Patna High Court
Vijay Chandra Roy vs The State Of Bihar And Ors on 8 March, 2019
Equivalent citations: AIRONLINE 2019 PAT 1262
Author: Madhuresh Prasad
Bench: Madhuresh Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1781 of 2016
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Vijay Chandra Roy Son of late Moti Chandra Roy, Resident of village-
Ranipur, P.S.- Fulwari Sharif, District- Patna
... ... Petitioner
Versus
1. The State Of Bihar through the Chief Secretary, Government of Bihar, Patna
2. Director, Agriculture, Government of Bihar, Patna
3. The Deputy Director, Agriculture (SA), Government of Bihar, Patna
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Santosh Kumar Sinha No. 2
Mr. Arvind Prasad Singh
For the Respondent/s : Mr. Sheo Shankar Prasad- SC 8
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CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD
ORAL JUDGMENT
Date : 08-03-2019
Heard learned Counsel for the petitioner and the learned
Counsel for the respondent State.
2. Writ petition has been filed for quashing the order
dated 14.1.2015 passed by Director Agriculture, whereby and
whereunder representation filed by petitioner in compliance of the
order dated 24.1.2014 passed in CWJC No. 19796 of 2012,
claiming promotion as Junior Research Assistant/Assistant Seed
Analyst, has been rejected.
3. The brief background giving rise to the instant writ
petition is that the petitioner, who was working as Seed
Technician, was under the extant practice in the Department,
considered for being promoted as Junior Research Assistant.
Patna High Court CWJC No.1781 of 2016 dt.08-03-2019
2/8
4. Petitioner's Counsel submits that claim of the
petitioner, having regard to availability of vacancy, was considered
by the authorities including the three men committee on 5.3.1987.
It is also submitted that one five men committee had also
considered case of the petitioner for promotion as Junior Research
Assistant and on 4.9.2009 and the same was found admissible to
the petitioner. Referring to the communication of the Director
Agriculture, Bihar dated 4.12.2009, it is submitted that having
regard to the entire issue the Director under the said
communication has specifically ordered for appointment of the
petitioner as Junior Research Assistant within a month from the
date of issuance of the order. In spite of the said decision of the
Director dated 4.12.2009, when no action was being taken
petitioner had approached this Court by filing a writ petition
CWJC No. 19796 of 2012. The writ petition of the petitioner was
disposed of under order dated 24.1.2014 with a direction to the
Director Agriculture to examine the claim of the petitioner and
pass a fresh order thereupon. Impugned order came to be issued on
14.1.2015, during pendency of the contempt proceeding instituted by the petitioner in MJC No. 3934 of 2014 since in spite of the order of this Court dated 24.1.2014 no order was being passed by the Director Agriculture. Contempt proceeding instituted by the Patna High Court CWJC No.1781 of 2016 dt.08-03-2019 3/8 petitioner was finally disposed of by this Court on 5.8.2015 with a liberty to the petitioner to assail the order rejecting petitioner's claim on 14.1.2015. Accordingly the writ petition has been filed.
5. It is submitted by petitioner's Counsel that the ground taken in the impugned order that the petitioner, is not eligible for promotion as Junior Research Assistant in light of the provisions contained in the Bihar Agriculture Subordinate Service Category I (Agronomy) Rules 2014 and cannot claim the said promotion, is unsustainable.
6. It is an admitted position that petitioner was not possessing the requisite qualification of Graduate in Agriculture Science. However, it is submitted that qualifications have been prescribed for the first time in the said Rules of 2014 and thus canjnot be relied upon to defeat the claim of the petitioner since the petitioner's claim has been pending before the authorities since much prior to coming into force Rules of 2014 with effect from 25.11.2014.
7. It is submitted that in view of specific departmental decision including recommendation of the three men and five men committees, referred to hereinabove, a right has accrued in favour of the petitioner for promotion to the post of Junior Research Assistant. Delay caused by the respondents in finalising their Patna High Court CWJC No.1781 of 2016 dt.08-03-2019 4/8 promotion cannot be made the basis of defeating his legitimate claim which had arisen prior thereto.
8. The respondent State has filed a counter affidavit. Relying the provisions contained in Rules 4 and 5 of the 2014 Rules, it is submitted that the Rules specifically contemplates that the post of Junior Research Assistant is to be filled up by way of promotion against 33% vacancy and consideration for promotion can only be in respect of such persons who are possessing the requisite qualification of Bachelor in Agriculture Science. Since admittedly the petitioner do not possess the said qualification, he could not be entitled to the said promotion as any such promotion if granted to the petitioner would be contrary to the 2014 Rules.
