Patna High Court
Bindeshwar Prasad And Ors. vs State Of Bihar And Ors. on 17 December, 1990
Equivalent citations: 1991(1)BLJR661
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This application has been placed for hearing before this Bench in view of difference of opinion by and between the Hon'ble Mr. Justice S.S. Hasan and Hon'ble Mr. Justice Phani Bhushhan Prasad.
2. In this writ application, the petitioners who are six in number have prayed for issuance of an appropriate writ for quashing the notification dated 18.1.1990 as contained in Annexure-9 to the writ application, the notification dated 26.12.1980 as contained in Annexure-10 to the writ application as also a notification dated 24.8.1983 as contained in Annexure-11 to the writ application.
3. The basic facts of the case lie in a very narrow compass.
The petitioners appointed on a regular basis in class II of Bihar Engineering Services on different dates ranging from 1956 to 1963. They were made permanent in their posts and later on promoted to class I of Bihar Engineering Service in the years as mentioned below:
Name No. Year of permanence Year of
as Asstt. Engineer. promotion to
class I.
Bindeshwar Prasad 1 1973 1973
Birendra Prasad 2 1964 1971
Suresh Prasad Sinha 3 1973 1973
Binoy Kumar Sinha 4 1973 1980
Kapildeo Bhagat 5 1973 1973
Akhileshwar Nath Roy 6 1976 1981
4. According to the petitioners, the respondent No. 4 joined as temporary Assistant Engineer in Bihar Engineering Service Class II in the year 1975 on the basis of recommendation of the Bihar Public Service Commission as contained in its letter dated 6.12.1973. The said letter has been annexed with the writ the application and marked as Annexure-1 thereto. The notification showing appointment of the said respondent is contained in Annexure 2 to the writ application.
5. Admittedly, respondent No. 4 was recruited in the short service commission in the year 1963 and he continued in the Army service till ly68 which was extended subsequently up to October, 1970. The petitioners have contended that the respondent No. 4 was not in the said service before he joined the Army.
6. It has further been contended that even after his release from the army he did not exercise his option to serve in any State service but he engaged himseif in private business till 1973.
7. On or about 12.7.1967, a circular was issued by the State of Bihar granting certain concession to those persons who had joined the Militury service. The said circular is contained in Annexure-4 to the writ application. In the year 1969, another circular was issued in modification of the aforementioned circular dated 12th July, 1967 whereby and where under the State purported to have decided that instead of 50% vacancies reserved for Medical and Engineering Services, the same be reduced to 30% of both permanent and temporary vacancies for those who had joined the Armed Force from the open market during the last emergency and thereafter released. The said policy decision further provided that out of the vacancies so reserved, 12% and 10% thereof shall be reserved for the scheduled castes and scheduled tribes Engineers and Doctors released from Armed Force and reserved vacancies brought forward in any year would not exceed 45% of the total number of vacancies to be filled in that year. A copy of the aforementioned circular is contained in Annexure-5 to the writ application.
8. It is admitted that respondent No. 4 after serving for some time as temporary Assistant Engineer filed a representation before the appropriate authority praying therein that he be absorbed in the permanent vacancy in class II of Bihar Engineering Service, w.e.f. 15th April, 1963, purported to be in terms of the aforementioned Government Circular, dated 21.6.1969 (Annexure-5). A copy of the said representation is contained in Annexure-6 to the writ application.
The said representation of respondent No. 4 was referred to the Bihar Public Service Commission by the Public Works Department for obtaining necessary concurrence which was allowed.
9. It appears that the Bihar Public Service Commission gave its concurrence for confirmation of respondent No. 4 on the basis of the C.C.R. of respondent No. 4 for the years 1975-76 and 1976-77. By reason of the impugned notification as contained in Annexure-9 to the writ application, respondent No. 4 was directed to be treated as if he was recruited in the year 1963 purported to be in terms of the policy decision of the State of Bihar dated 21.6.1969 (Annexure-5). By the notification as contained in Annexure-10 to the writ application, the seniority of respondent No. 4 was fixed just below one Sri N.K. Srivastava and above Sri Janki Prasad Singh.
10. By reason of the impugned notification dated 24.8.1983 as contained in Annexure-11 to the writ application, respondent No. 4 was promoted to the post of Superintending Engineer in Grade I of Bihar Engineering Service for a period of six months directly from the post of Assistant Engineer.
These basic facts are not in dispute.
11. One of the questions, therefore, which arises for consideration in this application is as to whether in terms of the policy decisions of the State which are contained in Annexures-4 and 5 to the writ application, respondent No. 4 could have been directly promoted to the post of Superintending Engineer from the post of Assistant Engineer.
12. Mr. Shreenth Singh, learned Counsel appearing on behalf of the petitioners has raised the following contentions in support of the writ application:
1. Firstly it was contended that the policy decisions as contained in Annexures-4 and 5 are unconstitutional.
2. Secondly it has been contended that Annexure-5 to the writ application cannot have any application in this case as the petitioners except petitioner No. 6 were all appointed before 1963 whereas petitioner No. 6 was appointed in the year 1963.
3. It was further contended that even assuming that the policy decision of the State of Bihar as contained in Annexure-5 to the writ application in this case, respondent No. 4 was only entitled to those benefits which have been incorporated in paragraphs 8 and 9 thereof.
4. It was next contended that in any event the petitioners being senior, they could not have been ranked junior to respondent No. 4 without considering their case and without giving them an opportunity of being heard.
5. Learned Counsel further contends that the seniority of respondent No. 4 has been fixed in a most arbitrary, illegal and irrational manner and, thus, the rights of the petitioners as guaranteed to them under Articles 14 and 16 of the Constitution have been violated.
In this connection, my attention has been drawn to the fact that respondent No. 4 was directly promoted to the post of Superintending Engineer, although he did not work in the post of the Executive Engineer for a single day which is in violation of the rules framed by the Public Works Department which provided for working in the post of Assistant Engineer for a minimum period of 8 years before one can be promoted to the next higher post and a minimum period of seven years as Executive Engineer for his promotion to the post of Superintending Engineer in terms of Annexure-12 to the writ application.
6. It was further contended that in any event the rules of promotion as contained in Annexure-12 to the writ application could not have been relaxed without following the procedure as contained in Annexure-19 to the writ petition.
13. The learned Advocate General as also Sri Basudeo Prasad appearing on behalf of the State and respondent No. 4 respectively contended that ex-service men formed a class by themselves and if the state confers certain benefits upon them keeping in view their services in the Army, the same cannot be held to be ultra vires Articles 14 and 16 of the Constitution.
It was also contended that the question relating to the validity of the policy decision of the State as contained in Annexures-4 and 5 to the writ application is no longer resintegra in view of the Division Bench decision of this Court in 1984 BLJR 272 and in C.W.J.C. No. 4791 of 1982, decided on 20.11.1984.
Reliance in this connection has also been placed on Union of India and Ors. v. Dr. S. Krishna Murthy and Ors. .
14. Learned Advocate General in this connection has also relied upon the following decisions:
(a) Jagdish Rai and Ors. v. State of Haryana and Ors. .
(b) Rajpal Sharma and Ors. v. State of Haryana and Ors. .
(c) B.S. Bajwav. State of Punjab and Ors. 1986 (2) Service Law Reporter 678; and
(d) Ex. Capt. K.C. Arora and Anr. v. Ex. Capt. A.S. Parmar and Ors. .
15. Mr. Basudeo Prasad learned Counsel appearing for respondent No. 4 further contended that this writ application suffers from serious delay and laches on the part of the writ petitioners and on that ground alone, this writ application should be dismissed.
Reliance in this connection has been placed in and Ors. v. International Airport Authority and Ors.
