Jharkhand High Court
Murari Bhagat vs The State Of Jharkhand Through The Chief ... on 15 July, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 6693 of 2023
Murari Bhagat, aged about 59 years, son of Shri Chunyun Bhagat,
resident of Deen Dayal Nagar, Booty Road, P.O-. Ranchi University,
P.S.-Lalpur, Ranchi-834008, District- Ranchi, Jharkhand
... ... Petitioner
Versus
1. The State of Jharkhand through the Chief Secretary, Government
of Jharkhand, Project Bhawan, P.O.- and P.S.- Dhurwa, Ranchi -
834004, District- Ranchi, Jharkhand.
2. The Secretary, Road Construction Department, Government of
Jharkhand, Project Bhawan, P.O. and P.S. Dhurwa, Ranchi -
834004, District Ranchi, Jharkhand
3. The Principal Secretary, Cabinet Secretariat and Vigilance
Department (Vigilance), Government of Jharkhand, Project
Bhawan, P.O and P S- Dhurwa Ranchi - 834004, District-Ranchi,
Jharkhand
4. The Secretary, Department of Personnel, Administrative Reforms
and Rajbhasha, Government of Jharkhand, Project Bhawan, P.O.
and P.S. Dhurwa, Ranchi - 834004, District Ranchi, Jharkhand
5. The Joint Secretary, Road Construction Department, Government
of Jharkhand, Project Bhawan, P.O. and P.S. Dhurwa, Ranchi
834004, District Ranchi, Jharkhand... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Jitendra Singh, Senior Advocate
: Ms. Amrita Singh, Advocate
: Mr. Yash Singh, Advocate
: Mr. Rohit Ranjan Singh, Advocate
: Ms. Madhavi Nikunj Horo, Advocate
: Ms. Khyati Singh, Advocate
For the Respondents : Mr. Indranil Bhaduri, SC. IV
: Mr. Suman Marandi, AC to SC IV
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JUDGMENT
C.A.V. on 16th April 2024 Pronounced on 15th July 2024 Heard the learned counsels for the parties.
2. The writ petitioner who was promoted to the rank and status of Engineer - In - Chief - cum - Additional Commissioner - cum - Special Secretary and governed by Jharkhand Engineering Service Recruitment Rules, 2016, is aggrieved by his posting as Engineer - In
- Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand, Ranchi.
3. The prayers in the main writ petition and introduced through amendment.
The petitioner in the writ petition has prayed for quashing of the notification bearing F. No. RCD-1-Establishment- 04/2018-3981(S), Ranchi dated 17.08.2023 of Road Construction Department (Annexure
- 17) by which the services have been taken back from the Rural Works Department and he has been posted as Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand, Ranchi, till further orders.
The challenge is on the ground that it takes away the statutory rank and status of the petitioner of that of Engineer - In - Chief - cum - Additional Commissioner - cum - Special Secretary and amounts to reduction in rank. The petitioner has alleged malice against the respondents by referring to the series of cases filed in the high court with regard to his promotion including W.P.S (S) No. 2327 of 2020 disposed on of 17.02.2021 and contempt proceedings in Cont. Case (Civil) No. 738 of 2021, which the petitioner had to file before this court and it is alleged that the impugned action and order have been passed with a view to deprive the petitioner of the rank and status of Additional Commissioner-cum-Special Secretary which is highest in the cadre, by posting him to a non-cadre post which is lower in rank and amounts to reduction of rank .
The petitioner has also sought following declarations in the main writ petition:
Para 1 (ii) to hold and declare that the petitioner holding the rank and status of Engineer - In - Chief - cum - Additional Commissioner - cum - Special Secretary having been posted without the said rank on a non-cadre post other than the parental cadre namely, the Road Construction Department, by the impugned notification dated 17.08.2023 (Annexure - 17), is arbitrary and contrary to all norms.2
Para 1 (iv) to hold and declare that the petitioner being the senior most person in the department holding the highest technical post in hierarchy, as has already been observed and held by a Division Bench of this Court vide an Order dated 29.09.2020 in L.P.A No. 566 of 2018, is entitled to hold the statutory cadre post of Engineer-in-Chief - cum - Additional Commissioner-cum-Special Secretary of the cadre controlling Road Construction Department, Government of Jharkhand, Ranchi under the provisions of the Bihar Engineering Service (Class-1) Rules, 1939 and/or the Jharkhand Engineering Service Recruitment Rules, 2016 and the applicable decisions of the State of Jharkhand issued from time to time;
Para 1 (v) To hold and declare that duties and functions of the statutory cadre post of Engineer-in-Chief-cum-Additional Commissioner- cum-Special Secretary in the cadre controlling namely Road Construction Department cannot be entrusted to an ineligible person on Incharge/officiating basis who does not have minimum qualifying service rendered in the feeder grade post of Chief Engineer on regular basis and that too when a substantially promoted officer in the rank of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary is available in the cadre.
A prayer seeking a mandamus has been made to direct the respondent-authorities to post the petitioner on the statutory cadre post of Engineer -in- Chief -cum- Additional Commissioner -cum- Special Secretary in the cadre controlling Department.
The prayers introduced through amendment are as under: -
A declaration has been sought that the part of the Resolution bearing no.41/2001, 412/Ni dated 05.07.2002 of the Cabinet (Vigilance) Department, which provides for the post of Engineer - in - Chief, is not relatable to the statutory cadre post of Engineer - in - Chief - cum - Additional Commissioner -3
cum - Special Secretary as provided for in Jharkhand Engineering Services Recruitment Rules.
Alternatively, If the same is relatable to the Cadre post of Engineer - in
- Chief - cum - Additional Commissioner - cum - Special Secretary, it is contrary to the aforesaid Rules of 2016 and the mandate contained in Clause 15 read with Entry 4 of Schedule 3 of Rules of Executive Business, 2000, framed under Article 166 (3) of the Constitution of India.
A prayer has been made to quash the decision dated 26.02.2024 which was taken in a meeting held amongst Chief Secretary, Secretary Department of Personnel Administrative Reforms and Rajbhasha, and Secretary, Finance Department of the State of Jharkhand whereby, it has been decided that the statutory cadre post of Engineer - in - Chief - cum - Additional Commissioner
- cum - Special Secretary is equivalent to Engineer - in - Chief, Technical Examiner Cell, Cabinet Secretary and Vigilance Department (Vigilance Wing), Jharkhand, Ranchi and that the pay scale is also same and consequently, the Road Construction Department can extend the services of its Engineers - in - Chief to Cabinet Secretary to Vigilance Department.
Further, a declaration has been sought that in absence of any notification or resolution duly issued by the State of Jharkhand on the equivalence of the posts in issue, even wrongly stating that in terms of status, functions and duties, the post of Engineers - in - Chief simpliciter in the Technical Cell of Vigilance Department shall be equivalent to the statutory cadre post of Engineer - in - Chief - cum - Additional Commissioner
- cum - Special Secretary.
4. Foundational facts and materials on record.
(i) On 16.06.1987, the petitioner was appointed on the post of Assistant Engineer and was substantially promoted to the post of Executive Engineer on 15.06.1995. The petitioner claimed to be 4 eligible for promotion on the post of Superintending Engineer in the year 2001 but was promoted on 08.07.2014.
(ii) As the issue of promotion was not considered for years and the petitioner was rendering service on the higher post on officiating basis, the petitioner had filed a writ petition before this Court being W.P.(S) No.415 of 2015 claiming pay and allowance of service rendered by him on higher post and also prayed for consideration of his case for promotion to the post of Chief Engineer/Engineer-in-Chief-cum-Additional Commissioner-cum-
Special Secretary. The writ petition was disposed of on 22.07.2015 directing the respondents to consider the grievance of the petitioner in accordance with law after due scrutiny of the relevant records with an observation that the case of the petitioner for promotion would depend upon consideration of all the eligible persons upon availability of vacancy in the respective category.
(iii) However, the grievance of the petitioner was not redressed. The petitioner filed another writ petition being W.P.(S) No. 1054 of 2019. An order dated 11.07.2019 was passed in W.P.(S) No.1054 of 2019 and then vide notification dated 05.11.2019 read with corrigendum notification dated 13.11.2019 the petitioner was granted regular promotion to the post of Chief Engineer with effect from 24.12.2018.
(iv) The petitioner claimed that he was eligible for further promotion to the rank of Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary and vacant sanctioned post was available, therefore, he filed representation for consideration of his case for promotion. A meeting of Departmental Promotion Committee (hereinafter referred to as "the DPC") was held and the petitioner was granted promotion to the post of Engineer-In- Chief vide notification dated 08.07.2020 from the date of assuming the charge although the petitioner claimed promotion to the cadre post of Engineer-In-Chief-cum-Additional Commissioner-cum-Special Secretary.
5(v) The said action of the respondents was challenged by the petitioner in another writ petition being W.P.(S) No.2327 of 2020 for promotion on the sanctioned post of nomenclature as Engineer-In-Chief-cum-Additional Commissioner-cum-Special Secretary from the due date.
(vi) During the pendency of W.P.(S) No.2327 of 2020, a DPC was held wherein it was discussed that as per the aforesaid Rules of 2016, Rule 7 read with Schedule II, the next promotional post is Engineer - in - chief - cum - Additional Commissioner - cum - Special Secretary. In this connection, it was informed by the Road Construction Department that from undivided State of Bihar a post of Engineer - in - Chief - cum - Additional Commissioner - cum
- Special Secretary was received by the Road Construction Department by way of transfer to the State of Jharkhand. It was discussed that thereafter the Rural Development Department, Jharkhand issued a letter no.3275 dated 14.08.2001 and a separate post namely, Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary was sanctioned and created in the department. It has also been recorded that even the Building Construction Department, Jharkhand Ranchi had sanctioned and created the said post vide letter no.654 dated 17.03.2006 and thus, it was also observed that the said post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary is a sanctioned post under Road Construction Department. In the aforesaid background, consultation was also made with the Personnel Administrative Reforms and Rajbhasha Department of the State of Jharkhand and it was confirmed that under the Rule 15 of the Rules of 2016, the said post namely Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary is a sanctioned post for promotion and steps can be taken for promotion in terms of Rule 7(IV), and consequently, inter alia following decision was taken in the Departmental Promotion Committee Meeting dated 18.11.2020:
6The error made in Notification dated 18.07.2020 by which the petitioner was promoted to in post of Engineer - in - Chief was to be corrected and the petitioner was to be promoted to the post of Engineer - in - Chief - cum - Additional Commissioner
- cum - Special Secretary and consequently, the Notification dated 08.07.2020 promoting the petitioner as Engineer - in - Chief be modified and his date of promotion to Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary be also shifted back to 24.12.2019. The said decision was taken in terms of Rule 7 Schedule II of the Rules of 2016 governing the petitioner.
