Patna High Court
Mahendra Pd.Singh & Ors vs The State Of Bihar & Ors on 10 August, 2010
Author: Ajay Kumar Tripathi
Bench: Ajay Kumar Tripathi
CIVIL WRIT JURISDICTION CASE No.6233 OF 1997
In the matter of an application under Article 226 of the
Constitution of India.
______
1. Mahendra Pd. Singh son of late Deo Prasad Singh, resident of 550
Nehru Nagar, Patna-13, at present Assistant Mining Officer,
District-Chhapra.
2. Sikander Prasad Sinha, son of late Anup Lal Sinha, resident of
village Kharuna, P.S. Rajon, Dist. Banka.
3. Birendra Prasad son of late Gajadhar Prasad, resident of village -
Manjhi, Dist. Saran.
4. Yugal Kishore Singh son of late Rameshwar Singh, resident of
village Masia, P.S. Asthawa, Dist. Nalanda.
______ Petitioners
Versus
1. The State of Bihar through the Secretary cum Commissioner, Mines
and Geology Deptt. Govt. of Bihar, Patna.
2. The Additional Secretary, Mines & Geology Deptt., Bihar, New
Secretariat, Patna.
3. The Director of Mines, Bihar, New Secretariat, Patna.
________ Respondents
For the petitioners : M/S. Akashdeep and Shyuameshwar Kumar Singh.
For the State : Mr. V M K Sinha, Spl. P.P. (Mines).
_______
PRESENT
THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI
Ajay Kumar Tripathi,J All the petitioners have now retired during the pendency
of the writ application. They have retired from the post of Assistant
Mining Officer. They filed the writ application in the year 1997 when
their request and prayer made to the competent authority to reconsider
the date of promotion to the post on a substantive basis was not
responded to.
2. It is not disputed that vide Notification No. 4790 dated
7.9.1987and Notification Nos. 2778, 2779 & 2780 dated 18.6.1987, contained in Annexures 4 and 5, petitioners were granted promotion to 2 the post of Assistant Mining Officers. This promotion was given to them on a substantive basis from the date of the notifications which the petitioners term it as arbitrary and discriminatory, specially in the background that the petitioners were granted pay-scale of Assistant Mining Officer from 1.4.1981 and given charge on officiating basis from 14.7.1986 in terms of the notification contained in Annexure-2.
3. There are primarily two submissions which have been made in favour of changing the date of promotion to the date when the vacancies were available on the ground that similarly situated persons whose names have been indicated in para 7 of the writ application have been given this benefit by the same department and these petitioners have been treated differently. The other ground for demanding such parity or relief is the so-called circulars and decisions of the State Government itself, which is reflected in the notification dated 9th January, 1992, contained in Annexure-7 issued by the then Chief Secretary of the State as well as the notification reiterating similar stand dated 14th September, 2004, which has been brought on record as Annexure-10.
4. Counsel for the State submits that the petitioners have themselves to blame because they did not move the authorities well in time. It is evident that when the notification giving promotion, based on the recommendations of the Departmental Promotion Committee was issued, they had no grievance for about three years and they moved the department for such a relief in the year 1990. It is also submitted that the department has gone ahead with the 3 recommendations of the Departmental Promotion Committee and the benefit of promotion has accrued from the date of notification. There is no infirmity so far as the State is concerned.
5. But when pointed question was put to the counsel for the State whether any decision was taken and communicated to the petitioners on their applications, filed in the year 1990, he has no information to offer on this count. This aspect has further not been talked about in the counter affidavit and to make it worse when this application was admitted, no decision was taken by the respondents on the issue in the meanwhile as well. If there was delay of three years on the part of the petitioners to move the State authorities with a request for reconsideration, there is delay of 20 years on the part of the State in not responding to such a request.
6. There is nothing stated in the counter affidavit with regard to the question of discrimination pointed out in para 7 of the writ application. Their stand is that they have gone by the wisdom of DPC's recommendations. But it is no answer to the questions which have been raised in the writ application.
7. Learned counsel relies on a few decisions which have been rendered by the Hon`ble Supermen Court as well as this High Court on the question of a right of an employee to be considered for promotion. In this regard the case of C.O. Arumugam and others v. State of Tamil Nadu and others, reported in 1991 Supp. (2) Supreme Court Cases, 199 has relevance. Para -5 of the said decision is reproduced hereinbelow for ready reference:- 4
"5. As to the merits of the matter, it is necessary to state that every civil servants has a right to have his case considered for promotion according to his turn and it is a guarantee flowing from Articles 14 and 16(1) of the Constitution. The consideration of promotion could be postponed only on reasonable grounds. To avoid arbitrariness, it would be better to follow certain uniform principles. The promotion of persons against whom charge has been framed in the disciplinary proceedings or charge-sheet has been filed in criminal case may be deferred till the proceedings are concluded. They must, however, be considered for promotion if they are exonerated or acquitted from the charges. If found suitable, they shall then be given the promotion with retrospective effect from the date on which their juniors were promoted."
8. Similar view has also been expressed by Patna High Court in the case of Chittranjan Kumar Buernevey v. The Bihar State Electricity Board through its Chairman and others, reported in 1997 (2) All PLR 365. Reliance has been placed on paragraph 28 of the said decision, which too is quoted hereinbelow:
"28. Therefore, the question is whether an employee is free to defer at its sweet will the consideration of an incumbent‟s case of promotion when the vacancy occurs and when the persons whose case is ripe for consideration is making repeated representations for such consideration of his case. If the answer is given by this Court in 5 affirmative then an employer would be put in the position of being an „imperium in imperio‟. Under the constitutional set up no body can claim that position. On the other hand the Apex Court is constantly harping on the fact that the governmental authorities in keeping with the concept of a Welfare State should act as a model employer. Acting as a model employer, implies that persons who are entitled to be considered for promotion at the teem when the vacancy occurs ought to be so considered in accordance with law and they must know where they stand. Therefore, a fair consideration of case for promotion implies a timely consideration and not a belated one or at any time when the employer thinks it fit. As the employee has a fundamental right of having his case for promotion considered fairly, similarly the employer has an obligation to do it objectively. There is no scope for a subjective approach in this area. So the authority must remember that in considering an employee‟s case for promotion, it is undertaking an exercise in the context of certain constitutional imperatives. And it is expected that the authority must act with a due sense of responsibility and in an objective manner and in such cases always there is an accountability attached to its actions. So the authority cannot take the stand, as it has taken in the impugned order that it will consider the case for promotion „when it thinks fit‟. The impugned order thus betrays a clear lack of 6 perception on the part of the authorities about its duties in this respect."
9. If the two decisions are kept into consideration and the two ratios are applied to the factual matrix of the case of the petitioners, then obviously State has an obligation to consider the matter and the claim of these petitioners. Mere fact that they have superannuated in the meanwhile since the writ application was pending, is of no consequence, as the relief relates to a time period when the cause of action had arisen in favour of the petitioners.
10. The writ application is allowed. The matter is disposed of with a direction upon the Principal Secretary cum Commissioner, Department of Mines & Geology, Government of Bihar, to consider the prayer of the petitioners for pushing the date of their promotion back to the date of the vacancy and communicate the said decision to the petitioners preferably within a period of four months from the date of the communication/production of a copy of this order.
11. The writ application is allowed and disposed of with the above direction.
( Ajay Kumar Tripathi, J.) Patna High Court:
The 10th August, 2010.
R.K.Pathak ( NAFR).