Jharkhand High Court
Rishi Nandan vs Shrawan Kumar on 21 September, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.23 of 2022
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1. Rishi Nandan, aged about 50 years, son of Late Ajay
Kumar Sinha, resident of Flat No.G-01, Shreeji Tower,
Circular Road, Lalpur, P.O. and P.S. Lalpur, Ranchi,
District Ranchi, PIN 834001.
2. Mukul Kumar Gorwara, aged about 51 years, son of
Shri Mahendra Kumar Gorwara, resident of Flat No.02,
Krish Tower, Bosco Nagar, P.O. and P.S. Hatia, District
Ranchi, PIN 834004.
3. Sanjay Singh, aged about 50 years, son of Shri Ram Das
Singh, resident of Flat No.101, Renu Bala Apartment,
Tel Mill Gali, Hehal, P.O. Hehal, P.S. Pandra, Ranchi,
District Ranchi, PIN 834005.
... ... Respondent Nos.8, 9, 10/Appellants
Versus
1. Shrawan Kumar, aged about 47 years, son of Late Ram
Padarath Singh, resident of Flat No.704-D, Gopal
Marketing Complex, Kadru Road, P.O. Argora, P.S.
Ashok Nagar, Town and District Ranchi 834002
(Jharkhand).
2. Ashok Kumar Sinha, aged about 47 years, son of Late
Mohan Prasad, resident of Flat No.406, Block-D,
Basudev Nagar, Kanta Toli, P.O. Kanta Toli, P.S. Lower
Bazar, Town and District Ranchi-834001 (Jharkhand).
3. Mantosh Mani Singh, aged about 45 years, son of Shri
Gajendra Prasad Singh, resident of Flat No.102,
Shivalaya Apartment, Chandni Chow, P.O. Gandhi
Nagar, P.S. Gonda, District Ranchi - 834008
(Jharkhand).
... ... Writ petitioners /Respondents
4. The Jharkhand Urja Vikas Nigam Limited, through its
Chairman-cum-Managing director, having its office at
Engineering Building, H.E.C. Dhurwa, P.O. & P.S.
Dhurwa, Ranchi 834004, District Ranchi (Successor
Holding Company formed out of unbundling of Erstwhile
Jharkhand State Electricity Board, Ranchi).
5. The General Manager (Personnel & General
Administration), Jharkhand Urja Vikas Nigam Limited,
having its office at Engineering Building, Dhurwa, P.O.
and P.S.- Dhurwa, Ranchi-834004, District Ranchi.
6. The Jharkhand Bijli Vitran Nigam Limited, through its
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Managing Director, having its office at Engineering
Building, HEC Dhurwa, P.O. and P.S. Dhurwa, Ranchi,
District Ranchi PIN No. 834004 (Successor Power
Distribution Company formed out of unbundling of
Erstwhile Jharkhand State Electricity Board, Ranchi).
7. General Manager (H.R.), Jharkhand Bijli Vitran Nigam
Ltd., having its office at Engineering Building, HEC,
Dhurwa, P.O. and P.S.- Dhurwa, Ranchi-834004,
District Ranchi.
8. Deputy General Manager (H.R.), Jharkhand Bijli Vitran
Nigam Ltd., having its office at Engineering Building,
HEC, Dhurwa, P.O. and P.S.- Dhurwa, Ranchi-834004,
District Ranchi.
9. The Bihar State Power Holding Corporation Limited,
through its Chairman-cum-Managing Director, having
its office at 1st Floor, Vidyut Bhawan, Bailey Road, P.O.
Vidyut Bhawan, Bailey Road, P.O. Vidyut Bhawan,
Bailey Road, P.S. Kotwali, District Patan-800 001 (Bihar)
(Successor Holding Company formed out of unbundling
of erstwhile Bihar State Electricity Board, Patna)
10. The General Manager (Personnel & General
Administration), Bihar State Power Holding Corporation
Limited, through its Chairman-cum-Managing Director,
having its office at 1st Floor, Vidyut Bhawan, Bailey
Road, P.O. Vidyut Bhawan, Bailey Road, P.S. Kotwali,
District Patna-800 001 (Bihar)
... ... Respondent Nos.1 to 7 /Respondents
With
L.P.A.No.24 of 2022
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1. Rishi Nandan, aged about 50 years, son of Late Ajay
Kumar Sinha, resident of Flat No.G-01, Shreeji Tower,
Circular Road, Lalpur, P.O. and P.S. Lalpur, Ranchi,
District Ranchi, PIN 834001.
2. Mukul Kumar Gorwara, aged about 51 years, son of
Shri Mahendra Kumar Gorwara, resident of Flat No.02,
Krish Tower, Bosco Nagar, P.O. and P.S. Hatia, District
Ranchi, PIN 834004.
3. Sanjay Singh, aged about 50 years, son of Shri Ram Das
Sing, resident of Flat No.101, Renu Bala Apartment, Tel
Mill Gali, Hehal, P.O. Hehal, P.S. Pandra, Ranchi,
District Ranchi, PIN 834005.
... ... Petitioners-Appellants
Versus
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1. The Jharkhand Urja Vikas Nigam Limited, through its
Chairman-cum-Managing Director, having its office at
Engineering Building, HEC, Dhurwa, P.O. and P.S.
Dhurwa, Ranchi 834004, District Ranchi
2. The General Manager (Personnel & General
Administration), Jharkhand Urja Vikas Nigam Limited,
having its office at Engineering Building, Dhurwa, P.O.
and P.S.- Dhurwa, Ranchi-834004, District Ranchi.
3. The Jharkhand Bijli Vitran Nigam Limited, through its
Managing Director, having its office at Engineering
Building, HEC Dhurwa, P.O. and P.S. Dhurwa, Ranchi,
District Ranchi PIN No.834004.
4. General Manager (H.R.), Jharkhand Bijli Vitran Nigam
Ltd., having its office at Engineering Building, HEC,
Dhurwa, P.O. and P.S.-Dhurwa, Ranchi-834004,
District Ranchi.
