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2011 DIGILAW 305 (PAT)

Umesh Kumar Sinha v. State Of Bihar

2011-02-24

MRIDULA MISHRA

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JUDGEMENT Mridula Mishra, J. 1. Heard Counsel for the Petitioner, the State of Bihar and Counsel appearing for the State of Jharkhand. 2. Initially this writ application had been filed by the Petitioner for quashing of the order dated, 10th April, 1990 (Annexure-10), whereby the date of his appointment as Engineer Assistant has been treated as 22nd March, 1973 and date of entry in Bihar Engineering Service Class II (Assistant Engineer) has been reckoned as 17th July, 1974. Further prayer of the Petitioner was for a direction to the Respondents to consider his date of appointment as Engineer Assistant with effect from 19th March, 1971 and as Assistant Engineer in Bihar Engineering Service Class II on 22nd June, 1974 and thus for allowing him all consequential benefits considering his seniority on that basis. 3. During the pendency of the writ application Petitioners service was allocated to Jharkhand State on creation of State of Jharkhand under the Provinces of Bihar Reorganization Act. Petitioners service was finally allocated to the Water Resources Department in the State of Jharkhand. On account of this development Petitioner has filed Interlocutory Application No. 8549 of 2009 for impleading the State of Jharkhand through Secretary Water Resources Department and Joint Secretary (Management) Water Resources Department Government of Jharkhand as Respondent Nos. 4 and 5. This interlocutory application has been filed with an object that in case prayer of the Petitioner in the main writ application is allowed, this benefit he can be availed by him at Jharkhand State. Another Interlocutory Application No. 4107 of 2010 has been filed by the Petitioner, whereby an amendment has been sought for by way of making additional prayer. The additional relief prayed by the Petitioner relates to quashing of the order dated, 31st December, 1984 (Annexure-7) and the letter dated, 19th December, 1975 (Annexure-8) to the main Writ application. Both the interlocutory applications are allowed. The direction is issued for impleading the concerned Authority as Respondent Nos. 4 and 5. Additional relief prayed by the Petitioner will form part of the main writ application. 4. This is the second Writ application filed by the Petitioner for almost similar relief. Earlier he had filed CWJC No. 2583 of 1985 which was heard along with CWJC No. 2582 of 1985 and disposed off by a common judgment/order dated, 29th March, 1989. Additional relief prayed by the Petitioner will form part of the main writ application. 4. This is the second Writ application filed by the Petitioner for almost similar relief. Earlier he had filed CWJC No. 2583 of 1985 which was heard along with CWJC No. 2582 of 1985 and disposed off by a common judgment/order dated, 29th March, 1989. In that writ application prayer of the Petitioner was for a direction to the Respondent to give him proper place in the seniority list of Engineer Assistant as well as Assistant Engineer and other consequential benefits arising thereafter. The writ application was disposed off giving direction to the Respondent to re-fix Petitioners seniority inter se Respondent as Engineer Assistant and Assistant Engineer in accordance with law. As per the direction of this Court the inter se seniority of Petitioner and other Respondents were reconsidered and re-fixed. Final order was passed on 10th April, 1990, whereby the date of appointment of Petitioner as Engineer Assistant has been fixed as 22nd March, 1973 and Assistant Engineer in Bihar Engineering Service Class II as 17th July, 1974 (Annexure-4). This is the order impugned challenged by the Petitioner by filing this writ application. The main thrust of the Petitioner, for challenging the impugned order is that Respondents have fixed his date of seniority as Engineer Assistant as well as Assistant Engineer without considering the order dated, 30th January, 1974 contained in Memo No. 1444, whereby the date of appointment of Petitioner as Assistant Engineer as well as Phoolan Prasad, Rameshwar Prasad and Nand Kishore Sinha was fixed as 19th March, 1971. Subsequently the Petitioner was discriminated there being no apparent reason for the same. The date of appointment of Phoolan Prasad, Rameshwar Prasad and Nand Kishore Sinha on the post of Engineer Assistant was 19th March, 1971 but the date of appointment of the Petitioner was fixed as 22nd March, 1973. Subsequently the Petitioner was discriminated there being no apparent reason for the same. The date of appointment of Phoolan Prasad, Rameshwar Prasad and Nand Kishore Sinha on the post of Engineer Assistant was 19th March, 1971 but the date of appointment of the Petitioner was fixed as 22nd March, 1973. On account of this discrimination, further the date of entry of Petitioner in Bihar Engineering Service Class II (Assistant Engineer) was fixed for 17th July, 1974 but so far Phoolan Prasad, Rameshwar Prasad and Nand Kishore Sinha is concerned, their entry in the cadre of Assistant Engineer in Bihar Engineering Service Class II was fixed to 22nd June, 1974, due to this discrimination they have been benefited in the matters of promotion and other consequential benefits but the Petitioner was left in the matter of promotion and other consequential benefits. Different documents have been relied upon by the Petitioner, in order to show that his case is similar to the case of Phoolan Prasad, Rameshwar Prasad and Nand Kishore Sinha and there was no reason for treating them senior to the Petitioner. 