1. This Intra-Court Appeal, under Clause 10 of the Letters Patent of Patna High Court, has been filed against final order dated 16.08.2010 passed in CWJC No. 3626/2004 (Vijay Kumar vs. State of Bihar and others). The appellants were respondent nos. 5 and 6 in the writ petition. On notice, parties have appeared and pleadings are complete.
2. We have heard Sri Y.V. Giri, learned Senior Counsel for the appellants and Sri Jitendra Singh, learned Senior Counsel for the contesting respondents, who were the writ petitioners.
3. Though, the dispute has a very long chequered history, it is ultimately the question whether for the promotion from the cadre of Junior Engineers to the cadre of Bihar Engineering Service Class – II i.e. Assistant Engineer, can there be an alteration in the combined gradation list of the cadre of Junior Engineers depending upon whether a Junior Engineer was a graduate or an equivalent degree holder at the time when he joined the service in the cadre or he acquired the said graduate or equivalent qualification while in service.
4. The writ petitioners, who are respondents in this appeal, were Junior Engineers, who were graduate Engineers or AMIE certificate holder which is equivalent to graduation in Engineering, from before joining their service, whereas the appellants, who were the respondents in the writ proceedings, were diploma holder engineers, who in course of service acquired either a graduate degree or the AMIE certificate. In an ultimate analysis, the question would be the determination of their inter se seniority, if it could vary on the basis of the qualification so acquired during service.
5. The facts are not in dispute. From amongst the long chain of events we would only be referring to the facts which are relevant for the purposes of deciding the issues involved in this litigation.
6. The dispute primarily is the grievance of the writ petitioners who are graduate Engineers from before joining the service, who were originally senior to the respondents/appellants and who came into the service as diploma holders, and then acquired the graduate equivalent engineering degrees, and later were promoted to the cadre of Assistant Engineers and some of them, now to the cadre of Bihar Engineering Service Class – I i.e. Executive Engineer. The writ petitioners, notwithstanding being senior to them, are still languishing as Junior Engineers. When their protest went unheeded, they filed the writ petition.
7. The events start from 1979. The basic cadre of engineering service is the Bihar Subordinate Engineering Service which consists of Junior Engineers. Educational qualification required for getting into this cadre is diploma in engineering which has been fully discussed by this Court in the case of Bihar Engineering Service Association Vs. State of Bihar since reported in 2013 (1) PLJR 410. The situation being that degree-holder i.e., B.E. and its equivalent i.e. AMIE certificate holders are unable to get jobs at the requisite level and, therefore, they also applied for the post of Junior Engineer, which is basically for diploma holders. Thus, in the cadre of Junior Engineers, basically there were two groups of engineers, one, graduate engineers, and second, diploma holder engineers.
8. It appears in the year 1979, the State Government contemplated to give incentive to diploma holders to acquire graduate degree qualification, because the diploma holders though from Bihar Subordinate Engineering Service could get promoted to Bihar Engineering Service Class-II i.e., Assistant Engineer, but they could not get promoted further into Bihar Engineering Class - I service i.e. Executive Engineer, whose minimum qualification was graduation. Accordingly, for entry into the Bihar Engineering Class-II service i.e., Assistant Engineer, it was provided that 62 % of the vacancies in the cadre of Assistant Engineers would be filled by direct recruitment, 3% would be for those Junior Engineers who got in as diploma holders, but in course of service, acquired the graduate degree or its equivalent, and, the balance 35 % was to be filled up again by promotion from Junior Engineers from amongst the diploma holders and graduate engineers, who were graduate from before joining the service. This is the Government Resolution dated 17.01.1979. Thus, in the cadre of Junior Engineers, three classifications were made as between Engineers, those who were diploma holders, those who had acquired degree or equivalent certification in course of employment, and those who were graduates before joining the service. This classification gave an undue advantage to diploma holders, who either completed their graduation while in service or acquired graduation while in service, over Engineers, graduate from before. This was challenged in this Court, on the ground that the classification was irrational and worked to the disadvantage of the engineers graduate from before. Graduate engineers, who may have been senior in the Combined Gradation List to a diploma holder, but if the diploma holder acquired graduation or certificate equivalent, in course of employment long after the graduate engineers, they would get a special avenue of promotion over their seniors into the cadre of Assistant Engineers. This Court in C.W.J.C. No. 8744 of 1992 (Ashok Kumar Sinha Vs. The State of Bihar) by judgment and order dated 19.05.1994, clearly held that the classification was invalid.
