Engineer, as such the petitioners in W.P. (S) No. 8 of 2018 are also eligible for promotion to the higher posts, as per the applicability of Rules, 1939.
Submission on behalf of respondent no. 6 and 7:
55. Per contra, Mr. Krishna Murari, learned counsel appearing for JESA-respondent nos. 6 and 7 has submitted that promotion which has been granted to the petitioners in W.P. (S) No. 654 of 2018 and W.P.(S) No. 2189 of 2018 by bringing him to Class I Engineering Service and the claim which has been made by the petitioner in W.P.(S) No. 8 of 2018 is not fit to be granted due to the reason that the writ petitioners are not eligible to hold the post(s) either the Class II Engineering Service or Class I Engineering Service due to lack of educational qualification of having diploma from 'Indian Engineering College' as available in Rule 8 of Rules,1939.
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56. It has been contended that the petitioners is only having the Cadre of Subordinate Engineering Service and as such they cannot be said to under the Cadre of Class II Engineering Service and as such they are not entitled for promotion of Class I Engineering Service.
57. It has been submitted that Co-ordinate Bench while passing order dated 4th September, 2018 has simply observed that consideration of the cases of the writ petitioners, in the light of the fact that during pendency of writ petitions, stay of Rule 2016 has been ordered in W.P.(S) No. 3027 of 2016, but without taking into consideration the eligibility part, which was lacking to have with the writ petitioners of present writ petitions, they have been granted promotion to the post of Assistant Engineers.
58. Learned counsel for the respondent further submitted that the judgment rendered in the case of A. S. Parmar Vs. State of Haryana (supra) is not at all applicable in the case at hand, as under paragraph 8 of the said judgment it has been mentioned that under Rule 6 (b) of the Punjab & Haryana Class-I Engineer Rules, the experience of eight years working as Assistant Engineer (Class-II) has been statutorily recognized as alternative qualification to that of the Degree by virtue of legislative indent, which is absent in Rule-8 of the Page | 46 2026:JHHC:11185-DB Bihar/Jharkhand Class-I Rule of 1939, nor such legislative indent can be introduced by Judicial Fiat.
59. The learned counsel for the respondent no. 6 and 7 has relied upon the judgment rendered in the case of S.K. Md. Amir Ansari Vs. State of Bihar [(1973) BLJR 223] in order to strengthen his argument.
60. Learned counsel for the State has submitted that notional promotion has been granted in favour of petitioners and as of now new Rules, 2025 has come and as such cases of the petitioners is required to be considered in view of applicability of new Rule, 2025.
61. Further submission has been made that the petitioners have now retired and now otherwise also no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even borne in the cadre, particularly when this would adversely affect the direct recruits who have been validly in the meantime.
Submission on behalf of respondent-State
62. Learned Advocate General appearing for the State, assisted by Mr. Shray Mishra, AC to AG has submitted that as per the provision laid down in relevant Rules, qualification for promotion to the post of Executive Engineers degree in engineering is essential, which the Page | 47 2026:JHHC:11185-DB petitioners are lacking since they are the diploma holders. However, they have been extended the benefit of financial up-gradation by granting ACP/MACP, as applicable to them and as of now they have retired way back in the year 2018/2019 itself.
63. It has further been submitted that during pendency of the writ petitions, the State has come out with the new rules for recruitment, promotion etc. of the engineers in the name and style of Jharkhand Engineering Services Rules, 2025. Therefore, submission has been made the petitioners are not entitled for the relief(s), as sought for and the writ petitions are liable to be dismissed.
Analysis:
64. Heard learned counsel for the parties and gone through the pleadings available on record as also the counter affidavits, supplementary affidavits and Interlocutory Applications filed on behalf of parties.
65. The issue which requires consideration in the present matter is as to :
I.Whether the diploma holders after getting diploma from the Government Polytechnic College can be said to be eligible to have the eligibility criteria as provided under Rule 8 of the Rules, 1987, restoring Rule 8 of Rules, 1939?
Page | 48 2026:JHHC:11185-DB II.Whether the petitioners having got the diploma from the government polytechnic college can be said to be considered for either class II Engineering Service or Class I Engineering Service?
III.Whether the action of the State respondent in granting promotion to writ petitioner of W.P. (S) No. 654 of 2018 and W.P. (S) No. 2189 of 2018, in pursuance to interim order dated 4th September, 2018 is said to be made absolute which has been granted without taking into consideration the eligibility criteria as provided under Rule 8 of Rules, 1939 restoring eligibility as available under Rule, 1939?
66. Since all the issues are identical and are inter- linked up, as such they are being taken up together.
67. This Court before delving into the aforesaid issues deems it fit and proper to refer the prayer in short as also the factual aspect.
68. The petitioners have mainly prayed for quashing the notification no. 01/Misc-10/13-Road Construction- 2376(S) dated the 12th April 2016 issued by the Road Construction Department, Government of Jharkhand revival of Bihar Engineering Class-I Service Rules, 1939 in the matter of considering higher promotions with all consequential benefits to the petitioner with retrospective effect as has already been granted to immediate juniors. Further prayer for declaration that the impugned rules contained in Notification no. 2376(S) Page | 49 2026:JHHC:11185-DB dated 12th April 2016 published in the official Gazette on 3rd May, 2016 has no applicability to the case of the petitioners to the extent that the petitioners' promotion and other service conditions will not be governed by the impugned Rules and further that it does not affect the rights vested in the petitioner to be promoted to the post of Assistant Engineer with effect from 27.6.1987; Executive Engineer with effect from 23.11.2009 and Superintending Engineer with effect from 3.2.2016 when the juniors to the petitioner [in WPS No. 654 of 2018] have been granted promotion to the said posts. Further direction has been sought for commanding upon the respondents to shift back the date of promotion of the petitioner from 03.05.2013 to 27.06.1987 in the rank/post of Assistant Engineer with all consequential benefits, as the Juniors to the petitioner being 13 daily wages Junior Engineers have been treated to be Assistant Engineer (Promotee) on and from 27.06.1987 have been placed in the seniority list dated 5.5.2015. Further direction upon the respondents to give promotion to the petitioner to the next higher rank (post) of Executive Engineer with all consequential benefits from 23.11.2009, the date from which said Juniors to the petitioner have been considered and subsequently promoted. As also direction upon the respondents to Page | 50 2026:JHHC:11185-DB rearrange the inter-se-seniority list dated 05.05.2015 of the Assistant Engineers under control of Road Construction Department, Government of Jharkhand.
69. The factual aspect involved in the present case, in particular the first case i.e., W.P. (S) No. 654 of 2018, is that the Petitioner was issued letter of appointment dated 10.02.1983 from combined select list against common advertisement by the Road Construction Department of the then Government of Bihar and was appointed on the post of Junior Engineer (Civil), Road Construction Department on ad-hoc basis.
70. The Road Construction Department, Government of Bihar vide an office order dated 12.03.1998, decided the services of 225 Junior Engineers including the Petitioner in the initial entry grade post of Junior Engineer to be made permanent.
71. The petitioner, after completion of required years of regular service was granted ACP/MACP. Upon creation of the State of Jharkhand, the petitioner was allocated Jharkhand cadre with effect from 15.11.2000. The petitioner was granted regular promotion to the post of Assistant Engineer in Road Construction Department, Government of Jharkhand on and from 03.05.2013.
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72. It is further case of the petitioner that although the petitioner was promoted to the post of Assistant Engineer but the department did not give effect to the promotion from its due date as notional date when he became eligible to be considered for promotion just after rendering 5 years of service (i.e. from 09.12.1987) in the entry grade post of Junior Engineer (Civil) as per the Central Service Conditions adopted in the Central Public Works Department Rules.
73. The Petitioners are said to be Diploma Holders in Civil Engineering from Government Polytechnics of the State of Bihar, which Diploma is said to be recognized by All India Council for Technical Education.
74. The petitioners having been appointed as Junior Engineers became entitled for promotion to the higher posts of Assistant Engineer, Executive Engineer and Superintending Engineer from their due dates falling on 9.12.1990, 9.12.1998 and 9.12.2005 respectively.