16. According to the respondents, the impugned notifications having been published in the official Gazette, the petitioners will be deemed to have knowledge about the contents thereof. It has further been contended that as respondent No. 4 was the solitary candidate having been relieved from Military service and as there was vacancy in the permanent cadre, he had rightly been absorbed as permanent Assistant Engineer on the post reserved for ex-military personnel; no illegality has been committed in relation thereto. My attention has further been drawn to the fact that the petitioners were appointed against the temporary vacancies in a temporary cadre and in view of the fact that the respondent No. 4 was appointed against a permanent vacancy in a permanent cadre, the petitioners are not similarly situated.
17. It was further contended on behalf of the respondents that the State Government was entitled to relax the minimum qualifying period prescribed for promotion from one rank to another and the exercise of this power by the State in favour of respondent No. 4 was done for valid reasons.
18. During pendency of this writ petition, an application for amendment of the writ application was filed on behalf of the petitioners alleging inter alia therein that the State has issued a notification dated 13.1.1987 whereby final gradation list had been circulated in terms whereof respondent No. 4 has been placed over the head of the appointees of the year 1952 purported to be in accordance with the decision of this Court in C.W.J.C. 534/72 and C.W.J.C. No. 1880/70 (reported in 1982 B.B.C.J. 45). The said notification is contained in Annexure-18 to the writ application.
19. By reason of a supplementary counter affidavit filed on 17.8.1987, respondent No. 4 contended that he had been holding the post of Major in the Army which post is equivalent to the post of Executive Engineer class I. In this connection ray attention has also been drawn to Annexure-D to the counter affidavit whereby the State Government purported to relax the rules in favour of respondent No. 4.
20. Respondent No. 4 has further contended that his pay at the relevant time was Rs. 1160 besides other allowances in respect where of a statement of account for the month of April 1970, has been annexed to the said counter affidavit and marked as Annexure-E, from a perusal where of it appears that the basis pay of respondent No. 4 was Rs. 880 and his total emoluments including acting rank pay, qualification/specialist pay, kit maintenance allowance etc. was Rs. 1240.
21. Respondent No. 4 has further contended that at the relevant time, the scale of pay of Executive Engineer was Rs. 690-1250 and that of Superintending Engineer was Rs. 1000-1700.
22. By way of a reply to the supplementary counter affidavit, it was pointed out on behalf of the petitioners that respondent No. 4 had served the army only for 71/2 years including the training period and thus he was not eligible for being appointed in the post of Captain in the year 1970 and, thus, he could be considered for having promoted in the post of Major after 15 years which has since been relaxed to 13 years.
23. It has further been contended that respondent No. 4 has been placed above Sri Janki Prasad Singh who was promoted as Executive Engineer in the year 1962 whereas, admittedly,, the respondent No. 4 joined the Army on 15.4.1963 and thus he could not have become senior to the said Sri Janki Prasad Singh who joined the post of Assistant Engineer in the year 1954.
24. The petitioners have filed another supplementary affidavit wherein it was stated that in the case of Medical staff for implementing the policy decision of the State, advertisements has been issued. Yet in another supplementary reply to the supplementary counter affidavit filed on behalf of respondent No. 4, the petitioners have contended that the relaxation of requirement of minimum qualification period is illegal as the same violates the relaxation rules as contained in Annexure-19 thereto.
25. Before embarking upon the rival contentions of the parties, it may be relevant to consider the policy decision of the State dated 12.7.1967 as contained in Annsxure-4 as also paragraphs, 8 and 9 of the circular dated 21.6.1969 (Annexure-5). The relevant rule in the circular dated 12.7.1976 reads thus:
(i) 50% of the permanent vacancies which occur as result of retirement and other casualties from the permanent cadre of class I and class II state Engineer and Medical Services, should be reserved for the Ex-Army Personnel having to their credit satisfactory Military service and who are found physically fit at the time of consideration against reserved vacancies according to the rules applicable to the particular service, until filled would be filled of others (other than ex-military service personnel) only on a temporary basis.
(ii) For the purpose of fixation of pay and seniority such a candidate shall be deemed to have been appointed to the civil post on the date on which he joined military service provided that no officer will get advantage in matter of seniority and pay fixation for the period of military service rendered by him before 1st November, 1962, of course, the service rendered after 1st November, 1962 will court in the manner indicated above.
Paragraphs 8 and 9 of the Circular dated 21.6.1969 (Annexure-5) read as follows:
8. Seniorty and pay of these candidates who are appointed against the reserved vacancies will be determined in the following manner:
(a) A candidate shall be treated as belonging to the year in which he would have been appointed on attaining the minimum age of entry into service/post concerned or on the date of his joining the military service, which ever is later.
(b) All such candidates shall rank below the non-service recruits of the year in which they are allotted.
(c) The particular date on which a candidate shall be deemed to have been appointed to the service/post shall be considered by the Administrative Deptt.
9. Seniority of Emgergency commissioned/short service commissioned officers appointed temporarily will be fixed according to the formula contained in the preceding paragraph and they will be made permanent in their own term according to their position in the seniority list as and when permanent vacancies occur.
26. There cannot be any doubt that by reason of the policy decisions of the State as incorporated in Annexures-4 and 5, certain benefits were conferred upon those persons who had served the defence services and having been released therefrom seek employment in the Bihar Engineering Service. It is further evident that the citizens of India who having minimum qualification to serve as doctors and Engineers joined Military service from State Service and having been released therefrom, if seek employment again in the State service are class by themselves and concessions given to such category of employees stand on a separate footing.
27. In Jagdish Rai (supra), a Full Bench of the Punjab and Haryana High Court held that reservation in favour of Ex-service men does not violate the equality clause proclaimed and guaranteed by Articles 14 and 16 of the Constitution.
28. In Kapil Deo Bhagat v. State of Bihar and Ors. 1984 BLJR 272, a Division Bench of this Court considered the circulars which are in-question in this case also. In the said case, it was held that respondent No. 4 thereof was entitled to the benefit conferred upon him by reason of the policy decision of 1967 which was contained in Annexure-3 to that writ application and which is contained in Annexure-4 hereof.
There is an unreported decision of this Court in Kamesh Prasad Singh (C.W.J.C. No. 4791/83 disposed of on 20th November, 1984) touching the same circular.
29. In Rajpal Sharma (supra), the Supreme Court held that there is no reasonable classification between the persons who were released from Military service on compassionate grounds and those who were released on other grounds and, thus, the concession given to the Ex-Military personnel by reason of Rule 4 of Punjab Government National Emergency (Concession) Rules, 1965 could not have been taken away by inserting a proviso therein,
30. Similar is the decision in Ex. Capt, K.C. Arora (supra) wherein the Supreme Court held that the appointments made by the Haryana Government in 1976 under Rule 2 and Rule 4(ii) of Punjab National Emergency (Concession) Rules is ultra vires so far as the same was sought to be given a retrospective effect.
31. In B.S. Bajwa (supra), a learned Single Judge of the Punjab and Haryana High Court held that in view of Rule 10-A of the Punjab Government National Emergency (Connection) Rules, 1965, the petitioners thereof were entitled to the benefit of seniority from the day when they were granted provisional short service and denial of the said benefit in their favour by the State Government was illegal.
32 In Union of India v. Dr. S. Krishna Murthy, , the Supreme Court held that E.C.Os. and S.C.C.Os. who had voluntarily entered the Army when the security of the Nation was in peril due to external aggression and as they were engaged in defending the country by accepting the Army service, they did not get an opportunity to enter into the civil service and, thus, in terms of the Rule 3 of the Indian Forest Service Regulation of Seniority Rules 1968 and Rule 33-C of Indian Police Service Regulation of Seniority Rules, 1954, the Emergency commissioned officers/short service commissioned officers recruited in those Services were entitled to the year of allotment with retrospective effect from the date when they would have been appointed at their first or second attempt after the date of joining pre-commission training or the date of their commission where there was only post-commission training and consequently they may be placed earlier than the officers of the State service recruited to I.P.S./I.F.S. prior to the induction of the E.C.Os. and S.C.C.Os.
It was further held by the Supreme Court that the said Rules are not ultra vires Articles 14 and 16 of the Constitution of India.
