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2014 DIGILAW 960 (JHR)

Dineshwar Ram v. State of Jharkhand

2014-09-12

APARESH KUMAR SINGH

body2014
JUDGMENT By Court Heard learned counsel for the parties. 2. In the present writ petition, the petitioner has sought for a direction upon the respondents to consider his case for promotion to the post of Office Superintendent, Gumla Collectoriate claiming that he belongs to the Scheduled Caste and has been working since 1989 in super Time Selection Grade and is therefore, eligible since 1992 to be promoted as such. He has challenged the office order bearing no. 448 dated 10.05.2001 by which the respondent no. 5, Kishori Ohdar, has been promoted as Office Superintendent w.e.f. 01.02.1999 on the basis of recommendation made vide Mis. Case No. 15/2000-2001 by the respondent no. 2, Additional Collector, Gumla. 3. The claim of the petitioner is based upon assertion that he was given Junior Selection Grade w.e.f. 01.04.1981, Senior Selection Grade w.e.f. 01.04.1986 and Super Time Selection Grade w.e.f. 01.03.1989 while the respondent no. 5, Kishori Ohdar, was given Junior Selection Grade w.e.f. 01.04.1984, Senior Selection Grade w.e.f. 01.04.1989 and he has not been promoted in Super Time Selection Grade. 4. According to the petitioner pursuant to the retirement of one Herman Toppo from the post of Office Superintendent in the year 1996, the case of the petitioner ought to have been considered against the sole post of Office Superintendent which was deemed to have been reserved in view of the circular of the Government of Bihar, Personnel and Administrative Reforms Department bearing letter no. 159 dated 11.12.1997, Annexure-6. The respondent, however, instead of granting promotion to the petitioner as Scheduled Caste Category candidate on the sole post to which the reservation should also have been applied, chosen to grant promotion to the respondent no. 5, which is not proper in law as the said respondent was junior to him and has not been given Super Time Selection Grade. Learned counsel for the petitioner submits by relying upon the judgment rendered in the case of Shivanand Roy & Ors. Vs. the State of Jharkhand & Ors along with analogous cases reported in 2008 (4) JLJR 217 , that the operation of the roster for filling the cadre strength has to be maintained, if the quota of reservation is not completed. He submits that benefit of reservation cannot be treated to have lapsed in case of post based reservation as per the said judgment. 5. Learned counsel for the State and the respondent no. He submits that benefit of reservation cannot be treated to have lapsed in case of post based reservation as per the said judgment. 5. Learned counsel for the State and the respondent no. 5, both have, however, seriously contested the claim of the petitioner. It is not in dispute that the respondent no. 5 was appointed on 12.08.1964 on the post of Assistant while the petitioner was appointed on 10.05.1965. The respondent no. 5 has been shown as senior to the petitioner in both provisional and final seniority list, which are enclosed to the counter affidavit of the respondent no. 5. Apart from that learned counsel for the respondents have pointed out that the very issue relating to promotion for the post of Office Superintendent with regard to inter-se claim of the petitioner and the private respondent was considered in Mis. Case No. 15/2000-2001 in the Court of Additional Collector, Gumla. Each of these points raised by the petitioner were duly considered and have been squarely rejected by the order passed on 15.04.2001, which is enclosed as Annexure-B to the counter affidavit of the respondent no. 5. It is submitted that the said order which squarely decided the issue has not been challenged by the petitioner. Therefore, it is not open to the petitioner to claim promotion as Office Superintendent over the private respondent after the issue has been finally determined earlier. 6. Having heard learned counsel for the parties and having gone through the relevant materials on record, in the first place, it is evident from Annexure-B, order dated 15.04.2001 passed by the Additional Collector, Gumla in the said Miscellaneous Case that on the very same issue, after hearing both the parties and after considering all objections raised by the petitioner, the claim of the petitioner was rejected. The said order has not been challenged in the writ petition and in that sense, the issue raised herein has earlier been considered and determined by the respondents. From perusal of the aforesaid order, the significant finding which demolish the case of the petitioner are obvious. The Additional Collector has found that the respondent no. The said order has not been challenged in the writ petition and in that sense, the issue raised herein has earlier been considered and determined by the respondents. From perusal of the aforesaid order, the significant finding which demolish the case of the petitioner are obvious. The Additional Collector has found that the respondent no. 5 got Junior Selection Grade w.e.f. 01.04.1984, but cadre promotion of the petitioner was kept in abeyance on account of departmental proceeding, which has never been granted to him and the claim of the petitioner that he has been granted Junior Selection Grade w.e.f. 01.04.1981 was found to be false. In respect of his further claim that he has been granted Second Time Bound Promotion w.e.f. 10.05.1990, it has been held that on the said date, no such post in the Junior Selection Grade was vacant and promotion granted to the petitioner in Senior Selection Grade w.e.f. 01.04.1986 has been found to be erroneous in view of the letter dated 01.08.1991 of the Deputy Collector, District Establishment. Specific findings have been recorded that the private respondent has got Senior Selection Grade, therefore, he is senior to the petitioner. Further findings have been recorded in respect of the claim of the petitioner for promotion to the post of Office Superintendent as a Scheduled Caste candidate that Scheduled Tribe candidates were entitled to two posts while granting one post to Scheduled Caste category candidate like the petitioner would be contrary to the Rule and would defeat the right of Scheduled Tribe candidate. Finding have also been recorded that the petitioner was under suspension for three years nine months from 16.02.1982 to 08.12.1985 and was also placed under suspension in respect of an incident vide order dated 06.03.1992, which was revoked vide letter dated 07.07.1993. The petitioner had, therefore, remained under suspension for 16 months during the said period. These incidences of his suspension have also not been entered in his service book, which created serious doubt. 7. Considering all aspects of the matter, after hearing the petitioner and the respondent no. 5, by the said order passed in a quasi judicial proceeding, the claim of the petitioner was rejected. These incidences of his suspension have also not been entered in his service book, which created serious doubt. 7. Considering all aspects of the matter, after hearing the petitioner and the respondent no. 5, by the said order passed in a quasi judicial proceeding, the claim of the petitioner was rejected. The order where serious finding of facts were recorded against the petitioner, have not been challenged by the petitioner, though he has consciously chosen to seek writ of mandamus for promotion to the post of Office Superintendent in Gumla Collectoriate. The aforesaid conduct of the petitioner, therefore, is not proper when the very issue raised between the parties stood decided in a quasi judicial proceeding which has not been challenged by the petitioner. Therefore, the present writ petition once again seeking promotion to the same post of Office Superintendent amounts to an abuse of the process of law. 8. In such circumstances, after having examined the claim of the petitioner on merits and also having found that the very issue has been determined earlier by the order passed by the Additional Collector vide order dated 15.04.2001 against the petitioner, no grounds have been made out on the part of the petitioner for issuance of a writ or direction for promotion to the post of Office Superintendent or for quashing the order of promotion of the respondent no. 5. 9. The writ petition being devoid of merit as also being an abuse of the process of law, is dismissed with a cost of Rs. 1,000/-, which shall be deposited within a period of three week before the Jharkhand State Legal Services Authority (JHALSA). 10. I. A. No. 4895 of 2014 is closed.