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1997 DIGILAW 437 (PAT)

Binay Kumar Singh v. State Of Bihar

1997-05-23

ASOK KUMAR GANGULY

body1997
Judgment A. K. Ganguly, J. 1. In this writ petition, the petitioner has challenged order No.6155 dated 9th September, 1992 in so far as it purports to cancel the promotion which was given to the petitioner vide Order No.12622 dated 26-8-1986. 2. From the impugned order it appears that the petitioner was promoted to the post of Clerk on 26-8-1986. The said order is sought to be cancelled by the impugned order, inter alia, on the ground that in the matter of promotion of the petitioner, the seniority, reservation policy and roster point was not followed and the approval of the departmental Promotion Committee was not obtained. 3. Learned Counsel for the petitioner submitted that the petitioner was appointed through proper channel to Class IV post in the year 1982 and thereafter there was a gazette notification dated 15th February, 1985 issued by the Government. On a perusal of the said notification it appears that 25 percent of Class HI posts shall be filled up by Class IV employees by way of promotion who were otherwise found eligible. The petitioner states that thereafter selection and interview took place and on scrutiny of service records of the petitioner, he was appointed on Class iii post of Clerk vide order dated 26-8-1986, a copy of which is Annexure-4 to this writ petition. Pursuant to the said appointment the petitioner joined the post of Clerk on 27-8-1986 and is working as such since then. It appears that the petitioner thereafter received a show cause notice dated 28-12-1990 in which the petitioner was asked to explain why his promotion should not be cancelled since at the time of giving promotion to him, the seniority was not considered and the service records were not examined. It is also alleged in the show cause that the reservation policy was not followed. Thereafter the petitioner filed his explanation pursuant to the said show cause notice. The petitioner further stated in paragraph 14 of the writ petition that in matters of his promotion to the said post of clerk, the reservation policy was followed inasmuch as he has mentioned the names of four persons who belong to reserved category and who have been appointed following the reservation policy. 4. To this writ petition the State respondents have filed a counter-affidavit. 4. To this writ petition the State respondents have filed a counter-affidavit. In the counter-affidavit it has been admitted that 25 percent of vacant posts of IIIrd grade will be filled up through promotion from the IVth grade employees who possess the required eligibility. It has also been stated that the person with matriculation qualification is not eligible. It has been stated in paragraph 7 of the counter-affidavit that it has been found that the promotion of the petitioner alongwith others was not made according to all rules and norms of promotion and the promotion of the petitioner was challenged by other persons on the ground of seniority and it was decided to revert the petitioner and others and, therefore, the petitioners promotion order was cancelled. In this connection an order passed by the bihar Administrative Tribunal, Patna in service Case No.329 of 1988 (Jailal paswan V/s. State of Bihar and others) has been referred to. From a perusal of the said order passed on 9-3-1989 it appears that the Bihar Administrative tribunal, Patna did not pass any order on the merits of the case but merely directed the petitioner in the said Service Case No.329 of 1988, namely,jailal paswan to make a representation. The said order was passed on the concession made by the learned Counsel for the state. On the basis of such concession made by the learned Counsel for the state it was directed that the representation be made to the Registrar, cooperative Societies, Bihar, Patna who shall dispose of the same within a period of two months from the date of receipt of a copy of that order. Pursuant to that the representation was made. But in the whole of the counter-affidavit filed by the State there is no mention as to which rule was violated save and except stating that in the matter of promotion of the petitioner, the rules have been violated. Therefore, the affidavit is vague in nature. 5. In this matter, learned Counsel for the private respondent also appeared and filed an affidavit. Respondent No.4 Jailal Paswan filed the aforesaid Service Case No.329 of 1988 and obtained the order referred to above. Therefore, the affidavit is vague in nature. 5. In this matter, learned Counsel for the private respondent also appeared and filed an affidavit. Respondent No.4 Jailal Paswan filed the aforesaid Service Case No.329 of 1988 and obtained the order referred to above. The case which has been made out by the private respondent in his counter-affidavit is that he is also eligible for promotion to Class III post and he claims that he is senior to the petitioner in the length of service and he is a Scheduled Caste candidate. The only complaint in the said affidavit is that respondent No.4 is senior to the petitioner and as such he should also have been promoted. 6. Considering the rival contention of the parties, this Court is of the view that the petitioner was promoted to the post of Class III in the year 1986 and the same was sought to be cancelled after six years i e. in the year 1992. When the petitioner filed this writ petition before this Court, a Division Bench of this Court, while admitting the writ petition, by an order dated 16-2-1993 stayed the operation of the impugned order and directed that the petitioner shall not be compelled to hand over charge of the post which he was holding prior to Annexure-1 and as a result of the said order, the petitioner is continuing on the said post of Clerk till today thus the petitioner is continuing on the promotional post for the last 11 years. As such, it would be wholly unjust at this stage to cancel his promotion. Apart from that this Court does not find anything which is grossly illegal in the matter of promotion of the petitioner. The counter-affidavit filed by the State is also quite vague wherein it has been only stated that the rules have been violated. When this Court specifically asked from the learned Counsel for the state as to which particular rule has been violated, learned Counsel for the state could not point out any specific rule which has been violated in the matter of promotion to the petitioner. Whether the petitioner is senior to respondent No.4 or respondent No.4 is senior to the petitioner cannot be decided in this writ petition. Whether the petitioner is senior to respondent No.4 or respondent No.4 is senior to the petitioner cannot be decided in this writ petition. Any promotion given to a person is bound to create some heart burning to those employees who are not promoted, but that cannot be a ground for cancellation of the promotion order. The order of the Bihar Administrative Tribunal, patna also does not show that any positive order was passed in favour of respondent No.4 when he approached the said Tribunal. Therefore, the said tribunal also did not find anything grossly illegal in the promotion of the petitioner who was a party to the said service case and whose promotion order was specifically challenged. 7. Taking all these facts into consideration, this Court is of the view that no case has been made out by the learned Counsel for the State for cancelling the promotion order of the petitioner which has been passed in favour of the petitioner in the year 1986. One of the basic requirements of the rule of law is predictability in the executive action. When a promotion is made by the authorities, it cannot be just cancelled on the basis of the representation made by some of the disgruntled employees unless the order is grossly illegal. A citizen is entitled to know where he stands. In this case, the said principle is applicable in the sense that the petitioner was promoted in the year 1986 and is working on the said post till today without any complaint what-so-ever and thus he cannot be made to suffer by cancelling his promotion on the ground that some of his disgruntled colleague has made representation against his promotion. 8. In that view of the matter, this court quashes the impugned older dated 9-9-1992 as contained in Annexure-1 to this writ petition so far as it affects the petitioner. This writ petition is allowed to the extent indicated above. There will be no order as to costs. Petition Allowed.