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2012 DIGILAW 799 (PAT)

Binda Ram v. State of Bihar

2012-05-18

S.N.HUSSAIN

body2012
ORDER This writ petition has been filed by the petitioner for the following reliefs:- (i) For issuance of necessary direction to the respondent authorities to grant promotion to the petitioner on the post of Section Officer w.e.f 01.01.1990, i.e. when the one sanctioned post of Section Officer in the erstwhile North Bihar Industrial Area Development Authority, Muzaffarpur became vacant due to retirement of the incumbent, who was from general category and the petitioner, belonging to Scheduled Caste category became entitled to be promoted on the post, as the post was to be filled through promotion from Scheduled Caste employees and the petitioner was the only Scheduled Caste employee eligible to be considered for the post, but he was deprived from the benefit of promotion and the post was kept vacant. Even after formation of Bihar Industrial Area Development Authority (hereinafter referred to as BIADA only), four sanctioned posts of Section Officers are available but the petitioner is not being given any promotion to the post despite his eligibility for the same. (ii) For issuance of writ in the nature of mandamus commanding the respondents to grant the benefit of ACP to the petitioner as the petitioner is working on the same scale since 1990, as the BIADA has adopted the Resolution of the Finance Department contained in Memo No.660 dated 08.02.1999 w.e.f. 01.01.1996 vide Memo No.1667 dated 22.09.2006. In the said memo, it is specifically stated that all the benefits given by the Govt. in the revised scale would be applicable upon the Authority. The ACP Regulation, 2003 has been framed in view of decision taken vide Memo No.660 dated 08.02.1999, as such, the petitioner is entitled for the benefit of ACP in the pay scale of Rs.6500-10500/- w.e.f. 10.01.2002. (iii) For direction to the respondent authorities to grant consequential benefit of the promotion granted to the petitioner. (iv) For any other direction, which this Court may deem fit and proper in the facts and circumstances of the case. 2. Learned counsel for the petitioner stated that petitioner was appointed on the post of Clerk-cum-Typist on 01.06.1976 in North Bihar Industrial Area Development Authority, Muzaffarpur after due process of appointment under Scheduled Caste category, his pay scale being Rs.220/- - Rs.315/- and subsequently he was promoted to the post of Lower Division Assistant on 01.06.1977 in the pay scale of Rs.260/- - Rs. 408/-. 408/-. After completion of five years period as Lower Division Assistant, the petitioner was promoted as Junior Selection Grade Assistant on 01.07.1981. 3. Learned counsel for the petitioner averred that Personnel and Administrative Reforms Department, Govt. of Bihar, vide its letter No.1862/92-Ka 53 dated 03.04.1992 had prescribed the time period for promotion in various grades of Clerks up to Section Officers providing five years period for promotion to the post of Junior Selection Grade Assistant from the post of Assistant and it further provided three years time period for promotion to the post of Senior Selection Grade Assistant from Junior Selection Grade Assistant and thereafter two years time period was prescribed for promotion to the post of Section Officer from Senior Selection Grade Assistant. He further averred that according to the aforesaid principle, the petitioner had become entitled for promotion to the post of Senior Selection Grade Assistant on 01.07.1984 but since the Establishment Committee did not hold its meeting, the petitioner was given promotion on the post of Senior Selection Grade Assistant much later on 10.01.1990. 4. Learned counsel for the petitioner submitted that although the petitioner was promoted to the post of Senior Selection Grade Assistant on 10.01.1990, but he should have been given notional promotion with effect from 01.07.1984 as he was a Scheduled Caste candidate and had completed three years as Junior Selection Grade Assistant and two years thereafter, i.e. on 01.07.1986 he had also become entitled for promotion to the post of Section Officer as per the aforesaid letter of the Department. It was also claimed that erstwhile Section Officer had retired on 31.12.1989 and subsequently in the year 1997 the petitioner’s promotion to the post of Senior Selection Grade Assistant was made effective from 1984 and the financial benefit was granted to him since then. As such the post of Section Officer having become vacant on 01.01.1990 and since the petitioner was senior most Senior Selection Grade Assistant in the Scheduled Caste category, he was eligible to be promoted on that post immediately after retirement of the erstwhile Section Officer. 5. As such the post of Section Officer having become vacant on 01.01.1990 and since the petitioner was senior most Senior Selection Grade Assistant in the Scheduled Caste category, he was eligible to be promoted on that post immediately after retirement of the erstwhile Section Officer. 