B.P. Singh, J.@mdashThese two writ petitions have been heard together since they involve a common question, and in both the writ petitions the
petitioners claim a right to be considered for appointor to the post of Engineer-in-Chief it the Road Construction Department of the Government of
Bihar.
C.W.J.C. No. 3251 of 1997 2. In this writ petition petitioner Indradeo Narayan Singh, who held the Sub-stantive post of Chief Engineer and was
required to discharge the duties of Engineer-in-Chief while holding the substantive post of Chief Engineer, has prayed for quashing of the
Notification (Annexure-1) issued by the Joint Secretary, Government of Bihar, Road Construction Department on 24.2.1997. By the aforesaid
Notification (Annexure-1) the services of respondent no. 5 Sri P.K. Parwal were placed at the disposal of the Cabinet (Vigilance) Department for
being posted as Engineer-in-Chief, even though he was junior to the petitioner in the cadre of Bihar Engineering Service Class I, The petitioner has
also challenged Annexure-2 dated 27.2.97, the order of promotion issued pursuant to Annexure-1. The petitioner has also prayed that he may be
considered for promotion to the post of Engineer-in-Chief.
2. The facts of the case are that the there are 10 posts of Chief Engineer in the Road Construction Department. There are four posts of Engineer-
in-Chief which are ex-cadre posts. Those officers of Bihar Engineering Service who belonged to Scheduled Caste and Scheduled Tribe category
were granted accelerated promotions and consequent seniority on the basis of reservation. Some of them were also allowed to function as Chief
Engineer without being regularly appointed or promoted to the post of Chief Engineer. This was being done purely as working arrangement. In the
year 1991 respondent no.5 Sri. P.K. Parwal was allowed to function as Incharge Chief Engineer as purely working arrangement. This was
challenged in a writ petition being C.W.J.C. No. 1151 of 1991 and analogous cases. Ultimately, that writ petition was allowed by judgment and
order dated 6.4.95, and the functioning of respondent no. 5 and others against the post of Chief Engineer was held to be illegal. Despite the
judgment and order of the Court respondent no.5 was allowed to function as Chief Engineer, and this led to the filing of another writ petition being
C.W.J.C.No.5408 of 1995. Ultimately the writ petition was allowed by judgment and order dated 13.12.95 and this Court directed the
Government to stop their illegal functioning as Chief Engineer latest by 20th January, 1996. A Letters Patent Appeal filed against the aforesaid
judgment was also dismissed. The State Government, however, did not act to implement the judgment and order of this Court and applied for
extension of time. By its order dated 13.2.96 this Court refused extension of time and ordered that respondent no.5 shall be deemed to have been
relieved. Ultimately, by issuance of order Armexure-4 dated 20th February, 1996, respondent no.5 was reverted to his substantive post of
Superintending Engineer.
3. On 11.5.1996 respondent no.5 was again promoted to the post of Chief Engineer, but the order of promotion was stayed by order of this
Court dated 24.5.96 in M.J.C. No. 1235 of 1995. Later the order of this Court was modified and respondent no.5 was finally promoted as Chief
Engineer on 26.8.1996.
4. The case of the petitioner is that he was regularly promoted to the post of Chief Engineer in April 1996. Before issuance of the impugned
Notification (Annexure-1) dated 24.2.97 three persons held the post of Engineer-in-Chief as a purely temporary working arrangement of whom
only one Sri S.C. Verma belonged to the general category, whereas two others, namely, Sri Ram Autar and Sri Indradeo Prasad Choudhary
belonged to the Scheduled Tribe and Scheduled caste respectively. Earlier, against the four posts one Sri Rajaram Prasad was functioning who
belonged to the Scheduled Caste category, but upon his being appointed as a member of the Bihar Public Service Commission in August 1996,
that post fell vacant.
5. It is the case of the petitioner that in the latest gradation list dated 11.12.92 of the Bihar Engineering Service Class I the position of the petitioner
is at serial no.75, whereas the position of respondent no.5 is at serial no. 93. This is despite the fact that respondent no.5 has always enjoyed the
benefit of accelarated promotion and seniority on the basis of roster. The further grievance of the petitioner is that even if the principle of
reservation is applied, only one post of Engineer-in-Chief, out of four, should be reserved for members belonging to reserved category. The
petitioner, was therefore, expecting that he shall be considered for promotion to the post of Engineer-in-Chief since two of the posts were already
held by members belonging to reserved category. By the impugned notification (Annexure-1) dated 24.2.97 respondent no.5 was also promoted,
which meant that three out of four posts of Engineer-in-Chief were held by the members belonging to reserved category.
