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2014 DIGILAW 848 (JHR)

Braj Mohan Kumar v. State of Jharkhand

2014-08-08

AMITAV K.GUPTA

body2014
JUDGMENT R. Banumathi, J. 1. This appeal is filed for setting aside the order dated 07.11.2012 passed in W.P.(S) No.5828 of 2012 whereby the writ application of the appellant was disposed of with a direction that the objections filed by the appellant/petitioner and others shall be considered before finalizing the seniority list. 2. The facts of the case in brief as narrated by the appellant are that the appellant/writ petitioner joined the service as Assistant Engineer on 23.06.1987 and was promoted to the post of Executive Engineer on 31.08.1996 with effect from 20.06.1995 vide notification dated 31.08.1996. After bifurcation, State of Jharkhand prepared a final seniority list dated 15.02.2008 and the appellant was placed at Serial No.67. The appellant was considered for promotion to the post of Superintending Engineer by duly constituted promotion committee and the committee found the appellant eligible for promotion to the post of Superintending Engineer and the Jharkhand Public Service Commission vide letter no.178 dated 25.02.2010 sent its decision under sealed cover to the Water Resources Department. In the meantime the Hon’ble Supreme Court in S.L.P. (Civil) No. 14895 of 2008 by an order dated 23.06.2012 directed to keep in abeyance the final seniority list dated 15.02.2008 and accordingly the authority kept the final seniority list in abeyance by order dated 23.08.2012. Subsequently the Hon’ble Apex Court on 14.09.2012 modified the earlier order in S.L.P No.14895 of 2008 to the extent that the State may proceed to fill up the post keeping 11 post vacant for the petitioners in two S.L.P. 3. On 04.06.2012 a provisional cumulative seniority list of all the cadre was published by the Water Resources Department and the appellant was placed below in the list. The appellant challenged the same by filling a writ petition being W.P. (S) No.5828 of 2012 and the learned single Judge disposed of the writ application on 07.11.2012 with a direction to the department that the objection of the petitioner be considered before finalizing the seniority list. Challenging the order passed on 07.11.2012 the appellant filed the present appeal. 4. The appellant challenged the same by filling a writ petition being W.P. (S) No.5828 of 2012 and the learned single Judge disposed of the writ application on 07.11.2012 with a direction to the department that the objection of the petitioner be considered before finalizing the seniority list. Challenging the order passed on 07.11.2012 the appellant filed the present appeal. 4. The learned Senior Counsel appearing for the appellant submitted that since the case of the appellant had already been considered by the Departmental Promotion Committee on the basis of the seniority list dated 15.02.2008 and the decision has also been sent to the Jharkhand Public Service Commission on 02.05.2010, subsequent seniority list will not come in the way of issuance of the notification for promotion to the post of Superintending Engineer. It is further submitted that the seniority list dated 15.02.2008 was kept in abeyance since 25.02.2010 on frivolous ground of an interim order passed by Hon’ble Apex Court, which matter was no way related to the promotion of an Executive Engineer to that of Superintending Engineer. It is further stated that the learned Single Judge has not touched the issue involved in the matter and therefore the matter can be remitted to the learned Single Judge for fresh consideration or the matter may be decided by this court. 5. Mr. Ajit Kumar, learned Additional Advocate General appearing for the respondent State submitted that the main thrust and challenge of the appellant in the writ petition has been against the provisional seniority list dated 4.6.2012. It was submitted that the State Government considered all objections and representations against the said provisional seniority list and a final seniority list was published on 2.4.2013, which has been challenged by the appellant in W.P(S) No.3343/2013 and by another one, Virendra Kumar Ram, by filing writ petition in W.P(S) No.1403/2013 and the amendment application therein. Learned AAG submitted that since the final seniority list has been prepared, which is under challenge in other writ petitions [W.P(S) No.3343/2013 and W.P(S) No. 1403/2013], the prayer sought for in W.P(S) No.5828/2012 has become infructuous. Learned A.A.G further submitted that the appellant was not given a regular promotion but was given accelerated promotion to the post of Executive Engineer against the quota fixed for Scheduled Caste category. Learned A.A.G further submitted that the appellant was not given a regular promotion but was given accelerated promotion to the post of Executive Engineer against the quota fixed for Scheduled Caste category. It was contended that in terms of provisions made by the Department of Personnel And Administrative Reforms in its circular No.918 dated 1.2.2012, 10% post are reserved for promotion of the Scheduled Caste category and the appellant has been promoted to the post of Executive Engineer against the 10% post reserved for Scheduled Caste category. It was contended that as per the decision of the Hon’ble Supreme Court in the case of M. Nagaraj & Ors. v. Union of India & Ors. [ (2006) 8 SCC 212 ] after calculating all quantifiable data and after considering the objections and representations, final seniority list was published on 2.4.2013 and while so, the appellant can have no valid objection for the same. 6. Mr. Rajendra Kumar, learned counsel appearing for the intervenor in I.A No.1495/2013, submitted that the intervenor was appointed ten years back that of the appellant and after publishing final seniority list, the appellant cannot seek to retain his original seniority of accelerated promotion given to him. 7. Mr. Indrajit Sinha, learned counsel appearing for the intervenor in I.A No.1521/2013, submitted that the seniority list has to be considered as per the PWD Code and the post of Executive Engineer is a Class – I cadre and entry into the same has to be reckoned as the entry into the service and the entire seniority is to be reckoned from the said date of entry. 8. We have carefully considered the submissions of the learned counsel appearing for the parties. 9. The grievance of the appellant is that the duly constituted Departmental Promotion Committee has recommended the name of the appellant for promotion to the post of Superintending Engineer, vide letter no.178 dated 25.2.2010, but the recommendation of the Departmental Promotion Committee has not been acted upon, rather the decision of the Departmental Promotion Committee has been kept in a sealed cover, even while no departmental or criminal proceeding is pending against the appellant. The contention of the appellant is that the above grievance of the appellant has not been decided by the learned Single Judge in the writ petition and without touching the merit of the case, learned Single Judge disposed of the matter and therefore, learned Senior Counsel appearing for the appellant requested that the LPA may be remitted back to the learned Single Judge for deciding the matter afresh. It was submitted that even though in the writ petition, a prayer has been made challenging the provisional seniority list dated 4.6.2012, main contention of the appellant is that subsequent seniority list will not come in the way of taking the decision taken by the Departmental Promotion Committee, which was kept in a sealed cover and that aspect of the matter has not been taken into consideration while passing the order in the writ petition. 10. Per contra, learned AAG submitted that since the final seniority list has been published on 2.4.2013 and the appellant had also been promoted as Superintending Engineer with effect from 2.6.2014, W.P(S) No.5828/2012 had become infructuous. It was submitted that in the said writ petition, W.P(S) No.5828/2012, the main thrust and challenge of the appellant has been against the provisional seniority list dated 4.6.2012 and when the final seniority list has been published, nothing survives for consideration in W.P(S) No.5828/2012; more so when the final seniority list under challenge by the appellant in W.P(S) No.3343/2013. 11. Having regard to the submissions of the learned counsel for the parties, we do not propose to go into the merits of the matter. Since the final seniority list is under challenge by the appellant in W.P(S) No.3343/2013 and by Virendra Kumar Ram, in W.P(S) No.1403/2013, without expressing any opinion on the merits of the matter, the order dated 7.11.2012 passed in W.P(S) No.5828/2012 is set aside and the matter is remitted back to the learned Single Judge for consideration of the matter afresh. Learned Single Judge shall afford opportunity to the appellant-writ petitioner, respondents and also to the interveners and consider the matter afresh in accordance with law.