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Jharkhand High Court · body

2018 DIGILAW 2099 (JHR)

Sahdeo Kerketta Son of Late Budhua Kerketta v. National Institute of Foundry & Forge Technology, through its Chairman, Board of Governor, Hatia, Ranchi

2018-09-19

PRAMATH PATNAIK

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ORDER : PER PRAMATH PATNAIK, J. 1. In the instant writ application, the petitioner has inter alia prayed for quashing office order dated 26.06.2009 whereby case of the petitioner for his retrospective promotion on the ground of suppression has been rejected; and for direction upon the respondents to reconsider the case of the petitioner for promotion on the equivalent posts and pay retrospectively on and from the date when his junior, namely, Sri Bhagwati Prasad-respondent no. 4 was promoted. 2. The facts, which are necessary for adjudication of the instant writ application, in brief is that petitioner was initially appointed as Lower Division Clerk on 29.05.1971 and after qualifying written test held on 18.12.1972 promoted on the post of U.D.C w.e.f 01.01.1973 vide office order dated 30.12.1972 and thereafter was appointed on the post of ‘Office Superintendent’ w.e.f 13.10.1976 vide office order dated 19/25.10.1976. It has been averred that there was no definite promotion policy in NIFFT for a long time, against which the employees’ Association submitted charter of demand to the Management and after considering the demand a settlement was arrived at in course of conciliation proceeding held on 15.04.1978 between the representatives of the Management of NIFFT and the NIFFT employees Association in presence of the then Assistant Labour Commissioner, Ranchi. In pursuance to the said settlement dated 15.04.1978, the case of the petitioner including others were considered and they were promoted on the post of Superintendent vide office order dated 25.04.1978. But, all of a sudden, the respondents-authorities vide order dated 10th November, 1978 rescinded office order dated 25.04.1978 reverting the members and staffs including the petitioner to their respective substantive posts held by them prior to issuance of promotion order dated 25.04.1978. Against that the employees went on strike, which entailed the intervention of Chairman of Institute and by way of settlement arrived at on 05.09.1981, the respondents agreed to promote all the employees who were then promoted as a result of agreement/settlement with notional seniority from the date of supersession. Pursuant to that settlement, the petitioner along with others were promoted on the post of Office Superintendent w.e.f 17.09.1976 vide office order dated 16.11.1981. Aggrieved thereof, respondent no. 4 challenged the aforesaid settlement dated 5th September, 1981 and office order dated 16.11.1981 by way of filing C.W.J.C No. 660 of 1982(R) so that he might be considered to be senior to the petitioner and others. Aggrieved thereof, respondent no. 4 challenged the aforesaid settlement dated 5th September, 1981 and office order dated 16.11.1981 by way of filing C.W.J.C No. 660 of 1982(R) so that he might be considered to be senior to the petitioner and others. But the said writ application was dismissed; thereby it is alleged that seniority position of the petitioner over respondent no. 4 to the post of Office Superintendent was restored and confirmed for all practical purposes. 3. It has further been averred in the writ application that respondent-Institute is bound by the Rules and Regulation framed by Government of India with regard to promotion as per the provision contained in Article 309 of the Constitution of India. It has been averred that as per Rule 8, as mentioned in Swamy’s Handbook 1999 with regard to percentage of reservation in promotion for scheduled castes/scheduled tribes, the prescribed percentage was directed to be continued beyond 15.11.1997 but violating all norms and rules, respondent no. 4 was allowed to supersede the petitioner by granting him promotion on ad-hoc basis to officiate as Accountant vide order dated 17.01.1989 and later on promoted to the post of Stores and Purchase Officer vide office order dated 09.10.1997. 4. Aggrieved thereof the petitioner represented before the respondents-authorities but it fell on deaf ear. However, the petitioner was promoted to the post of Superintendent vide office order dated 18.10.1996, though remained junior to respondent no. 4, and later on was directed to take charge of for post of Assistant Registrar on vacation of post due to retirement. The petitioner failed to get any relief from any corner, and therefore, he moved before this Court by filing W.P. (S) No. 6731 of 2002, which was disposed of vide order dated 19.09.2008 with direction to file representation before the respondent-authority, in turn, the respondents were directed to consider the same and dispose of in accordance with law. In compliance thereof, the respondents-authorities passed the order dated 26.06.2009 rejecting the representation of the petitioner, which is impugned in this case. 5. Heard Mrs. M.M. Pal, learned senior counsel for the petitioner and Mr. Rajiv Ranjan, learned senior counsel for the respondents-Institute. 6. Learned senior counsel for the petitioner submitted that it is admitted fact that the petitioner was promoted on the post of Office Superintendent on 17.09.1976 whereas respondent no. 4 was directly recruited on the said post on 13.10.1976. 5. Heard Mrs. M.M. Pal, learned senior counsel for the petitioner and Mr. Rajiv Ranjan, learned senior counsel for the respondents-Institute. 