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2018 DIGILAW 2801 (JHR)

Baidya Nath Jha v. State of Bihar

2018-12-19

APARESH KUMAR SINGH, APARESH KUMAR SINGH

body2018
JUDGMENT : 1. Heard learned counsel for the petitioner and the State of Bihar. 2. Order of punishment and the appellate order dated 04.02.1999 and 21.05.2004 respectively are being sought to be challenged through I.A. No. 7609 of 2017 by the writ petitioner contending that they were not communicated to the petitioner earlier as the same have been served to the present counsel on 07.07.2017. The present counsel has entered appearance through vakalatnama on 27.04.2017 after obtaining no objection from the erstwhile counsel. 3. Petitioner in the present writ petition has sought grant of junior selection grade scale of pay w.e.f. 01.04.1981 and promotion to the post of post of Executive Engineer w.e.f. 11.04.1998 as his immediate juniors have been promoted to the said post. He has also sought full salary for the period of his suspension from 08.02.1991 to 13.10.1994. He contended that he should have been given the charge of Superintending Engineer as his Juniors were given such charge. 4. The State of Bihar in its supplementary affidavit filed on 28.9.2004 had brought on record the order of punishment and the appellate order, which is being sought to be challenged. The main prayer for the petitioner was contested by the Respondent specifically Respondent State of Bihar through their affidavits filed on 28.06.2004 and 20.07.2004. 5. As per the averments in the writ petition, petitioner was posted under the Bihar State Construction Corporation Ltd. at Darbhanga from 01.05.1977 to 30.06.1983 and after being appointed as Engineer’s Assistant on 04.08.1973 at Tenusone Design Division No.1, Patna. He was thereafter posted as Assistant Engineer at the Planning and Design Division No.2, Central Design Organization, Patna from 16.04.1987 to 07.02.1991. He was placed under suspension from 08.02.1991 to 13.10.1994 with his headquarter at the Advance Planning Division, Water Resources Department, Patna. It was revoked w.e.f. 14.10.1994 and he was posted finally on 26.07.1995 as Estimating Officer, Waterways Division, Ranchi where he continued till 05.08.1998. He continued on the post of Sub Divisional Officer, Design Subdivision No.2 (Irrigation), Doranda, Ranchi since then till the filing of the writ petition. He superannuated on 31.05.2004. Petitioner was implicated in Vigilance P.S. Case No. 24/87 along with 3 other persons and a Special Vigilance Case No. 18/87 was instituted which was pending at the time of institution of the writ petition at the Special Vigilance Court at Muzaffarpur. He superannuated on 31.05.2004. Petitioner was implicated in Vigilance P.S. Case No. 24/87 along with 3 other persons and a Special Vigilance Case No. 18/87 was instituted which was pending at the time of institution of the writ petition at the Special Vigilance Court at Muzaffarpur. In CWJC No. 9694 of 1993 in which the order of suspension was challenged, a direction was issued upon the Respondents to conclude the departmental proceeding within 6 months vide order dated 13.04.1994 (Annexure-1). Departmental proceeding was conducted and punishment of censure and stoppage of 1 increment with cumulative effect was passed vide memo no. 28 dated 25.01.1995. In CWJC No. 4055 of 1995, the Patna High Court quashed the order of punishment vide order dated 14.09.1995(Annexure-3). Thereafter the punishment order was withdrawn. 6. According to the petitioner, a seniority list was published by the Department of Water Resources, Government of Bihar in between, where his name was placed at serial no. 1239 and certain persons named at para 13 of the writ petition were placed below him. Earlier to that a seniority list was prepared in 1985 where his name was placed at serial no. 1395. He contends that his immediate juniors were granted junior selection grade scale of pay w.e.f. 01.04.1981 but he was discriminated. In the final gradation list of 1992 his name finds place at serial no. 1269 and certain persons named at para 14 were placed below him. Petitioner was denied current charge of Executive Engineer on officiating basis though junior to him were given such charge. Certain juniors were also granted promotion to the post of Executive Engineer. Petitioner made several representation before the Respondent for these grievances but he has suffered on account of apathy of the respondents only due to vigilance case pending against him. He claimed to have exemplary service record. Petitioner further contends that out of 8 Executive Engineers promoted, some of them have been given the charge of Superintending Engineer as well though they were junior to him. Petitioner has not been allowed any promotion in his entire service career since his joining as Assistant Engineer on 10.01.1975. Therefore, he was left with no other alternative but to approach this Court for the instant relief. Learned counsel for the petitioner has further submitted that the order of punishment should be quashed. Petitioner has not been allowed any promotion in his entire service career since his joining as Assistant Engineer on 10.01.1975. Therefore, he was left with no other alternative but to approach this Court for the instant relief. Learned counsel for the petitioner has further submitted that the order of punishment should be quashed. The appellate order is without jurisdiction and has been passed by the authorities of Bihar after bifurcation of the State of Bihar. 