9. This Court would find that the 2014 Rules does require a candidates to possess a Bachelor in Agriculture Science degree for promotion which is claimed by the petitioner. The petitioner is also admittedly not qualified for promotion as per 2014 Rules. Petitioner had approached this Court relying upon the earlier departmental decision to grant him promotion as Junior Research Assistant and the claim of the petitioner had been considered by this Court in the proceedings arising out of CWJC No. 19796 of 2012. Petitioner's claim for same promotion on basis of same departmental decision including decision/recommendation Patna High Court CWJC No.1781 of 2016 dt.08-03-2019 5/8 of 3 men committee, 5 men committee as well as order dated 04.12.2009 issued by Director Agriculture was not allowed. Till passing of the order on 24.1.2014 by this Court in CWJC No. 19796 of 2012 the petitioner had not actually been promoted, accordingly it was only left to the Director Agriculture to take a final decision with respect to his promotion. This Court in the said order has directed as follows:-
"The decision so taken will govern the issue. The decision must be taken by the Director within a period of three months of filing of such application."
10. The claim of the petitioner was, therefore, yet to be considered even after this Court's earlier order dated 24.2.2014. Apart from the fact that this Court on the earlier occasion has not found any right to promotion in favour of the petitioner. Order of this Court dated 24.2.2014 passed on petitioner's earlier writ petition was also not challenged by the petitioner. Thus petitioner cannot be heard to submit in these subsequent proceedings that relying on decisions recommendations prior to 24.02.2014, he has a right to be promoted as Junior Research Assistant.
11. The Court would also consider the effect of Rule 13 of 2014 Rules. It is in two parts. The first 13(i) reads as follows:-
"13. fujlu ,oa O;ko`frA& Patna High Court CWJC No.1781 of 2016 dt.08-03-2019 6/8
(i) bl laoxZ ds dfeZ;ksa dh fu;qfDr/lsok 'krZ laca/kh iwoZ esa fuxZr lHkh ifji=/vuqns'k/ladYi ,rn }kjk fujflr fd, tkrs gSaA "
The provision obliterates all earlier departmental decision. That also is apparently prejudicial to the petitioner's claim since the claim is based on the earlier departmental decision prior to framing of the Rules consequent to which petitioner was never granted promotion and which decisions stand nullified in view of sub-rule (i).
Sub-rule (ii) of Rule 13 of 2014 Rules, however, contemplates as follows:-
"13. fujlu ,oa O;ko`frA&
(ii) ,sls fujlu ds gksrs gq, Hkh] iwoZ fuxZr ifji=/vuqns'k/ ladYi ds v/khu fd;k x;k dqN Hkh ;k dh x;h dksbZ dkjZokbZ bl fu;ekoyh ds v/khu fd;k x;k ;k dh x;h le>h tk;xh ekuks ;g fu;ekoyh ml fnu izo`r Fkh tc oSlk dqN fd;k ;k oSlh dkjZokbZ dh x;h FkkhA"
12. The effect of Sub Rule (ii) of Rule 13 is that all action taken pursuant to decision, which had been taken in respect of the petitioner prior to coming into force of 2014 Rules, will now be deemed to have been taken under the new Rules. By operation of the said provision, this Court would find that the petitioner cannot be denuded of his status and benefit already granted to him Patna High Court CWJC No.1781 of 2016 dt.08-03-2019 7/8 by the authorities under order dated 27.3.1990 issued by the Director Agriculture (Annexure 3).
13. To clarify this position, this Court had granted specific opportunity to the respondents by earlier order dated 22.2.2019 to place on record, whether they have ever withdrawn the benefits of decision of the Director dated 27.3.1990 whereby and whereunder the petitioner was granted scale of Rs. 555 - 765/- treating him as members of Bihar Agriculture Subordinate Service Class I (Agronomy).
14. Counter affidavit has been filed by respondents thereafter. It is the specific stand of the respondents that scale of Rs. 555 - 765 has not been withdrawn from the petitioner. Admittedly, the benefit of Annexure 3 have not been withdrawn from the petitioner by the respondent authorities after coming into force of 2014 Rules. Such action of the respondents is in compliance of Rule 13(ii) of the 2014 Rules. As a result of the said provision the petitioner's status and scale under Annexure 3 have apparently been saved by the respondent authorities themselves.
15. In so far as the other claim for promotion to the post of Junior Research Assistant on the basis of earlier departmental decision, this Court would find that such claim is not valid in view of the extant Rules and other reasons indicated hereinabove.
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16. It is submitted by the petitioner's Counsel that if considered necessary the petitioner may be allowed to challenge 2014 Rules. Since the issue has not been raised or decided in the instant proceedings, it is needless to comment on such prayer.
17. Writ petition is dismissed.
(Madhuresh Prasad, J.) SNkumar/-
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