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2018 DIGILAW 2472 (JHR)

Sunil Kumar Singh v. State of Jharkhand

2018-11-05

PRAMATH PATNAIK, PRAMATH PATNAIK

body2018
JUDGMENT : Heard Mr. Saurabh Shekhar, learned counsel for the petitioner as well as Mr. Amit Kumar, learned A.C. to G.P. II appearing for the Respondents-State. 2. In the captioned writ application, prayer has been made for quashing of the office order of the respondent no. 3 pertaining to rejection of the claim of the petitioner for grant of promotion from Class IV post to Class III post and further prayer has been made for direction to the respondents to forthwith grant promotion to the petitioner on the Class III post, on the ground that other similarly situated employee, namely, Shri Santosh Kumar Jha, has already been granted promotion with effect from 31.01.2003. 3. The facts, as has been delineated in the writ application, in a nutshell, are that the petitioner was appointed on compassionate ground in pursuance to the meeting of the District Establishment Committee held on 31.05.1996 in Class IV post and the name of the petitioner is at Serial No.21 and one Santosh Kumar Jha was also appointed in Class IV post, whose name is at Serial No. 13. After appointment in the said post, the petitioner has been discharging his duties to the utmost satisfaction of the respondents. Shri Santosh Kumar Jha has filed a writ application bearing No. W.P. (S) No. 3801 of 2001 and the said writ application was disposed of vide Annexure-3 with a direction to the respondents to take a decision with regard to promotion for filling up the Class III post. Thereafter, the case of Shri Santosh Kumar Jha was taken up by the respondents in the meeting convened by the District Establishment Committee on 31.01.2003 and it was decided to grant promotion to the said Santosh Kumar Jha on the post of Clerk under Class III category. Since the petitioner and the said Santosh Kumar Jha were appointed on compassionate ground in Class IV post and due to promotion of the said Santosh Kumar Jha to the Class III post, the petitioner submitted a series of representations and since the representations of the petitioner did not mitigate the grievance of the petitioner, the petitioner filed W.P. (S) No. 6199 of 2007, which was disposed of vide order dated 02.10.2008 with liberty to the petitioner to file a representation for consideration of promotion to Class III post. Thereafter, the petitioner submitted representation, which has been rejected vide impugned order dated 2.2.2009 on the ground of a letter dated 6.12.1995 that the 50 per cent of the vacancy is to be filled up by way of a limited competitive examination to be conducted by the Jharkhand Public Service Commission, as evident from Annexure-6 to the writ application. Being aggrieved by the impugned order dated 2.2.2009 vide Annexure-6 to the writ application, the petitioner has been constrained to challenge the said order in the instant writ application under Article 226 of the Constitution of India. 4. A counter affidavit dated 5.10.2009 has been filed by the respondent no. 3, wherein, it has been, submitted that the order dated 2.2.2009 has been passed to comply the order passed in W.P. (S) No. 6199 of 2007, which is based upon the Notification dated 05.11.2004 and Memo dated 06.12.1995, which are self-explanatory. 5. A supplementary counter affidavit, dated 06.07.2018 has been filed by the respondent no. 3, wherein, it has been submitted that criteria for promotion from Grade-4 to Grade-3 post is that 50 per cent seats will be filled up through open competitive examination and rest 50 per cent seats will be filled up by limited competitive examination conducted by Jharkhand Public Service Commission. It has further been submitted that through the Notification No. 10536 dated 12.10.2017 of Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Ranchi, it has been clearly directed that the criteria for a Grade-4 employee to be appointed in Grade-3 are as under:- (i) His service has to be verified on the date of filing application; (ii) He has to complete 10 years of regular service on the date of filing of application; (iii) No departmental proceeding is pending or he has been not suspended or not punishment has been imposed on him on the date of filing application. (iv) He has to pass a minimum of Intermediate from a recognized institution as per Annexure-A to the supplementary counter affidavit. It has further been submitted that the case of the petitioner is not similar to that of Santosh Kumar Jha, as both are of different establishment and are guided with different authority. Shri Santosh Kumar Jha was promoted by the decision of the establishment committee of Collectorate staff’s only. 6. Another supplementary counter affidavit, dated 26.09.2018 has been filed by the respondent no. Shri Santosh Kumar Jha was promoted by the decision of the establishment committee of Collectorate staff’s only. 6. Another supplementary counter affidavit, dated 26.09.2018 has been filed by the respondent no. 3, wherein, it has been submitted that vide Notification No. 10536 dated 12.10.2017 of Personnel, Administrative Reforms and Rajbhasha Department, Jharkhand, it has been directed that 15 per cent seats of basic grade post (Lower Division Clerk) has to be filed by eligible Grade IV employees through limited competitive examination conducted by Staff Selection Commission as per Annexure-C to the said counter affidavit. Hence, it is clear that the case of the petitioner is different from the process of promotion of the Collectorate staff as such the claim of the petitioner is not maintainable. 7. Learned counsel for the petitioner has strenuously urged that though the similarly situated employee, namely, Santosh Kumar Jha has been granted promotion to the Class IV post and the respondents-authorities by taking a flimsy and untenable ground, have rejected the case of the petitioner vide Annexure-6 to the writ application, which cannot be legally sustainable. Learned counsel further submits that the case of the petitioner requires consideration in view of Rules, 2017, namely, Jharkhand Rajya Kshetriya Lipik (Samaharnalaya Sahit) Simit Pratiyogita Pariksha (Mul Koti) Nimayawali, 2017, as has been annexed as Annexure-A to the supplementary counter affidavit, dated 06.07.2018. 8. As against the submissions of the learned counsel for the petitioner, learned counsel for the Respondent-State on the other hand raises objection on the maintainability of the writ application on the ground that in view of the incorrect statement made in paragraph 5 of the writ application, an interlocutory application ought to have been filed by the petitioner for deletion of the said Tapas Kumar Dutta. So far as merit of the matter is concerned, learned counsel for the Respondent-State apartfrom reiterating the submissions made in the counter affidavit, has submitted that the case of the petitioner shall be considered in accordance with Rule, provided that he comes within the zone of consideration after being declared successful in the examination conducted by Staff Selection Commission Jharkhand. 9. 9. After hearing the learned counsel for the respective parties and on perusal of the records, the impugned order vide Annexure-6 to the writ application is quashed with a direction to the respondents to consider the case of the petitioner for promotion in accordance with the Rules, 2017, namely, Jharkhand Rajya Kshetriya Lipik (Samaharnalaya Sahit) Simit Pratiyogita Pariksha (Mul Koti) Nimayawali, 2017 as has been annexed to Annexure-A to the Notification dated 12.10.2017, of Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Ranchi, provided that the petitioner comes within the zone of consideration alongwith other eligible candidates and the said exercise be completed within a period of 6 months from the date of receipt/communication of the order. 10. Accordingly, the writ petition stands allowed.