Rai Munendra Prasad v. State Of Bihar — 1996 DIGILAW 643 (PAT)

Judgment 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. 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 restrain the respondents from disturbing the petitioners from functioning as Incharge chief Engineer was not pressed. 6. In view of the nature of relief as confined and the questions involved in these cases, I do not consider the necessity of giving the facts, in detail. 7. It is undisputed that the petitioners of both the writ applications are in the rank of Superintending Engineers. 6. In view of the nature of relief as confined and the questions involved in these cases, I do not consider the necessity of giving the facts, in detail. 7. It is undisputed that the petitioners of both the writ applications are in the rank of Superintending Engineers. Petitioner No.1, Sri Rai munendra Prasad of first writ case completed eight years as Superintending engineer on 25-3-19% and petitioners no.2 and 3, namely, Tirth Nath Rai choudhary and Sri Vinay Kumar Verma respectively, have not completed eight years as Superintending Engineers. So far as the petitioners of second writ case (C. W. J. C. No.4962 of 19%) are concerned, both of them have completed eight years as Superintending Engineer. 8. The seniority list of B. E. S. Class i was published on 11-12-1992 which has been annexed as Annexure 1 to the writ petition. All of them came in b. E. S. Class I by promotion from their fidder cadre, namely, B. E. S. Class II. It is also not disputed that none has been appointed by direct recruitment in b. E. S. Class I in the R. C. D. and all were presently working as Superintending engineers in R. C. D. 9. The rules framed for regulating the recruitment of Officer in B. E. S. Class I and II are contained in Appendix i of the Bihar Public Works Department code (Vol. II) (in short the Code)which has been framed as per c of chapter I of the P. W. D. Code Vol. I relating to recruitment of Officers of p. W. D. , rule 5 of which states that the rules framed by the Government for regulating recruitment of officers to the b. E. S. Class I and II and also the conditions of service are contained in Appendix I. Under Rule 6, the posts of Chief engineer, Superintending Engineer and executive Engineer have been placed in class I and the posts of Assistant Engineer has been placed in Class II. In the said Appendix I, Class I and Class II have been put in separate category. In the Rules relating to the B. E. S. Class I part II of the Code contains the strength of the cadre, i. e. sanctioned strength of the service consisted of the posts of chief Engineer, Deputy Chief Engineer, superintending Engineer and Executive engineer, including the Undersecretary. In the Rules relating to the B. E. S. Class I part II of the Code contains the strength of the cadre, i. e. sanctioned strength of the service consisted of the posts of chief Engineer, Deputy Chief Engineer, superintending Engineer and Executive engineer, including the Undersecretary. Part III contains the sources of recruitment to Class I. Rule 4 of Part iii provides that the recruitment to the service shall be made (i) by direct recruitment, and (ii) by promotion from the B. E. S. Class II with further condition that not less than one-third of the total number of superior posts shall be filled by promotion, provided that when no officer in the service who is fit to hold charge of a division is available, the proportion of superior posts filled by promotion may temporarily exceed one-third of the total number of superior posts. Under its second proviso the operation of the said rule can be held in abeyance, if necessary, by order of the governor for such time as he thinks fit, with a view to make outside recruitment of men of properly graded, ages and experience to make up the strength of the service in the initial stage. Under Rule 5 the Governor has been vested with the power to decide the number of vacancies to be filled by direct recruitment and by promotion whenever vacancies occur. Part IV deals with the qualifications for filling up the post of B. E. S. Class I, Part V with the procedure for direct recruitment, Part VI with the training and probation and Part VII with the pay. 10. Under Part IV as per the minimum technical qualification prescribed, no person shall be appointed to the service unless he holds a degree or diploma from an Indian Engineering College or is an Associate Member of the Institution of Engineers (India) or holds a degree from one of the Universities in the united Kingdom enumerated in the an-nexure to these rules, or has passed the examinations mentioned therein. Rule 23 of Part VII deals with promotion to executive Engineers grade and Rule 24 with the promotion to Administrative grade, i. e. Superintending Engineer and chief Engineer which are to be made by selection and seniority alone is not to confer any claim. Rule 23 of Part VII deals with promotion to executive Engineers grade and Rule 24 with the promotion to Administrative grade, i. e. Superintending Engineer and chief Engineer which are to be made by selection and seniority alone is not to confer any claim. Rule 27 of the said part deals with the seniority in the service which is to be determined by the date of the order of substantive appointment irrespective of pay drawn by him provided that a member of the service who holds a superior post substantively shall always be deemed senior to an officer who holds an inferior post substantively. The seniority of officers appointed on the same date shall be determined according to the order of merit in which they were placed at the time of their selection for appointment. Rules to regulate the method of recruitment to the B. E. S. Class II is provided in the same Appendix I under the heading "class II". 