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2018 DIGILAW 2754 (JHR)

Braj Kishore Mishra v. State of Jharkhand

2018-12-14

PRAMATH PATNAIK

body2018
JUDGMENT : PRAMATH PATNAIK, J. 1. In the captioned writ application, the petitioner has prayed for implementation of the recommendation of 5th pay revision Committee in the State of Jharkhand in order to create promotional avenues for the cadre of Assistant Public Prosecutors (A.P.P.) and to create prosecution Manual for the cadre of A.P.Ps. as created by the State of Bihar. The petitioner has further prayed to notify the petitioner as Divisional Prosecution Officer w.e.f. the date of entitlement in view of his seniority as per the provision of section 72 of the Bihar Re-organization Act, 2000, and to adopt the “Bihar Prosecution Manual” in its original form or with required modification. 2. The factual aspects, as has been delineated in the writ application, in a nutshell is that the petitioner joined the Bihar Prosecution cadre on 01.09.1975 as an Assistant Public Prosecutor. After the bifurcation of the State of Bihar, the petitioner was allocated to the State of Jharkhand vide order dated 14.02.2005 issued by the Government of India and the petitioner joined the head quarters at Ranchi on 31.03.2005. It has been further averred that before joining the cadre of Jharkhand, the petitioner was posted in Bihar and during that period in the year 2003, the State of Bihar came out with a manual with a view to create promotional avenues for the cadre in pursuance to the recommendation of 5th pay revision i.e. “Bihar Prosecution Manual” in the light of Judgment passed by the Hon’ble Patna High Court in Sharda Nandan Sharma & Ors. Vs. State of Bihar & Ors. reported in PLJR 1996 (1) Pat 75 which was made effective from 07.04.2003. It has been further averred that before the aforesaid 2003 manual came into existence, a resolution dated 12.10.1998 was made effective for an interim arrangement till Govt. of Bihar came forward with the prosecution manual in the year 2003, in the light of the aforesaid judgment passed by the Hon’ble Patna High Court and the new nomenclature of the designations as per the resolution for the cadre of A.P.Ps. which was confirmed by the Prosecution Manual 2003, are as under :- (i) Assistant Prosecution Officer, (ii) Sub-Divisional Prosecution Officer, (iii) District Prosecution Officer, (iv) Divisional Prosecution Officer. It has been further averred that as per the aforesaid resolution, the petitioner had already been addressed as the Dist. which was confirmed by the Prosecution Manual 2003, are as under :- (i) Assistant Prosecution Officer, (ii) Sub-Divisional Prosecution Officer, (iii) District Prosecution Officer, (iv) Divisional Prosecution Officer. It has been further averred that as per the aforesaid resolution, the petitioner had already been addressed as the Dist. Prosecution Officer in accordance with his seniority in the State of Bihar and however, one Ravindra Prasad Singh, junior to the petitioner notified as Divisional Prosecution Officer vide order dated 17.02.2003 and being aggrieved thereof, the petitioner, ventilating his grievance, preferred a representation before the respondent nos. 4 and 5 and also met the concerned Respondent on several occasions, but nothing emerged. Later on, the petitioner was informed that he had not been considered for promotion as because he was treated to be an officer of the State of Jharkhand and thereafter, the petitioner further represented before the respondent no. 2 on 15.06.2005, after joining to the cadre of the State of Jharkhand for the same grievances, which has fallen on the deaf ears of the respondents. The petitioner left with no other efficacious, alternative and speedy remedy has been constrained to approach this Court under Articles 226 of the Constitution of India for redressal of his grievances. 3. The petitioner in person (Braj Kishore Mishra) has submitted with vehemence that on the one hand, the Deptt. Of Law and Justice and also Home Department, Govt. of Jharkhand outrighly denies that they are not bound to adopt/follow the prosecution manual, 2003 of Bihar or other Notifications, Resolutions and orders of Bihar, but, in practice and reality they have been doing so till 2011, since there was no service manual for the prosecutor in the State of Jharkhand as will be evident from perusal of Annexures-11, 12 and 27-28. 4. Controverting the averments made in the writ application, a counter affidavit dated 30.01.2006 has been filed on behalf of the respondent no. 2. In the counter affidavit, it has been submitted that as soon as the service of the petitioner has been allotted to the State of Jharkhand, the dispute of inter-se seniority between the petitioner and the said Sri Ravindra Prasad Singh came to an end. 2. In the counter affidavit, it has been submitted that as soon as the service of the petitioner has been allotted to the State of Jharkhand, the dispute of inter-se seniority between the petitioner and the said Sri Ravindra Prasad Singh came to an end. It has been further submitted that the respondents have not violated the provisions of Section 72 (3), 73, 74, 85 and 86 of the Bihar Re-organization Act, 2000 and the service of the petitioner has not been varied to his disadvantage. 5. Apart from reiterating the contentions in the counter affidavit, learned A.C. to S.C. (Mines) appearing for the Respondent-State has assiduously submitted that actually the petitioner has been posted on the same post, as he had been in the State of Bihar. Learned counsel further submits that the petitioner has raised the provisions of the Prosecution Manual of Bihar, which was made effective from 01.04.2003 after lapse of more than two years. 6. A supplementary affidavit dated 28.11.2006 has been filed by the petitioner, wherein, it has been submitted that the Finance Department, Govt. of Bihar, issued a resolution dated 29.03.2006, whereby the State of Bihar has come out with the pay scale structure of the higher posts of the cadre of A.P.Ps. and was effective from 21.04.2003. It has been further stated that the Govt. of Bihar has fully completed the exercise of the implementation of the recommendations of 5th pay revision Committee, whereas, nothing has been done in this regard in the State of Jharkhand. 