Patna High Court
Rash Bihari Ghosh And Ors. vs State Of Bihar And Ors. on 10 September, 1982
Equivalent citations: 1982(30)BLJR522
JUDGMENT Hari Lal Agarwal, J.
1. Both these writ applications, which involve common questions of fact and law, have been heard together and are being disposed of herewith.
2. First I take up C.W.J.C. No. 625 of 1973, which has been filed by eight Engineers of the Bihar Engineering Service (Irrigation), Class I, who at the time of filing of the writ application were Executive Engineers posted at different places in the State. They have challenged the decision of the Government dated 2-5-1973 contained in Annexure 14 accepting the report of committee commonly known as 'Ramanand Committee', dated 3-4-1973 (Annexure 13), thereby deciding the inter se seniority of respondents 7 to 23. These respondents are also Engineers in the River Valley Project Department (hereinafter referred to as 'the R. V. P. D.').
3. The history of the case begins from a long past in the year 1954 when on 10-1-1954 an advertisement to fill up 14 vacancies of temporary Assistant Engineers in Class II of the Bihar Engineering Service (Irrigation Cadre) was issued by the Bihar Public Service Commission (vide Annexure 3). The Commission was directed by the Government to recommend names of 60 candidates and not 20 as originally directed, on account of the increased work in the Irrigation Department, as the recruitment was likely to be much more than 14 for which the Commission was requested to advertise. Obviously the recommendation was to be made in order of preference. The Commission accordingly forwarded the names of 60 candidates arranged in order of preference-vide its letter Annexure 1. In this document petitioner Nos. 1 and 6 were recommended together for being placed at serial Nos. 33 and 36 respectively. Petitioners 2, 3 and 4 were placed at serials 40, 47 and 49 respectively. By a notification dated 3/5th July, 1954 (Annexure 5) the Government of Bihar in the Irrigation Department appointed petitioners 1 to 4 and respondent no 6 along with various others as Assistant Engineers and all of them joined in the Irrigation Department.
Later on, in November, 1954 itself applications were invited by the Commission (vide Annexure 6) for 45 temporary posts of Assistant Engineers for the Irrigation Department including Kosi Project Department and by its letter dated 20th January, 1955 (Annexure 7) the Commission recommended 60 names in order of preference for the aforesaid 45 posts, including the names of petitioners 5 to 8 and respondents 7 to 20. Respondents 21 to 23 were appointed even after the appointment of respondents 7 to 20.
4. It appears that in the meantime by an order dated 30-9-1954 (Annexure A to the counter-affidavit filed on behalf of respondent No. 7 and others), the Government of Bihar constituted a new department named as Kosi Project Department to deal with the subjects connected with flood control on Kosi Canal Irrigation and power generation from Kosi and other connected works. This department was put under the charge of a chief Administrator. Subsequently by an order dated 22-9-1960 the Government constituted the Department of River Valley Project to deal with the subjects connected with the Kosi and Gandak (including the Tribeni Canal) and Sons Barrage Projects, and this Department was put under the charge of a separate Secretary (vide Annexure B to the aforesaid counter affidavit). In the meantime Shri Sidheshwar Prasad, respondent No. 8, was appointed in the Kosi Project. Similarly, respondents 10 to 21 were also posted in the Kosi Department as Assistant Engineers and respondents 6 and 7 were later on sent to the R.V.P.D.
5. According to the case of the petitioners, the R.V.P.D. had no cadre of its own and officers from private sources were also employed in this department for completion of different time-bound projects, but in the counter-affidavit filed on behalf of respondents 7, 9 and others it is asserted that the R.V.P.D. had a separate cadre right from the very beginning so much so that all the posts in the secretariat of this department and in the engineering cadre light from Overseers to the Chief Engineer were sanctioned on permanent basis, independent of Irrigation Department and in the course respondents 6 to 23 got promotion in the Bihar Engineering service Class I and were posted as Executive Engineers after due concurrence of the Bihar Public Service Commission and the Council of Ministers between 1960 to 1964 and the writ petitioners, on the other hand, got their promotions in the Irrigation Department in similar manner between 1963 and 1967. They have tried to make out a case that they were actually appointed as Assistant Engineers by the Kosi Project Department and in support of this fact they have filed the appointment letters (Annexure C series). With respect to respondents 6 and 9, however, they have said that whereas respondent No. 6 was initially appointed in the Irrigation Department and after working for a couple of months was deputed to work in the then Kosi Project Department in November, 1954, respondent No. 9 never worked in the Irrigation Department. Thus, they say that they had severed all their connections with the Irrigation Department and always remained under the R.V.P.D. until it was merged, to constitute the present cadre by virtue of the governmental order dated 26-2-1969.
