Patna High Court
Anand Kumar Singh vs State Of Bihar on 4 February, 1992
Equivalent citations: 1992(2)BLJR852
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This application is directed against a notification dated 29-9-1990 issued by the Secretary, Bihar State Housing Board, (hereafter referred to as Board) as contained in Annexure-1 to the writ application whereby and whereunder the respondent No. 6 has been promoted to the post of Superintending Engineer (2nd post) with effect from 6-4-1989 as also for issuance of a writ of or in the nature of mandamus directing the respondent Nos. 1 to 5 to consider the case of the petitioner for his promotion to the post of Superintending Engineer on a regular basis with effect from 6-10-1978 and to pay arrears of salary and allowances admissible to the said post.
2. The fact of the matter lies in a narrow compass.
3. On 7-10-1959, the petitioner was appointed or an Assistant Engineer in the Department of Rivar Valley by the State of Bihar. He was appointed as an Assistant Engineer on the recommendations of the Bihar Public Service Commission in the Board, in which post, he joined on 10-5-1965. An ad hoc promotion was granted to the petitioner to the post of Executive Engineer on 11-12-1970 [Annexure 5 (4)]. In pursuance whereof, he joined Patna Division, in the Housing department.
4. On or about 3-9-1971, the Bihar Public Service Commission recommended that the petitioner be promoted on a regular post of Executive Engines [Annexure-2(2)] and pursuant thereto, he was so promoted with effect from 11-12-1970, by an order dated 13-11-1971 [Annexure-2(3)].
5. It is admitted that the State of Bihar thereafter constituted Bihar State Housing Board by a notification dated 1-9-1972 whereafter services of the petitioner along with other officials were placed at the disposal of the Board.
By a notification dated 20th September, 1972 [Annexure-2(4)], the conditions of services of such employees were laid down by the Government, The Board in its meeting dated 21-9-1972 created two posts of Superintending Engineer, which was approved by the State Government on 16-9-1974. One of which was reserved for the Scheduled Caste/Scheduled Tribe employees.
6. Admittedly from 1-9-1972 to 31-12-1972 officers of the Public Works Department of the State of Bihar were posted on deputation to both the posts of Superintending Engineer, as no Officers eligible to hold the same was available in the Board.
7. According to the petitioner, he completed seven years of service as Executive Engineer in December, 1977 (which is said to be the minimum period for becoming eligible for consideration for promotion) and thus became eligible for promotion to the post of Superintending Engineer.
On 14-1-1978, one Sri N. P. Sinha, who was admittedly senior to the petitioner was promoted to the post of Superintending Engineer against the first vacant post. The said Sri N. P. Sinha later on was promoted on a regular basis with effect from 25-5-1978.
The petitioner has contended that for the purpose of filling up the second post of Superintending Engineer, there was no candidate in the rank of Executive Engineer amongst the members of the Scheduled Caste and Scheduled Tribe. Said post was kept reserved and not regularly filled up although according to the petitioner the vacancy could not have been carried forward for a period of more than three years.
8. Owing to non-availability of reserved category of employee in the rank of Executive Engineer, the petitioner was made Incharge of the Superintending Engineer against the second reserved post, and by an order dated 27-9-1978 [Annexure-2(s)] he joined the said post on 6-10-1978 at Patna Circle.
9. Admittedly, the respondent No. 6 was appointed as Assistant Engineer by the Board on 5-4-1975 and was promoted to the post of Executive Engineer from amongst the reserved category of employee according to reserve system with effect from 5-4-1982.
The respondent No. 6 has been shown at serial No. 26 of the combined final gradation list of the Assistant Engineers of the Board.
10. The respondent No. 6, however, was promoted to the post of Superintending Engineer, by reason of the impugned order dated 22-9-1990, as contained in Annexure-1 to the writ application.
11. The petitioner has contended that he filed a representation before the authorities of the Board for his appointment on a regular basis on the post of Superintending Engineer with effect from 6-10-1978 and payment of salary and other allowances in relation thereto (Annexure-2) ; whereupon, the respondent Nos. 1 and 3 directed the Managing Director of Board to send his comments, by a letter dated 28-5-1990 (Annexure-3).
