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2019 DIGILAW 1663 (JHR)

State Of Jharkhand v. Md. Sikander Ali

2019-09-18

DEEPAK ROSHAN

body2019
JUDGMENT Deepak Roshan, J. - Heard learned Additional Advocate General for the appellant State. 2. The appellant State is aggrieved by the impugned order dated 11.10.2017, passed by the Hon ble Single Judge, in W.P.(S) No. 1839 of 2007, whereby the writ application filed by the respondent writ petitioner, was allowed, quashing the impugned order dated 23.01.2007, whereby his promotion to the post of Headmaster in the school was cancelled, and since the writ petitioner had attained the age of superannuation, he was directed to be extended the consequential benefits. 3. This appeal has been filed after a delay of 501 days, and for the condonation of this delay, I.A. No. 2909 of 2019 has been filed. I.A. No. 2910 of 2019 has been filed, seeking stay of the operation of the impugned order passed by the Writ Court. 4. The facts of this case lie in a short compass. The respondent herein, was appointed as Assistant Teacher in Matric Trained Scale on 30.11.1972. He was given I.A. trained scale on 01.04.1976, and B.A trained scale with effect from 01.04.1981, vide office order dated 18.11.1987, but in the meantime, the persons junior to him, were granted B.A. trained scale earlier, with effect from 01.04.1980. Aggrieved thereby, the respondent herein represented before the concerned authorities, and his representation found favour with the authorities, and vide corrigendum dated 27.04.1998, he was given B.A. trained scale with effect from 01.04.1980, and his seniority was restored. The respondent writ petitioner was denied the promotion to the post of Headmaster, which was given to his juniors. He again made representation before the respondent authorities, which again found favour with the authorities, and the writ petitioner was promoted as Headmaster, notionally with effect from 01.04.1983 and posted in Urdu Kanya Madhya Vidyalaya, Kalipara, District Sahebganj. 5. So far so good. The grievances of the respondent writ petitioner started thereafter, as a show cause notice was issued to him on 05.07.2002, to explain as to under what circumstances he had been posted as Headmaster in Urdu Kanya Madhya Vidyalaya, Kalipara, as the post was not sanctioned one. Ultimately, his promotion to the said post was cancelled on the same ground. The grievances of the respondent writ petitioner started thereafter, as a show cause notice was issued to him on 05.07.2002, to explain as to under what circumstances he had been posted as Headmaster in Urdu Kanya Madhya Vidyalaya, Kalipara, as the post was not sanctioned one. Ultimately, his promotion to the said post was cancelled on the same ground. Aggrieved thereby, the respondent writ petitioner approached this Court in C.W.J.C. No.5219 of 2002, which was disposed of vide order dated 02.06.2003, in the following terms:- In the facts and circumstances, as the petitioner was not promoted on the recommendation of Establishment Committee, this Court is not inclined to interfere with the office order No.1938 dated 17th August,2002, but taking into consideration the fact that a number of juniors to petitioner have already been promoted to the higher posts of Headmaster without consideration of the case of the petitioner, the respondents are directed to consider the case of the petitioner for promotion to the higher post of Headmaster w.e.f the date he was eligible or the juniors was so promoted, whichever is earlier. 6. The said order was initially not complied with by the State Government, but when the respondent writ petitioner filed a contempt application in this Court, he was granted due promotion with certain conditions. However, again an inquiry was set up and it was held that the promotion of the petitioner was not in accordance with 1993 Rules, which had come in force with effect from 01.01.1986, and his promotion was again cancelled by order dated 23.01.2007. 7. Aggrieved thereby, the respondent writ petitioner again approached this Court in W.P. (S) No. 1839 of 2007, which was allowed by the Writ Court by the impugned order dated 11.10.2017, holding that the order dated 23.01.2007, cancelling the promotion of the writ petitioner, on the ground that his promotion was not in accordance with 1993 Rules, could not be sustained in the eyes of law, as the same was passed without taking into consideration the fact that some juniors to him had been promoted, and observations were made to this effect in his favour in C.W.J.C. No. 5291 of 2002. The Writ Court also found that the writ petitioner had been promoted with effect from 01.04.1983, on the ground that some of his juniors were given promotion with effect from that date, and as such,1993 Rules shall not come in play against the writ petitioner, which was made applicable with effect from 01.01.1986. Accordingly, the writ application was allowed by the Writ Court, and since by that time, the writ petitioner had attained the age of superannuation, he was directed to be extended the consequential benefits. Aggrieved thereby, the present LPA has been filed by the appellant State. 8. Learned Additional Advocate General for the State submits that the impugned order passed by the Writ Court, cannot be sustained in the eyes of law, inasmuch as, the writ petitioner was given the promotion on 30.10.2000, i.e., admittedly after coming into force of 1993 Rules, according to which the writ petitioner was not entitled to be promoted to the post of Headmaster, though the promotion was made with effect from 01.04.1983, i.e., with effect from prior to coming into force of 1993 Rules. 9. We fail to appreciate the submission of the learned Additional Advocate General. The respondent writ petitioner had been given promotion with effect from 01.04.1983, which was denied to him with effect from that date, for no fault on his part, rather it was solely due to the laches on the part of the State Government, and it was only on his representations, his grievances were redressed by the respondent authorities, and he was given promotion in Graduate trained scale, with effect from 01.04.1980, his seniority was restored, and subsequently, he was promoted to the post of Headmaster, since the date his juniors were promoted. We fail to understand as to how, when the persons junior to the petitioner had been granted promotion to the post of Headmaster, the petitioner could be denied the same on the ground of coming into force of 1993 Rules thereafter. 10. Even otherwise, we find that this was not the ground, on which, the promotion of the respondent was earlier cancelled. His promotion was cancelled on the ground that post was not sanctioned, and when he moved the High Court and some direction was passed in his favour, in C.W.J.C. No.5219 of 2002, the same was not complied with by the authorities concerned, until he was compelled to file contempt petition. His promotion was cancelled on the ground that post was not sanctioned, and when he moved the High Court and some direction was passed in his favour, in C.W.J.C. No.5219 of 2002, the same was not complied with by the authorities concerned, until he was compelled to file contempt petition. Only thereafter, he was given promotion, but thereafter, his promotion was again cancelled on a new ground that he was not fulfilling the criteria, as per 1993 Rules. This action clearly smacks of malice against the respondent writ petitioner, and unfair practice on part of the concerned authorities, which cannot be allowed to be done, and the Writ Court was perfectly justified in quashing the illegal order passed by the concerned authorities. 11. For the forgoing reasons, we find no illegality in the impugned order dated 11.10.2017, passed by the Writ Court, in W.P.(S) No.1839 of 2007, worth any interference in exercise of Letters Patent Appellate jurisdiction. 12. Since, there is no merit in this appeal, no useful purpose is going to be served by condoning the delay in filing the appeal. Accordingly, I.A. No.2909 of 2019, filed for condonation of delay of 501 days in filing the appeal, stands dismissed. For the same reason, I.A. No. 2910 of 2019, seeking stay of the operation of the impugned order passed by the Writ Court, also stands dismissed. 13. Consequently, this Letters Patent Appeal also stands dismissed in limine, being bereft of any merit and hopelessly barred by limitation.