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Jharkhand High Court · body

2017 DIGILAW 713 (JHR)

Harihar Prasad Sinha v. State of Jharkhand

2017-04-19

ANANDA SEN

body2017
ORDER : The petitioner, in this writ application, has prayed for quashing the office order dated 10.08.2000 (Annexure-1), by which the proposal of the first time bound promotion of the petitioner has been annulled. Further prayer has been made to pay the arrears of the salary on such promotion after adjusting the amount already paid. 2. The instant writ application was filed by one Harihar Prasad Sinha, who died during pendency of this writ application. On his death, the wife of the deceased, Smt. Shakuntala Devi was substituted vide order dated 15.06.2016. 3. The original writ petitioner was appointed in the work charge establishment on 01.09.1969 as a Clerk and was taken in the regular establishment vide letter dated 08.03.1989. The original writ petitioner was granted the first time bound promotion w.e.f. 13.01.1987 after attaining 50 years. The petitioner was put under suspension and there was criminal and departmental proceeding initiated against the petitioner. An order was passed by the Deputy Commissioner, Gumla on 29.11.1999, whereby it was decided that the benefit of 1st time bound promotion given w.e.f. 13.01.1987, will be given effect and all the retiral benefits will be calculated on the basis of this promotion, revising the pay scale of the petitioner and the will be sent to the District Account Office for verification and there after the pension papers will be prepared and sent to A.G. Bihar for final sanction of the pension. But all the payments will be made only after obtaining an indemnity bond from Harihar Prasad Sinha. On 10.08.2000, the impugned order was passed whereby the provisional time bound promotion, granted to the petitioner, has not confirmed on the ground that the petitioner has not passed the Departmental Accounts Examination. This impugned order has been challenged by the petitioner. 4. The State appeared and filed their counter affidavit and has stated that the petitioner had appeared in the departmental examination in the year 1985 for the first time and passed the first and second primary level examination. In para8, it has been stated that after passing the preliminary level examination, the petitioner has not passed the final level examination. It has also been submitted that there is nothing on record to show that the petitioner had appeared for the final examination for five consecutive time before he attend the age of 50 years. In para8, it has been stated that after passing the preliminary level examination, the petitioner has not passed the final level examination. It has also been submitted that there is nothing on record to show that the petitioner had appeared for the final examination for five consecutive time before he attend the age of 50 years. It has also been stated that there is nothing on record also to suggest that the petitioner had tried to appear in the departmental examination continuously but was unsuccessful. It is pleaded that it is not mandatory to exempt an employee from the departmental examination after attaining the age of 50 years. It is submitted that the exemption is governed by the circular dated 15.05.1992 contained in memo no. 3/R 1101/91 Ka 4674 and the petitioner was not exempted from passing the examination. It has been mentioned that since the case of the petitioner did not fall for consideration, the impugned order has correctly been passed. 5. I have heard learned counsel appearing for the parties and have gone through the entire records. Admittedly, the petitioner was granted first time bound promotion provisionally, which was withdrawn by the impugned order, as he had not passed the necessary departmental examination. It is also admitted that the petitioner did not pass the final Accounts Examination. 6. The Scheme of time bound promotion (as it then was) was governed by the resolution of the Finance Department contained in memo no. 3/PRC 3/81/F10770 dated 30th December 1991. This was in terms of the recommendation of 4th Pay Revision Commission. Clause11 of the said resolution provides for time bound promotion. Clause11 (i) envisage the grant of at least two time bound promotion to a government employee, first by the end of 10 years of service and the second by the end of 25 years of service. Clause11 (ii) provides that if an employee, otherwise fit for promotion and has not been able to get a single promotion by 10 years of service, he should be promoted to the junior selection grade at the end of the tenth year. Thus, from the aforesaid provisions, it is quite clear that to get first time bound promotion an employee should be otherwise fit for promotion. A person, who passes the departmental examination, is only fit to be considered for promotion. Thus, from the aforesaid provisions, it is quite clear that to get first time bound promotion an employee should be otherwise fit for promotion. A person, who passes the departmental examination, is only fit to be considered for promotion. Thus, as per Clause11 (ii) of the resolution the employee have to pass the departmental examination. 7. In this case, admittedly, the employee did not pass the final departmental examination. There is a resolution of 15.05.1992, which exempts an employee from passing the departmental examination for the purpose of grant of promotion. It provides that if a person attains the age of 50 years, he may be exempted by an express order from appearing in the departmental examination. It is also mentioned in the said resolution that exemption will be effective from the date, the order has been issued. It further provides that exemption would be given to only those persons, who, in spite of their efforts, cannot pass the examination or because of some official reasons could not take part in the examination or no examination was held 5 years prior to his attainment of 50 years. 8. The petitioner pleaded that since he was put under suspension from June, 1986 to November, 1990, he could not appear in the said examination. This ground of the petitioner cannot be accepted as because the resolution provides that the petitioner has to be exempted by an express order from appearing in the departmental examination. In the instant case, there is no express order exempting the petitioner from appearing in the departmental examination. Further, the claim of the petitioner that he was under suspension and could not appear in the said examination, cannot be a ground which is envisaged in the resolution for granting exemption. Admittedly, the writ petitioner has not passed the departmental examination and admittedly as per the resolution only those employees, who are otherwise fit to be promoted and have not been promoted in normal course, are entitled to get the benefit of time bound promotion. Admittedly, passing departmental examination is a criteria for promotion in normal course, which the petitioner lacked. 9. In this case since admittedly, the petitioner has not passed the departmental examination, he was not found fit to be promoted in normal course. Thus, he was also not entitled to be given time bound promotion. 10. Admittedly, passing departmental examination is a criteria for promotion in normal course, which the petitioner lacked. 9. In this case since admittedly, the petitioner has not passed the departmental examination, he was not found fit to be promoted in normal course. Thus, he was also not entitled to be given time bound promotion. 10. Thus, I find no illegality in the impugned order, which needs no interference. Accordingly, this writ application is dismissed.