75. The State vide Notification No. 2376(S) dated 12.4.2016, promulgated the Jharkhand Engineering Service Rules, 2016 w.e.f. 3.5.2016. As per Rule 7 read with Schedule II thereto, Assistant Engineers having an engineering degree from a recognized University or Institute such as AMIE alone are eligible to be promoted to the posts of Executive Engineer and above whereas Page | 52 2026:JHHC:11185-DB under the Bihar Engineering Service Class 1 Rules such Assistant Engineers (promoted from Junior Engineer) having a diploma in engineering from an Institute were also eligible to be promoted to the post of Executive Engineer and above. The said new 2016 Rules changed the service conditions of the petitioners to their detriment which could not have been so done by the State without obtaining prior approval of the Central Government under Sections 72 and 73 of the Bihar Re- organisation Act, 2000, which making the said new 2016 Rules ultra vires the powers of the State insofar as Petitioners are concerned being in violation of the said 2000 Act.
76. It requires to refer herein that in W.P.(S) No. 654 of 2018, the Co-ordinate Bench of this Court has passed order on 4th September, 2018 on the Interlocutory Application being I.A. No. 6171 of 2018, wherein the Co- ordinate Bench, taking note of the fact that Jharkhand Engineering Service Recruitment Rules, 2016 [hereinafter referred to as 'Rules, 2016'] has already been stayed vide order dated 17th August, 2017 in W.P. (S) No.3027 of 2016 and other batch matters, as such liberty was granted to the authorities to consider the case of the writ petitioner for entitlement for promotion applying the 1939 Rules and should bring to notice his Page | 53 2026:JHHC:11185-DB position on the next date of hearing. However, it was made clear that the Court is not passing of any further order on implementation of 1939 Rules.
77. On 17th October, 2025, learned senior counsel for the petitioners in W.P. (S) No. 654 of 2018 ad W.P.(S) No. 2189 of 2018 appeared and made oral submission to withdraw these writ petitions on the ground that the decision has been taken by the Road Construction of the State Government vide resolution dated 09.10.2024 with respect to the petitioners in W.P. (S) No. 654 of 2018 and W.P. (S) No. 2189 of 2018. The learned counsel appearing for respondent no. 6 and 7 opposed to such prayer on the ground that still the issue is to be decided by this Court and during pendency of the lis such decision has been taken.
78. This Court, therefore, directed the Principal Secretary of the Department concerned to file affidavit as to whether before consideration of these cases i.e., the case of petitioners in W.P. (S) No. 654 of 2018 and W.P. (S) No. 2189 of 2018, the case of other identical persons have been referred before the Departmental Promotion Committee for its consideration or not and if not reason is to be explained.
79. Pursuant thereto, affidavit has been filed by the respondent-State, taking the stand that the State only in Page | 54 2026:JHHC:11185-DB order to restrict the matter of promotion to two persons, since they have been representing for redressal of their grievance for retrospective promotion, such order of promotion has been granted and that is the reason in order to restrict the said decision to two petitioners, the word has been used that this order will not be treated to be precedence.
80. When the matter was heard on 23rd March, 2026 besides arguing the matter on merit, learned counsel for the respondent no. 6-7 [JESA] have pressed one Interlocutory Application being I.A. No. 11333 of 2024, which was filed seeking recall of order dated 04.09.2018. Accordingly, the main matters and the Interlocutory Applications on Board have been heard together.
81. On the aforesaid factual background, the first limb of argument has been advanced by learned senior counsel for the petitioners that the petitioners are the 'Diploma Holders in Civil Engineering from Government Polytechnics of the State of Bihar', which Diploma is recognized by All India Council for Technical Education, as such the petitioners having been appointed as Junior Engineer became entitled for promotion to the higher posts of Assistant Engineer, Executive Engineer and Superintending Engineer from the due date.
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82. In this regard, much emphasis has been laid down on Rule 11 of the Bihar Engineering Service Rules Class II Rules, 1939 and Rule 17 of the Bihar Engineering Service Class I Rules, 1939 and submission has been made though the petitioners ought to have been granted promotion from their due date, however, some juniors to them have been granted such promotion in utter violation of Article 14 and 16 of the Constitution of India.
83. Further submission has been made by learned senior counsel for the petitioners that on conjoint reading of three rules i.e., Bihar Subordinate Engineering Service Rules, 1939; Bihar Engineering Service Class II Rules, 1939 and Bihar Engineering Service Class I Rules, 1939, it would reveal that for members of Subordinate Engineering Service, holding their posts on permanent basis though they are excluded from direct appointment to Class II service, but they have separate and independent mode of entry into Class II service which is by way of promotion under Part III of the Rules and Rules 11 to 13 read with Rule 1(ii) and the second part of Note to Rule 4 governing the same are not made subject to qualifications mentioned in Rule 4 relating to direct appointment.
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84. In support of his argument, learned senior counsel for the petitioner has relied upon the judgment rendered in the case of A. S. Parmar Vs. State of Haryana (supra).
85. While, on the other hand, learned counsel for the respondent no. 6 and 7, the contesting respondents, has emphatically submitted that Rule 8 of Rules, 1939 explicitly provides that 'No person shall be appointment to the Service unless he holds a degree or diploma from an Indian Engineering College or is an Associate Member of the Institution of Engineers (India) or holds a degree from one of the Universities in the United Kingdom enumerated in the Annexure to these Rules, or has passed the examination mentioned therein' and admittedly, the petitioners are not having such degree rather they have diploma from State Polytechnic Institute, as such they are not entitled to be inducted in Class I Engineering Service.
86. Referring to judgment rendered in the case, S.K. Md. Amir Ansari Vs. State of Bihar (supra) submission has been made that the Court after thorough discussion of the issue and Rules, 1939 in particular Rule 8 of Rules, 1939 held that 'Polytechnic Three years Diploma Holders are not eligible for promotion to Class I Cadre of Executive Engineer' as Page | 57 2026:JHHC:11185-DB they have not been taught the required subjects and experimental engineering course to have the efficiency required for discharging the high level duty attached with Class I posts.
87. It is further submitted that the petitioners have joined the Cadre of Subordinate Engineering Service and as such they cannot be said to be under the Cadre of Class II Engineering Service and thereby they are not entitled for promotion of Class I Engineering Service.
88. So far the order passed by the Co-ordinate Bench dated 4th September, 2018 is concerned, submission has been made that therein the Court has simply observed that consideration of the cases of the writ petitioners, in the light of the fact that during pendency of writ petitions, stay of Rule 2016 has been ordered in W.P.(S) No. 3027 of 2016, but without taking into consideration the eligibility part, which was lacking to have with the writ petitioners of present writ petitions, they have been granted promotion to the post of Assistant Engineers.
89. Learned counsel for the respondent further submitted that so far law laid in the case of A. S. Parmar Vs. State of Haryana (supra) is concerned it is not at all applicable in the case at hand, as under
paragraph 8 of the said judgment it has been mention that under Rule 6 (b) of the Punjab & Haryana Class-I Page | 58 2026:JHHC:11185-DB Engineer Rules, the experience of eight years working as Assistant Engineer (Class-II) has been statutorily recognized as alternative qualification to that of the Degree by virtue of legislative indent, which is absent in Rule-8 of the Bihar/Jharkhand Class-I Rule of 1939, nor such legislative indent can be introduced by Judicial Fiat.
90. This Court, in the backdrop of aforesaid facts and arguments advanced on their behalf and case, laws deem it appropriate to proceed first to appreciate the relevant rules, which are necessary to refer herein for the purpose of consideration of the lis.
91. The Bihar Public Works Department Code [Volume II] contains Appendix I, wherein Rules for the Regulation of Recruitment to and the Conditions of Service, Pay, Allowances and Pension of the Bihar Engineering Service, Class I for P W. D. (B. & R.) and Irrigation Department which is a provincial service constituted for the purpose of gradually replacing the Indian Service of Engineers, has been dealt with. The aforesaid Appendix mainly contains (i).'Bihar Engineering Service Class I Rules, 1939'; (ii).'Bihar Engineering Service Class II‟ and
(iii).„Bihar Subordinate Engineering Service‟, besides other rules.
