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2001 DIGILAW 971 (PAT)

Bal Mukund Jha v. Bihar State Electricity Board

2001-10-12

CHANDRAMAULI KR.PRASAD, S.N.JHA

body2001
Judgment 1. This Letters Patent Appeal arises from an order by which the writ petition of the appellant has been dismissed by the learned Single Judge. 2. The appellant approached this Court for quashing an order by which his claim for promotion to the post of Deputy Director was rejected by the respondent Bihar State Electricity Board (in short, the Board). He also sought direction upon the Board to refund the sum of Rs. 45,865.50 deducted from his salary and pension and a further direction not to withhold any pensionary benefit. He also sought direction for time bound promotion. 3. The short facts of the case are that the appellant was appointed as Personnel Officer in the . services of the Board in 1975. On 18.5 90 he was granted selection grade with effect from 2.8.1988. One Arvind Kumar was also granted selection grade by the same order but with effect from 13.8.1988. He was thus placed below the petitioner in the gradation list of the Personnel Officers. On 14.2.1996 said Arvind Kumar was promoted to the post of Deputy Director (Personnel) besides one Braj Kumar Tiwari (who was senior to the appellant) bypassing the appellants claim. The appellant moved this Court in CWJC No. 6551/96. In the counter affidavit filed in that case the Board stated that in the meeting held on 30.1.1996, for promotion to the post of Deputy Director (Personnel), the case of the Appellant was considered but as certain charge relating to misappropriation of money and materials was pending against him, one post of Deputy Director (Personnel) was kept reserved. A learned Single Judge of this Court, before whom the writ petition came up for final disposal on 20.4.1988, took the view that only in cases where chargesheet has been issued against an employee or the charge has been framed against him in a criminal case, the consideration for promotion can be deferred, but not in other cases. And as in the instant case no chargesheet had been served upon the appellant nor any charge had been framed in a criminal proceeding, his case should have been considered for promotion along with his juniors. The learned Judge however having noticed that the appellant had retired from service meanwhile on 31.12.1996 observed that there was no question of grant of actual promotion. Even if, after such consideration promotion is granted the appellant will get only notional benefits. The learned Judge however having noticed that the appellant had retired from service meanwhile on 31.12.1996 observed that there was no question of grant of actual promotion. Even if, after such consideration promotion is granted the appellant will get only notional benefits. With these observations the learned Judge directed the Secretary of the Board to consider the appellants case for promotion. 4. Meanwhile during pendency of the aforesaid writ petition, on 20.4.97 a decision was taken for deduction of Rs. 45,856.50 from the appellants salary and Rs. 14,385.50 from his pension in instalments. The appellant challenged the said decision by filing supplementary petition in the pending CWJC No. 6551/96. No order however was passed at the time of disposal of the writ petition on 20.4.98, referred to above. 5. Pursuant to the direction issued in the abovesaid case, on 22.5.1998 the claim of the appellant for promotion to the post of Deputy Director (Personnel) was considered but rejected. The Board took into consideration the fact that a criminal case had been instituted against the appellant on the charge of embezzlement of money and materials of the Barauni Thermal Power Station (BTPS) Consumers Co-operative Society as its Secretary during the period 1992-93, as he had failed to submit accounts of the advance for Rs. 60,242/- to recover which Rs. 45,865.50 had been deducted from his salary while the balance was to be realised from his pension in instalments. A proposal to lodge another FIR for making alteration in the service book of one Muneshwar Choudhary regarding his date of birth was also under consideration. In these circumstances, he was found unfit for promotion to the post of Deputy Director (Personnel) by the DPC on 22.5.1998. 6. The appellant challenged the said decision dated 22.5.1998 which was communicated by letter dated 8.2.2001, pursuant to order in MJC No. 1168/99, in the connected case i.e. CWJC No. 10679/2001 seeking, further, reliefs regarding refund to the amount already deducted, time bound promotion etc., as indicated above. The learned Single Judge by the order under appeal noticed the fact that the appellant had taken advance of Rs. 60,000/- but failed to submit accounts. Ultimately Rs. 45,856/- had been recovered from his salary while the balance amount was to be recovered in instalments from his pension. The learned Single Judge by the order under appeal noticed the fact that the appellant had taken advance of Rs. 60,000/- but failed to submit accounts. Ultimately Rs. 45,856/- had been recovered from his salary while the balance amount was to be recovered in instalments from his pension. The learned Judge accordingly did not find any error in the decision of the Board in rejecting the claim for promotion. He observed that while considering the claim for promotion the authority is required to see the entire record of the employee. 7. We do not find any error in the order of the learned Judge. It is well known that no employee can claim promotion as a matter of right, he can claim only right to be considered for promotion. In the instant case, the claim of the appellant has been considered and rejected on a relevant ground. Recovery of money from ones salary or pension has to be regarded as adverse to ones integrity and if on such a ground, promotion is denied the decision cannot be said to be illegal or arbitrary particularly when a criminal case for the same matter is pending against him. 8. The submission of the counsel for the appellant however was that no such order for recovery could be passed after appellants superannuation. In this regard, he placed reliance on Bhagirathi Jena V/s. Board of Directors, Orissa State Financial Corporation, (1999) 3 SCC 666 . He pointed out that he had challenged the order dated 20.4.97 in the previous writ petition i.e. CWJC No. 6551/96, and in the present writ petition also he had sought direction for refund of the amount, but his grievance was not considered. 9. From perusal of the order dated 20.4.98 in CWJC No. 6551/96, noticed above, it is apparent that the above point was not canvassed before the learned Judge. 9. From perusal of the order dated 20.4.98 in CWJC No. 6551/96, noticed above, it is apparent that the above point was not canvassed before the learned Judge. In the present writ petition, though the appellant does not seem to have challenged the validity of the order dated 20.4.97 in so many words, even though he sought relief for refund of the amount already deducted and restraint order from making recovery from the pension, the submissions of the counsel in this regard seem to have been summarily rejected by the learned Single Judge observing "In my opinion, the said point is not involved in this case as from the order, Annexure 1, it does not appear that any proceeding has been initiated against the petitioner after retirement". The above observation apparently was made in response to the appellants reliance on decision in the case of Bhagirathi Jena (supra). 10. As the only relief which the appellant was granted in the earlier writ petition, CWJC No. 6551/96 was a direction to consider his case on merit for promotion, pursuant to which his claim was considered but rejected on 22.5.1998/8.2.2001, against which the appellant filed the connected writ petition, we do not think, learned Single Judge committed any error in confining himself to the validity or otherwise of the order dated 8.2.2001. As indicated above, the appellant did not expressly challenge the order dated 20.4.97. The writ petition seems to be a mix-up of various reliefs. In the circumstances, as there has been no adjudication of his grievance against the decision to recover the amount of Rs. sixty thousand and odd by way of deduction from salary and provisional pension we are of the view that it would only be just and proper to permit the appellant to file a proper writ petition challenging the validity of the said decision in accordance with law. As far as the claim for promotion is concerned, as the rejection is based on relevant grounds, we do not find any error in the impugned order dated 8.2.2001 rejecting the claim and, as such, we also do not find any error of the learned Single Judge dismissing the writ petition. 11. In the result, this Letters Patent Appeal is dismissed subject to observations made above.