CIVIL WRIT JURISDICTION CASE No.6409 OF 2000 (In the matter of an application under Article 226 of the Constitution of India.) SYED JAMIL ASHGAR--------------------------(Appellant) Versus THE STATE OF BIHAR & ORS-------------(Respondents) For The Petitioner : Mr. Vinod Kumar Kanth, Senior Advocate Mr. Mukul Sinha, Advocate For The Respondents : Mr. Arvind Ujjwal, S.C. No.-XI Mr. Maruth Nath Roy, Advocate P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD THE HON'BLE DR. JUSTICE RAVI RANJAN Prasad & Ranjan, J.J. This application has been filed for issuance of a writ in the nature of mandamus commanding the respondents to treat the petitioner to have been appointed to the post of Assistant Engineer, Bihar Engineering Service Class-II in Road Construction Department on regular basis from the date person immediately below him in the merit list has been appointed with all consequential benefits. - 2 - Shorn of unnecessary details, facts giving rise to the present application are that petitioner is a Engineering Graduate and was initially appointed as Junior Engineer in Obera Block under Aurangabad District in the Road Construction Department. While he was working as such, an advertisement bearing advertisement No. 93 of 1985 was issued by the Bihar Public Service Commission for appointment to the post of Assistant Engineer in the joint cadre of Road/Building Construction Department on regular basis. The petitioner offered his candidature for appointment to the said post. While the candidature of the petitioner for appointment as Assistant Engineer in pursuance of the aforesaid advertisement was under process, the State Government decided to appoint such Junior Engineers who are degree holders as Assistant Engineer on ad-hoc basis. Accordingly, the petitioner was appointed as Assistant Engineer on ad-hoc basis in the Road Construction Department. While the petitioner was functioning as Assistant Engineer in the Road Construction Department on ad-hoc basis, he was called for interview by the Bihar Public Service Commission (hereinafter referred to as the - 3 - Commission) to appear before a Selection Board for appointment against regular vacancy of the Assistant Engineer in the joint cadre of Road/Building Construction Department of Bihar Engineering Service Class-II. Petitioner besides other candidates appeared before the Selection Board and the Commission sent a list of recommended candidates vide its letter dated 19th of May, 1987 in which petitioner’s name does not figure. However, in view of a large number of vacancies remaining vacant, the Road Construction Department requested the Commission to send another list of successful candidates from amongst candidates who offered candidature in pursuance of Advertisement No. 93 of 1985. Ultimately the Commission sent another list of successful candidates vide its letter dated 22.2.1988 and the petitioners name finds place at Serial No. 9 of the said list. It is relevant here to state that in the said list, name of one Satayendra Prasad Sinha also finds place which is at Serial No.10. Although, the advertisement which led to the recommendation of the petitioner and that of Satayendra Prasad Sinha, was in pursuance of Advertisement No. 93 of - 4 - 1985 published for appointment to the post of Assistant Engineer in the joint cadre of Road Construction Department, petitioner was offered appointment to the post of Assistant Engineer in the Public Health Engineering Department, whereas said Satayendra Prasad Sinha, in the Road Construction Department. Petitioner protested to his appointment on the post of Assistant Engineer in the Public Health Engineering Department and filed representation, inter alia, stating that he is working as Assistant Engineer on ad-hoc basis under the Road Construction Department, his name figures at Serial No.9 of the recommendation, but he has inadvertently been posted in the Public Health Engineering Department. Although, no decision was communicated to the petitioner, but by notification dated 10th of November, 1989, a tentative gradation list of the Assistant Engineers of the Road Construction Department was published in which his name figures at Serial No. 2467. Respondents in the counter-affidavit have stated that on the basis of the recommendation of the Commission, petitioner was appointment in the Public Health Engineering Department and instead of joining the said department, he - 5 - preferred to continue as Assistant Engineer on ad-hoc basis and as such, at a belated stage, the prayer made by the petitioner is not fit to be granted. Taking the line of least resistance, Mr. Vinod Kumar Kanth, Senior Advocate, appearing on behalf of the petitioner contends that person below in the merit list having been appointed to the post of Assistant Engineer in the Bihar Engineering Service Class-II under the Road/Building Construction Department, there is no justification for the respondents to appoint him as Assistant Engineer in the Public Health Engineering Department. He points out that this Court had the occasion to consider this question on the same facts in relation to the same advertisement in the case of Daya Shankar Mishra Versus The State of Bihar & Others 1997 (1) All PLR 428 in which direction has been issued to appoint the writ petitioner of the said case as Assistant Engineer from the date the