12. The petitioner had further contended that the impugned order dated 22-9-1990 is wholly illegal and without jurisdiction inasmuch as the said purported reservation could not have been carried forward for a period of more than three years.
13. The aforementioned basic facts are not in dispute.
14. In this case, a counter affidavit has been filed on behalf of the Respondent Nos. 2 to 4 and another on behalf of the respondent No. 6.
In the said counter affidavits, it has been contended that as the second post of Superintending Engineer created by the Board was meant for reserved category of employees, no illegality has been committed in issuing the order dated 22-9-1990 as contained in Annexure-1 to the writ application, which according to the respondents, was done in terms of the policy decision dated 9-2-1982 issued by the Department of Personnel and Administration (Government of Bihar) (Annexure-R6-A) to the counter affidavit).
15. The said respondents in their counter affidavits have further contended that the services of the petitioner were not free from blemish and several documents have been annexed thereto to show that the petitioner on several occasions had been found guilty for committing irregularities.
16. It is also stated that in 1977 a show cause notice dated 31-3-1977 was issued to the petitioner under the provisions of Clause 10(i) (Ka) of the Bihar Lokayukta Act, 1973 and allegedly pursuant to the Circular dated 27-12-1978 an employee cannot be granted any promotion when such show cause notice has been issued. It has further been contended that in the year 1981 the said proceeding was terminated wherein an order of censure was passed against the petitioner ; and in that view of the matter he was not eligible for consideration for promotion for a period of three years in terms of the Circular order of the Personnel and Administrative Reforms Department dated 17-5-1982. It has further been alleged that in the year 1985 the petitioner was placed under suspension again, and thereafter a departmental proceeding was initiated as against him, which is still pending. The petitioner allegedly moved this Court in its writ jurisdiction questioning the aforementioned order of suspension, and this Court opined that in view of the fact that the proceeding had not been concluded, the suspension order should be revoked and pursuant thereto by an order dated 21-1-1988 the said order of suspension was revoked. It is alleged that the said departmental proceeding is still pending as against the petitioner. Respondent Nos. 2, 3 and 4 have further alleged that in fact the Vigilance Department has opined that the Disciplinary proceeding as against the petitioner should continue.
17. The petitioner has filed a rejoinder to the said counter-affidavit, wherein, inter alia, it has been contended that the purported adverse remarks and never been communicated to him and thus the same could not have been taken into consideration for the purpose of debarring him from being considered for promotion. It has further been stated that in the year 1978 only the names of N. P. Sinha and the petitioner were considered for promotion to the higher post, and at that point of time the name of respondent No. 6 was not considered. It has been further contended that on 27-9-1978 the petitioner was promoted to the post of Superintending Engineer by respondent No. 2-Board and it also asked for approval of the Government therefor as also permission for regularisation of the said order of promotion. It has further been denied that (sic) relating to seniority of the petitioner vis-a-vis directly recruited Assistant Engineers of the Board is pending before the Supreme Court, and on the contrary S.L.P. No. 1170 of 1984 (Sri A. K. Sharma and Ors. v. Bihar State Housing Board and Ors.) is pending decision before the Supreme Court, wherein the seniority of respondent No. 6 is sub-judice. It has further been contended that as no disciplinary proceeding was initiated as against the petitioner, the purported entry of adverse remark in the annual confidential report of the petitioner in the year 1980-81 was wholly illegal. It has further been contended that in any event the said adverse remark having been not communicated to the petitioner, the same cannot be considered at all by the respondents.
It was further submitted that respondent No. 6 was also suspended along with the petitioner on 3-5-1989, but no departmental proceeding has been started against the respondent No. 6.
18. Mr. K. D. Chatterjee, the learned Counsel appearing on behalf of the petitioner has principally raised three questions in support of this application.
The learned Counsel firstly submitted that from a perusal of the policy decision of the State of Bihar, as contained in Annexure-R-6/A itself, it would appear that the respondents could not have refused to filling up the second post of Superintending Engineer on the ground that the same was to be filled up by promotion amongst the reserved category of employee for a period of three years.
19. According to the learned Counsel, the faction on the part of the respondent-Board in not dereserving the said post was wholly illegal.
The learned Counsel, in this connection has strongly relied upon a decision of the Supreme Court in Dr. Chakradhar Paswan v. The State of Bihar and Ors. .
