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2013 DIGILAW 983 (PAT)

Ram Lal Prasad v. State of Bihar

2013-08-12

RAVI RANJAN

body2013
ORDER I have heard learned counsel for the petitioner and the State. 2. Petitioner seeks quashing of the letter no.1237 dated 11.10.2011, as contained in Annexure 14, issued by the Additional Secretary Registration, Excise and Prohibition Department, Bihar, Patna (respondent no.3) by which the claim of the petitioner for granting exemption from passing the departmental examination in view of the provision contained in letter no.11691 dated 09.11.1983 and letter no.4674 dated 15.05.1992 issued by the Personnel and Administrative Reforms Department, Bihar, Patna and also as per letter no.4368 dated 28.8.2009, has been refused on the ground that the petitioner had appeared only once in the examination and as such it cannot be treated as continuous effort made by him for passing departmental examination as well as on the further ground that, in the year 2004, a punishment of “warning” has been recorded against him. 3. Learned counsel for the petitioner submits that the petitioner fulfils all the criteria and conditions laid down in the letter no.11691 dated 9.11.1983 (Annexure 9) as well as letter no.4674 dated 15.05.1992 (Annexure 9/1) and letter no.3/M-06/2009 Ka. 4368 dated 28.8.2009 (Annexure 18). He has already competed 50 years and, thus, had applied for grant of exemption from appearing at the examination. 4. Short facts which would be necessary for consideration of lis are enumerated as under: 5. Petitioner was appointed as Excise Constable on 12.5.1977 and his service was confirmed on 19.12.1996. Thereafter, it is claimed by the petitioner that he was performing his duty to the utmost satisfaction to his superior. However, when his own son died suddenly, on hearing the sad news, he immediately went to his home without waiting for grant of leave, that had resulted in entry of “warning” in his service book on 2.07.2004. This is the only adverse remarks that stands entered in his service book. The case of the petitioner is that no punishment has ever been awarded to him either before or after the aforesaid “warning” and he possesses a clean record. After the aforesaid “warning” having been entered in his service book, the petitioner was granted promotion on the post of Assistant Sub-Inspector of Excise with effect from 27.10.2004 vide Annexure 1. The petitioner appeared in the departmental examination conducted from 30.08.2008 to 01.09.2008. He had cleared two papers out of five and, thereafter, no departmental examination has been conducted by the department. The petitioner appeared in the departmental examination conducted from 30.08.2008 to 01.09.2008. He had cleared two papers out of five and, thereafter, no departmental examination has been conducted by the department. The petitioner filed his representation on 11.01.2010 (Annexure 5) with a request to grant promotion after granting exemption from appearance at the departmental examination as it was noticed by him from the seniority list vide letter dated 11.04.2002 contained in Annexure 2 that one Md. Shafique whose name has figuring at serial no.35 has been promoted to the post of Sub-Inspector, Excise but the petitioner whose name appears at serial no.34 has not been considered for promotion. 6. The petitioner had earlier approached this Court by filing C.W.J.C. No.603 of 2011 which was disposed of on 23.06.2011 with a direction to the Commissioner of Excise, Bihar, Patna to take a decision on the question of exemption. It was further directed that if the exemption is granted and the petitioner fulfils other requirements for promotion, a decision should be taken under the aforesaid order. The petitioner had raised grievance in that writ petition also that other similarly situated as well as junior persons have been granted exemption and thereafter promotion. However, his request has been turned done by the impugned decision vide Annexure 14 contained in letter no.1237 dated 11.10.2011 on the grounds which have been mentioned above. 7. Learned counsel for the petitioner has drawn attention of this Court towards Annexure 6 by which three persons, namely, Parmanand Rai, Md. Safique and Md. Zahir have been granted exemption from appearance in the examination as well as Annexure 7 which is order dated 30.06.2010 by which Baijnath Singh, Syed Ali and Md. Shafique have been posted as Sub-Inspector, Excise after granting promotion. The petitioner has also appended the result declared by the department with respect to P.T.C. Departmental Examination, 2008 as Annexure 4 in which the petitioner and others had appeared. It is contended that Md. Ahteshamuddin, whose name figured at serial no.2 as well as Baijnath Singh, whose name figured at serial no.12 did not even appear in the concerned examination, however, they have been granted exemption. It appears from Annexure 7 that Baijnath Singh has been promoted as Sub-Inspector. Learned counsel further points out that one Md. Saiyed Ali and Md. Shafique have also cleared only three papers out of five. It appears from Annexure 7 that Baijnath Singh has been promoted as Sub-Inspector. Learned counsel further points out that one Md. Saiyed Ali and Md. Shafique have also cleared only three papers out of five. However, they have been given promotion vide Annexures 6 and 7 after grant of exemption. In view of the aforesaid contention raised on behalf of the petitioner on the basis of resolution, this Court vide order dated 17.01.2013 had directed the State to file counter affidavit clearly stating as to whether the petitioner could have appeared in the departmental examination only after becoming Assistant Sub-Inspector of Excise or even earlier in capacity of the Constable (Excise). That apart, respondents were also directed to explain as to whether the “warning” recorded in the service book of the petitioner could be taken as a punishment under Service Rules. 