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92. Under Bihar Engineering Service Class I Rules, 1939', the Rule 2(e) contains definition of 'Promoted officers', which means an officer promoted to the Service from the Bihar Engineering Service, Class II, either substantively or on an officiating basis'. For ready reference, the same is quoted as under:
2.Definitions.
(e). Promoted officers', means an officer promoted to the Service from the Bihar Engineering Service, Class II, either substantively or on an officiating basis‟
93. Rule 3 of Bihar Engineering Service Class I Rules, 1939', deals with the strength of cadre from Executive Engineers to Chief Engineer. For ready reference, the same is quoted as under only to show the hierarchy of posts:
"3.Strength of cadre.-The sanctioned strength of the service shall be as follows.-
Permanent Temporary
Chief Engineer 1 ...
Deputy Chief Engineer .. 1
Superintending Engineer 4 6
Executive Engineers 21 17
including Under-Secretary
Total.. 26 24
94. Part III thereof provides the source of recruitment which shall be made by (i) direct recruitment and (ii).by promotion from the Bihar Engineering Service, Class II.
Page | 60 2026:JHHC:11185-DB For ready reference, Part III thereof, which provides mode of recruitment is referred as under:
Part III - Recruitment
4. Sources of recruitment.
- Recruitment to the Service shall be made-
(i)by direct recruitment; and
(ii)by promotion from the Bihar Engineering Service, Class II. Not less than one-third of the total number of superior posts shall be filled by promotion, provided that when no officer in the service who is fit to hold charge of a division is available, the proportion of superior posts filled by promotion may temporarily exceed one-third of the total number of superior posts :
Provided further that the operation of this rule may be held in abeyance, if necessary, by order of the Governor for such time as he thinks fit, with a view to make outside recruitment of men of properly graded ages and experience to make up the strength of the Service in the initial stage.
5.The Governor shall decide the number of vacancies to be filled by direct recruitment and by promotion whenever vacancies occur.
95. Qualification has been provided under Part IV, as per which in addition to the other eligibility criteria, the eligibility criteria is as between two or more candidates of the class referred to in proviso (i) who are graduates of Indian Engineering Colleges, preference shall be given to candidates who are graduates of the Bihar College of Engineering. For ready reference, part IV thereof Rule 6, is quoted as under:
6.Nationality and domiciles-- No person shall be appointed to the Service unless he is-
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(a)a citizen of the Indian Union;(b)of good character;
Provided that as between two or more candidates of Indian domicile-
(i)preference shall be given to candidates who are natives of the State of Bihar or whose parents are permanently domiciled therein according to such definition of domicile as may be laid down by the Governor from time to time ;(ii)as between two or more candidates of the class referred to in proviso (i) who are graduates of Indian Engineering Colleges, preference shall be given to candidates who are graduates of the Bihar College of Engineering;
(iii)if a candidate claims to be eligible by domicile, he shall produce a certificate of domicile in Bihar from the District Officer of the district in which he claims to be domiciled and shall attach it to his application.
96. Rule 7 of Bihar Engineering Service Class I Rules, 1939 provides age, in which prescribing upper and rules of relaxation of age of candidates, a note has been given, wherein it has been provided that persons who hold posts in Government service in a temporary or officiating capacity on probation are eligible to apply for direct appointment, provided that they are within the age limits prescribed in this Rule. Persons who have been confirmed in Government service are not eligible except that members of the Bihar Engineering Service, Class II are eligible for appointment by promotion in accordance with Rules 17 and 18 of those Rules.
"7Age.
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- A candidate for direct recruitment must be under 27 and over 25 years of age on the 1st day of August of the year in which the applications are invited:
Provided that the Governor may relax the age limits in the case of candidate possessing special qualifications or experience :Provided further that in the case of candidates belonging to the scheduled castes and the backward tribes, the upper age limit shall be 30 years.
Explanation. - For the purposes of this Rule and Rule 15-
(i)"Scheduled castes" shall have the same meaning as in the Constitution of India;
(ii)"Backward tribes" shall have the same meaning as in the Constitution of India Note. - Persons who hold posts in Government service in a temporary or officiating capacity on probation are eligible to apply for direct appointment, provided that they are within the age limits prescribed in this Rule.
Persons who have been confirmed in Government service are not eligible except that members of the Bihar Engineering Service, Class II are eligible for appointment by promotion in accordance with Rules 17 and 18 of those Rules.
97. Rule 8 contains the technical qualification, over which much emphasis has been laid down, which says that no person shall be appointment to the Service unless he holds a degree or diploma from an Indian Engineering College or is an Associate Member of the Institution of Engineers (India) or holds a degree from one of the Universities in the United Kingdom enumerated in the Annexure to these Rules, or has passed the examination mentioned therein. For ready Page | 63 2026:JHHC:11185-DB reference, Rule 8 of the Rules, 1939 which says about technical qualifications is quoted as under:
Technical qualifications.
- No person shall be appointment to the Service unless he holds a degree or diploma from an Indian Engineering College or is an Associate Member of the Institution of Engineers (India) or holds a degree from one of the Universities in the United Kingdom enumerated in the Annexure to these Rules, or has passed the examination mentioned therein.
98. It is evident from the provision as contained in Rule 8 thereof that no person shall be appointment to the Service unless he holds a degree or diploma from an Indian Engineering College or is an Associate Member of the Institution of Engineers (India) or holds a degree from one of the Universities in the United Kingdom enumerated in the Annexure to these Rules, or has passed the examination mentioned therein.
99. It is, thus, explicitly evident that diploma holder is also accepted to be the eligibility qualification but subject to the condition that the diploma is to be obtained from an Indian Engineering College.
100. Part V of the Bihar Engineering Service Class I Rules, 1939 deals with procedure for direct recruitment, which is to be conducted by notifying the advertisement. The mode of recruitment since is by two modes i.e., Page | 64 2026:JHHC:11185-DB direct appointment and by way of promotion, and as such the procedure of recruitment by promotion has also been provided under Rule 17 wherein it has been provided that the Chief Engineers will nominate for promotion of, officers from the Bihar Engineering Service, Class II, the nomination will be made by seniority and merit combined but more importance will be attached to merit. For ready reference, the 'procedure for direct recruitment' and 'procedure for recruitment by promotion', as provided under the rule is quoted as under:
Part V - Procedure for Direct Recruitment
9. Procedure for direct recruitment.
- The Commission shall advertise, in such manner as they think fit, the number of vacancies in the Service to be filled by direct recruitment and shall invite applications from candidates eligible for appointment to the Service.
10.
(a)Every candidate shall submit his application in his own hand- writing in the prescribed form to the Secretary to the Commission so as to reach the Secretary not later than on such date as may be notified by the Commission in this behalf in each year.
Note. - The prescribed form and a copy of these Rules are obtainable from the Secretary to the Commission.
(b)The application shall be accompanied by a Treasury Challan of Rs. 10 as application fee, which will in no circumstances be refunded. When the fee has been paid on a first application no fee will be payable on a subsequent application for the Service.
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(c)With his application a candidate must submit-
(i)evidence that he holds one of the educational qualifications referred to in Rule 8 :(ii)certificates of character and conduct from the heads of all the colleges at which he has studied since he passed the Matriculation Examination;(iii)evidence, in the form of an acknowledgement from the District Officer of the district in which he ordinarily resides or in which he claims to be domiciled, that he has, not later than fourteen days before the date fixed under Rule 10(2), requested that officer to report to the Commission before the said date whether his character and antecedents are such as to render him suitable for appointment to the Service; Note. - A candidate shall, when requesting the District Officer to furnish a report to the Commission on his character and antecedents under sub-clause (iii) of clause
(c), furnish as reference the names of two persons who know him in private life and are not relatives. Such references should not include College professors or principals unless they know the candidate at his home. A candidate must not file written testimonials.
