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Jharkhand High Court · body

2008 DIGILAW 1109 (JHR)

Tara Pratap Ram v. State of Jharkhand

2008-09-10

D.G.R.PATNAIK

body2008
Order Petitioners, in this writ application, who were appointed on the post of Constables in the Excise Department in between January, 1977 to February, 1980, have prayed for an appropriate writ in the nature of certiorari for quashing the Memo No. 827 dated 21.6.2007 (Annexure-2), by Which promotion has been given to Respondent Nos. 6 to 22 and further, for a direction upon the Respondents to consider the case of the petitioners for their appointment on the post of Assistant Sub-Inspector (Excise) by promotion after giving relaxation in their age. 2. The case of the petitioners is that on the bifurcation of the erstwhile State of Bihar, the services of the petitioners were placed under the State of Jharkhand. The petitioners are matriculates and above and possess the requisite qualifications. The contention of the petitioners is that by virtue of their educational qualifications and longstanding experience with unblemished service records, they were eligible for their promotion to the post of Assistant Sub-Inspector (Excise). The State Government, however, did not undertake any exercise for promotion of the petitioners even during the period of more than six years after bifurcation of the State. A seniority list dated 2.12.2006 (Annexure-1) was notified by the Respondents confirming the position of the petitioners in the Gradation list. Despite the several representations, filed by the petitioners ever since after the date of bifurcation of the State, no action was taken by the Respondents for granting promotion to them. On the contrary, vide .the impugned letter dated 20.6.2007 (Annexure-6), the Respondents have declared that promotion was granted to the private Respondent Nos. 6 to 22, although these Respondents are much below the petitioners in seniority. 3. The petitioners have challenged the impugned order (Annexure-6) as being discriminatory and arbitrary and against the principles of equity and natural justice. The grounds advanced by the petitioners, inter alia, are as follows:- (i) Even though, the services of the petitioners were placed under the State of Jharkhand and there existed several vacancies in between November, 2000 upto June, 2007 but the Respondents authorities deliberately failed to take any steps for promoting the eligible candidates. (ii) Promotion to 15 persons, who had crossed the upper age limit of 50 years, was granted on 25.5.2007, but the petitioners were totally ignored, even though they were also eligible by virtue of the same criteria as applied to the 15 promoted persons. (ii) Promotion to 15 persons, who had crossed the upper age limit of 50 years, was granted on 25.5.2007, but the petitioners were totally ignored, even though they were also eligible by virtue of the same criteria as applied to the 15 promoted persons. (iii) One of the constables, who was similarly denied promotions as the petitioners, namely, Shyam Nandan Singh, had earlier moved this Court by filing the writ application, W.P.(S) No. 4029 of 2004 and pursuant to the orders passed, therein, the Respondents had granted him promotion by relaxing his age. In view of the directions passed in the aforesaid writ application, the petitioners, whose case stands on similar footing, are also entitled to the same benefit on the ground of equity and justice. 4. Mr. Anil Kr. Sinha, learned senior counsel appearing for the petitioners argues that on account of the inaction of the Respondents to initiate steps for promotion for more than six years, even though as many as 42 vacancies existed during such period, the claim of the petitioners for their promotion, has been. sought to be frustrated on the ground that they have crossed the upper age limit of 50 years. Learned counsel argues that such age criteria cannot be made applicable to the petitioners only when promotion to other candidates could be granted by relaxing their upper age limit. Learned counsel argues further that the plea taken by the Respondents in their counter affidavit that relaxation of age was granted to the 15 constables on account of the fact that they were officiating as A.S.ls. for several years, is a totally unreasonable stand, since the petitioners equally qualify by virtue of their proficiency both in Hindi and in English and their longstanding experience of more than 25 years should also have been counted in their favour. Learned counsel argues further that the Respondents cannot argue that the age bar was not susceptible to relaxation, since such relaxation was resorted to by the Respondents, while granting promotions to 15 other Constables and furthermore, it was only on account of the inaction of. the Respondents authorities to take up the promotions, that the petitioners had crossed the upper age limit of 50 years . 5. Counter affidavit has been filed on behalf of the Respondent Nos. 1 to 5 denying and disputing the entire claim of the petitioners. the Respondents authorities to take up the promotions, that the petitioners had crossed the upper age limit of 50 years . 