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2002 DIGILAW 1410 (PAT)

Naresh Kumar Dutta v. State Of Bihar

2002-12-12

P.N.YADAV, S.N.JHA

body2002
Judgment S.N.Jha and P.N.Yadav JJ. 1. The dispute in this case relates to appointment by promotion to the Bihar Civil Services (Executive Branch) known as Bihar Administrive Service, from ministerial staff of the Muffasil offices. There are two petitioners in this case. They seek direction upon the Commissioner, Saran Division, Chapra to forward their names along with service records etc. to the Board of Revenue pursuant to Boards letter dated 6.6.87 and 3.7.89 calling for nominations for appointment to the Bihar Administrative Service. 2. Rule 23(ii)(a) inserted in the Bihar Civil Services (Executive Branch) and the Bihar Junior Civil Services (Recruitment) Rules, 1951 by letter no. 5857 dated 2.5.80 of the Personnel and Administrative Reforms Department Government of Bihar provides that 25% vacancies in the Bihar Civil Services (Executive Branch) i.e. Bihar Administrative Service shall be filled from amongst the eligible ministerial staff working in the Secretariat and its attached offices or the Muffasil offices who have put in 12 years and 10 years of service in the Muffasil offices and Secretariat or attached offices respectively, and are below 40 years of age. 3. On 6.6.87 vide letter no. 25-1-87- 12 the Secretary, Board of Revenue called for names of eligible departmental candidates as per the laid down criteria for suitability for filling the vacancies of the 31st batch corresponding to year 1982 meant for the ministerial staff. Again on 3.7.89 vide letter no. 25.1.89 4 similar nominations were called for with respect to the vacancies against the 32nd, 33rd and 34th batches corresponding to the years 1983, 1984 and 1985 respectively. 4. The case of the petitioners is that they were eligible for such appointment/ promotion on the post of Deputy Collector. Their names were also sent by the Collector, Siwan for onward transmission to the Board of Revenue. However, the Commissioner, Saran Division arbitrarily with held the same as a result of which they were denied consideration for such appointment. The selection is finally to be made by the Board of Revenue in consultation with the Bihar Public Service Commission. The Commissioner therefore had no authority to withhold the names. The further case of the petitioners is that they were appointed as Lower Division Clerks on 23.8.71 and 15.10.65 respectively.They were promoted to the Junior Selection Grade after scrutiny of their service records. The Commissioner therefore had no authority to withhold the names. The further case of the petitioners is that they were appointed as Lower Division Clerks on 23.8.71 and 15.10.65 respectively.They were promoted to the Junior Selection Grade after scrutiny of their service records. As on the cut-off date (1st August of the year) they had put in more than 12 years of service and were less than 40 years of age. Their service records being good they were thus entitled to have their cases considered. The further case of the petitioners is that there were 20 vacancies on the post of Deputy Collector in the 31st batch 10 out of which were unreserved. Similarly, in the 32nd, 33rd and 34th batches there were 104 vacancies (20+42+42) out of which 52 were unreserved. Thus in all 52 unreserved vacancies were available for the four batches of recruitment. Out of them 13 vacancies were still existing against which the petitioners could/can be considered. 5. The case of the respondents is that petitioner no. 1 was appointed as Lower Division Clerk on 18.1.74 vide Collector, Siwan order no. 22/74. Earlier he was Muharrir carrying lesser scale of pay than the post of Lower Division Clerk. He joined as Lower Division Clerk pursuant to the said appointment on 27.2.74. He did not thus have 12 years requisite service and, therefore, was not eligible for appointment. Besides, there was also break-in-service on 19.1.82 during strike period. Against this break-in-service he never made representation. Further, he took leave for about a month every year and for this reason too he cannot be considered suitable for appointment to the Bihar Administrative Service. As regards petitioner no. 2 the case of the respondents is that he had earned bad remarks in his character roll during previous five years service, namely, 1977 78, 1978-79 and 1982-83 and, therefore, in terms of guidelines he too was not suitable for appointment. 6. Shri Roy Shivaji Nath, learned counsel for the petitioners, submitted, as regards petitioner no. 1 that the petitioners 1 absence on 19.1.82 was regularised by treating the absence as earned leave vide order no. 189/91 pursuant to the Finance Department letter no. 732 dated 21.2.90 and, therefore, the absence on 19.1.82 could not constitute break-in-service. 6. Shri Roy Shivaji Nath, learned counsel for the petitioners, submitted, as regards petitioner no. 1 that the petitioners 1 absence on 19.1.82 was regularised by treating the absence as earned leave vide order no. 189/91 pursuant to the Finance Department letter no. 732 dated 21.2.90 and, therefore, the absence on 19.1.82 could not constitute break-in-service. As to the respondents case of the petitioners frequently taking leave, counsel submitted that the petitioner has explained the cricumstances in which leave was taken. In any view, leave having been granted by the authority, the same could not be used against him constituting unsatisfactory service and a disqualification for appointment/promotion to the Bihar Administrative Service. Further, the post of Moharrr was treated at par with Lower Division clerk and therefore the appointment of the pettioner could not be reckoned from 18.1.74/ 27.2.74. As regards petitioner no. 2, consel submitted that the so called adverse remarks were never communicated to him and, therefore, on that ground he could not be denied consideration. In this regared counsel placed reliance on Gurdial Slngh Fijji V/s. State of Punjab & Ors.,AIR 1979 Supreme Court 1622 and Amar Kant Choudhary V/s. State of Bihar & Ors. AIR 1984 Supreme Court 531. Shri Shivaji Nath also contended that the Board of Revenue/Bihar Public Service Cornmssion being the competent authority in the matter of selection for appointment/promotion, the Divisional Commissioner was not justified in withholding the names of the pettioners, thus preempting consideration of their case for such appointment. 