20. It was next submitted that in the year 1978, when the petitioner was made in-charge of the post of the Superintending Engineer against the second reserved post, the respondent No. 6 was not even qualified to hold the said post and in that view of the matter, the question of filling up any post by the respondent No. 6 by giving him promotion over the head of the petitioner does not arise.
21. The learned Counsel further submitted that as the petitioner had been performing the duties and functions of the Superintending Engineer by remaining in-charge of the said post, he was entitled to the scale of pay admissible therefor on the basis of the doctrine of 'equal pay for equal work'.
The learned Counsel, in this connection has placed reliance in the case of Smt. P. Graver v. State of Haryana .
22. The learned Advocate General appearing" on behalf of the respondent-Board and Mr. M. M. Banerjee, learned Counsel appearing on behalf of respondent No. 6 on the other hand, submitted that from a perusal of the decision of the Supreme Court in Dr. Chakradhar Paswan's case (supra) it would appear that the Supreme Court has only held that a reserved post cannot be carried forward for a period of three recruitment years. According to the learned Counsel, as the promotion of Sri N. P. Sinha was made by the respondent-Housing Board in the year 1978, the said year should be considered to be the first recruitment year and thereafter as the matter relating to promotion of any other person to the said post was not considered prior to 1990, the said year should be considered to be the second recruitment year. In this connection, learned Counsel has further drawn our attention to the Circular of the State of Bihar dated 9-2-1982, which is contained in Annexure-R-6/A to the counter affidavit filed on behalf of respondent No. 6.
Mr. M. M, Banerjee, learned Counsel appearing on behalf of the respondent No. 6 further submitted that even assuming that the petitioner should have been considered along with respondent No. 6 in the matter of grant of promotion to the post of Superintending Engineer, in view of the fact that a departmental proceeding and an enquiry by the Vigilance Department are still pending as against the petitioner, he could not have been considered for promotion at all. The learned Counsel further submitted that from the conduct of the petitioner it would appear that from 1978 till the passing of the order of promotion of respondent No. 6 he never asserted his right to be promoted to the post of Superintending Engineer and thus he is not entitled to any relief whatsoever. The learned Counsel further submitted that in any event the fact that the petitioner was censured in an enquiry held under the provision of the Bihar Lokayukta Act, and further the fact that a departmental proceeding has been pending as against him since 1985 clearly shows that the petitioner is not a fit person to be promoted to the post of Superintending Engineer and in this view of matter, this Court should not interfere with the order of promotion passed by the respondent-Board in favour of respondent No. 6.
23. The questions, therefore, which arise for consideration in this application are:
(a) Whether the .respondent-Board could promote respondent No. 6 to the post of Superintending Engineer by reason of the impugned order dated 22-9-1990 with Affect from 6-4-1989 treating the said post to be a reserved one and thus could be filled up only from amongst the employees belonging to Scheduled Caste and Scheduled Tribe ?
(b) Whether the respondents have committed any illegality in not considering the case of the petitioner while passing the impugned order of promotion in favour of respondent No. 6 ?
(c) Whether in the facts and circumstances of this case, the petitioner was entitled to salary and allowances admissible to the post of Superintending Engineer in terms of the doctrine of 'equal pay for equal work' ?
Re : Question Nos. (a) & (b).
24. From the facts hereinbefore it is evident that the basic facts of this case are not in dispute. It is not at all in dispute that respondent No. 6 is junior to the petitioner. It has also not been disputed before us that the minimum qualification for promotion to the post of Superintending Engineer is seven years' experience in the post of Executive Engineer. It has thus also not been disputed that in view of the fact that in the year 1978 when respondent-Board took up the matter of promotion of eligible candidates to the post of Superintending Engineer, respondent No. 6 was not eligible for consideration therefor.
25. It is now well known that reservation of posts for the members of Backward class, Scheduled Caste and Scheduled Tribe is not a constitutional compulsion (See Mohan Kumar Singhani and Ors. v. Union of India and Ors. ). It is now also well settled that in terms of Article 16(4) of the Constitution, no monopoly can be created. It is also not in dispute in view of the various decisions of the Supreme Court of India, reservation of 50 per cent posts in total is fair and reasonable.
