Jharkhand High Court
Rishi Nandan vs Shrawan Kumar on 21 September, 2022
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.23 of 2022
----
1. Rishi Nandan, aged about 50 years, son of Late Ajay
Kumar Sinha, resident of Flat No.G-01, Shreeji Tower,
Circular Road, Lalpur, P.O. and P.S. Lalpur, Ranchi,
District Ranchi, PIN 834001.
2. Mukul Kumar Gorwara, aged about 51 years, son of
Shri Mahendra Kumar Gorwara, resident of Flat No.02,
Krish Tower, Bosco Nagar, P.O. and P.S. Hatia, District
Ranchi, PIN 834004.
3. Sanjay Singh, aged about 50 years, son of Shri Ram Das
Singh, resident of Flat No.101, Renu Bala Apartment,
Tel Mill Gali, Hehal, P.O. Hehal, P.S. Pandra, Ranchi,
District Ranchi, PIN 834005.
... ... Respondent Nos.8, 9, 10/Appellants
Versus
1. Shrawan Kumar, aged about 47 years, son of Late Ram
Padarath Singh, resident of Flat No.704-D, Gopal
Marketing Complex, Kadru Road, P.O. Argora, P.S.
Ashok Nagar, Town and District Ranchi 834002
(Jharkhand).
2. Ashok Kumar Sinha, aged about 47 years, son of Late
Mohan Prasad, resident of Flat No.406, Block-D,
Basudev Nagar, Kanta Toli, P.O. Kanta Toli, P.S. Lower
Bazar, Town and District Ranchi-834001 (Jharkhand).
3. Mantosh Mani Singh, aged about 45 years, son of Shri
Gajendra Prasad Singh, resident of Flat No.102,
Shivalaya Apartment, Chandni Chow, P.O. Gandhi
Nagar, P.S. Gonda, District Ranchi - 834008
(Jharkhand).
... ... Writ petitioners /Respondents
4. The Jharkhand Urja Vikas Nigam Limited, through its
Chairman-cum-Managing director, having its office at
Engineering Building, H.E.C. Dhurwa, P.O. & P.S.
Dhurwa, Ranchi 834004, District Ranchi (Successor
Holding Company formed out of unbundling of Erstwhile
Jharkhand State Electricity Board, Ranchi).
5. The General Manager (Personnel & General
Administration), Jharkhand Urja Vikas Nigam Limited,
having its office at Engineering Building, Dhurwa, P.O.
and P.S.- Dhurwa, Ranchi-834004, District Ranchi.
6. The Jharkhand Bijli Vitran Nigam Limited, through its
Managing Director, having its office at Engineering
Building, HEC Dhurwa, P.O. and P.S. Dhurwa, Ranchi,
District Ranchi PIN No. 834004 (Successor Power
Distribution Company formed out of unbundling of
Erstwhile Jharkhand State Electricity Board, Ranchi).
7. General Manager (H.R.), Jharkhand Bijli Vitran Nigam
Ltd., having its office at Engineering Building, HEC,
Dhurwa, P.O. and P.S.- Dhurwa, Ranchi-834004,
District Ranchi.
8. Deputy General Manager (H.R.), Jharkhand Bijli Vitran
Nigam Ltd., having its office at Engineering Building,
HEC, Dhurwa, P.O. and P.S.- Dhurwa, Ranchi-834004,
District Ranchi.
9. The Bihar State Power Holding Corporation Limited,
through its Chairman-cum-Managing Director, having
its office at 1st Floor, Vidyut Bhawan, Bailey Road, P.O.
Vidyut Bhawan, Bailey Road, P.O. Vidyut Bhawan,
Bailey Road, P.S. Kotwali, District Patan-800 001 (Bihar)
(Successor Holding Company formed out of unbundling
of erstwhile Bihar State Electricity Board, Patna)
10. The General Manager (Personnel & General
Administration), Bihar State Power Holding Corporation
Limited, through its Chairman-cum-Managing Director,
having its office at 1st Floor, Vidyut Bhawan, Bailey
Road, P.O. Vidyut Bhawan, Bailey Road, P.S. Kotwali,
District Patna-800 001 (Bihar)
... ... Respondent Nos.1 to 7 /Respondents
With
L.P.A.No.24 of 2022
----
1. Rishi Nandan, aged about 50 years, son of Late Ajay
Kumar Sinha, resident of Flat No.G-01, Shreeji Tower,
Circular Road, Lalpur, P.O. and P.S. Lalpur, Ranchi,
District Ranchi, PIN 834001.
2. Mukul Kumar Gorwara, aged about 51 years, son of
Shri Mahendra Kumar Gorwara, resident of Flat No.02,
Krish Tower, Bosco Nagar, P.O. and P.S. Hatia, District
Ranchi, PIN 834004.
3. Sanjay Singh, aged about 50 years, son of Shri Ram Das
Sing, resident of Flat No.101, Renu Bala Apartment, Tel
Mill Gali, Hehal, P.O. Hehal, P.S. Pandra, Ranchi,
District Ranchi, PIN 834005.
... ... Petitioners-Appellants
Versus
1. The Jharkhand Urja Vikas Nigam Limited, through its
Chairman-cum-Managing Director, having its office at
Engineering Building, HEC, Dhurwa, P.O. and P.S.
Dhurwa, Ranchi 834004, District Ranchi
2. The General Manager (Personnel & General
Administration), Jharkhand Urja Vikas Nigam Limited,
having its office at Engineering Building, Dhurwa, P.O.
and P.S.- Dhurwa, Ranchi-834004, District Ranchi.
3. The Jharkhand Bijli Vitran Nigam Limited, through its
Managing Director, having its office at Engineering
Building, HEC Dhurwa, P.O. and P.S. Dhurwa, Ranchi,
District Ranchi PIN No.834004.
4. General Manager (H.R.), Jharkhand Bijli Vitran Nigam
Ltd., having its office at Engineering Building, HEC,
Dhurwa, P.O. and P.S.-Dhurwa, Ranchi-834004,
District Ranchi.
5. Deputy General Manager (H.R.), Jharkhand Bijli Vitran
Nigam Ltd., having its office at Engineering Building,
HEC, Dhurwa, P.O. and P.S.- Dhurwa, Ranchi 834004,
District Ranchi.