7. Learned counsel for the Respondent State of Bihar has vehemently opposed the contention of the petitioner on the basis of statement made in their counter affidavit. It has been specifically stated, petitioner’s case for regular promotion to the post of Executive Engineer was considered by the Departmental Promotion Committee and found unfit for the reason that Vigilance Case No. 24/87 dated 12.08.1987 was pending in the Court and a departmental proceeding had been initiated for the charges committed during his tenure in Motihari zone. Since he was never promoted to the post of Executive Engineer, he could not even claim for officiating the post of Superintending Engineer on the ground that certain persons junior to him were promoted as Executive Engineer in the meantime. It is further submitted that the allegation was in relation to irregularities and misappropriation of government money in repairing and strengthening work of Triveni Canal. The matter was duly enquired and vigilance case was instituted against him under Section 477,420 and 109 of the I.P.C and Section 5(2) of the P.C. Act. The Government accorded sanction for prosecution against him. Apart from the above, the Vigilance Team had found him guilty of making excessive payment in relation to a work. With reference to the disciplinary proceedings it is stated that the Department had disagreed with the recommendation of the Conducting Officer and found him guilty. However, after quashing of the order of punishment on the point of disagreement, second show cause was again issued on 15.01.1998 to which petitioner replied on 19.03.1998. After examination of the material adduced during inquiry and reply, the punishment of censure and withholding of one increment with cumulative effect was passed. His suspension was revoked but it was held that he would not be entitled for full salary for the period of his suspension. Petitioner had preferred appeal which has also been rejected through letter no. 265 dated 21.05.2004. 8. His suspension was revoked but it was held that he would not be entitled for full salary for the period of his suspension. Petitioner had preferred appeal which has also been rejected through letter no. 265 dated 21.05.2004. 8. Learned counsel for the State of Bihar has further submitted that gradation list published in the year 1985 was considered for promotion to the post of junior selection grade Assistant Engineer but Vigilance Case No.24(8)/87 was pending against the petitioner for the aforesaid offence . Therefore, he was not recommended for selection grade promotion by the DPC. Only on being exonerated of the criminal charges he could be considered for promotion. Petitioner in I.A. No. 7609 of 2017 has specifically stated that he has been convicted by the Special Court in the vigilance case by judgment dated 21.12.2016 and sentenced to undergo R.I. for 2 years and a fine of Rs.2000/-each and in default thereof, to further undergo R.I. for 3 months. He submits that even if the same is under challenge before the Patna High Court in Cr. Appeal No. 192 of 2017, he cannot be granted the benefit of promotion now even on notional basis. As such, petitioner cannot lay challenge to the order of punishment after 19 years of its passing in the year 1999 when he himself had preferred an appeal. He further submits that order of punishment was duly brought on record by the respondents through supplementary affidavit filed on 28.09.2004. Such belated challenge to the punishment order, more so in the aforesaid facts and circumstances, could not have any effect on his substantive prayer for promotion to the post of Executive Engineer on his conviction in the criminal case pending since 1987. 9. I have considered the submission of learned counsel for the parties in the light of the relevant material facts pleaded and taken note above. The sequence of facts elaborated in the foregoing paragraphs will show that petitioner was facing vigilance case since 1987 and sanction for prosecution had also been accorded against him by the Government of Bihar. That was the reason for the DPC to declare him unfit for promotion. That is also the basis for non-grant of junior selection grade to him. The order of punishment is dated 04.02.1999 and petitioner being conscious of it had preferred an appeal also. That was the reason for the DPC to declare him unfit for promotion. That is also the basis for non-grant of junior selection grade to him. The order of punishment is dated 04.02.1999 and petitioner being conscious of it had preferred an appeal also. This fact was specifically suppressed at the time of filing of the writ petition and a belated challenge has been made through the instant interlocutory application filed on 13.09.2017. In such circumstances, this Court is of the view that the challenge sought to be made is stale. The order of punishment has taken effect also. Relying upon the ratio rendered by the Apex Court in the case State of Jammu & Kashmir Vrs. R.K. Zalpuri & others reported in (2015) 15 SCC 602 , such belated challenge to the order of punishment cannot be allowed. 10. On consideration of the totality of the facts and circumstances, this Court does not find any merit in the writ petition. It is accordingly dismissed. I.A. also stands rejected.