Jharkhand High Court
Satyadeo Mohan Ghosh vs The State Of Jharkhand Through The Chief … on 17 April, 2026
Bench: Sujit Narayan Prasad, Deepak Roshan
2026:JHHC:11185-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 654 of 2018
---------
Satyadeo Mohan Ghosh, aged about 59 years 11
months, son of Late Baldeo Mohan Ghosh, resident of
Birendra Sudha, Flat No-505, Burdwan Compound,
P.O. -G.P.O. Ranchi, P.S.-Lalpur, District-Ranchi-
834001 ... ... Petitioner
Versus
1.The State of Jharkhand through the Chief Secretary,
having its office at Project Bhawan, Dhurwa, P.O.& P.S.-
Dhurwa, District-Ranchi-834004.
2.Development Commissioner, Government of
Jharkhand, having its office at Nepal House, PO & PS:
Doranda, District- Ranchi 834002.
3. Additional Chief Secretary, Planning-cum-Finance
Department (Finance Division), Government of
Jharkhand having its office at Project Bhawan, Dhurwa,
P.O.& P.S.-Dhurwa, District- Ranchi-834004.
4. Principal Secretary, Personnel, Administrative,
Reforms and Rajbhasha Department, Government of
Jharkhand having its office at Project Bhawan, Dhurwa,
P.O.& P.S.-Dhurwa, District-Ranchi-834004.
5. Secretary, Road Construction Department,
Government of Jharkhand having its office at Project
Bhawan, Dhurwa, P.Ο. & P.S.-Dhurwa, District-
Ranchi- 834004.
6.Jharkhand Engineering Services Association (JSEA)
though its General Secretary Bibhuti Narayan Singh,
S/o Baban Singh, R/o- Vidhya Singh Nawag Colony,
Kadru, Harmu,, Dist- Ranchi.
7.Ashish Kumar Sinha, S/o Sri Dinesh Kumar Sinha,
R/o Vill_Flat No. 4096, Maha Laxmi Palace, New
Sahjanand Chowk, P.O. & PS Harmu, Dist-Ranchi .
8. The Secretary, Jharkhand Public Service Commission
(JPSC), having its office at Circular Road, Deputy Para,
Ahirtoli, P.O &P.S. – Lalpur, Ranchi, Jharkhand.
… … Respondents
with
W.P. (S) No. 8 of 2018
Diploma Engineers Association, Jharkhand having its
Registration No. 755 dated 16/12/2008, Office at PWD
Campus, Jhanda Chowk, PO & PS: Doranda, District-
Ranchi- 834 002, through its General Secretary,
Shekhar Kumar, son of Late Shiv Govind Prasad,
resident of Gandhi Vihar, Lane No. 1, PO & PS Bariatu,
District- Ranchi.
Page | 1
2026:JHHC:11185-DB
... ... Petitioner
Versus
1.The State of Jharkhand through the Chief Secretary,
having its office at Project Bhawan, Dhurwa, P.O.& P.S.-
Dhurwa, District- Ranchi-834004.
2.Development Commissioner, Government of
Jharkhand, having its office at Nepal House, PO & PS:
Doranda, District-Ranchi 834002.
3.Additional Chief Secretary Planning-cum-Finance,
Department (Finance Division), State of Jharkhand
having its office at Project Bhawan, Dhurwa, P.O.& P.S.-
Dhurwa, District- Ranchi- 834004.
4. Principal Secretary, Personnel, Administrative,
Reforms and Rajbhasha Department, State of
Jharkhand having its office at Project Bhawan, Dhurwa,
P.O.& P.S.-Dhurwa, District-Ranchi-834004.
5. Secretary, Road Construction Department, State of
Jharkhand having its office at Project Bhawan, Dhurwa,
P.O. & P.S.-Dhurwa, District- Ranchi- 834004.
6. J.P.S.C. through its secretary Circular Road, Ranchi.
… Respondents
with
W.P. (S) No. 2189 of 2018
Shyam Das Singh, aged about 59 years, son of Late
Ram Jit Singh, resident of PWD Godown Campus,
Medical Chowk, PO: Bariatu, PS: Bariatu, District-
Ranchi.
Petitioner
Versus
1. The State of Jharkhand through the Chief Secretary,
having its office at Project Bhawan, Dhurwa, P.O.& P.S.-
Dhurwa, District-Ranchi-834004.
2. Development Commissioner, Government of
Jharkhand, having its office at Nepal House, PO & PS:
Doranda, District- Ranchi 834002.
3. Additional Chief Secretary, Planning-cum-Finance
Department (Finance Division), Government of
Jharkhand having its office at Project Bhawan, Dhurwa,
P.O.& P.S.-Dhurwa, District- Ranchi-834004.
4. Principal Secretary, Personnel, Administrative,
Reforms and Rajbhasha Department, Government of
Jharkhand having its office at Project Bhawan, Dhurwa,
P.O.& P.S.-Dhurwa, District-Ranchi-834004.
5. Secretary, Road Construction Department,
Government of Jharkhand having its office at Project
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2026:JHHC:11185-DB
Bhawan, Dhurwa, P.O. & P.S.-Dhurwa, District-
Ranchi- 834004.
6. The Secretary, Jharkhand Public Service Commission
(JPSC) having its office at Circular Road, Deputy Para,
Ahirtoli, P.O.& P.S. – Lalpur, Ranchi, Jharkhand.
… Respondents
———
CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON’BLE MR. JUSTICE DEEPAK ROSHAN
———-
For the Petitioner(s) : Mr.Jitendra Singh, Sr. Adv.
Ms. Amrita Sinha, Advocate
Mr. Yash Singh, Advocate
Ms. ShwetaSuman, Advocate
Ms. PraguneeKashyap, Advocate
[In WPS Nos. 654/18 & 2189/18]
Mr. A.K. Sahani, Advocate
Mr. Ajit Kumar, Advocate
[In WPS No. 8 of 2018]
For the Resp.-State : Mr. Rajiv Ranjan, Advocate General
Mr. Shray Mishra, AC to AG
For the JESA : Mr. KrishaMurari, Advocate
For the JPSC : Mr. SanjoyPiprawall, Advocate
Mr. Prince Kumar, Advocate
[In WPS Nos. 654/18 & 08/18]
Mr. Sameer Saurabh, Advocate
[In WPS No. 2189/18]
———–
C.A.V on 23/03/2026 Pronounced on 17/04/2026
Per Sujit Narayan Prasad, J:
1. Since the issues involved in this batch of writ petitions
are identical, therefore, at the request of learned counsel
for the parties, the matters have been tagged together.
Accordingly, they are heard together and are being
disposed of by this common order.
Prayer in W.P.(S) No. 654 of 2018
2. In the instant writ application, the petitioner is praying
for issuance of appropriate writ(s), order(s), direction(s)
from this Hon’ble Court for the following reliefs: –
Page | 3
2026:JHHC:11185-DB“a. For issuance of an appropriate writ or a writ in the
nature of certiorari for quashing the notification no.
01/Misc-10/13-Road Construction-2376(S) dated the
12th April 2016 issued by the Road Construction
Department, Government of Jharkhand published in
the official Gazette on 3rd May, 2016 (Annexure-26)
making rules regulating appointment, promotion,
conditions of service, pay, allowances and pension of
the Jharkhand Engineering Service for all of
Engineering Works Departments of the Government of
Jharkhand being the Jharkhand Engineering Service
Rules, 2016 (“impugned Rules”) and revival of Bihar
Engineering Class-I Service Rules, 1939 enforced and
applicable on the date of bifurcation of unified State of
Bihar (i.e. 15/11/2000) under the Bihar Re-
organisation Act, 2000 in the matter of considering
higher promotions with all consequential benefits to
the petitioner with retrospective effect as has already
been granted to immediate juniors (detailed in Para- 45
of this writ petition) on account of the grounds
mentioned in Para- 68 of this writ petition.
Or in the alternative
For a declaration that the impugned rules contained in
Notification no. 2376(S) dated12th April 2016
published in the official Gazette on 3rd May, 2016
(Annexure- 26) has no applicability to the case of the
petitioner to the extent that the petitioner’s promotion
and other service conditions will not be governed by
the Impugned Rules; and further that it does not affect
the rights vested in the petitioner to be promoted to the
post of Assistant Engineer with effect from 27.6.1987;
Executive Engineer with effect from 23.11.2009 and
Superintending Engineer with effect from 3.2.2016
when the juniors to the petitioner have been granted
promotion to the said posts with effect from the saidPage | 4
2026:JHHC:11185-DBdates on the Bihar Engineering Service Rules, 1939
without considering the case of the petitioner.
b. For issuance of an appropriate writ or a writ in the
nature of mandamus commanding upon the
respondents to shift back the date of promotion of the
petitioner from 03.05.2013 to 27.06.1987 in the
rank/post of Assistant Engineer with all consequential
benefits, as the Juniors to the petitioner being 13 daily
wages Junior Engineers have been treated to be
Assistant Engineer (Promotee) on and from 27.06.1987
have been placed in the seniority list dated 5.5.2015
(Annexure- 21/1) at serial number 23 to 61 and the
petitioner being senior-most than those, finds place at
serial number 575 (Ka) of the Assistant Engineer’s
seniority list dated 5.5.2015 of Road Construction
Department.
c. For issuance of an appropriate writ or a writ in the
nature of mandamus directing the respondents to give
promotion to the petitioner to the next higher rank
(post) of Executive Engineer with all consequential
benefits from 23.11.2009, the date from which said
Juniors to the petitioner have been considered and
subsequently promoted vide order/ notification
dated01.12.2014, 29.04.2015 & 06.05.2015
(Annexure- 19, 20 & 23 respectively) and if necessary,
supernumerary posts in the grade of Executive
Engineers should also be created for the purpose of
accommodating the petitioner on the basis of such
retrospective promotions in Road Construction
Department.
d. For issuance of an appropriate writ, order or
direction on the respondents to consider the case of the
petitioner for promotion to the next higher rank of
Superintending Engineer, with all consequential
benefits from 03.02.2016 in the pay scale of PB-IV
Rs.37400-67000/- Grade Pay Rs. 8700/-, which shall
Page | 5
2026:JHHC:11185-DB
be further fixed in the revised pay structure of 7th Pay
Revision accepted by the Government of Jharkhand
and further higher promotion (if any is granted to such
junior persons) by granting relaxation in respect of
required “Kalavadi” with effect from the date, the
Juniors to the petitioner have been granted promotion
vide notification issued under Memo No. 761(S) dated
03.02.2016 (Annexure- 24) and if necessary,
supernumerary post in the grade of Superintending
Engineer and Chief Engineer may also be created for
the purpose of accommodating the petitioner and all
arrears of salary and allowances should also be paid
to the petitioner on the basis of such retrospective
promotions in Road Construction Department.
e. For issuance of an appropriate writ or a writ in the
nature of mandamus directing the respondents to
rearrange the inter-se-seniority list dated 05.05.2015
of the Assistant Engineers under control of Road
Construction Department, Government of Jharkhand
inasmuch as the juniors to the petitioner have been
placed at serial number 23 to 61 and the petitioner
being senior-most to them finds place at serial number
575 (Ka), which is contrary to the findings as in order
dated 28.9.15 passed by this Hon’ble Court in LPA No.
106 of 2015 and guidelines of the Central Government,
Department of Personnel and Training.
f. For issuance of an appropriate writ in the interest of
justice by way of interim relief during the pendency of
the present writ petition, the respondents may kindly
be directed to consider the case of the petitioner for
promotion to the post of Executive Engineer as per
earlier rules i.e. Bihar Engineering Service Class-I
Rules, 1939 against his due entitlement out of 28%
promotional post of Executive Engineers from Assistant
Engineers (promotee) of Diploma holders at least from
23/11/2009 on which date the juniors to him have
Page | 6
2026:JHHC:11185-DB
been promoted particularly in view of the fact that
Assistant Engineers direct recruits and promotees
those possessing AMIE/degree engineering have
entitlement of only 72% promotional posts of Executive
Engineers in terms of order dated 28/9/2015 passed
in LPA No. 106 of 2015 and also considering that 30
posts of Executive Engineer were left unfilled by the
Departmental Promotion Committee during its meeting
held on 28/11/2014 considering the representation of
Diploma Engineers Association (hereinafter to be
referred to as “the Association’) dated 25.11.2014
particularly in terms of law laid down by the
Constitution Bench of the Hon’ble Supreme Court in
para-47 (C) and (G) of the decision reported in (1990) 2
SCC 715 as well as para-35 of the decision reported in
(2015) 10 SCC 292 and other decisions too within a
shortest specified period before his superannuation
date (28/2/2018) to bring him minimum at par with
the juniors to him some of them are already availing of
such benefits from 23.11.2009 and / or from
1.12.2014.
g. Any other relief or reliefs for which the petitioner is
legally entitled; and
h. For any other appropriate Writ(s), Order(s),
Direction(s) as may be deemed fit and proper by Your
Lordships for doing substantial and conscionable
justice to the Petitioner.”
Prayer made in W.P.(S) No. 08 of 2018
3. In the instant writ petition, the petitioner is praying for
issuance of appropriate writ(s), order(s), direction(s) from
this Hon’ble Court for the following reliefs:-
“a. For issuance of an appropriate writ or a writ in the
nature of certiorari for quashing the notification issuedPage | 7
2026:JHHC:11185-DBby the Road Construction Department, Government of
Jharkhand being Notification dated 12th April 2016
Published in the official Gazette on 3rd May, 2016
(Annexure-28) making rules regulating appointment,
promotion, conditions of service, pay, allowances and
pension of the Jharkhand Engineering Service for all
the Works Departments of the Government of
Jharkhand on account of the grounds mentioned in
para- 61 of this writ petition.
Or in the alternative.
For a declaration that the impugned rules contained in
Notification dated 12th April 2016 Published in the
official Gazette on 3rd May, 2016 (Annexure 28) has
no applicability to the case of the members of the
petitioner to the extent it affects the rights vested in
them petitioner in the matter of promotion to the post of
Assistant Engineer with effect from 27.6.1987;
Executive Engineer with effect from 23.11.2009 and
Superintending Engineer with effect from 3.2.2016
when the juniors to the general category members of
the petitioner have been granted promotion to the said
posts with effect from the said dates without
considering the case of the general category members
of the petitioner.
b. For issuance of an appropriate writ or a writ in the
nature of mandamus commanding upon the
respondents to shift back the date of promotion of the
general category senior members of the petitioner from
03.05.2013 to 27.06.1987 in the rank/post of
Assistant Engineer with all consequential benefits, as
the Juniors to the general category members of the
petitioner being 13 daily wages Junior Engineers have
been treated to be Assistant Engineer (Promotee) on
and from 27.06.1987 have been placed in the seniority
list dated 5.5.2015 (Annexure-23) at serial number 23
to 61 and the general category members of thePage | 8
2026:JHHC:11185-DBpetitioner being senior-most than those find place at
serial number 500, 505, 514 and 565 to
600respectively of the Assistant Engineers seniority
list dated 5.5.2015 of Road construction Department.
c. For issuance of an appropriate writ directing the
respondents to give promotion to the general category
members of the petitioner to the next higher rank (post)
of Executive Engineer with all consequential benefits
from 23.11.2009, the date from which said Juniors to
the general category members of the petitioner have
been considered and subsequently promoted vide
order/ notification dated 01.12.2014, 29.04.2015 &
06.05.2015 (Annexure- 19, 21 & 25 respectively) and if
necessary, supernumerary posts in the grades of
Executive Engineers should also be created for the
purpose of accommodating them on the basis of such
retrospective promotions in Road Construction
Department.
d. For issuance of an appropriate writ, order or
direction on the respondents to consider the case of the
general category members of the petitioner for
promotion to the next higher rank of Superintending
Engineer, with all consequential benefits from
03.02.2016 in the pay scale of PB-IV Rs.37400-
67000/- Grade Pay Rs. 8700/- and further higher
promotion (if any is granted to such junior persons) by
granting relaxation in respect of required “Kalavadi”
with effect from the date, the Juniors to the general
category members of the petitioner have been granted
promotion vide notification issued vide Memo No.
