AI Structured Summary
Not yet generated for this judgment
Judgment
Radha Mohan Prasad, J.—In the M.J.C. application, prayer is to initiate contempt proceeding against the Opposite parties, namely,
Managing Director of Bihar State Agriculture Marketing Board (hereinafter referred to as ''the Board'') for alleged wilful violation of the order
dated 24.10.2000 passed in the connected CWJC No. 317 of 2000, contained in Annexure-1.
Two of the petitioners of the said M.J.C. application, namely, Ram Surat Singh (Petitioner No. 4) and . Sudama Sharma (Petitioner No. 5) have
filed aforementioned writ petition seeking direction to the Respondents to consider their case for promotion to the post of Assistant Engineer in the
Board and grant the same with effect from the due date (1994) as directed by this Court in the aforesaid CWJC No. 317 of 2000, against the
available quota of 50% required to be filled up by promotion from amongst Junior Engineers. In view of the fact that writ case referred to above
was pending for interpretation of the regulation relating to promotional quota, this Court vide order dated 17.12.2003, passed in the M.J.C. case
directed for hearing of the M.J.C. application along with the said writ case and under the orders of Hon''ble the Chief Justice both the matters have
been listed before this Bench for hearing/disposal.
Petitioners are Junior Engineers in the service of the Respondent-Board and are placed at a quite high position in the gradation list. According to
their case, Annexure-2, which is the Bihar State Agriculture Marketing Board (Service, Recruitment, Promotion and Cadre) Rules, provides for
mode of appointment and its clause C which deals with class II posts provides that 50% of all these posts will be filled up by promotion and 50%
by direct recruitment. According to them, the avenue of promotion of Junior Engineer is Assistant Engineer, which is Class II post and, thus,
according to the petitioners, 50% of the vacancy in the post of Assistant Engineer have to be filled up by promotion. It is contended that petitioners
are entitled for promotion against the vacancies available since 1994. In fact, according to them, steps were also initiated in 1995 itself and in the
meanwhile, they were allowed to discharge the function of Assistant Engineer on incharge basis, but, when the matter regarding their promotion
came to this Court in CWJC No. 12260 of 2001 and subsequently, in CWJC No. 13590 of 2001, the Respondents got the matter disposed of on
both the occasions by mis-leading this Court that the matter is still under consideration and final order is yet to be passed. However, now their
claim have been mala fide rejected by order dated 16.11.2002/ 27.11.2002 (Annexure-10) wherein the Respondents have held that Junior
Engineers are entitled for 38% quota only in the grade of Assistant Engineer, which is in violation of Regulation 2 (c) of the Regulation, contained in
Annexure-2, and arbitrary.
Initially, the Board also relied upon the Regulation (Annexure-2) and contended that for the purpose of efficient management, recruitment and
promotion, the Board constituted mainly five cadres i.e. (A) Marketing, (B) Office, (C) Engineering, (D) Architecture and Planner, (E) Accounts
Section and according to them under the heading ''Engineering'' the qualification and mode of promotion is to be same as approved for
appointment in the Public Works Department of the State Government."" In the counter-affidavit it is contended that in every category/cadre for
filling class II posts percentage of quota for promotion has been spelt out and while dealing category (C) and (D) / cadre it has been indicated that
mode of promotion shall be the same as approved for appointment in corresponding department of the State Government. According to the
Board, the expression ''mode of promotion'' has not been defined in the Regulation, and, therefore, it has been understood according to Webster''s
dictionary ''mode'' means measure, manner and mode of promotion, therefore, in the present context means measure of promotion i.e. extent of
promotion. It is stated that for promotion to Class II post unlike in the State Government, where appointment in Class II post are through the
process of Public Service Commission, there is specific provision that promotion or recruitment to Class II posts would be through the Committee
headed by the Chief Secretary and in this view of the matter also mode of promotion means the measure of promotion i.e. extent of quota of
promotion and years of service in next lower grade. In paragraph 9, it is stated that promotion matter was considered by the said Appointment
Sub-Committee headed by the Chief Secretary which held that extent of promotion is 35% only in the post of the Assistant Engineer and as per
regulation the recommendation/decision of the Appointment Sub-Committee is binding on the Board of Directors in the matter of promotion and in
terms of decision of the said Sub-Committee the Board has already given promotion to the extent of 35% and it is unkind on the part of the
petitioners to attribute motives. According to the Respondents, the decision has been taken in most bona fide manner in public interest.
