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2005 DIGILAW 958 (PAT)

Satya Narayan v. State Of Bihar

2005-10-26

R.M.PRASAD

body2005
Judgment R.M.Prasad, J. 1. In this writ petition, the petitioner is aggrieved by order dated 22.11.2004 (Annexure 5), whereby Devi Rajak (respondent No. 4), though being junior to him, has been authorised to work as Engineer-in-Chief (North), Water Resources Department in addition to his own duties of Superintending Engineer and Chief Engineer and by amendment, vide I.A. No. 4068 of 2005, he is also aggrieved by the order, contained in Memo No. 1688 dated 3.5.2005 (Annexure 12), whereby the newly added respondent No. 5 Abid Hussain Quraishi though being junior to him, has been authorized to work as Engineer-in-chief (Central) in addition to his own duties of Chief Engineer, Water Resources Department, Muzaffarpur, besides aggrieved by Notification No. 1401 dated 13.4.2005 (Annexure 19 to I.A. No. 4401 of 2005), posting some of the Superintending Engineers, including respondent No. 4, as Chief Engineer, Research and Training, Khagaul, Patna and respondent No. 5 as Chief Engineer, Muzaffarpur on additional charge. 2. In short, the relevant facts are that the petitioner, who is senior most and a Scheduled Tribe Candidate, was initially appointed as Junior Engineer (Civil) in Water Resources Department on 7.12.1972 and on promotion from time to time was lastly promoted as Superintending Engineer (Civil) on 30.12.1995. Undisputedly, the petitioner is senior to respondents No. 4 and 5 and thus he was allowed to take over additional charge of Chief Engineer, Water Resources Department, Siwan, vide Order No. 835 dated 17.2.2004 (Annexure 2) pending regular promotion. Respondent No. 4 was also allowed to hold additional charge of Chief Engineer, Valmikinagar, vide same order (Annexure 2). On 4.5.2004, D.P.C. vide Annexure 3 recommended for promotion as Chief Engineer in which the petitioner was found fit and name of respondent No. 4 did not figure as he was beyond the zone of consideration. In course of division of cadre between newly created State of Jharkhand and Bihar, the petitioner remained in the State of Bihar and he claims to be the seniormost and only. S.T. candidate. By order dated 22.11.2004 (Annexure 5) respondent No. 4, who is junior to the petitioner, was allowed to function as Engineer-in-chief and act as his Controlling officer. In course of division of cadre between newly created State of Jharkhand and Bihar, the petitioner remained in the State of Bihar and he claims to be the seniormost and only. S.T. candidate. By order dated 22.11.2004 (Annexure 5) respondent No. 4, who is junior to the petitioner, was allowed to function as Engineer-in-chief and act as his Controlling officer. The State Government, vide circular, contained in letter No. 1082 dated 22.2.1988 (Annexure 7), laid down uniform criteria to be followed in making such posting on higher post and decided that even at the time of working arrangement pending regular promotion seniority-cum-suitability and reservation policy must be followed, which was also approved by the Division Bench of this Court in its order dated 20.10.1997 passed in M.J.C. No. 523 of 1996 and M.J.C. No. 1235 of 1995 (Annexure 8). 3. The petitioner challenged the validity of posting of respondent No. 4, as Engineer-in-chief, vide Annexure 5, as he was posted over him. However, during the pendency of the writ application, another junior person, namely, respondent No. 5 was given additional charge of the higher post of Engineer-in-Chief (Central) and the petitioner on transfer was posted under him, the validity of which has been challenged in I.A. No. 4068 of 2005, which was allowed, vide order dated 5.9,2005. By I.A. No. 4401 of 2005, the petitioner has sought for to bring on record the notification, contained in Annexure 19, and prayed for its interim stay, which was also allowed vide order dated 5.9.2005. 4. Mr. Rajendra Prasad Singh, learned Senior Counsel appearing for respondent No. 4 raised preliminary objection regarding the maintainability of the writ petition at the instance of this petitioner as, according to him, he does not possess the requisite qualification for the post of Engineer-in-Chief. According to him, only degree-holders are eligible for the. said post and the petitioner, who is just a diploma-holder, is not even eligible for consideration of his case for posting on the post of Engineer-in-chief. In support of this, he has placed reliance upon the Government resolution dated 23.9.1986, contained in Annexure A to the counter affidavit filed on behalf of the State officials (respondents No. 2 and 3) and Annexure D to. the supplementary counter affidavit filed on behalf of the said respondents. 