(vii) The writ petition being W.P.(S) No. 2327 of 2020 was disposed of on 17.02.2021 with a direction to the respondent nos.1, 3, and 4 to issue notification in view of the recommendation of the Departmental Promotion Committee dated 18.11.2020 within a period of 6 weeks.
(viii) As the order dated 17.02.2021 passed in W.P.(S) No.2327 of 2020 was not complied, the petitioner filed Contempt Case (Civil) No.738 of 2021 and vide order dated 03.12.2021, the opposite parties were directed to file show cause, and immediately thereafter on 08.12.2021, the petitioner was transferred (without posting) to Rural Works Department (Jharkhand), and at the same time, one Jai Prakash Singh of rank lower to the petitioner holding substantive post of Superintending Engineer was transferred and posted as the officiating Engineer-in-Chief in place of the petitioner, though he was allegedly ineligible to hold the higher post of Engineer-in-Chief even on officiating basis. However, the petitioner submitted his joining in the Rural Works Department and requested for being given the post.
(ix) Order dated 11.02.2022 was passed in Contempt Case (Civil) No. 738 of 2021 recording that a show-cause was filed stating that due to some inadvertent reasons opposite party was unable to comply the order and this Court observed that the show-cause filed by the O.P. No. 3 clearly shows that how the opposite parties were trying to play with the order of this Court and this Court issued notice upon opposite parties Nos. 1, 2 and 3 in terms of Rule 393 7 of High Court of Jharkhand Rules, 2001 and the matter was directed to be posted on 25.02.2022.
(x) Prior to the next date in the contempt proceedings, a notification dated 23.02.2022 was issued by the Road Construction Department, whereby the earlier notification dated 08.07.2020 was partly modified and the petitioner was granted promotion to the cadre post of Engineer-in-Chief-cum-Additional Commissioner-
cum-Special Secretary with retrospective effect from 24.12.2019 with all consequential benefits relaxing the provisions of Rule 74 of Jharkhand Financial Rules and Rule 58A of Jharkhand Service Code. In spite of the notification dated 23.02.2022, no order of posting was issued with regard to the petitioner, and thereafter, the concerned authorities including the Chief Secretary of the State of Jharkhand were summoned for personal appearance in the contempt proceeding, and it was submitted before this Court that the posting of the petitioner shall be taken care of. In view of such submissions, the contempt case was dropped vide order dated 11.03.2022, which is quoted as under:
"This petition has been taken through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.
2. Pursuant to the order dated 25.02.2022, Mr. Sukhdeo Singh, Chief Secretary, Government of Jharkhand, Mrs. Vandana Dadel, Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand and Mr. Sunil Kumar, Secretary, Road Construction Department, Government of Jharkhand appeared in person through Video Conferencing.
3. Mr. Sachin Kumar, learned A.A.G.-II draws attention of the Court to the order dated 17.02.2021 passed in W.P. (S) No.2327 of 2020, which is the subject matter of this contempt proceeding and submits that direction of this Court has been complied with in its letter and spirit. He took the Court to the show-cause filed by opposite party no.3 and submits that by way of Annexure-1 of the show-cause, the notification dated 23.02.2022 has been issued in favour of the petitioner in terms of the order passed by this Court and in that view of the matter, the order has been complied with.
4. Mr. Jitendra Singh, learned Senior counsel appearing for the petitioner submits that this notification is conditional and in anticipation of approval by the Cabinet, the said notification has 8 been issued. According to him, there is no compliance of the order of this Court in its letter and spirit.
5. Mr. Sukhdeo Singh, Chief Secretary, Government of Jharkhand appeared in person, has interacted with the Court and very fairly submitted that in terms of Rule of Executive Engineer, in emergent situation Cabinet's approval is required and due to paucity of time the Cabinet is not convened. The Chief Minister is empowered to pass such order and that are being approved by the Cabinet post facto, which is general practice. There should not be any apprehension in the mind of the petitioner that the notification is conditional one. He has also submitted that posting of the petitioner shall be taken care of.
6. In view of the statement of the Chief Secretary, this Court is of the view that whatever nature of the notification is there, that will be looked into by the Chief Secretary.
7. In view of the Contempt of Courts Act, 1971, when a party which is required to comply with the terms or directions in an order, has not done so within such time as stipulated in the order, two options are available to the party which was required to comply with such order: (a) give an explanation to the Court as to the circumstances due to which the party could not comply with the order of the Court; (b) seek for further time to comply with the order of the Court. If a delay has occurred in complying with the terms of an order and the party which was to comply with the order has not resorted to either of the two aforesaid options, then the party responsible for delay in compliance, may be held to have committed contempt. In the case in hand, it is well known that in non-compliance of the order, it is between the Court and the contemnor whether the contempt is made out or not. The Court has also perused the notification, which has been issued by the order of the Governor.
8. In view of the above facts and particularly considering the statement of the Chief Secretary of the State, this Court is of the view that condition of notification shall be complied with.
9. Accordingly, this contempt proceeding is dropped and the petition is, hereby, disposed of.
10. The appearance of Mr. Sukhdeo Singh, Chief Secretary, Government of Jharkhand, Mrs. Vandana Dadel, Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand and Mr. Sunil Kumar, Secretary, Road Construction Department, Government of Jharkhand are dispensed with."
(xi) Thereafter, the petitioner was posted as Engineer-in-Chief-cum- Additional Commissioner-cum-Special Secretary in the Rural Works Department, Jharkhand Ranchi, and not in the Cadre Controlling Department, namely, Road Construction Department. This was done in spite of the fact that there was no other officer 9 available in the engineering cadre who was promoted to the cadre post of Engineer-in-Chief-cum-Additional Commissioner-cum- Special Secretary on regular basis since the creation of the State of Jharkhand.
(xii) Thereafter, vide impugned notification dated 17.08.2023, the Road Construction Department recalled the services of the petitioner and posted the petitioner on the post of Engineer-in- Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department, Jharkhand, Ranchi, until further orders, which as per the petitioner is a post previously filled by officers of the rank and status of Superintending Engineer/Chief Engineer, mostly on officiating basis.
(xiii) Despite being aggrieved by the order of posting, the petitioner relinquished the charge of the Rural Works Department and submitted his joining under protest in the Department of Cabinet Secretariat and Vigilance on 21.08.2023, and 22.08.2023 respectively. Additionally, it is stated in the writ petition that the petitioner's joining on the newly transferred post was not immediately accepted but was approved after a lapse of 11 days, vide office order dated 04.09.2023. The petitioner assumed charge of the newly transferred post on 05.09.2023.
(xiv) It is also stated that on 28.08.2023, and 07.11.2023, the petitioner submitted a representation for a review of the matter under Rule 27(4) of the Rules of Jharkhand Executive Business before the Chief Secretary with a copy to other respondents. When this representation remained unanswered and unresolved, the petitioner submitted a reminder representation to the Chief Secretary and other respondents.
(xv) During the pendency of the writ petition, a three-member committee passed an order holding that Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand is equivalent to Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary and that the pay scale was also same.
10(xvi) Upon passing of the aforesaid order, the petitioner filed interlocutory application being I.A. No. 3076 of 2024, seeking to challenge the aforesaid decision. Said interlocutory application was taken up on 04.04.2024, wherein the learned counsel appearing on behalf of the respondents had submitted that they had no serious objection to the interlocutory application seeking amendment and no specific reply was required to the averments made in the interlocutory application.
(xvii) Consequently, I.A. No. 3076 of 2024 was allowed and directed to be treated as a part of the main writ petition. On the same day, with the consent of the learned counsel for the parties, the hearing commenced, and the parties had given their contours of argument in connection with the issues present in the case. The matter was posted for further hearing on 16.04.2024. On 16.04.2024, the matter was finally heard at length, and the order was reserved.
(xviii) A rejoinder to the supplementary counter-affidavit dated 13.03.2024 has also been filed by the petitioner vide affidavit dated 19.03.2024 wherein, the averments made in the writ petition were reiterated, and as many as 14 grounds were raised to show that the post of Engineer-in-Chief -cum- Additional Commissioner
-cum- Special Secretary is higher than the post of Engineer-in- Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand in all respects. The petitioner has challenged the stand of the respondents that the two posts are equivalent and pay-scale is also the same and consequently, the Road Construction Department could extend the services of the petitioner to be posted as Engineer-in-Chief to the Cabinet Vigilance Department.
(xix) The petitioner has challenged the impugned action and orders of the respondents by which the petitioner having been promoted to the highest cadre post in the Road Construction Department of the State of Jharkhand as Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary has 11 been shifted and posted as Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand primarily on various grounds.
(xx) The petitioner has submitted that officiating arrangements to fill up the highest post in the cadre were a regular feature throughout. Earlier, an order was passed by this Court in W.P.(S) No.2709 of 2011, wherein, vide order dated 12.08.2011, a direction was passed to the Chief Secretary of the State of Jharkhand not to appoint in-charge person on pick-and-choose basis on regular posts in the State of Jharkhand. In terms of the said order and with the approval of the Chief Secretary, a letter dated 06.09.2011 was issued to the Principal Secretaries/all Secretaries/all departmental heads, asking them to make regular appointments forthwith so that the practice of inchargeship/ad- hocism is stopped.
(xxi) It is stated in the writ petition that the status of the rank and statutory cadre post of Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary under the Public Works Department had been sanctioned, upgraded, and declared equivalent to the post of Commissioner in the super-time pay scale of the Indian Administrative Services by the unified State of Bihar, according to the letter of sanction dated 14.03.1974, and the notification dated 14.04.1981. These provisions are lawfully applicable in the State of Jharkhand.
