Patna High Court
Uzwal Kumar And Anr vs The State Of Bihar And Ors on 20 April, 2024
Author: A. Abhishek Reddy
Bench: Ashutosh Kumar, A. Abhishek Reddy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1761 of 2016
In
Civil Writ Jurisdiction Case No.17152 of 2015
======================================================
1. Uzwal Kumar, Son of Sidheswar Prasad, R/o- A/34 Ashokpuri Colony,
Khajpura, PO- Bihar Veterinary College, PS- Shastri Nagar, District- Patna,
at present posted as Junior Engineer, National Highway, Sub-Division Patna
South, Patna.
2. Devendra Nath, S/o Sri Ravindra Nath R/o Maharana Pratap Colony, Station
Road, Hajipur, PO- Hajipur, PS- Hajipur Sadar Distt- Vaishali, 844101, at
present posted as Junior Engineer, Section Paliganj, Rural Works
Department, Works Division, Paliganj Patna.
... ... Appellant/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Old
Secretariat, Patna.
2. The Secretary, Road Construction Department, Government of Bihar,
Vishwasaraiya Bhawan, Patna.
3. The Engineer in Chief cum Additional Commissioner-cum-Special
Secretary, Road Construction Department, Government of Bihar
Visheshwaraiya Bhawan, Patna.
4. The Deputy Secretary, Management Cell, Road Construction Department,
Government of Bihar, Visheshwaraiya Bhawan, Patna.
5. The Joint Secretary Management Cell, Road Construction Department,
Government of Bihar, Visheshwaraiya Bhawan, Patna.
6. The Under Secretary Management Cell, Road Construction Department,
Government of Bihar, Visheshwaraiya Bhawan, Patna.
7. The Chairman, Bihar Public Service Commission, Jawahar Lal Nehru Marg,
Patna.
8. The Secretary, Bihar Public Service Commission, Jawahar Lal Nehru Marg,
Patna.
9. Nitesh Kumar Barnwal, Assistant Engineer, Road Construction Department,
Government of Bihar Vishveshwariya Bhawan, Bailey Road, Patna 800015.
Patna High Court L.P.A No.1761 of 2016 dt. 20-04-2024
2/17
10. Satyendra Narayan Rai, Assistant Engineer, Road Construction Department,
Government of Bihar Vishveshwariya Bhawan, Bailey Road, Patna 800015.
11. Bimlesh Kumar, Assistant Engineer, Road Construction Department,
Government of Bihar Vishveshwariya Bhawan, Bailey Road, Patna 800015
12. Sunil, Assistant Engineer, Road Construction Department, Government of
Bihar Vishveshwariya Bhawan, Bailey Road, Patna 800015.
13. Subedar Prajapati, Assistant Engineer, Road Construction Department,
Government of Bihar Vishveshwariya Bhawan, Bailey Road, Patna 800015.
14. Mukesh Kumar, Assistant Engineer, Road Construction Department,
Government of Bihar Vishveshwariya Bhawan, Bailey Road, Patna 800015.
15. Raj Narayan Sahu, Assistant Engineer, Road Construction Department,
Government of Bihar Vishveshwariya Bhawan, Bailey Road, Patna 800015.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Ravi Shankar Ganguli, Advocate
For the State : Mr. Kameshwar Kumar, GP17
For the BPSC : Mr. Sanjay Pandey, Advocate
: Mr. Nishant Kumar Jha, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE A. ABHISHEK REDDY
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE A. ABHISHEK REDDY)
Date : 20-04-2024
Pursuant to the remand order passed by the
Hon'ble Supreme Court in Civil Appeal No. 6485 of
2023, dated 26.09.2023, the present LPA has been
taken up for hearing.
2. Initially, the LPA was filed by two persons
Patna High Court L.P.A No.1761 of 2016 dt. 20-04-2024
3/17
namely, Uzwal Kumar and Devendra Nath. During the
pendency of the LPA, Devendra Nath was promoted to
the post of Assistant Engineer and therefore, the LPA to
the extent of his prayer was withdrawn.
3. The brief facts necessary for the purpose
of deciding the issue involved in the present case are
that the Appellant No. 1/Sri Uzwal Kumar was appointed
as Junior Engineer in the year 1995 in the Department
of Road Construction, Government of Bihar. The
Government of Bihar in the year 1979, with a view to
encourage higher education among the Junior Engineers,
introduced a scheme, whereby the persons holding
diploma certificate in engineering were made eligible for
promotion to the post of Assistant Engineer on the
condition of their completing Bachelor of Engineering
course (B.E.) and becoming a member of Associate
Members of the Institute of Engineers (AMIE) and that
they should have completed five years of service.