761(S) dated 03.02.2016 (Annexure-26) and if
necessary, supernumerary posts in the grades of
Superintending Engineers and Chief Engineers may
also be created for the purpose of accommodating them
and all arrears of salary and allowances should also
Page | 9
2026:JHHC:11185-DB
be paid to such general category members of the
petitioner on the basis of such retrospective promotions
in Road Construction Department.
e. For issuance of an appropriate writ or a writ in the
nature of mandamus directing the respondents to
rearrange the inter-se-seniority list dated 05.05.2015
in as much as the juniors to the general category
members of the petitioner have been placed at serial
number 23 to 61 and the general category members of
the petitioner being senior-most to them find place at
serial number 500, 505, 514 and 565 to 600 which is
contrary to order dated 28.9.15 passed by this Hon’ble
Court in LPA No. 106/15 and DoPT guidelines of the
Central Government in Road construction Department.
f. For issuance of an appropriate writ or a writ in the
nature of certiorari for quashing the order dated
20.10.2017 (Annexure-35) whereby and whereunder
the representation dated 25.11.2014 read with
reminder dated 21.07.2017 (Annexure- 18 and 30
respectively) made by the petitioner pursuant to the
order dated 10.7.17 passed by this Hon’ble Court in
LPA No. 106/15 has been rejected particularly in view
of the fact that the same has beenpassed by the
respondent no. 5 who had no jurisdiction or authority
in the matter of appointment to the post of Executive
Engineer of Class I service without getting approval of
Honourable Chief Minister through the Chief Secretary
as per the rules of executive business of Jharkhand
Government that too in a most mechanical manner and
without considering provisions at Clause 5(ii) Notes in
Annexure to the DOPT OM dated 22.12.1959
(Annexure-2) as well the law laid down by the
Constitution Bench of the Hon’ble Supreme Court
especially reported in (1990) 2 SCC 715 Para-47(C)
and (G) as well as against the Rules, Regulations and
policies of the State Government and in total
Page | 10
2026:JHHC:11185-DB
disregards to the absurd situation and prima facie
error in the matter of seniority list dated 5.5.2015 of
the Assistant Engineers under Road Construction joint
cadre as pointed out by this Hon’ble court in order
dated 28.9.2015 in LPA No. 106 of 2015 (Annexure-
22).
g. For issuance of an appropriate writ in the interest of
justice by way of interim relief during the pendency of
the present writ petition, the respondents may kindly
be directed to consider the case of general category
senior members of the petitioner [enlisted in the list of
the eligible members of the petitioner at Annexure- 17]
for promotion to the post of Executive Engineer as per
earlier rules i.e. Bihar Engineering Service Class-1
Rules, 1939 against their entitlement of 28%
promotional post of Executive Engineers from Assistant
Engineers (promotee) of Diploma holders at least from
1/12/2014 on which date the juniors to them have
been promoted particularly in view of the fact that
Assistant Engineers direct recruits and promotees
possessing AMIE/degree engineering have entitlement
of only 72% promotional posts of Executive Engineers
in terms of order dated 28/9/2015 passed in LPA No.
106 of 2015 read with interim order dated 17/8/2017
passed in WPS No. 3027 of 2016 with other analogous
cases and also considering that 30 posts of Executive
Engineers were left unfilled by the Departmental
Promotion Committee during its meeting held on
28/11/2014 considering the representation of the
petitioner dated 25.11.2014 particularly in terms of
law laid down by the Constitution Bench of the Hon’ble
Supreme Court in para-47 (C) and (G) of the decision
reported in (1990) 2 SCC 715 as well as para-35 of the
decision reported in (2015) 10 SCC 292 and other
decisions too within a specified period to bring them
minimum at par with the juniors to them who are
Page | 11
2026:JHHC:11185-DB
already availing of such benefits from 23.11.2009
and/or from 1.12.2014.
h. Any other relief or reliefs for which the petitioner is
legally entitled; andi. For any other appropriate Writ(s),
Order(s), Direction(s) as may be deemed fit and proper
by Your Lordships for doing substantial and
conscionable justice to the Petitioner.”
Prayer made in W.P. (S) No. 2189 of 2018
4. In the instant writ petition the petitioner is praying for
issuance of appropriate writ(s), order(s), direction(s) from
this Hon’ble Court for the following reliefs:-
a. For issuance of an appropriate writ or a writ in the
nature of certiorari for quashing the notification no.
01/Misc-10/13-Road Construction-2376(S) dated the
12th April 2016 issued by the Road Construction
Department, Government of Jharkhand published in the
official Gazette on 3rd May, 2016 (Annexure-26) making
rules regulating appointment, promotion, conditions of
service, pay, allowances and pension of the Jharkhand
Engineering Service for all of Engineering Works
Departments of the Government of Jharkhand being the
Jharkhand Engineering Service Rules, 2016 (“impugned
Rules”) and revival of Bihar Engineering Class-I Service
Rules, 1939 enforced and applicable on the date of
bifurcation of unified State of Bihar (i.e. 15/11/2000)
under the Bihar Re-organisation Act, 2000 in the matter
of considering higher promotions with all consequential
benefits to the petitioner with retrospective effect as has
already been granted to immediate juniors (detailed in
Para- 45 of this writ petition) on account of the grounds
mentioned in Para- 68 of this writ petition.
Or in the alternativePage | 12
2026:JHHC:11185-DBFor a declaration that the impugned rules contained in
Notification no. 2376(S) dated 12th April 2016 published
in the official Gazette on 3rd May, 2016 (Annexure-26)
has no applicability to the case of the petitioner to the
extentthat the petitioner’s promotion and other service
conditions will not be governed by the Impugned Rules;
and further that it does not affect the rights vested in
the petitioner to be promoted to the post of Assistant
Engineer with effect from 27.6.1987; Executive Engineer
with effect from 23.11.2009 and Superintending
Engineer with effect from 3.2.2016 when the juniors to
the petitioner have been granted promotion to the said
posts with effect from the said dates on the Bihar
Engineering Service Rules, 1939 without considering the
case of the petitioner.
b. For issuance of an appropriate writ or a writ in the
nature of mandamus commanding upon the
respondents to shift back the date of promotion of the
petitioner from 03.05.2013 to 27.06.1987 in the
rank/post of Assistant Engineer with all consequential
benefits, as the Juniors to the petitioner being 13 daily
wages Junior Engineers have been treated to be
Assistant Engineer (Promotee) on and from 27.06.1987
have been placed in the seniority list dated 5.5.2015
(Annexure- 21/1) at serial number 23 to 61 and the
petitioner being senior-most than those, finds place at
serial number 578 of the Assistant Engineer’s seniority
list dated 5.5.2015 of Road Construction Department.
c. For issuance of an appropriate writ or a writ in the
nature of mandamus directing the respondents to give
promotion to the petitioner to the next higher rank (post)
of Executive Engineer with all consequential benefits
from 23.11.2009, the date from which said Juniors to
the petitioner have been considered and subsequently
promoted vide order/ notification dated01.12.2014,
29.04.2015 & 06.05.2015 (Annexure- 19, 20 & 23Page | 13
2026:JHHC:11185-DBrespectively) and if necessary, supernumerary posts in
the grade of Executive Engineers should also be created
for the purpose of accommodating the petitioner on the
basis of such retrospective promotions in Road
Construction Department.
d. For issuance of an appropriate writ, order or direction
on the respondents to consider the case of the petitioner
for promotion to the next higher rank of Superintending
Engineer, with all consequential benefits from
03.02.2016 in the pay scale of PB-IV Rs.37400-67000/-
Grade Pay Rs. 8700/-, which shall be further fixed in
the revised pay structure of 7th Pay Revision accepted
by the Government of Jharkhand and further higher
promotion (if any is granted to such junior persons) by
granting relaxation in respect of required “Kalavadi”
with effect from the date, the Juniors to the petitioner
have been granted promotion vide notification issued
under Memo No. 761(S) dated 03.02.2016 (Annexure-
24) and if necessary, supernumerary post in the grade
of Superintending Engineer and Chief Engineer may
also be created for the purpose of accommodating the
petitioner and all arrears of salary and allowances
should also be paid to the petitioner on the basis of such
retrospective promotions in Road Construction
Department.
e. For issuance of an appropriate writ or a writ in the
nature of mandamus directing the respondents to
rearrange the inter-se-seniority list dated 05.05.2015 of
the Assistant Engineers under control of Road
Construction Department, Government of Jharkhand
inasmuch as the juniors to the petitioner have been
placed at serial number 23 to 61 and the petitioner
being senior-most to them finds place at serial number
578, which is contrary to the findings as in order dated
28.9.15 passed by this Hon’ble Court in LPA No. 106 of
Page | 14
2026:JHHC:11185-DB
2015 and guidelines of the Central Government,
Department of Personnel and Training.
f. For issuance of an appropriate writ in the interest of
justice by way of interim relief during the pendency of
the present writ petition, the respondents may kindly be
directed to consider the case of the petitioner for
promotion to the post of Executive Engineer as per
earlier rules i.e. Bihar Engineering Service Class-I Rules,
1939 against his due entitlement out of 28% promotional
post of Executive Engineers from Assistant Engineers
(promotee) of Diploma holders at least from 23/11/2009
on which date the juniors to him have been promoted
particularly in view of the fact that Assistant Engineers
direct recruits and promotees those possessing
AMIE/degree engineering have entitlement of only 72%
promotional posts of Executive Engineers in terms of
order dated 28/9/2015 passed in LPA No. 106 of 2015
and also considering that 30 posts of Executive
Engineer were left unfilled by the Departmental
Promotion Committee during its meeting held on
28/11/2014 considering the representation of Diploma
Engineers Association (hereinafter to be referred to as
“the Association”) dated 25.11.2014 particularly in
terms of law laid down by the Constitution Bench of the
Hon’ble Supreme Court in para-47 (C) and (G) of the
decision reported in (1990) 2 SCC 715 as well as para-
35 of the decision reported in (2015) 10 SCC 292 and
other decisions too within a shortest specified period
before his superannuation date (31/1/2019) to bring
him minimum at par with the juniors to him some of
them are already availing of such benefits from
23.11.2009 and / or from 1.12.2014.
g. Any other relief or reliefs for which the petitioner is
legally entitled; and
h. For any other appropriate Writ(s), Order(s),
Direction(s) as may be deemed fit and proper by Your
Page | 15
2026:JHHC:11185-DB
Lordships for doing substantial and conscionable justice
to the Petitioner.”
Factual Aspect:
5. The brief facts of the case, for the sake of convenience,
as per the pleadings made in W.P.(S) No. 654 of 2018, is
referred as under:
6. The State of Bihar through its Public Works Department
issued an advertisement no. PRD-3810 (PW-648)-81-82
on 24.02.1982 for Ad-hoc appointment against
vacancies inviting applications for the post of Junior
Engineer (Civil) in the Public Works Department and
Rural Engineering Organization of Bihar Government.
Pursuant to an interview, common call letter vide Memo
no-1565 (E) Patna Dated 14.05.1982 was issued under
the signature of the Engineer- in- Chief-cum- Additional
Commissioner-cum-Special Secretary of Road and
Building Construction Department, Bihar.
7. The Petitioner(s) said to have possessed the Diploma in
Civil Engineering from Government Polytechnics of the
State of Bihar, recognized by All India Council for
Technical Education, participated in the process of
selection. After following due procedure, the petitioner(s)
was appointed to the post of Junior Engineer (Civil) on
ad-hoc basis from a common select list prepared by the
selection committee against earmarked vacancies of
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common advertisement dated 24.02.1982. As much as
about 304 Junior Engineers, including the petitioner(s),
were appointed from the said combined select list.
8. The petitioner was issued letter of appointment dated
10.02.1983 from combined select list against common
advertisement by the Road Construction Department of
the then Government of Bihar and was appointed on the
post of Junior Engineer (Civil), Road Construction
Department on ad-hoc basis.
9. Pursuant to aforesaid letter of appointment dated
10.02.1983, the petitioner joined on the said post of
Junior Engineer (Civil), Road Construction Department
on 10.02.1983 in the office of the Engineer-in-Chief-
cum-Additional Commissioner-cum-Special Secretary of
the said department at Patna (Bihar).
10. Thereafter, under the provisions of the Bihar
Gazetted Officer Ad-hoc Appointment Regularization Act,
1986 enacted under notification no. 512 dated 29th
October, 1986 of the Law Department, Government of
Bihar, the appointing authority i.e., Engineer-in-Chief-
cum-Additional Commissioner, Road Construction,
Bihar, Patna vide notification no. 399 Patna dated 08th
December 1986 read with Memo no 9629(E) dated 08th
December 1986 regularized ad-hoc services of about
1151 Junior Engineers [including the petitioner of WPS
Page | 17
2026:JHHC:11185-DB
No. 654 of 2018 at Sl. No. 893] appointed as ad-hoc till
30th June 1986 and those were continuing their service
from their initial appointment date.
11. The Road Construction Department, Government
of Bihar vide an office order dated 12.03.1998, decided
the services of 225 Junior Engineers including the
Petitioner in the initial entry grade post of Junior
Engineer to be made permanent.
12. The petitioner on completion of 12 years regular
services was granted the first Assured Career
Progression (in Short 1st ACP) on 09.08.1999 admissible
to the duty post of Assistant Engineer (Civil) of Gazetted
Class-2/Group-‘B’ (Gazetted).
13. Thereafter, upon creation of the State of
Jharkhand, the petitioner was allocated Jharkhand
cadre with effect from 15.11.2000. It is stated that the
petitioner is governed by provisions including Sections
72 and 73 of Bihar Reorganization Act, 2000 and
accordingly his service conditions, as laid down in the
Bihar Engineering Service Rules, 1939 which is
applicable prior to 15.11.2000, cannot be varied to his
disadvantage without previous approval of the Central
Government.
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14. The petitioner was granted his Second Assured
Career Progression on completion of 24 years of regular
service admissible to the duty post of Class -1 service
Executive Engineer (Civil) as per provisions in the Bihar
Engineering Service Rule, 1939.
15. The 2nd ACP i.e. the pay scale of Executive
Engineer under Class-I service i.e. 2nd promotional post
(Executive Engineer) granted to the petitioner with effect
from 09.12.2006 (Notional) and 10.2.2007 (Actual)
under the provisions of Bihar Engineering Class-1
Service Rules 1939 as the promotional posts of
Executive Engineers were actually not made available
during that period (9-12-2006 to 10-2-2007) for the
petitioner holding Diploma in engineering.
16. Further the petitioner was granted his third
Modified Assured Career Progression (MACP) on
completion of 30 years of regular service, being
entitlement to be promoted further for the next higher
grade pay as against post of Superintending Engineer
from 9.12.2012.
17. Due to delay and laches on the part of the
respondents in the State of Jharkhand including the
then Unified state of Bihar, the petitioner was granted
regular promotion to the post of Assistant Engineer in
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Road Construction Department, Government of
Jharkhand on and from 03.05.2013.
18. It is further case of the petitioner that that
although the petitioner was promoted to the post of
Assistant Engineer but the department did not give
effect to the promotion from its due date as notional
date when he became eligible to be considered for
promotion just after rendering 5 years of service (i.e.
from 09.12.1987) in the entry grade post of Junior
Engineer (Civil) as per the Central Service Conditions
adopted in the Central Public Works Department Rules.
19. The Petitioners are said to be Diploma Holders in
Civil Engineering from Government Polytechnics of the
State of Bihar, which Diploma is said to be recognized
by All India Council for Technical Education.
20. The petitioners having been appointed as Junior
Engineers became entitled for promotion to the higher
posts of Assistant Engineer, Executive Engineer and
Superintending Engineer from their due dates falling on
9.12.1990, 9.12.1998 and 9.12.2005 respectively.
However, despite being eligible and entitled to be
considered for promotion under Rule 11 of Bihar
Engineering Service Class II Rules, 1939 and Rule 17 of
Bihar Engineering Service Class 1 Rules, 1939 for these
promotions from the due dates the State did not even
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consider their cases. Belatedly on 03.05.2013 the State
granted them only one promotion i.e. to the post of
Assistant Engineer. Yet the State granted promotions to
amongst others, Junior Engineers to the post of
Assistant Engineer w.e.f. 27.06.1987, Executive
Engineer w.e.f. 23.11.2009 and Superintending
Engineer w.e.f. 3.2.2016 though these persons were
admittedly juniors to the petitioners as they were
appointed after the appointment of the petitioners on
09.12.1982 on the post of Junior Engineer which shall
be manifest from bare perusal of Annexure 17 to the
writ petition read with, inter alia, paragraph no. 45
thereof, which have not been traversed by the
respondents. The petitioners were entitled to be granted
these three promotions with consequential benefits
either independently as per their entitlement and/or
from dates juniors were granted these promotions and
such denial by the State is in violation of Articles 14 and
16 of the Constitution of India.
21. It is case of the writ petitioners that the State vide
Notification No. 2376(S) dated 12.4.2016, promulgated
the Jharkhand Engineering Service Rules, 2016 w.e.f.