11. As I have already noticed above that there being no direct recruit in b. E. S. Class I of the R. C. D. since 1967, the post in B. E. S. Class I is presently held only by the prcmotees from B. E. S. Class II. This fact has been stated in paragraph 4 of the first writ petition which though has been answered in paragraph 6 of the counter-affidavit filed on behalf of the Commissioner-cum-Secretary of the R. C. D. (respondent No.2) in the first writ petition, but the same has not been denied. 12. The State Government, vide letter No.3993 dated 6th April, 1972, had fixed kalawadhi of five years and three years for promotion to the posts of Additional Chief Engineer and Chief engineer, respectively. In suppression of the said decision, the State Government in the Department of Personnel and administrative Reforms, vide its instruction dated 11th July, 1981, contained in Annexure 2, fixed kalawadhi of eight years as Superintending Engineer or 16 years as Executive Engineer for promotion to the post of Chief Engineer. In paragraph 2 of the said instruction, it is stated that the case of executive Engineer for promotion to chief Engineer shall be considered in case no officer in the rank of Superintending Engineer for promotion to the post of Chief Engineer is found fit. In paragraph 2 of the said instruction, it is stated that the case of executive Engineer for promotion to chief Engineer shall be considered in case no officer in the rank of Superintending Engineer for promotion to the post of Chief Engineer is found fit. In paragraph 3 it is stated that for the said promotion names of five times of the available vacancies, as per the seniority, shall be considered. 13. In the first writ case, counter-affidavit on behalf of respondent No.2 has been filed and a caveat petition has also been filed on behalf of S/shri baidyanath Ram, Kedar Paswan and basant Ram for allowing them to be added as respondents No.5, 6 and 7 respectively and be heard in opposition to the writ application. An intervention petition has also been filed in the said case on behalf of the said persons. 14. In the intervention application it is admitted that the intervenors services are governed by the Code. It is, however, stated that in the Engineering stream there are two distinct services of gazetted rank, namely, B. E. S. Class II and B. E. S. Class I and they are different and quite distinct from each other and form two distinct cadres. According to the intervenors respondents, in B. E. S. Class I there are four distinct subcadres, namely, that of Executive Engineer, Superintending Engineer, Chief engineer and Engineer-in-Chief and their salary, range, status and classification are distinct from each other. It is claimed that the aforesaid services and classification are statutory in nature inasmuch as they have been constituted under Rule 39 of the Code, 1939, which being prior to 26th January, 1950 will be deemed to be rules framed under Article 309 of the Constitution. The intervenors respondents claimed to have been appointed as regular Superintending Engineers on 3-11-1988 and they assumed charge of the said office on 13-7-1989, 10-3-1989 and 2-9-1989 respectively and have been working since then without any interruption. According to the intervenors respondents, the zone of consideration for promotion to the post of Chief Engineer at the first instance has to be from amongst the superintending Engineer according to the seniority of the candidates fulfilling the eligibility criteria in all respects, like service record, completion of kalawadhi and in case of a senior person not fulfilling the eligibility criteria, the consideration zone goes to the next person. According to them, for such promotion in the rank of Chief Engineer, cases of other persons who are not Superintending Engineers cannot be considered so long all the cases of superintending Engineers have not been considered for the said promotion. It is, however, admitted that in the light of the recent judgments of the Apex court in the cases of R. K. . Sabharwal V/s. State of Punjab, ( AIR 1995 SC 1371 ), union of India V/s. Virpal Singh Chauhan (AIR 19% SC 448), and Ajit Singh januja V/s. State of Punjab, AIR 19% SC 1189, the law relating to the field of promotion from amongst reserved category has been clearly explained and laid down that the accelerated promotion in the reserved category does not confer accelerated seniority. The law laid down is that once the person of the general category in the entry cadre of that service gets promoted even belatedly and