6. It is averred by the petitioner that a meeting of the Departmental Promotion Committee took place on 17.6.96 and its proceeding (Annexure-3)
would show that the Departmental Promotion Committee was also of the view that only one post could be kept reserved. Despite that Sri
Indradeo Prasad Choudhary, who was not recommended by the Committee continued to function as Engineer-in-Chief.
7. In its counter-affidavit the State averred that the posts of Engineer-in-Chief were ex-cadre posts and, therefore, the rules of seniority were not
strictly applicable. The Government called for names from the three Decadents, namely, Road Construction Department Public Health Engineering
Department and Water Resources Department. Each of the Departments recommended three names and thereafter a selection was made. Three
names had been received from the Road Construction Department but that did not include the name of the petitioner, though the name of
respondent no.5 was recommended.
8. On 17.7.1998 the petitions filed a supplementary affidavit as also two inter-locutory applications being I.A. Nos of 1998 and 7716 of 1998. In
the supplementary affidavit filed on behalf of the petitioner it was averred that during the pendency of the writ petition three posts of Engineer-in-
Chief had fallen vacant. On 28.11.97 the name of the petitioner been sent to the Bihar Public Service Commission for consideration for promotion
to the post of Engineer-in Chif by the Road Construction Department. On 4.12.97the petitioner was also asked to discharge the duties of the
office of the Engineer-in-Chief in addition to his own responsibilities as Chief Engineer. The petitioner averred that the action of the Chairman of
Bihar Public Service Commission Sri Laxmi Rai was actuated by malice and ill-will towards the petitioner and he was deliberately delaying the
proceeding, so that the petitioner may retire in due course. The averments in the supplementary affidavit were to the effect that the Bihar Public
Service Commission with a view to delay matter had asked for several documents on 31.12.97. All those documents were made available to the
Bihar Public Service Commission on 21.3.98, and the Vigilance report dated 17.2.98 was also sent to the Commission as would be apparent from
Annexures 10 and 10/1. It was emphasised be Department that the matter being urgent, early steps should be taken by the Commission. However,
on 15.4.98 the Commission asked for some documents and further asked for the Government Notification constituting the Departmental
Promotion Committee. By letters dated 18.4.98 and 16.5.1998 the Department replied that all documents had been sent and requested for early
action. The Departmental Promotion Committee was to meet on 13.6.98, but the meeting was abruptly postponed and on 16.6.98 the
Commission again complained that all the documents required by it had not been made available to it and further that the Departmental Promotion
Committee had not been properly constituted. In this manner it was alleged that the action of the Commission, particularly its Chairman, was
motivated by malafide.
9. In I.A. No.7715 of 1998, the petitioner prayed for adding the Chairman of the Bihar Public Service Commission Sri Laxmi Rai as a party
respondent, since the petitioner was to superannuate on 30.10.98 and the Chairman acting malafide intended to delay the proceeding. In I.A. No.
7716 of 1998 the petitioner prayed for a direction to hold a meeting of the Departmental Promotion Committee.
10. On 11.8.1998 when the matter came up before this Court, counsel appearing for the Commission stated that a meeting of the Departmental
Promotion Committee was to be held within a week. The Court, therefore, directed that the matter be put up on 18.8.98 and in the meantime the
Departmental Promotion Committee shall hold a meeting and take a decision in the matter of recommendation of the petitioner''s name for the post
of Engineer-in-Chief. On 18.8.98 the Court directed the Chairman of the Bihar Public Service Commission to file an affidavit as to whether
meeting of the Departmental Promotion Committee had been held, and if so, the decision taken on the meeting. In case no meeting was held and
no decision taken, the Chairman was required to explain the reason for not holding the meeting or taking the decision as directed by order dated
11.8.98. On 19.3.98 the matter came up before this Court and the learned Judge was pleased to pass an order that until further orders no further
action shall be taken in the matter of promotion, either by the Bihar Public Service Commission, or the State Government.
11. On 26.8.98 the court rejected the application for intervention filed by one Jhapsi Ram, petitioner in the connected writ petition, but gave him
liberty to move the appropriate forum for redressal of his grievances.
12. It appears from the record that on 26th August, 1998 Bengali Ram, added respondent no.6 herein filed two interlocutory applications which
came up for orders before this Court on 31.8.98. I.A. No. 9714 of 1998 was for intervention. The said application for intervention was allowed
and Bengali Ram, respondent no.6 was permitted to intervene in the writ petition as a respondent. I.A. No. 9713 of 1998 filed by the aforesaid
Bengali Ram for modification of the interim order dated 19.8.98 staying further action by the B.P.S.C. and the State of Bihar was directed to be
considered along with the main writ petition.