5. Submissions of the Petitioner a. Upon a mere perusal of the Resolution dated 05.07.2002 issued by the Cabinet (Vigilance) department, it would be evident that it was issued having been felt expedient by the State Government to create a fresh Technical Examiner Cell under the Cabinet (Vigilance) Department. Consequently, the resolution sanctioned the specified posts and authorized expenditure for the same. Thus, by the Resolution dated 05.07.2002, it cannot be said that the Statutory Cadre Post of Engineer-in- Chief-cum-Additional Commissioner- cum-Special Secretary and the post of Engineer-in-Chief in 12 Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand have been declared to be equivalent posts in terms of status, functions and duties. Reliance has also been placed on 1939 service rules, Jharkhand Public Works Department Code to compare the duties and responsibilities of Chief Engineer and Engineers - in - Chief, and it has been submitted that in the Rules of 2016, there is post of Chief Engineer, but there is no post of Engineer - in - Chief and there is a separate post namely Engineer-in-Chief-cum-Additional Commissioner-cum- Special Secretary.
b. The Resolution dated 05.07.2002 neither expressly nor by necessary implication and in fact nowhere states that the Statutory Cadre Post is equivalent to the post of Engineer-in-Chief though the nomenclature of the Statutory Cadre Post stood conferred way back in 1974 and 1981 vide Governmental Orders dated 14.03.1974 and 14.04.1981, which is much prior to the Resolution dated 05.07.2002. At the time of Reorganisation, one such active upgraded post pursuant to the Bihar Reorganisation Act, 2000 with the same nomenclature was transferred to the State of Jharkhand as is manifest from Annexure - 3 to the Writ Petition, the Minutes of the Meeting of the 2nd Departmental Promotion Committee dated 18.11.2020 as also from the Order dated 23.11.2001 of this Hon'ble Court passed in W.P.(S). No. 4267 of 2001. Even subsequent to the impugned Resolution dated 05.07.2002, vide Governmental Orders dated 24.8.2002 of the Rural Development Department and orders dated 17.3.2006 of the Building Construction Department issued after the approval of the Council of Ministers of the State of Jharkhand, the Statutory Cadre Post with the nomenclature Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary along with gazetted and non-gazetted post under him were sanctioned and created.
c. Annexure - 25 series shows that the Secretariat sanctioned for the Post of Engineer-in-Chief- cum-Additional Commissioner-cum- Special Secretary by the Rural Development Department and the Building Construction Department, differ in substance from the Secretariat created vide Resolution dated 05.07.2002.
13d. The Resolution dated 05.07.2002 insofar as it pertains to the post of Engineer-in-Chief, is ex-facie arbitrary and unsustainable as no post by the nomenclature Engineer-in-Chief simpliciter exists under the 2016 Rules as shall be manifest from a mere perusal of Rule 3 read with Schedule 1 of the 2016 Rules. The cadre post of the Chief Engineer is the feeder Cadre post for the Statutory Cadre Post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary and post by nomenclature "Engineer-in- Chief" is a non-existent post as even under the 1939 Class - I Rules, there was no post by the nomenclature of Engineer-in-Chief. It is stated that pursuant to creation as referred to hereinabove in the year 1974 and 1981, the only post as the highest engineering post sanctioned and created was that of Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary. As such, the decision taken by the three-member Committee as referred to in the Supplementary Counter Affidavit Firstly, talks about equivalence of the Statutory Cadre Post to a non-existent post of "Engineer-in-Chief" Simpliciter and Secondly, fails to notice that the functions, duties and responsibilities are those of the rank and post of the Chief Engineer and thus, by the impugned Transfer Order dated 17.08.2023, the Petitioner has been subjected to reduction in rank and degradation in his statutory role, functions, duties and status. e. That justification given for the decision by the three-member Committee to hold the Statutory Cadre Post as equivalent to the non-existent post of Engineer-in-Chief viz. post has been sanctioned and created and the Pay Scale is the same cannot be determinative of equivalence even if there was a notification to this effect as has been authoritatively laid down by the Hon'ble Apex Court in various decisions. The Hon'ble Apex Court has categorically held that equivalence of Pay Scale is not the only factor to judge whether the two posts are equivalent post and that the real criterion and test is as to whether they could be regarded as of equal status and responsibility. The Hon'ble Apex Court in so many words have laid down that the true criterion for equivalence is the status and responsibility.
14f. That the provision of that part of Resolution dated 05.07.2002 dealing with post by nomenclature Engineer-in-Chief is in contravention and variance with the provision of the Jharkhand Public Works Department Code, 2012 framed in exercise of powers under Article 162 read with Article 309. The provisions of Rule 15 A, 15 B and 15 C read with Rule 291A and 292 of the Jharkhand Public Works Department Code, 2012 deals with the power and duties conferred/ delegated to Engineer-in-Chief (obviously in view of paragraph no. vii hereinabove) would refer to the post as it stands upgraded and recognised under the 2016 Rules as also the powers of Chief Engineer.
g. That the provision of Rule 15 A delineates the duties of the highest Cadre Post to be the Administrative and Professional Head of Branch of the Public Works Department and makes it his duty to recommend to the government on matters relating to the provision of transfer, postings, punitive actions, award etc. of the Chief Engineer, Superintending Engineer, Executive Engineer and Assistant Engineer etc. Further, Rule 15 B makes it the duty of Engineer-in-Chief to see that the budget allotted for the years are fully spent. The provision of 15 C makes the Chief Engineer only the Administrative and Professional Head of the Wing of the Public Works Department. The words 'BRANCH' of the Public Works Department and word 'WING' has been defined under section 1 B(b) and (h) of the Jharkhand Public Works Department Code, 2012. The word 'Branch' of the Public Works Department means any of the Works Department in Public Works Department like Road Construction Department, Building Construction Department etc. in the State of Jharkhand while the word 'Wing' means that part of a Branch of the Public Works Department under charge of a Chief Engineer.
A mere perusal of Rule 291 A and 292 of the Jharkhand Public Works Department Code, 2012 and powers and duties of the Statutory Cadre Post and that of Chief Engineer on face of it reveals that in terms of functions, duties and status, the two have been clearly differentiated and are not of the status or equivalence.
15h. In any view of the matter, the Technical Examiner Cell is no part or either Branch of Public Works Department or a Wing of that Branch. Hence, it is a non-cadre post and also does not form ex- cadre post of Engineer-in- Chief-cum-Additional Commissioner- cum- Special Secretary. The said post does not figure in any equivalent ex-cadre post notified till date by the competent authority in accordance with law.
i. That the post of Engineer-in-Chief Simpliciter cannot be equated or said to be an equivalent post to Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary is also manifest from the fact that the Departmental Promotion Committee constituted under Rule 7(3) read with Second Schedule of the 2016 Rules recommended the Petitioner to be promoted as Engineer-in- Chief as against the promotional post of Engineer-in-Chief-cum- Additional Commissioner-cum-Special Secretary and accordingly, initially the Petitioner was promoted vide Notification dated 08.07.2020. The Petitioner was compelled to file W.P.(S) No. 2327 of 2020 for direction to promote the Petitioner on the Statutory Cadre Post- Engineer-in-Chief cum Additional Commissioner cum Special Secretary carrying the status, specific functions and duties of the said post who despite being eligible had not been promoted to the said Post and had been promoted to a Non-Existent Post of Engineer-in- Chief instead. Realizing the error committed, the Respondent Authorities constituted a second meeting of the Departmental Promotion Committee which noticing the stand of the Department vide recommendation dated 18.11.2020 and recommended to promote the Petitioner to the post of Engineer-in- Chief-cum-Additional Commissioner-cum- Special Secretary w.e.f. 24.12.2019. As such, it is now not open to the Respondent to even contend that the post of Engineer-in-Chief in resolution dated 05.07.2002 to be equivalent to statutory cadre post of Engineer-in- Chief cum Additional Commissioner cum Special Secretary as the Pay Scale of the two Posts is the same.
j. That if perceived otherwise the same would be contrary to the Statutory rules of 2016 Rules and PWD Code, 2012. The impugned action being and being ex-facie arbitrary and violative of Article 14 16 of the Constitution of India while treating two un-equals as equal and that too when one of the post - Engineer-in- Chief Simpliciter is a Non-Existent Post in the cadre as has also been held in the Order dated 23.11.2001 by this Hon'ble Court passed in W.P.(S). No. 4267 of 2001.
k. It is well settled by authoritative decision of the Hon'ble Apex Court that employment under the Government, like that under any other master and servant relationship, may have a contractual origin. The petitioner further mentioned that the Government Servant, upon appointment to the office, acquires a certain status and that the rights, obligations, and functions are no longer determined by consent but by statutes or statutory rules. It was emphasized that the hallmark of status is the attachment to a legal relationship of rights and liabilities imposed by public law and not mere agreement of parties. Additionally, the petitioner referred to an authoritative holding that the duties of status are fixed by law, and in enforcement of such duties, the society has an interest. In the language of jurisprudence, the status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between parties. The petitioner referred to judgments passed by the Hon'ble Supreme Court reported in:
(1974)1 SCC 19 (The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and others) Paragraphs Nos. 16 AIR 1967 SC 1889 (Roshan Lal Tandon and anr. Vs. Union of India) Paragraph Nos. 3 and 6 (1998) 6 SCC 165 (State of M.P. and another Vs. Dharam Bir) Paragraphs Nos. 24, 25 and 26 l. The petitioner mentioned that it is equally well settled that the State and Central Government are required to act as a Model Employer, consistent with the role in a Welfare State, and that the essence of guarantee epitomized under Article 14 and 16 is "fairness founded on reasons." Additionally, reference was made to case law on the matter, specifically Paragraph Nos. 35 to 38 of (2010) 4 SCC 290 (Union of India and another Vs. Hemraj Singh Chauhan and others).17
m. Upon a mere perusal of the impugned notification dated 17.08.2023, it is evident that the Impugned Notification acknowledges the rank and status of the Petitioner as Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary. The petitioner further emphasized that his services were taken back from the Rural Works Department and until further orders, he was posted as mere Engineer-in-Chief in the Technical Examiner Cell, Cabinet Secretariat, and Vigilance Department. Consequently, by the Impugned Posting, petitioner has been denied their status, duties, and responsibilities of the post to which he was duly promoted, and thus, asserted that the Impugned Order is beyond the competence and authority of the Respondents.
n. The Impugned Order of transfer and posting not only subjects the petitioner in effect to a reduction in rank and status but given the facts, there are three sanctioned posts of Engineer-in-Chief-cum- Additional Commissioner-cum-Special Secretary in the State of Jharkhand, which are presently occupied as an officiating arrangement by officers of the rank of Superintending Engineer or Chief Engineer who do not possess the minimum experience as Chief Engineer. The learned counsel for the petitioner has submitted that such an order is clearly lacking in bonafide and is violative of the Constitutional guarantee of "fairness founded on reason," as epitomized by Article 14 and 16 of the Constitution of India, as held in the case of Union of India Versus Hemraj Singh Chauhan (2010) 4 SCC 290.