26. In Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India and Ors. , it was held:
...when posts whether at the stage of initial appointment or at the stage of promotion are reserved or other preferential treatment is accorded to members of the Scheduled Castes, Scheduled Tribes and other socially and reconomically backward classes it is not a concession or privilege extended to them ; it is in recognition of their undoubted Fundamental Right to Equality for Opportunity and in discharge of the constitutional obligation imposed upon the State to secure to all its citizens 'Justice, social, economic, and political' and Equality of status and opportunity', to assure 'the dignity of the individual among all citizens, to promote with special care the educational and economic interests of the weaker section of the people', to ensure their participation on enqual basis in the administration of the affairs of the country...
27. The Supreme Court upon 'consideration of the aforementioned decision and various other decisions in Dr. Chakradhar Paswan v. State of Bihar and Ors. held ;
Once the power to make reservation in favour of Scheduled Castes and Scheduled Tribes is exercised, it must necessarily follow that a roster point wise for the purpose of vacancies for which reservation has been made, must be brought into effect and in order to do full justice, a carry forward rule must be so applied that in any particular year, there is no more than 50% reservation. According to the 50 point roster, admittedly, the post of Deputy Director (Homeopathic) was the first vacancy in the cadre of Deputy Directors and therefore it had to be treated as general i.e. unreserved.
28. The Supreme Court upon consideration of its earlier decision in Arati Roy Choudhary v. Union of India and Ors. held ;
The model roster accompanying the letter of the Railway Board dated January 16, 1964 is designed to meet the requirements of the new situation arising out of the rules framed in deference to the judgment in Devadasan's case . Both the letter and the note appended to the roster state expressly that if "there are only two vacancies to be filled on a particular occasion, not more than one may be treated as reserved and if there be only one vacancy, it should be treated as unreserved." The words "on a particular occasion" were substituted on September 2, 1964 by the words "year of recruitment." That in the first place each year of recruitment is directed to be considered separately and by itself as laid down in Devadasan's case so that if there are only two vacancies to be filled in a given year of recruitment, it has to be treated as unreserved irrespective of whether it occurs in the model roster at a reserved point. The appointment then is not open to the charge that the reservation exceeds 50% for, if the very first vacancy in the first year of recruitment is in practice treated as a reserved vacancy, the system may be open to the objection that the reservation not only exceeds 50% but is in fact cent per cent. But if "on this account", that is to say, if on account of the requirement that the first vacancy must in practice be treated as unreserved even if it occurs in the model roster at a reserved point, "a reserved point is treated as unreserved" the reservation can be carried forward to not more than two subsequent years of recruitment. Thus, if two vacancies occur, say, within an initial span of three years, the first vacancy has to be treated as an unreserved vacancy and the second as reserved.
29. It is, therefore, clear that a postponed or deferred vacancy which is carried forward cannot be carried forward beyond three years. The carry forward vacancy lapses after a period of three years. The contention of the learned Advocate General is that in view of Dr. Chctkradhar Paswan's case (supra) the carry-forward rule cannot be extended beyond a period of three recruitment years. As noticed hereinbefore, the respondents have placed strong reliance upon the Circular letter of the Department of Personnel and Administrative Reforms of the Government of India ; which has been circulated with Appointment Department (Bihar) by memo. No 7809, dated 6-12-1981 as contained in Annexure R-6/A to the counter affidavit of respondent No. 6. From a perusal of the said circular it appears that the authorities were directed that the total reservation on a particular occasion should not exceed 50 per cent of the total vacancies in view of the decision of the Supreme Court in Akhil Bharatiya Soshit Karmachari Sangh's case (supra). In the said circular it had been stated:
...It has now been decided in modification to the instructions contained in the Office Memorandum dated 27-12-1977 that, in future, fresh reservation along with carry forward reservation should not exceed 50% of the total vacancies available on a particular occasion.
(Underlined by me) Paragraph No. 3 of the aforementioned Circular, which is relevant, reads as follows:
It may happen that due to this 50% limit, it will not be possible to accommodate all the reservations which have accumulated due to the carry forward principle. Hence the surplus above 50% shall be carried forward to the subsequent years of recruitment, subject, however, to the condition that they do not become three recruitment years old which is the maximum period for carrying forward the reservations from year to year and lapse. Hence, to save the lapsing of these reservations, it will be proper to accommodate the oldest carry forward reservations first.