3.5.2016. As per Rule 7 read with Schedule II thereto,
Assistant Engineers having an engineering degree from
a recognized University or Institute such as AMIE alone
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are eligible to be promoted to the posts of Executive
Engineer and above whereas under the Bihar
Engineering Service Class 1 Rules such Assistant
Engineers (promoted from Junior Engineer) having a
diploma in engineering from an Institute were also
eligible to be promoted to the post of Executive Engineer
and above. The said new 2016 Rules changed the
service conditions of the petitioners to their detriment
which could not have been so done by the State without
obtaining prior approval of the Central Government
under Sections 72 and 73 of the Bihar Re-organisation
Act, 2000, which making the said new 2016 Rules ultra
vires the powers of the State insofar as Petitioners are
concerned being in violation of the said 2000 Act.
22. As the claim for grant of the above three
promotions to the petitioners as well as the vacancies
dates prior to coming into force of the new 2016 Rules
on 3.5.2016, therefore, as an alternative to the above
challenge to the said new Rules the petitioners have also
prayed that it be declared that the said new Rules would
not be applicable to them for the said purpose as it is a
settled law that vacancies prior to amendment of Rules
would be governed by the un-amended Rules, more so
when the State prior to coming into force of the said new
Rules granted the three promotions to the juniors to the
Page | 22
2026:JHHC:11185-DB
petitioners, as above, without even considering their
cases. Further, the State cannot take the benefit of delay
and laches on its part to deny the same treatment to the
petitioners and is a clear violation of Articles 14 and 16
of the Constitution of India.
23. It is further case of the petitioners as well as the
association submitted representation/reminder to the
respondents-authorities for considering their promotion
to higher grades from the date juniors have been
promoted, but, it did not evoke any response, as such
present writ petitions have been filed for redressal of
their grievance, as quoted above.
24. It requires to refer herein that in W.P.(S) No. 654 of
2018, the Co-ordinate Bench of this Court has passed
order on 4th September, 2018 on the Interlocutory
Application being I.A. No. 6171 of 2018, wherein the Co-
ordinate Bench, taking note of the fact that Jharkhand
Engineering Service Recruitment Rules, 2016
[hereinafter referred to as ‘Rules, 2016’] has already
been stayed vide order dated 17th August, 2017 in W.P.
(S) No.3027 of 2016 and other batch matters, as such
liberty was granted to the authorities to consider the
case of the writ petitioner for entitlement for promotion
applying the 1939 Rules and should bring to our notice
his position on the next date of hearing. However, it was
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made clear that the Court is not passing of any further
order on implementation of 1939 Rules. For ready
reference, order dated 4th September, 2018 is quoted as
under:
“I.A. No. 6171 of 2018
The main point involved in this writ petition is as to
whether Jharkhand Engineering Service Recruitment Rules,
2016 shall prevail over Bihar Engineering Service Rules,
1939 or not. Under the latter Rules, Assistant Engineers
coming from both Graduate and Diploma streams are
eligible for promotion to the post of Executive Engineer.
Under the former i.e, 2016 Rules, only those Assistant
Engineers, who possess degree in engineering are eligible
for promotion. In the batch of the writ petitions which are
being heard along with W.P.(S) No. 3027 of 2016, operation
of 2016 Rules has been stayed by an order passed on 17th
August, 2017.
The applicant in the present writ petition comes from
the diploma category and has already superannuated. His
complaint is that in spite of there being restraint order upon
implementation of 2016 Rules, the authorities are not
considering the implementation of 1939 Rules for the
purpose of promotion. As the applicant has already
superannuated during pendency of the said batch of writ
petitions, no substantive relief can be given. However, the
authorities may consider his entitlement for promotion
applying the 1939 Rules and should bring to our notice his
position on the next date of hearing.
For the reasons already indicated, we are not passing
of any further order on implementation of 1939 Rules. The
subsisting order already covers that field.
Matter to be listed on 13rd December, 2018.
The instant I.A. shall stand disposed of in the above
terms.”
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25. The background of passing of the aforesaid order is
that the writ petitioners are claiming their promotion on
the basis of Bihar Engineering Service Rules, 1939
(hereinafter referred to as ‘Rules, 1939]. The said Rules,
1939 has been superseded by a new rule, i.e.,
Jharkhand Engineering Service Recruitment Rules,
2016. The new Rules, 2016 has been assailed by filing
these writ petitions.
26. These three writ petitions were directed to be
tagged with another batch of writ petitions being W.P.(S)
No. 3027 of 2016; W.P.(S) No. 2984 of 2016; W.P.(S) No.
3031 of 2016 and W.P.(S) No. 5726 of 2017 by the Co-
ordinate Bench of this Court vide order dated 13 th
December, 2018.
27. Two Interlocutory Applications being I.A. No. 627
of 2023 in W.P.(S) No. 2189 of 2018 and I.A. No. 628 of
2023 in W.P. (S) No. 654 of 2018 was pressed by learned
senior counsel for the petitioners on 01.08.2024 stating
that these Interlocutory Applications is with a prayer to
bring on record subsequent developments which have
taken place during the pendency of these writ petitions
as well as for a direction upon the State-Respondents to
issue notification of promotions to the petitioners to the
higher posts of Executive Engineer and Superintending
Engineer in Road Construction Department as
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2026:JHHC:11185-DB
recommended by the Departmental Promotion
Committee with all consequential benefits attached
thereto. However, on the objection being raised by the
respondents and Intervener, the matter was adjourned
to be listed on 18th September, 2024. For ready
reference, order dated 01.08.2024 is quoted as under:
“Mr. Jitendra Singh, learned Senior Counsel appearing
for the petitioners has pressed both these Interlocutory
Applications which is with a prayer to bring on record
subsequent developments which have taken place during the
pendency of these writ petitions as well as for a direction
upon the State-Respondents to issue notification of
promotions to the petitioners to the higher posts of Executive
Engineer and Superintending Engineer in Road Construction
Department as recommended by the Departmental Promotion
Committee with all consequential benefits attached thereto.
Mrs. Darshana Poddar Mishra, learned A.A.G.-I
submits that although she has oral instructions but she has
to bring the same on affidavits. She, therefore, seeks three
weeks‟ time to file a reply to these Interlocutory Applications.
Mr. Krishna Murari, learned counsel for the Intervenor
(Jharkhand Engineering Services Association) has submitted
that a copy of the Interlocutory Applications have not been
served upon him.
Mr. Jitendra Singh, learned Senior Counsel for the
petitioners submits with objection that the copies shall be
served upon Mr. Krishna Murari, learned counsel for the
Intervenor (Jharkhand Engineering Services Association).
The said exercise should be done by 5th August, 2024.
Let this matter be listed on 18th September, 2024
under the heading “For Orders” for consideration of the
Interlocutory Applications as well as the preliminary
objection raised by Mr. Krishna Murari, learned counsel forPage | 26
2026:JHHC:11185-DBthe Intervenor (Jharkhand Engineering Services
Association).”
28. On 18th September, 2024, learned senior counsel
for the petitioners in W.P. (S) No. 654 of 2018 ad W.P.(S)
No. 2189 of 2018 appeared and submitted that the
Department of Road Construction in the year 2015 has
already given its recommendation, which is pending for
final decision before the Cabinet. In view thereof, the
matter was adjourned to be listed on 17.10.2024.
29. On 17th October, 2024, learned senior counsel for
the petitioners in W.P. (S) No. 654 of 2018 ad W.P.(S)
No. 2189 of 2018 appeared and made oral submission to
withdraw these writ petitions on the ground that the
decision has been taken by the Road Construction of the
State Government vide resolution dated 09.10.2024 with
respect to the petitioners in W.P. (S) No. 654 of 2018
and W.P. (S) No. 2189 of 2018. The learned counsel
appearing for respondent no. 6 and 7 opposed to such
prayer on the ground that still the issue is to be decided
by this Court and during pendency of the lis such
decision has been taken. This Court, therefore, directed
the Principal Secretary of the Department concerned to
file affidavit as to whether before consideration of these
cases i.e., the case of petitioners in W.P. (S) No. 654 of
2018 and W.P. (S) No. 2189 of 2018, the case of other
identical persons have been referred before the
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Departmental Promotion Committee for its consideration
or not and if not reason is to be explained. For ready
reference, order dated 17th October, 2024 is quoted as
under:
1. Reference may be made to order dated 4th September, 2018
passed in W.P. (S) No. 654 of 2018, wherein the Co-ordinate
Bench while passing the order took note of the issue that the
main point involved in the writ petition is as to whether
Jharkhand Engineering Service Recruitment Rules, 2016
shall prevail over Bihar Engineering Service Rules, 1938 or
not; and under the later rules, Assistant Engineers coming
from both Graduate and Diploma streams are eligible for
promotion to the post of Executive Engineer.
2. Mr. Jitendra Singh, learned senior counsel assisted by
Ms. Amrita Sinha, learned counsel for the petitioners
in W.P. (S) No. 654 of 2018 and W.P. (S) No. 2189 of
2018 has made oral submission to withdraw these
writ petitions on the ground that the decision has been
taken by the Road Construction of the State
Government vide resolution dated 09.10.2024 with
respect to the petitioners in W.P. (S) No. 654 of 2018
and W.P. (S) No. 2189 of 2018.
3. Mr. Mahesh Tewari, learned counsel appearing for
respondent nos. 6 and 7 has vehemently opposed the
prayer for withdrawal of the writ petitions. It has been
contended that the order has been passed during pendency
of the writ petition when still the issue is to be decided,
which has been agitated by the writ petitioners, as pleaded
in the writ petition.
4. It has been submitted by referring to resolution dated
09.10.2024 that the said order has been passed only with
respect to the petitioners in W.P. (S) No. 654 of 2018 and
W.P. (S) No. 2189 of 2018 with specific stipulation that
decisions granting promotion will not be treated to be
precedence as would appear from paragraph 42 of the said
resolution.
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5. This Court, on perusal of the aforesaid resolution, is of the
view that the affidavit is required to be sought for from the
State as to why the decision taken by the State with respect
to the petitioners in W.P. (S) No. 654 of 2018 and W.P. (S) No.
2189 of 2018 with stipulations made therein that this
resolution will not be treated to be precedence.
6. This Court needs to know the same as to whether before
consideration of these cases i.e., the case of petitioners in
W.P. (S) No. 654 of 2018 and W.P. (S) No. 2189 of 2018, the
case of other identical persons have been referred before the
Departmental Promotion Committee for its consideration or
not and if not reason is to be explained.
7. Let such affidavit be filed, explaining the reason, to be filed
by the Principal Secretary of the Department on or before the
next date of hearing.
8. Ms. Amrita Sinha, learned counsel for the petitioner has
argued in W.P. (S) No. 5726 of 2017 and raised the grievance
that the petitioner of the present case has not been granted
promotion.
9. This matter [W.P. (S) No. 5726 of 2017] will also be
considered along with other matters [W.P. (S) No. 654 of
2018 and W.P. (S) No. 2189 of 2018] on the date fixed.
10. List this case on 18.11.2024.”
30. Pursuant thereto, affidavit has been filed by the
respondent-State, taking the stand that the State only in
order to restrict the matter of promotion to two persons,
since they have been representing for redressal of their
grievance for retrospective promotion such order of
promotion has been granted and that is the reason in
order to restrict the said decision to two petitioners, the
word has been used that this order will not be treated to
be precedence.
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2026:JHHC:11185-DB
31. This Court took cognizance of the fact that such
decision has been taken by the Chief Secretary of the
State in exercise of power conferred under Rule 27(4) of
the Rules of Executive Business, which has got approval
by the Cabinet and thereafter notification has been
issued, but, this Court has failed to understand that
when there is no power conferred to the Chief Secretary
of the State under Rule 27(4) of the Rules of Executive
Business, then how such decision can be taken in
difference to the decision already taken by the
Departmental Secretary and in reversal thereto. For
ready reference, order dated 18th November, 2024 is
quoted as under:
“Reference may be made to the order dated 17th
October, 2024, in pursuance thereof, affidavit has been filed
by the respondent State of Jharkhand.
2. We have gone through the averments made in the said
affidavit and the stand which has been taken by the State
that only in order to restrict the matter of promotion to two
persons, since they have been representing for redressal of
their grievance for retrospective promotion, such order of
promotion has been granted and that is the reason in order
to restrict the said decision to two petitioners, the word has
been used that this order will not be treated to be
precedence.
3. There is reference of the provision of Rule 27(4) of the
Rules of Executive Business. We have also considered the
provision of Rule 27(4) of the Rules of Executive Business
and found therefrom that the Chief Secretary has not been
conferred with the power to take decision in the matter of
Rules of Executive Business, rather, the power has beenPage | 30
2026:JHHC:11185-DBconferred to call for any record/document, for ready
reference, Rule 27(4) of the Rules of Executive Business is
being quoted and referred hereunder as :-
“27 (4) (a) The Chief Secretary may on the orders of
the Chief Minister or of any Minister or of his own
motion ask to see papers relating to any case in any
department and any such request by him shall be
complied with by the Principal Secretary/Secretary of
the Department concerned. (b) The Chief Secretary
may, after examination of the case submit it for the
orders of the Minister-in-charge or of the Chief Minister
through the Minister-incharge.”
4. The averment since has been made that it is on the basis
of the decision taken by the Chief Secretary of the State as in
exercise of power conferred under Rule 27(4) of the Rules of
Executive Business, which has got approval by the Cabinet
and thereafter notification has been issued. But, this Court
has failed to understand that when there is no power
conferred to the Chief Secretary of the State under Rule 27(4)
of the Rules of Executive Business, then how such decision
can be taken in difference to the decision already taken by
the Departmental Secretary and in reversal thereto.
5. Mr. AshutoshAnand, learned Additional Advocate General-
III appearing for the State, has sought for time to seek
instruction in the matter.
6. We have heard learned senior counsel Mr. Jitendra Singh,
assisted by Ms. Amrita Sinha, learned counsel appearing for
the petitioners, Mr. Mahesh Tewari and Mr. Krishna Murari,
learned counsel appearing for the respondents.
7. Due to paucity of time, the hearing could not be concluded.
8. With the consent of the parties, let this matter be posted
on 16.12.2024.
9. It has been submitted that although the written notes of
argument has been filed but the same is to be supplemented,
as such, submission has been made to allow the learned
counsel for the parties to file the written notes of argument
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2026:JHHC:11185-DB
afresh by making addition of subsequent development, if
any.
10. Considering the aforesaid submission, permission is
granted to file fresh written notes of argument on or before
the next date of hearing.”
32. Further, it came to the notice of the Court that in
some other writ petitions also the different provisions of
Jharkhand Engineering Service Rules, 2016 have been
challenged, as such prayer has been made to tag those
cases along with W.P. (S) No. 654 of 2018 and batch
matters. Accordingly, W.P. (S) No. 654 of 2018 was
heard together with W.P. (S) No. 2984 of 2016; W.P. (S)
No. 3027 of 2016; W.P. (S) No. 3031 of 2016; W.P. (S)
No. 5726 of 2017; W.P. (S) No. 08 of 2018 and W.P. (S)
No. 2189 of 2018, as would be evident from order dated
27th January, 2025.
33. Learned Advocate General, in course of hearing on
28th April, 2025, while addressing the Court has
submitted that the Government has considered the
aforesaid issues, and are taking due steps to get the
amendment done at the earliest and as such sought for
adjournment of the matter. For ready reference, order
dated 28th April, 2025 is quoted as under:
“1.Mr. Sameer Saurabh, learned counsel at the outset has
submitted that he is advocate on record in W.P.(S) No. 2984
of 2016, however, he is having instructions to argue the
matters being W.P.(S) No. 3027 of 2016 and W.P.(S) No. 3031Page | 32
2026:JHHC:11185-DBof 2016 and he will file the appearance on behalf of the
petitioners.
2. Mr. Sameer Saurabh, learned counsel appearing in
aforesaid three writ petitions has submitted that the validity
of the Rule 2016 is under challenge.
3. It has been submitted that the petitioners are aggrieved
with the insertion of the quota of 50 per cent of the total
posts which has been decided to be filled up from the post of
Assistant Engineer to that of the post Executive Engineer.
4. It has further been contended that the same is in the teeth
of Articles 14 and 16 of the Constitution of India due to the
reason that the Assistant Engineers who have been
promoted from the post of Junior Engineer in consequence of
having certificate from the AMIE and the moment they have
inducted into the cadre of Assistant Engineer, they cannot be
allowed to get the benefit of such Assistant Engineers by
fixing quota of 40 per cent again for the purpose of
consideration of their cases to be promoted as Executive
Engineer.
5. Learned Advocate General is present and while
addressing the Court he has submitted that the Government
has considered the aforesaid issues, which would be evident
from the affidavit filed on behalf of the State on 06.04.2023
wherein the specific statement has been given at Para 17
that the respondents are taking due steps to get the
amendment done at the earliest.
