{"id":81731,"date":"1991-04-19T00:00:00","date_gmt":"1991-04-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-and-others-etc-vs-akhouri-sachindra-nath-and-others-on-19-april-1991"},"modified":"2015-04-07T05:54:49","modified_gmt":"2015-04-07T00:24:49","slug":"state-of-bihar-and-others-etc-vs-akhouri-sachindra-nath-and-others-on-19-april-1991","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-and-others-etc-vs-akhouri-sachindra-nath-and-others-on-19-april-1991","title":{"rendered":"State Of Bihar And Others Etc vs Akhouri Sachindra Nath And Others … on 19 April, 1991"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Bihar And Others Etc vs Akhouri Sachindra Nath And Others … on 19 April, 1991<\/div>\n
Equivalent citations: 1991 AIR 1244, \t\t 1991 SCR (2) 410<\/div>\n
Author: B Ray<\/div>\n
Bench: Ray, B.C. (J)<\/div>\n
           PETITIONER:\nSTATE OF BIHAR AND OTHERS ETC.\n\n\tVs.\n\nRESPONDENT:\nAKHOURI SACHINDRA NATH AND OTHERS ETC.\n\nDATE OF JUDGMENT19\/04\/1991\n\nBENCH:\nRAY, B.C. (J)\nBENCH:\nRAY, B.C. (J)\nSAHAI, R.M. (J)\n\nCITATION:\n 1991 AIR 1244\t\t  1991 SCR  (2) 410\n 1991 SCC  (1) 334\t  JT 1991 (2)\t279\n 1991 SCALE  (1)748\n\n\nACT:\n     Service Law: Bihar Public Works Departments Code:\tRule\n2-Bihar\t Engineering Service, Class II-Assistant  Engineers-\n25 of posts to be filled up by promotion and 75% by  direct\nrecruitment-Seniority promotees and direct  recruits-Whether\nseniority can be conferred on promotees retrospectively from\na date they were not born in the Cadre.\n\n\n\nHEADNOTE:\n     Under Rule 2 of the Bihar Public Works Department Code,\nthe Governor of Bihar took a decision on 7.4.1958  providing\nthat  25% of the posts of Assistant Engineers in  the  Bihar\nEngineering  Service,  Class  II (the Service)\twere  to  be\nfilled\tby  promotion, subject to availability\tof  suitable\nhands,\tfrom Overseers in the Bihar Subordinate\t Engineering\nService (Irrigation Department) and 75% of the posts were to\nbe filled by direct recruitment to the Service.\t Respondents\nno. 1 to 5 in both these appeals were appointed as Assistant\nEngineers in the Service on the recommendation of the  Bihar\nPublic\tService\t Commission  in\t the  year  1961;  and\t the\nappellants (in Civil Appeal No. 233 of 1978(respondents\t no.\n6  to  23  in Civil Appeal No. 232 of 1978),  who  had\tbeen\nworking\t as Overseers in the Bihar  Subordinate\t Engineering\nService\t (Irrigation Department) were promoted to the  posts\nof   Assistant\tEngineers  in  the  Service  in\t  1962\t and\nthereafter.   However, by orders dated 12.7.1975,  20.1.1976\nand  9.4.1977, the Government changed the date of  promotion\nof  the appellants to the dates prior to the appointment  of\nrespondents  no.  1 to 5 in the Service, making\t the  former\nSenior to the letter.\n     Respondents  no. 1 to 5 filed writ petition before\t the\nHigh  Court  challenging  the  seniority  conferred  on\t the\nappellants  from the retrospective date and  contended\tthat\nthe  orders giving promotions to the appellants from a\tdate\nearlier to date of their promotion in the Service  purported\nto  affect  prejudicially  respondents no. 1  to  5's  right\ninasmuch  as they were appointed to the Service\t earlier  to\nthe promotion of the appellants; and that the seniority\t had\nto  be reckoned amongst the officials working  as  Assistant\nEngineers in the Service from the date of their\t appointment\nor promotion to the said Service.  The appellants  contended\nthat  they were entitled to be promoted\t retrospectively  on\nthe\n\t\t\t\t\t\t       411\nbasis  of  reservation\tof 25% of the  Cadre  posts  in\t the\nService till 1958.\n     The  High Court. holding that the orders promoting\t the\nappellants  with retrospective effect were bad, quashed\t the\nsame  and  allowed  the writ petition.\t Hence\tthe  present\nappeals.