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1996 Supreme(Pat) 56
PATNA HIGH COURT
R.M.Prasad, J.
Bengali Ram
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 12080 of 1995 ;
Decided On : JANUARY 30, 1996
The roster policy for reservation of posts, including the post of Chief Engineer, was to operate till the quota of Scheduled Castes/Scheduled Tribes candidates was complete, beyond which any promotion would be treated as illegal and without jurisdiction.
Headnote:
PROMOTION - SENIORITY - ROSTER POLICY - CONSIDERATION ZONE - GENERAL CATEGORY CANDIDATES - RESERVED CATEGORY CANDIDATES - BIHAR ENGINEERING SERVICE CLASS I RULES, 1939 - GOVERNMENT INSTRUCTIONS - ROSTER TO OPERATE TILL QUOTA REACHED - RUNNING ACCOUNT - EQUALITY OF OPPORTUNITY - VACANCIES - LEGAL DUTY - MANDAMUS - KALAWADI - SATISFACTORY SERVICE RECORDS.
Fact of the Case:
Petitioners, incharge Chief Engineers in the Road Construction Department, belonging to the Scheduled Caste category, sought direction to the respondents to consider their cases for promotion to the post of Chief Engineers along with other general category candidates, as they came within the consideration zone as per the Government circular dated 27th November, 1976 read with the Government circular dated 11th July, 1981.
Finding of the Court:
The Court held that the petitioners' claim lacked merit as the names of only three times the number of posts which the Government decided to fill had to be recommended by the Departmental Promotion Committee to the Bihar Public Service Commission, subject to fulfillment of other criteria such as Kalawadi and satisfactory service records. The Court further clarified that when the State Government decided to fill in the remaining vacant post of Chief Engineer and the petitioners' cases came within the consideration zone, their cases would be considered by the Departmental Promotion Committee, and if they fulfilled the required criteria, their names would be recommended to the Bihar Public Service Commission for consideration of their cases for promotion to the post of Chief Engineer along with the general category candidates and/or the reserved posts if any falling vacant as per the law laid down by the Apex Court.
Issues: 1. Whether the petitioners, belonging to the Scheduled Caste category, were entitled to be considered for promotion to the post of Chief Engineers along with other general category candidates? 2. Whether the petitioners' names should have been recommended by the Departmental Promotion Committee to the Bihar Public Service Commission for promotion?
Ratio Decidendi: 1. The Court relied on the decision in R. K. Sabrawal vs. State of Punjab, wherein it was held that reserved category candidates could compete for non-reserved posts, and their number could not be added and taken into consideration for working out the percentage of reservation. However, the roster was to operate till the quota provided in the instructions was reached, and once the prescribed percentage of posts was filled up, the numerical test of adequacy was satisfied, and the roster did not survive. 2. The Court also referred to the decision in State of Haryana vs. Subhash Chandra, wherein it was held that the existence of vacancies gave no legal right to a candidate to be selected for appointment and that the mere fact that a candidate was named in a list did not entitle them to a mandamus that they be appointed.
Final Decision: The Court dismissed the writ application, holding that the petitioners' claim lacked merit. However, the Court directed that when the State Government decided to fill in the remaining vacant post of Chief Engineer and the petitioners' cases came within the consideration zone, their cases would be considered by the Departmental Promotion Committee, and if they fulfilled the required criteria, their names would be recommended to the Bihar Public Service Commission for consideration of their cases for promotion to the post of Chief Engineer along with the general category candidates and/or the reserved posts if any falling vacant.
R. M. Prasad, J.
1. -the petitioners in the writ application pray for issuing direction to the respondents to determine the seniority of superintending engineers including that of the petitoners in Bihar Engineering Service class I on the basis of the date of appointment/promotion to the post of superintending Engineer and not to grant regular promotion to the post of Chief engineer on the basis of seniority list of Executive Engineers in Bihar engineering Service Class I and/or on the basis of seniority dated 11.12.92 and further to consider their cases for regular promotion to the post of Chief engineer and thereby to recommend their cases to the Bihar Public Service commission for such consideration taking into account that the names of the persons allegedly junior to them, who have been promoted to the post of superintending Engineer after promotion of these petitioners, have already been recommended for consideration of their cases for promotion to the post of Chief Engineer.
2. However, in view of the law laid down by the Apex Court in the case of union of India and others etc. vs. Virpal singh Chauhan etc. [ Civil Appeal No.9272 of 95 and analogous cases decided on 10th October, 1995] regarding restoration of seniority of general candidates over the candidates belonging to the reserved category, promoted earlier out of turn, Mr. Mahto, learned senior Counsel appearing for the petitioners confined the prayer for issuing direction to the respondents to consider the cases of the petitioners also along with other general category candidates for promotion to the post of chief Engineers in the Road Construction Department, as according to him, the petitioners come within the consideration zone as per the provisions in the Govt. circular dated 27th November, 1976 contained in annexure-23 read with the Govt. circular dated 11th July, 1981 contained in annexure-Y to the application for intervenor.
3. In short, the relevant facts are that the petitioners, incharge Chief Engineers in the Road Construction department, are the members of the bihar Engineering Service Class I in p. W. D. (Road Construction), State of bihar. The petitioners belong to the scheduled caste category. However, they do not claim consideration of their cases for promotion as against the reserved category as undisputedly there is no vacancy for the reserved category.
4. According to the petitioners, p. W. D. Code provides for the Rules for recruitment and promotion and other conditions of service in the Public works Department, now known as road Construction and Water Resources Department. The conditions of service including seniority and promotion of the petitioners are governed by the bihar Engineering Service Class I rules, 1939, under which there are different posts like Executive Engineers, superintending Engineers and Chief engineers and the respondent State has fixed the strength of individual post/cadre. According to the said Rule the promotion to the post of Superin tending Engineer and/or Chief. engineer are to be made by way of selection and seniority alone confers no claim. The respondent-State by issuing the Government instructions has laid down 8 years as Kalawadhi for promotion to the post of Executive Engineer, 6 years for promotion to the post of superintending Engineer and 4 years for promotion to the post of Chief Engineer.
5. The petitioners claim to be eligible for consideration of their cases for promotion to the post of Chief engineers, to which post petitioner No.1 was made incharge by notification dated 6.2.91 (annexure 9 ).
6. However, in the meantime, the respondent-State came out with a roster policy for reservation of different posts including the post of Chief Engineer, the validity of which was challenged by general candidates in c. W. J. C. No.1151/91 and two other analogous cases (C. W. J. C. No.7009/91 and C. W. J. C. No.9874/89 ). It is alleged by the petitioners that" there were some allegations against some of the
