Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 1790 (JHR)

Raj Kumar Paswan v. State Of Jharkhand

2018-08-08

PRAMATH PATNAIK

body2018
JUDGMENT Pramath Patnaik, J. - In the captioned writ application, the petitioner has interalia prayed for direction upon respondents to reconsider the case of the petitioner for promotion on the post of Functional Project Manager by quashing the order dated 31.03.2011 being contrary to the provision of Bihar/Jharkhand Industries Service Cadre Rule, 1987 and the law laid down by the Hon''ble Apex Court. 2. The brief facts as has been disclosed in the writ application is that initially the petitioner was appointed on the post of Junior Statistical Assistant on the recommendation of Bihar Subordinate Service Selection Board by the order of the competent authority and in pursuance to such appointment, the petitioner joined in the year, 1990. In the year, 1998 the petitioner was promoted on the post of Economic Investigator which was effective from 1993. Bihar Industries Services Rule 1987 was enacted under Article 309 of the Constitution of India which regulates the conditions of appointment and promotion etc. of the Functionaries/Personnel of Industries Department in the erstwhile State of Bihar which was adopted by the State of Jharkhand in terms of provisions of Bihar Reorganization Act, 2000. It has been averred in the writ application that the respondent nos.4 and 5 have been given promotion ignoring the seniority of the petitioner to the post of Manager though their initial appointment was in the year, 1995. Being aggrieved by the supersession, the petitioner approached this Court in W.P.(S) No.5677 of 2010 for promotion on the post of Functional/Project Manager and the said writ petition was disposed of vide order dated 11.01.2011 with liberty to the petitioner to file a fresh representation before the Secretary, Industry Department, Government of Jharkhand who, on the said representation, was directed to consider the claim of the petitioner and pass appropriate order in accordance with law and in pursuance to the aforesaid order, the impugned order vide Annexure-10 to the writ petition, has been passed which has been sought to be quashed in this writ petition. Being aggrieved by the said order vide Annexure-10 to the writ petition, the petitioner left with no other alternative, has been constrained to approach this Court under Article 226 of the Constitution of India for redressal of his grievances. 3. Being aggrieved by the said order vide Annexure-10 to the writ petition, the petitioner left with no other alternative, has been constrained to approach this Court under Article 226 of the Constitution of India for redressal of his grievances. 3. Learned counsel for the petitioner has strenuously urged that the action of the respondents in considering the case of juniors to the petitioner, for promotion on the post of Functional Managers/Assistant Directors and other equivalent posts inspite of seniority of the petitioner in Schedule-IV of the Bihar Industries Services Rule, 1987 amounts to discrimination. Learned counsel for the petitioner by referring to reply of the counter-affidavit dated 01.02.2018 has submitted that the letter dated 28.07.2009 vide Annexure-5 to the writ application is in violation of relevant provision of Rule 11 and 15 of the Bihar Industries Cadre Rules, 1987 and any deviation from the statutory provisions is impermissible as per the order of this Hon''ble Court as reported in 2008(1) JLJR 154 . 4. Controverting the averments made in the writ application, a counter-affidavit has been filed by respondent nos.1 to 3. In the counter-affidavit, it has been submitted that the Departmental Committee consisting of 1. Special Secretary cum Director, Handloom, Sericulture and Handicraft 2. Director of Industries or one senior officer of the Directorate nominated by him 3. Section officers for looking after establishment section has been constituted to consider the following points (i) The objection received in context of separate seniority list of the three categories of the subordinate services as envisaged in Schedule-IV (ii) To determine the percentage of post to be fixed from the three feeder groups for promotion/appointment to the Class-II under Bihar State Industry Service Cadre Rule, 1987 and accordingly vide memo dated 07.06.2007 a