I would like to refer to some of the statements made by the contesting parties in their petitions and counter-affidavits. The petitioners have stated that the Irrigation Department of the State Government and the cadre of the Bihar Engineering Service (Irrigation) were created in the year 1949 by carving it out from the Public Works Department and since then this cadre has a distinct legal existence, and after Independence the Irrigation Department took up huge expansion programmes and many time bound projects were contemplated. The Kosi Project was taken up first and accordingly the Kosi Project Department was sanctioned in 1954. Later on other irrigational projects like Gandak, Sone, Tenughat etc. were also included in the construction programme which led to the re-desiguation of the Kosi Project Department as River Valley Project Department in the year 1960 which was nothing else but the construction wing of the Irrigation Department inasmuch as the projects undertaken by the said R.V.P.D. were to revert back to the parent Irrigation Department, Reliance in support of this statement has been placed upon the counter-affidavit filed on behalf of the Mate of Bihar in Writ Petition No. 282 of 1970 in the Supreme Court by one Mukti Nath Tiwary (Annexure 2) where it was stated "that the R.V.P.D. Department was created on an ad hoc basis for the purpose of exejuting major river Valley Projects of the State...la the construction phase, the initial requirement of Engineers was obviously large. Engineers having sufficient experience of executing Irrigation Project were needed In this background the R.V.P. Department drew a number of Engineers on deputation from the original cadre of Irrigation Department, and also recruited engineers from open market. Some of the officers were deputed against higher post available in the R.V.P. Department keeping in view their experience and length of service. A policy decision was taken by the State Government as early as in the year 1961 to amalgamate the cadres of the Engineers and other employees of Irrigation and R.V.P.D. Its implementation was, however, delayed in the examination of the details' by a Committee constituted by the Government for the purpose, Meanwhile the Government of India decided to constitute the Indian Services of Engineers and under the rules of the proposed I.S.E. Irrigation Engineers as a whole were to form one cadre, and in view of this the amalgamation became not only necessary but obligatory. Accordingly a combined gradation list was prepared and circulated to all concerned.
In this document the principles on which the inter se seniority of the officers was determined in the combined gradation list prepared on the amalgamation of orders of Engineers were as follows:
(i) As a result of amalgamation the inter se seniority of the officers working the Two Department should not be disturbed as among themselves.
(ii) While determining the inter se seniority of the officers of two departments in order to place them at their respective place in the combined gradation list, it should be ascertained if their comparative merit had been assessed at any time by the Public Service Commission so that in that case, the preference indicated by the Public Service Commission should be maintained. But if no such comparative assessment had been made in the case of any batch of officers, then their position in a particular rank should be determined with reference to their continuous officiation in that rank.
(iii) Subject to these guiding principles, if in any particular case, in view of the special feature of the said case it is found that application of these principles would result in serious anomally then ad-hoc decision should be taken in such case on the principle of equity and natural justice.
6. It has further been stated by the petitioners that in the year 1960 the Kosi Project Department contemplated promotion of some Assistant Engineers as Executive Engineers and respondent No. 6 Shri M. N. Tewari, who was deouted in this Department and was a favourite of the Department, was asked by a letter dated 20-5-1960 (Annexure 9) to indicate his option whether he would like to continue in the Irrigation Cadre, as the case of his promotion was to be considered only when he served his connection with the Irrigation cadre. Respondent No. 6 by his reply (Annexure 10) indicated his option in favour of the Kosi Project Department and accordingly he was given promotion as an Executive Engineer. Similarly, respondent no: 9 Shri K. N. Lal was also promoted as Executive Engineer in the Kosi Project after severing his connection from the Irrigation cadre.
The remaining respondents were also promoted as Executive Engineers in the R.V.P.D. The petitioners have further contended that on account of these out-of-turn promotions, which virtually amounted to supersession of various eligible officers, a confusion was created and the Irrigation Minister made a policy decision in the Assembly on 16-3-1961 to the effect that ''before the amalgamated cadre is finalised, promotion of officers may take place in Irrigation Department, Kosi Project Department and in the Gandak Project in usual manner. The seniority of the officers promoted may, however, remain open as to avoid complication in finalising amalgamation of cadre," Accordingly formation of a committee to go into the whole question and finalise the amalgamation of cadre of service, was also announced. This committee, however, appears to have been reconstituted from time to time but did not make any head way until 1969. And in the meantime several Engineers of the R.V.P.D. filed writ applications in this Court taking a stand that their department had a separate cadre of Engineers and as such the promotion of officers of Bihar Irrigation Cadre into the R.V.P D. was unjustified and unconstitutional. The decision of this Court in those cases has since been reported in the case of M. G. Sharon and Ors. v. State of Bihar and Ors. , where it has been clearly held that the R.V.P.D. had no separate cadre. I may quote one of the observations in this regard which runs as follows:
...the State Government was anxious to bring in best men in this department even from outside the State as also from the Irrigation Department, mainly on the basis of merit; as the project and the scheme to be executed were of immense importance and that may be the reason that the State was not anxious to formally constitute a cadre and to frame rules under Article 309 of the Constitution, because, in that event the hands of the State Government would have been fettered.
On these findings the High Court rejected the claims of the petitioners of all the seven writ petitions challenging the notifications appointing officers from the Irrigation Department to the R.V.P.D, placing them senior to the writ petitioners of those cases.
7. After the above cases, the reconstituted committee (vide Government Resolution dated 9-1-1969-Annexure 11), which is commonly known as 'Abbas Committee', submitted its report to the Government and in pursuance of that report the Government prepared a combined gradation list and circulated it in February, 1969. The resolution of the Government dated 26-2-1969 in this regard is Annexure 12. According to this gradation list the position of petitioner No. 1 was at serial No. 39, that of respondent No. 6 was at serial 41, those of petitioners 2, 3 and 4 at serials 42, 46 and 47 respectively, respondent No. 7 at serial 79, petitioner No. 5 at serial 50 : and then were placed respondents 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18; and after them petitioner No. 7, respondent No. 20, petitioner No. 8 and respondents 21. 22 and 23 respectively were placed.
