CIVIL WRIT JURISDICTION CASE No.3807 OF 1995 (In the matter of an application under Article 226 and 227 Constitution of India.) ****** RAMJEE PRASAD SINGH, son of Shri Moti Lal Choudhary, Village and Post Mani District Rohtas at present Assistant Engineer (Mechanical), Water Resource Department, Government of Bihar --------------Petitioner Versus 1. THE STATE OF BIHAR through the Commissioner, Water Resources Department, Government of Bihar, Sichai Bhawan, Patna 2. The Joint Secretary, Water Resources Department, Government of Bihar, Sichai Bhawan, Patna. 3. The Deputy Secretary (Establishment), Water Resources Department, Government of Bihar, Sichai Bhawan, Patna. 4. Shri Gangadhar Giri, son of not known to the petitioner. 5. Shri Dinesh Kumar Sinha, Executive Engineer, Son of not known to the petitioner. 6. Shri Dharnidhar Upadhaya, Executive Engineer, Son of not known to the petitioner. 7. Shri Dhanik Lal, Son of not known to the petitioner. 8. Shri D.C. Mishra, Son of not known to the petitioner. 9. Shri Nikunj Bihari Aggarawal, Son of not known to the petitioner. 10. Shri Rajendra Sinha, Son of not known to the petitioner. 11. Shri Trilok Nath Jha, Son of not known to the petitioner. 12. Shri Rajeshwar Prasad Singh, Son of not known to the petitioner. 13. Shri Mohan Lal, Son of not known to the petitioner. 14. Shri Jalil Ahmed, Son of not known to the petitioner. 15. Shri Krishna Kumar Singh, Son of not known to the petitioner. 16. Shri Amrendra Kumar Thakur, Son of not known to the petitioner. 17. Shri Ramesh Kumar, Son of not known to the petitioner. 18. Shri Gokul Prasad Vishwas, Son of not known to the petitioner. 19. Shri Shikhawat Ali, Executive Engineer, Son of not known to the Petitioner. All though the Commissioner, Water Resources Department, Government of Bihar, Sichai Bhawan, Secretariate Building, Patna -------------------- Respodnents. ****** For The Petitioner :- Mr. Akashdeep, Adv. Mr. Shyameshwar Kumar Singh, Adv. For The Respondent :- Shri Lalit Kishore, Sr. Adv. AAG-III Mr. Anshuman Singh, Adv. ****** 2 P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA ****** Navin Sinha, J. Mr. Akashdeep, Advocate is permitted to file fresh Vakalatnama as the earlier counsel is stated to have withdrawn from the legal profession. Heard learned counsel for the petitioner and learned counsel for the State. Private respondent nos. 7 and 8 were directed to be deleted at the request of the petitioner by order of this Court on 3.5.1996. Private respondent nos. 4 to 6 and 9 to 19 have been duly served but have not entered appearance. On 8.12.1995, this Court had ordered that any promotions in the meantime shall remain subject to the result of the writ petition. Learned counsel for the petitioner submits that he has instruction to state that during the pendency of the writ application, the petitioner and the private respondents have all superannuated. The controversy in the case concerns the seniority of the petitioner on the post of Assistant Engineer from the date that he came into that cadre vis- à-vis the private respondents who have been born in the cadre of Assistant Engineers at a later date but are 3 sought to be given their seniority on basis of their appointment and officiating on the feeder post of Engineer Assistant or Junior Engineer as the case may be from a prior date. Earlier the Minor Irrigation, the River Valley Project and the Irrigation Department constituted three different services with different cadre. The petitioner was appointed in the Minor Irrigation Department as a Surveyor in the work charged establishment on 25.9.1968. it was redesignated as a Junior Engineer on 19.12.1968 in the work charged establishment. He held the qualification of a graduate engineer. The private respondents were appointee in one of the three departments as Junior Engineer/ Engineer Assistants. The State on 20.7.1974 decided to merge these three departments i.e., Minor Irrigation, River Valley Project and Irrigation Department and created an amalgamated cadre of the Irrigation Department (now called the Water Resources Department). It is the case of the petitioner that on 3.10.1972, acknowledging that he held the qualification requisite for appointment on the post of Assistant Engineer, his services were regularized in that capacity from under the work charged establishment. Dealing with the said assertion of the petitioner, the 4 respondents in Paragraph-5 of their counter affidavit have stated that it was a matter of record. On 22.4.1978, formal orders were issued acknowledging the earlier ad hoc promotion of the petitioner on the post of Assistant Engineer and now formally granting him that pay scale with effect from 22.11.1973 which shall therefore