PRABHAKARCHANDRAJHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner herein is aggrieved by the notification dated 22-6-1985 (Annexure-9) whereby respondent No. 4 has been deemed to have been appointed as District Engineer with effect from 1st February, 1967, the date on which he attained the age of 25 years, which was the minimum age prescribed for appointment as District Engineer Respondent No. 4 has been granted consequential benefit of seniority. This has been done pursuant to the Government decision dated 21-6-1969, whereby certain concessions were granted to Short Service Commissioned and Emergency Co mmissioned Officers, who had served the Indian Army after 1st February, 1962, and who were released according to a phased progtament or on the expiry of the tenure of their service in the Indian Army. The petitioner claims that his case should be considered on the basis of sentority-cum-merit for appointment as Chief Engineer in the Road Construction Department of the Government of Bihar. Admittedly, the petitioner as well as respondent No. 4 were appointed as District Engineer on the same date i. e., on 23-3-1973 pursuant to their selection for appointment by the Bihar Public Service Commission. In order of merit, the dame of the petitioner was shown at serial No 2, whereas respondent No. 4 was shown at serial No 3. It is not disputed that if the position in the merits list was to determine the seniority inter se of the petitioner and respondent No. 4, the petitioner would rank senior to respondent No. 4. The question is whether the benefit of seniority given to respondent No. 4 pursuant to the Government decision contained in letter No. 8772 dated 21-6-1969 is legal and proper.

(2.) I shall first notice the factual background in which this controversy arises. The petitioner was appointed as an Assistant Engineer in the Public Works Department of the Government of Bihar in the year 1962. His record of service shows that the petitioner possesss abilities above average. Apart from the fact that the petitioner had a brilliant academic career, he was also awarded National Research Council Scholorship of Canada twice in the year 1965 and 1969. He was awarded M.Sc. (Engineering) Degree by the University of Calgary, Canada for original research for professional proficiency. The research papers of the petitioner were published in the journals published by the American Concerete Institute. USA, and the thesis petitioner was also purchased by the British Library, U.K. in the year 1986.

(3.) As earlier noticed, the petitioner was appointed as Assistant Engineer in the Public Works Department of the Government of Bihar in the year 1962. He continued to work as an Assistant Engineer, till he was selected for appointment as District Engineer on 23rd March, 1973. Apart from the petitioner, two other persons were also appointed District Engineer by the same order Respondent No 5 was placed number one in order of merit, whereas the petitioner was placed at serial No, 2 and respondent No 4 at serial No 3. It is also not disputed that respondent No. 4 was appointed against the post reserved for Engineers released by the Indian Army. After their appointment, all the three District Engineers were confirmed. On 18-2-1977 the cadre of District Engineer and the Executive Engineer, P.W.D. were merged. It was only thereafter on 18-5-1977 that respondent No. 4 represented his case before the Government for grant of seniority on the basis of the Government decision contained in paragraph No. 8 (a) of letter No. 8772 dated 21-6-1969. The said letter has been annexed as Annexure-3 to the writ petition. The Rural Development after consultation with the Appointment Department rejected the representation of respondent No. 4 by order dated 4-8-1977 (Annexure-4). This led to file a writ petition before this Court, being C.W.J.C. No. 1937 of 1978. The order rejecting the representation of being a non-speaking order, this Court was pleased to allow the writ petition and remanded back the case for a fresh decision on the question of seniority in accordance with law, after affording to the parties concerned an opportunity of hearing. After the writ petition was allowed by this Court, a notice was issued to the petitioner, and he filed his written objections to the grant of seniority to respondent No. 4, as claimed by him. Ultimately. the impuged notification (Annexure-9) was issued on 24-6-1985. By the said notification it was declared that respondent No 4, who has joined military service on 20th July. 1964, and who had attained the age of 25 on 1-2-1967, which was the minimum age for appointment as District Engineer, and who was appointed against the post reserved for Engineers released from military service, and who had been appointed as District Engineer-vide notification No. 1383 dated 14-3-1973, shall be deemed to have been appointed as District Engineer on 1-2-1967 in terms of the Government decision contained in paragraph No. 8 of letter No. 8772 dated 21-6-1969. His seniority was determined accordingly, Since the cadre of District Engineer was merged with the cadre of Executive Engineer in the Public Works Department, his seniority in the merged cadre shall be determined on the same basis, and respondent No. 4 shall be entitled to all other benefits to which he was entitled under the aforesaid memorandum dated 21-6-1969.