In the aforesaid Government resolution dated 26-2-69 (Annexure 12) which 1. , was issued by the Irrigation Department after examination of the recommendations in the report submitted by the Abbas Committee, it was stated that the Government had taken the following decisions:
(1) The cadre of the Engineers of the Irrigation Department and R.V.P.D. should be amalgamated.
(2) The combined gradation list of the irrigation Engineers prepared by the Committee should form the combined gradation list after the amalgamation.
The petitioners were satisfied and got positions as claimed by them, under this arrangement. It has been further stated that two writ applications, namely, Writ Petition Nos. 150 of 1969 and 282 of 1970 were filed by a number of Engineers of the R.V.P.D. including respondents 6, 7 and 8, in the Supreme Court in which they challenged this radation list as illegal and unconstitutional. It is in these cases that the State Government had filed a counter-affidavit (Annexure 2) already referred to earlier, supporting the correctness of the gradation list. Both the writ applications were ultimately dismissed as withdrawn.
8. It further appears that some representations were filed by some of the aggrieved Engineers against the above gradation list and the State Government constituted, by its resolution dated 3-5-72 another committee headed by Shri Ramanand Sinha, the then Additional Chief Secretary, as its Chairman and Convenor: This committee is commonly known as 'Ramanand Committee' which gave its report on 3-4-73 (Annexure 13) and the same was accepted by the Council of Ministers (vide Annexure 14).
From a perusal of the principles and criteria adopted by both the committees for fixing the inter se seniority, apparently there does not appear to be much difference between them. It would further appear from the said principles, which I will notice a little later, that both the committees have fixed the seniority of the different officers with reference to their length of their service in grade to grade, gave and except the Executive Engineers. Whereas the Abbas Committee took the length of service of the Executive Engineers with reference to the date their service in class II, the Ramanand Committee maintained the length of service exclusively in the grade of Executive Engineers.
9. In view of the fact that the respondents had got quicker promotions than the petitioners, as already indicated earlier, the petitioners have suffered and lost many positions in the gradation list. The petitioners challenge this decision of the Government as arbitrary and in violation of the principles of natural justice. It is also challenged on the grounds that the principles adopted by this Committee were irrational and irrelevant.
10. I may now usefully refer to the stand taken by some of the contesting respondents in their counter-affidavit in this regard. The respondents have said that the Ramanand Committee gave ample opportunity to all the representationists, and also heard other Engineers whoever had any grievance and wanted an opportunity of being heard. With respect to the status of the Kosi Project Department and the R. V. P. D, they have said that they were never a part of the Irrigation Department but had their independent existence and a small cadre and at the time of amalgamation of the cadre in the year [969 the writ petitioners and the respondents were working as Executive Engineers in the respective departments and in this view of the matter the date of appointment or seniority in the initially recruitment post of the Bihar Engineering Service Class II in the respective departments had no relevancy. In support of the fact that both the departments had separate cadre or, for the matter, Independent status, they have also relied upon the various letters, already referred to earlier, which were issued by the Government to some of the respondents calling upon them to give their option for severing all their connections with the Irrigation Department for consideration of their cases for promotion in the concerned departments, and the concurrence of the Bihar Public Service Commission in that regard.
11. With respect to the observation of the Supreme Court in the writ petition filed by respondents 6 and 7, it is stated that the said petition was withdrawn to enable them to file a composite petition and accordingly Writ Petition No. 282 of 1970 was filed and rule was issued in that case by the Supreme Court but inasmuch as in the meantime the State Government took the decisions to constitute a new committee by Us resolution dated 25-1-1972 (Annexure 17), the said writ petition was withdrawn on 7-2-72. This committee was also reconstituted from time to time and by a resolution dated 3-5-72 the then Additional Chief Secretary of Bihar Shri Ramanand Sinha was made its Chairman, The terms of reference of Ramanand Committee has been filed as Annexure 17 to the reply on behalf of the petitioners to the said counter-affidavit. I shall refer to the terms of reference to this committee and the principles on which it proceeded to integrate the two departments and fixed the inter se seniority of the amalgamated cadre. It has, however, been asserted by the respondents that the Ramanand Committee committed no mistakes either in following the correct principles for fixing the officers of both the departments in their combined gradation list, nor it committed any other violation, such as, of principles of natural justice or the like as alleged by the petitioners. It has further been asserted that the principles adopted by the Abbas Committee were entirely erroneous and they were rejected by the Government as also by the Ramanand Committee.
The main stand of the respondents is that in the year 1969 they were working in the Bihar Engineering Service Class I in their respective departments and that should have been the real basis for fixing the inter se seniority of the petitioners and the respondents and that was done by the Ramanand Committee which based its recommendations mainly "on the basis of length of continuous officiation in the grade". They have made out a clear case that except only two of the respondents, namely, M. N. Tewari (respondent no 6) and K.N. Lal (respondent No. 9), who initially belonged to Irrigation cadre and had served all their connections therefrom in the year 1960) (reference of which has been made earlier) all the other respondents were directly selected and appointed by the Kosi Project Department and later on were duly appointed as Executive Engineers in the R. V. P. D. after doing through all the formalities including the concurrence of the Public Service Commission, arid, therefore, they had nothing to do with the cadre of the Irrigation Department. They further stated in paragraph 37 of the counter-affidavit that in this department respondents 6 to 10 and 12 got promotions in 1960, respondents 11 and 13 in 1964, respondents 14 to 20 in 1961 and respondents 22 and 23 in 1962 and the petitioners rightly never raised any objection, as they had accepted the existence of the two separate departments but raised objections only when the question of amalgamation was taken up. The respondents have also controverted the allegations of the petitioners that there was some vacancy in the Ramanand Committee.