be deemed to be the date of his substantive promotion to the post of Assistant Engineer in Class-II of the Bihar Engineering Service. It is, therefore, clear that the petitioner was born in the cadre of Assistant Engineers on 22.11.1973. Under the Bihar Public Works Department Code the Bihar Engineering Service is divided into three classes. The petitioner comes in Class-II and the private respondents in Class-III. After the merger of the three departments of Minor Irrigation, River Valley Project and Irrigation Department to which the private respondents belonged variously, a new seniority list of persons in the cadre of the Irrigation department was prepared. It needs to be noted that in this process the post of Engineer Assistant was abolished in a phased manner commencing from 1974 and culminating in 1979. Consequent to the decision to abolish the cadre of Engineer Assistants the private respondent were promoted as Assistant 5 Engineers on different dates from October, 1974 onwards as is to be found from their respective entries in Annexure-2 to the writ application preparing the final gradation list of Assistant Engineers in the amalgamated cadre dated 9.1.1991. This amalgamated seniority list in column-4 states that the seniority of the incumbent in their respective cadres before amalgamation i.e., Junior Engineer or Engineer Assistant was being reckoned as the date from which their seniority would count in the amalgamated cadre of Assistant Engineers. This seniority list was prepared afresh after the earlier seniority list dated 28.1.1981 was found to be erroneous by this Court. In this amalgamated seniority list of 9.1.1991 in the manner indicated by the respondents, the petitioner found himself at serial no. 88 below the private respondents who were shown as senior to him reckoning their date of appointment and seniority in the earlier cadre of Junior Engineer and/or Engineer Assistant as the case may be from the date of amalgamation i.e., 20.7.1974. The petitioner objected to such wrong fixation of his seniority. The matter remained pending. In the meantime, he was placed under suspension and departmental proceedings 6 initiated against him in the years 1990-91. It has been stated at the Bar that finally the petitioner has been exonerated of the allegation in the departmental proceeding by formal orders dated 17.3.2006 after his superannuation on 31.12.1999. While the petitioner was facing suspension and departmental proceedings, the respondents acknowledged to have promoted him in an officiating capacity to the post of Executive Engineer on 31.12.97 in the pay scale of Assistant Engineer. It is the case of the petitioner that he retired while holding the post of Executive Engineer in incharge capacity. Further more while he was facing the departmental proceedings, the private respondents with whose placement in the seniority list above him, the petitioner was aggrieved, and had represented, were granted time bound promotion, regular promotion and Ad hoc promotion as Executive Engineer and which came to be confirmed subsequently. Earlier in the departmental proceedings the petitioner had been punished when the recommendation of the DPC was directed to be kept pending because of the orders of punishment. Learned counsel for the petitioner submitted that the feeder posts for promotion to the post of 7 Assistant Engineer was from Engineer Assistant and Junior Engineers. In the case of the former 20 % posts were reserved for promotion while the rest were to be filled by direct recruitment. In the case of Junior Engineer eight years service followed for promotion to the post of Assistant Engineer else it was after promotion to the post of Engineer Assistant followed by promotion to the post of Assistant Engineer. Relying upon a judgment reported in 1994 supp (3) SCC 451 (Uday Pratap Singh & Ors. Vs. State of Bihar & Ors.), the short submission made on behalf of the petitioner was that once he was born in the cadre of Assistant Engineers before any amalgamation of the cadres of Junior Engineer and Engineer Assistant, any seniority of a person on a post below Assistant Engineer, outside and not born in the cadre becomes irrelevant for reckoning of seniority in the cadre of Assistant Engineers. The submission was that one who is not even born in the cadre of an Assistant Engineer on the date that the petitioner acquired his seniority in the cadre of Assistant Engineer, cannot claim seniority above him based on any purported seniority in a cadre below that of Assistant Engineer. In the case of Uday Pratap Singh (supra) relied upon by the petitioner, the controversy related to 8 the issue of seniority between persons in the senior branch and junior branch