Research › Search › Judgment

Jharkhand High Court · body

2003 DIGILAW 398 (JHR)

Kailash Behari Modi v. State Of Bihar

2003-03-27

TAPEN SEN

body2003
ORDER Tapen Sen, J. 1. Heard Mr. V. Shivnath, learned counsel for the petitioner and Mr. Rupesh Singh, J.C. to S.C.I. for the State- Respondents. 2. The petitioner has made a prayer that his case for promotion to the super time scale be considered with effect from 01.03.1989, as other persons who are junior to him have been given the said promotion from the said date. The petitioner has also prayed for consequential benefits relating to fixation of his salary etc. on the basis of grant of the aforementioned promotion to the super time scale. The petitioner further prays that consequential calculations be also directed to be made in relation to his post retrial benefits. The petitioner was appointed as Lower Division Clerk on 23.06.1954 and was subsequently promoted to the post of Upper Division Clerk with effect from 19.12.1959. He passed the Accounts Examination on 30.06.1960. While he was posted as an Accountant at Sub-Treasury at Chatra, he was proceeded against for misconduct and was put under suspension with effect from 09.08.1975. A criminal case was also simultaneously initiated but that criminal case did not succeed as a result of which, the petitioner was discharged from the criminal charges. Finally however, an order was passed on 09.12.1988, vide Annexure-1 and from a perusal thereof, it is apparent that the petitioner, after having been found to be innocent and not guilty, the Departmental Proceedings were dropped and the period that had been spent under suspension was ordered to be treated as on duty. 3. Thereafter on 20.06.1990 by Annexure-4, the petitioner was given promotion to the selection grade with effect from 24.09.1975. Later on i.e. on 27.06.1990, the meeting of the Establishment Committee was held in the office of the Deputy Commissioner, Hazaribagh and upon perusal of Internal page 3 (running page 36) it will be evident that the Committee took a decision that 6 posts in the general category was kept reserved and 8 posts of Senior Assistants was also kept reserved awaiting final result of either the departmental proceedings or the criminal case. The post meant for the petitioner and one Sadanand Prasad was ordered to be kept reserved. 4. After reserving the post in the manner indicated above, the petitioner makes a grievance that persons junior to him (shown at serial Nos. 2 to 5 of Annexure-7) were given promotion but the petitioner was not considered. The post meant for the petitioner and one Sadanand Prasad was ordered to be kept reserved. 4. After reserving the post in the manner indicated above, the petitioner makes a grievance that persons junior to him (shown at serial Nos. 2 to 5 of Annexure-7) were given promotion but the petitioner was not considered. In the mean time on 31.08.1990, the petitioner retired. Thereafter on 08.09.1992 by Annexure-8, the benefit of 2-1/2 percent super time scale was again given to other persons even junior to the petitioner but the petitioner was not given that benefit. The name of such persons are included at serial Nos. 8, 9, 10 and 12 of Annexure-8. 5. In the next year i.e. on 27.01.1993 by Annexure-6, instead of considering the question of granting similar benefit to the petitioner, the respondents granted him the senior selection grade with effect from 01.04.1981 by Annexure-6 but his case relating to 2-1/2 percent super time scale was not even attended to. 6. The petitioner, therefore, claims that he is entitled to be given similar benefits as has been given to his juniors referred to above at Annexure-8 plus the benefits of 2-1/2 percent super time scale with effect from 01.03.1989. According to Mr. Rupesh Singh, J.C. to S.C.I., a perusal of Annexure-8 itself will show that the promotions that were given to Durga Rajak, Suren Ram, Corilos Topno and C.R. Barla were all given from the quota of scheduled casts/scheduled tribes. The petitioner being a member of the general category, therefore, cannot be allowed to claim parity with them. What Mr. Rupesh Singh, J.C. to S.C.I. has submitted appears to be correct but at the same time what cannot be lost sight of is that at paragraph 9 of the counter affidavit, the respondents have stated that there was only one vacant post reserved for promotion In the general category which was meant for one Nawal Kishore Prasad who was senior to the petitioner. They have further stated that he was eligible for promotion to the super time scale from 01.03.1989 but a criminal case had been filed against him which was still pending in the Court and although he died later on in the year 1996, the claim of his promotion was remained alive and his dependants could not be deprived from the benefit of promotion, in the event he was acquitted of the charges in relation to the pending criminal case against him. In reply to the aforementioned paragraph of the counter affidavit, Mr. V. Shivanath, learned counsel for the petitioner has produced for perusal of this Court, a certified copy of the judgment passed by the then Ranchi Bench of the Patna High Court in Criminal Appeal No. 234 of 1986 (R) Nawal Kishore Prasad v. State of Bihar. Let it be kept on record. 7. Mr. V. Shivnath has submitted that Nawal Kishore Prasad, of whom reference has been made at paragraph 9 of the Counter affidavit, was convicted under, Section 5(1), (d) read with Section 5(2) of Prevention of Corruption Act, and sentenced to undergo rigorous imprisonment for seven years. He was also sentenced to undergo rigorous imprisonment for three years under Section 161 of India Penal Code by the trial Court on 03.12.1986 in Special Case No. 2/1978 (Gaz)/G.R No. 328 of 1978 (Kodarma at Hazaribagh) by judgment passed by Rameshwar Tiwari, Special Judge (Vigilance), Ranchi. The aforementioned judgment was challenged by the Nawal Kishore Prasad in the aforementioned Criminal Appeal No. 234 of 1986 (R) and by judgment dated 21.02.1990, the Appeal was dismissed after reduction of sentences. By the aforementioned judgment, the Appellate Court held that there was no merit in the Appeal. 8. Thus if the ground taken by the respondents to the effect that Nawal Kishore Prasad was eligible and he was senior to the petitioner and that in case of acquittal, he would have to be given the benefits, it appears that such a ground has been taken only for the sake preparing a counter affidavit. Let it be recorded that the counter affidavit was filed on 15.12.1998, when the judgment of the trial Court had already been rendered on 03.12.1986 and by the Appellate Court on 21.02.1990. Let it be recorded that the counter affidavit was filed on 15.12.1998, when the judgment of the trial Court had already been rendered on 03.12.1986 and by the Appellate Court on 21.02.1990. Eight years thereafter the counter affidavit was filed wherein the aforesaid statement was made that the criminal case was still pending and that was a ground for not considering the case of the petitioner. 9. The ground therefore assigned by the respondents for depriving the benefits of the super time scale to the petitioner appears to be now non est in view of the judgment produced in Court. The learned counsel for the respondents is not in a position to dispute that the judgment that has been produced in Court is not that of the same Nawal Kishore Prasad about whom the reference has been made in the counter affidavit. 10. In that view of the matter this Writ Petition is allowed and the respondents are directed to now consider and grant the appropriate promotion to the petitioner if the same has actually fallen vacant on account of death and subsequent conviction of Nawal Kishore Prasad, who according to the respondents was the only impediment for the aforementioned grant of promotion to the petitioner. With the aforesaid directions and observations this Writ Petition is allowed.