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2005 DIGILAW 39 (PAT)

Mahendra Lal Das v. State Of Bihar

2005-01-13

NARAYAN ROY

body2005
Judgment Narayan Roy, J. 1. Heard counsel for the parties. 2. The petitioner seeks direction upon the respondents to consider his case for promotion to the post of Chief Engineer (Mechanical) in Public Health Engineering Department (hereinafter referred to as PHED) notionally. 3. It is submitted by learned counsel that the petitioner was the senior most Superintending Engineer in PHED and he superannuated with effect from 31.1.2.1999 having legitimate expectation that by virtue of his seniority, he would be considered for the post of Chief Engineer (Mechanical) but some how or the other, till date the case of the petitioner has not been considered despite his representations. It is further submitted by learned counsel that admittedly the post of Chief Engineer (Mechanical) was lying vacant since 18th September, 1998 and the petitioner superannuated with effect from 31.12.1999 and in ordinary course, he could have been considered for the post aforesaid. 4. It is submitted by learned counsel for the state that the matter regarding filling of the post of Chief Engineer (Mechanical) in PHED was considered by a committee and the decision ultimately was awaited for concurrence of the Personnel Department on the question of roster clearance. 5. Mr. Verma, learned Senior Counsel submitted that since only one post of Chief Engineer (Mechanical) was the sanctioned post by the State of Bihar, no question will arise for roster if the post is to be filled up from amongst the general category candidates and since the petitioner was the senior most Superintending Engineer he was the only eligible person to be considered for the post aforesaid and even though he superannuated he is entitled for notional promotion in accordance with law. 6. Learned counsel for the state, however, with reference to Annexure 3, submitted that in one of the cases the Supreme court has taken a view that in case one post is to be filled up against the reserved category vacancy, in that case question of roster clearance would not be unconstitutional. 7. In the case at hand, the post which is said to have fallen vacant, is not the reserved post for reserved category persons rather single post of Chief Engineer (Mechanical) fell vacant to be filled up from amongst the eligible persons. In this view of the matter, no question of reservation or roster clearance would arise in the matter as 100% reservation is not permissible. 8. In this view of the matter, no question of reservation or roster clearance would arise in the matter as 100% reservation is not permissible. 8. For the reasons aforementioned, therefore, the authorities concerned are directed to consider the case of the petitioner notionally for his promotion to the post of Chief Engineer (Mechanical) PHED in accordance with law within a period of three months from the date of receipt/production of a copy of this order. 9. With the aforesaid observation/direction, this application is disposed of.