5. Mr. In support of this, he has placed reliance upon the Government resolution dated 23.9.1986, contained in Annexure A to the counter affidavit filed on behalf of the State officials (respondents No. 2 and 3) and Annexure D to. the supplementary counter affidavit filed on behalf of the said respondents. 5. Mr. Kanth, learned senior counsel appearing for respondent No. 5 in support of the said preliminary objection relied upon the Government resolution dated 4.4.2005, contained in Annexure C to the counter affidavit filed on behalf of respondents No. 2 and 3, which, according to him, specifically provides that the promotion on the highest post of Engineer-in-chief in Engineering Service Class I of the works Department should not be given to diploma-holder Engineers merely on the basis of seniority rather it should be given on the basis of merit-cum-seniority from among the degree-holder Engineers. 6. On the other hand, Mr. Narendra Prasad, learned senior counsel appearing for the petitioner submitted that the said qualification is only for direct recruits and not for promotees. He submitted that Part B of Bihar Public Works Department Code, Volume I deals with classification of the Public Works Department and its paragraph 4 deals with the establishment of the Public Works Department, which is divided in (1) the Bihar Engineering Service, Class I (2) The Bihar Engineering Service, Class II, (3) The Bihar Subordinate Engineering Service, (4) Revenue Establishment, (5) Office Establishment and (6) Petty Establishment. Part C" deals with recruitment of Officers for the Public Works Department and according to paragraph 5, rules framed by Government for regulating the recruitment of officers to the Bihar Engineering Service, Classes I and II, and also the conditions of service are contained in Appendix 1. Paragraph 6 prescribes the scales of pay of Class I and Class-II. Paragraph 7 deals with the Bihar Subordinate Engineering Service, which initially contained Computer, Head Estimator, Estimators and Overseers as Class of service and designation of post. Paragraph 8 provides that rules regarding appointment, promotion, etc. applicable to the Bihar Subordinate Engineering Service are contained in Appendix II. Paragraph 6 prescribes the scales of pay of Class I and Class-II. Paragraph 7 deals with the Bihar Subordinate Engineering Service, which initially contained Computer, Head Estimator, Estimators and Overseers as Class of service and designation of post. Paragraph 8 provides that rules regarding appointment, promotion, etc. applicable to the Bihar Subordinate Engineering Service are contained in Appendix II. According to him, paragraph 1 of Appendix II contained the method of appointment of Bihar Subordinate Engineering Service, paragraph 2 of Appendix II prescribes the qualifications for appointment and according to the said provision, a certificate or diploma in the Subordinate Engineering in the respective branches of engineering from any institution recognised by the State Government for this purpose is the minimum technical qualifications required. Paragraph 6 of Appendix II deals with the withholding of any increment, the passing of the efficiency bar and promotion to post carrying higher scale of pay in the cadre, which requires the approval and order of the Chief Engineer. The rule relating to Recruitment and the Conditions of Service, Pay, Allowances and Pension of the Bihar Engineering Service, Classes I and II for P.W.D. (B and R) and Irrigation Department (now Water Resources Department), which is a provincial service constituted for the purpose of gradually replacing the Indian Service of Engineers is contained in Appendix I of Bihar P.W.D. Code, Volume II and Rule 4 relating to Class II lays down criteria/classification for direct recruitment to Class II and its Sub-clause (d) prescribes the qualification required for the said purpose. Sub-clause (i) of Clause (d) prescribes that a candidate must hold a degree in Civil Engineering from an India University or a diploma in Civil Engineering from an Indian Engineering College; or, according to Sub-clause (ii), a candidate must be an Associate Member of the Institution of Engineers, India, or have passed sections A and B of the Associate Membership Examination of the Institution of Engineers (India) or possess any other educational qualifications recognized by the Institution of Engineers (India) as being equivalent to a pass in Sections A and B of the Associate Membership Examination; or (iii) he holds a University degree or a diploma from a Civil Engineering College in the United Kingdom or be an Associate Member of the Institution