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2011 DIGILAW 24 (JHR)

Rajeshwar Prasad v. State of Jharkhand

2011-01-11

N.N.TIWARI

body2011
Order The petitioner has prayed for a direction on the respondents to consider the petitioner's claim for regular promotion on the post of Executive Engineer and also for giving him the benefit of second A.C.P. on completion of 24 years of service on 9th August, 1999. 2. It has been stated that the petitioner was appointed as Assistant Engineer on 10th January, 1975. Subsequently, he was made Executive Engineer in current charge with effect from 5th May, 1998, but the respondents, in spite of the petitioner's eligibility in accordance with the prescribed rules, have not granted him regular promotion to the post of Executive Engineer. Benefit of second A.C.P. has also not been given to him. 3. The petitioner had earlier moved this Court in W.P.(S) No. 5724 of 2008 and this Court had directed the respondents to consider the petitioner's claim and take final decision. The Secretary, Water Resources Department, thereafter, had passed the order and the same was issued vide Memo No. 245 dated 22nd January, 2010, whereby the petitioner's claim for promotion and the benefit of A.C.P. have been rejected on the ground of pendency of a criminal case against him. 4. Mr. M.K. Verma, learned counsel, appearing on behalf of the petitioner, submitted that the petitioner was implicated in a frivolous case as far back as in the year 1989. The case in which the petitioner was involved was initiated on the basis of the first information report lodged by the department in the year 1989. Since, thereafter, the criminal case is pending without any progress. Not a single witness has been examined till date. Learned counsel submitted that it was the duty of the respondents to examine the witnesses for conclusion of the trial, but they have not done so and wasted more than two decades so far. Learned counsel submitted that vide circular dated 24th September, 1998 a policy decision was taken by the then Government of Bihar, Cabinet (Vigilance) Department, that if the case with prima facie charges is not concluded within a period of two years, the Government servant, against whom, criminal proceeding is pending, is entitled for promotion and other benefits on ad hoc basis with the condition to alter the order depending on the final result of the prosecution. The petitioner is, thus, entitled for consideration of his promotion and other benefits on the basis of the said circular. The petitioner is, thus, entitled for consideration of his promotion and other benefits on the basis of the said circular. The respondents have not taken notice of the same and have erroneously and arbitrarily rejected the petitioner's claim. 5. A counter affidavit has been filed on behalf of the respondents, stating, inter alia, that the State of Jharkhand by its Resolution No. 6227 dated 20th November, 2008 issued by the Personnel, Administrative Reforms and Rajbhasha Department laid down the provision for consideration of promotion of the Government servants against whom the criminal proceeding or the departmental proceeding is pending. It has been clearly provided in Para 2 of the said circular that if any criminal proceeding is pending against a Government servant, the same shall affect the decision of his promotion. The petitioner is an accused in a criminal case and the same is still pending and as such he is not entitled for promotion. 6. Mr. M.K. Verma, learned counsel, appearing on behalf of the petitioner, in reply submitted that the petitioner retired from service on attaining the age of superannuation on 30th November, 2007. Any resolution or policy decision made effective after his retirement is not applicable in his case. It has been submitted that the resolution dated 20th November, 2008 has got no application to the case of the petitioner, as the same has come into effect after his retirement. Learned counsel further submitted that even in the said circular, Clauses 5 and 6 provide for review of the cases, which are pending for more than two years and also for placing such cases before the Departmental Promotion Committee for ad hoc promotion. 7: Learned J.C. to Sr. S.C.-II, fairly admitted that the petitioner's claim has not been considered in the light of the earlier resolution of the Government dated 24th September, 1998, contained in Annexure-8 to the writ petition and even in the light of Clauses 5 and 6 of the resolution dated 20th November, 2008. 8. Considering the said admitted position and in the facts and circumstances of the case, this writ petition is disposed of, giving liberty to the petitioner to file a fresh representation, annexing the said policy decision alongwith a copy of this order before the Secretary, Water Resources Department, Government of Jharkhand-Respondent No.2. 8. Considering the said admitted position and in the facts and circumstances of the case, this writ petition is disposed of, giving liberty to the petitioner to file a fresh representation, annexing the said policy decision alongwith a copy of this order before the Secretary, Water Resources Department, Government of Jharkhand-Respondent No.2. On receipt of the representation, the said respondent shall consider the petitioner's representation in the light of the appropriate provisions applicable in the case of the petitioner and pass appropriate order in accordance with law within a period of six weeks from the date of receipt of the representation. If the petitioner is found entitled to get the benefit claimed by him, admitted monetary benefit shall be paid to the petitioner within a period of two months thereafter. In that event, the respondents shall also take steps for revision and fixation of pensionary benefits and send required papers to the Accountant General for issuance of consequential payment order.