The Supreme Court observed that the said Rules have been framed with a view to give weight age to E.C.Os. and S.S.C.Os. in recognition of their past service in the Army during the period of Emergency.
The Supreme Court further observed that by reason of the said Rules, no vested rights of the respondents were taken away.
The Supreme Court further observed:
Suffice it to say that in view of the voluntary offer of service by persons to defend the country against the foreign aggression, the Government took a very sympathetic view and took steps to compensate them after discharge from the Emergency commission service for the opportunity lost by them in joining the All India Service. One thing which is very significant to be mentioned here is that although their past services were taken into consideration, the Government did not relax the minimum qualification required for the All India Service.
The E.C.Os. and S.S.C.Os. had to appear in a test and they were appointed only after they become successful in such test.
33. In view of the aforementioned decisions, it is therefore, clear that the policy decision of the State which are contained in Annexures-4 and 5 to the writ application whereby and where under certain percentage of posts were reserved for those who had served the Army and had since been released, cannot be said to be ultra vires Articles 14 and 16 of the Constitution.
34. The question which, therefore, arises for consideration in this application is as to whether the State in issuing the impugned notifications as contained in Annexures 9, 10, 11 and 18 to the writ application, exceeded its jurisdiction insofar as it misread and misconstrued its own policy decision as contained in Annexures-4 and 5 to the writ application or not?
35. In terms of the policy decision as contained in Annexure-4 to the writ application, 50 per cent permanent vacancies which occurred as a result of retirement and other casualty in Class I and Class II Engineering and Medical Services are to be reserved for ex-Military personnel and for the purpose of fixation of pay and seniority, a legal fiction has been created to the effect that a candidate shall be deemed to have been appointed to the civil post on the date on which he joined the Military Service after 1st November, 1962. This policy decision of the State was amended by reason of the notification, dated 21.6.1969 as contained in Annexure-5 to the writ application.
36. In terms of paragraph 8(a) of Annexure-5, a candidate is to be treated to be belonging to a particular year in which he would have been appointed on attaining the minimum age of entry into the service concerned or on the date of his joining the Military service whichever is later.
37. In terms of paragraph 8(b) of the said circular as contained in Annexure-5 to the writ application, the persons who have been appointed after having been released from Military service to the rank below the non-service recruits of the year in which they are related.
According to paragraph 9 of the circular aforementioned as contained in Annexure-5 to the writ application the seniority of the ex-Military Personnel appointed temporarily in the State Engineering service will be determined in terms thereof and persons so temporarily appointed would be made permanent according to their position in the seniority list in their own turn as and when permanent vacancies occur.
38. From a conjoint reading of the relevant provisions of the two circulars aforementioned, it is clear that concessions have been extended and benefits have been conferred to the ex-Military personnel only at the time of their recruits. The very fact that while their year of joining would be reckond from the year when they entered into the Military Service, it is relevant to note that they would rank junior to all such non-service recruits of the year in which they are related.
39. S.S. Hassan, J. in paragraph 28 of his judgment held as follow:
I interpret these to mean that when a person is appointed at the lowest rung of the ladder, i.e. Assistant Engineer, when vacancies occur in the next higher position, temporary or permanent, immediately the reservation percentage will apply to such classified persons and it will be given to those who come within the reserved classification even if they are below the regular appointees by passing them. In other words, if a person is appointed as Assistant Engineer and is placed at any 100th position and vacancy for 20 posts occur in the cadre of Executive Engineer, 30 per cent of that vacancy of the higher post becomes available to those who come under the classified post and consequently even if the persons belonging to classified category are at the bottom of the list he will be appointed in that reserved cadre in the higher post along with those in the lower rung and in that higher category will be placed below them and this will go on at all level. If this is not the real intention, then the reservation made at all level in temporary and permanent category can never be filled up at higher level by such person because no one can be appointed directly to a higher post and he has to go through the promotional channel. This situation is entirely similar to the benefit that is available in the case of persons belonging to scheduled caste scheduled tribe and backward classes it is not unusual.
40. However, both the learned Advocate General appearing on behalf of the State and Mr. Basudeo Prasad, learned Counsel appearing for respondent No. 4, when asked to point out the relevant provisions from the policy decision of the State as contained in Annexures-4 and 5 to the writ application failed to show me any provision therein that reservation of 30 per cent of posts in the temporary and permanent vacancies has been reserved for the ex-Military personnel not only at the time of their initial entry in the service, but also as and when vacancies occur in the next higher post temporary or permanent.
41. Learned Counsel appearing for the respondent, on the other hand, however, before me took absolutely a different stand which does not appear to have been taken before the Division Bench.
Learned Counsel contended that in Bihar Engineering Class II service as also Bihar Engineering Class I service, there are two cadres, namely, temporary cadres and permanent cadre.
42. Learned Counsel submitted that the existence of two different cadres will be evident from Paragraph 6 of the supplementary counter-affidavit filed on behalf of respondent No. 4 where in it has been stated that there are two cadres at Assistant Engineers, namely, temporary Assistant Engineers and the cadre of permanent Assistant Engineer which would be evident from letter dated 26.2.1969 as contained in Annexure X thereto.
43. From a persual of the circular letter dated 26.2.1969 (Annexure-X) to the supplementary counter affidavit filed on behalf of respondent No. 4, it appears that therein percentage of reservation in the temporary cadre was fixed inter alia for promotion to the post of Assistant Engineers.
It was further pointed and that for recruitment to the permanant cadre, the Government had decided to take recourse to direct recruitment also besides recruitment from amongst temporary Assistant Engineers and where for 41-2/3% of posts were reserved for substantive appointment from amongst temporary Assistant Engineers other than those promoted from the rank of Supervisor and 25% of posts were reserved for substantive appointment of temporary Assistant Engineers promoted from S.Es.
44. In this connection, my attention was further drawn to the fact that even in Annexure-4 reservation was made thereby for filling upto 50% of the permanent cadre in class I and class II Engineers and Medical Services, but the same was reduced to 30% of the vacancies both permanent and temporary by circular dated 21.6.1969 as contained in Annexure-5 to the writ application.
45. My attention was further drawn to rules relating to the Bihar Engineer Class I service wherein the strength of the cadre and source of the recruitment have been stated. From Rule 4 of the said rules, it appears that recruitment to the said Services was to be made by promotion from class I; from a perusal whereof, it appears that recruitment to the said services was to be made promotion from the Bihar Engineering Service, class II and the strength of the cadre has been mentioned as Engineer in-chief, Chief Engineer, Superintending Engineer.
46. It is relevant here to quote the note appended to Rule 4:
Persons who hold posts is Government service in a temporary or officiating capacity or on probation are eligible to apply for direct appointment subject to the provision of this Rule.
Rule 1 of the said rules defines 'service' which means Bihar Engineer Service, class II, the said 'service' shall inter alia be recruited by promotion or transfer of officers already in Government service, permanent or temporary in accordance with rules in Part III
47. On the basis of the aforementioned rules, it was contended that in Bihar class II Engineering service, there are two cadres, namely, permanent cadre and temporary cadre.
48. It was next contended on behalf of respondent No. 4 that after respondent No. 4 was appointed against a temporary vacancy, he filed a representation before the State Government as contained in Annexure-6 to the writ application wherein he inter alia prayed that he may be absorbed against permanent vacancy and also his case may be considered for fixation of seniority as also scale of pay.
It has further been pointed out that by reason of the notification, dated 18th January, 1980, as contained in Annexure-9 to the writ application, the petitioner was appointed in class II of Bihar Engineering Service in a permanent cadre and he was giving seniority in that cadre with effect from 15.4.1963 and his of allotment would be considered as 1963.
49. Learned Counsel on this basis contended that thus respondent No. 4 would be deemed to be holding a post as against permanent vacancy in the permanent cadre of Bihar Engineering service, class II with effect from 1963, whereas petitioner Nos. 1, 3 and 5 was made permanent in the year 1963; petitioner No. 2 was made permanent in 1964 and petitioner No. 6 was made permanent in the year 1976.
