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2005 DIGILAW 694 (PAT)

Hira Lal Ram v. State Of Bihar

2005-08-05

R.M.PRASAD

body2005
Judgment R.M.Prasad, J. 1. It is submitted by the learned counsel for the petitioner that in this writ petition the grievance of the petitioner is on account of non-filling up the available vacancy of reserved category meant for reserved candidates in the rank of Superintending Engineer and above. 2. It is not in dispute that the vacancies are available. 3. A counter affidavit and a supplementary counter affidavit have been filed on behalf of the respondents-State and its officials. In paragraph 9 of the supplementary counter affidavit it is stated that the department had again sought roster clearance for the post of Superintending Engineer from the Personnel and Administrative Reforms Department, which has been obtained and after finalisation of gradation list further steps in the matter will be taken immediately. 4. Today, a second supplementary counter affidavit has been filed, in paragraph 6 of which it is stated by the Secretary, who has sworn the said affidavit, that at least six months time is required for preparation of the final gradation list. 5. I am unable to appreciate the said stand of the Secretary. Earlier, in the supplementary counter affidavit, sworn on 9th November, 2004, statement was made that the roster clearance of the Personnel and Administrative Reforms Department has been obtained and after finalisatioh of the gradation list, further steps in this matter will be taken immediately. 6. Nothing has been brought on the record to show as to what steps were taken to finalise the gradation list during the last nine months. It is really unfortunate that because of inaction on the part of the authority concerned, one is kept deprived of his due promotion and in several cases heard by me in course, of hearing of the promotion matter, this Court found that they have even retired. This, in my opinion, shows gross callousness on the part of the authority concerned in the matter of consideration of the cases for promotion. 7. Learned counsel for the State, however, submitted that the validity of 85th Amendment of the Constitution is pending consideration before the Supreme Court. Under such circumstances the department found it difficult to prepare the final gradation list. 8. I am unable to appreciate the said submission of the learned counsel for the State. 7. Learned counsel for the State, however, submitted that the validity of 85th Amendment of the Constitution is pending consideration before the Supreme Court. Under such circumstances the department found it difficult to prepare the final gradation list. 8. I am unable to appreciate the said submission of the learned counsel for the State. It may be true that the matter regarding the validity of 85th Amendment is pending consideration before the Apex Court, but the learned counsel for the State has not been able to show any order passed by the Apex Court restraining them from proceeding with the preparation of the gradation list except that the respondents were restrained vide order dated 8.4.2002 passed in I.A. No. 2 in writ petition (Civil) No. 61/2002 M. Nagraj and Ors. V/s. Union of India and Ors., a copy of which has been annexed as Annexure-A series, from reverting the petitioners of the said case and disturbing their standing in the seniority list and promotion, pay etc. At the same time, the Apex Court also directed that it shall be open to the respondents to promote those who are benefited by the impugned amendment but so that it does not affect the petitioners of the said case in any manner and subject to the result of the said writ petition. 9. By subsequent order dated 11.11.2002 passed in I.A. Nos. 1 and 4 in writ petition (Civil) No. 255/2002 H.H. Malikaruna Swamy and Ors. V/s. Union of India and Ors., a copy of which has been annexed as Annexure-A series, the Supreme Court while clarifying the aforementioned order directed that by virtue of amended provision if some of the reserved category candidates are entitled to promotion, they shall be promoted. The obvious idea being the Court should not stay the operation of a constitutional provision. However, in case of difficulty in implementing the order, the Apex Court directed that the above order being an interim arrangement, they should apply to the number of vacancies available in a cadre to give effect to the promotional policy and undoubtedly, such a promotion can be granted only when the State makes a provision for reservation in terms of amended provision, namely, Art. 16 (4-A). 10. 10. According to the learned counsel for the petitioner, the State has already made provision by amending the provision of the Bihar Reservation of Vacancies in Posts and Services (For Scheduled Castes, Scheduled Tribes and other Backward classes) Amendment Act, 2002 and the vacancies in the reserved category exist, but the State authorities are sitting tight over the matter and denying promotion simply on the plea that the matter is sub- judice before the Apex Court. 11. I fail to appreciate as to how the State can sit over the promotion matter only on the plea of pendency of the matter before the Apex Court on the face of the aforementioned interim orders/clarificatory order passed by the Apex Court. 12. Considering the facts and circumstances aforementioned, the writ petition is disposed of with the direction to the State authorities, namely, respondent Nos. 1 and 2, to consider the cases for promotion in the reserved category against the available vacancies for reserved candidates and issue notification also regarding the same positively within two months form the date of receipt/productiorr of a copy of this order.