The petitioners have also filed a reply to this counter-affidavit mostly reiterating their statements in the main writ application. They have, however, stated that respondents 6 to 17 were promoted as Superintending Engineer on the basis of the Ramanand Committee's report during the pendency of the writ application in the month of April-May, 1974 (vide the notifications Annexures 19 series) and with respect to the assertion of the respondents regarding their recruitment outside the Irrigation Department's cadre, they have asserted that all the petitioners and respondents were appointed in the Bihar Engineering Service Class II (Irrigation) and were borne on the Irrigation cadre and as such they cannot claim any precedence over the petitioners by virtue of their having simply worked in the Kosi Project Department which was essentially a wing of the Irrigation Department.
12. The respondents have also followed the reply of the petitioners to their counter-affidavit with another rejoinder and after reiterating various facts already stated in the counter-affidavit they have pleaded that even assuming that the Kosi Project Department was a wing of the Irrigation Department then also those of the Engineers who became members of the Bihar Engineering Service Class I must be held to be senior to those who became member of that service later than them. The respondents have yet filed a supplementary counter-affidavit to bring on the record a memo dated 2nd March, 1955 of the Irrigation Department and another memo dated 22nd March, 1955 issued by the Kosi Project Department which have been filed as Annexures I and II respectively to this supplementary counter-affidavit. These documents have been filed simply to support their stand that recruitments of Engineers were directly made in the Kosi Project Department.
By a second supplementary counter-affidavit the respondents have annexed certain documents as Annexures J, K and L to show the strength of officers and separate establishment of the Kosi Project and R. V. P. Departments. Annexure I (sic) is the advertisement dated 8th July, 1956 issued by the Public Service Commission. This advertisement shows that applications were invited from the Assistant Engineers (Civil) separately for P. W. D. irrigation Department, Kosi Project Department and P.H.E.D. Annexure J is a letter from the Under secretary, Kosi Project Department, to the Accountant General, Bihar, dated 18-3-58 conveying the sanction of State Government for the extension of the terms of the temporary gazetted and non-gazetted posts with full details, Annexure K is a subsequent document of the same nature. By Annexure L the Government of Bihar in the R. V. P. D. has informed the Accountant General, Bihar that the cost of the officers retained for this department was chargeable to the appropriate units under the head "98- Capital Outlay on Multi-purpose River Scheme..." and the provision of funds had been made in the budget.
By the third supplementary counter-affidavit the respondents have filed a letter dated 4th June, 1968 from the State Government to the Bihar Public Service Commission as Annexure M, to show the history of appointments of the respondents in the R. V. P. D. with the concurrence of the Commission. Similarly some extract from the notes of the R. V. P. D. has been filed as Annexure N. Some of the notes would be relevant to understand the working of the two departments and I would do better to quote a few observations made therein-
...In the meantime during these years both the departments have continued to make their own appointments and promotions. As the River Valley Projects Department was a new department, it borrowed on deputation a number of officers from the Irrigation Department for appointment to different ranks. Some of these officers have also been promoted. The Irrigation Department, however, have not been taking the officers of the River Valley Projects Department on promotions in their department.
13. After having stated all the relevant facts pleaded by the parties, now I proceed to examine the contentions advanced by their learned Counsel. From the facts stated above it is apparent that whereas the stand of the petitioners is that R. V. P. D. had no separate cadre and therefore it could not be merged with the Irrigation Department which had a regular cadre, the efforts of the respondents have been to establish that R. V. P. D. had its own separate cadre. Several authorities were also cited by the Bar.
The further attempt of the petitioners has been to show by their affidavits that the respondents had either been posted in the Kosi Project Department after serving in the Irrigation Department for some time and in some cases they were straightway appointed subsequent to the appointment of the petitioners and in any view of the matter the Kosi Project Department or for that matter the R. V. P. D. was simply a wing of the Irrigation Department of ad hoc nature and, therefore, the respondents could not claim any advantage on account of their earlier promotions in those departments. I shall, however, record my findings with respect to these contentions in course of my discussions in due course. It has already been said that on account of the decision of the Government of India for constitution of the Indian Service of Engineers consisting of four branches, namely : (1) Irrigation, (2) Roads & Buildings, (3) Public Health Engineering, and (4) Power, the State Government directed the Abbas Committee, after it was reconstituted under Annexure 11, to finalise the amalgamation of cadres as soon as possible and preferably within two months. It may be mentioned that earlier to this there had already been an amalgamation of the Engineers of Minor Irrigation Department and the Bihar State Electricity Board with those in the Irrigation Department. The petitioners, however, have not filed any document to show as to whether any executive instruction was given by the Government to the Committee to provide as a guideline for the purpose of completing the work of amalgamation, but on reference to the records of C.W.J.C. No. 835 of 1970 disposed of on 5-9-73, which has already been referred to in the counter-affidavit of the respondents mentioned earlier, I find that the extract from the Government resolution dated 2-1-69 as published in the Gazette dated 9-1-69 was filed as Annexure 3 by the petitioner of that cases, namely, Madan, Gopal Sharan, where principles to be adopted while preparing a tentative combined gradation list were indicated as follows:
(i) As a result of amalgamation, the accepted inter se seniority of officers in a particular cadre shall not be affected as amongst the officers of one cadre.
