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2001 DIGILAW 428 (PAT)

Birendra Kumar Singh v. State Of Bihar

2001-05-14

S.N.JHA

body2001
Judgment S.N.Jha, J. 1. The dispute in this writ petition relates to promotion to the post of Assistant Director/ District Publication Relation Officer in the Department of Information and Public Relation, Government of Bihar. The petitioner had approached this Court in respect of his claim for such promotion in CWJC No. 3893/96. Pursuant to the order passed therein he filed representation which has been rejected by the order contained in Annexure-1 on 24.2.99. He seeks quashing of the said order and direction to reconsider his case. 2. The case of the petitioner is as follows. The petitioner was appointed as Assistant Public Relation Officer (APRO), a Class III Non-gazetted post in the Department of information and Public Relation on 2.10.73. On 13.10.73 he joined the post. One Bishwanath Singh, a Receptionist in the cadre of Clerk, was promoted to the post of APRO on 5.8.75. The gradation list of APROs was published on 22.1.79 in which the petitioner was placed at serial no. 12 while the said Bishwanath Singh was placed at serial no. 20. On 11.7.82 the Departmental Promotion Committee considered the cases of APROs for promotion on the post of Additional District Public Relation Officer (DPRO), a gazetted Class III post. The case of the petitioner was considered and he was promoted to the post of Additional District Public Relation Officer on 5.10.82. Earlier on 22.9.82 he had been given additional charge of the post of District Public Relation Officer, the basic grade Class 2 gazetted post in the Bihar Information Service. In the gradation list of Additional District Public Relations Officers published on 15.10.85 the petitioner was placed at serial no. 48. The name of said Bishwanath Singh did not figure in the list. However on 24.10.86 he was promoted to the post of Additional District Public Relation Officer with retrospective effect from 14.9.79. Despite his promotion with effect from 14.9.79. Bishwanath Singh was placed below the petitioner at serial no. 11 (petitioner was placed at serial no. 4) in the final gradation list which was published on 20.11.87. On 2.6.89, 20 persons were promoted to the post of Assistant Director/ DRPO including 15 from the cadre of Additional District Public Relation Officer and 5 from the other cadres in the Department of Information and Public Relation. 11 (petitioner was placed at serial no. 4) in the final gradation list which was published on 20.11.87. On 2.6.89, 20 persons were promoted to the post of Assistant Director/ DRPO including 15 from the cadre of Additional District Public Relation Officer and 5 from the other cadres in the Department of Information and Public Relation. Out of said 15 promotees from the cadre of Additional District Public Relation Officer, 5 were junior to the petitioner including the said Bishwanath Singh. On 8.6.89 the petitioner filed representation objecting to the aforesaid promotion to the juniors including the said Bishwanath Singh bypassing his claim. Nothing happened on the representation, meanwhile between 1989 and 1996 several promotions were given to the post of Assstant Director/ DPRO from the different cadre posts such as Photographer. The petitioner in the circumstances came to this Court in CWJC No. 3893/96 on 29.3.96. By order dated 2.12.97 the writ petition was disposed of with a direction to the petitioner to file representation before the Secretary, Department of Information and Public Relation, with a corresponding direction to him to dispose of the same within three months. By the impugned order dated 24.2.99 the claim of the petitioner has been rejected. 3. The claim of the petitioner, as it appears from the impugned order, has been rejected on three grounds; (i) his claim for promotion on the ground that persons junior to him have been given similar promotion is unsustainable because inter se seniority is relevant only in respect of employees in the same cadre while persons who had been promoted belonged to other cadres, (ii) Bishwanath Singh was senior to the petitioner by virtue of his retrospective promotion from 14.9.79, and (iii) as the petitioner had not passed the departmental examination he was not eligible for promotion. (It may be mentioned that departmental examination referred to in the impugned order, is the one provided under Bihar Information Service (Departmental Examination) Rules framed under resolution dated 18.7.87 of the Information and Public Relation Department). 4. Two counter affidavits, one of them described as supplementary counter affidavit, has been filed on behalf of the respondents. Before adverting to the contents of the affidavits it is worth pointing out that both the affidavits have been sworn on the same day, viz 4.5.2001. and by the same officer Sri Ganesh Choudhary, Under Secretary, Information and Public Relation Department. Two counter affidavits, one of them described as supplementary counter affidavit, has been filed on behalf of the respondents. Before adverting to the contents of the affidavits it is worth pointing out that both the affidavits have been sworn on the same day, viz 4.5.2001. and by the same officer Sri Ganesh Choudhary, Under Secretary, Information and Public Relation Department. Considering that both the affidavits were prepared at about the same time, in the normal course if any thing was missing in the first affidavit, the averment should have been incorporated in that very affidavit instead of filing another affidavit along with the first one. Filing of affidavit by the department involves expenditure and therefore unless circumstances so require affidavits should not be casually filed with incomplete facts. As in the instant case two affidavits were filed on the same day it appears proper to observe that the circumstances in which they were filed may be enquired into by the Secretary and if adequate explanation is not furnished by the persons concerned, suitable action may be taken. 