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2007 DIGILAW 1578 (PAT)

Kishori Prasad Singh v. State Of Bihar

2007-09-26

AJAY KUMAR TRIPATHI

body2007
Judgment 1. There are five petitioners in the present writ application. They have challenged the office order dated 26.9.2003 contained in annexure-1 by virtue of which first time bound promotion granted to these petitioners on the post of Assistant Godown Manager have been cancelled on the basis of objection raised by the Senior Accounts Officer of the Office of Accountant General, Bihar. 2. The effect of the impugned order contained in annexure-1 is that the petitioners pay scale has been reduced from Rs. 1800-3330/- to Rs. 1640-2900/-. The respondents have further also issued direction for recovery of the payments made to employees based on 1st time bound promotion. 3. Some basic facts are not in dispute that these petitioners alongwith large number of other persons were appointed on the post of Lower Division Clerk under Bihar State Food and Civil Supply Corporation Limited (hereinafter referred to as the Corporation). In the normal course the channel of promotion for the Lower Division Clerk under the Corporation is Upper Division Clerk, Assistant, Section Officer etc. 4. In year, 1977 there were 660 sanctioned posts of Assistant Godown Managers but only 126 Assistant Godown Managers could be appointed till that year. Since the Corporation was growing and expanding its business across the State, the respondents decided to choose some persons from amongst the Lower Division Clerks and promote them as Assistant Godown Managers. A notification in this regard was issued on 26th May, 1977. This notification is annexure-5 to the writ application. The notification states that the following Lower Division Clerks will officiate as Assistant Godown Managers in the pay scale indicated therein from the date of their joining against the places of posting. Petitioners joined their place of posting and continued to work in the capacity of Assistant Godown Managers. 5. Petitioners case is that the Assistant Godown Manager and the Lower Division Clerk are two different cadres and the post of Assistant Godown Manager does not fall in the normal channel of promotion from the cadre of Lower Division Clerk. As per the petitioners theirs was a substantive appointment as Assistant Godown Manager against permanent vacant posts. In the year, 1991 a gradation list based on seniority also came to be issued. The seniority of Assistant Godown Manager therefore was fixed on the basis of the date on which the respective candidates were born in the cadre of Assistant Godown Manager. In the year, 1991 a gradation list based on seniority also came to be issued. The seniority of Assistant Godown Manager therefore was fixed on the basis of the date on which the respective candidates were born in the cadre of Assistant Godown Manager. 6. The Corporation in its wisdom based on the recommendation of the 4th Pay Revision Committee decided to grant time bound promotion to its employees. The 1st time bound promotion was available after ten years of appointment and the second time bound promotion would have accrued after 25 years of service on the same post. In the year 1987 therefore, on completion of ten years of service as Assistant Godown Manager petitioners were granted 1st time bound promotion. Petitioners continued to derive the benefit of this promotion after 1987. On 5.12.2000 an objection was raised by the office of Accountant General, Bihar with regard to grant of 1st time bound promotion not being in conformity with rules to a set of employees working under the Corporation. The objection which was raised somehow related to employees who were working in the Accounts Section of the Corporation. The matter thereafter came to be examined by the Corporation and they came to a considered opinion that the 1st time promotion given to the employees were in conflict with the rules. The Corporation reviewed the cases of all its employees of various cadres and took corrective steps in this regard. It was part and parcel of the said exercise that the impugned order contained in annexure-1 dated 26.9.2003 came to be issued. Petitioners, therefore, have been compelled to file the present writ application and challenge the action taken under annexure-1. 7. The basic contention of petitioners are that the appointment made by the respondents on the post of Assistant Godown Manager in the year, 1977 as contained in annexure-5 was a substantive appointment on the same said post. If that be so then in case of non-grant of any promotion for more than ten years they were entitled to 1st time bound promotion in accordance with rule. There was no legal infirmity in the promotion order, therefore, there was no occasion at all for the respondent Corporation to issue annexure-1. If that be so then in case of non-grant of any promotion for more than ten years they were entitled to 1st time bound promotion in accordance with rule. There was no legal infirmity in the promotion order, therefore, there was no occasion at all for the respondent Corporation to issue annexure-1. Not only this, they also want to distinguish their case visa-vis the case of Assistant Accounts Officers in whose case the audit objection by the office of Accountant General was raised. They categorically assert that the facts as well as the law applicable to their case is quite apart from the case of the employees working under the Accounts Department. 8. Learned counsel for the respondents, however, categorically oppose the stand of petitioners. According to them the petitioners were promoted to the post of Assistant Godown Manager vide notification contained in annexure-5 based on a decision of the Board of Directors and since the petitioners were allowed benefit of promotion there was no occasion for them to be granted 1st time bound promotion, in the year, 1987 as contained in annexure-11. The respondents further state that the decision of the Corporation to withdraw time bound promotion with regard to employees working in the Accounts Section or as Assistant Accounts Officer was a matter of challenge in C.W.J.C. No. 4976 of 2003. A Bench of this Court in the case of Sanjay Kumar Barnawal Vs. The State of Bihar & Others reported in 2003 (4) PLJR 794 went into the matter in detail. In a well considered decision the High Court refused to interfere with the order withdrawing the 1st time bound promotion granted earlier. The case of these petitioners working under the same organisation being no different does not require any interference in a similar manner. 