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PATNA HIGH COURT
S.C.Misra and B.D.Singh JJ.
M.G.Sharan
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 572 of 1967 ; 591 of 1968 ; 681 of 1968 ; 535 of 1968 ;
Civil Writ Jurisdiction Case No. 706 of 1967 ; 716 of 1967 ; 774 of 1967 ;
Decided On : DECEMBER 05, 1968
[KEYWORD] - Constitution of India, 1950 - Articles 14, 16, 311(2), 320(b) - Bihar Public Service Commission (Limitation of Function) Regulation, 1957 - Regulations 7 & 8 - Bihar Service Code, 1954 - Rules 12, 56 & 72 - Fundamental Rights - Equal protection of laws - Discrimination - Violation of - Appointment of Chief Engineer in River Valley Project Department (RVPD) - Petitioners challenging - Contending that RVPD has separate cadre and appointment of Chief Engineer from Irrigation Department is violative of Articles 14 and 16 - Held, no separate cadre exists in RVPD - Appointment of Chief Engineer from Irrigation Department is not violative of Articles 14 and 16 - Consultation with Public Service Commission under Article 320(b) is not mandatory - Failure to consult Public Service Commission is a condonable irregularity - Appointment of Chief Engineer not vitiated - Petitions dismissed.
Fact of the Case:
The petitioners, employees of the River Valley Project Department (RVPD), challenged the appointment of the Chief Engineer in RVPD, contending that RVPD has a separate cadre and the appointment of the Chief Engineer from the Irrigation Department is violative of Articles 14 and 16 of the Constitution of India.
Finding of the Court:
The Court held that there was no separate cadre in RVPD and the appointment of the Chief Engineer from the Irrigation Department was not violative of Articles 14 and 16 of the Constitution. The Court further held that consultation with the Public Service Commission under Article 320(b) is not mandatory and failure to consult the Public Service Commission is a condonable irregularity. Therefore, the appointment of the Chief Engineer was not vitiated. The Court dismissed the petitions.
Issues: Whether RVPD has a separate cadre? Whether the appointment of the Chief Engineer from the Irrigation Department is violative of Articles 14 and 16 of the Constitution of India? Whether consultation with the Public Service Commission under Article 320(b) is mandatory?
Ratio Decidendi: 1. The Court held that there was no separate cadre in RVPD. The Court relied on the fact that there was no formal constitution of a cadre in RVPD, as required under Article 309 of the Constitution of India. The Court also relied on the fact that the Bihar Public Service Commission (Limitation of Function) Regulation, 1957, Regulations 7 & 8, which deal with the cases in which consultation with the commission is mandatory, do not cover the instant case. 2. The Court held that the appointment of the Chief Engineer from the Irrigation Department was not violative of Articles 14 and 16 of the Constitution of India. The Court relied on the fact that the appointment was made after considering the records of all the officers, including the petitioners, and that the petitioners were found definitely unfit for appointment to the post of Chief Engineer. The Court also relied on the fact that the State of Bihar is in the best position to say whether RVPD is regularly constituted as a cadre and that Annexure Q itself shows that in the opinion of the Government, RVPD is not yet duly constituted. 3. The Court held that consultation with the Public Service Commission under Article 320(b) is not mandatory. The Court relied on the decision of the Supreme Court in State of U. P. v. Manbodhan Lal, AIR 1957 SC 912, where it was held that the provisions of Article 320(3)(c) of the Constitution of India are not mandatory and that non-compliance with those provisions does not afford a cause of action to the respondent in a Court of law.
Final Decision: The Court dismissed the petitions.
B.D.Singh, J.
1. All these seven writ petitions were heard together on the re-quest of the parties as they chiefly arise out of the notifications appointing officers from the Irrigation Department to River Valley Project Department (hereinafter referred to as R. V. P. D.) and placing them senior to the petitioners.
2. C. W. J. C. Nos. 572 and 681 of 1967 were filed by M. G. Sharan impleading the State of Bihar as respondent No. 1 and S. K. Banerji as respondent No. 2. C. W. J. C. 572 was admitted on 14-9-67 and in this petition the petitioner has challenged the validity of the notification dated the 26th August, 1967 (Annexure A to the main application) placing the services of respondent No. 2, who belonged to the cadre of the Irrigation Department, at the disposal of R. V. P. D., and he has asked this court to quash the said notification, and to command respondent No. 1 by a writ of mandamus to fill up the vacancy of the post of Chief Engineer in Gandak and Sone Barrage Project after considering the rightful claim of the petitioner over the said post. Subsequently it appears that the State Government, by notification dated the 27th of September, 1967 appointed respondent No. 2 as Chief Engineer of Gandak and Sone Barrage Projects. Hence the petitioner filed another petition bearing C. W. J. C. No. 681 of 1967, which was admitted on 2-11-67 wherein he has marked the said notification as Annexure C challenging the same and has asked this Court for an appropriate writ as in the case of C. W. J. C. 572.
3. This very petitioner filed a third petition bearing C. W. J. C. No. 591 of 1967, which was admitted on 21-9-67, impleading the State of Bihar as respondent No. 1 and U. K. Verma as respondent No. 2. In this petition he has challenged the notification dated the 23rd of February, 1966 (Annexure A thereof) by which the State Government in the R. V. P. D. promoted U. K. Verma, Superintending Engineer, Sone Barrage Circle, R. V. P. D., to officiate as Chief Engineer in the same department, and posted him as Chief Engineer incharge of Tenughat Dam Project. In this petition the petitioner claims to be senior to respondent No. 2 and he has asked this Court to quash the said notification contained under Annexure A and to command respondent No. 1 by a writ of mandamus to act in accordance with law and to give the petitioner his rightful claim, to be appointed in place of respondent No. 2.
4. G. P. Vimal and 25 others filed a petition bearing C. W. J. C. No. 706 of 1967 which was admitted on 7-11-67. In this petition petitioners 1 to 5, 10 to 13 and 17 to 24 are Assistant Engineers whereas petitioners 3, 6 to 8, 16, 25 and 26 are Executive Engineers, and the remaining petitioners 9, 14 and 15 are Superintending Engineers of R. V. P. D. They have impleaded the State of Bihar as respondent No. 1 and S. K, Banerii as respondent No. 2. In this petition they have challenged the placing of services of respondent No. 2, who belonged to the Irrigation Department, at the disposal of R. V. P. D. by the same notification dated 26th August, 1967 and have made it Annexure C thereto. They have also challenged the appointment of S. K. Banerji to the same department as Chief Engineer by the notification dated the 27th of September, 1967 which they have marked as Annexure C/1 thereto. They have asked this Court to quash the said two notifications. Similarly, their grievance is that the officers of the Irrigation Department, who have their own cadre should not be appointed to the R. V. P. D., which has its own separate cadre.
5. A. Hayat and 47 others have filed petition bearing C. W. J. C. No. 716 of 1967. They all belong to R. V. P. D. in one capacity or the other. They have impleaded the State of Bihar as respondent No. 1, Narayan Thakur, Executive Engineer, Canal Division, Kdsi Project as respondent No. 2, Gurudeo Saran Singh, Executive Engineer, Canal Division, Kosi Project as respondent No. 3, Kaushal Kishore Srivastava, Executive Engineer, C
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