Ritesh Kumar & Ors vs State of Bihar & Ors

The present writ petition has been filed for quashing Memo No. 6087 dated 24.11.2016 issued by the Water Resources Department, Government of

Bihar whereby the claim of the petitioners for stepping up of the pay to the level of their juniors, has been rejected. The petitioners have further

prayed for grant of notional seniority without back wages w.e.f. the date of joining of their juniors as well as to grant salary to the petitioners at par

with that of their juniors. Lastly, it has been prayed that consequently the period of notional seniority should be taken into account for the purpose of

grant of benefit of Modified Assured Career Progression.

The brief facts of the case are that the Bihar State Staff Selection Commission (hereinafter referred to as “the Commission†published an

advertisement bearing No. 1406 on 14.8.2006 for appointment of 2268 Junior Engineers (Civil). The selection process comprised of written

examination. The petitioners and other candidates had applied pursuant to the aforesaid advertisement and their written examination was held,

whereafter the Commission prepared a select list of 210 successful candidates, however, the same was challenged by the unsuccessful candidates by

filing a writ petition bearing CWJC No. 885 of 2007. While the aforesaid writ petition was pending, 35 successful candidates were appointed as Junior

Engineers in the Road Construction Department, while 144 candidates were appointed in the Water Resources Department and 9 were appointed in

the Public Health Engineering Department, thus total 188 successful candidates, out of 210 successful candidates were appointed in various

departments. In the meantime, the learned Single Judge of this Court allowed the aforesaid writ petition and cancelled the examination as also the

appointments made on the said posts. The said order of the learned Single Judge was challenged before the learned Division Bench in L.P.A. No. 70

of 2008 and the learned Division Bench by a judgment dated 1.2.2008 partly allowed the appeal and modified the order of the learned Single Judge

holding that the model answers in respect of 45 questions out of 100, were wrong, hence the learned Division Bench declared that the entire

examination need not be cancelled as there was no allegation of any corrupt motive or malpractice in regard to the other question papers, hence a

fresh examination in Civil Engineering papers only was sufficient to rectify the defect and prevent injustice to any candidate. The Hon’ble Division

Bench further held that while those appointed on the basis of the impugned selection shall be allowed to continue until publication of the fresh result

and anyone of them, who failed to make the grade on the basis of the fresh examination shall be given a chance to appear in another examination to

be conducted by the Commission. The aforesaid judgment dated

1.2.2008 was challenged before the Hon’ble Apex Court and the Hon’ble Apex Court by a judgment dated 13.3.2009, passed in Civil

Appeal No. 2515-16 of 2013, reported in (2013) 4 SCC 690 [Rajesh Kumar & Ors. Vs. The State of Bihar & Ors.], allowed the said appeal and set

aside the order passed by the learned Division Bench of the High Court and directed as follows :

“22.1. Answer scripts of candidates appearing in 'A' series of competition examination held pursuant to advertisement No. 1406 of 2006 shall be

got re-evaluated on the basis of a correct key prepared on the basis of the report of Dr. (Prof.) C.N. Sinha and Prof. K.S.P. Singh and the

observations made in the body of this order and a fresh merit list drawn up on that basis.

22.2. Candidates who figure in the merit list but have not been appointed shall be offered appointments in their favour. Such candidates would earn

their seniority from the date the appellants were first appointed in accordance with their merit position but without any back wages or other benefit

whatsoever.

22.3. In case writ petitioners-respondent nos. 6 to 18 also figure in the merit list after re-evaluation of the answer scripts, their appointments shall

relate back to the date when the appellants were first appointed with continuity of service to them for purpose of seniority but without any back wages

or other incidental benefits.

22.4. Such of the appellants as do not make the grade after re- evaluation shall not be ousted from service, but shall figure at the bottom of the list of

selected candidates based on the first selection in terms of advertisement No.1406 of 2006 and the second selection held pursuant to advertisement

No.1906 of 2006.

