Arun Kumar Singh vs State Of Jharkhand
2021 Latest Caselaw 3258 Jhar

                                             1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
       (An application under Article 226 of the constitution of India)
                     W.P.(S) No. 2358 of 2010
                                     ---------

1. Arun Kumar Singh.

2. Ramadahin Prasad.

3. Prabhu Dayal Mandal. ..... Petitioners Versus

1. State of Jharkhand.

2. Principal Secretary, Drinking Water and Sanitation Department, Government of Jharkhand, Nepal House, Doranda, Ranchi.

3. Engineer-in-Chief, Drinking Water and Sanitation Department, Nepal House, Doranda, Ranchi.

                                                           .....     Respondents
                                     ---------


     For the Petitioners             : Mr. Saurabh Shekhar, Advocate

For the Respondents : Ms. Vandana Singh, Sr. S.C.III

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PRESENT

HON'BLE MR. JUSTICE DEEPAK ROSHAN

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By Court: Heard through V.C.

2. The instant writ application has been preferred

by the petitioners praying for a direction upon the

respondent-authorities to grant promotion to these

petitioners on the post of Assistant Engineer with effect

from 01.07.2002, 01.12.2002 and 01.01.2003 as per the

due date for grant of promotion on the post of Assistant

Engineer and also for a direction upon the respondent-

authorities to release the arrears of difference of salary with

effect from the date from which the petitioners have been

directed to function on the post of Assistant Engineer in in-

charge capacity i.e. from 06.12.2002, 10.03.2003 and

28.01.2004, respectively.

3. Brief facts of the case lie in a narrow compass.

The petitioners have been appointed in the year 1997 as

Junior Engineer and they have joined their services as

Junior Engineer on 23.06.1997, 16.09.1997 and

29.09.1997, respectively and started discharging their

duties.

The specific case of the petitioners is that they

are A.M.I.E degree holder and as such the department has

decided to consider their case for promotion in regular

capacity on the post of Assistant Engineer and for the said

purpose a Departmental Promotion Committee was

convened on 09.05.2006 which was presided over by the

Chairman, Jharkhand Public Service Commission (JPSC)

and all the petitioners have been found entitled to get their

promotion on the post of Assistant Engineer and the said

Departmental Promotion Committee has recommended the

case of the petitioners by stating that the petitioners are

entitled for promotion to the post of Assistant Engineer

from the respective dates as recommended by Departmental

Promotion Committee along with entire monetary benefit

from the date of joining to the post of Assistant Engineer.

4. Mr. Saurabh Shekhar, learned counsel for the

petitioners draws attention of this Court towards the

minutes of meeting of Departmental Promotion Committee

(Annexure-2) which was presided over by the Chairman,

JPSC, the Engineer in-Chief and the Secretary of the

Department, wherein the committee have categorically

recommended the names of these petitioners along with

others for promotion being under the A.M.I.E quota.

He further submits that the grounds for

recommending the names of these petitioners along with

one other employee was that the Junior Engineer should

have at least completed five years of service and also having

A.M.I.E degree and the promotion should be subject to

vacancy.

5. He further draws attention of this Court

towards the resolution dated 22.07.1998 and submits that

in clause-4 (Ka) it has been indicated that there will be 10%

quota for A.M.I.E degree holders for promotion from Junior

Engineer to Assistant Engineer and the said 10% would be

filled up upon the vacancy of the post of Assistant Engineer

who are having A.M.I.E degree.

By referring to the aforesaid resolution, learned

counsel submits that the Departmental Promotion

Committee has taken the very same criteria for

recommending the name of these petitioners; as such there

should not be any discontent in the department in giving

promotions to these petitioners from the date as referred to

hereinabove.

6. He further draws attention of this Court

towards the judgment passed in the case of Ashok Kumar

Sinha in C.W.J.C. Case No. 8744 of 1992 and

analogous cases and submits that similar issue was

involved in that case and the Patna High Court has

categorically held that the candidates who were having

degree prior to their appointment of their service should not

be discriminated. The said order of the writ Court has been

affirmed by the Hon'ble Apex Court on appeal filed by the

State.

