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2017 DIGILAW 2180 (JHR)

Dipak Kumar Banerjee v. State of Jharkhand

2017-12-18

PRAMATH PATNAIK

body2017
ORDER : In the instant writ petition the petitioner has prayed for quashing the impugned order dated 8.2.2003 (Annexure-1) whereby the respondent No.2 has abdicated its power for deciding the case of the petitioner. The petitioner has further prayed for issuance of a writ of certiorari for quashing the order dated 18.3.2003 issued by respondent No.6, whereby the case of the petitioner for promotion to the next higher post of Superintending Engineer has been rejected. The petitioner has further prayed for grant of notional promotion to the said post w.e.f. 1.4.1997 since the junior were promoted to the said post along with all consequential benefits. 2. The brief facts, as disclosed in the writ petition, are that initially the petitioner was appointed as an Assistant Engineer in the year 1965. After rendering about 15 years of service, vide Notification dated 19.10.1985 issued by the Special Secretary, Water Resources Department, Patna, the petitioner was promoted to the post of Executive Engineer on regular basis w.e.f. 1.4.1982 and vide Notification dated 19.9.1986 issued by the Joint Secretary. Water Resources Department, the petitioner was confirmed against the said post w.e.f. 1.4.1985. While continuing in services, two departmental proceedings were initiated against the petitioner and in the departmental proceedings the petitioner was found guilty and charges were levelled with respect to the period 1988-89. In the first departmental proceedings the punishment order with punishment of censure to be recorded in the year 1989-90 and stoppage of promotion for 7 years and in the second departmental proceeding, stoppage of promotion for 5 years from the due date. The aforesaid punishment orders were passed on 16.9.1997 and 24.2.1999. The petitioner retired on attaining the age of superannuation on 31.12.2000. During continuance of departmental proceedings, juniors to the petitioner were given promotion to the post of Superintending Engineer. 3. Being aggrieved by the impugned order, the petitioner preferred writ application being CWJC No. 4262 of 2000, wherein vide order dated 20.11.2002, this Court has been pleased to direct the respondents to consider the case of the petitioner for promotion by passing a reasoned order. In pursuance of the aforesaid direction by this Court, the orders dated 8.2.2003 and 18.3.2003 (vide Annexures-1 and 2) have been passed, which are impugned in this writ petition. 4. In pursuance of the aforesaid direction by this Court, the orders dated 8.2.2003 and 18.3.2003 (vide Annexures-1 and 2) have been passed, which are impugned in this writ petition. 4. Being aggrieved by Annexures-1 and 2, the petitioner preferred the instant writ petition and vide order dated 7.11.2003, this Court has been pleased to dismiss the said writ petition. Being aggrieved by the aforesaid order of this Court, the petitioner preferred LPA No. 836 of 2003 and vide order dated 14.7.2016, the aforesaid appeal has been allowed and the matter has been remitted for deciding the matter afresh on merit. 5. Learned senior counsel for the petitioner has vehemently submitted that the impugned orders are not sustainable since the order vide Annexure-2 to the writ petition has been passed by the State of Bihar and the State of Bihar has no jurisdiction to pass any order in view of Sections 72 and 74 of the Bihar Reorganization Act, 2000. 6. In order to buttress his submission, learned counsel for the petitioner has referred to the decision of this Court in the case of State of Bihar v. Arvind Vijay Bilung and another, reported in 2002 (1) JCR 401 (Jhr) : 2002 (1) PLJR 697. Learned counsel for the petitioner has further submitted that the petitioner has been regularized on the post of Executive Engineer on 1.4.1982 and on completion of eight years of service, he was eligible to be considered for promotion to the post of Superintending Engineer. Learned counsel for the petitioner has further submitted that the case of the petitioner ought to have been considered by the respondents in the year 1997 till the date of his retirement, but the State of Jharkhand by abdicating their responsibility has referred the matter to the State of Bihar, which in their turn, has passed the impugned order (Annexure-2), which is without jurisdiction. 7. During pendency of the writ petition, the respondent No. 8 has been impleaded as party and a counter-affidavit has been filed on behalf of respondent No.8. 