6. Arvind Kumar, father's name not known to the
Appellants, at present posted as General Manager-cum-
Chief Engineer, Jharkhand Bijli Vitran Nigam Ltd,
Electric Supply Area, Jamshedpur, P.O. and P.S.
Sakchi, Town Jamshedpur, District East Singhbhum.
7. Subhankar Jha, father's name not known to the
Appellants, at present posted as Electrical
Superintending Engineer, Jharkhand Bijli Vitran Nigam
Ltd., Electric Supply Circle, Deoghar, P.O. and P.S.
Deoghar, District Deoghar.
8. Md. Sajid Akhtar, father's name not known to the
Appellants, at present posted as Electrical
Superintending Engineer, Planning, Jharkhand Bijli
Vitran Nigam Ltd., having its office at Engineering
Building, Dhurwa, P.O. and P.S. Dhurwa, Ranchi
834004, District Ranchi.
9. Dhananjay Kumar, father's name not known to the
Appellants, at present posted as Electrical
Superintending Engineer, Jharkhand Bijli Vitran Nigam
Ltd., Electric Supply Circle, Garhwa, P.O. and P.S.
Garhwa, District Garhwa.
10. Dinesh Kumar Singh, father's name not known to the
Appellants, at present posted as Electrical
Superintending Engineer, Jharkhand Bijli Vitran Nigam
Ltd., Electric Supply Circle, Kodarma, P.O. and P.S.
Kodarma, District Kodarma.
11. Prabhat Kumar Srivastava, father's name knot known to
the Appellants, at present posted as Electrical
Superintending Engineer, Jharkhand Bijli Vitran Nigam
Ltd., Electric Supply Circle, Hazaribagh, P.O. and P.S.
Hazaribagh, District Hazaribagh.
12. Pratosh Kumar, father's name not known to the
Appellants, at present posted as Electrical
Superintending Engineer, Jharkhand Bijli Vitran Nigam
Ltd., Electric Supply Circle, Chas, P.O. and P.S. Chas,
District Bokaro.
13. Man Mohan Kumar, father's name not known to the
Appellants, at present posted as Electrical
Superintending Engineer, Jharkhand Bijli Vitran Nigam
Ltd., Electric Supply Circle, Jamshedpur, P.O. and P.S.
Sakchi, Town Jamshedpur District East Singhbhum.
14. Ashok Kumar Sinha, father's name not known to the
Appellants, at present posted as Deputy General
Manager (HR), Jharkhand Bijli Vitran Nigam Ltd.,
Engineering Building, Dhurwa, P.O. and P.S. Dhurwa,
Ranchi 834 004, District Ranchi.
15. Shrawan Kumar, father's name not known to the
Appellants, at present posted as General Manager, Re-
structure Accelerated Power Development and Reform
Programme, Jharkhand Bijli Vitran Nigam Ltd.,
Engineering Building, Dhurwa, P.O. and P.S. Dhurwa,
Ranchi 834 004, District Ranchi.
16. Sudhanshu, father's name not known to the Appellants,
at present posted as Electrical Superintending Engineer,
Remote Metering Cell, Jharkhand Bijli Vitran Nigam Ltd.
Engineering Building, Dhurwa, P.O. and P.S. Dhurwa,
Ranchi 834 004, District Ranchi
... ... Respondents/Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellants : Mr. Sumeet Gadodia, Advocate
: Mr. Ritesh Kumar Gupta, Advocate
For the JUVNL : Mr. Mukesh Kumar Sinha, Sr. S.C.
For the Resp. Nos.9 & 10 : Mr. Manoj Tandon, Advocate
(In L.P.A.No.23 of 2022)
For the Caveator : Mr. Navaniti Prasad Singh, Sr. Advocate
: Mr. Dhananjay Kr. Pathak, Advocate
--------
C.A.V. on 31.08.2022 Pronounced on 21.09.2022
Per Dr. Ravi Ranjan, C.J..
Both these appeals arise out of the same order, as such,
with the consent of the learned counsel for the parties, are
being heard together and are disposed of by this common
order.
2. Both these intra-court appeals, preferred under Clause
10 of the Letters Patent, are directed against the
order/judgment dated 21.12.2021 passed by learned Single
Judge of this Court in writ petitions being W.P.(S) No. 4187 of
2018 and W.P.(S) No.681 of 2019 whereby and whereunder
the learned Single Judge has refused to interfere with the
decision as taken in the Notification bearing No. 1622 dated
01.08.2018 issued vide Memo No.1623 dated 01.08.2018
whereby the Respondent No.6 has been granted promotion to
the post of Chief Engineer as also refused to pass positive
direction for consideration of the case of the writ petitioners
for promotion to the post of Chief Engineer or any equivalent
post and further declined to direct the respondents to treat
and/or reckon the date of promotion to the post of Electrical
Superintending Engineer with effect from 31.03.2015, i.e.,
the date on which the persons junior to the petitioners
including Respondent Nos. 6 to 16, have been promoted to
the post of Electrical Superintending Engineer. The learned
Single Judge has also refused to interfere with the decision of
the authority as contained in Letter No. 198 dated
26.02.2009 by which a decision was taken for publishing
final gradation list determining inter-se seniority of Assistant
Electrical Engineers belonging to General Cadre appointed by
the erstwhile Bihar State Electricity Board, Patna including
Assistant Electrical Engineers for General Cadre so far as it
relates to the petitioners.
3. PRAYERS MADE IN W.P.(S) NO. 4187 OF 2018
(L.P.A. NO.24 OF 2022)
The writ petition W.P.(S) No. 4187 of 2018 has been filed
for following reliefs :-
"1.(i) For issuance of an appropriate
writ/order/direction, for quashing/setting aside the
Notification bearing no. 1622, dated 01.08.2018,
issued vide Memo No. 1623, dated 01.08.2018
(Annexurte-18), whereby Respondent No. 6 (Arvind
Kumar) has been granted promotion to the post of
Chief Engineer, especially because promotion has
been granted to said Respondent No.6 without even
considering the case of promotion of the present
Petitioners to the post of Chief Engineer or
equivalent post, despite the fact that Respondent
No.6 is, admittedly, junior to present Petitioners.
