IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3293 of 1995 Ram Kumar Singh, son of Sri Bhagwan Singh, resident of Village Mahabalipur, P.S. Dulhin Bazar, District Patna at present working as a Mazdoor in Electric Works Division, Patna near South Bailey Road, P.S. Kotwali, District Patna. ---------- Petitioner Versus 1. The State of Bihar. 2. Chief Engineer, Energy Department, Government of Bihar, Patna. 3. Electric Superintending Engineer, Electric Works Circle, Patna. 4. Electrical Executive Engineer, Electric Works Division, Patna. 5. Bimal Kumar Singh, son of Sri Ram Lakshan Singh, Resident of Village Madhopur Nijhama, P.S. Mahua, District Vaishali at present workings as Work Sarkar in Electric Works Sub-Division, Bankipore (P.M.C.H.), Patna. ----------- Respondents ----------- 10 16.11.2010 Having heard Mr. M.K. Mishra, learned senior counsel for the petitioner and Mr. J.P. Shukla, learned senior counsel for the respondent no.5 as also counsel for the State as with regard to the following relief:- 1(i) It may be declared that the order dated 8.9.88 passed by Bihar Administrative Tribunal by which the Respondent No.5 who has been demoted to the post of Mazdoor and his promotion on the post of Work Sarkar has been cancelled has not been implemented till today and in this way the illegal promotion given to the Respondent No.5 is Contrary to law and hence, it is fit to be set aside. (ii) It may be declared that the petitioner who is senior to the 2 Respondent No.5 but he has not been promoted to the post of Work Sarkar though his promotion is due and according to the Gradation list of the Mazdoors the petitioner is entitled to be promoted on the post of Work Sarkar. (iii) It may be declared that the Petitioner who has been appointed on the post of Mazdoor on 1.1.1966 but permanently appointed from 1.2.1969 on the other hand the Respondent No.5 has been appointed on 23.8.1980 on the post of Daily wages Mazdoor on 28.2.1983 and in this way admittedly the Respondent No.5 is Junior to this petitioner. (iv) It may be declared that respondent No.5 is junior to the Petitioner but without considering the case of the Petitioner for promotion of Work Sarkar from the post of Mazdoor. The Respondent No.5 illegally promoted to the post of Worksarkar contrary to the Rule by order dated 7th June, 1987. (v) It may be declared that though the Bihar Administrative Tribunal has cancelled the promotion of Respondent No.5 as Work Sarkar and given direction to consider the case of the Petitioner according to law on the post of Work Sarkar but neither the case of the Petitioner has been considered nor the cancellation of the promotion of Respondent No.5 as Work Sarkar has 3 been implemented. (vi) It may be declared that the Respondents are liable for the excess payment to the Respondent No.5 for the post of Work Sarkar and the said payment has been made at the risk of the Respondents specially on the risk of Respondent No.4 and the same excess payment may be deducted from the salary of Respondent no.4 because the payment is contrary to law and contrary to the order passed by Bihar Administrative Tribunal. (vi) It may be declared that for the salary of the Work Sarkar from 7th June, 1987 from the due promotion and the salary of the Work Sarkar be paid to the petitioner from that period.” this Court is of the considered opinion that the official respondents had failed to explain, much less, justify the so-called appointment of respondent no.5 on the post of Work Sarkar. The petitioner, who alike the respondent no.5, was appointed on the post of Mazdoor on daily wages in the temporary establishment of the Electric Works Department of the Government of Bihar on 1.1.1966 and has been continuing since 1.2.1969 without any interruption, has, in effect, been aggrieved on account of the so- 4 called appointment of the respondent no.5 on the post of Work Sarkar by an order dated 17.6.1987. The reason of the petitioner being aggrieved on such appointment of the respondent no.5 on the post of Work Sarkar is that his case was not considered though he had ranked senior initially to the respondent no.5 in the various gradation list of casual employees. It is not in dispute that the first date of appointment of the respondent no.5 as daily rated Mazdoor was 23.8.1980 and he became regular Mazdoor on 28.2.1983. Mr. Shukla, learned senior counsel for the respondent no.5 had suggested that the order dated 17.6.1987, passed by the Engineer-in-chief of the Energy Department, would actually amount to direct appointment of the respondent no.5 on the post of Work Sarkar and, as such, the cases of others including the petitioner were not required to be considered in view of the exemplary service rendered by the respondent no.5. The aforesaid submissions of Mr. Shukla cannot be accepted for more than one 5 reason. From reading of the order contained in office order no. 65 dated 17.6.1987, two things are absolutely clear, namely, that earlier the respondent no.5 was working in the Work Charge Establishment as a Mazdoor and he was sought to be appointed as a Work Sarkar against the regular sanctioned post. Such appointment, whether by an internal recruitment or promotion, could not have been confined by individual consideration of the case of the respondent no.5. There is absolutely no iota of doubt that not only the petitioner of this case but even others senior to the