MAHESHJHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE three Writ Petitions have been preferred with a common prayer to direct the Respondent - Authorities to consider the cases of the Petitioners for promotion to the Bihar Industries Service (hereinafter referred to as "the B.I.S."), on the basis of a joint gradation list of the functionaries mentioned in Schedule -IV of the Bihar Industries Service Cadre Rules, 1987 (hereinafter referred to as "the Rules"), prepared on the basis of seniority -cum -merit.

(2.) The official Respondents have filed their counter -affidavits and haveopposed the Writ Petitions. Respondent No. 6 of C.W.J.C. No. 4959 of 2002 (Nirman Kishore Jha) has filed a separate counter -affidavit and has made common cause with the official Respondents. The Petitioners in the three Writ Petitions belong to Group -C, and Respondent No. 6 of C.W.J.C. No. 4959 of 2002 belongs to Group -B, of Schedule - IV of the Rules. The facts, and the issues raised, are common to the three Writ Petitions, and are being disposed of by a common judgment. The basic facts are not in dispute and shall be drawn from C.W.J.C. No. 4959. of 2002. The State Government framed the Rules in exercise of powers conferred by Proviso to Article 309 of the Constitution of India for purposes of recruitment and promotion to B.I.S. Rule 2 provides the definitions, Clause (a) whereof defines "Cadre", and Clause (1) defines "Members of the service" to mean a person appointed to the Bihar Industries Service under the provisions of the Rules. Rule 3 provides constitution of service cadre and classification of posts, Rule 4 provides the sources of recruitment, Clause (a) provides for direct recruitment in accordance with the provisions laid down in Part -Ill, and Clause (b) by promotion in accordance with the provisions laid down in Part -IV. We are not concerned with direct recruitment, and have to deal with the recruitment by promotion from amongst the employees mentioned in Schedule -IV of the Rules. It is relevant to state that Schedule -I is in terms of Rule 3 and provides the sanctioned strength of B.I. S. It provides five flights of hierarchy in the B.I.S., at the top of which is the senior most functionary designated as Additional Director and at the bottom of which are ten different designations with different duties and functions and in the pay -scale of Rs. 1,000 -1,820 (unrevised). Schedule -IV is the "List of Officers in subordinate service who shall be eligible for promotion to the post of Managers/Assistant Directors and others in the scale of Rs. 1,000 -1,820. In other words, the functionaries included in Schedule -IV shall be considered for promotion to the bottom of the category of officers mentioned in Schedule -I. Schedule -IV comprises of three categories of officers whohave been grouped as "A, B and C". Category -A functionaries are gazetted officers and are described as Assistant Managers or equivalent posts. Category -B functionaries are Industrial Extension Officers, and Category -C officers are in substance in the category of Staticians. Categories -B and C are non -gazetted functionaries. The common feature between the three categories is that they have been enjoying the same pay -scale of Rs. 880 -1510 (unrevised), and are entitled to consideration for promotion to Category -5 of Schedule -I.

(3.) AGGRIEVED by the provisions made in Schedule -IV, Category -A functionaries preferred Writ Petitions in this Court challenging the validity of the Rules, inter alia, on the ground that gazetted officers have been clubbed with non -gazetted functionaries in Schedule -IV. The Writ Petitions succeeded, Schedule -IV was declared to be ultra vires, and upheld by this Court in appeal. The association of non -gazetted functionaries, namely, Categories -B and C, preferred appeals in the Supreme Court which were allowed by judgment dated 10"1 May, 2002, that of this Court was set aside, and reported in AIR 2000 SC 2042 (Bihar State Subordinate Industries Field Officers Association V/s. Kapildeo Prasad Singh and Ors.) The Supreme Court has in substance held that ScheduLe -IV is valid, is based on a policy decision, and have been grouped together for the purpose of promotion to B.I.S. for rational reasons.