o. The petitioner alleged that the Respondent Authorities acted arbitrarily and unauthorizedly by firstly, conferring the powers and duties of the Engineer-in-Chief-cum-Additional Commissioner- cum-Special Secretary on an officiating basis to Superintending Engineer/Chief Engineer and simultaneously posting the Petitioner on the impugned post, which is shorn of the duties and responsibilities of the post of Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary as inter alia conferred under the provisions of the Jharkhand Engineering Service Recruitment Rules, 2016 and Clauses 15, 15A, and 15B of the Jharkhand Public Works Department Code, 2012. It has been emphasized that these 18 rules were framed in exercise of powers conferred by Article 162 read with Article 309 of the Constitution of India. p. By the Impugned Order of Transfer and Posting, not only the function of the Petitioner as the administrative and professional head of the branch of the Public Works Department and the role of advisor to the Government has been taken away, but also the status thereto has been stripped. Instead, the Petitioner has been made amenable to initiation of proposals for transfer, posting, and even punitive action at the hand of his rank juniors who are officiating against the post of Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary in the parent cadre controlling department, namely the Road Construction Department. q. Furthermore, it was stated that the action of the Respondent Authorities in issuing the Impugned Notification of transfer and posting, changing the statutorily fixed role of Engineer-in-Chief- cum-Additional Commissioner-cum-Special Secretary as recognized under the Public Works Department Code, 2012 and Section 3 read with Schedule 1 of Jharkhand Engineering Service Recruitment Rules, 2016, particularly when it is an admitted position and judicially noticed vide Judicial Order passed in L.P.A. No. 566 of 2018 vide Judgment dated 28.09.2020 that the Petitioner is holding the senior-most hierarchical post in the Engineering Cadre, renders the impugned order beyond the competence and authority of the Respondent Authorities and fit to be quashed.
r. The learned counsel for the petitioner has submitted that it has been held by the Hon'ble Apex Court that seniority is a civil right. The status of the Petitioner as the senior-most offices/engineer in the Jharkhand Engineering Cadre under the Jharkhand Engineering Service Recruitment Rules, 2016 is civil right and plays a vital role in the Service Career. If such a right is infringed, it generates bitterness resentment, hostility amongst government servants and affects their enthusiasm to do quality work apart from driving parties to litigation, at times driving the parties to acute penary. s. The learned counsel has referred to the judgment passed by the Hon'ble Supreme Court reported in (2010) 4 SCC 301 (H.S. Vankani and others Vs. State of Gujarat and others) Para 38, 39, 19 43 and 48. It is submitted that the impugned order of transfer and posting contravenes seniority and status of the Petitioner which is a recognised civil right.
t. It has been held by the Hon'ble Apex Court in (1986) 3 SCC 7 (Vice
- Chancellor, L.N. Mithila University Vs. Dayanand Jha) para 5, 7 and 8 that even if 2 posts carry the same scale of pay, they cannot be treated as equivalent, the real question in test is whether the 2 posts could be regarded of equal status and responsibility. u. Neither the two posts in issue have been declared to be equivalent nor their functions and responsibilities are the same and in fact, both the functions as well as the status of the transferred post are incomparable.
6. Arguments of the Respondents i. The learned counsel for the respondents, while opposing the prayer of the petitioner, has submitted that the impugned order has been rightly passed. The learned counsel has referred to Rules of 2016, to submit that the various posts have been mentioned under Rule 2 (e) which has the post of Junior/ Junior Engineer/ Assistant Engineer/ Executive Engineer/ Superintending Engineer/ Chief Engineer and Engineer - in - Chief, who are the engineers in the cadre of Road Construction Department, and therefore, Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary is equivalent to Engineer - in - Chief. It is submitted that when an incumbent is posted in the concerned department in Public Works Department, he is known as Engineer - in - Chief - cum
- Additional Commissioner - cum - Special Secretary and when he is posted in the Vigilance Department, he is known as Engineer - in Chief, Technical Examiner Cell, Cabinet Secretariat, Vigilance Department (Vigilance Wing), Jharkhand, and therefore, the posting of the petitioner who was promoted as Engineer - in - Chief - cum - Additional Commissioner - cum
- Special Secretary in the Road Construction department to the post of Engineer - in - Chief, Technical Examiner Cell, Cabinet 20 Secretariat, Vigilance Department (Vigilance Wing), Jharkhand, is at equivalent post. He further submitted that as per the Schedule II, there is no separate post of Engineer - in - Chief, although as per Rule 2 (e) Engineer - in - Chief has been mentioned therefore, Engineer - in - Chief is as good as Engineer - in - Chief - cum - Additional Commissioner - cum
- Special Secretary.
ii. The learned counsel has also referred to the impugned order passed during the pendency of this case which is under challenge through an interlocutory application. He submitted that the Resolution of the Vigilance department dated 05.07.2002 has been rightly considered and the same does not call for any interference. The learned counsel also submitted that the respondents have acted within the four corners of law. iii. The learned counsel has also submitted that the petitioner while working as Engineer - in - Chief, Technical Examiner Cell, Cabinet Secretariat, Vigilance Department (Vigilance Wing), Jharkhand, will have supervision by way of random inspection over all the Public Works Departments in connection with quality of execution, timely completion of work, etc. and if posted as Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary in one or the other works department including Road Construction Department, he would have control over only one such department. Therefore, the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary is in no way less in rank and responsibilities compared to the post of Engineer - in
- Chief, Technical Examiner Cell, Cabinet Secretariat, Vigilance Department (Vigilance Wing), Jharkhand. In order to bring home the work and responsibilities of the petitioner while working as Engineer - in - Chief, Technical Examiner Cell, Cabinet Secretariat, Vigilance Department (Vigilance Wing), Jharkhand, reference has been made to the Resolution dated 21 05.07.2002 by which the post was created. He submits that as per impugned order, the pay scale is the same.
Findings of this Court
7. At the time of filing of the writ petition, the petitioner was primarily aggrieved by the notification of Road Construction Department dated 17th August 2023, by which his services were taken back from Rural Works Department till further orders, and he was posted on the post of Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand, Ranchi. Admittedly, the petitioner was promoted as Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary vide notification dated 23.02.2022, and his grievance is that by posting him as Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), the petitioner has been reduced in rank.
8. Admittedly, there are three sanctioned cadre posts of Engineer
- in - Chief - cum - Additional Commissioner - cum - Special Secretary which were occupied by way of officiating arrangement. The petitioner in spite of being eligible and available for the posting as Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary, was shifted and posted as Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand as Engineer- in -Chief.
9. At the time of filing of the writ petition, the representation of the petitioner raising his grievance regarding his posting as Engineer- in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand was pending.
10. During the pendency of this case, the respondents have taken a decision vide order 26.02.2024, stating that the post of Engineer - In - Chief - cum - Additional Commissioner - cum - Special Secretary and the post of Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand are equivalent as they have the same pay scale. While taking such a 22 decision, a reference has been made to Resolution No.412 dated 05.07.2002. Consequently, the petitioner has challenged the said decision dated 26.02.2024 and sought a further declaration by seeking amendment to the writ petition. The petition seeking amendment was allowed vide order dated 04.04.2024 and directed to be treated as a part of the main writ petition.
11. The core issues involved in the present case are: -
a. Whether the part of the Resolution bearing No.41/2001, 412/Ni dated 05.07.2002 of the Cabinet (Vigilance) Department, which provides for the post of Engineer-in- Chief, is relatable to the Statutory Cadre Post of Engineer-in- Chief-cum-Additional Commissioner-cum-Special Secretary, Road Construction Department, having not been specifically included in the said resolution dated 05.07.2002? As a sequel to the aforesaid issue, whether the impugned decision justifying the posting of the petitioner by referring to the Resolution bearing No.41/2001, 412/Ni dated 05.07.2002 of the Cabinet (Vigilance) Department is sustainable in law? b. Whether the impugned decision dated 26.02.2024, holding that the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary to which the petitioner was promoted and the post of Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand are equivalent, is sustainable in law?
c. Whether the posting of the Petitioner as Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat, and Vigilance Department (Vigilance Wing) Jharkhand, Ranchi amounts to reduction in rank compared to the rank and position of the Petitioner in the capacity of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary? d. Given the fact that there are three sanctioned cadre posts of Engineer-in-Chief -cum- Additional Commissioner -cum- Special Secretary, whether the respondents are justified in shifting and posting the petitioner in the ex-cadre post as Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand, and filling the three sanctioned posts by way of officiating arrangement from amongst the persons much lower in the cadre?
e. Whether the impugned action of the respondents is a result of malice on account of the petitioner having filed writ 23 petitions and contempt petition to secure his right for consideration of promotion and correct designation upon promotion to the highest cadre post in the Road Construction Department and thereby deprived the petitioner of post, rank, and status of Engineer - in - Chief
- cum - Additional Commissioner - cum - Special Secretary?
12. During the course of arguments, it was not disputed that the petitioner could have been posted as Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand only if the said post was equivalent to the highest cadre post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary under the Road Construction Department, to which the petitioner was ultimately promoted after much litigation.
Issue no. (a)
13. The issue is required to be considered in the background of the posts available under Bihar Engineering Service Rules, 1939, posts available at the time of creation of the State of Jharkhand on 15.11.2000, the PWD Code 2012 and Rules of 2016, which at present governs the petitioner. This would eventually lead to the background of creation of the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary in the Road Construction Department to which the petitioner belongs.
14. Important provision of Bihar Engineering Service Rules, 1939 2 (f) "superior post" means the post of Chief Engineer, Deputy Chief Engineer, Superintending Engineer, Executive Engineer, Undersecretary to the Provincial Government in the Public Works Department and such other posts as may be specially classed as superior by the Governor.
3. Strength of cadre.- The sanctioned strength of the service shall be as follows:-
Permanent. Temporary.
Chief Engineer 1 ... 24 Deputy Chief Engineer ... 1 Superintending Engineers 4 6 Executive Engineers 21 17 including Under- Secretary. Total 26 24 Provided that:
(a) the Governor may leave unfilled or hold in abeyance post, without thereby entitling any member of the service to compensation, and may increase or decrease the cadre by creating or reducing permanent or temporary posts from time to time, as may be found necessary; and
(b) ...
15. Important provisions of Jharkhand Public Works Department Code, 2012.
Jharkhand Public Works Department Code, 2012 (hereinafter referred to as (PWD Code) has been framed under Article 162 read with Article 309 of the Constitution of India. Clause 1 B (b) and 1 B (h) defines "Branch" and "Wing" of the Public Works Department respectively and "Department" itself has been defined in Clause 1 B
(d) to mean "Public Works Department". Clause 1 B (f) defines "Public Works Department" to mean Road Construction Department, Building Construction Department, Rural Development Department, Rural Works Department, Drinking Water and Sanitation Department, Water Resources Department and Energy Department. As per the definitions, "Wing" is just a part of "branch" of the Public Works Department under charge of a Chief Engineer.
Clause 6 of the PWD Code gives the name and designation of the post of the Jharkhand Engineering Service, which is quoted as under:
"6. The following are the Name and designation of posts of The Jharkhand Engineering Service, Class I & II: -
(a) Class I Name and designation of posts-
Engineer-in-chief, Chief Engineer, Superintending Engineer, 25 Executive Engineer,
(b) Class II Name and designation of post-
Assistant Engineer."
