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2003 DIGILAW 509 (JHR)

Ramdeo Mahto v. State Of Bihar

2003-04-22

M.Y.EQBAL

body2003
JUDGMENT M.Y. Eqbal, J. 1. Heard Mr. M.S. Anwar, learned senior counsel appearing on behalf of the petitioner and Mr. R.S. Mazumdar, learned Government Advocate. 2. In the instant writ application the petitioner has prayed for issuance of an appropriate direction upon the respondents to promote him to the post of Deputy Commissioner, Commercial Taxes with effect from the date other persons were granted confirmation on the said post and also promote him to the post of Joint Commissioner, Commercial Taxes and further for quashing the decision of the Departmental Promotion Committee (in short DPC) in its meeting held on 24.5.1997. 3. The petitioner was appointed in the Bihar Finance Service in the basic cadre in the year, 1974 was promoted to the post of Assistant Commissioner, Commercial Taxes in 1982. It is stated that a gradation list was prepared and as per the gradation list petitioner qualified to be promoted to the post of Deputy Commissioner, Commercial Taxes. However, no promotion could be given because of pendency of a case before the Supreme Court. In 1989 the Supreme Court passed an interim order to the effect that the Government may take up the promotion matter on ad hoc basis which shall be subject to the result of the case. In 1992 DPC was constituted and the said Committee in its meeting dated 15.7.1992 decided to give temporary promotion. In pursuance of the decision the case of the petitioner and various others were considered and all those persons including the petitioner were promoted to the post of Deputy Commissioner, Commercial Taxes on ad hoc basis. 4. Petitioners case is that since the promotion to the post of Deputy Commissioner, Commercial Taxes was purely temporary and there was vacancy of Joint Commissioner, Commercial Taxes, the DPC was again constituted for giving promotion to the post of Joint Commissioner and the case of the petitioner was also considered. However in the said meeting petitioners name was not cleared because confidential character roll was not made available and hence one post was kept reserved for him. It appears that after final decision of the Supreme Court all persons who were promoted along with the petitioner to the post of Deputy Commissioner, Commercial Taxes, have been promoted to the post of Joint Commissioner, Commercial Taxes vide notification dated 28.5.1997 but the petitioners case was withheld though one post was kept reserved for him. It appears that after final decision of the Supreme Court all persons who were promoted along with the petitioner to the post of Deputy Commissioner, Commercial Taxes, have been promoted to the post of Joint Commissioner, Commercial Taxes vide notification dated 28.5.1997 but the petitioners case was withheld though one post was kept reserved for him. Since all those persons who were promoted to the post of the Joint Commissioner, were not regularized on the post of Deputy Commissioner, Commercial Taxes, a meeting was held to regularize all the persons to the post of Deputy Commissioner, Commercial Taxes. Accordingly all those persons were regularized except the petitioner whose case was kept pending because of internal complaint against him. It is contended by the petitioner that no charge-sheet whatsoever was served upon him nor any departmental proceeding was either initiated or was pending and as such withholding regularization of the petitioner to the post of Deputy Commissioner, Commercial Taxes and denial of his promotion to the post of Joint Commissioner, Commercial Taxes, is absolutely illegal, arbitrary and without jurisdiction. 5. The respondent-State of Bihar has filed counter affidavit wherein it is stated that in 1997 while taking up the cases of those officers for regularisation on the post of Deputy Commissioner Commercial Taxes, the case of the petitioner was considered but due to some charges pending against him in the Vigilance Section, the Committee decided to keep one post reserved for the petitioner. It is contended that since the petitioner has not been regularized in the rank of Deputy Commissioner, Commercial Taxes, question of his promotion in the rank of Joint Commissioner, Commercial Taxes, does not arise. Respondents further case is that Administrative Department of the Government has to abide by the recommendations of the DPC who recommended to keep one post reserved for the petitioner in the rank of Joint Commissioner, Commercial Taxes. In para 13 of the counter affidavit it is stated that in view of the prima facie proved charges against the petitioner, the department has already started the process of initiating a departmental proceeding against the petitioner. 6. In a separate counter affidavit filed by the respondent-State of Jharkhand it is stated that the cadre of the officers of Finance service including that of the petitioner has not been decided or finalised. 