30. The submission of the learned Advocate General to the effect that the recruitment year must be construed to be the year in which the actual recruitment takes place has to be rejected. If such a contention is accepted, the same would not only lead to absurdity, but would also be wholly unjust. Such a power at the hands of the executive would evidently lead to arbitrariness and thus per se would be violative of Article 14 of the Constitution of India. If the contention of the learned Advocate General is accepted, then the matter . relating to filling up reserved posts by the members of Scheduled Caste and Scheduled Tribe will be done at the whims and caprice of the executive authorities. In the instant case also, it is evident that in the year 1978 when the said post was created and considered for being filled up, only the petitioner apart from Sri N. P. Sinha was qualified therefor. Evidently in that year the petitioner could not have been promoted to the said post as one of them was reserved post.
31. Admittedly, respondent No. 6 was not even qualified to hold that post in that year. It is the case of respondent No. 6 that respondent No. 6 became qualified to be considered for promotion to the said post only on 6-4-1989 from which date he had been promoted by reason of the impugned order dated 22-9-1990. Thus, if the contention of the learned Advocate General is to be accepted, the authorities of the Housing Board could wait for a period of twelve years for filling up the said post for promotion after enabling respondent to become qualified therefor and thus refusing to fill up the said post for such a long time.
32. Thus, recruitment years for the purpose of carry forward rule must be considered to be each year in which the recruitment can be made. Unless such a interpretation is given as noticed hereinbefore, the same would result in absurdity and would not only negate the various decisions of the Supreme Court of India, but also operate harshly and unjustly against other general candidates. In this view of the matter, there cannot be any doubt that the respondent-Board could not have carried forward the reserved post for a period of more than three years during which the recruitment to the said post could have been done. In that view of the matter, in the year 1990 when the impugned order was passed by promoting respondent No. 6 the post of Superintending Engineer (Second post) the same should not have been considered to be a reserved post, as thereby it would amount to 100 per cent reservation and thus would run counter to the law laid down by the Supreme Court in various decisions, as referred to hereinbefore. The logical corollary to the findings as recorded hereinbefore, is that in the year 1990 when respondent No. 6 was promoted, it was obligatory on the part of the respondents to consider the case of the petitioner also. It is true that nobody has a fundamental right of promotion, but there cannot be any doubt that an employee has, in terms of Article 16 of the Constitution of India, a fundamental right to be considered for promotion. Non-consideration of the case of the petitioner in passing the impugned order of promotion dated 22-9-1990 must be held to be wholly illegal and thus is liable to be quashed.
33. The submission of Mr. Banerjee to the effect that even if the case of the petitioner was considered, he could not have been promoted to the post of Superintending Engineer is devoid of any merit.
Even for the sake of argument, if it be accepted that a departmental proceeding is still continuing as against the petitioner, the respondent Board was duty bound to refer the case of the petitioner to the Bihar Public Service Commission and/or the Departmental Promotion Committee. Even in such a case, if the petitioner would have been found to be more meritorious candidate than respondent No. 6, the order of promotion only could have been deferred till the conclusion of the departmental proceeding after following 'sealed cover procedure' in terras of the decision of the Supreme Court in Union of India v. K.V. Jankiraman . Further it is neither for respondent No. 6 nor for this Court to usurp the functions of the Bihar Public Service Commission and/or the Departmental Promotion Committee for the purpose of consideration as to whether having regard to the merit of the petitioner vis-a-vis respondent No. 6, the latter would have been more suitable for being promoted to the post of Superintending Engineer. It would be for the appropriate authorities to consider as to whether in fact the purported order of censure and/or adverse remark passed as against him in the year 1981 had in fact been communicated to him or not. In any event, it is well known that if an adverse remark is not communicated, the same cannot be considered in the matter of grant of promotion to such an employee.
34. In any event, on respondent No. 6's own showing the order of censure against the petitioner would have remained operative for a period of three years only. The effect of initiation of the departmental proceeding as against the petitioner in the year 1985 and the alleged pendency thereof would itself be the subject-matter of consideration of the Departmental Promotion Committee and/or other appropriate authorities.