Initially, the State vide resolution dated 17.01.1979 in
Patna High Court L.P.A No.1761 of 2016 dt. 20-04-2024
4/17
Memo No. 947 had provided for 3% quota for promotion
under this category; which quota was further increased
to 10% vide Resolution dated 22.07.1998.
4. In the present case, the Appellant/Original
Writ petitioner joined the post of Junior Engineer on
29.09.1995and passed the Engineering Examination (AMIE) on 15.09.2009. However, he was denied promotion to the post of Assistant Engineer on the ground that the 10% quota earmarked for the year 2009-2010 had already been filled up by the other employees who had passed the AMIE course much prior to 2009. The writ petition was filed assailing the said action of the respondents in denying promotion to the Appellant/Original Writ petitioner and promoting his juniors solely on the ground that the juniors had passed the AMIE before the petitioner i.e., much before 2009. It is the case of the petitioner that action of the respondents in denying promotion to him from the year 2009, i.e., date of acquisition of the qualification (AMIE) Patna High Court L.P.A No.1761 of 2016 dt. 20-04-2024 5/17 is contrary to the various circulars issued by the Government; more particularly, the amendment made vide resolution dated 21.02.2008, wherein the Paragraph 4D of the Resolution dated 22.07.1998 has been deleted and the same was not taken into consideration by the authority concerned. Aggrieved by the gradation list prepared by the respondents, the petitioner had approached this Court by way of CWJC No. 17152 of 2015.
5. A learned Single Judge of this Court vide order dated 10.08.2016 dismissed the writ petition, firstly, on the ground that the Appellant/Original Writ petitioner could not have sought promotion as a matter of right; more so, when there was no vacancy; and secondly, on the ground that the promotion could only be given whenever vacancy arose and the ceiling of 10% quota earmarked for this channel of promotion ought not to have been violated.
6. Aggrieved by the order dated 10.08.2016 Patna High Court L.P.A No.1761 of 2016 dt. 20-04-2024 6/17 passed by the learned Single Judge in CWJC No. 17152 of 2015, the Appellant/Original Writ petitioner preferred LPA No. 1761 of 2016. The said LPA was dismissed vide judgment dated 27.09.2018 by a Division Bench of this Court. The Division Bench concurred with the reasons given by the learned Single Judge and reiterated that the 10% quota earmarked for this channel of promotion could not be violated and further held that unless and until a vacancy would arise as on the date of passing of the qualifying exam, the Appellant/Original Writ petitioner cannot be given promotion.
7. The Appellant/Original Writ petitioner, aggrieved by the dismissal of the LPA, preferred a Special Leave Petition before the Hon'ble Supreme Court and the Hon'ble Supreme Court vide order dated 26.09.2023 in SLP No. 11902 of 2019, set aside the order of the Division Bench dated 27.09.2018 and remanded the matter to this Court observing as under;
"3. The principal plea taken by learned counsel for the Patna High Court L.P.A No.1761 of 2016 dt. 20-04-2024 7/17 appellants to assail the judgment dated 27th September, 2018, passed by the Division Bench in an intra- Court appeal preferred by the appellants against the order dated 10th August, 2016, passed by the learned Single Judge dismissing the original writ petition is that, though a specific plea was taken by the appellants before the learned Single Judge as also before the Division Bench of the High Court that in terms of Circular dated 22nd July, 1998, which was subsequently interpreted by this Court in Civil Appeal Nos. 62-65/1999 and Civil Appeal 66/1999 titled "Pramod K. Pankaj Kumar Vs. State of Bihar and Others" and was followed by a Resolution dated 21st January, 2008, wherein paragraph 4(d) of the earlier Resolution dated 22nd, July, 1998, had been deleted, the respondent-State could not have drawn the Seniority List for the subject post by taking into consideration the date of passing the A.M.I.E. Examination.
4. We have perused the impugned judgment as also the judgment passed by the learned Single Judge and find that the said plea has not been dealt with by the High Court. That being the position, it is deemed appropriate to remand Patna High Court L.P.A No.1761 of 2016 dt. 20-04-2024 8/17 the matter back to the Division Bench of the High Court for taking into consideration the specific plea raised by the appellants, as set out in ground 'C' of this appeal, for consideration and adjudication."
