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2003 DIGILAW 173 (PAT)

Devendra Kr. v. State of Bihar

2003-02-13

P.N.YADAV, S.N.JHA

body2003
GUDGMENT S.N. JHA & P.N. YADAV. JJ. The dispute in this case relates to seniority between the petitioner Devendra Kumar, respondent no. 3 Raghubir Ram and respondent no. 4 Prabhu Mehra on the post of Junior Electrical Engineer in the Energy Department of the Government of Bihar. The petitioner seeks quashing of the office order dated 26.7.89 by which the said respondents have been placed above him and to that extent the gradation list of the Junior Electrical Engineers dated 10.1.85 has been modified. 2. As a matter of fact, the said order dated 26.7.89 stands quashed on 2.6.89 by the then Ranchi Bench of this Court in CWJC No. 319/90(R) as between the respondents. The petitioner, though not impleaded as respondent, had intervened in the case and was also heard. After the said judgment, the petitioner filed an application to dispose of the writ petition in the same terms. The application came up on 28.7.92 but no order was passed as respondent no.4 had preferred letters patent appeal (LPA No. 62 of 1992R). The LPA and the special leave petition arising there from were dismissed in course of time. We shall refer to those orders later in this judgment. 3. Also involved is the question of promotion on the post of Assistant Electrical Engineer and the effective dates thereof. It may be mentioned that the petitioner and respondent no. 4 stand promoted while the case of respondent no.3 has remained on hold. 4. On 30.10.98 when the case came up for hearing before a learend Single Judge he observed that if the submissions urged on behalf of respondent no.3 are to be accepted, the order which may have to be passed will have the effect of modifying the judgment passed in CWJC No. 319/91 (R) inasmuch as the modified gradation list dated 26.7.89 has been quashed by the learned Judge in its entirety, with the result that the final gradation list dated 10.1.85 stands restored, which will give rise to anomalies between the parties, and accordingly directed the case to be heard by a Divsion Bench. That is how this case came before this Bench for hearing. 5. The facts of the case may now be briefly stated as follows. In the year 1975 advertisement was issued inviting applications for appointment on the vacant posts of Junior Engineer in the Energy Department of the Government of Bihar. That is how this case came before this Bench for hearing. 5. The facts of the case may now be briefly stated as follows. In the year 1975 advertisement was issued inviting applications for appointment on the vacant posts of Junior Engineer in the Energy Department of the Government of Bihar. The petitioner as well as respondent nos. 3 and 4 all belonging to Scheduled Caste, amongst others, applied. Separate merit lists were prepared for the candidates in the general category and the Scheduled Caste/Syheduled Tribe category in which on the basis of marks secured by them respondent no.3 was placed at serial no. 2, the petitioner at serial no.6 and respondent no.4 at serial no.7. We shall refer to the mode of awarding marks later in this judgment. In July 1976, the petitioner as well as respondent nos.3 and 4 were appointed. On 30.11.78 a provisional gradation list of Junior 'Electrical Engineers was circulated. The gradation list was in two parts. While names of the candidaes of the general category were mentioned at serial nos. 1 to 51, those belonging to the reserve categories were placed at serial no. 52 onwards. The name of respondent no. 3 was shown at serial no. 52 while that of respondent no. 4 was shown at serial no. 53. The name of the petitioner did not figure in the list though the name of one Deohandra Kumar was shown at serial no. 26. Respondent no.3 (or even respondent no.4) 4 did not object to the said gradation list apparently because the name of the petitioner was not even mentioned. The final gradation list was published on 10.1.85 in which the name of Deochandra Kumar was shown at serial no. 22 while those of respondent nos. 3 and 4 were shown respectively at serial nos. 48 and 49. On 8.8.88 the petitioner was promoted on the post of Assistant Electrical Engineer treating him as the one at serial no. 22. After the said promotion respondent no. 3 filed writ petition before the then Ranchi Bench of this Court being CWJC No. 4690/89(R) claiming seniority over him. By order dated 17.4.89 the writ petition was dismissed as withdrawn with liberty to make representation in the department.' Respondent no. 3 filE3d representation and the department issued notice to the petitioner as well as respondent nos. 3 and 4 to present their case. By order dated 17.4.89 the writ petition was dismissed as withdrawn with liberty to make representation in the department.' Respondent no. 3 filE3d representation and the department issued notice to the petitioner as well as respondent nos. 3 and 4 to present their case. Thereafter on 26.7.89 the impugned order was passed modifying the gradation list in favour of respondent no.4, as indicated above. He was placed at serial no. 47 over respondent no. 3 and the petitioner who were placed respectively at serial nos. 48 and 49. Respondent no. 3 again approached the Ranchi Bench of this Court in CWJC No. 319/ 90 (R) challenging the pit' cement of respondent no.4 over him in the gradation list. He did not implead the petitioner apparently because he had been placed below in the gradation list. The petitioner, however, intervened in the case and he was also heard. In the meantime, he also filed the present writ petition before this court challenging the same impugned order dated 26.7.89 because he had been placed below respondent nos. 3 and 4 in the gradation list by the said order. 