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2014 DIGILAW 482 (JHR)

State of Jharkhand v. Dinesh Prasad

2014-04-07

R.BANUMATHI, SHREE CHANDRASHEKHAR

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Order This Letters Patent Appeal is preferred against the order dated 06.09.2012 passed in W.P.(S) No. 477 of 2010, in and by which, the writ petition filed by the 1st respondent was allowed and the orders dated 17.11.2009 and 31.12.2009 cancelling the promotion of the 1st respondent, was quashed by the learned Single Judge. 2. Brief facts:- The 1st respondent-writ petitioner was working as Class IV employee in the office of Superintending Engineer, Road Construction Department and was granted promotion on Class III post as Accounts Clerk on the recommendation of the Circle Establishment Committee on 05.10.2007. Stating that the guideline in Government Circular Resolution No. 2215 dated 11.02.1985 was not followed while granting promotion, the Deputy Secretary, Road Construction Department issued show cause notice to the 1st respondent on 17.11.2009 and the same officer-Deputy Secretary, Road Construction Department by letter dated 17.11.2009 directed the Superintending Engineer to cancel the promotion of the 1st respondent. Pursuant to same, vide letter dated 31.12.2009, the Superintending Engineer cancelled the promotion of 1st respondent. Being aggrieved by show cause notice dated 17.11.2009 and order of cancellation of promotion dated 31.12.2009, the 1st respondent-writ petitioner preferred writ petition, being W.P. (S) No. 477 of 2010. Vide order dated 06.09.2012, the learned Single Judge allowed the writ petition and quashed the letter dated 17.11.2009, whereby respondent no. 2 had issued show cause notice to the 1st respondent-writ petitioner and order dated 31.12.2009, whereby the promotion given to the 1st respondent-writ petitioner, on the ground that there is violation of principles of natural justice was cancelled. The learned Single Judge further directed that any amount already recovered shall be refunded to the 1st respondent-writ petitioner within 30 days from the date of passing of the order and if the refund is not made within 30 days, the 1st respondent-writ petitioner was directed to be paid interest @ 10 % per annum till the actual payment is made to the 1st respondent-writ petitioner. 3. Being aggrieved by the order passed by the learned Single Judge allowing the writ petition and quashing the order of show cause notice dated 17.11.2009 and order of cancellation of promotion of the 1st respondent-writ petitioner dated 31.12.2009, the appellant-State has preferred this Letters Patent Appeal. 4. We have heard Mr. Rajesh Shankar, learned Government Advocate appearing for the State of Jharkhand and Mr. Deepak Kumar Dubey appearing for the 1st respondent. 5. 4. We have heard Mr. Rajesh Shankar, learned Government Advocate appearing for the State of Jharkhand and Mr. Deepak Kumar Dubey appearing for the 1st respondent. 5. Learned counsel appearing for the appellant-State of Jharkhand submitted that any promotion to be given has to be as per Circular no. 2215 dated 11.02.1985 and Circular dated 16.09.1992 but the learned Single Judge did not keep in view that the promotion of 1st respondent-writ petitioner was in violation of the guidelines issued in those circulars. Learned counsel further submitted that full opportunity of hearing was afforded to the 1st respondent-writ petitioner by the Superintending Engineer, Road Construction Department, Hazaribagh before passing order dated 31.12.2009. It was further submitted that in any event, even if the learned Single Judge was of the view that there was violation of principles of natural justice, learned Single Judge ought to have remitted the matter back to the concerned authorities for affording sufficient opportunity and passing a fresh order and prays for setting aside the orders passed by the learned Single Judge. 6. Learned counsel for the 1st respondent submitted that the 1st respondent has been functioning on the promotional position for more than two years and therefore, the learned Single Judge rightly quashed the order of cancellation of promotion on the ground of violation of principles of natural justice and there is no reason warranting interference in the order passed by the learned Single Judge. 7. We have perused the materials available in the Letters Patent Appeal as well as the in the writ petition. 