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2017 DIGILAW 1264 (JHR)

Agam Prasad, son of Sri Gopal Prasad Srivastava v. State of Jharkhand

2017-07-26

D.N.PATEL, RATNAKER BHENGRA

body2017
JUDGMENT : D.N. PATEL, J. 1. This Letters Patent Appeal has been preferred by the original petitioner whose writ petition being W.P.(S) No.1587 of 2017 was dismissed by the learned Single Judge by a detailed speaking order dated 21st March, 2017, whereby the prayer of this appellant for appointing him as Chief Engineer was rejected by this Court and also the prayer for cancellation of the order given to the respondent No.6 (original L.P.A. No.153 of 2017 respondent No.6) of making him Incharge, Chief Engineer, was also not quashed and set aside by the learned Single Judge and the said prayer was also rejected by this Court. Hence, the original petitioner has preferred this Letters Patent Appeal. 2. FACTUAL MATRIX It appears that this appellant (original petitioner) is a Superintending Engineer and he was given the charge of post of Chief Electrical Inspector of the State of Jharkhand. It appears that in the earlier writ petition being W.P.(S) No.2709 of 2011 preferred by some another petitioner who was on the post of Incharge of another post, in which direction was given by this Court that the State of Jharkhand should have appointed the Head of such type of Department quickly instead of giving charge of the post to different persons at different intervals of time. Nonetheless, this appellant was continued as an Incharge, Chief Electrical Inspector, from 13th March, 2015. This appellant was thereafter transferred to his parental post, namely, Superintending Engineer and the respondent No.6 was given the charge of the post of Chief Electrical Inspector with effect from 17th March, 2017. It appears that this appellant wants to continue as Incharge, Chief Electrical Inspector, till for further time and, hence, he has preferred W.P.(S) No.1587 of 2017 with a prayer that this appellant should be appointed as Chief Electrical Inspector as he is senior-most and respondent No.6 should not be made Incharge of the post of Chief Electrical Inspector. These pleas have not been accepted by the learned Single Judge and the petition was dismissed vide order dated 21st March, 2017 and, hence, the present Letters Patent Appeal has been preferred by the original petitioner. 3. ARGUMENTS CANVASSED BY THE COUNSEL FOR THE APPELLANT Counsel for the appellant submitted that this appellant is senior-most Superintending Engineer and, therefore, he was given the charge of Chief Electrical Inspector with effect from 13th March, 2015. 3. ARGUMENTS CANVASSED BY THE COUNSEL FOR THE APPELLANT Counsel for the appellant submitted that this appellant is senior-most Superintending Engineer and, therefore, he was given the charge of Chief Electrical Inspector with effect from 13th March, 2015. It is further submitted by the counsel for the appellant that L.P.A. No.153 of 2017 despite this Court has passed an order in another writ petition being W.P.(S) No. 2709 of 2011 order dated 12th August, 2011 that Government of Jharkhand should not keep the highest post vacant and adhocism or Inchargeship should not continue for a longer time. Despite this order, the post of Chief Electrical Inspector has not been filled up and now, this appellant has been transferred and he is also given additional charge of General Manager of State Load Dispatch Centre (herein after referred to as 'S.L.D.C.' for the sake of brevity) and respondent No.6 has been given the Charge of the post of Chief Electrical Inspector with effect from 17th March, 2017. Counsel for the appellant further submitted that in fact, this appellant (original petitioner) ought to have been continued as an Incharge, Chief Electrical Inspector and he should be given regular promotion on this post as he is senior-most, looking to prayer No.1 to the the writ petition. It is also submitted by the counsel for the appellant that the order passed by the respondents-State authorities for the respondent No.6 making him Incharge of the post of Chief Electrical Inspector vide order dated 17th March, 2017 should be quashed, because, one adhoc cannot be replaced by another adhoc. Counsel for the appellant further submitted that let a suitable direction be given to the State of Jharkhand to fill up the post of Chief Electrical Inspector on a regular basis, instead of such type of adhocism or Inchargeship, in the light of the order passed by this Court in W.P.(S) No.2709 of 2011 order dated 12th August, 2011. These aspects of the matter have not been properly appreciated by the learned Single Judge and hence, the judgment and order delivered by learned Single Judge in W.P.(S) No.1587 of 2017 dated 21st March, 2017 deserves to be quashed and set aside. 4. ARGUMENTS CANVASSED BY THE COUNSEL FOR THE RESPONDENTS-STATE Counsel for the State submitted that there is no legal right vested in the appellant to continue as Incharge, Chief Electrical Inspector. 