5. Learned counsel for the petitioner argued that the authorities having several sanctioned posts to be filled up by candidates of different categories, out of whom at least one was to be from Scheduled Caste and hence the petitioner had become entitled for promotion from the date of the vacancy occurred on the post of Section Officer. He also relied upon a decision of the Apex Court in case of Union of India and another vs. Hemraj Singh Chauhan and others reported in (2010) 4 SCC 290 in which the principle was settled that consideration for promotion is a fundamental right of an employee which should not be delayed. 6. On the other hand, learned counsel for the respondents submitted that petitioner is going to retire in January, 2013. He also stated that even according to the claim of the petitioner, the post of Section Officer had become vacant in 1990 and the petitioner had become entitled for that post even before 1990, but he approached this Court by filing this writ petition in 2012, although he should have approached this Court much earlier. It was also stated that petitioner was given promotion to the post of Senior Selection Grade Assistant with effect from 10.01.1990 and the petitioner accepted it and throughout remained mum raising no objection to the date from which his promotion was given effect to. Hence, learned counsel for the respondents argued that there was gross delay and laches on the part of the petitioner and there is no averment in the writ petition that any post of Section Officer remained vacant throughout, otherwise it was the duty of the petitioner to implead all such persons who had occupied the posts of Section Officers from 1990 onwards. 7. 7. So far the letter of BIADA dated 27.12.2011 (Annexure-7) relied upon by learned counsel for the petitioner is concerned, learned counsel for the respondents submitted that the said letter was a mere communication sent to another person unconnected with the petitioner and in any view of the matter, the petitioner has not challenged the decision of BIADA referred to in the aforesaid letter dated 27.12.2011 (Annexure-7). He also claimed that office order dated 22.09.2006 (Annexure-6) issued by BIADA had already been recalled by the said authority and from November, 2006 BIADA is paying salary on the basis of revised pay scale to its employees. Hence, learned counsel for the respondents submitted that petitioner’s claim is absolutely frivolous and misconceived and is fit to be rejected. 8. Considering the averments made by learned counsel for the parties and the materials on record it is quite apparent that according to the petitioner’s case after completion of five years of service from the date of his appointment as an Assistant, he was promoted to the post of Junior Selection Grade Assistant on 01.07.1981, but the subsequent promotion on the post of Senior Selection Grade Assistant was given to him on 10.01.1990 although according to him he should have been promoted to that post on 01.07.1984 itself. Thus, it appears that petitioner was aggrieved due to the delay of the said promotion for about six years, but he did not challenge the same either before any authority or before any Court of law. 9. So far the question of promotion to the post of Section Officer is concerned, it is the claim of the petitioner that in the year 1997 his promotion to the post of Senior Selection Grade Assistant was notionally made effective from 1984 by the authorities concerned, hence it was incumbent upon the petitioner to raise his claim for promotion to the post of Section Officer immediately thereafter, but he slept over the matter and did not raise any objection till the filing of this writ petition in the year 2012. However, the post of Section Officer would not have remained vacant for two decades since 1990, nor the petitioner had claimed in his writ petition that it remained vacant for such long period. However, the post of Section Officer would not have remained vacant for two decades since 1990, nor the petitioner had claimed in his writ petition that it remained vacant for such long period. Hence it was incumbent upon the petitioner to implead all the Section Officers who had been promoted/appointed on the posts of Section Officers from 1990 onwards as parties to this writ petition in which the petitioner had miserably failed. 10. In the said circumstances, there is gross delay and laches on the part of the petitioner and the settled principle of law is that courts are meant for vigilant persons and not for indolents who fail to approach this Court for enforcement of any right to which he may be legally entitled. Hence, the case law relied upon by learned counsel for the petitioner in case of Union of India and another (supra) is not applicable in such cases. Furthermore, the employees of BIADA are being given revised pay scale since 2006 and the office order of BIADA dated 22.09.2006 has already been recalled. 11. In the said circumstances, this Court does not find any merit in this writ petition which is accordingly dismissed.