Jharkhand High Court
Kameshwar Sahu vs The State Of Jharkhand on 16 January, 2019
Equivalent citations: AIRONLINE 2019 JHA 961, 2019 (2) AJR 719
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 5102 of 2009
.....
1. Kameshwar Sahu, son of Late Jhabhu Sahu, Resident of C/o.
Sri Dhanraj Bhagat, Resident of-Birga Colony, Karamtoli,
Ranchi 834008, P.O.-Morabadi, P.S.-Lalpur, District-Ranchi.
2. Raj Kumar Prasad, son of Late Mathura Prasad, Resident of
C/o. Badri Rajak, (Upper Floor of Imam Clinic), Old Bus
Stand, Jhumari Telaiya, P.O. and P.S.-Jhumari Telaiya,
District-Koderma.
3. Alok Kumar, son of Late Ramchandra Prasad, Assistant
Engineer, Meso Office, Chakradharpur, P.O. and P.S.-
Chakradharpur, District-Singhbhum West-Chaibasa.
..... Petitioners
Versus
1. The State of Jharkhand,
2. The Principal Secretary, Road Construction Department,
Government of Jharkhand, Ranchi.
3. The Engineer-in-Chief-cum-Additional Commissioner-cum-
Special Secretary, Road Construction Department,
Government of Jharkhand, Ranchi.
... Respondents
With
W.P. (S) No. 2496 of 2009
.....
1. Kameshwar Sahu, son of Late Jhabhu Sahu, Resident of C/o.
Sri Dhanraj Bhagat, Resident of-Birga Colony, Karamtoli,
Ranchi 834008, P.O.-Morahabadi, P.S.-Lalpur, District-
Ranchi.
2. Nityanand Singh, son of Late Raj Mangal Singh, resident of
C/o Sharma Nand Singh, Kebatpura, Dangal Para, Dumka,
P.O. & P.S. Dumka, District-Dumka.
3. Raj Kumar Prasad, son of Late Mathura Prasad, Resident of
C/o. Badri Rajak, (Upper Floor of Imam Clinic), Old Bus
Stand, Jhumari Telaiya, P.O. and P.S.-Jhumari Telaiya,
District-Koderma.
4. Alok Kumar, son of Late Ramchandra Prasad, Assistant
Engineer, Meso Office, Chakradharpur, P.O. and P.S.-
Chakradharpur, District-Singhbhum West-Chaibasa.
..... Petitioners
Versus
1. The State of Jharkhand,
2. The Principal Secretary, Road Construction Department,
Government of Jharkhand, Ranchi.
3. The Engineer-in-Chief-cum-Additional Commissioner-cum-
Special Secretary, Road Construction Department,
Government of Jharkhand, Ranchi.
... Respondents
2
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CORAM : HON'BLE MR. JUSTICE PRAMATH PATNAIK
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For the Petitioners : Mr. Saurabh Shekhar &
Mr. Rishiraj Verma Advocates
For the Respondent : Mr. A. K. Mehta, Advocate
(in wps5102/09)
For the Respondent : Mr. D. K. Dubey, Sr. S.C.I
(in wps2496/09)
.......
CAV on 25/06/2018 Pronounced on 16/01/2019
Per Pramath Patnaik, J.
In both the writ petitions, since the reliefs sought for are more or less similar in nature, hence, with the consent of both the parties, they have been heard together and are being disposed of by this common order.
2. In W.P. (S) No. 5102 of 2009, the petitioners have inter alia prayed for quashing the decision taken by the respondents- authorities as contained in circular dated 01.09.2009; and for quashing the entire seniority list as contained in order dated 27.10.2009 whereby the respondents-authorities have completely changed the position of the petitioners which were placed in the office order dated 30.10.2007 and final seniority list published on the basis of the higher qualification AMIE/Degree after inviting objections from all concerns. Further prayer has been made for direction upon the respondents to grant promotion to the petitioners on the higher post of Assistant Engineers as per the seniority list published in memo dated 30.10.2007 and also prayer has been made for quashing the order as contained in order dated 20.12.2010 whereby a 3 fresh seniority list has been published in supersession of the seniority list as contained in order dated 27.10.2009 which has been issued during the pendency of the writ application.
3. The connected writ petition i.e. W.P. (S) No.2496 of 2009 has been filed by the petitioners praying inter alia for consideration of their cases of promotion from the post of Junior Engineer to the post of Assistant Engineer on the basis of seniority list published on 30.10.2007.