8. A show cause notice dated 17.11.2009 was issued by the Deputy Secretary, Road Construction Department to the 1st respondent-writ petitioner to submit explanation as to why his promotion granted vide office memo no. 1820 dated 5.10.2007, without following proper rules and regulation be not cancelled; but on the same day i.e. vide order dated 17.11.2009, the same officer-Deputy Secretary, Road Construction directed the Superintending Engineer to cancel the promotion granted to the 1st respondent-writ petitioner. The Superintending Engineer, having no other option issued order dated 31.12.2009 cancelling the promotion of the 1st respondent-writ petitioner. It appears that the 1st respondent-writ petitioner has been working on the promotional post i.e. on the post of Accounts Clerk from 2007 onwards. The Superintending Engineer, having no other option issued order dated 31.12.2009 cancelling the promotion of the 1st respondent-writ petitioner. It appears that the 1st respondent-writ petitioner has been working on the promotional post i.e. on the post of Accounts Clerk from 2007 onwards. When the 1st respondent-writ petitioner was working on the said post for more than two years, the Deputy Secretary, Road Construction Department ought to have given opportunity of hearing. Hence, the learned Single Judge has rightly observed that there is violation of principles of natural justice and was right in quashing the communication dated 17.11.2009 and order dated 31.12.2009. 9. As per Clause 7 of Circular No. 2215 dated 11.02.1985, appointment on class III posts in the Moffusil Office will be made 75 % from direct recruitment and 25 % from Class IV employees. In Circular No. 7027/92 Ka-335 dated 16.09.1992, the ratio for appointment on class III posts in Muffasil Office among the Class IV employees was enhanced to 50 % with an additional criteria that 60 % weightage has to be given to seniority and 40 % weightage has to be given to merit. In view of the circulars, it cannot be said that there was no promotional avenues for the 1st respondent-writ petitioner. 10. Learned counsel for the appellant-State submitted that even though there was promotional avenues for promotion of Class IV employees to Class III employees, the Government Circular No. 2215 dated 11.02.1985, in particular clause (7) was not followed while giving promotion to 1st respondent-writ petitioner. Grievance of the appellant-State is that before filling up the vacancies under the promotional avenues, applications have to be invited from all eligible candidates and thereafter following the roster clearance and giving opportunity to all eligible persons for promotion then only the Class IV employees can be promoted to Class III posts and in the case of 1st respondent-writ petitioner, the Circular No. 7027/92 Ka-335 dated 16.09.1992 was not followed. 11. 11. In so far the grievance of the appellant-State that the guidelines as contained in Circular No. 7027/92 Ka-335 dated 16.09.1992 was not followed, it is pertinent to note that 1st respondent-writ petitioner was promoted way back in 2007 and worked on that promotional position till 2009 and only thereafter the impugned notice dated 17.11.2009 and order dated 31.12.2009 was passed cancelling the promotion of 1st respondent-writ petitioner on the ground that Clause 7 of Circular No. 2215 dated 11.02.1985 was not followed, we are of the view that since the 1st respondent-writ petitioner was promoted and continued to work on the promotional position for more than two years, the appellant-State cannot raise the issue that guidelines were not being followed. It is also pertinent to note here that no other individual person has raised any grievance against the promotion of 1st respondent-writ petitioner. In such circumstances, we are of the view that the learned Single Judge was right in quashing the order dated 17.11.2009 and order dated 31.12.2009. It is also worthwhile to mention here that in the counter affidavit filed on behalf of 1st respondent, it is stated that the order passed by the learned Single Judge has already been implemented. It is further stated that 1st respondent-writ petitioner has already retired from service on 31.07.2013. 12. In such facts and circumstances of the matter, we do not find any reason warranting interference in the order passed by the learned Single Judge. Hence, the Letters Patent Appeal is dismissed. Suffice it to note that the order passed in respect of promotion of 1st respondent-writ petitioner cannot be quoted as a precedent in other cases.