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2006 DIGILAW 108 (PAT)

Somar Rajak v. State Of Bihar

2006-01-30

SHIVA KIRTI SINGH

body2006
Judgment 1. These three writ petitions were heard together with consent of parties because they involve common questions of law and to a large extent, the essential facts are common. For the sake of convenience, Mr. Ram Balak Mahto, learned Senior Advocate for the petitioners in all the cases, placed the relevant facts from the records of CWJC No. 13002 of 2001 (Ranajee Singh V/s.The State of Bihar) and later on explained some differences in facts of other two cases. Hence, reference to facts are generally from CWJC No. 13002 of 2001. 2. Petitioners, Ranajee Singh (CWJC No. 13002 of 2001), Suresh Prasad Sudhanshu (CWJC No. 10120 of 1999), Somar Rajak and Awadhesh Prasad (CWJC No. 9732 of 1999) were initially appointed as Class IV employees in various offices under the control of Chief Engineer, Central Design Office, Water Resources Department, Government of Bihar, Patna. By office order dated 18.1.1988 issued from the office of the said Chief Engineer, 23 persons were promoted to various posts of Clerk in class III and 7 persons including the petitioners Ranajee Singh, Awadhesh Prasad and Suresh Prasad Sudhanshu were promoted against vacant posts of Typist in Class III. Petitioner, Somar Rajak was similarly promoted as Typist by an order dated 2.3.1988. In the promotion orders it was mentioned that the concerned Class IV employees had been selected for appointment to Class III posts on the basis of their qualification as per decision of the Establishment Committee dated 25.6.1987 and departmental order dated 29.7.1986. The promotion orders further provide inter alia that employees promoted on the post of Typist will be subjected to a typing test after six months of such promotion. In case they fail to qualify in the test then their promotions would be deemed to have been cancelled. Such promotions to Class IV employees had been granted in view of guidelines issued by the Personnel and Administrative Reforms Department of the respondent State dated 11.2.1985 which require 75 per cent of certain Class III posts to be filled up by way of direct recruitment and rest by promotion from amongst eligible Class IV employees. 3. Such promotions to Class IV employees had been granted in view of guidelines issued by the Personnel and Administrative Reforms Department of the respondent State dated 11.2.1985 which require 75 per cent of certain Class III posts to be filled up by way of direct recruitment and rest by promotion from amongst eligible Class IV employees. 3. The facts available on record disclose that in the year 1992 show cause notices were issued to the promotees like the petitioner as to why their promotions be not cancelled on the ground that such promotions had been made by the Chief Engineer without following the guidelines laid down by the State Government. Petitioners showed cause but by order dated 7.1.1993 (4.1.1993 in case of Somar Rajak), the promotion of petitioners and some others against Class III posts was cancelled and they were ordered to be reverted to their substantive Class IV posts. Petitioners challenged such orders through writ petitions which were disposed of in January 1998. As appears from one of the judgments contained in Annexure-4, this Court did not feel inclined to interfere with the order dated 7.1.1993 or order dated 4.1.1993 in case of Somar Rajak (Annexure-9 series to his writ petition) but allowed the promoted employees to continue on the Class III posts till fresh selection is made by following the procedure of regular appointment in vague at the relevant time. It was further observed that if one or other petitioners do not compete at the time of such regular appointment then they should be reverted in pursuance of order dated 7.1.1993. 4. The petitioners who had been promoted and appointed as Typists in Class III were then called to take up a typing test conducted on 5.9.1999. Petitioner, Ranajee Singh could not take that test because allegedly he had failed to submit required certificates and other petitioners allegedly failed to qualify in the typing test because they failed to attain the level of proficiency as required by policy decision of the Government contained in circular no. 2215 of 1985. On the basis that petitioners had failed to take or pass the typing test, they were reverted to Class IV posts by an order dated 11.9.1999. That order is under challenge in the writ petitions filed by Suresh Prasad Sudhanshu and Somar Rajak and Awadhesh Prasad. 2215 of 1985. On the basis that petitioners had failed to take or pass the typing test, they were reverted to Class IV posts by an order dated 11.9.1999. That order is under challenge in the writ petitions filed by Suresh Prasad Sudhanshu and Somar Rajak and Awadhesh Prasad. Petitioner Ranajee Singh challenged that order by filing a writ petition bearing CWJC No. 3936 of 1999 which was disposed of by directing the concerned authorities to extend an opportunity to him to produce relevant papers so that he could get a chance to appear at the typing test. He was subjected to a typing test and was declared to have passed as per standards of typing required by circular no. 8787 dated 17.10.1958 and on that basis vide order dated 16.6.2001. (Annexure-8) he was again treated to be eligible for continuing on the post of Typist. However, by impugned order dated 5.9.2001 which is under challenge in CWJC No. 13002 of 2001, the order dated 16.6.2001 was cancelled on the ground that his proficiency in typing was wrongly tested as per provisions of circular dated 17.10.1958 whereas under different subsequent resolutions of the Government a higher standard of test is prescribed which he had failed to attain. By the impugned order in his case it was also ordered