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2018 DIGILAW 292 (JHR)

Nistar Minz v. State of Jharkhand

2018-02-03

RONGAN MUKHOPADHYAY

body2018
ORDER : 1. Heard Mr. Rajiv Sinha, learned counsel appearing for the petitioner, Mr. Ashish Kumar Jha, learned J.C. to Sr. S.C.I for the respondents-State of Jharkhand and Mr. Pankaj Kumar, learned counsel appearing for the respondent-State of Bihar. 2. In this application, the petitioner has prayed for declaration that the Notification bearing No. 3255 dated 11.1.2009 by which the petitioner has been given promotion in the pay scale of Rs. 10,000-15,200/- with immediate effect is not correct to the extent it related to the effective date of promotion, as the petitioner is entitled to the said promotion w.e.f. 27.10.1996. A further prayer has been made for declaration upon the respondents to grant promotion on the post of Joint Director in the pay scale of Rs. 12,000-16,500/- w.e.f. 27.10.1999 and in the pay scale of Rs. 14,300-18,300/- after completion of 5 years of scale based Kalawadhi in view of the Resolution dated 5.7.2002 issued by the department of Personnel, Administrative Reforms and Rajbhasha. Briefly stated the facts of the case are that the petitioner was appointed as Agriculture Inspector in the year 1975. The petitioner was appointed on the post of basic grade of Bihar Agriculture Service in the same pay scale of subordinate service in the month of March, 1985. He was appointed on the post of basic grade of Bitlar Agriculture service by way of promotion on the recommendation of the Bihar Public Service Commission w.e.f. 27.10.1986. On the representation made by the petitioner for promotion, recommendation was also made for promotion to Class I post w.e.f. 17.10.1991 by the Departmental Promotion Committee held on 24.4.1995. However due to some dispute in the reservation policy, the recommendation was not given effect to. The Departmental Promotion Committee once again recommended for promotion of the petitioner in Class- I post in the junior selection grade w.e.f. 27.10.1991 and the petitioner was granted promotion. The petitioner claims that he was entitled to get the Senior Selection Grade w.e.f. 27.10.1996 on completion of 5 years for which representations were filed but the same was of no avail. In the meantime vide departmental letter No. 1177 dated 29.7.2006, the petitioner was allocated the State of Jharkhand wherein he gave his joining. The petitioner represented the authorities as he claimed to be entitled to be promoted as Deputy Detector w.e.f. 27.10.1996, Joint Director w.e.f. 27. In the meantime vide departmental letter No. 1177 dated 29.7.2006, the petitioner was allocated the State of Jharkhand wherein he gave his joining. The petitioner represented the authorities as he claimed to be entitled to be promoted as Deputy Detector w.e.f. 27.10.1996, Joint Director w.e.f. 27. 10 .1999 and thereafter as Additional Director/Director in the same of Rs.14,300-18,300. However since the same was not considered the petitioner preferred a writ petition being W.P. (S) No. 2508 of 2007 which was disposed of with a direction to the respondents to consider the representation and pass appropriate orders. Since the order passed in W.P. (S) No. 2508 of 2007 was not complied with a contempt application being Contempt Case (Civil) No. 22 of 2008 was preferred. During the pendency of the contempt application, the impugned letter was issued in which the petitioner was granted promotion on the post of Deputy Director Soil Conservation w.e.f. from the date of issuance of the notification. 3. It has been stated by Mr. Rajiv Sinha, learned counsel for the petitioner that the Departmental Promotion Committee had recommended for grant of only one promotion and it has remained silent with respect to the subsequent promotions which the petitioner is entitled. Mr. Sinha further subunits that the Kalawadhi is scale based and the promotion earned by the petitioner in terms of the existing resolution dealing with Kalawadhi cannot be denied to the petitioner. Learned counsel further submits that the petitioner has worked on the promotional post throughout his service career and it is absolutely clear that in spite of promotional posts available no person had been granted regular promotion after coming into existence of the State of Jharkhand. It has further been submitted that .the Department of Personnel, Administrative Reforms and Rajbhasa