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2000 DIGILAW 818 (PAT)

Jokhu Sahani v. State Of Bihar

2000-06-30

ASOK KUMAR GANGULY

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Judgment A.K.Ganguly, J. 1. The subject matter of challenge in this writ petition is basically against annexure-21 which is a purported seniority list of junior engineers showing the petitioner junior to respondent nos. 9,10 and 11. The petitioner has also prayed for regular promotion to the post of Assistant Engineer and the petitioner has claimed that he must be paid the salary of the post of Junior Engineer from 28.10.1978 till his retirement on 30.9.1999. The petitioner is also challenging the impugned annexure-28 by which respondent no. 11 is shown senior to the petitioner. By the said order respondent no. 11 was granted regular promotion to the post of Assistant Engineer (Civil) with effect from the date of his assumption of charge i.e. on 1.11.1978. The petitioners case is that he joined the post of Assistant Engineer on 28.10.1978 and he is senior to respondent no. 11. 2. In the course of submission, learned counsel for the petitioner, however, has stated that he is conceding his claim of seniority as against respondent nos. 9 & 10 and he admits that respondent nos. 9 and 10 are senior to him but in so far as respondent no. 11 is concerned, the petitioners positive case is that he is senior to respondent no. 11 and he is challenging the impugned annexure mentioned above. 3. A few relevant facts may be noted. The petitioners case is that he completed Diploma Course in Civil Engineering in the year 1964 and thereafter vide memo dated 30.12.1964 issued by the Registrar of the Department of Housing, Government of Bihar the petitioner along with respondent nos. 9 and 10 were appointed on the post of Overseer on provisional basis and the petitioner joined the said post on 11.1.1965. The petitioner further asserts that in 1967 the Executive Engineer, Department of Housing, Jamshed- pur placed the petitioner in the regular establishment on the post of Overseer and vide his letter dated 27.7.1967, approval from the Superintending Engineer Rural Housing Cell, Bihar, Patna was sought for regarding posting of the petitioner in the regular establishment at Jamshedpur. According to the petitioner, the said approval on the posting of the petitioner at Jamshedpur was given. According to the petitioner, the said approval on the posting of the petitioner at Jamshedpur was given. The Housing Board was constituted on 1.9.1972 and those employees of the department of Housing whose services were transferred to the said Board became employees of the said Board and were getting salary from the said Board. So the services of the petitioner and that of respondent nos. 9 and 10 were also transferred to the said Board and they started getting salary and other admissible allowance from the said Board. 4. In the writ petition the petitioner has highlighted the fact that respondent no. 11 was also a student of 3 year Diploma course in Civil Engineering at Patna School of Engineering, Patna but he did not pass that examination and was declared to have failed. Respondent no. 11 was actually appointed as Sub Overseer in the River Valley Project on 5.7.1962. It is an admitted position that respondent no. 11 has not passed the examination of three year diploma course in Civil Engineering. 5. From these facts, learned counsel for the petitioner asserts that respondent no. 11 is not entitled to be appointed on the post of Overseer. 6. In support of his claim of seniority the petitioner has placed reliance on Annexure-8 to the writ petition and he has submitted that from annexure-8 it appears that the name of the petitioner is shown as above the name of respondent no. 11. As against respondent no. 11 it has been made clear that respondent no. 11 joined the post of Overseer on 27.7.1967 but the petitioner admittedly joined the said post on 11.1.1965. As against respondent no. 11 it has been stated that he has failed in diploma course and it has been further stated that respondent no. 11 was appointed as Sub Overseer in the River Valley Project on 5.7.1962. The petitioner has also relied on another seniority list which is at Annexure-9. On the basis of the said list he shows that the petitioner is shown senior to respondent no. 11 by two and half years. It is an admitted position from perusal of annexures 8 and 9 that the petitioner is shown senior to respondent no. 11. 7. The petitioner has also relied on another seniority list which is at Annexure-9. On the basis of the said list he shows that the petitioner is shown senior to respondent no. 11 by two and half years. It is an admitted position from perusal of annexures 8 and 9 that the petitioner is shown senior to respondent no. 11. 7. The petitioner having regard to the aforesaid position as Overseer was constantly making representation for appointment to the post of Assistant Engineer and ultimately was posted as Assistant Engineer on 24.10.1978 as Incharge and was posted at Ranchi Division. Similarly respondent no. 11 was also posted as Assistant Engineer, Sub-division No. II of Patna Division. The petitioners main grievance, as noted above, is that even though the petitioner was posted as Assistant Engineer Incharge since 28.10.1978, he has not been paid" any consequential benefit of the said post. Even though he has been continuously working against the post of Assistant Engineer but still he is getting the salary and other admissible allowances of the post of Junior Engineer. The petitioner has also asserted that for the purpose of granting promotion to the petitioner and respondent nos. 10 and 11 a clearance certificate was sought for by respondent no. 7 vide letter dated 4.11.1981. To that the Inspector General of Vigilance Department