5. Deputy General Manager (H.R.), Jharkhand Bijli Vitran
Nigam Ltd., having its office at Engineering Building,
HEC, Dhurwa, P.O. and P.S.- Dhurwa, Ranchi 834004,
District Ranchi.
6. Arvind Kumar, father's name not known to the
Appellants, at present posted as General Manager-cum-
Chief Engineer, Jharkhand Bijli Vitran Nigam Ltd,
Electric Supply Area, Jamshedpur, P.O. and P.S.
Sakchi, Town Jamshedpur, District East Singhbhum.
7. Subhankar Jha, father's name not known to the
Appellants, at present posted as Electrical
Superintending Engineer, Jharkhand Bijli Vitran Nigam
Ltd., Electric Supply Circle, Deoghar, P.O. and P.S.
Deoghar, District Deoghar.
8. Md. Sajid Akhtar, father's name not known to the
Appellants, at present posted as Electrical
Superintending Engineer, Planning, Jharkhand Bijli
Vitran Nigam Ltd., having its office at Engineering
Building, Dhurwa, P.O. and P.S. Dhurwa, Ranchi
834004, District Ranchi.
9. Dhananjay Kumar, father's name not known to the
Appellants, at present posted as Electrical
Superintending Engineer, Jharkhand Bijli Vitran Nigam
Ltd., Electric Supply Circle, Garhwa, P.O. and P.S.
Garhwa, District Garhwa.
10. Dinesh Kumar Singh, father's name not known to the
Appellants, at present posted as Electrical
Superintending Engineer, Jharkhand Bijli Vitran Nigam
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Ltd., Electric Supply Circle, Kodarma, P.O. and P.S.
Kodarma, District Kodarma.
11. Prabhat Kumar Srivastava, father's name knot known to
the Appellants, at present posted as Electrical
Superintending Engineer, Jharkhand Bijli Vitran Nigam
Ltd., Electric Supply Circle, Hazaribagh, P.O. and P.S.
Hazaribagh, District Hazaribagh.
12. Pratosh Kumar, father's name not known to the
Appellants, at present posted as Electrical
Superintending Engineer, Jharkhand Bijli Vitran Nigam
Ltd., Electric Supply Circle, Chas, P.O. and P.S. Chas,
District Bokaro.
13. Man Mohan Kumar, father's name not known to the
Appellants, at present posted as Electrical
Superintending Engineer, Jharkhand Bijli Vitran Nigam
Ltd., Electric Supply Circle, Jamshedpur, P.O. and P.S.
Sakchi, Town Jamshedpur District East Singhbhum.
14. Ashok Kumar Sinha, father's name not known to the
Appellants, at present posted as Deputy General
Manager (HR), Jharkhand Bijli Vitran Nigam Ltd.,
Engineering Building, Dhurwa, P.O. and P.S. Dhurwa,
Ranchi 834 004, District Ranchi.
15. Shrawan Kumar, father's name not known to the
Appellants, at present posted as General Manager, Re-
structure Accelerated Power Development and Reform
Programme, Jharkhand Bijli Vitran Nigam Ltd.,
Engineering Building, Dhurwa, P.O. and P.S. Dhurwa,
Ranchi 834 004, District Ranchi.
16. Sudhanshu, father's name not known to the Appellants,
at present posted as Electrical Superintending Engineer,
Remote Metering Cell, Jharkhand Bijli Vitran Nigam Ltd.
Engineering Building, Dhurwa, P.O. and P.S. Dhurwa,
Ranchi 834 004, District Ranchi
... ... Respondents/Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellants : Mr. Sumeet Gadodia, Advocate
: Mr. Ritesh Kumar Gupta, Advocate
For the JUVNL : Mr. Mukesh Kumar Sinha, Sr. S.C.
For the Resp. Nos.9 & 10 : Mr. Manoj Tandon, Advocate
(In L.P.A.No.23 of 2022)
For the Caveator : Mr. Navaniti Prasad Singh, Sr. Advocate
: Mr. Dhananjay Kr. Pathak, Advocate
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C.A.V. on 31.08.2022 Pronounced on 21.09.2022
Per Dr. Ravi Ranjan, C.J..
Both these appeals arise out of the same order, as such, with the consent of the learned counsel for the parties, are being heard together and are disposed of by this common order.
2. Both these intra-court appeals, preferred under Clause 10 of the Letters Patent, are directed against the order/judgment dated 21.12.2021 passed by learned Single Judge of this Court in writ petitions being W.P.(S) No. 4187 of 2018 and W.P.(S) No.681 of 2019 whereby and whereunder the learned Single Judge has refused to interfere with the decision as taken in the Notification bearing No. 1622 dated 01.08.2018 issued vide Memo No.1623 dated 01.08.2018 whereby the Respondent No.6 has been granted promotion to the post of Chief Engineer as also refused to pass positive direction for consideration of the case of the writ petitioners for promotion to the post of Chief Engineer or any equivalent post and further declined to direct the respondents to treat and/or reckon the date of promotion to the post of Electrical Superintending Engineer with effect from 31.03.2015, i.e., the date on which the persons junior to the petitioners including Respondent Nos. 6 to 16, have been promoted to the post of Electrical Superintending Engineer. The learned -6- Single Judge has also refused to interfere with the decision of the authority as contained in Letter No. 198 dated 26.02.2009 by which a decision was taken for publishing final gradation list determining inter-se seniority of Assistant Electrical Engineers belonging to General Cadre appointed by the erstwhile Bihar State Electricity Board, Patna including Assistant Electrical Engineers for General Cadre so far as it relates to the petitioners.