50. Learned Counsel further contended that on this basis, by reasons of the notification dated 26.12.1960 as contained in Annnexure-10, the respondent No, 4 was placed just below Sri N. K. Srivastava in the seniority list and above Sri Janki Prasad Singh.
It was further argued that in view of the policy decision of the State as contained in Annexure-5 to the writ application, as the respondent No. 4 would be deemed to have been appointed in a permanent cadre as against a permanent vacancy in the year 1963, he was entitled to promotion to the post of Superintending Engineer in view of the Circular of the Public Health Engineering Department which is contained in Annexure-C to the counter affidavit and further in view of the fact that the petitioner would be deemed to have completed more than 15 years of service in class II Bihar Engineering service and further in view of the fact that persons junior to him in the seniority list had already been promoted to the post of Superintending Engineer.
51. In this connection, my attention was drawn to the memorandum submitted to the Cabinet which is contained in Annexure-D to the counter affidavit and my attention was drawn to the fact that respondent No. 4 had already been found fit for promotion to the post of Executive Engineer by the Departmental promotion Committee in its meeting dated 4.6.1987 and, thus, he may be considered fit for promotion in the post of Superintending Engineer.
52. Learned Counsel further contended that it is on the basis of the memorandum submitted to the Cabinet that the notification dated 24.8.1983 as contained in Annexure-11 was issued in terms whereof the said respondent was promoted to the post of Superintending Engineer on ad hoc basis and for a period of six months or till the receipt of the recommendations by the Bihar Public Service Commission.
53. It was further contended that the promotion of respondent No. 4 to the post of Superintending Engineer was not on the basis of supposed reservation of 30% in superior posts of class I Engineering Service in terms of Annexure-5 but the said order of promotion was passed taking into consideration the order of the State of Bihar appointing respondent No. 4 against a permanent vacancy in a permanent cadre with retrospective effect from 1963.
54. Learned Counsel further contended that by issuing the notifications as contained in Annexures 9 and 10 to the writ application, the State merely rectified its mistake and, thus, there is no violation of paragraph 9 of the circular as contained in Annexure-5 to the writ application.
55. It was further submitted that the petitioners having not been absorbed against permanent cadre in the year 1963 the question of their being similarly situated to respondent No. 4 does not arise and, thus, they have no locus standi to question the promotion of the petitioners to the post of Superintending Engineer.
56 Mr. Shreenath Singh, learned Counsel appearing for the petitioners, on the other hind, submitted that as respondent No. 4 was initially appointed as against a temporary vacancy, the State Government could absorb him as against a permanent vacancy only after following the procedure paid down in paragraph 9 of the circular letter as contained in Annexure-5 to the writ application.
57 According to the learned counsel, no advertisement was issued in the year 1973 by the State of Bihar for appointment against a permanent vacancy and had such appointment been made, respondent No. 4 might not have been the sole applicant therefor. The learned counsel, therefore, submitted that the State could not have by-passed the conditions precedent as contained in paragraph 9 of the circular letter as contained in Annexure-5 to the writ application.
Learned Counsel in this connection has relied on Hukum Chand Shyam Lal v. Union of India and Ors. .
58. Learned Counsel has pointed out that the provisions contained in Annexure-12 are mandatory and in terms of circular letter dated 20th November, 1959, as contained in Annexure-19 to the writ application, the following preconditions must be satisfied before an order of relaxation can be passed:
(a) In very exceptional cases;
(b) Where the existing Rule causes undue hardship;
(c) Prior consultation of the Appointment Department and Finance Department;
(d) Approval of Cabinet must be obtained;
(e) Full justification should be given in the file itself;
(f) Reason should briefly be mentioned in the formal order;
(g) Formal order should be authenticated in accordance with Article 166(1) of the Constitution of India and issued by the Department.
59 According to the learned counsel, in view of the fact that none of these pre-conditions as contained in Annexure-19 having been fulfilled, the question of grant of any relaxation does not arise.
60 It was further contended that from a perusal of Annexure-D to the counter affidavit, it would appear that the Cabinet considered the case of promotion of respondent No. 4 alone and therefore only his conferred seniority was taken into consideration. According Lo the learned counsel, for grant of promotion from class II to class I of Bihar Engineering Service, Rules 17 and 24 thereof have to be complied with.
Rules 17 and 24 of the aforementioned Rules read as follows:
17. Procedure 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 Engineer will nominate for promotion 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% 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 recommendation to the Governor.;
24, Promotion to administrative grade.-Promotion to the posts of Superintending Engineer and Chief Engineer shall be made by selection and seniority alone shall confer no claim.
61. Mr. Singh further drew my attention to the statements made in paragraph 4 of the reply filed by the petitioners to the supplementary counter affidavit of respondent No. 4 filed on 24.3.1987 wherein the following statements have been made:
the deponent submits that there is no separate seniority list of permanent and temporary Assistant Engineer in the Department.
My attention was further drawn to the following statements made in paragraph 4 of the supplementary counter affidavit:
That it is further relevant to state here that there is no seniority list of Assistant Engineer in the Department which contains the names of Sri N.K. Srivastava and Sri Janki Prasad Singh former above the latter. The very placement of respondent No. 4 in between them, as has been done in Annexure-9 and which has been made the basis for giving illegal promotion of respondent No. 4 is nothing but a cooked up device of the respondent State to promote the respondent No. 4 from Assistant Engineer to Superintending Engineers some how or other ignoring all norms and rules.
62. According to the learned counsel, in fact, the first gradation list published by the State of Bihar was on 13.1.1987, that is, during the pendency of this writ application which is also the subject-matter of challenge where by respondent No. 4 was shown as an appointee of the year 1983 and placed at serial No. 1 and, thus, the question of the petitioners vis-a-vis respondent No. 4's being in two different cadres does not arise.
63. The learned Counsel next contended that in any event, the petitioners should be held to be senior to respondent No. 4 in view of the fact that they were appointed much before him.
64. In this connection it was contended that admittedly the petitioners had been continuously officiating in the post as of respondent No. 4 and, thus, in view of the well recognised rule of computation of seniority by invoking the rule of continuous officiation should not have been given a complete go-bye.
Learned Counsel in this connection has placed strong reliance upon Kapildeo Bhagat v. State of Bihar 1984 BLJR 272; Baleshwar Dass and Ors. v. State of U.P. and Ors. ; S.B. Pattawardhan v. State of Maharashtra .
65. According to the learned Counsel even in Kapil Bhagat's case (supra) this Court following Pattawardhan's and Baleshwar Dass's case (supra) in similar situation held that petitioners would rank senior to respondent No. 4 of that case. According to the learned counsel, the same principles will apply in this case also.
66. It was further submitted that in any event taking into consideration the fact that by reason of a policy decision of the State as contained in Annexures-4 and 5 to the writ application, the petitioners' right has been affected, the seniority of respondent No. 4 should have been reasonably fixed and confined to the actual period of service in the Armed Force or at the worst to a reasonable period, that is, up to the first available opportunity of the recruitment.
67. It was further pointed out that from the records it is evident that although respondent No. 4 was released from army service on 25.10.1970, he did not apply for appointment in the posts of temporary Assistant Engineer including reserved post of Ex-Army personnel in October, 1971, nor did he apply when Bihar Public Service Commission again advertised for such posts in the year 1972 and filed an application only as against the third advertisement for the temporary post of Assistant Engineer which was made on 31.1.1973.
Learned Counsel submitted that in response to the advertisement issued in October, 1971, one Sri Suresh Chandra Verma applied as would appear from the memorandum for the Cabinet dated 24.6.1974 as contained in Annexure-3 to the writ application.
68. My attention was further drawn to the fact that respondent No. 4 joined his post on 3.2.1975 pursuant to a notification issued on 29th July, 1974.
69. It is true that there appears to be two types of posting in the post of Assistant Engineers in Bihar Engineering, class II service, namely, temporary and permanent. It further appears that the petitioners were appointed against the temporary vacancies and were made permanent only later on as indicated in paragraph 4 hereinbefore, but there cannot be any doubt that respondent No. 4 also applied for his appointment in the temporary post of Assistant Engineer in terms of advertisement dated 31.1.1973.