In the writ petition bearing CWJC No. 317 of 2000 a grievance was raised by the petitioners that the Board absorbed Mr. Pankaj Kumar, a
daily wager working as Junior Engineer against the post of Assistant Engineer, whereas the claim of the petitioners, who were in regular service as
Junior Engineer since much before the said Pankaj Kumar has been arbitrarily ignored. In paragraph 11 of the counter-affidavit, it is stated that the
petitioners mala fide joined the case of Pankaj Kumar Singh, who, in fact, was appointed as direct recruit. However, this Court without going into
the said grievance, vide order dated 24.10.2000 (Annexure-1, to the M. J.C. application), disposed of the writ petition with a direction to the
Board and its Managing Director to consider their cases for promotion on the post of Assistant Engineer with effect from the due date with all
consequential benefits in accordance with law and dispose it of by a reasoned order within three months of the receipt/production of a copy of the
said order. However, when no decision was taken, the present M.J.C. No. 503 of 2001, was filed for initiating contempt. The Court also took
notice of the submission that in the case of Panchu Ram v. Bihar State Agriculture Marketing Board, (CWJC No. 524/1987) disposed of on 25th
April, 1997, the Court held that the respondent-Board is a statutory body and competent under the Act for taking decision for
appointment/promotion, fixing terms and conditions of service or for creation of cadre and there is no need of approval of the Government under
the provisions of the Act, which, learned counsel for the Board was not able to resist.
After several adjournments granted in the M.J.C., it appears that the said direction of this Court was not complied within the stipulated time and,
thus, vide order dated 11.12.2003, this Court initiated contempt proceeding against the Managing Directors of the Board (Opposite party Nos. 2,
3 and 4) and directed them to personally appear and file their show cause on 15.12.2003. However, in the supplementary show cause filed by the
Managing Director on 16.12.2003 while reiterating unqualified apology, brought on record photostat copy of the resolution dated 15.12.2003 of
the Board (Annexure-D) purported to have been passed in compliance of the order of this Court in CWJC, No. 317 of 2000. In the said
resolution, it is reiterated that the case of Pankaj Kumar Singh was not the case of promotion and was different from the claim of the petitioners.
Further, they after noticing that under Regulation 7 (c) there is provision that the Rules applicable in the case of Engineers of Road Construction
department of Government of Bihar shall be enforced and that the Managing Director apprised them that there is total 33 posts of Assistant
Engineer (Civil) created in the Board, decided that as against 33 posts following the quota of 35% for promotion applicable in Road Construction
Department 12 posts may be filled up by promotion. Further, having noticed that out of this 3 posts are reserved and remaining 9 are unreserved,
and, further, that as against 9 posts, 7 were already filled up since before resolved to confirm the appointment of two persons, namely, S/Shri
Kameshwar Mahto and Suresh Prasad Singh against the remaining two posts on the basis of recommendation of the Sub-Committee in the order
of seniority and rejected the case of the remaining four petitioners for want of vacancy. In paragraph 6 of the counter-affidavit, it is stated that the
question, therefore, arises whether the general provision of 50% as claimed by the writ petitioners would prevail over the special provision of going
by mode of promotion in the Public Works Department of the State Government and contended that law is well settled in the maximum ""generalia
specialibus non-derogant"" meaning that special provision would prevail over the general provision.
However, Mr. Ojha, learned Senior Counsel appearing for the Respondent-Board contended that the regulation contained in Annexure-2, was
never approved by the State Government, and, as such, it is not in force. He contended that it is true that Annexure-2, has been followed, but, not
as law or regulation. According to him, Bihar State Agriculture Marketing Board Employees Service Regulation, 1978, which has approval of the
State Government and enforced from 1st October, 1978 is the regulation, which governs the case of the petitioners. He submitted that Regulations
55 and 56 of 1978. Regulation provides mode for promotion and under Regulation 56, the promotion is to be made by the Board on the
recommendation of the Sub-Committee constituted by the Board. He contended that all promotions under the said regulation are to be done on
the basis of efficiency and merit-cum-seniority. As such, according to him, the Sub-Committee headed by Chief Secretary vide Annexure-B,
decided to adopt the mode and quota being followed for such promotion in the Road Construction Department of the State Government, which
provides for 35% promotional quota and, thus, according to him, there is no illegality or arbitrariness as alleged by the petitioners. According to
him, the decision has been taken in most bona fide manner in public interest.