(ii) For issuance of an appropriate
writ/order/direction, including Writ of Mandamus
directing the Respondent-authorities to consider the
case of the Petitioners for promotion to the post of
Chief Engineer or any equivalent posts, especially
because the Petitioners are senior-most Electrical
Engineers (General Cadre) and are, thus, entitled
for consideration of their cases for promotion to the
post of Chief Engineer or equivalent post.
(iii) For issuance of a further appropriate
writ/order/direction directing the Respondent-
authorities to treat and/or reckon the date of
promotion of the Petitioners to the post of Electrical
Superintending Engineer with effect from
31.03.2015 i.e. the date on which persons junior to
the Petitioners, including Respondent No.6 to 16
have been granted promotion to the post of
Electrical Superintending Engineer.
(iv) For issuance of a further appropriate
writ/order/direction, including Writ of Declaration,
declaring that Petitioners are senior to private
Respondent No.6 to 16 and merely because said
Respondent Nos. 6 to 16 have been granted
promotion to the post of Electrical Superintending
Engineer prior to the promotion given to the
Petitioner on the said post, would not make
Respondent No.6 to 16 senior to the Petitioners.
(v) In alternative to prayer (iii) and (iv) above, the
Petitioners pray for issuance of further appropriate
writ/order/direction, including Writ of Certiorari,
for quashing /setting aside the Notifications all
dated 31.03.2015 as contained in Memo No.427
dated 31.03.2015 (Annexure-12) by which
Respondent Nos. 6 to 16 have been granted
promotion to the post of Electrical Superintending
Engineer, especially because said promotions were
granted to them in utter violation of Article 14 and
16 of the Constitution of India, without considering
cases of Petitioners for promotion on the said post,
despite the fact that Petitioners are senior to
Respondent Nos. 6 to 16."
FACTS OF THE CASE IN L.P.A. NO.24 OF 2022 ARISING
OUT OF W.P.(S) NO. 4187 OF 2018
The petitioner no. 1 claims to have been appointed as
unskilled Khalasi on 26.12.1995 whereas the petitioner nos.
2 and 3 claim to have been appointed as Controller on
04.11.1997. After their appointment, they claim to have
obtained higher qualification or Degree in Electrical
Engineering and accordingly became entitled for appointment
to the post of Electrical Engineer.
One internal advertisement was issued vide Employment
Notice No. 1/1999, dated 02.02.1999. The petitioners applied
and were duly selected and appointed to the post of Assistant
Electrical Engineer on 13.06.2000.
The respondents also came out with an external
advertisement issued vide Employment Notice No. 3/1999 in
pursuance of which respondent nos. 6 to 16 were appointed
to the post of Assistant Electrical Engineer on 24.11.1999
while the writ petitioners were appointed on 13.06.2000. The
petitioners were treated senior to respondent nos. 6 to 16 in
the cadre of Assistant Electrical Engineers (General Cadre) of
the erstwhile Bihar State Electricity Board and a tentative
Gradation List were issued vide Memo No. 565, dated
05.05.2008 followed by final Gradation List dated
26.02.2009.
After creation of State of Jharkhand, Jharkhand State
Electricity Board was created. There were two separate cadres
of Electrical Engineers namely the cadre of Electrical
Engineers in Generation and Transmission Networks, which
is known as Electrical Engineers (GTO Cadre). Under the
Distribution Wing, there was a separate cadre of Electrical
Engineers which is known as Electrical Engineers (General
Cadre). The writ petitioners as well as the respondent nos. 6
to 16 are from the Electrical Engineers (General Cadre). The
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Jharkhand State Electricity Board was bifurcated into four
Companies after enactment of Electricity Act, 2003, namely -
(i) Jharkhand Urja Vikas Nigam Ltd. (Holding Company);
(ii) Jharkhand Bijli Vitran Nigam Ltd. (Distribution Company);
(iii) Jharkhand Urja Sancharan Nigam Ltd. (Transmission
Company); and
(iv) Jharkhand Urja Utpadan Nigam Ltd. (Generating Company)
The writ petitioners as well as the respondent nos. 6 to
16 were in the Distribution Cadre of the erstwhile Jharkhand
State Electricity Board and their services were absorbed
under the Jharkhand Bijli vitran Nigam Ltd. (Respondent
No.3).
It is the further case of the petitioners that the
minimum qualifying period (Kalawadhi) prescribed for
promotion from the post of Assistant Electrical Engineer to
the post of Electrical Executive Engineer were earlier
prescribed to be eight years and after completion of eight
years of service, case of the petitioners along with private
respondents were considered for promotion to the post of
Electrical Executive Engineers and, accordingly, vide
Notifications issued vide Memo No. 3912, dated 02.08.2008,
promotion was granted to the petitioners including some of
the private respondents to the post of Electrical Executive
Engineer. In the said Notifications, names of the petitioners
were placed above private respondents.
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It is the further case of the writ petitioner that the State
of Jharkhand implemented the provisions of 6th pay
Commission Recommendations and the then Jharkhand
State Electricity Board also implemented the same. The State
of Jharkhand also issued the Resolutions regarding
qualifying Service (Kalawadhi) for promotion from one Grade
to another Grade which was notified in terms of office
memorandum dated 24.03.2009, issued by the Government
of India. Thereafter, the Jharkhand State Electricity Board
also issued office order no. 1194, dated 07.07.2012, wherein
the minimum qualifying service (Kalawadhi) for promotion of
its employees from one Grade Pay to another Grade Pay was
referred.
The Grade Pay of electrical Executive Engineer was
Rs.6,600 and the next promotional post of Electrical
Superintending Engineer was having Grade Pay of
Rs.8,700/-. Another office order was issued on 07.07.2012
for promotion from the post of Electrical Executive Engineer
to the post of electrical Superintending Engineer, wherein,
the minimum qualifying service (Kalawadhi) of ten years was
prescribed. The Grade Pay of an Assistant Electrical Engineer
was Rs.5,400/- and the Grade Pay of next promotional post
of Electrical Executive Engineer was Rs.6,600/-. The
minimum qualifying service (Kalawadhi) for promotion from
Assistant Electrical Engineer to Electrical Executive Engineer
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was prescribed to be five years vide office order dated
07.07.2012. Earlier the minimum qualifying service for
promotion from the post of Assistant Electrical Engineer to
the post of Electrical Executive Engineer was eight years,
therefore, petitioners along with private respondents were
granted promotion after completion of minimum qualifying
service of eight years.
