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2009 DIGILAW 163 (JHR)

Pallab Ghosh v. State of Jharkhand

2009-02-03

D.G.R.PATNAIK

body2009
JUDGMENT Prayer in this writ application is for issuance of an order quashing the Memo No. 873 dated 28.06.2008 (Annexure-8), issued by the Respondents, whereby the claim of the petitioners for their promotion on the post of Sub-Inspector of Excise, has been rejected. Further prayer has been made for issuance of an order commanding upon the Respondents to grant promotion to the petitioners on the post of the Sub-Inspector of Excise from the date, from which the juniors to the petitioners have been given promotion after relaxing the upper age limit of 35 years. 2. The impugned order has been challenged mainly on the ground that it is contrary to the judgment dated 13.02.2008, passed by this Court in the case of Tripurari Kumar & Another-versus-State of Jharkhand & Others, in W.P. (S) No. 6346 of 2007. 3. The facts of the case in brief are that both the petitioners were appointed as Clerks in the Excise Department under the Respondents on 10.06.1986 and 01.10.1996 respectively. It is contended that the Appointment Rules stipulate that for appointment on the post of Sub-Inspector of Excise, 75 per cent of vacancies have to be filled up by direct recruitment and 25 per cent by promotion and in each and every year, the vacancies should be filled up by following the aforesaid procedure. Originally the upper age limit of direct recruitment was fixed at 25 years and for appointment by way of promotion at 35 years. By subsequent Notification of the State Government, the upper age limit for direct recruitment has been enhanced from 25 years to 35 years for the General candidates and to 40 years for the candidates of Schedule Castes and Schedule Tribes. However, the upper age limit for appointment through promotion was not enhanced. The further contention of the petitioners is that consequent upon the reorganization of the State of Bihar the services of the petitioners have been allotted to the State of Jharkhand, since after November, 2000 and the petitioners have been working in the State of Jharkhand since then. Although the State of Jharkhand came into existence on 15.11.2000 but no departmental examination was conducted for appointment to the post of Sub-Inspectors by way of promotion. Although the State of Jharkhand came into existence on 15.11.2000 but no departmental examination was conducted for appointment to the post of Sub-Inspectors by way of promotion. It was for the first time that a letter was issued on 03.01.2007 and circulated to all the Deputy Commissioners and the Assistant Commissioners of Excise, directing them to hold the departmental examinations in between 26th to th May, 2007 for appointment by way of promotion to the post of Sub-Inspectors from the cadre of Excise clerks. Further contention of the petitioners is that the petitioners at the relevant time, being eligible for appearing in the said examinations, had submitted their respective forms duly filled-up and the same was recommended by their Controlling Officer for needful action at their end. The petitioners were allotted Admit-cards and they had appeared at the written examinations. The result of the written examination was published by the Respondents on 12.06.2007, in which the petitioners were declared successful. On having succeeded in the departmental examination, the petitioners were expecting their promotion to the posts of Sub-Inspectors of Excise but when no communication was given to them, they approached the Respondent No. 3, only to be informed by him that the petitioners having crossed the upper age limit of 35 years, their cases cannot be considered for their promotion. Further contentions of the petitioners is that two other Excise Clerks, namely Tripurari Kumar and Mahesh Kumar Das who were similarly denied promotion on the ground of having crossed the upper age limit of 35 years, had filed a writ application before this Court vide W.P. (S) No. 6346 of 2007, praying for a direction to the Respondents to relax the upper age limit and to consider the writ petitioners’ case for their promotion. Pursuant to the order passed by this Court on 13.02.2008, allowing their writ application, the Respondents considered the cases of both the writ petitioners in the aforesaid writ petition and granted them promotion by relaxing the upper age limit. The further contention of the petitioners is that both the aforesaid co-employees, namely Tripurari Kumar and Mahesh Kumar Das were junior to the petitioners and yet they have been benefited with the privilege of being promoted to the higher posts, whereas the petitioners have been arbitrarily denied such benefits. 4. The further contention of the petitioners is that both the aforesaid co-employees, namely Tripurari Kumar and Mahesh Kumar Das were junior to the petitioners and yet they have been benefited with the privilege of being promoted to the higher posts, whereas the petitioners have been arbitrarily denied such benefits. 4. Counter affidavit has been filed on behalf of the Respondent-State, wherein, it has been sought to be explained that under the Rules for appointment to the post of Sub-Inspector by way of promotion, the upper age limit has been fixed at 35 years. The petitioners having crossed the upper age limit therefore do not possess the requisite criteria under the Rules and hence, are not entitled to be given promotion. The further stand taken by the Respondents is that the departmental examinations were held in the year 1998 and 2004 for appointment to the higher posts by promotion. All employees aspiring for promotions were required to pass the prescribed departmental examination but the petitioners failed to appear at the departmental examination. It was only after they had individually crossed the upper age limit of 35 years that the petitioners have later appeared and passed at the departmental examinations. As regards, the reference made by the petitioners to the case of the Tripurari Kumar and Mahesh Kumar Das, it is submitted that promotions were granted to both the aforesaid employees, in spite of their having crossed the upper age limit of 35 years but such promotion was granted only pursuant to the specific orders passed by this Court in W.P. (S) No. 3646 of 2007. An attempt has been made to distinguish the case of the petitioners from the case of Tripurari Kumar and Mahesh Kumar Das on the ground that considering the fact that by virtue of their service records, the date of birth of Tripurari Kumar and Mahesh Kumar Das were found to be 03.12.1965 and 24.08.1970 respectively, they were found eligible for promotion, whereas the date of birth of the petitioners as per their service records is 22.07.1959 and 22.07.1961 respectively indicating thereby that the petitioners are considerably older in age than the other two employees, who were granted promotion. 5. 