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2009 DIGILAW 896 (JHR)

Manoj Kumar v. State of Jharkhand

2009-06-27

D.G.R.PATNAIK

body2009
Judgment Heard Mr. Saurav Arun, learned counsel for the petitioners and learned J.C. to S.C. (L&C) for the Respondent-State. 2. Petitioners in this writ application have prayed for a direction to the respondents to consider the case of the petitioners for their promotions to the post of the Sub-Inspector of Excise after giving them the benefit of relaxation in the upper age limit in the light of the judgment passed by this Court in W.P. (S) No. 6346 of 2007 and on the basis of the ratio laid down by this Court in W.P. (S) No. 2628 of 2005. 3. The case of the petitioners is that they were appointed as Excise Clerks in the Excise Department under the Respondents on 27.07.1990 and 30.05.1998 respectively. It is contended on behalf of the petitioners 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 every year, the vacancies should be filled up by following the aforesaid procedure. Originally the upper age limit for direct recruitment was fixed at 25 years and for appointment by way of promotion at 35 years. Subsequently, by a Notification of the State Government, the upper age limit was enhanced from 25 years to 35 years for direct recruits for the General candidates and to 40 years for the Schedule Castes and Schedule Tribes candidates. However, the upper age limit for appointment through promotion was not enhanced. 4. The grievance of the petitioners is that consequent upon the reorganization of the State of Bihar and on the creation of the State of Jharkhand, since after the year 2000, no departmental examination was ever conducted for appointment to the post of Sub-Inspectors by way of promotion and it was only after about seven years from the date of creation of the State, that an effort was initiated to fill up the vacancies through promotion in the year 2007. On account of such inaction and the delay caused in conducting the departmental examination on the part of the Respondents-authorities, the petitioners who were eligible by virtue of their age for their appointment by way of promotion to the higher post, were denied the benefit thereof and when now the action has been initiated for filling up the posts, the petitioners have been denied the benefit of promotion on the ground that they are not eligible on account of their having crossed the upper age limit. 5. Referring to a similar case, which was dealt with by this Court in the case of Tripurari Kumar & Another-versus-State of Jharkhand & Others, in W.P. (S) No. 6346 of 2007, the petitioners have claimed that the facts of the case in the above-mentioned writ application are identical to the case of the present petitioners in as much as, the writ petitioners were denied the benefit of promotion on the higher post on the ground that they had crossed the upper age limit. This Court while disposing of the aforesaid writ application had directed the concerned authorities of the Respondents to reconsider the case of the writ petitioners for their appointment by way of promotion by granting them the benefit of relaxation in the upper age limit. Pursuant to the orders of this Court, the Respondents-authorities granted the benefit of relaxation in age to the writ petitioners therein, from 35 years to 42 years. 6. Learned counsel for the petitioners explains that the judgment passed by the Single Bench of this Court, passed in W.P. (S) No. 3646 of 2007, was based upon an earlier Division Bench Judgment on the identical issues passed in W.P. (S) No. 2628 of 2005. Learned counsel adds further that the same issues were again raised by two other co-employee of the petitioners, namely, Pallav Das and Jitendra Prasad who were also denied the benefit of promotion on the ground of their having crossed the upper age limit and after considering the issues raised and in the light of the earlier judgments, this Court vide its order dated 10.02.2008, passed in W.P. (S) No. 3928 of 2008, issued a direction to the Respondents-authorities of the State Government to reconsider the cases of the writ petitioners by extending the benefit of relaxation of their upper age limit. Learned counsel explains that like the writ petitioners in the aforementioned writ applications, the petitioners were also called upon to appear at the departmental examinations and upon their having appeared at the examination, they were also declared as having passed the requisite examinations and this in itself amply indicates that on the date when the petitioners were called upon to appear at the departmental examination, they were found eligible for promotion to the higher post even by virtue of their age. Learned counsel adds further that though pursuant to the orders passed by this Court in the earlier writ applications, the Respondents-authorities have passed appropriate orders and in the process, have granted the benefit of promotion to the persons, who were junior to the petitioners in the gradation list, yet, the petitioners have been discriminated in the matter of extending the same benefits. 7. Counter affidavit has been filed on behalf of the Respondent-State denying and disputing the entire claim of the petitioners. Admitting the fact that the benefits of appointment to the higher post by way of promotion by making relaxation of the upper age limit has been extended to some of the clerks employed in the Excise Department, it is contended that such was a concession made by the Respondents pursuant to the orders passed by this Court in the several writ applications. 8. Learned counsel for the Respondent-State submits that the benefit extended to the other Excise Clerks having been given pursuant to the orders passed in the earlier writ applications, and therefore the Respondents cannot be bound to adopt the same by way of a general policy decision in respect of the other candidates. 9. The main question as raised in this case is, as to whether in the matter of their claim for promotion to the higher posts, the petitioners have been discriminated. As would appear from the facts of this case and also from the facts of the case, referred to vide W.P. (S) No. 6346 of 2007, several candidates including the present petitioners were invited to appear at the examinations conducted by the Departmental Promotion Committee. As would appear from the facts of this case and also from the facts of the case, referred to vide W.P. (S) No. 6346 of 2007, several candidates including the present petitioners were invited to appear at the examinations conducted by the Departmental Promotion Committee. On considering this factual aspect, this Court in the earlier writ applications had observed that the benefit of being invited at the examinations conducted by the Departmental Promotion Committee, led to the inference that on the date when the candidates were called upon, they were eligible in all respects including age wise, for their promotion. It was on the basis of these observations and also on the basis of the fact that there was serious lapse on the part of the State Government in failing to hold the departmental examination every year as per the stipulated rules, that this Court had directed the Respondents to reconsider the claim of the writ petitioners for their promotion to the higher post by giving relaxation in their upper age limit. The facts of the present case are exactly identical to the facts of the earlier cases and thus, the decision of this Court vide W.P. (S) No. 3928 of 2008, fully covers the facts of this case also. 10. In view of the above discussions, the Respondents are directed to reconsider the case of the present two petitioners in the light of the fact that other candidates who were purportedly junior to the petitioners in the Gradation list were given promotion by relaxing their upper age limit and also considering the fact that the petitioners too were admittedly allowed to appear at the departmental examination and that they too had passed the departmental examination. The Respondents shall within three months from the date of receipt/production of this order take an appropriate decision on the petitioner’s claim, by passing a reasoned and speaking order and shall effectively communicate such decision to the petitioners. 11. With these observations, this writ application stands disposed of at this stage. 12. Let a copy of this order be given to the learned counsel for the Respondents.