4. ARGUMENTS CANVASSED BY THE COUNSEL FOR THE RESPONDENTS-STATE Counsel for the State submitted that there is no legal right vested in the appellant to continue as Incharge, Chief Electrical Inspector. Counsel for the State submitted that there is no corresponding duty vested in the duty of the State Government that this appellant ought to be promoted as Chief Electrical Inspector. Hence, no writ of mandamus can be issued upon the State to give promotion to the appellant as prayed in the memo of the writ petition, because, there is no right vested in the appellant to get the promotion. There is a only right vested in the appellant to be considered for promotion and nothing beyond that. These aspects of the matter have been properly appreciated by the learned Single Judge and, hence, this Letters Patent Appeal may not be entertained by this Court. It is further submitted by the counsel for the respondents-State that looking to the order at Annexure 2 to the Memo of this Letters Patent Appeal, this appellant has been transferred and is also given additional charge of General Manager of S.L.D.C., which is equivalent post to the Chief Engineer and as he has been transferred, another person i.e. the respondent No.6, has been made Incharge for the post of Chief Electrical Inspector. Thus, both the posts are equivalent posts of Chief Engineer and, hence, this appellant cannot insist that he should be made Incharge of a particular post. Counsel for the State further submitted that as stated in paragraph 8 of the counter affidavit filed by the State in W.P.(S) No.1587 of 2017, the State of Jharkhand is in process of filling up the post of Chief Electrical Inspector on a regular basis, but, till this post is regularly filled up by promotion, somebody has to be made Incharge of the post as Chief Electrical Inspector and as this appellant has been transferred and made Incharge, General Manager of S.L.D.C., respondent No.6 has been given charge of the post of Chief Electrical Inspector. In fact, as and when the regular Chief Electrical Inspector will be appointed, this respondent No.6 will be replaced except the fact that respondent No.6 himself is promoted. These aspects of the matter have been properly appreciated by the learned Single Judge and, hence, this Letters Patent Appeal may not be entertained by this Court. 5. In fact, as and when the regular Chief Electrical Inspector will be appointed, this respondent No.6 will be replaced except the fact that respondent No.6 himself is promoted. These aspects of the matter have been properly appreciated by the learned Single Judge and, hence, this Letters Patent Appeal may not be entertained by this Court. 5. ARGUMENTS CANVASSED BY THE COUNSEL FOR RESPONDENT NO.6 Counsel for the respondent No.6 has submitted that this appellant was Incharge of the post of Chief Electrical Inspector with effect from 13th March, 2015 and now by virtue of the order at Annexure L.P.A. No.153 of 2017 2 dated 17th March, 2017, the appellant has been transferred and made incharge of the post of General Manager, S.L.D.C., and as the post of Chief Electrical Inspector is not regularly filled up and the process is going on, the respondent No.6 has been given charge of the aforesaid post. There is no illegality committed by the respondents-State. There is no legal right vested in this appellant that he should be continued as an Incharge of Chief Electrical Inspector and he cannot be transferred on any other post for any indefinite time. Counsel for the respondent No.6 has further submitted that they have no much objection if the regular promotion is given to any suitable candidate for the post of Chief Electrical Inspector. In fact, there is nothing like a post of “Incharge Chief Electrical Inspector”. It is further submitted by the counsel for the respondent no.6 that looking to the prayer of the writ petition, this appellant is claiming promotion on the post of Chief Electrical Inspector as he is senior-most. This argument is devoid of any merit. There is no right to get promotion. There is right to be considered to the promotional post. These aspects of the matter have been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant. It is further submitted by the counsel for the respondent No.6 that this appellant was already given charge of Chief Electrical Inspector with effect from 13th March, 2015 and now he is transferred and he is given charge of the post which is equivalent to the post of Chief Engineer and, hence, he cannot agitate that respondent No.6 should not be made Incharge of Chief Electrical Inspector. This appellant cannot choose who should be made Incharge of a particular post and, hence, this Letters Patent Appeal may not be entertained by this Court. REASONS:- 6. Having heard learned counsels for both sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following facts and reasons:- (i) This appellant is the original petitioner whose substantive post is Superintending Engineer. (ii) As the post of Chief Electrical Inspector was not filled up for any reason whatsoever, by the State of Jharkhand, this appellant was made Incharge of the post of Chief Electrical Inspector with effect from 13th March, 2015. In some another matter, for some post of Assistant Commissioner of Excise, a direction was given by this Court that such type of ost should be filled up on a regular basis. This direction was given in W.P.