Duties of Officers of Public works Department has been mentioned under sub-head "F" and Clause "15 to 15 B" deal with Engineer - in - Chief and Clause "15 C to 22" deal with Chief Engineer which are quoted as under:
Duties of Officers of the Public Works Department Engineer in Chief
15. The Engineer-in-Chief is the administrative and professional head of that branch of the Public Works Department of which he is in charge, and is responsible for the proper and efficient working of that branch.
Engineer-in- Chief is adviser of Government in all matters relating to his branch.
15A. It is the duty of the Engineer-in-Chief to recommend to Government all matters relating to provision of, transfers, postings, punitive action, award etc. of Chief Engineer Superintending, Executive and Assistant Engineers. He has full powers of transfer of Junior Engineer, non-gazetted staff, ministerial and menial, from one wing to another. 15B. It will be the duty of Engineer-in-Chief to see that the budget allotment for the year are fully spent, in so far as is consistent with general economy and prevent large expenditure in the last month of the year for the sole purpose of avoiding lapses. He will be responsible for ensuring that any money which is not likely to be needed during the year is promptly surrendered, so as to allow its re-appropriation for other purposes by the department.
Note- Powers and Duties of Engineer-in-Chief will be vested In the Chief Engineer where he is the administrative and professional head of a branch of Public Works Department II- Chief Engineer 15C.The Chief Engineer is the administrative and professional head of the wing of the Public Works Department of which he is in charge, and is responsible to the Government for the proper and efficient working of that wing.
16. It is the duty of the Chief Engineer to recommend to Engineer-in-Chief all matters relating to transfers, postings, punitive actions, awards etc of Superintending Engineers, Executive Engineers, Assistant Engineers and junior Engineer. He has full powers of transfer of Junior Engineers, non- gazetted staff, ministerial and menial, from one circle of superintendence to another.
17. The Chief Engineer will exercise a concurrent control with the Accountant-General, over the duties of the officers of the department in maintaining accounts, and give legitimate support to the Accountant-
26General in enforcing strict attention to the rules concerning the disbursement of money, custody of stores, and submission of accounts.
18. The Chief Engineer will prepare, annually, the portion of the budget estimates relating to the works under his control, and, as soon as possible after the close of each year, prepare a report of the progress made during that period on the Public Works under his charge, giving a brief but clear account of the operation of his wing The general supervision and control of the assessment of revenue from irrigation and navigation works within the limits of his charge will also rest with the Chief Engineer, who will frame the necessary estimates and watch carefully the progress of realizations during the course of the year.
19. It will be the duty of the Chief Engineer to see that the budget allotments of his wing for the year are fully expended, in so far as is consistent with general economy and the prevention of large expenditure in that last month of the year for the sole purpose of avoiding lapses. He will be responsible for ensuring that any money which is not likely to be needed during the year is promptly surrendered, so as to allow its appropriation for other purposes by the proper authority.
20. The Chief Engineer will inspect each circle office under his charge once in a year and each divisional office once in every two years and submit a report to Engineer-in-Chief soon after the inspection has been made.
Note - Whenever, inspection, as prescribed above could not be made, a report stating reasons thereof should be submitted to Engineer-in-Chief by 7th January of the year following the year in which the inspection was due.
21. When any Military Works are placed under the administration of the Public Works Department, questions relating to military details will be referred by the Chief Engineer to the General Officer Commanding Divisions or Brigades. A Chief Engineer may correspond direct with the Heads of Departments on all matters relating to details of buildings or works appertaining of those Departments.
22. The Chief Engineer/Chief Engineer (Design) is responsible for all structural designs. He is the professional head of that wing in respect of approval of designs, drawings, and specification of all structures."
Thus, "Wing", which is a part of a branch, is under the charge of a Chief Engineer and "branch" is under the charge of Engineer - in - Chief.
Chapter V-B deals with the powers of the Engineer-in-Chief, which are outlined in Clause 291A as follows:
"B - Powers of Engineer - in - Chief 291A. The following powers have been delegated to the Engineer-in-Chief:-
Nature of power Limits of Power
1. Technical Full Power to take decision in
any technical matter
2. (i) Contracts and Tenders Tender Committee headed by
Engineer-in-Chief has full
powers for the works above
27
Rs.2.50 crores.
3. Establishment
(i) Appointment of Junior Full powers within the
Engineer conditions laid down in
Appointment Rules
(ii) Transfer and Posting of
Junior Engineers Full Powers
(iii) Transfer and Posting of
Class III and IV staffs Full Powers
4. Engagement of Consultants Full powers
5. To alter the time limit and to In contracts approved by the
remit or reduce the penalty Departmental Tender
provided in all agreements or Committee -
contract Full powers in Contracts where
extension required is up to 50%
of the time period defined in
the Contract.
Matters where Extension of
Time (EoT)
Required is more than 50% of
the time period defined in the
Contract shall be referred to a
Committee headed by
Departmental Secretary whose
other members would be
Engineer-in-Chief, Internal
Financial Advisor & the
concerned Chief Engineer."
Further, the powers of Chief Engineers have been mentioned in "Clause 292" which includes almost everything except what has been assigned to Engineer-in-Chief.
As already mentioned above the "Wing", which is just a part of a branch, is under the charge of a Chief Engineer whereas the "branch"
is under the charge of Engineer - in - Chief. Thus, the area of work for Engineer - in - Chief is much wider as compared to Chief Engineer. Upon a comparison of the delegation made to Engineer-in-Chief and Chief Engineer as per the PWD Code of 2012, this Court finds that the powers to both the authorities are not one and the same. The Engineer in Chief has full power to take decision in any technical matter and heads tender committee and has full power for works above 2.50 crores. He has also full power in connection with appointment of Junior Engineer as per appointment Rules and full power of transfer and posting of Junior Engineers, Clause III and IV staffs. He also has full power in connection with engagement of consultant and 28 substantial power in connection with altering the time limit and to remit or reduce the penalty provided in all agreements or contract. Such wide powers have not been given to the Chief Engineers. The power in connection with work below 2.5 crores is essentially with the Chief Engineer.
16. Provisions of Jharkhand Engineering Services Recruitment Rules, 2016
17. Jharkhand Engineering Services Recruitment Rules, 2016 was framed by the Government of Jharkhand under Article 309 of the Constitution of India for regulating appointment, promotion conditions of service, pay, allowances and pension. Jharkhand Engineering services have all the works department of the Government of Jharkhand which came into effect from the date of notification in the official gazette published on 03.05.2016.
18. The rules of 2016 define engineers as follows: -
2(e)"Junior/Assistant/Executive/ Superintendent/Chief Engineer and Engineer-in-Chief" means the engineer in the cadre of Road Construction Department.
The "Constitution of Service" is in Rule 3 which covers Road Construction Department, Water Resources Department, and Drinking Water and Sanitation Department. Rule 3 is quoted as under:
3. Constitution of Service: -
I. All the duty posts included in the service as specified in Schedule - I shall constitute the Jharkhand Engineering Service. II. The said service shall comprise of the members included in Schedule I belonging to the following three works Departments of the Government of Jharkhand: -
a. Road Construction Department.
b. Water Resources Department, and c. Drinking Water and Sanitation Department.
19. Rule 8 deals with "Seniority" and Rule 8 (III) mentions that the inter se seniority list of members appointed as Executive Engineer amongst Assistant Engineers (Direct Entry) and Assistant Engineer (promoted) shall be determined by the relevant Circulars to this effect issued by the State government from time to time and on such basis, promotion will be provided to next higher post as Superintending 29 Engineer, Chief Engineer & Engineer in Chief. Rule 8 is quoted as under:
8. Seniority:-
(1) Assistant Engineer shall be the entry grade in the Grade-B. The Jharkhand engineering service and the inter-se seniority of the members of the Assistant Engineer (Direct entry) shall be in accordance with the rank in the merit panel as recommenced by the commission & inter se seniority of Assistant Engineer (Promoted) in the same transaction shall be as per their seniority in the cadre of junior engineer. (II) There shall be separate seniority list for Assistant Engineers (direct entry) and Assistant Engineers (promoted) as per sub rule (I) of rule - 8. (III) The inter - se- seniority list of the members appointed as Executive Engineer amongst Assistant Engineers (Direct entry) & Assistant Engineers(Promoted) shall be determined by the relevant circulars to this effect issued by the State Govt. from time to time. On the basis of this promotion will be provided to the next higher posts as Superintending Engineer, Chief Engineer & Engineer-in-Chief."
The pays and allowances have been dealt with in Rule 19 which inter alia provides that on the date of publication of the Rules, the scale of pay admissible to members of service will be as shown in Schedule I. Rule 21 deals with "Repeal" which is quoted as under:
"21. Repeal:-
All rules and regulations, orders and instructions in force immediately before the date of commencement of these rules in respect of matters relating to the service policy inconsistent to these rules are hereby repealed."
The Schedule I of the aforesaid Rule so far it relates to Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary Group A and Chief Engineer (Group A) are quoted as under:
Schedule - I Sl. Designation of Pay Pay Grade Number of Posts* No. Posts Scale Band Pay Water Road Drinking Resources Construction Water & Department Department Sanitation Department 1 2 3 4 5 6 7 8 CIVIL ENGINEERING CADRE 1 Engineer in 37,400- PB-IV 10000 - - -
Chief - cum - 67,000 Additional Commissioner
- cum -
Special Secretary (Group A)
2. Chief Engineer 37,400- PB-IV 8,900 - - -
30 (Group A) 67,000
3. Superintending 37,400- PB - 8,700 - - -
Engineer 67,000 IV
(Group A)
4. Executive 15,600- PB - 7,600 - - -
Engineer - 39,100 III
(Non
functional
Grade II) **
(Group A)
5. Executive 15,600- PB - 6,600 - - -
Engineer 39,100 III
(Group A)
6. Assistant 9,300- PB - 5,400 - - -
Engineer 34,800 II
(Group B)
MECHANICAL ENGINEERING CADRE
1 Engineer in 37,400- PB-IV 10000 - - -
Chief - 67,000
Additional
Commissioner
- cum -
Special
Secretary
(Group A)
2. Chief Engineer 37,400- PB - 8,900 - - -
(Group A) 67,000 IV
3. Superintending 37,400- PB - 8,700 - - -
Engineer 67,000 IV
(Group A)
4 Executive 15,600- PB - 7,600 - - -
Engineer - 39,100 III
(Non
functional
Grade II)**
5. Executive 15,600- PB - 6,600 - - -
Engineer 39,100 III
(Group A)
6. Assistant 9,300- PB - 5,400 - - -
Engineer 34,800 II
(Group B)
............................................."
