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2018 DIGILAW 2787 (JHR)

Awadhesh Kumar v. State of Jharkhand

2018-12-18

S.N.PATHAK

body2018
ORDER : 1. The petitioners have approached this Court with a prayer for a direction upon the respondents to grant promotion to the next higher post of District Transport Officer in terms of the provisions as laid down under Jharkhand Motor Vehicle Inspector Cadre, 2010 as amended from time to time. 2. The factual exposition as has been delineated in the writ petition is that the petitioners were appointed by Bihar Public Service Commission to the post of Motor Vehicle Inspector on 01.02.1991 and 02.02.1991 respectively in the erstwhile State of Bihar. The Motor Vehicle Inspectors are the only technically gazetted qualified officers in the Motor Vehicle Department, appointed through selection procedure prescribed by the State Public Service Commission. After bifurcation of the erstwhile State of Bihar, the services of petitioners were allocated to the State of Jharkhand and after serving the Department with best of their ability in the State of Jharkhand, the petitioners were granted the benefits of First ACP w.e.f. 01.02.2003 vide Order No. 156 dated 24.11.2016 and Second MACP vide Departmental Order No. 118 dated 13.11.2017 w.e.f. 02.02.2011, after completion of 12/24 years of regular service respectively. It is specific case of the petitioner that the petitioners are working as Motor Vehicle Inspectors and are getting the Grade Pay of Rs.4800/- since 2011, which is the scale of Senior Motor Vehicle Inspector and are eligible for promotion to the next higher grade i.e. District Transport Officer as per Jharkhand Motor Vehicle Inspector Cadre (Appointment/ Promotion and other services condition) Rules, 2010 amended from time to time and under Rule 18 (kha) of the said Rule, there is a provision for promotion to the next higher post in the cadre i.e. from Senior Motor Vehicle Inspectors to District Transport Officer. It is specific case of the petitioners that they are eligible for being promoted to the next higher post i.e. District Transport Officer, but their cases have not been considered since, 2011. Aggrieved thereto, they have represented before the respondents for considering their cases as they are going to be superannuated on 31.12.2018 and 31.01.2020 respectively, but the respondents are sitting tight over the matter and no heed was paid and as such, the petitioners have been compelled to knock the door of this Court for redressal of their grievances. 3. Mr. Rajiv Ranjan, learned Sr. Advocate assisted by Mr. 3. Mr. Rajiv Ranjan, learned Sr. Advocate assisted by Mr. Shray Mishra, Advocate argues that petitioners are fulfilling all the eligibility criteria and also eligible under Rule 18 (kha) of the Jharkhand Motor Vehicle Inspector Cadre (appointment/promotion and other service condition) Rules, 2010 for being promoted to the post of District Transport Officer, but the respondent have illegally and arbitrary not taken any decision on the representations of the petitioner for promotion. The petitioners are workings as Motor Vehicle Inspector and are getting the Scale of Senior Motor Vehicle Inspector since 2011, but the said post is not sanctioned in the department although the cadre hierarchy envisages for the post of Motor Vehicle Inspector, Senior Motor Vehicle Inspector and District Transport Officer. Learned Sr. counsel further argues that as the petitioner No.1 is going to superannuate in this month, a direction may be given upon the respondents to consider the case of the petitioners for promotion to the post of District Transport Officer. 4. Per contra, counter-affidavit has been filed. Mr. Radha Krishan Gupta, learned counsel appearing on behalf of the respondents submits that case of the petitioners are not sustainable in the eyes of law. At this stage writ petition itself is premature. The Motor Vehicle Inspector Cadre (Appointment/Promotion and other service condition) Rules, 2010 has been forwarded by the Department for amendment and after approval of the same by the competent authority, the case of the petitioners for promotion shall be considered as per Rules and Regulations. As the petitioners have already been considered and granted the benefits of ACPs from time to time, no injustice shall be done in respect of promotion also. Learned counsel further argues that as the Rules have not yet been approved, their cases cannot be considered for promotion, but as and when the Rules regarding amendment in Motor Vehicle Inspector Cadre (Appointment/promotion and other service condition) Rules, 2010 are approved, the case of the petitioners, the same shall be considered in accordance with the rule. 5. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, it is apparent that petitioners were appointed by Bihar Public Service Commission to the post of Motor Vehicle Inspector under Section 213 of the Motor Vehicle Act, 1988. 5. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, it is apparent that petitioners were appointed by Bihar Public Service Commission to the post of Motor Vehicle Inspector under Section 213 of the Motor Vehicle Act, 1988. It is not in dispute that Motor Vehicle Inspector are Gazetted Officers appointed through selection procedures prescribed by the State Public Service Commission in consonance with the Central Act and Rules. The petitioners are discharging their duties to the satisfaction of the respondents and as such, they were granted the benefits of first and second, ACP/MACP after completion of 12/24 years of services respectively in the grade pay of 4800/-. The scale which the petitioners are receiving i.e. Grade Pay of Rs. 4800/- since the year, 2011 is the same as that of scale payable to Senior Motor Vehicle Inspector and as such they are eligible for promotion to the next higher grade pay i.e. District Transport Officer as per Jharkhand Motor Vehicle Inspector Cadre (appointment/promotion and other service condition) Rules, 2010. Since their appointment, the petitioners though have been considered for financial upgradation but they were never considered for regular promotion as per the Rules of Jharkhand Motor Vehicle Inspector Cadre (appointment/promotion and other service condition) Rules, 2010, which is prevailing in the State of Jharkhand as as per the said Rule