\n     On\t consideration of the legality and validity  of\t the\norders of the Government giving promotions to the appellants\nfrom  a\t date earlier to the date of their  entry  into\t the\nService as Assistant Engineers, and its effect on the inter-\nse seniority amongst the appellants and respondents no. 1 to\n5, who were directly appointed as Assistant Enginers in\t the\nService before the appellants entered in the said Service.\n  Dismissing the appeals, this Court,\n  HELD: 1. The Government Orders dated 12.7.1975,  20.1.1976\nand  9.4.1977  which  purported to  give  promotion  to\t the\nappellants  retrospectively  were  arbitrary,  illegal\t and\ninoperative inasmuch as these seriously affected  rspondents\nno.  1 to 5. The appellants were not borne in the  cadre  of\nAssistant  Engineers  even in officiating capacity  at\ttime\nwhen  rspondents no. 1 to 5 were directly recruited  to\t the\npost of Assistant Egineer. As such, the promotee  appellants\ncould not be under any circumstance given seniority over the\ndirectly  recruited respondents no. 1 to 5. The judgment  of\nthe  High Court in quashing the impugned  Government  Orders\nwas, therefore, unexceptionable. [418F-H; 420A]\n     2.1 No person can be promoted with retrospective effect\nfrom  a\t date when he was not borne in the Cadre  so  as  to\nadversely  affect  others; and amongst members of  the\tsame\ngrade, seniority is reckoned from the date of their  initial\nentry into the service. [419F]\n     2.2 Seniority inter-se amongst the Assistant  Engineers\nin  Bihar Engineering Service, Class II would be  considered\nfrom the date of the length of service rendered as Assistant\nEngineers.   Therefore,\t the appellants could  not  be\tmade\nsenior to respondents no. 1 to 5 by the impugned  Government\nOrders\tas  they entered into the said Service in  1962\t and\nthereafter by promotion subsequent to respondent no. 1 to  5\nwho  were  directly recruited in the quota meant  for  them.\nThere  was  nothing  to show that the  appellants  could  be\ndeemed\tto  be\trecruited  in  1958  quota  and\t that  these\nvacancies were carried forward. [419G; 418E-F]\n     A.K.  Subraman  and Ors. v. Union of  India  and  Ors.,<\/a>\n[1975] 1 SCC 319, relied on.\n\t\t\t\t\t\t       412\n     V.B. Badami v. State of Mysore and Ors.,<\/a> [1976] 1\tSCR\n815 and Gonal Bihimappa v. State of Karnataka,<\/a> [1987]  Supp.\nSCC 207, held inapplicable.\n     D.K. Mitra and Ors. v. Union of India and Ors.,<\/a>  [1985]\nSupp. SCC 243, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 232-233
\nof 1978.\n<\/p>\n
     From  the\tJudgment and Order dated  19.7.1977  of\t the
\nPatna High Court in C.W.J.C. No. 756 of 1977.\n<\/p>\n
     Ashok Sen, Shankar Ghosh, Tapas Ray, Ms. S. Janani, Ms.
\nMinakshi,  Mrs.\t Urmila\t Kapoor,  D.  Goverdhan,  Rakesh  K.
\nKhanna, Salman Khurshid, R.P. Singh, D.D. Mishra, Mrs.\tG.S.
\nMishra and D.P. Mukherjee for the appearing parties.\n<\/p>\n
     The Judgment of the Court was delievered by
\n     RAY, J. These two appeals were filed against the common
\njudgment  and  order  dated  29th July,\t 1978  made  by\t the
\nDivision  Bench of the High Court at Patna in  C.W.J.C.\t No.
\n756 of 1977 whereby the High Court quashed the orders of the
\ngovernment  contained in Annexures 8, 9 and 10 to  the\twrit
\npetition.  The facts unfurled from the writ petition are  as
\nfollows:\n<\/p>\n
     The  respondent  Nos.  1 to 5  in\tthese  appeals\t(the
\npetitioners in the writ petition) were directly appointed in
\nthe   Bihar  Engineering  Service  Class  II  as   Assistant
\nEngineers   of\t the   Irrrigation    Department   on\t the
\nrecommendation\tof Bihar Public Service Commission and\twere
\nposted in River Valley Project in 1961. The respondent\tNos.
\n6 to 23 in C.A. No. 232 of 1978 (who are appellants in\tC.A.