SCHEDULE - II
Sl. No. Name of Duty Post Method of Particulars
Recruitment
1. Engineer in Chief-cum- By Promotion Must have put in the regular service as Additional Chief Engineer in the Pay Band IV Commissioner - cum - Rs.37400 - 67000 + G.P. Rs. 10000 for Special Secretary minimum period of 2 years
2. Chief Engineer (Civil) By Promotion Must have put in the regular service as Superintending Engineer in the Pay Band IV Rs.37400-67000+G.P. Rs. 8700 for minimum period of two years
20. Under Bihar Engineering Service Rules 1939, superior posts included Chief Engineer, Deputy Chief Engineer, Superintending Engineer, Executive Engineer, Undersecretary to the provincial 31 government in the Public Works Department and such other posts as may be specially classed as superior by Governor.
21. Under the PWD Code of 2012, the name and designation of posts were Engineer-in-chief, Chief Engineer, Superintending Engineer, and Executive Engineer.
22. Under the Rules of 2016, the posts are Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary, Chief Engineer, Superintending Engineer, and Executive Engineer. There is no separate post of Engineer-in-Chief as such and at the same time, the highest promotional post in the cadre is that of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary to be promoted from amongst the Chief Engineers. However, Rule 2 (e) and Rule 8 refer to the post of Engineer - in - Chief and not to the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary, but in the Schedule, there is no separate post of 'Engineer in Chief' as such.
23. Taking a cue from Rule 2 (e) and Rule 8, it is the argument of the respondents that the post is that of Engineers - in - Chief but when the incumbent is posted in Road Construction Department, Water Resources Department, and Drinking Water and Sanitation Department, he is known as Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary otherwise, the designation is that of Engineer - in - Chief only, and therefore, the petitioner could have been posted as Engineer - in - Chief in the Vigilance department. On the other hand, the case of the petitioner is that the post of Engineer - in - Chief as such does not exist amongst the hierarchy, and therefore, the promotional post of the petitioner being Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary cannot be interchangeably used as Engineer - in - Chief, and therefore, the petitioner cannot be posted in the ex-cadre post of Engineer - in - Chief in the Vigilance department.
24. The said argument of the respective parties is required to be tested in the light of the decisions by which the petitioner was promoted to the post of Engineers - in - Chief vide DPC dated 32 17.06.2020 read with notification dated 08.07.2020 and then the post of the petitioner was rectified vide DPC dated 18.11.2020 read with notification dated 23.02.2022 as Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary by the Road Construction Department and all happened by virtue of the orders passed by this Court. The issue has a close connection with the creation of post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary in the Road Construction Department and the facts would reveal that it was made available to the State of Jharkhand on 15.11.2000 and interpretation of the Cabinet Resolution No.412 dated 05.07.2002, whereby a post of Engineer-in- Chief/Chief Engineer was created for the Technical Examiner cell in the Vigilance department has to be seen in the light of the cadre posts of engineers which existed as on 05.07.2002 as the petitioner has been posted as ex-cadre post in the Technical Examiner Cell of the Vigilance department as Engineer-in-Chief.
25. The decision of the Departmental Promotion Committee dated 18.11.2020 by which the promotional post of the petitioner was rectified as Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary in the Road Construction Department instead of earlier designated promotional post of Engineers - in - Chief gives the entire background about the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary in the Road Construction Department and also the creation of the same post in the other two departments.
26. The perusal of Resolution of Council of Ministers (Vigilance) Department of the State of Jharkhand bearing No.412 dated 05.07.2002 reveals that a number of posts were created including the post of Engineer - in - Chief/Chief Engineer (one in number) in the pay scale of 18,400-500-22,400 and further post included Superintending Engineer, Executive Engineer, Assistant Engineer, Junior Engineer and other office staffs. The term Engineer - in - Chief and Chief Engineer was interchangeably used and they referred to the same pay scale for both, Engineer - in - Chief as well as Chief 33 Engineer. Thus, on 05.07.2002, when the Technical Examiner Cell was formed the Chief Engineer/ Engineer - in - Chief against one common pay scale was the designation of the post which was created. The said notification reveal that the posts were created for Technical Examiner Cell of the Vigilance department and was to be headed by such Engineer in Chief/Chief Engineer whose integrity and competence is beyond doubt. Clause 5 mentions that for the Technical Examiner Cell, the Engineers would be taken from Public Works Department (Road Construction, Building Construction, Irrigation Department, Public Health Engineering Department) and such officers would be posted for 3 to 5 years and special pay was also to be paid. Thus, the said post were ex-cadre posts. The nature of work to be performed by the Technical Examiner Cell included scrutiny of the works being performed, payments being made, quality of the work, time schedule of the work etc. by picking up matters on random sample basis but certainly covering all the departments falling under Public Works Department including Road Construction Department. The nature of work reveals that the work of Technical Examiner Cell is verification and to keep an eye with regard to the various contracts being executed by all the Departments under Public Works Department of State Government with respect to their quality, quantity, time frame etc of the works.
27. The decision of the Departmental Promotion Committee dated 18.11.2020 by which the promotional post of the petitioner was rectified as Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary in the Road Construction Department instead of earlier designated promotional post of Engineer - in - Chief has been relied upon by both the parties. It reveals that immediately after creation of State of Jharkhand, the State of Jharkhand was provided with one post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary in the Road Construction Department. Meaning thereby, that a separate post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary already existed in the Road Construction Department and at that point 34 of time, the engineers were governed by Bihar Engineering Service Rules, 1939 which empowered the governor to create additional posts as per Rule 3 quoted above. The other departments did not have such a post. Subsequently, in the Rural Development Department such post was created on 14.08.2001 and in Building Construction Department such post was created on 17.03.2006. The rules of 1939 had a post of Chief Engineer but there was no post named Engineer in Chief and it is not clear as to how and under what circumstances, the post of Engineer in Chief finds place while creating ex-cadre posts in the Resolution No.412 dated 05.07.2002 by Cabinet (Vigilance department) creating Technical Examiner Cell. However, it is not in dispute that at the time of issuance of Resolution No.412 dated 05.07.2002 by Cabinet (Vigilance department) a post of Engineer - in
- Chief - cum - Additional Commissioner - cum - Special Secretary existed in the Road Construction Department. While rectifying the designation of the petitioner in the promotional post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary from designation of just 'Engineer in Chief ' the existence of the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary in the Water Resources Department was the prime consideration. Accordingly, the argument of the respondents that the change in designation of the promotional post of the petitioner was a mere formality is not acceptable. In the aforesaid circumstances, the reference to Rule 2(e) and Rule 8 of the Rules of 2012 which provides the designation of 'Engineer in Chief' and not of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary cannot be used to hold that the ladder of promotion in the schedule mentioning the highest post in the cadre as Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary is just a post of Engineer in Chief and when the incumbent is posted in the aforesaid three departments, he is to be just termed as Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary. Such arguments of the respondents are rejected.
3528. Thus, at the time of issuance of Resolution No.412 dated 05.07.2002 by Cabinet (Vigilance department) creating Technical Examiner Cell, a separate post specially created by the then State of Bihar and available to the State of Jharkhand on the date of its creation in the Road Construction Department i.e the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary in the Road Construction Department, was already existing but the said post by its name or otherwise was not included in Resolution No.412 dated 05.07.2002. Rather, what was included was Engineer in Chief / Chief Engineer and the terms were interchangeably used by referring to the pay scale 18,400-500-22400.
29. In aforesaid circumstances, the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary which was a post separately created, having not been included in the Resolution of the Cabinet Vigilance Department No.412 dated 05.07.2002, the petitioner cannot be posted in the Technical Examiner Cell department as the post on which the petitioner was promoted was never included. There is no material to suggest that the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary is a mere nomenclature and when posted in the Vigilance Department it would have the status of Engineer in Chief only. This court is of the considered view that once a post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary was created in road construction department and was available with the State of Jharkhand even at the time of its creation on 15.11.2000, having not been specifically included in the Resolution No.412 dated 05.07.2002 issued by Cabinet (Vigilance) Department for creation of Technical Cell, the same clearly stood excluded.
30. Thus, it is held that the part of the Resolution bearing No.41/2001, 412/Ni dated 05.07.2002 of the Cabinet (Vigilance) Department which provides for the post of Chief Engineer/Engineer- in-Chief from the various departments under Public Works Department including Road Construction Department is not relatable to the Statutory Cadre Post of Engineer-in-Chief-cum-Additional 36 Commissioner-cum-Special Secretary, Road Construction department. Consequently, the impugned decision dated 26.02.2024 justifying the posting of the petitioner on the post of Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand by referring to Resolution bearing No.41/2001, 412/Ni dated 05.07.2002 of the Cabinet (Vigilance) Department is also not sustainable to the aforesaid extent. The point of equivalence as decided in the impugned decision dated 26.02.2024 has been considered later in this judgement.
31. Thus, issue no. (a) is answered in favour of the petitioner and against the respondents.
Issue no. (b)
32. Having held as aforesaid that the petitioner could not have been posted as Engineer - in - Chief in the Vigilance department as he was holding the substantive cadre post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary in the Road Construction Department, there may not be any requirement to examine as to whether both posts are equivalent posts or not.
33. However, this Court further finds that at the time of filing of the writ petition, the representation of the petitioner with regard to his posting was pending, and a counter affidavit was filed in this case mentioning that the respondents are collecting information from other States. This Court expressed surprise at such a counter affidavit and the Chief Secretary was directed to file a counter affidavit in this regard in consultation with the Finance Department and Department of Personnel, Administrative Reforms and Rajbhasha. Consequently, a meeting was convened, and the impugned order dated 26.02.2024 was passed, whereby the two posts have been declared to be equivalent.
34. The gist of the impugned decision dated 26.02.2024, which holds that the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary is equivalent to the post of Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand, as mentioned by the respondents in their supplementary counter affidavit annexing the 37 impugned decision, and upon perusal of the impugned decision itself, it appears as follows:-
"a. That the Post of "Engineer-In-Chief-cum-Additional Commissioner-cum-Special Secretary" is sanctioned as the higher cadre post under Jharkhand Engineering Service Class - I, under Road Construction Department, Rural Development Department, Rural Development Department and Building Construction Department, Government of Jharkhand. In the light of the above, vide Departmental Notification No.-676 dated 23.02.2022 Shri Bhagat, Engineer-In-Chief, Rural Works Department has been promoted as "Engineer-In-Chief-cum- Additional Commissioner-cum-Special Secretary" w.e.f. 24.12.2019 amending the previously issued notification no.1561 dated 08.07.2020.
b. That as per the Cabinet Vigilance Department Resolution No.412 dated 05.07.2002, a post of Engineer-In-Chief/Chief Engineer has been created for the Technical Examiner Cell. Paragraph 5 of the said resolution states that:
"In this organization, there will be officers from various engineering departments like PWD (Road Construction/Building Construction), Irrigation/Public Health Engineering Departments whose competence and integrity are certified."