4. Shorn of unnecessary details, the facts as has been disclosed in the writ applications is that the petitioners have been appointed against Diploma Holder Junior Engineers and during course of their employment, the petitioners have acquired the AMIE Degree. In the absence of any statutory Rule, seniority list was prepared on 30.10.2007 on the basis of getting the degree of AMIE after inviting objections from all concerns. In the said seniority list, the positions of the petitioners in W.P. (S) No. 5102 of 2009 have been shown at serial nos.4, 3 and 5 respectively as per Annexure-1 to the writ application. Since, no Departmental Promotion Committee was convened in spite of vacancies in the promotional post of Assistant Engineers the petitioners were made In-charge Assistant Engineers. Due to lack of initiation in convening the DPC for consideration of promotion of the eligible candidates including petitioners to the post of Assistant Engineers the petitioners were constrained to approach this Court in W.P. (S) No.2496 of 2009. But, during pendency of the writ application, circular dated 01.09.2009 was issued inserting Clause-Gha by which it has been decided that 4 for preparation of seniority list of qualified Junior Engineers, the basis will be that the Degree Holder senior Junior Engineers will be senior to the Degree Holder Junior Engineers. In the said Circular at Clause-Anga it has been decided to prepare another gradation list on the basis of required qualification as per Annexure-3 to the writ application. Thereafter, order dated 27.10.2009 has been issued by which a fresh gradation list has been published whereby the inter-se position of the petitioners have been changed and they have been placed below the persons who have got AMIE Degree subsequent to the petitioners. Being aggrieved by the another seniority list dated 27.10.2009, the petitioners submitted representations vide Annexure-7 series and 8 to the writ application but it did not evoke any response, which constrained the petitioners to approach this Court under Article 226 of the Constitution of India for redressal of their grievances.
5. Learned counsel for the petitioners, during course of hearing have strenuously urged that the decision of the respondents in issuing the circular dated 01.09.2009 is to nullify the final seniority list dated 30.10.2007 amounts to arbitrary exercise of power. Because, by virtue of the said decision, the position of the petitioners have gone down in the seniority list published on 27.10.2009, whereby the prospects of promotion of the petitioners to the post of Assistant Engineer is getting squeezed. Learned counsel for the petitioners further submits that the seniority list as contained in letter dated 27.10.2009 has been prepared without any opportunity of hearing to the 5 petitioners. Learned counsel for the petitioners further submitted that the action of the respondents in not convening the DPC on the basis of the final seniority list dated 30.10.2007 is tainted with mala fide intention whereby the legitimate expectations of the petitioners have been belied. Learned counsel for the petitioners further submitted that the action of the respondents in not convening DPC in spite of clear cut vacancy in the Assistant Engineers Cadre amounts to violation of Article 14 and 16 of the Constitution of India. Learned counsel for the petitioners referring to circular dated 22.07.1998 issued by the erstwhile State of Bihar in which the decision for fulfilling the post of 10% of the vacancies of the Assistant Engineers in one calender year from the Junior Engineers who have obtained AMIE Degree have been taken submitted that the said circular finds mention in the impugned circular dated 01.09.2009.
6. Controverting the averments made in the writ application, a counter-affidavit has been filed by the respondents wherein it has been submitted that vide Departmental office order no.122 read with memo no. 2526(s) dated 14.05.2007, a provisional inter-se seniority list of Junior Engineers, who obtained AMIE or equivalent qualification was published and objections were invited in this regard from them. In the light of order passed by Hon'ble Apex Court in Civil Writ No.6265 of 1999, in the case of Pramod Kr. Pankaj Vs. State of Bihar and Others and after going through the objections received from the Junior Engineers, final seniority list was published vide departmental office order dated 30.10.2007. Thereafter, the objections were again filed by some 6 Junior Engineers on the final seniority list and they pointed out that the seniority list should be rectified on the basis of date of the passing of AMIE or equivalent qualification as mentioned in Para 4(d) of resolution dated 22.07.1998 of Road Construction Department, Bihar, Patna. Since, the promotion has not been given to the AMIE Degree holder Junior Engineers to the post of Assistant Engineers then the settled issue that arrangement can also be done that the seniority list of those Junior Engineers who have passed AMIE/Degree by July, 2008, their seniority list may be prepared in the same order which is in their original cadre of Junior Engineers and on the basis of that seniority they were promoted as per vacancy available before July, 2008. With regard to inter-se seniority of AMIE or equivalent qualification holder, seniority list of those Junior Engineers who have obtained above eligibility before issuance of proposed modified resolution may be prepared in the order of their basic grade seniority and they may be promoted as per rule depending on the vacancy available up-to the date of issuance of modified resolution as per the government reservation policy. It has further been submitted that keeping in view the facts, the policy decision taken by the Road Construction Department, Government of Bihar vide resolution dated 21.02.2008, the advice of Personnel, Administrative Reforms and Rajbhasha Department, Jharkhand the State Government has issued resolution vide memo dated 01.09.2009 for the promotion of working Junior Engineers who have obtained AMIE/equivalent eligibility prior to or after coming in the service and decision 7 taken is as follows:-
(i).Keeping intact 62% quota of the total cadre strength of Assistant Engineers of Engineering Service-Class-II in works Department for direct requirement; 10% quota for AMIE and equivalent degree holder Junior Engineers and rest 28% quota for promotion of working Diploma Holder Junior Engineers be fixed.