had sent a letter on 21.1.1982 to respondent no. 7 stating therein that no enquiry is going on against the petitioner and respondent no. 10. However, so far as respondent no. 11 is concerned against him two enquiries in the Vigilance Department are going on. 8. However, the petitioner felt very much aggrieved by an order dated 24.1.1996 (Annexure-21) whereby final seniority list of Junior Engineer was published and in the said list respondent no 11, who was shown junior to the petitioner in annexure 8 and 9, has suddely been shown senior to the petite! and the petitioner is shown to have been appointed on adhoc basis and has been shown junior to respondent no. 11. The petitioner has pointed out that in the said list even though the petitioner has been shown to have been appointed on 11.1.1965 and respondent no. 11 is shown to have been appointed on 27.7.1967, respondent no. 11 has been shown senior to the petitioner. 9. In the instant case a counter affidavit has been filed by the State respon- j dents. 11 is shown to have been appointed on 27.7.1967, respondent no. 11 has been shown senior to the petitioner. 9. In the instant case a counter affidavit has been filed by the State respon- j dents. In the counter affidavit which has been filed by the State respondents the fact that respondent no. 11 did not pass the diploma examination has not been disputed nor there is any dispute about the fact that at the relevant point of time two Vigilance Enquiries were pending against respondent no. 11; on the other hand the stand which was taken in the counter affidavit of the State is that the petitioner is not entitled to any relief as the petitioner was appointed along with respondent nos. 9 and 10 on totally provisional basis on the post of Overseer in the year 1965 on the condition that on advertisement for filling up the post on regular basis they shall apply for the same and their cases shall be considered for regular appointment along with other candidates. 10. In this connection it may be stated that as long as the petitioner continued in service of the State Government in the Housing Department, no advertisement was issued. Thereafter the petitioner was appointed in the Housing Board as aforesaid. 11. In the counter affidavit it has, however, been accepted by the respondents that at the time of appointment the petitioner had qualified himself by passing in the diploma examination. It is stated that the work of the department was badly suffering for shortage of Overseer and in order to get over the said crisis, the department appointed the petitioner and four others provisionally as a stop gap arrangement. In this connection, reference may be made to the P.W.D. on resolution dated 17th June 1975 from which it appears that during the period from 1958 to 21st August, 1970 there was no yardstick for the appointment of Junior Engineer. Due to shortage of Junior Engineers, the successful candidates, on publication of the result of diploma examination, were allotted to different works department in consolidated manner and their appointment was made on the post of Junior Engineer (Overseer) by the competent officer of the department concerned. The gradation list of such Junior Engineers appointed in such manner was not prepared but their appointments were made on getting through the Diploma examination only. The gradation list of such Junior Engineers appointed in such manner was not prepared but their appointments were made on getting through the Diploma examination only. It was decided, as per para 2 (c) of the Circular of 1934 issued by the Appointment Department, to determine the inter se seniority of the Junior Engineers on the basis of marks obtained in the Diploma examination. 12. In view of the said circular it cannot be said that the initial appointment of the petitioner as Overseer was illegal. Therefore, the stand taken by the respondents in the counter affidavit that the initial appointment of the petitioner was void and illegal cannot be accepted. In fact, in paragraph 7 of the counter affidavit the respondents have accepted the position that as the departments work was suffering due to shortage of Overseers, the department suo motu appointed the petitioner and others as a stop gap arrangement. As the appointments were made in the public interest and for the purpose of carrying on work of the department, such appointment cannot be said to be back door appointment as is sought to be urged by the respondents. 13. It is an admitted position that respondent no. 11 has not passed diploma examination and he was not initially appointed as Overseer. He was appointed as Sub-Overseer in 1962 and thereafter he was promoted to the post of Overseer in the year 1967. These facts cannot be denied. 14. It is obviously true that the appointment of respondent no. 11 to the post of Overseer without having the academic qualification cannot be questioned now since the same has taken place in the year 1967 and there is a judgment of this Court in C.W.J.C. No. 1740 of 1976 filed by respondent no. 11. In the said case it has been accepted that the educational qualification cannot be a bar in the matter of promotion. 15. But the fact remains that respondent no. 11 became Overseer about two and half years after the petitioner became Overseer. Therefore, the impugned seniority list at annexure-21 showing respondent no. 11 senior to the petitioner cannot be accepted. 16. In the counter affidavit filed by the State they have not been able to explain how could the petitioner, who was shown senior to respondent no. 11 in An- nexure 8 and 9 could suddenly become junior to him. Therefore, the impugned seniority list at annexure-21 showing respondent no. 11 senior to the petitioner cannot be accepted. 