5. Counter affidavit has been filed on behalf of the Respondent Nos. 1 to 5 denying and disputing the entire claim of the petitioners. The stand taken by the Respondents is that the procedure for promotion of Constables to the post of A.S.ls., is laid down under Appendices of Clause 45 of the Excise Manual, which stipulates that permanent appointment of Assistant Sub-Inspectors of Excise will be made by the Commissioner of Excise in the month of April, each year either by direct recruitment or by promotion of selected excise constables, below the age of 50 years, who have an adequate knowledge of English and of Hindi in Devanagari Script. 50 per cent of the vacancies are to be filled up by promotion and the remaining by direct recruitment. Mr. Manzul Prasad, learned counsel for the Respondents explains that though the Commissioner was obliged under the. Rules to take up promotions in the month of April every year but such exercise could not be undertaken till the final division of cadre of the personnel in the Excise Department and on account of the directions contained in Clauses 2 and 4 of the Circular No. 28/10/2000-SR(S) issued by the Government of India, Ministry of Personnel, Public Grievance and Pension on 22.2.2001, which laid down that the power to grant promotion to the Government servant who were provisionally allotted to the State of Jharkhand will remain vested with the Government of Bihar. The final Division of the A.S.ls. cadre Was done in the month of April, 2005. Learned counsel adds further that the process for granting promotions could therefore be taken up only after April, 2005. The Departmental Promotion Committee held its meeting on 23.5.2007 and the cases of all the candidates were considered and those who were found eligible, were recommended for their promotion to the post of A.S.ls. Learned counsel explains further that though the criteria relating to maximum age, as stipulated in Clause 45 of the Appendices of the Excise Manual is 50 years but by relaxing the age in respect of 15' Constables, the Departmental Promotion Committee had recommended for their promotion on the ground that they were officiating on the post of A.S.ls. Learned counsel explains further that though the criteria relating to maximum age, as stipulated in Clause 45 of the Appendices of the Excise Manual is 50 years but by relaxing the age in respect of 15' Constables, the Departmental Promotion Committee had recommended for their promotion on the ground that they were officiating on the post of A.S.ls. for the past about 13 years and pursuant to such recommendations, they were granted promotion by relaxation of their age. 6. From the submissions made by the learned counsel for the parties, the following admitted facts do emerge:- (a) The services of the petitioners were placed in the State of Jharkhand after the bifurcation of the erstwhile State of Bihar. (b) Several vacancies existed on the post of A.S.ls. but they were not filled up after the bifurcation of the State in November, 2005 till June, 2007. (c) The cadre Division took final shape in the month of April, 2005 and as many as 42 vacancies as on January, 2005 did exist. Yet, no exercise was initiated to take up the promotions. (d) No reason has been given by the Respondents as to why after the cadre division of the Excise Personnel, the process for promotion was not initiated promptly. In their counter affidavit, it has not been denied that one Constable, namely, Shyam Nandan Singh, whose case was similar to the case of the petitioners, was granted promotion by relaxation of his age. No reason has been offered by the Respondents as to why a similar benefit could not be extended to the petitioners. 6(a). The stand taken by the Respondents is that promotions to the post of Assistant Sub-Inspectors of Excise have to be done strictly in accordance with 8ule 45 under the Appendices of the Excise Manual. Rule 45 of the Appendices of the Excise Manual reads as follows:- 45. Rules for the recruitment of Assistant Sub-Inspectors of Excise.-(1) Permanent appointment of Assistant Sub-Inspector of Excise will be made by the Commissioner of Excise in April each year either by direct recruitment or by promotion of selected Excise Constables age below [5Q years] of age who have an adequate knowledge of English and of Hindi in Devanagari script, [50] per cent of the vacancies shall be filled up by promotion. [(1 a) It would be essential for exercise constable to pass C.T.S. examination for promotion.] (2) Excise Constable selected for officiating appointments as Assistant Sub-Inspector should be well below the age of [50] years, so that they may if eventually found fit, be appointed in permanent vacancies in the cadre of Assistant Sub-Inspectors. 