8. The learned counsel for the Appellant/Original Writ petitioner has submitted that the learned Single Judge had erred in dismissing the writ petition and not taking into consideration the circular dated 21.02.2008 issued by the Government, whereby the Clause 4D of the Resolution dated dated 22.07.1998 has been deleted.
9. Per contra, in the counter-affidavit filed by the respondents, while supporting the judgment passed by the learned Single Judge, it was urged that the authorities had taken a stand that the deletion of Clause 4D in the resolution dated 22.07.1998 would not change the fact-scenario nor would it be of any help to the Appellant/Original Writ petitioner. It was argued that the Authorities duly took into consideration the vacancy position and had prepared the gradation list (provisional Patna High Court L.P.A No.1761 of 2016 dt. 20-04-2024 9/17 promotion list). That for the year 2009-10, the gradation list was prepared on 04.09.2012 and even though the Appellant/Original Writ petitioner was having the requisite qualification and eligibility criteria, he could not be accommodated in the said list as there were only seven vacancies and the said seven vacancies were filled up by the junior engineers who had passed AMIE Exam much prior to the petitioner i.e., way back in the year 2004. The Appellant/Original Writ petitioner who has passed the AMIE Exam cannot be promoted ignoring the persons who had passed the AMIE Exam in the year 2004 only. Further, it was stated that the 10% quota which has been earmarked for this channel of promotion cannot be violated and persons who could not be accommodated in the earlier round of promotion, were accommodated in the subsequent vacancies which had arisen. The total number of vacancies for the calendar year 2009-2010 and 2010-2011 was seven (4+3 respectively) and the left over candidates of the earlier Patna High Court L.P.A No.1761 of 2016 dt. 20-04-2024 10/17 year were accommodated. Reliance placed by the Appellant/Original Writ petitioner on the resolution dated 21.02.2008 vide Memo No. 2475(S) is without any legal basis and in the given set of facts, the Appellant/Original Writ petitioner is trying to mislead this Hon'ble Court. However, the Authorities have strictly followed the guidelines issued by the Government from time to time and there is absolutely no violation of the Resolution vide Memo No. 2475(S) dated 21.02.2008. Further, it is stated that the clauses which are part of the Resolution dated 22.07.1998 vide Memo No. 5008(S) and the Resolution dated 17.01.1979 vide Memo No. 947 are still intact, except for deletion of Clause 4(D) of the Resolution dated 22.07.1998. In view of the above, the order passed by the learned Single Judge in CWJC No. 17152 of 2015 dated 10.08.2016 does not call for any interference.
10. In order to resolve the controversy in the present LPA, it is necessary to extract the relevant Patna High Court L.P.A No.1761 of 2016 dt. 20-04-2024 11/17 provisions of the Circular dated 22.07.1998 which reads as under;
"(d) Determining inter-
se seniority on the basis of date of passing A.M.I.E. or equivalent examination by junior engineers, promotion to vacant post of Assistant Engineer under aforesaid described 10 percent quota be given against available vacancies as per seniority, in compliance of direction contained in the judgment passed by Hon'ble Patna High Court, in LPA No. 100/1994, 158/1994, 101/1994/ and CWJC No. 7828/1995 and for promotion to the post of Assistant Engineer, the date of passing A.M.I.E. or equivalent examination shall be the basis of inster-se seniority for specific junior engineer candidates. The original inter-se seniority of these junior engineers in their cadre shall remain as usual for requirement of proposed 28 percent promotional quota."
11. Learned counsel for the Appellant/Original Writ petitioner has vehemently argued that the authority while preparing the seniority list, did not take into consideration the deletion of the above Patna High Court L.P.A No.1761 of 2016 dt. 20-04-2024 12/17 Clause (4D) vide Resolution dated 21.02.2008 and, therefore, has prayed to allow the writ petition and direct the authorities to promote the Appellant/Original Writ petitioner as per his seniority.
12. Subsequently, the above Clause was deleted vide Resolution dated 21.02.2008.
13. It is pertinent to note that the 'Cadre Seniority List' has been prepared by the respondent authority vide Order No. 138 dated 14.05.2009. In the said 'Cadre Seniority List', the Appellant/Original Writ petitioner's Serial No. was shown at 2868. It is also not in dispute that the gradation list (provisional promotion list) was to be prepared after taking into account the 'Cadre Seniority List'. There is no denying the fact that the 'Cadre Seniority List' is prepared basing it on the date of appointment. The gradation list has to be prepared by taking into account the following criteria;
(1) whether the
candidate possesses the degree of
engineering.