later in the next higher cadre of the service, the seniority shall be determined on the basis of their relative position in the entry cadre of the service provided persons of both the categories, namely, reserved category candidate and the general category candidate entered the next higher cadre in the said service. In other words, according to them, a general category candidate who gets promotion as Superintending Engineer on 1-1-19% and reserved category candidate on 1-1-1990 from the post of Executive Engineer, the general category candidate will become senior to reserved category candidate from 1-1-1996, i. e. , when he entered in the cadre of Superintending Engineer but so long the general category candidate remained as an Executive Engineer, the question of his seniority over the reserved category candidate will not arise as seniority is considered only between the persons of the same cadre. 15. However, I would like to notice here that no Government decision/notification creating four distinct sub-cadres, as claimed by the inter-venors respondents, has been produced. Further, according to the provisions of the Code, 1939, there is no post sanctioned like Engineer-in-Chief in B. E. S. Class I nor any notification of the government has been produced in which the said post in the cadre of b. E. S. Class I have been included. 16. Further, according to the provisions of the Code, 1939, there is no post sanctioned like Engineer-in-Chief in B. E. S. Class I nor any notification of the government has been produced in which the said post in the cadre of b. E. S. Class I have been included. 16. After the close of hearing, a supplementary affidavit/petition has also been filed on behalf of the inter-venor respondent No.6 in which it is stated that in the earlier stage as well as in the present stage, the State Government had appointed and/or are appointing the eligible candidates against the posts of Executive Engineer by way of direct appointment in B. E. S. Class I. In support of this, two notifications have been annexed as Annexure C/6 Series. It is also stated that recently the State government has come out with an Advertisement No.120/96 in the newspaper "the Hindustan Times" dated 28-8-1996 for appointment against Technical Inspectors in Class I service which is equivalent to the post of Executive Engineer in B. E. S. Class I. A photo copy of the said advertisement has been annexed as Annexure D/6. 17. None of the aforementioned documents filed along with the supplementary affidavit/petition has got any relevance to the facts of the present cases as the notifications, contained in annexure C/6 Series relate to the electricity Department and the advertisement (Annexure D/6) also does not relate to the R. C. D. 18. It was contended by Mr. Kanth, learned Senior Counsel appearing for the petitioners in the first writ case that presently all the Superintending Engineers in the R. C. D. , including the petitioners and the intervenors, being promotees from B. E. S. Class I which is their fidder cadre, their seniority will have to be determined on the basis of their seniority in the fidder cadre and not in the rank of Executive Engineer or superintending Engineer after their coming in the same rank/grade of Superintending Engineer, in view of the law laid down by the Apex Court in the cases of (i) R. K. Sabharwal, (ii) Virpal singh Chauhan and (iii) Ajit Singh januja (supra ). In other words, according to the learned Counsel, the petitioners in the first case who were senior to many reserved category candidates in the fidder cadre, i. e. , in the rank of Assistant Engineer would continue to rank senior to them after their promotion in the Superintending engineers grade irrespective of the reserved category candidates joining the said grade before them by virtue of their accelerated promotion as per roster under the rule of reservation. It was further submitted by Mr. Kanth that earlier under the governmental executive instruction, one who did not fulfil the required kalawadhi of immediate subordinate grade was not considered eligible for promotion to the higher grade but there being change brought in by the Government for fixing kalawadhi for the purpose of promotion to the rank of Chief Engineer under 1981 Government Circular, contained in Annexure 2, the cases of all in the rank of Superintending Engineer ahave to be considered if one has worked for 16 years as Executive Engineer or 8 years as Superintending Engineer on the basis of the restored seniority on their promotion in the rank of superintending Engineer and not that the cases of those completing 16 years as Executive engineer and not 8 years as Superintending Engineer can only be considered in case none is available in the rank of Superintending Engineer with eight years service in that capacity. According to Mr. Kanth, this is also evident from paragraph 2 of the government instruction at Annexure 2 which provides that even the Executive Engineer can be promoted as Chief engineer if no Superintending Engineer is found fit for such promotion. 