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Jharkhand High Court · body

2011 DIGILAW 1015 (JHR)

Prem Shankar Mishra v. State of Jharkhand

2011-11-21

P.P.BHATT

body2011
ORDER 1. The present writ petition is filed under Article 226 of the Constitution of India inter alia praying for issuance of appropriate writ/order or direction in the nature of mandamus directing the respondents to accept the joining of the petitioner on the promoted post of Sub-Inspector of Police in Special Branch, Jharkhand, Ranchi from the date of grant of promotion by the Board vide order dated 27th December, 2007 vide Memo No. 2200/P with all consequential benefits. 2. The case of the petitioner is that he was initially appointed as Steno Assistant-cum-Sub-Inspector of Police in the year 1983 in the district of Chaibasa and thereafter his case was considered for promotion to the best of Sub-Inspector of Police and by order dated 5.6.2007 the name of the petitioner was indicated as serial No. 91 in the gradation list of the officers who have been promoted and transferred to the promoted post but the promotion of the petitioner could not be effected as there was criminal case pending against him in the erstwhile State of Bihar since 1996 when he was posted in the District of Gaya. The petitioner filed a representation before• the Respondent No. 2 on 26.6.2009 to consider his case for promotion but the same has not been considered till date. 3. The case of the respondents is that the petitioner is not eligible and entitled to get promotion at this juncture in view of Sankalpa No. 6227 dated 20.11.2008. 4. The learned counsel appearing for the State has referred to and relied upon paragraph 10 of the counter affidavit in support of his case and submitted that vide Memo No. 2200/P dated 27.12.2007 the petitioner was promoted to the post of Sub-Inspector of Police on the condition that if any departmental proceeding or criminal proceedings are pending against him in the Court of Law, promotion will not be effected and this condition was laid down in Clause-4 of the order dated 27.12.2007. 5. 5. Considering the aforesaid rival submissions and on perusal of the papers it appears that the present petitioner was promoted vide office order dated 27.12.2007 which is annexed with the counter affidavit filed by the State and similar order has also been annexed with the petition filed by the petitioner which is Annexure-1 but there is slight difference in the date and the said order was communicated by the Deputy Inspector General of Police (Personnel) vide its order dated 27.12.2007. On perusal of the said order it appears that the name of the petitioner was indicated in the gradation list of the officers at Serial No. 91 but clause-4 of the said order prescribed that promotion will not be effected in case any departmental proceeding or criminal cases are pending before the Court of Law. Duration prescribed in the said clause is three years from the date of institution of criminal case or any complaint. 6. The stand of the respondent is that in view of Sankalpa No. 6227 dated 20.11.2008 the petitioner is not eligible and entitled to effect promotion as the criminal case is pending against him. 7. It is pertinent to note that the petitioner has been granted promotion vide order dated 27.12.2007 i.e. prior to issuance of the Government Resolution dated 28th Nov., 2008. Government Resolution dated 28th November, 2008 shall have prospective effect and it cannot be given retrospective effect. The promotion of the petitioner shall be governed under the office order dated 27.12.2007 and the condition prescribed in clause-4 specially provides that effect of promotion will not be given for a period of three years from the date of the institution of the departmental proceeding and/or criminal case. 8. Under the circumstances, the arguments advanced on behalf of the respondents cannot be accepted and the petitioner who has been granted promotion to the post of Sub-Inspector of Police vide order dated 5.6.2007/27.12.2007 which is required to be given effect of promotion on completion of three years from the date of institution/filing of complaint in view of the clause-4 of the order dated 5.6.2007, as well as order dated 27.12.2007. In the present case the criminal case was filed way back in 1996 and order regarding promotion was issued in the year 2007. In the present case the criminal case was filed way back in 1996 and order regarding promotion was issued in the year 2007. Thus at the time of issuance of promotion order in the year 2007 effect of promotion was required to be given from the date of the order in view of clause-4 of the promotion order itself. The learned counsel for the petitioner has pointed out from the averments made in the petition that similarly situated police officers who were co-accused in the said criminal case, have been granted promotion in the State of Bihar considering the factum of completion of a period of three years from the date of institution/filing of criminal case/departmental enquiry whereas the case of the petitioner in the State of Jharkhand has not been considered in spite of the representation filed by the petitioner. 9. Thus having regard to the facts and circumstances of the case I find that this is a fit case for considering the case of the petitioner for giving effect of promotion. Therefore the State of Jharkhand is required to be directed to consider the case of the petitioner for giving effect of promotion from his due date as per office order dated 5.6.2007/27.12.2007 with all consequential benefits. It also appears that the presentation dated 26.6.2009 submitted by the petitioner in this regard is not decided by the respondent. The learned counsel for the petitioner has also invited attention of this court that the petitioner is going to be superannuated on 31.12.2011. Therefore it is necessary to direct the respondent-State to consider the case of the petitions and pass an appropriate order giving effect of promotion to the petitioner within two weeks from the date of the receipt of a copy of this order. 10. With the above observation this petition is disposed of. 11. Copy of this order be given to the learned counsel for the petitioner as well as State.