3. PRAYERS MADE IN W.P.(S) NO. 4187 OF 2018 (L.P.A. NO.24 OF 2022) The writ petition W.P.(S) No. 4187 of 2018 has been filed for following reliefs :-
"1.(i) For issuance of an appropriate writ/order/direction, for quashing/setting aside the Notification bearing no. 1622, dated 01.08.2018, issued vide Memo No. 1623, dated 01.08.2018 (Annexurte-18), whereby Respondent No. 6 (Arvind Kumar) has been granted promotion to the post of Chief Engineer, especially because promotion has been granted to said Respondent No.6 without even considering the case of promotion of the present Petitioners to the post of Chief Engineer or equivalent post, despite the fact that Respondent No.6 is, admittedly, junior to present Petitioners. -7-
(ii) For issuance of an appropriate writ/order/direction, including Writ of Mandamus directing the Respondent-authorities to consider the case of the Petitioners for promotion to the post of Chief Engineer or any equivalent posts, especially because the Petitioners are senior-most Electrical Engineers (General Cadre) and are, thus, entitled for consideration of their cases for promotion to the post of Chief Engineer or equivalent post.
(iii) For issuance of a further appropriate writ/order/direction directing the Respondent-
authorities to treat and/or reckon the date of promotion of the Petitioners to the post of Electrical Superintending Engineer with effect from 31.03.2015 i.e. the date on which persons junior to the Petitioners, including Respondent No.6 to 16 have been granted promotion to the post of Electrical Superintending Engineer.
(iv) For issuance of a further appropriate writ/order/direction, including Writ of Declaration, declaring that Petitioners are senior to private Respondent No.6 to 16 and merely because said Respondent Nos. 6 to 16 have been granted promotion to the post of Electrical Superintending Engineer prior to the promotion given to the -8- Petitioner on the said post, would not make Respondent No.6 to 16 senior to the Petitioners.
(v) In alternative to prayer (iii) and (iv) above, the Petitioners pray for issuance of further appropriate writ/order/direction, including Writ of Certiorari, for quashing /setting aside the Notifications all dated 31.03.2015 as contained in Memo No.427 dated 31.03.2015 (Annexure-12) by which Respondent Nos. 6 to 16 have been granted promotion to the post of Electrical Superintending Engineer, especially because said promotions were granted to them in utter violation of Article 14 and 16 of the Constitution of India, without considering cases of Petitioners for promotion on the said post, despite the fact that Petitioners are senior to Respondent Nos. 6 to 16."
FACTS OF THE CASE IN L.P.A. NO.24 OF 2022 ARISING OUT OF W.P.(S) NO. 4187 OF 2018 The petitioner no. 1 claims to have been appointed as unskilled Khalasi on 26.12.1995 whereas the petitioner nos. 2 and 3 claim to have been appointed as Controller on 04.11.1997. After their appointment, they claim to have obtained higher qualification or Degree in Electrical Engineering and accordingly became entitled for appointment to the post of Electrical Engineer.
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One internal advertisement was issued vide Employment Notice No. 1/1999, dated 02.02.1999. The petitioners applied and were duly selected and appointed to the post of Assistant Electrical Engineer on 13.06.2000.
The respondents also came out with an external advertisement issued vide Employment Notice No. 3/1999 in pursuance of which respondent nos. 6 to 16 were appointed to the post of Assistant Electrical Engineer on 24.11.1999 while the writ petitioners were appointed on 13.06.2000. The petitioners were treated senior to respondent nos. 6 to 16 in the cadre of Assistant Electrical Engineers (General Cadre) of the erstwhile Bihar State Electricity Board and a tentative Gradation List were issued vide Memo No. 565, dated 05.05.2008 followed by final Gradation List dated 26.02.2009.
After creation of State of Jharkhand, Jharkhand State Electricity Board was created. There were two separate cadres of Electrical Engineers namely the cadre of Electrical Engineers in Generation and Transmission Networks, which is known as Electrical Engineers (GTO Cadre). Under the Distribution Wing, there was a separate cadre of Electrical Engineers which is known as Electrical Engineers (General Cadre). The writ petitioners as well as the respondent nos. 6 to 16 are from the Electrical Engineers (General Cadre). The
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Jharkhand State Electricity Board was bifurcated into four Companies after enactment of Electricity Act, 2003, namely -
(i) Jharkhand Urja Vikas Nigam Ltd. (Holding Company);
(ii) Jharkhand Bijli Vitran Nigam Ltd. (Distribution Company);
(iii) Jharkhand Urja Sancharan Nigam Ltd. (Transmission Company); and
(iv) Jharkhand Urja Utpadan Nigam Ltd. (Generating Company) The writ petitioners as well as the respondent nos. 6 to 16 were in the Distribution Cadre of the erstwhile Jharkhand State Electricity Board and their services were absorbed under the Jharkhand Bijli vitran Nigam Ltd. (Respondent No.3).
It is the further case of the petitioners that the minimum qualifying period (Kalawadhi) prescribed for promotion from the post of Assistant Electrical Engineer to the post of Electrical Executive Engineer were earlier prescribed to be eight years and after completion of eight years of service, case of the petitioners along with private respondents were considered for promotion to the post of Electrical Executive Engineers and, accordingly, vide Notifications issued vide Memo No. 3912, dated 02.08.2008, promotion was granted to the petitioners including some of the private respondents to the post of Electrical Executive Engineer. In the said Notifications, names of the petitioners were placed above private respondents.
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It is the further case of the writ petitioner that the State of Jharkhand implemented the provisions of 6th pay Commission Recommendations and the then Jharkhand State Electricity Board also implemented the same. The State of Jharkhand also issued the Resolutions regarding qualifying Service (Kalawadhi) for promotion from one Grade to another Grade which was notified in terms of office memorandum dated 24.03.2009, issued by the Government of India. Thereafter, the Jharkhand State Electricity Board also issued office order no. 1194, dated 07.07.2012, wherein the minimum qualifying service (Kalawadhi) for promotion of its employees from one Grade Pay to another Grade Pay was referred.