vide-resolution dated 19.6.2007 has clarified that promotion from the scale of Rs. 10,000-15,200 to Rs. 14,300-18,300 can be granted to the employees who have completed the requisite Kalawadhi of 10 years. Learned counsel submits that the promotion of the petitioner to the post of Deputy Direction had become due on 27.10.1996 and after completion of 10 years, the petitioner automatically became' eligible for grant of pay scale of Rs. 14,300-18,300 w.e.f. 27.10.1996. Learned counsel has also referred to the (sic) treatment meted out to the petitioner. Learned counsel submits that the promotion of the petitioner to the post of Deputy Direction had become due on 27.10.1996 and after completion of 10 years, the petitioner automatically became' eligible for grant of pay scale of Rs. 14,300-18,300 w.e.f. 27.10.1996. Learned counsel has also referred to the (sic) treatment meted out to the petitioner. It has further been stated that the petitioner's promotion although became due w.e.f. 27.10.1996 but taking into consideration the letter issued by the Department of Personnel, Administrative Reform and Rajbhasha, Bihar dated 16.05.1978, the petitioner is entitled to one year relaxation from the fixed Kalawadhi, which entitles the petitioner for the promotion ill the senior selection grade w.e.f. 27.10.1995, which is before 1.1.1996. It has also been stated that in the case of Smt. Basanti Tirkey, the State granted privilege of one year relaxation based on the circular dated 16.5.1978. 4. Learned J.C. to Sr. S.C. I appearing for the respondents-State of Jharkhand, while relying on the counter-affidavit has stated that after the petitioner was granted promotion on and from 11.1.2009, next promotion proposal can be considered only on satisfactory completion of 5 years of service in the scale of Rs. 10.000-15.200/-. Learned counsel submits that since the petitioner was promoted on 28.2.2009 he is not qualifying the first mandatory condition and therefore there can be no further consideration for his promotion. 5. Mr. Pankaj Kumar learned counsel appearing for the State of Bihar while relying on the supplementary counter-affidavit filed by him submits that the petitioner completed 5 years prescribed Kalawadhi in the junior selection grade on 27.10.1996 where as existing facility of selection grade had been abolished w.e.f. 01.01.1996 and therefore grant of senior selection grade to the petitioner is not tenable. It has further been submitted that so far as the relaxation is concerned only those officers who are brought under the zone of consideration completing the minimum fixed Kalawadhi shall be considered and thereafter the first transaction shall cease to exist. 6. On consideration of the submissions advanced by the learned counsel for the parties it appears that the notification was issued on 11.1.2009 wherein the petitioner was granted promotion with immediate effect in the pay scale of Rs. 10.000-15.200/-. The petitioner claims himself to be entitled for promotion w.e.f. 27.10.1996 and not from 11.1.2009. 6. On consideration of the submissions advanced by the learned counsel for the parties it appears that the notification was issued on 11.1.2009 wherein the petitioner was granted promotion with immediate effect in the pay scale of Rs. 10.000-15.200/-. The petitioner claims himself to be entitled for promotion w.e.f. 27.10.1996 and not from 11.1.2009. It is further case of the petitioner that although relaxation was granted in terms of the resolution of the year 1978 to one Basanti Tirkey but the same benefit had not been given to the petitioner. It is also not in dispute that the petitioner had worked on a higher post. 7. Be that as it may since it "appears that proper" consideration has not been made with respect to the aspect of 5 years Kalawadhi which was to be considered and which also provides a relaxation of one year which would entitle the petitioner to come within the domain for consideration but he has been given promotion w.e.f. 27.10.1996 and the said aspect having not been properly considered by the respondents. this writ petition is disposed of with a liberty to the petitioner to file a representation before the respondent No. 2 who shall on submission of said representation consider the same in accordance with law and thereafter pass necessary orders expeditiously and preferably within a period of six weeks from the date of receipt of a copy of the representation. Petition disposed of.