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2005 DIGILAW 459 (PAT)

Subodh Bihari Sahay v. State Of Bihar

2005-04-27

BARIN GHOSH

body2005
Judgment 1. On 20th August, 1982 the petitioner completed six years of service in Bihar Education Service and, accordingly, became eligible for promotion in junior selection grade. In 1984 the Departmental Establishment Committee found the petitioner fit to be promoted in the junior selection grade. However, on 16th November, 1985 the petitioner was given time bound promotion in the scale of junior selection grade with effect from 20th August, 1985. At that stage the petitioner did not insist that he should be given such promotion with effect from 20th August, 1982 instead of 20th August, 1985. 2. Thereafter on 31st December, 1987 the petitioner was posted as District Education Officer, Singhbhum, which is a senior selection grade post. However, while the petitioner was so posted it was indicated that the petitioner shall be entitled to receive salary at the same scale at which he was drawing salary immediately before such posting. Petitioner did not raise any objection in relation to either such posting or in relation to payment of lesser salary in comparison to the work load attached to the post where the petitioner had been posted. On 31st December, 1993 the petitioner was posted as Deputy Director, Mass Education, which post, there is no dispute, is a super selection grade post. Again while posting the petitioner to the post of Deputy Director, Mass Education, it was stipulated that the petitioner shall be drawing the salaries which he was drawing immediately before such posting. Once again the petitioner did not raise any objection either to such posting or payment of lesser salary in comparison to the work load that the petitioner was asked to shoulder. The petitioner retired on 31st January, 1997 while discharging the duties of Deputy Director, Mass Education, but drawing salaries to the scale of junior selection grade. The pension and the terminal dues of the petitioner have been settled on the basis of the salary the petitioner was drawing in the scale of junior selection grade. The petitioner retired on 31st January, 1997 while discharging the duties of Deputy Director, Mass Education, but drawing salaries to the scale of junior selection grade. The pension and the terminal dues of the petitioner have been settled on the basis of the salary the petitioner was drawing in the scale of junior selection grade. In this writ petition the petitioner is seeking payment of salary with effect from 31st December, 1987 at the rate at which a person holding a senior selection grade post was entitled to receive, with effect from 31st December, 1993 salaries at the rate at which a person was entitled to receive salary in the scale of super selection grade and also fixation of his terminal and retiral dues on the basis of last pay drawn to be determined at such pay of the petitioner. 3. When the petitioner was asked to discharge the duties of higher post but at the scale at which he was drawing his salaries earlier, that was an offer which the petitioner could accept or refuse to accept. The petitioner accepted the offer and, accordingly, a contract was made and the petitioner is not entitled to ask anything contrary to that. 4. However, the petitioner was a public servant and, accordingly, he was entitled to all protections to which a public servant is otherwise entitled. It appears that after 1984 the Departmental Establishment Committee sat in the year 1999 to consider the case of promotion of all officers working in the department where the petitioner was also working. At that stage the said committee did not consider the case of promotion of the petitioner inasmuch as an allegation against the petitioner was pending investigation by the police. The said committee, however, considered the cases of juniors to the petitioner and gave them promotions with retrospective effect entitling them to draw salaries of the promotional post with retrospective effect. 5. Any committee constituted to consider promotion of a Public Officer is bound to consider the case of all persons who come within the zone of consideration. If a person comes within the zone of consideration but against that person a criminal proceeding has been initiated or a disciplinary proceeding has been initiated, the promotional committee is bound to decide the fate of that person but to keep the decision in sealed cover until such time the proceeding is concluded. If a person comes within the zone of consideration but against that person a criminal proceeding has been initiated or a disciplinary proceeding has been initiated, the promotional committee is bound to decide the fate of that person but to keep the decision in sealed cover until such time the proceeding is concluded. It is now well settled by various pronouncements of the Supreme Court dealing with the matter that a disciplinary proceeding is initiated against an employee when a charge sheet is issued against the employee calling upon him to show cause and a criminal proceeding is instituted against an employee when a charge sheet is filed in a criminal court by the police department against the employee. 6. Therefore, until such time a charge sheet had been filed in the criminal court a committee deciding the claim of promotion of an employee must proceed on the basis that no criminal case is pending against that employee and, accordingly, is obliged to decide the fate of such employee for promotion and not to keep the decision of such promotion in sealed cover. 7. In the instant case it does not appear that in 1999 when the Committee sat to consider the case of others any charge sheet had been filed in any criminal court against the petitioner. There is no dispute that as on that date no charge sheet was issued in any disciplinary proceeding against the petitioner. In such circumstance, the committee could not decide not to decide the fate of the promotion of the petitioner. It was obligatory on the part of the committee to consider the case of the petitioner for promotion and to give effect to such decision. There cannot be any dispute that the petitioner was well within the zone of consideration inasmuch as his juniors had been considered by the committee and, in fact, the committee itself decided not to decide the promotion of the petitioner on the ground that criminal allegations are pending investigation against the petitioner. 8. There cannot be any dispute that the petitioner was well within the zone of consideration inasmuch as his juniors had been considered by the committee and, in fact, the committee itself decided not to decide the promotion of the petitioner on the ground that criminal allegations are pending investigation against the petitioner. 8. In those circumstances, in the fitness of the case, I direct the respondents to constitute a similar committee, which was constituted in 1999 for considering the case of promotion of others and when the case of the petitioner had not been considered for the reasons as indicated above, as quickly as possible but not later than twelve weeks from the date of service of a copy of this order upon respondent no. 2, the Director (Administration)-cum-Joint Secretary, Govt, of Bihar, for the purpose of deciding the case of the petitioner for promotion as on 13.8.1999 and, if as on that date no charge sheet had been filed in any criminal court against the petitioner, to give effect to such decision of promotion and if a charge sheet had been filed to keep the decision in sealed cover. 9. In the event promotion is accorded to the petitioner the respondents should give effect to such promotion and, accordingly, alter the remuneration payable to the petitioner during the period he served and also his terminal/retiral/pensionary dues on the basis thereof in accordance with law as quickly as possible but not later than twelve weeks from the date of such promotion. 10. The writ petition is disposed of accordingly.