35. For the reasons aforementioned, we have no other option but to quash the impugned order dated 22-9-1990 as contained in Annexure-I, to the writ application and direct respondent No. 2 Board to consider the cases of the petitioner and respondent No. 6 along with any other candidate if found to be eligible for filling up the post of Superintending Engineer (second post) in accordance with law.
Re-Question No. (c).
36. From a perusal of the Notification dated 27th September, 1978 it appears that the petitioner was posted on the post of Superintending Engineer incharge in view of the expiry of the period of deputation of Sri Narendra Bhushan Prasad, Superintending Engineer of Public Works Department. A copy of the said Notification was sent to the Deputy Secretary of the Urban Development Department with a request that the recommendation and approval of the Department be given for his regular appointment in the said post. Admittedly, no order was passed by the State of Bihar on the said request as yet. It also does not appear from the records that respondent No. 2 had also pursued the said matter any further.
37. It has not been disputed before us that the , petitioner has been discharging the function of the Superintending Engineer. If he had been discharging the functions of the Superintending Engineer in a regular manner normally he should have been entitled to the salary and other allowances admissible to the said post in terms of the doctrine of 'equal pay for equal work'. It appears that the petitioner has already filed a representation on 28-5-1990 before the authorities concerned for consideration of his case for regular promotion on the post of Superintending Engineer with effect from 6-10-1978 and payment of salary and other allowances of the said post.
38. In Smt. P. Graver v. State of Haryana and Anr. , it has been held as follows:
...All that was said in the counter-affidavit was that there were no Class-I posts available and therefore, she was not entitled to be paid the salary of District Education Officer. We are unable to understand the reason given in the counter affidavit. She was promoted to the post of District Education Officer, A Class-I post, on an acting basis. Our attention was not invited to any Rule which provides that promotion on an acting basis, would not entitle the officer promoted to the pay of the post. In the absence of any rule justifying such refusal to pay to an officer promoted to a higher post the salary of such higher post (the validity of such a rule would be doubtful if it existed), we must hold that Smt. Grover is entitled to be paid the salary of a District Education Officer from the date she was promoted to the post, that is, July 19, 1976, until she retired from service on August 31, 1980.
The Supreme Court in various decisions has been directed payment of equal pay in respect of the posts held by the employees concerned.
39. However, in the facts and circumstances of this case, we refrain from passing any order and leave the matter to the State for consideration of the petitioner's representation. The petitioner has been holding the said post from 1978. As noticed hereinbefore, he filed a representation only in the year 1990 (Annexure-2). Prior to that the petitioner had never prayed for payment of his salary or regularisation of his post which he has been holding for a number of years.
40. It is now well settled that this Court is not bound to exercise its jurisdiction only because it is lawful to do so. Recently in Indian Aluminium Company Ltd. v. Thane Municipal Corporation , it has been held:
In and event the petitioner-company cannot claim concession at this distance as a matter of right. In Orissa Cement Ltd. v. State of Orissa AIR 1991 SC 1696 (at p. 1717, para 71) it, was observed thus:
We are inclined to accept the view urged on behalf of the State that a finding regarding the invalidity of a levy need not automatically result in a direction for a refund of all collections thereof made earlier. The declaration regarding the invalidity of a provision and the determination of the relief that should be granted, in consequence thereof are two different things and, in the latter sphere, the Court has, and must be held to have, a certain amount of discretion. It is well settled proposition that it is open to the Court, to grant, mould or restrict the relief in a manner most appropriate to the situation before it in such a way as to advance the interests of justice.
In the instant case the octroi duty paid by the petitioner-company would naturally have been passed on to the consumers. Therefore, there is no justification to claim the same at this distance of time and the Court in its discretion can reject the same.
In our view, as the petitioner could be promoted to the post of Superintending Engineer only in terms of the statutory rules and upon consideration of his case by the Bihar Public Service Commission and/or Departmental Promotion Committee, the question of regularisation of his service in violation of the procedure laid down therefor does not arise. If the prayer of the petitioner for regularisation of his service is granted, the same, at this juncture, may be held to be violative of Article 16 of the Constitution, inasmuch as admittedly at least respondent No. 6 has become eligible to be considered for promotion to the said post along with the petitioner.
41. In the result, this application is allowed in part, but in the facts and circumstances of the case, there will be no order as to costs.
N. Roy, J.
42. I agree.