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2018 DIGILAW 2762 (JHR)

Sharafat Ali v. State Of Jharkhand

2018-12-14

PRAMATH PATNAIK

body2018
JUDGMENT Pramath Patnaik, J. - In the captioned writ application, the petitioner has prayed for the following directions commanding upon the respondents: - (i) To give the benefit of seniority to the petitioner w.e.f. 15.9.1980 and also grant the scale of Rs.240-396/- as recommended vide Memo No. 489 dated 25.06.2006 (Annexure-5) and letter dated 21.02.2009 (Annexure-6); (ii) After fixing the seniority and scale of the petitioner, pay arrear thereof and also consider the case of the petitioner for the post of Office Superintendent as the petitioner is entitled to be promoted to the post of Office Superintendent in view of Circular dated 8.10.2001; (iii) To take decision and pass final order in view of Memo dated 25.06.2006, letter dated 21.02.2009 and (iv) For quashing the memo dated 08.08.2012, as contained in Annexure-13 to this application by which the claim of seniority and pay scale has been rejected. 2. The factual aspects, as has been delineated in the writ application, in a nutshell are that from the proceeding dated 17.04.2005, it will be evident, that the Committee constituted for considering the case of the petitioner, recommended the case of the petitioner for grant of scale of Rs.240-396/- from the appointment, which will be evident from the letter dated 25.06.2006 (Annexure-5), obtained under the RTI Act. From bare perusal of the entire Minute of the proceeding, it transpires that the respondents have admitted that the fault has been committed and petitioner has been wrongly given the scale of Rs.220- 315/- and have rectified the mistake so committed by the respondents and accordingly they have recommended the case of the petitioner for grant of said scale but till date, in spite of the recommendation, no order has been made. From the letter dated 21.02.2009 (Annexure-6), it is quite evident that the respondents after thorough enquiry and verification submitted its report and recommended the case of the petitioner as per the enquiry report submitted by the enquiry officer in favour of the petitioner, but all in vein. It is crystal clear from the letter dated 23.07.2010 (Annexure-7), obtained under the Right to Information Act, that the service book of the petitioner has been called for, for deciding the seniority, but, thereafter, no order has been passed in spite of the recommendation made by the superior authority as well as enquiry committee who submitted its report after making enquiry in favour of the petitioner. It has been averred in the writ application that from the letter dated 10.12.2003 (Annexure-8), it is manifest that it has been taken into consideration that the person below in the merit list has been given scale of Rs.240-396/-, whereas, the petitioner being at serial no. 11, has been refused and given pay scale of Rs.220-315/- to the post of routine clerk, whereas, one Arbind Kumar was appointed in the Scale of Rs.240-396/-. Vide letter dated 13.01.2006 (Annexure-9), though the case of the petitioner was recommended in view of the Committee, so constituted on 16.12.2005 but such recommendation remained unattended to. In view of the order dated 14.11.2011, passed in the main writ application, the respondents ought to have given the seniority and scale to the petitioner as per their own recommendations, but without referring and discussing Annexures-5, 6 7 and 8, rejected the claim of the petitioner on altogether different point vide order dated 8.8.2012 (Annexure-13) which is impugned in the instant writ petition. It has been averred that the person junior to the petitioner has been given the benefit of seniority as well as scale, which has also come up in the order dated 14.11.2011 and that have also not been discussed. Further it has been averred that similarly placed 15 employees have been given the benefit and their panel has been constituted vide letter dated 24.07.1980 (Annexrure-14). In similar circumstances, being aggrieved by the act of the respondents, one Arti Mitra Nee Das has moved before this Court in W.P. (S) No. 161 of 2002 and this Court vide order dated 21.04.2009 (Annexure-15) has quashed the order of the respondents and consequently, vide order dated 10.12.2009 (Annexure-15/1), the respondents have restored her position. The petitioner has made representation ventilating his 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. Learned counsel for the petitioner has submitted with vehemence that the respondents authority suo motu cannot change the scale of the petitioner and force him to get appointment in the scale of Rs.220-315/- and the respondents authority are duty bound to consider the fact that as per the merit list, the petitioner''s case ought to have been considered in the scale of Rs.240-396/-. Learned counsel for the petitioner by referring to the order dated 21.04.2009 (Annexure-15), passed in W.P. (S) No. 161 of 2002, has submitted that in similar circumstances, this Court has quashed the order therein, and consequently, the respondents have restored the position of the petitioner, therein. In support of his contentions, learned counsel for the petitioner has referred to and relied upon the decision of this Court, dated 06.11.2009 rendered in the case of The State of Jharkhand and others-versus-Arun Sinha and others in L.P.A. No. 214 of 2008 with L.P.A. Nos. 295 and 319 of 2008. 