He contended that the facts of that case is

identical to this case. In the said case, the State

Government came up with resolution in 1997 fixing quota

for promotion to B.E.S. Class II of such Junior Engineers of

the works department who acquired Engineering degree or

its equivalent degree during their service tenure and the

High Court has held that it is not only those persons who

have acquired degree during his service will get the benefit;

but also persons who joined the service along with that

degree.

7. Learned counsel further relied upon the

judgment passed in the case of Brij Bhukan Kalwar &

Ors. Versus S.D.O.Siwan & Ors., reported in AIR 1955

Patna 1 and submits that in Para-5 the Special Bench has

held that any notification of the Government can be ignored

if it is against the fundamental right. In addition, he

referred the judgment passed in the case of Arun Kumar

and Others Versus Union of India and Others, reported

in (2007) 1 SCC 732, wherein at paragraph 57, 60 and 61

the Hon'ble Apex Court has laid down the law of reading

down any statute. He lastly relied upon the judgment

passed in the case of Ajit Singh and Others (II) Versus

State of Punjab and Others, reported in (1999) 7 SCC

209, wherein at paragraph 22 and 23 it has been held that

consideration of promotion has been held to be a

fundamental right; the same principle was reiterated in the

case of Major General H.M. Singh, VSM Versus Union of

India and Another, reported in (2014) 3 SCC 670 at

paragraph no. 28.

Relying upon the aforesaid judgments, he

submits that the action of the respondents in not giving

promotion to these petitioners from due date is just to delay

and defeat justice, inasmuch as, there cannot be any law

which discriminates those candidates who are having a

required degree before the date of their appointment and

this principle has been well discussed in the case of Ashok

Kr. Sinha (Supra).

8. Ms. Vandana Singh, learned counsel for the

respondent State submits that non giving of promotion to

these petitioners is due to the Resolution of 2004 issued

under Memo No. 1657 (S) dated 26.05.2004 which is based

on the earlier resolution dated 22.07.1998, wherein at

Clause-4 (Ga) it has been mentioned that the promotion is

to be given only to those candidates who have acquired the

A.M.I.E degree during the period of service. By going

through Clause-4 (Ga) of the "Sankalp" dated 22.07.1998,

which is the basis of the Resolution dated 26.05.2004, it

would transpire that since the petitioners did not acquire

the degree during the tenure of service; they are not entitled

for promotion under A.M.I.E quota. Since there is no

ambiguity in the resolution; as such, unless and until the

petitioners challenge that resolution; no relief can be

granted to these petitioners.

9. She further contended that the judgment

relied upon by the petitioners rendered by the Patna High

Court in the case of Ashok Kr. Sinha and others (Supra)

is not applicable, inasmuch as, the said judgment has been

passed prior to 1998 and as such the writ Court was not

having any occasion to read the resolution which is under

consideration before this Court.

10. Ms Singh relied upon the judgment passed

in the case of Bimlesh Tanwar Versus State of Haryana

and Others, reported in (2003) 5 SCC 604 and submits

that in para 47 and 49 the Hon'ble Apex Court has held

that promotion is not a fundamental right. It can only be

considered but it cannot be taken as a right under Part-III

of the Constitution. She further referred the judgment

passed in the case of Indian Administrative Service

(S.C.S), Association, U.P. and Others Versus Union of

India and Others, reported in 1993 Suppl. 1 SCC 730

and submits that in para- 7 of the judgment, the Hon'ble

Apex Court has held that when the Circular and

Resolution/Statue are clear in language and there is no

ambiguity; then the Courts should refrain from reading

down the clauses.

11. Relying upon the aforesaid judgment and the

facts, she contended that as per the Resolution of 2004

which is based on the Resolution of 1998; no relief can be

granted to these petitioners, merely on the ground that

Departmental Promotion Committee has recommended

their names and unless and until these resolutions are

quashed and set aside; the petitioners will face difficulty in

getting promotion because they were the candidates who

acquired the degree of A.M.I.E prior to their appointment

and not during the tenure of their service, as such the

instant writ application deserves to be dismissed.

