IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 5536 of 2016 =============================================================== Narendra Kumar Verma, son of late Lakshmi Prasad Verma, resident of C/o. R.N. Mishra, Awal Mohalla, Ward No. 2, P.O., P.S. Chatrra & District Chatra. … … Petitioner VERSUS1 State of Jharkhand.
2. The Principal Secretary, Water Resources Department, Govt. of Jharkhand, Ranchi.
3. The Under Secretary, Management, Water Resources Department, Govt. of Jharkhand, Ranchi.
4. The Chief Engineer, Water Resources Department, Govt. of Jharkhand, Ranchi.
5. The Superintending Engineer, Minor Irrigation Department, Chatra. … ... Respondents. =============================================================== For Petitioner : Mrs. Ritu Kumar, Advocate Mr. Samavesh Bhanj Deo, Advocate Mr. Vikash Kumar, Advocate Ms. Shakakshi, Advocate For Respondents : Mrs. Nilam Tiwary, JC to Sr. SC-I =============================================================== CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK07 09.08.2017 Heard learned counsel for the petitioner and learned counsel for the respondents.
2. The petitioner has approached this Court with a prayer for promotion/ absorption to the post of Junior Engineer as similarly situated persons have already been considered and granted promotion to the said post. FACTUAL MATRIX3 The petitioner was initially appointed on daily wages in the Minor Irrigation Department in the year 1982. The petitioner along with others, who were working on daily wages for a considerable time, sought regularization of their services and when no heed was paid by the respondents, petitioner along with others moved before the Hon’ble Patna High Court for regularization of their services. The matter went upto the Hon’ble Apex Court and the Hon’ble Apex Court, after considering the entire materials available on record, directed the respondents, vide its order passed in SLP No. 18154 of 1999 and 16781- 16780 of 2000, for regularizing the persons like the present petitioners, working on daily wages. In view of the order passed by the Hon’ble Apex Court, the services of the petitioner and other similarly situated persons were 2 regularized in the year 2003. The name of the petitioner appeared at Sl. No. 15 and accordingly, he was appointed on the post of Accounts Clerk in the pay- scale of Rs.4000-100-6000.
4. It is the case of the petitioner that while working as daily wager, he enhanced his educational qualification in Diploma in Civil Engineer from Government Polytechnic, Ranchi after obtaining due permission from the competent Authority. It is the case of the petitioner that in the year 2008, nine employees, who were posted in various regional offices of the Building Construction Department, Jharkhand, enhanced their educational qualification to Diploma in Civil Engineering and hence, promoted to the post of Junior Engineers. The petitioner also approached the Authorities by filing a representation dated 23.06.2008, stating the entire facts regarding possessing of the qualification, as possessed by the similarly situated persons and for consideration of his case for the post of Junior Engineer but no orders were passed for considering his case for promotion or absorption on the post of Junior Engineer. Thereafter, the petitioner sought information under Right to Information Act. Upon receipt of such representation, the Chief Engineer, Minor Irrigation Department vide his letter dated 20.10.2008 forwarded the representation of the petitioner to the Under Secretary, Water Resources Department for appropriate action in the matter absorption of the petitioner in the post of Junior Engineer. Though his representation was forwarded to the Under Secretary but no order has been passed till date.
5. It is the further case of the petitioner that the similarly situated person, who was having the requisite qualifications but not promoted to the post of Junior Engineer, has moved before this Hon’ble Court by filing W.P.(S). No. 4170 of 2003, seeking promotion to the post of Junior Engineer and the Hon’ble Court vide its order dated 02.07.2012, allowed the writ petition with a direction to the respondents to promote the petitioner of that case to the post of Junior Engineers w.e.f. 2002, the date his case was forwarded by the Chief Engineer and also directed to release the monetary benefits to him within a period of 90 days from date of passing of the order. The case of the petitioner for promotion/ absorption has not been considered till date and as such, petitioner has approached this Court by filing present writ petition.
6. Mr. Vikash Kumar, learned counsel appearing for the petitioner strenuously urges that the case of the petitioner deserves consideration, as similarly situated persons having requisite qualifications, have been considered 3 for promotion on the post of Junior Engineers and the petitioner having same and similar qualification, has not been considered for the same. In support of his argument, learned counsel relied on the order of this Hon’ble Court passed in W.P.(S). 4170 of 2003 and submits that similarly situated persons have already been considered in view of order passed and as such, petitioner also deserves the same benefits.
7. Per contra, counter-affidavit has been filed. Mrs. Nilam Tiwary, learned JC to Sr. SC-I appearing for the respondents, vehemently opposes the contention of the learned counsel for the petitioner. She draws the attention of the Court towards Annexure-B and argues that any Junior Engineer can only be appointed directly and not by way of promotion. Learned counsel brings to the notice of the Court rules regarding appointment of the Junior Engineers, which is at Annexure-D of the Counter-Affidavit. Learned counsel also submits that since appointment of the petitioner was made on daily wager, he could not be considered for promotion to the post of Junior Engineer.
8. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration, as petitioner is also having the same and similar qualifications, which the other similarly situated persons were having, whose cases were considered and they were granted promotion to the post of Junior Engineer, in view of order passed by this Court in W.P.(S). No. 4170 of 2003. The contentions advanced by Mrs. Nilam Tiwary, learned JC to Sr. SC-I appearing for the State is not acceptable to this Court. In the firm opinion of this Court, Circular dated 31st May 1976 has not been superseded by any subsequent notification. Notification of 1987 speaks about the direct recruitment and provides a procedure as to how the direct recruitment on the post of Junior Engineer shall be made. However, it does not speak about the promotion to the post of Junior Engineer from the Draftsman and Lab Assistants as provided under the previous Circular of 1976. As per Section 2 (g) of Bihar Reorganisation Act, definition of law includes enactment, ordinance, regulation, order by law, rule scheme, notification or instrument having force of law. Therefore, notification dated 31.05.1976 having force of law shall be law. Accordingly, in view of Section 85 of the Act shall be applicable in the State of Jharkhand unless repealed or superseded. Circular of 1976 nowhere suggest that incumbent, for the promotional post of Junior Engineer, should have six years of experience and there is no occasion as to why the petitioner should not be considered for promotion to the post of Junior Engineer. Since 4 the respondents have already considered the case of the other similarly situated persons for promotions to the post of Junior Engineer, subject to any decision/ order passed in LPA No. 106 of 2015, the case of the petitioner will also be considered for promotion subject to any decision/ order passed in LPA No. 464 of 2012.
9. As a cumulative effect of the aforesaid rules, guidelines, judicial pronouncements, the case of the petitioner for promotion should be considered and order to that effect be passed within a period of six weeks from the date of receipt of a copy of this Order.
10. Resultantly, the writ petition stands allowed. (Dr. S.N. Pathak, J.) kunal/-