4. Controverting the averments made in the writ application, a counter affidavit dated 03.08.2018 has been filed on behalf of the respondent no. 2. In the counter affidavit, it has been submitted that a panel of 15 candidates was prepared by the Conservator of Forests, Social Forestry Circle, Ranchi after inviting names from Regional Employment Exchange, Ranchi and others for filling up existing vacancies of Lower Circle Assistant in the Forest Department vide letter dated 24.07.1980 and this panel was prepared according to the roster formula framed by the then Government of Bihar. The petitioner was placed at serial no. 11 in the panel list of Lower Circle Assistant in the scale of Rs.240-396/- as a General Candidate and in addition, he was also empanelled for recruitment for the post of Lower Divisional Clerk in the scale of Rs.220-315/- and placed at Sl. No. 20. The Conservator of Forests (C.F.), Social Forestry Circle, Ranchi wrote a letter to the Conservator of Forests (C.F.) Development Circle, C.F. Southern circle, C.F. Western Circle, C.F. Departmental Working Circle, C.F. Working Plan and Research Circle giving the names of 6 persons stating therein that persons listed at Sr. No. 1 & 3 have not given their option for appointment at Divisional level Clerk but rest 3 persons have opted for appointment at Divisional level Clerk. So they can either be appointed at Circle or Divisional level Clerk. It has been further submitted that the petitioner has claimed that he was selected for the post of Lower Circle Assistant in the scale of Rs.240-396/- but he was appointed on 13.09.1980 as a Routine Clerk on temporary basis in the scale of Rs.220-315/- in the Office of Conservator of Forests, Departmental Working Circle, Ranchi. It has been further submitted that the petitioner has claimed that he was selected for the post of Lower Circle Assistant in the scale of Rs.240-396/- but he was appointed on 13.09.1980 as a Routine Clerk on temporary basis in the scale of Rs.220-315/- in the Office of Conservator of Forests, Departmental Working Circle, Ranchi. It has been further submitted that option was asked from the petitioner, whether he was interested and ready to join as Lower Divisional Clerk or Routine Clerk against the existing vacancy or not, the petitioner had opted and accepted the offer to join on the post of Lower Divisional Clerk and then the appointing authority issued appointment letter to the petitioner for appointment on the post of LDC and the petitioner accepted it. The petitioner eagerly accepted the offer of L.D.C. and joined on the post and scale on 13.09.1980 and he had not objected or submitted any representation against his appointment on that date or time. 5. Learned counsel for the Respondent-State apartfrom reiterating the contentions raised in the counter affidavit has assiduously submitted that the matter of Arti Mitra Nee Das was quite different from the case of the petitioner. Learned counsel submits that Arti Mitra Nee Das was originally appointed and posted in Circle Cadre on a stipulated pay scale, but, later she was transferred to a Divisional Cadre, which happens to be a distinct cadre altogether and by such transfer, she was posted as Lower Divisional Clerk, whereas, the petitioner was appointed as Lower Divisional Clerk, so, the case of the petitioner is quite different from that of Arti Mitra Nee Das, which is quite clear from the order dated 21.04.2009, passed in W.P. (S) No. 161 of 2002. 6. 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 respondents authority suo motu cannot change the scale of the petitioner and force him to get appointment in the scale of Rs.220-315/- and the respondents authority are duty bound to consider the fact that as per the merit list, the petitioner''s case ought to have been considered in the scale of Rs.240-396/-. (ii) In similar circumstances, being aggrieved by the act of the respondents, one Arti Mitra Nee Das has moved before this Court in W.P. (S) No. 161 of 2002 and this Court vide order dated 21.04.2009 (Annexure-15) has quashed the order of the respondents and consequently, vide order dated 10.12.2009 (Annexure-15/1), the respondents have restored the position of the petitioner, therein and the case of petitioner ought to be considered afresh at par with petitioner in W.P. (S) No. 161 of 2002. (iii) It appears that the respondents have denied the stand taken by the petitioner on the ground that though, the petitioner was appointed in the pay scale of Rs.220-315/-, but since the scale available to him to the post of Lower Division Clerk was the same which was available to the LDC of the Divisional Cadre, therefore the petitioner cannot raise any grievance of different cadres. However, this stand of the respondents does not stand to reasons tempered with law. (iv) Petitioner has taken reasonable, plausible and cogent ground for challenging the impugned order vide memo dated 08.08.2012, as contained in Annexure-13 to this application by which the claim of the petitioner for seniority and pay scale has been rejected on the legally untenable grounds, not germane to the case in hand. 7. In view of the reasons stated in the foregoing paragraphs and as a logical sequitur to the aforesaid observations, the impugned order vide memo dated 08.08.2012, as contained in Annexure-13 is quashed and set aside. The concerned authorities of the respondents are directed to reconsider the petitioner''s claim for his promotion, as also for grant of the pay scale applicable to his post in the Circle Cadre and to release all such payments and the arrears thereof in the light of the decision rendered in W.P. (S) No. 161 of 2002 and this entire exercise must be carried out by the respondents within a period of four months from the date of receipt/production of the copy of this order. 8. With the aforesaid observation and direction, the writ petition stands disposed of.