person below in the merit list has been appointed. In this connection he has drawn our attention to Paragraphs 4 and 5 of the said judgment, which reads as follows:- “4. Having heard the parties, according to this - 6 - Court, the petitioner has made out a case of discrimination. Admittedly, the petitioner being eligible for appointment to the post of Assistant Engineer (Civil), has a right for consideration of his case for appointment to the post of Assistant Engineer (Civil) in the Bihar Engineering Service class-II under the Road/Building Construction Department. The advertisement was also published for appointment to the post of Assistant Engineer (Civil) under the Bihar Engineering Service class-II, available in the Road/Building Construction Department. The petitioner applied in pursuance of the said advertisement and never applied for consideration of his case for appointment to the post of Assistant Engineer (Civil), under Bihar Public Health Engineering Service Class- II in the Public Health Engineering Department. Such being the position, there was no occasion for the Respondents to consider the case of petitioner for appointment to the post of Assistant Engineer (Civil) in the Bihar Public Health Engineering Service Class-II, nor the Respondents could have refused to consider his case for appointment to the post of Assistant Engineer (Civil) in the Bihar Engineering Service Class-II, under the - 7 - Road/Building Construction Department. Further, the persons whose names were appearing below the name of the petitioner in the merit list having been appointed to the post of Assistant Engineer (Civil) in the Bihar Engineering Service Class- II, under the Road/Building Construction Department, the Respondents cannot discriminate the petitioner in the matter of such appointment.” “5. For the reasons stated above, this Court directs the authorities of the Respondents-State in its Road Construction Department to provide the petitioner with appointment to the post of Assistant Engineer (Civil) in the Bihar Engineering Service Class-II under the Road/Building Construction Department. Such appointment letter is to be provided treating the date of appointment of the petitioner as 16th June, 1987, the date the persons below the name of the petitioner in the merit list were provided with such appointments. This direction of the court is given, specifically taking into note that the petitioner was provided with order of appointment by Public Health Engineering Department on 15th July, 1987. The Court is further taking into note that seniority of none of the persons will be - 8 - affected by virtue of this Court’s order, as the seniority is dependent on the position of the candidates, as mentioned in the merit list, all of them having been appointed by way of direct recruitment. While giving such appointment, the pay of the petitioner is to be fixed, as he is receiving today, on the basis of his joining in the Public Health Engineering Department and thereby, the petitioner will get the appropriate pay protection.” Mr. Arvind Ujjwal , SC-XI, however contends that the writ petition suffers from delay and laches and the petitioner by his conduct waived his right flowing from the recommendation of the Commission. Having appreciated the rival submission, we find substance in the submission of Mr. Kanth, and the decision relied on squarely covers his case. In this background we are not inclined to throw out the writ application on the ground of delay. True it is that the petitioner has chosen to file the writ application belatedly, but that had occurred on account of the conduct of the respondents themselves. It is not in dispute that prior to the recommendation made by the - 9 - Commission, petitioner was working as Assistant Engineer on ad-hoc basis. It is further not in dispute that person below in the merit list has been appointed as Assistant Engineer in the Road Construction Department. Petitioner filed representation for his continuance in the Road Construction Department and although no order was passed on the said application, but he was allowed to continue and draw salary in the Road Construction Department. In the provisional gradation list published in the year 1989 his name has been incorporated. In case we dismiss the writ application on the ground of delay as urged by the respondents, petitioner shall be rendered jobless, notwithstanding the fact that his name finds place in the recommendation made by the Commission and person junior to him has been appointed as Assistant Engineer in regular basis. We are of the opinion that it shall be just and proper to treat the petitioner to have been appointed to the post of Assistant Engineer in the cadre of Bihar Engineering Service Class-II of the Road Construction Department at least from the date the person below him in the merit list was appointed with all the consequential benefits flowing - 10 - from that. In the result, the application is allowed. Respondents are directed to treat the petitioner to have been appointed as Assistant Engineer on regular basis, at least from the date, person below him in the merit list, has been appointed, with all consequential benefits. However, there shall be no order as to costs. Patna High Court, Dated 10th of September, 2008 P.K./N.A.F.R. (Chandramauli Kr. Prasad, J.) (Dr. Ravi Ranjan, J.)