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2018 DIGILAW 1801 (JHR)

Dharma Nath Thakur v. State of Jharkhand

2018-08-09

PRAMATH PATNAIK

body2018
ORDER : 1. Heard Mr. Abhijeet Kumar Singh, learned counsel for the petitioner as well as Mr. D.K. Dubey learned, Sr. S.C. I, appearing for the respondent-State. 2. In the accompanied writ application, the petitioner has, inter alia, prayed for direction upon the respondent for grant of promotion to the post of Assistant Sub-Inspector. Excise with effect from 20.06.2007, the date on which juniors of the petitioner has been promoted, since the petitioner fulfils eligibility criteria. 3. Shorn of unnecessary details, the facts, as has been delineated in the writ application, is that the petitioner was initially appointed on the post of Constable after due process of selection. It has been averred that the final Gradation list has been prepared and persons up to Serial No. 198 of the said Gradation list have been given promotion. It has been averred in the writ application that subsequent to the representation by the petitioner, the position of the petitioner has been corrected vide letter dated 24.01.2008 and in pursuance to the correct/rectified position in the seniority list, the petitioner submitted representation vide Annexdure-4 to the writ application to consider his case for promotion. Due to inaction on the part of the respondents in considering the case of the petitioner for promotion to the post of the Assistant Sub- Inspector. Excise, the petitioner has been constrained to approach this Court for redressal of his grievances under Article 226 of the Constitution of India. 4. Learned counsel for the petitioner submits that the criteria of promotion to the post of Assistant Sub-Inspector of Excise is based on seniority, minimum qualification of passing Matriculation, passing of training from Constable Training School and maximum age of the candidate should be not more than 50 years. Learned counsel further submits that in view of the rectified seniority position, the case of the petitioner out to have been considered by the respondents, since the petitioner comes within the zone, of consideration for promotion to the aforesaid post. 5. A detailed counter-affidavit has been filed by the respondents, wherein, it has been submitted that for the first time in the State of Jharkhand, a Provisional Gradation List of Excise Constable was published by the Department of Excise and Prohibition vide Memo dated 04.03.2006 and on such basis his position was kept at Serial No. 289. 5. A detailed counter-affidavit has been filed by the respondents, wherein, it has been submitted that for the first time in the State of Jharkhand, a Provisional Gradation List of Excise Constable was published by the Department of Excise and Prohibition vide Memo dated 04.03.2006 and on such basis his position was kept at Serial No. 289. As per the conditions enshrined in the said provisional list, it was clearly mentioned that no consideration would be made at those objections, which would be found after 31.03.2006 and since no objection was submitted by the petitioner regarding his position in the provisional Gradation list, final gradation list was published by the department vide memo dated 2.12.2006 and the name and position of the petitioner has been left untouched. It has further been submitted that the Department Promotion Committee upon consideration of candidature of all eligible constables for promotion to the post of Assistant Sub-Inspector, Excise, up to serial No. "198 have been given promotion to the post of the Sub-Inspector vide order dated 21.06.2007 (Annexure-B to the counter-affidavit. It has further been submitted that the Department of Excise & Prohibition made necessary correction in the Gradation list on receiving the application filed by the petitioner with sufficient proof, relating to the joining date. Thereafter, the position of the petitioner has been corrected from serial Nos. 176 to 289 in the Gradation list. It has further been submitted that some of the senior Constables, having crossed the age of 50 years, approached this Court in W.P. (S) No. 4383 of 2007 (Tara Pratap Ram and others v. State of Jharkhand and others) and the said writ petition was disposed of with direction to the respondents to consider the case of the petitioner in that writ application for promotion to the post of A.S.I. after granting relaxation of the upper age limit. Thereafter, in pursuance to the direction of this Hon’ble Court in the aforesaid case, grievances of the petitioners were considered, as evident from Annexure-C to the counter-affidavit. It has further been submitted that the petitioner's seniority is at serial No. 176 and whenever the turn of the petitioner comes, his case shall be considered. 6. Learned counsel for the respondent-State reiterating the submissions made in the counter-affidavit, has assiduously submitted that nobody has got a right of promotion, but everybody has a right to be, considered for promotion. 7. 6. Learned counsel for the respondent-State reiterating the submissions made in the counter-affidavit, has assiduously submitted that nobody has got a right of promotion, but everybody has a right to be, considered for promotion. 7. After having bestowed my anxious consideration to the rivalized submissions and on perusal of the records. I am of the considered view, that in spite of seniority and due to wrong placement in the Gradation list, the case of the petitioner has been overlooked, though junior to the petitioner has been considered for promotion to the post of Assistant Sub-Inspector of Excise. Therefore, in the fitness of things, it would be apt to direct the respondents to consider the case of the petitioner for notional promotion from the date, junior to the petitioners have been given promotion. 8. In that view of the matter, the writ petition is disposed of with direction to the respondents that if the petitioner comes within the zone of consideration, then consider the case of the petitioner for notional promotion to the post of Assistant Sub-Inspector of Excise from the date, the juniors/similarly placed constables have been given promotion, as mentioned in Annexure-B to the counter-affidavit, in accordance with the relevant Rules and conditions and the above exercise be completed within a reasonable period and preferably within a period of three months from the date of receipt/communication of the order. 9. With the aforesaid direction, the writ petition stands disposed of. Petition disposed of.