that excess payment on account of wrong promotion be recovered from him. 5. On behalf of the petitioners it has been submitted that since the petitioners were not direct recruits and were promoted on the basis of their qualification etc. giving them opportunity to reach the required proficiency in typing after six months, they should not have been reverted on the basis of tests in typing prescribed for appointment to the post of Typist. Learned Senior Counsel for the petitioners submitted that since the petitioners, on account of interim protection or otherwise have continued on the promoted post now for more than 18 years hence they should not be reverted back to Class IV posts at the last stage of their career specially when there is no report that they have been found inefficient while working as Typist and when in the case of Ranajee Singh prescribed proficiency for a working Typist has been attained as per 1958 circular. According to learned senior counsel for the petitioners, the other petitioners should also be judged on the basis of 1958 circular and only if it is found that they do not have the proficiency of a Typist already in service then only they may be considered for reversion. He has also placed reliance upon two unreported judgments of this Court, one annexed as Annexure-11 to the reply to the counter affidavit and another dated 22.9.2005 in the case of Daya Kant Lal Das & Ors. V/s. The State of Bihar (CWJC No. 5451 of 1999). He has also placed reliance on the judgment of the Supreme Court in the case of Narender Chadha V/s. The Union of India, reported in AIR 1986 SC 638 . 6. Learned counsel for the State on the other hand has submitted that the concerned authorities have committed no error or illegality in applying the rigorous test of typing laid down in recent circulars as mentioned in the impugned orders to find out whether petitioners should be appointed on the post of Typist or not. 7. In the judgment of this Court in the case of Anand Kumar Jha and another, annexed as Annexure-11 this Court followed the law laid down in the case of Narender Chadha and quashed the order of reversion in view of the fact that petitioners in that case had continued on the promotional post for about 20 years. In the case of Daya Kant Lal Das & Ors. (CWJC No. 5451 of 1999) the order of reversion was quashed on the ground of violation of principles of natural justice and, therefore, that judgment is not of any real help to the petitioners. In the case of Narendra Chadha the Apex Court noticed that persons promoted to higher post in violation of rules continued in such post for more than 15 years. In such circumstances, it was held that continuance of the promotees could be justified on the assumption that the Government had relaxed the rules and had appointed them to the posts in question to meet the administrative requirement. 8. In such circumstances, it was held that continuance of the promotees could be justified on the assumption that the Government had relaxed the rules and had appointed them to the posts in question to meet the administrative requirement. 8. After giving a serious consideration to all the relevant facts and issues in this case, this Court is of the view that norms for passing proficiency of a working Typist as laid down in the 1958 circular which has not been superseded as yet, were rightly applied by the concerned authorities in the case of Ranajee Singh. This was neither contrary to law nor to equity, considering that promotion had been granted long back in the year 1988 and he had continued to discharge the duties of a Typist without any complaint for long years. If at the initial stage before granting promotion on the condition of testing proficiency in future, petitioners had been subjected to any rigorous test, there could have been no error or illegality in the action of the respondent authorities. But in the peculiar facts and circumstances of the case as appearing from Annexure-10 series, upto the level of Commissioner-cum-Secretary of the Department a conscious decision was taken to apply the test of proficiency laid down in the 1958 circular. In the facts of the case, there could be no illegality on the part of authorities in adopting the said criteria. Thereafter, petitioner Ranajee Singh was reverted by the impugned order admittedly without affording any opportunity to show cause. 9. In such circumstances, this Court is of the considered view that order passed in favour of Ranajee Singh dated 16.6.2001 (Annexure-8) was a proper order. That order was not contrary to any law, protected the interest of justice and promoted equity. Cancellation of that order by the impugned order dated 5.9.2001 contained in Annexure-1 to CWJC No. 13002 of 2001 is, therefore, found to be arbitrary, unfair, unjust, against the principles of natural justice and hence contrary to law. That order is, therefore, quashed. 10. In view of aforesaid findings and order in the case of Ranajee Singh, the impugned order in other two writ petitions dated 11.9.1999 is also quashed but in the case of these three petitioners the respondents, if so advised, may retest them to find out their proficiency as per 1958 circular. That order is, therefore, quashed. 10. In view of aforesaid findings and order in the case of Ranajee Singh, the impugned order in other two writ petitions dated 11.9.1999 is also quashed but in the case of these three petitioners the respondents, if so advised, may retest them to find out their proficiency as per 1958 circular. In case such test is held and they fail to meet the required proficiency then action against them may be taken as per law on account of inefficiency as Typist but not on the ground that they were wrongly promoted to a Class III post. 11. The writ petitions are allowed to the aforesaid extent. 12. There shall be no order as to costs.