(iv)evidence of age, which shall ordinarily be the original Matriculation certificate or its equivalent in original; and
(v)if he claims to be eligible for appointment under proviso
(iii) of Rule 6, a certificate of domicile granted by the District Officer of the district in which he claims to be domiciled;
(vi)a certificate of health and physical fitness from a registered medical practitioner in the prescribed form. Note. - The certificates and other documents required to be sent by a candidate shall be submitted in original. If any certificate or other document required cannot for any reason be submitted in original, a true copy of it may be sent, but in that case the copy should bear a certificate from a gazetted officer stating (a) that he has been the original and that the copy is a true copy and (b) the reasons why the original cannot be sent with the application.
Page | 66 2026:JHHC:11185-DB 17Procedure for recruitment by promotion.
(a)When the Governor has decided that any vacancy or vacancies in the service shall be filled by promotion, the Chief Engineers will nominate for promotion of, officers from the Bihar Engineering Service, Class II, the nomination will be made by seniority and merit combined but more importance will be attached to merit. The officers nominated by the Chief Engineer shall be arranged in order of preference and the number should ordinarily be 50 per cent in excess of the number of vacancies to be filled.
(b)The Chief Engineer shall submit the list of such candidates to the Governor who will direct such list to be sent to the Commission with all relevant papers including those for any officers whose supersession is proposed. After examination of the papers, the Commission shall submit their recommendations to the Governor.
18.The final selection of officers to be promoted shall be made by the Governor after considering the recommendations made by the Commission under Rule 17(b) and the officers so selected shall be promoted to superior posts.
101. Chapter VI deals with 'training and probation', which contains the provision as under Rule 19 which says that Officers recruited directly to the Service shall be on probation for two years and officers promoted from the Bihar Engineering Service, Class II, shall be on probation for one year. This Provision clarifies the provision of the fulfillment of the post by way of promotion from the Class II Engineering Service. For Page | 67 2026:JHHC:11185-DB ready reference, Part VI of the Rules, 1939 is quoted as under:
Part VI - Training and Probation
19. Period of Probation.
- Officers recruited directly to the Service shall be on probation for two years and officers promoted from the Bihar Engineering Service, Class II, shall be on probation for one year. At any time during the probationary period the Governor may dispense with the service of an officer recruited directly after giving him one month's notice and may revert a promoted officer to his substantive appointment in the Bihar Engineering Service, Class II.(ii)An officer whose services are dispensed with or who is reverted under clause (i) shall not be entitled to any compensation.
20. Confirmation.
- (i) A probationer shall be confirmed in his appointment provided there is a permanent vacancy; and(a)he has completed the prescribed period of probation;(b)he has passed the prescribed professional and departmental examination:Provided that nothing in this clause shall apply to promoted officer;(c)the Governor is satisfied that he is fit for confirmation.(ii)All confirmations under this Rule will be notified in the Bihar Gazette.
102. So far 'Bihar Engineering Service Class II' is concerned, under Rule 1, it has been stated that the under-Class II services, the recruitment is by two means i.e., by direct recruitment in accordance with the rules in Part II or by way of promotion as described under Part III.
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103. For ready reference, Rule 1, as also relevant portion of Part II and Part III of the 'Bihar Engineering Service Class II' is quoted as under:
Rule 1.
The Service shall be recruited-
(i).by direct recruitment in accordance with the rules in Part II, or
(ii).by the promotion or transfer of officers already in Government service, permanent or temporary, in accordance with the rules in Part III.
PART II :
Rule 3.
Except under the special orders of the Governor, a candidate for appointment to the service must be a citizen of the Indian Union.
Rule 4.
A candidate must-
(a) be of an age not below twenty-three years and not exceeding twenty-five years on the first day of August in the year in which applications are invited:
Provided that the State Government may, in special cases, relax the age-limits:
Provided further that in the case of candidates belonging to the Scheduled Castes and Scheduled Tribes, the upper age-limit shall be twenty-eight years.
Explanation. -For the purpose of this rule, 'Scheduled Castes' and Scheduled Tribes' shall have the same meaning as in the Constitution of India.
(b) be of good character;
(c) be of sound health, good physique and active habits and free from organic defects or bodily infirmity;
and
(d) (i) hold a degree in Civil Engineering from an Indian University or a diploma in Civil Engineering College; or
(ii) be an Associate Member of the Institution of Engineers, India, or have passed Sections 'A' and 'B' of the Associate Membership Examination of the Institution of Engineers (India) or possess any other educational qualifications recognized by the Institution of Engineers (India) as being equivalent to pass in Page | 69 2026:JHHC:11185-DB Sections 'A' and 'B' of the Associate Membership Examination, or
(iii) hold a University degree or a diploma from a Civil Engineering College in the United Kingdom or be an Associate Member of the Institution of Civil Engineers.
Note.-Persons who hold posts in Government service in a temporary or officiating capacity or on probation are eligible to apply for direct appointment subject to the provisions of this rule. Persons who have been confirmed in Government service are not so eligible except that-
(i). members of the Sub-ordinate Engineering Service and (ii) members of other services, possessing qualifications specified in clause (d) are eligible for appointment by promotion or by transfer in accordance with the procedure laid down in Part III of these rules.
PART III: PROMOTION OF OFFICERS ALREADY IN GOVERNMENT SERVICE Rule 11.
(a) The Chief Engineer, shall nominate for appointment to the Service such number of Officers not exceeding one and a half times the number of vacancies to be filled as may be fixed in each year by the Governor. The Officers nominated by the Chief Engineer will be arranged in order of preference.
(b) The Chief Engineer shall send all papers relating to the candidates nominated by him direct to the Commission together with relevant papers of any officer whose super session is proposed and shall at the same time submit list of such candidates to the Governor.
104. Thus, it is evident that the post under the Class II Engineering Service is to be filled up by direct recruitment in accordance with the Rules in Part II or by promotion, or transfer of officer who is already in government service, permanent or temporary, as provided in part III.
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105. The direct recruitment has been provided under Part II and the eligibility criteria so far as educational qualification is concerned has been provided under Rule 4, under Explanation d, as per which a candidate must hold a degree in Civil Engineering from an Indian University or diploma in Civil Engineering College; or a candidate must be an Associate Member of the Institution of Engineers, India, or have passed Sections 'A' and 'B' of the Associate Membership Examination of the Institution of Engineers (India) or possess any other educational qualifications recognized by the Institution of Engineers (India) as being equivalent to pass in Sections 'A' and 'B' of the Associate Membership Examination, or a candidate must hold a University degree or a diploma from a Civil Engineering College in the United Kingdom or be an Associate Member of the Institution of Civil Engineers.
106. In the note attached with Rule 4, it has been mentioned that the persons who hold posts in Government service in a temporary or officiating capacity or on probation are eligible to apply for direct appointment subject to the provisions of this rule.
107. Persons who have been confirmed in Government service are not so eligible except that- (i).members of the Sub-ordinate Engineering Service and; (ii) members of Page | 71 2026:JHHC:11185-DB other services, possessing qualifications specified in clause (d) are eligible for appointment by promotion or by transfer in accordance with the procedure laid down in Part III of these rules.
108. From the discussion of above rules under the Bihar Engineering Service Rules Class II, it is evident that for promotion to Class II from Subordinate Engineering Service, a candidate must possess the qualifications specified in clause (d). At the cost of repetition, it requires to mention that it is evident that under Rule 8 i.e., the technical qualification that a candidate must hold a degree in Civil Engineering from an Indian University or a diploma in Civil Engineering College; or a candidate must be an Associate Member of the Institution of Engineers, India, or have passed Sections 'A' and 'B' of the Associate Membership Examination of the Institution of Engineers (India) or possess any other educational qualifications recognized by the Institution of Engineers (India) as being equivalent to pass in Sections 'A' and 'B' of the Associate Membership Examination, or a candidate must hold a University degree or a diploma from a Civil Engineering College in the United Kingdom or be an Associate Member of the Institution of Civil Engineers. Meaning thereby, a person working in Bihar Subordinate Page | 72 2026:JHHC:11185-DB Engineering Service can be promoted to Indian Engineering Service Class II subject to condition of fulfilment as under Clause 4 (d). But, herein admittedly, in the case at hand, the petitioner is possessing diploma from State Polytechnic College and not from the institutions as mentioned under Rule 4(d).
