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2014 DIGILAW 501 (JHR)

Krishna Prasad Singh v. State of Bihar

2014-04-11

APARESH KUMAR SINGH

body2014
JUDGMENT Aparsh Kr. Singh, J. 1. Heard learned counsel for the parties. 2. In the present case, the challenge on behalf of the petitioner is primarily to the order no. 96 dated 26.11.1999 issued by the Regional Director, Animal Husbandry Department, South Chhotanagpur Range, Ranchi, respondent no. 4, Annexure-10 whereunder the petitioner's promotion to the Class-III post of Ganak made earlier vide order dated 28.1.1986, Annexure-1 has been cancelled and he has been reverted to the Class-IV post. The writ petitioner challenged the said order, as is evident, in the year 2000 and pursuant to the interim order passed in the instant case on 16.2.2000, the impugned order remain stayed. In the meantime, the petitioner superannuated while working on the same Class-III post on 30.9.2012 in the district of Lohardaga under the respondent, Government of Jharkhand. It is incidental to state that the writ petition was filed in the Patna High Court before bifurcation of the parent State and has since been transferred in view of the provision of Section 34 of the Bihar Reorganization Act, 2000. In the aforesaid background, certain more facts are to be noticed. The petitioner was appointed on Class-IV post of Bull Attendant on 20.1.1977. According to him, he fulfilled the laid down criteria as per Annexure-2 dated 14.12.1983 issued by the Deputy Director (Headquarters), Animal Husbandry Department, Bihar, Patna of having more than 60% marks in mathematics subject in matriculation and having passed matriculation examination for being considered for promotion to Class-III post i.e. Ganak in the scale of Rs. 535-765/-. Vide Annexure-1, five persons including the present petitioner were promoted on 28.1.1986 by the order of the Regional Director, Animal Husbandry Department, Chhotanagpur & Santhal Pargana Development Authority, Ranchi to the post of Ganak on the basis of recommendation of the selection committee in the scale of Rs. 535-765/- on provisional basis. This promotion has been cancelled by the impugned order after issuance of a show cause notice firstly on 2.9.1996, which was also challenged in the instant writ petition and thereafter through another show cause dated 12.2.1998 which was followed with the passing of the impugned order on 26.11.1999. The petitioner admittedly filed his reply to the said show cause inter alia taking a plea that he fulfilled the prescribed criteria for such promotion in terms of the letter dated 14.12.1983, Annexure-2 and had also completed nine years of satisfactory service. The petitioner admittedly filed his reply to the said show cause inter alia taking a plea that he fulfilled the prescribed criteria for such promotion in terms of the letter dated 14.12.1983, Annexure-2 and had also completed nine years of satisfactory service. He also stated that on the promoted post he had served for more 10 years without any complaint. He also took a plea that the absence of authority as made out by the respondent against the Regional Director, Animal Husbandry Department, is not to be taken against the petitioner as he fulfilled the requisite criteria for such promotion. It was also stated by the petitioner, specifically at para-24, that four other similarly situated persons, who were also promoted along with the petitioner to Class-III post, are continuing in the said Class-III post. The said statement also stands un-rebutted in the counter affidavit filed by the respondent. He also made a statement that the person junior to him namely Surendra Tiwari is also continuing on the said Class-III post, which is arbitrary and violative of principles of natural justice and the same has also not been rebutted in the counter affidavit. It is submitted that the aforesaid state of facts even assumably to be correct, is a case of irregular promotion and not suffering from any patent illegality. The petitioner has relied upon the judgment rendered in the case of State of Karnataka & other vs. M.L. Kesari and other, (2010) 9 SCC 247 in support of the aforesaid contention that such an irregularity is always curable. He has also relied upon the judgment rendered in the case of Narender Chadha and other vs. Union of India and other, AIR 1986 SC 638 submitting that when a person like the petitioner has been allowed to function in higher post for more than 13 years it would be unjust to hold that he has no sort of claim to such post and could be reverted unceremoniously or treated as person not belonging to the service at all. Therefore, it has been submitted that the petitioner, who has served on Class-III post and retired as such during the pendency of the writ petition should not be denied the benefits of such post after his retirement by upholding the impugned order issued by the respondents. Therefore, it has been submitted that the petitioner, who has served on Class-III post and retired as such during the pendency of the writ petition should not be denied the benefits of such post after his retirement by upholding the impugned order issued by the respondents. It is also stilted that he has enjoyed the salary and allowances of Class-III post pursuant to his promotion in the year 1986 till the date of his retirement. 4. The respondents had earlier not filed any counter affidavit in the matter, though the writ petition was admitted on 16.2.2000 itself. However, when the said facts were noticed and it was also found that the writ petition had been transferred from the Patna High. Coui1: after bifurcation of the State, the respondents were allowed one more opportunity to file their counter affidavit on the last occasion, which they have done by filing the same thereafter. The stands of the respondents as reflected in the counter are that – (i) the Regional Director, Animal Husbandry Department, Chhotanagpur & Santhal Pargana Development Authority was not the competent authority to grant promotion or appointment to Class-III post in the department (ii) the order impugned has been passed after giving show cause notice to the petitioner finding his promotion as illegal (ii) the respondents have relied upon the judgment passed in the case of Ajit Kumar vs. State of Bihar & other, which is enclosed as Annexure-A to the counter affidavit, whose appointment to the post of Ganak in the year 1990 on Class-III