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2000 DIGILAW 582 (PAT)

Shyam Badan Singh v. State Of Bihar

2000-04-14

AFTAB ALAM, RAVI S.DHAVAN

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Judgment Ravi S.Dhavan and Aftab Alam JJ. 1. This Letters Patent Appeal is directed against the judgment and order dated September 22, 1996 passed by a learned Single Judge of this court disposing of C.W.J.C. Nos. 4 and 1430 of 1996. The appellants were the petitioners in C.W.J.C.No.1430/96. They came to this court in the aforesaid writ petition making grievances that in the Bihar Engineering Service Class I in the cadre of Executive Engineer, members of the Scheduled Castes were given promotions far in excess of the reservation quota admissible to them. The appellants accordingly prayed for a direction to the respondent authorities to revert the members of the Scheduled Castes promoted as Executive Engineers in excess of the reservation quota and to fill up those vacancies by giving promotion to the officers belonging to the general category to which the writ petitioners-appellants belong. 2. In the judgment and order coming under appeal the learned single judge found that the petitioners claim was without any substance or merit and consequently dismissed the writ petition. On the basis of the averments made in the counter affidavits filed on behalf of the State and some of the private respondents it was held that the members of the Scheduled Castes being in excess of their reserved quota in the cadre of Executive Engineer was explained in the following manner; the Scheduled Castes undeniably enjoyed reservation to the extent of 14%, while reservation admissible to the members of the Scheduled Tribes was to the extent of 10%. It was stated on behalf of the respondents that in case members of the Scheduled Tribes were not available, the posts reserved for them are required to be carried forward for the next three years and in the event no member of the Scheduled Tribes was available for promotion even after three years, those vacancies were to be released for the Scheduled Castes in terms of Section 4(6) (a) of the Bihar Reservation of Vacancies in Posts and Services (For Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991 (for short Reservation Act, 1991.) The learned Single Judge took into consideration the above explanation given on behalf of the respondents and on examining the provision of Clause (a) of sub-section 6 of section 4 of the Reservation Act, 1991 found and held that there was valid and satisfactory explanation for the number of the Scheduled Castes officers being in excess of the reservation quota available to them in the cadre of Executive Engineer. The learned Judge accordingly dismissed the writ petition. 3. Mr. Binod Kumar Kanth, learned counsel appearing on behalf of the appellants invited our attentions to the statements made in paragraphs 7 and 8 of the counter affidavit filed on behalf of the State and its officials respondents 1 to 3 which are as follows : "7. That with regard to the statement made in para 11 of the writ application it is stated that cadre strength of different categories of posts of Bihar Engineering Services Class-l has been indicated in Road Construction Department letter No. 2360(s) dated 3.4.93 from this letter it would appear that cadre strength of Executive Engineer has not been notified. Later on, it is being worked out and likely to be published very soon. The annexure, referred to, speaks about the number of sanctioned posts communicated to A.G.Bihar, in order to work out junior selection grade posts admissible in the light of Finance Department letter No.7295 dated 17.9.84. 8. That the statement made in paras 12 and 13 of the writ application is not correct and hereby denied. That in fact, under control of Road Construction Department there are 502 posts of Executive Engineer as enumerated below :- (i) Road Construction Department -196 posts (ii) Building Construction Department - 85 posts (iii) Rural Development Department - 207 posts, (iv) Bihar State Bridge Construction Corporation Ltd., Patna -15 posts. That in fact, under control of Road Construction Department there are 502 posts of Executive Engineer as enumerated below :- (i) Road Construction Department -196 posts (ii) Building Construction Department - 85 posts (iii) Rural Development Department - 207 posts, (iv) Bihar State Bridge Construction Corporation Ltd., Patna -15 posts. Total :- 502 posts It is also denied that 95 Scheduled Caste members promoted in the grade of Executive Engineer. Actually 79 members of Scheduled castes are promoted to the post of Executive Engineer as regular basis. At that time roaster was effective. That the reservation in promotion has been accepted by Honble Supreme Court and as also Honble High Court. In fact, at the moment in the Road Construction Department about 502 posts of Executive Engineer have been counted towards cadre posts, besides this, 31 posts identified as non-cadre posts, combining these two figures total posts come to 533, which allow 75 posts for S.C. & 53 posts for ST. If 31 posts, identified as non cadre are left out then 70 and 50 posts shall come to S.C. & S.T. respectively in the ratio of 14% and 10%. 4 Mr. Kanth pointed out that on the own admission of the State the cadre strength of the Executive Engineer was yet to be published after being worked out. He further pointed out that deviating from the statement made in paragraph 7, it was stated in paragraph 8 that out of 95 Scheduled Castes members 79 were promoted to the post of Executive Engineer on regular basis. Implicit in the statement, according to Mr. Kanth, was that the other promotions were made on an irregular basis. He further pointed out that paragraph 8 of the counter affidavit refers to 31 non cadre posts. On the basis of the averments made in the counter affidavit Mr. Kanth submitted that the strength of the cadre itself being unascertained it could not be said that the posts initially reserved for the members of the Scheduled Tribes were released in favour of the officers belonging to the Scheduled Castes. 5. This court is not inclined to make any observation on the submission made by Mr. Kanth. Suffice it to note that apart from the above submission Mr. 5. This court is not inclined to make any observation on the submission made by Mr. Kanth. Suffice it to note that apart from the above submission Mr. Kanth also tried to assail the judgment and order coming under appeal on grounds which were not only not pleaded in the writ petition but which also do not seem to have been raised before the learned Single Judge. Learned counsel cannot be permitted to raise for the first time in appeal fresh grounds which were not even pleaded in the writ petition. 6. Faced with the situation Mr. Kanth opted to withdraw this appeal so that the affected person(s), if so advised, may be able to take such benefit as they may lawfully derive from the stand of the State Government as appearing from its counter affidavit in a proper proceeding before a proper forum. 7. The prayer for withdrawal of the appeal is allowed and this appeal is dismissed as withdrawn.