Patna High Court
Mahesh Jha, Indu Bhushan Singh And Ors. ... vs The State Of Bihar And Ors. on 8 May, 2007
Equivalent citations: 2007(2)BLJR2136
Author: Sudhir Kumar Katriar
Bench: Sudhir Kumar Katriar
JUDGMENT Sudhir Kumar Katriar, J.
Page 2137
1. The three writ petitions have been preferred with a common prayer to direct the respondent authorities to consider the cases of the petitioners for promotion to the Bihar Industries Service (hereinafter referred to as 'the B.I.S.'), on the basis of a Page 2138 joint gradation list of the functionaries mentioned in Schedule-IV of the Bihar Industries Service Cadre Rules 1987 (hereinafter referred to as 'the Rules'), prepared on the basis of seniority-cum-merit. The official respondents have filed their counter affidavits and have opposed the writ petitions. Respondent No. 6 of C.W.J.C. No. 4959 of 2002 (Nirman Kishore Jha) has filed a separate counter affidavit and has made common cause with the official respondents. The petitioners in the three writ petitions belong to Group-C, and respondent No. 6 of C.W.J.C. No. 4959 of 2002 belongs to Group-B, of Schedule-IV of the Rules.
2. The facts, and the issues raised, are common to the three writ petitions, and are being disposed of by a common judgment. The basic facts are not in dispute and shall be drawn from C.W.J.C. No. 4959 of 2002. The State Government framed the Rules in exercise of powers conferred by proviso to Article 309 of the Constitution of India for purposes of recruitment and promotion to B.I.S. Rule-2 provides the definitions, Clause (a) whereof defines 'Cadre', and Clause (1) defines 'Members of the service' to mean a person appointed to the Bihar Industries Service under the provisions of the Rules. Rule-3 provides constitution of service cadre and classification of posts, Rule-4 provides the sources of recruitment, Clause (a) provides for direct recruitment in accordance with the provisions laid down in Part-III, and Clause (b) by promotion in accordance with the provisions laid down in Part-IV. We are not concerned with direct recruitment, and have to deal with the recruitment by promotion from amongst the employees mentioned in Schedule-IV of the Rules. It is relevant to state that Schedule-I is in terms of Rule-3 and provides the sanctioned strength of B.I.S. It provides five flights of hierarchy in the B.I.S., at the top of which is the seniormost functionary designated as Additional Director and at the bottom of which are ten different designations with different duties and functions and in the pay-scale of Rs. 1,000-1,820 (unrevised). Schedule-IV is the "List of Officers in subordinate service who shall be eligible for promotion to the post of Managers/Asstt. Directors and others in the scale of Rs. 1,000-1,820". In other words, the functionaries included in Schedule-IV shall be considered for promotion to the bottom of the category of officers mentioned in Schedule-I. Schedule-IV comprises of three categories of officers who have been grouped as 'A, B and C'. Category-A functionaries are gazetted officers and are described as Assistant Managers or equivalent posts. Category-B functionaries are Industrial Extension Officers, and category-C officers are in substance in the category of Staticians. Categories-B and C are non-gazetted functionaries. The common feature between the three categories is that they have been enjoying the same pay-scale of Rs. 880-1510 (unrevised), and are entitled to consideration for promotion to Category-5 of Schedule-I.
3. Aggrieved by the provisions made in Schedule-IV, Category-A functionaries preferred writ petitions in this Court challenging the validity of the Rules, inter alia, on the ground that gazetted officers have been clubbed with non-gazetted functionaries in Schedule-IV. The writ petitions succeeded, Schedule-IV was declared to be ultra vires, and upheld by this Court in appeal. The association of non-gazetted functionaries, namely, Categories-B and C, preferred appeals in the Supreme Court which were allowed by judgment dated 10.5.2002, that of this Court was set aside, and reported in A.I.R. 2000 S.C. 2042 (Bihar State Subordinate Industries Field Page 2139 Officers Association v. Kapildeo Prasad Singh and Ors. The Supreme Court has in substance held that Schedule-IV is valid, is based on a policy decision, and have been grouped together for the purpose of promotion to B.I.S. for rational reasons.