'In my opinion, the petitioners can not be denied the same benefit, specially when it is not in dispute that some of the petitioners are even senior to those Junior Engineers who are similarly situate and given benefit of promotion against 3% quota vide aforementioned orders of respondents authorities. Thus, the action of the respondents authorities to deny the same benefit to the petitioners is wholly arbitrary and violative of Articles 14 and 16(1) of the Constitution of India. In the result, the writ applications are allowed and the respondents authorities are directed to give the same benefits to the petitioners also as have been given to other similarly situate in the department and consider their cases for promotion in B.E.S. Class II as against the aforementioned 3% quota expeditiously, preferably within a period of three months from the date of receipt/production of a copy of this order/Judgment.'
9. Having thus held the classification to be invalid, his Lordships held thus, to conclude the judgment. The effect of this judgment to us, was clear that this distinction as between graduate engineers joining the service as graduates, or, the diploma engineers acquiring graduation degree or its equivalent certificate in course of service was to be removed. All engineers, who had graduate qualification before joining service or had acquired graduate qualification during service became one as a class, and both of them were required to be considered collectively in the 3% quota. Effectively, the distinction between graduate engineers and those diploma engineers acquiring graduate qualification was removed and in the 3% quota for appointment by way of promotion from Junior Engineer to Assistant Engineer, all graduate engineers, who at the time of consideration being graduates were to be considered as one class. The remaining 35% was left only for diploma holders. Thus, the clauses of 1979 Circular making this distinction between graduate engineers and those diploma engineers, who acquired graduation in course of service stood removed, and effectively declared ultra vires. Now, all graduate engineers had to be considered as one class for promotion through this reserved quota.
10. Needless to repeat that upon entry into the cadre of Junior Engineers, earlier there used to be a common gradation list of all the three types of Junior Engineers i.e., graduate at the time of entry into the service, those acquiring graduation or equivalence in course of employment as Junior Engineers and those who are merely diploma holders because the eligibility for this post was only diploma in engineering, but because of the distinction made by the 1979 Circular, question also arose as to the inter se seniority amongst those diploma engineers, who had acquired graduation or its equivalent certification in course of employment. This was necessitated because of two facts. Firstly, a person before he could be considered for promotion to the cadre of Assistant Engineers, had to spend five years time as a Junior Engineer, and the second that diploma holders who were acquiring graduation qualification at different times during course of service. State, accordingly, came up with a Circular how seniority would be determined inter se amongst diploma holders, who had acquired graduation in course of employment. That effected the right of the writ petitioners to be considered for promotion because that altered the inter se seniority in the common gradation list. This became the subject matter of litigation once again.
11. To maintain the sequence of events, we may notice that against the judgment of the learned Single Judge in the case of Ashok Kumar Sinha (supra), State filed a S.L.P. straight in the Apex Court, which was dismissed leaving the question of law open. It was so dismissed in 1994 itself. To us, the effect of this was that the judgment of the learned Single Judge in the case of Ashok Kumar Sinha (supra) remained operative. Notwithstanding the aforesaid, on 22.07.1998, State once again came up with the Circular, whereby the same principles which was there in the 1979 Circular was brought back. The only change was that the 3% quota which had been fixed under the 1979 Circular for diploma engineers acquiring graduation degree or equivalent certificates in course of employment was increased from 3% to 10%. This was obviously because the State was oblivious of or chose not to follow the judgment in the case of Ashok Kumar Sinha (supra) and the order of the Supreme Court thereon.