19. On the other hand, Dr. Jha, learned Senior Counsel appearing for the intervenors respondents in the first case and for the petitioners in the second case submitted that the cases of such Executive Engineers and/or superintending Engineers can only be considered in case none is available in the rank of Superintending Engineer with the required kalawadhi of eight years in the rank of Superintending Engineer. It was also submitted by him that for promotion to the rank of Chief Engineer, the kalawadhi required as Superintending Engineer has to be actual and not a notional one because to gain experience one has to work and the person promoted to a higher grade cannot gain experience from the date of notional promotion. It was also submitted by him that for promotion to the rank of Chief Engineer, the kalawadhi required as Superintending Engineer has to be actual and not a notional one because to gain experience one has to work and the person promoted to a higher grade cannot gain experience from the date of notional promotion. It has to be from the date of actual promotion as has also been held by the Supreme Court in the case of Union of India V/s. M. Bhaskar, (1996) 4 scc 416 . It was further submitted by him that there is no substance in the submission of Mr. Kanth that 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. According to Dr. Jha, the b. E. S. has been put into three different classes,namely, Class I, Class II and the bihar Subordinate Engineering Service. Cadre of Class I consists of the posts of chief Engineer, Deputy Chief Engineer, superintending Engineer and Executive engineer, including Under-Secreury and the cadre of Class II consists of the posts of Assistant Engineer. A cadre of the Bihar Subordinate Engineering service initially consisted of the posts of overseer and Estimators, but later by a governmental notification the posts of overseer have been re-designated as junior Engineers. Thus, according to him, the fidder cadres for all the aforementioned three different classes/cadres are independent. According to him, 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. It was also submitted by Dr. Jha that under Rule 27 of Appendix i of the Code and the rules relating to the B. E. S. Class I, contained in appendix I of Vol. II of the Code, 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. II of the Code, 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. 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. According to him, in view of the provisions contained in the aforesaid rule, the entry in a particular service can only be the basis to determine seniority of the officers in that particular service. 20. Mr. Mandal, learned Standing counsel No. X appearing for the respondents, State and its Officers, in both the cases contended that 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. Further, in regard to kalawadhi he also adopted the submission of Dr. Jha. 21. The moot questions to be decided in the present writ applications are as to 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 and, further, as to whether 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. 22. 22. Rules to regulate the method of recruitment to the B. E. S. , Class II, for public Works Department (Buildings and Roads) and irrigation Department are contained in Parts I, II and III at pages 10 to 14 of Volume II of the Code. Rule 1 of Part I provides two modes for recruitment into the said service (i) by direct recruitment in accordance with the rules in Part II and (ii) by promotion or transfer of officers already in government service, permanent or temporary, in accordance with the rules in part III. Under sub-rule 2, the Governor has been vested with the power to decide in each year the number of vacancies in the service to be filled in that year by direct recruitment and by promotion respectively. Part II deals with the direct appointments in B. E. S. Class II and Part III deals with the promotion of Officers already in government service, with which we are not concerned in these writ applications. In rules relating to B. E. S. Class I part III at page 2 of Vol. II of the Code provides the sources of recruitment namely, (i) by direct recruitment and (ii)by promotion from B. E. S. Class II. Under Rule 5 of the said part, the governor has been vested with the power to decide the number of vacancies to be filled by direct recruitment and by promotion whenever vacancy occurred. Rules 9 to 16 in Part V contains the procedure for direct recruitment and Rules 17 and 18 are the provisions relating to promotion of Officers already in Government service. Part VI deals with the training, probation and confirmation in the case of direct recruits and Part VII is in regard to the time-scale of pay of the members of service. Rule 23 deals with the promotion to the Executive Engineers grade and rule 24 deals with the promotion to the administrative grade, namely, to the posts of Superintending Engineer and chief Engineer which are to be made by selection and seniority alone is to confer no claim. Rule 27 is in regard to the seniority in the service about which I have already mentioned above in the submission of Dr. Jha. 23. Rule 27 is in regard to the seniority in the service about which I have already mentioned above