Back
1996 Supreme(Pat) 641
PATNA HIGH COURT
Radha Mohan Prasad, J.
Rai Munendra Prasad
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 4706 of 1996 ;
Decided On : SEPTEMBER 26, 1996
The seniority of the officers in the rank of superintending Engineering the R. C. D. has to be determined on the basis of their seniority in the fidder cadre, i. e. , b. E. S. Class II and not in the rank of executive Engineer or Superintending engineer.
Headnote:
SENIORITIY - B. E. S. CLASS I - PROMOTION TO CHIEF ENGINEER - SENIORITY OF OFFICERS BELONGING TO GENERAL CATEGORY AND RESERVED CATEGORY - FIXATION OF - LAW LAID DOWN.
Fact of the Case:
The petitioners of the first writ case claimed seniority over respondents No.5 to 13 who belong to the scheduled Caste and Scheduled Tribe categories by virtue of their seniority in the basic/initial grade of appointment, i. e. , Assistant Engineer and for direction to revise/recast and update the seniority list dated 11-12-1992 of the bihar Engineering Service Class I (in short b. E. S. Class I) by placing the said respondents just below the respective general category candidates, including the petitioners to whom they were junior in the initial grade of Assistant engineer and, further, restraining the respondent State from giving effect to the seniority list dated 11-12-1992 in so far as it relates to them for promotion to the posts of Chief Engineer against general vacancies without revising/recasting and updating the same in the manner aforementioned.
Finding of the Court:
1. The seniority of the petitioners of both the writ applications and all other similarly situated persons, including the intervenors in the first writ case, has to be determined with reference to their date of respective appointments as Superintending Engineer or on the basis of their inter se seniority in the initial grade of appointment, i. e. , assistant Engineer and, consequently, to consider their cases for promotion on that basis. 2. The kalawadhi of 16 years of working on the post of Executive Engineer is to be applied only in case of non-availability of the Superintending Engineer fulfilling the required kalawadhi of eight years or the case of Superintending Engineer fulfilling the required kalawadhi of working as Executive Engineer can also be considered on the basis of his seniority in the initial grade of appointment, i. e. Assistant Engineer irrespective of the fact whether Superintending Engineer with eight years working in the said capacity is available or not.
Issues: 1. Whether the seniority of the petitioners of both the writ applications and all other similarly situated persons, including the intervenors in the first writ case, has to be determined with reference to their date of respective appointments as Superintending Engineer or on the basis of their inter se seniority in the initial grade of appointment, i. e. , assistant Engineer and, consequently, to consider their cases for promotion on that basis? 2. Whether the kalawadhi of 16 years of working on the post of Executive Engineer is to be applied only in case of non-availability of the Superintending Engineer fulfilling the required kalawadhi of eight years or the case of Superintending Engineer fulfilling the required kalawadhi of working as Executive Engineer can also be considered on the basis of his seniority in the initial grade of appointment, i. e. Assistant Engineer irrespective of the fact whether Superintending Engineer with eight years working in the said capacity is available or not?
Ratio Decidendi: 1. The seniority of the officers in the rank of superintending Engineering the R. C. D. has to be determined on the basis of their seniority in the fidder cadre, i. e. , b. E. S. Class II and not in the rank of executive Engineer or Superintending engineer. 2. The posts of Superintending Engineer and Chief Engineer are in administrative grade and under Rule 24 of the aforementioned rules, the said posts are selection post and seniority alone confers no claim for promotion to the said grades/posts. 3. The seniority in the service is to be determined by the date of the officers substantive appointment to the service irrespective of the pay drawn by him provided that a member of the service who holds a superior post substantively is always deemed senior to an officer who holds an inferior post substantively. 4. The seniority of officers appointed on the same date is to be determined according to the order of merit in which they were placed at the time of their selection for appointment. 5. The entry in a particular service can only be the basis to determine seniority of the officers in that particular service. 6. The cadres of the aforementioned different classes of the B. E. S. being separate, there cannot be any question for treating any cadre being fidder cadre for the purpose of higher class/cadre. 7. The general rule relating to seniority, contained in appointments Department Memo No.6509-A dated 20th December, 1934 adopted as a rule framed under rule 309 after framing of the Constitution of india by virtue of State Government notification No.3555-3l-27/50-A dated 15th April, 1950, contained in the book relating to the departmental proceedings and seniority by Sidh Nath Singh which is commonly known as 1934 Rules will apply and under the said 1934 Rules the promoted officers are to keep the position which they held in the service front which they were promoted. 8. The accelerated promotion in the reserved category will not confer accelerated seniority. 9. Once a person of the general category in the entry cadre of that service gets promoted even belatedly and/or later, then in the next higher cadre of service the seniority shall be determined on the basis of their relative position in the entry cadre of the service provided the persons of both the categories, namely, reserved category candidate and the general category candidate, have entered in the higher grade/cadre in the said service 10. The provisions, contained in the aforementioned paragraphs 1 and 2, are not dependent on each other. 11. On the fulfilment of kalawadhi of the Officers in either of the two different ranks, namely, in the rank of Superintending engineer and Executive Engineer will suffice the eligibility criteria for consideration of their cases as per paragraph 3 for promotion to the post of chief Engineer irrespective of the fact whether a person is available in the rank of Superintending Engineer or not. 12. The interpretation put forth by Dr. Jha will run counter to the law relating to restoration of seniority of the general category candidate on his promotion in the higher grade with those who came in the said grade earlier than their seniors on the basis of accelerated promotion as laid down by the Apex Court in the aforementioned cases. 13. If a person in the rank of Superintending engineer is not found fit and there is no other fit person available in that rank, the case of even Executive Engineer fulfilling the required kalawadhi, as per paragraph 1, can be considered as per the required number of persons to be considered against the available vacancies in terms of paragraph 3 of annexure 2.