13. The matter then came up before the Court on 16.9.98. This Court was informed that the Departmental Promotion Committee had ultimately
met on 17th and 18th August, 1998, to consider the cases of the officers concerned for promotion to three vacant posts of Engineer-in-Chief. The
record of proceeding of the said Committee was placed before the Court as Annexure C/9. From the record of proceeding it appears that the
Departmental Promotion Committee was presided over by the Chairman of the Bihar Public Service Commission. He made his recommendation in
clear terms and in his opinion Sri S. C. Verma belonging to the general category, and Sri Pradeep Kumar Parwal and Sri Bengali Ram, both
belonging to the reserved category, were found fit for promotion. Sri Indradeo Prasad Choudhary was also recommended by him. It appears from
the dissenting notes of the remaining three members of the Committee that they were of the opinion that the benefit of officiation against the post of
Chief Engineer held by some of the candidates by way of working arrangement, while drawing the salary in their own pay-scale, should not be
given to the concerned candidates because the service rendered in such capacity cannot be counted for the purpose of computing the working
experience (Kalawadhi) This Court was of the opinion that though the remaining three members of the Committee had recorded their dissent, they
had not made any recommendation as to who in their own opinion were fit for promotion. The Court, therefore, directed that a meeting of the
Departmental Promotion Committee shall be held and the members should record their opinion and make a clear recommendation if they found
any of the candidates to be eligible and suitable for promotion in the light of the relevant rules, regulations, notifications etc. governing the matter, it
was directed that the Departmental Promotion Committee should meet as soon as possible preferably before 23rd September, 1998, so that the
proceeding of the Departmental Promotion Committee could be made available to this Court on 24th September, 1998 on which date the matters
were to come up for further hearing. This order was passed in presence of counsel for the parties including counsel for Bihar Public Service
Commiss Commission.
14. When the matter came up before the Court on 16.10.1998 a grievance was made on behalf of the petitioner that the Bihar Public Service
Commissu had flouted the orders of this Court and no meeting of the Departmental Promotion Committee was held as directed by the order of this
Court. In reply counsel for Bihar Public Service Commission stated that earlier than the passing of the order on 16.9.98 a meeting of the full
commission had already been held and the mission had taken a decision on 19.8.98. It was explained that since the Departmental Promotion
Committee could not take a clear decision on 18 8 98, the Chairman of the Commission had referred the matter to the Commission for
consideration by all members of the commission. The Commission had held a meeting on 19.8.98 at 11 A.M. finding three candidates suitable for
appointment to the posts of Engineer-in-Chief Commission took the view that for the purpose of computing Kalawadhi, experience gained while
working on ad-hoc basis was also to be taken into account and, therefore, the Commission took the view that those working on ad hoc basis for
the requisite period became eligible for promotion to the post of Engineer- in-chief.
15. This Court was surprised by the stand taken on behalf of the Commission because if such a decision had been taken by the Commission on
19.8.98, there was no reason why this fact was not brought to the notice of this Court on 26.8.98, 31.8.98 and lastly on 16.9.98 when this Court
passed a long order directing a reconvening of the meeting of the Departmental Promotion Committee to enable dissenting members to record their
recommendation. The petitioner, on the other hand, submitted that perhaps such a meeting never took place on 19.8.98 and that no reliance could
be placed on the record of proceeding of the Commission dated 19.8.98. This Court was surprised that after the Commission had passed a
resolution on 19.8.98, that fact was never brought to the notice of this Court. Since a serious suspicion arose as to whether the Commission had
really held its meeting on 19.8.98, the Chairman of the Bihar Public Service Commission was directed to place all relevant records before the
Court to satisfy the Court that such a meeting was actually held on 19.8.98. The Chairman of the Bihar Public Service Commission was also asked
to explain to the Court the circumstances under which the meeting of the Departmental Promotion Committee was not held in compliance with the
order of this Court. It is not necessary to dilate on this aspect of the matter because in the affidavit affirmed by the Chairman of the Bihar Public
Service Commission on 18.9.98 it is stated that the decision of the Commission was not communicated to any one in obedience to the Court''s
order dated 19.8.98. The position, therefore, is that though the Commission had held a meeting and taken a decision, it has not proceeded further
and has not made a recommendation to the State Government.
16. In the light of these facts the question which arises for consideration in this writ petition is whether the benefit of officiation against the post of
Chief Engineer held by some of the candidates by way of working arrangement, while drawing the salary in their own scale should be given to the
concerned candidates by reckoning such period of officiation for the purpose of computing working experience (Kalawadhi).
