Sri Krishna Chandra vs The State of Bihar and Others

Shiva Kirti Singh, J.—The petitioner in this writ application has sought quashing of order dated 20.2.1996 (Annexure-1) passed by the Engineer-in-Chief-cum Special Secretary, Department of Irrigation, Government of Bihar, by which the petitioner''s claim for promotion, seniority and other consequential benefits has been rejected. The petitioner has as prayed for directing the respondents the grant to the petitioner the scale of Assistant Engineer with effect from 8.12.1966 the date from which the petitioner claims to be discharging the duties of the Assistant Engineer on current charge basis and for further promotion to the rank of Executive Engineer with effect from 31.3.1983 i.e. the date when petitioners junior Sri Haidar Hussain was promoted. The petitioner has also prayed for grant of all other consequents benefits in the matter of salary etc. and subsequently in the matter of fixation his post retirement benefits as the petitioner has now retired from service 30.11.1991. The petitioner was appointed as Boring Supervisor under Agriculture Department, Co. 3+ 00 Government of Bihar dated 31.5.1956. His qualification was Industry Diploma on the basis of a five year in aprentice ship course in Bihar College of Engineering, Patna. In 1973, the post held by the petitioner and some other posts were merged in the cadre of Junior Engineer of Irrigation Department the prior to that, according to petitioner. by Annexure-8 dated 14.9.1966 the petitioner was allowed to officiate as Overseer S.D.O. According to petitioner, several persons holding similar qualification as that of the petitioner and junior to him were granted promotions to the post of Assistant Engineer as well as to the post of Executive Engineer but the petitioner''s case was not considered and he could not get any promotion in his service career till he retired on 30.11.1991. From the writ petition it is clear that the petitioner along with some other persons had challenged a tentative gradation list through writ petition bearing CWJC No. 1862 of 1982. Thereafter, he and some other had moved this court through another writ application bearing CWJC No. 5851 of 1984 which was disposed of by order dated 20.2.1989 (Annexure-14) directing the petitioner to first pursue remedy before the Administrative Tribunal. Subsequently, the petitioner moved this Hon''ble Court once again through CWJC No. 5500 of 1995 which was disposed of by order dated 13.11.1995 (Annexure-18). By this order, the petitioner was directed to file a detailed representation before the departmental authority and such representation was directed to be disposed of by a speaking order within a fixed time. Accordingly, the petitioner filed a representation which has been rejected by the impugned order dated 20.2.1996 contained in Annexure-1.

Learned counsel for the petitioner submitted that at least 10 persons similarly situated as the petitioner and junior to him had been granted promotion to the post of Assistant Engineer and while dealing with that aspect of the matter, the Engineer-in-Chief-cum-Special Secretary has committed errors of record and wrongly held that those 10 persons had been granted promotions much earlier from dates prior to the merger of the cadre and, therefore, according to him, the Irrigation Department was not responsible for or in any way concerned with those promotions. To substantiate the submission learned counsel has relied upon and referred to Annexures 6, 6A and 20 to the writ petition. These annexures show that the actual orders of promotion were issued in the year 1974 after the merger of the cadre had taken place but the effect of the promotion was given from the dates those persons had been officiating or holding the said post on current charge basis. The fact that those 10 persons are junior to the petitioner is apparent from a gradation list of 20.7.1974 contained in Annexure-9 where the petitioner is at serial 24 and the other 10 persons are at serial 31 and below.

On behalf of the petitioner reliance was placed upon Annexures 11 and 12 to the writ petition to show that several of those persons junior to the petitioner who had been promoted to the post of Assistant Engineer were subsequently promoted to the post of Executive Engineer. By Annexure-11 one such junior Sri Haidar Hussain was promoted to the post of Executive Engineer on 31.3.1983 and by Annexure-12 several other were granted promotion to the post of Executive Engineer by order dated 30.12.1992 but with effect from 2.7.1991.

On these facts, it was submitted on behalf of the petitioner that by Annexure-1 petitioner''s claim has been wrongly rejected on incorrect facts and without appreciating the correct legal position even with regard to requisite minimum qualification for promotion to the post of Assistant Engineer. With regard to qualification learned counsel for the petitioner referred to discussion of the relevant law and rules as contained in order of this Court dated 20.9.1988 passed in MJC No. 659 of 1987 which has been annexed as Annexure-23 to the reply of petitioner to the counter affidavit of respondents. The said order of this court also finds a mention in the impugned order (Annexure-1) and from the order contained in Annexure-23 as well as from the discussion made in the impugned order it is clear that after merger of the cadre, all Junior Engineers including those who did not have Diploma in Engineering become entitled for promotion to higher posts provided they fulfil the prescribed qualification as laid down in Rule 12 of Part III of the Public and Works Department Code, Vol. II and as per Notification No. 3966 dated 26.2.1969 which require that such Junior Engineers should have minimum 8 years'' experience as Overseers.

On the other hand, learned counsel for the State submitted on the basis of certain orders of 1988 mentioned in paragraph 9 of the counter affidavit that later on decisions had been taken laying down different eligibility criteria and hence, petitioner''s case for promotion could not be considered or allowed as he did not have a Diploma in Engineering.

Considering all the relevant facts of the case, in my view, all the contentions advanced on behalf of the petitioner have substance. The stand of the State cannot be accepted for the simple reason that executive decisions cannot be made to apply retrospectively. Petitioner''s junior had been promoted in the year 1974 with effect from earlier dates by this very Department after merger and from the discussions in the order contained in Annexure-23 as well as in the impugned order, it is evident that the eligibility criteria remained unchanged at least at the relevant period and the petitioner was entitled for consideration of his claim for promotion when persons admittedly junior to him and having similar qualification had been considered and granted promotion not only to the post of Assistant Engineer but also to the post of Executive Engineer.

For all the aforesaid reasons. the impugned order contained in Annexure-1 is quashed and this writ application is at lowed with direction to the respondents to consider the case of the petitioner in view of observations given above and grant to. him the monetary benefits of promotion the higher post of Assistant Engineer writ effect from 8.12.1967 when his juniors Bishwanath Prasad and Pradumna Prasad were granted such promotion and to the post of Executive Engineer with effect from 31.3.1983 the date on which his junior Haidar Hussain was granted such promotion. All the consequential benefits should also be given to the petitioner not only with regard to pay and allowances but also in the matter of retirement benefits that may have to be recalculate; on the basis of aforesaid notional promotions to be given to the petitioner. The aforesaid exercise with regard to completing the formalities of issuing necessary orders, computing the admissible dues the petitioner and payment of the legal admissible dues should be completed within a period of six months from the date of communication/production of copy of this order before the responded no. 4. This writ application is allowed the extent indicated above. In the facts the case, there shall be no order as costs.