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2002 DIGILAW 831 (PAT)

Shyam Payre Sharma v. State Of Bihar

2002-08-01

SHASHANK KR.SINGH

body2002
Judgment 1. The present writ application has been filed for quashing the order dated 30.11.99 as contained in Annexure-7, by which selection grade granted to the petitioner with effect from 1.3.1989 has been cancelled with retrospective effect. 2. Contention of learned counsel for the petitioner is that petitioner was appointed as a Typist in River Villey Project Department, in the year 1961. The said department merged with the Irrigation department and petitioner became an employee of the Irrigation department. The procedure regulating the service condition of the employees of the aforesaid department became his service conditions also. Subsequently, he was promoted as Upper Division Clerk on 1.4.73 and Head Clerk on 1.4.82. 3. By filing C.W.J.C. No. 3940 of 1981 some persons moved this Court as promotion to many of them had not been granted taking seniority as the basis of the same, as the aggrieved persons had they been in their own circle, were senior taking the date of appointment as their initial date entering into service. The aforesaid writ application was disposed of on 13.8.86. Subsequently petitioner was granted senior selection grade with effect from 1.3.89. Final seniority list was also published on 24.2.97 as contained in Annexure-3 reckoning the seniority of the petitioner in junior selection grade and the senior selection grade. However, by the impugned order on the ground that the petitioner had not passed all papers in the departmental examination, his aforesaid promotion has been taken away. The petitioner is aggrieved by the same. 4. The stand of learned counsel for the petition is that by Government circular as contained in Annexure-13 issued by the Finance Department it goes to show that in view of letter of the Finance Department being PAR-04-2/89/4178 dated 12.8.98, by which exemption were granted to the assistant from passing the accounts examination which was being further clarified that the assistants who have been given selection grade prior to 1.9.83, same should not be disturbed on the ground of their not passing of the accounts examination. The said letter further clarified that if while they were granted first promotion they had not passed the accounts examination which was a must for getting that promotion in view of relaxation of the State Government, then in case they fulfil the other conditions they can be granted further promotion. 5. The said letter further clarified that if while they were granted first promotion they had not passed the accounts examination which was a must for getting that promotion in view of relaxation of the State Government, then in case they fulfil the other conditions they can be granted further promotion. 5. It has further been clarified in specific terms by saying that if the first promotion was granted prior to 1.9.83 and the candidate fulfils the other conditions and subsequent to 1.9.83 still those can be granted if he fulfils other conditions except the condition of passing of the examination. In view of same, it has been contended by learned counsel for the petitioner that Annexure-7 has been issued on a non-est ground. 6. Mr. V.N. Sinha, learned counsel for the State, on the other hand, has stated that both the promotion to the junior selection grade and the senior selection grade cannot be said to be in one transaction. If the same are separate transaction and are considered on separate dates then requisite qualification which are to be considered whether to have passed by the candidate or not on the relevant date of consideration. If junior selection grade was granted on a date tor which the same was waived and that period was beyond the period for which it was applicable, it was a necessary requisite qualification for consideration and if the candidate has not passd the accounts examination, he could not have been promoted to senior selection grade as he had been saved from having the qualification for consideration in the junior selection grade by virtue of relief/exemption granted by the State. Though aforesaid submission appears to be relevant but in view of Government circular which has been quoted above as contained in Annexure-13, this Court has no option but to quash Annexure-7 so far it relates to the petitioner. 7. This writ application is allowed to the extent indicated above.