12. Having heard learned counsel for the parties

and after going through the Resolution issued under Memo

No. 1657 (S) dated 26.05.2004 it appears that the same is

issued taking into consideration the Resolution dated

22.07.1998. By going through the Resolution of 1998 it

appears that the said resolution has allotted 10% quota for

A.M.I.E degree holders. The said resolution further

stipulates that every year promotion will be granted against

the vacancy to A.M.I.E degree holders and if the vacancy

will continue even after giving promotion; the said vacancy

will not be continued for the consecutive year; rather the

same will be filled by diploma holders. In Clause-4 (Ga) it

has been further stipulated that all those Junior Engineers

will get the benefit of promotion in the same way if they

acquire A.M.I.E degree during the tenure of their service.

For brevity, the relevant portion of the

Resolution dated 22.07.1998 is quoted herein below:-

"4- mi;qZDr laxr rF;ksa dh i`'BHkwfe esa dkfeZd ,oa iz"kklfud lq/kkj foHkkx foÙk foHkkx ,oa dk;Z foHkkxksa dh lgefr rFkk dk;Z foHkkx ds izHkkjh eaf=;ksa dh loZlEefr ls dh x;h vuq"kalk dh lE;d fopkjksijkar jkT; ljdkj }kjk fuEukafdr fu.kZ; fy;s tkrs gSA

d- dk;Z foHkkxksa esa fcgkj vfHk;a=.k lsok oxZ&2 ds v/khu lgk;d vfHka;rkvksa ds dqy lEoxZ cy dk 62 izfr"kr dksVk lh/kh fu;qfDr gsrq v{kq.k j[krs gq, 10 izfr"kr dksVk ,-,e-vkbZ-bZ ,oa led{k vgZrk izkIr duh; vfHk;arkvksa dh izksUufr ds fy, vkSj "ks'k 28 izfr"kr dksVk dk;Zjr fMIyksek/kkjh duh; vfHk;arkvksa dh izksUufr ds fufer fu/kkZfjr fd;k tk;A

[k- rnuqlkj lgk;d vfHk;ark ds dqy laoxZ cy ds 10 izfr"kr inks ads fo:} ifjxf.kr izR;sd o'kZ dh fjfDr;ksa ds fo:} ,-,e-vkbZ-bZ ;ksX;rk izkIr duh; vfHk;arkvksa dks lgk;d vfHk;ark ds in ij izksUufr nh tk;A ;fn fdlh o'kZ fo"ks'k esa ,-,e-vkbZ-bZ ,oa led{k vgZrk izkIr duh; vfHk;arkvksa dh miyC/k la[;k dh rqyuk esa muds fy, mi;qZDrkuqlkj vuqekU; fjfDr;ksa dh la[;k vf/kd gksxh rc "ks'k fjfDr;ksa vxys o'kZ ds fy, vxz.khr ugh dh tk;sxh cfYd os fjfDR;kWa mlh o'kZ fMIyksek/kkjh duh; vfHk;arkvksa dh izksUufr fufer miyC/k fjfDr;ksa ds cxZdkj vFkkZr lkekU; oxZ dh ,-,e-vkbZ-bZ fd fjfDr;kWa lkekU; oxZ ds fMIyksek/kkjh duh; vfHk;arkvksa dh fjfDr;ksa es rFkk vkjf{kr oxZ dh fjfDr;kW vkjf{kr oxZ ds duh; vfHk;arkvksa dh fjfDr;ksa esa tqV tk;sxh] ftuds fo:+}+ duh; vfHk;arkvksa dks izksUufr nh tk;xhA

x- mi;qZDr mi dafMdk ¼d½ esa mYysf[kr dksVk ds vk/kkj ij lgk;d vfHk;ark ds inksa ij izksUufr dh ;g lqfo/kk mu lHkh duh; vfHk;arkvksa dks leku :Ik ls miyC/k gksxh ftUgksua s viuh lsokdky esa ,-,e-vkbZ-bZ vFkok led{k vfHk;a=.k Lukrd dh ijh{kk esa mrh.kZrk gkfly dj yh gks rFkk ftUgksus duh; vfHk;ark ds in ij ikap o'kkZs dh U;qure lsok iwjh dk yh gksA