7. The Rule as stated, lays down that the promotions to the post of Assistant Sub-Inspector of Excise shall be made by the Commissioner of Excise in April, each year. This indicates that the exercise has to be undertaken every year in order to fill up the vacancies accruing till that month in each year. It also lays down that the maximum age of the candidate should be below 50 years. Sub-rule 2 of Rule 45 lays down that the selection of constables for officiating appointments as Assistant Sub-Inspector should be made in such a manner that' "they should be well below, the age of fifty years, so that they may,' if eventually be found fit, be appointed in the permanent vacancies in the cadre of Assistant Sub-Inspectors". The words "well-below" apparently lends emphasis to the fact that the age limit applies even to the candidates who have been officiating as Assistant Sub-Inspectors. 8. On strict interpretation of Rule 45, it would appear that it does not contemplate any scope for relaxation of the maximum age criteria. Yet, admittedly such relaxation of age was given to as many as 15 constables on the plea that they were officiating since long as the Assist- ant Sub-Inspectors (Excise). 9. It is not disputed by the Respondents that the petitioners also possess the requisite educational qualifications having adequate knowledge of English and Hindi and had also passed the C.T.S. examination and were, therefore, eligible in all respects for promotion or at least for being selected for officiating appointments as Assistant Sub-Inspectors and that they had possessed of such requisite qualifications, even at the time the 15 constables were granted the privilege of officiating appointments as AS.ls. 10. From the Gradation list (Annexure-1), undeniably, the position of the petitioners in seniority, is much above the persons who were selected for officiating on the post of AS.ls. and who were later granted promotion by relaxation of their age. 10. From the Gradation list (Annexure-1), undeniably, the position of the petitioners in seniority, is much above the persons who were selected for officiating on the post of AS.ls. and who were later granted promotion by relaxation of their age. There is no reason as to why the petitioners being seniors in the Gradation list, and possessing all the requisite qualifications, were not selected for officiating as AS.ls. and instead the persons below them in seniority was selected. 11. It cannot be denied that due to the inaction of the respondents-State of Bihar or the State of Jharkhand, to take up the regular promotions every year as mandated in Rule 45 of the Appendices to the Excise Manual, the petitioners for no fault of theirs were allowed to cross the age of 50 years as on the cut-off date of 30.4.2007 and thereby, their right for being considered for promotion has now been sought to be frustrated. While, considering a similar case, where the concerned State authorities had failed to initiate the process of recruitment for several years during which period several eligible candidates became over age and their candidature for their recruitment was refused to be considered on the ground of their having crossed the age bar, this Court in the case of Tripurari Kumar & Another VS. The State of Jharkhand & Others in W.P.(S) No. 6346 of 2007; by placing reliance on several judgments of the Division Bench of this Court and that of the Patna High Court and also on the case of Jharkhand Justice Forum vs. State of Jharkhand reported in 2003 (4) J.L.J.R. 793 , has observed that the writ petitioners were entitled to get the benefit of relaxation of age for appointment on the posts claimed for. 12. The case of the petitioners stands on identical footing inasmuch as on account of the inaction of the Respondents authorities to consider the cases of the eligible candidates for their promotion to the post of A.S.ls. for more than six years, the petitioners, even though they were eligible in all respects and were below the age of 50 years at the relevant time, were not able to avail their chance of promotion. for more than six years, the petitioners, even though they were eligible in all respects and were below the age of 50 years at the relevant time, were not able to avail their chance of promotion. Furthermore, since as per the stand taken by the Respondents, the provisions relating to promotion were amenable to relaxation in the matter of age, the petitioners too had deserved the benefit of age relaxation and to be considered for their promotion. Denial of such benefits to the petitioners, while extending the benefits to the persons below the petitioners in seniority, does amount to arbitrary and discriminatory action and is against the principles of equity and natural justice as well. The petitioners are certainly entitled to be considered for their promotion on the date when juniors to them were granted such benefits by relaxation of their qualifying age also. 13. In the light of the above discussions, this writ application is disposed of with a direction to the Respondents-State to consider the case of the petitioners for their appointment by promotion to the post of A.S.ls. after granting relaxation in the upper age limit to the same extent as granted to the Respondent Nos. 6 to 22. This exercise must be completed by the concerned Respondents-authorities within three months from the date of this order.