Since promotion to the post of Electrical Superintending
Engineer was to be granted only on completion of ten years of
minimum qualifying service, as per office order dated
07.07.2012, the petitioners and the private respondents were
entitled for promotion only after completion of minimum
qualifying service of ten years in the year 2018. However,
there was a provision in the aforesaid office order dated
07.07.2012 that where promotional posts are vacant but the
minimum qualifying service is not being fulfilled by any of the
employees, if an employee has fulfilled the requisite qualifying
service of the post on which he is working and has fulfilled
the combined qualifying service of the promotional post and
the post on which he is working, then a relaxation shall be
given up to 50% of the minimum qualifying service required
for the promotional post.
The grievance of the writ petitioners is that even though
the private respondents were not fulfilling the minimum
qualifying service (kalawadhi) but were granted promotion to
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the post of Electrical Superintending Engineer vide
Notification issued under Memo No. 427 dated 31.03.2015.
It is further case of the writ petitioners that the post of
Chief Engineer is in the Grade Pay of Rs.8,900/- and the
minimum qualifying service (Kalawadhi) for promotion to the
said post is two years. The petitioners have completed the
requisite minimum qualifying service for promotion to the
post of Chief Engineer and they are entitled for consideration
of their cases for promotion to the post of Chief Engineer or
equivalent post but they were not considered. However, vide
Memo No. 1623, dated 01.08.2018, two persons have been
promoted to the post of Chief Engineer and out of two
promotions, one Arvind Kumar (Respondent No. 6) is junior
to the petitioners.
PRAYERS MADE IN W.P.(S) NO. 681 OF 2019
(L.P.A. NO.23 OF 2022)
The writ petition W.P.(S) No. 681 of 2019 has been filed
for following reliefs :-
1.(i) For issuance of an appropriate writ, order or
direction particularly a writ in the nature of
certiorari, for quashing the letter no.198 dated
26.02.2009 (Annexure-5 Series) issued under the
signature of Joint Secretary, erstwhile Bihar State
Electricity Board, Patna whereby and whereunder a
decision was taken for publishing final gradation
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list, determining the inter-se-seniority of Assistant
Electrical Engineers belonging to General Cadre in
short A.E.E. (GEN) appointed by the erstwhile Bihar
State Electricity Board, Patna including the
Assistant Electrical Engineers of General Cadre
under the jurisdiction of erstwhile Jharkhand State
Electricity Board, so far as it relates to the
petitioners,
(ii) Upon quashing the said letter dated 26.02.2009
(Annexure-5 Series), for issuance of further
appropriate writ, order or direction, directing the
respondent authorities to amend the gradation list
as per the date of appointment and date of joining of
the petitioners and the private respondent nos. 8, 9
& 10;
(iii) To declare that the letter dated 26.02.2009 and
gradation list published by Jharkhand State
Electricity Board or its successor is unlawful, even
otherwise it is bad, so far as relates to the
petitioners;
FACTS OF THE CASE IN L.P.A. NO. 23 OF 2022 ARISING
OUT OF W.P.(S) NO. 681 OF 2019
Pursuant to the Bihar State Electricity Board's (Open
External) Employment Notice No. 03/1999, the writ
petitioners were appointed to the post of Assistant Electrical
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Engineer, General Cadre on the basic pay of Rs.2,450 in the
pay scale of Rs.2,450 -75 -2750 -100 -4250 vide individual
provisional offer of appointment letters dated 24.12.1999.
Thereafter, the writ petitioners joined to the said post on
11.01.2000 which was also duly notified by the then Bihar
State Electricity Board vide Notification dated 13.06.2000.
The respondent no. 8 was appointed as unskilled
Khalasi in the year 1995 whereas the respondent nos. 9 and
10 were appointed as Controller in the year 1997. Thereafter,
pursuant to Employment Notice No. 01/1999 (internal), the
respondent nos. 8 to 10 were appointed to the post of
Assistant Electrical Engineer, General Cadre in the basic pay
of Rs.2,450/-in the pay scale of Rs.2,450 -75 -2750 -100 -
4250 vide individual provisional offer of appointment letters
dated 13.06.2000. Respondent no. 8 gave his joining on
20.06.2000 whereas respondent nos. 9 and 10 gave their
joining on 22.06.2000.
It is the further case of the writ petitioners that the
Bihar State Electricity Board, Patna circulated a tentative
gradation list determining inter-se seniority of the Assistant
Electrical Engineers belonging to the general cadre of Bihar
State Electricity Board vide letter no. 565, dated 05.05.2008.
Thereafter, vide Notification dated 02.08.2008, the
Jharkhand State Electricity Board promoted the Assistant
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Electrical Engineer, General Cadre to the post of Electrical
Executive Engineer with immediate effect.
It is case of the petitioners that, after bifurcation of the
erstwhile State of Bihar, the Jharkhand State Electricity
Board was created and under the said Board, there were two
separate cadres of Electrical Engineers, namely, Assistant
Electrical Engineer (General Cadre) and Assistant Executive
Engineers in Generation and Transmissions Organisation
known as Assistant Executive Engineer (GTO Cadre). Under
the Distribution Wing of erstwhile Jharkhand State
Electricity Board, there was another cadre of Electrical
Engineers known as Assistant Electrical Engineer (General
Cadre) and the petitioners and the respondent nos. 8 to 10
belong to Assistant Electrical Engineers (General Cadre).
The minimum qualifying period (Kalawadhi) prescribed
for promotion from the post of Assistant Electrical Engineer
to the post of Electrical Executive Engineer was earlier
prescribed as eight years and after completion of eight years
of service, case of the petitioners along with private
respondents were considered for promotion to the post of
Electrical Executive Engineer and accordingly, notifications
issued vide Memo No. 3892, dated 02.08.2008, promotion
was granted to the petitioners including the private
respondents to the post of Electrical Executive Engineer.