(ii).Accordingly, promotion of AMIE/equivalent qualification Junior Engineer's to Assistant Engineer's be given against the vacancies calculated for each calendar year (1 st January to 31st December) against 10% posts of total cadre strength of the Assistant Engineers. If in any calendar year the vacancies admissible as above will be more in comparison to the available number of AMIE and equivalent eligibility holder Junior Engineers, then balance vacancy will not be carried forward for next year. But those vacancies will be added in the category wise available vacancy for promotion of Diploma Holder Junior Engineers the vacancies of AMIE or equivalent qualification of General category will get added i.e. to vacancy of General Category Diploma Holder Junior Engineers and the vacancies for reserved categories to the Junior Engineers of respective reserved categories.
(iii).The facility of promotion to the post of Assistant Engineers on the basis of the quota mentioned in above sub para (i) will be applicable to all those Junior Engineers who have passed AMIE/equivalent Engineering degree examination either in their service period or before entering the service and have completed five years of minimum service.
(iv).The degree holder senior Engineers will be placed above the Degree Holder Junior, Junior Engineer in preparing the list of eligible Junior Engineers against the vacancy under the 10% quota mentioned above.
(v).If AMIE or equivalent qualification holders have not 8 been given regular promotion to the post of Assistant Engineers till today, then seniority list of those Junior Engineers who have obtained above eligibility upto the date of issue of modification resolution, may be prepared according to above para (iv) and promotion to be given against available vacancies according to government reservation policy.
7. It has further been submitted that as a matter of fact, order dated 27.10.2009 is not a seniority list rather this list is drawn upon after strict compliance of the principles laid down in resolution dated 01.09.2009 of the seniority list of Junior Engineers. Since the seniority list has been published after considering the objections to the draft list, there is no need for further invitation of the objection to this list.
8. Learned counsel for the State apart from reiterating the submissions made in the counter-affidavit referrubg to decision rendered in the case of Pramod K. Pankaj Vs State of Bihar & Ors as reported in (2004) 3 SCC 723 submitted that in case of policy matter, the Court under Article 226 of the Constitution of India ought not to exercise the power of judicial review unless the said policy is replete with arbitrariness or in breach of any provisions of the Constitution of India.
9. After having bestowed my anxious consideration to the rivalized submissions advanced by counsel for the parties and on perusal of the documents on records, it is quite apparent that the petitioners are holding the substantive posts of Junior Engineer and they have been declared successful in A.M.I.E. It further appears that initially respondents published a 9 provisional inter-se seniority list vide memo dated 14.05.2007 and after meting out the objections, final seniority list was published on 30.10.2007.
10. But, again on this seniority list dated 30.10.2007, some Junior Engineers raised objections pointing out that seniority list should be rectified on the basis of date of passing of AMIE or equivalent qualification, as contained in Para 4 (d) of Resolution dated 22.07.1998. Thereafter, the Road Construction Department, Government of Jharkhand came with a Resolution dated 01.09.2009, after taking into account the decision rendered by Hon'ble Apex Court, objections raised by Junior Engineers, opinion received from the Advocate General and Department of Personnel, Administrative Reforms and Rajbhasa Department, and basing on this Resolution dated 01.09.2009, seniority list was published vide order dated 27.10.2009, wherein the petitioners have been placed below in respect of seniority list dated 30.10.2007.
11. At this juncture, there is no denial of the fact that after publication of final seniority list dated 30.10.2007 another list dated 27.10.2009 was published putting the petitioner in disadvantageous position. It is settled position of law that in service jurisprudence that once a seniority list has attained its finality after inviting objection is being superseded by another seniority list is vulnerable in law. Even, in the fact of the case at hand, wherein the respondents have published fresh seniority list dated 27.10.2009 on the basis of resolution of Department and on the basis of guidelines given by Hon'ble Apex Court, 10 opportunity of hearing and invitation of objection from all concerned ought to have been given, which in the case at hand has not been done. But, in the meantime, one decade has lapsed and after publication of seniority list dated 27.10.2009 promotion on the post in question must have been given to some persons, who are not before this Court.
12. In view of the reasons stated in the foregoing paragraphs, it would be apposite to dispose of the writ application with liberty to the petitioners herein to submit objection by way of filing representation before respondent no. 2 in support of their claim for promotion and seniority list within a period of four weeks, who upon receipt thereof shall consider the case of the petitioners and if they are found eligible for promotion on the post in question, after convening the meeting of Departmental Promotion Committee such benefits may be extended to them within a period of eight weeks thereafter.
13. With the aforesaid observations and directions, the writ applications stand disposed of.
(Pramath Patnaik, J.) RKM/Alankar/-