\nNo.  233  of 1978 and respondent Nos. 5 to 22  in  the\twrit
\npetition)  were\t working at that time as  overseers  in\t the
\nBihar\t Subordinate   Engineering    Service\t (Irrigation
\nDepartment).   On 7th April, 1958 the  the Governor  took  a
\ndecision  under rule 2 of the Public Works  Department\tCode
\nthat  25%  of the posts in the\tBihar  Engineering  Service,
\nClass  II  shall  be  filled up\t by  promotion,\t subject  to
\navailability  of  suitable hands.  Thus, out  of  the  total
\nvacancies in Bihar Engineering Service, Class II, 75% of the
\nvacant posts as determined by the Government will be  filled
\nup by direct recruitment and 25% of the vacant posts will be
\nfilled\tup by promotion subject to availability of  suitable
\ncandidates.  By notification dated
\n\t\t\t\t\t\t       413<\/span>
\n18th  July, 1964\/27th August, 1964, respondent Nos. 6 to  13
\nin  C.A. No. 232 of 1978 (appellant Nos. 1 to 8 in C.A.\t No.
\n233  of\t 1978  and  respondent Nos. 5  to  12  in  the\twrit
\npetition)   who\t were  members\tof  the\t Bihar\t Subordinate
\nEngineering Service (Overseers) were promoted to the post of
\nAssistant  Engineer in Class II and by another\tnotification
\ndated 21st July, 1969, respondent Nos. 14 to 23 in C.A.\t No.
\n232 of 1978 (appellant Nos. 9 to 18 in C.A. No. 233 of\t1978
\nand respondent Nos. 13 to 22 in the writ petition) were also
\npromoted to Bihar Engineering Service, Class II as Assistant
\nEngineers.   On\t February  25, 1969,  a\t seniority  list  of
\nAssistant Engineers was published by the Department  wherein
\nthe  names of the respondent Nos. 1 to 5  (the\tpetitioners)
\nwere  mentioned at Sl. Nos. 170, 199, 208, 211 and  226\t and
\nthe names of the respondent Nos. 6 to 23 (respondent Nos.  5
\nto 22 in writ petition) were mentioned at Sl. Nos. 253, 254,
\n256 to 262, 687 to 695 and 701 respectively   The respondent
\nNos.  6 to 23 were thus shown as juniors to  the  respondent
\nNos. 1 to 5 (the petitioners).\tThe respondent Nos. 6 to  23
\nfeeling\t  aggrieved   by  the  said  seniority\t list\tmade
\nrepresentations claiming seniority over respondent Nos. 1 to\n<\/p>\n
5.   On\t 3rd  May, 1972 the State  of  Bihar  constituted  a
\nCommittee  known  as Ramanand Committee by a  resolution  to
\nconsider the inter se seniority of Civil Engineers including
\nthe  Assistant\tEngineers. On April 19,\t 1973  the  Ramanand
\nCommittee submitted a report making certain recommendations.
\nIt  was alleged that a revised seniority list  was  prepared
\nwherein the respondent Nos. 1 to 5 were shown juniors to the
\nrespondent  Nos. 6 to 23.  This, of course, has been  denied
\nin  affidavit-in-counter filed on behalf of  the  Government
\n(appellants in C.A. No. 232 of 1978, respondent Nos. 6 to  9
\nin C.A. 233 OF 1978, and respondent Nos. 1 to 4 in the\twrit
\npetition).  On 21st of July, 1975, an order was made whereby
\nthe date of promotion of respondent Nos. 6 to 13 was changed
\nfrom  21st July, 1962 to 27th February, 1961 thereby  making
\nthe  respondent Nos. 1 to 5 juniors to respondent Nos. 6  to\n<\/p>\n
13.   This  order  is contained in annexure 8  to  the\twrit
\npetition.  In other words, the respondent Nos. 6 to 13\twere
\npromoted  retrospectively from the State against it but\t the
\nState government instead of redressing their grievances made
\nanother\t order on January 20, 1976 (annexure 9 to  the\twrit
\npetition)  re-fixing the seniority of respondent Nos. 6 &  7
\npromoting them to the Bihar Engineering Service with  effect
\nfrom  December\t19,  1958. Again, to the  prejudice  of\t the
\nrespondent  Nos.  1 to 5, an order was passed by  the  State
\nGovernment by which the date of promotion of respondent Nos.
