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2005 DIGILAW 54 (PAT)

Md. Ali Ansari v. State

2005-01-18

V.N.SINHA

body2005
Judgment 1. Heard Shri Ganesh Prasad Singh, learned senior advocate for the petitioner and Shri S.K. Ghosh, learned Additional Advocate General No. 2 for the State of Bihar. 2. Writ petitioner, was appointed as an. assistant in the Public Health Engineering Department on 19.6.1980 after he became successful in the Secretariat Assistant Com-bined Examination held in 1979 has filed this writ application for a direction to the State-respondents to grant him promotion in the junior selection grade with effect from 21.6.1988 the date on which his junior, namely, Shri Madan Mohan Prasad was granted the said promotion, as accord ing to the petitioner, he cleared the departmental examination within four attempts as was required in the resolution of the State Government bearing memo No. 1447 dated 21.12.1978, annexure-2. it is averred in the writ application that after his appointment the petitioner appeared in the departmental examination for the first time in the year 1983 and in that attempt he could pass only in second and third paper. Petitioner cleared the first paper in the year 1995 whereafter he was declared to have passed the examination under memo No. 271 dated 19.4.1996, annexure-5. As he had not cleared the departmental examination earlier he could not be considered for promotion in the junior selection grade although his three juniors, namely, M/s Binod Kumar Verma, Madan Mohan Prasad and Deo Brat Sinha were allowed promotion in the Junior selection grade vide menu 29.6.1988, annexure-6, as those three juniors had already passed the departments. examination clearing all the three papers: on or before 29.6.1988. 3. Perusal of the order dated 29.6.1988, annexure-6 itself, would indicate that in the event the petitioner clears the first paper the junior most person promoted in the selection grade shall be reverted and petitioner shall be allowed the promotion. Matter was further clarified by the authorities of the Public Health Engineering Department under letter No. 4 dated 3.1.1991, annexure-4 along with which a chart was appended. Perusal whereof indicates that name of the petitioner is mentioned at serial No. 12 with note that he is not being allowed the promotion in the junior selection grade and the post is kept reserved for him. Perusal whereof indicates that name of the petitioner is mentioned at serial No. 12 with note that he is not being allowed the promotion in the junior selection grade and the post is kept reserved for him. Petitioner cleared the departmental examination in 1995 whereafter he was allowed promotion in the selection grade under office order issued by the Personnel and Administrative Reforms Department of the State Government bearing No. 730 dated 30.12.1997, annexure-8. Perusal whereof would indicate that name of the petitioner is mentioned at serial No. 65 with endorsement that he is being allowed promotion in the junior selection grade notionally with effect from 30.8.1991 till 16.11.1995 the date on which he passed the departmental examination and thereafter with monetary benefit with effect from 17.11.1995, annexure-8. Petitioner has assailed the aforesaid grant of promotion notionally with effect from 30.8.1991. He contends that as per the stand of respondent taken in letter No. 4 dated 3.1.1991, annexure-4, and office order bearing memo No. 2310 dated 29.6.1988, annexure-6, the notional promotion should have been allowed to the petitioner with effect from 21.6.1988. In this connection, Shri Ganesh Prasad Singh, learned senior counsel for the petitioner reiterated the provisions contained in resolution of the State Government bearing memo No. 1447 dated 21.12.1978 annexure-2, which categorically states that assistants who cleared the departmental examination within four attemps their seniority shall be restored. 4. On the other hand, Shri S.K. Ghosh, learned Additional Advocate General appearing for the State, with reference to the counter-affidavit and the supplementary-affidavit, submitted that, in view of the resolution of the State Government dated 30.8.1988 annexure-A, and the provisions of the Bihar Act 9 of 1989 whereunder the cadres of the assistant appointed in the different departments in the Secretariat merged into an unified cadre, the resolution dated 21.12.1978, annexure-2, has become redundant and the petitioner having become junior to his erstwhile juniors can- not claim seniority over them. He further contended that in terms of the provisions contained in proviso to section 3 of Bihar Act 9 of 1989, petitioner cannot claim any retrospective promotion. 5. He further contended that in terms of the provisions contained in proviso to section 3 of Bihar Act 9 of 1989, petitioner cannot claim any retrospective promotion. 5. I need not go into the aforesaid submission of the learned counsel for the State in view of the fact that notwithstanding the provisions contained in resolution of the State Government, dated 30.8.1988, annexure-A, and the provisions of the Bihar Act 9/1989, the respondent authorities themselves have allowed retrospective optional promotion to the petitioner and many others with effect from 30.8.1991 and dates thereafter as such, they should consider and grant notional promotion to the petitioner with effect from 21.6.1988 in view of their own order dated 29.6.1988 and 3.1.1991 annexures-6 & 4. It is made clear that retrospective promotion granted with effect from 21.6.1988 will be notional and shall not enable the petitioners to claim any monetary benefit. 6. This application is disposed of with aforesaid observations/directions. No cost.