70. It is further evident that he did not apply for appointment in the post of temporary Assistant Engineer pursuant to the advertisement issued in the year 1971 and 1972. Only after he joined the post on 3.2.1975 after having been selected, he filed a representation as contained in Annexure-6 to the writ application.
71. There cannot be any doubt that the Government can rectify its mistake. It may, in certain circumstances, also be open to the Government to appoint a person with retrospective effect.
72. It further appears that the normal procedure adopted for appointment to a Government post is to appoint a Government servant as against a temporary vacancy or to appoint temporarily against a permanent vacancy and later confirm him after taking into consideration his service records. It is clear that the Government took steps for filling up these posts only on that basis inasmuch as in the years 1971, 1972 and also in the year 1973 advertisements were issued only for filling up the vacancies on temporary posts of Assistant Engineers, although at that point of time, the permanent posts might have also been vacant.
73. There does not appear to be any plausible reason as to why the State thought it fit to appoint respondent No. 4 as against a permanent vacancy in a permanent cadre with retrospective effect from 1963B without issuing any advertisement therefor.
74. As has been indicated by the Supreme Court in S. Krishna Murthy's case 1989 (4) SCC 689, benefits were given to the Ex-servicemen by way of recognition of their Military service. The same does not confer upon him an extra undue advantage over others who joined the said service much earlier. In fact, the scheme of Annexures-4 and 5 appears to be that by computing the period of service when the appointee was serving the Military in his State service, the seniority of other persons are not affected, this is reflected from paragraphs 8 and 9 of the circular as contained in Annexure 5 to the writ application. As noticed hereinbefore, in Krisha Murthy's case it was found that by implementing the rules, the right of the petitioners of that case were not affected at all.
75. As would be evident from the decisions of the Supreme Court referred to hereinbefore in Rajpal Sharma case (supra) AIR 1987 Supreme Court 1263; Ex-capt. K.C. Arora (supra) AIR 1987 Supreme Court, as also in 1983 (1) III TCC 601 that the State may frame a rule with retrospective effect only when it does not adversely affect vested rights, It is further well settled that a vested right, cannot be taken away even by reason of a rule.
76. It is true that seniority is not a fundamental right nor a mere chance of promotion is. In such a situation it might have been permissible for the state to take policy decision for the purpose of grant of seniority to the Ex-service personnel by taking into consideration the period of service rendered by them while they were in Military service, but the said circulars do not appear to postulate a situation that thereby he would come over the head of the persons who had been doing the same job, enjoying the same status and holding the same post from much prior to the said recruit.
77. In order to obviate such a situation, the Supreme Court had clearly laid down times without number that seniority is an incidence of service and where the service Rules prescribe the method of its computation, it is squarely covered by such Rules. It is in this situation, the Supreme Court times without number and particularly in Pattabardhan and Baleshwar Dass's case and Direct Recruitment Class II Engineering Officers Association reported in AIR 1990 Supreme Court 1607 held that in absence of any seniority rules, the seniority has to be counted from the date of appointment and not from the date of his confirmation.
78. This aspect of the matter has also been considered in Kapildeo Bhagat's case (supra) and this Court following Baleshwar Das; Pattawardhan and Chauhan's case AIR 1977 SC 251 took the view that petitioner of that case were senior to respondent No. 4 thereof.
79. In Pattawardhan's case the Supreme Court held as follows:
We however hope that the Government will bear in mind the basic principle that if a cadre consists of both permanent and temporary employees, the accident of confirmation cannot be an intelligible criterion for determining seniority as between direct recruits and promotees. All other factors being equal continuous officiation in a non-fortuitous vacancy ought to receive due recognition in determining rules of seniority as between persons recruited from different sources, so long as they belong to the same cadre, discharge similar functions and bear similar responsibilities.
80. It also worthwhile to mention that admittedly respondent No. 4 did not opt to join the State Engineering Service immediately on his release from Military service. He waited for about three years and opted when an advertisement in this regard was published.
81. In Narendra Nath Pandey and Ors. v. State of U.P. , the Supreme Court was interpreting Rule 6 of Non-technical (class II) Services (Reservation of Vacancy for Demobilised Officers) Rules, 1973, Sub-rule (1) of which read as follows:
Rule 60. Seniority and pay-(1) Seniority and pay of candidates appointed against the vacancies reserved under Sub-rule (1) of Rule 3 shall be determinate on the assumption that they entered the service concerned at their second opportunity, of competing for recruitment, and they shall be assigned the same year of allotment as successful candidates of the relevant competitive examination.
82. In terms of the Rules, a candidate was required to compete with others by sitting in the competitive examination and thus was required to prepare himself therefor. Once he becomes successful in the competition, in terms of the said rules, he would be deemed to have entered service with retrospective effect from the year in which he had second opportunity of taking the relevant examination for his recruitment which he could not take on account of his having joined the service of Armed Force of the Union of India.
83. In that case also complaint made in the writ application was that the State of U.P. not only computed the seniority of the respondent upon taking into consideration the period during which the respondents were actually in service but also the long gaps which elapsed between their demobilisation and actual entry therein, as a result whereof, the fresh recruits were placed above the appellants although they were appointed much before them.
84. In view of the peculiar situation obtaining in the said case and in view of the phraseology used in the Rules, the Supreme Court took recourse to a reasonable interpretation and held that Rule 6 should be given a reasonable interpretation so that it may not do any injustice to the appellants in the said case who had been recruited under the service Rules after competing successfully in the examination and in that case it was held that as two years period should be held to be required for the purpose of one's preparing himself for sitting in the competitive examination and the time required for recruitment or posting.
85. In the instant case, therefore, following the aforementioned decision, it must be held that respondent No. 4 is not entitled to at least two years in computation of his seniority inasmuch as he did not apply for appointment in the post when the advertisement was issued in the year 1971 as also in the year 1972. Neither any cogent or any plausible reason has been given in this direction nor there can be any.
86. In a recent decision in the Direct Recruits class II Engineering Officers Association and Ors. v. State of Maharashtra and Ors. respected in , the Supreme Court inter alia as follows:
A. Once an incumbent is appointed to a post according to rule his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority:
B. If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.
87. Excepting a bald statement made by the respondent No 4 in the supplementary counter affidavit, there is nothing to show that the petitioners were appointed in a temporary cadre as against temporary vacancies.
88. In Paragraph 4 of the writ petition, it was specifically mentioned that 'service' means Bihar Engineering class II Service. The said Rules provide for the manner in which the posts in the said service shall be filled up and the conditions laid down therefor. The said Rules do not provide that there would be two types of cadre. The statements made by the petitioners in paragraph 4 of the writ application to the effect that the were appointed in the said service in a regular manner after following the procedures laid down therefor have not been controverted.
89. Taking thus into consideration all facts and circumstances of this case, it must be held that irrespective of the fact as to whether the petitioners were appointed as against temporary vacancies or as against permanent vacancies in a temporary or permanent cadre, as there is no statutory seniority rules framed by the State, in respect of Bihar class II Engineering Service or Bihar Class I Engineering service, the petitioners must be held to be senior to respondent No. 4 on the basis of their continuous officiation.
90. In this case, admittedly, respondent No. 4 was appointed on the basis of the recommendation of the Bihar Public Service Commission as an Assistant Engineer. It is therefore not at all relevant to consider as to whether in fact respondent No. 9 was promoted to the post of Major in the substantive capacity and was holding a post against substantive vacancy of the post of Major which, according to him, is equivalent to the post of Executive Engineer in class I of the Bihar Engineering Service.
91. In any event the question as to whether the respondent No 4 was serving the Army in the post of Major or not is not at all required to be taken into consideration as the State while purporting to issue the impugned notifies turns did not consider that aspect of the matter. When a state's action is challenged and a writ of certiorari is prayed for, what is relevant is as to the reasons assigned in the order passed by the State which cannot be supplemental by the counter affidavit.