6. The learned Advocate General, on the basis of the
aforesaid statement, has submitted that since the
Government is thinking to amend the aforesaid part of the
Rule 2016 which is under challenge in the writ petitions.
7. As such, the learned Advocate General has sought for
adjournment awaiting for the amendment which is under
consideration with the State Government.
8. Considering the same, the matter is being adjourned to be
listed on 17th June, 2025.”
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2026:JHHC:11185-DB
34. Thereafter, several adjournments were granted for
bringing on record the amended rules to Jharkhand
Engineering Service Recruitment Rules, 2016.
35. In the meantime, it has been brought to the notice
to the Court that other matters challenging Rules, 2016
are also pending, which has been prayed to be tagged
together. Accordingly, W.P. (S) No. 2984 of 2016; W.P.
(S) No. 3027 of 2016; W.P. (S) No. 3031 of 2016 and
W.P. (S) No. 5726 of 2017 was tagged with W.P.(S) No.
654 of 2018; W.P. (S) No. 8 of 2018 and W.P. (S) No.
2189 of 2018.
36. On 22nd January, 2026, learned counsel appearing
for the petitioners in W.P.(S) No. 654 of 2018; W.P. (S)
No. 8 of 2018 and W.P. (S) No. 2189 of 2018, submitted
that these batch mattes are nothing to do with the
amended Rules and hence these matters require
independent adjudication.
37. So far rest writ petition of the batch cases, i.e.,
W.P. (S) No. 2984 of 2016; W.P. (S) No. 3027 of 2016;
W.P. (S) No. 3031 of 2016 and W.P. (S) No. 5726 of
2017 are concerned, they were heard separately on 22nd
January, 2026 and disposed of on 22nd January, 2026
itself. For ready reference, the relevant paragraph of
order dated 22nd January, 2026 is quoted as under:
Page | 34
2026:JHHC:11185-DB” 6. Today a show-cause has been filed wherein it is stated
that Rule has been formulated, copy thereof has been
supplied to the learned counsel for the respective parties,
bringing on record the enactment of Jharkhand Engineering
Service Appointment and other Service Conditions Rule,
2025 in exercise of power conferred under proviso to Article
309 of the Constitution appended as Annexure-A which has
also been notified in the Gazette Notification which is in
supersession to the Jharkhand Engineering Service
Recruitment Rules, 2016. The Rule 2016 has come in
supersession to Bihar Engineering Class-1 Service
Rules,1939 now there would be only one Rule i.e. Rule,
2025.
7.Although, after some delay, the Rule has been formulated
and, as such, there is substantial compliance of the direction
passed by this court. Hence, this court does not intend to
proceed further in pursuance to the notice issued under Rule
393 of the Jharkhand High Court Rule. The new Rule has
been enacted and as such this court is of the view that
keeping these matters pending will be uncalled for. Any
promotion granted in the meanwhile will exclusively be
governed on the basis of the new Rule.
8.Accordingly, these writ petitions are disposed of with
liberty to the petitioners that if any of the parties
aggrieved they may challenge the validity of the Rule
or any part thereof by approaching the appropriate
forum, if so advised.
9.The copy of Gazette Notification has been tendered by the
learned counsel for the State which has been kept on
record.
10.One question has been raised by the learned
counsel for the parties with respect to the promotion
having been granted by the order dated 17.8.2017
passed by this Court in WP(S) No. 3027 of 2016, WP(S)
2984 of 2016 and WP(S) 3031 of 2016 from the post of
Assistant Engineer (Diploma Holders) to the post of
Executive Engineer as per the Bihar Engineering
Class-1 Service Rules,1939, as would be evident from
paragraph no.20 of the order dated 17.08.2017, thatPage | 35
2026:JHHC:11185-DBpromotion granted to the petitioner(s) may be saved
otherwise he/they will face irreparable loss as most
of him/them have already been retired from service.
11. The aforesaid facts have not been disputed by any of the
learned counsel(s) appearing on behalf of the respondents.
12. This court is of the view that since the new Rule has been
enacted as Jharkhand Engineering Service Appointment
and other Service Conditions Rule, 2025 which is in
supersession to the Rule 2016 and the Rule 2016 is in
supersession to the Rule 1939 hence, promotion granted by
virtue of interim order dated 17.8.2017 is to be saved.
38. This Court considering the prayer made by the
parties and averments made in those writ petitioners
directed to segregate writ petitions being W.P.(S) No. 654
of 2018; W.P. (S) No. 8 of 2018 and W.P. (S) No. 2189 of
2018 from the batch of writ petitions. Accordingly, these
writ petitions have been directed to be heard together on
the issue of merit.
39. When the matter was heard on 23rd March, 2026
besides arguing the matter on merit, learned counsel for
the respondent no. 6-7 [JESA] have pressed one
Interlocutory Application being I.A. No. 11333 of 2024,
which was filed seeking recall of order dated
04.09.2018.
40. Accordingly, the matter has been heard on merit as
also on the Interlocutory Application(s) filed by the
parties.
Submission on behalf of petitioners:
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2026:JHHC:11185-DB
41. Mr. Jitendra Singh, learned senior counsel for the
petitioners appearing in W.P. (S) No. 654 of 2018 and
W.P. No. 2189 of 2018 has submitted that the
petitioners having been appointed as Junior Engineers
became entitled for promotion to the higher posts of
Assistant Engineer, Executive Engineer and
Superintending Engineer from their due dates, as per
Rule 11 of the Bihar Engineering Service Class II Rules,
1939 and Rule 17 of the Bihar Engineering Service
Class I Rules, 1939. However, belatedly on 03.05.2013,
the State granted them promotion only to the post of
Assistant Engineer but the State granted promotion to
other Junior Engineers, who are even junior to the
petitioners, to the post of Assistant Engineer w.e.f.
27.06.1987; Executive Engineer w.e.f. 23.11.2009 and
Superintending Engineer w.e.f. 03.02.2016.
42. Assailing the Rules, 2016, submission has been
made that the respondent-State promulgated Rules,
2016, wherein as per Rule 7 read with Article II thereto,
the Assistant Engineers having an engineering degree
from a recognize University or Institute such as AMIE
alone are eligible to be promoted to the posts of
Executive Engineer and above whereas under the Bihar
Engineering Service Class I Rules such Assistant
Engineers [promoted from Junior Engineer] having a
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2026:JHHC:11185-DB
diploma in engineering from an Institute were also
eligible to be promoted to the post of Executive Engineer
and above.
43. It has emphatically been submitted that Rules,
2016 changed the service conditions of the petitioners to
their detriment which could not have been so done by
the State without obtaining prior approval of the Central
Government under Sections 72 and 73 of the Bihar Re-
organization Act, 2000.
44. Further submission has been made that vacancies
against which the petitioners are seeking promotions
were in existence prior to 03.05.2016 i.e., coming into
force of Rules, 2016, thus, the petitioners are entitled to
get promotions as per Rules, 1939.
45. It has been submitted that on conjoint reading of
Bihar Subordinate Engineering Service Rules, 1939;
Bihar Engineering Service Class II Rules, 1939 and
Bihar Engineering Service Class I Rules, 1939, it is
amply clear that there is no prohibition for a person
holding diploma in engineering [i.e., holder of diploma in
engineering from an institution, not diploma from an
Indian Engineering College as per Rule 8,] to be
promoted to Class I service as a prohibition cannot be
deemed for it has to be specifically provided in the Rules
i.e., what is not barred is permissible. Further since
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such Assistant Engineers [petitioners] are eligible to be
so promoted to the post of Executive Engineer in view of
the provisions of Rule 24 Class I Rules, they are also
entitled consequential promotion to the posts of
Superintending Engineer and Chief Engineer.
46. In support of his argument, learned senior counsel
for the petitioner has relied upon the judgment rendered
in the case of A. S. Parmar Vs. State of Haryana
[(1984) Suppl. SCC 1)] wherein the issue was with
regard to interpretation of Punjab Service of Engineers,
Class I, P.W.D. (Building and Roads Branch) Rules,
1960 and Punjab Service of Engineers, Class II, P.W.D.
(Building and Roads Branch) Rules, 1965 relating to
class of Junior Engineer, Assistant Engineer and
Executive Engineer and above which also had a different
qualification requirement at the entry point for Assistant
Engineer and Executive Engineer from those of class of
Junior Engineer by way of direct recruitment considered
whether the same was also applicable to Assistant
Engineer promotee diploma holders categorically held
that a similar provision delineated in Rule 6 of the said
1965 Class I Punjab Rules was only applicable for direct
recruitment and could not be applied to Assistant
Engineer promotee diploma holders while considering
could the clauses of the said Punjab Rules (which are
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2026:JHHC:11185-DB
similar to the above said Bihar Rules qua the relevant
provisions relating to direct recruitment and promotion)
have to be read cumulatively or separately stated that
the same depends on the structure of sentence and
contents of different clauses and held that Class II
promotee Assistant Engineers are not required to fulfill
the prescribed qualification in Class I service which is
only for candidates applying for direct recruitment to
Class I service.
47. Learned senior counsel for the petitioners further
submitted that instead of the earlier Bihar Engineering
Service Class I and II Rules, 1939 governing Class I and
Class II Engineering Service respectively, the 2016 Rules
provides for a single rule for both the erstwhile Class I
and Class II service under the said 1939 Rules and
provide that the posts as included in Schedule I taking
into a wider base of posts would constitute this new
engineering service in the State.
48. Referring to Rule 7 read with Schedule II of the
2016 Rules submission has been made that it provides
for recruitment to the Jharkhand Engineering Service
from two sources, one by way of direct recruitment and
second by way of promotion. Rule 7 further lays down
qualification for consideration; and appointment and
promotion shall be in terms of the qualifications laid
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2026:JHHC:11185-DB
down in Schedule II. This Schedule II by providing that
apart from regular service of 5 years, the Assistant
Engineer has to possess a degree in engineering from a
recognized University or Institution such as A.M.I.E.
(Associate Member of Institution of Engineers) which
directly renders Assistant Engineer (promotee) diploma
holders already in service ineligible to be considered and
be promoted to the posts of Executive Engineer and
above and thus it takes away the vested right of the
petitioners conferred under the old Rule 1939 Rules and
guaranteed under Article 16 of the Constitution of India.
Under Rule 5(2) a person appointed under clause (a) of
sub-rule (1) of the Rule-5 shall, on such appointment,
be deemed to be a member of the service in the
appropriate grade applicable to him under Schedule-1.
49. So far applicability of the judgment rendered in the
case of S.K. Md. Amir Ansari Vs. State of Bihar
Bihar [(1973) BLJR 223] is concerned submission has
been made that it is not having binding precedence so
far its observation with regard to interpretation of Rule
8 of 1939 Class I Rules is concerned for the reason that
the observation and reference to the interpretation of
Rule 8 as it originally stood in the Division Bench
Judgment of the Hon’ble Patna High Court is an obiter
dictum or a remark made or opinion expressed by the
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2026:JHHC:11185-DB
Hon’ble Court in its decision upon a cause by the way
i.e. incidentally and collaterally and not directly upon
the issue before the Hon’ble Court. It has been
submitted that it is well settled principle of law that only
the ratio decidendi of a case is a binding precedent, as
such the judgment rendered in the case of S.K. Md.
Amir Ansari Vs. State of Bihar (supra) is not
applicable in the case at hand.
50. Learned senior counsel for the petitioners has
further submitted that promotion has already been
granted to the petitioners on consideration of the fact
that operation of Rules, 2016 has already been stayed in
W.P. (S) 3027 of 2016, as such authority was granted
liberty to consider the entitlement of the petitioner apply
Rules, 1939, as would be evident from order dated 4 th
September, 2018 passed by the Co-ordinate Bench of
this Court in W.P.(S) No. 654 of 2018 and basing upon
the applicability of Rules, 1939, particularly Rule 8
thereof, the petitioners have been considered eligible to
be inducted in Class I Engineering Service and as such
the decision taken by the State cannot be said to suffer
from error and for the aforesaid reason, the prayer has
also been made for withdrawal of the writ petitions.
51. Learned senior counsel has further submitted that
the petitioners are having diploma holder and as such in
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view of provision of Rule 8 of Rules, 1939 they are
eligible for holding the Class I post. It has been
contended that Rule, 1939 consists of two parts. Part I
contains recruitment/promotion to the Class I
Engineering Service whereas part II pertains to
recruitment in Class II Engineering Service. The
petitioners since have been inducted in service under
Subordinate Engineering Service and subsequent
thereto he has been promoted to the post of Assistant
Engineer [class II], hence, by virtue of the aforesaid
promotion they are entitled to be promoted by bringing
them to the Cadre of Class I Engineering Service.
52. Further claim has been made for promotion on the
basis of promotions granted to juniors, without
considering the case of the petitioners, as required
under Rule 11 of Class II Rules and Rule 17 of the Class
I Rules. Submission has been made that two sets of
juniors have been appointed and have enjoyed the fruits
of promotions. The first set of diploma holder Junior
Engineers, who were junior to the petitioners, having
been appointed after the appointment of petitioners on
these posts, details of which have been mentioned in
part B of Annexure 17 to the writ petition. It has been
submitted that they have been granted promotions to
the post of Assistant Engineer; Executive Engineer and
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2026:JHHC:11185-DB
Superintendent Engineer even though their qualification
is diploma in engineering from an Institute i.e.,
Government Polytechnic, as that of petitioners. The
second set of juniors are degree hold junior engineer,
who were juniors to petitioners have been appointed
after the petitioners and have been granted promotion to
the post of Assistant Engineer, Executive Engineer and
Superintendent Engineers from the due date but the
petitioners have been precluded from getting the fruits
of promotion.
53. Learned senior counsel for the petitioners, based
upon the aforesaid ground, while defending the decision
so taken by the State in pursuance to order dated 4th
September, 2018 passed by the Co-ordinate Bench of
this Court in W.P.(S) No. 654 of 2018 granting
promotion to the post of Assistant Engineer, has
submitted that prayer so made in these writ petitions is
fit to be allowed by upholding the decision taken by the
State authorities granting promotion in favour of writ
petitioners to the post of Assistant Engineer and
pursuant they are entitled to get consequential
promotion and since now the petitioners are now retired
as such they are entitled to consequential monetary
benefits.
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2026:JHHC:11185-DB
54. Mr. A.K. Sahani, learned counsel for the petitioner
appearing in W.P.(S) No. 8 of 2018 has adopted the
argument advanced by learned senior counsel for the
petitioner in W.P. No. 654 of 2018 and W.P.(S) No. 2189
of 2018 and in addition thereto, it has been submitted
that since the writ petitioners of W.P.(S) No. 654 of 2018
and W.P.(S) No. 2189 of 2018 have been granted
promotion to the post of Assistant Engineer, as such the
petitioners in W.P. (S) No. 8 of 2018 are also eligible for
promotion to the higher posts, as per the applicability of
Rules, 1939.
Submission on behalf of respondent no. 6 and 7:
55. Per contra, Mr. Krishna Murari, learned counsel
appearing for JESA-respondent nos. 6 and 7 has
submitted that promotion which has been granted to the
petitioners in W.P. (S) No. 654 of 2018 and W.P.(S) No.
2189 of 2018 by bringing him to Class I Engineering
Service and the claim which has been made by the
petitioner in W.P.(S) No. 8 of 2018 is not fit to be granted
due to the reason that the writ petitioners are not
eligible to hold the post(s) either the Class II Engineering
Service or Class I Engineering Service due to lack of
educational qualification of having diploma from ‘Indian
Engineering College’ as available in Rule 8 of
Rules,1939.
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2026:JHHC:11185-DB
56. It has been contended that the petitioners is only
having the Cadre of Subordinate Engineering Service
and as such they cannot be said to under the Cadre of
Class II Engineering Service and as such they are not
entitled for promotion of Class I Engineering Service.
57. It has been submitted that Co-ordinate Bench
while passing order dated 4th September, 2018 has
simply observed that consideration of the cases of the
writ petitioners, in the light of the fact that during
pendency of writ petitions, stay of Rule 2016 has been
ordered in W.P.(S) No. 3027 of 2016, but without taking
into consideration the eligibility part, which was lacking
to have with the writ petitioners of present writ
petitions, they have been granted promotion to the post
of Assistant Engineers.
58. Learned counsel for the respondent further
submitted that the judgment rendered in the case of A.
S. Parmar Vs. State of Haryana (supra) is not at all
applicable in the case at hand, as under paragraph 8 of
the said judgment it has been mentioned that under
Rule 6 (b) of the Punjab & Haryana Class-I Engineer
Rules, the experience of eight years working as Assistant
Engineer (Class-II) has been statutorily recognized as
alternative qualification to that of the Degree by virtue of
legislative indent, which is absent in Rule-8 of the
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Bihar/Jharkhand Class-I Rule of 1939, nor such
legislative indent can be introduced by Judicial Fiat.