9. The basic dispute therefore is whether the petitioners were appointed afresh on a substantive basic on the post of Assistant Godown Managers. Should order contained in annexure-5 ought to be teated as a case of fresh appointment under the Corporation? If this is so then the petitioners would be entitled to 1st time bound promotion on completion often years of service. Should order contained in annexure-5 ought to be teated as a case of fresh appointment under the Corporation? If this is so then the petitioners would be entitled to 1st time bound promotion on completion often years of service. If the notification contained in annexure-5 is not accepted as a case of substantive appointment as the respondents have taken the stand in their counter affidavit, then obviously the objection raised by the office of the Accountant General, Bihar was correct and the corresponding consequential action taken by the Corporation vide annexure-1 would also be considered to be in accordance with rule. 10. Leaned Senior Counsel appearing on behalf of petitioner has tried to impress upon this Court on the surrounding circumstances and the annexures which have been brought on record to accept the appointment of petitioners on the post of Assistant Godown Managers in terms of annexure-5 as a fresh appointment on substantive basis. Their main thrust of the argument is that since the post of Assistant Godown Manager is not in the chain of promotion from the post of Lower Division Clerk it ought to be treated as a fresh appointment on substantive basis. It was in this background an emphasis is laid on the gradation list also which was issued on 17.7.1991. They want to demonstrate to this Court that their birth in the cadre of Assistant Godown Manager was treated as such and even their seniority was decided in this background. They also tried to distinguish their case vis-a-vis the case of Assistant Accounts Officer on the ground that in their case there was a chain of promotion available to them and they are born in the cadre of accounts sections whereas the petitioners were picked up from the cadre of Lower Division Clerk and appointed as Assistant Godown Managers. 11. Petitioners were initially appointed as Lower Division Clerks on a substantive basis. Even they do not deny this fact that they were picked up by the Corporation to fill up the post of Assistant Godown Managers in view of large number of vacancies and it was in this background that they came to occupy the post of Assistant Godown Managers. A look at annexure-5 would show that the appointment of petitioners on the post of Assistant Godown Manager was on officiating basis initially. It does not talk in terms of substantive appointment on the said post. A look at annexure-5 would show that the appointment of petitioners on the post of Assistant Godown Manager was on officiating basis initially. It does not talk in terms of substantive appointment on the said post. It is only later looking at their work and performance that large number of persons, even though working as Lower Division Clerks got a break in a fortuitous circumstance to be appointed as Assistant Godown Manager. The respondents have categorically stated in their counter affidavit that it was a policy decision which was taken by the Corporation as one time measure and it was because of this that petitioners got a unexpected jump from their original post. The respondents have considered the appointment of petitioners as Assistant Godown Manager as a case of promotion though it may not be strictly in terms of the promotional channel/avenue. The respondents, therefore assert that petitioners want to derive double benefits of promotion even though they were not entitled to the same and was rightly objected to by the office of the Accountant General, Bihar. 12. From the pleadings of petitioners as well as annexures which have been brought on record they have not been able to demonstrate that the Corporation had taken steps separately to fiii up these posts by making recruitments on the said post internally or on an open basis. Notification contained in annexure-5 can in no way be interpreted to mean that petitioners were appointed on substantive basis as a first occasion. Their birth in service cannot be taken to be on the post of Assistant Godown Managers as they were appointed as Lower Division Clerks. The respondents in my considered opinion have been able to explain the circumstances under which this extraordinary policy decision was taken at the relevant time. 13. If this is the contingent circumstance then it is difficult for this Court to accept the case of petitioners that their appointment on the post of Assistant Godown Manager was a fresh appointment and the first time bound promotion was in accordance with the rule. In fact, the Court has no hesitation in recording that because of the circumstances prevailing at the relevant time, these petitioners got unexpected jump and career progression while in service of the Corporation. They cannot be permitted to urge now and forsake their past service and entry into the Corporation on the post of Lower Division Clerks. In fact, the Court has no hesitation in recording that because of the circumstances prevailing at the relevant time, these petitioners got unexpected jump and career progression while in service of the Corporation. They cannot be permitted to urge now and forsake their past service and entry into the Corporation on the post of Lower Division Clerks. It was not a case of fresh appointment as per annexure-5 and the same does not let credence to the line of argument urged by the petitioners. 14. This Court would also like to take note of as well as draw support from the reasonings which has been given in the case of Sanjay Kumar Barnawal & Ors. (supra). After perusal of the said order this Court is convinced that the present petitioners case is no different from those petitioners. The Court negates the submission of petitioners that there is a fine distinction between the case of these petitioners and the case of such employees belonging to the accounts section of the Corporation. In my opinion this distinction is only made with the object of over coming the hurdle which has been created by an earlier decision in the case of Sanjay Kumar Barnawal (supra). 15. This Court therefore for the reasons indicated above comes to a conclusion that there is no legal infirmity in the order passed in annexure-1 and the same does not require any interference. However, it is also a case that there was no misrepresentation or fraud committed by these petitioners based on which they got their 1st time bound promotion. The promotion in question was granted by the Corporation in its wisdom. Even they did not find anything incongrous while granting relief to petitioners then. It was only much later when the office of the Accountant General pointed out the infirmity, the Corporation has taken corrective steps as is reflected in annexure-1. If this is so, then the Corporation cannot be permitted to recover the benefits which have already accrued to petitioners by virtue of 1st time bound promotion which was granted to them earlier. The Corporation therefore is debarred from making any recovery from the salary or otherwise from petitioners as indicated in annexure-1. 16. If this is so, then the Corporation cannot be permitted to recover the benefits which have already accrued to petitioners by virtue of 1st time bound promotion which was granted to them earlier. The Corporation therefore is debarred from making any recovery from the salary or otherwise from petitioners as indicated in annexure-1. 16. This writ application is allowed in part to the extent that the Corporation shall not effect any recovery from petitioners by virtue of withdrawal of 1st time bound promotion which had been granted to petitioners earlier.