(S) No.2709 of 2011 vide order dated 12th August, 2011. In some another context, for the post of Assistant Commissioner of Excise, the order was passed. Nonetheless, the working of the Government depends on several factors and forces. Several posts are vacant and claimants are many more. Such type of claimants are aspiring for the promotion and few are finding shortcut methods. One of such shortcut methods is to get himself appointed as an Incharge of the promotional post and once an employee is enjoying anything by shortcut method; as a human tendency, he will try to retain the same, by hook or crook. This petition and the Letters Patent Appeal is not an exception to such type of phenomena. (iii) In fact, there is no right vested in any employee to become Incharge of the promotional post. Inchargeship is an exception to the rule of regular promotion. If the promotional post is to be filled up by promotion only; in a democratic country, the thinking process and the appointing process is a little bit slow and, hence, whenever any high ranking administrative post is vacant, Government use to take some time to fill up such type of post and, hence, during that interregnum period, somebody has to be given the charge of the superior post. (iv) This appellant (original petitioner) was given charge of the post of Chief Electrical Inspector with effect from 13th March, 2015 and he was enjoying the same since two long years and now it has become habit for him to continue on the post of Incharge Chief Electrical Inspector. Habit is like an Iron Shirt, very difficult to be penetrated. When this appellant is transferred on some another post and equally he is made Incharge of General Manager, S.L.D.C., which is an equivalent post of Chief Engineer, the L.P.A. No.153 of 2017 respondent No.6 is made incharge of the post of Chief Electrical Inspector. This is always permissible by the State, till the regular promotion is given on the post of Chief Electrical Inspector. (v) There is no right vested in this appellant to be appointed as an Incharge, Chief Electrical Inspector, nor there is any right vested in this appellant to continue as an Incharge of Chief Electrical Inspector, especially when, he is transferred to another post vide transfer order dated 17th March, 2017 (Annexure 2 to the memo of Letters Patent Appeal). (vi) This appellant has also prayed that he should be promoted as Chief Electrical Inspector as he is senior-most. This plea has rightly been brushed aside by the learned Single Judge, because, there is no right vested in the employee to get the promotion, but, there is only right vested is to be “considered for the post of promotion”, that too, if the employee is falling with the zone of consideration. Correspondingly, there is no duty vested in the State that a particular employee should be promoted. All depends upon the efficiency, experience and such other factors in accordance with the rules, regulations and Governmental policies. These aspects of the matter have been properly appreciated by the learned Single Judge while dismissing the writ petition preferred by this appellant being W.P.(S) No.1587 of 2017 vide judgment and order dated 21st March, 2017. 7. As a cumulative effect of the aforesaid facts and reasons, no error has been committed by the learned Single Judge while dismissing the writ petition being W.P.(S) No.1587 of 2017 vide order dated 21st March, 2017 and we see no reason to take any other view than what is taken by the learned Single Judge. 7. As a cumulative effect of the aforesaid facts and reasons, no error has been committed by the learned Single Judge while dismissing the writ petition being W.P.(S) No.1587 of 2017 vide order dated 21st March, 2017 and we see no reason to take any other view than what is taken by the learned Single Judge. Nonetheless, we, hereby, direct the State of Jharkhand that such type of high ranking administrative post must be filled upon a regular basis, instead of adhocism or by Inchargeship. Hence, there is no substance in this Letters Patent Appeal and the same is, hereby, dismissed, with a cost of Rs.25,000/-, which will be deposited by the appellant before the 'Advocates' Association Welfare and Development Fund, Jharkhand High Court, Ranchi'. The amount shall be deposited within eight weeks from today. 8. Copy of this order will be sent by the Registry of this Court to the President and the Secretary of the Advocates' Association, Jharkhand High Court, Ranchi. 9. In view of the final order passed in the Letters Patent Appeal, I.A.No.2659 of 2017 also stands disposed of.