5. Coming to the stand of the respondents in the main counter affidavit, the thrust of the stand of the respondents is that the petitioner cannot be allowed to question promotion of Bishwanath Singh and/or any other person since they are not party to the proceeding nor the petitioner can raise dispute relating to inter se seniority after so many years. It has also been stated in para 11 that Service Rules of the Bihar Information Service have not been framed as yet though in para 13 reference has been made to "existing rules" under which promotions have been given to others. Reference has also been made to the rule relating to passing of the departmental examination. In the supplementary counter affidavit, it has been stated that the mode of promotion on gazetted post has been changed under Notification no. 3047 dated 8.4.92 of the Personnel and Administrative Reforms Department, Government of Bihar. As per the amended provision 75 per cent of the vacancies have to be filled by direct recruitment, rest 25 per cent vacancies have to be filled by limited examination to be conducted by the Bihar Public Service Commission. Thus there is no scope for appointment of the petitioner after 8.4.92. 6. As per the amended provision 75 per cent of the vacancies have to be filled by direct recruitment, rest 25 per cent vacancies have to be filled by limited examination to be conducted by the Bihar Public Service Commission. Thus there is no scope for appointment of the petitioner after 8.4.92. 6. The stand of the respondents to the effect that the petitioner cannot challenge the grant of retrospective seniority and consequential promotion to Bishwanath Singh is well founded. As noticed above, Bishwanth Singh was allowed retrospective promotion with effect from 14.9.79, on 24.10.86 itself. On his own saying the petitioner made representation for the first time on 8.6.89 only after Bishwanath Singh was promoted to the post of DPRO. Besides, Bishwanath Singh is not a party in the case. In fact, it appears he has already retired from service. Bishwanath Singh thus is clearly Cut of scene. Entire pleadings of the parties in this regard has thus no relevance. A priori it could not therefore also be a ground to reject the petitioners claim. The only ground which can be said to be relevant for rejecting the claim is that he did not pass the departmental examination. However from Annexure 25 it appears that the State Government had taken a policy decision to exempt such Additional DPROs etc. from passing the departmental examination who were already confirmed in service by 18.7.87the date on which the Bihar Information Service (Departmental Examination) Rules, referred to above, were promulgated by the Government, thus making said rule inapplicable in them. Copy of the said decision/resolution is contained in Memo . No. 552 dated 3.12.87 of the Information and Public Relation Department. From Annexure 27 it appears that the petitioner had been confirmed on the post of Additional DPRO with effect from 5.10.85 itself. As the petitioner stands confirmed on the post with effect from a date prior to the cut-off date fixed in the said resolution he cannot be treated as ineligible for promotion on the ground that he had not passed the departmental examination, as mentioned in the impugned order dated 24.2.99. As the petitioner stands confirmed on the post with effect from a date prior to the cut-off date fixed in the said resolution he cannot be treated as ineligible for promotion on the ground that he had not passed the departmental examination, as mentioned in the impugned order dated 24.2.99. It is true that as on 24.2.99 the petitioner was not entitled to the benefit of the exemption because the confirmation order with effect from 5.10.85 was issued later on 17.11.99, but after the petitioner stood confirmed with effect from a date prior to the cut-off date, there was no justification for the respondents to reiterate the same ground in the counter affidavit. That ground, regarding non passing the departmental examination, also becoming irrelevant the petitioner must be held entitled for consideration for promotion to the post of DPRO. 7. As far as the respondents plea that the petitioner cannot be considered for promotion in view of Notification No. 3047 dated 8.4.92 it must be said that no such ground having been taken in the impugned order it is not open to the respondents to add to the grounds. The validity of the impugned order has to be tested with reference to validity or otherwise of the grounds taken in the order and not on a fresh ground taken in the affidavits. Reference may be made to the well known case of Mohinder Singh Gill V/s. Chief Election Commissioner, AIR 1978 SC 851 , and the following passage from the judgment may usefully be quoted, "When statutory functionary makes an order based on certain grounds its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out." That apart, said notification dated 8.4.92 relates to promotion in the Bihar Administrative Service. It has no application to promotions in the Bihar Information Service. Iam at loss as to how the claim of the petitioner is sought to be resisted on the basis of provisions of the rules. The plea of the respondents in this regard therefore is fit to be summarily rejected. 8. It has no application to promotions in the Bihar Information Service. Iam at loss as to how the claim of the petitioner is sought to be resisted on the basis of provisions of the rules. The plea of the respondents in this regard therefore is fit to be summarily rejected. 8. The only tenable ground which could stand in the way of the petitioners promotion viz his non-passing the departmental examination, being no more there, petitioner prima facie appears to be entitled to his promotion to the post of DPRO. 9. The impugned order dated 24.2.99, Annexure 1, is accordingly quashed and the respondents are directed to consider claim of the petitioner for his promotion to the post of Assistant Director/ DPRO afresh in accordance with law. An appropriate decision in this regard must be taken within two months of receipt/ production of a copy of this order. 10. The writ petition stands disposed of accordingly.