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2007 DIGILAW 825 (JHR)

Shyam Nandan Singh v. State Of Jharkhand

2007-11-01

RAKESH RANJAN PRASAD

body2007
JUDGMENT R.R. Prasad, J. 1. Through this writ application the petitioner has prayed for quashing of the order dated 30.4.2004 passed by respondent No. 2 whereby the prayer made through the representation filed, pursuant to order of this Court for consideration of his case for promotion to the post of Assistant Sub-Inspector of Excise has been refused. Further prayer is to direct the respondent to promote the petitioner on the post of Assistant Sub-Inspector of Excise. 2. The case of the petitioner is that he was appointed as Constable of Excise on 7.1.1976 and since then he has worked to the full satisfaction of the authority and there has not been any black spot in the entire service career and when gradation list was prepared, he was placed at serial No. 414 whereas Shri Arun Kumar Jha and Shri Narayan Mishra were placed at serial No. 472 and 473 but both of them were given officiating/adhoc promotion in the year 1995 to the post of Assistant Sub-Inspector of Excise completely ignoring the seniority of the petitioner and, therefore, several representations were filed but those representations did not bear any result and hence the petitioner had to file writ application bearing W.P.(S) No. 1527 of 2004 which was disposed of by directing the petitioner to file fresh representation and the respondents were directed to consider the grievance of the petitioner and take appropriate decision. Accordingly, representation was filed which was rejected on 30.4.2004 on the ground that said Arun Kumar Jha and Narayan Mishra junior to the petitioner were never given regular promotion, rather they were asked to discharge the duties of Assistant Excise Inspector and that cadre being not finalized the authorities at Jharkhand was not competent to take decision in the matter of promotion, rather authorities at Bihar was competent to do so and on being aggrieved with that order, the petitioner has preferred this writ application and while the mater was pending, department has given promotion to 7 constables to the post of Assistant Sub-Inspector, vide order dated 11.5.2007 and again on 25.5.2007 and 20.6.2007 15 persons were promoted on that post leaving the case of the petitioner, though petitioner is senior to all of them. 3. 3. The grievance of the petitioner is that since 1995 his juniors were given officiating post of Assistant Sub-Inspector discarding the claim of the petitioner though the petitioner was senior to them and now the promotion has been denied to the petitioner on the ground that he has crossed the age of 50 years on the cut-off date i.e., on 30.4.2007 though the petitioner was fulfilling all other criteria of being promoted such as he being Matriculate, passed the constable training examination and the departmental proceeding was never Initiated against him. 4. Learned Counsel submits that order refusing promotion to the petitioner is not only discriminatory but also arbitrary as on the one hand it is said that the petitioner was denied promotion as he had completed 50 years of age on the cut-of date but some of the persons, namely, Govind Singh, Arun Kumar Jha, Rajendra Prasad and Anand Mehra who were promoted, vide memo No. 686 dated 25.5.2007 (Annexure B) are more older than this petitioner meaning thereby that all of them had attained more than 50 years on the cut-off date, still they were promoted to the said post but petitioner was denied promotion. Under these situations, the prayer made on behalf of the petitioner is fit to be allowed. 5. As against this, leaned Counsel appearing for the State submits that authority never acted arbitrarily or discriminatory as Arun Kumar Jha and Narayan Mishra earlier were only asked to do the job of Assistant Excise Inspector on the officiating capacity which was never a regular promotion and when the cadre was finally bifurcated, the petitioner was not found fit to be promoted as on the cut-off date, i.e, 30.4.2007 he was more than 50 years but leaned Counsel failed in giving satisfactory reply when it was pointed out that some of other persons were promoted, though they had also crossed 50 years of age on the cut off date. 6. 6. Having heard Learned Counsel appearing for the parties it does appear that one of the criterias for giving promotion to the post of Assistant Excise Inspector is that he may not attain the age of 50 years but still as has been demonstrated on behalf of the petitioner that some of the persons were promoted though they had crossed the age of 50 years on the cut off date whereas petitioner who was younger to all the four persons, named above, have been refused promotion. Thus, prima facie, it appears that promotion given to other persons is also not in consonance of the guideline laid down for promotion but it is quite possible that the persons who were promoted may not have attained 50 years of age on the date when they became eligible for being promoted and in that event petitioners case should have also been considered for promotion as the petitioner seems to be younger to al the four persons which is evident from Annexure D annexed in the application. 7. Under this situation, the Commissioner-cum-Secretary, Department of Excise, Jharkhand, Ranchi (Respondent No. 2) is directed again to consider the case of the petitioner for promotion to the post of Assistant Sub-Inspector of Excise as expeditiously as possible preferably within a period of three months from the date of receipt/production of a copy of this order. 8. With the aforesaid direction, this writ application is disposed of.