6. In a separate counter affidavit filed by the respondent-State of Jharkhand it is stated that the cadre of the officers of Finance service including that of the petitioner has not been decided or finalised. However, the petitioner is serving within the State of Jharkhand but due to non bifurcation of the cadre all the matters relating to promotion are to be considered by the State of Bihar. 7. From perusal of the affidavits the admitted facts which emerge are that in 1992 the petitioner along with others was promoted to the post of Deputy Commissioner, Commercial Taxes. In the year 1997 the DPC took up the case of all the officers including the petitioner for their promotion to the post of Joint Commissioner. Commercial Taxes. From Annexure-5 which is the minutes dated 3.5.1997 of the DPC, it appears that as against the name of the petitioner it was written that "for non-availability of the confidential character roll, the matter is kept pending and one post is reserved for him." Similarly on 9.6.1997 the DPC again took up the cases of all those officers including the petitioner temporarily promoted to the post of Deputy Commissioner Commercial Taxes, for their regulari-sation but again the case of the petitioner for regularisation on the post of Deputy Commissioner, Commercial Taxes was kept pending on the ground that there was internal complaint pending against him. 8. Nowhere it is stated by the respondents that charge-sheet was served upon the petitioner and a departmental proceeding against him was initiated and the same is pending. As noticed above in the counter affidavit filed by the respondent-State of Bihar it is stated in para 21 that since the charges have been prima facie proved the department has already started the process of initiating a departmental proceeding against the petitioner. It is further stated in the supplementary affidavit that charge-sheet against the petitioner has been submitted in respect of some complaint of the year 1983. The said charges were communicated to the Director of Treasury and Accounts-cum- Additional Secretary. Finance department for his opinion but the same has not been received till date by the Com-missioner-cum-Secretary, Bihar Patna and because of non-receipt of final opinion the departmental proceeding has not been started against the petitioner. 9. The said charges were communicated to the Director of Treasury and Accounts-cum- Additional Secretary. Finance department for his opinion but the same has not been received till date by the Com-missioner-cum-Secretary, Bihar Patna and because of non-receipt of final opinion the departmental proceeding has not been started against the petitioner. 9. Similarly the respondent-State of Jharkhand in its counter affidavit has stated that no proceeding, whatsoever, against the petitioner has been transferred to the Commercial Department, Jharkhand and no proceeding is pending in the State of Jharkhand against the petitioner. 10. In the light of the admitted facts that neither charge-sheet have been served upon the petitioner nor any departmental proceeding has been initiated till date either by the State of Bihar or by the State of Jharkhand, withholding of promotion of the petitioner to the post of Joint Commissioner, Commercial Taxes, and also keeping his matter relating to regularisation pending are absolutely illegal, arbitrary and mala fide. Even assuming that on the basis of complaint made against the petitioner in the year, 1983 any departmental proceeding was initiated, that cannot and shall not any stretch of imagination continue for 20 years and during that period the petitioner would be deprived of promotion to higher post. The petitioner has annexed a resolution taken by the State of Bihar dated 7.12.1985 as contained in Annexure-10 to the supplementary affidavit from which it appears that it was resolved that in cases where charges have been found to be prima facie correct and if the matter has remained pending for more than three years and eight months and has not been disposed of, then in that case such government servants shall be allowed provisional promotion and pension etc. However, this will not apply in cases where departmental inquiry has been set up or any criminal case is pending. Admittedly neither any departmental inquiry has been set up nor any criminal case is pending against the petitioner. In that view of the matter I am of the opinion that the petitioner cannot be deprived of his legitimate claim of regularisation to the post of Deputy Commissioner, Commercial Taxes and promotion to the post of Joint Commissioner, Commercial Taxes. 11. Admittedly neither any departmental inquiry has been set up nor any criminal case is pending against the petitioner. In that view of the matter I am of the opinion that the petitioner cannot be deprived of his legitimate claim of regularisation to the post of Deputy Commissioner, Commercial Taxes and promotion to the post of Joint Commissioner, Commercial Taxes. 11. For the reasons aforesaid I allow this writ application and direct the respondents, particularly, the State of Bihar, to immediately and forthwith regularise the promotion of the petitioner to the post of Deputy Commissioner, Commercial Taxes and also consider his case for promotion to the post of Joint Commissioner, Commercial Taxes with effect from the date he was entitled to such promotion.