CIVIL WRIT JURISDICTION CASE No.10731 of 1996 With CIVIL WRIT JURISDICTION CASE No.2843 of 1997 ------ In the matter of an application under Article 226 of the Constitution of India. ------ In CWJC No. 10731 of 1996 1. Hirdyanand Sahay Rukhaiyar, son of late Bal Krishna Sahay Rukhaiyar, resident of Gaighat, P S – Alamganj, District – Patna, Research Assistant, Road Construction Department, New Capital Division, Patna. 2. Tuhia Kant Sinha, son of late Shanker Sharan Sinha, resident of 10, Ashok Nagar, P S – Kankarbagh, District – Patna, Research Assistant, Road Construction Department, Central Design Organization, Patna. 3. Sheolal Pandit, son of late Raghav Pandit, resident of village – Bihta, P S – Bakhtiyarpur, District – Patna, Research Assistant, Road Construction Department, New Capital Division, Patna. 4. Sudama Prasad Singh, son of late Chhatrabali Prasad Singh, resident of New Yarpur, Janta Road, P S – Gardanibagh, District – Patna, Research Assistant, New Capital Division, Patna. 5. Ram Dhyan Prasad Singh, son of late Sharan Singh, resident of Lakhipur, P S – Bakhtiyarpur, District – Patna, Research Assistant, Road Construction Department, New Capital Division, Patna. ______ Petitioners Versus 1. The State of Bihar. 2. The Engineer-in-Chief-cum-Addl. Commissioner cum Special Secretary, Road Construction Department, Bihar, Patna. 3. The Chief Engineer, Central Design Organization, Road Construction Department, Bihar, Patna. 4. Shri Bachan Choudhary, Research Assistant, Sanrachna Pramandal No.2, Building Construction and Housing Deptt. Patna. 5. Shri Bachchu Lal, Research Assistant, Patna City Road Division. 6. Shri Paras Nath Mishra, Research Assistant, Building Division, Sitamarhi. 7. Shri Birendra Kumar, Research Assistant, Soil Investigation Division, R.E.O. Ranchi. 8. Shri Md. Shamim Anwar, Research Assistant, Vaishali Road Construction, Rajgir. 9. Shri Krishna Kumar Jayaswal, Research Assistant, Road Division, Katihar. 10. Shri Md. Raphi Ahmad Khan, Research Assistant, Building Division, Hazaribagh. 11. Shri Binod Kumar Sinha, Research Assistant, Quality Control Sub Division, South Bihar Circle, Patna. 12. Shri Binay Kumar Singh, Research Assistant, Patna West Road Division, Patna. 2 13. Shri Lalan Prasad Sinha, Research Assistant, Road Division, Ramnagar. 14. Shri Sunil Kumar, Research Assistant, New Capital Road Division. 15. Shri Ajmal Hussain, Research Assistant, Road Division, Daltenganj, North. 16. Shri Rajiv Ranjan, Research Assistant, West Road Division, Bhagalpur. 17. Shri Raj Kumar Karn, Research Assistant, Road Division, Jamshedpur. 18. Shri Rajendra Prasad No.1, Research Assistant, Road Division, Sahebganj. 19. Shri Arvind Prasad, Research Assistant, Road Division, Jamtada. 20. Shri Rajendra Prasad Sah, Research Assistant, No.2, Road Division, Katihar. 21. Shri Kamal Kishore Pd. Singh, Research Assistant, Vaishali, Road Division, Hajipur. 22. Shri Maksud Alam, Research Assistant, Patna City Road Division. 23. Shri Ram Krishna Kumar, Research Assistant, Road Division, Bettiah. 24. Shri Randhir Kumar Sinha, Research Assistant, Road Division, Khagaria. 25. Shri Geredhar Prasad, Research Assistant, Road Division, Sahebganj. 26. Smt. Urmila Singh, Research Assistant, Road Division, Sahebganj. 27. Shri Upendra Prasad Verma, Research Assistant, Road Division, Samastipur. 28. Shri Kamal Kishore Sinha, Research Assistant, Building Division, Katihar. 29. Shri Prem Nath Thakur, Research Assistant, Road Division, Jainagar. 30. Shari Krishna Singh, Research Assistant, Building Division, Bettiah. 31. Shri Birendra Nath Gupta, Research Assistant, Road Division, Kishanganj. 32. Shri Umesh Ram, Research Assistant, Sanrochna Division No.1, Patna. 33. Shri Ram Chandra Rabidas, Research Assistant, Road Division, Naugachhia. 34. Shri Anjani Kumar, Research Assistant, Vaishali Road Division, Hajipur, district – Vaishali. 35. Shri Isitayak Hussain, Research Assistant, Patna City Road Division, Patna. 36. Shri Rakesh Kumar Sinha, Research Assistant, New Capital Road Division, Patna. 37. Shri Ram Naresh Kumar Sinha, Research Assistant, Building Division, Muzaffarpur. 38. Shri Mritunjay Prasad, Research Assistant, Soil Investigation Division, New Scheme, Patna. 39. Shri Murari Sharma, Research Assistant, Building Construction & Housing Department, South Bihar Anchal, Patna. 40. Shri Surendra Prasad Singh, Research Assistant, Rural Engineering Organization, Soil Investigation Division, Patna. 3 41. Shri Sahadeo Prasad Singh, Research Assistant, Patna West Road Division, Patna. 42. Shri Jai Prakash Singh, Research Assistant, Rural Engineering Organization, Soil Investigation Division, Patna. 