6. CWJC No. 319/90 (R) was allowed on 2.6.92. The learned Judge held that the final gradation list dated 10.1.85 could hot be altered when the same was not challenged by any person earlier, the impugned order dated 26.7.89 was held to be illegal and accordingly quashed. Against the said judgment a letters patent appeal (LPA No. 62/92R) was preferred by respondent no.4 which was dismissed on 13.1.93. He then filed special leave petition before the Supreme Court being SLP (Civil) No. 523/94. On 19.9.94 the said SLP too was dismissed in view of the fact that the High Court had entertained petition for review of the judgment dated 2.6.92 (by respondent no.4), being civil review no. 9/94(R) and the same was pending. The review petition was finally dismissed on merit on 86.6.96. Respondent no. 4 thereafter did not agitate the matter further. 7. It is not in dispute that in the merit list with respect to the reserve category candidates respondent no.3 was placed at serial no.2, the petitioner at serial no. 6 and respondent no.4 at serial no. 7. In other words, as amongst the parties herein, respondent no.3 was the senior most followed by the petitioner and respondent no.4. 7. It is not in dispute that in the merit list with respect to the reserve category candidates respondent no.3 was placed at serial no.2, the petitioner at serial no. 6 and respondent no.4 at serial no. 7. In other words, as amongst the parties herein, respondent no.3 was the senior most followed by the petitioner and respondent no.4. The inter se placement was on the basis of marks secured by them. While respondent no.3 secured 45 marks, the petitioner and respondent no.4 were awarded 35 marks and 30 marks respectively. The selection was made as per circular dated 10.2.71 re-iterated by circular dated 7.10.72. The circular stipulated that the candidates shall be awarded marks (maximum 60) on the basis of marks secured by them at the qualifying (degree/diploma in Engineering) examination and. further, bonus marks on the basis of year of passing the degree/diploma examination. While 40 bonus marks were to be allowed to the pass-outs of 1966, those who passed the examination in 1967, 1968 and 1969 were to be allowed bonus marks @ 30, 20 and 10 respectively. Those who passed in 1970 (or in subsequent years) were to be allowed 0' i.e. no bonus mark. It is relevant to mention here that the bonus marks could be awarded only if earlier pass - out candidates were not available. Circular dated 7.10.72 provided that similar bonus marks should be allowed if the pass - outs of 1966, 1967 and 1968 were not available - in the same descending order. Thus, if candidate passing the examination in 1966 was not available, the pass - outs of the year 1967 would get 40 bonus marks, pass - outs of the year 1968, 1969 and 1970 would get, respectively, 30, 20 and 10 bonus marks. And so on. 8. Respondent no.3, the petitioner and respondent no.4 were thus awarded 45 marks, 35 marks and 30 marks on the basis of their academic marks obtained by them at the degree/diploma examination. As each of them had passed the examination after 1969 (in 1971 or 1974) they were not awarded any bonus marks. In the ordinary course, therefore, there was little scope for any dispute regarding inter se seniority amongst them. As each of them had passed the examination after 1969 (in 1971 or 1974) they were not awarded any bonus marks. In the ordinary course, therefore, there was little scope for any dispute regarding inter se seniority amongst them. It is a settled rule that in case of direct recruitment, in the same transaction, the seniority is determined by the inter se placement in the merit list at the time of appointment. However, dispute in the instant case arose initially on account of promotion of the petitioner. The name of the petitioner was not mentioned in the gradation list at all but the name of one Deochandra Kumar was mentioned at serial no. 26 of the final gradation list. It is not in dispute - at least now - that no person of that name (Deochandra Kumar) was ever appointed. It appears from the submission of the counsel for the parties, including the petitioners that the two candidates bearing the same name, Devendra Kumar one in the general Category and the other in the reserve category i.e. the petitioner herein - were selected or appointment but the other Devendra Kumar i.e. the one in the general category did not join whether on account of any inadvertent mistake or as a result of misrepresentation/fraud played by the petitioner he was treated as the one placed at serial no. 26 in the provisional or serial no. 22 in the final gradation list even though the name was 'Deochandra Kumar'. In fact as seen above up to serial no. 51 Junior Engineers of the general category were shown and the petitioner a Scheduled Caste could not be placed at serial no. 26 or 22. Be that as it may, treating him as the one placed at serial no. 22 (of the final gradation list) the petitioner was promoted on the post of Assistant Electrical Engineer on 8.8.88. This gave rise to dispute. Respondent no. 3 filed CWJC No. 460/89(R) and pursuant to the order passed therein filed representation in the department which led to the impugned modification in the gradation list on 26.7.89. This gave rise to another dispute. 