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1995 DIGILAW 639 (PAT)

Satish Chandra Lal v. State of Bihar

1995-11-24

ASOK KUMAR GANGULY

body1995
JUDGMENT A.K. GANGULY, J. 1. In this writ petition a prayer has been made for modifying the notification no. 2818 dated 14.7.1992 which purports to be the final seniority list of Assistant Engineer in Bihar Engineering Service, Class-II (hereinafter referred to as the 'said service') the prayer far the petitioner is also for placing him in the said seniority list at serial no. 931 (ka) which is below Ragho Lal and above Hamendra Nath Ghosh. The petitioner is claiming this position on the basis of his alleged entry in the said service with effect from 21.12.1974. The aforesaid prayers arise out of the following facts and circumstances of the case. 2. The petitioner claims to have joined the post of Junior Engineer in the River Valley Project known as Water Resources Department on 2.2.1959 and was made permanent Junior Engineer by notification dated 21.12.1973 with effect from 1.11.1967. Thereafter the petitioner was granted selection grade with effect from 1.1.1971 by notification dated 13.12.1973. 3. By a letter dated 23.11.1973, the Chief Engineer (Gandak Project) sent a list of names of persons in which the petitioner's name was included to the Bihar Public Service Commission for obtaining its concurrence for promotion to the post of Assistant Engineer in River Valley Yojna department. The petitioner's case is that he was at serial no. 40 in the letter dated 23.11.1973 sent by the Chief Engineer (Gandak Project). Further assertion of the petitioner is that subsequently vide letter dated 7.2.1974 the said Commission found the petitioner and others suitable for promotion to the post of Assistant Engineer on the basis of seniority and gave its concurrence to the said promotion and the petitioner's name found place at serial no. 33. Petitioner's further case is that pending acceptance of such recommendation he was asked to take over current charge of Booni Sub-division vide order no. 50 dated 17.12.1974 issued by the Superintending Engineer, Chatra Canal Circle and the same was communicated to the petitioner by the Executive Engineer of Chatra Division no. 1 and he took over current charge of the said Sub-division on 21.12.1974 and continued to hold independent charge of the said sub-division till petitioner's service was regularised. 4. Thereafter, petitioner was granted promotion to the post of Assistant Engineer on ad hoc basis by letter dated 20.8.1976 issued by the Government Irrigation department. 1 and he took over current charge of the said Sub-division on 21.12.1974 and continued to hold independent charge of the said sub-division till petitioner's service was regularised. 4. Thereafter, petitioner was granted promotion to the post of Assistant Engineer on ad hoc basis by letter dated 20.8.1976 issued by the Government Irrigation department. The petitioner has also annexed the letter of recommendation dated 7.4.1977 sent by the Superintending Engineer, Canal Circle, Kosi Bathanaha for regularising the service of the petitioner on the post of Assistant Engineer in the said service with effect from 21.12.1974 but the grievance of the petitioner is that vide notification dated 5.7.1979 issued by the Joint Secretary to the Government, Irrigation Department, Bihar, the petitioner and others were regularised on the post of Assistant Engineer with effect from 20.8.1976 only. 5. In the writ petition the petitioner has cited various names of other Junior Engineers, who were given independent charge of the sub-division in 1965 and 1966 and were regularised with effect from their respective dates of independent charge after obtaining concurrence from the said Commission. In support of that the petitioner has annexed document at annexures-5 and 6 but in the case of the petitioner the said yardstick was not followed. 6. Raising all those grievances, the petitioner made a representation demanding that he may be given due promotion with others on the post of Assistant Engineer with effect from 21.12.1974 which, according to him, is the date of entry of the petitioner in the said service and not from 20.8.1976. Petitioner's case is that several such questions were sub-judice before this Hon'ble Court and before the Hon'ble Supreme Court. 7. Ultimately, the Government by notification dated 21.3.1990 published a provisional seniority list of Assistant Engineers of the said service inviting objections. The petitioner filed objection demanding promotion in the grade of the said service with effect from 21.12.1974. 8. Petitioner asserts that the similar objections were filed by Ragho Lal, Harinandan Singh and Suraj Narain Singh and pursuant to their representations the date of entry into the service were corrected and their placement in the seniority list was, therefore, corrected. So far the petitioner is concerned, his prayer was turned down vide notification dated 14.7.1992, the Government in Water Resources Department published a final seniority list and the petitioner's prayer for such correction was denied. 9. So far the petitioner is concerned, his prayer was turned down vide notification dated 14.7.1992, the Government in Water Resources Department published a final seniority list and the petitioner's prayer for such correction was denied. 9. As nothing was done on the basis of the petitioner's previous representation dated 28.8.1992, he made further representation dated 20.12.1993, copy of which is made annexure-10 to this writ petition. As nothing happened even then, the petitioner ultimately filed this writ petition with the aforesaid prayers. 