The Grade Pay of electrical Executive Engineer was Rs.6,600 and the next promotional post of Electrical Superintending Engineer was having Grade Pay of Rs.8,700/-. Another office order was issued on 07.07.2012 for promotion from the post of Electrical Executive Engineer to the post of electrical Superintending Engineer, wherein, the minimum qualifying service (Kalawadhi) of ten years was prescribed. The Grade Pay of an Assistant Electrical Engineer was Rs.5,400/- and the Grade Pay of next promotional post of Electrical Executive Engineer was Rs.6,600/-. The minimum qualifying service (Kalawadhi) for promotion from Assistant Electrical Engineer to Electrical Executive Engineer
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was prescribed to be five years vide office order dated 07.07.2012. Earlier the minimum qualifying service for promotion from the post of Assistant Electrical Engineer to the post of Electrical Executive Engineer was eight years, therefore, petitioners along with private respondents were granted promotion after completion of minimum qualifying service of eight years.
Since promotion to the post of Electrical Superintending Engineer was to be granted only on completion of ten years of minimum qualifying service, as per office order dated 07.07.2012, the petitioners and the private respondents were entitled for promotion only after completion of minimum qualifying service of ten years in the year 2018. However, there was a provision in the aforesaid office order dated 07.07.2012 that where promotional posts are vacant but the minimum qualifying service is not being fulfilled by any of the employees, if an employee has fulfilled the requisite qualifying service of the post on which he is working and has fulfilled the combined qualifying service of the promotional post and the post on which he is working, then a relaxation shall be given up to 50% of the minimum qualifying service required for the promotional post.
The grievance of the writ petitioners is that even though the private respondents were not fulfilling the minimum qualifying service (kalawadhi) but were granted promotion to
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the post of Electrical Superintending Engineer vide Notification issued under Memo No. 427 dated 31.03.2015.
It is further case of the writ petitioners that the post of Chief Engineer is in the Grade Pay of Rs.8,900/- and the minimum qualifying service (Kalawadhi) for promotion to the said post is two years. The petitioners have completed the requisite minimum qualifying service for promotion to the post of Chief Engineer and they are entitled for consideration of their cases for promotion to the post of Chief Engineer or equivalent post but they were not considered. However, vide Memo No. 1623, dated 01.08.2018, two persons have been promoted to the post of Chief Engineer and out of two promotions, one Arvind Kumar (Respondent No. 6) is junior to the petitioners.
PRAYERS MADE IN W.P.(S) NO. 681 OF 2019 (L.P.A. NO.23 OF 2022) The writ petition W.P.(S) No. 681 of 2019 has been filed for following reliefs :-
1.(i) For issuance of an appropriate writ, order or direction particularly a writ in the nature of certiorari, for quashing the letter no.198 dated 26.02.2009 (Annexure-5 Series) issued under the signature of Joint Secretary, erstwhile Bihar State Electricity Board, Patna whereby and whereunder a decision was taken for publishing final gradation
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list, determining the inter-se-seniority of Assistant Electrical Engineers belonging to General Cadre in short A.E.E. (GEN) appointed by the erstwhile Bihar State Electricity Board, Patna including the Assistant Electrical Engineers of General Cadre under the jurisdiction of erstwhile Jharkhand State Electricity Board, so far as it relates to the petitioners,
(ii) Upon quashing the said letter dated 26.02.2009 (Annexure-5 Series), for issuance of further appropriate writ, order or direction, directing the respondent authorities to amend the gradation list as per the date of appointment and date of joining of the petitioners and the private respondent nos. 8, 9 & 10;
(iii) To declare that the letter dated 26.02.2009 and gradation list published by Jharkhand State Electricity Board or its successor is unlawful, even otherwise it is bad, so far as relates to the petitioners;
FACTS OF THE CASE IN L.P.A. NO. 23 OF 2022 ARISING OUT OF W.P.(S) NO. 681 OF 2019 Pursuant to the Bihar State Electricity Board's (Open External) Employment Notice No. 03/1999, the writ petitioners were appointed to the post of Assistant Electrical
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Engineer, General Cadre on the basic pay of Rs.2,450 in the pay scale of Rs.2,450 -75 -2750 -100 -4250 vide individual provisional offer of appointment letters dated 24.12.1999. Thereafter, the writ petitioners joined to the said post on 11.01.2000 which was also duly notified by the then Bihar State Electricity Board vide Notification dated 13.06.2000.
The respondent no. 8 was appointed as unskilled Khalasi in the year 1995 whereas the respondent nos. 9 and 10 were appointed as Controller in the year 1997. Thereafter, pursuant to Employment Notice No. 01/1999 (internal), the respondent nos. 8 to 10 were appointed to the post of Assistant Electrical Engineer, General Cadre in the basic pay of Rs.2,450/-in the pay scale of Rs.2,450 -75 -2750 -100 - 4250 vide individual provisional offer of appointment letters dated 13.06.2000. Respondent no. 8 gave his joining on 20.06.2000 whereas respondent nos. 9 and 10 gave their joining on 22.06.2000.
It is the further case of the writ petitioners that the Bihar State Electricity Board, Patna circulated a tentative gradation list determining inter-se seniority of the Assistant Electrical Engineers belonging to the general cadre of Bihar State Electricity Board vide letter no. 565, dated 05.05.2008. Thereafter, vide Notification dated 02.08.2008, the Jharkhand State Electricity Board promoted the Assistant
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Electrical Engineer, General Cadre to the post of Electrical Executive Engineer with immediate effect.
It is case of the petitioners that, after bifurcation of the erstwhile State of Bihar, the Jharkhand State Electricity Board was created and under the said Board, there were two separate cadres of Electrical Engineers, namely, Assistant Electrical Engineer (General Cadre) and Assistant Executive Engineers in Generation and Transmissions Organisation known as Assistant Executive Engineer (GTO Cadre). Under the Distribution Wing of erstwhile Jharkhand State Electricity Board, there was another cadre of Electrical Engineers known as Assistant Electrical Engineer (General Cadre) and the petitioners and the respondent nos. 8 to 10 belong to Assistant Electrical Engineers (General Cadre).
