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2011 DIGILAW 637 (JHR)

Shridhar Mishra v. State of Jharkhand

2011-07-11

RAKESH RANJAN PRASAD

body2011
ORDER R.R. Prasad, J. 1. Heard learned counsel appearing for the petitioner and learned counsel appearing for the State. 2. Learned counsel appearing for the petitioner submits that the petitioner while posted as Executive Engineer, Sone Command Area Development Agency, was awarded with three punishments (I) censure (ii) withholding of three increments and (iii) restriction on promotion for seven years. Since these punishments had been passed without giving show cause or even memo of charge that order was challenged before the Patna High Court, in C.W.J.C. No. 5751 of 2001 and the Patna High Court, vide its order dated 30.1.2003 quashed the order of punishment giving liberty to the department to proceed afresh. Thereafter when the matter of promotion was not taken up by the Department, the petitioner again filed a writ application before the Patna High Court which was disposed of directing the authority to consider the case of the petitioner relating to promotion on the higher post but in stead of complying the order of the Patna High Court, the State of Bihar passed an order in terms of Rule 43(b) of the Bihar Pension Rule for initiation of a proceeding perhaps keeping in mind the order passed by the Patna High Court earlier. That order was again challenged before the Patna High Court in C.W.J.C. No. 3627 of 2003. While the matter was pending, the State of Bihar withdrew the order under which proceeding in terms of Rule 43(b) had been ordered to be initiated. 3. Thereafter the petitioner made representation before the Secretary. Water Resources Department, Government of Jharkhand, respondent No. 2 for giving regular promotion with effect from the date on which junior to the petitioner was promoted to the higher post or to grant him benefit of A.C.P but when no decision was taken in this respect, the petitioner filed a writ application bearing W.P.(S) No. 1966 of 2010 which was disposed of vide order dated 15.7.2010 directing the petitioner to file a fresh representation in this regard before the Secretary, Water Resources Department, Government of Jharkhand, respondent No. 2 so that decision be taken by respondent No. 2 within the time stipulated therein. 4. 4. On such representation being filed, an order has been passed as contained in memo No. 4081 dated 1.10.2010 (Annexure 9) wherein it has been stated that since the departmental proceeding is pending against him, the question of giving promotion to the petitioner never does arise and consequently, he is not entitled to have benefit of A.C.P. At the same time it was recorded that whenever report of the departmental proceeding would be submitted, decision in respect of grant of A.C.P would be taken. 5. Learned counsel submits that subsequently an order was passed on 23.11.2010 by the Joint Secretary, Water Sources Department, as contained in Annexure 10 whereby the petitioner has been called upon to file second show cause on the enquiry report but no such enquiry report can be said to be in-existence. One enquiry report of a departmental proceeding initiated in the year 2003 had been quashed by the Patna High Court in C.W.J.C. No. 5751 of 2001. Subsequently, when a fresh proceeding was initiated by the State of Bihar, that order on being challenged by the petitioner before the Patna High Court was also withdrawn by the State of Bihar. Thereafter, no fresh proceeding has been initiated by the State of Jharkhand in terms of Rule 43 (b) of the Bihar Pension Rules, still reference is being made not only in Annexure 0 but also in Anneicure 10, of an enquiry report on the basis of which benefit of A.C.P is being denied and at the same time, second show cause is being asked to be submitted and hence, both the orders seem to have been passed by the authority without applying his mind as no enquiry report is in-existence and hence, the orders as contained in Annexure 9 as well as in Annexure 10 are fit to be set aside. 6. A counter-affidavit has been filed on behalf of the State. From its perusal, it does appear that it refers to enquiry report either of the proceeding which had been quashed by the Patna High Court or of the proceeding which had been initiated by the State of Bihar but later on it had been withdrawn. 7. 6. A counter-affidavit has been filed on behalf of the State. From its perusal, it does appear that it refers to enquiry report either of the proceeding which had been quashed by the Patna High Court or of the proceeding which had been initiated by the State of Bihar but later on it had been withdrawn. 7. No statement is there in the counter-affidavit that the State of Jharkhand has ever initiated any proceeding in terms of Rule 43(b) of the Bihar Pension Rules after the proceeding initiated by the State of Bihar in terms of Rule 43(b) was withdrawn. 8. In view of the facts and circumstances, it is quite evident that till date no proceeding has been initiated by the State: of Jharkhand in terms of Rule 43(b) of the Bihar Pension Rule, though the petitioner got retired in the year 2002 whereas earlier when a proceeding had been initiated it had been quashed by the Patna High Court. Subsequently, order by which departmental proceeding was initiated had been withdrawn. 9. Under the circumstances, the orders as contained in Annexure 9 and also Annexure 10 are quashed. 10. In the circumstances, the Secretary, Water Resources Department. Government of Jharkhand, respondent No. 2 is hereby directed to take decision in the matter of payment of A.C.P/promotion to the petitioner within a period of two months from the date of receipt/production of a copy of this order. 11. Accordingly, this application is allowed. Application allowed.