7. Before considering the cases of the petitioners, reference may be made to the letters dated 6.6.87 and 3.7.89 calling for the names of the eligible and suitable ministerial staff for promotion to the Bihar Administrative Service. The letters among other things contain the eligibility clause [in accordance with Rule 23(ii)(a) of the Rules] and the guidelines. The guidelines relevant for our purpose are as under : Guidelines relating to selection for nomination : The person nominated by you should be best amongst the staff working under you in order of priority. It may be noted that the officers of the Bihar Administrative Service are required to work on the posts of Anchal Adhikari, Block Development Officer, Consolidation Officer, Assistant Settlement Officer etc. Therefore, while nominating the employees their ability to perform the duties of these posts should be properly examined. It may be noted that the officers of the Bihar Administrative Service are required to work on the posts of Anchal Adhikari, Block Development Officer, Consolidation Officer, Assistant Settlement Officer etc. Therefore, while nominating the employees their ability to perform the duties of these posts should be properly examined. It is, therefore, suggested that keeping the aforementioned qualifications under consideration only the best employees should be selected whose service records are very good, against whom no adverse remarks has been recorded during the last five years and no departmental proceeding is pending. It is also suggested that in making the nomination the reservation policy applicable to direct recruitment should be kept in mind. After making final selection the names may be sent to the Board according to priority. Along with nominations, clearance certificate to the effect that no inquiry or departmental proceeding is pending should be sent. 8. From bare perusal of the above guidelines (which are to be kept in mind while sending the nominations) it is clear that the Divisional Commissioner through whom the nominations are to be sent was not supposed to act like post office. He was required to make scrutiny of the suitabilty of the candidates and only thereafter forward the nominations of suitable candidates. The contention of the counsel that the Divisional Commissioner had no authority to withhold the names because the autttority to make selection vests in the Board of Revenue/B.P.S.C. has therefore no substance. 9. Coming to the individual cases, so far as petitioner no. 1 is concerned, even if his absence on 19.1.82 as constituting break-in-service is ignored, by reason of order no. 189/91 (even though the order was issued on 19.11.91, pursuant to the Finance Department letter dated 21.2.90 much after the period when the nominations were to be sent), the fact that the petitioner went on strike could be taken into consideration as a relevant fact. It need hardly be emphasised that the break-in-service visits a government servant with very serious consequence. He loses his entire seniority thereby affecting not only chance of promotion but also his existing pay and, therefore more often than not, the period of absence on account of strike etc. is condoned by treating the period as period spent on earned leave. However, the fact that the employee went on strike stares at his face notwithstanding that adverse effect thereof is wiped out. is condoned by treating the period as period spent on earned leave. However, the fact that the employee went on strike stares at his face notwithstanding that adverse effect thereof is wiped out. For the same reason, the submission that the petitioner was always granted leave and, therefore, his frequently taking leave should not stand in his way in consideration of his case, must be rejected. A government servant is entitled to different kinds of leave but that does not mean that he shoufd go on availing leave as and when due regardless of his obligations as a government servant. Taking frequent leave reflects upon the conduct of a government servant and cannot be ignored while considering his suitability for a higher post demanding greater responsibilities. As seen above, on appointment to the Bihar Administrative Service, the person is supposed to discharge the duties of the posts of Anchal Adhikari, Block Development Officer etc., and if he were to continue the habit of going on leave off and on, it may adversely affect the discharge of duties of such posts. It may be recalled that while make nomination the authorities are required to take into consideration the suitability of the person for the posts of Anchal Adhikari, Block Development Officer and the like. If, thus, on the ground that the petitioner was in habit of taking leave off and on, the respondents treated him unsuitable, the action cannot be said to be arbitrary. 10. Coming to the case of petitioner no. 2, the averments of the petitioner regarding non-communication of the adverse remarks for which his name was not forwarded are not denied in the counter affidavit. In view of the ratio of the decisions in Gurdial Singh Fijji (supra) and Amar Kant Choudhary (supra) as also in view of the provisions of Rules 163 of the Boards Miscellaneous Rules, the same, perhaps, could not be a ground for withholding his name and, therefore, the contention of the counsel in this regard would appear to be well founded. However, it appears that petitioner no. 2 has only 9 months left to retire, his date of birth being 25.9.45. Even if his case is allowed, this Court cannot direct his promotion. The Court can only direct the respondents to consider the case. However, it appears that petitioner no. 2 has only 9 months left to retire, his date of birth being 25.9.45. Even if his case is allowed, this Court cannot direct his promotion. The Court can only direct the respondents to consider the case. The direction of the kind, we are afraid, would be futile at this stage as there is iittle chance of the same being effectuated before his superannuation. Besides, it is doubtful if the vacancies are available against which his case can be considered. Even according to the petitioners, all unreserved vacancies of the 31st batch had been filled up, only 13 vacancies out of 52 unreserved vacancies of the 32nd, 33rd and 34th batches were available. Apparently it was so on the date of filing of the case in 1991. Much water has flown in the Ganges since and it is not the case of the petitioners that those vacancies are still available. In any view, his appointment at this stage may unsettle the appointment of some others who are not before this Court and, in the circumstances, we are not inclined to give any relief to petitioner no.2 either. 11. In the result, for the reasons stated above, we would dismiss this writ petition but without any order as to costs.