Patna High Court L.P.A No.1761 of 2016 dt. 20-04-2024 13/17 (2) becomes a member of All India Institute of Engineers (AIIE) (3) completed five years of service as junior engineer.
(4) that the name of the candidate is included in the 'Cadre Seniority List'.
14. Prior to 21.02.2008, the preparation of the gradation list was on the basis of the inter-se seniority prepared on the basis of date of passing AMIE or equivalent examination by the Junior Engineers to be promoted to the vacant post of Assistant Engineers. Subsequently, based on the judgment of the Hon'ble Supreme Court in the case of Pramod K. Pankaj Kumar Vs. State of Bihar and Others reported in (2004) 3 SCC 723, the Government of Bihar has deleted the Clause 4(D) vide Resolution dated 21.02.2008 (Annexure-3).
15. In the Resolution dated 22.07.1998, the inter-se seniority was on the basis of date of passing of the AMIE Exam or equivalent examination by the Junior Engineers and not on the basis of seniority based on the Patna High Court L.P.A No.1761 of 2016 dt. 20-04-2024 14/17 date of joining to the post of Junior Engineer. Once, it is established that the said Resolution (4D) of 22.07.1998 has been deleted vide Resolution dated 21.02.2008, the authorities ought to have prepared the provisional list of promotion showing the Appellant/Original Writ petitioner as being promoted in that list as per the seniority and not from the date of the passing of the AMIE.
16. The Supreme Court in the case of Pramod K. Pankaj Kumar Vs. State of Bihar and Others reported in (2004) 3 SCC 723 has held as under;
"In absence of any statutory provision or rules made thereunder or under the proviso appended to Article 309 of the Constitution of India. It is trite, that once an incumbent is appointed to a post according to rules his seniority has to be counted from the date of his appointment
28. The proposition of law, therefore, which emerges from the aforementioned discussions is that in absence of any statutory rule governing the field the criteria for promotion should be construed upon Patna High Court L.P.A No.1761 of 2016 dt. 20-04-2024 15/17 applying the principle of literal meaning as also continuous officiation in the lower post."
17. The authorities understood the purpose of the above judgment and deleted Clause 4(D) vide Resolution dated 21.02.2008 but while implementing the same, they have ignored the deletion of Clause 4(D) and have prepared the list, taking into consideration the date of passing of the AMIE Exam. Admittedly, in the present case, the Appellant/Original Writ petitioner has the requisite qualification for being promoted as Junior Assistant in the year 2009 itself i.e., 15.09.2009 and if any provisional promotion list was prepared after 15.09.2009, the same should have taken into consideration the inter-se seniority of the Appellant/Original Writ petitioner duly taking into account the date of appointment and not date of passing of AMIE Exam. The contention of the respondents that some of the persons who had the requisite qualification prior to the petitioner could not be accommodated in the Patna High Court L.P.A No.1761 of 2016 dt. 20-04-2024 16/17 list prepared on 04.09.2012 as they were having the qualification much prior to the Appellant/Original Writ petitioner does not have any substance.
18. Admittedly, the seven persons who were given the promotion were junior to the petitioner as evident from the 'Cadre Seniority List'.
19. Having regard to the above facts and circumstances and also the law laid by the Hon'ble Supreme Court in the above cited case, the LPA has to be allowed.
20. The judgment of the learned Single Judge in CWJC No. 17152 of 2015 dated 10.08.2016, is set aside.
21. The Authority shall promote the Appellant/Original Writ petitioner from 04.09.2012 i.e., on the date on which the gradation list for the year 2009-2010 and 2010-2011 was published on 04.09.2012 where seven persons junior to the petitioner were promoted.
Patna High Court L.P.A No.1761 of 2016 dt. 20-04-2024 17/17
22. With the above direction, the LPA stands allowed to the extent indicated.
(A. Abhishek Reddy, J) Ashutosh Kumar, J : I agree.
(Ashutosh Kumar, J) Ayush/-
AFR/NAFR NAFR CAV DATE 04.03.2024 Uploading Date 20.04.2024 Transmission Date N/A