The main legal point established in the judgment is that a diploma-holder, who is a member of the Subordinate Engineering Service with the requisite qualification, is eligible for promotion to the post of Engineer-in-chief in the Bihar Engineering Service Class I.

R.M.Prasad, J.

1. In this writ petition, the petitioner is aggrieved by order dated 22.11.2004 (Annexure 5), whereby Devi Rajak (respondent No. 4), though being junior to him, has been authorised to work as Engineer-in-Chief (North), Water Resources Department in addition to his own duties of Superintending Engineer and Chief Engineer and by amendment, vide I.A. No. 4068 of 2005, he is also aggrieved by the order, contained in Memo No. 1688 dated 3.5.2005 (Annexure 12), whereby the newly added respondent No. 5 Abid Hussain Quraishi though being junior to him, has been authorized to work as Engineer-in-chief (Central) in addition to his own duties of Chief Engineer, Water Resources Department, Muzaffarpur, besides aggrieved by Notification No. 1401 dated 13.4.2005 (Annexure 19 to I.A. No. 4401 of 2005), posting some of the Superintending Engineers, including respondent No. 4, as Chief Engineer, Research and Training, Khagaul, Patna and respondent No. 5 as Chief Engineer, Muzaffarpur on additional charge.

2. In short, the relevant facts are that the petitioner, who is senior most and a Scheduled Tribe Candidate, was initially appointed as Junior Engineer (Civil) in Water Resources Department on 7.12.1972 and on promotion from time to time was lastly promoted as Superintending Engineer (Civil) on 30.12.1995. Undisputedly, the petitioner is senior to respondents No. 4 and 5 and thus he was allowed to take over additional charge of Chief Engineer, Water Resources Department, Siwan, vide Order No. 835 dated 17.2.2004 (Annexure 2) pending regular promotion. Respondent No. 4 was also allowed to hold additional charge of Chief Engineer, Valmikinagar, vide same order (Annexure 2). On 4.5.2004, D.P.C. vide Annexure 3 recommended for promotion as Chief Engineer in which the petitioner was found fit and name of respondent No. 4 did not figure as he was beyond the zone of consideration. In course of division of cadre between newly created State of Jharkhand and Bihar, the petitioner remained in the State of Bihar and he claims to be the seniormost and only. S.T. candidate. By order dated 22.11.2004 (Annexure 5) respondent No. 4, who is junior to the petitioner, was allowed to function as Engineer-in-chief and act as his Controlling officer. The State Government, vide circular, contained in letter No. 1082 dated 22.2.1988 (Annexure 7), laid down uniform criteria to be followed in making such posting on higher post and decided that even at the time of working arrangement pending regular promotion seniority-cum-suitability and reservation policy must be followed, which was also approved by the Division Bench of this Court in its order dated 20.10.1997 passed in M.J.C. No. 523 of 1996 and M.J.C. No. 1235 of 1995 (Annexure 8).

3. The petitioner challenged the validity of posting of respondent No. 4, as Engineer-in-chief, vide Annexure 5, as he was posted over him. However, during the pendency of the writ application, another junior person, namely, respondent No. 5 was given additional charge of the higher post of Engineer-in-Chief (Central) and the petitioner on transfer was posted under him, the validity of which has been challenged in I.A. No. 4068 of 2005, which was allowed, vide order dated 5.9,2005. By I.A. No. 4401 of 2005, the petitioner has sought for to bring on record the notification, contained in Annexure 19, and prayed for its interim stay, which was also allowed vide order dated 5.9.2005.

4. Mr. Rajendra Prasad Singh, learned Senior Counsel appearing for respondent No. 4 raised preliminary objection regarding the maintainability of the writ petition at the instance of this petitioner as, according to him, he does not possess the requisite qualification for the post of Engineer-in-Chief. According to him, only degree-holders are eligible for the. said post and the petitioner, who is just a diploma-holder, is not even eligible for consideration of his case for posting on the post of Engineer-in-chief. In support of this, he