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2003 DIGILAW 1064 (JHR)

Hrishikesh Pradhan v. State Of Bihar

2003-09-01

TAPEN SEN

body2003
JUDGMENT Tapen Sen, J. 1. Heard Mrs. M.M. Pal, learned counsel for the petitioner and Mr. Naveen Kumar, JC to SC I. 2. The petitioner was an aspirant for promotion to the post of Head Master in the year 1990 itself. The respondents instead of promoting him, passed an order on 20.4.1990 promoting others to that post (i.e. to the post of Head Master) but left out the petitioner and one Guru Prasad Mahato. Guru Prasad Mahato filed a Writ Application and it appears that on the basis of the order passed therein, an order was passed on 12.7.1992 by Annexure 3 whereby and whereunder he was adjusted on the vacant post of a Head Master and was also given appropriate scale attached thereto. The petitioner, drawing the example of said Guru Prasad Mahato and also taking the plea, of discrimination to the effect that others who were junior to him had been given promotion, filed a representation on 15.12.1992 by Annexure 4 but even then, his pleas did not find favour thereby compelling him to move the then Ranchi Bench of the Patna High Court vide CWJC No. 1139 of 1994(R). In that case, the respondents took a plea that final gradation list was in the process of being prepared with the help of computers and the real picture would be clear only after the final gradation list took shape. Consequently, the Writ Court directed that after final gradation list was prepared with the help of the computers, the case of the petitioner would then be considered for the post of Head Master and if it was found that injustice had been done and he was not given promotion from his due date then he would file a representation which would be disposed off in accordance with law. 3. According to the petitioner, the final computerized gradation list was published on or about 9.11.1995 but again his name was left out. Mrs. M.M.Pal, learned counsel for the petitioner, submits that this gradation list was prepared in a most mechanical manner and the case of the petitioner was not considered at all. 3. According to the petitioner, the final computerized gradation list was published on or about 9.11.1995 but again his name was left out. Mrs. M.M.Pal, learned counsel for the petitioner, submits that this gradation list was prepared in a most mechanical manner and the case of the petitioner was not considered at all. However, from a perusal of paragraph 10 of the counter affidavit which appears to have been filed on 22.3.1996, a statement has been made to the effect that the petitioners name was not included in the 1995 gradation list because the petiti6ner was not a post graduate which was an essential requirement for being promoted to the post of Head Master as per the new Rule. It has further been stated at paragraph 11 of the said counter affidavit that all promotions which were granted after 1.1.1986 without compliance of the aforementioned criteria of the new promotion Rules, would accordingly be reviewed. 4. It appears that the aforementioned Rules of 1993 was published on 9.7.1993 making it retrospectively effective from 1.1.1986. It appears that following the aforementioned 1993 Rules, the District Superintendent of Education, West Singhbhum at Chaibasa passed an order on 4.4.1998 cancelling the promotions of 55 teachers who had been promoted to the post of Head Master following the old Rules. That order became a subject matter of challenge in the case of Ruth Topno and Ors. v. State, being CWJC No. 2018 of 1998 (R). That writ application was allowed and the order dated 4.4.1998 was set aside. This has been stated in paragraph 5 of the Supplementary counter affidavit. Following the judgment of Ruth Topno and Ors. v. State, a number of other cases including CWJC No. 2063 of 1998(R) was filed and by judgment/order dated 16.2.1999, those writ applications were allowed and the order dated 4.4.1998 is so far as it related to those petitioner was quashed. 5. In the instant case, the only ground that appears to have been taken by the respondents for not promoting the petitioner is because of the aforementioned 1993 Rules. Let it be recorded that the petitioner claims to have been entitled to promotion on and from 20.4.1990 when juniors were promoted and therefore, the legislation/rule which came three years later cannot be made retrospectively applicable so as to take away the acquired rights of a person. Let it be recorded that the petitioner claims to have been entitled to promotion on and from 20.4.1990 when juniors were promoted and therefore, the legislation/rule which came three years later cannot be made retrospectively applicable so as to take away the acquired rights of a person. Reference for the aforementioned proposition may be made to the case of Union of India v. Tushar Ranjan Mohanti, reported in (1994) 5 SCC 450 , where their Lordships have held that a prospective law cannot retrospectively take away an acquired/vested right. Similar is the view of the Honble Supreme Court of India in the case of P. Tulsidas and Ors. v. Government of Andhra Pradesh and Ors., reported in (2003) 1 SCC 364 . In yet another judgment passed by this Court in the case of Rajeshwar Prasad and Ors. v. State of Bihar and Ors., reported in 2003 (1) JCR 144 , similar view was taken. 6. Drawing the same analogy, this Court is of the opinion that it is true that under Article 309 of the Constitution of India, the State may, in exercise of its executive power under Article 162 make provisions laying down conditions of service but in the garb of exercising such power, the State cannot be permitted to curtail or snatch away an acquired and/or vested right even by a legislation or a rule giving it retrospective effect. 7. A similar proposition also fell for consideration before the Honble Supreme Court of India in the case of Food Corporation of India and Ors. v. Om Prakash Sharma and Ors., reported in (1998) 7 SCC 676 , and in paragraph-36, the Honble Apex Court has held that amendment in service rule cannot be made retrospective. 8. That being the position, this Court holds that the respondents cannot take the aforementioned plea to frustrate the entitlement of the petitioner which become a stark reality in the year 1990 itself. This Court also does not appreciate the manner in which the State has ignored the claim of this petitioner right from 1990- When he came to this Court earlier, their stand was that they were in the process of preparing a computerized gradation list and when the gradation list was published, they come out with a plea that his name was not included because of the 1993 Rule. Now in this Writ Application, when they are asked to file supplementary affidavit, it is stated at paragraph 9 thereof that more information about the claimant i.e. service book, school records, report from the Area Education Officer are needed and the same shall be discussed in meeting of the District Education Establishment Committee headed by the Deputy Commissioner, West Singhbhum, Chaibasa as per rule and the vacancy. 9. In the opinion of this Court, the respondents are merely procrastinating the matter right from 1990 without actually discharging their duties. Normally, in matters of promotion, it is said that promotion is not a right and that a person is entitled only to be considered for promotion. But in this case, the discrimination is so glaring and the excuses of the respondents are so lame and the manner of suffering of the petitioner is so acute that this Court, following a Division Bench Judgment in the case of Dr. Paras Nath Prasad v. State of Bihar, reported in 1990 (2) PLJR 248, with special reference to paragraph 20 thereof, comes to a conclusion that this is a fit case in which a direction may be issued to the respondents to promote the petitioner with effect from the due date and accordingly fix salary, allowances and other benefits and to also fix his position in service so that consequential retiral benefits may be given to him. 10. The writ application is accordingly allowed and the reliefs sought for by the petitioner in this case are granted. Considering the long period during which the petitioner has been put under miseries including enforced litigation, this Court directs the concerned respondents to complete the entire exercise within the shortest possible period but not beyond a period of four months from the date of receipt of a copy of this judgment. Let appropriate mandamus therefore be issued. The writ application is allowed. There shall however be no order as to costs.