5. Counter-affidavit has been filed on behalf of the Respondent No. 1. In Para 5 of the counter-affidavit it has been stated that there has been no discrimination among the Petitioner, Mr. Phoolan Prasad and Mr. Nand Kishore Sinha. Their seniority was decided strictly in accordance with the direction of the High Court. The date of appointment of other three persons on the post of Engineer Assistant was 19th March, 1971 and so far Petitioner is concerned, it was 22nd March, 1973. The reason behind fixing two different dates in case of Petitioner and other has been clarified in Para 12 of the counter-affidavit. It has been stated that in CWJC No. 2582 and 2583 of 1985 (Annexure-9) Petitioner has made a wrong statement that till date, after cancelling of his date of appointment on the post of Engineer Assistant in the year 1975, no date has been notified. In fact the Petitioner was appointed on regular basis from the open market on 22nd March, 1973 and the Petitioner was fully aware of this fact and it was found that fixation of seniority as Engineer Assistant was correct. Petitioner had also moved in MJC No. 205 of 1990 which was disposed off considering the show cause filed by the Opposite Party (Respondent). Petitioner had also moved in MJC No. 205 of 1990 which was disposed off considering the show cause filed by the Opposite Party (Respondent). Notification dated, 10th April, 1990 (Annexure 10) is the impugned order, that was also considered in the contempt application. In Para 11 of the counter-affidavit it has been clarified that the letter dated, 30th January, 1974 (Annexure-2), on which the Petitioner has placed his reliance relating to his date of appointment as Engineer Assistant as 19th March, 1971, was cancelled because the procedure for appointment to the post of Engineer Assistant had not been followed as laid down in Letter No. 259 dated, 11th August, 1970. For deciding the seniority of several such appointed Engineers some criterias were fixed. Maximum 60 points of marks were allotted to the candidates for marks obtained by the candidates and maximum 40 points were allotted for the year of passing of the candidates. Candidate who had passed examination earlier were allotted more points. They were treated to be appointed through open market. On this principle thousands of engineers were appointed and their seniority was decided. Petitioners appointment through open market as Engineer Assistant, was on 22nd March, 1973 as such nothing was wrong if the date of Petitioners appointment as Engineer Assistant was not considered as 19th March, 1971 like Phoolan Prasad and Nand Kishore Sinha and others. Statements made in Paragraphs 11 and 12 of the counter-affidavit have not been clearly controverted by the Petitioner in his reply to the counter-affidavit. It has also been stated in the counter-affidavit that in the earlier writ application there was clear direction that for deciding seniority the date of entry in Bihar Engineering Service Class II will be the relevant date. Petitioner being below the name of Phoolan Prasad and others, in the tentative seniority list of Engineer Assistant, his date of entry in Bihar Engineering Service Class II (Assistant Engineer) could not have been 22nd June, 1974 similar to Phoolan Prasad and others. Petitioners date of entry in Bihar Engineering Service Class II (Assistant Engineer) has rightly been fixed on 17th July, 1974. 6. On consideration of these facts I do not find that the Petitioner has been able to make out a case of discrimination on account of passing of the impugned order contained in Annexure-10 by the Respondents. Petitioners date of entry in Bihar Engineering Service Class II (Assistant Engineer) has rightly been fixed on 17th July, 1974. 6. On consideration of these facts I do not find that the Petitioner has been able to make out a case of discrimination on account of passing of the impugned order contained in Annexure-10 by the Respondents. Petitioners case had properly been considered by the Respondents as per direction of this Court and rightly his date of entry in Bihar Engineering Service Class II (Assistant Engineer) was fixed and accordingly placed in the seniority list. I do not find any reason to interfere with the impugned order. 7. This application is dismissed.