8. Counter affidavit has been filed on behalf of the State. However, it has not been stated as to whether there was any requirement of passing departmental examination by a Constable also. Admittedly, the petitioner was promoted on the post of Assistant Sub-Inspector with effect from 27.10.2004 vide Annexure 1. Thereafter, admittedly, only one departmental examination has been conducted by the department, i.e., from 30.08.2008 to 01.09.2008 and the petitioner has cleared two papers out of five. The counter affidavit nowhere states that the petitioner was required to appear at the departmental examination also at the time when he was serving as Constable or any other departmental examination has been conducted after his promotion as Assistant Sub-Inspector and the petitioner did not appear in the said examination. There is no answer also to the issue raised by the petitioner that some of the similarly situated persons or some persons, who have not even appeared in the examination, have been exempted and granted promotion on what grounds. It has been only stated that grant of exemption is not a right of the employee but it is at the option or will of the employer. The aforesaid stand taken by the State is noted only to be rejected. Even it is assumed that it is option or desire of the employer, the discretion would also have to be exercised in a reasonable manner. The stand of the employer should not reflect any discrimination. The aforesaid stand taken by the State is noted only to be rejected. Even it is assumed that it is option or desire of the employer, the discretion would also have to be exercised in a reasonable manner. The stand of the employer should not reflect any discrimination. The respondents have not denied that similarly situated persons or even the persons who did not care to appear in the examination have been granted exemption. In such situation it has not been stated as to under what circumstances the petitioner’s case could not find favour with them. That apart, if the petitioner was required to pass the departmental examination only after his promotion as Assistant Sub-Inspector and admitted position is that only once the examination has been held in the year 2008, there was no occasion for the petitioner to make continuous effort for clearing the departmental examination. 9. So far the “warning” recorded in the service book of the petitioner is concerned, learned counsel for the State was not in a positing to show from the relevant Rules that “warning” is a mode of punishment to be awarded in a departmental proceeding. The Rules only speak about ‘censure’. However, a resolution of the Personnel and Administrative Reforms Department, Bihar, Patna dated 17.05.1982, as contained to Annexure A to the counter affidavit, has been brought on record to show that “warning is also a mode of punishment. The relevant passages from the aforesaid Resolution are reproduced as under:– “2. vxj fdlh inkfèkdkjh@deZpkjh dks fuUnu dh ltk ds fy;s fofgr izfØ;k dk vuqikyu djrs gq, (;kuh inkfèkdkjh dks viuh liQkbZ nsus dk volj nsdj muds Li"Vhdj.k dks è;ku esa j[krs gq,) ^psrkouh* dh ltk nh tkrh gS vkSj ftldh izfof"V mudh pfj=kiqfLr esa dh tkrh gS mldk dqizHkko inkfèkdkjh dh lEiqf"V] n{krk vojksèk ikj djus rFkk izksUufr esa vxys ,d o"kZ rd iM+sxkA 3- ;fn fdlh inkfèkdkjh@deZpkjh dh pfj=kiqfLr esa rhu ^fuUnu* ;k ikap ^psrkouh* dh izfof"V gqbZ gks rks dqizHkko dh vofèk dks mi;qZDr funs'k ds vuqlkj ugha vkad dj mUgsa ,slk le>k tk; fd os izksUufr gsrq lEizfr vgZrk gh ugha j[krs gSaA** 10. It clearly appears from the aforesaid Resolution that for the purposes of promotion etc. the entry of “warning” would be effective only for one year from the date of such entry. It clearly appears from the aforesaid Resolution that for the purposes of promotion etc. the entry of “warning” would be effective only for one year from the date of such entry. The issue of promotion having been arisen in the year 2009-2010 whereas admittedly the “warning” has been recorded in the service book of the petitioner in the year 2004, in my considered opinion, there would be no question for making it a point for refusal of exemption from the appearance in the departmental examination as well as the grant of promotion as such period has already expired in the year 2005 itself and it is not a case of respondents that warning has been recorded 5 times. That apart, it is very interesting to note that though such “warning” was recorded on 22.07.2004 the petitioner had been granted promotion on the post or Assistant Sub-Inspector, Excise subsequently with effect from 27.10.2004 vide Annexure 1. If such “warning” was not coming in way of the immediate promotion which was given to the petitioner, a question would arise as to how it can affect subsequent promotion or the matter of exemption from appearing at the examination. 11. Accordingly, it is held that the “warning” recorded in the service book of the petitioner had lost its effect after expiry of one year and, thus, that cannot be made a ground either for refusal for exemption from appearing in the examination or in way of grant of promotion. So far the first ground taken in the impugned letter (Annexure 14) is concerned, since the State has not come up with a case that the petitioner was required to pass such departmental examination at the time when he was serving as Constable also and admittedly, after his promotion given as Assistant Sub-Inspector such departmental examination could be conducted by the department only once in the year 2008, it cannot be presumed that the petitioner did not try to clear the departmental examination continuously. 12. As a result, this writ petition succeeds. The impugned decision dated 11.10.2011, as contained in Annexure 14, is quashed and set aside. Let a fresh decision be taken by the respondents in view of the observations and findings recorded in this case considering the exemption and promotion granted to similarly situated persons as stated in the writ petition itself and, thereafter, pass speaking order regarding grant of exemption. Let a fresh decision be taken by the respondents in view of the observations and findings recorded in this case considering the exemption and promotion granted to similarly situated persons as stated in the writ petition itself and, thereafter, pass speaking order regarding grant of exemption. If the petitioner is granted exemption then he would be also entitled for promotion if any junior or similarly situated person has been granted such promotion at the post of Sub-Inspector, Excise as claimed by the petitioner. Let such decision be taken within four weeks from the date of receipt/production of a copy of this order by the petitioner.