17. Before I proceed to consider the above question I may clarify that the order of this Court dated 16.9.98 does record the fact that the record
of proceedings of the Departmental Promotion Committee held on 17th and 18th August, 1998, was placed before this Court, from which it
appears that the Chairman had referred the matter for consideration by the Bihar Public Service Commission and its members, instead of
Departmental Promotion Committee. Reliance has been placed by the Commission on the resolution dated 27th November, 1976, published in the
Bihar Gazette on 22nd December, 1976, under the orders of Governor of Bihar in which it is provided that the recommendation of the
Departmental Promotion Committee in which the Bihar Public Service Commission is associated need not be submitted to the Commission for
approval unless the Chairman or a member of the Commission sitting in the meeting specially desires a particular case to be considered by the
Commission as a whole. It was, therefore, submitted that the Chairman of the Bihar Public Service Commission was within his rights to place the
case for consideration by the Commission as a whole. Having regard to the aforesaid Resolution published under the orders of Governor of Bihar
one cannot find fault with the action of the Chairman of Commission referring the matter for consideration by the Commission as a whole.
18. The question still arises as to whether the period during which an officer has been holding charge of a higher post in addition to the
responsibilities of his own post, can be added to his work experience for the purpose of computing Kalawadhi. The prescription as to the minimum
length of service for promotion cannot be said to be arbitrary or unreasonable because it is with a view to ensure competence and efficiency in
service, and the length of service is one of the conditions of service for promotion. In the instant case the petitioner was promoted to the post of
Chief Engineer in the month of April 1996. Respondent no.6 Bengali Ram was ultimately promoted to the post of Chief Engineer on 28.7.97. It is
not disputed before us that in the gradation list the petitioner is shown as senior to respondent nos. 5 and 6. Respondent no.5 while incharge of the
post of Chief Engineer was reverted to his substantive post of Superintending Engineer on 20.2.96 but was again promoted to the post of Chief
Engineer with effect from 26.8.96.
19. The Government of Bihar has prescribed a Kalawadhi for the purpose of promotion by prescribing a minimum working experience on the
lower post for promotion to the higher post. In the instant case the Kalawadhi prescribed for promotion to the post of Engineer-in-Chief from the
post of Chief Engineer is four years. The Commission is of the view that if a person has officiated as Chief Engineer in addition to the
responsibilities of his substantive post of Superintending Engineer, the period so spent while officiating as Chief Engineer as a part of working
arrangement, shall be counted as working experience on the post of Chief Engineer. On the other hand, the petitioner in both the writ petitions
contend that this is not permissible.
20. In normal circumstances no difficulty arises because the actual experience gained while working as Chief Engineer in a substantive capacity is
to be taken into account for competing the Kalawadhi. Difficulties arise when a person is not promoted to the post of chif Engineer but as a
working arrangement is required to perform the duties of the office of Chief Engineer in his own scale of pay, and in addition to his own
responsbilities as a Superintending Engineer. It is not as if such working arrangement is made on any consideration of merit or son seniority since
such working arrangements are made having regard to the exigencies of the situation. It may be that a person holding charge of a higher post may
be entitled to an officiating allowance in addition to the pay and allowances to which he is entitled. This, however, does not amount to a promotion
to the higher post of Chief Engineer. The fact that a particular officer has been asked to perform the duties of a higher office does not mean that he
has been selected for such officiating post on his merit or seniority. Such officiation on higher post is purely fortuitous. It would be unreasonable to
confer any service benefit upon an officer who derives a benefit from the fortuitous circumstance of his being asked to hold charge of a higher
office in addition to his own substantive post. If any service benefit is given to an officer based on such an event, which is purely fortuitous, it would
be clearly unreasonable and arbitrary. The officiating arrangement made is not governed by any rules, and a junior officer may be lucky enough to
get an opportunity to officiate against a higher post. If such officiation confers upon him a benefit in the matter of promotion to a higher post, it
would be clearly unreasonable inasmuch as persons senior to him would be deprived of such benefit for no fault of theirs. In Ramakant Shripad
Sinai Advalpalkar Vs. Union of India and others, the Court held:
9. The third contention is that appellant''s in-charge arrangements in the higher post had continued for so long a period that a determination of
equivalence on the basis of his lower substantive post would become arbitrary. This contention ignores the fact that an in-charge'' arrangement is
not a recognition of or is necessarily based on seniority and that, therefore, no rights, ''equities or expectations could be built upon it''. The third
contention is also unmeritorious.