4. After the Supreme Court disposed of the matter, the respondent authorities took up the task of promotion of the functionaries of Schedule-IV and took the policy decision that they shall be promoted in accordance with, and in proportion to, the sanctioned strength of the three categories. After determining the sanctioned strength of the three groups, the authorities decided that members of categories-A, B and C of Schedule-IV shall be promoted in proportion to the ratio of 2:4:1.
5. The Departmental Promotion Committee (hereinafter referred to as 'the D.P.C.') at its meeting held on 26.12.2001 (Annexure-5) considered the cases of promotion of the eligible candidates as per Schedule-IV and in accordance with the proportion so determined by the State Government with the concurrence of the Bihar Public Service Commission, resolved to promote them to B.I.S. and impugned herein. By order dated 15.5.2002 on the present writ petition, this Court restrained the respondent authorities from making promotions till further orders. In effect, the operation of the impugned order dated 26.12.2001 (Annexure-5) was stayed. Aggrieved by the interim order, respondent No. 6 preferred L.P.A No. 15 of 2004, and the analogous appeals, which were disposed of by order dated 14.11.2005, whereby the interim order passed on the writ petition was modified in the following terms:
Any promotion granted during the pendency of the writ petition shall be subject to and shall finally abide the final decision in that case. Further, any promotion granted during the pendency of the writ petition shall not confer upon the promotees any right, equitable or otherwise, until the dispute(s) is/are finally decided in the writ case."
In view of the order in appeal, the respondent authorities have implemented the minutes of the D.P.C. (Annexure-5), and have promoted the eligible persons in the ratio of 2:4:1, subject to the result of the present writ petitions, vide notification dated 20.2.2006 (Annexure-G),
6. While assailing the validity of the impugned action, learned Counsel for the petitioners submits that promotions have to be done on the basis of seniority-cum-merit mandated by Rule-11(c). The respondent authorities will first have to prepare a joint cadre on seniority-cum-merit basis of the functionaries of Schedule-IV. By fixing the quota, the D.P.C has acted in the teeth of Rule 11(c) and has sought to supplant the same. In case of a lacuna in the Rules, the authorities can by executive instructions supplement but cannot supplant. He relies on the following reported judgments:
(i) (Sant Ram Sharma v. State of Rajasthan and Ors. ).
(ii) 1982 B.B.C.J. 45 (Bishundeo Mahto v. The State of Bihar and Ors. ).
6.1 He next submits that persons at serial Nos. 22 to 32 of Group-B occurring in Annexure-5 were ineligible because they were in the unrevised pay-scale of Rs. 850-1,360/-. The eligibility for promotion depends on the pay-scales being enjoyed by the eligible candidates at the relevant point of time. The combined gradation list of the functionaries of Schedule-IV have to be prepared as on 1.1.1996.
Page 2140
7. Respondent Nos. 1 to 5 (the official respondents), and respondent No. 6, have made a common cause in supporting the impugned action and have submitted that the quota determined by the D.P.C. has been indicated in paragraph 18 of the judgment of the Supreme Court. The quota has been fixed on a very rational and objective basis and according to the strength of sanctioned posts of the three categories mentioned in Schedule-IV. They next submitted that it has been done in consultation with the Commission. It is further submitted that a combined seniority list, on seniority-cum-merit basis in terms of Rule 11(c) is not possible until and unless there is a merger of three sources. He relies on the following reported judgments:
(i) paragraph-23 (The State of Punjab v. Joginder Singh).
(ii) , paragraph 13 (M.B. Joshi and Ors. v. Satish Kumar Pandey and Ors. ).
7.1 The quota system is a just and satisfactory solution in a situation where the feeder categories are drawn from three distinct categories with different mode and manner of recruitment. They rely on the judgment of the Supreme Court reported in A.I.R. 2001 S.C., paragraph 6 (Kuldeep Kumar Gupta and Ors. v. Himachal Pradesh State Electricity Board and Ors. ).
