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1992 Supreme(Pat) 38
PATNA HIGH COURT
S.B.Sinha and Narayan Roy JJ.
Anand Kumar Singh
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 2584 of 1990 ;
Decided On : FEBRUARY 04, 1992
A reserved post cannot be carried forward for a period of more than three recruitment years.
Headnote:
PROMOTION - RESERVED POST - CARRY FORWARD - LEGALITY - EQUAL PAY FOR EQUAL WORK - APPLICABILITY.
Fact of the Case:
Petitioner, an Assistant Engineer in the Department of River Valley, was promoted to the post of Executive Engineer in 1971. In 1972, the Bihar State Housing Board was constituted, and the petitioner's services were placed at the Board's disposal. In 1978, the petitioner was made Incharge of the Superintending Engineer against the second reserved post. Respondent No. 6, a member of the Scheduled Caste, was promoted to the post of Superintending Engineer in 1990, by reason of an impugned order. The petitioner challenged the promotion of Respondent No. 6, contending that he was entitled to be considered for promotion and that the impugned order was illegal.
Finding of the Court:
The Court held that the respondent-Board could not have promoted Respondent No. 6 to the post of Superintending Engineer by reason of the impugned order dated 22-9-1990 with effect 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. The Court further held that the respondents had committed illegality in not considering the case of the petitioner while passing the impugned order of promotion in favor of Respondent No. 6. The Court also held that 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.
Issues: (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 effect 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 favor 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?
Ratio Decidendi: 1. A reserved post cannot be carried forward for a period of more than three recruitment years. 2. The carry forward rule cannot be extended beyond a period of three recruitment years. 3. The recruitment years for the purpose of carry forward rule must be considered to be each year in which the recruitment can be made. 4. Non-consideration of the case of an eligible candidate for promotion is illegal and violative of Article 16 of the Constitution of India. 5. An employee discharging the functions of a higher post is entitled to the salary and allowances admissible to that post in terms of the doctrine of equal pay for equal work.
Final Decision: The Court quashed the impugned order dated 22-9-1990 and directed 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. The Court refrained from passing any order on the petitioner's claim for payment of salary and allowances admissible to the post of Superintending Engineer, leaving the matter to the State for consideration of the petitioner's representation.
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
