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2013 DIGILAW 1230 (JHR)

Dhani Ram Bari v. State of Jharkhand

2013-11-13

SHREE CHANDRASHEKHAR

body2013
Judgment : The petitioners have made the following prayers in the present writ petition:- “(i) For issuance of writ(s)/order(s)/direction(s) for quashing the orders as contained in memo no. 10695 dated 15.09.2012 which is not in conformity of government Resolution no. 398 dated 16.01.2012 with respect to minimum qualifying service for promotion to higher posts and declare the petitioners as having completed the required minimum qualifying service for promotion to the post of Deputy Secretary, Grade Pay Rs.7600/- from their present post of Under Secretary having Grade Pay of Rs.6600/- as they have completed more than seven years in that Grade Pay i.e. Rs.6600/-. And/Or (ii) For issuance of writ(s)/order(s)/direction(s) specially in the nature of mandamus commanding upon the respondents to immediately consider the rightful claim of promotion of the petitioners to the post of Deputy Secretary as they are other wise qualified for promotion consequent upon quashing of the said order issued vide memo no. 10695 dated 15.09.2012 in the light of true spirit of law as contained in the said Resolution no. 398 dated 16.01.2012. And/Or (iii) For any other relief or reliefs for which the petitioners are legally entitled in the light of facts and circumstances of the case.” 2. The brief facts of the case are that, the petitioners were initially appointed as Assistants between the period 1974 and 1980. After the implementation of the 6th Pay Revision Report, the petitioners, who were serving as Section Officers, were granted Pay Scale of Rs.15,60039,100/- which is associated with Grade Pay of Rs.6600/-. The petitioners were granted promotion on Grade-I post, i.e., on the post of Under Secretary by orders dated 29.07.2011 and 04.04.2012, also having the 'Grade Pay' of Rs.6600/-. Since, the petitioners were not granted promotion in the rank of Deputy Secretary, they moved this Court in W.P. (S) No. 3243 of 2012, which was disposed of by order dated 30.07.2012, directing the Principal Secretary, Department of Personnel, Administrative Reforms and Rajbhasha to consider the case of the petitioners for promotion from the post of Under Secretary to the post of Deputy Secretary. The claim of the petitioners has been rejected by order dated 15.09.2012. 3. A counter-affidavit has been filed raising a plea that since the petitioners do not fulfill the required minimum qualifying period of service for promotion in the rank of Deputy Secretary, their claim has rightly been rejected by order dated 15.09.2012. The claim of the petitioners has been rejected by order dated 15.09.2012. 3. A counter-affidavit has been filed raising a plea that since the petitioners do not fulfill the required minimum qualifying period of service for promotion in the rank of Deputy Secretary, their claim has rightly been rejected by order dated 15.09.2012. Paragraph No.12 of the counter-affidavit filed on behalf of Respondent nos.2 is extracted below:- “12. That in reply to statement made in para 15 to 17, 19 & 20 of the writ application under reply, it is stated and submitted that the averments of the petitioners are not sustainable. No petitioners fulfill the required minimum qualifying period of service for the promotion to the rank of Deputy Secretary. In this context, it is further to submit that a minimum time period for the promotion from a lower post to upper post has been determined by the State Government and the same is applicable in all the civil services and cadres as notified vide Resolution No. 398 dated 16.01.2012 (enclose as Annexure 3 A' of the writ petition). The petitioners are working as Under Secretaries which pay scale is PBIII, Rs.15,600-39,100/-, Grade Pay Rs.6600/-. As per rule 6(2) of the Jharkhand Secretariat Service Rules, 2010 the petitioners may get promotion in the grade of Deputy Secretary while pay scale in PBIII, Rs.15,600-39,100/- Grade Pay Rs.7600/-. As per the provisions of Resolution No. 398 dated 16.01.2012 (Para 3(ii) Sl. No.18) 5 years of minimum time period is required to the completed by the petitioners for consideration of promotion to the Deputy Secretary Grade, i.e. from Grade Pay of Rs.6600/- to Rs.7600/-. In Para-4 of the said Resolution, it has been decided that where the fixed minimum time period is not completed on a particular post and the required period has been completed by a candidate on just lower post and half of period determined as minimum period of promotion has been completed on particular post by a candidate, the promotion may be granted in that case within the cadre, when the vacancy is available. The averment of the petitioners is not correct since the petitioners have not completed two and half years on the post of Under Secretary as per Clause 4 of the Resolution no. 398 