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After objection received against the tentative gradation
list, a final gradation list determining inter-se seniority of
Assistant Electrical Engineers belonging to General Cadre of
erstwhile Bihar State Electricity Board was published on
26.02.2009. The Bihar State Electricity Board, Patna, vide
letter no. 198, dated 26.02.2009, circulated the final
gradation list determining inter-se seniority of the Assistant
Electrical Engineer belonging to the General Cadre of Bihar
State Electricity Board.
Petitioner filed their objections to the respondent against
the tentative gradation list of the Assistant Electrical
Engineer belonging to the General Cadre of Bihar State
Electricity Board. Pursuant to the notification no. 33, dated
11.03.2010, petitioners and the private respondents were
finally allocated Jharkhand Cadre and they continued to
work as such.
The Jharkhand State Electricity Board (Personnel
Department), vide office order no. 1194, dated 07.07.2012,
decided tenure (Kalawadhi) of the employees for granting
promotion. It was decided that where the posts are available
but the tenure is not completed, the person will be promoted
by adding the lower level post and the tenure of total service
of upgraded post by granting 50% exemption.
Pursuant to the Resolution no. 3286, dated 04.04.2014,
the Government of Jharkhand (Personnel Administrative
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Reforms and Rajbhasa Department) came out with a
Resolution regarding promotion for the employees who had
completed the tenure. In view of Notification dated
31.03.2015, petitioners were promoted from the post of
Electrical Executive Engineer to the post of Electrical
Superintending Engineer.
The gradation list dated 26.02.2009 prepared by the
Bihar State Electricity Board was not in consonance with the
General Cadre Rules, 1976 and as such, they filed
representations for necessary corrections but no heed was
paid. The case of the petitioner nos. 1 and 2 were considered
by the Departmental Promotion Committee and vide
proceeding dated 27.03.2015, case of petitioner nos. 1 and 2
along with others in their batch were considered and
promoted to the post of Electrical Superintending Engineer.
Vide Departmental proceeding dated 20.06.2015 and
18.12.2015, case of private respondent nos. 8 to 10 was
considered and subsequent thereto they were considered for
promotion prior to the other remaining members of the batch
of Assistant Electrical Engineer (General Cadre) appointed
against the BSEB's Employment Notice 03/1999, all of whom
had joined prior to the date of joining of private respondents.
4. It is evident that the writ petition being W.P.(S) No.681
of 2019 has been filed challenging the tentative gradation list
dated 26.02.2009 prepared by the Bihar State Electricity
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Board.
The writ petitioners have taken the ground that as per
the tentative gradation list issued vide letter No.565 dated
05.05.2008 followed by final gradation list vide letter no.198
dated 26.02.2009, the petitioners are senior to the
Respondent No.8 to 10 and the same has not been modified
and/or amended by either the Bihar State Electricity Board
or the Jharkhand State Electricity Board. The Respondent
Nos.6 to 16 being junior cannot be given promotion above the
petitioners.
It has further been argued making reference of the order
dated 07.07.2012 which provides that where promotional
posts are vacant but the minimum qualifying service is not
being fulfilled by any of the employees, under the said
circumstances, if an employee has fulfilled the requisite
qualifying service of the post on which he is working and has
fulfilled the combined qualifying service of the promotional
post and the post on which he is working, then a relaxation
shall be given up to 50% of the minimum qualifying service
required for the promotional post.
The writ petitioners, therefore, agitated the ground
about fulfillment of the combined qualifying service of 15
years in June, 2015 and as per office memorandum dated
31.12.2010, they became senior to the private respondents
and also eligible for being considered for promotion along
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with their juniors by granting them relaxation of minimum
qualifying service for the post of Superintending Engineer.
Further ground has been taken that if petitioners were
not short of more than half of the qualifying/ eligibility
service for being promoted to the post of Electrical
Superintending Engineer or two years, whichever is less, their
cases were bound to be considered for promotion along with
their juniors who had completed minimum qualifying service
of 15 years.
It is the further ground that the petitioners along with
some of the private respondents were promoted to the post of
Electrical Executive Engineer on 02.08.2008 and thus, in the
year 2015, when cases of promotion of their juniors were
considered for promotion, the petitioners had already fulfilled
more than half of the qualifying service for promotion to the
post of Superintending Engineer therefore, they became
entitled to be considered for promotion to the post of
Electrical Superintending Engineer along with their juniors.
5. On the other hand, the petitioners in W.P.(S) No. 681 of
2019 who are private respondents in W.P.(S) No. 4187 of
2018, opposed the contention advanced on behalf of learned
counsel appearing for the Respondent Nos. 8 to 10 in W.P.(S)
No. 681 of 2019 by raising the issue that the petitioners were
appointed directly through the external open Employment
Notice No. 03 of 1999 and are presently working in the cadre
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of Assistant Electrical Engineers (General Cadre) under
Jharkhand Bijli Vitran Nigam Limited, whereas, the private
respondents were initially appointed to the post of Unskilled
Khalasi and Controller and subsequently, pursuant to the
internal Employment Notice No. 01/1999, were appointed to
the post of Assistant Electrical Engineer in the cadre on
different dates. They have taken the plea that the date of
joining on the cadre post of the petitioners is earlier than that
of the private respondents.
They raised objection about the gradation list dated
26.02.2009, prepared by the Bihar State Electricity Board,
which according to them, is not in consonance with the
General Cadre Rules, 1976. The private respondents are not
fulfilling the prerequisite criteria as provided under the
General Cadre Rules, 1976 for promotion to the post of
Electrical Superintending Engineer on the date when the
petitioner nos. 1 and 2 along with others were promoted.
Further argument has been advanced that the petitioner
nos. 1 and 2 along with others were promoted to the post of
Electrical Superintendent Engineer from the post of Electrical
Executive Engineer in the month of March, 2015 whereas the
private respondents were promoted at a later stage in the
months starting from June, 2015 thereby surpassing the
batch of recruits of BSEB Employment Notice 03/1999.
