Letters Patent Appeal challenging a Single Judge's ruling that Rule 8 of the Bihar Engineering Services Class I Rules, 1939, restricts diploma eligibility to Roorkee graduates. The apex court allowed the appeal, upholding the restrictive interpretation based on the legislative intent of the 1939 amendment.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.294 of 2013
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With
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| 27. Shri Ramashray Ram Executive Engineer, Fie Road Construction De Charge of Superintendi Arrah |
Son ld In part ng E |
Of Not vestigatio ment, Ar ngineer, |
Known Presently Posted As n Division, Advance Planning, rah And Holding Additional Bhojpur Road Circle (R.C.D.) |
|---|---|---|---|
| 28. Shri Bhupati Harizan Executive Engineer, Nati ======================== |
Son onal === |
of Not Highway ======== |
Known Presently Posted As Division, Motihari .... .... Respondent/s ======================== |
| Appearance : (In LPA No. 294 of 2013) For the Appellant/s |
: | Mr. Mr. |
Purushottam Kumar Jha with Avanindra Kumar Jha, Adv |
| For the Respondent/s | : | Mr. Mr. Mr. |
Ram Naresh Shukla, Rajesh Kumar & Sanjay Pandey, Advocates |
| (In LPA No. 395 of 2013) For the Appellant/s |
: | Mr. | Raju Giri, Advocate |
| For the Respondent/s ======================== |
: === |
Mr. Mr. ======== |
Lalit Kishor, Pr.A.A.G. & Sanjay Pandey, Advocates ======================== |
CORAM: HONOURABLE THE CHIEF JUSTICE And
HONOURABLE MR. JUSTICE SUDHIR SINGH ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date: 30-06-2015
Respondent no. 35 in CWJC No. 11788 of 2006 filed this Letters Patent Appeal, feeling aggrieved by the judgment dated 05.12.2012, rendered by the learned single Judge in that writ petition.
The relevant facts are that; the writ petition was filed challenging the letter dated 26.08.2006, issued by the Bihar Road Construction Department to the Bihar Public Service Commission (for short „the Commission‟) clarifying
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that a person holding a Diploma is eligible to be promoted to the post covered by Bihar Engineering Services Class I Rules, 1939. Here it is relevant to mention that initially the Engineering Service Rules were framed in 1930s and the stipulated qualification was only a degree in engineering. Thereafter it was noticed that Thomason College, Roorkee, which has since become I.I.T., Roorkee, was issuing Diploma to students who studied 4 years course of Civil Engineering, and having regard to the quality of education in that institution, it is essential that the rules must be amended to include the word “Diploma” in its restricted sense in Rule 8 of the qualifications. Accordingly, the Rule was amended in 1939. This was slightly amended in the year 1969 and thereafter in the year 1971 to the effect that the holder of any Diploma awarded by any institute whatever shall be eligible for promotion to Class I. The Rules were amended in the year 2006 restoring the Rule 8 as it stood in the year 1939.
When a clarification was sought in this behalf, initially the department informed the Board that since the Rule is restored to 1939 position; any person who holds Diploma from institutions other than the one at Roorkee, would not be eligible to be promoted to Class I service from
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Class II. Shortly thereafter, a totally different view was taken in their communication dated 26.08.2006. The officers who hold degrees and were in Engineering Service of Bihar challenged the said communication. They placed reliance upon the judgment rendered by the Division Bench of this Court in Sk. Md. Amir Ansari v. The State of Bihar and Ors. (1973 BLJR 223). The writ petition was opposed by the State, as well as various private individuals who figured as respondent nos. 9 to 34. The appellant herein, an Association of Subordinate Engineers, got itself impleaded as party in the writ petition. Learned single Judge allowed the writ petition through the judgment dated 05.12.2012.