post made by the Regional Director, Animal Husbandry Department was terminated vide order dated 1.10.1997. The said order was upheld by the learned Single Judge in the writ petition being CWJC No. 1852 of 1998 (R) on the ground that the Regional Director was not competent to make such appointment on Class-III post. The said judgment was upheld in LPA No. 433 of 1999 (R). The respondents have also enclosed the judgment rendered in the case of Akhilesh Prasad 2001 (2) PLJR 549 , who was appointed in the year 1986 as Laboratory Assistant for a temporary period of six months and subsequently in the year 1989 he was transferred and posted against vacant post of Ganak by the order of Regional Joint Director, Animal Husbandry Department. The service of the said person was terminated by the order dated 1.10.1997 on the ground that he was appointed by an authority who did not have power to make such appointment. The said order of termination was upheld by the learned Single Judge and also not interfered in appeal i.e. LPA No. 163 of 1999 (R), which are enclosed to the counter affidavit. On these grounds the claim of the petitioner is being contested. 5. It is, however, not in dispute that the petitioner in the instant case has not been terminated from service in the manner of Ajit Kumar or Akhilesh Prasad, whose appointment and promotion both were terminated and upheld in the judgment rendered by the learned Single Bench in the writ petition and by the Division Bench in LPA whose judgments are relied upon by the respondents. 6. In the instant case as would appear from the chronology of facts, which has been indicated hereinabove, the appointment of the petitioner to Class-IV has not been questioned. The eligibility of a person for being promoted to the next higher post of Class-III who is having more than 60% marks in mathematics subject in matriculation and has passed matriculation examination is also not disputed. The said qualification was indicated as per the letter of the Deputy Director (Headquarters), Animal Husbandry Department, Patna, vide Annexure-2 dated 14.12.1983 itself while calling names of such eligible persons for consideration of their cases for promotion by the Directorate. What has been evident in the instant case is that by the order of promotion dated 28.1.1986, on recommendation of selection committee, apart from the petitioner four persons were promoted to Class-III post in a particular scale. The petitioner continued on such post till the said promotion was cancelled by the impugned order dated 26.11.1999 after service of show cause and reply of the petitioner. The ground of reversion is that the Regional Director, Animal Husbandry Department had no competency to issue the order and it was to be done at the Directorate level. During the course of the argument, learned counsel for the petitioner has produced a letter no. The ground of reversion is that the Regional Director, Animal Husbandry Department had no competency to issue the order and it was to be done at the Directorate level. During the course of the argument, learned counsel for the petitioner has produced a letter no. 6680 dated 3.12.1996 issued under the signature of the Secretary, Animal Husbandry and Fishery Department, Bihar, Patna, perusal of which, indicates that by the letters dated 28.10.1991 and 21.2.1992 the power to make appointment on Class-IV and Class-III posts upon the Regional Director were withdrawn. The said letter is being kept on record. Apart from the said letter, it is otherwise evident that the petitioner fulfilled the required eligibility criteria for Class-III post and was promoted as such in the year 1986 and continued till the issuance of the impugned order by the respondent department. Apparently, the respondent department have found that the Regional Director was not authorized to issue such promotion to Class-III post. Therefore, it appears that the promotion of the petitioner to the said post would at best be a case of irregular promotion as he apparently fulfilled the eligibility criteria for such promotion. Evidently, the impugned order of cancellation of promotion of the petitioner was stayed by the interim order passed in the instant case as on 16.2.2000 itself when the matter was admitted for hearing. The petitioner has since retired while serving on the said post on 30.9.2012. The judgments relied upon by the respondents indicate that the appointments itself were made by the Regional Director, Animal Husbandry Department of such persons in the year 1990 in Class-III post in the case of Ajit Kumar and in the year 1986 in the case of Akhilesh Prasad, only on contract for 6 months whereafter he was transferred and posted on Class-III post without following procedure. Such appointments were terminated as being totally illegal and beyond the jurisdiction• of the Regional Director. In the instant case, the original appointment of the petitioner is not in question. It is only question of irregular promotion granted by the Regional Director as aforesaid. 7. Such appointments were terminated as being totally illegal and beyond the jurisdiction• of the Regional Director. In the instant case, the original appointment of the petitioner is not in question. It is only question of irregular promotion granted by the Regional Director as aforesaid. 7. In the totality of the facts and circumstances of the case discussed hereinabove, therefore, when the petitioner has served and retired on Class-III post, at this stage this Court considers it rather inequitable to deny the petitioner the consequential post retirement benefit of Class-III post after his retirement which may result if the impugned order is upheld. The petitioner has served on Class-III post and availed of the allowances and salary admittedly and the respondents have also released GPF and group insurance amount to him after his retirement, as per Annexure-B to the counter affidavit. Therefore, this Court is inclined to interfere in the impugned order on the grounds, reasons and the facts discussed hereinabove. Accordingly, impugned order dated 26.11.1999, Annexure-10 is hereby quashed. The writ petition is, therefore, allowed in the aforesaid manner. 8. However, it is also observed that the instant judgment shall not be treated as precedent in other cases. 9. The respondents would release post retirement benefits admissible to the petitioner of the post which he served and retired from.