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2005 DIGILAW 505 (PAT)

Uma Shankar Prasad v. State Of Bihar

2005-05-09

RADHA MOHAN PRASAD

body2005
Judgment 1. In this writ petition, the petitioner has prayed for quashing of the order dated 8th November, 2000, contained in Annexure 13, whereby his services were provisionally allotted to Jharkhand Government on bifurcation/creation of the two States in the Office of the Director General and Inspector General of Police, Jharkhand as Secretariat Assistant in the pay scale of Rs.5500- 175-9000/- (old scale Rs. 1640-2400/-) despite the fact that he had already been promoted in the cadre of Section Officer in the year 1998 i.e., much prior to his transfer to the State of Jharkhand, vide Personnel & Administrative Reforms Department, Government of Bihars Notification No. 883 dated 21.12.1998. 2. A counter affidavit has been filed on behalf of the State of Bihar and.its officials and an another counter affidavit has been filed on behalf of the State of Jharkhand and its official (respondent no.5). 3. In the counter affidavit filed on behalf of the State and its officials it is not disputed that the petitioner was promoted in the cadre of Section Officer. However it is stated that since the petitioner did not join his place of posting at Motihari as Section Officer, his services were transferred as an Assistant to the Jharkhand State at the time of division of cadre. According to the said respondents, the petitioners joining at Motihari was not accepted as he was not formally relieved from the office of the D.G.P. In the meanwhile, the Re-organisation Act came and the State of Jharkhand was created. As such, his service was transferred to Jharkhand as an Assistant by a committee consisting of officials of both the States. 4. Learned Standing Counsel no.X appearing for the State of Bihar and its officials, accordingly, submitted that there is no illegality or error in the decision. He, however, further submitted that the service of the petitioner was transferred as an Assistant by the Committee to which officials of the State of Jharkhand were also party and thus now nothing can be done by the officials of the State of Bihar. 5. Mr. He, however, further submitted that the service of the petitioner was transferred as an Assistant by the Committee to which officials of the State of Jharkhand were also party and thus now nothing can be done by the officials of the State of Bihar. 5. Mr. Dixit, learned counsel appearing for the Jharkhand State and its officials (respondent no.5) with reference to the counter affidavit has submitted that the State of Jharkhand had nothing to do in the matter and, in fact, considering the position of the petitioner in the seniority list, pursuant to the transfer of his services to the State of Jharkhand, he has already been given promotion as Section Officer, vide Annexure J/3 to the counter affidavit. Thus, according to him, the petitioner can- not have any grievance now and the writ petition is fit to be dismissed. 6. I am unable to appreciate the submission made by the learned Standing Counsel no.X appearing for the State of Bihar and its officials as well as the learned counsel appearing for the State of Jharkhand. On the last occasion, all these things were discussed and when this Court specifically asked them as to whether the order of promotion given to the petitioner was ever revoked, cancelled or that the petitioner was ever reverted back as an Assistant, the answer was in the negative. 7. It is not the case of the respondents also in the respective counter affidavits that the promotion granted to the petitioner was ever revoked, cancelled or that he was ever reverted back as an Assistant before division of the cadre. Moreover, it is really shocking/surprising that how the petitioner can be deprived of the benefit of promotion even otherwise without any fault of his. It was the fault of the concerned officer in the office of the DGP in not relieving him. Learned Standing Counsel no.X, however, submitted that the petitioner had represented that he should be allowed to continue at Patna. I fail to appreciate the said submission of the learned Standing Counsel as well. He has not been able to show any such representation filed by the petitioner that he should be allowed to continue at Patna as an Assistant. 8. I fail to appreciate the said submission of the learned Standing Counsel as well. He has not been able to show any such representation filed by the petitioner that he should be allowed to continue at Patna as an Assistant. 8. This Court vide order dated 2.5.2005 on the submission of Mr Dixit, learned counsel appearing for the Jharkhand State and its official that the necessary orders after rectifying the defect shall be produced by the officials of the Jharkhand State adjourned the matter to 9th May, 2005 i.e. for today. In case of non-compliance of the said order, the concerned Secretary of Jharkhand State was directed to personally appear to explain his conduct. 