10. In the counter affidavit filed by the respondents the case of the petitioner has been denied on the ground that he assumed charge of the Assistant Engineer on 21.12.1974 on the basis of local arrangement pursuant to the order of the Superintending Engineer concerned dated 17.12.1974. The case of the respondents is that such assumption of charge by local arrangement cannot confer any right on the petitioner and the same was issued without considering the seniority of the petitioner vis-a-vis other junior Engineers of the River Valley Department. It is further stated that the said order was passed by the Superintending Engineer without any order being issued by the State Government. As such, the respondents contended that the petitioner was promoted for the first time to the post of Assistant Engineer on ad hoc basis in terms of the order contained in the letter dated 20.8.1976. So the petitioner is not entitled to count the seniority from an earlier date. 11. Further case made out by the respondents in the counter affidavit is that the recommendation of the said Commission as contained in, annexure-1/1 was never acted upon as the State Government decided to merge three of its departments namely River Valley Project, Minor Irrigation and Irrigation Department into one department namely Irrigation Department and the seniority was to be fixed in respect of the unified unit and seniority cannot be fixed on the basis of local arrangement in the office of sub-divisions. As such, the seniority of the petitioner in the seniority list of the Assistant Engineers has correctly been reckoned with effect from 20.8.1976, the date on which the petitioner was promoted to the post of Assistant Engineer on ad hoc basis. 12. As such, the seniority of the petitioner in the seniority list of the Assistant Engineers has correctly been reckoned with effect from 20.8.1976, the date on which the petitioner was promoted to the post of Assistant Engineer on ad hoc basis. 12. In the counter affidavit it has also been stated that in respect of other Junior Engineers mentioned in paragraph-8 of the petition, who were given independent charge of the sub-divisions, were asked to hold such charge after consideration of their seniority but the order which was passed in the case of the petitioner was unrelated to his seniority. As such the petitioner's case cannot be compared with those persons. It has further been made clear in the said counter affidavit that whenever assumption of current charge is made it is not related to the seniority. As such, assumption of current charge cannot decide the seniority of the persons of those who are asked to hold such current charge. 13. Rejoinder has also been filed reiterating the case made out in the writ petition. 14. In this connection, reliance has been placed by the petitioner on the judgment of a learned Single Judge. Dr. J.N. Dubey rendered in CWJC No. 2617 of 1990. In the said matter, the learned Single Judge after considering the facts of the case was pleased to observe that the persons concerned are entitled to their respective seniority from the date of their entry in the said service. In that judgment by entry into service the learned Single Judge meant the date when the service of the incumbents concerned were regularised in Bihar Engineering Service Class II. This is clear from the following observations from that judgment:– "Para 7–In my opinion, respondent no. 1 erred in treating the date of entry of the petitioners as 14.8.1975 instead of 6.3.1975 and 1.5.1973 for reckoning their seniority in the Bihar Engineering Service Class-II. It is relevant to point out here that Surya Narain Singh and Harinandan Singh, who were similarly situated with the petitioners, have been given seniority from the dates on which they were put in independent charge of Sub-Divisions and not from the date of their ad hoc promotion to the post of Assistant Engineer. It is relevant to point out here that Surya Narain Singh and Harinandan Singh, who were similarly situated with the petitioners, have been given seniority from the dates on which they were put in independent charge of Sub-Divisions and not from the date of their ad hoc promotion to the post of Assistant Engineer. If the petitioners were assigned seniority considering 6.3.1973 and 1.5.1973 respectively, as the dates of their entry in the Bihar Engineering Service Class-II, the occasion for issuing show cause notice dated 18.12.1992 to the petitioner no. 1 by respondent no. 1 would not have arisen. In this view of the matter, the notice issued by respondent no. 1 to petitioner no. 1 to show cause as to why he may not be reverted to the post of Assistant Engineer and the excess salary paid to him be not recovered is also wholly unjustified. Para 8–In the result, the writ petition succeeds and is allowed. The impugned notice dated 18.12.1992 of respondent no. 2 (Annexure-12) is quashed and respondent no. 1 is directed to modify the seniority list dated 14.7.1992 (Annexure-10) by assigning the seniority to the petitioner with effect from 6.3.1973 and 1.5.1973, their respective dates of entry in the Bihar Engineering Service Class II, instead of 14.6.1975. The petitioners will be entitled for Rs. 2,000/- as costs." But here in paragraph 7 of the writ petition the petitioner himself has stated that the services of the petitioner along with others were regularised on the post of Assistant Engineer in Bihar Engineering Service Class-II with effect from 20.8.1976 and his seniority has been counted from that date. Therefore, the ratio of the said judgment in CWJC No. 2617 delivered by Justice Dr. J.N. Dubey is of no assistance to the case of the petitioner. The other reported judgment rendered in CWJC No. 3600 of 1995 does not decide any controversy about what should be the date of entry in the service save and except recording the stand of the learned Advocate General about the preparation of the gradation list. J.N. Dubey is of no assistance to the case of the petitioner. The other reported judgment rendered in CWJC No. 3600 of 1995 does not decide any controversy about what should be the date of entry in the service save and except recording the stand of the learned Advocate General about the preparation of the gradation list. In paragraph 11 of the judgment the only operative direction is as follows:– "Accordingly, this writ application is allowed in part to the extent that the position of the petitioners in the final gradation list be examined with reference to the date of their entry in the service." The impugned gradation list has been, as claimed by the respondents, prepared pursuant to that direction. 