It was also argued that the private respondents can only
- 22 -
be considered for promotion, in view of General Cadre Rules,
1976, after exhausting entire list of candidates for promotion
amongst the direct recruits. But, the private respondent nos.
8, 9 and 10 in W.P.(S) No. 681 of 2019 have been promoted to
the post of Electrical Superintending Engineer from the post
of Electrical Executive Engineer before exhausting the list of
direct recruits. Thus, the case of the petitioner nos. 1 and 2
were considered by the Departmental Promotion Committee
and accordingly, they were promoted to the post of Electrical
Superintending Engineer. Thereafter, the case of private
respondent nos. 8 to 10 was taken up and subsequent
thereto they were considered for promotion prior to the other
remaining members of the batch of Assistant Electrical
Engineer (General Cadre) appointed against Employment
Notice 03/1999, all of whom had joined prior to the date of
joining of private respondents, which is unjustified. According
to them, the petitioners are senior to the respondent nos. 8 to
10 which cannot be ignored.
It has further been argued that the tentative gradation
list was wrongly prepared by the erstwhile Bihar State
Electricity Board, objections were raised by the petitioners
and representations were duly served but to no effect.
It is the further ground that after issuance of tentative
gradation list dated 05.05.2008, petitioners had objected the
same but without taking into consideration the aforesaid
- 23 -
objection, the final gradation list was prepared which is not
sustainable in the eyes of law.
The learned Single Judge, after taking into consideration
the fact in entirety and after framing an issue as to whether
the seniority can be claimed from the date when the
incumbent was not born in service, has recorded a finding by
holding therein that the private respondents in W.P.(S)
No.4187 of 2018 and petitioners in W.P.(S) No. 681 of 2019
were born in the cadre prior to the petitioners in W.P.(S)
No.4187 of 2018 and, as such, they were considered for
promotion to the post of Chief Engineer correctly as they were
senior to the petitioners in W.P.(S) No.4187 of 2018 and
accordingly, the writ petition being W.P.(S) No.4187 of 2018
has been dismissed against which the present intra-court
appeals have been preferred.
6. Mr. Sumeet Gadodia, learned counsel appearing for the
appellants in both the appeals, has taken the ground that the
writ petitioners have been inducted in the cadre of Assistant
Engineer by virtue of promotion, while on the other hand, the
private respondents who are petitioners in W.P.(S) No.681 of
2019 and respondents in W.P.(S) No.4187 of 2018 have been
appointed through direct recruitment in a calendar year and
as per the settled position of law that if in a calendar year the
posts are being filled up by way of promotion and direct
recruitment, the promotes will always be reckoned as senior
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to that of the direct recruits.
It has been argued that the seniority list which has been
prepared much ago, cannot be allowed to be reversed after
long lapse of time as has been done in the instant case.
7. On the other hand, Mr. Navaniti Prasad Singh, learned
senior counsel for respondents assisted by Mr. Dhananjay
Kumar Pathak, has submitted that it is absolutely incorrect
on the part of the learned counsel appearing for the
appellants who claimed to have been promoted, rather,
according to learned senior counsel, if the advertisement,
being Advertisement No.1/99, is to be taken into
consideration, the same itself speaks about fulfilment of
posts by way of direct recruitment but through internal
sources.
It has been argued that by making reference of the
General Cadre Rules, 1976 where there is a provision of
fulfilment of posts through promotion but the same is
through Selection Committee, herein, the appellant have
failed to bring on record any decision of the Selection
Committee save and except the internal advertisement being
Advertisement No.1/99 and hence the appointment of the
appellants made to the post of Assistant Electrical Engineer
cannot be considered to be filled up through promotion,
rather it is direct recruitment through internal sources.
It has been argued that the appointment of the
- 25 -
appellants and the private respondents cannot be said to be
in the same calendar year reason being that the appellants
have been appointed, according to their own case, in the
month of June, 2000 while the private respondents have been
appointed on 24.11.1999. Therefore, if the date of
appointment of the appellant vis-à-vis the private
respondents will be taken into consideration, it will be evident
that both the appointments are in different calendar years
and hence the plea which has been taken to treat the
appellants senior to that of the private respondents as they
are promotes and will prevails upon the private respondents
since they have been appointed through direct recruitment, is
not correct.
It has been argued that so far as the issue of promotion
to the post of Superintending Engineer is concerned, the writ
petitioners did not question the same immediately after
issuance of such notification, rather, the same has been
challenged only when the order for promotion to the post of
Chief Engineer has been issued.
It has been argued that the post of Chief Engineer is to
be filled up from the feeder channel, i.e., from the post of
Superintending Engineer and admittedly, the writ petitioners
have not questioned the promotion granted in favour of the
private respondents which is prior to the promotion granted
in favour of the appellants and taking into consideration the
- 26 -
aforesaid aspect of the matter, if the private respondents have
been promoted as Chief Engineer prior to the appellants, the
same cannot be said to suffer from an error.
8. We have heard the learned counsel for the appellants,
perused the documents available on record as also the
finding recorded by the learned Single Judge in the impugned
order.
9. This Court, on appreciation of the rival submissions and
considering the factual aspect as referred hereinabove, is of
the view that the sole question which is to be considered is -
Whether the appointment of the appellants can be
treated to be by way of promotion or it is direct recruitment
through internal sources?
The aforesaid issue is the determining factor for
resolving the dispute of seniority or grant of promotion to the
post of Superintending Engineer or the Chief Engineer.
10. This Court, in order to appreciate the argument
advanced on behalf of the learned counsel for the appellants
to treat their appointment to be in the nature of promotion,
deems it fit and proper to consider the relevant rule i.e., the
Bihar State Electricity Board Electrical Engineers' (General)
Cadre Rule - 1976, hereinafter to be referred to as the Rule,
1976, which has been enacted in exercise of power conferred
by Section 79(C) of the Electricity (Supply) Act, 1948 which
contains the method of recruitment.
