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2017 DIGILAW 1819 (JHR)

Mahendra Paswan v. State Of Jharkhand

2017-10-30

S.N.PATHAK

body2017
ORDER S.N. Pathak, J. - The petitioners have approached this court with a prayer for quashing the notification as contained in memo no. 4601/ Ranchi, dated 22.11.2010 issued by Under Secretary, Department of Water Resources, Government of Jharkhand, whereby promotion granted to petitioner and several others by the State of Bihar, Department of Water Resources, with effect from 01.01.1998 vide notification no. 2525, dated 17.06.05, issued by Deputy Secretary, Department of Water Resources, Government of Bihar, has been canceled. Factual Matrix: 2. The petitioners were appointed as Junior Engineers, Water Resources Department in Government of Bihar. It has been stated that the petitioners having unblemished service record have been considered and granted promotions in the year 1998 much before the bifurcation of the State of Jharkhand from the erstwhile State of Bihar but the final allocation of the cadre of the staff of Water Resources Department took place between Jharkhand and Bihar in the month of October, 2004 and the petitioners were allocated Jharkhand Cadre. 3. It has been further stated that Government of Bihar, Department of Water Resources vide notification no. 654/Patna, dated 25.01.2002, promoted altogether 63 Diploma holder Junior Engineer (Civil), independent charge and posted with effect from 25.01.2002 and the copy of said notification has also been sent to Secretary, Water Resources Department, Government of Jharkhand with a request to post all such diploma holder Junior Engineers as all such 19 as Assistant Engineer (Civil) as Independent charge, who are presently posted in the State of Jharkhand. The Department of Water Resources, Government of Jharkhand vide its notification no. 2286, dated 20-05-02, have given independent current charge and posted the petitioners and several other Diploma Holder Junior Engineers (Civil) as Assistant Engineer (civil) in their own pay scale. The petitioners along with other Junior Engineers were considered for promotion to the post of Assistant Engineer with effect from 01.01.1998 vide notification no. 2525/Patna, dated 17.06.05 issued by Water Resources Department, Government of Bihar. The counterpart of the petitioners in Water Resources Department, Government of Bihar were all granted promotion to Junior Engineers and monetary benefits were granted with effect from 01.01.1998. 4. It is specific case of the petitioners that though the promotions were granted legally by the State of Bihar, the State of Jharkhand cancelled the said promotion vide notification no. The counterpart of the petitioners in Water Resources Department, Government of Bihar were all granted promotion to Junior Engineers and monetary benefits were granted with effect from 01.01.1998. 4. It is specific case of the petitioners that though the promotions were granted legally by the State of Bihar, the State of Jharkhand cancelled the said promotion vide notification no. 4601/Ranchi dated 22.11.2010 issued by Water Resources Department, Government of Jharkhand and the names of petitioners find place in chart. The petitioners represented before the authorities regarding the cancellation of the order of promotion but no heed was paid to the representation and hence this writ petition has been preferred. 5. Mr. Birendra Kumar, learned counsel for the petitioners emphatically argues that petitioners are legitimately entitled to the same treatment like his counter part in the state of Bihar after bifurcation of the State. There is no illegality in the impugned order and the petitioners were rightly considered for promotion along with other similarly situated persons even the Assistant Engineers posted in the state of Bihar have been granted monetary benefits from 01.01.1998, the date on which the promotion was given effect to the similarly situated persons. Learned counsel further submits that taking into consideration Section 72 and 73 of the Bihar Reorganisation Act, 2000, persons serving in connection with the affairs of the Union or the State provides that the conditions of service applicable immediately before the appointed date in the case of any person deemed to have been allocated to the State of Jharkhand under section 72 shall not be varied to his disadvantage and as such taking into consideration the aforesaid settled rules the promotions of the petitioners are fully justified and the cancellation order is not tenable in the eyes of law. Learned counsel further argues that even assuming that the promotion was illegally granted, the provisions of natural justice was not followed in cancellation of the promotion order and as such on this score also the order of cancellation is illegal in the eye of law. 6. Per contra, counter-affidavit has been filed. Mrs. Richa Sanchita, S.C. V argues that there is no illegality in the impugned order, after the cadre division and after bifurcation of the state of Bihar it has no jurisdiction to issue order of promotion to the persons working in the jurisdiction of State of Jharkhand. 6. Per contra, counter-affidavit has been filed. Mrs. Richa Sanchita, S.C. V argues that there is no illegality in the impugned order, after the cadre division and after bifurcation of the state of Bihar it has no jurisdiction to issue order of promotion to the persons working in the jurisdiction of State of Jharkhand. For all purposes the services of the petitioners were allocated to the state of Jharkhand. State of Jharkhand was the only competent authority to consider the promotion of the petitioners and wrongly it was considered and granted by erstwhile State of Bihar which is against the provisions of Reorganisation Act. Learned counsel argues that section 72 and 73 is not attracted in the case of petitioners and as such the impugned order is fully justified. 7. Be that as it may having gone through the rival submissions of the parties, this court is of the considered view that the impugned order has been issued without following the cardinal principles of natural justice. Rightly after the bifurcation, the state of Bihar has no jurisdiction to consider and pass orders for promotion but to the promotion which was already granted w.e.f 1998 and the petitioners continued working on the said post for five long years, it was requirement of the service conditions that at least a show cause has to be issued to the petitioners so that they could have justified the promotion order. As no show cause was issued and the provisions of natural justice was given a complete go by, the order as contained in memo no. 4601/ Ranchi, dated 22.11.2010 is not sustainable in the eyes of law and as such is hereby quashed and set aside. However since the order of promotion was without jurisdiction the matter is remanded to the respondents-authorities to consider the case of petitioners for promotion in accordance with law. 4601/ Ranchi, dated 22.11.2010 is not sustainable in the eyes of law and as such is hereby quashed and set aside. However since the order of promotion was without jurisdiction the matter is remanded to the respondents-authorities to consider the case of petitioners for promotion in accordance with law. In view of the fact that already a press release was issued (Annexure-A) to the counter affidavit dated 01.03.2011) for consideration of those persons who were granted promotion by the State of Bihar and in view of the candid submission of the counsel for the respondents that already a process has been initiated for considering the case of petitioners for granting promotion to the post of Assistant Engineer, I hereby direct the respondents to constitute a D.P.C., giving special consideration to these persons in view of the press release and consider their case for promotion in accordance with law. 8. The entire exercise should be completed within a period of 6 weeks from the date of receipt of a copy of this order. 9. Let it be made clear that consideration of promotion of other persons and holding of D.P.C. for other persons will not come in way of consideration of promotion of the petitioners. 10. With the aforesaid observations writ petition stands allowed.