The minimum qualifying period (Kalawadhi) prescribed for promotion from the post of Assistant Electrical Engineer to the post of Electrical Executive Engineer was earlier prescribed as eight years and after completion of eight years of service, case of the petitioners along with private respondents were considered for promotion to the post of Electrical Executive Engineer and accordingly, notifications issued vide Memo No. 3892, dated 02.08.2008, promotion was granted to the petitioners including the private respondents to the post of Electrical Executive Engineer.
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After objection received against the tentative gradation list, a final gradation list determining inter-se seniority of Assistant Electrical Engineers belonging to General Cadre of erstwhile Bihar State Electricity Board was published on 26.02.2009. The Bihar State Electricity Board, Patna, vide letter no. 198, dated 26.02.2009, circulated the final gradation list determining inter-se seniority of the Assistant Electrical Engineer belonging to the General Cadre of Bihar State Electricity Board.
Petitioner filed their objections to the respondent against the tentative gradation list of the Assistant Electrical Engineer belonging to the General Cadre of Bihar State Electricity Board. Pursuant to the notification no. 33, dated 11.03.2010, petitioners and the private respondents were finally allocated Jharkhand Cadre and they continued to work as such.
The Jharkhand State Electricity Board (Personnel Department), vide office order no. 1194, dated 07.07.2012, decided tenure (Kalawadhi) of the employees for granting promotion. It was decided that where the posts are available but the tenure is not completed, the person will be promoted by adding the lower level post and the tenure of total service of upgraded post by granting 50% exemption.
Pursuant to the Resolution no. 3286, dated 04.04.2014, the Government of Jharkhand (Personnel Administrative
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Reforms and Rajbhasa Department) came out with a Resolution regarding promotion for the employees who had completed the tenure. In view of Notification dated 31.03.2015, petitioners were promoted from the post of Electrical Executive Engineer to the post of Electrical Superintending Engineer.
The gradation list dated 26.02.2009 prepared by the Bihar State Electricity Board was not in consonance with the General Cadre Rules, 1976 and as such, they filed representations for necessary corrections but no heed was paid. The case of the petitioner nos. 1 and 2 were considered by the Departmental Promotion Committee and vide proceeding dated 27.03.2015, case of petitioner nos. 1 and 2 along with others in their batch were considered and promoted to the post of Electrical Superintending Engineer. Vide Departmental proceeding dated 20.06.2015 and 18.12.2015, case of private respondent nos. 8 to 10 was considered and subsequent thereto they were considered for promotion prior to the other remaining members of the batch of Assistant Electrical Engineer (General Cadre) appointed against the BSEB's Employment Notice 03/1999, all of whom had joined prior to the date of joining of private respondents.
4. It is evident that the writ petition being W.P.(S) No.681 of 2019 has been filed challenging the tentative gradation list dated 26.02.2009 prepared by the Bihar State Electricity
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Board.
The writ petitioners have taken the ground that as per the tentative gradation list issued vide letter No.565 dated 05.05.2008 followed by final gradation list vide letter no.198 dated 26.02.2009, the petitioners are senior to the Respondent No.8 to 10 and the same has not been modified and/or amended by either the Bihar State Electricity Board or the Jharkhand State Electricity Board. The Respondent Nos.6 to 16 being junior cannot be given promotion above the petitioners.
It has further been argued making reference of the order dated 07.07.2012 which provides that where promotional posts are vacant but the minimum qualifying service is not being fulfilled by any of the employees, under the said circumstances, if an employee has fulfilled the requisite qualifying service of the post on which he is working and has fulfilled the combined qualifying service of the promotional post and the post on which he is working, then a relaxation shall be given up to 50% of the minimum qualifying service required for the promotional post.
The writ petitioners, therefore, agitated the ground about fulfillment of the combined qualifying service of 15 years in June, 2015 and as per office memorandum dated 31.12.2010, they became senior to the private respondents and also eligible for being considered for promotion along
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with their juniors by granting them relaxation of minimum qualifying service for the post of Superintending Engineer.
Further ground has been taken that if petitioners were not short of more than half of the qualifying/ eligibility service for being promoted to the post of Electrical Superintending Engineer or two years, whichever is less, their cases were bound to be considered for promotion along with their juniors who had completed minimum qualifying service of 15 years.
It is the further ground that the petitioners along with some of the private respondents were promoted to the post of Electrical Executive Engineer on 02.08.2008 and thus, in the year 2015, when cases of promotion of their juniors were considered for promotion, the petitioners had already fulfilled more than half of the qualifying service for promotion to the post of Superintending Engineer therefore, they became entitled to be considered for promotion to the post of Electrical Superintending Engineer along with their juniors.
5. On the other hand, the petitioners in W.P.(S) No. 681 of 2019 who are private respondents in W.P.(S) No. 4187 of 2018, opposed the contention advanced on behalf of learned counsel appearing for the Respondent Nos. 8 to 10 in W.P.(S) No. 681 of 2019 by raising the issue that the petitioners were appointed directly through the external open Employment Notice No. 03 of 1999 and are presently working in the cadre
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of Assistant Electrical Engineers (General Cadre) under Jharkhand Bijli Vitran Nigam Limited, whereas, the private respondents were initially appointed to the post of Unskilled Khalasi and Controller and subsequently, pursuant to the internal Employment Notice No. 01/1999, were appointed to the post of Assistant Electrical Engineer in the cadre on different dates. They have taken the plea that the date of joining on the cadre post of the petitioners is earlier than that of the private respondents.
They raised objection about the gradation list dated 26.02.2009, prepared by the Bihar State Electricity Board, which according to them, is not in consonance with the General Cadre Rules, 1976. The private respondents are not fulfilling the prerequisite criteria as provided under the General Cadre Rules, 1976 for promotion to the post of Electrical Superintending Engineer on the date when the petitioner nos. 1 and 2 along with others were promoted.