109. Now, coming to Appendix II, wherein the rules regarding appointments, promotion, etc., applicable to the Bihar Subordinate Engineering Service has been mentioned.
110. Rule 1 thereof prescribes that all permanent appointments to the Bihar Subordinate Engineering Service either by absorption of temporary or work- charged Overseers and Estimators, or by direct recruitment, will be made by the Chief Engineer provided that, in the case of direct recruitment (permanent or temporary) appointment will be made on the advice of the committee of senior officers constituted for the purpose. The committee will consist of three members including the Chief Engineer who will be the chairman of the committee. The other two members will be nominated by him with the approval of Government in the Public Works Department from time to time.
111. The qualification for such candidate has explicitly been mentioned as under Rule 2, which says that a Page | 73 2026:JHHC:11185-DB certificate or diploma in the Subordinate Engineering in the respective branches of Engineering from any institution recognised by the State Government for this purpose will be the minimum technical qualifications required.
112. For ready reference, Rule 1 and 2 thereof, is quoted as under:
"APPOINTMENT "1. All permanent appointments to the Bihar Subordinate Engineering Service either by absorption of temporary or work-charged Overseers and Estimators, or by direct recruitment, will be made by the Chief Engineer provided that, in the case of direct recruitment (permanent or temporary) appointment will be made on the advice of the committee of senior officers constituted for the purpose. The committee will consist of three members including the Chief Engineer who will be the chairman of the committee. The other two members will be nominated by him with the approval of Government in the Public Works Department from time to time.
QUALIFICATIONS REQUIRED OF CANDIDATES
2. A certificate or diploma in the Subordinate Engineering in the respective branches of Engineering from any institution recognised by the State Government for this purpose will be the minimum technical qualifications required."
113. The qualification for appointment under Bihar Subordinate Engineering Service is very specific explicit, which prescribed the minimum technical qualification to the effect that the candidate must possess a certificate or diploma in the Subordinate Engineering in Page | 74 2026:JHHC:11185-DB the respective branches of Engineering from any institution recognised by the State Government for this purpose will be the minimum technical qualifications required.
114. Furthermore, for appointment under Bihar Engineering Service Class II, two modes have been mentioned under the Statute i.e., (i). by way of direct appointment and (ii). by way of promotion. So far direct appointment is concerned at Rule 4 Explanation part at d(i), it is mentioned that a candidate must hold a degree in Civil Engineering from an Indian University or a diploma in Civil Engineering College. Further at 'Note' to Rule 4, it is mentioned that persons who have been confirmed in Government service are not so eligible except that- (i).members of the Sub-ordinate Engineering Service and (ii) members of other services, possessing qualifications specified in clause (d) are eligible for appointment by promotion or by transfer in accordance with the procedure laid down in Part III of these rules.
115. Now, comparing the 'technical qualification' of Bihar Subordinate Engineering Service, 1939 with the 'technical qualification' of Bihar Engineering Service Class I Rules, wherein at Rule 8, the 'technical qualification' has been mentioned which in unequivocal Page | 75 2026:JHHC:11185-DB term says that 'No person shall be appointment to the Service unless he holds a degree or diploma from an Indian Engineering College or is an Associate Member of the Institution of Engineers (India) or holds a degree from one of the Universities in the United Kingdom enumerated in the Annexure to these Rules, or has passed the examination mentioned therein' and admittedly, the petitioners are not having such degree rather they have diploma from State Polytechnic Institute, as such they are not entitled to be inducted in Class I Engineering Service.
116. Admittedly, herein the petitioners neither possess the qualification as under Rule 4 OR Part III [Promotion of Officers already in Government Service] of Bihar Engineering Service Class II Rules; not possess 'technical qualification' as mentioned under Rule 8 of Bihar Subordinate Engineering Class Service, 1939.
117. Since we are dealing herein with the issue of diploma certificate which the writ petitioners have possessed and as such this Court is to consider as to:
Whether the diploma certificate obtained from the State Polytechnic Institute can be considered to be the eligibility criteria for a candidate to be in Class II Engineering Service or the Class I Engineering Page | 76 2026:JHHC:11185-DB service, deviating from the Rules of recruitment and promotion etc.?
118. It is settled position of law that things are to be done strictly in accordance with law as there cannot be any deviation and if any deviation is there in the decision- making process the same will be nullity in the eye of law.
119. Reference may be made to the judgment rendered by the Hon'ble Apex Court in the case of Babu Verghese & Ors. vs. Bar Council of Kerala & Ors., reported in (1999) 3 SCC 422, wherein, it has been held at paragraphs-31 and 32 as under:
"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under:
"[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three- judge bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognized as a statutory principle of administrative law."
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120. Reference may also be made to the judgment rendered by the Hon'ble Apex Court in the case of Zuari Cement Ltd. v. Regional Director ESIC Hyderabad (in Civil Appeal No. 5138-40/2007), reported in (2015) 7 SCC 690, wherein, it has been held at paragraph-14 as under:
"14. As per the scheme of the Act, the appropriate Government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand v. Ambay Cements, it was held that :
26.... it is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way."
121. The admitted case herein is that the writ petitioners have obtained diploma from State Polytechnic Institute, which we have found from the averments made to that effect made in the writ petitions. Therefore, submission advanced on behalf of learned counsel for the petitioner that diploma from State Polytechnic Institute can well be considered for promotion to Class II and Class I Engineering Service has no leg to stand.
122. Further claim has been made for promotion on the basis of promotions granted to juniors, excluding the petitioners without considering the case of the Page | 78 2026:JHHC:11185-DB petitioners, as required under Rule 11 of Class II Rules and Rule 17 of the Class I Rules. Submission has been made that two sets of juniors have been appointed.
123. The first set of diploma holder Junior Engineers, are junior to the petitioners, has have been appointed after the appointment of petitioners on these posts, details of which have been mentioned in part B of Annexure 17 to the writ petition. It has been submitted that they have been granted promotions to the post of Assistant Engineer; Executive Engineer and Superintendent Engineer even though their qualification is diploma in engineering from an Institute i.e., Government Polytechnic, as that of petitioners.
124. The second set of juniors are degree hold junior engineer, who were juniors to petitioners have been appointed after the petitioners and have been granted promotion to the post of Assistant Engineer, Executive Engineer and Superintendent Engineers from the due date.
125. In this regard, submission has been made that such discrimination is purported to be in compliance of order dated 08.11.2011 passed in LPA No. 256 of 2011 passed by the Division Bench of this Court and judgment dated 23.04.2014 passed by Hon'ble Supreme Page | 79 2026:JHHC:11185-DB Court in the case of Civil Appeal No. 4809 of 2024 [State of Jharkhand & Ors. Vs. Kamal Prasad].
126. It is well settled principle of law that the concept of equality is a positive concept which cannot be enforced in a negative manner. The Court has to abide by the law/rules/regulations involved in the lis while coming to its logical conclusion. Therefore, the parity as claimed by the petitioners, even if it is accepted, cannot be extended to them when the law does not permit, as discussed herein above. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in State of Bihar & Ors. vs. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306 wherein at paragraph-30 it has been laid down hereunder as :-
"The concept of equality as envisaged under Art. 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits."
127. Further the Hon'ble Apex Court in the case of Basawaraj & Anr. Vs. Special Land Acquisition Officer, (2013) 14 SCC 81, has reiterated the same principle wherein at paragraph 8, it has been observed as under:
Page | 80 2026:JHHC:11185-DB "8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it 22 cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision.
Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible."
