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1993 DIGILAW 381 (PAT)

Sheo Shankar Mishra v. State of Bihar

1993-09-02

B.N.AGRAWAL, I.P.SINGH

body1993
JUDGMENT Heard the parties. This writ application has been filed for quashing that portion of the Govt. Notification dated 18.7.1991 by which promotion has been granted to the petitioner as Assistant Conservator of Forest with effect from 30.3.1990 and it has been directed that the petitioner shall be entitled to the financial benefit from the date he joins the higher post. Undisputedly persons junior to the petitioner in the cadre of Range Officer of Forest were granted promotion as Assistant Conservator of Forest with effect from 1st December, 1981. When the aforesaid promotion was granted to the persons junior to the petitioner at that time a departmental proceeding was pending against the petitioner and consideration of the case of the petitioner for promotion to the post of Assistant Conservator of Forest was postponed on that account. Consequently the departmental proceeding was concluded and the petitioner was exonerated of the charges on 11th August, 1986. Thereafter the petitioner's case was considered for promotion and the State Government by a Notification dated 18.7.1991, as contained in Annexure 4 has granted promotion to the petitioner with effect from 30.3.1990 as stated above. Hence this writ application. Learned counsel for the petitioner has contended that there is no reasonable nexus for granting promotion to the petitioner on the post of Assistant Conservator of Forest w.e.f. 30.3.1990. It is said that the persons junior to the petitioner were granted promotion w.e.f. 1st, December, 1981 and the petitioner having been found fit for grant of promotion he should have been granted promotion with effect from 1st December, 1981 but the petitioners case for promotion was not considered because of the pendency of the departmental proceeding in which he was exonerated on merit. The stand of the respondents in the two counter affidavits filed in the writ, application is that the petitioner should not have been granted promotion with effect from December, 1981 as there were adverse remarks in his character roll for the years 1981-82, 1982-83 and 1983-84. With regard to this it has been pointed out that after the petitioner was exonerated from the departmental proceeding by Notification dated 28.4.1987 he was promoted to selection grade in the cadre of Range Officer of Forest. With regard to this it has been pointed out that after the petitioner was exonerated from the departmental proceeding by Notification dated 28.4.1987 he was promoted to selection grade in the cadre of Range Officer of Forest. If there is any adverse entry in relation to the period prior to the aforesaid date the same shall be deemed to have been wiped out and promotion to the petitioner on the higher post can not be refused on the basis of adverse entries. We find substance in the contention of the learned counsel for the petitioner and the objection raised on behalf of the State has got to be rejected. Learned counsel for the State next submitted that promotion can not be granted to the petitioner with effect from December, 1981, as promotion has been granted to him by order, as contained in Annexure 4 to the post of Assistant Conservator of Forest with effect from 30.3.1990 against the vacancy which had occurred on that date. From the trend of the counter affidavit it appears that no vacancy was available with effect from December 1981 after granting promotion to the persons junior to the petitioner as Assistant Conservator of Forest. It is well known that in service matter if a departmental proceeding is pending against Govt. Servant in that event a post is kept reserved for him for considering his case for promotion to a higher post and only thereafter case of juniors is considered for granting promotion to the higher post. It appears, in the case in hand the State Government has missed to keep a post reserved for the petitioner for considering his case for promotion to the higher post after conclusion of the departmental proceeding if it was found necessary. Therefore, this is a mistake on the part of the State for which the petitioner can not be allowed to suffer and on this ground promotion can not be refused to the petitioner with effect from December, 1981. Accordingly we allow this writ application and modify the order contained in Annexure 4 to the effect where a direction has been given that promotion has been granted to the petitioner on the post of Assistant Conservator of Forest with effect from 30.3.90 and he will be entitled to monetary benefit with effect from the date he joins the higher post. Since the petitioner is entitled to grant of promotion on the higher post from retrospective date in view of the fact that promotion was erroneously refused to him and also in view of the fact that persons junior to the petitioner have been granted promotion with effect from December, 1981 we are clearly of the view that the petitioner is entitled for monetary benefit from December, 1981. Hence, it is directed that by order contained in Annexure 4 petitioner shall be deemed to have been granted promotion with effect from December, 1981 and will be entitled to entire monetary and all consequential benefit from that date. The authorities are further directed to make payment of the arrears amount to the petitioner for which he is entitled by virtue of this order within a period of three months from the date of receipt of production of copy of this order. Accordingly, this application is allowed. Application allowed.