43. Shri Jitendra Kumar Sinha, Research Assistant, Road Division No.2, Muzaffarpur. 44. Shri Yogendra Prasad Rai, Research Assistant, Road Division, District – Ranchi. 45. Shri Rameshwar Sahu, Research Assistant, Road Division, Giridih. ___________ Respondents In CWJC No. 2843 of 1997 Bharat Singh son of Sri Deo Saran Singh, resident of Mohalla – Nagil Colony, P S – Phulwarisharif, District – Patna. _________ Petitioner Versus 1. The State of Bihar through the Secretary, Road Construction Department, Bihar, Patna. 2. The Engineer-in-Chief cum Addl. Commissioner cum Special Secretary, Road Construction Department, Bihar, Patna. 3. The Chief Engineer, Central Design Organization, Road Construction Department, Bihar, Patna. 4. Sri Suresh Prasad Sinha, father’s name not known to the petitioner, the then Chief Engineer, Central Design Organization Road Construction Department , Bihar, Patna. 5. Sri Bechan Choudhary, Research Assistant, Saurechna Pramandal No.2, Building Construction and Housing Department, Patna. 6. Shri Krishna Kumar Jaiswal, Research Assistant, Road Division, Katihar. 7. Sri Binay Kumar Singh, Research Assistant, Patna West Road Division, Patna. 8. Sri Rajiv Ranjan, Research Assistant, West Road Division, Bhagalpur. 9. Shri Ram Krishna Kumar, Research Assistant, Road Division, Bettiah. 10. Sri Upendra Prasad Verma, Research Assistant, Road, Division, Katihar. 11. Sri Birendra Nath Gupta, Research Assistant, Road Division, Kishanganj. 12. Sri Ram Chandra Rabidas, Research Assistant, Road Division, Naugachhia. 13. Sri Anjani Kumar, Research Assistant, Road Division, Vaishali, Hajipur. 14. Sri Sahdeo Prasad Singh, Research Assistant, Road Division, Patna West, Patna. 15. Sri Yogendra Prasad Rai, Road Division, Khuti. Petitioner does not know furthers’ name of all the private respondents. ____________ Respondents. 4 For the petitioners : Ms. Ratna Das. (In CWJC No.10731/96) For the private respondents : M/s. Pramod Mihsra and Prafull Chandra Thakur. (In CWJC No.10731/96). _____ P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI Ajay Kumar Tripathi, J. Both the matters were tagged but there is none to represent the petitioner in CWJC No. 2843 of 1997. However, both the writ applications are disposed of by this common order. 2. All these petitioners came to be aggrieved when in the year 1996 a promotion order came to be issued on the post of Assistant Research Officer. The said notification is Annexure-3. Their grievance was that many persons junior to these petitioners found a place in the list of promotion but the petitioners were left out. Subsequently yet another promotion order was passed. In that order also petitioners were denied the benefit of promotion. 3. Notices were issued to the private respondents, who have filed their counter affidavit as well as affidavit on behalf of the State too was filed. The common and similar stand in the two affidavits are that minimum qualification for promotion to the post in question is a B.Sc. Admittedly, the petitioners do not have the qualification of B.Sc. which is not denied. They are claiming right for promotion on the post on the basis of seniority and not on the educational qualification. 4. From the various notifications which have been annexed with the counter affidavit it is evident that the Government had notified 5 way back in the year 1977 itself that the minimum qualification for the various post over the chain of promotion would be in terms of the said notification. B.Sc. is the minimum qualification which was laid down and since these petitioners do not have the qualification it can not be a case of discrimination which is being alleged, merely because some of those persons were promoted were juniors but had better qualification. 5. Learned counsel for the petitioners submits that when the initial appointments were made, the qualifications were not there for such promotions and their claim for promotion ought to be considered in light of the rules or the circulars in existence at the time of appointments. 6. The Court has difficulty in accepting such a stand because it is not a case of fresh appointment but a case of promotion. Mere seniority cannot be the ground for promotion. If the seniority coupled with merit including minimum educational qualification have been laid down, non-availability of the same in candidates will have its fall out. Seniority therefore cannot be made the ground for discrimination and no direction is required to be issued in favour of these petitioners for promotion in the above admitted position. 7. Both the writ applications have no merit. The same are dismissed. ( Ajay Kumar Tripathi, J.) Patna High Court: The 16th November, 2010. R K Pathak (NAFR)