IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13728 of 2002 1.PURNENDU KLUMAR, son of Achyuta Nand Singh resident of Village-Sihma, P.O. Sihma Mirzapur Bandwar, District Begusrai, presently Junior Engineer (Civil), Rajendra Agricultural University, Pusa, District-Samastipur. 2.Bipin Kumar, son of Vijay Kumar Sinha, resident of village and P.O. Arap, P.S. Bikram, District-Patna, at present Junior Engineer (Civil), Rajendra Agricultural University, Pusa, District-Samastipur. Versus 1.THE RAJENDRA AGRICULTURAL UNIVERSITY Bihar through its Registrar having his headquarters at Pusa, District- Samastipur. 2.The Vice-Chancellor, Rajendra Agricultural University, Bihar, P.O. Pusa, District Samastipur. 3.The Registrar-Cum-Member Secretary, Grievance redressal Committee, Rajendra Agricultural University, Bihar, P.O. Pusa, District-Samaastipur. 4.The Director of Administration, Rajendra Agricultural University, Bihar, P.O.Pusa, District Samastipur. 5.The Comptroller and Chairman, Grievance Redressal Committee, Rajendra Agricultural University, Bihar, P.O. Pusa, Disrict Samastipur. 6.The Director of Works and Plants, Bihar Veterinary College Campus, Rajendra Agricultural University, P.O. Bihar Veterinary College campus, Patna-800014. 7.Baidyanath Prasad, son of not known to the petitioner presently posted as Assistant Engineer (Civil) Rajendra Agricultural University, Head quarter, Pusa, Samastipur. 8.Binod Kumar Srivastava, son of not known to the petitioner, presently posted as Assistant Engineer (Civil) Veterinary College, Patna. ----------- 6 16.07.2010 Heard Mr. Anand Kumar Ojha, learned counsel for the petitioners, Dr. Anil Kumar Upadhayay, learned counsel for the Rajendra Agricultural University and Mr. Akash Deep, learned counsel for respondent no.8. Prayer of the petitioners in this writ application reads as follows:- “(i)Issuance of writ in the nature of certiorari for quashing the order no.582 dated 4.12.2001 whereby and whereunder the Respondents have illegally promoted the private Respondent no.7 2 and 8 to the post of Assistant Engineer in excess to the quota Rule and contrary to law. (ii)Issuance of further direction to the Respondent University to consider the case of promotion of eligible Degree holders Junior Engineers to the post of Assistant Engineer by maintaining the prescribed quota’s post including the cases of the petitioners. (iii)Issuance of further direction to declare the quota of degree holder and diploma holder Junior Engineers for promotion to the post of Assistant Engineer separately, abiding by the rules prescribed for the Engineering cadre of the State Government i.e, 22% for degree holders and 28% for diploma holders.” At the out set Mr. Ojha, learned counsel for the petitioners, realizing the limitations under Article 226 of the Constitution would give up the prayer made in Sub. Para (iii), namely, a direction for framing of rules to the suitability and convenience of the petitioner so that the degree holders in the cadre of Junior Engineer can get preference in the matter of earning promotion, inasmuch as, the legislative functioning must be left to the rule maker and this Court cannot exercise such power for either issuance of a direction for framing service rule or laying down the terms and conditions of service. The next prayer of the petitioners as with regard to quashing the order dated 4.12.2001 promoting respondent nos. 7 and 8 on the post of Junior Engineer, is also not sustainable as it has been rightly pointed out by the respondents that the petitioners were appointed on the post of Junior Engineer having qualification of degree in Engineering only in the year 1999 and had not been inducted in the cadre after completion of probation. As a matter of 3 fact, the petitioners have also not completed the minimum KALAVADHI prescribed for earning the promotion on the post of Assistant Engineer, which according the petitioners is five years and eight years, according to the Respondent. In that view of the matter, if the petitioners were yet to become member of the Cadre pursuant to their confirmation or had not completed KALAVADHI, they would not be eligible muchless in the zone of consideration for such promotion and therefore they must be held to be ineligible for such promotion. It is well settled by now and infact an established concept under the service jurisprudence that if a person does not hold qualification or ineligible for appointment or promotion, he cannot be permitted to challenge appointment or promotion of others. Thus the prayer of the petitioners for quashing the order of promotion of respondent nos. 7 and 8 must fail. The prayer of the petitioners for a direction to the University to consider the case of promotion of eligible degree holder Junior Engineers including themselves to the post of Assistant Engineer by carving out certain quota exclusively for them has to be only again noted for its being rejected. The Statutes of the Rajendra Agriculture University (hereinafter referred to as the University) clearly laid down the norms of promotion. 14.2 of the Statutes reads as follows:- “Post of the Registrar, Comptroller, Director (Administration) shall be filled up by direct recruitment or by obtaining the services of suitable officers on deputation from the State or Central Government or I.C.A.R. or Universities. 