On the other hand, learned counsel for the petitioners contended that it is not in dispute that Recruitment Regulation, contained in Annexure-2
has been framed by the Board and, according to the decision of this Court in the Case of Panchu Ram v. Bihar State Agriculture Marketing Board
and Ors., CWJC No. 525 of 1987, the Respondent-Board is a statutory body and has power to make appointment and to take disciplinary action
against its employees. In the said decision this Court also held that ""there is nothing to show that the Board is required to obtain approval from the
State Government for appointment/promotion, fixing terms and conditions of service for constituting cadre of officers and other servants employed
by it,"" and further that ""there is no provision under the Act, or Rules, for obtaining approval from the State Government for appointment/ promotion
or fixing terms and conditions of service."" The Court held that""......... the Respondent-Board is a statutory body and competent under the Act for
taking decision for appointment/promotion, fixing terms and conditions of service or for creation of cadre and there is no need of approval of the
Government under the provisions of the Act."" Judgment of learned Single Judge in CWJC No. 524 of 1987, stands affirmed by the order of the
Division Bench by disposal of L.P.A. No. 763 of 1997, which on hearing of parties and on the prayer made on behalf of the Board after some
argument was permitted to be withdrawn vide order dated 21.1.1998. Learned counsel contended that the said decision was relied upon on behalf
of the petitioners in GWJC No. 317 of 2000, in which learned counsel for the Respondent-Board was not able to resist that there is none except
the Respondent-Board which is statutory body and competent to take decision for appointment/promotion. This Court considering the above
directed the Managing Director to consider the case of the petitioners for promotion to the post of Assistant Engineer with effect from the due date
with all consequential benefits in accordance with law, but, the Managing Director failed to comply the said direction by mis-representing the facts
before the Board and mis-interpreting Clause C, of the Regulation framed by the Board, contained in Annexure-2. Learned counsel also
contended that, in fact, the Division Bench in the case of Sanjeev Kr. Bimal and Ors. v. Bihar State Agriculture Produce Marketing Board,
(CWJC No. 2035 of 1989 (R) disposed of on 9.3.1990 held that the State Government has nothing to do with the appointment of employees and
no permission from the State Government is required to be taken for making appointment which also stands affirmed by the dismissal of SLP
bearing SLP (Civil) No. 1 of 1990 dismissed on 30.12.1990 by the Apex Court. He, thus, contended that, in fact, the Managing Director has
committed gross contempt by not placing the aforementioned facts and, rather, misrepresenting the facts before the Board which resulted in
arbitrary rejection of the claim of the petitioners for consideration of their case as against the quota of 50% meant for promotion in the rank of
Assistant Engineer by the Board by the resolution, contained in Annexure-D.
I find substance in the submission of the learned counsel for the petitioners. In fact, the action of the Managing Director in the present case has
not been fair and he, rather acted in gross violation of the decisions/orders of this Court by not correctly presenting the facts before the Board as is
evident from agenda No. 5, photostat copy of which has been produced by the learned counsel for the Respondent-Board and is kept on the
record. In the said agenda it is mentioned that a meeting of the Sub-Committee constituted for the purpose of appointment/ promotion pursuant to
the Board''s letter No. 2519 dated 15.6.2001 and 81 (go) dated 21.6.2001, was called and meeting of Promotion Sub-Committee took place on
29.6.2001 and 21.6.2001. It is stated that in the said meeting after considering the cases for promotion in the light of the relevant rules and
directions names of two Junior Engineers, namely, S/Shri Kameshwar Mahto and Suresh Prasad Singh have been recommended and in the light of
the direction of this Court in CWJC, No. 317 of 2000, in which time was fixed, order of promotion of the said two Junior Engineers, have been
issued in anticipation of approval of the Board. Accordingly, post facto approval has been sought for and on that the Board took the
aforementioned decision, contained in Annexure-D. It was the duty of the Managing Director to refer to the Regulation framed by the Board,
contained in Annexure-2, and the earlier decision of this Court by virtue of which the said Regulation attained finality, but, he suppressed the said
facts and just referred to Regulation 58 of ''1978 Regulation'' and the decision of the Sub-Committee. From perusal of the decision of the Sub-
Committee, a photostat copy whereof has been produced by the learned counsel of the Board and is kept on the record of this case, shows that
the facts before the Sub-Committee, was not placed properly. The Sub-Committee, nowever, considering that under the Recruitment Regulation
of the Board for Engineering cadre the provisions relating to eligibility, age and promotion applicable in Public Works Department of the State
Government is enforced and, accordingly, relied upon the circular of the Public Works Department letter No. 2549 dated 24.5.1990, which
provides for promotion of the Junior Engineers on the basis of seniority-cum-merit against 35% quota proceeded to consider the case of Junior
Engineers working in the Board.
