MAJOR YOGENDRA NARAIN YADAV Vs. RAJIB RANJAN PATHAK

JUDGEMENT

(1.) THESE six Letters Patent Appeals arise out of separate judgment and order of a learned single Judge of this Court in two writ petitions involving the same controversy. The main judgment is the one passed in C.W.J.C. No. 7675 of 1994 giving rise to L.P.A. Nos. 115, 130 and 169 of 1996. The other writ petition (C.W.J.C. No. 10634 of 1994) has been disposed of in terms of the said judgment.

(2.) THE dispute, which relates to inter -se seniority in Bihar Engineering Service Class -I and boils down to promotion to the post of Engineer -in - chief, has a long history. In 1983 a writ petition, C.W.J.C. No. 3941 of 1983, was filed on behalf of six members of the Bihar Engineering Service Class -I challenging different notifications whereby and whereunder Major Yogendra Narain Yadav, appellant in L.P.A. Nos. 115 and 151 of 1996, was treated as an appointee (to the Bihar Engineering Service Class -II) of the year 1963 and promoted as Superintending Engineer in Class -I directly from the post of Assistant Engineer. Major Yadav had joined the Indian Army on Short Service Commission in 1963. After his release from the Army in 1970 he took up a private job. He was appointed to Bihar Engineering Service Class -II as an Assistant Engineer in 1973. He later claimed seniority from the year of his appointment in the Army on the basis of the Circulars dated 12.6.67 and 21.6.69 which, inter alia, provided that the candidates appointed against the vacancy reserved for ex -army personnel shall be treated as belonging to the year in which he would have been appointed on attaining the minimum age of entry into the service/post or on the date of his joining in the military service whichever is later. The claim was allowed and he was given seniority of the year 1963. This Court held that as Major Yadav did not avail of the opportunity of appointment persuant to advertisement for the post of Assistant Engineer in the years 1971 and 1972, the benefit of service rendered by him in the Army should be reduced by at least two years and he should be allotted 1965 as the year of entry into the service. This Court further held that he was junior to the writ petitioners of that case and not entitled to Class -I post in the Bihar Engineering Service on the basis of his experience of the military service. It was made clear in the judgment that while it is open to the State to give seniority to an appointee from the year of his appointment in the military service on a class II post in the Bihar Engineering Service, in view of the provisions of Rule 17 of the Bihar Engineering Service Class I Rules, promotion to the post of Executive Engineer and above (i.e. in Class I) can be considered only in terms of the said Rules. Merely on the basis of deemed completion of 8 years in Class -II service there cannot be any presumption that the appointee would enter into Class -I service. The date of entry in Class -I service has to be determined on the basis of the Rules. On these findings, inter alia, this Court by its judgment dated 17.12.90 directed the Government to constitute Departmental Promotion Committee (D.P.C.) to find out as to from which date Major Yadav should have been promoted to the post of Executive Engineer and thereafter to consider the promotion of all eligible candidates including writ petitioners and Major Yadav to the post of Superintending Engineer and above.

(3.) BOTH Major Yadav and the State of Bihar preferred appeals to the Supreme Court. While granting special leave in S.L.P. (Civil) Nos. 1784. and 2615 of 1991 on 1.4.91, the Supreme Court reiterated that the DPC be constituted and decision be taken without delay subject to the result of the appeal. An interim order, however, was passed to the effect that until decision is taken by the DPC, he will not be reverted to the lower post.