Research › Search › Judgment

Jharkhand High Court · body

2021 DIGILAW 204 (JHR)

Murari Bhagat v. State of Jharkhand

2021-02-17

SANJAY KUMAR DWIVEDI

body2021
ORDER : 1. Heard Mr. Jitendra Singh, the learned Senior counsel assisted by Ms. Amrita Sinha, the learned vice counsel appearing on behalf of the petitioner and Mr. Mukesh Kumar Sinha, the learned counsel appearing on behalf of the respondent/State. 2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. The petitioner has preferred this writ petition to declare that the petitioner has been promoted to cadre post in Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary, Road Construction Department, Government of Jharkhand as per the provisions of Jharkhand Engineering Services Recruitment Rules, 2016 [hereinafter to be referred to as the Rules, 2016] from the feeder post Chief Engineer, Road Construction Department, Government of Jharkhand, Ranchi and not within non-existent post of Engineer-in-Chief. The further prayer is made to declare the petitioner as entitled for the above said promotion to the cadre post of Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary, Road Construction Department, Government of Jharkhand, Ranchi and the applicable decision of the State of Jharkhand from the due date i.e. 24.12.2019 and not from 08.07.2020 as has been notified by the notification dated 08.07.2020 contained in Annexure-11. The prayer for consequential benefit is also made in the writ petition. 4. The petitioner was appointed on the post of Assistant Engineer in the Road Construction Department, Government of Bihar vide notification dated 16.06.1987 as per the provisions of Bihar Engineering Services Class-II Rules, 1939 pursuant to due selection process held by the Bihar Public Service Commission. The petitioner was substantially promoted to the post of Executive Engineer w.e.f. 15.06.1995 vide notification dated 27.08.1996 by the said department as per the provisions of Bihar Engineering Services Class-I Rules, 1939. On bifurcation of the erstwhile State of Bihar w.e.f. 15.11.2000 as per the provisions of Bihar Re-organization Act, 2000, the services of the petitioner on the post of Executive Engineer was allocated to the State of Jharkhand. The petitioner became a member of Class-I Engineering Services of State of Jharkhand in the Road Construction Department as per the Bihar Engineering Services Class-I Rules, 1939. In that view of the matter, the State of Jharkhand is the controlling authority of the petitioner. The petitioner became a member of Class-I Engineering Services of State of Jharkhand in the Road Construction Department as per the Bihar Engineering Services Class-I Rules, 1939. In that view of the matter, the State of Jharkhand is the controlling authority of the petitioner. The petitioner was promoted to the post of Superintending Engineer on substantial basis as per the provisions of Bihar Engineering Services Class-I Rules, 1939 by notification dated 08.07.2014. The petitioner filed W.P. (S) No. 415/2015 praying therein to consider the case for promotion on the post of Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary w.e.f. 01.02.2014 as the petitioner was already holding the post of Engineer in Chief on additional charge. The said writ petition was disposed of observing that the claim of the petitioner for promotion would depend on consideration of all eligible persons who fall in the zone of consideration upon the availability of vacancy in the respective category. The State of Jharkhand came out with a notification dated 12.04.2016 whereby the Jharkhand Engineering Services Recruitment Rules, 2016 was notified which was published in the Official Gazette (Extra Ordinary) on 03.05.2016. Rule-3 of the said Rules disclose the consisting of post mentioned in Schedule-I. Rule-7(III) and (IV) read with Schedule-II of the 2016 Rules, the post of Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary is to fill up on the recommendation of the Departmental Promotion Committee as constituted in Schedule-IV. The Schedule-IV speaks of the Departmental Promotion Committee so far the post of the petitioner is concerned. The Committee is headed by the Development Commissioner, Principal Secretary/Secretary RCD, Principal Secretary/ Secretary WRD, Principal Secretary/Secretary of the concerned Department provided he is not otherwise the member, A scheduled caste/tribe representative not below the rank of Deputy Secretary as nominated by the Department of Personnel and Joint/Deputy Secretary in charge of the concerned Department are the Members. In view of the said rules, the case of the petitioner for substantial promotion to the next promotional and sanctioned post of Engineer-in-Chief-cum-Additional Commissioner-cum- Special Secretary was considered by the D.P.C. in terms of Rules 7(III) r/w Schedule-II. The Rules of 2016 discussed in meeting dated 17.06.2020 and he was found eligible and suitable for the said promotion and he was so recommended by the said committee. However, in the said notification, the post was wrongly mentioned as Chief Engineer as per the rules of 2016 in place of Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary. The Rules of 2016 discussed in meeting dated 17.06.2020 and he was found eligible and suitable for the said promotion and he was so recommended by the said committee. However, in the said notification, the post was wrongly mentioned as Chief Engineer as per the rules of 2016 in place of Engineer-in-Chief-cum-Additional Commissioner-cum-Special Secretary. The petitioner filed a representation for correction of the same. The promotion was allowed w.e.f. 24.12.2019. Thereafter this matter was heard on 18.11.2020 and the respondent/State was directed to file counter affidavit and pursuant thereto the counter