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2009 DIGILAW 725 (JHR)

Durga Kumar Yadav v. State of Jharkhand

2009-05-08

D.G.R.PATNAIK

body2009
Judgment Heard Mr. Dhananjay Kumar Dubey, learned counsel for the petitioner and Mr. R. N. Sahay, learned Senior Standing Counsel II for the Respondents and with the consent of the learned counsel for the parties, the case is taken up for disposal at the stage of admission. 2. The prayer of the petitioner in the instant writ application is for a direction to the Respondents to place him at Serial No. 34 in the Gradation List as shown in the Gradation list dated 30th January, 1989 and for a further direction to the Respondents to revise the petitioner’s promotion order on the post of Executive Engineer from the date, the persons junior to him and whose name appear below the petitioner in the Gradation list, have been granted promotion. 3. The petitioner’s case in brief is that he was appointed in the year 1972 as an Engineer Assistant (Mechanical) in the Department of State Tube Well Organization under the Agricultural Department of the Government of Bihar. 4. A policy decision was taken by the Government of Bihar for merger of the cadre of Engineers, working in the different organizations and accordingly, a Notification dated 28.07.1980 was issued by the Government through which petitioner was designated as Assistant Engineer from the date when he was given charge of the said post i.e. from 24.11.1972. 5. Consequent upon the merger of the cadre of the Engineers, a Gradation list was published on 28.01.1981, in which the petitioner’s name was placed at Serial No. 92. On the objection that such placement in the Gradation list was erroneous and not in consonance with the date of his joining i.e. with effect from 24.11.1972, the petitioner filed a representation before the concerned authorities of the Department to place him in proper position in the tentative Gradation list. Several other persons, who were similarly aggrieved with the Gradation list, filed a writ application before the Patna High Court. By order dated 03.08.1987, the High Court quashed the impugned Gradation list of 28.01.1981 with a direction to the Respondents to prepare a fresh seniority list after considering the seniority of the writ petitioners. 6. Several other persons, who were similarly aggrieved with the Gradation list, filed a writ application before the Patna High Court. By order dated 03.08.1987, the High Court quashed the impugned Gradation list of 28.01.1981 with a direction to the Respondents to prepare a fresh seniority list after considering the seniority of the writ petitioners. 6. Pursuant to the order of the High Court, the Respondents published a fresh Gradation list on 29.04.1988 (Annexure-2), in respect of 38 Assistant Engineers (Mechanical), and in the final Gradation List (Annexure-4), published on 30.01.1989, the petitioner’s position was placed at Serial No. 34 with effect from 24.11.1972 with the remark that the petitioner’s seniority has been fixed in view of the recommendation made by the Personnel Department. 7. However, the matter was not allowed to rest even after preparation of the final Gradation list and a fresh Gradation list was published on 09.01.1991 in respect of the Engineers, working in the Mechanical wing of the Irrigation Department, in which the petitioner’s position was downgraded to Serial No. 89 in place of the earlier Serial No. 34. 8. Being aggrieved, the petitioner filed a fresh writ application before the Patna High Court in the year 1991 vide C.W.J.C. No. 1001 of 1991. During the pendency of the writ application, the Court had passed an interim order restraining the Respondents from taking any action against the petitioner pursuant to the impugned Gradation list. The writ application was disposed of by the Patna High Court by order dated 01.11.1999, quashing the impugned Gradation List to the extent, it related to the petitioner. 9. On the basis of the order passed by the Patna High Court in his writ application, the petitioner filed a representation before the concerned authorities of the Respondents requesting them to place him at the appropriate position in the Gradation list. 10. Though subsequently by a Notification dated-08.05.1997 (Annexure-8), the petitioner was promoted to the post of Executive Engineer with effect from 01.09.1993 but the effective date of such promotion was declared by maintaining the petitioner’s position in the Gradation list at Serial No. 89 in stead of Serial No. 34, contrary to the orders of the Patna High Court passed in the petitioner’s earlier writ application. 11. 11. Being aggrieved, the petitioner again filed another writ application before the Patna High Court vide C.W.J.C. No. 10773 of 2001 for a direction to the concerned authorities of the Respondents to revise the petitioner’s position in the Gradation List and also to grant him all consequential benefits on the basis of the revised position. 12. During the pendency of the writ petition and in terms of the Bihar Reorganization Act, 2000, the services of the petitioner was allocated to the State of Jharkhand. Consequently, with the liberty granted by the Patna High Court for raising his grievances before the appropriate authorities in the State of Jharkhand or in the High Court of Jharkhand, the writ application was withdrawn. 13. After his cadre allocation in the State of Jharkhand, the petitioner filed a representation dated 06.12.2004, before the concerned authorities of the Respondents with a request to restore his position to Serial No. 34 in the Gradation List in the light of the orders passed by the Patna High Court in C.W.J.C. No. 1001 of 1991 and to grant him his promotion to the higher rank alongwith all consequential benefits from the effective date after his appropriate placement in the Gradation list. 14. Being aggrieved with the failure of the Respondents to consider his request, the petitioner has filed the instant writ application. By filing his supplementary affidavit, the petitioner has informed that during the pendency of this writ application, the Respondents have brought out another provisional Gradation list dated-30.09.2005, wherein, the petitioner’s position has been continued to be shown at Serial No. 89 as per the earlier Gradation list of 1991, the petitioner filed his objections. In the final Gradation List dated 13.06.2007 so published in which the petitioner’s name was placed at Serial No. 41 on 13.06.2007. The petitioner was content at his placement at Serial No. 41, but the Respondents had again brought out another Gradation list in the month of January, 2008, dated 16.01.2008 in which the petitioner was placed junior to one Parmanand Pandit who, in the earlier Gradation List of 13.06.2007, was placed at Serial No. 68, showing the date of his appointment of the year 1973, whereas, the petitioner’s date of appointment was of the year 1972. 