92. In view of the fact that respondent No. 4 was appointee as an Assistant Engineer, in no case, he after having accepted the offer of anointment in the post of Assistant Engineer, is entitled to contend that he in fact Should have been appointed against the post of Executive Engineer.
93. Thus, it is clear that the petitioner were entitled to be reckoned as seniors to respondent No. 4 on the basis of their initial entry in the service.
94. A plain reading of the policy decision of the State itself demonstrates in no uncertain term that grant of seniority to respondent No. 4 over the heads of the petitioners by the State was in violation of its own policy decision and also in violation of the fundamental rights of the petitioners as guaranteed under Articles 14 and 16 of the Constitution of India.
95. Admittedly respondent No. 4 never held the post of Executive Engineer. The policy decision of the State which provides for a minimum years of service in a particular post for the purpose of consideration of his promotion to the next higher post is mandatory. It is true that in appropriate case, the State may relax the eligibility period but for that there must exist extraordinary and convincing circumstances and the said power may be exercised only for the purpose of meeting the extraordinary circumstances and/or in the exigancies of administration.
96. It is true that from Annexure-12 to the writ application it would appear that therein the subject-matter has been mentioned as 'criteria for the scheduled castes and scheduled tribes' but from a plain reading of the entire letter it would appear that the period required by a person to hold a particular post for the purpose of consideration of his promotion to the next higher post was in respect of the employees of the Public Works Department and not in respect of members of the scheduled castes or scheduled tribes thereof. It is, therefore, clear that the State of Bihar having taken into consideration the purported 'Kalaawadhi' in respect of the employees working in the Public Health and Engineering Department must be held to have acted illegally insofar as it did so upon taking into consideration an extraneous matters.
97. Although it has been contended on behalf of respondent No. 4 that in view of the aforementioned circular as contained in Annexure-C to the counter affidavit relating to the 'Kalaawadhi' for promotion of the employees of Public Health Engineering Department respondent No. 4 could have straightaway been promoted to the post of Superintending Engineer as he would be deemed to have held the post of Assistant Engineer for a period of 15 years, in my opinion the same does not have any force in view of the policy decision of the State as contained in Annexure-12 to the writ application as referred to hereinbefore.
98. Further in Annexure-D itself, the State sought to exercise its jurisdiction on relaxation. It is true that when a division is made, a presumption that the rule has been relaxed may be drawn but where the State itself has evolved a policy decision with regard to its power of relaxation of Rules, in my opinion, the State is bound thereby. It is evident that none of the criterian as mentioned in Annexure-19 as detailed hereinbefore have been complied with.
99. In Miss Sainda Hussain v. State of U.P. , it was held that the State will not be justified to relax the condition of eligibility in absence of statutory rules and also in view of the fact that the advertisement did not confer such power on the appointing authority.
100. In any event, power of relaxation is to be exercised in an exceptional case. It is inconceivable that the entire period during which respondent No. 4 was to hold the post of Executive Engineer could have been relaxed. The action on the part of the State in this regard appears to be wholly arbitrary and irrational and more so when thereby the case of the petitioners and various other persons who were senior to him had totally been disregarded.
101. Further although petitioners do no have any fundamental right to be promoted in terms of Article 16 of the Constitution of India, they were entitled to be considered therefor.
102. Although in Annexure-D to the counter affidavit, a reference has been made to the effect that respondent No. 4 was found lit for promotion to the post of Executive Engineer by the Departmental Promotion Committee in its meeting dated 4.6.1983, but the counsel for the respondents, when questioned, submitted that there is nothing to show that regular Departmental promotion Committee was constituted for the purpose of consideration of the cases of all eligible candidates including the respondent No. 4.
103. As noticed hereinbefore, the policy decision of the State as contained in Annexures-4 and 5 to the writ application have application only at the initial stare of recruitment and not in the matter of promotion. In this view of the matter, it is absolutely clear that the rule framed by the State for appointment in the post of class I Bihar Engineering Service were required to be complied with before respondent No. 4 could be promoted from the post of Assistant Engineer to the post of Executive Engineer.
104. While considering the case of respondent No. 4 for such promotion, although it was open to the State to consider his seniority w.e.f. 1963, but in view of Rules 17 of 1939 Rules as quoted hereinbefore, the promotion to the post of class 1 of the Bihar Engineering Service, that is, in the post of Executive Engineer could have been considered only in terms of the Rules aforementioned.
105. Learned Counsel for the respondent did not and in fact could not contend that for the purpose of grant of promotion to the respondent No. 4 the Bihar Engineering Service, Class 1, Rules, 1939, have no application. The said Rules have statutory force.
106. So far as the promotion to the post of Superintending Engineer is concerned, Rule 24 of the aforementioned rules was required to be followed.
The State, therefore, could not have violated the provisions of the said Rules in ignoring the case of the petitioners while purporting to promote respondent No. 4 directly to the post of Superintending Engineer from the post of Assistant Engineer. Even assuming that respondent No. 4 could have been promoted directly to the post of Superintending Engineer as he had completed the period of 15 years of service, as purported to have been contended on behalf of respondent No. 4, it is evident from the facts available on records that the petitioners had also completed 15 years of service. The course, therefore, open to the State even for that purpose was to consider the case of all eligible candidates including responding No. 4 the petitioners and other eligible candidates for considering their seniority and merit by constituting a Departmental promotion Committee and upon obtaining the concurrence of the Bihar Public Service Commission in respect of all the candidates, so that their merits could be judged.
107. From Annexure-D to the counter affidavit, it is evident that respondent No. 4 was considered for promotion on ad hoc basis for a period of six months only.
108. The seniority of an employees is a civil right. Whenever the seniority of a person is taken away by reason of an executive act, normally such a person is entitled to an opportunity of being heard. The State as a benevolent employer is entitled to confer certain benefits to persons who form a particular class but that cannot be done by depriving the vested right of other employees.
109. In terms of Article 14 of the Constitution a reasonable classification is permissible, but to form a class within a class is not.
110. It is further well known that even if a policy decision giving rise to conferment of certain benefits in favour of a privileged class may not be violative of Articles 14 and 16 of the Constitution, its unreasonable implementation may attract the frown of the equality clause. Further, when a person's seniority is fixed with a retrospective effect by creating a legal fiction, the same should not be extended any further and must strictly be implemented only within the framework thereof.
111. The petitioners although were appointed against temporary vacancies, it is evident that they became permanent Assistant Engineer by reason of confirmation and not by a fresh appointment in a different cadre. Their cadre remained the same. Even, as is indicated hereinbefore the appointees of Bihar Engineering, Class II services appointed as against the temporary vacancies could have been transferred to the posts of Assistant Engineer against permanent vacancies.
112. The scheme of 1939 rules clearly indicates that there are permanent posts and temporary also which are created to meet contingency and it may in due course be made permanent.
113. It is, therefore evident that the State itself recognised that the qualification, duties, salary etc. of temporary Assistant Engineers and permanent Assistant Engineers were the same as otherwise there could not have been any question of transferring one from the temporary post to the permanent post.
114. However, 'cadre' has been defined in the Bihar Service Code as meaning 'strength of service, It, therefore, appears to me to be inconceivable that there can be a temporary cadre inasmuch as the question of strength of any particular service for temporary purpose and that too in respect of Public Works Department, where there is a provision for permanent appointment should not arise. It therefore appears that the words 'temporary cadre' has been mentioned in the circular letter dated 26.2.1969 as contained in Annexure-X under some misapprehension. In this case, it may be mentioned that no such stand has been taken on behalf of the State.
115. In K. Prasad and Ors. v. Union of India and Ors. reported in AIR 1988 SC 537, it was held that although in that Regulations, the cadre 'senior' and 'junior' are mentioned, the same could not be placed in a water tight compartment as the said regulation did not indicate the number of post.