- 27 -
It appear from the aforesaid Rule that the posts are to
be filled up through two modes, i.e., direct recruitment and
through promotion. The manner of direct recruitment has
been stipulated under Rule 6 whereby and whereunder, 70%
of the vacancy occurring in the lowest level in the cadre in a
year shall be filled up by direct recruitment, while the
manner of recruitment by promotion from Junior Engineer
has been provided under Rule 9 whereby 30% vacancies at
the lowest level in the cadre shall be filled up by promotion
from amongst the permanent Junior Engineers in the service
of the Board. The provisions under relevant Rule are being
extracted and reproduced as hereunder :-
6. Manner of direct recruitment :- (i) Seventy percent of
the vacancies occurring at the lowest level in the Cadre in
any year shall be filled by direct recruitment. The number of
vacancies in the Cadre shall be calculated on an
approximate basis in January of each year or as soon as
possible, thereafter.
(ii) Depending on the number of vacancies existing in the
Cadre there shall be advertisement by the Board published
in important newspapers and the number of vacancies, age
and other qualifications, preferences as well as reservation
for Scheduled Castes and Scheduled Tribes as per the
directions of the State Government shall be clearly
mentioned in the advertisement. Application shall be invited
by a fixed date.
(iii) After receipt of applications as regards eligibility,
letters of interview shall be issued to such number of
candidate as may be approved by the Chairman.
Explanation - If a very large number of application is relation
to the available vacancies are received the application may
be screened and the candidates with higher qualifications or
- 28 -
marks or experience or having passed the examination
earlier may be called for interview. The principles of scrutiny
shall be decided by the Chairman.
(iv) The candidates, who are called for interview, shall be
interviewed by a Selection Committee consisting of -
(a) Chairman,
(b) Member (Administration)
(c) Member (Accounts)
(d) Member (Engineering), and
(e) Member (Economic Research)
(v) The Committee shall prepare three lists in order of
merit respectively for general, Scheduled Caste and
Scheduled Tribe candidates, taking into account the number
of vacancies available for each of these categories.
(vi) The panels prepared by the Selection Committee in
accordance with sub-rule (v) shall be placed before the
Board for final selection and issue of appointment letters to
candidates from these lists in accordance with the number of
vacancies available for general and reserved quotas for
Scheduled Caste and Scheduled Tribe candidates.
(vii) The panels prepared in accordance with sub-rule (v)
shall be valid for a period of one year from the date of their
preparation but the Board may, under special
circumstances, extend this period by a further period not
exceeding six months.
9. Manner of recruitment by promotion from Junior
Engineers :- (i) Thirty per cent vacancies at the lowest level in
the Cadre shall be filled by promotion from amongst the
permanent Junior Engineers in the service of the Board.
Provided that if and when a separate Distribution-
cum-Supply Cadre of Junior Engineers is constituted,
recruitment to the service shall be confined to the Junior
Engineers from such a Junior Engineers' Cadre.
(ii) A junior Engineer in the service of the Board who has
put in at least 8 years of service in distribution and supply or
allied work shall be eligible for being considered for
appointment in the service.
(iii) Every year in the month of March, a specially
- 29 -
constituted Committee by the Board, known as "Selection
Committee" and composed of -
(a) Chairman,
(b) Member (Administration),
(c) Member (Engineering),
(d) Two seniormost General Managers, and
(e) Director of Personnel who shall also act as Member
Secretary shall meet and consider the records of
Junior Engineers with the requisite experience and
prepare a panel in order of merit and vacancies
against the promotion quota during the period April
to March shall be filled from this panel which shall
be valid for one year.
(iv) A Junior Engineer on promotion to the Cadre must
pass the confirmatory examination referred to in Rule 7
within a period of three years extendable up to four years in
special circumstances from the date he is promoted fails to
pass the examination he shall be reverted.
No Junior Engineer shall be confirmed after promotion
to the Cadre unless he passes the confirmatory examination.
11. Thus, it is evident that the post which is to be filled up
by way of promotion from Junior Engineer is by a Selection
Committee composed of Chairman, Member (Administration),
Member (Engineering), Two senior-most General Managers,
and Director of Personnel and thereafter, a Junior Engineer,
on promotion to the Cadre must pass the confirmatory
examination referred to in Rule 7 within a period of three
years extendable up to four years in special circumstances. If
he fails to pass the examination he shall be reverted.
12. This Court has found from the pleading of the
appellants in W.P.(S) No.4187 of 2018 wherein the
appointment said to have been made in their favour by virtue
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of internal advertisement being Advertisement No.1/99 (as
would appear from paragraph 14 of the writ petition). It
further appears from statement made at paragraph 12 of the
writ petition that the appellants before entering into the cadre
of Assistant Electrical Engineer was working as Unskilled
Khalasi so far as the Petitioner No.1 is concerned, and
Controller so far as Petitioner Nos. 2 and 3 are concerned.
It further appears that the appellants, namely, Rishi
Nandan, Mukul Kumar Gorwara and Sanjay Singh was
appointed by issuance of offer of appointment on the same
date i.e., 13.06.2000. For ready reference, the aforesaid
statement, paragraph 14 of the writ petition, is being
reproduced hereinbelow :-
"14. That it is stated that erstwhile Bihar State
Electricity Board issued an Internal Advertisement
being Employment Notice No.1/1999 dated 02.02.1999
inviting applications from its in-service employees for
consideration of their cases for appointment on the
post of Assistant Electrical Engineer. In this context, it
is stated that the Petitioners, since being eligible for
appointment on the post of Assistant Electrical
Engineer, applied pursuant to the aforesaid Internal
Advertisement and were duly selected and appointed
on the post of Assistant Electrical Engineer with effect
from following dates :-
Name of Petitioners Date of Date of
Appointment Joining
Rishi Nandan 13.06.2000 20.06.2000
Mukul Kumar Gorwara 13.06.2000 22.06.2000
Sanjay Sinha 13.06.2000 22.06.2000"
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13. The question arises that when it is the case of the
appellants that they, at the time of making entry in the cadre
of Assistant Electrical Engineer, were working as Unskilled
Khalasi or Controller, then where is the question of being
considered for promotion as per the provision made under
Rule 9 of the Rules, 1976 wherein condition for promotion to
the post of Assistant Electrical Engineer is that a candidate
must hold the post of Junior Engineer.