59. The learned counsel for the respondent no. 6 and 7
has relied upon the judgment rendered in the case of
S.K. Md. Amir Ansari Vs. State of Bihar [(1973) BLJR
223] in order to strengthen his argument.
60. Learned counsel for the State has submitted that
notional promotion has been granted in favour of
petitioners and as of now new Rules, 2025 has come
and as such cases of the petitioners is required to be
considered in view of applicability of new Rule, 2025.
61. Further submission has been made that the
petitioners have now retired and now otherwise also no
retrospective promotion can be granted nor any seniority
can be given on retrospective basis from a date when an
employee has not even borne in the cadre, particularly
when this would adversely affect the direct recruits who
have been validly in the meantime.
Submission on behalf of respondent-State
62. Learned Advocate General appearing for the State,
assisted by Mr. Shray Mishra, AC to AG has submitted
that as per the provision laid down in relevant Rules,
qualification for promotion to the post of Executive
Engineers degree in engineering is essential, which the
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petitioners are lacking since they are the diploma
holders. However, they have been extended the benefit
of financial up-gradation by granting ACP/MACP, as
applicable to them and as of now they have retired way
back in the year 2018/2019 itself.
63. It has further been submitted that during
pendency of the writ petitions, the State has come out
with the new rules for recruitment, promotion etc. of the
engineers in the name and style of Jharkhand
Engineering Services Rules, 2025. Therefore,
submission has been made the petitioners are not
entitled for the relief(s), as sought for and the writ
petitions are liable to be dismissed.
Analysis:
64. Heard learned counsel for the parties and gone
through the pleadings available on record as also the
counter affidavits, supplementary affidavits and
Interlocutory Applications filed on behalf of parties.
65. The issue which requires consideration in the
present matter is as to :
I.Whether the diploma holders after getting diploma from the
Government Polytechnic College can be said to be eligible to
have the eligibility criteria as provided under Rule 8 of the
Rules, 1987, restoring Rule 8 of Rules, 1939?
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2026:JHHC:11185-DBII.Whether the petitioners having got the diploma from the
government polytechnic college can be said to be considered
for either class II Engineering Service or Class I Engineering
Service?
III.Whether the action of the State respondent in granting
promotion to writ petitioner of W.P. (S) No. 654 of 2018 and
W.P. (S) No. 2189 of 2018, in pursuance to interim order
dated 4th September, 2018 is said to be made absolute
which has been granted without taking into consideration
the eligibility criteria as provided under Rule 8 of Rules,
1939 restoring eligibility as available under Rule, 1939?
66. Since all the issues are identical and are inter-
linked up, as such they are being taken up together.
67. This Court before delving into the aforesaid issues
deems it fit and proper to refer the prayer in short as
also the factual aspect.
68. The petitioners have mainly prayed for quashing
the notification no. 01/Misc-10/13-Road Construction-
2376(S) dated the 12th April 2016 issued by the Road
Construction Department, Government of Jharkhand
revival of Bihar Engineering Class-I Service Rules, 1939
in the matter of considering higher promotions with all
consequential benefits to the petitioner with
retrospective effect as has already been granted to
immediate juniors. Further prayer for declaration that
the impugned rules contained in Notification no. 2376(S)
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dated 12th April 2016 published in the official Gazette
on 3rd May, 2016 has no applicability to the case of the
petitioners to the extent that the petitioners’ promotion
and other service conditions will not be governed by the
impugned Rules and further that it does not affect the
rights vested in the petitioner to be promoted to the post
of Assistant Engineer with effect from 27.6.1987;
Executive Engineer with effect from 23.11.2009 and
Superintending Engineer with effect from 3.2.2016 when
the juniors to the petitioner [in WPS No. 654 of 2018]
have been granted promotion to the said posts. Further
direction has been sought for commanding upon the
respondents to shift back the date of promotion of the
petitioner from 03.05.2013 to 27.06.1987 in the
rank/post of Assistant Engineer with all consequential
benefits, as the Juniors to the petitioner being 13 daily
wages Junior Engineers have been treated to be
Assistant Engineer (Promotee) on and from 27.06.1987
have been placed in the seniority list dated 5.5.2015.
Further direction upon the respondents to give
promotion to the petitioner to the next higher rank (post)
of Executive Engineer with all consequential benefits
from 23.11.2009, the date from which said Juniors to
the petitioner have been considered and subsequently
promoted. As also direction upon the respondents to
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rearrange the inter-se-seniority list dated 05.05.2015 of
the Assistant Engineers under control of Road
Construction Department, Government of Jharkhand.
69. The factual aspect involved in the present case, in
particular the first case i.e., W.P. (S) No. 654 of 2018, is
that the Petitioner was issued letter of appointment
dated 10.02.1983 from combined select list against
common advertisement by the Road Construction
Department of the then Government of Bihar and was
appointed on the post of Junior Engineer (Civil), Road
Construction Department on ad-hoc basis.
70. The Road Construction Department, Government
of Bihar vide an office order dated 12.03.1998, decided
the services of 225 Junior Engineers including the
Petitioner in the initial entry grade post of Junior
Engineer to be made permanent.
71. The petitioner, after completion of required years of
regular service was granted ACP/MACP. Upon creation
of the State of Jharkhand, the petitioner was allocated
Jharkhand cadre with effect from 15.11.2000. The
petitioner was granted regular promotion to the post of
Assistant Engineer in Road Construction Department,
Government of Jharkhand on and from 03.05.2013.
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72. It is further case of the petitioner that although the
petitioner was promoted to the post of Assistant
Engineer but the department did not give effect to the
promotion from its due date as notional date when he
became eligible to be considered for promotion just after
rendering 5 years of service (i.e. from 09.12.1987) in the
entry grade post of Junior Engineer (Civil) as per the
Central Service Conditions adopted in the Central Public
Works Department Rules.
73. The Petitioners are said to be Diploma Holders in
Civil Engineering from Government Polytechnics of the
State of Bihar, which Diploma is said to be recognized
by All India Council for Technical Education.
74. The petitioners having been appointed as Junior
Engineers became entitled for promotion to the higher
posts of Assistant Engineer, Executive Engineer and
Superintending Engineer from their due dates falling on
9.12.1990, 9.12.1998 and 9.12.2005 respectively.
75. The State vide Notification No. 2376(S) dated
12.4.2016, promulgated the Jharkhand Engineering
Service Rules, 2016 w.e.f. 3.5.2016. As per Rule 7 read
with Schedule II thereto, Assistant Engineers having an
engineering degree from a recognized University or
Institute such as AMIE alone are eligible to be promoted
to the posts of Executive Engineer and above whereas
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under the Bihar Engineering Service Class 1 Rules such
Assistant Engineers (promoted from Junior Engineer)
having a diploma in engineering from an Institute were
also eligible to be promoted to the post of Executive
Engineer and above. The said new 2016 Rules changed
the service conditions of the petitioners to their
detriment which could not have been so done by the
State without obtaining prior approval of the Central
Government under Sections 72 and 73 of the Bihar Re-
organisation Act, 2000, which making the said new
2016 Rules ultra vires the powers of the State insofar as
Petitioners are concerned being in violation of the said
2000 Act.
76. It requires to refer herein that in W.P.(S) No. 654 of
2018, the Co-ordinate Bench of this Court has passed
order on 4th September, 2018 on the Interlocutory
Application being I.A. No. 6171 of 2018, wherein the Co-
ordinate Bench, taking note of the fact that Jharkhand
Engineering Service Recruitment Rules, 2016
[hereinafter referred to as ‘Rules, 2016’] has already
been stayed vide order dated 17th August, 2017 in W.P.
(S) No.3027 of 2016 and other batch matters, as such
liberty was granted to the authorities to consider the
case of the writ petitioner for entitlement for promotion
applying the 1939 Rules and should bring to notice his
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position on the next date of hearing. However, it was
made clear that the Court is not passing of any further
order on implementation of 1939 Rules.
77. On 17th October, 2025, learned senior counsel for
the petitioners in W.P. (S) No. 654 of 2018 ad W.P.(S)
No. 2189 of 2018 appeared and made oral submission to
withdraw these writ petitions on the ground that the
decision has been taken by the Road Construction of the
State Government vide resolution dated 09.10.2024 with
respect to the petitioners in W.P. (S) No. 654 of 2018
and W.P. (S) No. 2189 of 2018. The learned counsel
appearing for respondent no. 6 and 7 opposed to such
prayer on the ground that still the issue is to be decided
by this Court and during pendency of the lis such
decision has been taken.
78. This Court, therefore, directed the Principal
Secretary of the Department concerned to file affidavit
as to whether before consideration of these cases i.e.,
the case of petitioners in W.P. (S) No. 654 of 2018 and
W.P. (S) No. 2189 of 2018, the case of other identical
persons have been referred before the Departmental
Promotion Committee for its consideration or not and if
not reason is to be explained.
79. Pursuant thereto, affidavit has been filed by the
respondent-State, taking the stand that the State only in
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order to restrict the matter of promotion to two persons,
since they have been representing for redressal of their
grievance for retrospective promotion, such order of
promotion has been granted and that is the reason in
order to restrict the said decision to two petitioners, the
word has been used that this order will not be treated to
be precedence.
80. When the matter was heard on 23rd March, 2026
besides arguing the matter on merit, learned counsel for
the respondent no. 6-7 [JESA] have pressed one
Interlocutory Application being I.A. No. 11333 of 2024,
which was filed seeking recall of order dated
04.09.2018. Accordingly, the main matters and the
Interlocutory Applications on Board have been heard
together.
81. On the aforesaid factual background, the first limb
of argument has been advanced by learned senior
counsel for the petitioners that the petitioners are the
‘Diploma Holders in Civil Engineering from Government
Polytechnics of the State of Bihar’, which Diploma is
recognized by All India Council for Technical Education,
as such the petitioners having been appointed as Junior
Engineer became entitled for promotion to the higher
posts of Assistant Engineer, Executive Engineer and
Superintending Engineer from the due date.
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2026:JHHC:11185-DB
82. In this regard, much emphasis has been laid down
on Rule 11 of the Bihar Engineering Service Rules Class
II Rules, 1939 and Rule 17 of the Bihar Engineering
Service Class I Rules, 1939 and submission has been
made though the petitioners ought to have been granted
promotion from their due date, however, some juniors to
them have been granted such promotion in utter
violation of Article 14 and 16 of the Constitution of
India.
83. Further submission has been made by learned
senior counsel for the petitioners that on conjoint
reading of three rules i.e., Bihar Subordinate
Engineering Service Rules, 1939; Bihar Engineering
Service Class II Rules, 1939 and Bihar Engineering
Service Class I Rules, 1939, it would reveal that for
members of Subordinate Engineering Service, holding
their posts on permanent basis though they are
excluded from direct appointment to Class II service, but
they have separate and independent mode of entry into
Class II service which is by way of promotion under Part
III of the Rules and Rules 11 to 13 read with Rule 1(ii)
and the second part of Note to Rule 4 governing the
same are not made subject to qualifications mentioned
in Rule 4 relating to direct appointment.
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2026:JHHC:11185-DB
84. In support of his argument, learned senior counsel
for the petitioner has relied upon the judgment rendered
in the case of A. S. Parmar Vs. State of Haryana
(supra).
85. While, on the other hand, learned counsel for the
respondent no. 6 and 7, the contesting respondents, has
emphatically submitted that Rule 8 of Rules, 1939
explicitly provides that ‘No person shall be appointment
to the Service unless he holds a degree or diploma from
an Indian Engineering College or is an Associate
Member of the Institution of Engineers (India) or holds a
degree from one of the Universities in the United
Kingdom enumerated in the Annexure to these Rules, or
has passed the examination mentioned therein’ and
admittedly, the petitioners are not having such degree
rather they have diploma from State Polytechnic
Institute, as such they are not entitled to be inducted in
Class I Engineering Service.
86. Referring to judgment rendered in the case, S.K.
Md. Amir Ansari Vs. State of Bihar (supra)
submission has been made that the Court after
thorough discussion of the issue and Rules, 1939 in
particular Rule 8 of Rules, 1939 held that ‘Polytechnic
Three years Diploma Holders are not eligible for
promotion to Class I Cadre of Executive Engineer’ as
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2026:JHHC:11185-DB
they have not been taught the required subjects and
experimental engineering course to have the efficiency
required for discharging the high level duty attached
with Class I posts.
87. It is further submitted that the petitioners have
joined the Cadre of Subordinate Engineering Service and
as such they cannot be said to be under the Cadre of
Class II Engineering Service and thereby they are not
entitled for promotion of Class I Engineering Service.
88. So far the order passed by the Co-ordinate Bench
dated 4th September, 2018 is concerned, submission has
been made that therein the Court has simply observed
that consideration of the cases of the writ petitioners, in
the light of the fact that during pendency of writ
petitions, stay of Rule 2016 has been ordered in W.P.(S)
No. 3027 of 2016, but without taking into consideration
the eligibility part, which was lacking to have with the
writ petitioners of present writ petitions, they have been
granted promotion to the post of Assistant Engineers.
89. Learned counsel for the respondent further
submitted that so far law laid in the case of A. S.
Parmar Vs. State of Haryana (supra) is concerned it
is not at all applicable in the case at hand, as under
paragraph 8 of the said judgment it has been mention
that under Rule 6 (b) of the Punjab & Haryana Class-I
Page | 58
2026:JHHC:11185-DBEngineer Rules, the experience of eight years working as
Assistant Engineer (Class-II) has been statutorily
recognized as alternative qualification to that of the
Degree by virtue of legislative indent, which is absent in
Rule-8 of the Bihar/Jharkhand Class-I Rule of 1939,
nor such legislative indent can be introduced by Judicial
Fiat.
90. This Court, in the backdrop of aforesaid facts and
arguments advanced on their behalf and case, laws
deem it appropriate to proceed first to appreciate the
relevant rules, which are necessary to refer herein for
the purpose of consideration of the lis.
91. The Bihar Public Works Department Code [Volume
II] contains Appendix I, wherein Rules for the Regulation
of Recruitment to and the Conditions of Service, Pay,
Allowances and Pension of the Bihar Engineering
Service, Class I for P W. D. (B. & R.) and Irrigation
Department which is a provincial service constituted for
the purpose of gradually replacing the Indian Service of
Engineers, has been dealt with. The aforesaid Appendix
mainly contains (i).’Bihar Engineering Service Class I
Rules, 1939′; (ii).’Bihar Engineering Service Class II‟ and
(iii).„Bihar Subordinate Engineering Service‟, besides
other rules.
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92. Under Bihar Engineering Service Class I Rules,
1939′, the Rule 2(e) contains definition of ‘Promoted
officers’, which means an officer promoted to the Service
from the Bihar Engineering Service, Class II, either
substantively or on an officiating basis’. For ready
reference, the same is quoted as under:
2.Definitions.
(e). Promoted officers’, means an officer promoted
to the Service from the Bihar Engineering
Service, Class II, either substantively or on an
officiating basis‟
93. Rule 3 of Bihar Engineering Service Class I Rules,
1939′, deals with the strength of cadre from Executive
Engineers to Chief Engineer. For ready reference, the
same is quoted as under only to show the hierarchy of
posts:
“3.Strength of cadre.-The sanctioned strength of the service
shall be as follows.-
Permanent Temporary
Chief Engineer 1 ...
Deputy Chief Engineer .. 1
Superintending Engineer 4 6
Executive Engineers 21 17
including Under-Secretary
Total.. 26 24
94. Part III thereof provides the source of recruitment
which shall be made by (i) direct recruitment and (ii).by
promotion from the Bihar Engineering Service, Class II.
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2026:JHHC:11185-DBFor ready reference, Part III thereof, which provides
mode of recruitment is referred as under:
Part III – Recruitment
4. Sources of recruitment.
– Recruitment to the Service shall be made-
(i)by direct recruitment; and
(ii)by promotion from the Bihar Engineering Service,
Class II. Not less than one-third of the total number of
superior posts shall be filled by promotion, provided that
when no officer in the service who is fit to hold charge of a
division is available, the proportion of superior posts filled by
promotion may temporarily exceed one-third of the total
number of superior posts :
Provided further that the operation of this rule may be
held in abeyance, if necessary, by order of the Governor for
such time as he thinks fit, with a view to make outside
recruitment of men of properly graded ages and experience to
make up the strength of the Service in the initial stage.
5.The Governor shall decide the number of vacancies to be
filled by direct recruitment and by promotion whenever
vacancies occur.