respondent no.5 having been aggrieved of such appointment of the respondent no.5 on the post of Work Sarkar had taken legal recourse and had moved Bihar Administrative Tribunal by filing Service Case No. 256 of 1987 (Sri Bijendra Kumar Vs. The Engineer-in-chief & Ors.). It has to be also noted that subsequently the respondent no.5 himself had filed a writ application CWJC No. 3837 of 1988 in which this writ petitioner along with Bijendra Kumar and Dina Nath Singh had filed their intervention 6 application and this Court, noticing the pendency of the aforesaid Service Case No. 256 of 1987, had observed in its order dated 4.8.1988 that the so-called challenge to the appointment of the respondent no.5 could be looked into by the Tribunal in the pending Service Case No.256 of 1987. The respondent no.5 thus, having failed to oust the jurisdiction of the tribunal in CWJC No. 3837 of 1988 had to strictly abide by the ultimate decision taken by the Tribunal. The Tribunal in the order dated 8.9.1988, having found that there was an order passed by the Engineer-in-chief by which the respondent no.5 was directed to continue only as Mazdoor till his promotion was decided by the Departmental Promotion Committee, had held that the service case filed by Bijendra Kumar against the appointment of respondent no.5 on the post of Work Sarkar had become infructuous. Normally that should have been the end of the matter, inasmuch as, the official respondents and particularly the Engineer-in- chief was required to take further action in 7 terms of the order dated 11.4.1988 requiring reconsideration of the case of the respondent no.5 by way of promotion through the Departmental Promotion Committee. That, however, was not done and in the counter affidavit filed by the official respondents it has been stated that since the respondent no.5 was working under Sri T.N. Jha, Electrical Executive Engineer, had the audacity to disobey the order of the Engineer-in-chief dated 11.4.1988, inasmuch as, by order dated 11.4.1988 directing continuation of respondent no.5 merely as a daily rated Mazdoor till his case was considered by way of promotion through the Departmental Promotion Committee, his appointment on the post of Work Sarkar followed by fixation of his salary on the post of Work Sarkar had remained valid. In the considered opinion of this Court, such absurd plea of the respondent has been only noted for its being rejected. The petitioners and others working as Mazdoor and being much senior to the respondent no.5, have filed the present writ application as 8 far back as on 16.5.1995 and the things had not made any improvement in a space of last fifteen year save and except that the official respondents have also tried to indulge in mud slinging on one or other authority by filing conflicting counter affidavit and supplementary counter affidavit. It has to be noted that the counter affidavit was also sworn and filed before this Court on 18.10.1995 by one Mr. Vinod Shankar, the then Electrical Engineer in which he had taken a categorical stand that Mr. T.N. Jha, the Electrical Executive Engineer of Electric Works Division, Patna did not carry out the order of the Engineer- in-chief dated 11.4.1988 by which the respondent no.5 was brought back to the post of Mazdoor till his case for promotion was considered by Departmental Promotion Committee. Whatever has been stated by Mr. Shankar, the then Electrical Engineer in his counter affidavit would only go to show that it was on account of defiant attitude of Mr. T.N. Jha, the then Executive Engineer that the respondent no.5, despite an order of 9 superior authority, namely, Engineer-in-chief dated 11.4.1988, was allowed to continue on the post of Work Sarkar. Such continuation of the respondent no.5, therefore, cannot bestow any legal right on him to either hold the post of Work Sarkar after 11.4.1988 or claim salary thereof. If anyone has paid salary of the post of Work Sarkar to the respondent no.5, the same has to be recovered from the concerned person. In the event, the respondents would not take a decision for making recovery either from the respondent no.5 or from the person who had paid the salary of Work Sarkar after the order dated 11.4.1988, the State Government will be required to pay also the salary to any such person from the date from which the respondent no.5 was paid such salary in the event he is appointed on the post of Work Sarkar as a sequel to the direction being given in this writ application. The long and short of this case therefore remains that there is a higher post of Work Sarkar, which can be filled up either by way of direct appointment or by way of 10 promotion. Here, the respondent Engineer-in- chief in the order dated 11.4.1988 had clearly indicated that such post shall be filled up by way of promotion by reconsidering the case of the respondent no.5. It is well established a concept of service jurisprudence that whenever the case of promotion is considered, all who are eligible have to be given uniform consideration. There is nothing on record to show that the petitioner or other Mazdoors, who have been continuing in the Work Charge Establishment, were not qualified to hold the post of Work Sarkar. As a matter of fact, the only requirement for holding the post of Work Sarkar is a qualification of Matriculation. Therefore, this Court, in the light of the position shown in the gradation