- (1.) These two appeals were filed against the common judgment and order dated 29th July, 1978 made by the Division Bench of the High Court at Patna in C.W.J.C. No. 756 of 1977 whereby the High Court quashed the orders of the Government contained in Annexures 8, 9 and 10 to the writ petition. The facts unfurled from the writ petition are as follows:- The respondents Nos. 1 to 5 in these appeals (the petitioners in the writ petition) were directly appointed in the Bihar Engineering Service Class II as Assistant Engineers of the Irrigation Department on the recommendation of Bihar Public Service Commission and were posted in River Valley Project in 1961. The respondents Nos. 6 to 23 in C. A. No. 232 of 1978 (who are appellants in C.A. No. 233 of 1978 and respondents 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 11, 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, respondents Nos. 6 to 13 in C. A. No. 232 of 1978 (appellants Nos. 1 to 8 in C. A. No. 233 of 1978 and respondents 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, respondents Nos. 14 to 23 in C. A. No. 232 of 1978 (appellants Nos. 9 to 18 in C.A. No. 233 of 1978 and respondents Nos. 13 to 22 in the writ petition) were also promoted to Bihar Engineering Service, Class II as Assistant Engineers. On February 26, 1969, a seniority list of Assistant Engineers was published by the Department wherein the names of the respondents Nos. 1 to 5 (the petitioners) were mentioned at Sl. Nos. 170, 199, 208, 211 and 226 and the names of the respondents Nos. 6 to 23 (respondents Nos. 5 to 22 in the writ petition) were mentioned at Sl. Nos. 253, 254, 256 to 262, 687 to 695 and 701 respectively. The respondents Nos. 6 to 23 were thus shown as juniors to the respondents Nos. 1 to 5 (the petitioners). The respondents Nos. 6 to 23 feeling aggreived by the said seniority list made representations claiming seniority over respondents Nos. 1 to 5. On 3rd May, 1972 the State of Bihar constituted a Committee known as Ramanand Committee by a resolution to consider the inter se seniority of Civil Engineers including the Assistant Engineers. On April 19,1973 the Ramanand Committee submitted a report making certain recommendations. It was alleged that a revised seniority list was prepared wherein the respondents Nos. 1 to 5 were shown juniors to the respondents Nos. 5 to 23. This, of course, has been denied in affidavit-in-counter filed on behalf of the Government (appellants in C.A. No. 232 of 1978, respondents Nos. 6 to 9 inC. A. No. 233 of 1978, and respondents Nos. 1 to 4 in the writ petition). On 21st of July, 1975, an order was made whereby the date of promotion of respondents Nos. 6 to 13 was changed from 21st July, 1962 to 27th February, 1961 thereby making the respondents Nos. 1 to 5 juniors to respondents Nos. 6 to 13. This order is contained in annexure 8 to the writ petition. In other words, the respondents Nos. 6 to 13 were promoted retrospectively from the said date. The respondents Nos. 1 to 5 made representations to the State against it but the State Government instead of redressing their grievances made another order of January 20, 1976 (annexure 9 to the writ petition) re-fixing the seniority of respondents Nos. 6 and 7 promoting them to the Bihar Engineering Service with effect from December 19, 1958. Again, to the prejudice of the respondents Nos. 1 to 5, an order was passed by the State Government by which the date of promotion of respondents Nos. 14 to 23 was pushed back to February 27, 1961 making them also senior to the respondents Nos. 1 to 5. This order is contained in annexure 10 to the writ petition.
(2.) The respondents 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 respondents Nos. 6 to 23 (respondents 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 in 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 promoted on the basis of 25% reservation in the cadre were not filled up by promotion of Overseers, only 3 overseers were given promotion with effect from 19-12-1958 vide order No. A/P1-409/ 64-1-14294 dated 18-7-64/ 27-8-64. In the said affidavit it has also been stated that on a careful examination of the matter it was found that on the basis of total number of posts of Assistant Engineers in the Department, the Overseers were entitled to 60 posts on the basis of 25% reservation till 1958, out of which they were already given 33 posts and 27 more posts of Assistant Engineers were still due to them and accordingly by an order dated 20th January, 1976 the 21 Overseers who had earlier been given promotion as temporary Assistant Engineers from later dates in 1960, 1961 and 1962 by the order dated 18-764/ 27-8-64 were given promotion, with effect from 19-12-1958. Due to this correction, respondents Nos. 6 and 7 and one Shri Mithileshwari Sahay (since retired) were promoted as temporary Assistant Engineers with effect from 19-12-1958 in partial modification of the Government order dated 18-7-64/ 27-8-64 and another order dated July 12, 1975. It has been further stated that as a result of this modification in the dates of promotion as Assistant Engineer who by the order dated 20th January, 1976 were allowed promotion as temporary Assistant Engineers with effect from 19-12-1958 as against promotions from later dates in 1960, 1961 and 1962 given to them by earlier Government Order dated 27-8-1964 and order dated 21-7-1969. It has also been stated that the respondents Nos. 6 and 7 were entitled to promotion in 1958 and respondents Nos. 8 to 23 to promotions in 1960 and 1961, on the basis of the reservation of 25% of the cadre post in the Bihar Engineering Service, Class II, for promotion of Overseers from the Bihar Subordinate Engineerihg Service. It has been further averred that as against 21 consequential vacancies, the case of only 17 Overseers was modified accordingly in supersession of the earlier Government order dated 18-7-64 /278-64 and respondents Nos. 8 to 13 were given promotion as temporary Assistant Engineer with effect from 27-2-1961, from which date the promotion was due to them on the basis of the quota by a Government Order No. 10501 (annexure 8 to the writ petition) dated July 12, 1975 and No. 17328 dated November 8, 1975 respectively. It has also been stated that the seniority list that was prepared and published in 1959 was tentative.;