128. Likewise, the Hon'ble Apex Court in Kulwinder Pal Singh & Anr Vs. State of Punjab & Ors, (2016) 6 SCC 532 at paragraph 16 held hereunder as:
"16. The learned counsel for the appellants contended that when the other candidates were appointed in the post against dereserved category, the same benefit should also be extended to the appellants. Article 14 of the Constitution of India is not to perpetuate illegality and it does not envisage negative equalities. In State of U.P. v. Rajkumar Sharma it was held as under: " 15. Even if in some cases appointments have been made by mistake or wrongly, that does not Page | 81 2026:JHHC:11185-DB confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake."
129. Thus, the submission advanced on behalf of petitioners claiming parity did not sustain for the reason and law laid down by Hon'ble Apex Court, as referred hereinabove.
130. Learned senior counsel for the petitioners appearing in W.P.(S) No. 654 of 2018 and W.P. (S) No. 2189 of 2018 has submitted that the writ petitioners have been granted promotion to the post of Assistant Engineer in pursuance to the interim order dated 4th September, 2018 passed by this Court on the Interlocutory Application being I.A. No. 6171 of 2018 filed by the petitioners, as such after having been inducted in Class II Engineering Service, they are entitled to get promotion to Class I posts.
131. This Court perused the order dated 4th September, 2018 passed by this Court on the Interlocutory Application being I.A. No. 6171 of 2018, wherefrom it is evident that the Co-ordinate Bench, taking note of the fact that Jharkhand Engineering Service Recruitment Rules, 2016 has already been stayed vide order dated 17th August, 2017 in W.P. (S) No.3027 of 2016 and other batch matters, as such liberty was granted to the authorities to consider the case of the writ petitioner for Page | 82 2026:JHHC:11185-DB entitlement for promotion applying the 1939 Rules and should bring to our notice his position on the next date of hearing. However, it was made clear that the Court is not passing of any further order on implementation of 1939 Rules.
132. From plain reading of order dated 4th September, 2018 passed by this Court on the Interlocutory Application being I.A. No. 6171 of 2018, it is evident that this Court has granted liberty to consider the case of the petitioners on the touchstone of Rules, 1939 as Rules, 2016 was stayed by the Co-ordinate Bench.
133. Herein, as per discussions made hereinabove, the petitioners are not entitled to get promotion as per Engineering Services Class I Rules, 1939.
134. But the respondents-State, without taking into consideration the Rules in particular Rule 8 of the Rules, 1939 which speaks about technical qualification, the petitioners do not possess the requisite technical qualification for promotion to higher posts of Class I, as mentioned in the Rules, has taken decision.
135. Law is well settled that the requisite eligibility criteria to hold the post by way of promotion or appointment is the sine qua non and if the eligibility criteria is being lacking then such appointment to the Page | 83 2026:JHHC:11185-DB post by way of promotion or direct recruitment is nullity in the law.
136. In the case of Yogesh Kumar v. Govt. of NCT, Delhi, (2003) 3 SCC 548 it has been observed by the Hon'ble Apex Court that Recruitment to public services should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any. Deviation from the rules allows entry to ineligible persons and deprives many others who could have competed for the post. Relevant paragraph of the aforesaid judgment is being quoted as under:
"8.------Recruitment to public services should be held strictly in accordance with the terms of advertisement and the recruitment rules, if any. Deviation from the rules allows entry to ineligible persons and deprives many others who could have competed for the post. Merely because in the past some deviation and departure was made in considering the BEd candidates and we are told that was so done because of the paucity of TTC candidates, we cannot allow a patent illegality to continue. The recruitment authorities were well aware that candidates with qualification of TTC and BEd are available yet they chose to restrict entry for appointment only to TTC-pass candidates. It is open to the recruiting authorities to evolve a policy of recruitment and to decide the source from which the recruitment is to be made. So far as BEd qualification is concerned, in the connected appeals (CAs Nos. 1726-28 of 2001) arising from Kerala which are heard with this appeal, we have already taken the view that BEd qualification cannot be treated as a Page | 84 2026:JHHC:11185-DB qualification higher than TTC because the nature of the training imparted for grant of certificate and for degree is totally different and between them there is no parity whatsoever. It is projected before us that presently more candidates available for recruitment to primary school are from BEd category and very few from TTC category. Whether for the aforesaid reasons, BEd qualification can also be prescribed for primary teachers is a question to be considered by the authorities concerned but we cannot consider BEd candidates for the present vacancies advertised as eligible. In our view, the Division Bench of the Delhi High Court was fully justified in coming to the conclusion that BEd candidates were rightly excluded by the authorities from selection and appointment as primary teachers. We make it clear that we are not called upon to express any opinion on any BEd candidates appointed as primary teachers pursuant to advertisements in the past and our decision is confined only to the advertisement which was under
challenge before the High Court and in this appeal."
137. Thus, in view of the aforesaid, this Court is of the view that the state respondent has not properly appreciated the interim order passed by this Court dated 4th September, 2018 and even without considering the eligibility criteria of the writ petitioner, as per provision made under Rule 8 of Rules, 1939, they have been granted promotion.
138. Furthermore, it is settled principle of law that fixation of qualification for particular post is exclusive domain of the Government/employer and falls outside the judicial review and even the equivalence of qualification is not a matter of judicial review.
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139. In Delhi Subordinate Services Selection Board v. Praveen Kumar [2016 SCC OnLine SC 1549], it has been held by the Hon'ble Apex Court that it is the employer's prerogative to decide the age limit and academic suitability of candidates which they wish to employ and so long as the same are not contradictory to the academic eligibility as prescribed by the NCTE Act.
140. In the case of Chandigarh Administration through the Director Public Instructions (Colleges), Chandigarh v. Usha Kheterpal Waie and Others [(2011) 9 SCC 645], the Hon'ble Apex Court has held at paragraph 22 and 23 which read as under :-
"22. It is now well settled that it is for the rulemaking authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. The courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the authority concerned so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of the Constitution, statute and rules. (See J. Ranga Swamy v. Govt. of A.P. [(1990) 1 SCC 288 : 1990 SCC (L&S) 76] and P.U. Joshi v. Accountant General [(2003) 2 SCC 632 : 2003 SCC (L&S) 191] .) In the absence of any rules, under Article 309 or statute, the appellant had the power to appoint under its general power of administration and prescribe such eligibility criteria as it is considered to be necessary and reasonable. Therefore, it cannot be said that the prescription of PhD is unreasonable.
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23.The Tribunal and the High Court have held that in the years 1989 and 1991, the Tribunal had accepted that the earlier administrative instructions dated 20- 8-1987 which required the UT cadre employees to be considered for the post have to be followed. The fact that at that time PhD degree was not insisted upon, does not mean that for all times to come, PhD degree could not be insisted. PhD degree was made a qualification because UGC guidelines required it for direct recruitment post and the UPSC approved the same. Therefore, merely because on some earlier occasions, the posts of Principal were filled by UT cadre lecturers without PhD degree, it cannot be argued that the PhD degree cannot be prescribed subsequently."
141. Thus, the fixation of qualifications, eligibility criteria, and service conditions for a particular post lies within the exclusive domain of the employer or the government. Judicial review in these matters is limited, as courts generally do not interfere with the employer's discretion to define specialized qualifications, provided they are not arbitrary.
142. Learned senior counsel for the petitioners has laid much emphasis on the case of A. S. Parmar Vs. State of Haryana (supra) rendered by Hon'ble Supreme Court wherein, identical words used in Rule 6 of Class I Engineering Service Rules of the State of Haryana which laid down qualification for entry into Class I service under Punjab Service of Engineers, Class I, Public Works Department (Building and Roads Branch) Rules, 1960 namely "no person shall be appointed to the Page | 87 2026:JHHC:11185-DB service unless" has been dealt with. The Hon'ble Apex Court held that for ascertaining the intention of the framers: (a) it is necessary to refer to the provisions of both Class I and Class II Rules (b) whether all the clauses of the Rule are to be read cumulatively or separately and the intention has to be found from the structure of sentence and contents of different clauses and (c) had the words like "also" "in addition to what is contained in Rule 6(a)" were provided in provision regulating appointment by way of promotion then alone "no person" viz qualification for appointment to service would apply to appointment by way of promotion. Applying the above identical words under Rule 6(a) of the Rules it was held by Hon'ble Supreme Court to apply only to direct recruitment.