4 The post of Deputy and Assistant Registrar, Deputy and Assistant Comptrollers, Deputy and Assistant Director (Administration)Recruitment Officer and posts of equivalent rank as per sanctioned posts may be filled up either by direct recruitment or by promotion of officers of lower rank within the University or transfer from equivalent rank, provided that: (i)50 percent of the vacancy may be filled up by promotion from lower rank and 50 percent by direct recruitment. This should be done on one is to one basis by alternate rotation. In other words, if the first vacancy is filled up by direct recruitment the next vacancy be filled up by promotion. (ii)The recommended percentage of vacancy should be filled up by promotion only when suitable qualified candidates are recommended on merit-cum-seniority basis by the Evaluation Committee.” From a bare reading of the aforementioned statutory provisions relating to promotion in the University, it would become more than clear that the promotion has to be made on the basis of merit-cum-seniority. Such evaluation of merit-cum- seniority has to be made on the basis of performance of a person in a cadre where in educational qualification at the time of entering in the cadre by itself cannot be made sole criteria for making separate class or carving a quota for degree holders junior engineers. In the present case, the petitioners, though degree holders in the discipline of Engineering with open eyes had opted to become Junior Engineer requiring only the minimum qualification of diploma in the various subjects of engineering if they thereafter had claimed promotion on the post of Assistant Engineer, they too were required to complete all the laid down norms for promotion on the principle of merit-cum-seniority 5 which means that merit being equal the seniority will have to be followed . There is nothing in the statutes which provides that only because entering of in the cadre of Junior Engineer as a degree holder they became would more meritorious and thus would be entitled to be considered on preferential basis for promotion on the higher post of Assistant Engineer. The statute of the University provides promotion on the basis of merit-cum-seniority and not only on merits and therefore the whole claim of the petitioner on that score must fail. Reliance placed by the petitioners on the order of the Apex Court dated 28.7.1994 in Civil Appeal No.3983 of 1989 (Nageshwar Prasad & Ors Vs. Union of India & Ors) and its analogous cases is wholly misplaced as would appear from beginning paragraph of order of the Apex Court noticing that there was a rule framed under proviso to Article 309 of the Constitution amending the Central Water Engineering (Group B) Service Rules, 1964 providing promotion on the higher post of the Engineers amongst the diploma holders and degree holders in the quota on 50:50 basis. Such rule however is not in existence in the University and therefore the petitioners cannot seek support from the judgment of Apex Court in the case of Nageshewar Prasad (Supra). It is well settled that the ratio of the judgment has to be culled out on the basis of law laid down and not on any stray observation made therein. On analysis of the facts and the Rules which were taken into consideration by the Apex Court this Court 6 has no hesitation in holding that in the case of the petitioners the ratio of judgment of the Apex Court in the case of Nageshwar Prasad ( Supra) will have no application. The remaining part of grievance of the petitioner with regard to some internal communication in the relevant paragraph nos. 3,4 and 8 by the University to the Government seeking guidelines as with regard to manner of fixation of seniority or promotion, can also not clothe any right to the petitioners. The Director of Administration of University if in ignorance of the statutes of the University had sought certain guidelines from the State Government for framing a separate Regulation for degree holder engineers that will not mean that there was something missing in the statutes or in the Service rules which required separate consideration for the degree holder Junior Engineers for fixation of their seniority for earning promotion on the post of Assistant Engineer. This Court, therefore, would not dwell any further on this aspect save and except observe that the authorities of the University should adopt a cautions approach in entering into correspondence with the Government which may create an impression of its favouring one set of employees at the cost of the other set of employees. The long and short case of the petitioners therefore is that they want out of turn promotion on the basis of their being higher qualification. In the opinion of this Court the petitioners cannot claim such promotion on the basis of higher qualification 7 as they have chosen to take employment on the lower post despite having higher qualification. That being so, this Court is satisfied that there is no merit in this application and the same must be and is, accordingly, dismissed. Abhay Kumar ( Mihir Kumar Jha, J.)