list of Mazdoor in which the name of the respondent no.5 is at serial no. 374, would direct that if the promotion of the respondent no.5 has to be considered for the post of Work Sarkar, everyone, senior to him and holding the qualification for the post of Work Sarkar, must be given the same consideration and that 11 is how even the petitioner has to be given opportunity of being considered for promotion on the post of Work Sarkar. At this stage, the reliance placed by the learned senior counsel for the respondent no.5 on the order of Secretary to Energy Department dated 24.2.1988 for the purpose of justifying the continuation of the respondent no.5 on the post of Work Sarkar has to be also noted for its being rejected. Let it be kept in mind that an out and out illegal order of appointment in favour of the respondent no.5 was issued by the then Engineer-in-chief of Energy Department on 17th of June, 1987 and that was found to be absolutely illegal and that is how on 18th July, 1987 the successor Engineer-in-chief had stayed the operation of the said order by recording that large number of representations have been received from various workers regarding their supersession and injustice in the appointment of the respondent no.5 on the post of Work Sarkar on 17.6.1987. The said order dated 18.7.1987 was subsequently modified on 26.9.1987 by the 12 same Engineer-in-chief by holding that there was no need for any modification in the order of respondent no.5 being appointed as Work Sarkar. One fails to understand as to what had transpired in between 18.7.1987 to 27.9.1987, inasmuch as, there is nothing on record to show that the representation of the persons, who had claimed their supersession on account of promotion of the respondent no.5, was ever considered. Obviously, the subsequent order passed by the Engineer-in- chief on 26.9.1987 can have no effect in law specially when that order was itself found to be perfunctory by a higher authority, namely the Secretary to the Government in Energy Department in his order dated 20th October, 1987, who having noted pendency of representations from various workers and unions alleging supersession and injustice in the appointment/promotion of respondent no.5 made by the Engineer-in-chief on 17.6.1987 and its modification in the aforesaid order dated 26.9.1987, had kept the matter in abeyance until a review was made by the Departmental Promotion Committee. The order 13 dated 20th October, 1987, therefore, was very clear that such stay was to continue till Departmental Promotion Committee had looked into the claim of all such persons who were alleging their supersession in the matter of appointment/promotion of the respondent no.5. It is actually in this backdrop that the order dated 24.2.1988 has to be understood by this Court because by the said order when the departmental secretary had only taken step for constitution of Departmental Promotion Committee and had also indicated that further action would be taken as per the recommendation and decision of the Departmental Promotion Committee, the said order was rightly read by the successor Engineer-in-chief on 11th of April, 1988 to mean that the said order on the promotion/appointment of respondent no.5 was to be continued till a fresh decision was taken by the Departmental Promotion Committee. The order dated 24.2.1988, therefore, was also rightly understood by the Bihar Administrative Tribunal for holding the Service Case of the applicant Bijendra Kumar 14 to be infructuous, inasmuch as, Bijendra Kumar also had challenged the order dated 17.6.1987 of appointment/promotion of the respondent no.5 on the post of Work Sarkar. In that view of the matter, this Court having itself gone into the whole issue has found from the records that there was absolutely no consideration of any other person at the time of giving the so-called appointment/promotion to the respondent no.5 on the post of Work Sarkar. It has to be thus held that any claim or right of the petitioner of the respondent no.5 to continue on the post of Work Sarkar is absolutely in teeth of Article 14 & 16 of the Constitution of India. The favoritism bestowed on respondent no.5 either in the matter of his appointment/promotion by the then Engineer- in-chief Mr. S.A.A. Rizvi or the role played by Mr. D.P. Maheshwari, the then Secretary in passing the confusing order in his letter dated 24.2.1988, cannot be allowed to continue to operate for justifying the illegal promotion of the respondent no.5 on the higher post and that is how, this Court 15 would also hold that the respondent no.5, on the basis of his order of appointment/promotion dated 17.6.1987, had been conferred with no right to continue on the post of Work Sarkar till his case was also considered along with others by the Departmental Promotion Committee. That being so, this application is allowed and the Secretary, Energy Department is directed now to re-consider the case of the petitioner and others for filling up the vacant post of Work Sarkar by way of promotion through Departmental Promotion Committee. Since, this writ application had remained pending for a period of over fifteen years, the official respondents headed by the departmental Secretary are directed to ensure that such exercise must be completed within a period of six months from the date of receipt/production of a copy of this order. Rsh (Mihir Kumar Jha, J.)