Jharkhand High Court
Hari Manmohan Choudhary vs Chairman,J.S.E.B. & Ors on 17 February, 2009
Author: Gyan Sudha Misra
Bench: Chief Justice
L.P.A. NO. 616 of 2002
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In the matter of an Appeal under Clause 10 of the Letters Patent ;
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Hari Manmohan Choudhary ..... Appellant
Versus
The Chairman, Jharkhand State
Electricity Board & ors. ..... Respondents
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For the Appellant : Mrs.A.R.Choudhary
For the Respondents : Mr.A.K.Pandey &
Mr.Manoj Tandon
PRESENT
HON'BLE THE CHIEF JUSTICE
HON'BLE MR.JUSTICE D.K.SINHA
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By Court : This appeal has been preferred by the appellant- Hari
Manmohan Choudhary against the judgment and order dated 27.9.2002 passed by the learned Single Judge in CWJC No.671 of 1999(R), by which the writ petition filed by the petitioner claiming promotion on the post of Assistant Electrical Engineer was rejected.
2. The petitioner-appellant had claimed promotion on the ground that he had obtained higher degree of AMIE prior to the respondent no.5 and, therefore, he was entitled to be promoted on the post prior to the respondent no.5, who had acquired qualification of AMIE in the year 1994. The learned Single Judge took note of the fact and dismissed the writ petition holding therein that the petitioner's claim for promotion prior to respondent no.5 (since deceased) is not sustainable. The petitioner- appellant relied upon a promotional scheme adopted by the Road Construction Department, Government of Bihar, which is not applicable to the Scheme adopted by the Bihar State Electricity Board and hence the plea of the petitioner-appellant claiming promotion was rejected. 2
3. The petitioner, who is the appellant herein, thereafter preferred the instant appeal and during pendency of this appeal, the petitioner-appellant was granted promotion to the post of Assistant Electrical Engineer and during pendency of the appeal, the contesting respondent no.5- Bal Gangadhar Tilak also expired. This Court, therefore, was of the view that the appeal had to be treated as infructuous, since the appellant's claim of promotion had already been allowed as promotion was granted to him and in sofar as his claim for seniority from the date when respondent no.5 was promoted, had to be treated as having abated, since respondent no.5 has expired. Besides this the prayer of the petitioner before the learned Single Judge was only to the effect that he had wrongly been denied promotion to the post of Assistant Electrical Engineer and that having already been granted by the respondents, we did not accept the submission of the counsel for the appellant that this Court should further probe into the matter in regard to the claim of seniority over the deceased respondent no.5, who admittedly was senior to the petitioner in the cadre of Junior Electrical Engineers and was also granted promotion by the Bihar State Electricity Board since on the date of consideration of promotion , he was senior to the appellant and was also possessing the qualification of AMIE.
4. No Rule of the Bihar State Electricity Board was brought to the notice of this Court to the effect that although a Junior Electrical Engineer ranking senior in the same cadre, would be placed junior to the persons who have acquired higher qualification at an earlier date ignoring the fact that by virtue of appointment he ranks senior to the one who acquired higher qualification at an early date but was junior.
5. Besides this, on the date of consideration of promotion by the Departmental Promotion Committee in the year 1999, the petitioner as also respondent no.5 were both qualified for promotion but the deceased respondent no.5 admittedly was senior to the petitioner by virtue of his date of appointment . Thus on the date of consideration by the Departmental 3 Promotion Committee, when deceased respondent no.5 was senior to the petitioner and both were equally qualified, the plea of the petitioner- appellant claiming seniority over respondent no.5 cannot be held sustainable in absence of any statutory Rule to the effect that acquisition of higher qualification at an early date would hold him senior at the time of promotion ignoring their seniority in the same cadre.
Be that as it may, the respondent no.5 having already expired, the plea of the petitioner-appellant claiming seniority over and above the deceased respondent no.5 will have to be treated as having abated.
6. The appeal, under the circumstance, has to be treated infructuous in sofar as the claim of promotion is concerned since promotion has already been granted to the appellant and in sofar as the claim of seniority against the deceased respondent no.5 is concerned, the same will have to be treated as having abated.
( Gyan Sudha Misra,C.J.) ( D.K.Sinha, J. ) Jharkhand High Court Ranchi The 17th February, 2009 G.Jha/AFR