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2001 DIGILAW 1063 (PAT)

Rama Shankar Prasad v. State Of Bihar

2001-11-27

RAVI S.DHAVAN, SHASHANK KR.SINGH

body2001
Judgment Ravi S.Dhavan and Shashank Kumar Singh JJ. 1. Both the writ applications i.e. C.W.J.C. No. 2378 of 1993 and C.W.J.C. No. 5049 of 1993 were made analogous by order dated 7.7.94 passed in C.W.J.C. No. 2378 of 1993 and had been heard together and as both the writ applications challenged the provisions of Bihar Finance Service (Selection by Appointment) Act, 1990, specially section 13 of the said Act (herein after to be referred to as the Bihar Act 16 of 1990), and as both the writ applications were heard together, as such with the consent of the parties, they are being disposed of by this common judgment. 2. The contention of learned counsel for the petitioners is that the aforesaid Act is prejudicial to the petitioners, specially section 13 of the said Act as the same debars the petitioners for being considered for appointment through nomination and selection to the Bihar Finance Service, it has further been contended that the aforesaid provision be declared ultra vires and void being in contravention of Article 16 read with Articles 33 and 39 of the Constitution of India. 3. Petitioners who are confirmed employees of the State Government and are holding substantive post under the State Government and were permanent employees of the Government of Bihar in Class-Ill service have claimed that they too were eligible for consideration for appointment through nomination on the recommendation of the B.P.S.C., on class II post, in the Bihar Finance Service. 4. The further contention on behalf of the petitioners is as to whether petitioners who were similarly situated like other employees of the State Government were not being discriminated by their debarment from consideration for promotion by nomination to the Bihar Finance Service and as to whether such debarment was not violative of the fundamental right or equality as envisaged under the Constitution of India. It has also been contended that as to whether any Act, can be given retrospective effect and take away the right for consideration which has already accrued to the petitioners and other similarly situated persons for promotion by nomination when vacancies have already been declared for promotion and consideration of persons like the petitioners and other similarly situated persons. 5. It has also been contended that as to whether any Act, can be given retrospective effect and take away the right for consideration which has already accrued to the petitioners and other similarly situated persons for promotion by nomination when vacancies have already been declared for promotion and consideration of persons like the petitioners and other similarly situated persons. 5. It has further been contended that the respective parent department of the State Government had nominated the names of these petitioners in the year 1987 pursuant to a letter dated 12.10.87. The parent department had sent the names of these petitioners and other similarly situated persons along with their entire service record for consideration of their promotion and as names of the petitioners had been nominated in the year 1987 itself steps for their promotion ought to have taken place in the year 1987 itself and if the petitioners were found suitable after perusal of their service records, they ought to have been given promotion in the year 1987 itself. But, the Finance Department for its own reason sat over the matter and instead of giving promotion to the petitioners and other similarly situated persons issued a letter on 18 June, 1988 to the Commissioner, Commercial Taxes returning the service book of the petitioners and other similarly situated persons, staying the promotion which was to be granted to the petitioners and other similarly situated persons. 6. It has further been contended by learned counsel for the petitioners that one such similarly situated person namely Parsuram Singh and three others moved this court by filing C.W.J.C. No. 7628 of 1998 and by order dated 26.7.89 the writ application was allowed and it was directed that the existing vacancies by promotion be filled up expeditiously in accordance with the existing rules, as such, the stand of the petitioners is that they being similarly situated and as the new Act had not seen the light of the day when their cases came for consideration, they were required to be promoted in view of existing rules which was there at the time of consideration of their individual cases. 7. 7. A counter affidavit has been filed on behalf of the respondents in which it has been stated that the contention of the petitioners appears to be misconceived, as those persons who had already been nominated earlier against the existing vacancies their cases have already been considered and they have been promoted to class-Il post in the Bihar Finance Service. Cases of persons belonging to the category of the petitioners and other similarly situated persons whose names had been nominated were also taken into consideration against the existing vacancies and promotions had been granted, as such, contention of the petitioners that quota of distribution of seats with regard to persons in the petitioners category being given a go by was not true and as the petitioners or any other similarly situated persons, if nominated had been considered, as such, the contention of the petitioners that the Bihar Act 16 of 1990 specially section 13 of the said, Act was ultra vires being in contravention of Article 16 of the Constitution of India cannot be sustained. The said provision under no stretch of imagination can be held to be ultra vires being discriminatory granting liberty to one section of the same class and refusing it to the other. 8. In view of discussions as made above, as it is amply clear that the apprehension of the petitioners are misconceived and as their cases was also considered for promotion by nomination in Bihar Finance Service, as such, their contention cannot be upheld. 9. In the result, the present writ applications fail and are accordingly dismissed. However, parties would bear their own cost.