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2017 DIGILAW 2162 (JHR)

Anirudh Prasad Mandal v. State of Jharkhand through Secretary

2017-12-15

S.N.PATHAK

body2017
ORDER : Heard learned counsel for the parties. 2. Petitioner has 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 1.1.1998 vide notification no. 2525, dated 17.6.05, issued by Deputy Secretary, Department of Water Resources, Government of Bihar, has been canceled. Petitioner has further prayed for quashing the consequential orders as contained in memo no. 79/A, dated 8.1.2011, issued by the Finance Department under the signature of Under Secretary as well as letter no. 5527, dated 19.11.2011, issued under the signature of Joint Secretary, Water Resources Department, Government of Jharkhand by which monetary benefits granted after promotion has been stopped. Petitioner has also prayed for a direction upon the respondents not to act upon the notification dated 22.11.2010 and allow the petitioner benefits of promotion with effect from 1.1.1998 as promotion was due before bifurcation of erstwhile State of Bihar. Petitioner has further prayed for release of arrears of salary for the period from July, 2011 to till date. 3. Brief facts of the case as has been delineated in the writ petition is that petitioner has an unblemished service record and his promotion was due in the year 1998. After bifurcation of State, final cadre allocation of staff of Water Resources Department took place, in the month of October, 2004 and petitioner was allocated the State of Jharkhand cadre. The Government of Bihar, Department of Water Resources, vide notification no. 654/Patna, dated 25.1.2002, promoted altogether 63 Diploma Holder, Junior Engineer (Civil), independent charge and posted with effect from 25.1.2002 and copy of said notification has also been sent to the Secretary, Water Resources Department, Government of Jharkhand with a direction to post all such Diploma Holders. Junior Engineers as Assistant Engineer (Civil) as independent charge. Thereafter, vide Notification No. 2286, dated 20.5.2002, the Joint Secretary. Water Resources Department, Government of Jharkhand gave independent current charge and posted the petitioners and several other Diploma Holder Junior Engineers (Civil) as Assistant Engineers (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 1.1.1998 vide notification no. Water Resources Department, Government of Jharkhand gave independent current charge and posted the petitioners and several other Diploma Holder Junior Engineers (Civil) as Assistant Engineers (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 1.1.1998 vide notification no. 2525/Patna, dated 17.6.05, issued by Water Resources Department, Government of Bihar. The counterpart of the petitioners in Water Resources Department, Government of Bihar were all granted promotion and monetary benefits were granted with effect from 1.1.1998. 4. It is specific case of the petitioner that though the promotion was granted legally by the State of Bihar, the State of Jharkhand canceled the said promotion vide notification no. 4601/Ranchi dated 22.11.2010 issued by Water Resources Department, Government of Jharkhand and the name of petitioner and others find place in that chart. The petitioner represented before the authorities regarding cancellation of 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 petitioner emphatically argues that petitioner is legitimately entitled to the same treatment like his counterpart in the State of Bihar after bifurcation of the State. There is no illegality in the order of promotion and the petitioner was 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 1.1.1998, the date on which the promotion was given effect to the similarly situated persons. Learned counsel further submits that taking into consideration Sections 72 and 73 of the Bihar Reorganization Act, 2000, which 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 disadvantages and as such taking into consideration the aforesaid settled rules, promotions of the petitioners are fully justified and cancellation order is not tenable in the eyes of law. Learned counsel further argues that even assuming that promotion was illegally granted, the provisions of principles of natural justice has not been followed in cancellation of promotion order and as such on this score also the order of cancellation is illegal in , the eye of law. 6. Learned counsel further argues that even assuming that promotion was illegally granted, the provisions of principles of natural justice has not been followed in cancellation of promotion order and as such on this score also the order of cancellation is illegal in , the eye of law. 6. Learned counsel further draws attention of this Court towards Order dated 7.9.2017, passed by this Court in W.P.(S) No. 1009 of 2011 and order dated 30.10.2017, passed in W.P.(S) No. 4513 of 2012 and argues that since impugned order as contained in memo no. 4601/Ranchi, dated 22.11.2010 issued by Under Secretary, Department of Water Resources, Government of Jharkhand has already been quashed and as such, petitioner may be given liberty to represent before respondents and on consideration of the same, respondents may be directed to pass reasoned order within a stipulated period. 7. Counter-affidavit has not been filed by the respondents. 8. Mr. Abhijeet Kumar Singh, JC to learned GP-V fairly submits that this writ petition may be disposed of in view of Orders passed in the abovementioned case of similarly situated persons and if petitioner files representation before the authority concerned appropriate order shall be passed accordingly. 9. Be that as it may having gone through 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 and the same has already been quashed, as mentioned hereinabove. After bifurcation, the State of Bihar has no jurisdiction to consider and pass orders for promotion but the promotion which has already been granted with effect from the year 1998 and the petitioner continued working on the said post for long years, it is requirement of the service conditions that at least a show cause has to be issued to the concerned person so that he 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 has already been held not sustainable in the eyes of law and as such was quashed and set aside in writ petition filed by similarly situated persons. 10. In the circumstances, since memo no. 4601/Ranchi, dated 22.11.2010 has already been held not sustainable in the eyes of law and as such was quashed and set aside in writ petition filed by similarly situated persons. 10. In the circumstances, since memo no. 4601/Ranchi, dated 22.11.2010 issued by Under Secretary, Department of Water Resources, Government of Jharkhand has already been quashed in earlier writ petition, this writ petition is also being disposed of in light of Order dated 7.9.2017, passed by this Court in W.P.(S) No. 1009 of 2011 and similar other cases and petitioner is given liberty to file representation before the concerned respondents. If petitioner files such representation within a period of eight weeks from, today, the respondents-authorities shall consider case of petitioner for promotion in accordance with law within a period of six weeks from the date of receipt of such representation. In view of candid submission of counsel for the respondents that a process has already been initiated for considering case of petitioner and others for granting promotion to the post of Assistant Engineer, I hereby direct the respondents to constitute a D.P.C., giving special consideration to petitioner and such other persons in view of said press release and consider case of the petitioner for promotion in accordance with law. 11. 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 petitioner. Needless to say if petitioner is found entitled for consideration of his case for promotion, the same may be, considered and order to that effect may be passed within a further period of three weeks. 12. With the aforesaid observations writ petition stands allowed.