95. Qualification has been provided under Part IV, as
per which in addition to the other eligibility criteria, the
eligibility criteria is as between two or more candidates
of the class referred to in proviso (i) who are graduates of
Indian Engineering Colleges, preference shall be given to
candidates who are graduates of the Bihar College of
Engineering. For ready reference, part IV thereof Rule 6,
is quoted as under:
6.Nationality and domiciles– No person shall be appointed
to the Service unless he is-
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(a)a citizen of the Indian Union;(b)of good character;
Provided that as between two or more candidates of
Indian domicile-
(i)preference shall be given to candidates who are natives of
the State of Bihar or whose parents are permanently
domiciled therein according to such definition of domicile as
may be laid down by the Governor from time to time
;(ii)as between two or more candidates of the class
referred to in proviso (i) who are graduates of Indian
Engineering Colleges, preference shall be given to
candidates who are graduates of the Bihar College of
Engineering;
(iii)if a candidate claims to be eligible by domicile, he shall
produce a certificate of domicile in Bihar from the District
Officer of the district in which he claims to be domiciled and
shall attach it to his application.
96. Rule 7 of Bihar Engineering Service Class I Rules,
1939 provides age, in which prescribing upper and rules
of relaxation of age of candidates, a note has been given,
wherein it has been provided that persons who hold
posts in Government service in a temporary or officiating
capacity on probation are eligible to apply for direct
appointment, provided that they are within the age
limits prescribed in this Rule. Persons who have been
confirmed in Government service are not eligible except
that members of the Bihar Engineering Service, Class II
are eligible for appointment by promotion in accordance
with Rules 17 and 18 of those Rules.
“7Age.
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– A candidate for direct recruitment must be under 27
and over 25 years of age on the 1st day of August of
the year in which the applications are invited:
Provided that the Governor may relax the age limits in
the case of candidate possessing special qualifications
or experience :Provided further that in the case of
candidates belonging to the scheduled castes and the
backward tribes, the upper age limit shall be 30 years.
Explanation. – For the purposes of this Rule and Rule
15-
(i)”Scheduled castes” shall have the same meaning as
in the Constitution of India;
(ii)”Backward tribes” shall have the same meaning as
in the Constitution of IndiaNote. – Persons who hold posts in Government service
in a temporary or officiating capacity on probation are
eligible to apply for direct appointment, provided that
they are within the age limits prescribed in this Rule.
Persons who have been confirmed in Government
service are not eligible except that members of
the Bihar Engineering Service, Class II are
eligible for appointment by promotion in
accordance with Rules 17 and 18 of those Rules.
97. Rule 8 contains the technical qualification, over
which much emphasis has been laid down, which says
that no person shall be appointment to the Service
unless he holds a degree or diploma from an Indian
Engineering College or is an Associate Member of the
Institution of Engineers (India) or holds a degree from
one of the Universities in the United Kingdom
enumerated in the Annexure to these Rules, or has
passed the examination mentioned therein. For ready
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reference, Rule 8 of the Rules, 1939 which says about
technical qualifications is quoted as under:
Technical qualifications.
– No person shall be appointment to the Service
unless he holds a degree or diploma from an
Indian Engineering College or is an Associate
Member of the Institution of Engineers (India) or
holds a degree from one of the Universities in the
United Kingdom enumerated in the Annexure to these
Rules, or has passed the examination mentioned
therein.
98. It is evident from the provision as contained in
Rule 8 thereof that no person shall be appointment to
the Service unless he holds a degree or diploma from an
Indian Engineering College or is an Associate Member of
the Institution of Engineers (India) or holds a degree
from one of the Universities in the United Kingdom
enumerated in the Annexure to these Rules, or has
passed the examination mentioned therein.
99. It is, thus, explicitly evident that diploma holder is
also accepted to be the eligibility qualification but
subject to the condition that the diploma is to be
obtained from an Indian Engineering College.
100. Part V of the Bihar Engineering Service Class I
Rules, 1939 deals with procedure for direct recruitment,
which is to be conducted by notifying the advertisement.
The mode of recruitment since is by two modes i.e.,
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direct appointment and by way of promotion, and as
such the procedure of recruitment by promotion has
also been provided under Rule 17 wherein it has been
provided that the Chief Engineers will nominate for
promotion of, officers from the Bihar Engineering
Service, Class II, the nomination will be made by
seniority and merit combined but more importance will
be attached to merit. For ready reference, the ‘procedure
for direct recruitment’ and ‘procedure for recruitment by
promotion’, as provided under the rule is quoted as
under:
Part V – Procedure for Direct Recruitment
9. Procedure for direct recruitment.
– The Commission shall advertise, in such manner as they
think fit, the number of vacancies in the Service to be filled
by direct recruitment and shall invite applications from
candidates eligible for appointment to the Service.
10.
(a)Every candidate shall submit his application in his own
hand- writing in the prescribed form to the Secretary to
the Commission so as to reach the Secretary not later
than on such date as may be notified by the Commission
in this behalf in each year.
Note. – The prescribed form and a copy of these Rules are
obtainable from the Secretary to the Commission.
(b)The application shall be accompanied by a Treasury
Challan of Rs. 10 as application fee, which will in no
circumstances be refunded. When the fee has been paid
on a first application no fee will be payable on a
subsequent application for the Service.
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(c)With his application a candidate must submit-
(i)evidence that he holds one of the educational
qualifications referred to in Rule 8 :(ii)certificates of
character and conduct from the heads of all the colleges
at which he has studied since he passed the
Matriculation Examination;(iii)evidence, in the form of an
acknowledgement from the District Officer of the district in
which he ordinarily resides or in which he claims to be
domiciled, that he has, not later than fourteen days before
the date fixed under Rule 10(2), requested that officer to
report to the Commission before the said date whether his
character and antecedents are such as to render him
suitable for appointment to the Service;
Note. – A candidate shall, when requesting the District
Officer to furnish a report to the Commission on his
character and antecedents under sub-clause (iii) of clause
(c), furnish as reference the names of two persons who
know him in private life and are not relatives. Such
references should not include College professors or
principals unless they know the candidate at his home. A
candidate must not file written testimonials.
(iv)evidence of age, which shall ordinarily be the original
Matriculation certificate or its equivalent in original; and
(v)if he claims to be eligible for appointment under proviso
(iii) of Rule 6, a certificate of domicile granted by the
District Officer of the district in which he claims to be
domiciled;
(vi)a certificate of health and physical fitness from a
registered medical practitioner in the prescribed form.
Note. – The certificates and other documents required to be
sent by a candidate shall be submitted in original. If any
certificate or other document required cannot for any
reason be submitted in original, a true copy of it may be
sent, but in that case the copy should bear a certificate
from a gazetted officer stating (a) that he has been the
original and that the copy is a true copy and (b) the
reasons why the original cannot be sent with the
application.
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17Procedure for recruitment by promotion.
(a)When the Governor has decided that any
vacancy or vacancies in the service shall be filled
by promotion, the Chief Engineers will nominate
for promotion of, officers from the Bihar
Engineering Service, Class II, the nomination will
be made by seniority and merit combined but more
importance will be attached to merit. The officers
nominated by the Chief Engineer shall be arranged in
order of preference and the number should ordinarily
be 50 per cent in excess of the number of vacancies to
be filled.
(b)The Chief Engineer shall submit the list of such
candidates to the Governor who will direct such list to
be sent to the Commission with all relevant papers
including those for any officers whose supersession is
proposed. After examination of the papers, the
Commission shall submit their recommendations to the
Governor.
18.The final selection of officers to be promoted shall
be made by the Governor after considering the
recommendations made by the Commission under
Rule 17(b) and the officers so selected shall be
promoted to superior posts.
101. Chapter VI deals with ‘training and probation’,
which contains the provision as under Rule 19 which
says that Officers recruited directly to the Service shall
be on probation for two years and officers promoted
from the Bihar Engineering Service, Class II, shall be on
probation for one year. This Provision clarifies the
provision of the fulfillment of the post by way of
promotion from the Class II Engineering Service. For
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ready reference, Part VI of the Rules, 1939 is quoted as
under:
Part VI – Training and Probation
19. Period of Probation.
– Officers recruited directly to the Service shall
be on probation for two years and officers
promoted from the Bihar Engineering Service,
Class II, shall be on probation for one year. At any
time during the probationary period the Governor may
dispense with the service of an officer recruited
directly after giving him one month’s notice and may
revert a promoted officer to his substantive
appointment in the Bihar Engineering Service, Class
II.(ii)An officer whose services are dispensed with or
who is reverted under clause (i) shall not be entitled to
any compensation.
20. Confirmation.
– (i) A probationer shall be confirmed in his
appointment provided there is a permanent
vacancy; and(a)he has completed the prescribed
period of probation;(b)he has passed the
prescribed professional and departmental
examination:Provided that nothing in this clause
shall apply to promoted officer;(c)the Governor is
satisfied that he is fit for confirmation.(ii)All
confirmations under this Rule will be notified in
the Bihar Gazette.
102. So far ‘Bihar Engineering Service Class II’ is
concerned, under Rule 1, it has been stated that the
under-Class II services, the recruitment is by two means
i.e., by direct recruitment in accordance with the rules
in Part II or by way of promotion as described under
Part III.
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103. For ready reference, Rule 1, as also relevant
portion of Part II and Part III of the ‘Bihar Engineering
Service Class II’ is quoted as under:
Rule 1.
The Service shall be recruited-
(i).by direct recruitment in accordance with the rules in
Part II, or
(ii).by the promotion or transfer of officers already in
Government service, permanent or temporary, in
accordance with the rules in Part III.
PART II :
Rule 3.
Except under the special orders of the Governor, a
candidate for appointment to the service must be a citizen
of the Indian Union.
Rule 4.
A candidate must-
(a) be of an age not below twenty-three years and not
exceeding twenty-five years on the first day of August in
the year in which applications are invited:
Provided that the State Government may, in special cases,
relax the age-limits:
Provided further that in the case of candidates belonging
to the Scheduled Castes and Scheduled Tribes, the upper
age-limit shall be twenty-eight years.
Explanation. -For the purpose of this rule, ‘Scheduled
Castes’ and Scheduled Tribes’ shall have the same
meaning as in the Constitution of India.
(b) be of good character;
(c) be of sound health, good physique and active
habits and free from organic defects or bodily infirmity;
and
(d) (i) hold a degree in Civil Engineering
from an Indian University or a diploma in Civil
Engineering College; or
(ii) be an Associate Member of the Institution of
Engineers, India, or have passed Sections ‘A’ and ‘B’ of
the Associate Membership Examination of the
Institution of Engineers (India) or possess any other
educational qualifications recognized by the Institution
of Engineers (India) as being equivalent to pass in
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Sections ‘A’ and ‘B’ of the Associate Membership
Examination, or
(iii) hold a University degree or a diploma from a
Civil Engineering College in the United Kingdom
or be an Associate Member of the Institution of
Civil Engineers.
Note.-Persons who hold posts in Government
service in a temporary or officiating capacity or
on probation are eligible to apply for direct
appointment subject to the provisions of this rule.
Persons who have been confirmed in Government
service are not so eligible except that-
(i). members of the Sub-ordinate Engineering
Service and (ii) members of other services,
possessing qualifications specified in clause (d)
are eligible for appointment by promotion or by
transfer in accordance with the procedure laid
down in Part III of these rules.
PART III: PROMOTION OF OFFICERS ALREADY IN
GOVERNMENT SERVICE
Rule 11.
(a) The Chief Engineer, shall nominate for
appointment to the Service such number of Officers
not exceeding one and a half times the number of
vacancies to be filled as may be fixed in each year
by the Governor. The Officers nominated by the
Chief Engineer will be arranged in order of
preference.
(b) The Chief Engineer shall send all papers
relating to the candidates nominated by him direct
to the Commission together with relevant papers of
any officer whose super session is proposed and
shall at the same time submit list of such
candidates to the Governor.
104. Thus, it is evident that the post under the Class II
Engineering Service is to be filled up by direct
recruitment in accordance with the Rules in Part II or by
promotion, or transfer of officer who is already in
government service, permanent or temporary, as
provided in part III.
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105. The direct recruitment has been provided under
Part II and the eligibility criteria so far as educational
qualification is concerned has been provided under Rule
4, under Explanation d, as per which a candidate must
hold a degree in Civil Engineering from an Indian
University or diploma in Civil Engineering College; or a
candidate must be an Associate Member of the
Institution of Engineers, India, or have passed Sections
‘A’ and ‘B’ of the Associate Membership Examination of
the Institution of Engineers (India) or possess any other
educational qualifications recognized by the Institution
of Engineers (India) as being equivalent to pass in
Sections ‘A’ and ‘B’ of the Associate Membership
Examination, or a candidate must hold a University
degree or a diploma from a Civil Engineering College in
the United Kingdom or be an Associate Member of the
Institution of Civil Engineers.
106. In the note attached with Rule 4, it has been
mentioned that the persons who hold posts in
Government service in a temporary or officiating
capacity or on probation are eligible to apply for direct
appointment subject to the provisions of this rule.
107. Persons who have been confirmed in Government
service are not so eligible except that- (i).members of the
Sub-ordinate Engineering Service and; (ii) members of
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other services, possessing qualifications specified in
clause (d) are eligible for appointment by promotion or
by transfer in accordance with the procedure laid down
in Part III of these rules.
108. From the discussion of above rules under the
Bihar Engineering Service Rules Class II, it is evident
that for promotion to Class II from Subordinate
Engineering Service, a candidate must possess the
qualifications specified in clause (d). At the cost of
repetition, it requires to mention that it is evident that
under Rule 8 i.e., the technical qualification that a
candidate must hold a degree in Civil Engineering from
an Indian University or a diploma in Civil Engineering
College; or a candidate must be an Associate Member of
the Institution of Engineers, India, or have passed
Sections ‘A’ and ‘B’ of the Associate Membership
Examination of the Institution of Engineers (India) or
possess any other educational qualifications recognized
by the Institution of Engineers (India) as being
equivalent to pass in Sections ‘A’ and ‘B’ of the Associate
Membership Examination, or a candidate must hold a
University degree or a diploma from a Civil Engineering
College in the United Kingdom or be an Associate
Member of the Institution of Civil Engineers. Meaning
thereby, a person working in Bihar Subordinate
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Engineering Service can be promoted to Indian
Engineering Service Class II subject to condition of
fulfilment as under Clause 4 (d). But, herein admittedly,
in the case at hand, the petitioner is possessing diploma
from State Polytechnic College and not from the
institutions as mentioned under Rule 4(d).
109. Now, coming to Appendix II, wherein the rules
regarding appointments, promotion, etc., applicable to
the Bihar Subordinate Engineering Service has been
mentioned.
110. Rule 1 thereof prescribes that all permanent
appointments to the Bihar Subordinate Engineering
Service either by absorption of temporary or work-
charged Overseers and Estimators, or by direct
recruitment, will be made by the Chief Engineer
provided that, in the case of direct recruitment
(permanent or temporary) appointment will be made on
the advice of the committee of senior officers constituted
for the purpose. The committee will consist of three
members including the Chief Engineer who will be the
chairman of the committee. The other two members will
be nominated by him with the approval of Government
in the Public Works Department from time to time.
111. The qualification for such candidate has explicitly
been mentioned as under Rule 2, which says that a
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certificate or diploma in the Subordinate Engineering in
the respective branches of Engineering from any
institution recognised by the State Government for this
purpose will be the minimum technical qualifications
required.
112. For ready reference, Rule 1 and 2 thereof, is quoted
as under:
“APPOINTMENT
“1. All permanent appointments to the Bihar
Subordinate Engineering Service either by absorption
of temporary or work-charged Overseers and
Estimators, or by direct recruitment, will be made by
the Chief Engineer provided that, in the case of direct
recruitment (permanent or temporary) appointment will
be made on the advice of the committee of senior
officers constituted for the purpose. The committee will
consist of three members including the Chief Engineer
who will be the chairman of the committee. The other
two members will be nominated by him with the
approval of Government in the Public Works
Department from time to time.
QUALIFICATIONS REQUIRED OF CANDIDATES
2. A certificate or diploma in the Subordinate
Engineering in the respective branches of
Engineering from any institution recognised by
the State Government for this purpose will be the
minimum technical qualifications required.”
113. The qualification for appointment under Bihar
Subordinate Engineering Service is very specific explicit,
which prescribed the minimum technical qualification
to the effect that the candidate must possess a
certificate or diploma in the Subordinate Engineering in
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the respective branches of Engineering from any
institution recognised by the State Government for this
purpose will be the minimum technical qualifications
required.
