IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.547 of 2010 1. RAJESHWAR UPADHYAY S/O LATE ANIRUDH UPADHYAY R/O VILL.- MIRZAPUR, P.O. + P.S. - MIRZAPUR, DISTT.- EAST CHAMPARAN, AT PRESENT RESIDING AT L.R.P. COLONY, P.S.- MOTIHARI NAGAR, DISTT.- EAST CHAMPARAN Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY PUBLIC WORKS DEPARTMENT, BIHAR, PATNA 3. THE ENGINEER-IN-CHIEF-CUM-SPECIAL SECRETARY - CUM - ADDITIONAL COMMISSIONER ROAD CONSTRUCTION DEPARTMENT, GOVT. OF BIHAR, PATNA 4. THE CHIEF ENGINEER NATIONAL HIGH WAY WING, GOVT. OF BIHAR, PATNA 5. THE SUPERINTENDING ENGINEER N. H. CIRCLE, MUZAFFARPUR 6. THE EXECUTIVE ENGINEER N.H. DIVISION, MOTIHARI 7. THE ESTABLISHMENT COMMITTEE OF N. H. CIRCLE, MUZAFFARPUR, REPRESENTED THROUGH THE SUPERINTENDING ENGINEER N.H. CIRCLE, MUZAFFARPUR With CWJC No.602 of 2010 1. SATYENDRA NARAYAN SINGH S/O LATE BHUPENDRA NARAYAN SINGH R/O VILL RAUTA, P.O.RAUTA, DISTT-SAHARSA Versus 1. THE STATE OF BIHAR 2. 2. THE PRINCIPAL SECRETARY, PUBLIC WORKS DEPARTMENT BIHAR, PATNA 3. THE ENGINEER -IN-CHIEF-CUM -SPECIAL SECRETARY-CUM-ADDITIONAL COMMISSIONER ROAD CONSTRUCTION DEPARTMENT, GOVT. OF BIHAR, PATNA 4. THE CHIEF ENGINEER , NATIONAL HIGH WAY WING GOVT. OF BIHAR, PATNA 5. THE SUPERINTENDING ENGINEER, N.H.CIRCLE MUZAFFARPUR 6. THE EXECUTIVE ENGINEER, N.H.DIVISION MOTIHARI 7. THE ESTABLISHMENT COMMITTEE OF N.H.CIRCLE MUZAFFARPUR, REPRESENTED THROUGH THE SUPERINTENDING ENGINEER, N.H.CIRCLE, MUZAFFARPUR ----------- 02/ 24.06.2010 Heard counsel for the petitioners and counsels appearing for the State. Prayer of the petitioners in both the writ applications is for quashing of the orders, whereby promotion given to them from Class IV to Class III post - 2 - has been struck down. The petitioner in CWJC No. 547 of 2010 has prayed for quashing of the order no.58 dated 10.12.2009 contained in Memo No. 2781 issued by Engineer-in- Chief cum Special Secretary cum Additional Commissioner, Road Construction Department, Govt. of Bihar. Patna and also for quashing of the order dated 01.06.2009 bearing order no. 06 issued by the Superintending Engineer, N.H. Circle, Muzaffarpur. The petitioner in CWJC No. 602 of 2010 has prayed for quashing of the order dated 28.10.2009 contained in Memo No. 4097 (E) issued by Engineer-in-chief cum Special Secretary cum Additional Commissioner, Road Construction Department, Govt. of Bihar, Patna, whereby the promotion given from the post of Peon to Class III has been struck down for the reason that without following the procedure for appointment by way of promotion, this benefit had been allowed to the petitioner. Petitioner has also prayed for quashing of order dated 1.6.2009 bearing order no. 5 issued by the Superintending Engineer, N.H. Circle, Muzaffarpur, - 3 - setting aside the order of promotion. The impugned orders have been assailed by the petitioners on the ground that without considering the direction of this Court in their earlier writ applications, the impugned orders have been passed. The admitted fact is that both the petitioners are initially appointed on Class IV post of Peon. Subsequently, when some vacancy occurred, the Superintending Engineer of the concerned department, without following the procedure for appointment by way of promotion from Class IV to Class III posts, issued order for promotion of these two petitioners as well as some other persons. Subsequently, the objection was raised by the Vigilance and on enquiry it was found that no internal limited examination was conducted, seniority was not considered, reservation policy was not followed and without seeking any permission from B.P.S.C. the petitioners and other persons were given promotion from Class IV to Class III Post. I find that a detailed order has been passed by the Superintending Engineer, which is Annexure- 3, - 4 - dated 1.6.2009 contained in order no. 05 and 06 respectively, in both the writ applications. The Superintending Engineer has competence to pass orders of promotion but that could be done only by following due process provided for the same. The persons working on regular Class IV posts, who have completed the requisite number of years of service, being successful in limited examination for promotion, could be appointed/promoted on Class III posts, observing the reservation policy in this regard. On the basis of recommendation of the Departmental Promotion Committee. Since none of the procedure was followed petitioners were given promotion, which is an appointment by way of promotion, it cannot be treated as a legal promotion. Rightly the objection was raised and the promotion given to the petitioners have been cancelled. I do not find that any jurisdictional or procedural error, so far impugned orders are concerned. However, the petitioners have worked and discharged duties on promotional post, may be on the basis of the - 5 - order, which was subsequently found to be illegal, but considering the fact that they have worked, the salary of the promotional posts received by them shall not be recovered. Writ applications are dismissed. DKS/ (Mridula Mishra, J.)