\n14  to 23 was pushed back to February 27, 1961\tmaking\tthem
\nalso  senior to the respondent Nos. 1 to 5.  This  order  is
\ncontained in annexure 10 to the writ petition.\n<\/p>\n
\t\t\t\t\t\t       414<\/span><\/p>\n
     The  respondent Nos. 1 to 5,  therefore, filed  a\twrit
\npetition  in  the  High\t Court at  Patna  being\t Civil\tWrit
\nPetition No. 756 of 1977 challenging the seniority conferred
\non  the respondent Nos. 6 to 23 (respondent Nos. 5 to 22  in
\nthe  writ petition) by annexures 8, 9 and 10 on\t the  ground
\nthat  these orders were wholly arbitrary illegal,  void\t and
\ninoperative  and ineffective  and so prayed for\t appropriate
\nwrit for quashing those orders.\n<\/p>\n
     A\tcounter-affidavit was filed on behalf of  the  State
\nGovernment.  In\t Para 3(iii) of the said affidavit,  it\t has
\nbeen  averred that till 1957, 25% of the vacancies in  Bihar
\nEngineering  Service,  Class  II, were being  filled  up  by
\npromotion  from\t the Bihar Subordinate\tEngineering  Service
\n(commonly  known as `Overseers’). Subsequently, in the\tyear
\n1958,  it  was decided that 25% of the cadre  posts  in\t the
\nBihar  Engineering  Service,  Class II\tBoth  permanent\t and
\ntemporary,  shall  be reserved for being filled\t up  through
\npromotion   from  the  members\tof  the\t Bihar\t Subordinate
\nEngineering  Service.  It has been further averred  in\tpara
\n3(iv) that all the posts of temporary Assistant Engineers to
\nwhich  the  Overseers were entitled to be  promoted  on\t the
\nbasis of 25% reservation in the cadre were not filled up  by
\npromotion   of\tOverseers,  only  3  overseers\twere   given
\npromotion  with effect from 19.12.1958 vide order No.  A\/P1-
\n409-64-1-14294 dated 18.7.64\/27.8.64. In the said  affidavit
\nit has also been stated that on a careful examination of the
\nmatter\tit  was found that on the basis of total  number  of
\nposts\tof  Assistant  Engineers  in  the  Department,\t the
\nOverseers  were\t entitled to 60 posts on the  basis  of\t 25%
\nreservation till 1958, out of which they were already  given
\n33 posts and 27 more posts of Assistant Engineers were still
\ndue to them and accordingly by an order dated 20th  January,
\n1976  the 21 Overseers who had earlier been given  promotion
\nas  temporary Assistant Engineers from later dates in  1960,
\n1961 and 1962 by the order dated 18.7.64\/27.8.64. were given
\npromotion,  with  effect  from\t19.12.1958.   Due  to\tthis
\ncorrection,   respondent   Nos.\t 6  and\t 7  and\t  one\tShri
\nMithileshwari\tSahay  (since  retired)\t were  promoted\t  as
\ntemporary Assistant Engineers with effect from 19.12.1958 in
\npartial\t  modification\t of  the  Government   order   dated
\n18.7.64\/27.8.64\t and another order dated July 12, 1975.\t  It
\nhas   been  further  stated  that  as  a  result   of\tthis
\nmodification in the dates of promotion as Assistant Engineer
\nwho  by\t the  order dated 20th January,\t 1976  were  allowed
\npromotion as temporary Assistant Engineers with effect\tfrom
\n19.12.1958  as against promotions from later dated in  1960,
\n1961  and  1962 given to them by  earlier  Government  Order
\ndated 27.8.1964 and order dated 21.7.1969.  It has also been
\nstated\tthat  the respondent Nos. 6 and 7 were\tentitled  to
\npromotion in 1958 and respondent Nos. 8 to 23 to  promotions
\nin
\n\t\t\t\t\t\t       415<\/span>
\n1960 and 1961, on the basis of the reservation of 25% of the
\ncadre  post in the Bihar engineering Service, Class II,\t for
\npromotion   of\t Overseers  from  the\t Bihar\t Subordinate
\nEngineering  Service.  It has been further averred  that  as
\nagainst\t 21  consequential vacancies, the case\tof  only  17
\nOverseers  was\tmodified accordingly in supersession of\t the
\nearlier\t  Government   order   dated   18.7.64\/27.8.64\t and
\nrespondent  Nos. 8 to 13 were given promotion  as  temporary
\nAssistant  Engineer with effect from 27.2.1961,\t from  which
\ndate the promotion was due to them on the basis of the quota
\nby  a  Government Order No. 10501 (annexure 8  to  the\twrit
\npetition)  dated July 12, 1975 and No. 17328 dated  November
\n8,  1975  respectively.\t It has also been  stated  that\t the
\nseniority  list that was prepared and published in 1969\t was
\ntentative.\n<\/p>\n
     The  High\tCourt,\tPatna held that\t no  person  can  be
\npromoted  with retrospective effect from a date when he\t was
\nnot  born  in the cadre so as to adversely   effect  others.