12. Now, taking into account, the effect of the 1998 Circular and the Circulars issued prior thereto in relation to change of inter se seniority amongst the diploma holders, who were acquiring the graduation degree in course of service, a new litigation started as between the diploma holder Junior Engineers, who had acquired the graduation or its equivalent in course of service. The matter ultimately reached the Apex Court in the case of Pramod Kumar Pankaj Vs. The State of Bihar and another since reported in (2004) 3 S.C.C. 723. The Apex Court held that, in absence of statutory rule fixing inter se seniority, the general principle of determination of seniority would apply. It clarifies that the general principle would be the length of service in the cadre or if the recruitment was done in a singular transaction then as per the merit list at the time of selection. The effect to us of this judgment is, once again the combined gradation list would be restored without their being any discrimination as between graduate engineers joining the service, and those acquiring graduation in course of service, as also between diploma holders who acquired graduation in course of service. The net result of the judgment of this Court in the case of Ashok Kumar Sinha (supra) and Pramod Kumar Pankaj (supra) would be that gradation list of the Junior Engineers would remain the gradation list dependent upon their respective seniorities as at the time of entry into the cadre of Junior Engineers. The distinction, as between graduate engineers entering the service and those acquiring graduation in course of service had been removed and the discrimination in criteria of re-arranging seniority amongst the diploma holders engineers, who acquired graduate on different dates also, have been removed. The net result would be that the gradation list had to be a gradation list simplicitor, irrespective of graduation degree. As to when the question of promotion would arise, the promotions had to be on basis of such a non-discriminatory gradation list. Only one bifurcation was now possible i.e., at the time of consideration of promotion, graduates amongst the Junior Engineers would as per their original seniority would come in 10% quota leaving diploma holders for the balance 28%, 62% being for direct recruits. Unfortunately, this was not to be. Again when promotions were being considered from the Subordinate Engineering Service to Subordinate Engineering Service Class –II, that is, Junior Engineer to Assistant Engineer, the writ petitioners, who are respondents herein, were not being considered in this 10% quota. They approached this Court. They were asked to make a representation before the Department. Upon representation being made, the department rejected their claim, this time, relying upon the 1998 Circular forgetting the earlier judgment of Ashok Kumar Sinha (supra). This brought them to this Court in the present writ petition. In the present writ petition they specifically challenged the validity of the 1998 Circular as being in violation of the law declared by this Court in the case of Ashok Kumar Sinha (supra), where similar provisions of the 1979 Circular had already been struck down as discriminatory. They sought their promotion on the basis of a common gradation list, which was originally prepared. They objected to the respondents in the writ petition, who are appellants herein being given promotion in the reserved quota of 10%, even though, they were junior to the writ petitioners. The writ petition was filed in 2004 and was pending. In the meantime, the respondents in the writ petition, who are appellants herein, were promoted, and the writ petitioners, who are even though senior and were graduates long before them, denied promotion. All these were subject matter of challenge.
13. When, this writ petition came up for final disposal, learned Single Judge only recorded that the matter has been settled by the decision of the Supreme Court in the case of Pramod Kumar Pankaj (supra), and relegated the matter to the department. The respondents being aggrieved are now in Appeal.
14. Mr. Giri, learned Senior Counsel appearing for the appellants, who were diploma holder engineers, who acquired graduation in course of employment and were junior to the writ petitioners and have received promotion to the cadre of Assistant Engineer and some even to the post of Executive Engineer, submits that the judgment of the Apex Court in the case of Pramod Kuamr Pankaj (supra), had absolutely no application in the case and the learned Single Judge failed to appreciate that 1998 Circular had never been struck down, and therefore, State was competent to consider the same and give promotion to the appellants without considering the case of the writ petitioners, who could not avail of this special 10% quota as per the 1998 Circular.