7.2 They next submitted that the seniority-cum-merit stated to in Rule 11(c) is in relation to each category of Schedule-IV, otherwise the Rules would become unworkable. The proportion so fixed by the authorities in consultation with the Commission has been consistently acted upon and should not be disturbed. They rely on the judgment of the Supreme Court , paragraphs 8 and 9 (M.B. Joshi and Ors. v. Satish Kumar Pandey and Ors. ). The quota fixed by the department with the approval of the Commission supplements the Rules and in no way supplants any provision, and does not derogate from, Rule-11(c). They rely on the judgments of the Supreme Court in Sant Ram Sharma v. State of Rajasthan and Ors. (supra) and Bishundeo Mahto v. The State of Bihar and Ors. (supra) and (K.H. Siraj v. High Court of Kerala and Ors. ). They lastly submits that no formal notification was needed.
8. I have perused the materials on record and considered the submissions of learned Counsel for the parties. The primary question for consideration is the meaning and content of the expression "Seniority-cum-Merit" occurring in Rule 11(c), and the manner in which it has to be given effect in conjunction with Schedule-IV. Part-IV of the Rules is headed "Recruitment by promotion", and Rule-11 occurring therein is reproduced hereinbelow:
11. Channel of Promotion.- (a.) Promotion to any post shall be made from amongst the officers holding posts just below.
(b) Promotion shall be made from the joint cadre of officers of the Bihar Industries Service on the basis of seniority-cum-merit.
(c) Promotion to the initial rung of the cadre shall normally be made from amongst the officers listed in Schedule-IV appended with these rules on the basis of seniority-cum-merit.
9. The Rules regulate promotions from the departmental functionaries to B.I.S., and within B.I.S. itself, apart from direct recruitment. We are here concerned with the first, one only. Rule-12 fixes the quota to fill up the posts of Group-5 of Schedule-I, in the pay-scale of Rs. 1,000-1,820/-(unrevised), and the quota for Page 2141 promotees shall normally be 50 per cent and can go upto 75 per cent. Rule-15 provides that the D.P.C. shall make selection of officers on consideration of seniority-cum-merit from amongst the eligible officers. The three feeder categories are to be found in Schedule-IV. In other words, seniority-cum-merit is the sole criterion for promotion. As stated earlier, Schedule-IV comprises of three groups and neither the Rules nor the records disclose the basic educational qualifications, and the mode and manner of their recruitment. On the face of it, the three appear to be drawn from different sources and are discharging different duties and functions. Another important feature is that Category-A officers are gazetted officers, whereas Group-B and C are non-gazetted officers. The only common feature is that they enjoy a common pay-scale (Rs. 880-1510), and have been grouped together for the purposes of promotion. In such a situation, it appears to me that a combined gradation list on the basis of seniority-cum-merit of the three groups may not be a dependable basis and may not been practicable too. Law is well settled that no surplusages is attributable to the legislature. Applying the doctrine of harmonious construction, it appears to me that the expression "seniority-cum-merit" in the context of Schedule-IV means seniority-cum-merit of each group occurring therein. In such a situation, determination of quota in proportion to the sanctioned strength is a just and happy solution.