\nThe  respondent\t Nos. 1 to 5 were recruited to the  post  of
\nAssistant Engineer, Class II before the respondent Nos. 6 to
\n23  were promoted to the post of Assistant Engineer,   Class
\nII  in the Bihar Engineering Service, Class II.\t  The  High
\nCourt, therefore, held that the orders contained in Annexure
\n8,  9  and  10\tpromoting  the\trespondent  Nos.  6  to\t  23<\/span>
\n(respondent  Nos.  5  to  22  in  the  writ  petition)\twith
\nretrospective effect are bad and so quashed those Government
\norders referred to in the said annexures.\n<\/p>\n
     Against this judgment and order made by the High Court,
\nthe instant appeals on special leave were filed.\n<\/p>\n
     The  sole\tquestion which falls for decision  in  these
\nappeals\t is  whether  the  inter-se  seniority\tbetween\t the
\npetitioners-respondent\tNos. 1 to 5 who are direct  recruits
\nand  the  Overseers  belonging\tto  the\t Bihar\t Subordinate
\nEngineering  Service  (Irrigation Department) who  had\tbeen
\npromoted  retrospectively  in their 25% quota for  the\tyear
\n1958  as  revised  by the  Government  orders  mentioned  in
\nannexures  8, 9 and 10 to the writ petition,  is  arbitrary,
\nillegal\t and inoperative as those orders purport  to  affect
\nprejudicial the seniority of the petitioners-respondent Nos.
\n1  to 5 in the service of Bihar Engineering  Service,  Class
\nII.   It is not disputed  that in 1958 under Rule 2  of\t the
\nPublic Works Department Code, the Government of Bihar took a
\ndecision  to the effect that 25% of the posts in  the  Bihar
\nEngineering  Service,  Class  II  shall\t be  filled  up\t  by
\npromotion,  subject to availability of suitable\t hands.\t  It
\nalso  appears from the counter-affidavit filed on behalf  of
\nthe  Government that in 1958, the the total number of  posts
\nto be filled up by promotion from the Overseers in the Bihar
\nSubordinate Engineering Service
\n\t\t\t\t\t\t       416<\/span>
\n(Irrigation  Department) to the post of Assistant  Engineer,
\nin  Bihar Engineering Service, Class II was 60 out of  which
\nonly  33 posts were filled up by promotion, leaving 27\tmore
\nposts  of Assistant Engineers to be filled up  by  promotion
\nfrom  the  Overseers in the  Bihar  Subordinate\t Engineering
\nService (Irrigation Department).  It is also clear from\t the
\naverments  made\t in  the  said\tcounter-affidavit  that\t the
\npetitioners-respondent\tNos. 1 to 5 were appointed in  Bihar
\nEngineering  Service, Class II on the recommendation of\t the
\nBihar  Public  Service Commission in the year 1961  and\t the
\nrespondent  Nos. 6 to 13 who had been working in  the  Bihar
\nSubordinate  Engineering Service (Irrigation Department)  as
\nOverseers and having independent charge of the\tsub-division
\nwere promoted to the post of Assistant Engineer, Class II by
\nnotification dated 18.7.64\/27.8.64.  The  respondent Nos. 14
\nto  23 were also promoted by notification  dated  21.7.1969.