Sri Purushottam Kuma Jha, learned counsel appearing for the appellant submits that the view taken by the learned single Judge that the word „Diploma‟, occurring in rule 8 of the Rules has a restricted meaning, taking in its fold, only those Diploma which are awarded on completion of 4 years study; cannot be supported either on facts, or in law. He submits that this Court, in Sk. Md. Amir Ansari (Supra) dealth with a totally different aspect altogether, and still it was treated as binding precedent on the subject. He submits that once the rule making authority has used the
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word Degree as well as Diploma, there is no reason why the Diploma should be treated as one equal to Degree.
Sri Ram Naresh Shukla, learned counsel for the respondents, on the other hand, submits that the appeal is not maintainable since the appellant cannot be said to be an aggrieved party. He contends that when several individual employees who were adversely affected by the judgment did not choose to prefer appeal, there is absolutely no basis for the Association, to file the appeal. It is also pleaded that State has taken conscious decision to restore Rule 8 as it stood in the year 1939, and if the contention of the appellant is to be accepted, the very amendment becomes redundant.
The issue pertaining to the eligibility or otherwise of the Diploma holders to be promoted to Class I Engineering Service was subject mater of voluminous litigation. There is no denial of the fact that initially Rule provided for promotion only to those candidates who possesses Degree in Engineering, and thereafter the word “Diploma” was included, taking into account, the fact that the institution at Roorkee has been awarding Diploma to students who studies 4 years engineering course almost with the same syllabus. The effort was to enable the candidates of such
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high learning to become part of Bihar Engineering Service.
Questions did crop up, over the decades as to whether persons holding Diploma awarded by other institutions are eligible to be promoted. The change of stand in this behalf was through amendment of the Rule in the year 1969 and thereafter in 1971; and subsequently through administrative interpretations. The amendment of the year 1971 paved the way for holders of Diploma awarded by any institution whatever, to be promoted. The very fact that the Rule was restored to 1939 stage through amendment in the year 2006 discloses the firm determination of the Government to ensure that the position obtaining in the year 1939 was restored. Otherwise there was no necessity to amend the Rule at all.
The question as to whether the word “Diploma” occurring in rule 8 of the Rules is wide enough to take in its fold, the Diplomas awarded by other institutions, fell for consideration before this Court in Sk. Md. Amir Ansari (Supra) case, may be in a slightly different context. The Court referred in detail to the preparatory work that preceded the inclusion of the word “Diploma” in Rule 8. The Bench held that the word “Diploma”, occurring in Rule 8 is only with reference to the course imparted at Roorkee
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institute and not other institutes. In the present case, the learned single Judge took note of the same and we too have gone through the judgment in detail, and we are in agreement with the view expressed therein.
Once the legislature (here, the subordinate legislature) has taken the decision to amend the Rules with an objective to restoring the earlier state of affairs, the interpretation placed on the provision so restored would continue to hold good. The principle laid down by the Supreme Court in Bengal Immunity Co. Ltd. V. State of Bihar (AIR 1955 SC 661), supports this.
Learned single Judge discussed the issue from all possible angles and in our view has arrived at the correct conclusion. We are not convinced to take a different view. Added to that, no individual officer has come forward to challenge the judgment in Court. Though the appellant Association has a right to espouse the cause of its members, it cannot wear the mantle of an aggrieved party in a purely adversarial litigation.
We, therefore, dismiss the appeal. However, we leave it open to the appellant to take a representation in this behalf either seeking clarification as to Rule 8 or
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making a request for amending the same. As and when such representation is made, the Government shall dispose of the same within three months duly taking into account the views of other Associations as well as the purport of the judgments on the issue.
(Sudhir Singh, J)
Manish/-
U
2 issues framed by the court
Whether the word "Diploma" in Rule 8 of the Bihar Engineering Services Class I Rules, 1939, encompasses only diplomas from Roorkee or all institutions.
Whether the Subordinate Engineers Association can maintain an appeal despite the absence of individual member appeals.
Colour shows how this judgement treated each authority
Sk. Md. Amir Ansari v. The State of Bihar and Ors. (1973 BLJR 223)Explained¶115
1 provisions across 1 enactments
The Subordinate Engineers Association, Bihar
The State Of Bihar
L. Narasimha Reddy
Sudhir Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