143. This Court in order to assess the applicability of aforesaid case, has gone through the aforesaid judgment in entirety and found therefrom that the judgment has been passed in the backdrop of the fact of the applicable rule wherein it has been provided that if educational qualification is not there then the same is to be meted out by way of experience.
144. Therefore, the judgment rendered in the case of A. S. Parmar Vs. State of Haryana (supra) is not at all applicable in the case at hand, as under paragraph 8 of Page | 88 2026:JHHC:11185-DB the said judgment it has been mentioned that under Rule 6 (b) of the Punjab & Haryana Class-I Engineer Rules, the experience of eight years working as Assistant Engineer (Class-II) has been statutorily recognized as alternative qualification to that of the Degree by virtue of legislative indent, which is absent in Rule-8 of the Bihar/Jharkhand Class-I Rule of 1939, nor such legislative indent can be introduced by Judicial Fiat. For ready reference, relevant paragraph of the judgment is quoted as under:
"6. We shall now proceed to deal with the Class I Rules. The Class I Service comprises four cadres -- Assistant Executive Engineers, Executive Engineers, Superintending Engineers and Chief Engineers (Rule 3). A "member of service" means an officer appointed substantively to a cadre post and includes (a) in the case of direct appointment an officer on probation or such an officer who having successfully completed his probation awaits appointment to a cadre post and in the case of appointment by transfer an officer who is on probation or who having successfully completed his probation awaits appointment to a cadre post provided such officer does not have a lien on a substantive post in any government department [Rule 2(12)]. "Assistant Executive Engineer" means a member of the service in the junior scale of pay [Rule 2(2)]. All others in the Class I Service are in the senior scale or in a higher scale. Rule 5 of the Class I Rules provides that therecruitment to the Class I Service shall be made by the Government in any one or more of the following methods -- (i) by direct appointment, (ii) by transfer of an officer already in the service of a State Government or of the Union or (iii) by promotion from Class II Service. All first direct appointments to the Class I Service can be only to the posts of Assistant Executive: Engineer [Rule 5(4)]. An officer promoted from the Class II Service has to be recruited to the cadre of Executive Engineers [Rule 5(5)]. The posts of Executive Engineers can be filled up by promotion of Assistant Executive Engineers also (Rule 9).
Page | 89 2026:JHHC:11185-DB "Direct appointment" means an appointment by open competition but does not include (a) an appointment by promotion and (b) an appointment by transfer of an officer already in the service of a State Government or of the Union [Rule 2(7)]. The Explanation to Rule 2(7) provides that a Class II officer who enters the Class I Service by open competitive selection shall, for the purposes of Class I Rules, be deemed to have entered the Class I Service by direct appointment. This means that a member of the Class II Service can either be recruited directly to the cadre of Assistant Executive Engineers [vide Rule 5(4)] or promoted to the cadre of Executive Engineers [vide Rule 5(5)]. Now we set out below Rule 6 of the Class I Rules which lays down the qualifications for entering the Class I Service. Rule 6 reads:
"6. Qualifications.--No person shall be appointed to the Service, unless he--
(a) possesses one of the University degrees or other qualifications prescribed in Appendix B of these rules:
Provided that Government may waive this qualification in the case of a particular officer belonging to Class II Service;
(b) in the case of an appointment by promotion from Class II Service has eight years' completed service in Class II; and has passed the professional examination of the Department as provided in Rule 15 infra;
(c) being a person to be appointed to the service by direct recruitment, obtains from the Standing Medical Board a certification of mental and physical fitness after being examined in accordance with the regulations prescribed in Appendix C and is considered by the Medical Authority to be fit in all respects for active outdoor duties;
(d) is a person with a satisfactory character and antecedents, verification in respect of which shall be arranged through appropriate Government agency except in cases where such verification may have already been made at the time of his entry into Government service;
(e) has not more than one wife living or, in the case of a woman, is not married to a person already having a wife living:
Provided that Government may, if satisfied that there are special grounds for doing so, exempt any person from the operation of this condition."
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12. Our attention is drawn by the learned counsel for the petitioners in the writ petition out of which these appeals arise to the decision in O.P. Bhatia case [ILR (1980) 1 P & H 470] in which a rule similar to Rule 6 of the Class I Rules arose for consideration. That rule is Rule 6 of the Punjab Service of Engineers, Class I, PWD (Irrigation Branch) Rules, 1964. The relevant part of Rule 6 of the said Irrigation Branch Rules reads as follows:
"6. Qualifications.--No person shall be appointed to the Service unless he--
(a) possesses one of the University degrees or other qualifications prescribed in Appendix B of these rules:
Provided that Government may waive this qualification in the case of a particular officer belonging to Class II Service;
(b) in case of an appointment by promotion from Class II Service, has completed in that class of Service, for a period of ten years from the commencement of these rules, six years' service and after that period eight years' service:
Provided that if it appears to be necessary to promote an officer in the public interest, the Government may for reasons to be recorded in writing, either generally or in any individual case reduce the period of six or eight years to such extent as it may deem proper in consultation with the Finance Department.
Explanation.--For the purposes of this clause in computing the period of six or eight years any service rendered as a Temporary Engineer shall be taken into account...."
13. The High Court held in that case that a member of the Class II Service in the Irrigation Branch of the PWD should possess a degree to be eligible to be promoted as an Executive Engineer in the Class I Service in the Irrigation Branch of the PWD. The High Court was of the view that the omission of the word "directly" which was in Rule 7 of the 1956 Rules which were replaced by the Irrigation Branch Rules of 1964 led to the inference that Rule 6(a) of the 1964 Rules was applicable both to the direct recruitment and promotions from the Class II Service. In order to understand the above reason, we have ourselves looked into the said 1956 Rules. Rule 7 of the said 1956 Rules which dealt with only appointments to the posts of Assistant Executive Engineers read as follows:
Page | 91 2026:JHHC:11185-DB "7. Qualifications for appointment.--No person shall be appointed directly to the Service unless he--
(a) possesses one of the University degrees or other qualifications prescribed in Appendix B to these rules;
(b) has, in the case of a candidate for appointment on the advice of the Commission passed such competitive examination or such other test as the Commission may prescribe for appointment to the Service; and
(c) has obtained from a Standing Medical Board in the State of Punjab, a certificate of mental and physical fitness as prescribed by the regulations in Appendix C and is considered by the Board to be fit in all respects for active outdoor duty:
Provided that in the case of officers belonging to the Class II Service the State Government may, after consultation with the Commission, waive the qualifications required by clause (a):
Provided further that other things being equal, preference will be given to a candidate who has himself worked for the cause of national independence or has rendered some outstanding social or public service."
18. It is indisputable that if the Government wishes to appoint only holders of degrees to the Class I Service, it may do so by promulgating appropriate rules. That power is beyond question and it is not, therefore, necessary to refer to those decisions which lay down that classification on the basis of educational qualifications of officers belonging to a cadre for purposes of promotion to a higher cadre is permissible. The question, however, in these cases is whether the Class I Rules as they now exist debar the promotion of an Assistant Engineer in the Class II Service who does not possess a degree to the cadre of Executive Engineers even when he satisfies the requirements of clause
(b) of Rule 6 of the Class I Rules and is selected by the Public Service Commission. Our answer is in the negative.
19. Since Rule 6(a) of the Class I Rules is not applicable to the Class II officers who are to be promoted to the Class I Service, the question whether the order of relaxation made in the case of the promotees is validly passed or not becomes immaterial. We, therefore, set aside the judgment of the High Court and dismiss the writ petition filed before the High Court. Since we have disposed of these appeals on a ground different from the ground urged before the High Court, we express no opinion on the validity of the order of relaxation.