8. Controverting the averment made in the writ petition, a counter-affidavit has been filed by the State of Jharkhand, wherein it has been, inter alia, submitted that the promotion in any cadre against any higher post is considered against the vacancy of the said higher post on date. 8. Controverting the averment made in the writ petition, a counter-affidavit has been filed by the State of Jharkhand, wherein it has been, inter alia, submitted that the promotion in any cadre against any higher post is considered against the vacancy of the said higher post on date. In this matter, the next junior to the petitioner had got entitlement for promotion in all respect only on 1.2.1996. Hence considering the proposed date of entitlement for petitioner as 1.2.1996, matter of promotion was placed twice before competent authority i.e. Bihar Public Service Commission, while he was in service, which was remarked as "pending" and "non-considerable" during respective meeting dated 9.6.1998 and 10.9.1999. The same was again placed before the Bihar Public Service Commission even after superannuation of petitioner, which clearly observed that the punishment remained effective till 1.2.2003 as against the date of entitlement i.e. 1.2.1996. It has further been submitted that from the letter dated 15.11.2016, the minutes of Departmental Promotion Committee's meeting dated 3.2.2001 under the Bihar Public Service Commission discloses that the name of petitioner figures at Sl. No. 15 in which he had been found not eligible in view of punishment as is evident from Annexures-F and G series to the counter-affidavit. It has further been submitted that only on completion of Kalawadhi does not authorize an employee to get his promotion on this ground. That is why in absence of regular post for promotion, to protect the interest of an employee, the respective State Government allowed the benefit of selection grade/time bound promotion (10/15 years), which had also been enjoyed by the petitioner. This can be perused in Annexure-7 of the writ petition in which the name of petitioner figures at Sl. No. 64. It has been further submitted that on the date of entitlement 1.2.1996, the petitioner was not eligible for promotion due to adverse vigilance clearance and on completion of punishment period on 1.2.2003, he was no more in active service. In that view of the matter, the contention of the petitioner is not sustainable in the eye of law. 9. Learned counsel for the State of Jharkhand has reiterated the submission made in the counter-affidavit. In that view of the matter, the contention of the petitioner is not sustainable in the eye of law. 9. Learned counsel for the State of Jharkhand has reiterated the submission made in the counter-affidavit. Learned counsel for State has assiduously submitted that impugned orders are legally sustainable because of the fact that the case of the petitioner has been duly considered by the erstwhile State of Bihar and taking into consideration his service records and pendency of departmental proceedings, the petitioner was not entitled to be considered for promotion to the post of Superintendent Engineer. Learned counsel further submitted that the final cadre allocation in respect of engineers among the both State was not done till June, 2004 and by that time, the petitioner has retired on attaining the age of superannuation. 10. A counter-affidavit has been filed on behalf of respondent No.8, wherein respondent No. 8 has adopted the submission, as has been made by respondents No. 1 to 3. 11. A counter-affidavit has also been filed on behalf of respondent No. 5 wherein it has been submitted that the Deputy Secretary of the Water Resources Department, Jharkhand, Ranchi sent a copy of the order passed in CWJC No.4262 of 2002(R) and requested the Water Resources Department, Bihar vide letter dated 8.2.2003 to pass a reasoned order. In pursuance of the said request, the case of the petitioner has been considered by passing a reasoned order as contained in Memo dated 18.3.2003 (Annexure-2 to the writ petition). 12. Apart from the stand taken in the counter-affidavit, learned counsel for the State of Bihar has also submitted that even otherwise no infirmity can be found in the impugned order vide Annexure-2 to the writ petition. However, learned counsel does not dispute the settled proposition of law, as has been enunciated by the Division Bench of this Court in the case of State of Bihar v. Arvind Vijay Bilung and another (supra). 13. However, learned counsel does not dispute the settled proposition of law, as has been enunciated by the Division Bench of this Court in the case of State of Bihar v. Arvind Vijay Bilung and another (supra). 13. Having heard learned counsel for the respective parties at length and on perusal of the documents on records, this Court is inclined to accede to the prayer of the petitioner on the following grounds : Admittedly, the services of the petitioner has been confirmed on the post of Executive Engineer on 1.4.1982 and on completion of eight years Kalawadhi i.e. on 1.4.1990, the petitioner was eligible to be considered for promotion to the post of Superintendent Engineer, but for the pendency of the departmental proceedings, the case of the petitioner was not considered for promotion in the year 1996 when juniors to the petitioner were promoted to the post of Superintending Engineer and two departmental proceedings were culminated in the year 1997-99, wherein punishments, such as, first proceeding, stoppage of promotion for seven years and second proceeding, stoppage of promotion for five years have been inflicted on the petitioner from the date of eligibility. The period of seven years i.e. withholding of promotion for seven years lapsed in the year 1997 and. therefore the petitioner was eligible to be considered for promotion by the respondents from 1.4.1997 onwards till date of his superannuation i.e. 31.12.2000. It is nobody's case that due to non-availability of vacancy or non-promotion of the juniors to the post of Superintending Engineer the petitioner was not eligible to be considered for promotion, but the ground on which the case of the petitioner has been rejected is not legally sustainable