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2015 DIGILAW 330 (JHR)

Bindeshwari Prasad Karn v. State of Jharkhand

2015-03-02

PRAMATH PATNAIK

body2015
ORDER : Pramath Patnaik, J.: 1. Heard Mr. R.N. Sahay, learned counsel for the petitioner and Mr. Rishikesh Giri, J.C to G.P. II for the respondents. 2. In the aforesaid writ application, the petitioner has, inter alia, prayed for direction upon the respondents for promotion on the post of Instructor Engineering. 3. The factual matrix, as delineated in the writ petition, is that the petitioner was appointed on the post of Mistri on 26.08.1970 as per Annexure 1 to the writ application and he rendered services to the satisfaction to his authorities and vide order dated 2428 dated 10.08.2006, the petitioner has been granted benefit of 2nd A.C.P, as revealed from Annexure 2 to the writ application and subsequently the petitioner was promoted to the post of Jharkhand Agriculture Engineering Services Class-II. While continuing to the post of Fitter, the petitioner was kept in additional charge of Instructor Engineering vide order dated 19.03.2007, as per Annexure 4 to the writ application. It has further been contended in the writ application that similarly situated persons have been promoted to the post of Agriculture Engineering Services Class-II in pursuance to the order passed in writ petition being, C.W.J.C No. 922 of 1989, C.W.J.C No. 5077 of 1998, C.W.J.C. No. 3586 of 1990 and C.W.J.C No. 2559 of 1998, as revealed from Annexure 5 dated 3.09.2000. 4. Counter affidavit has been filed by the respondents-State repelling the averments made in the writ petition. It has been contented in paragraph 7 of the counter affidavit that in the year 2005-06 a Scheme vide Rajyadesh No. 38 dated 07.09.2005 was launched in the department of Agriculture, Government of Jharkhand for strengthening Agriculture farms. Under the said scheme, the petitioner was given an advance of Rs. 9,75,114/- for construction of crop shed one each in the nine districts of Jharkhand viz. Dumka, Jamtara, Pakur, Sahebganj, Bokaro, Dhanbad, Giridih, Godda and Deoghar vide letter dated 25.05.2006 of Director of Agriculture, Jharkhand, Ranchi-respondent no. 3. Since the petitioner did not submit the measurement book and vouchers and the amount of advance was not adjusted, on the basis of preliminary enquiry report of Deputy Director, Agriculture (Engineering), Directorate of Agriculture, Jharkhand, Ranchi, it was made clear that the petitioner had misappropriated and defalcated the money and vide letter no. 3. Since the petitioner did not submit the measurement book and vouchers and the amount of advance was not adjusted, on the basis of preliminary enquiry report of Deputy Director, Agriculture (Engineering), Directorate of Agriculture, Jharkhand, Ranchi, it was made clear that the petitioner had misappropriated and defalcated the money and vide letter no. 328 dated 08.02.2010, the petitioner was again instructed to submit the measurement book, vouchers and adjust the money advanced to him. But , when no response came from the petitioner, vide office order no. 50 dated 05.05.2010, the petitioner was suspended and a departmental proceeding was initiated against him. It has been further submitted that since the petitioner is involved in misappropriation of government money given to him as advance and a departmental proceeding is going on against him, promotion matter of the petitioner can only be taken after conclusion of departmental proceeding. 5. Learned counsel for the petitioner has filed rejoinder to the counter affidavit dated 22.06.2010, wherein order dated 01.06.2013 has been enclosed as Annexure 9 stating therein that the departmental proceeding has been concluded and recoverable amount of Rs. 83,184/-was ordered to be recovered from unutilized Earned Leave and further it was stated that the period of suspension would be treated as period on duty. Learned counsel for the petitioner has strenuously urged before this Court since in the meantime the departmental proceeding has been concluded and there is absolutely no bar for consideration of his promotion to the post of Agriculture Engineering, Grade II at par with the similarly placed persons, those who have been given promotion as revealed from Annexure 5 to the writ application, the case of the petitioner for promotion may also be considered notwithstanding the retirement of petitioner or attaining the age of superannuation in the meantime 6. Learned counsel for the respondents-State, Mr. Rishikesh Giri, J.C to G.P.II has no serious objection, if such direction is given for consideration of case of the petitioner for promotion to the aforesaid post within the stipulated period. 7. During the course of argument, learned counsel for the petitioner has referred the decisions rendered by this Court in the case of Mrityunjay Kishore Mittu Vs. Rishikesh Giri, J.C to G.P.II has no serious objection, if such direction is given for consideration of case of the petitioner for promotion to the aforesaid post within the stipulated period. 7. During the course of argument, learned counsel for the petitioner has referred the decisions rendered by this Court in the case of Mrityunjay Kishore Mittu Vs. The State of Jharkhand & Ors as reported in 2011 (2) JLJR 213 specially on paragraphs 4 and 5, wherein in similar set of circumstance, the Hon'ble Court has held that the petitioner is entitled to be considered for promotion when his juniors promoted to higher post. 8. After having heard learned counsel for the petitioner and learned counsel for the respondents and after giving my anxious consideration to the facts and rivalised submissions, I am of the considered opinion that since departmental proceeding pending against the petitioner has been concluded, he is entitled to be considered for promotion to the post of Agriculture Engineering Service, Class II from the date similarly placed employees were given promotion. The respondents are directed to consider the case of the petitioner for promotion to aforesaid post within a period of four months in accordance with rules and in the event, if the petitioner is found fit for promotion to the aforesaid post, he shall be entitled to notional service benefits. 9. With the aforesaid observation and direction, this writ petition is allowed. 10. Resultantly, Interlocutory Application being I.A. No. 955 of 2015 also stands disposed of.