affidavit has been filed and subsequently the supplementary counter affidavit has been filed on 08.01.2021 whereby in paragraph no. 4 it has been disclosed that in accordance with the advice of the Personnel, Administrative Reforms and Rajbhasha Department the D.P.C. conducted on 18.11.2020 wherein the issue of the petitioner was taken into consideration and the final approval of the decision taken by the D.P.C. is in process and the decision of the D.P.C. and notification shall be published in furtherance of the same. Thereafter the matter was again adjourned and the proceeding of the D.P.C. has been brought on the record by way of said supplementary counter affidavit whereby the post of the petitioner has been rectified and the due date of the promotion was notified to 24.12.2019. In view of such supplementary counter affidavit, by order dated 05.12.2020, the matter was adjourned to be listed after the vacation and the respondent/State was directed to file the progress report in terms of the order dated 12.11.2020, however, the progress report was not filed and the matter was again adjourned for 12.01.2021 for disclosing with regard to notification of promotion of the petitioner. The matter was again adjourned on 28.01.2021 for filing the said affidavit. On 05.02.2021, the matter was adjourned due to paucity of time with the Court. Now, the supplementary counter affidavit has been filed on behalf of the respondent/State wherein in paragraph no. 6 onwards it has been stated that final decision on the recommendation made by the Departmental Promotion Committee is under process. In paragraph no. On 05.02.2021, the matter was adjourned due to paucity of time with the Court. Now, the supplementary counter affidavit has been filed on behalf of the respondent/State wherein in paragraph no. 6 onwards it has been stated that final decision on the recommendation made by the Departmental Promotion Committee is under process. In paragraph no. 8 of the last supplementary counter affidavit, it has been stated that the said recommendation of the Departmental Promotion Committee held on 18.11.2020, the file was placed before the higher level for seeking required approval and in the same paragraph, it has also been stated that the concurrence of the Finance Department has also been sought. In paragraph no. 9 of the said supplementary counter affidavit it has been disclosed that the Personnel, Administrative Reforms and Rajbhasha Department by letter dated 24.12.2020 the decision of the State Government has been taken to stop the promotion for all the services and post with immediate effect till the next order. In the light of this, further 12 weeks’ time has been requested for taking final decision by the respondent/State. 5. On these background, Mr. Jitendra Singh, the learned Senior counsel appearing for the petitioner submits that inspite of so many indulgences by this Court, the State Government has not come forward with the final notification which is arbitrary in nature. He submits that the petitioner has already put his 31 years of service with the State Government and in the service jurisprudence, the promotion is very important in view of the fact that this is provided on the basis of the entire career of one employee. He submits that in the supplementary counter affidavit the reasons disclosed for not coming forward with the notification is unwarranted. He further submits that once a Departmental Promotion Committee constituted by six Members including the Chairman has recommended the case of the petitioner that too, twice, there is no occasion why such delay is being made by the respondent/State. He submits that the Division Bench of this Court has recently considered this aspect of the matter in the case of Shree Ram Tiwari vs. State of Jharkhand and Others, L.P.A. No. 850/2019, wherein, in part of paragraph no. He submits that the Division Bench of this Court has recently considered this aspect of the matter in the case of Shree Ram Tiwari vs. State of Jharkhand and Others, L.P.A. No. 850/2019, wherein, in part of paragraph no. 11, it has been held as under: “.........It has further been held that the methods of evaluation of the abilities or the competence of persons to be selected for such posts should in the public interest ordinarily be left to be done by the individual or a committee consisting of persons who have the knowledge of the requirements of a given post, to be nominated by the employer. The court is not by its very nature competent to appreciate the abilities, qualities or attributes necessary for the task, office or duty of every kind of post in the modern world and it would be hazardous for it to undertake the responsibility or assessing whether a person is fit for being promoted to a higher post which is to be filled up by selection. It is only when the process of selection is vitiated on the ground of bias, mala-fides or any other similar vitiating circumstance that other considerations will arise......” 6. In view of these submissions and considering the submission of Mr. Mukesh Kumar Sinha, the learned counsel appearing on behalf of the respondent/State, he has argued the verbatim, as placed in the supplementary counter affidavit, the writ petition is being disposed of with regard to the Relief No. I as in the writ petition and directing the respondent nos. 1, 3 and 4 to notify the notification of the petitioner in view of the Departmental Promotion Committee [D.P.C.] within a period of six weeks. 7. So far as the relief No. II in the writ petition is concerned, it is kept open and the petitioner is at liberty to take steps if the Relief No. II is not being granted by the respondent/State. 8. With the above observation and direction, the instant writ petition stands disposed of. Writ Petition disposed of.