10. It thus appears to me that a combined seniority list of officers occurring in Schedule-IV does not seem to be possible on seniority-cum-merit unless the cadres are merged. Learned Counsel for respondent No. 6 has rightly relied on the judgment of the Supreme Court in the State of Punjab v. Joginder Singh (supra), paragraph 23 of which is reproduced hereinbelow for the facility of quick reference:
As we have stated already, the two services started as independent Services. The qualifications prescribed for entry into each were different, the method of recruitment and the machinery for the same were also different and the general qualifications possessed by and large by the members of each class being different, they started as two distinct classes. If the government order of September 27, 1957 did not integrate them into a single service, it would follow that the two remained as they started as two distinct services. If they were distinct services, there was no question of inter-se seniority between members of the two services, nor of any comparison between the two in the matter of promotion for founding an argument based upon Article 14 or Article 16(1). They started dissimilarly and they continued dissimilarly and any dissimilarity in their treatment would not be a denial of equal opportunity, for it is common ground that within each group there is no denial of that freedom guaranteed by the two Articles. The foundation therefore of the judgment of the learned Judges of the High Court that the impugned rules created two classes out of what was formerly a single class and introduced elements of discrimination between the two, has no factual basis if, as we hold the order of September 27, 1957 did not effectuate a complete integration of the two Services. On this view it would follow that the impugned rules cannot be struck down as violative of the Constitution.
11. The judgment of the Supreme Court in M.B. Joshi and Ors. v. Satish Kumar Pandey and Ors. (Supra) is to the same effect, paragraph 13 of which is relevant in the present context and is reproduced hereinbelow for the facility of quick reference:
Page 2142
13. It is further important to note that in the cases before us, the Government itself has been adopting the practice and making promotion as contended by the appellants and we are upholding such practice. In N. Suresh Nathan's case (A.I.R. 1992 S.C. 564) also this Court had upheld the practice followed by the Government. It is also well settled principle of service jurisprudence that in the absence of any specific rule, the seniority amongst persons holding similar posts in the same cadre has to be determined on the basis of the length of service and not on any other fortuitous circumstance.
(Emphasis added)
12. I must at this stage note the grievance of the petitioners that serial Nos. 22 to 32 of Group-B officers incorporated in the minutes of the D.P.C. held on 26.12.2001 (Annexure-5) were ineligible candidates, because they were, at the relevant point of time, in the lower pay-scale of Rs. 850-1360/-. This is a matter of details and has nothing to do with formulation of policy, and I leave it to the respondent authorities to take care of the grievance and ensure remedial measures, if needed.
13. To my mind there is nothing in the Rules barring such a procedure. Even if the Rules did not prescribe the impugned procedure, the respondents could supplement the Rules for their effective implementation. The decision of the executive authorities fixing the quota does not, to my mind, supplant, or derogate from, the provisions in the Rules, but merely supplements, which is permissible. Learned Counsel for the respondents have rightly relied on the judgment of the Supreme Court in Sant Ram Sharma v. State of Rajasthan and Ors. (Supra), the judgment of the Supreme Court in K.H. Siraj v. High Court of Kerala and Ors. and the Full Bench judgment of this Court in Bishundeo Mahto v. The State of Bihar and Ors. (Supra).
14. The materials on record seem to establish that the impugned procedure is being consistently followed since 1990. The first evidence of it are to be found in the departmental notings of January 1989, whereby the quota was fixed and was communicated to the B.P.S.C., by letter dated 13.1.1989, photo copies of which are marked Annexures B and C respectively to the counter affidavit of the State. Annexure-C to the supplementary affidavit of respondent, No. 6 is a photo copy of the minutes of the D.P.C., presided over by a Member of the Commission, held on 23.6.1990 and 25.6.1990, approving the quota and was acted upon, Annexure-H to the supplementary counter affidavit of the official respondents is a photo copy of the minutes of the D.P.C., presided over by a Member of the Commission, held on 13.4.2002, and had adopted the same yardstick. Annexure-G thereto is a photo copy of the impugned notification dated 20.2.2006, notifying promotions during the pendency of the present proceeding on the same basis. The quota was thus fixed in consultation with, and due approval, of the commission way back in 1989, and is being consistently followed. The Supreme Court has held in its judgment in M.B. Joshi and Ors. v. Satish Kumar Pandey and Ors. (supra), (paras 8 and 9) that a practice being consistently followed should not be lightly disturbed.