Thus, it is evident that the Promotion Sub-Committee also relied upon the Recruitment Regulation, contained in Annexure-2, as no other
regulation providing similar provision referred to above has been brought to my notice by the learned counsel for the Board. The Managing
Director, the Sub-Committee and the Board apparently omitted to even take notice to Regulation 2(c) of the Recruitment Regulation (Annexure-2)
which provides that 50% of all Glass II posts will be filled up by promotion and 50% by direct recruitment. In fact, similar provision like Regulation
58 of ''1978 Regulation'' is there in the Recruitment Regulation (Annexure-2) which provides that the Board shall have two Appointment Sub-
Committees consisting of following members for recruitment of posts noted against them :
(i) (a) Chief Secretary, Government of Bihar Chairman
(b) Chairman of the Bureau of Public Enterprises Member
(c) Development Commissioner Member
(d) Principal Secretary of the Administrative Department Member
(d) Chairman of the Bihar State Agricultural Marketing Board Member
(f) Deputy Secretary in charge for Scheduled Caste and
Scheduled Tribes in the Personnel Department Member
(g) Subject matter specialist
Special Invitee
(ii) (a) Secretary to the Board For all categories
(b) Director of vigilance of posts falling
(c) Director Marketing under (i)
And Regulation 4 provides that the said Sub-Committee will recommend the candidates for direct recruitment and for promotion. Regulation 58 of
''1978 Regulation'' does not provide for fixation of any quota. Regulation 56 of ''1978 Regulation'' though provides for procedure for promotion on
the recommendation of the Sub-Committee, but, it does not provide for as to what will be the quota. In fact, proviso to sub-regulation (iv) of
Regulation 56 of 1978 Regulation provides that the decision of the Board with respect to fixation of quota for direct recruitment and promotion
shall be final and that the Board shall lay down the principle for constitution of the cadre and inter se seniority of the employees of the particular
cadre. Now admittedly the Board framed recruitment regulation, contained in Annexure-2, and Regulation 2 (c) specifically provides for the quota
for promotion and direct recruitment of Class II post. According to the said provision 50% of all Class II posts will be filled up by promotion and
50% by direct recruitment.
I have already noticed above that it has been held in the decisions referred to above that the Board is a statutory body and competent under
the Act to take decision with appointment/promotion, fixing terms and conditions of service or for creation of cadre and there is no need of
approval of the Government under the provisions of the Act. As such, in my opinion, Regulation 2 (c) of the Recruitment Regulation (Annexure-2)
framed by the Board providing quota for promotion and direct recruitment is a valid piece of subordinate legislation and applicable to the Class II
posts in the Board. Learned counsel for the Board, however, has submitted that reading of other provisions dealing with different class II posts
would show that there are changes made in respect of quotas for promotion and the provision contained in Regulation 2 (c) of Annexure-2, has not
invariably been followed. Learned counsel submitted that even if the recruitment regulation (Annexure-2), framed by the Board, but, not approved
by the Government up-till-now applies, the Regulation 16C which deals with the Engineering cadre, qualification and mode of promotion are to be
the same as approved for appointment in Public Works Department of the State Government and as the Sub-Committee has relied upon the
Government decision for fixing quota for promotion in the Road Construction Department, there is nothing wrong in the decision either of the Sub-
Committee or of the Board in promoting only two persons as against the said 35% quota.
I am unable to accept the said submission of the learned counsel for the Board. It may be true that for some posts like Market
Supervisor/Price Reporter 75% quota is provided for direct recruitment and 25% for promotion and for some posts like Market Intelligence
Inspector no quota is prescribed for direct recruitment and only the vacancies are to be filled by promotion. It is, however, not evident that the said
posts are also Class II posts, and in any case the provisions relating to the said posts specifically provides about the quota and, as such, may not
be governed by the general provision, contained in Regulation 2(c). Insofar as the Engineering cadre is concerned, Regulation 16C only provides
that the qualification and mode for promotion shall be same as approved for appointment in the Public Works Department of the State
Government. The qualification obviously cannot mean quota and according to Chambers English Dictionary mode means manner of acting, doing,
happening or existing and, thus, where the regulation specifically provides for quota for promotion to Class II posts in the Engineering cadre the
general provision contained in Regulation 16 C, of the Recruitment Regulation would apply only with respect to any other mode if need be to be
adopted as provided for appointment in Public Works Department of the State Government in absence of any decision of the Board under proviso
to Regulation 56 (iv) of ''1978 Regulation'' referred to above. This view also stands supported by the fact that for all other Class II posts the
Regulation provides for filling up 50% of the vacancy by promotion and no valid justification has been shown to deprive Engineering cadre of the
said benefit on the face of the Regulation 2 (c) of the Recruitment Regulation (Annexure-2). Further, this Court finds that the action of the
Managing Director in presenting the fact before the Promotion Sub-Committee and the Board has not been fair and proper in the light of the
direction of this Court.
In the result, writ application is allowed. The decision of the Board, contained, in Annexure-D, is quashed. The Respondents are directed to
consider the case of the petitioners for promotion against 50% vacancies of the Assistant Engineer from the due date in the light of the earlier order
and take final decision within four weeks. However, having regards to the facts and circumstances, the apology tendered by the Managing Director
is accepted and contempt proceeding drawn against them is dropped. M.J.C. application is, thus, dismissed.