Krishna Bihari Saran v. State of & Bihar — 1991 DIGILAW 97 (PAT)

JUDGMENT Aftab Alam, J. This litigation, as would appear from the following was entirely avoidable only if the respondent-authorities had not defaulted in their normal and day to day administrative functions. 2. The petitioner seeks a direction to the respondent authorities to consider him for promotion to the Junior Selection Grade on the post of Deputy Superintendent of Police (Dy. S.P. hereinafter) from a date not later than 1.4.1989 when officers junior to him were given this promotion. 3. The facts are few and not in dispute. Indeed, even the claim of the petitioner based on these facts is not seriously resisted by the respondents. The eligibility criteria for the promotion in question are contained in the Resolution of the State Government dated 23.6.1977, a copy whereof has been annexed as Annexre-7 to this writ petition. It envisages that for promotion to the Selection Grade on the post of Dy. S.P. one must have worked on that post either in an officiating capacity or on a regular basis for a minimum of five years and that one must be confirmed on the post of Dy. S.P. 4. By notification dated October 24, 1990 a copy whereof is Annexure-10 to this writ petition, a number of officers were given this promotion. The list appended to the notification includes the names of Sri Shatrughan Prasad Singh and Sri Ambikanand Singh at serial nos. 36 and 37. These officers, it is asserted by the petitioner and not disputed by the State, are junior to him. The list does not include the name of this petitioner presumably on account of the fact that on that date he was yet to be confirmed on the post of Dy. S. P. The petitioner apparently satisfied the first condition of having worked for five years on the post of Dy. S. P. as it would appear from notifications dated May 21, 1991 and August 30, 1989 (Annexures 1 and 3 respectively). By the former notification the petitioner was given, along with others, the ad hoc promotion to the post of Dy. S. P, and by the later notification his services on that post were regularised with effect from 21.5.1981 itself. Thus, by any reckoning on 1.4.1989 he had put in more than five years of service on the post of Dy. By the former notification the petitioner was given, along with others, the ad hoc promotion to the post of Dy. S. P, and by the later notification his services on that post were regularised with effect from 21.5.1981 itself. Thus, by any reckoning on 1.4.1989 he had put in more than five years of service on the post of Dy. S. P. It is, therefore, apparent that the reason for not considering him for promotion on 1.4.1989 was that he was then yet to be confirmed to the post. 5. The petitioner then filed this writ petition originally challenging the validity of the second condition and contended that it was unreasonable inasmuch as it was solely in the hands of the respondent authorities to issue the confirmation orders and in many cases it was not issued in time on account of administrative lapses. 6. During the pendency of this writ petition a notification has been issued on August 29, 1990 whereby and whereunder the petitioner has been confirmed to the post with effect from 30.12.1985. A copy of this notification is enclosed as Annexure-8 to the writ petition. 7. In view of this notification, learned counsel for the petitioner now takes the line of least resistance and submits that the only impediment in the way also having been removed, the petitioner should now be given the promotion in question from the date his juniors got the same. I see no reason not to accept the petitioner's contention. 8. I must, however, pause here and take note of the manner in which this case has progressed in this Court. This case was first taken up for admission on 10.12.1990 when a Bench of this Court directed that a counter-affidavit be filed at the stage of admission itself in respect of the statements made in the writ petition as well as the supplementary affidavit and for this purpose, the case was adjourned to January 9, 1991. The case was again taken up on 15.1.1991 when the Court was informed by the learned S.C. III that a decision was going to be taken in the next meeting and on that submission the case was again adjourned for ten days. This case was again taken up on 31.1.1991 when this Court was constrained to say that inspite of directions given earlier, no counter-affidavit had been filed. This case was again taken up on 31.1.1991 when this Court was constrained to say that inspite of directions given earlier, no counter-affidavit had been filed. Junior Counsel to S.C. III informed the Court that the perspn who was to swear the affidavit had not turned up. The application was, accordingly, admitted for hearing. When the application was taken up for hearing yesterday, learned J.C. appearing on behalf of the State showed me a copy of the counter-affidavit which was apparently complete and typed out, could not be filed in the Court for want of anyone from the department coming to affirm the affidavit before the Oath Commissioner in this Court. I glanced through the contents of the affidavit which did not raise any serious objection so far as the merit of this case was concerned. By way of last indulgence, I withheld the pronouncement of judgment yesterday and posted this case for judgment today making it very clear to the learned counsel appearing for the State that in case no counter-affidavit was filed till today, I may consider awarding costs against the State. 9. At 10.30 A.M. today a prayer was made for not pronouncing the judgment on the ground that the learned senior State Counsel was unwell. I do not see how the filing of a counter-affidavit could be delayed on account of indisposition of the senior counsel. It is quite patent and obvious that no one has cared from the department even at this belated stage to come to this Court to assist the learned State Counsel to properly discharge their duties before this Court and no one even is available for the purpose of affirming affidavit on behalf of the State. This indeed is a sorry state of affairs. 10. For the reasons stated above, I allow this application and direct the respondents to consider the case of the petitioner for promotion to Junior Selection Grade on the post of Dy. S. P. as early as possible and in any event not later than May 31, 1991. It is needless to say that in case the petitioner is found eligible for promotion, necessary orders in that regard must be issued by that time and all the consequential benefits including the arrears of wages, should follow. 11. This application is, accordingly, allowed with costs quantified at Rs. 3,500/-. It is needless to say that in case the petitioner is found eligible for promotion, necessary orders in that regard must be issued by that time and all the consequential benefits including the arrears of wages, should follow. 11. This application is, accordingly, allowed with costs quantified at Rs. 3,500/-. The respondents shall be at liberty to fix the responsibility of the official/officials concerned and to realise the costs from his/their salary/salaries. The payment of the costs to the petitioner, however, shall not await any lengthy enquiry or realisation from the delinquent /s. 12. Let a copy of this judgment be sent to the Director General of Police, respondent no. 3.