5. Upon hearing the learned counsel for the parties, it appears that earlier a similar issue was raised by some of the employees, who were aggrieved by the refusal of the Respondents-authorities to grant promotion on the ground of their having crossed the upper age limit of 35 years. A Single Bench of the Patna High Court had allowed the prayer of the petitioners in the writ application for enhancement of the age of the candidates from 35 years to 42 years, but the order of the Single Bench was, however set aside by the Division Bench of the Patna High Court in L.P.A. No. 1248 of 2005. It further appears that in the meantime, one Tripurari Kumar and another, namely Mahesh Kumar Das, who were also aggrieved by the refusal of the Respondents-authorities to grant promotion to them on the ground of their having crossed the upper age limit, had filed a writ application vide W.P. (S) No. 6346 of 2007. While disposing of the aforesaid writ application vide its order dated 13.02.2008, a Bench of this Court had directed the Respondents to consider the case of the writ petitioners therein, for their appointment on the posts of Sub-Inspector of Excise after giving relaxation in the upper age limit. Pursuant to the aforesaid directions, the Respondent-State had considered the grant of promotion to the applicants, Tripurari Kumar and Mahesh Kumar Das and gave them the benefit of promotion to the higher posts by relaxation of their upper age limit in their favour. 6. The petitioners herein, have claimed that their cases stands on the same footing as that of Tripurari Kumar and Mahesh Kumar Das and they also should be granted the benefit of promotion by making the relaxation in their upper age limit. From the submission made on behalf of the petitioners, it does appear that the departmental examination was conducted in between 26th and 27th May, 2007. The eligible Excise clerks were allowed to submit their respective applications for appearing at the departmental examinations. The petitioners had also submitted their respective applications. Their controlling Officer had verified the applications and had forwarded the same to the Headquarters of the Respondents. The Admit-cards were thereafter issued to the petitioners allowing them to appear at the Departmental examinations. This fact has not been denied by the Respondents. The petitioners had also submitted their respective applications. Their controlling Officer had verified the applications and had forwarded the same to the Headquarters of the Respondents. The Admit-cards were thereafter issued to the petitioners allowing them to appear at the Departmental examinations. This fact has not been denied by the Respondents. The inference which may possibly be drawn is that on the date when the petitioners were allowed to appear in the departmental examinations, they were found eligible for the grant of promotion under the stipulated criteria for being considered for their promotion, if they qualify in the departmental examination. 7. It further appears that earlier both these petitioners had preferred a writ application vide W.P. (S) No. 1948 of 2008, seeking the same relief on the basis of the judgments passed in favour of their junior to the Tripurari Kumar and Mahesh Kumar Das. By order dated 14.05.2008, a Bench of this Court had disposed of the aforesaid writ application with a direction to the Respondents to consider the case of the petitioners and if the Respondents finds that the case of petitioners were fully covered on facts by the judgment passed in the case of Tripurari Kumar & Another (Supra) then to apply the same rationally in the case of the petitioners also and if the Respondents do not find the petitioners’ case fully covered by the aforesaid judgment, then they should communicate their decision to the petitioners. 8. In the case of Tripurari Kumar and Mahesh Kumar Das (Supra), while considering the identical issues as raised in this case a Bench of this Court had recorded its observation that after the creation of the State of Jharkhand, no departmental examination was conducted by the Respondents-authorities to enable the eligible candidates to appear and qualify at the examinations for the purposes of seeking promotion to the higher posts and such examination was held for the first time in May, 2007. It was also observed that on account of the lapses on the part of the Respondents-authorities in promptly conducting the requisite departmental examinations, the candidates who could have otherwise been eligible, have been unjustly sought to be disqualified on the ground of having crossed the upper age limit of 35 years. It was also observed that on account of the lapses on the part of the Respondents-authorities in promptly conducting the requisite departmental examinations, the candidates who could have otherwise been eligible, have been unjustly sought to be disqualified on the ground of having crossed the upper age limit of 35 years. It also appears from the observations recorded in the judgment in the aforesaid case that the counsel for the Respondents had also conceded that in the light of the facts and circumstances and the lapses on the part of the Respondents-authorities to conduct departmental examinations promptly, the petitioners in the writ application were entitled to relaxation of their age for appointment to the post of Sub-Inspector of Excise by promotion. 9. In the light of the above observations, the writ petition was disposed of with a direction to the Respondents-authorities to consider the case of the writ petitioners for their appointment on the post of Sub-Inspector of Excise after giving the relaxation in the upper age limit to them. Admittedly, pursuant to the aforesaid orders passed in the case of Tripurari Kumar (Supra), the Respondents-authorities had granted promotion to the said writ petitioners. The judgment in the case of Tripurari Kumar (Supra), does not appear to have been passed by making reference to the age of the writ petitioners therein or by fixing any limit for relaxing the upper limit. 10. The attempt on the part of the Respondents to distinguish the case of the petitioners from the case of Tripurari Kumar and Mahesh Kumar Das by reference to their age on comparison therefore lacks rational basis. 11. Having regard to the entire facts and circumstances, the Respondents are directed to re-consider the cases of both the petitioners in the light of the fact that promotion to two other candidates was given by relaxing their upper age limit and the fact that the petitioners were admittedly allowed to appear at the departmental examinations and had passed the said examinations, and to pass an appropriate, reasoned and speaking order and communicate such decision effectively to the petitioners within a period of three months from the date of this order. 12. With the above observations, this writ application stands disposed of. 13. Let a copy of this order be given to the learned counsel for the Respondents.