(ii) Relative seniority will be decided grade to grade :-e. g. seniority of Executive Engineers of one Department will be compared with that of the Executive Engineers of the other Department and so on.
(iii) Seniority in a grade will be determined from the date of continuous officiation in that grade irrespective of the date of confirmation.
(iv) The period of current charge will be counted towards officiation if the officer was taking full responsibility of the post and he was not holding a lower post simultaneously.
It would also appear from the report of the Abbas Committee that they applied the following principles infixing the inter se seniority of the officers in the two departments while maintaining their inter se seniority in their respective departments:
While determining inter se seniority of officers of two Departments in order to place them at respective places in a combined gradation list it would be ascertained if their comparative merit had been assessed at any time by the Public Service Commission so that in the case the preference indicated by the Public Service Commission should be adopted but if no such comparative assessment has been made in case of any batch of officers, then their position in a particular rank should be determined with reference to their date of continuous officiation in that rank.
14. The question as to whether there was a separate cadre of R. V. P. D. can be disposed of very shortly. Rub 12 of the Bihar Service Code under Chapter II defines "cadre" as follows : -
'Cadre' means the strength of service or a part of the service sanctioned as a separate unit.
The fact that R. V. P. D. is part of service sanctioned as a separate unit cannot be disputed in view of the Government notification (Annexure B) constituting the Department, but undisputedly there has been no formal constitution of the cadre of the R V. P. D. In other words, there has been no "de jure" formation of the cadre although a "de facto" cadre exists in that department. In the aforesaid unreported decision the argument of the petitioner, who had come earlier to this Court in M. G. Sharan and Ors. v. State of Bihar and Ors. was rejected by a Bench of this Court on the view that "it was desirable for the State Government to have formally constituted a cadre and framed the rules for the recruitment, promotion etc. of the officers in the R. V. P. D. also under Article 309 of the Constitution. Unless this is done the petitioner has no legal right to claim for promotion to a post in the department.
No further material was brought to our notice to show that after the aforesaid decision the Government had taken any further step to constitute a separate cadre for R. V P. D. and, therefore, I would agree with the learned Counsel for the petitioners that the R. V. P. D. had no separate cadre of its own but at the same time it is not possible to accept his argument that the said department was a wing of the Irrigation Department. It is undisputed from the very beginning, as would also appear from the various advertisements already referred to earlier as well as the Governmental orders, that posts were separately created for the R. V. P. D. and recruitments were made directly to the said posts. The petitioners have also admitted this fact that officers were drawn in that department from various sources including the Irrigation Department. The respondents have fixed the number of such officers who went to this department and are concerned in the controversy as being only two, namely, respondent Nos. 8 and 9. We have also said that both these officers had to give a declaration (option) for serving all their connections with the Irrigation Department and promotions were given to these respondents also after they had exercised their option. It has further been seen that the R. V. P. D. had a complete hierarchy from top to bottom so much so that provisions in the budget were separately made for this department and it was put under a separate charge of Secretary and the other authorities. On these facts I feel no doubt in my mind that the department was a completely new department and none of the respondents had any connection with the Irrigation Department on the date when the question of amalgamation of this department with the Irrigation Department was taken up as a policy decision by the Government of Bihar.
15. Having thus come to this conclusion that the R. V. P. D. had not a separate cadre of its own but was an independent department and also the principles and criteria adopted by the Abbas Committee in the first instance and those of the Ramanand Committee in the second instance. I proceed to examine as to whether any interference is called for by the Court in the matter of fitment of the respondents in the integrated cadre after the merger of R. V. P. D. in the Irrigation Department. Apparently the principles that were adopted by the Abbas Committee and the Ramanand Committee, examining them on a broader spectrum, are almost the same and similar. The Abbas Committee had also said that if the comparative assessment of the merit of the officers of the departments was not done at any time by the Public Service Commissioner then their position in a particular rank should be determined with reference to their date of continuous offciation in that rank. The respondents' case is that the Abbas Committee was directed to prepare the amalgamated cadre in a very short time of two months only and in that hurry they committed several mistakes in even applying the above test inasmuch as it is nobody's case that the Public Service Commission at any point of time had made any comparative assessment of the merit of the officers in the two departments. This grievance also finds ample support from the observations in the report of the Ramanand Committee to the effect that the common grievance was that the placing of officers in the joint cadre by the Abbas Committee was not done in just and proper manner and the conventionally accepted principles for determining seniority had been bypassed. The Government accordingly decided that the Committee constituted in the past should be deemed to have been scrapped and another Committee with Shri Ramanand Sinha, the then Additional Chief Secretary, as its Chairman and Convenor, was constituted as per Resolution of the Irrigation Department dated 3-5-1972, to examine the entire matter afresh (Vide Annexure 36).
