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2023 DIGILAW 179 (JHR)

Vijay Kumar Tiwari v. State of Jharkhand

2023-02-15

S.N.PATHAK

body2023
JUDGMENT : Heard the parties. 2. Petitioner has approached this Court with a prayer for direction to the respondents to consider his case for promotion from Class-IV post to Class-III post, taking into consideration the letter dated 20.05.2011, issued under the signature of Secretary, Drinking Water and Sanitation Department. 3. As per the factual matrix, the petitioner was appointed as Chowkidar against the vacant and sanctioned post of Class-IV w.e.f. 05.03.1993 vide office order No. 30, dated 20.03.1993, issued under the signature of Executive Engineer, Public Health Division, Ranchi West, Ranchi. At the time of appointment, the educational qualification of the petitioner was non-matric. In the year 1996, the petitioner passed the matriculation examination in 2nd division after seeking permission from the respondent-Department, which is evident from the certificate dated 21.08.1997. The service of the petitioner was confirmed w.e.f. 05.03.1996 and the petitioner was also extended the benefits of higher pay-scale under 1st ACP w.e.f. 05.03.2005. It is the specific case of the petitioner that after his appointment, he has rendered more than 20 years of service and he is senior most Class-IV employee in the circle and also matriculate, but inspite of the same, he has not been considered for promotion though the vacancies are available. Hence, he has been constrained to knock the door of this Court for redressal of his grievances. 4. Mr. Amit Sinha, learned counsel appearing for the petitioner vociferously argues that petitioner is entitled for promotion to Class-III post since he has rendered more than 20 years of service and he is senior most Class-IV employees in the department. Learned counsel further argues that in view of letter dated 20.05.2011, his case ought to have been considered for promotion by holding departmental examination. But since the department has failed to hold departmental examination for years together, the petitioner shall not suffer for the same and his case may be considered for promotion in view of aforesaid letter. 5. Per contra, counter-affidavit has been filed. Mr. Aditya Raman, learned counsel appearing for the respondent-State vehemently opposes the contention of learned counsel for the petitioner and submits that admittedly an employee is entitled for promotion to Class-III post by way of departmental examination but only when he possesses the requisite qualification. Learned counsel submits that admittedly, the petitioner was having the qualification of matriculation but as per Jharkhand Govt. Learned counsel submits that admittedly, the petitioner was having the qualification of matriculation but as per Jharkhand Govt. Notification No. 7/ Policy-08-01/2008-1749, dated 21.03.2010, the essential qualification for promotion to Class-III post is Intermediate but as the petitioner is only having the qualification of matriculation, it is not possible to promote him to Class-III post and hence, rightly his case for promotion has been turned down. Learned counsel submits that any promotion has to be done as per the rules and nobody can be considered for appointment/ promotion dehors the rules. 6. Be that as it may, having heard the learned counsel for the parties across the bar and upon perusal of the documents brought on record, this Court is of the considered view that no case is made out for interference. Admittedly, the petitioner is not having the requisite qualification for being promoted to Class-III post inasmuch as the required qualification is Intermediate but the petitioner was only having the qualification of Matriculate and hence, he has not been promoted to the said post. Law is well settled that any promotion has to be done as per the Rules and no employee can be considered for promotion dehors the rules. Admittedly, the petitioner has rendered more than 20 years of service but he is not fulfilling the requisite qualification i.e. Intermediate pass and as such, rightly his case was turned down by the respondent-authorities. 7. The Hon’ble Apex Court in case of Rupa Rani Rakshit & Ors. v. Jharkhand Gramin Bank & Ors., reported in (2010) 1 SCC 345 has held as under : “12. It is now well settled that if an appointment or promotion is made without considering the claims of all the available eligible candidates and/or without following the relevant rules, the service rendered in pursuance of such illegal appointment or promotion cannot be equated to service rendered in pursuance of an appointment or promotion validly and lawfully made. Whenever a person is promoted to a post without following the rules prescribed for such promotion, he should be treated as a person not regularly promoted to that post. Consequently, where promotions are governed by the Rules, in computing the length of service, in the post to which an employee is promoted, it is not permissible to include the period of service rendered in pursuance of an illegal promotion which is subsequently set aside.” 8. Consequently, where promotions are governed by the Rules, in computing the length of service, in the post to which an employee is promoted, it is not permissible to include the period of service rendered in pursuance of an illegal promotion which is subsequently set aside.” 8. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the instant writ petition merits dismissal and the same is hereby dismissed.