7. A counter affidavit, dated 27.06.2012 has been filed on behalf of the Respondent-State of Jharkhand, wherein, it has been, inter alia, submitted that this Court vide order dated 28.11.2006 has directed to file supplementary counter affidavit, clarifying, as to whether there is any promotional avenue for this category of Govt. servants, if not, then what is alternative to that. It has been further submitted that the Department comes to know about this present case only on 19.06.2012 and on the above context and background, it is stated that in the year 2005, through an amendment, Section 25 A is added in the Code of Criminal Procedure making provision to establish Directorate of Prosecution under the Home Department. It has been further submitted that the Department comes to know about this present case only on 19.06.2012 and on the above context and background, it is stated that in the year 2005, through an amendment, Section 25 A is added in the Code of Criminal Procedure making provision to establish Directorate of Prosecution under the Home Department. It has been submitted that the Department has created posts for establishment of Directorate of prosecution and similarly posts of Additional Public Prosecutor and Public Prosecutor were created to appoint/promote A.P.Ps. as per Section 24 (6) of Cr.P.C. and after creating posts, Rules are being framed for promotion of A.P.Ps. vide Notification No. 3418 dated 27.08.2011. It has been further submitted that so far as the recommendation of 5th pay revision is concerned, the State of Bihar has complied the order of the Hon’ble Patna High Court by framing Bihar Prosecution Manual, 2003. It has been further stated that in the light of Section 85 of the Bihar Reorganization Act, 2000, the State of Jharkhand is not bound to adopt any Rules/Notification/Circulars, issued by the State of Bihar after 15.11.2000 and as such, the demand of the petitioner to adopt “Bihar Prosecution Manual, 2003” is not legally maintainable. 8. Another counter affidavit, dated 05.12.2012 has been filed on behalf of the respondent nos. 3, 4 and 5. In the said affidavit, it has been prayed for direction upon the petitioner to delete the name of these respondents, as because after bifurcation of the State of Bihar, the service of the petitioner has been finally allocated to the State of Jharkhand w.e.f. 15.11.2000 by the Govt. of India and the service condition of the petitioner shall be governed by the service rule framed by the Jharkhand Govt. 9. Another supplementary affidavit dated 25.02.2013 has been filed by the petitioner, wherein, it has been stated that the State of Jharkhand has virtually accepted and adopted the prosecution Manual, 2003 and this fact finds support from the two letters, which are issue by the then Secretary to the Govt., Department of Law and Justice, Jharkhand State. 9. Another supplementary affidavit dated 25.02.2013 has been filed by the petitioner, wherein, it has been stated that the State of Jharkhand has virtually accepted and adopted the prosecution Manual, 2003 and this fact finds support from the two letters, which are issue by the then Secretary to the Govt., Department of Law and Justice, Jharkhand State. It has been further submitted that till 27.08.2011, the State of Jharkhand had got no service rules of its own and on the persistent demand of the Secretary, Jharkhand Public Service Commission in respect of fresh appointment of A.P.P.s, the State of Jharkhand through its Secretary, Department of Law and Justice, had obtained the Bihar Prosecution Manual, 2003 from the State of Bihar through its Additional Director-cum-I.G., Prosecution, Bihar, Patna, which was made basis for the appointment of A.P.Ps. in the State of Jharkhand. Following the new nomenclature of the cadre of A.P.P.s, the State of Jharkhand twice notified one Sri Shridayal Prasad to have transferred in the capacity of the Divisional Prosecution Officer by the Department of Law and Justice vide notification dated 20.01.2006 and 26.12.2002 (Annexures-9 and 10). 10. Having bestowed my anxious consideration to the rivalized submissions of the learned counsel for the respective parties and on perusal of the records, I am of the considered view that the petitioner has been able to make out a case for interference in view of the following facts and reasons:- (i) The Respondent no. 4, The Secretary, Department of Home, Govt. of Jharkhand, in paragraph 19 of the supplementary counter affidavit, dated 21.09.2016 have themselves admitted that although the State of Jharkhand cannot be compelled to adopt the Bihar Prosecution Manual, but, the State of Jharkhand is bound to follow the status which exists on the date of reorganization of the State i.e. 15.11.2000. (ii) On the one hand, the Deptt. of Law and Justice and also Home Department, Govt. of Jharkhand outrighly denies that they are not bound to adopt/follow the prosecution manual, 2003 of Bihar or other Notifications, Resolutions and orders of Bihar, but, in practice and reality they have been doing so. (iii) The State of Jharkhand has virtually accepted and adopted the prosecution Manual, 2003 and this fact finds support from the two letters, which are issued by the then Secretary to the Govt., Department of Law and Justice, Jharkhand State. (iii) The State of Jharkhand has virtually accepted and adopted the prosecution Manual, 2003 and this fact finds support from the two letters, which are issued by the then Secretary to the Govt., Department of Law and Justice, Jharkhand State. The State of Jharkhand had got no service rules of its own and in respect of fresh appointment of A.P.P.s, the State of Jharkhand through its Secretary, Department of Law and Justice, had obtained the Bihar Prosecution Manual, 2003 from the State of Bihar, which was made basis for the appointment of A.P.Ps. in the State of Jharkhand. 11. On the cumulative effect of the reasons and as a logical sequitur to the observations made hereinabove, the respondents are directed to consider the case of the petitioner to avail the recommendation of the 05th Pay Revision Committee and appropriate steps be taken for grant of reliefs in accordance with ‘Jharkhand Abhiyojan Sewa Niyamawali, 2011’. 12. With the aforesaid direction, the writ petition stands disposed of. 13. Consequently, I.A. No. 991 of 2013 also stands disposed of.