?k- mi;qZDr of.kZr 10 izfr"kr dksVk ds v/khu lgk;d vfHk;ark ds fjDr inksa ij duh; vfHk;arkvksa }kjk ,-,e-vkbZ-bZ vFkok led{k ijh{kksrh.kZrk dh frfFk ds vk/kkj ij ikjLifjd ojh;rk fu/kkZfjr djrs gq, miyC/k fjfDR;kW rd ojh;rk dzekuqlkj izksUufr nh tk;] tSlk ekuuh; iVuk mPp U;k;ky; }kjk ,y- ih- ,- la- [email protected]] [email protected]] [email protected] rFkk lh- MCyw- ts-lh- uEcj [email protected] esa ikfjr U;; fu.kZ; esa funs"k gS rFkk fufnZ'V vH;FkhZ duh; vfHk;arkvksa dh lgk;d vfHk;ark ds in izksUufr fufer mudh ikjLifjd ojh;rk muds }kjk ,-,e-vkbZ-bZ vFkok led{k ijh{kk mRrh.kZ djus dh frfFk gksxhA bu duh; vfHk;arkvksa dsk vius laoxZ esa ekSfyd ikjLifjd ojh;rk] mRrh.kZ djus dh frfFk gksxhA bu duh; vfHk;arkvksa dks vius laoxZ esa ekSfyd ikjLifjd ojh;rk] izLrkfor 28 izfr"kr izksUufr dksVk ds iz;kstukFkZ ;Fkkor cuh jgsxh-----------A"

Thus, by conjoint reading of Clause-4 (Ka) and

(Ga) it transpires that it does not prohibit the person who

were already having A.M.I.E degree prior to their coming

into service; rather; it gives benefit to all those who also

acquire A.M.I.E degree during their service tenure. By

conjoint reading of all the three clauses, it appears that

Clause-4 (Ka) states that 10% quota shall be fixed for

promotion for the Junior Engineers who were having

A.M.I.E degree. Clause-4 (Kha) deals with the vacancies

that if the vacancies are not filled up in the current year

(vacancy year wise selection process) then they will not be

carried forward; rather the same shall be filled up by the

diploma holders. Clause-4 (Ga) further stipulates that the

Junior Engineers who have acquired A.M.I.E degree during

the period of service shall get the benefit of promotion in

the same way.

Thus, Clause-4 (Ga) does not eliminates or

debars the candidates who acquired degree prior to their

appointment in service. In other words, all those Junior

Engineers who were not having A.M.I.E degree will also get

the benefit of promotion in the same way if they acquire

A.M.I.E degree during the tenure of their service.

13. It further transpires that this issue came up

before the Patna High Court in the case of Ashok Kr.

Sinha (Supra), wherein the question was one and the

same. For better appreciation of this case, paragraphs 2, 3,

5 and 6 of the aforesaid judgment is quoted herein below:-

"2. The petitioners of all the three writ applications were initially recruited as Junior Engineers in the Road Construction Department. At the time of their appointment they possessed B.Sc. Engineering degree which is the requisite qualification for appointment as Assistant Engineer in the Bihar Engineering Service Class II (hereinafter referred to as 'the B.E.S. Class II').

In January, 1979, the State Government came up with a resolution, as contained in Annexure 4 to C.W.J.C. No. 7458 of 1991, fixing quota for promotion to B.E.S Class II of such Junior Engineers of the Works Department who acquired Engineering degree or its equivalent degree during their service tenure. The quota for the said purpose was fixed at 3% of the total number of vacancies in B.E.S. Class II.

3. The grievance of the petitioners is that there is no rationale behind giving preference to only such Junior Engineer who acquires degree in Engineering or its equivalent degree after entering the service as Junior Engineer and leaving those who, at the time of entry in service as Junior Engineers, possessed the said degree. Their further grievance is that the State Government itself deviated from the aforesaid policy and considered the cases of promotion of such Junior Engineers also who possessed Engineering degree at the time of entry in service as Junior Engineers and are similarly placed as the petitioners in the present case, so much so that even persons appointed later then the petitioners have been given the benefit of the said policy decision by relaxing the said policy in their favour by necessary implication, vide Annexures 9 and 13 to C.W.J.C. No. 7458 of 1991, Annexures 12 and 15 to C.W.J.C. No. 1098 of 1991 and Annexures 3 and 6 to C.W.J.C. No. 8744 of 1992 whereas the petitioners have been denied the said benefit which, according to the petitioners, is wholly arbitrary, mala fide and violative of Articles 14 and 16 (1) of the Constitution of India.