\nOn  the basis of these appointments and promotions   in\t the
\npost of Assistant Engineer in the Bihar Engineering Service,
\nClass  II,  a seniority list was prepared and  published  in
\nfebruary,   1969   tentatively\twherein\t  the\tpetitioners-
\nrespondent  Nos. 1 to 5 were shown as senior  to  respondent
\nNos.  6 to 23.\tHowever, the Government by its\torder  dated
\n21st July, 1962 changed the date of promotion of  respondent
\nNos.  6 to 13 from 21.7.1962 to 27.21961 (Annexure 8 to\t the
\nwrit  petition)\t thereby making\t the  petitioners-respondent
\nNos.  1 to 5 junior to respondent Nos. 6 to 13.\t On  January
\n20, 1976, the Government passed another order re-fixing\t the
\nseniority  of respondent Nos. 5 & 6 promoting them to  Bihar
\nEngineering  Service, Class II with effect  them  19.12.1958
\n(Annexure 9 to the writ petition).  Again an order contained
\nin Annexure 10 to the writ petition was passed by which\t the
\ndate  of  promotion of respondent Nos. 14 to 23\t was  pushed
\nback  to February 27, 1961, thus making them senior  to\t the
\npetitioners-respondent\tNos.  1\t to  5.\t  The\tpetitioners-
\nrespondent  Nos.  1 to 5 challenged these  three  Government
\norders\tmainly\ton  the\t ground\t that  these  orders  giving
\npromotion to the respondent Nos. 6 to 23 from a date earlier
\nto their date of promotion to the post of Assistant Engineer
\nin  Bihar  Engineering Service, Class II purport  to  affect
\nprejudicially the rights of the petitioners-respondent\tNos.
\n1  to  5 in as much as they were appointed to  the  post  of
\nAssistant  Engineer in the Bihar Engineering Service,  Class
\nII  earlier  to\t the  promotion to  the\t said  post  of\t the
\nrespondent Nos. 6 to 23.  It has also been submitted in this
\nconnection that he seniority has to be reckoned amongst\t the
\nofficials  working  as\tAssistant  Engineers  in  the  Bihar
\nEngineering  Service,  Class  II  from\tthe  date  of  their
\nappointment   on  promotion  to\t the  said   Service.\t The
\npetitioners-respondent\tNos. 1 to 5 being appointed  earlier
\ndirectly  in the quota of direct recruits than the  promoted
\nrespondents who were promoted later cannot be given
\n\t\t\t\t\t\t  417<\/span>
\nseniority in service to the petitioners-respondent Nos. 1 to
\n5  and it was contended that the impugned orders are  wholly
\nillegal\t and unwarranted and so the High Court\thas  rightly
\nquashed the said orders.  It has been further urged in\tthis
\nconnection  that  the State can promote its  employees\twith
\nretrospective  effect provided such retrospective  promotion
\ndoes  not affect the right and seniority already  earned  by
\nothers.\t  The  petitioners-respondent Nos. 1 to 5  who\twere
\nsenior to the petitioners-respondents Nos. 6 to 23 were made
\njunior to them by the said Government orders as contained in
\nAnnexure  8,  9\t and  10 to  the  writ\tpetition.   It\thas,
\ntherefore,   been  contended  that  the\t promotion  to\t the
\nrespondent  Nos.  6 to 23 was illegal and arbitrary  as\t the
\nsame  had prejudicially affected the  petitioners-respondent
\nNos. 1 to 5 in regard to their seniority.\n<\/p>\n
     The  High Court while rendering its judgment relied  on
\nthe decision in the case of A.K. Subraman and Ors. v.  Union
\nof  India  and\tOrs.,<\/a>  [1975] 1 SCC  319  specially  on\t the
\nobservation made therein as under:\n<\/p>\n
\t “Once\t the  Assistant\t Engineers   are   regularly
\n\t appointed  to\tofficiate  as  Executive   Engineers
\n\t within\t their\tquota  they  will  be  entitled\t  to
\n\t consideration\tin  their  own\trights\tas  Class  I
\n\t Officers  to  further\tpromotions.   Their   “birth
\n\t marks”\t in  their  earlier service will  be  of  no
\n\t relevance  once they are regularly  officiating  in
\n\t the grade of Executive Engineer within their quota.”