9. It is really unfortunate that though no such order rectifying the mistake admitted on the last occasion has been produced, yet the Secretary has not bothered to personally appear to explain his conduct. This shows that he has no respect for the orders of the Court. Unfortunately, learned counsel appearing for him also has not ventured to defend him by submitting that the rectification has already been done earlier by granting promotion to the petitioner, vide Annexure J/3, and the State of Jharkhand has no role to play in the matter. As such, according to him, there is no question of appearance of the Secretary. 10. I fail to appreciate the said submission of the learned counsel appearing for the officials of the State of Jharkhand (respondent no.5). Annexure J/3 cannot be said to be an order rectifying the defect because by the said order the petitioner has been given promotion with effect from 28.2.2002 treating him as an Assistant till then when, in fact, he had already been promoted earlier by Governments Notification No.883 dated 21.12.1998 before the bifurcation of the two States and division of cadre and no order cancelling/revoking the said promotion granted to him or any order for his reversion was ever passed by the erstwhile State of Bihar. 11. Mr Dixit has submitted that the petitioner has not challenged the order of promotion, contained in Annexure J/3, and as such he is not entitled for any relief from this Court. I am unable to appreciate the said submission of Mr Dixit. The writ petition was filed on 1.2.2002 whereas the order (Annexure J/3) has been passed later on 28.2.2002. Mr Dixit has submitted that the petitioner has not challenged the order of promotion, contained in Annexure J/3, and as such he is not entitled for any relief from this Court. I am unable to appreciate the said submission of Mr Dixit. The writ petition was filed on 1.2.2002 whereas the order (Annexure J/3) has been passed later on 28.2.2002. The petitioners grievance has partly been redressed and, as such, in my opinion, the question of challenging the said order separately does not arise when the grievance raised by him in the present writ petition still subsists. 12. Learned counsel appearing for the State of Jharkhand submitted that in course of division of cadre on bifurcation of the two States, officers of both the States participated and took decision regarding division of cadre in which the petitioner was treated as an Assistant, which was formally communicated by the Home Secretary, Bihar, vide letter dated 8th November, 2000, with reference to the decision dated 6.11.2000 referred to therein, allocating the staff to the respective States. Thus, according to him, in view of the said communication, the State of Jharkhand has no role to play. 13. I am unable to appreciate the said submission of the learned counsel for the State of Jharkhand. The attitude of the Secretary, Personnel Department of the State of Jharkhand is callous as he has neither bothered to take any action in the matter to come with rectification despite ample opportunity granted to him and assurance given on his behalf on the last occasion nor has bothered to personally appear before this Court despite the aforementioned order dated 2.5.2005. In my opinion, by taking the aforementioned adjournment on behalf of the State of Jharkhand, the Courts time has unnecessarily been wasted, which makes the secretary, Personnel Department liable for payment of heavy cost. 14. The writ petition is, thus, allowed with a cost of Rs. 10,000/- (ten thousand) to be paid by the Secretary of the State of Jharkhand from his pocket to the petitioner and a receipt in token thereof must be filed in this Court within two weeks. 14. The writ petition is, thus, allowed with a cost of Rs. 10,000/- (ten thousand) to be paid by the Secretary of the State of Jharkhand from his pocket to the petitioner and a receipt in token thereof must be filed in this Court within two weeks. The impugned order, contained in Annexure 13, as well as the consequential order of promotion, contained in Annexure J/3 to the counter affidavit filed on behalf of respondent no.5, to the extent it adversely affects the petitioner by not recognising his earlier promotion, are quashed and respondent no.5 is directed to treat the services of the petitioner in the State of Jharkhand as Section Officer pursuant to the promotion granted to him in the year 1998 and grant all consequential benefits. 15. As prayed by Mr. Naresh Dixit, learned counsel appearing for the State of Jharkhand and its official, let a copy of this order be supplied to him for its strict compliance.