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2000 DIGILAW 573 (PAT)

Nawal Kishore Sharma v. State Of Bihar

2000-04-11

D.P.S.CHOUDHARY, NAGENDRA RAI

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Judgment 1. This writ application has been filed by the petitioner for quashing part of the order contained in letter No. 5179 dated 19th December, 1991 of the State Government issue under the signature of Deputy Secretary, respondent No. 2, by which a direction has been given to the Principal Chief Conservator of Forests to cancel the promotion given to Forest Guards to the post of Foresters on the basis that they have passed training examination with Honours. 2. The facts necessary for disposal of the present writ application are that the petitioner was appointed as Driver. Later on, on 29.8.1986 the petitioner was appointed as Forest Guard and on 1.1.1987 he was sent for Forest Guard Training at Forest Training School, Mahilong at Ranchi. He completed the training and a certificate was granted to him. Thereafter, he was promoted to the post of Forester on 17th July, 1987 vide Annexure-7 to the writ petition. 3. At this stage, it is to be mentioned that the post of Forester is filled up by direct recruitment as well as by promotion. The said provision is contained in Rule 3.21 of the Bihar Forest Matiual VoL II. The said rules run as follows: 3.21. permanent and temporary appointments to the classes of foresters may be made by Conservator of Ftiresis by: (a) direct recruitment of candidates, (i) who are matriculates and between 18 years and 25 years of age (28) years in case of scheduled tribes and castes) and are physically fit after they have been interviewed and approved by the Selection Committee duly cpnstituted for the purpose. (ii) The following minimum standard of physical fitness are prescribed: Height- 5 Chest - 31", expansion to 33" For Scheduled Tribes the height would be 52". Candidates-must pass a physical test consisting of a walk of 16 miles to be covered in 4 hours. In exceptional cases, the Chief Conservator of Forests has the power to relax the above standard. (b) By promotion of forest Guards and other subordinates; (i) who have long service, tried ability and probity irrespective of educational qualification. (ii) Forest Guards who stood first with honours at the Guards Training School and have put in at least five years of satisfactory service. Provided that approximately 25% of the posts in foresters cadre at any time are held by persons appointed by promotion. 4. (ii) Forest Guards who stood first with honours at the Guards Training School and have put in at least five years of satisfactory service. Provided that approximately 25% of the posts in foresters cadre at any time are held by persons appointed by promotion. 4. The Principal Chief Conservator of Forests by order dated 17th December, 1986 issued an instruction in which a provision was made that a Forest Guard who has passed Forest Training Examination with Honours having five years of satisfactory service will be given promotion to the post of Forester with retrospective effect. He clarified his aforesaid decision by two subsequent letters dated 6.7.1987 and 7.8.1987. In pursuance of the said decision of the Principal Chief Conservator of Forests the petitioner and others were promoted to the post of Foresters in the year 1987. 5. The persons being aggrieved by the promotion of the petitioner and others on the post of Foresters filed a writ application in the Ranchi Bench of the High Court which was numbered as C.W.J.C. No. 505 of 1989 (R). This Court finally disposed of the said writ application and held that the Principal Chief Conservator of Forests has no authority to amend the Rule framed under Article 309 of the Constitution of India and remitted the whole matter to the State Government to Consider and take a final decision. Thereafter, the State Government considered the matter in the light of the decision of this Court and on 11.1.1981 took a decision that the persons who have already been promoted up to 16.7.1990 on the basis of passing of the Training Examination with Honours will be treated as direct recruits. The said decision was again re-considered and thereafter it was decided on 12.9.1991 that it was not possible to treat the petitioner and others to be direct recruits. Thereafter, the order dated 19.4.1991 giving-promotion to the petitioner and others were cancelled. The said order was challenged by aggrieved persons by filing writ applications being C.W.J.C. Nos. 136, 305, 387 and 704 of 1992 (R) which were disposed of by a Division Bench of this Court on 7.5.1992. A copy of the said judgment has been annexed as Annexure-A to the counter-affidavit. The said order was challenged by aggrieved persons by filing writ applications being C.W.J.C. Nos. 136, 305, 387 and 704 of 1992 (R) which were disposed of by a Division Bench of this Court on 7.5.1992. A copy of the said judgment has been annexed as Annexure-A to the counter-affidavit. This Court while disposing of the aforesaid cases remitted the matter to the State Government to consider as to whether the petitioners and other similarly situate persons can be deemed to be directly recruited against the post of Foresters by virtue of the Government decision as contained in paragraphs (kha) of the said communication dated 11th January, 1991 (Annexure-4). After the competent authority in the Government comes to the conclusion that the appointments of the petitioners on the said posts can-be saved by virtue of the Government decision, an appropriate order in accordance with law shall be issued. However, if an adverse order is proposed to be passed, it would be advisable to give the petitioners an opportunity of hearing by way of filing representation. Thereafter, the matter was considered by the Government and the decision was taken against the petitioners by order dated 27.7.1993 which was communicated to the petitioner and others by the Principal Chief Conservator of Forests by order dated 12.8.1993. 6. The said orders were challenged by the petitioner and other employees in C.W.J.C. No. 2502 of 1993 (R) and the same was dismissed by a Division Bench of this Court on 17th March, 1994. A Special Leave Petition being S.L.P. No. 7402 of 1994 was filed before the Apex Court against the said order and the same was dismissed on 11.11.1994. 7. Thus the narration of the facts clearly show that the question which had been raised in this very writ petition is no longer res integra and has been concluded by a Division Bench of this Court and the same has been upheld by the apex Court. In other words, the promotion of the petitioner to the post of forester has been held to be bad in law. 8. The question in controversy has been concluded by a binding precedent and as such we have to dismiss the. writ petition. Accordingly, the same is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.