in the submission of Dr. Jha. 23. From the said rules it is evident that the sources of recruitment to B. E. S. Class 1 are by direct recruitment as well as by promotion from B. E. S. Class II. Admittedly, presently all the petitioners as well as the respondents in the rank of superintending Engineer in the R. C. D. are promotees from B. E. S. Class II, i. e. Assistant Engineers grade. From reading of Rule 27 dealing with the seniority, it is evident that the date of the officers substantive appointment to the service is the determining factor and those who hold a superior post substantively are deemed senior to an officer who holds inferior post substantively. In the case of the appointees of the same date, the seniority is to be determined according to the order of merit in which they are placed at the time of their selection for appointment. It is, thus, evident that the said rule only deals with the seniority of the direct recruits in b. E. S. Class I and the officers in different grades of the said service and not with respect to the promotees from b. E. S. Class II to the said service. Thus, in the absence of the rule relating to seniority of such promotees, 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. 24. Thus, in my opinion, it has rightly been contended by Mr. 24. Thus, in my opinion, it has rightly been contended by Mr. Kanth, learned Senior Counsel appearing for the petitioners in the first case that all the Superintending Engineers presently working in the R. C. D. being promotees from B. E. S. Class II, their fidder cadre is B. E. S. Class II and their seniority in b. E. S. Class I have to be determined in accordance with the provisions of the aforementioned 1934 Rules. It may be true that after their entry in B. E. S. Class i, their seniority under Rule 27 of the code in the higher grade/posts have to be determined with reference to holding such posts substantively but, in view of the recent judgments of the Apex Court laying down the law relating to the field of reservation/promotion etc. in the aforementioned cases, the accelerated promotion in the reserved category will not confer accelerated seniority. According to the decision of the Apex court, 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 In other words, if even a general category candidate, say in the rank of Executive Engineer gets promotion as superintending Engineer on 1-1-19% and a reserved category candidate was promoted as Superintending Engineer on 1-1-1990, the general category candidate will become senior to the reserved category candidate in the rank of superintending Engineer after his entry in the said grade/cadre. 25. In the instant case, undisputedly, the petitioners of the first writ case, who belong to the general category, ranked senior to the reserved category candidate, including the intervenors in the first writ case and the petitioners in the second writ case at the time of their entry as Executive Engineer in B. E. S. Class I. However, on account of accelerated promotion by invoking the roster, as per the rules of reservation, the reserved category candidates be came senior to them on their promotion to the rank of Superintending Engineer. Later, after the promotion of the petitioners of the first writ case in the rank of Superintending Engineer, their inter se seniority stood restored in the rank of Superintending Engineer by virtue of the aforementioned decisions of the Apex Court. 26. Thus, the seniority list of B. E. S. Class I, contained in Annexure 1, needs to be recasted accordingly by placing the petitioners of the first writ case above those reserved category candidates who were junior to them or any other similarly situated person in the fidder cadre. 27. In regard to the other question relating to kalawadhi, I do not find any substance in the submission of Dr. Jha. It is not disputed that earlier the provisions relating to kalawadhi used to be that one must fulfil the required kalawadhi in the immediate subordinate grade from which the case for promotion was to be considered, but later the State Government, keeping in mind the rule relating to reservation in promotion of the Scheduled Caste and scheduled Tribe candidates in Government service, reconsidered for fixation of kalawadhi for promotion and refixed it by 1981 Circular (Annexure 2)which is as follows : 28. For the sake of convenience, english translated version of the same is reproduced hereunder: "for Promotion to the Post of Chief engineer - 1. Working of 8 years as superintending Engineer or 16 years as Executive Engineer.2. The officers in the rank of Executive Engineer can be considered for promotion to the post of Chief Engineer only if no officer on the post of Superintending Engineer for promotion to the post of Chief Engineer is found fit.3. The names of the five times of the available vacancies, as per seniority, shall be considered. " accordingly, necessary changes were directed to be made in the service or cadre rules. " 29. From the aforementioned provisions, it is evident that even the executive Engineer with 16 years working on the said post is eligible for consideration of his case for promotion to the post of Chief Engineer but his case is to be considered only if no Superintending Engineer is found fit for promotion to the post of Chief Engineer. The said rule does not provide that unless a superintending Engineer with the required kalawadhi is not available, the cases of Executive Engineer cannot be considered at all for promotion to the post of Chief Engineer. The said rule does not provide that unless a superintending Engineer with the required kalawadhi is not available, the cases of Executive Engineer cannot be considered at all for promotion to the post of Chief Engineer. Thus, the provisions, contained in the aforementioned paragraphs 1 and 2, are not dependent on each other. 