5. Mr. Hafat Alam, learned Government Pleader No. VIII appearing for the respondents, submitted that the policy decision of the State Government (Annexure-4) is not irrational as, according to him, the said decision was taken to encourage such Junior Engineers who did not have degree in Engineering at the time of their

recruitment as Junior Engineer to acquire the said qualification during their service. According to him, in the case of the petitioners, who already had the degree in Engineering before entry in the service, no such incentive or encouragement was required to be given. Further, he submitted that since the case of the petitioners is not covered by the Government resolution, contained in Annexure 4, they are not entitled to invoke the writ jurisdiction of this Court and the writ applications are liable to be dismissed on this ground alone.

6. I am unable to appreciate the reason for differentiating between the aforementioned two sets of Junior Engineers. In my opinion, the plea taken by the respondents cannot be held to be justified. There cannot be any valid reason to deprive the petitioners, who already had the requisite qualification at the time of their recruitment as Junior Engineers from being considered for appointment in the B.E.S. Class II and they cannot be discriminated with the persons who acquired qualification later while in service. On the one hand, the State Government decided to fill up the aforementioned 3% quota by promotion from amongst the Junior Engineers having requisite qualification for the said post but at the same time it discriminates between the Junior Engineers, who enhance their qualification during their service with those who already possessed the requisite qualification before their entry in service. In my opinion, if one at all feels interested in getting the benefit of 3% quota, then he would definitely enhance his qualification to compete with others whereas if a person is denied the said benefit only on account of the fact that he acquired degree in Engineering or equivalent qualification before entry in service, in my opinion, he would lose interest in service as for no fault of his would be deprived of the same benefit although he is also working as Junior

Engineers with the same qualification at the time when the cases of the Junior Engineers for promotion against the said quota are taken up for consideration irrespective of their seniority and larger experience." Emphasis supplied

14. After going through the aforesaid judgment it is

clear that the Patna High Court has categorically held in

paragraph 6 that the reason for differentiating between the

two sets of Junior Engineers is not reasonable. If we go

through the entire judgment, it appears that in that case

also the concerned resolution was not under challenge;

rather the petitioners have only prayed for their promotion

and raised their grievance that there is no rationale behind

giving preference to only such Junior Engineers who

acquires degree in Engineering or its equivalent degree after

entering the service as Junior Engineer.

Thus, the contention of the State that the

petitioners have not challenged the Resolution of 1998

and/or 2004 and as such they cannot get any benefit is not

acceptable to this Court as the said argument is

misconceived in view of the discussion made herein above.

15. At the cost of repetition, after going through the

Resolution of the Government dated 26.05.2004 it clearly

transpires that the same clauses have been adopted which

was mentioned in the Resolution dated 22.07.1998 and as

held hereinabove; Clause-4 (Ga) of the Resolution dated

22.07.1998 does not debars persons/candidates who were

already having A.M.I.E degree prior to their coming into the

service.

In view of the aforesaid discussions this Court

holds that Clause-4 (Ga) does not debars these petitioners

from getting benefit of promotion; rather Clause-4 (Ga) has

clarified that even those persons who were not having

A.M.I.E degree and acquired the same during course of

service were also entitled for promotion. Thus, there is no

ambiguity in the said resolution; rather the same is clarified

herein above.

16. In view of the aforesaid findings, the instant

writ application is allowed and this Court holds that the

petitioners are entitled for promotion on the post of

Assistant Engineer w.e.f 01.07.2002, 01.12.2002 and

01.01.2003, respectively and the order dated 15.01.2007

whereby the petitioners were given promotion in the scale of

6500-10500/- is modified accordingly.

17. So far as monetary benefits of the petitioners

are concerned; they are directed to approach the concerned

respondent along with necessary documents/judgments

who shall pass a reasoned order in accordance with law,

rules & regulations and in the light of discussions made

herein above.

It goes without saying that since the matter is

very old; the reasoned order with regard to payment of

arrear shall be passed within a period of four months from

the date of receipt of respective representations.

18. With the aforesaid terms, this writ application

stands disposed of.

(Deepak Roshan, J.) Jharkhand High Court, Ranchi Dated: 6th September, 2021 Amardeep/AFR