16. Before, however, proceeding to examine certain authorities which were cited on behalf of both the parties, I may refer to the Bihar Public Works Department Code, Volume II, which contains the rules for regulating the recruitment of officers of Bihar Engineering Service. The rules are contained in two classes, namely, Class I and Class II. Whereas Class I deals with the rules relating to the Bihar Engineering Service Class I which includes the Executive Engineer, Superintending Engineer, Deputy Chief Engineer and Chief Engineer, the Class II Rules deal with the Bihar Engineering Service Class II. Obviously the engineers below the rank of Executive Engineer will be covered by Class II Service. According to rule 2 of Class I Rules, a promoted officer in Class I Service would mean an officer promoted to the Service from the Bihar Engineering Service Class II either substantively or on officiating basis. The posts of Chief Engineer, Deputy Chief Engineer, Superintending Engineer, Executive Engineer, Under Secretary to the Provincial Government, P.W.D. and any specially classed posts are "superior posts". It is these grades which were referred to and meant by both the Committees for fixing the inter se seniority of the integrated cadre of the two departments which were said to be "the date of continuous officiation in that rank" by the Abbas Committee and "relative seniority in grade to grade" as mentioned in Ramanand Committee's report. If has also been seen that at the time of initial appointments the petitioners as well as the respondents were recruited in Class II Service and were promoted on different dates in Class I Service and that event took place long back.
It was contended by Mr. Radha Raman that the inter se seniority should have been determined with reference to the dates of the initial recruitment of the petitioners and the respondents in the Engineering Service itself, meaning thereby in Class II Service. He sought aid to his contention from Rule 3(vii) of the Government Circular dated the 26 8-1972, which is commonly known as the 1972 Rules. It reads as follows:
In the event of amalgamation of cadres seniority is determined with reference to the date of appointment in the particular grade on substantive or continuous officiating basis, whichever is earlier. But inter se seniority of incumbents in any group of posts as amongst themselves is not to be disturbed in the process of amalgamation.
In my opinion, no advantage can be given to the petitioners by virtue of this rule inasmuch as this rule also contemplates the 'appointment in the particular grade on substantive or continuous officiating basis" as the criterion for determination the inter se seniority of an officer in the event of amalgamation of cadres.
The contention of Mr. Radha Raman cannot be accepted as was rightly contended by Mr. Mishra, for the reason that the argument is based upon the assumption that the R.V.P.D. was a wing of the Irrigation Department and therefore, the respondents could not be allowed to steal a march over the petitioners in the race of the future promotions. Once it is held that the promotion of the respondents was entirely independent from the petitioners, as even if it could be assumed that while promoting the respondents the case of promotion of the petitioners also was to be taken into account, in that event too the respondents crossed into Class I service from Class II Service several years before some time in the year 1969 and the petitioners would be deemed to have been superseded, as it has been seen that under the rules of the P.W.D. Code the Class I Service is a separate Service from Class II Service and, therefore, while equating the petitioners and the respondents it could only be the length of service in the Class I Service which could be taken into consideration for fixing their inter se seniority at the time of integration of the two departments. This was the principle which seems to have been adopted as the guideline by both the Committees.
The learned Additional Advocate General also adopted the same reasoning that it was not a case of the merger of two departments under one cadre but was a case of merger of an independent department and for this purpose he also placed reliance upon the various documents creating the Kosi Project Department and the R.V.P.D. as also the reports of the two Committees where all these facts were noted. He further argued that in view of the subsequent promotion of the respondents from the position of Executive Engineers to still higher posts such as Superintending Engineers and Chief Engineers, i.e., promotion to administrative grades within the meaning of Rule 24 of the P.W.D. Rules Part I the promotions to these higher posts being based only on selection and merit, seniority alone did not confer any claim according to the said rule. Therefore, he contended that as the respondents had been promoted to selection grade posts, the question of equating them and bringing them down to the promotion post would be ridiculous.
17. Now I propose to notice some of the decisions which were cited at the Bar. Let me first take up the two recent Full Bench decisions of our Court- (1) In the case of Bishundeo Mahto and Ors. v. The State of Bihar and Ors. 1982 B.B.C.J. 45 to which I was also a party, the question of inter se seniority of some of the Assistant Engineers of the P.W.D. (Class II Service) was involved and the competition was between the direct recruits and the promotees. It was firmly held that "question of seniority is limited to persons in the cadre. There is no competition withholders of ex cadre post."
(2) The other Full Bench decision of this Court is in the case of Md. Sulaiman and Ors. v. State of Bihar and Ors. 1981 B.B.C.J. 513, where the question was the merger of the cadres of A.D.Ps. and D.S.Ps., who were promoted as Senior District Prosecutors. On the merger of both the cadres a common gradation list was prepared placing the promoted Senior D.Ps. above the direct recruits on the basis of the data of the appointment and not on the basis of the date of entry in the cadre and the question of their fitment in the integrated cadre was decided on consideration of their status and rank. The decision of the State Government to count the earlier experience of the respondents for the purpose of their seniority was held to be perfectly valid. We are, however, not concerned here with such a situation.
