IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8986 of 2004 GHAN SHYAM SINGH S/O MADHUSUDAN SINGH R/O MOHALLA- YARPUR, SHIVAAJEE PATH PS-GARDANIBAGH DISTT- PATNA----------------------PETITIONER Versus 1. THE STATE OF BIHAR 2. COMMISSIONER-CUM-SECY. WATER RESOURCES DEPTT. SINCHAI BHAWAN, NEW SECRETARIAT, PATNA 3. ENGINEER-IN-CHIEF WATER RESOURCES DEPTT. SINCAHI BHAWAN, NEW SECRETARIAT, PATNA 4. CHIEF ENGINEER, WATER RESOURCES DEPTT.( SINCHAI) ANISHABAD,PATNA---------------RESPONDENTS. ----------- 5 2.8.2010 Heard learned counsel for the parties. Order dated 2.4.2003 contained in annexure-8 is being sought to be challenged by the petitioner in the present writ application. This is his second visit to the High Court after his earlier writ application was disposed of with a direction upon the respondents to consider his case for promotion to the post of Superintendent and to pass reasoned order on his representation or claim thereto. The Commissioner-cum-Secretary, Department of Water Resources has rejected the claim of the petitioner which is not palatable to the petitioner. Contention of learned counsel is that the stand taken by the Commissioner in paragraph-3 of the said order that there are two separate cadres, one of Financial Advisor and the other of Engineering Cell, is not based on any decision taken in this regard or in accordance with any rule made thereto under Article 309 of the Constitution of India. The stand of the State that post of Superintendent is only available for the cadre of Financial Advisor and not to the cadre of Engineering Cell is therefore wrong. This stand has been fortified by the so called joint - 2 - gradation list prepared and issued by the Department contained in annexure-3 which is dated 27.11.1992. The stand of the State in the counter affidavit is that the petitioner is an employee of the Engineering Cell. Except for a short span of time when he worked in the office of Financial Advisor, he has been an employee in the Engineering Cadre and posted at various places in the field from time to time. The Secretary-cum-Commissioner of the Department has based his decision on the basis of governmental notification issued way back on 1.8.1975 which is contained in annexure- G to the supplementary counter affidavit. Right through thereafter the office of the Financial Advisor and the Engineering Cell have been treated separately. The gradation lists issued from the Financial Advisor Office in this regard from time to time have been brought on record to show such a division. There is categorical statement that the name of the petitioner never figured in the lists. There is no post in existence for promotion on the post of Superintendent so far as the Engineering Cell is concerned. So the claim of the petitioner that he ought to be promoted to the post of office Superintendent has no ground or basis. The ultimate clincher on this issue is the gazette notification dated 19th December, 1989 which is a resolution of the Finance Department and is annexure K to the supplementary counter affidavit. This gazette notification gives the various replacement scales to the posts available for various departments - 3 - and establishments in the matter relating to the Irrigation Department. The attention the Court has been drawn to pages 43 and 44 of the said supplementary affidavit (running page 116 and 117 of the gazette notification). Learned counsel for the State has demonstrated before this Court that there is no post of office Superintendent available to be filled up so far the Engineering Cadre is concerned. The last of the post in this cadre is that of Senior Account Clerk i.e. the post petitioner was holding at the time of superannuation. In the next column which is related to the office of the Financial Advisor, there is a post of Superintendent. If the stand of the petitioner is taken into consideration as correct then the recommendation and pay scales notified earlier would be contrary to so called decision of bifurcation. But it is not so. Right through there is distinction in the pay scale of both cadres and at no point of time the petitioner had taken any objection to such bifurcation. It is only on the verge of retirement or after retirement that he started claiming the benefit of promotion on the post of Superintendent which is not available to the cadre to which the petitioner belonged. In fact, there is something to indicate in paragraph 10 of the counter affidavit that the petitioner had himself opted for the super time scale of Rs. 1640-2900/- which was given to him vide letter no. 1189 dated 25.2.1997. This is also a circumstance to show that the petitioner was being treated in the Engineering cell separately and benefit of time bound promotion had accrued to him on the basis of the - 4 - same. In view of overwhelming evidence brought in the counter affidavit in support of the bifurcation, the reasoning given in paragraph-3 of the impugned order contained in annexure-8 seems to be cogent or reasonable. No case for promotion to the post of Superintendent is made out in absence of any avenue in the cadre of the petitioner. This writ application has no merit and it is dismissed. RPS (Ajay Kumar Tripathi, J.)