15. 15. Being aggrieved by the aforementioned provisional Gradation list of 16.01.2008, the petitioner filed his objection on the ground that he was admittedly, granted promotion to the rank of Assistant Engineer with effect from 24.11.1972, whereas his colleague, Parmanand Pandit was appointed as an Assistant Engineer on 26.05.1973 and therefore, the petitioner deserved to be placed above the said Parmanand Pandit in seniority. 16. The grievance of the petitioner is that while, pursuant to the orders passed by the High Court in the earlier writ applications filed by similarly aggrieved Engineers, the Respondent-State had granted them the benefit of revised position in the Gradation list, such benefit, in spite of the orders of the Court in his favour, was arbitrarily denied to the petitioner by the Respondents. 17. The petitioner has, therefore, challenged the provisional Gradation list dated 16.01.2008 and the final Gradation list dated 30.01.2008 on the ground of being arbitrary, illegal and in defiance of the lawful orders, passed by this Court in the earlier writ applications, filed by him. 18. Mr. Anil Kumar Sinha, learned Senior Advocate for the petitioner, would argue that from the facts of the case, as detailed above, it would be manifest that the final Gradation list dated 13.06.2007, was prepared after considering the relevant aspects including the petitioner’s date of joining of service and the date of grant of promotions to him and also the various orders passed by the Patna High Court in the writ applications earlier filed by the petitioner, challenging the earlier impugned provisional and final Gradation lists and, once the Gradation list was published and declared as final, the Respondents cannot illegally deny the benefits thereof to the petitioner by revising the Gradation list and bringing out another fresh list 19. In their counter affidavit, the Respondents have sought to explain that the petitioner being a regular Executive Engineer (Mechanical), is presently posted as the Managing Director of the JHALCO. After the cadre division and final allotment of cadre, a provisional Gradation list of the Assistant Engineer (Mechanical) of the petitioner’s department was published vide Memo. No. 3671, dated 30.09.2005. Some representations were received against the tentative Gradation list and after considering the representations, the final Gradation list was published on 13.06.2007. After the cadre division and final allotment of cadre, a provisional Gradation list of the Assistant Engineer (Mechanical) of the petitioner’s department was published vide Memo. No. 3671, dated 30.09.2005. Some representations were received against the tentative Gradation list and after considering the representations, the final Gradation list was published on 13.06.2007. It is explained that the main basis of deciding the seniority list has been the Gradation list of A.E. (Mechanical) of Bihar State, which was on the basis of W.R.D., Bihar Government letter No. 88 dated 09.01.1991 and W.R.D., Bihar Government Letter No. 321, dated 15.12.2006. Subsequently, the Bihar Government again revised vide Memo No. 1320, dated 05.06.2007 in the light of the order of the High Court. Consequently, the Department had also revised the Gradation list and circulated the same on 16.01.2008, and prepared the final Gradation list and published the same on 13.05.2008. The petitioner’s position in the Gradation list had therefore, undergone revision. 20. It appears from the explanation offered by the Respondents, that after having considered all the relevant aspects, including the date of appointment of direct recruits and of those by way of promotion, and after having considered the objections/representations received from the concerned personnel, the Respondents had prepared and published the final Gradation list on 13.06.2007, in which the petitioner’s position was shown at Serial No. 41. Such final Gradation list was made exclusively for the Engineers under the State of Jharkhand. Therefore, there could be no occasion for the Respondents to be influenced by any decision of the Government of Bihar in the matter of revision of the Gradation list published in respect of those Engineers, working in the State of Bihar, and to make a further revision of the Gradation list by publishing the impugned Gradation list when the earlier Gradation list was declared as final. Furthermore, as would appear from Annexure-C to the supplementary counter affidavits of the Respondents, benefits of the orders of the High Court, passed in the various writ applications filed by the several aggrieved Engineers, was extended to them and their position in seniority was restored in the final Gradation list. Yet for reasons unexplained in the counter affidavit, the benefit of the orders, passed in favour of the petitioner in the writ application filed by him before the Patna High Court, have been denied to him. Yet for reasons unexplained in the counter affidavit, the benefit of the orders, passed in favour of the petitioner in the writ application filed by him before the Patna High Court, have been denied to him. The petitioner has rightly contended that by denying the benefits of the orders passed by the High Court on the one hand, while on the other hand, allowing the benefits of similar orders to the other aggrieved Engineers, the Respondents have acted arbitrarily, causing grave injustice to the petitioner. It is also relevant to note here that the final Gradation List dated 13.06.2007, was never objected to nor was challenged by any of the personnel, whose name finds therein. There could, therefore, be no occasion for the Respondents to revise the final Gradation list dated-13.06.2007 and thereby disturb the seniority of the petitioner, which was acknowledged in the earlier final Gradation list. 21. In the light of the above discussions, I find merit in this writ application. Accordingly, the same is allowed. The impugned Gradation list dated 13.05.2008, is hereby quashed. The Respondents shall treat the earlier Gradation list dated 13.06.2007 as the final Gradation list and shall act accordingly, restoring the original position of the petitioner in seniority. The Respondents shall further, consider and grant to the petitioner all consequential benefits which may accrue upon the restoration of his seniority in accordance with the Gradation list dated-13.06.2007, within three months from the date of receipt/production of a copy of this order. 22. Let a copy of this order be given to the learned counsel for the Respondents.