of Civil Engineers. Persons who hold posts in Government Service in a temporary or officiating capacity or on probation are eligible to apply for direct appointment, subject to the provisions of the Rules. Persons who have been confirmed in Government Service are not so eligible except that (i) members of the Subordinate Engineering Service and (ii) members of other services, possessing qualifications specified in Clause (d), are eligible for appointment by promotion or by transfer in accordance with the procedure laid down in Part III of the said Rule, which deals with promotion of Officers already in Government Service. Similarly, Part III of the Rule relating to Bihar Engineering Service Class I lays down sources of recruitment to the service, namely, (i) by direct recruitment, and (ii) by promotion from the Bihar Engineering Service, Class II, and also lays down the quota for filling up the post by promotion. Rule 5 vests power in the Governor to decide the number of vacancies to be filled by direct recruitment or by promotion and Part IV deals with qualifications and Rule 8 which deals with technical qualifications is also part of Part IV. Procedure for Direct Recruitment is provided in Rules 9 to 16 of Part V of the said Rules whereas promotion of officers already in Government Service is provided in Rules 17 and 18. 7. Learned counsel for the petitioner submitted that the rule relating to promotion to BES Class I Service has undergone several amendments and on 27.2.1969, vide Annexure 15 at, ah attempt was made to create a ban to the extent that no person shall be appointed or promoted to BES Class I service unless he holds a degree, which was amended on 9.12.1971, vide Annexure 16 at and promotion up to the post of Executive Engineer, the basic grade of BES Class I, became available to the Subordinate Engineering Service Cadre, Then came the amendment dated 2.12.1987 (Annexure 17) under the provision to Art. 309 of the Constitution of India, which restored Rule 8 of 1939 Rules for direct recruitment. Therefore, according to him, from the narration of facts, right from 1939 to 1969 and again from 1971 till date, the promotion in BES Class I service was made from among the Diploma-holders and they continued to hold the higher posts of Superintending Engineer, Chief Engineer and even further higher posts in the BES Class I cadre. Therefore, according to him, from the narration of facts, right from 1939 to 1969 and again from 1971 till date, the promotion in BES Class I service was made from among the Diploma-holders and they continued to hold the higher posts of Superintending Engineer, Chief Engineer and even further higher posts in the BES Class I cadre. In this regard, he referred to paragraphs 6, 9, 13, 21 and 22 of the counter affidavit filed by the respondent-State of Bihar in CWJC No. 4600 of 1987 (Annexure 19-21 at 157). Thus, according to him, the rule as it was in 1939 remains intact and Annexures A, D and C, of the counter affidavit are not relevant for promotion upto BES Class I from Bihar Subordinate Engineering Service. 8. According to Mr. Prasad, as per paragraph 2 of Appendix II, a certificate or diploma in Subordinate Engineering in the respective branches of Engineering from any institution recognised by the State Government for the purpose of recruitment to Bihar Subordinate Engineering Service cadre is required as the minimum technical qualifications. The petitioner holds diploma in respective branches of Engineering, which is the minimum technical qualification required. He thus submitted that the petitioner originally being a member of Subordinate Engineering Service Cadre with requisite qualification, has the requisite qualification and is eligible for promotion to BES Class II as well as BES Class I, Learned counsel submitted that obviously considering the requisite qualification, the petitioner was given promotion upto the rank of Superintending Engineer in the Bihar Engineering Service Class I and was also posted to hold the charge of the post of Chief Engineer, vide Annexure 2. 