16. In the counter affidavit filed by the State they have not been able to explain how could the petitioner, who was shown senior to respondent no. 11 in An- nexure 8 and 9 could suddenly become junior to him. This matter has been dealt with in the counter affidavit of the State respondents in paragraph 18 as follows : "It is submitted that the gradation list of Junior Engineers of Housing Department (annexed as Annexure-21 of the writ petition) has been issued after due application of mind and that is legal and valid." 17. In fact, no reason has been also submitted in the course of argument by the learned counsel for the State as to how the petitioner could be shown junior to respondent no. 11 suddenly while an- nexure-21 was issued. In the counter affidavit which has been filed by respondent no. 11 in this proceeding this aspect has been dealt with in paragraph 17 as follows : "That with regard to statement made in paragraphs 36 and 37 is incorrect, misleading and irrelevant as the State Government after due application of mind has issued final gradation list of Junior Engineer of the Housing department (as contained in Annexure-21) which is legal and valid." 18. The only argument which has been advanced in the course of oral submission is that the petitioners appointment was on adhoc basis and as such he cannot count his seniority from the date of his initial appointment in the post of Junior Engineer. In this connection it may be stated that the petitioner, as has been stated above, was appointed on the post of Junior Engineer on 11.1.1965 and at that point of time respondent no. 11 was Sub Overseer which is an inferior post and respondent no. 11 was appointed to the post of Overseer/Junior Engineer on 27.7.1967. whereas the petitioner was appointed to the post of Junior Engineer on 11.1.1965. It is well settled in law that when a person is appointed on provisional basis in a post, his seniority in the said post should be counted if the provisional appointment is allowed to continue for a long period of time. whereas the petitioner was appointed to the post of Junior Engineer on 11.1.1965. It is well settled in law that when a person is appointed on provisional basis in a post, his seniority in the said post should be counted if the provisional appointment is allowed to continue for a long period of time. In the instant case the petitioner having been appointed on the post of Junior Engineer in 1965 and the said list having been prepared in 1996 cannot ignore the petitioners seniority in the post of Junior Engineer from the date of his appoinment. If a person is allowed to continue a post for a length of about thirty years will be wholly inequitable and unjust say that his seniority will not be counted on the said post just because the petitioner was working on provisional basis. Such an interpretation will also be inherently violative of Articles 14 and is! of the Constitution of India. Reason coupled with justice is the substance of the guarantee epitomised in Articles 14 and 16 of the Constitution of India. See in this connection the observation of Justice Sarkaria in the case of Manager, Government Branch Press V/s. D. Baliappa reported in AIR 1979 S.C. page 429, para 24. 19. Various other Supreme Court decisions to the aforesaid effect have been referred to but the point is so well settled that this Court need not consider those cases in details, questions which has highlighted this aspect of the matter. 20. Learned counsel for the Housing Board has, however, submitted very fairly that the Board does not have any objection to give the petitioner his salary for the post of Assistant Engineer which he has been holding since 28.10.1978 even though the petitioner has been promoted to the post of Assistant Engineer with effect from 1.6.1981. 21. In this connection this Court also finds that it will be unjust to give respondent no. 11 promotional benefit to the said post of the Assistant Engineer prior to the petitioner. 22. This Court, however, does not want to disturb the benefit which has been given to respondent no. 11 but this Court makes it clear that by Annexure-28 respondent no. 11 promotional benefit to the said post of the Assistant Engineer prior to the petitioner. 22. This Court, however, does not want to disturb the benefit which has been given to respondent no. 11 but this Court makes it clear that by Annexure-28 respondent no. 11 has been given promotion to the post of Assistant Engineer with effect from 1.11.1978 but since the petitioner joined the post of Assistant En- gineer on 28.10.1978 the petitioner must be given the benefit of promotion to the post of Assistant Engineer prior to respondent no. 11 i.e. from 28.10.1978. 23. For the decision aforesaid this Court declares that the petitioner is senior to respondent no. 11 the impugned seniority list at Annexure-21 is quashed to the extent that respondent no. 11 must be shown junior to the petitioner as Junior Engineer and the name of respondent no. 11 must come after respondent nos. 9, 10 and the petitioner, the said seniority list is amended accordingly. Consequently the petitioner must be given the benefit of promotion to the post of Assistant Engineer from the date he was holding the said post i.e. 28.10.1978 and all financial benefit arising out of the said promotion should be given to the petitioner as early as possible preferably within a period of three months from today. The retirement benefit of the petitioner should also be counted on that basis. This writ petition is allowed to the extent indicated above. Annexure-21 is modified accordingly. In so far as annexure-28 is concerned, this Court does not disturb the grant of promotion to respondent no. 11 to the post of Assistant Engineer with effect from 1.11.1978 but makes it clear that the petitioner must be given promotion to the said post with effect from 28.10.1978. There will be no order as to cost.