dated 16.01.2012. The averment of the petitioners is not correct since the petitioners have not completed two and half years on the post of Under Secretary as per Clause 4 of the Resolution no. 398 dated 16.01.2012. It is pertinent to mention here that certain amendments have been made in para4 of the Resolution No. 398 dated 16.01.2012 vide Resolution No. 5606 dated 25.06.2013 issued by Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand (Copy enclosed as Annexure-7 of the IA petition). It has clearly been mentioned in the amended resolution that Grade Pay obtained through Assured Career Progression/Modified Assured Career Progression cannot be taken on account for promotion from lower post to higher post.” 4. Heard counsel for both the parties and perused the documents on record. 5. Mr. A.K. Sinha, the learned Senior counsel appearing for the petitioners has submitted that, the Resolution dated 16.01.2012 of the Government of Jharkhand provides promotion on the basis of 'Grade Pay' and the said Resolution was intended at doing away with the requirement of having requisite experience in the lower Grade post. He has further submitted that since the petitioners are seeking promotion from the post of Under Secretary to the post of Deputy Secretary, for which they are required to complete five years of service in 'Grade Pay' of Rs.6600/-, the period of five years should be counted from the date, when the petitioners were first granted 'Grade Pay' of Rs.6600/- and the petitioners are not required to complete five years in Grade-I post having the 'Grade Pay' of Rs.6600/- before claiming promotion in the rank of Deputy Secretary. The learned Senior counsel has further submitted that even by Resolution dated 25.06.2013, the criteria for promotion based on 'Grade Pay' has not been changed and only the paragraph no.4 of Resolution dated 16.01.2012 has been clarified. 6. Per Contra, Mr. Ajit Kumar, the learned Additional Advocate General has submitted that a conjoint reading of Rules 3, 6 and 13 of the Jharkhand Secretariat Service Rules, 2010, would indicate that the petitioners are required to render not less than five years of approved service in Grade-I before claiming promotion in the Selection Grade, i.e., on the post of Deputy Secretary. Ajit Kumar, the learned Additional Advocate General has submitted that a conjoint reading of Rules 3, 6 and 13 of the Jharkhand Secretariat Service Rules, 2010, would indicate that the petitioners are required to render not less than five years of approved service in Grade-I before claiming promotion in the Selection Grade, i.e., on the post of Deputy Secretary. He has further submitted that the Jharkhand Secretariat Service Rules, 2010 is a statutory Rule whereas, the Resolution dated 16.01.2012 is an executive instruction and therefore, the Resolution dated 16.01.2012 cannot supersede the express provisions contained in the Rules. He has further submitted that the petitioners were granted 'Grade Pay' of Rs.6600/- consequent upon grant of second Assured Career Progression therefore, in view of the Resolution dated 25.06.2013, the 'Grade Pay' of Rs.6600/- granted to the petitioners while working on the post of Section Officer, cannot be counted for considering the claim of the petitioners for promotion to the post of Deputy Secretary. 7. I find that in the writ petition, the petitioners have averred as under: “6. That it is stated and submitted that the petitioners while serving as Section Officer, their pay was fixed in the pay scale of Rs.15,600-39,100/- associated with grade pay of Rs.6600/- from the date of implementation of 6th pay revision report i.e. with effect from 01.01.2006 as all of them were granted 2nd Assured Career Progression from an earlier date. 11. That it is stated and submitted that the factor of minimum qualifying service has been modified in general vide Resolution no. 398 dated 16.01.2012 in which provisions have been made to compute the minimum qualifying service on the basis of services rendered in particular grade pay replacing the existing system of computation of minimum qualifying service on the basis of services rendered on a particular post. 13. That it is stated that in the rank of Selection Grade i.e. Deputy Secretary of Secretariat Service, out of total 33 posts about 26 vacancies are available for which officers inclusive of the petitioners are available and are otherwise qualified for promotion.” 8. In the counter-affidavit filed on behalf of Respondent no.2, the Respondents have replied as under: “9. That in reply to statement made in paras-5 to 12 of the writ application under reply, it is stated and submitted that it is matter of record and requires no comment from the answering Respondent. 10. In the counter-affidavit filed on behalf of Respondent no.2, the Respondents have replied as under: “9. That in reply to statement made in paras-5 to 12 of the writ application under reply, it is stated and submitted that it is matter of record and requires no comment from the answering Respondent. 