of the Bihar Finance Service. Those who were appointed in the senior branch directly, lost their seniority to those appointed in the junior branch after amalgamation reckoning seniority from the date of amalgamation based on their date of entry in the junior branch before amalgamation. The Supreme Court in the relevant extract of the judgment at Paragraph-6 held as follows:- “ In the present case it has to be kept in view that the contesting respondents were directly recruited and appointed in the Senior Branch on 12.5.1974 and 25.5.1974 respectively, while the appellants were appointed on 2.11.1975 in the merged cadre. It is true that their order of appointment purports to give them appointment retrospectively from 1.4.1974 but such effect cannot be given so as to destroy the seniority rights of the writ petitioners, respondents herein, who were inducted as direct recruits in the Senior Branch prior to 2.11.1975. The earlier decision of the Patna High Court in the case of Kartik Charan Jha case was rightly distinguished by the Division Bench in the present case as in Jha case the direct recruits were inducted much after 2.11.1975 when the mergees got their Junior Branch’s appointments upgraded to the combined merged cadre and became a part and parcel of the Senior Branch earlier to these direct recruits, while in the present case all the contesting respondents had entered the Senior Branch much prior to 2.11.1975 as seen above. Therefore, they were entitled to be treated as seniors to the appellants.” Learned counsel for the State opposes the 9 application relying upon the recitals contained in item 4 of the gradation list dated 9.1.1991 that seniority had been reckoned based on the date of entry and seniority in the cadre of Junior Engineer/Engineer Assistant prior to amalgamation from the date of merger. This Court is satisfied not to burden this judgment any further unnecessarily after having quoted extensively from the judgment of Uday Pratap Singh (supra). This Court, therefore, holds that the petitioner was undoubtedly senior to the private respondents having been born in the cadre of Assistant Engineer much prior to the amalgamation and entry in the cadre. He is entitled to count his seniority on the post of Assistant Engineer accordingly and is also to be considered for promotion to the next higher post of Executive Engineer accordingly from the date that his juniors have been promoted. If by that process, the petitioner becomes eligible to be considered for any higher post of Superintending Engineer etc., the respondents are obliged to do so. The respondents themselves granted him ad hoc promotion to the post of Executive Engineer in his substantive rank of Assistant Engineer. This Court has already held that the petitioner is senior to the private respondents in the cadre of Assistant Engineer. The grant of ad hoc 10 seniority to the petitioner on the post of Executive Engineer and on which he continued to work till his superannuation leads to the conclusion that he was fully eligible and qualified to hold that post. The departmental proceedings looses its relevance for that purpose in view of the subsequent exoneration as has been urged. The petitioner is therefore deemed to have held the post of Executive Engineer substantively from the due date that is to be reckoned computed from the date that his juniors may have been promoted to the post of Executive Engineer. The respondents are now directed to place the petitioner in his seniority position in the gradation list of Assistant Engineers above the private respondents reckoning the same from 22.11.1973. Let the date of his substantive promotion to the post of Executive Engineer be fixed afresh from the date that his juniors may have been promoted from the cadre of Assistant Engineer. Based upon the same, let the respondents also examine and consider the case of the petitioner for any higher promotions above that of Executive Engineer till his superannuation. Needless to state that the petitioner shall be entitled to all consequential benefits accordingly. Let the same be done by the respondents and 11 the legitimate dues be paid along with revision of his pensionary benefits all within a maximum period of six months from the date of receipt/production of a copy of this order. The Court has consciously granted the respondents more than reasonable period of time for carrying out the entire exercise. In the event of their failure to do so, and the petitioner being compelled to approach this Court again, the issue of grant of appropriate interest may arise for consideration by the Court. The writ application stands allowed. Patna High Court Dated the 01st April 2010 P. Kumar/ NAFR (Navin Sinha, J.)