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2012 DIGILAW 1712 (PAT)

Nirmal Kumar v. State of Bihar

2012-12-19

NAVANITI PRASAD SINGH

body2012
ORDER The petitioner has filed this writ petition for a direction to the respondent-State to grant him promotion as an Assistant Engineer from the time his juniors were promoted. His second prayer is that the period when he officiated as Assistant Engineer should be taken in to account for the purposes of reckoning his seniority. 2. There is counter affidavit and rejoinder thereto. Heard learned counsel for the petitioner and the State and with their consent, this writ petition is being disposed of at this stage itself. 3. It is not in dispute that petitioner after due selection was appointed as a Junior Engineer (Civil) in the Public Health and Engineering Department, Government of Bihar on 28.04.1983 under the reserved quota for Scheduled Caste. On the same day and in the same process, one Sri Tapeshwar Choudhary was also appointed on the Scheduled Caste quota. The gradation list of the Junior Engineers is Annexure-2. From Annexure-2, it would be evident that Tapeshwar Choudhary was petitioner’s immediate junior. On 17.08.1989, twelve persons, who were immediate seniors to the petitioner, were made In-charge Assistant Engineers. It remains unrebutted that one of them at that time was not even in service. Petitioner asserts this because if the person, who was not in service, is excluded then 12th person to be selected for being made In-charge Assistant Engineer would be the petitioner and, thus, he would have been In-charge Assistant Engineer from 17.08.1989. However, as petitioner had not made any grievance in this regard at the earliest, this Court would not consider those events to be of any consequence. 4. Next, petitioner points out that he was made In-charge Assistant Engineer on 11.05.1993, but the notification states that he would be in his own pay-scale as a Junior Engineer. There is no denial that there was vacancy. There is no denial that petitioner was duly qualified for being appointed as Assistant Engineer when he was so made In-charge Assistant Engineer. On 01.02.2001, Tapeshwar Choudhary, who was also working as an In-charge Assistant Engineer, was confirmed as Assistant Engineer. As noted above, Tapeshwar Choudhary was petitioner’s immediate junior. While Tapeshwar Choudhary was confirmed as Assistant Engineer, petitioner continued to be In-charge Assistant Engineer and, it is only subsequently, on 24.04.2007, petitioner was confirmed as Assistant Engineer. 5. On 01.02.2001, Tapeshwar Choudhary, who was also working as an In-charge Assistant Engineer, was confirmed as Assistant Engineer. As noted above, Tapeshwar Choudhary was petitioner’s immediate junior. While Tapeshwar Choudhary was confirmed as Assistant Engineer, petitioner continued to be In-charge Assistant Engineer and, it is only subsequently, on 24.04.2007, petitioner was confirmed as Assistant Engineer. 5. Thus, on the facts aforesaid, the two grievances of the petitioner are that firstly he should have been confirmed as Assistant Engineer from the date when his junior Tapeshwar Choudhary was confirmed as Assistant Engineer. His second grievance is that his seniority should be reckoned taking into account the period of continuous officiation as Assistant Engineer from 11.05.1993 up to the time when he was appointed permanently as Assistant Engineer. 6. Learned counsel for the State states that so far as substantive promotion is concerned, when the matter of promotion was being considered in the year 2001 by D.P.C., there was some enquiry pending against the petitioner. His case for promotion was not thus considered whereas his junior Tapeshwar Choudhary was cleared and promoted. 7. Learned counsel for the petitioner asserts the position which is not rebutted by the State. In fact, there was no departmental proceeding pending. Some minor enquiry was pending which was also terminated in the year 2003. Learned counsel for the petitioner, thus, submits that thus on the plea of pending enquiry petitioner was unjustly excluded from consideration. 8. In my view, the law is well settled in this regards. Every person in Government employment has a right to be considered for promotion at the relevant time. He can be denied promotion only where the D.P.C. considers him unfit for promotion. He cannot be denied the consideration for promotion on the specious plea of some enquiry pending. In service jurisprudence, it is well established that even if there be a departmental proceeding pending then authority have resorts to what is known as sealed cover procedure but consideration for promotion cannot be denied. Thus, it is apparent that petitioner was wrongly denied consideration for promotion. In fact, there being no inhibition in granting promotion at that relevant time except pending enquiry, which, as noted above, is of no consequence. Thus, it is apparent that petitioner was wrongly denied consideration for promotion. In fact, there being no inhibition in granting promotion at that relevant time except pending enquiry, which, as noted above, is of no consequence. It is held that petitioner was liable to be considered and his junior having been granted promotion with effect from 01.02.2001, petitioner would be entitled to get his promotion accordingly as well unless there is some other inhibition factor. 9. Coming to the second part of reckoning seniority on basis of continuous officiation. Again in service jurisprudence, this concept is well established. The Constitution Bench of the Apex Court in the case of the Direct Recruit Class-II Engineering Officers’ Association & Ors. Vs. State of Maharashtra & Ors. since reported in AIR 1990 Supreme Court 1607 has in categorical terms laid down that where a person is duly qualified and is made to officiate for a long time, not as a short time as stop gap arrangement on a higher post, such period of continuous officiation will have to be taken into account for the purposes of reckoning his seniority. State cannot deprive a person of his seniority by notifying him to work on a higher post in the substantive capacity of a lower post. Thus, when the petitioner was made In-charge Assistant Engineer with effect from 11.05.1993, from that period onwards, he would be deemed to be officiating as such and from that period, he would be deemed to be an Assistant Engineer for the purposes of reckoning his seniority for onwards promotion, if any, if he is otherwise qualified. Thus, in my view, the writ petition must succeed. 10. Let a Writ of Mandamus be issued to the respondent-State shifting the date of substantive promotion as an Assistant Engineer to that of 01.02.2001 when his immediate junior was granted promotion and to that extent Annexure-8 is modified. A Mandamus be further issued to take the period from 11.05.1993 onwards as officiating period as Assistant Engineer for the purposes of reckoning seniority. Accordingly, the writ petition is allowed.