RANBIR PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD.

(2.) THE petitioner was a Junior Engineer having an Engineering Diploma. The State Government took a policy decision on 17.1.1979 to reserve 3% of the total available intake in Bihar Engineering Service Class -ll Cadre of Assistant Engineer for those Junior Engineers who had worked for five years and obtained a Degree Engineering qualification. By the same resolution, it was decided to appoint one thousand Assistant Engineers who were Engineers holding Graduate Engineering Degrees in Bihar Engineering Service Class -II. As per the said promotional reservation, there were in all, twenty two posts available. At that time, there were sixteen Junior Engineers who had five years of service and had enhanced their educational qualification by obtaining a Graduate Engineering Degree. Accordingly, while aopointing one thousand Assistant Engineers on 25.1.1979, sixteen Junior Engineers were also recommended for promotion. The ad hoc promotion orders issued thereafter is dated 29.3.1979 (Annexure -1). Petitioner, who was still a Diploma Holder, did not qualify for promotion into Bihar Engineering Service Class -ll. Subsequently on petitioner obtaining Graduate Engineering Degree, he was recommended for promotion on one of the twenty two such posts available out of which sixteen have been filled up by notification dated 30.12.1980 noticing that he had graduated on 9.2.1980. The grievance of the petitioner is that as he was "promoted in same transaction" with others, meaning thereby sixteen Junior Engineers promoted earlier, he should, in the final gradation list, be ranked immediately after them notwithstanding one thousand direct recruits recruited in between. The petitioner has sought to rely that if direct recruits and promotees are brought into the cadre in the same transaction then the promotees would rank senior. Petitioner would, thus, rank senior to the one thousand direct recruits.

(3.) I am afraid the argument proceeds on a total misconception of fact and law and cannot be accepted. Firstly, even though twenty two posts were available for promotees obtaining Graduate Engineering Degree, the promotions cannot be made till the said Junior Engineers completed five years of service as Junior Engineer and obtained Graduate Engineering Degree. Their eligibility to promotion comes only after the two conditions for promotion are satisfied and not before. Their entitlement to promotion is not because of vacancy available but first because of eligibility followed by vacancy and not in the reverse order. Here, admittedly, petitioner graduated as an Engineer on 9.2.1980. In the meantime in early 1979 itself, sixteen Junior Engineers alongwith one thousand others directly recruited, were taken into the cadre of Bihar Engineering Service Class -ll. Thus, obviously the petitioner having gained eligibility almost a year later for promotion, he cannot claim entry into the cadre of Bihar Engineering Service Class -ll from any day prior to his eligibility even though vacancy was available. So far as the question of same transaction is concerned, sixteen Junior Engineers and one thousand direct recruits were appointed in the same transaction and, therefore, by virtue of the Rules, the promotee would rank senior to the direct recruits. There is no problem in this. But to say that there being twenty two vacancies, sixteen having been filed earlier and petitioner being promoted after one year the two put together would be same transaction defeats all logic and is based on some misconception in this regard. It is not vacancy that determines the transaction alone. For exmple, if there is a vacancy and a decision is taken to fill the same up then at the time when decision is taken all persons who are otherwise eligible but who are picked up at different time could be said to be in same transaction but if some persons become eligible at later dates for promotions and/ or appointment, they cannot be said to be in the same transaction even though vacancy was a predetermined issue. It is for this reason, in the final gradation list as between the sixteen promotee Junior Engineers and the petitioner, one thousand other Assistant Engineers have got in because they were directly appointed a year before even petitioner became eligible for promotion. I know no rule that says that as between direct recruits and promotees, the promotees would always rank senior irrespective of their date of promotion.