9. This gave rise to dispute. Respondent no. 3 filed CWJC No. 460/89(R) and pursuant to the order passed therein filed representation in the department which led to the impugned modification in the gradation list on 26.7.89. This gave rise to another dispute. 9. Shri Bibhuti Prasad Pandey, learned counsel for the petitioner, fairly stated that he would not press his claim of seniority over respondent no.3 even though such a claim has been made in the writ petition, for, having secured more marks at the recruitment and been placed at serial no. 2 in the merit list, respondent no.3 has to be treated as senior. However, for the same reason, respondent no.4 having secured lesser marks at the recruitment and placed below the petitioner at serial no. 7 he could not be allowed seniority over the petitioner on the basis of the bonus marks purportedly allowed to respondent no.4 in terms of circulars dated 7.10.72. The said circular envisaged awarding of bonus marks to candidates on the basis of the year of passing of the degree/diploma examination provided candidates of the year 1966 were not available but as in the instant case such candidates were available, which would appear from the merit list, respondent no.4 could not be allowed bonus marks on the basis of the year of passing the qualifying examination i.e. 1971. 10. As seen above, in terms of the said circulars bonus marks were to be awarded to candidates who passed the qualifying examination in 1966 or 1967, 1968 and 1969. No bonus marks i.e. 'O' mark was to be awarded to candidates who passed the examination in 1970. Respondent no. 4 who passed the qualifying examination in 1971 was thus not entitled to any bonus mark. Like him the petitioner and respondent no.3 who passed the examination in 1974 were also not entitled to any bonus mark. And accordingly none of them was awarded such mark while preparing the merit list at the time of recruitment. However, the department allowed the claim of respondent no.4 even though he never challenged his placement either in the merit list or in the gradation list. And accordingly none of them was awarded such mark while preparing the merit list at the time of recruitment. However, the department allowed the claim of respondent no.4 even though he never challenged his placement either in the merit list or in the gradation list. While considering the representation of respondent no.3 he was allowed 40 bonus marks on the ground that no candidate of the reserve category was available for the year between 1966 to 1970 Respondent no.4 being a pass - out of the year 1971 according to department was entitled to 40 bonus marks. 11. It is relevant to point out here that though the object behind giving bonus marks appears to be to compensate the candidates who had passed the qualifying examination earlier but could not be appointed as no recruitment" had taken place, the method known as chain system has been disapproved by this court in the case of Deota Nath Tiwary V. State of Bihar, 1989 PLJR 580, and even by the Apex Court in J&K Public Service Commission v. Dr. Narendra Mohan, (1994) 2 SCC 260. However, this aspect of the matter need not detain us because the recruitment made in the said manner is a fait accompli and at this stage it would be futile to find fault with the mode of recruitment. A large number of persons were appointed in the manner and none of them is party. That is also not in issue in this case. 12. Shri Ram Balak Mahto learned counsel for respondent no.4, nevertheless submitted that as recruitment was in fact, made by awarding bonus marks, besides the marks for the academic result in terms of the circular dead 7.10.72, as there was no Scheduled Caste or other reserve category candidate available up to the year 1970, respondent no.4 was entitled to 40 marks on the basis of year of his passing the qualifying examination i.e. 1971. It appears that similar contention was raised on behalf of respondent no. 4 in CWJC No. 319/90(R) and Civil Review No. 9/94 (R) and rejected. The learned Judge who decided the writ petitioner observed as under: "It is, therefore, clear that even in the instant case respondent no.4 could not have been allotted 40 marks inasmuch as persons passing the diploma in degree examination in the year 1966 and 1964 were available. 