Since the appellants were not working as Junior
Engineer, as such there is no question of considering the
candidature of the appellants for promotion in view of the
provision of Rule 9 of the Rules, 1976.
Further, it is evident from the averment made at
paragraph 14 of the aforesaid writ petition wherein reference
of advertisement being Employment Notice No.1/99 dated
02.02.1999 has been made which was for inviting application
from its in-service employees for consideration of their case
for appointment on the post of Assistant Electrical Engineer.
The aforesaid admission on the part of the appellants that
applications were invited from its "in-service employees"
clarifies that the aforesaid advertisement was issued for
consideration of candidature of in-service employees and not
the persons holding the post of Junior Engineer for the
purpose of consideration for promotion to the post of
Assistant Electrical Engineer.
- 32 -
It is further admitted by the writ petitioners that they
admitted to have been appointed pursuant to the aforesaid
internal advertisement, after duly been selected on
13.06.2000.
It is also admitted fact that the private respondents had
been appointed in pursuance to the advertisement being
Advertisement No.3/99 inviting applications from the
external candidates and in pursuance thereto, the private
respondents have been appointed on 24.11.1999.
14. Therefore, the main plea taken on behalf of the
appellants to consider them senior since they have been
promoted and the private respondents have been appointed
through direct recruitment in a calendar year fails.
The private respondents were appointed on 24.11.1999
and that is the reason they have been treated to be senior
which is being questioned by the appellants on the ground
that they were appointed through promotion as Assistant
Electrical Engineer on 13.06.2000. But, as we have come to
the finding, after taking into consideration the provision of
Rule 9 of the Rules, 1976 and also considering the fact that
for promotion to fill up the post of Assistant Electrical
Engineer, the same is to be filled up from amongst the Junior
Engineers on the recommendation of the Selection
Committee, the appointment of the appellants cannot be
treated to be by way of promotion.
- 33 -
The appellants have admitted the date of their
appointment on 13.06.2000, while the appointment of the
private respondents is on 24.11.1999 and, as such, on the
basis of the principle of fixation of seniority taking the date of
issuance of offer of appointment, the respondents will be
treated to be senior since they were appointed on 24.11.1999
while the appellants were appointed on 13.06.2000.
The private respondents have been promoted to the post
of Electrical Executive Engineer and subsequently to the post
of Superintending Engineer vide Memo No.427 dated
31.03.2015 and thereafter to the post of Chief Engineer.
15. The appellants, being aggrieved with the promotion to
the post of Chief Engineer granted in favour of the private
respondents, have questioned the action of the respondent
authorities claiming themselves to be the promotees and they
should be treated senior to the direct recruits and if that
would be considered, the appellants will be treated to be
senior and thereby they will be entitled to be considered for
promotion to the post of Chief Engineer by recalling the
aforesaid Memo which has been passed in favour of the
private respondents.
16. The writ petitioners' claim that they are promotees to
the post of Assistant Electrical Engineer but actually they are
direct recruits in pursuance of Advertisement No.1/99
(Internal Advertisement) and by virtue of that they have been
- 34 -
appointed on 13.06.2000. The private respondents have been
appointed through direct recruitment i.e., by virtue of
Advertisement No.3/99 on 24.11.1999, therefore, there is no
question of considering the writ petitioners in W.P.(S) No.
4187 of 2018 senior to that of the private respondents.
Further, the private respondents have been granted
promotion to the post of Superintending Engineer which is
prior to the date of granting promotion to the writ petitioners
on the said post but the said notification was not challenged
immediately. However, the said notification has been
questioned in the writ petition by the appellants while
questioning the promotion of the private respondents to the
post of Chief Engineer.
17. The question arises that when the writ petitioners are
claiming themselves to be senior considering themselves to be
the promotees but the same has been discarded by the
respondent authorities and thereafter, promotion to the post
of Superintending Engineer has been granted, it was
incumbent upon the appellants to forthwith question the
order of promotion to the post of Superintending Engineer
granted in favour of the private respondents but that having
not been done, the right to hold the post has accrued in
favour of the private respondents and once the aforesaid right
has accrued, the promotion to the higher post will be based
upon the seniority position of the feeder cadre i.e., the post of
- 35 -
Superintending Engineer, which is just lower in hierarchy to
that of the post of Chief Engineer.
18. In our considered view, the aforesaid order of promotion
ought to have been challenged by the writ petitioners
forthwith or within reasonable period and certainly not at the
time of assailing the order of promotion to the post of Chief
Engineer, reason being that the Departmental Promotion
Committee, while considering the case of promotion to the
post of Chief Engineer, had considered the inter-se seniority
of feeder cadre, i.e., the post of Superintending Engineer
wherein the appellants were junior to the private respondents
and hence, it cannot be said that any irregularity has been
committed by the Departmental Promotion Committee while
considering/recommending the case of the private
respondents for promotion to the post of Chief Engineer.
Therefore, after accepting the order of promotion to the
post of Superintending Engineer fairly for a period of about
three years, the challenge to it along with the order of
promotion to the post of Chief Engineer, cannot be accepted.
Further, also for the reason that the private respondents have
been held to be senior to that of the appellants, on that
account also, the promotion granted to the post of
Superintending Engineer in favour of the respondents cannot
be said to suffer from illegality.
19. The learned Single Judge, after taking into consideration
- 36 -
the fact in entirety, has framed the issue about fixation of
seniority on the day when the concerned employees were not
born in the cadre, the same has been answered against the
appellants, which, according to our considered view, cannot
be said to suffer from any error for the reason that the
appellant had not taken birth on the day when the private
respondents were appointed, i.e., on 24.11.1999, rather they
had emerged in the cadre of the Assistant Electrical Engineer
only on 13.06.2000.
As such, the findings as have been arrived at by the
learned Single Judge, answering the aforesaid issue against
the appellants, cannot be said to suffer from any error.
20. Accordingly, the instant appeals fail and are dismissed.
21. Pending interlocutory application(s), if any, also stands
disposed of.
(Dr. Ravi Ranjan, C.J.)
I agree
(Sujit Narayan Prasad, J.)
(Sujit Narayan Prasad, J.)
Birendra/ A.F.R.