The post of "Engineer-In-Chief/Chief Engineer" is sanctioned for the Technical Examiner Cell in the Cabinet Secretariat and Vigilance Department (Vigilance), Jharkhand, Ranchi. Therefore, by departmental notification No.3981 dated 17.08.2023, the services of Shri Murari Bhagat, the then Engineer-In-Chief-cum-Additional Commissioner-cum-Special Secretary, has been taken back from the Rural Works Department and he has been made Engineer-In-Chief, Technical Examiner Cell, Cabinet Secretariat till further orders. c. That both the posts of Engineer-In-Chief-cum-Additional Commissioner-cum-Special Secretary" and "Engineer-In- Chief" are equivalent posts and the pay scale is also the same. That the Road Construction Department can also extend the Services of its Engineer-In-Chief to the Cabinet Secretariat and Vigilance Department (Vigilance Division). In accordance with the above, Mr. Bhagat has been posted on the post of Engineer- In-Chief (which is equivalent post as Engineer-In-Chief-cum- Additional Commissioner-cum-Special Secretary) by the department. The said post in Cabinet Secretariat and Vigilance Department (Vigilance), Jharkhand, Ranchi has duly been created and notified."
3835. In the judgement passed by the Hon'ble Supreme Court reported in reported in (2000) 1 SCC 644 (Sub-Inspector Rooplal and Another Vs. Lt. Governor through Chief Secretary, Delhi and others), it has been held that equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of two posts many factors other than "pay" will have to be taken into consideration, those are, the nature of duties, responsibilities and powers, the extent of territorial or other charge held or responsibilities discharged minimum qualification etc. A reference has been made in the judgement to an earlier judgement which has held that the true criterion for equivalence is the status and the nature and responsibility of the duties attached to the two posts. Paragraphs 17 and 18 of the judgment reported in (2000) 1 SCC 644 (supra) are quoted as under:
"17. In law, it is necessary that if the previous service of a transferred official is to be counted for seniority in the transferred post then the two posts should be equivalent. One of the objections raised by the respondents in this case as well as in the earlier case of Antony Mathew is that the post of Sub-Inspector in BSF is not equivalent to the post of Sub-Inspector (Executive) in the Delhi Police. This argument is solely based on the fact that the pay scales of the two posts are not equal. Though the original Bench of the Tribunal rejected this argument of the respondent, which was confirmed at the stage of SLP by this Court, this argument found favour with the subsequent Bench of the same Tribunal whose order is in appeal before us in these cases. Hence, we will proceed to deal with this argument now. Equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of two posts many factors other than "pay" will have to be taken into consideration, like the nature of duties, responsibilities, minimum qualification etc. It is so held by this Court as far back as in the year 1968 in the case of Union of India v. P.K. Roy [AIR 1968 SC 850 : (1968) 2 SCR 186]. In the said judgment, this Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Reorganisation Act, 1956. These four factors are: (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criteria. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different would not in any way make the post "not equivalent". In the instant case, it is not the case of the respondents that the first three criteria mentioned hereinabove are in any manner different between the two posts concerned. Therefore, it should be held that the view taken by the Tribunal in the impugned order that the two posts of Sub-Inspector in BSF and Sub-Inspector (Executive) in the Delhi Police are not equivalent merely on the ground that the 39 two posts did not carry the same pay scale, is necessarily to be rejected. We are further supported in this view of ours by another judgment of this Court in the case of Vice-Chancellor, L.N. Mithila University v. Dayanand Jha [(1986) 3 SCC 7 : 1986 SCC (L&S) 378 :
(1986) 1 ATC 42] wherein at SCC para 8 of the judgment, this Court held: (SCC pp. 10 & 11) "Learned counsel for the respondent is therefore right in contending that equivalence of the pay scale is not the only factor in judging whether the post of Principal and that of Reader are equivalent posts. We are inclined to agree with him that the real criterion to adopt is whether they could be regarded of equal status and responsibility. ... The true criterion for equivalence is the status and the nature and responsibility of the duties attached to the two posts."
18. Therefore, in our opinion, the finding of the Tribunal that the posts of Sub-Inspector in BSF and Sub-Inspector (Executive) in the Delhi Police are not equivalent, is erroneous, and the same is liable to be set aside."
36. Upon perusal of the impugned order, it is apparent that the authorities have taken into consideration the Resolution of the Cabinet Secretariat of the year 2002 and the pay scale to declare that the posts are equivalent. This Court has already held as above while deciding issue no. (a), that the Resolution of the year 2002 of the Cabinet Secretariat creating Technical Cell cannot be referred to justify the posting of the petitioner. Further, this Court is of the considered view that only referring to the pay scale, no conclusion can be drawn with regard to equivalence of post. While taking the impugned decision, various aspects of the matter, which were required to be taken into consideration for the purposes of equivalence, have not been considered at the time of posting. Apparently, no such exercise was done. This is apparent from the first counter affidavit, and subsequently, the respondents have tried to justify their action by the impugned order, which is also missing consideration of various aspects of the matter when seen in the light of the judgment of the Hon'ble Supreme Court.
37. The impugned decision dated 26.02.2024 holding that the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary, to which the petitioner was promoted, and the post of Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand are equivalent, is not sustainable in law as it does not take into 40 consideration the relevant aspects (except the pay scale) which are required to be considered for examination of the point of equivalence of posts as held by the Hon'ble Supreme Court in (2000) 1 SCC 644 (supra).
38. Further, arguments have been advanced by both the parties with regard to the nature of responsibilities of the two posts. The respondents have argued that the responsibilities of the post to which the petitioner has been transferred and posted would include all the departments under the Public Works Department, which would be wider than to post to which he has been promoted as he would be head of only one such department. However, such an argument cannot be taken into consideration as it does not find place in the impugned order dated 26.02.2024. The points raised by the parties on the issue was required to be considered by the authority determining the point of equivalence, and this Court is not inclined to appreciate such a point for the first time in writ jurisdiction.
39. This Court is of the considered view that the point of equivalence is essentially a matter within the domain of the respondents. Merely because the respondents have chosen not to file any counter affidavit on the points raised by the petitioner on the point of equivalence, the same cannot be a ground to give any conclusive declaration by this Court in this regard.
40. Suffice is to say that the impugned order has not considered the point of equivalence properly and accordingly, it cannot be sustained in law which is set-aside, leaving it open to the respondents to take fresh decision on the point if such occasion arises. Such occasion would arise if the issue no. (a) is decided in favour of the respondents upon a challenge to this judgement.
41. Thus, issue no. (b) is also answered in favour of the petitioner and against the respondents in the aforesaid manner. Issue no. (c)
42. In the judgment passed by this Court in W.P.(S) No.4267 of 2001 (Dr. Chandra Kishore Singh Vs. The State of Jharkhand), the writ petitioner was aggrieved by Notification dated 18.01.2001 issued 41 by Deputy Secretary, Public Works Department (Road), by which he was posted as in-charge Engineer - in - Chief (Road), Public Works Department instead of posting him on the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary, on which post he has been working in the State of Bihar on the date of bifurcation. It was argued by the petitioner that the Government of Bihar had taken a decision and declared the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary of Public Works Department as equivalent to the post of Commissioner and re-designated the post as such vide Government Resolution dated 14.04.1981. This Court recorded finding in paragraph 6 of the said judgment and has ultimately set aside the Notification dated 18.01.2001 on the ground that depriving the petitioner to the post of Additional Commissioner - cum - Special Secretary by the State of Jharkhand would amount to change in his service conditions which was essentially to his disadvantage and was violative of the provisions of section 73 of the Reorganization Act of 2000 and declared that the petitioner would continue to hold the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary till allocation of cadre is finalized by the Central Government. Paragraph 6 of the judgement passed in W.P.(S) No.4267 of 2001 (supra) is quoted as under:
"6. Admittedly, petitioner was posted as In-charge Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary in the existing State of Bihar and his services was transferred from the State of Bihar to the State of Jharkhand along with the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary and petitioner submitted his joining in the State of Jharkhand. The impugned notification dated 18.1.2001 posting the petitioner to the post of In-charge - Engineer - in - Chief (Road) Public works Department is not justified. In my opinion, depriving the petitioner of the post of Additional Commissioner -
cum - Special Secretary by the State of Jharkhand will amount to change in his service condition which is essentially to his disadvantage and in violation of the provisions of Section 73 of the said Act. It is well settled that the condition of service applicable to an officer immediately before the appointed day can not be varied to his disadvantage in the case of allocation of his service to another state except with the previous approval of the Central Government. In this connection, reference may be made to the decision of the Supreme Court in the case of "Md. Shukla and Ors. vs. State of Gujarat & Ors." (A.I.R. 1971 (SC) - 117)."
4243. Thus, posting of the petitioner of the said case, who was holding the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary at the time of bifurcation of the State, to the post of 'Engineer in Chief' was set-aside on the ground that his posting as 'Engineer in Chief' was to his disadvantage and was violative of the provisions of Bihar Reorganization Act, 2000.
44. Considering the aforesaid judgment, this Court finds that the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary, in Road Construction Department was certainly a distinct and higher post in the undivided State of Bihar as compared to that of 'Engineer in Chief'. Further, the proceeding of the Departmental Promotion Committee in the instant case also clearly records that the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary in Road Construction Department was provided to the State of Jharkhand right on the date of bifurcation of the State way back in the year 2000.
45. Thus, this Court is of considered view that the posting of the Petitioner as Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat, and Vigilance Department (Vigilance Wing) Jharkhand, Ranchi amounts to reduction in rank as compared to the rank, post, and position of the Petitioner in the capacity of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary, Road Construction Department to which he was promoted.
46. Issue no. (c) is decided as above.
Issue no.(d) and (e)
47. It is not in dispute that after a number of litigations, the petitioner was granted promotion to the post of 'Chief Engineer' with effect from 24.12.2018, vide notification dated 05.11.2019 read with corrigendum Notification dated 13.11.2019. For further promotion to the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary, a Departmental Promotion Committee (DPC) meeting was held on 17.06.2020. However, the petitioner was promoted only to the post of Engineer-in-Chief, although the cadre post to which he ought to have been promoted was post of Engineer -
43in - Chief - cum - Additional Commissioner - cum - Special Secretary. Consequently, the petitioner had filed a writ petition before this Court, being W.P.(S) No.2327 of 2020, seeking promotion to the sanctioned nomenclature of the post from the due date.