in view of the fact that as the respondents by mis-construing the eligibility vis-a-vis the entitlement under mistaken notion has arrived at erroneous finding that the case of the petitioner could be considered after completion of seven years i.e. in the year 2003. Since the petitioner retired in the year 2000, therefore, his case could not have been considered, but the stand taken by the respondents appears to be fallacious not supported by cogent reasons, which cannot be countenanced by this Court. It is a settled position of law that the promotion is not a matter of right but a right to be considered for promotion. It is a settled position of law that the promotion is not a matter of right but a right to be considered for promotion. On this score alone the case of the petitioner deserves to be considered afresh for promotion to the post of Superintending Engineer w.e.f. 1.4.1997 till the date of his superannuation, if the petitioner comes within the zone of consideration in accordance with law. The second ground on which the impugned order is assailable is that the order. which is impugned in this writ petition vide Annexure-2, is in the teeth of Sections 72 and 74 of Bihar Reorganization Act, 2000. It would be profitable to quote the provisions of Sections 72 and 74 of the Bihar Reorganization Act, 2000 : "72. Provisions relating to services in Bihar and Jharkhand.-(1) Every person who immediately before the appointed day is serving in connection with the affairs of the existing State of Bihar shall, on and from that day provisionally continue to serve in connection with the affairs of the State of Bihar unless he is required, by general or special order of the Central Government to serve provisionally in connection with the affairs of the State of Jharkhand. Provided that no direction shall be issued under this section after the expiry of a period of one year from the appointed day. (2) As soon as may be after the appointed day, the Central Government shall, by general or special order, determine the successor State to which every person referred to in subsection (1) shall be finally allotted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect. (3) Every person who is finally allotted under the provisions of sub-section (2) to a successor State shall, if he is not already serving therein be made available for serving in the successor State from such date as may be agreed upon between the Government concerned or in default of such agreement, as may be determined by the Central Government." '74. Provisions as to continuance of officers in same post - Every person who, immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the existing State of Bihar in any area which on that day falls within any of the successor States shall continue to hold the same post or office in that successor State, and shall be deemed, on and from that day, to have been duly appointed to the post or office by the Government of, or any other appropriate authority in, that successor State.” 14. The Division Bench of this Court in paragraph 12 has been pleased to hold the decision in the case of State of Bihar v. Arvind Vijay Bilung and another, reported in 2002 (1) JCR 401 (Jhr) : 2002 (1) PLJR 697 as under : "Para 12. In such a situation and in such a background, where the State is carved out of an existing State, the co-operation between the two States becomes meaningful. If, therefore, the State of Bihar has, in its possession, any material against a Government servant who, by virtue of Section 74 of the Act, is now in the service of the State of Jharkhand and if the State of Bihar thinks that such material warrants initiation of an action against such a person, it is open to the State of Bihar to forward such material to the State of Jharkhand for such action as it considered appropriate by the State of Jharkhand. Let it be very clearly understood that only role of the erstwhile State in such a situation is merely to pass on the information or the relevant material to the State of Jharkhand and leaving the rest for the State of Jharkhand to do. Similar would be the case for the State of Jharkhand if an employee is in a place in Bihar and if the State of Jharkhand has any material in its possession which may be required to be forwarded to the State of Bihar for appropriate action against such an employee.” 15. In view of the reasons stated in the forgoing paragraphs and as a logical sequitur to the aforesaid reasons, the impugned orders dated 8.2.2003 and 18.3.2003 vide Annexures-1 and 2 to the writ petition being not legally sustainable are hereby quashed and the respondents, more particularly respondent Nos. In view of the reasons stated in the forgoing paragraphs and as a logical sequitur to the aforesaid reasons, the impugned orders dated 8.2.2003 and 18.3.2003 vide Annexures-1 and 2 to the writ petition being not legally sustainable are hereby quashed and the respondents, more particularly respondent Nos. 1 to 3 are directed to consider the case of the petitioner for promotion to the post of Superintending Engineer during the period from 1.4.1997 till 31.12.2000 and pass appropriate order in accordance with the relevant provisions, if the petitioner comes within the zone of consideration, within a period of six months from the date of receipt/production of a copy of this order. 16. This writ petition stands allowed. Petition allowed.