\n     The High Court held that no person can be promoted with
\nretrospective effect from a date when he was not born in the
\ncadre so as to adversely affect others.\n<\/p>\n
     It is the admitted position that the respondent Nos.  6
\nto  23\twere working as Overseers in the  Bihar\t Subordinate
\nEngineering  Service  and  were\t promoted  to  the  post  of
\nAssistant  Engineer in Bihar Engineering Service,  Class  II
\nmuch  after  the petitioners-respondents Nos. 1\t to  5\twere
\ndirectly  recruited  and  appointed  on\t the  basis  of\t the
\nrecommendation of the Bihar Service Commission, to the\tpost
\nof  Assistant Engineers in 1961 and as such they  have\tbeen
\nworking in the grade of Assistant Engineers much before\t the
\nrespondent  Nos. 6 to 23.  Undoubtedly, on the basis of\t the
\norder  of  the\tGovernor in 1958,  the\tposts  of  Assistant
\nEngineers  are\tto  be filled up from two  sources  i.e.  by
\ndirect\trecruitment as well as by promotion  from  Overseers
\nworking in the Bihar Subordinate Engineering Service and the
\nratio of the vacan-\n<\/p>\n
\t\t\t\t\t\t  418<\/span><\/p>\n
cies  to be filled up has been fixed as 75% from the  direct
\nrecruits  and 25% from the promotees.  It has been urged  on
\nbehalf\tof the respondent Nos. 6 to 23 that in view  of\t the
\nquota rule the respondent Nos. 6 to 23 who were promoted  in
\nthe quota set out for promotees in respect of the  vacancies
\nof   1958   shall  be  taken  to  be   promoted\t   in\t1958
\nnotwithstanding\t that they have been actually promoted\tlong
\nafter  1958  and after the direct recruits  i.e.  respondent
\nNos. 1 to 5 were recruited directly to the post of Assistant
\nEngineers.  In other words even though the respondent Nos. 6
\nto  23 have been promoted after the date of  recruitment  of
\nrespondent  Nos. 1 to 5 to the post of\tAssistant  Engineer,
\nstill  then  the promote respondent Nos. 6 to 23  should  be
\ndeemed to be senior to the direct recruit respondent Nos.  1
\nto  5 as they were promoted in the vacancies for 1958  quota
\nset  up for promotees.\t In support of this  submission\t the
\ndecision  in V.B. Badami etc. v. State of Mysore  and  Ors.,
\n[1976]\t1  SCR 815 as well as Gonal Bihimappa  v.  State  of
\nKanataka,  [1987] Supp. SCC 207 were cited at the  bar.\t  In
\nboth these cases the promotees occupied\t the quota of direct
\nrecruits  as direct recruits were not available to  fill  up
\nthe quota meant for them.  It was held that direct  recruits
\nwho  were  appointed  within their quota  subsequently\twere
\nentitled  to the vacancies within their quota which had\t not
\nbeen filled up and they would become senior to the promotees
\nThe promotees would be pushed down to later years when their
\nappointment  could be regularised as a result of  absorption
\nin their lawful quota of those years.  The promotees  cannot
\nclaim  any  right  to  hold  promotional  posts\t unless\t the
\nvacancies  fall\t within their quota.  These  cases  have  no
\napplication  in\t the instant case in as much as\t the  direct
\nrecruits i.e. respondent Nos. 1 to 5 were recruited in their
\nquota  i.e.  the quota meant for them.\tThis being  so,\t the
\ndecision  in  these  two cases has  no\tapplication  to\t the
\ninstant\t case.\tMoreover, there is nothing to show that\t the
\nrespondent  Nos.  6  to 23 who were  promoted  in  1962\t and
\nthereafter  i.e.  subsequent  to the  direct  recruits\ti.e.
\nrespondent  Nos. 1 to 5 could be deemed to be  recruited  in
\n1958 quota as there was nothing to show that these vacancies
\nwere carried forward.\n<\/p>\n
     The Government’s orders as contained in annexures 8,  9
\nand  10\t which purport to give promotion to  the  respondent
\nNos.  6\t to 23 retrospectively are  arbitrary,\tillegal\t and
\ninoperative  in\t as  much  as  these  seriously\t affect\t the
\nrespondent  Nos.  1 to 5.  The respondent Nos. 6 to 23\twere
\nnot in the cadre of Assistant Engineers even in\t officiating
\ncapacity  at the time when the respondent Nos. 1 to  5\twere
\ndirectly  recruited to the post of Assistant  Engineer.\t  As
\nsuch, the said promotee respondent Nos. 6 to 23 could not be
\nunder  any circumstances, given seniority over the  directly
\nrecruited respondent Nos. 1 to 5.  The
\n\t\t\t\t\t\t  419<\/span>
\nHigh  Court has rightly quoted the observation made by\tthis
\nCourt  in  the\tcase  of A.K. Subraman\t&  Ors.\t (supra)  as
\nmentioned in the preceding paragraphs.\n<\/p>\n
     It\t is  pertinent to mention in  this  connection,\t the
\nobservation  of\t this Court in the case of D.K.\t  Mitra\t and
\nOrs.  v. Union of India and Ors.,<\/a> [1985] Supp. SCC 243.\t  In
\nthis  case  the\t petitioners  were  confirmed  as  Assistant
\nMedical\t Officers in 1962 and 1963 and they were  placed  in
\nthe higher scale of Assistant Divisional Medical Officers to
\nthe  Indian  Railways  with effect from\t January  1,  1973.