Departmental Committee was constituted for giving promotion as per Schedule-IV in feeder groups being Group A, B and C and further they determined the percentage of promotion which was to be given to feeder groups in different categories based on sanctioned strength as per Annexure-B to the Counter-affidavit. It has further been submitted that the Committee submitted a report which was subsequently notified by notification dated 28.07.2009 by which the number of posts for promotion for each group on the basis of cadre strength against total available promotional posts of 29 was classified and the committee has adopted a formula which is based on equity and fair play without harming the interest of any groups:- No. of sanctioned strength of each cadre X 100 Total of Sanctioned strength of three cadre Sl. No. Name of the Cadre Percentage fixed for promotion Available Posts 1. 2 3 4 1. Pilot Project Officer & Technical Officer 38 X100 = 24.35% 156 24.35 X 29 =7 100 2. Industry Extension Officers 90 X100 =57.69% 156 57.69 X 29 =17 100 3. Economic Investigator 28 X100 =17.96% 156 17.96 X 29 =5 100 Thus for group A, Pilot Project Officer and Technical Officer, 24.35% or 7 posts were earmarked against cadre strength of 38; for group B, Industries Extension officers 57.69% or 17 posts against cadre strength of 90 and for group C, Economic Investigator, 17.96% or 5 posts against their cadre strength of 28 were made available. Therefore, it is only logical and reasonable solution for total 29 posts to be filled from three cadres, having different sanctioned cadre strength drawn from three different separate feeder groups which shall be taken together comes to total strength of 156. The formula extends equal opportunity of mathematical exactitude to each member of all the three cadres. So the logic is absolutely rational and there is no arbitrariness in it. The formula is in conformity with rules for promotion and it only fills the gap. It would be relevant that the committee while deciding the strength of each cadre has relied upon the letter circulated by State Advisory Committee for division of cadre between the two succeeding states. The letter as annexed reflects the sanctioned strength of three different feeder groups as reflected in Schedule-IV of Rule-11 (c) being Group A, B and C. Group-A Pilot Project Officer/Technical Officer 38 Nos. Group-B Industry Extension Officer 90 Nos. Group-C Economic Investigator 28 Nos. 5. The department sought roster clearance from the Department of Personnel Administrative Reforms and Rajbhasa Jharkhand Ranchi for three feeder groups as instructed by D.O.P.T which was approved as follows: Sl. No. Name of Cadre Total Posts SC ST Un- Reserved 1. Group-B Industry Extension Officer 90 Nos. Group-C Economic Investigator 28 Nos. 5. The department sought roster clearance from the Department of Personnel Administrative Reforms and Rajbhasa Jharkhand Ranchi for three feeder groups as instructed by D.O.P.T which was approved as follows: Sl. No. Name of Cadre Total Posts SC ST Un- Reserved 1. Pilot Project officer and Technical Officer 07 01 Post Roster Serial-06 01 Post Roster Serial-02 05 Post Roster Serial-1, 3, 4, 5, 7 2. Industry Extension Officer 17 02 Post Roster Serial6,16 04 Post Roster Serial2,8,10,14 11 Post Roster Serial-1, 3, 4, 5, 7, 9, 11, 12, 13, 15 3. Economic Investigator Officer 05 & 01 Post Roster Serial-02 04 Post Roster Serial-1, 3, 4, 5 The D.P.C (Departmental Promotion Committee) was constituted to consider the process of promotion in the light of rules as provided by Bihar/Jharkhand Industries Service Rule-1987. The DPC made its recommendation for promotion and it was notified by department notification. The said promotion was given in consultation with Jharkhand Public Service Commission. 6. Learned counsel for the respondent-State apart from reiterating the submissions made in the counter-affidavit has submitted that no junior to the petitioner has been promoted and the promotion given to the respondent nos.4 & 5 has been issued in the light of recommendation of the D.P.C, by following the rules of Bihar/Jharkhand Industry Service Rule-1987. 