Further argument has been advanced that the petitioner nos. 1 and 2 along with others were promoted to the post of Electrical Superintendent Engineer from the post of Electrical Executive Engineer in the month of March, 2015 whereas the private respondents were promoted at a later stage in the months starting from June, 2015 thereby surpassing the batch of recruits of BSEB Employment Notice 03/1999.
It was also argued that the private respondents can only
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be considered for promotion, in view of General Cadre Rules, 1976, after exhausting entire list of candidates for promotion amongst the direct recruits. But, the private respondent nos. 8, 9 and 10 in W.P.(S) No. 681 of 2019 have been promoted to the post of Electrical Superintending Engineer from the post of Electrical Executive Engineer before exhausting the list of direct recruits. Thus, the case of the petitioner nos. 1 and 2 were considered by the Departmental Promotion Committee and accordingly, they were promoted to the post of Electrical Superintending Engineer. Thereafter, the case of private respondent nos. 8 to 10 was taken up and subsequent thereto they were considered for promotion prior to the other remaining members of the batch of Assistant Electrical Engineer (General Cadre) appointed against Employment Notice 03/1999, all of whom had joined prior to the date of joining of private respondents, which is unjustified. According to them, the petitioners are senior to the respondent nos. 8 to 10 which cannot be ignored.
It has further been argued that the tentative gradation list was wrongly prepared by the erstwhile Bihar State Electricity Board, objections were raised by the petitioners and representations were duly served but to no effect.
It is the further ground that after issuance of tentative gradation list dated 05.05.2008, petitioners had objected the same but without taking into consideration the aforesaid
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objection, the final gradation list was prepared which is not sustainable in the eyes of law.
The learned Single Judge, after taking into consideration the fact in entirety and after framing an issue as to whether the seniority can be claimed from the date when the incumbent was not born in service, has recorded a finding by holding therein that the private respondents in W.P.(S) No.4187 of 2018 and petitioners in W.P.(S) No. 681 of 2019 were born in the cadre prior to the petitioners in W.P.(S) No.4187 of 2018 and, as such, they were considered for promotion to the post of Chief Engineer correctly as they were senior to the petitioners in W.P.(S) No.4187 of 2018 and accordingly, the writ petition being W.P.(S) No.4187 of 2018 has been dismissed against which the present intra-court appeals have been preferred.
6. Mr. Sumeet Gadodia, learned counsel appearing for the appellants in both the appeals, has taken the ground that the writ petitioners have been inducted in the cadre of Assistant Engineer by virtue of promotion, while on the other hand, the private respondents who are petitioners in W.P.(S) No.681 of 2019 and respondents in W.P.(S) No.4187 of 2018 have been appointed through direct recruitment in a calendar year and as per the settled position of law that if in a calendar year the posts are being filled up by way of promotion and direct recruitment, the promotes will always be reckoned as senior
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to that of the direct recruits.
It has been argued that the seniority list which has been prepared much ago, cannot be allowed to be reversed after long lapse of time as has been done in the instant case.
7. On the other hand, Mr. Navaniti Prasad Singh, learned senior counsel for respondents assisted by Mr. Dhananjay Kumar Pathak, has submitted that it is absolutely incorrect on the part of the learned counsel appearing for the appellants who claimed to have been promoted, rather, according to learned senior counsel, if the advertisement, being Advertisement No.1/99, is to be taken into consideration, the same itself speaks about fulfilment of posts by way of direct recruitment but through internal sources.
It has been argued that by making reference of the General Cadre Rules, 1976 where there is a provision of fulfilment of posts through promotion but the same is through Selection Committee, herein, the appellant have failed to bring on record any decision of the Selection Committee save and except the internal advertisement being Advertisement No.1/99 and hence the appointment of the appellants made to the post of Assistant Electrical Engineer cannot be considered to be filled up through promotion, rather it is direct recruitment through internal sources.
It has been argued that the appointment of the
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appellants and the private respondents cannot be said to be in the same calendar year reason being that the appellants have been appointed, according to their own case, in the month of June, 2000 while the private respondents have been appointed on 24.11.1999. Therefore, if the date of appointment of the appellant vis-à-vis the private respondents will be taken into consideration, it will be evident that both the appointments are in different calendar years and hence the plea which has been taken to treat the appellants senior to that of the private respondents as they are promotes and will prevails upon the private respondents since they have been appointed through direct recruitment, is not correct.
It has been argued that so far as the issue of promotion to the post of Superintending Engineer is concerned, the writ petitioners did not question the same immediately after issuance of such notification, rather, the same has been challenged only when the order for promotion to the post of Chief Engineer has been issued.
It has been argued that the post of Chief Engineer is to be filled up from the feeder channel, i.e., from the post of Superintending Engineer and admittedly, the writ petitioners have not questioned the promotion granted in favour of the private respondents which is prior to the promotion granted in favour of the appellants and taking into consideration the
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aforesaid aspect of the matter, if the private respondents have been promoted as Chief Engineer prior to the appellants, the same cannot be said to suffer from an error.
8. We have heard the learned counsel for the appellants, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned order.
9. This Court, on appreciation of the rival submissions and considering the factual aspect as referred hereinabove, is of the view that the sole question which is to be considered is -
Whether the appointment of the appellants can be treated to be by way of promotion or it is direct recruitment through internal sources?
The aforesaid issue is the determining factor for resolving the dispute of seniority or grant of promotion to the post of Superintending Engineer or the Chief Engineer.
10. This Court, in order to appreciate the argument advanced on behalf of the learned counsel for the appellants to treat their appointment to be in the nature of promotion, deems it fit and proper to consider the relevant rule i.e., the Bihar State Electricity Board Electrical Engineers' (General) Cadre Rule - 1976, hereinafter to be referred to as the Rule, 1976, which has been enacted in exercise of power conferred by Section 79(C) of the Electricity (Supply) Act, 1948 which contains the method of recruitment.