15. In view of the foregoing discussion, a formal notification notifying the system of quota would have been discreet and transparent, but not imperative. It does not affect the validity of the decision, particularly in view of the consistency with which it is being followed. Learned Counsel for the respondents has rightly relied on the Page 2143 judgment of the Supreme Court in Dattatraya Moreshwar v. The State of Bombay and Ors. , the relevant portion of paragraph 7 of which is reproduced hereinbelow for the facility of quick reference:
Strict compliance with the requirements of Article 166 gives an immunity to the order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that Article are not complied with, the resulting immunity cannot be claimed by the State. This, however, does not vitiate the order itself. The position, therefore, is that while the Preventive Detention Act requires an executive decision, call it an order or an executive action, for the confirmation of an order of detention under Section 11(1) that Act does not itself prescribe any particular form of expression of that executive decision. Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity. Therefore, all that the procedure established by law requires is that the appropriate Government must take a decision as to whether the detention order should be confirmed or not under Section 11(1). That such a decision has been in fact taken by the appropriate Government is amply proved on the record. Therefore, there has been, in the circumstances of this case, no breach of the procedure established by law and the present detention of the petitioner cannot be called in question.
16. I must also state the submission of learned Government Pleader that the Supreme Court had noted the system of quota in the judgment in Bihar State Subordinate Industries Field Officers' Association v. Kapildeo Prasad Singh and Ors. (supra), paragraph 18 of which is reproduced hereinbelow for the facility of quick reference:
18. We may state that there is also a quota fixed by the State for promotion from Groups A, B and C but we are not concerned here with quota as such. We are also not concerned with the Kalawadhi or Qualifying service of different groups of officers.
It is obvious that the Supreme Court did not have the occasion to consider the legality of the quota system, and is really under consideration in the present proceedings.
17. It thus appears to me that in the absence of a prohibition in the Rules, the solution provided by the authorities by fixing the quota is just and reasonable. Learned Counsel for respondent No. 6 has rightly relied on the judgment of the Supreme Court in Kuldeep Kumar Gupta and Ors. v. Himachal Pradesh State Electricity Board and Ors. (supra), paragraph 6 of which is reproduced hereinbelow for the facility of quick reference:
6. So far as the second question is concerned, we are unable to persuade ourselves to agree with the submission of Mr. Subramanium that providing a quota tantamounts to reservation. Article 16 deals with equality of opportunity in matters of public employment and Article 16(4) enables the State form making any provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State. This Court in Indra Sawhney's case (1992 AIR SCW 3682 : AIR 1993 SC 477: 1993 Lab IC 129) has held that Page 2144 no such reservation is permissible in the promotional posts and to get over the said decision Article 16 (4A) has been inserted by the Constitution (Seventy Seventh Amendment) Act. But we fall to understand as to how providing a quota for a specified category of personnel in the promotional post can be held to be a reservation within the ambit of Article 16(4). Providing a quota is not new in the service jurisprudence and whenever the feeder category itself consists of different category of persons and when they are considered for any promotion, the employer fixes a quota for each category so that the promotional cadre would be equi-balanced and at the same time each category of persons in feeder category would get the opportunity of being considered for promotion. This is also in a sense in the larger interest of the administration when it is the employer, who is best suited to decide the percentage of posts in the promotional cadre, which can be earmarked for different category of persons. In other words, this provision actually effectuates the constitutional mandate engrafted in Article 16(1) as it would offer equality of opportunity in the matters relating to employment and it would not be the monopoly of a specified category of persons in the feeder category to get promotions. We, therefore, do not find any infraction of the Constitutional provision engrafted in Article 16(4) while providing a quota in promotional cadre, as in our view, it does not tantamount to reservation.
18. Before I part with the records, I must state that the respondent authorities should have preferably issued executive instructions notifying the system of quota. The respondent authorities are hereby directed to make necessary insertion/amendment in the Rules to the aforesaid effect, or, on a re-consideration of the matter, by a more appropriate provision in the Rules. No further promotion shall take place without such amendment.
19. In the result, the writ petitions are dismissed. There shall be, however, no orders as to costs.