RAMESH PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal by certificate granted by the High Court of Judicature at Patna under Art. 133 (1) (a) and (b) of the Constitution is directed against the judgment and order dated May 13, 1969 of that court whereby Civil Writ Petition No. 460 of 1968 filed by respondents 3 to 28 herein was allowed, Notification no. SS/A1-103/68/2676/EB dated June 24, 1968 issued by the Bihar State Electricity Board, respondent No. 2, appointing the appellant as officiating temporary Executive Engineer (Tele-Communication), Tele-Communication Division, Patna, was quashed and a writ of mandamus commanding respondent No. 2 to fill up the post of the Executive Engineer (Tele-Communication) after considering the case of respondents 3 to 28 and specially of respondents 3 and 4 along with the case of the appellant or with the case of any other Assistant Engineer whose case in the opinion of the Board may be fit to be considered in the light of the said judgment was issued.

(2.) The circumstances giving rise to this appeal lie in a short compass. It appears that the appellant who passed the final examination of Bachelor of Science (Engineering) in Tele-Communication of the Ranchi University held in August, 1962 was appointed by the Bihar State Electricity Board (hereinafter referred to as "the Board") as Assistant Engineer (Tele-Communication) in September, 1963 on a salary of Rs. 245/- per month in the pay scale of Rs. 220 -25-320-EB-25-670-EB-30-750. A few weeks after his recruitment, the appellant was sent by the Board to the headquarters of Messrs. Brown Boveri and Company Limited, Baden, Switzerland for six months" specialized training in power line carrier, telemetering and tele-control equipment in the modern power system. On his return from Switzerland and resumption by him of his duty as Assistant Engineer (Tele-Communication) the appellant was deputed to look after the entire tele-communication system of the Board. In June, 1968, the Board left the necessity of maintenance of efficient communication service between the vital centres of generation, utilization and administration for ensuring reliability and continuity in power supply which would facilitate quick supervision and checking of the then existing arrangements at the generating station, receiving sub-stations and distributing areas as also the necessity of proper supervision and handling by trained and qualified personnel of a large number of wave-change-over communication equipments on 33 KW Transmission line which had been installed in the Tele-Communication Sub-Division of the Board at Patna and were maintained and aligned with the help of special electronic instruments. Accordingly, the Board accorded sanction to the creation of a temporary Tele-Communication Division with headquarters at Patna as also to the creation of a temporary post of Executive Engineer (Tele-Communication) in the replacement scale of pay of Rs. 730-35-870-40-1070-EB-45-1250 for the said Tele-Communication Division with effect from June 22, 1968 to February 28, 1969. Acting on the recommendation of its expert selection committee to the effect that the appellant was fit to be promoted to the rank of the Executive Engineer (Tele-Communication) in view of the fact that he had a consistently good record of service, possessed the degree in Tele-Communication Engineering, had undergone special training in Switzerland in Tele-Communication, had ever since his return from Switzerland been satisfactorily performing the onerous and complex duties assigned to him and had been looking after the entire Tele-Communication system of the Board and had thus acquired a valuable practical experience in that field which was necessary to man the post of Executive Engineer (Tele-Communication) and that the Assistant Electrical Engineers of 1960 batch were being considered for promotion as Electrical Executive Engineers, the Board issued the aforesaid notification temporarily promoting the appellant to the post of Executive Engineer (Tele-Communication). Thereupon, respondents 3 to 28, who had been appointed as Assistant Electrical Engineers in September, 1960 moved the High Court at Patna by means of a writ petition under Art. 226 of the Constitution challenging the aforesaid notification averring inter alia that the promotion of the appellant was mala fide, that though they were senior to the appellant and possessed the requisite qualification and two of them viz. Harkishore Singh and Dina Nath Singh had studied tele communication as one of their subjects in the final examination of B. Sc. In Electrical Engineering, they had not even been considered by the Board for appointment to the aforesaid post of Executive Engineer and that they had been superseded and unreasonably discriminated against in violation of the guarantee of equality of opportunity enshrined in Arts. 14 and 16 of the Constitution. The petition was contested by the appellant as also the State of Bihar and the Board who contended that the appellant was holding an extra-cadre post of Assistant Engineer (Tele-Communication) which was created separately from that of the other Assistant Electrical Engineers; that respondents 3 to 28 not being holders of degree in Tele-Communication (Engineering) were not qualified for appointment as Executive Engineer (Tele-Communication) and had no right to maintain the petition and that there was no question of violation of equality of opportunity guaranteed under Arts. 14 and 16 of the Constitution. On a consideration of the rival contentions of the parties, the High Court while granting that the appellant possessed the degree of B. Sc. Engineering in Tele-Communication; that the post of Executive Engineer (Tele-Communication) might be an extra cadre post as claimed by the Board and that it was not for the Court but for the Board to decide on the basis of the opinion of experts or selection committee as to who was fit and suitable for that post, quashed the aforesaid notification promoting the appellant mainly on the grounds that neither a separate cadre of Executive Engineer (Tele-Communication) had been constituted nor had any special qualification been laid down by the Board for the post in question and that respondents 3 to 28 who were senior and had better experience and academic career than the appellant had been unjustifiably ignored by them Board violating the protection of equal opportunity guaranteed to the under Arts. 14 and 16 of the Constitution. It is this judgment that is impugned in this appeal.

(3.) We have heard learned counsel for the appellant and respondents 1 and 2 viz. the State of Bihar and the Board but have had not the advantage of hearing respondents 3 to 28 or anyone on their behalf, as they have chosen not to appear despite personal service.