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2009 DIGILAW 292 (PAT)

Birendra Kumar Singh v. State Of Bihar

2009-02-18

NAVIN SINHA

body2009
JUDGEMENT 1. Heard leaned Counsel for the petitioners and the learned Counsel for the State in this batch of writ applications. 2. In all these cases the respondent is the State of Bihar in the Department of Water Resources. The issue common to all the writ applications are the orders of appointment by promotion from Grade-IV to Grade-Ill under certain Government circulars and the subsequent reversion. These writ applications have, therefore, been heard together and are being disposed by a common order. 3. This Court shall refer to the facts of CWJC No. 3727 of 2008 and also the stand of the respondents from the counter affidavit in CWJC No. 15159 of 2007 as consideration thereof shall deal with all aspects of the matter in controversy. 4. The petitioner was appointed as a Chainman on 13.2.1980. On 2.4.1987 proposal was routed for promotion from Grade-IV to Grade-Ill against 25% quota meant for such promotion. The petitioner is one of the persons whose case was forwarded on 2.5.1987 for appearing at the interview and examination for purpose of such promotion, by Annexure-8. On 2.12.1988 the cases of persons like the petitioner was taken up for consideration when the Establishment Committee which was considering their cases found certain deficiencies in their papers and the proceedings were deferred by Annexure-1. On 20.12.1988 by Annexure-2 after necessary documents were made available and their qualifications were examined the petitioner and others were directed to be promoted to Class-Ill posts against these 25% vacancy. 5. The petitioner continued to serve on Class-lll post of Junior Accounts Clerk on promotion from the post of Chainman in this manner for nearly 20 years when on 9.8.2006 a show cause was issued contained in Annexure-3. The show cause notice states that there was no provision for promotion of a Chainman on the post of Accounts Clerk. That there were no rules to this effect whatsoever. This was followed by another show cause in similar terms on 15.2.2007, that the promotion from Chainman to Accounts Clerk was not as per rules, that it had been issued from the Confidential Section when there was no confidentiality in the matter that the rules for reservation were not followed. 6. The petitioner submitted his reply dated 9.3.2007 at Annexure-5. This was followed by another show cause in similar terms on 15.2.2007, that the promotion from Chainman to Accounts Clerk was not as per rules, that it had been issued from the Confidential Section when there was no confidentiality in the matter that the rules for reservation were not followed. 6. The petitioner submitted his reply dated 9.3.2007 at Annexure-5. He specifically referred to an order of this Court in CWJC No. 13578 of 2003 (Madan Thakur v/s. State of Bihar & Others), a person promoted from Class-lV to Class-Ill alongwith the petitioner in like manner who was sought to be reverted, which was set aside by this Court. The petitioner also specifically mentioned that there was a provision in a regulation of 25.7.1979 (wrongly mentioned as 1999 in the typed copy) for such promotion against 25% quota fixed for the same. On this followed the impugned order dated 12.4.2007 at Annexure- 6. 7. The impugned order states that the matter was "considered" and upon "consideration" the promotion given to the petitioner from the post of Chainman to Junior Accounts Clerk was contrary to rules as it meant a change of cadre. 8. Learned Counsel for the petitioner has relied upon the judgment of this Court in the case of Madan Thakur (supra) at Annexure-9 reported in 2005(2) PLJR 11 . Learned Counsel have further relied upon another Bench decision of this Court in CWJC No. 3706 of 1997 affirmed in LPA No. 330 of 1998. Their contention is that their promotions were in accordance with law under the circular of 25.7.1979. That there was no justification to revert them after such long years. 9. Counsel for the State referred to a Government circular dated 11.2.1985 at Annexure-B to CWJC No. 15159 of 2007 to contend that such promotion could be made only after a limited competitive examination with regard to these 25% vacancy to be filled up by way of promotion from Class-IV to Class-Ill. That the petitioner did not appear at any limited competitive examination. He also sought to place reliance on an order of this Court in CWJC No. 8467 of 2004 which came to be affirmed in LPA No. 187 of 2006. 10. The hallmark of governance is uniformity and consistency. That the petitioner did not appear at any limited competitive examination. He also sought to place reliance on an order of this Court in CWJC No. 8467 of 2004 which came to be affirmed in LPA No. 187 of 2006. 10. The hallmark of governance is uniformity and consistency. If the Government, acting through its officers issues fresh circulars one after the other on the same issue, when the latter circular does not take into consideration the former circular, if based on the former circular the petitioners have obtained a benefit, will this Court be justified in giving an advantage to the respondent-State on the basis of any subsequent circulars not dealing or considering its own earlier circular, to deprive the petitioners of this benefit specially after long passage of time and more than one judgment of this Court on the issue? 11. It has already been noticed in the discussion that the petitioners in the cause shown specifically referred to the circular of 25.7.1979 providing for 25% vacancies for promotion from Class-IV to Class-Ill. Even the circular of 11,2.1985 sought to be pressed in by the State visualizes such promotion. The circular dated 11.2.1985 does not deal with the circular dated 25.7.1979. The Court is left with the only conclusion that circular dated 25.7.1979 holds the field and has not been withdrawn. 12. In the impugned order dated 12.4.2007 the recital is "consideration" of the cause shown. What is the "consideration" finds no reference in the order. This assumes vital significance in view of the strong reliance placed by the petitioner on the circular dated 25.7.1979 based on which the judgment of this Court came to be delivered in CWJC No. 13578 of 2003. The impugned order not only fails to discuss the circular of 25.7.1979 and its inapplicability but also does not deal with the judgment of this Court in CWJC No. 13578 of 2003. What consideration was being done is difficult to understand. 