9. Learned counsel for the petitioner submitted that, in fact, by the argument, which is being sought to be advanced by the respondents, their attempt is to question the validity of the entry of the petitioner in BES Class I long back which on the face of it is unfounded and not tenable, Besides that they cannot be permitted to now question the validity of entry of the petitioner in BES class I that too as respondent in the present writ petition. In this regard, he referred to the decision of the Supreme Court in the case of State of Assam V/s. Raghava Rajgopalachari Reported in 1972 SLR 44. In this regard, he referred to the decision of the Supreme Court in the case of State of Assam V/s. Raghava Rajgopalachari Reported in 1972 SLR 44. He contended that the Supreme Court in the case of B.N. Sexena V/s. New Delhi Municipal Committee reported in , has categorically held that all those persons who have gained sufficient experience as Senior and Junior Draftsman, without possessing any qualification are also eligible as experience gained for sufficiently long period is itself a qualification. This view is also supported by the decision of the Supreme Court in the case of State of U.P. V/s. J.P. Chaurasia reported in . He thus contended that from the rules there cannot be any doubt that the petitioner is eligible for recruitment by promotion in BES Class I service and even otherwise the experience gained for almost 17 years in BES Class I Service is itself sufficient qualification for the post of Engineer-in-Chief as is also admitted by the State Government in paragraphs 21 and 22 of the Counter affidavit filed in CWJC No. 4600 of 1987 (Annexure 19/21 at 157). 10. Learned counsel for the State submitted that there is no dispute that the petitioner is senior to other private respondents. Further, with reference to paragraph 6 of the supplementary counter affidavit, he submitted that before 15.5.2005, the post of Engineer-in-chief was an ex-cadre post. So, Bihar Engineering Service Class-I Rules was not applicable for the said post. Therefore, the Government took a decision that degree in Engineering should be the technical eligibility for the post of Engineer-in-chief, vide Annexure C to the earlier counter affidavit. He submitted that Annexure C is not contrary to Rule 8. However, he with reference to paragraph 7 of the supplementary counter affidavit fairly submitted that after issuance of order No. 1/B-12/2003-2676 (S) dated 15.5.2005, the post of Engineer-in-chief has been included in the cadre post, vide Government resolution, contained in Annexure E. In support of this, he referred to the printed Appendix of Resolution of Road Construction Department, Government of Bihar, vide Nemo No. 2676 (S) we dated 15.5.2005 from booklet titled as "REVISION OF BIHAR PUBLIC WORKS DEPARTMENT CODE VOLUME-1 (AMENDED, DELETED AND INSERTED RULES ONLY)". 11. Mr. 11. Mr. Singh, learned senior counsel appearing for respondent No. 4 has fairly submitted that he is not questioning the validity of entry of the petitioner in BES Class I. He also admitted that petitioner is senior to the respondents No. 4 and 5 in BES Class 1 but, however, has strongly objected to the stand taken on behalf of the State. According to him, the stand taken in paragraphs 6 and 7 of the supplementary counter affidavit of the State is not correct and the post of Engineer-in-Chief is still an ex-cadre post as there is no amendment in Rule 3 of BES Class I, which describes Strength of Cadre and is shown only upto Chief Engineer. He submitted that in so far as Class II posts are concerned, it provides for two types, namely, the degree-holder as well as diploma-holder. The employer has every right to prescribe the qualification for a particular post and in the present case, the employer namely, the State has prescribed the qualification for the post of Engineer-in-chief as degree-holder, vide, Annexure C to the counter affidavit filed on behalf of respondents No. 2 and 3. Thus, according to him, the petitioner does not possess requisite qualification and not eligible even for consideration of his case for the post of Engineer-in-chief. Mr. Singh submitted that no writ can be maintained by a person who does not hold the qualification for the said post as has been settled by the Supreme Court in the case of Shivendra Bahadur V/s. Nalanda College. 12. Thus, the only question, which falls for consideration is as to whether the petitioner possesses the requisite qualification and is eligible for consideration of his case for posting/promotion to the post of Engineer-in-chief in the absence of degree in Engineering from the recognised institution, upon which learned counsel for the parties have advanced arguments on merit itself, though in the from of preliminary objection. 