6. Learned senior counsel for the petitioner submitted that it is admitted fact that the petitioner was promoted on the post of Office Superintendent on 17.09.1976 whereas respondent no. 4 was directly recruited on the said post on 13.10.1976. In such view of the matter, the petitioner is legally entitled to get promotion on the post of Superintendent/Accountant on and from 16.02.1988 and then to the post of SPO on and from 09.10.1997 i.e. the date when his junior namely respondent no. 4 was promoted and is entitled to get monetary benefit in case of retrospective promotion. In support of her submission, learned senior counsel for the petitioner referred to the decision rendered in the case of Ramesh Kumar Vs. Union of India & Ors as reported in 2015 (3) JLJR 511. Learned counsel for the petitioner referring to decision rendered in the case of Dr. Paras Nath Prasad Vs. The State of Bihar & Ors as reported in 1990 (2) PLJR 248 submitted that writ of mandamus can be issued for retrospective promotion, if promotion has not been considered while considering the case of his junior. It has further been submitted that impugned order is cryptic and without any reason and later reason for denying the claim of the petitioner cannot be supplemented by filing counter affidavit. In support thereof, learned senior counsel referred to the decision rendered in the case of Mohinder Singh Gill & Anr. Vs. Chief Election Commissioner, New Delhi & Ors as reported in AIR 1978 SC 851 , wherein the Hon’ble Apex Court has held that reason recorded in the rejection order is material and cannot be supplemented by way of filing counter affidavit. 7. As against this learned counsel for the respondents submitted that in compliance to order passed in W.P. (S) No. 6731 of 2002, the case of the petitioner was examined and it was concluded that the petitioner had already been extended promotions from time to time and claim of the petitioner regarding retrospective promotion on the ground of supersession had no merit. On merit of the case, learned counsel for the respondents submitted that seniority of respondent no. 4 was determined on the basis of qualification. It has been submitted that respondent no. On merit of the case, learned counsel for the respondents submitted that seniority of respondent no. 4 was determined on the basis of qualification. It has been submitted that respondent no. 4 was recruited directly whereas when respondent no. 4 was appointed the petitioner was not even possessing the required qualification of graduate degree. Though petitioner at one point of time was promoted on the post of Office Superintendent but that was rescinded by the Board of Governor, who is vested with the powers to do so by the management of the institute. Learned senior counsel for the respondents further submitted that while passing the order of reversion, the respondents have taken into account rules/regulation as also reservation rules of Government of India. In the case at hand, since only one post of Accountant was there and rules of reservation in promotion was not applicable to petitioner. 8. After bestowing my anxious consideration to the pleadings available on record, it transpires that petitioner was promoted to the post of ‘Office Superintendent’ w.e.f 17.09.1976 vide office order dated 25.04.1978 on the basis of Tripartite Settlement held on 15.04.1978 but that promotion order was rescinded by the Governing Body of the Institute vide order dated 10.11.1978. However, on the basis of Bipartite Settlement held on 05.09.1981 again the petitioner was promoted w.e.f 17.09.1976 but the petitioner was ordered to work as UDC due to shortage of vacancy. 9. The main grievance of the petitioner at this juncture is that respondent no. 4, who was appointed on post of ‘Office Superintendent’ on 13.10.1976 i.e. on later date than that of petitioner was given ad hoc promotion to the post of Accountant vide office order dated 17.01.1989 and further post of Stores and Purchase Officer vide Office Order dated 09.10.1997 ignoring his seniority. In this regard, it would be relevant to mention here that against the promotion order given in the year 1989, the petitioner woke up from deep slumber after about 13 years by filing W.P. (S) No. 6731 of 2002. From the pleading available on record, it appears that the petitioner has failed to explain such inordinate delay for approaching this Court. Though in the writ application, the petitioner has referred to some representations, which is an established principles of law the ‘repeated representations shall not save limitation’, as per the law laid down in the case of State of Tripura Vs. Though in the writ application, the petitioner has referred to some representations, which is an established principles of law the ‘repeated representations shall not save limitation’, as per the law laid down in the case of State of Tripura Vs. Arabinda Chakraborty as reported in (2014) 6 SCC 460 . On merit of the case, it appears that it has been brought on record that so far the qualification and competence/knowledge is concerned, the petitioner was having intermediate qualification whereas the respondents no. 4 was M.A having vast knowledge of rules/regulation of account; hence respondent no. 4 was given ad hoc promotion. So far claim of the petitioner to stake his claim on the ground of being S.T. Category candidate is concerned, since only one post of accountant was there; his claim has no leg to stand. From perusal of record, it further appears that petitioner was later on promoted to the post of Superintendent vide office order dated 18.10.1996 and further promotion was given to him and further he was directed to take charge of for post of Assistant Registrar on vacation of post due to retirement. It would be apt to mention here that petitioner accepted all the promotion without any demur and did not challenge the promotion order given to respondent no. 4 at the relevant point of time. Even otherwise also, now petitioner has retired from services. 10. In the backdrop of aforesaid facts, in particular delay in approaching the Court and by that now three decades have lapsed, lackadaisical approach taken by the petitioner and eligibility at the relevant point of time; I am of considered view that such matters ought to be given a quietus or decent burial. 11. For the reasons aforesaid, finding no merit in the case, the writ application stands dismissed.