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145. From perusal of the aforesaid Rule-6(a) of Punjab Rule it is manifest that same is exclusively applicable for direct recruitment to the post of Assistant Executive Engineer, Executive Engineer, Superintending Engineer and Chief Engineer, from amongst the person having University degrees or other qualification as prescribed in Appendix-B of the said Rule which bears the list of only Degree or qualification to the Degree courses in Engineering, whereas Rule-6 (b) is exclusively applicable for promotion from Class-II cadre to Class-I post of Executive Engineer upon completion of Eight Years' service by way of experience.
146. Thus, it is evident that since there is no such provision in Rule-8 of Bihar Engineering Services Class I Rules, 1939, which prescribes only qualification i.e. Degree or diploma in Engineering from an Indian Engineering College either by direct appointment or for appointment by way of promotion, the judgment of A.S. Pramar is totally non applicable in the present case and therefore does not supersedes the Division Bench Judgment of the Hon'ble Patna High Court in S.K. Md. Amir Ansari Vs. State of Bihar (supra).
147. This Court also gone into the judgment rendered in the case of S.K. Md. Amir Ansari Vs. State of Bihar Page | 93 2026:JHHC:11185-DB (supra), whereupon much emphasis has been laid by learned counsel for respondent nos. 6 and 7. It is evident from the said judgment that the Court after going through the entire scheme of Rules, 1939 in particular Rule 8 held that polytechnic three years diploma holders are not at all eligible for promotion to Class I Cadre. For ready reference, the relevant portion of the judgment is quoted as under:----
7. Clause (a) of Rule-6 of the Class-I Rules say that no person shall be appointed to the service unless he possesses one of the University degrees or other qualifications prescribed in Appendix 'B' of the Class-I Rules. It is further provided therein that Government may waive this qualification in the case of a particular officer belonging to the Class-II Service. Clause- (a) of Rule-6 no doubt applies to all direct recruitments. If a Class-II Officer seeks to enter the Class-I service by direct recruitment i.e. by recruitment by open competition as provided by the Explanation to Rule 2(7), he should possess a degree as provided in Rule 6 (a) unless under the proviso to Rule-6 (b) Government waives the said qualification in his case. A direct recruit has also to satisfy the condition in clause (c) of Rules which deals with the production of a medical certificate as provided therein and the condition in clause (d) of Rule-6 which provides for the verification of his character and antecedents except where such verification may have already been made at the time of his entry into Government Service. He should also not suffer from the disqualification mentioned in clause (c) of Rule-6. A direct recruit shall also have to comply with Rule-15 of the Class-I Rules which provides that unless he has not already done so, he should pass such departmental examination and within such period as may be prescribed by the Government."
8. Rule-6 (b), of the Class-I Rules provides that "in the case of an appointment by promotion from Class-II service (the Page | 94 2026:JHHC:11185-DB Officer) has eight years, completed service in Class-II and has passed the professional examination of the Department as provided in Rule 15". The question is whether an Officer in the Class-II Service should satisfy both the qualifications mentioned in clause(a) and the qualifications mentioned in clause (b) of Rule6 of Class-I Rules or he should satisfy only the qualification under Clause (b) for the purposes of promotion to the Class-I service, If clause (b) of Rule-6 had contained the words 'also' or "in addition to what is contained in clause (a)" or any other words or words conveying that meaning, there would have been no difficulty in construing that clause as then it would have clearly meant that an officer in the Class-II Service who seeks promotion to the cadre of the Executive Engineers should possess a degree as provided in clause (a) unless it has been waived by the Government and should also satisfy the conditions mentioned in clause-(b). But we do not find any such words in clause (b) of Rule6 of the Class I Rules. Clause (b) of Rule 6 of the Class I Rules open with the words "in the case of an appointment by promotion from Class II Service". It deals with a separate and distinct class of persons who are to be recruited by promotion from the Class-II Service to the cadre of Executive Engineers. The question whether all the clauses in Rule-6 should be read cumulatively or separately depends upon the structure of the sentences and the contents of the different clauses. In Rule 6, we do not have the word 'and' used at the end of any of the clauses (a) to (d), clause (e) being the last one. Clause (c) of Rule 6 deals with only direct recruits and does not apply to promote and that is clear by its language. Clause (d) of Rule 6 applies only to direct recruits who enter the service for the first time and those persons who are already in Government Service and in whose case the verification of character and antecedents has not already been done. Clause (e) of Rule 6 can apply only to those who enter the service for the first time and cannot apply to those who are already in the Class II Service before appointment to the Class-I Service because there is a corresponding provision even in the Class II Rules creating a similar disqualification for being appointed to the Page | 95 2026:JHHC:11185-DB Government service in Rule 7(5) of the Class II Rules. Now, we are left with clauses (a) and (b) of Rule 6 of the Class I Rules. In Rule 7 of the Class II Rules (which is extracted in the earlier part of this judgment) which are Analogues rules dealing with the qualifications for entry into the Class-I Service there is no room for doubt for clause (1) begins with the words "in the case of person appointed by direct recruitment"; clause (2) begins with the words "in the case of appointment by promotion from sources (2) begins with the words "in the case of appointment by promotion from sources (2) and (3) under Rule 6(1)"; clause (3) begins with the words "in the case of the appointment by promotion from source 4 under Rule 6(1)" and clause (4) begins with the words in "in the case of appointment by transfer. Each of the above clauses is apparently an independent clause. It means that persons falling under one clause do not fall under any of the other clauses and they stand excluded from the other clauses. Each clause deals with a specific class. Even though the opening words of Rule 7 of the class-II Rules are Rule 6 of the Class I Rules also these words have to be read with each of the clauses (1) to (4) of Rule 7 of the Class-II Rules. If the same method is adopted in the case of clauses
(a) and (b) of Rule 6 of the Class-I Rules, then there would be no room for ambiguity. Clause (a) of Rule6 seems to apply to direct appointments to the Class-1 Service which ordinarily can be to the posts of Assistant Executive Engineers in view of clause (4) of Rule 5 of the Class-I Rules and only in exceptional circumstances for reasons to be recorded in writing to the posts of Executive Engineers. Clause (b) of Rule 6 which the specially deals with appointments by promotion from the Class II Service to the posts of Executive Engineers exhaustively deals with the qualifications of officers to be promoted from the Class II Service. The special clause excludes the application of the general. That appears to be the intention of the rule making Authority because clause (b) deals with the qualification of experience for eight years in the Class II Service and the passing of the Departmental examination. So far as direct recruitment through competitive examination is concerned the minimum educational Page | 96 2026:JHHC:11185-DB qualification has to be prescribed in the Class-I Rules themselves and it is accordingly prescribed by clause (a) of RuleClass II Service to the posts of Executive Engineers exhaustively deals with the qualifications of officers to be promoted from the Class II Service. The special clause excludes the application of the general. That appears to be the intention of the rule making Authority because clause (b) deals with the qualification of experience for eight years in the Class II Service and the passing of the Departmental examination. So far as direct recruitment through competitive examination is concerned the minimum educational qualification has to be prescribed in the Class-I Rules themselves and it is accordingly prescribed by clause (a) of Rule.
148. Though, learned senior counsel for the petitioners has argued that the law laid down in S.K. Md. Amir Ansari Vs. State of Bihar (supra), is not at all applicable in the case at hand, but the law is well settled that applicability of the judgment depends upon facts governing each case. Reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in Dr. Subramanian Swamy vs. State of Tamil Nadu & Ors reported in (2014) 5 SCC 75, for ready reference, the relevant paragraph of the aforesaid judgment, is being quoted as under :
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."
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149. Admittedly, the petitioners have retired and it is well settled principle of law that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even borne in the cadre, particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime, as such no relief can be granted to the petitioners.
150. This Court, after having discussed the legal aspect as well as factual aspect, has answered the issue against the petitioners.
151. Accordingly, the writ petitions stand dismissed.
152. Pending Interlocutory Applications also stand disposed of.
I Agree (Sujit Narayan Prasad, J.)
(Deepak Roshan, J.) (Deepak Roshan, J.)
17th April, 2026
A.F.R./Alankar/-
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