Reliance was placed by the learned Additional Advocate Ganeral on the case of Rajeadra Narain Singh and Ors. v. State of Bihar and Ors. . This was again a case from Patna involving the question of inter se seniority of promoted D.S.Ps. and direct recruits who were given officiating promotion. It was, held that determination of seniority on the basis of continuous officiation was valid. The principle of law laid down in this case was that in the absence of any legislation on the subject or a rule framed under proviso to Article 309 of the Constitution, the State Government would regulate its public services in the exercise of its executive power. The determination of seniority on the basis of continuous officiation was valid and the gradation list based on this principle would not be challenged on the ground that an arbitrary date was taken as its basis or that it offended Article 14.
Similar was the view expressed by the Supreme Court in R.S. Makashi and Ors. v. I.M. Menon and Ors. , which was a case of creation of Bombay Rationing Organisation by merging employees of the erstwhile Foodgrains Distribution Organisation and employees of the various other departments. The seniority list was prepared under the 1968 Rules framed in this regard laying down some principles to be applied for fixation of the inter se seniority which issued under Article 309. By a resolution various posts that existed in the former Civil Supplies Department were equated with posts in Bombay Rationing Organisation in the manner indicated therein. It was observed that it was open to the rule making authority to take a note of the relevant circumstances obtaining in relation to each department and determine with objectivity and fairness what rules should govern the inter se seniority and ranking of the personnel working in the concerned departments and the Courts will only insist that the rules so formulated should be reasonable, just and suitable; Proceeding further, it was observed that when personnel drawn from different sources are absorbed and integrated in no department, it is primarily for the Government or the executive authority concerned to decide as a matter of policy now the equation of posts should be affected. The Courts will not interfere with such a decision unless it is shown to be arbitrary, unreasonable or unfair, and is no manifest unfairness or unreasonableness has made out, the Court will not sit in appeal and examine the property or wisdom of the principle of equation of posts adopted by the Government.
Mr. P. S. Sharma also placed reliance on the case of Lila Kanta and Ors. v. Collector of Custom and Central Excise , wherein also the fixation of seniority after absorption of the staff from the princely State in the services of the Union Government on the basis of length of service after confirmation, instead of continuous or officiating service, was made the criterion and the Supreme Court refused to interfere on the reasoning that it was a letter of policy in which the Government must have discretion.
In the case of State of Madhya Pradesh and Anr. v. Rameshwar Prasad A.I.R. 1976 S.C. 314, it was again held that when the Government had prepared the final gradation list after objective and through consideration of the various aspects of the career of the employees and the principles; which governed the list, the same could not be interfered with.
19. Mr. Radha Raman, however, sought to take support from the case of Shri Balji Singh Bali and Ors. v. The State of Punjab and 1971 (1) Services Law Reporter, Vol. 5, page 587 a decision of a learned single Judges of Punjab & Haryana High Court dealing with the situation where the Government by an executive order had converted the posts of Field Public Assistants/Information Assistants into those of Assistant Public Relation Officers, the former post being not part of the service of the department (Class III non-gazetted), and the method of recruitment of Assistant Public Relation Officers and their qualifications were prescribed in statutory rules. It was held that the proper method was to amend the rules which could be done by the Governor under Article 309 of the Constitution. This Court also expressed somewhat similar view in the case of Sachchidanand and Maharaj and Anr. v. The State of Bihar and 1976 (1) Services Law Reporter, Vol. 14, page 181.
In my opinion, the facts laying down the above principles have got no relevancy whatsoever as it is nobody's case that the respondents are in any way deficient in qualification and did not answer the requisite qualification for their appointment and promotions.
20. Mr. Radha Raman also placed another argument that the Ramanand Committee had violated the principles of natural justice inasmuch as no hearing was given to the petitioners. He further contended that the Ramanand Committee had no jurisdiction to strike down the report of the Abbas Committee in its entirety inasmuch as it was constituted only to examine certain representations filed by some of the officers who were aggrieved by that report. There is no substance in this argument as well as it has already been seen earlier that the Government had really scrapped the report of the Abbas Committee and had set up the Ramanand Committee to go into the matter afresh, Ramanand Committee's report also says that it had called upon the incumbents to be heard repeatedly, as is evident from the report itself. In any view of the matter, I would accept the argument of Mr. Mishra in this regard that the report of the Ramanand Committee having been adopted as a policy decision of the Government under Article 162 of the Constitution, it could be challenged only if it was unreasonable or obnoxious as indicated by the aforecited Supreme Court decision. The principle adopted by the Ramanand Committee taking into consideration the continuous officiation in a higher grade, was not an unreasonable or arbitrary principle and, therefore, this Court should not interfere with the same.
21. It was also argued on behalf of the respondents that the application was very much belated as the petitioners, if they thought that they have been superseded by out-of-turn promotion of the respondents, should have come much earlier to this Court and their laches would deprive them from receiving any redress from the writ court. It was further contended that the petitioners, in the garb of challenging the validity of the Ramanand Committee's report, want to upset the promotions of the respondents which were done as far back as in the year 1950, which they cannot do collaterally.