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It appear from the aforesaid Rule that the posts are to be filled up through two modes, i.e., direct recruitment and through promotion. The manner of direct recruitment has been stipulated under Rule 6 whereby and whereunder, 70% of the vacancy occurring in the lowest level in the cadre in a year shall be filled up by direct recruitment, while the manner of recruitment by promotion from Junior Engineer has been provided under Rule 9 whereby 30% vacancies at the lowest level in the cadre shall be filled up by promotion from amongst the permanent Junior Engineers in the service of the Board. The provisions under relevant Rule are being extracted and reproduced as hereunder :-
6. Manner of direct recruitment :- (i) Seventy percent of the vacancies occurring at the lowest level in the Cadre in any year shall be filled by direct recruitment. The number of vacancies in the Cadre shall be calculated on an approximate basis in January of each year or as soon as possible, thereafter.
(ii) Depending on the number of vacancies existing in the Cadre there shall be advertisement by the Board published in important newspapers and the number of vacancies, age and other qualifications, preferences as well as reservation for Scheduled Castes and Scheduled Tribes as per the directions of the State Government shall be clearly mentioned in the advertisement. Application shall be invited by a fixed date.
(iii) After receipt of applications as regards eligibility, letters of interview shall be issued to such number of candidate as may be approved by the Chairman. Explanation - If a very large number of application is relation to the available vacancies are received the application may be screened and the candidates with higher qualifications or
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marks or experience or having passed the examination earlier may be called for interview. The principles of scrutiny shall be decided by the Chairman.
(iv) The candidates, who are called for interview, shall be interviewed by a Selection Committee consisting of -
(a) Chairman,
(b) Member (Administration)
(c) Member (Accounts)
(d) Member (Engineering), and
(e) Member (Economic Research)
(v) The Committee shall prepare three lists in order of
merit respectively for general, Scheduled Caste and
Scheduled Tribe candidates, taking into account the number of vacancies available for each of these categories.
(vi) The panels prepared by the Selection Committee in accordance with sub-rule (v) shall be placed before the Board for final selection and issue of appointment letters to candidates from these lists in accordance with the number of vacancies available for general and reserved quotas for Scheduled Caste and Scheduled Tribe candidates.
(vii) The panels prepared in accordance with sub-rule (v) shall be valid for a period of one year from the date of their preparation but the Board may, under special circumstances, extend this period by a further period not exceeding six months.
9. Manner of recruitment by promotion from Junior Engineers :- (i) Thirty per cent vacancies at the lowest level in the Cadre shall be filled by promotion from amongst the permanent Junior Engineers in the service of the Board.
Provided that if and when a separate Distribution- cum-Supply Cadre of Junior Engineers is constituted, recruitment to the service shall be confined to the Junior Engineers from such a Junior Engineers' Cadre.
(ii) A junior Engineer in the service of the Board who has put in at least 8 years of service in distribution and supply or allied work shall be eligible for being considered for appointment in the service.
(iii) Every year in the month of March, a specially
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constituted Committee by the Board, known as "Selection Committee" and composed of -
(a) Chairman,
(b) Member (Administration),
(c) Member (Engineering),
(d) Two seniormost General Managers, and
(e) Director of Personnel who shall also act as Member Secretary shall meet and consider the records of Junior Engineers with the requisite experience and prepare a panel in order of merit and vacancies against the promotion quota during the period April to March shall be filled from this panel which shall be valid for one year.
(iv) A Junior Engineer on promotion to the Cadre must pass the confirmatory examination referred to in Rule 7 within a period of three years extendable up to four years in special circumstances from the date he is promoted fails to pass the examination he shall be reverted.
No Junior Engineer shall be confirmed after promotion to the Cadre unless he passes the confirmatory examination.
11. Thus, it is evident that the post which is to be filled up by way of promotion from Junior Engineer is by a Selection Committee composed of Chairman, Member (Administration), Member (Engineering), Two senior-most General Managers, and Director of Personnel and thereafter, a Junior Engineer, on promotion to the Cadre must pass the confirmatory examination referred to in Rule 7 within a period of three years extendable up to four years in special circumstances. If he fails to pass the examination he shall be reverted.
12. This Court has found from the pleading of the appellants in W.P.(S) No.4187 of 2018 wherein the appointment said to have been made in their favour by virtue
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of internal advertisement being Advertisement No.1/99 (as would appear from paragraph 14 of the writ petition). It further appears from statement made at paragraph 12 of the writ petition that the appellants before entering into the cadre of Assistant Electrical Engineer was working as Unskilled Khalasi so far as the Petitioner No.1 is concerned, and Controller so far as Petitioner Nos. 2 and 3 are concerned.
It further appears that the appellants, namely, Rishi Nandan, Mukul Kumar Gorwara and Sanjay Singh was appointed by issuance of offer of appointment on the same date i.e., 13.06.2000. For ready reference, the aforesaid statement, paragraph 14 of the writ petition, is being reproduced hereinbelow :-
"14. That it is stated that erstwhile Bihar State Electricity Board issued an Internal Advertisement being Employment Notice No.1/1999 dated 02.02.1999 inviting applications from its in-service employees for consideration of their cases for appointment on the post of Assistant Electrical Engineer. In this context, it is stated that the Petitioners, since being eligible for appointment on the post of Assistant Electrical Engineer, applied pursuant to the aforesaid Internal Advertisement and were duly selected and appointed on the post of Assistant Electrical Engineer with effect from following dates :-
Name of Petitioners Date of Date of
Appointment Joining
Rishi Nandan 13.06.2000 20.06.2000
Mukul Kumar Gorwara 13.06.2000 22.06.2000
Sanjay Sinha 13.06.2000 22.06.2000"
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13. The question arises that when it is the case of the appellants that they, at the time of making entry in the cadre of Assistant Electrical Engineer, were working as Unskilled Khalasi or Controller, then where is the question of being considered for promotion as per the provision made under Rule 9 of the Rules, 1976 wherein condition for promotion to the post of Assistant Electrical Engineer is that a candidate must hold the post of Junior Engineer.