13. An administrative order is required to be speaking, fair and reasoned. A necessary concomittants of the same shall be a proper consideration, a brief discussion of the consideration and the reasons for rejection. All these are vitally lacking in the impugned order dated 12.4.2007. The language of the order is quite simply as power flows from the barrel of the gun, it flows from the pen of the respondents. 14. A necessary concomittants of the same shall be a proper consideration, a brief discussion of the consideration and the reasons for rejection. All these are vitally lacking in the impugned order dated 12.4.2007. The language of the order is quite simply as power flows from the barrel of the gun, it flows from the pen of the respondents. 14. Even in their counter affidavit filed in the present proceeding, the respondents have not dealt with the circular of 25.7.1979 and the order of this Court in CWJC No. 13578 of 2003 which related to the Department of Water Resources itself and concerned the very reversion of the persons from Class-Ill post to that of Chainman after long years contrary to the circular dated 25.7.1979 providing for 25% such limited promotion in such matters. The reversion has taken place after 18-19 years. 15. A Bench of this Court in CWJC No. 3706 of 1997 (Suresh Kumar Rajak V/s. State of Bihar & Others) was considering a challenge to similar orders of reversion after 16-17 years in the Department of Water Resources when it also noticed that there was a provision of filling up 25% vacancies from Class-IV in Class-Ill. The Court observed in the relevant extract of Para 13 as follows:- "This apart the respondents have also fixed certain quota (25%) (wrongly typed as 253) to fill up Class-Ill posts amongst eligible Class-IV employees. Thus there is nothing on record to suggest that a Class IV cannot be appointed in Class-lll post in regular establishment even on qualification and selection recommendation by the Selection Committee." 16. Additionally the Bench also relied upon a judgment of this Court in the case of Someshwar Prasad Verma V/s. The State of Bihar, 1991(1) PLJR 718 to hold that the respondents cannot be permitted to reopen such promotion after long delay of 10-12 years. Buttressing the reasoning by a Full Bench decision reported in 1997(1) PLJR 519 of this Court, the Bench declined to permit the respondents to reopen the matters after long delay of 16-17 years. 17. The very present Department of Water Resources then took the matter in LPA No. 330 of 1998 which was dismissed on 14.10.1998. 18. The judgment in CWJC No. 8467 of 2004 (Lalit Mohan Singh V/s. State of Bihar) relied upon by the respondents related to a case of change of cadre of Class-Ill posts itself. 17. The very present Department of Water Resources then took the matter in LPA No. 330 of 1998 which was dismissed on 14.10.1998. 18. The judgment in CWJC No. 8467 of 2004 (Lalit Mohan Singh V/s. State of Bihar) relied upon by the respondents related to a case of change of cadre of Class-Ill posts itself. Moreover, the contention of the State in that case was that there was no proof for 25% appointment from Class-IV to Class-Ill but that it was a concept subsequently introduced to justify wrong act. That there was a circular of 25.7.1979 has already been noticed in more than one judgment of this Court, discussed above. This was a fallacious submission on behalf of the respondents is further apparent from their own document presently from circular dated 11.2.1985 providing for such promotion. The contradiction in the stand of the State is glaring. 19. The last contention of the respondents is that no competitive examination took place even for purpose of such promotion, even if there was a provision for 25% vacancies to be filled up from Class- IV to Class-Ill. To this Court, that is a speculation, on the ground that the State has chosen not to place copy of the circular dated 25.7.1979 on record and has also refused to deal with despite the cause shown by the petitioner. 20. Be that as it may, once the respondents acknowledged that there was a provision for 25% quota for promotion from Class-Ill the source of the power is there. If there was a procedure prescribed for it which was not strictly followed inasmuch as the Selection Committee did examine qualification, and it is nobodys case that there were not qualified to hold the post, absence of the limited competitive examination may at best be an irregularity to be considered in the backdrop of passage of time of 18-20 years. Even in the case of Secretary of State of Karnataka V/s. Uma Devi & Ors., reported in 2006 (2) PLJR (SC)363 relied upon by the respondents, that mere passage of time shall bring no succour to the petitioners who were granted promotion contrary to law, the Supreme Court at Para 44 held as follows:- "44. One aspects needs to be clarified. One aspects needs to be clarified. There may be cases where irregular appointments (not illegal appoints) as explained in S.V. Narayanappa (supra), R.N. Nanjundappa (supra) and B.N. Nagrajan (supra), and referred to in paragraph 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not subjudice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme." 21. This Court based on the aforesaid discussion finds it difficult to sustain the orders of reversion of the petitioners from Class-Ill to Class-IV posts as being devoid of any source of legality for the same. If the respondents in the same Department with regard to a person similarly situated refused to deal with the cause shown more particularly when it deals with the judicial orders of this Court as also their own circulars there is little that this Court can do but to pronounce the illegality of the same. This Court does so. The impugned orders of reversion of the different dates in the separate writ applications are not sustainable in law and are accordingly quashed. The petitioners stand confirmed on their promotional posts of Class-Ill. 22. The writ application stands allowed with all its consequences.