116. Further, it appears that the aforementioned circular letter dated 26.2.1969, as contained in Anaexure-X was later on superseded by a letter dated 17th April, 1973, which is Annexure-22 to the supplementary affidavit filed on behalf of the petitioners on 16.11.1990.
117. From a perusal of the aforementioned letter dated 17th April, 1973 (Annexure-22) it appears that 50% vacancies in the post of Assistant Engineer were filled up by direct recruit; 20% from the post of Engineering Assistant and 30% by reason of promotion of the overseers.
118. In any event, it is evident from the records that the petitioner No 2 was promoted to the post of Executive Engineer in the year 1963 (wrongly mentioned in the writ application as 1971), petitioner No. 3 was promoted to the post of Executive Engineer in 1972, petitioner No. 1 was promoted to the said post in 1973; petitioner No. 5 was promoted to the said post in 1973; petitioner No. 4 was promoted to the said post in 1980, petitioner No. 6 was promoted to said post in 1981.
119. In terms of Rule 27 of the Bihar Engineer Class I Service Rules, their seniority would reckon from the date of entry into service. Rule 27 aforementioned reads as follows:
27. Seniority.-Seniority in the service shall be determined by the date of the officer's substantive appointment to the service irrespective of the pay drawn by him provided that a member of the service who holds a superior post substantively shall always be deemed senior to an officer who holds an inferior post substantively. The seniority of officers appointed on the same date shall be determined according to the order of merit in which they were placed at the time of their selection for appointment.
120. On the other hand, so far as respondent No. 4 is concerned, it is evident from Annexure-E to the counter affidavit that he was considered for promotion to the post of Superintending Engineer. From Annexure-D to the counter affidavit, it appears that it has only been mentioned therein that a purported Departmental Promotion Committee, except the member of the Commission meaning thereby the Bihar Public Service Commission in its meeting dated 8.6.1983 recommended to the effect that respondent No. 4 is fit to be promoted to the post of Executive Engineer.
121. Learned Advocate General has conceded that whenever promotion is required to be effected for an ad hoc purpose, a Departmental Promotion Committee is constituted where in a member of Bihar Public Service Commission is not a member; but where the Departmental promotion Committee considers the cases of all eligible candidates for promotion in substantive capacity, a member of the Bihar Public Service Commission must be included in the Departmental Promotion Committee.
From Annexure-D, therefore, it is evident that no regular Departmental Promotion Committee considered the case of respondent No, 4 for his promotion from the post of Assistant Engineer Executive Engineer, vis-a-vis the other eligible candidates.
122. The said purported recommendations of the so called Departmental promotion committee dated 4.6.1983 has also not been brought on record. From Annexure-D it appears that it has specifically been mentioned therein that the question with regard to grant of promotion of respondent No. 4 to the post of Superintending Engineer was pending consideration before the Departmental Promotion Committee. In that memorandum to the Cabinet (Annexure-D), therefore, the Additional Secretary of the Urban Construction Department jumped to the conclusion that as respondent No. 4 purported to have been found fit for being promoted to the post of Executive Engineer, he may be considered also for promotion to the post of Superintending Engineer.
123. From the last sentence of paragraph 9 as also from paragraph 10 of Annexure-D, it appears that recommendations of the Bihar Public Service Commission was also aviated.
124. It is, therefore, clear that no legal Departmental Promotion Committee considered the case of respondent No. 4 along with other eligible candidates.
125. It may be true as has been contended by the learned Counsel for respondent No. 4 that the State proceeded on the basis that respondent No. 4 should be promoted to the post of Superintending Engineer in view of the fact that others who were said to be junior to him had also been promoted to the post of Superintending Engineer, But, in my opinion, such a question, also would have fallen for consideration before the Departmental Promotion Committee alone. It was for the Departmental Promotion Committee to consider on the basis of performance of the candidate to make recommendation as to whether respondent No. 4 was entitled to be granted promotion with retrospective effect.
In absence of any regular Departmental Promotion Committee having considered the case of respondent No. 4 along with other eligible candidates for promotion to the post of Executive Engineer from the post of Assistant Engineer, it does not stand to reason as to how an Additional Secretary recommended his promotion directly to the post of Superintending Engineer.
126. Ex facie, the recommendation dated 4.6.1983 of the Departmental Promotion Committee could have been considered only for grant of promotion for an ad hoc period not for any other purpose.
127. In any event, as indicated hereinbefore, the Departmental Promotion Committee never fixed the year of entry so far as respondent No. 4 is concerned in the post of the Executive Engineer which alone could have determined the inter se seniority amongst the petitioners and respondent No. 4.
128. As indicated hereinbefore, Sri Janki Prasad Singh was appointed in the year 1952 and he was promoted to the post of Executive Engineer in the year 1962. It is, thus inconceivable as to how J.P. Singh aforementioned could have been made junior to respondent No. 4 inasmuch as he on his own showing was recruited in Bihar Class II Engineering service only in the year 1963 as Assistant Engineer, that is, after Janki Prasad Singh became on Executive Engineer. No explanation has been given by the State as to whether there were seniority lists wherein both Janki Prasad Singh and N.K. Srivastava figured and how Janki Prasad Singh was made junior to the respondent No. 4 although Singh was promoted to the post of Executive Engineer in 1962 whereas according to the respondents themselves the respondent No, 4 was appointed as Assistant Electrical Engineer in the year 1963.
129. in any view of the matter, as the Departmental Promotion Committee any consequently the State of Bihar never specifically fixed as to from which date he would be deemed to have entered into the Bihar Engineering Service class I, he could not have been directly promoted to the post of Superintending Engineer only on the basis of his conferred seniority in terms of Annexure-10.
130. It is further evident that respondent No. 4 was considered for promotion to the post of Superintending Engineer only in the year 1983. At that point of time, as noticed hereinbefore, at least, the petitioner Nos. 1, 2, 3 and 5 were entitled to be considered for promotion to the post of Superintending Engineer as by that time they had also completed seven years of service in the post of Executive Engineer.
131. In Girija Shankar Mairh v. State of Bihar reported in 1972 BLJR 314, a Division Bench laid down the law in the following terms:
but to me it appears that it would be dangerous to permit the law or the rule-making authorities to disturb the seniority in the next higher rank by a retrospective operation of the law or the rule as, in my opinion, it will be clearly permitting them to violate Article 16 of the Constitution, if and when they so choose to do.
132. In S.K. Ghosh and Anr. v. Union of India and Ors. reported in 1968 (3) Supreme Court Reporter 631 : , the Supreme Court held that once a member of a service is selected for promotion to a higher grade, the seniority determined as a result of selection could not be made dependant on the seniority in the time scale. It was further held that:
It is clear that in these circumstances, even if there was justification for revising the inter se seniority inter se of the petitioners and respondents 3 to 7 in the time scale of class I service, that revision of seniority could not in any way affect their order of seniority in the grade of Directors to which they were promoted on the basis of selections in accordance with the Rules. It is, therefore, clear that even if it be held that the order of the Government dated 5th June, 1965 revising the seniority of these officers in the junior time scale was valid the order dated 17th January, 1966 revising the seniority in the grade of Directors of Postal Services is not valid and justified. The seniority in the grade of Directors of Postal Services was not dependant on the inter se seniority in the junior time scale and any alteration in the seniority in the latter would not form the basis for revising the seniority in the former grade.
Applying the same principle in this case, it must be held that although the State may be competent to revise the seniority of the petitioners vis-a-vis respondent No. 4 and others in the post of Assistant Engineers in Bihar Class II Engineering Service, once the petitioner were promoted to the post of Executive Engineers which was done in accordance with the Rules, namely, Bihar Class I Engineering Service Rules, their seniority in that cadre could not have been altered to their prejudice. This could as noticed herinbefore, only done in the event respondent No. 4 was given promotion in the post of Executive Engineer in Bihar class I Engineering service by the Departmental Promotion Committee with retrospective effect from a particular date to which he might have been found suitable.