21. I am, therefore, of the view that the Commission is not right in its contention that the period of service rendered by an officer against a higher
post as a purely working arrangement in addition to his own responsibilities of the lower post, can be reckoned in the matter of computation of his
working experience (Kalawadhi). Such arrangement does not create any right in his favour nor does it give rise to any equities or expectations in
his favour. The arrangement being purely fortuitous no rights flow therefrom either in the matter of seniority or promotion. For the purpose of
computing Kalawadhi the period of officiation against a higher post as a purely working arrangement, in addition to the responsibilities of his own
office, must be ignored. Only that period must be taken into account for the purpose of kalawadhi during which the officer concerned held the post
in a substantive capacity.
22. There remains one other matter to be considered. Questions arise as to the procedure to be followed in cases where sufficient number of
officers with the requisite Kalawadhi are not available for filling up the promotional posts. So far as the State of Bihar is concerned, several
resolutions of the Government on this subject were published from time to time but the resolution of the Government of Bihar in the Department of
Personel and Administrative Reforms dated 20th October, 1982 is applicable to the parties before us. By the said resolution several earlier
resolutions enumerated in the resolution were superseded and in accordance with the decision taken by the Cabinet on 19th October 1982 a
procedure was prescribed. According to the notification dated 20th October 1982 while considering promotion at any level, the cases of those
officers who have requisite minimum prescribed working experience (Kalawadhi) at the level just below the post to which they are sought to be
promoted, shall be considered first. After doing so, the first transaction shall be considered to be closed.
23. After the first transaction if vacancies still remain to be filled up by promotion, then the prescribed minimum working experience may be
relaxed to such an extent that the number of candidates who come within the zone of consideration are not more than three times the number of
posts which remain vacant. While granting such relaxation in work experience, candidates belonging to Scheduled Caste, Scheduled Tribe
category shall be granted relaxation which shall be one year more than the relaxation granted to members of general category. For granting such
relaxation so as to bring the candidates within the zone of consideration in the second transaction, the concerned Department shall first get the
approval of the Minister of the Department and thereafter obtain the consent of the Chief Minister through the Personnel Department.
24. In the facts of this case, therefore, if sufficient number of Chief Engineers with the prescribed minimum work experience are not available,
selection has to be made in accordance with the aforesaid resolution dated 20th October, 1982.
25. In the light of the above discussion this writ petition is partly allowed and the Bihar Public Service Commission is directed not to proceed
further with its resolution dated 19.8.98(Annexure C/11). The Bihar Public Service Commission is directed to consider the matter afresh and to
take a final decision in the matter in accordance with the directions contained in this order. In computing the Kalavadhi (work experience) of the
Chief Engineers who are being considered for promotion to the post of Engineer-in-Chief, the period during which they held additional charge of
the office of the Chief Engineer as a purely working arrangement while holding the substantive rank of Superintending Engineer and discharging the
responsibilities of that office in the pay-scale of Superintending Engineer, shall be excluded. If sufficient number of Chief Engineers are not found
eligible for promotion to the posts of Engineer-in-Chief having regard to their work experience (Kalawadhi) relaxation may be granted in terms of
the Government resolution dated 20th October, 1982 aforesaid.
25. It is clarified that all officers who were being considered initially by the Departmental Promotion Committee on 17/18th August, 1998 and
whose cases were later considered by the Commission at its meeting held on 19th August, 1998 shall be considered for promotion to the post of
Engineer-in-Chief, even though they may have retired from service in the meantime. In such cases they shall be granted notional promotion and
consequential monetary benefits thereof. The Commission shall consider their cases within a period of two months from today and make their
recommendation to the Government which shall take a final decision in the matter within two weeks from the date of receipt of the
recommendation of the Commission.
C.W.J.C. No. 7746 of 1998.
26. In this case petition Jhapsi Ram is aggrieved by the decision taken by the Departmental Promotion Commitee on 18.8.98. The petitioner
belongs to the reserved category His claim is that his name in the gradation list stands at serial no.3 while that of Bengali Ram at serial no.8. The
recommendation of the Departmental Promotion Committee proceeds on the basis that Bengali Ram was entitled to count his service for the
purpose of Kalawadhi, which he redered, while discharging the duties of the office of the Chief Engineer as a working arrangement, in addition to
his own responsibilities as Superintending Engineer, and drawing the scale of pay admissible to Superintending Engineer. He has also challenged
the principle adopted by the Departmental Promotion Commitee and later by the Commission. This matter has been dealt with in connection with
C.W.J.C. No. 3251 of 1997 Needless to say that his case is also covered by the judgment in the aforesaid writ petition and his case shall also be
considered along with the cases of other candidates, treating him as a candidate belonging to reserved category, for promotion to the post of
Engineer-in-Chief. This writ petition is also allowed to the extent indicated above.