in Rule 18 Kha, there is a provision for promotion to the next higher post in the cadre i.e. Senior Motor Vehicle Inspector to the District Transport Officer. The Gazette Notification dated 10th June, 2013 of 3 (Kha) reads as under:- 1. Motor Vehicle Inspector- PB-II 9300-34800 +GP 4200/- 2. Sr. Motor Vehicle Inspector - PB-II 9300-34800 +GP 4800/- 3. District Transport Officer - PB-II 9300-34800+GP 5400/- 6. At present the petitioners are working in the Grade Pay of 4800/- which is the scale payable to the post of Sr. Motor Vehicle Inspector. It is settled principle of law that an employee of a State although has no fundamental right of promotion, it has a right to be considered therefor. What is necessary is to provide an opportunity of advancement; promotion being a normal incidence of service. Motor Vehicle Inspector. It is settled principle of law that an employee of a State although has no fundamental right of promotion, it has a right to be considered therefor. What is necessary is to provide an opportunity of advancement; promotion being a normal incidence of service. When employees are denied an opportunity of promotion for long years on the ground that they fall within a category of employees excluded from promotional prospect, the superior court will have jurisdiction to issue necessary direction. If there is no channel of promotion in respect of a particular group of officers resulting in stagnation over the years, the court although may not issue any direction as to manner by which a scheme should be formulated or by reason thereof interfere with the operation of existing channel of promotion to the officers working in different departments and officers of the Government but jurisdiction to issue direction to make a scheme cannot be denied to a superior court of the country. How the employees would be structured is within the realm of the statuory authority but by reason thereof, it cannot tinker with their essential fundamental right. The similar issue fell for consideration before the Hon’ble Apex Court in case of Food Corporation of India Vs. Parashotam Das Bansal & Ors., reported in (2008) 5 SCC where the promotion was not granted to the petitioners in the entire service career, wherein it has been held as under:- 9. An employee of a State although has no fundamental right of promotion, it has a right to be considered therefore. What is necessary is to provide an opportunity of advancement; promotion being a normal incidence of service. 7. Further, in case of O.Z. Hussain (Dr.) Vs. Union of India, reported in 1990 Supp SCC 688, the Hon’ble Apex Court has been held as under :- ‘…There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non-medical ‘A’ Group scientists in the establishment of Director General of Health Services would be deprived of such advantage.’ 8. Further the Hon’ble Apex Court in para 6 of State of Tripura Vs. K.K. Roy, reported in (2004) 9 SCC 65 , wherein it has been held that which reads as under:- 6. It is not a case where there existed an avenue for promotion. Further the Hon’ble Apex Court in para 6 of State of Tripura Vs. K.K. Roy, reported in (2004) 9 SCC 65 , wherein it has been held that which reads as under:- 6. It is not a case where there existed an avenue for promotion. It is also not a case where the State intended to make amendments in the promotional policy. The appellant being a State within the meaning of Article 12 of the Constitution should have created promotional avenues for the respondent having regard to its constitutional obligations adumbrated in Articles 14 & 16 of the Constitution of India. Despite its constitutional obligations, the State cannot take a stand that as the respondent herein accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue for promotion, he cannot resile thereform…. 9. The same view was reiterated by the Hon’ble Apex Court in case of A. Satyanarayana & Ors. Vs. S. Purushotham & Ors., reported in (2008) 5 SCC 416 and in para 30 it has been held that, which reads as under:- 30. Although mere chance of promotion is not a fundamental right, but right to be considered therefore is. In that view of the matter, any policy whereby all promotional avenues to be promoted in respect of a category of employees for all times to come cannot be nullified and the same would be hit by Article 16 of the Constitution of India. 10. Learned counsel for the petitioners brings to notice of this Court that in a similar issue the respondent-State has considered the same in case of Executive Engineers and has granted them promotion vide order Memo No. 2719, dated 29.08.2017, which is taken on record. The petitioners are at present working in the Grade Pay of Rs.4800/-, which is the pay scale of Sr. Motor Vehicle Inspector and till date they have not been considered for regular promotion from the date of their initial appointment as Motor Vehicle Inspector, whereas they are entitled for promotion to the post of District Transport Officer in the grade pay of Rs. 5400/-. Motor Vehicle Inspector and till date they have not been considered for regular promotion from the date of their initial appointment as Motor Vehicle Inspector, whereas they are entitled for promotion to the post of District Transport Officer in the grade pay of Rs. 5400/-. As the respondents themselves have admitted in para 7 of the counter-affidavit dated 14.12.2018 that promotion Rules 2010 regarding Motor Vehicle Cadre has been forwarded by the Department for amendment and after approval of the same, the case of the petitioners for promotion may be considered as per rules and regulation. I hereby direct the respondent No.2 to take a conscious decision as per the prevailing Rules for promotion and consider the case of the petitioners for promotion to the post of District Transport Officer as they are already working in the scale of Sr. Motor Vehicle Inspector in the grade pay of Rs. 4800/-. The promotion shall be considered from the date of their eligibility and suitability, in accordance with law. As the petitioner No.1 is going to be retired on 31.12.2018 and petitioner No.2 is going to be retired on 31.01.2020, let a decision be taken within stipulated time, so that the petitioners get an opportunity to avail the fruits of regular promotion. 11. With the aforesaid observation and directions, instant writ petition stands disposed of.