114. Furthermore, for appointment under Bihar
Engineering Service Class II, two modes have been
mentioned under the Statute i.e., (i). by way of direct
appointment and (ii). by way of promotion. So far direct
appointment is concerned at Rule 4 Explanation part at
d(i), it is mentioned that a candidate must hold a degree
in Civil Engineering from an Indian University or a
diploma in Civil Engineering College. Further at ‘Note’ to
Rule 4, it is mentioned that persons who have been
confirmed in Government service are not so eligible
except that- (i).members of the Sub-ordinate
Engineering Service and (ii) members of other services,
possessing qualifications specified in clause (d) are
eligible for appointment by promotion or by transfer in
accordance with the procedure laid down in Part III of
these rules.
115. Now, comparing the ‘technical qualification’ of
Bihar Subordinate Engineering Service, 1939 with the
‘technical qualification’ of Bihar Engineering Service
Class I Rules, wherein at Rule 8, the ‘technical
qualification’ has been mentioned which in unequivocal
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term says that ‘No person shall be appointment to the
Service unless he holds a degree or diploma from an
Indian Engineering College or is an Associate Member of
the Institution of Engineers (India) or holds a degree
from one of the Universities in the United Kingdom
enumerated in the Annexure to these Rules, or has
passed the examination mentioned therein’ and
admittedly, the petitioners are not having such degree
rather they have diploma from State Polytechnic
Institute, as such they are not entitled to be inducted in
Class I Engineering Service.
116. Admittedly, herein the petitioners neither possess
the qualification as under Rule 4 OR Part III [Promotion
of Officers already in Government Service] of Bihar
Engineering Service Class II Rules; not possess
‘technical qualification’ as mentioned under Rule 8 of
Bihar Subordinate Engineering Class Service, 1939.
117. Since we are dealing herein with the issue of
diploma certificate which the writ petitioners have
possessed and as such this Court is to consider as to:
Whether the diploma certificate obtained from the
State Polytechnic Institute can be considered to be
the eligibility criteria for a candidate to be in Class II
Engineering Service or the Class I Engineering
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promotion etc.?
118. It is settled position of law that things are to be
done strictly in accordance with law as there cannot be
any deviation and if any deviation is there in the
decision- making process the same will be nullity in the
eye of law.
119. Reference may be made to the judgment rendered
by the Hon’ble Apex Court in the case of Babu Verghese
& Ors. vs. Bar Council of Kerala & Ors., reported in
(1999) 3 SCC 422, wherein, it has been held at
paragraphs-31 and 32 as under:
“31. It is the basic principle of law long settled that if
the manner of doing a particular act is prescribed
under any statute, the act must be done in that
manner or not at all. The origin of this rule is
traceable to the decision in Taylor v. Taylor which
was followed by Lord Roche in Nazir Ahmad v. King
Emperor who stated as under:
“[W]here a power is given to do a certain thing in a
certain way, the thing must be done in that way or
not at all.”
32. This rule has since been approved by this Court
in Rao Shiv Bahadur Singh v. State of V.P. and
again in Deep Chand v. State of Rajasthan. These
cases were considered by a three- judge bench of this
Court in State of U.P. v. Singhara Singh and the
rule laid down in Nazir Ahmad case was again
upheld. This rule has since been applied to the
exercise of jurisdiction by courts and has also been
recognized as a statutory principle of administrative
law.”
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120. Reference may also be made to the judgment
rendered by the Hon’ble Apex Court in the case of Zuari
Cement Ltd. v. Regional Director ESIC Hyderabad (in
Civil Appeal No. 5138-40/2007), reported in (2015) 7
SCC 690, wherein, it has been held at paragraph-14 as
under:
“14. As per the scheme of the Act, the appropriate
Government alone could grant or refuse exemption.
When the statute prescribed the procedure for grant
or refusal of exemption from the operation of the Act,
it is to be done in that manner and not in any other
manner. In State of Jharkhand v. Ambay Cements, it
was held that :
26…. it is the cardinal rule of interpretation that
where a statute provides that a particular thing
should be done, it should be done in the manner
prescribed and not in any other way.”
121. The admitted case herein is that the writ
petitioners have obtained diploma from State
Polytechnic Institute, which we have found from the
averments made to that effect made in the writ petitions.
Therefore, submission advanced on behalf of learned
counsel for the petitioner that diploma from State
Polytechnic Institute can well be considered for
promotion to Class II and Class I Engineering Service
has no leg to stand.
122. Further claim has been made for promotion on the
basis of promotions granted to juniors, excluding the
petitioners without considering the case of the
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petitioners, as required under Rule 11 of Class II Rules
and Rule 17 of the Class I Rules. Submission has been
made that two sets of juniors have been appointed.
123. The first set of diploma holder Junior Engineers,
are junior to the petitioners, has have been appointed
after the appointment of petitioners on these posts,
details of which have been mentioned in part B of
Annexure 17 to the writ petition. It has been submitted
that they have been granted promotions to the post of
Assistant Engineer; Executive Engineer and
Superintendent Engineer even though their qualification
is diploma in engineering from an Institute i.e.,
Government Polytechnic, as that of petitioners.
124. The second set of juniors are degree hold junior
engineer, who were juniors to petitioners have been
appointed after the petitioners and have been granted
promotion to the post of Assistant Engineer, Executive
Engineer and Superintendent Engineers from the due
date.
125. In this regard, submission has been made that
such discrimination is purported to be in compliance of
order dated 08.11.2011 passed in LPA No. 256 of 2011
passed by the Division Bench of this Court and
judgment dated 23.04.2014 passed by Hon’ble Supreme
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Court in the case of Civil Appeal No. 4809 of 2024 [State
of Jharkhand & Ors. Vs. Kamal Prasad].
126. It is well settled principle of law that the concept of
equality is a positive concept which cannot be enforced
in a negative manner. The Court has to abide by the
law/rules/regulations involved in the lis while coming to
its logical conclusion. Therefore, the parity as claimed
by the petitioners, even if it is accepted, cannot be
extended to them when the law does not permit, as
discussed herein above. Reference in this regard be
made to the judgment rendered by the Hon’ble Apex
Court in State of Bihar & Ors. vs. Kameshwar
Prasad Singh & Anr., AIR 2000 SC 2306 wherein at
paragraph-30 it has been laid down hereunder as :-
“The concept of equality as envisaged under Art. 14 of
the Constitution is a positive concept which cannot be
enforced in a negative manner. When any authority is
shown to have committed any illegality or irregularity
in favour of any individual or group of individuals
other cannot claim the same illegality or irregularity
on ground of denial thereof to them. Similarly wrong
judgment passed in favour of one individual does not
entitle others to claim similar benefits.”
127. Further the Hon’ble Apex Court in the case of
Basawaraj & Anr. Vs. Special Land Acquisition
Officer, (2013) 14 SCC 81, has reiterated the same
principle wherein at paragraph 8, it has been observed
as under:
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2026:JHHC:11185-DB“8. It is a settled legal proposition that Article 14 of
the Constitution is not meant to perpetuate illegality
or fraud, even by extending the wrong decisions
made in other cases. The said provision does not
envisage negative equality but has only a positive
aspect. Thus, if some other similarly situated persons
have been granted some relief/benefit inadvertently
or by mistake, such an order does not confer any
legal right on others to get the same relief as well. If a
wrong is committed in an earlier case, it 22 cannot be
perpetuated. Equality is a trite, which cannot be
claimed in illegality and therefore, cannot be enforced
by a citizen or court in a negative manner. If an
illegality and irregularity has been committed in
favour of an individual or a group of individuals or a
wrong order has been passed by a judicial forum,
others cannot invoke the jurisdiction of the higher or
superior court for repeating or multiplying the same
irregularity or illegality or for passing a similarly
wrong order. A wrong order/decision in favour of any
particular party does not entitle any other party to
claim benefits on the basis of the wrong decision.
Even otherwise, Article 14 cannot be stretched too far
for otherwise it would make functioning of
administration impossible.”
128. Likewise, the Hon’ble Apex Court in Kulwinder
Pal Singh & Anr Vs. State of Punjab & Ors, (2016) 6
SCC 532 at paragraph 16 held hereunder as:
“16. The learned counsel for the appellants contended
that when the other candidates were appointed in the
post against dereserved category, the same benefit
should also be extended to the appellants. Article 14
of the Constitution of India is not to perpetuate
illegality and it does not envisage negative equalities.
In State of U.P. v. Rajkumar Sharma it was held as
under: ” 15. Even if in some cases appointments have
been made by mistake or wrongly, that does notPage | 81
2026:JHHC:11185-DBconfer any right on another person. Article 14 of the
Constitution does not envisage negative equality, and
if the State committed the mistake it cannot be forced
to perpetuate the same mistake.”
129. Thus, the submission advanced on behalf of
petitioners claiming parity did not sustain for the reason
and law laid down by Hon’ble Apex Court, as referred
hereinabove.
130. Learned senior counsel for the petitioners
appearing in W.P.(S) No. 654 of 2018 and W.P. (S) No.
2189 of 2018 has submitted that the writ petitioners
have been granted promotion to the post of Assistant
Engineer in pursuance to the interim order dated 4th
September, 2018 passed by this Court on the
Interlocutory Application being I.A. No. 6171 of 2018
filed by the petitioners, as such after having been
inducted in Class II Engineering Service, they are
entitled to get promotion to Class I posts.
131. This Court perused the order dated 4th September,
2018 passed by this Court on the Interlocutory
Application being I.A. No. 6171 of 2018, wherefrom it is
evident that the Co-ordinate Bench, taking note of the
fact that Jharkhand Engineering Service Recruitment
Rules, 2016 has already been stayed vide order dated
17th August, 2017 in W.P. (S) No.3027 of 2016 and other
batch matters, as such liberty was granted to the
authorities to consider the case of the writ petitioner for
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entitlement for promotion applying the 1939 Rules and
should bring to our notice his position on the next date
of hearing. However, it was made clear that the Court is
not passing of any further order on implementation of
1939 Rules.
132. From plain reading of order dated 4th September,
2018 passed by this Court on the Interlocutory
Application being I.A. No. 6171 of 2018, it is evident
that this Court has granted liberty to consider the case
of the petitioners on the touchstone of Rules, 1939 as
Rules, 2016 was stayed by the Co-ordinate Bench.
133. Herein, as per discussions made hereinabove, the
petitioners are not entitled to get promotion as per
Engineering Services Class I Rules, 1939.
134. But the respondents-State, without taking into
consideration the Rules in particular Rule 8 of the
Rules, 1939 which speaks about technical qualification,
the petitioners do not possess the requisite technical
qualification for promotion to higher posts of Class I, as
mentioned in the Rules, has taken decision.
135. Law is well settled that the requisite eligibility
criteria to hold the post by way of promotion or
appointment is the sine qua non and if the eligibility
criteria is being lacking then such appointment to the
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post by way of promotion or direct recruitment is nullity
in the law.
136. In the case of Yogesh Kumar v. Govt. of NCT,
Delhi, (2003) 3 SCC 548 it has been observed by the
Hon’ble Apex Court that Recruitment to public services
should be held strictly in accordance with the terms of
advertisement and the recruitment rules, if any.
Deviation from the rules allows entry to ineligible
persons and deprives many others who could have
competed for the post. Relevant paragraph of the
aforesaid judgment is being quoted as under:
“8.——Recruitment to public services should be
held strictly in accordance with the terms of
advertisement and the recruitment rules, if any.
Deviation from the rules allows entry to
ineligible persons and deprives many others who
could have competed for the post. Merely
because in the past some deviation and
departure was made in considering the BEd
candidates and we are told that was so done
because of the paucity of TTC candidates, we
cannot allow a patent illegality to continue. The
recruitment authorities were well aware that
candidates with qualification of TTC and BEd are
available yet they chose to restrict entry for
appointment only to TTC-pass candidates. It is open
to the recruiting authorities to evolve a policy of
recruitment and to decide the source from which
the recruitment is to be made. So far as BEd
qualification is concerned, in the connected appeals
(CAs Nos. 1726-28 of 2001) arising from Kerala which
are heard with this appeal, we have already taken
the view that BEd qualification cannot be treated as aPage | 84
2026:JHHC:11185-DBqualification higher than TTC because the nature of
the training imparted for grant of certificate and for
degree is totally different and between them there is
no parity whatsoever. It is projected before us that
presently more candidates available for recruitment to
primary school are from BEd category and very few
from TTC category. Whether for the aforesaid reasons,
BEd qualification can also be prescribed for primary
teachers is a question to be considered by the
authorities concerned but we cannot consider BEd
candidates for the present vacancies advertised as
eligible. In our view, the Division Bench of the Delhi
High Court was fully justified in coming to the
conclusion that BEd candidates were rightly excluded
by the authorities from selection and appointment as
primary teachers. We make it clear that we are not
called upon to express any opinion on any BEd
candidates appointed as primary teachers pursuant
to advertisements in the past and our decision is
confined only to the advertisement which was under
challenge before the High Court and in this appeal.”
137. Thus, in view of the aforesaid, this Court is of the
view that the state respondent has not properly
appreciated the interim order passed by this Court
dated 4th September, 2018 and even without considering
the eligibility criteria of the writ petitioner, as per
provision made under Rule 8 of Rules, 1939, they have
been granted promotion.
138. Furthermore, it is settled principle of law that
fixation of qualification for particular post is exclusive
domain of the Government/employer and falls outside
the judicial review and even the equivalence of
qualification is not a matter of judicial review.
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139. In Delhi Subordinate Services Selection Board
v. Praveen Kumar [2016 SCC OnLine SC 1549], it has
been held by the Hon’ble Apex Court that it is the
employer’s prerogative to decide the age limit and
academic suitability of candidates which they wish to
employ and so long as the same are not contradictory to
the academic eligibility as prescribed by the NCTE Act.
140. In the case of Chandigarh Administration
through the Director Public Instructions (Colleges),
Chandigarh v. Usha Kheterpal Waie and Others
[(2011) 9 SCC 645], the Hon’ble Apex Court has held at
paragraph 22 and 23 which read as under :-
“22. It is now well settled that it is for the rulemaking
authority or the appointing authority to prescribe the
mode of selection and minimum qualification for any
recruitment. The courts and tribunals can neither
prescribe the qualifications nor entrench upon the
power of the authority concerned so long as the
qualifications prescribed by the employer is
reasonably relevant and has a rational nexus with
the functions and duties attached to the post and are
not violative of any provision of the Constitution,
statute and rules. (See J. Ranga Swamy v. Govt. of
A.P. [(1990) 1 SCC 288 : 1990 SCC (L&S) 76] and P.U.
Joshi v. Accountant General [(2003) 2 SCC 632 : 2003
SCC (L&S) 191] .) In the absence of any rules, under
Article 309 or statute, the appellant had the power to
appoint under its general power of administration and
prescribe such eligibility criteria as it is considered to
be necessary and reasonable. Therefore, it cannot be
said that the prescription of PhD is unreasonable.
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23.The Tribunal and the High Court have held that in
the years 1989 and 1991, the Tribunal had accepted
that the earlier administrative instructions dated 20-
8-1987 which required the UT cadre employees to be
considered for the post have to be followed. The fact
that at that time PhD degree was not insisted upon,
does not mean that for all times to come, PhD degree
could not be insisted. PhD degree was made a
qualification because UGC guidelines required it for
direct recruitment post and the UPSC approved the
same. Therefore, merely because on some earlier
occasions, the posts of Principal were filled by UT
cadre lecturers without PhD degree, it cannot be
argued that the PhD degree cannot be prescribed
subsequently.”
141. Thus, the fixation of qualifications, eligibility
criteria, and service conditions for a particular post lies
within the exclusive domain of the employer or the
government. Judicial review in these matters is limited,
as courts generally do not interfere with the employer’s
discretion to define specialized qualifications, provided
they are not arbitrary.
142. Learned senior counsel for the petitioners has laid
much emphasis on the case of A. S. Parmar Vs. State
of Haryana (supra) rendered by Hon’ble Supreme
Court wherein, identical words used in Rule 6 of Class I
Engineering Service Rules of the State of Haryana which
laid down qualification for entry into Class I service
under Punjab Service of Engineers, Class I, Public
Works Department (Building and Roads Branch) Rules,
1960 namely “no person shall be appointed to the
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service unless” has been dealt with. The Hon’ble Apex
Court held that for ascertaining the intention of the
framers: (a) it is necessary to refer to the provisions of
both Class I and Class II Rules (b) whether all the
clauses of the Rule are to be read cumulatively or
separately and the intention has to be found from the
structure of sentence and contents of different clauses
and (c) had the words like “also” “in addition to what is
contained in Rule 6(a)” were provided in provision
regulating appointment by way of promotion then alone
“no person” viz qualification for appointment to service
would apply to appointment by way of promotion.
Applying the above identical words under Rule 6(a) of
the Rules it was held by Hon’ble Supreme Court to apply
only to direct recruitment.