15. In support of the contention that an overseer can hold the charge of subdivision and the Assistant Engineer can hold it as a matter of course, learned counsel for the petitioner relied on Rule 49 of the Bihar Public Works Department Code. The said rule says:– "The division is divided into subdivisions in-charge of sub-divisional officers, who may be Assistant Engineers and Overseers of the subordinate Engineering Service and who are responsible to the Executive Engineer for the management and execution of works within their sub-divisions." This rules by itself, in my opinion, does not show that the holding of current charge as aforesaid constitutes petitioner's entry in the service. As noted earlier the petitioner himself in the writ petition in paragraph-7 has stated that services of the petitioner alongwith others were regularised on the post of Assistant Engineer of the said service with effect from 20.8.1976, the date on which he was granted that promotion. Therefore, the order by which the petitioner was asked to hold current charge of zonal sub-division cannot be treated as entry in the service. Learned counsel for the petitioner relied on a decision in the case of Nirmal Kumar Chaudhary and others vs. State of Bihar and others reported in AIR 1988 page 394. Therefore, the order by which the petitioner was asked to hold current charge of zonal sub-division cannot be treated as entry in the service. Learned counsel for the petitioner relied on a decision in the case of Nirmal Kumar Chaudhary and others vs. State of Bihar and others reported in AIR 1988 page 394. In the said judgment it was held that:– "Where the cadre of engineers and other employees of the different wings in the Department of Agriculture was amalgamated, in preparing the combined gradation list for purposes of determining the seniority, the length of service should be treated to be the criteria." In the said judgment a distinction has been made between the length of service and confirmation and it was held that confirmation cannot be the basis for determination of seniority. In the instant case, the seniority of the petitioner has not been reckoned from the date of confirmation. On the other hand, the seniority of the service has been reckoned from the ad hoc appointment of the petitioner. Ad hoc appointment cannot be equated with confirmation. But even then the respondents allowed the seniority of the petitioner to be reckoned from the date of such ad hoc appointment and the date of ad hoc appointment should only be considered as the date from which the length of service should be reckoned and not from the date from which the petitioner was asked to hold current charge on the basis of local arrangement in respect of the aforesaid sub-division. Therefore, the ratio of the said judgment in the case of Nirmal Kumar Chaudhary and others (supra) has no application to the facts of the present case. 16. Learned counsel for the respondents has relied on a decision in the case of State of Haryana v. S.M. Sharma and others reported in AIR 1993 SC 2273 . In the said judgment it has been categorically held that holding of current duty charge cannot be treated as promotion. In paragraph-9 of the said judgment, their lordships of the Supreme Court was pleased to observe that the order asking to hold current duty charge is merely a posting order and in paragraph-11 of the said judgment their lordships were pleased to observe as follows:– "We are constrained to say that the High Court extended its extra-ordinary jurisdiction under Article 226 of the Constitution of India to a frivolity. No one has a right to ask for or stick to a current duty charge. The impugned order did not cause any financial loss or prejudice of any kind to Sharma. He had no cause of action whatsoever to invoke the writ jurisdiction of the High Court. It was a patent misuse of the process of the Court." The same ratio can be applied to the facts of the instant case. Reliance by the Respondents in this connection has also been made to a decision in one case of Excise Commissioner, Karnataka and another vs. Sreekant reported in AIR 1993 SC 1584. In paragraph 14 of the said judgment it is stated as follows:– "Mr. Narasimha Moorthy is justified in his submission that the respondent was not entitled to claim seniority from the date of his initial appointment on ad hoc basis but he was duly entitled to claim seniority from the date of his subsequent appointment or regularisation under the said special rules of recruitment in 1970" (Underlined emphasis added) To the same effect is the judgment of the Supreme Court in the case of Union of India and another v. Prof. S.K. Sharma reported in AIR 1992 SC 1188 . This case has been relied on by the learned counsel for the respondents. Here also in paragraph 5 and 8 the same principle for determination of seniority has been reiterated. The other decision cited by the learned counsel for the respondents in the case of Keshav Chandra Joshi and others vs. Union of India and others reported in AIR 1991 SC 284 reiterates the same principle in paragraph-23 to the following effect:– "Ad hoc or fortuitous appointments on a temporary or stop gap basis cannot be taken into account for the purpose of seniority, even if the appointee was subsequently qualified to hold the post on a regular basis." 17. This Court on a consideration of facts and circumstances of the case does not find that any error has been committed by the respondent-authorities by treating the petitioner's seniority from the date of his ad hoc promotion. In that view of the matter, this Court is unable to direct any modification in the seniority list. 18. In the result, this writ petition is dismissed. There will be no order as to costs.