22. Reliance was also placed by Mr. Mishra on the case of Dr. S. P. Kapoor v. State of Himachal Pradesh and Ors. A.I.R. 1981 S.C. 2181, where on the constitution of Himachal Pradesh Health Service after formation of the new State, certain doctors belonging to the Central Health Service opted for the State service and were appointed on the general side, the doctor who had been appointed to the Punjab Civil Medical Service (Grade I) post on 29-1-1965 and was inducted into the Specialists' grade in the Central Health Service with effect from 1-11-1966 would rank senior under Rule 10(a) (iii) and in accordance with the letter dated 9-7-1971 to those doctors who were in the Central Health Service on the date of its constitution on 9-9-1966 but had been taken in the Specialists' grade and G.D.O. Grade I respectively under the Central Health Service with effect only from 9-9-1968, under Rule 10(a) (iii) as inter se seniority of the officers drawn from the integrating States had to be determined only in accordance with Rule 10(a) (iii) of the Rules.
23. Mr. Radha Raman also made some arguments that the respondents could not be inducted in the Irrigation cadre, to the disadvantage of the petitioners, without framing any rules in this regard and according to him, since no rules have been framed the integration was bad in law. This argument, in my view, has got no substance inasmuch as basically the petitioners have not challenged the validity of the integration on this ground. All that has been challenged is that proper equation was not made in fixing the inter se seniority of the petitioners and the respondents. In the case of Tamil Nadu Education Deptt. Ministerial & General Subordinate Services Association and Ors. v. State of Tamil Nadu and Ors. , it was observed that in the case of integration of services the computation of length of service in determining common seniority if not found to be arbitrary, irrational and mala fide, mere hardship caused to some of the employees in absence of violation of any fundamental right would not move the Court to interfere under Article 32. Mere fact that a few employees of one wing are being superseded by those of other wing who are said to be juniors, was held to be inconsequential. The criteria and principles adopted by Ramanand Committee already noticed earlier, which were basically on the lines of those adopted by the former Committee, were not shown to us to be in any way arbitrary, irrational or mala fide etc.; rather no argument was addressed on this account, nor in point of fact I find the principles and criteria for fixing the inter se seniority to be in any way arbitrary or irrational. It may well be that the respondents might have got quicker promotions on account of larger avenues available to them in that regard than the stalemate in the Irrigation Department, and again by bringing those officers in the Irrigation cadre the prospect of future promotions of the petitioners might be diminished, but this cannot be made the basis for interfering with the order of integration in a Court of law. The petitioners themselves in their reply to the counter-affidavit of the respondents tiled on 16-1-1975 have said that the State Government have constituted another Committee to examine the representation of persons affected by the adoption of Ramanand Committee report (Annexure 18).
Mr. Radha Raman had also contended that the State Government may be directed to give promotions to the petitioners in equal ranks as held by the concerned respondents and equate them with the respondents to avoid any embarrassment and supersession, He said that the State Government had given some advantages in such other cases of merger and integration. In my opinion, this question falls for consideration by the State Government itself on its administrative side, but coming to the question of issuance of any direction in the writ jurisdiction, I am afraid, on the principles laid down by the various authorities cited above, it would not be proper for the Court to interfere with the matter. I do not, therefore, find any merit in this application and dismiss the same.
24. Now I take up C.W.J.C. 731 of 1973. The petitioner of this case joined as an Assistant Engineer, Revenue (Minor Irrigation) Department on 23-5-1951 and later came to the Irrigation Department on 4-11-1952. It has already been said that the engineering wing of the Revenue Department merged in the Irrigation Department in 1954. Subsequently by a resolution of the Government of Bihar in the Irrigation Department dated 3-9-1964 (Annexure 1) the inter se seniority of the Engineers coming from the Revenue Department and the Irrigation Department was fixed and the basis adopted was the "relevant dates on which they were initially appointed in the recommendations of the Commission either as a result of concurrence, to either of the two departments". The petitioner was promoted as a Superintending Engineer in 1964. The position of the petitioner was not disturbed by the Abbas Committee either, but the Ramanand Committee altered the position, putting the petitioner several positions lower by depriving the services rendered by him in the Revenue (Minor Irrigation) Department. The petitioner has accordingly challenged the alteration and in the meantime he has become Superintending Engineer.
25. It has been contended on behalf of the petitioner that apart from the illegality committed by the Ramanand Committee the question of integration of the Minor Irrigation Department with the Irrigation Department was not at all the subject matter of the reference and, therefore, the report of this committee, so far as the petitioner was concerned, was wholly without jurisdiction In the counter-affidavit filed on behalf of the State it is conceded that respondent Nos. 6 to 19 had joined the Irrigation Department in Class II much later than the petitioner. It is also not disputed that the Ramanand Committee was constituted to re-examine the entire matter of the combined gradation list of the Engineers of the Irrigation and R.V.P. Departments, but it is said that the petitioner came to the Irrigation Department after facing the Bihar Public Service Commission along with other candidates and he was given the same position by the Ramanand Committee which was given to him by the Commission in the year 1952 and accepted by the Government.
26. It is difficult to uphold the recommendation of the Ramanand Committee and the Government decision in this regard for two reasons. Firstly, that the subject matter of Minor Irrigation personnel was not the subject matter of the reference to the said committee, and secondly that there has been an apparent violation of the principle of natural justice as no opportunity was given to the petitioner for disturbing his seniority after a lapse of seven years. For these reasons I would allow this application and direct the respondents to give the petitioner the same position which was held by the earlier that the acceptance of the Ramanand Committee in report.
27. In the result, C.W.J.C. No. 625 of 1973 is dismissed and C.W.J.C. No. 731 of 1973 is allowed, but, in the circumstances, without any order as to costs.