4 in CWJC No. 319/90(R) and Civil Review No. 9/94 (R) and rejected. The learned Judge who decided the writ petitioner observed as under: "It is, therefore, clear that even in the instant case respondent no.4 could not have been allotted 40 marks inasmuch as persons passing the diploma in degree examination in the year 1966 and 1964 were available. If the circular letter dated 7th October, 1972 can be made to apply, with regard to the allotment of marks, respondent no.4 shall stand on the same footing as that of the petitioner and the intervener, inasmuch as, noticed hereinbefore, in case candidates passing the diploma or degree examination in 1966 are available, those who have passed in 1970 would get 'O' mark." Another learned Judge, while dismissing the review petition observed, "In my view, it was not correct, therefore to say that scheduled caste candidates were to get the said weight age marks separately from the general candidates, that is from among the candidates belonging to the said class only." 13. It would thus appear that this Court declined to treat the recruitment in two separate categories for the general and reserve category candidates - and on the ground that no scheduled caste candidate was available up to the year 1970, award bonus marks to the Scheduled caste candidates who passed the degree/diploma examination in 1971 and onwards. The recruitment was common and the stipulation that bonus marks would be awarded only if the candidates who passed the degree/diploma examination in the year 1966 were not available was the common condition applicable to all categories. In view of the above inter-party finding the contention of Shri Mahto accordingly has to be rejected. 14. The basis of the impugned order dated 26.7.89 allowing the claim of respondent no. 4 was the bonus marks on the basis of passing the diploma examination in 1971. That is how he was awarded 70 (30+40) marks i.e. 30 marks for the academic result and 40 marks as bonus and placed above respondent no. 3 and the petitioner. There being no basis to award bonus marks, he could not be treated as senior to either the petitioner, or respondent no. 3. It is totally un-understandable as to how the merit list could be altered on a different ground altogether. It is to be kept in mind that respondent no. 3 and the petitioner. There being no basis to award bonus marks, he could not be treated as senior to either the petitioner, or respondent no. 3. It is totally un-understandable as to how the merit list could be altered on a different ground altogether. It is to be kept in mind that respondent no. 4 never challenged his inter se placement in the panel/merit list nor objected to the inter se placement in the gradation list. It was respondent no.3 who raised the dispute for the first time after the petitioner was promoted on the post of Assistant Engineer by filing writ petition, CWJC No. 480/89(R). It was he who made representation in the department in the light of the order in that writ petition. While considering his representation the department allowed the claim of respondent no. 4. The impugned order modifying the gradation list making respondent no.4 senior not only the petitioner but also respondent no.3 must be held to be illegal and accordingly deserves to be quashed. Indeed, it also stands quashed by this court in CWJC No. 319/90 (R) as between the parties. Though the petitioner was not party in that case, he had intervened in the proceeding and he was also heard. The judgment in CWJC No. 319/90(R) thus seems to squarely cover the case of the parties. 15. In view of stand of the counsel for the petitioner that he does not claim seniority over respondent no.3, scope of the writ petition should be limited to the inter se claim between the petitioner and respondent no.4, but there is also inter se dispute between the two respondents. However, the impugned order, dated 26.7.89, by which respondent no. 4 was held to be senior to respondent no.3 stands quashed at the instance of respondent no.3 in CWJC No. 319/90 (R). In the facts and circumstances of the case, we do not wish to reiterate what has already been held by this court in CWJC No. 319/90(R) but we would like to make few observations. We are satisfied that respondent no.3 has suffered injustice. Though he was the senior most amongst the three, while the petitioner and respondent no. 4 have been promoted on the post of Assistant Electrical Engineer in course of time, he is still a Junior Electrical Engineer. It appears that respondent no. We are satisfied that respondent no.3 has suffered injustice. Though he was the senior most amongst the three, while the petitioner and respondent no. 4 have been promoted on the post of Assistant Electrical Engineer in course of time, he is still a Junior Electrical Engineer. It appears that respondent no. 3 was awarded censure as a measure of penalty on account of a single day's absence from duty on 8.8.85. The order awarding censure was passed on 8.1.86 but as fairly stated by the counsel for the parties, in terms of the relevant circular of the State Government, the effective period of punishment relates back to the date of the event in the instant case, 8.8.85. The case of the petitioner was taken up by the Departmental Promotion Committee on 16.7.88 i.e. at a time when the bar