143. This Court in order to assess the applicability of
aforesaid case, has gone through the aforesaid judgment
in entirety and found therefrom that the judgment has
been passed in the backdrop of the fact of the applicable
rule wherein it has been provided that if educational
qualification is not there then the same is to be meted
out by way of experience.
144. Therefore, the judgment rendered in the case of A.
S. Parmar Vs. State of Haryana (supra) is not at all
applicable in the case at hand, as under paragraph 8 of
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the said judgment it has been mentioned that under
Rule 6 (b) of the Punjab & Haryana Class-I Engineer
Rules, the experience of eight years working as Assistant
Engineer (Class-II) has been statutorily recognized as
alternative qualification to that of the Degree by virtue of
legislative indent, which is absent in Rule-8 of the
Bihar/Jharkhand Class-I Rule of 1939, nor such
legislative indent can be introduced by Judicial Fiat. For
ready reference, relevant paragraph of the judgment is
quoted as under:
“6. We shall now proceed to deal with the Class I Rules.
The Class I Service comprises four cadres — Assistant
Executive Engineers, Executive Engineers, Superintending
Engineers and Chief Engineers (Rule 3). A “member of
service” means an officer appointed substantively to a cadre
post and includes (a) in the case of direct appointment an
officer on probation or such an officer who having
successfully completed his probation awaits appointment to
a cadre post and in the case of appointment by transfer an
officer who is on probation or who having successfully
completed his probation awaits appointment to a cadre post
provided such officer does not have a lien on a substantive
post in any government department [Rule 2(12)]. “Assistant
Executive Engineer” means a member of the service in the
junior scale of pay [Rule 2(2)]. All others in the Class I Service
are in the senior scale or in a higher scale. Rule 5 of the
Class I Rules provides that therecruitment to the Class I
Service shall be made by the Government in any one or more
of the following methods — (i) by direct appointment, (ii) by
transfer of an officer already in the service of a State
Government or of the Union or (iii) by promotion from Class II
Service. All first direct appointments to the Class I Service
can be only to the posts of Assistant Executive: Engineer
[Rule 5(4)]. An officer promoted from the Class II Service has
to be recruited to the cadre of Executive Engineers [Rule 5(5)].
The posts of Executive Engineers can be filled up by
promotion of Assistant Executive Engineers also (Rule 9).
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2026:JHHC:11185-DB“Direct appointment” means an appointment by open
competition but does not include (a) an appointment by
promotion and (b) an appointment by transfer of an officer
already in the service of a State Government or of the Union
[Rule 2(7)]. The Explanation to Rule 2(7) provides that a Class
II officer who enters the Class I Service by open competitive
selection shall, for the purposes of Class I Rules, be deemed
to have entered the Class I Service by direct appointment.
This means that a member of the Class II Service can either
be recruited directly to the cadre of Assistant Executive
Engineers [vide Rule 5(4)] or promoted to the cadre of
Executive Engineers [vide Rule 5(5)]. Now we set out below
Rule 6 of the Class I Rules which lays down the
qualifications for entering the Class I Service. Rule 6 reads:
“6. Qualifications.–No person shall be appointed to
the Service, unless he–
(a) possesses one of the University degrees or other
qualifications prescribed in Appendix B of these rules:
Provided that Government may waive this
qualification in the case of a particular officer
belonging to Class II Service;
(b) in the case of an appointment by promotion from
Class II Service has eight years’ completed service in
Class II; and has passed the professional examination
of the Department as provided in Rule 15 infra;
(c) being a person to be appointed to the service by
direct recruitment, obtains from the Standing Medical
Board a certification of mental and physical fitness
after being examined in accordance with the
regulations prescribed in Appendix C and is
considered by the Medical Authority to be fit in all
respects for active outdoor duties;
(d) is a person with a satisfactory character and
antecedents, verification in respect of which shall be
arranged through appropriate Government agency
except in cases where such verification may have
already been made at the time of his entry into
Government service;
(e) has not more than one wife living or, in the case
of a woman, is not married to a person already having
a wife living:
Provided that Government may, if satisfied that
there are special grounds for doing so, exempt any
person from the operation of this condition.”
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12. Our attention is drawn by the learned counsel for the
petitioners in the writ petition out of which these appeals
arise to the decision in O.P. Bhatia case [ILR (1980) 1 P & H
470] in which a rule similar to Rule 6 of the Class I Rules
arose for consideration. That rule is Rule 6 of the Punjab
Service of Engineers, Class I, PWD (Irrigation Branch) Rules,
1964. The relevant part of Rule 6 of the said Irrigation
Branch Rules reads as follows:
“6. Qualifications.–No person shall be appointed to
the Service unless he–
(a) possesses one of the University degrees or other
qualifications prescribed in Appendix B of these rules:
Provided that Government may waive this
qualification in the case of a particular officer
belonging to Class II Service;
(b) in case of an appointment by promotion from
Class II Service, has completed in that class of Service,
for a period of ten years from the commencement of
these rules, six years’ service and after that period
eight years’ service:
Provided that if it appears to be necessary to
promote an officer in the public interest, the
Government may for reasons to be recorded in writing,
either generally or in any individual case reduce the
period of six or eight years to such extent as it may
deem proper in consultation with the Finance
Department.
Explanation.–For the purposes of this clause in
computing the period of six or eight years any service
rendered as a Temporary Engineer shall be taken into
account….”
13. The High Court held in that case that a member of the
Class II Service in the Irrigation Branch of the PWD should
possess a degree to be eligible to be promoted as an
Executive Engineer in the Class I Service in the Irrigation
Branch of the PWD. The High Court was of the view that the
omission of the word “directly” which was in Rule 7 of the
1956 Rules which were replaced by the Irrigation Branch
Rules of 1964 led to the inference that Rule 6(a) of the 1964
Rules was applicable both to the direct recruitment and
promotions from the Class II Service. In order to understand
the above reason, we have ourselves looked into the said
1956 Rules. Rule 7 of the said 1956 Rules which dealt with
only appointments to the posts of Assistant Executive
Engineers read as follows:
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2026:JHHC:11185-DB“7. Qualifications for appointment.–No person shall
be appointed directly to the Service unless he–
(a) possesses one of the University degrees or other
qualifications prescribed in Appendix B to these rules;
(b) has, in the case of a candidate for appointment on
the advice of the Commission passed such competitive
examination or such other test as the Commission may
prescribe for appointment to the Service; and
(c) has obtained from a Standing Medical Board in
the State of Punjab, a certificate of mental and
physical fitness as prescribed by the regulations in
Appendix C and is considered by the Board to be fit in
all respects for active outdoor duty:
Provided that in the case of officers belonging to the
Class II Service the State Government may, after
consultation with the Commission, waive the
qualifications required by clause (a):
Provided further that other things being equal,
preference will be given to a candidate who has
himself worked for the cause of national independence
or has rendered some outstanding social or public
service.”
18. It is indisputable that if the Government wishes to
appoint only holders of degrees to the Class I Service, it may
do so by promulgating appropriate rules. That power is
beyond question and it is not, therefore, necessary to refer to
those decisions which lay down that classification on the
basis of educational qualifications of officers belonging to a
cadre for purposes of promotion to a higher cadre is
permissible. The question, however, in these cases is
whether the Class I Rules as they now exist debar the
promotion of an Assistant Engineer in the Class II Service
who does not possess a degree to the cadre of Executive
Engineers even when he satisfies the requirements of clause
(b) of Rule 6 of the Class I Rules and is selected by the Public
Service Commission. Our answer is in the negative.
19. Since Rule 6(a) of the Class I Rules is not applicable to
the Class II officers who are to be promoted to the Class I
Service, the question whether the order of relaxation made in
the case of the promotees is validly passed or not becomes
immaterial. We, therefore, set aside the judgment of the High
Court and dismiss the writ petition filed before the High
Court. Since we have disposed of these appeals on a ground
different from the ground urged before the High Court, we
express no opinion on the validity of the order of relaxation.
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145. From perusal of the aforesaid Rule-6(a) of Punjab
Rule it is manifest that same is exclusively applicable for
direct recruitment to the post of Assistant Executive
Engineer, Executive Engineer, Superintending Engineer
and Chief Engineer, from amongst the person having
University degrees or other qualification as prescribed in
Appendix-B of the said Rule which bears the list of only
Degree or qualification to the Degree courses in
Engineering, whereas Rule-6 (b) is exclusively applicable
for promotion from Class-II cadre to Class-I post of
Executive Engineer upon completion of Eight Years’
service by way of experience.
146. Thus, it is evident that since there is no such
provision in Rule-8 of Bihar Engineering Services Class I
Rules, 1939, which prescribes only qualification i.e.
Degree or diploma in Engineering from an Indian
Engineering College either by direct appointment or for
appointment by way of promotion, the judgment of A.S.
Pramar is totally non applicable in the present case and
therefore does not supersedes the Division Bench
Judgment of the Hon’ble Patna High Court in S.K. Md.
Amir Ansari Vs. State of Bihar (supra).
147. This Court also gone into the judgment rendered in
the case of S.K. Md. Amir Ansari Vs. State of Bihar
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(supra), whereupon much emphasis has been laid by
learned counsel for respondent nos. 6 and 7. It is
evident from the said judgment that the Court after
going through the entire scheme of Rules, 1939 in
particular Rule 8 held that polytechnic three years
diploma holders are not at all eligible for promotion to
Class I Cadre. For ready reference, the relevant portion
of the judgment is quoted as under:—-
7. Clause (a) of Rule-6 of the Class-I Rules say that no
person shall be appointed to the service unless he possesses
one of the University degrees or other qualifications
prescribed in Appendix ‘B’ of the Class-I Rules. It is further
provided therein that Government may waive this
qualification in the case of a particular officer belonging to
the Class-II Service. Clause- (a) of Rule-6 no doubt applies to
all direct recruitments. If a Class-II Officer seeks to enter the
Class-I service by direct recruitment i.e. by recruitment by
open competition as provided by the Explanation to Rule 2(7),
he should possess a degree as provided in Rule 6 (a) unless
under the proviso to Rule-6 (b) Government waives the said
qualification in his case. A direct recruit has also to satisfy
the condition in clause (c) of Rules which deals with the
production of a medical certificate as provided therein and
the condition in clause (d) of Rule-6 which provides for the
verification of his character and antecedents except where
such verification may have already been made at the time of
his entry into Government Service. He should also not suffer
from the disqualification mentioned in clause (c) of Rule-6. A
direct recruit shall also have to comply with Rule-15 of the
Class-I Rules which provides that unless he has not already
done so, he should pass such departmental examination and
within such period as may be prescribed by the
Government.”
8. Rule-6 (b), of the Class-I Rules provides that “in the case of
an appointment by promotion from Class-II service (the
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Officer) has eight years, completed service in Class-II and
has passed the professional examination of the Department
as provided in Rule 15”. The question is whether an Officer
in the Class-II Service should satisfy both the qualifications
mentioned in clause(a) and the qualifications mentioned in
clause (b) of Rule6 of Class-I Rules or he should satisfy only
the qualification under Clause (b) for the purposes of
promotion to the Class-I service, If clause (b) of Rule-6 had
contained the words ‘also’ or “in addition to what is
contained in clause (a)” or any other words or words
conveying that meaning, there would have been no difficulty
in construing that clause as then it would have clearly meant
that an officer in the Class-II Service who seeks promotion to
the cadre of the Executive Engineers should possess a
degree as provided in clause (a) unless it has been waived
by the Government and should also satisfy the conditions
mentioned in clause-(b). But we do not find any such words
in clause (b) of Rule6 of the Class I Rules. Clause (b) of Rule
6 of the Class I Rules open with the words “in the case of an
appointment by promotion from Class II Service”. It deals
with a separate and distinct class of persons who are to be
recruited by promotion from the Class-II Service to the cadre
of Executive Engineers. The question whether all the clauses
in Rule-6 should be read cumulatively or separately depends
upon the structure of the sentences and the contents of the
different clauses. In Rule 6, we do not have the word ‘and’
used at the end of any of the clauses (a) to (d), clause (e)
being the last one. Clause (c) of Rule 6 deals with only direct
recruits and does not apply to promote and that is clear by
its language. Clause (d) of Rule 6 applies only to direct
recruits who enter the service for the first time and those
persons who are already in Government Service and in
whose case the verification of character and antecedents has
not already been done. Clause (e) of Rule 6 can apply only to
those who enter the service for the first time and cannot
apply to those who are already in the Class II Service before
appointment to the Class-I Service because there is a
corresponding provision even in the Class II Rules creating a
similar disqualification for being appointed to the
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Government service in Rule 7(5) of the Class II Rules. Now,
we are left with clauses (a) and (b) of Rule 6 of the Class I
Rules. In Rule 7 of the Class II Rules (which is extracted in
the earlier part of this judgment) which are Analogues rules
dealing with the qualifications for entry into the Class-I
Service there is no room for doubt for clause (1) begins with
the words “in the case of person appointed by direct
recruitment”; clause (2) begins with the words “in the case of
appointment by promotion from sources (2) begins with the
words “in the case of appointment by promotion from sources
(2) and (3) under Rule 6(1)”; clause (3) begins with the words
“in the case of the appointment by promotion from source 4
under Rule 6(1)” and clause (4) begins with the words in “in
the case of appointment by transfer. Each of the above
clauses is apparently an independent clause. It means that
persons falling under one clause do not fall under any of the
other clauses and they stand excluded from the other
clauses. Each clause deals with a specific class. Even
though the opening words of Rule 7 of the class-II Rules are
Rule 6 of the Class I Rules also these words have to be read
with each of the clauses (1) to (4) of Rule 7 of the Class-II
Rules. If the same method is adopted in the case of clauses
(a) and (b) of Rule 6 of the Class-I Rules, then there would be
no room for ambiguity. Clause (a) of Rule6 seems to apply to
direct appointments to the Class-1 Service which ordinarily
can be to the posts of Assistant Executive Engineers in view
of clause (4) of Rule 5 of the Class-I Rules and only in
exceptional circumstances for reasons to be recorded in
writing to the posts of Executive Engineers. Clause (b) of Rule
6 which the specially deals with appointments by promotion
from the Class II Service to the posts of Executive Engineers
exhaustively deals with the qualifications of officers to be
promoted from the Class II Service. The special clause
excludes the application of the general. That appears to be
the intention of the rule making Authority because clause (b)
deals with the qualification of experience for eight years in
the Class II Service and the passing of the Departmental
examination. So far as direct recruitment through competitive
examination is concerned the minimum educational
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qualification has to be prescribed in the Class-I Rules
themselves and it is accordingly prescribed by clause (a) of
RuleClass II Service to the posts of Executive Engineers
exhaustively deals with the qualifications of officers to be
promoted from the Class II Service. The special clause
excludes the application of the general. That appears to be
the intention of the rule making Authority because clause (b)
deals with the qualification of experience for eight years in
the Class II Service and the passing of the Departmental
examination. So far as direct recruitment through competitive
examination is concerned the minimum educational
qualification has to be prescribed in the Class-I Rules
themselves and it is accordingly prescribed by clause (a) of
Rule.
148. Though, learned senior counsel for the petitioners has
argued that the law laid down in S.K. Md. Amir Ansari Vs.
State of Bihar (supra), is not at all applicable in the case
at hand, but the law is well settled that applicability of the
judgment depends upon facts governing each case.
Reference in this regard may be made to the judgment
rendered by the Hon’ble Apex Court in Dr. Subramanian
Swamy vs. State of Tamil Nadu & Ors reported in
(2014) 5 SCC 75, for ready reference, the relevant
paragraph of the aforesaid judgment, is being quoted as
under :
“47. It is a settled legal proposition that the ratio of any
decision must be understood in the background of the
facts of that case and the case is only an authority for
what it actually decides, and not what logically follows
from it. “The court should not place reliance on decisions
without discussing as to how the factual situation fits in
with the fact situation of the decision on which reliance is
placed.”
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149. Admittedly, the petitioners have retired and it is well
settled principle of law that no retrospective promotion can
be granted nor any seniority can be given on retrospective
basis from a date when an employee has not even borne in
the cadre, particularly when this would adversely affect the
direct recruits who have been appointed validly in the
meantime, as such no relief can be granted to the
petitioners.
150. This Court, after having discussed the legal aspect as
well as factual aspect, has answered the issue against the
petitioners.
151. Accordingly, the writ petitions stand dismissed.
152. Pending Interlocutory Applications also stand disposed
of.
I Agree (Sujit Narayan Prasad, J.)
(Deepak Roshan, J.) (Deepak Roshan, J.)
17th April, 2026
A.F.R./Alankar/-
Uploaded on 18.04.2026
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