13. I find it difficult to accept the submission of Mr. Singh, learned Senior Counsel appearing for respondent No. 4 and Mr. Kanth, learned senior counsel who appeared for respondent No. 5 that the petitioner does not possess the requisite qualification and is not eligible for consideration of his case for posting/promotion on the post of Engineer-in-chief. I do not find any substance in the submission of Mr. Singh, learned Senior Counsel appearing for respondent No. 4 and Mr. Kanth, learned senior counsel who appeared for respondent No. 5 that the petitioner does not possess the requisite qualification and is not eligible for consideration of his case for posting/promotion on the post of Engineer-in-chief. I do not find any substance in the submission of Mr. Singh that the post of Engineer-in-chief is still an ex-cadre post as there is no amendment of Rule 3 of the BES Class I, which describes the strength of Cadre. There cannot be any doubt that before 15.5.2005, the post of Engineer-in-chief was an ex-cadre post as neither the learned counsel for the petitioner nor the learned counsel for the private respondents has referred to any such Government decision amending Rule 3 of the rules relating to Bihar Engineering Service Class I, which describes the Strength of Cadre. Clause (a) of Rule empowers the Governor to increase or decrease the cadre by creating permanent or temporary posts from time to time as may be found necessary. 14. In the case of N. Amanullah V/s. State of Bihar reported in 1984 PLJR 863, the Division Bench of this Court held that the Governor only can increase the cadre by creating permanent or temporary posts from time to time and unless a formal decision is taken by the State Government to include the post of Engineer-in-Chief in the cadre, the post is an ex-cadre post and the Government, in such circumstances, cannot treat the post as cadre post. But the State Government after issuance of Order No. 1/B-12/2003-2676 (S) dated 15.5.2005, included the post of Engineer-in-chief in the cadre post of BES Class I, vide Annexure E, as has been claimed by the respondent State in paragraph 7 of the supplementary counter affidavit filed on their behalf. 15. It is true that before inclusion of the post of Engineer-in-Chief in the cadre of BES Class I, various amendments were made from time to time with respect to requisite qualification for the post in BES Class I and admittedly, the petitioner got his promotion as Executive Engineer (Civil) on 30.12.1988 and as Superintending Engineer (Civil) on 30.12.1995 in BES Class I. The validity of the said promotions of the petitioner was never challenged and Mr. Singh, learned Senior Counsel for respondent No. 4 has rightly submitted that he is not questioning the validity of entry of the petitioner in BES Class I as obviously the respondent cannot raise such question in the present writ petition in view of the decision of the Supreme Court in the case of State of Assam V/s. Raghava Rajgopalachari (supra), apart from the same being belated one. 16. According to the stand of the State in paragraph 6 of the Supplementary counter affidavit itself, the Bihar Engineering Service Class I Rules was not applicable for the post of Engineer-in-chief till before 15.5.2005 when it was an ex- cadre post and, therefore, the Government, vide Annexure C, took a decision that the degree in Engineering should be technical eligibility for the post of Engineer-in-chief. But after inclusion of the post of Engineer-in-chief in the cadre, the respondents cannot deny consideration of the case of the petitioner for posting/promotion as Engineer-in-chief merely on the ground of technical eligibility prescribed in Annexure C as, according to the stand of the State in paragraph 8 of the supplementary counter affidavit itself, after 15.5.2005 the rules are applicable to the post of Engineer-in-chief also. 17. I fail to appreciate as to how the State has taken the plea in the supplementary counter affidavit that the petitioner is not eligible even for the post of Executive Engineer and so his claim for the post of Engineer-in-chief is not tenable. The State has attempted to distinguish the claim of the petitioner, who is diploma-holder from those who are degree-holder and are currently officiating as Engineer-in-chief. Once the post of Engineer-in-chief became cadre post and obviously is being sought to be filled up by promotion, the cases of all those who are in BES Class-I have to be considered on the basis of seniority and merit in the absence of any rule specifically prescribing a separate requisite qualification for the post of Engineer-in-chief in the rules. The only objection of the State/ respondents is that the petitioner is not a degree-holder and not that he does not possess the requisite diploma. 18. Part III of the rules relating to the Bihar Engineering Service Class I contained in Appendix of the Bihar P.W.D. Code, Volume II provides for Sources of recruitment to the Service (i) by direct recruitment, and (ii) by promotion from the Bihar Engineering Service Class II. 18. Part III of the rules relating to the Bihar Engineering Service Class I contained in Appendix of the Bihar P.W.D. Code, Volume II provides for Sources of recruitment to the Service (i) by direct recruitment, and (ii) by promotion from the Bihar Engineering Service Class II. The Governor has been empowered to decide the number of vacancies to be filled by direct recruitment and by promotion whenever vacancies occur. 