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TMI Blog1991 (4) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 233 of 1978 and respondent Nos. 5 to 22 in the writ petition) were working at that time as Overseers in the Bihar Subordinate Engineering Service (Irrigation Department). On 7th April, 1958 the Governor took a decision under Rule 2 of the Public Works Department Code that 25% of the posts in the Bihar Engineering Service, Class II shall be filled up by promotion, subject to availability of suitable hands. Thus, out of the total vacancies in Bihar Engineering Service, Class II, 75% of the vacant posts as determined by the Government will be filled up by direct recruitment and 25% of the vacant posts will be filled up by promotion subject to availability of suitable candidates. By notification dated 18th July, 1964/27th August, 1964, respondent Nos. 6 to 13 in C.A. No. 232 of 1978 (appellant Nos. 1 to 8 in C.A. No. 233 of 1978 and respondent Nos. 5 to 12 in the writ petition) who were members of the Bihar Subordinate Engineering Service (Overseers) were promoted to the post of Assistant Engineer in Class II and by another notification dated 21st July, 1969, respondent Nos. 14 to 23 in C.A. No. 232 of 1978 (appellant Nos. 9 to 18 in C.A. No. 233 of 1978 and respondent Nos. 13 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annexure 10 to the writ petition. 2. The respondent Nos. 1 to 5, therefore, filed a writ petition in the High Court at Patna being Civil Writ Petition No. 756 of 1977 challenging the seniority conferred on the respondent Nos. 6 to 23 (respondent Nos. 5 to 22 in the writ petition) by annexures 8, 9 and 10 on the ground that these orders were wholly arbitrary illegal, void and inoperative and ineffective and so prayed for appropriate writ for quashing those orders. 3. A counter-affidavit was filed on behalf of the State Government. In Para 3(iii) of the said affidavit, it has been averred that till 1957, 25% of the vacancies in Bihar Engineering Service, Class II, were being filled up by promotion from the Bihar Subordinate Engineering Service (commonly known as 'Overseers'). Subsequently, in the year 1958, it was decided that 25% of the cadre posts in the Bihar Engineering Service, Class II both permanent and temporary, shall be reserved for being filled up through promotion from the members of the Bihar Subordinate Engineering Service. It has been further averred in para 3(iv) that all the posts of temporary Assistant Engineers to which the Overseers were entitled to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that the seniority list that was prepared and published in 1969 was tentative. 4. The High Court, Patna held that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely effect others. The respondent Nos. 1 to 5 were recruited to the post of Assistant Engineer, Class II before the respondent Nos. 6 to 23 were promoted to the post of Assistant Engineer, Class II in the Bihar Engineering Service, Class II. The High Court, therefore, held that the orders contained in Annexure 8, 9 and 10 promoting the respondent Nos. 6 to 23 (respondent Nos. 5 to 22 in the writ petition) with retrospective effect are bad and so quashed those Government orders referred to in the said annexures. 5. Against this judgment and order made by the High Court, the instant appeals on special leave were filed. 6. The sole question which falls for decision in these appeals is whether the inter-se seniority between the petitioners-respondent Nos. 1 to 5 who are direct recruits and the Overseers belonging to the Bihar Subordinate Engineering Service (Irrigation Department) who had been promoted retrospectively in their 25% quota for the year 1958 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ihar Engineering Service, Class II with effect them 19.12.1958 (Annexure 9 to the writ petition). Again an order contained in Annexure 10 to the writ petition was passed by which the date of promotion of respondent Nos. 14 to 23 was pushed back to February 27, 1961, thus making them senior to the petitioners-respondent Nos. 1 to 5. The petitioners-respondent Nos. 1 to 5 challenged these three Government orders mainly on the ground that these orders giving promotion to the respondent Nos. 6 to 23 from a date earlier to their date of promotion to the post of Assistant Engineer in Bihar Engineering Service, Class II purport to affect prejudicially the rights of the petitioners-respondent Nos. 1 to 5 in as much as they were appointed to the post of Assistant Engineer in the Bihar Engineering Service, Class II earlier to the promotion to the said post of the respondent Nos. 6 to 23. It has also been submitted in this connection that the seniority has to be reckoned amongst the officials working as Assistant Engineers in the Bihar Engineering Service, Class II from the date of their appointment on promotion to the said Service. The petitioners-respondent Nos. 1 to 5 being appointed earli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cruitment as well as by promotion from Overseers working in the Bihar Subordinate Engineering Service and the ratio of the vacancies to be filled up has been fixed as 75% from the direct recruits and 25% from the promotees. It has been urged on behalf of the respondent Nos. 6 to 23 that in view of the quota rule the respondent Nos. 6 to 23 who were promoted in the quota set out for promotees in respect of the vacancies of 1958 shall be taken to be promoted in 1958 notwithstanding that they have been actually promoted long after 1958 and after the direct recruits i.e. respondent Nos. 1 to 5 were recruited directly to the post of Assistant Engineers. In other words even though the respondent Nos. 6 to 23 have been promoted after the date of recruitment of respondent Nos. 1 to 5 to the post of Assistant Engineer, still then the promotee respondent Nos. 6 to 23 should be deemed to be senior to the direct recruit respondent Nos. 1 to 5 as they were promoted in the vacancies for 1958 quota set up for promotees. In support of this submission the decision in V.B. Badami etc. v. State of Mysore and Ors. (1975)IILLJ466SC as well as Gonal Bihimappa v. State of Karnataka [1987] Supp. SCC 207 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficiating Divisional Medical Officers in 1972, 1973 and 1974 and they had been continuing there uninterrupted. Respondent Nos. 4 to 64 were given substantive appointments as Divisional Medical Officers later on but they were confirmed earlier than the petitioners because of the zone-wise confirmation given by the Railway Administration. It was held that the petitioners should be considered at par for the purpose of fixing seniority, with those appointed to permanent posts in a substantive capacity. For the purpose of determining seniority among promotees, the petitioners should be treated as having been appointed to permanent vacancies from the respective dates of their original appointment and the "entire period of officiating service performed by them should be taken into account as if that service was of the same character as that performed by the substantive holders of permanent posts." 12. In the instant case, the promotee respondent Nos. 6 to 23 were not born in the cadre of Assistant Engineer in the Bihar Engineering Service, Class II at the time when the respondent Nos. 1 to 5 were directly recruited to the post of Assistant Engineer and as such they cannot be gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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