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. 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. In fact, under the aforementioned rule, the cases of the officers in the rank of Superintending Engineer have to be considered for promotion to the post of Chief Engineer first but in case none in the rank of Superintending Engineer is found fit for promotion, then the cases of Executive Engineers with 16 years kalawadhi in the said rank are to be considered in the light of the provision contained in paragraph 3, i. e. , names of five times of the available vacancies have to be considered, as per the seniority. This, in my opinion, would protect the interest of senior persons, like the one who is already in the rank of Superintending engineer but if not found fit for promotion, the case of the next person in the seniority, who fulfilled the required kalawadhi, as per paragraph 1, will be considered irrespective of the fact whether he is in the rank of Superintending Engineer or Executive engineer. This interpretation also gets support from the rule relating to promotion to administrative grade, i. e. on the posts of Superintending Engineer and Chief Engineer, contained in rule 24 under which the promotions to the said posts have to be made by selection and seniority alone confers no claim. 30. This interpretation also gets support from the rule relating to promotion to administrative grade, i. e. on the posts of Superintending Engineer and Chief Engineer, contained in rule 24 under which the promotions to the said posts have to be made by selection and seniority alone confers no claim. 30. Thus, it is obvious that 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. In other words, if the fit officers in the rank of Superintending engineer is not sufficiently available, then the cases of Executive Engineers with the required kalawadhi, as per paragraph 1 read with paragraph 3 of annexure 2, can also be considered along with the available fit Superintending Engineer and as per the rule of seniority contained in rule 27, the Superintending Engineer, who is senior to the Executive Engineer, will be given preference if he is found fit for promotion to the post of Chief Engineer, otherwise he will be superseded and the executive Engineer with the required kalawadhi of 16 years if found fit shall be promoted to the post of Chief Engineer. This interpretation of the provisions, contained in Annexure 2, also gets support from the decision of the Apex Court in the case of Union of india V/s. Virpal Singh Chauhan (Supra)in which it has been held that the State can provide that the candidate promoted earlier by virtue of rule of reservation on roster shall not be entitled for seniority over his senior in feeder category and that when candidate senior to him in feeder category is promoted, he will regain his seniority over reserved candidate notwithstanding that he was promoted subsequently to the reserved candidate. The Supreme court held that there is no unconstitutionally involved in such provision and that it is permissible for the State to so provide. 31. In the case of Ajit Singh Januja (supra) the Apex Court held that Article 16 (4) gives accelerated promotion but not accelerated consequential seniority. The Supreme court held that there is no unconstitutionally involved in such provision and that it is permissible for the State to so provide. 31. In the case of Ajit Singh Januja (supra) the Apex Court held that Article 16 (4) gives accelerated promotion but not accelerated consequential seniority. The seniority between reserved category candidate and general candidate in the promoted category are governed by the panel position, i. e. , with reference to their inter se seniority in the lower grade. It was further held in the said case that the reservation policy cannot be implemented in a manner to block merit channel and to make it dry. Care has to be taken that efficiency of the administration of the country is not harmed and there is no reverse discrimination. In paragraph 7 of the said judgment, the Supreme Court repelled the contention of the respondent State that the appointees/promotees of the reserved category can be considered against posts meant for general category candidates merely because they have become senior on the basis of accelerated promotions and held that exercise shall amount to circumventing the judgment of the Constitution Bench of this Court in Sabharwals case, because for all practical purposes, the promotions of such candidates are being continued like a running account although the percentage of reservation provided for them has been reached and achieved. According to the Supreme Court, once such reserved percentage has been achieved and even the operation of the roster has stopped, then how it will be permissible to consider such candidates for being promoted against, the general category posts on the basis of their accelerated promotion, which has been achieved by reservation and roster. In that very case it was also held that for being considered for appointment or promotion against a general category post merit is the primary consideration because the applicant is to enter into the service or grade of service through merit channel. 