133. In Union of India v. Basant Jair am Karnik and Ors. , the Supreme Court while considering the Rules framed by the Central Board of Revenue for promotion of Income Tax Officers Grade I class 1 to the grade of Assistant Commissioners of Income Tax, held that if persons were not considered because they had not completed specified minimum period of gazetted service and were considered and promoted later did not, when they were promoted confer upon the privilege of being placed in the list of Assistant Commissioners above, the persons who were earlier promoted.
134. In K. Madhavan and Anr. v. Union of India and Ors. , was held that retrospective appointment or promotion to a post should be given most sparingly and on sound reasoning and foundation. In this case from a perusal of Annexure-D to the counter affidavit, it does not appear that the Stale has given any cogent reasons for exercising power which should be done most aparingly. In fact nothing has been brought on record to show that merit of respondent No. 4 which is the main criteria for promotion was taken into consideration. Evidently, merit of a candidate will have to be judged along with the cases of all eligible candidates.
135. In S. Krishna Murthy v. General Manager, Southern Railway AIR 1977 SC 1868, the Railway servants whose promotion was denied owing to an administrative error and a writ petition was filed, it was held that the court could not put the clock back for all purposes and treat him as having been notionally appointed as Traffic Inspector, but, it in the interest of justice of the case directed the Railway authorities to appoint him as a Traffic Inspector from the date on which he came to the High Court, that is December 20, 1967. That order was passed taking into consideration that those who were promoted earlier might be adversely, affected if a direction to the writ petitioners/appellants' appointment as Traffic Inspector with effect from an earlier date is passed.
136. The date of entry in the class I Bihar Engineering service was required to be determined in accordance with the Rules in terms of recommendation of the Departmental Promotion Committee and in view of the matter, there cannot be any presumption as sought to be raised that respondent No 4 entered into the services of class I Engineering service on his deemed completion of 8 years in the post of Assistant Engineer inasmuch as thereby he would be held to have been promoted to the post of Executive Engineer in the year 1971 itself, although in fact he was appointed in the post of Assistant Engineer in February 1975. There is no presumption that somebody has been appointed by necessary implication. Reference in this connection may be made to University of Kashmir and Ors. v. Dr. Mohd. Yasin and Ors. .
137. Even S.S. Hassan, J. also in his judgment has observed that there are certain irregularities in the matter of promotion of respondent No. 4.
138. It is now well known that the State is bound to follow the Rules. The citizens also expect that the Government will follow the statutory rules and pass an order in accordance therewith. The State must be governed by rules of law and not by rules of man.
It is also now well known that very often the Government themselves get trapped on account of their own mistakes and action in excess of what is provided in the Rules. The Courts times without number have held that the Rules framed by the State governing conditions of services either in terms of proviso to Article 309 of the Constitution of India or otherwise being solemn in nature and having binding effect, acting in contrary manner to the Rules in bound to create problems and dislocation. The State, therefore, was under Constitutional obligation to strictly follow the Rules framed by itself and their action should have also been regulated in terms thereof.
139. So far as the question of the purported delay and laches on the part of the petitioner in approaching this Court is concerned, the submission has been made on the basis that Annexures-9 and 10 were passed in the year 1980 and as such the petitioners could not have questioned the same in the year 1983.
140. This writ application was filed in September, 1983. Respondent No. 4 was promoted to the post of Superintending Engineer in August, 1983. In paragraph 40 of the writ application it has clearly been stated by the petitioners that they had no knowledge about the issuance of the notifications as contained in Annexures 9 and 10 to the writ application.
141. In Annexure-10 only the name of Janki Prasad Singh appeared. The petitioners have contended, as noticed herein before, that no gradation list of the Assistant Engineers wherein the name of the petitioners vis-a-vis respondent No. 4 figured as such was published nor according to the petitioners any gradation list was published in which the names of both Janki Prasad Singh and N.K. Srivastava appeared. It is further evident that Janki Prasad filed a writ application in this Court which was registered as C.W.J.C. No. 1240/81 and the same remained pending till 2.9.1986 when it was allowed to be withdrawn having become in fructuous as by that time said Janki Prasad Singh retired.
142. The respondents have merely taken a point that Annexures-9 and 10 were published in the Gazette and therefore the petitioners must be deemed to have knowledge. It is well known that publication in the Gazette itself does not by itself constitute knowledge.
Reference in this connection may be made to S.S. Bhalotia v. National Coal Development Corporation 1982 BLT 253.
143. In Union of India v. S. Krishna Murthy and Ors. , which has been cited by Mr. Basudeo Prasad, it has been held that when a writ application has been disposed of on merits by the High Court and/or Tribunal, the Supreme Court shall not dismiss the writ application only on the ground of laches. In K. Prasad and Ors. v. Union of India and Ors. , it was held that when complicated issues are involved, the writ petition should not be thrown, out on the ground of delay and laches alone.
144. In view of difference in opinion between two Hon'ble Judges of this Court, this case was placed by Hon'ble the Chief Justice before Mr. B.P. Sinha, J.
145. From the order-sheet dated 17.3.1989, it appears that this case was placed before Hon'ble Mr. Justice B.P. Sinha and was heard on 17.3.1989 3.3.1989. 2.5.1989, 3.5.1989, 15.5.1989, 17.5.1989 but by an order dated 3.7.1989 this case was directed to be listed before another Bench.
146. This case was again listed before Hon'ble Mr. Justice P.S. Mishra on 7.8.1989 and was heard in part. On 14.8.1989, 16.8.1989, 17.8.1989, 19.8.1989, 21.8.1989, 28.8.1989 and 29.8.1989 the hearing went on and then judgment was reserved. However, no judgment was delivered by the Hon'ble Judge. In June, 1990 Hon'ble Mr. Justice P.S. Mishra was transferred from this Court.
147. Thereafter this case was put up before Hon'ble Mr. Justice S.B. Sanyal for hearing and was heard in part on 15.10.1980 and by an order dated 1.11.1990 this case was directed not to be treated as part heard and further direction was given to list this case before another Bench.
148. In this situation, this case has been placed before this court.
149. In his judgment, P.B. Prasad, J. has held that the writ petition cannot be dismissed on the ground of delay and laches alone inasmuch as the petitioners have fairly explained the delay S.S. Hassan, J, however, held otherwise.
150. Taking thus all facts and circumstances into consideration and particularly in view of the fact that the matter has been argued on different dates before different. Benches, in my opinion, it is not a case where I should refuse to exercise my discretion only on the ground of delay and laches.
151. Thus, while agreeing with the views of P.B. Prasad, J. I find myself unable to agree with the views S.S. Hassan, J.
152. Before parting with the case, it may be mentioned that it appears that respondent No. 4 has now been promoted to the post of Engineer-in-chief.
153. An application was filed on behalf of the petitioners which was at flag Y with a prayer for maintenance of status quo and by order dated 25.7.1990 it was directed:
I, therefore, direct that respondent No. 4 if promoted as Engineer-in-Chief that will be on ad hoc basis till the disposal of the writ petition and in the event the writ petition is dismissed, his ad hoc period will be deemed to be the period of regular appointment as Engineer-in-Chief. Alternatively, if the writ petition is allowed and it is held that respondent No. 4 is not entitled to the said post, he will cease to be Engineer-in-Chief.
154. In this situation, in my opinion, the best course would be that the State should immediately constitute a valid and legal Departmental Promotion Committee for consideration! of the case of the petitioners vis-a-vis respondent No. 4 and all other eligible candidates for the purpose of finding out as to from which date respondent No. 4 should have been promoted in the post of Executive Engineer and, thereafter, proceed to consider the promotions of all eligible candidates including petitioners and respondent No. 4 in the post of Superintending Engineer and above. It would be open to the Departmental Promotion Committee upon consideration of all the relevant facts, to fix the dates from which the successful candidate(s) would be promoted, and on that basis fresh seniority list both in the cadre of Executive Engineer and Superintending Engineer shall be prepared.
155 In the result, this writ application is allowed and notifications as contained in Annexures 9, 10, 11 and 18 are quashed. However, in the facts and circumstances of this case, the parties are directed to bear their own costs.