\nThereafter  they  were appointed as  officiating  Divisional
\nMedical\t Officers in 1972, 1973 and 1974 and they  had\tbeen
\ncontinuing  there  uninterrupted.  Respondent Nos. 4  to  64
\nwere  given substantive appointments as\t Divisional  Medical
\nOfficers  later on but they were confirmed earlier than\t the
\npetitioners  because of the zone-wise confirmation given  by
\nthe   Railway  Administration.\t  It  was  held\t  that\t the
\npetitioners  should be considered at par for the purpose  of
\nfixing seniority, with those appointed to permanent posts in
\na  substantive\tcapacity.  For the  purpose  of\t determining
\nseniority among promotees, the petitioners should be treated
\nas  having  been appointed to permanent vacancies  from\t the
\nrespective  dates  of  their original  appointment  and\t the
\n“entire\t period\t of officiating service\t performed  by\tthem
\nshould be taken\t into account as if that service was of\t the
\nsame character as that performed by the substantive  holders
\nof permanent posts.”\n<\/p>\n
     In the instant case, the promotee respondent Nos. 6  to
\n23  were not born in the cadre of Assistant Engineer in\t the
\nBihar  Engineering  Service, Class II at the time  when\t the
\nrespondent  Nos. 1 to 5 were directly recruited to the\tpost
\nof  Assistant  Engineer\t and as such they  cannot  be  given
\nseniority  in  the service of Assistant Engineers  over\t the
\nrespondent  Nos. 1 to 5.  It is well settled that no  person
\ncan be promoted with retrospective effect from a date\twhen
\nhe  was\t not  born in the cadre so as  to  adversely  affect
\nothers.\t  It  is well settled by several decisions  of\tthis
\nCourt  that amongst members of the same grade  seniority  is
\nreckoned  from\tthe  date of their initial  entry  into\t the
\nservice.   In  other words, seniority inter-se\tamongst\t the
\nAssistant  Engineers in Bihar Engineering Service, Class  II
\nwill  be considered from the date of the length\t of  service
\nrendered as Assistant Engineers.  This being the position in
\nlaw  the respondent Nos. 6 to 23 can not be made  senior  to
\nthe  respondent\t Nos.  1 to 5 by   the\timpugned  Government
\norders\tas they entered into the said Service  by  promotion
\nafter the respondent Nos. 1 to 5 were directly recruited  in
\nthe quota of
\n\t\t\t\t\t\t       420<\/span>
\ndirect\trecruits.  The judgment of the High  Court  quashing
\nthe  impugned Government orders made in annexures, 8, 9\t and
\n10 is unexceptionable.\n<\/p>\n
     In the premises aforesaid, we confirm the judgment\t and
\norder  rendered\t by  the  High\tCourt.\t The  appeals\tare,
\ntherefore, dismissed.  In the facts and circumstances of the
\ncase, there will be no order as to costs.\n<\/p>\n
R.P.\t\t\t\t\t  Appeals dismissed.\n\t\t\t\t\t\t     421<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Bihar And Others Etc vs Akhouri Sachindra Nath And Others … on 19 April, 1991 Equivalent citations: 1991 AIR 1244, 1991 SCR (2) 410 Author: B Ray Bench: Ray, B.C. (J) PETITIONER: STATE OF BIHAR AND OTHERS ETC. Vs. RESPONDENT: AKHOURI SACHINDRA NATH AND OTHERS ETC. DATE OF JUDGMENT19\/04\/1991 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-81731","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Bihar And Others Etc vs Akhouri Sachindra Nath And Others ... on 19 April, 1991 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-and-others-etc-vs-akhouri-sachindra-nath-and-others-on-19-april-1991\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Bihar And Others Etc vs Akhouri Sachindra Nath And Others ... on 19 April, 1991 - 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