32. I do not find any substance in the submission of Dr. Jha that the case of a person cannot be considered in preference to his juniors in the category of Scheduled Caste/scheduled Tribe despite of revival of his seniority in the higher grade/rank by virtue of the law laid down by the Apex Court in the aforementioned cases unless he possesses the required kalawadhi in the higher grade. Jha that the case of a person cannot be considered in preference to his juniors in the category of Scheduled Caste/scheduled Tribe despite of revival of his seniority in the higher grade/rank by virtue of the law laid down by the Apex Court in the aforementioned cases unless he possesses the required kalawadhi in the higher grade. I have already held that under 1981 Government Circular the cases of even Executive Engineers with 16 years of their working in the said capacity can be considered for promotion directly to the posts of Chief Engineer, if no fit person is available in the rank of Superintending Engineer. Once a person fulfils the said requisite criteria his case for promotion will also have to be considered along with others in the light of his restored seniority. 33. The reliance placed on the decision of the Supreme Court in the case of Union of India V/s. M Bhaskar (supra) by Dr, Jha has no application to the facts of the present case. In the said case, the contention of respondent No.1 was that he was unjustly and illegally denied promotion to Grade I Commercial Inspector in 1990 despite his having been promoted as Commercial Inspector Grade II by an order dated 21-9-1989, which was made effective from 11-10-1988, because of which he has become eligible for promotion to Grade I on 11-10-1990, as the eligibility condition was completion of two years of experience in Grade II. The Patna Bench of the CAT held that the exclusion of the said respondent from the list of eligible candidates for the selection meant for 1990 was wrong, the validity of which was assailed by the Union of india in the said case by contending that two years period of experience has to be reckoned not from 11-10-1988 but from 21-9-89. In the said case there was no dispute that the eligibility condition is two years experience in Grade II. Accordingly, the Supreme Court held that the said respondent having really started working in Grade II pursuant to the order of 21-9-1989, could not have gained experience prior to the date he had joined pursuant to the said order. In the said case there was no dispute that the eligibility condition is two years experience in Grade II. Accordingly, the Supreme Court held that the said respondent having really started working in Grade II pursuant to the order of 21-9-1989, could not have gained experience prior to the date he had joined pursuant to the said order. In that context, the Supreme Court held that the mere fact that his promotion in grade II was notionally made effective from 11-10-88 cannot be taken to mean that he started gaining experience from that day, because to gain experience one has to work. Notional promotions are given to take care of some injustice, inter alia, because some junior has come to be promoted earlier. The Apex Court expressed no doubt that the person promoted to higher grade cannot gain experience from the date of the notional promotion; it has to be from the date of actual promotion. 34. In the present case, the criteria laid down by the State Government in 1981 Circular, contained in Annexure 2, is clear and there is no question involved about gaining experience by any individual by virtue of notional promotion. It is nobodys case that any of the petitioners and/or the concerned respondents was claiming his promotion on the basis of notional promotion or experience gained by them in the particular grade. In fact, as I have already held above, under the aforesaid 1981 governmental instruction, even the executive Engineers are eligible for consideration of their case for promotion if they have worked for 16 years in that capacity but their cases are to be considered only in case of non-availability of sufficient number of officers in the rank of Superintending Engineer found fit for promotion to the posts of Chief engineer in terms of the provisions contained in paragraph 2 read with paragraph 3 of the said instruction. 35. 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. 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. Writ Applications Dismissed.