15. To the contrary, Sri Jitendra Singh, learned Senior counsel appearing for the writ petitioners/respondents herein, submits that the combined reading of the judgment of this Court in the case of Ashok Kumar Sinha (supra), which had attained finality and that of the Apex Court in the case of Pramod Kumar Pankaj (supra), would be that the distinction of graduate engineers joining service and those diploma holders acquiring graduation in course of service having been removed effectively, the 1998 Circular should be held to be a non-starter being in conflict with the judgment on the identical issue delivered four years prior thereto. He further pointed out that during pendency of the writ petition in the year 2008 i.e., 21.02.2008, State withdrew the 1998 Circular presumably realizing the mistake, thus, the injustice meted out to the writ petitioners of being deprived of their due promotion must be corrected ex-debito justiciae by this Court. He also pointed out that State filed a counter affidavit in these appellate proceedings, realizing their mistake in promoting the diploma holder engineers, ignoring the claim of the senior writ petitioners, and it is also evident that the State contemplated not only restoring the original gradation list of the year 2001, but, also if necessary, create supernumerary post in the cadre of Junior Engineers or Executive Engineer, as the case may be, to accommodate the writ petitioners and restore their seniority.
16. Having examined the records in detail and after hearing the parties, we are of the view that the writ petition must succeed and this appeal must fail. The reason is simple. As noted above, the judgment of this Court in the case of Ashok Kumar Sinha (supra), removed the distinction as between graduate at the time of entry into service and diploma holders acquiring graduation in course of service, the classification was declared ultra vires with a positive direction, that all graduate engineers be treated at par in the quota of 3%. This judgment having not being altered and in our view, being the right judgment in the facts and circumstances, the reenactment of the same provisions in the 1998 Circular while increasing the quota from the 3% to 10% cannot be said to be a valid exercise. The distinction which had been held by this Court to be ultra vires cannot be reiterated as it is, for that would amount to overruling a judgment without change of circumstances or change of basis of the judgment. Such a power is not available either to the Legislature or the Executive. Therefore, the 1998 Circular in these regards would equally be ultra vires and the classification would have to be held to be unjustified and illegal. If that be so, then when the Supreme Court in the case of Pramod Kumar Pankaj (supra), held that the re-determination of seniority as amongst the diploma holders acquiring graduation degree at different times in their service career also being bad and the seniority of the members of the cadre is to be determined on the general principle of seniority i.e. length of service in the cadre; date of entry in the cadre and/or the merit list at the time of entry in the cadre and this being the determining factor for determining seniority, the net result would be the restoration of the original gradation list of the year 2001 without discrimination as between three classes of Junior Engineers. If this is the position, then, clearly the appellants took a wrongful march over the writ petitioners. The writ petitioners in the common gradation list were senior. They were graduates from before but they were kept out of consideration and the diploma holders acquiring graduation in course of service were given a sort of accelerated promotion, some of them ha
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ving become Executive Engineers. If the common gradation list of the year 2001 is taken as the base, then it would be the writ petitioners, who would have been the Executive Engineers and may be the diploma holder acquiring graduation in course of service, who are either Assistant Engineers or Executive Engineers would not even have reached there. This position as is emanating is unjust and contrary to law. The result would be that the writ petitioners and their like would have to get the position they deserve, though, while retaining the positions acquired by the appellants who have worked all along satisfactorily on the promotional posts, the writ petitioners have to be placed in their rightful place. 17. Thus, the writ petitioners, who are respondents in this appeal, would be entitled to notional promotion to the post of Assistant Engineer when their juniors got such promotion, then again when their juniors were granted promotion to the post of Executive Engineer, they would get their notional promotion to the post of Executive Engineer along with their juniors. Once, they are thus granted notional promotions either to the post of Assistant Engineer or Executive Engineer, the original seniority would be restored. In case, there is no vacancy in the cadre for giving effect to such a direction of this Court as noted above, the State would create supernumary post for accommodating these persons at the respective levels. These promotions would all along be with all consequential benefits. It is only in that way that injustice that has been meted out to the writ petitioners can be redressed and weeded out. At the cost of repetition, we may observe that the promotions which have been given to the appellants, who are the respondents in the writ petitions and their like, would not be cancelled nor would they be reverted. But the writ petitioners be given their due, if need be, on supernumary posts. 18. With the aforesaid direction, which should be carried out by the State within a period of three months, this appeal stands disposed of.