7. A counter-affidavit has been filed on behalf of the respondent no.5 wherein it has been submitted that the respondent authorities have rightly arrived at the reasonable and valid decision by fixing the quota for different group of posts as listed in Schedule-IV of the Bihar/Jharkhand Industries Service Rules, 1987 and it is evident from the quota fixed by the respondent authorities that the ratio has been arrived at a very reasonable, equitable and in a fair manner by allotting the quota to each group and the fixation of quota by the respondent in supplementing the rules, since rule was silent and by fixing the quota does not amount to supplementing the rules. It has further been submitted that the decision cited by the petitioner as reported in 2008 (1) JLJR 154 is of no help to the petitioner. It has further been submitted that the decision cited by the petitioner as reported in 2008 (1) JLJR 154 is of no help to the petitioner. It has been submitted that similar issue arose for consideration of the Hon''ble High Court of Patna in CWJC No.4959 of 2002 and analogues matters and the said issue has been dealt at Paragraph 13 and 14 of the order of the Hon''ble Patna High Court as reported in the case of Mahesh Jha, Indu Bhushan Singh & Others And Arun Kumar Pathak Vs. The State of Bihar And Ors , (2007) 3 BLJR 2136 . During course of hearing, learned counsel for the respondent no.5 has referred to decision reported in ( Bihar State Subordinate Industries Field Officers Association Vs. Kapildeo Prasad Singh and Ors , (2000) AIR SC 2042) wherein the Hon''ble Apex Court in paragraph-18 has taken note of the quota fixed by the State for promotion from Groups A, B and C. 8. After hearing the learned counsel for the respective parties and having bestowed my anxious consideration to the rivalized submissions and on perusal of the documents on records, I am of the considered view that the petitioner has failed to make out a case for interference due to the following facts, reasons and judicial pronouncements:- (I) Admittedly, there are three feeder groups namely (i) Pilot Project Officer/Technical Officer (ii) Industry Extension Officer and (iii) Economic Investigator, the petitioner belongs to the third category. The promotion to the post of Functional Project Manager is governed and regulated by Bihar/Jharkhand Industry Service Rule-1987. The Departmental Promotion Committed which was constituted to consider the process of promotion in consonance with the said Rule and the recommendation of the DPC as has been notified by the department notification, the promotion has been given in consultation with Jharkhand Public Service Commission. So far as promotion of respondent nos.4 and 5 are concerned, they belong to different feeder group and no junior to the petitioner in his feeder group has been promoted. Apparently, the petitioner does not have any cause of action to stake his claim for promotion in absence of any violation of criteria for promotion, rule or any supersession by any junior in the feeder cadre. Apparently, the petitioner does not have any cause of action to stake his claim for promotion in absence of any violation of criteria for promotion, rule or any supersession by any junior in the feeder cadre. (II) In that view of the matter, the prayer of the petitioner appears to be thoroughly misconceived so far as challenge of the petitioner to the different quotas in the feeder groups are concerned. The same issue has been dealt with by the Hon''ble Patna High Court as reported in the case of Mahesh Jha, Indu Bhushan Singh & Others And Arun Kumar Pathak Vs. State of Bihar And Ors , (2007) 3 BLJR 2136 . It would also be relevant to mention that in a decision in ( Bihar State Subordinate Industries Field Officers Association Vs. Kapildeo Prasad Singh and Ors , (2000) AIR SC 2042), the Hon''ble Apex Court was cognizant of the quotas fixed by the State for promotion on the post of Groups A, B and C. Moreover, as disclosed from the counter affidavit, the Departmental Committee consisting of high ranking officers was constituted to determine the percentage of the posts to be fixed from the three feeder groups for promotion to Class-II under Bihar State Industry Service Cadre Rule, 1987. Accordingly, the formula was adopted by the Committee being based on equity, fair play and without any detriment to the interest of any groups. 9. In view of the reasons stated in the foregoing paragraphs, this Court is not inclined to accede to the prayer of the petitioner. Resultantly, the writ petition is dismissed being devoid of any merit.