Final Decision: The first writ application (C. W. J. C. No.4706 of 1996) is, thus, allowed and the second writ application (C. W. J. C. No.4962 of 1996) is dismissed. The respondent State and its officers are directed to recast the seniority of Officers belonging to the general category and reserved category in B. E. S. Class I accordingly and consider their cases for promotion to the posts of Chief Engineer, as per the law laid down above. However, in thei peculiar facts and circumstances, there shall be no order as to costs.
Radha Mohan Prasad, J.
1. As in both the writ applications the question involved is common, with the consent of the parties, they have been heard together and are being disposed of by this common order.
2. Initially, the petitioners of the first writ case (C. W. J. C. No.4706 of 1996) claimed seniority over respondents No.5 to 13 who belong to the scheduled Caste and Scheduled Tribe categories by virtue of their seniority in the basic/initial grade of appointment, i. e. , Assistant Engineer and for direction to revise/recast and update the seniority list dated 11-12-1992 of the bihar Engineering Service Class I (in short b. E. S. Class I) by placing the said respondents just below the respective general category candidates, including the petitioners to whom they were junior in the initial grade of Assistant engineer and, further, restraining the respondent State from giving effect to the seniority list dated 11-12-1992 in so far as it relates to them for promotion to the posts of Chief Engineer against general vacancies without revising/recasting and updating the same in the manner aforementioned. However, later learned Counsel for the petitioners realising that the principle for fixation of seniority is only required to be decided on the basis of which the government will have to fix the seniority accordingly and keeping in mind the law laid down in this regard by the Apex Court in the case of A. Janardhana V/s. Union of India, AIR 1983 s. C.769, Paragraph 36 as also the law laid down by the Apex Court on the question of fixation of seniority in various cases, sought permission to delete the names of respondents No.5 to 13 which was granted, vide order dated 7-8-1996.
3. Further, in view of the law laid down by the Apex Court in various cases with respect to fixation of seniority of Officers belonging to general category visa-vis reserved category after their accelerated promotion as per roster under the rule of reservation, learned Counsel for the parties submitted that the matter may be heard and finally disposed of at this stage itself and, accordingly, the parties were granted time to file counter affidavit, reply and rejoinder and the date was fixed for final disposal.
4. Learned Counsel for the petitioners, thus, now only confined the belief for a declaration that the petitioners, who belong to general category and are Superintending Engineers, be treated as senior to all the reserved category candidates in the rank of Superintending Engineer on the basis of their seniority in the initial grade of appointment as Assistant Engineer and, further, sought for a direction to prepare a fidder list of all the eligible candidates in the grade of Superintending Engineer on the above basis for promotion as Chief Engineer and till then, to restrain the respondent State from promoting any Scheduled Caste and Scheduled Tribe candidates to the posts of Chief Engineer against the general-vacancy on the basis of the gradation list dated 11-12-1992 of the b. E. S. Class I.
5. In the second writ case (C. W. J. C. No.4962 of 1996 the petitioners, who belong to the Scheduled Caste category and were initially appointed to the posts of Assistant Engineer in the Road construction Department (in short r. C. D. ) and promoted in B. E. S. Class I to the posts of Executive Engineer and later to the posts of Superintending Engineer, have prayed that their date of entry in the cadre of Superintending engineer be treated as the material date for promotion to the posts of Chief Engineer and to issue direction to the respondents to consider their cases for regular promotion to the posts of Chief engineer in the light of the order/direction given by this Court in C. W. J. C. No.12080 of 1995 and also to restrain the respondents from disturbing them from functioning as Incharge Chief Engineer. However, in view of the direction given in C. W. J. C. No.5408 of 1995 and the consequential action of the State pursuant thereto, the last prayer to rest