22.5. Needful shall be done by the respondentsâ€"State and the Staff Selection Commission expeditiously but not later than three months from the

date a copy of this order is made available to them.â€​

In compliance of the judgment passed by the Hon’ble Apex Court, the answers sheets were re-evaluated and a fresh merit list was published

wherein some candidates who had been declared successful earlier were found to be unsuccessful while some candidates who were declared

unsuccessful earlier were found to have been successful. On account of the direction of the Hon’ble Apex Court to the effect that in case some

candidates did not make their grade after re-evaluation should not be ousted from service, but should figure at the bottom of the list of the selected

candidates as per selection in terms of advertisement no. 1406 of 2006 and second selection held pursuant to advertisement no. 1906 of 2006, fresh

merit list was prepared, also considering the result of re-evaluation of answer sheets whereupon it transpired that certain candidates who had been

declared successful initially had become junior to many candidates who were declared successful in the process of re-evaluation.

It is the submission of the writ petitioners that pursuant to the fresh merit list, the petitioners had joined in the respective departments whereafter,

the Nodel Department i.e. the Water Resources Department, Government of Bihar vide Memo dated 24.6.2016 had prepared a combined seniority list

of the Junior Engineers appointed pursuant to advertisement no. 1406/ 2006 and 1906/2006 wherein the Junior Engineers, who were appointed prior to

the petitioners pursuant to the initial result declared by the Commission and had become junior to the petitioners on account of the result declared after

re-evaluation, were shown juniors to the petitioners, while the candidates, who were found to be unsuccessful after re-evaluation were placed at the

bottom of the seniority list. In nutshell those junior Engineers who were appointed prior to the petitioners pursuant to the initial result published by the

Commission, became junior in the combined seniority list on account of declaration of result by the Commission after re-evaluation as also in

pursuance to the mandate of the judgment rendered by the Hon’ble Apex Court in the aforesaid civil appeals.

The learned Senior counsel appearing for the petitioners has submitted that after the implementation of the judgment of the Hon’ble Apex Court

and declaration of fresh result by the Commission after re-evaluation, the junior Engineers, who were appointed prior to the petitioners, became junior

to the petitioners and those candidates who were found to be unsuccessful upon re-evaluation were placed at the bottom of the seniority list. It is

submitted that the junior Engineers, pursuant to the initial result, were appointed in the year 2007 while the petitioners had joined in the year 2014,

pursuant to the order of the Hon’ble Apex Court as also upon re-evaluation of the answer scripts and the Hon’ble Apex Court had clearly

directed that the appointments of the candidates who figured in the merit list upon re-evaluation of the answer scripts would relate back to the date

when the appellants were first appointed and would be granted continuity of service for the purpose of seniority and such candidates would earn

seniority from the date the other candidates were initially appointed, hence the State Government is required to step up of the pay of the petitioners at

par with those junior Engineers, who though had been appointed prior to the petitioners, but have been ranked as juniors to the petitioners in the

combined seniority list. It is further submitted that the direction of the Hon’ble Apex Court, to relate back the appointments of the petitioners to the

date when other candidates were first appointed, with continuity of service for the purposes of seniority, would also apply for calculating the period of

service rendered for grant of benefits of Modified Assured Career progression. It is submitted that the period of services to be calculated for the

purpose of seniority as per direction of the Hon’ble Apex Court would also be applicable for the purposes of calculation of the service period for

grant of benefits of the Modified Assured Career

Per contra, the learned counsel for the respondents has submitted that the Hon’ble Apex Court in its judgment dated 13.3.2013 had specifically

stated that though the candidates such as the petitioners herein would earn their seniority from the date the other candidates were firstÂ

appointed, prior to the passing of the judgment by the Hon’ble High Court, in accordance with their merit list, but the same was

directed to be without any back wages or any other benefits/ incidental benefits whatsoever, hence the petitioners are only entitled for notional

seniority which has already been given to them and they are not entitled to any other benefits whatsoever.