of three years was effective and, therefore, the case of respondent no.3 could not be considered though, it must be clarified, it was open to the authority to relax the period and consider his case inasmuch as the three years period was about to expire. Be that as it may, this apparently was the reason why respondent no.3 was not considered for promotion on the post of Assistant Electrical Engineer on 16.7.78 and the petitioner was promoted stealing march over him on 8.8.88. It was a coincidence that the bar of three years expired a day earlier i.e. on 7.8.88. The bar having come to an end respondent no.3 became eligible for promotion on the post of Assistant Electrical Engineer. Unfortunately his case does not seem to have been considered even though his claim was allowed by this Court and, indeed, up to the Supreme Court several years ago. 16. Shri Ram Balak Mahto, learned counsel for respondent no.4, submitted and in the facts and circumstances a direction may be issued to consider the claim of all the three for promotion on the post of Assistant Electrical Engineer. He submitted that the petitioner having secured promotion on the basis of his so called placement at serial no.22 of the final gradation list which was nothing but the result of misrepresentation and fraud, he should not be allowed to reap the benefit of promotion and therefore, his case should be considered afresh. He submitted that the petitioner having secured promotion on the basis of his so called placement at serial no.22 of the final gradation list which was nothing but the result of misrepresentation and fraud, he should not be allowed to reap the benefit of promotion and therefore, his case should be considered afresh. He urged that fraud vitiates all transactions and upholding the petitioner's promotion on the ground that he has never been challenged by anyone, as submitted on behalf of the petitioner, would amount to perpetuating a wrong. 17. We are inclined to agree with Shri Mahto but only in part. It is true that had the petitioner could not have been treated at serial no 22 of the final gradation list and therefore, his case could not have been considered for promotion by the DPC on 16.7.88. Being premature and out of turn, if we may say so, what is required in the facts and circumstances, is to direct the authorities to decide the effective date of promotion of the petitioner. Though consideration may have been premature but the fact remains that he was otherwise found fit for promotion and, therefore, it would not be appropriate to direct the authorities to consider his fitness for promotion again. The question of effective date of promotion would naturally depend on the availability of vacancy. We have already held above that respondent no. 3 has to be treated as the senior most and, therefore, the first vacancy in the se category has to go to him, provided he is otherwise found fit for promotion. The petitioner being the next in seniority, he can be considered/or promotion only against second vacancy after respondent no.3. In other words, if two vacancies existed on 8.8.88 the petitioner's promotion would be effective against the second vacancy provided, of course, as indicated above, respondent no. 3 on being found fit for promotion is actually promoted against the first vacancy. Respondent no.4 can be considered for promotion only against the third vacancy. 18. In the above premises, we would direct the respondent -authorities to consider, first, the case of respondent no.3 for promotion on the post of Assistant Electrical Engineer and, thereafter, the cases of the petitioner and respondent no.4 depending on the availability of vacancy. Respondent no.4 can be considered for promotion only against the third vacancy. 18. In the above premises, we would direct the respondent -authorities to consider, first, the case of respondent no.3 for promotion on the post of Assistant Electrical Engineer and, thereafter, the cases of the petitioner and respondent no.4 depending on the availability of vacancy. It goes without saying, as already indicated above, depending on the availability of the vacancy, should occasion arise the effective date of promotion of the petitioner and respondent no. 4 may be shifted or the promotion itself may be withdrawn, if there was/is no vacancy against which they or either of them could be adjusted on the post of Assistant Electrical Engineer. 19. In the result, the writ petition is allowed in part against respondent no.4. The impugned order dated 26.7.89 altering the gradation list dated 10.1.83 is set aside and the final gradation list dated 10.1.85 is restored with modification that as between the petitioner and respondent no.3, the latter will rank senior. Respondent no.4 was already placed below in the said list. His position will remain as it was. The authorities shall consider the case of respondent no.3 for promotion and, simultaneously, decide the effective date (s) of promotion of petitioner and respondent no.4 in the light of the observations made hereinabove. The exercise should be completed preferably within three months of receipt of a copy of this order. There will be no order as to costs.