19. In the rules to regulate the method of recruitment in BES Class I for Public Works Department (B and R) and Irritation Department (now Water Resources Department), the recruitment to the service is to be made by direct recruitment in accordance with the rules contained in Part II and by promotion in accordance with Part III of the said Rules. In the said rules no qualification is prescribed for promotion. Similar is the rule for recruitment, including by promotion to BES Class II. The rule regarding appointment, promotion etc., applicable to the Bihar Subordinate Engineering Service is contained in Appendix II. The qualification required for appointment in Bihar Subordinate Engineering Service is prescribed in paragraph 2 of Appendix II, which provides that a certificate or diploma in the Subordinate Engineering in the respective branches of Engineering from any institution recognised by the State Government for this purpose is the minimum technical qualification required. 20. The petitioner holds diploma in respective branches of Engineering, which is the minimum technical qualification required for appointment in Subordinate Engineering Service. Thus, the petitioner, originally being a member of Subordinate Engineering Service having requisite qualification and promoted to BES Class II and also to BES Class I, cannot be discriminated in the matter of promotion on the cadre post of Engineer-in-Chief in the absence of the rule prescribing separate qualification for the said post. 21. The Supreme Court in the case of B.N. Saxena V/s. New Delhi Municipal Committee (supra), has approved the recognition of experience gained for a considerable length of time which, according to the Apex Court, is itself a qualification. 21. The Supreme Court in the case of B.N. Saxena V/s. New Delhi Municipal Committee (supra), has approved the recognition of experience gained for a considerable length of time which, according to the Apex Court, is itself a qualification. In the present case, the experience gained for almost 17 years in BES Class I, in my opinion, itself is sufficient qualification for promotion to the post of Engineer-in-chief, which has also been appreciated and accepted by the State Government as is evident from their stand in paragraphs 21 and 22 of the counter affidavit filed in CWJC No. 4600 of 1987 (Annexure 21). In fact, in paragraph 22 of the said counter affidavit it is stated that there is no mandatory provision that the diploma holders granted by the State Board of Technical Education will have to appear in Sections A and B examination. If any person wants to raise his qualification from diploma standard to that of the standard of degree, he may suo motu appear at the examinations and in such case, the person gets the benefit to the extent that he may straightaway apply for direct recruitment to the post of Bihar Engineering Service Class I or wait for his turn for promotion from lower post, which facility is not available for promotion from Subordinate Engineering Service. According to the State, it would only mean that he would not wait for his turn of promotion according to seniority but gets a direct channel of promotion in view of acquiring of higher qualification and that does not mean that who have not passed Sections A and B Examination from the Institute of Engineers will not be promoted to the higher post in BES Class II and BES Class I. 22. In any view of the matter, once the petitioner by virtue of promotion has entered into BES Class I, the State cannot deny consideration of his case for promotion to the highest post in the cadre of BES Class I in the absence of specific rule debarring him from being considered for promotion to such post and accordingly as per the Government circular, contained in Annexure 7, even for working arrangements/postings pending regular promotion, the same principle is to be followed. 23. 23. In the result, the writ application is allowed and the official-respondents are directed to reconsider the case of the petitioner vis-a-vis others, including respondents No. 4 and 5, for their postings on the highest post of Engineer-in-chief in Bihar Engineering Service Class I by following the Government decision, contained in letter No. 1082 dated 22.2.1988, (Annexure 7) afresh within four weeks of the receipt/production of a copy of this judgment/order and for their promotion also accordingly. However, in the facts and circumstances, there shall be no order as to costs.