I have heard the learned counsel for the petitioners and gone through the materials on record. At the inception it would be relevant to reproduce

paragraph no. 21 of the judgment rendered in the aforesaid Civil Appeal No. 2515-16 of 2013 herein below:-

“21. There is considerable merit in the submission of Mr. Rao. It goes without saying that the appellants were innocent parties who have not, in any

manner, contributed to the preparation of the erroneous key or the distorted result. There is no mention of any fraud or malpractice against the

appellants who have served the State for nearly seven years now. In the circumstances, while inter se merit position may be relevant for the

appellants, the ouster of the latter need not be an inevitable and inexorable consequence of such a re-evaluation. The re-evaluation process may

additionally benefit those who have lost the hope of an appointment on the basis of a wrong key applied for evaluating the answer scripts. Such of

those candidates as may be ultimately found to be entitled to issue of appointment letters on the basis of their merit shall benefit by such re-evaluation

and shall pick up their appointments on that basis according to their inter se position on the merit list.â€​

It is apparent from the aforesaid observation of the Hon’ble Apex Court that though the petitioners herein and other such candidates were

directed to be granted seniority from the date of first appointment of unsuccessful candidates/ other candidates, but the Hon’ble

Apex Court had only directed to grant the pet itioners and other similarly situated candidates continuity of service only for the purposes of seniority,

but the said continuity of service, to be granted, was/is to be without any back wages or other benefits/ incidental benefits whatsoever, hence

it is clear that the petitioners would be entitled to salary/wages  with effect from their date of actual appointment and accordingly, their pay

would be fixed from year to year upon grant of annual increments and other such benefits as is admissible under the law. In such view of the matter,

specifically in view of the judgment of the Hon’ble Apex Court, the petitioners herein and other similarly situated employees cannot be granted the

benefits of stepping up of their pay scale and bringing the same at par with that of their so-called juniors who had worked from a prior date i.e. from

the date of their first appointment, which is prior to the judgment rendered by the Hon’ble Apex Court as also prior to the re-evaluation of the

answer scripts. This Court is of the view that stepping up of the pay scale of the petitioners and other similarly situated employees would not only

result in violation of the principles of fixation of pay scale and connected rules/ regulations but also would amount to violating the orders of the

Hon’ble Apex Court.

Now, coming to the second aspect of the matter to the effect that the notional seniority granted to the petitioners w.e.f. the date of joining of their

juniors be taken into account for the purposes of grant of the Modified Assured Career Progression, it is stated that the benefits of Modified Assured

Career Progression/ Assured Career Progression are granted only for the purposes of compensating the employees who have stagnated on one post

from several years, without being granted any promotion but have completed requisite number of years of actual service on the post, as provided

under the scheme. However, in the instant case, the petitioners herein had not physically and actually completed the numbers of years (10 years in the

present case) of continuous service so as to entitle them for being granted the benefits of Assured Career Progression/ Modified Assured Career

Progression scheme. Thus this Court finds that taking into account the date of joining (notional) of such petitioners i.e. the date on which their juniors

have been first appointed, for the purposes of calculating the period of service undergone for granting the benefits of Modified Assured Career

Progression/ Assured Career Progression scheme would not only be contrary to the provisions of Modified Assured Career Progression scheme but

would also be contrary to the aforesaid judgment of the Hon’ble Apex Court inasmuch as firstly the petitioners have not completed 10 years of

physical/ actual continuous service on the post on which they have been appointed and secondly the continuity of service, according to the Hon’ble

Apex Court judgment, has to be granted to the petitioners only for the purposes of seniority but without any back wages or any other incidental

benefits.

Having regard to the facts and circumstances of the case and for the reasons mentioned herein above, the present writ petition is devoid of any

merit, hence the same is dismissed.