10. That in reply to statement made in para-13 of the writ application under reply, it is stated and submitted that out of 33 posts of Deputy Secretary 27 posts are vacant.” 9. I find that under Rule 18 of the Jharkhand Secretariat Service Rules, 2010, the Government has power to relax any of the provisions contained in the Rules. I further find that the Rules of 2010 have been framed in exercise of powers contained in proviso to Article 309 of the Constitution of India and these Rules have been framed by the order of the Governor of the State of Jharkhand. The Resolutions dated 16.01.2012 and 25.06.2013 have also been issued by the orders of the Governor of the State of Jharkhand and therefore, I am of the opinion that the provisions contained in the Resolution dated 16.01.2012 would only supplement the provisions contained in the Jharkhand Secretariat Service Rules, 2010 and therefore, are binding on the respondents. Moreover, in so far as, the plea taken by the respondents that the Resolution dated 16.01.2012 would not supersede the express provisions under the Jharkhand Secretariat Service Rules, 2010 is concerned, I am of the view that such a plea is not available to the respondents, in as much as, the Resolution dated 16.01.2012 has been issued by the respondents themselves. 10. Now, adverting to the contention raised by the learned Additional Advocate General that, the petitioners are required to render five years of minimum service in Grade-I post, i.e., on the post of Under Secretary, I find that if such an interpretation is given to the provisions contained in Resolution dated 16.01.2012, it would render the Resolution dated 16.01.2012 meaningless. From the Chart given at Clause 3(ii) of the Resolution date 16.01.2012, I find that at Sl. No.16, the minimum period of five years is prescribed for promotion from 'Grade Pay' of Rs.6600/- to Rs.7600/-. The claim of the petitioners that they were granted 'Grade Pay' of Rs.6600/- after the implementation of 6th Pay Revision Report, has not been denied by the respondents. No.16, the minimum period of five years is prescribed for promotion from 'Grade Pay' of Rs.6600/- to Rs.7600/-. The claim of the petitioners that they were granted 'Grade Pay' of Rs.6600/- after the implementation of 6th Pay Revision Report, has not been denied by the respondents. I further find that in paragraph no.3 of the Resolution dated 16.01.2012, there is no mention of any requirement as to the 'post' held by an employee whereas, the opening paragraph of the said Resolution makes an abundantly clear that the criteria for granting promotion from a lower post to a higher post was being modified in view of the Memo dated 24.03.2009 of the Department, Ministry of Personnel, Public Grievance and Pension, Government of India. I am also of the view that the provision for granting relaxation, as contained in paragraph no.4 of the Resolution dated 16.01.2012, is applicable only in a case where an employee has not rendered minimum period of service in a particular 'Grade Pay' while working on a particular post and thereafter, in such a situation period spent in the same 'Grade Pay' though on lower post would also be counted, for granting exemption. 11. In the present case, the petitioners have completed five years in 'Grade Pay' of Rs.6600/- prior to 15.09.2012 and thereafter, the petitioners would be entitled for grant of next higher Grade Pay, i.e., Grade Pay of Rs.7600/- on completion of five years while working in 'Grade Pay' of Rs.6600/-. The plea taken in the impugned order dated 15.09.2012 that, since the petitioners have not completed minimum two and a half years of service on the post of Under Secretary they cannot grant promotion on the post of Deputy Secretary, is not tenable. I further find that in paragraph no. 10 of the counter-affidavit, the respondents have admitted that out of 33 posts, 27 posts of Deputy Secretary are still vacant. The Resolution dated 16.01.2012 has been issued in the light of Memo dated 24.03.2009 which was intended at harmonizing the criteria for promotion throughout the country and in pursuance thereof Resolution dated 16.01.2012 was issued fixing the period for promotion based on 'Grade Pay'. 12. The Resolution dated 16.01.2012 has been issued in the light of Memo dated 24.03.2009 which was intended at harmonizing the criteria for promotion throughout the country and in pursuance thereof Resolution dated 16.01.2012 was issued fixing the period for promotion based on 'Grade Pay'. 12. In view of the aforesaid, the impugned order dated 15.09.2012 is hereby quashed and the writ petition is allowed to the extent that the petitioners would be qualified for grant of promotion in the 'Grade Pay' of Rs.7600/- from their respective dates, subject to other conditions, if any.