48. During the pendency of the writ application, the DPC again held its meeting on 18.11.2020 and passed its recommendation, holding that the petitioner was eligible to be promoted to the post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary with effect from 24.12.2019. Upon this, the writ petition was disposed of vide order dated 17.02.2021 with a direction upon the respondents to issue notification with regard to the recommendation of the Departmental Promotion Committee within six weeks. However, the order of the writ court was not complied, and therefore, the petitioner filed a contempt case before this Court, in which the concerned parties were directed to file show-cause vide order dated 03.12.2021. Immediately thereafter on 08.12.2021, the services of the petitioner was transferred (without posting) to Rural Works Department, Jharkhand, and at the same time, one Jay Prakash Singh, who was holding substantive post of Superintending Engineer, was transferred and posted as the officiating Engineer-in-Chief in place of the petitioner.
49. Upon joining the Rural Works Department on 09.12.2021, the petitioner requested for posting, and in the meantime, on 11.02.2022, further orders were passed in the contempt case referring to conduct of the opposite parties. Ultimately, notification dated 23.02.2022 was issued by the Road Construction Department, whereby the petitioner was granted promotion to the cadre post of Engineer-in-Chief - cum - Additional Commissioner - cum - Special Secretary modifying partly the earlier notification dated 08.07.2020. Yet no order of posting was issued, and ultimately, on account of submission/statement made by the Chief Secretary as recorded in order dated 11.03.2022, the contempt proceedings were dropped vide order dated 11.03.2022. The order dated 11.03.2022 passed in contempt case is quoted hereunder:
44"This petition has been taken through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.
2. Pursuant to the order dated 25.02.2022, Mr. Sukhdeo Singh, Chief Secretary, Government of Jharkhand, Mrs. Vandana Dadel, Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand and Mr. Sunil Kumar, Secretary, Road Construction Department, Government of Jharkhand appeared in person through Video Conferencing.
3. Mr. Sachin Kumar, learned A.A.G.-II draws attention of the Court to the order dated 17.02.2021 passed in W.P. (S) No.2327 of 2020, which is the subject matter of this contempt proceeding and submits that direction 2 of this Court has been complied with in its letter and spirit. He took the Court to the show-cause filed by opposite party no.3 and submits that by way of Annexure-1 of the show-cause, the notification dated 23.02.2022 has been issued in favour of the petitioner in terms of the order passed by this Court and in that view of the matter, the order has been complied with.
4. Mr. Jitendra Singh, learned Senior counsel appearing for the petitioner submits that this notification is conditional and in anticipation of approval by the Cabinet, the said notification has been issued. According to him, there is no compliance of the order of this Court in its letter and spirit.
5. Mr. Sukhdeo Singh, Chief Secretary, Government of Jharkhand appeared in person, has interacted with the Court and very fairly submitted that in terms of Rule of Executive Engineer, in emergent situation Cabinet's approval is required and due to paucity of time the Cabinet is not convened. The Chief Minister is empowered to pass such order and that are being approved by the Cabinet post facto, which is general practice. There should not be any apprehension in the mind of the petitioner that the notification is conditional one. He has also submitted that posting of the petitioner shall be taken care of.
6. In view of the statement of the Chief Secretary, this Court is of the view that whatever nature of the notification is there, that will be looked into by the Chief Secretary.
7. In view of the Contempt of Courts Act, 1971, when a party which is required to comply with the terms or directions in an order, has not done so within such time as stipulated in the order, two options are available to the party which was required to comply with such order: (a) give an explanation to the Court as to the circumstances due to which the party could not 3 comply with the order of the Court; (b) seek for further time to comply with the order of the Court. If a delay has occurred in complying with the terms of an order and the party which was to comply with the order has not resorted to either of the two aforesaid options, then the party responsible for delay in compliance, may be held to have committed contempt. In the case in hand, it is well known that in non- compliance of the order, it is between the Court and the contemnor whether the contempt is made out or not. The Court has also perused the notification, which has been issued by the order of the Governor.45
8. In view of the above facts and particularly considering the statement of the Chief Secretary of the State, this Court is of the view that condition of notification shall be complied with.
9. Accordingly, this contempt proceeding is dropped and the petition is, hereby, disposed of.
10. The appearance of Mr. Sukhdeo Singh, Chief Secretary, Government of Jharkhand, Mrs. Vandana Dadel, Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha, Government of Jharkhand and Mr. Sunil Kumar, Secretary, Road Construction Department, Government of Jharkhand are dispensed with."
50. It has also been asserted by the petitioner that there was no other officer available in engineer cadre who was promoted to the cadre post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary on regular basis since creation of State of Jharkhand, and all the three cadre posts were filled up by way of officiating arrangement. Such officiating arrangements were made to the cadre post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary even after the petitioner was promoted to the said post and the petitioner was completely kept away from such post by giving him the ex-cadre post of Engineer - in - Chief in the Technical Examiner Cell of Vigilance Department. It has been alleged that such actions contravened the Circulars of the respondents dated 25.01.2006 and 19.12.2006, which expressly deprecate the practice of allowing higher posts to be filled on an officiating basis, emphasizing that seniority-cum-merit must be followed even in matters concerning the posting on a higher post on an officiating basis.
51. This Court in W.P.(S) No. 2709 of 2011 vide order dated 12.08.2011 has deprecated non-filling of the post on regular basis and filling up the post on ad-hocism and inchargeship. Para 5 of the aforesaid order is quoted as under:
"5. I hereby also direct the Chief Secretary, State of Jharkhand to look into the matter personally, since not less than in a dozen writ petitions, directions have been given by this Court to the Chief Secretary, Government of Jharkhand not to appoint in-charge person on regular post of the State of Jharkhand. In the facts and circumstances of the present case and as per the allegations, since the bifurcation of the State in the year 2000, the post of Assistant Excise Commissioner has never been regularly filled-up and adhocism or inchargeship is going on which tantamounts to favrouritism and nepotism by the high ranking officials of 46 the State of Jharkhand. As far as possible, the said situation should have been avoided which creates dis-satisfaction in the senior most persons working in the cadre. It is expected from the Chief Secretary of the State that the aforesaid post in the Excise Department be filled-up at the earlist. Enough is enough. Time of eleven years have elapsed. The post of Assistant Commissioner of Excise ought to have been regularly filled- up in stead of filling-up of the post by junior persons giving incharge- ship."
The said case was in relation to the petitioner, who was senior-most in the cadre of Inspector in the Excise department, and he was working with honesty, sincerity and diligently to the satisfaction of all but instead of posting him to the said post, the State of Jharkhand appointed another person in the post of inspector other than the senior- most person in the cadre.
52. In the present case also, officiating arrangements have been made to fill up the highest cadre post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary although the petitioner having been promoted to the said post, is available. The only justification of posting the petitioner to ex-cadre post of Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), as submitted during the course of arguments, is that the petitioner's honesty and competence is above board. There is complete silence as to why officiating arrangements are being made in the highest posts in the cadre when the petitioner having the required criteria is available.
53. So far as allegation of malice is concerned, this Court finds that no person has been made party by name. However, the sequence of events suggests that the petitioner had to litigate through a number of writ petitions to secure his promotion to the highest post in the cadre, namely Engineer-in-Chief-cum-Additional Commissioner-cum- Special Secretary. At one point, he was wrongly designated as Engineer-in-Chief, which was subsequently rectified. However, there was a delay in issuing the notification after the rectification. Once the notification was finally issued, he was shifted to the post of Engineer in Chief in the Technical Examiner Cell of the Vigilance Department. Despite the petitioner being available for posting as Engineer-in-
47Chief-cum-Additional Commissioner-cum-Special Secretary, the post was filled by persons on an in-charge basis.
54. The allegations made in the writ petition have not been denied by filing a counter affidavit. Having said as aforesaid, this Court finds that the conduct of the respondents in posting the petitioner as Chief Engineer in the Vigilance Cell instead of promoting him to the highest post of Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary, and filling the said highest post through an in-charge mechanism by those who are much juniors to the petitioner, does not show fairness on the part of the State. The impugned action of the respondents is based on ad-hocism and hence arbitrary and unjustified.
55. Accordingly, it is held that no justification has been placed on record to shift and post the petitioner in the ex-cadre post as Engineer- in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand, and fill the three sanctioned posts by way of officiating arrangement from amongst the persons much lower in the cadre although the petitioner was available for the said post. This is over and above the findings recorded with respect to issue nos. (a) to (c).
56. Although, this Court is not inclined to give any finding with regards to allegation of malice as no one has been made party by name, the sequence of events as mentioned above is sufficient to hold that the petitioner has not been treated fairly by the respondents in the matter of his posting and has been deprived of his rank and position with respect to the promotion given to him by virtue of various orders passed by this Court in the highest post in the cadre of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary, Road Construction Department or in equivalent posts available in the other two departments. This is in spite of the fact that as per the respondents themselves, the competence and honesty of the petitioner is not at all in doubt, as only those persons can be posted to the ex- cadre post of Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing) whose competence and honesty is not in doubt.
4857. The issue no. (d) and (e) are answered as under:-
Given the fact that there are three sanctioned cadre posts of Engineer-in-Chief -cum- Additional Commissioner -cum- Special Secretary, the respondents are not justified in shifting and posting the petitioner in the ex-cadre post as Engineer-in- Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing), Jharkhand and filling the three sanctioned posts by way of adhoc officiating arrangement from amongst the persons much lower in the cadre.
No finding of malice can be given in absence of any person been made party by name. However, this Court is of the considered view that the petitioner has not been treated fairly by depriving him of the rank, status and post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary to which the petitioner was promoted after much litigation.
58. As a cumulative effect of the aforesaid findings in connection with regards to issue no (a) to (e): -
I. The impugned notification bearing F. No. RCD-1- Establishment- 04/2018-3981(S), Ranchi dated 17.08.2023 (Annexure - 17) by which the petitioner has been posted in ex- cadre post of Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing) is set aside.
II. The decision dated 26.02.2024 by which the statutory cadre post of Engineer - in - Chief - cum - Additional Commissioner - cum - Special Secretary has been held to be equivalent to the ex-cadre post of Engineer-in-Chief, Technical Examiner Cell, Cabinet Secretariat and Vigilance Department (Vigilance Wing) is set-aside.
III. Consequently, the Chief Secretary, Government of Jharkhand is directed to take a decision with regard to the petitioner in connection with his posting as Engineer - in - Chief - cum -49
Additional Commissioner - cum - Special Secretary within 15 days from the date of communication of this judgement.
59. This writ petition is accordingly allowed in the aforesaid terms.
60. Pending Interlocutory Application, if any, is closed.
(Anubha Rawat Choudhary, J.) Saurav/AFR 50