Since the appellants were not working as Junior Engineer, as such there is no question of considering the candidature of the appellants for promotion in view of the provision of Rule 9 of the Rules, 1976.
Further, it is evident from the averment made at paragraph 14 of the aforesaid writ petition wherein reference of advertisement being Employment Notice No.1/99 dated 02.02.1999 has been made which was for inviting application from its in-service employees for consideration of their case for appointment on the post of Assistant Electrical Engineer. The aforesaid admission on the part of the appellants that applications were invited from its "in-service employees"
clarifies that the aforesaid advertisement was issued for consideration of candidature of in-service employees and not the persons holding the post of Junior Engineer for the purpose of consideration for promotion to the post of Assistant Electrical Engineer.
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It is further admitted by the writ petitioners that they admitted to have been appointed pursuant to the aforesaid internal advertisement, after duly been selected on 13.06.2000.
It is also admitted fact that the private respondents had been appointed in pursuance to the advertisement being Advertisement No.3/99 inviting applications from the external candidates and in pursuance thereto, the private respondents have been appointed on 24.11.1999.
14. Therefore, the main plea taken on behalf of the appellants to consider them senior since they have been promoted and the private respondents have been appointed through direct recruitment in a calendar year fails.
The private respondents were appointed on 24.11.1999 and that is the reason they have been treated to be senior which is being questioned by the appellants on the ground that they were appointed through promotion as Assistant Electrical Engineer on 13.06.2000. But, as we have come to the finding, after taking into consideration the provision of Rule 9 of the Rules, 1976 and also considering the fact that for promotion to fill up the post of Assistant Electrical Engineer, the same is to be filled up from amongst the Junior Engineers on the recommendation of the Selection Committee, the appointment of the appellants cannot be treated to be by way of promotion.
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The appellants have admitted the date of their appointment on 13.06.2000, while the appointment of the private respondents is on 24.11.1999 and, as such, on the basis of the principle of fixation of seniority taking the date of issuance of offer of appointment, the respondents will be treated to be senior since they were appointed on 24.11.1999 while the appellants were appointed on 13.06.2000.
The private respondents have been promoted to the post of Electrical Executive Engineer and subsequently to the post of Superintending Engineer vide Memo No.427 dated 31.03.2015 and thereafter to the post of Chief Engineer.
15. The appellants, being aggrieved with the promotion to the post of Chief Engineer granted in favour of the private respondents, have questioned the action of the respondent authorities claiming themselves to be the promotees and they should be treated senior to the direct recruits and if that would be considered, the appellants will be treated to be senior and thereby they will be entitled to be considered for promotion to the post of Chief Engineer by recalling the aforesaid Memo which has been passed in favour of the private respondents.
16. The writ petitioners' claim that they are promotees to the post of Assistant Electrical Engineer but actually they are direct recruits in pursuance of Advertisement No.1/99 (Internal Advertisement) and by virtue of that they have been
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appointed on 13.06.2000. The private respondents have been appointed through direct recruitment i.e., by virtue of Advertisement No.3/99 on 24.11.1999, therefore, there is no question of considering the writ petitioners in W.P.(S) No. 4187 of 2018 senior to that of the private respondents.
Further, the private respondents have been granted promotion to the post of Superintending Engineer which is prior to the date of granting promotion to the writ petitioners on the said post but the said notification was not challenged immediately. However, the said notification has been questioned in the writ petition by the appellants while questioning the promotion of the private respondents to the post of Chief Engineer.
17. The question arises that when the writ petitioners are claiming themselves to be senior considering themselves to be the promotees but the same has been discarded by the respondent authorities and thereafter, promotion to the post of Superintending Engineer has been granted, it was incumbent upon the appellants to forthwith question the order of promotion to the post of Superintending Engineer granted in favour of the private respondents but that having not been done, the right to hold the post has accrued in favour of the private respondents and once the aforesaid right has accrued, the promotion to the higher post will be based upon the seniority position of the feeder cadre i.e., the post of
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Superintending Engineer, which is just lower in hierarchy to that of the post of Chief Engineer.
18. In our considered view, the aforesaid order of promotion ought to have been challenged by the writ petitioners forthwith or within reasonable period and certainly not at the time of assailing the order of promotion to the post of Chief Engineer, reason being that the Departmental Promotion Committee, while considering the case of promotion to the post of Chief Engineer, had considered the inter-se seniority of feeder cadre, i.e., the post of Superintending Engineer wherein the appellants were junior to the private respondents and hence, it cannot be said that any irregularity has been committed by the Departmental Promotion Committee while considering/recommending the case of the private respondents for promotion to the post of Chief Engineer.
Therefore, after accepting the order of promotion to the post of Superintending Engineer fairly for a period of about three years, the challenge to it along with the order of promotion to the post of Chief Engineer, cannot be accepted. Further, also for the reason that the private respondents have been held to be senior to that of the appellants, on that account also, the promotion granted to the post of Superintending Engineer in favour of the respondents cannot be said to suffer from illegality.
19. The learned Single Judge, after taking into consideration
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the fact in entirety, has framed the issue about fixation of seniority on the day when the concerned employees were not born in the cadre, the same has been answered against the appellants, which, according to our considered view, cannot be said to suffer from any error for the reason that the appellant had not taken birth on the day when the private respondents were appointed, i.e., on 24.11.1999, rather they had emerged in the cadre of the Assistant Electrical Engineer only on 13.06.2000.
As such, the findings as have been arrived at by the learned Single Judge, answering the aforesaid issue against the appellants, cannot be said to suffer from any error.
20. Accordingly, the instant appeals fail and are dismissed.
21. Pending interlocutory application(s), if any, also stands disposed of.
(Dr. Ravi Ranjan, C.J.) I agree (Sujit Narayan Prasad, J.) (Sujit Narayan Prasad, J.) Birendra/ A.F.R.