Patna High Court
Panchu Ram vs Bihar State Agriculture Marketing ... on 27 March, 2001
Equivalent citations: 2001(2)BLJR1010
ORDER Radha Mohan Prasad, J.
1. In this writ petition, the petitioner is aggrieved by the order contained in Memo No. 1676 dated 5-5-1998, (Annexure-7) passed by the Managing Director of the Bihar State Agricultural Marketing Board (hereinafter referred to as 'the Board'), whereby and whereunder his case for promotion or upgradation of pay scale of the Assistant Director has been rejected. The petitioner has also sought for direction to the respondents to issue necessary notification for promotion to the post of Assistant-Director with effect from 25-8-1986, the date since he is performing the duty of the post of Assistant Director with all consequential benefits.
2. In short, the relevant facts are that in the year 1974, the petitioner was appointed on the post of Market Secretary in the service of the respondent-Board. According to the case of the petitioner, he, being the senior incumbent and entitled to get promotion on the post of Assistant Director on the basis of seniority and as per roster of reservation, was posted as Assistant Director-cum-lncharge, Grading Cell, Headquarters, Patna in his own scale of Market Secretary with a condition, however, that it shall not be treated as a promotion, vide Annexure-2. According to the petitioner, the entire Marketing Board was divided into various regions in which a post of Assistant Director had been created in higher rank and scale. The Assistant Director was required, to exercise his power and perform his duties within the range which is almost a division whereas the post of Market Secretary, is lower in rank and the scale both and subordinate to the Assistant Director as well. In other words, there are several Market Secretaries under the Assistant Director, of the Range.
3. It is claimed that the posting of the petitioner on the post of Assistant Director on the basis of the principle of reservation, roster is certainly a case of promotion and he is entitled to get all the benefits of promotion, including the pay-scale of Rs. 1,350-2,000, which was the scale fixed by the respondents for the post of Assistant Director, but the respondents have not treated his said posting as promotion. The petitioner filed a representation for grant of full benefit of the post of Assistant Director but having failed to get redressal of his grievance by the authority filed C.W.J.C. No. 524 of 1987, when he was transferred from the said post of Assistant Director and was directed to hand over charge. In the said writ petition, he also prayed for commanding the respondents to allow higher pay scale of the rank of the post of Assistant Director treating it to be a case of promotion. The said writ petition was disposed of vide judgment and order dated 25th April, 1997 (Annexure-6) with a direction to consider the case of the petitioner for promotion granting benefits of the post of Assistant Director on which he has been working for the last ten years in the light of the observations and directions made therein and in pursuance thereof the Managing Director has passed the impugned order dated 5-5-1998, contained in Annexure-7.
4. The said order of the Managing-Director was passed after the petitioner filed M.J.C. No. 1973 of 1997, for not complying with the direction of this Court. As while the M.J.C. was pending, the impugned order was passed, this Court, in view of the said order (Annexure-7) and the unqualified apology sought for by opposite party No. 1, did not find any reason to proceed in the matter further, though there was delay, and disposed of the said M.J.C. vide order dated 28-6-1999, (Annexure-8) with a direction that if the petitioner is not satisfied with the said order, he may challenge the same before the appropriate forum/competent authority. However, the petitioner filed S.L.P. (Civil) No. 16016 of 1999, in the Supreme Court, against the said order passed in the M.J.C. application which was dismissed, vide Annexure-9, and thereafter filed the present writ petition as per the liberty granted by this Court in the M.J.C. application.
5. It is contended that the powers and functions of the Board, in relation to the appointment of the employees were duly considered by this Court in C.W.J.C. No. 2035 of 1989(R), Sanjeev Kumar Bimal and Ors. v. Bihar State Agriculture Produce Marketing Board and others, and this Court, vide order dated 9-3-1990, decided that the State Government has nothing to do with the appointment of the employees and that no permission from the State Government is required to be taken before making any appointment. It was further held that the Board is not a public undertaking of the State of Bihar. Against the said judgment, the Board filed S.L.P. in the Supreme Court, which was dismissed and the said judgment of this Court was confirmed. According to the learned Counsel for the petitioner, the Board made Recruitment Regulation, which was annexed as Annexure-12, to the earlier writ petition bearing C.W.J.C. No. 524 of 1987, filed on behalf of the petitioner. Clause I of the said Regulation defines Class I post and the post of Assistant Director is Class I post whereas Clause II defines Class II post and the post of Market Secretaries carrying less pay is Class II post. According to him, Appendix I of the Organisational set-up of the Board, which was made Annexure-13 to the said writ petition, indicates cadre, staffing pattern and promotional avenues and the post of Assistant Director is supervisory Class I post and several Market Committees and Market Secretaries have been placed under his supervision and control. It is submitted that on consideration of all these regulations and Appendix I of the Organisational set-up in the writ petition filed by the petitioner earlier (C.W.J.C. No. 524 of 1987), this Court disposed of the writ petition, vide aforementioned judgment and order dated 25th April, 1997.
6. In the counter-affidavit filed on behalf of the respondents, it is, inter alia, contended that the cadre list of Market Secretaries is under preparation and after approval of the same by the Administrative Department, the case of promotion shall be considered and that the reservation policy for Scheduled Caste be followed and at appropriate stage, the case of the petitioner shall be considered. It is stated that no promotion has been given to anyone on the post of Assistant Director. It is, however, admitted that the petitioner was given first time-bound promotion in the pay scale of Rs. 1,350-2,000/- and not against the post of Assistant Director. It is stated that the petitioner's name is placed at serial No. 35, in the gradation list of Market Secretaries and out-of-turn promotion cannot be given as it will amount to violation of the principles of natural justice. According to the respondents, the pay-scale of Market Secretary and the Assistant Director is one and the same.
7. Learned Counsel for the petitioner has submitted that the respondents are not correct in their stand that the pay-scale of Market Secretary and the Assistant Director is one and the same. According to him, this question was considered in the writ petition filed by the petitioner earlier, vide judgment and order, contained in Annexure-6, and this Court on detailed discussion held that the post of Assistant Director is supervisory Class I post and several Market Secretaries were placed under the supervision and control of the Assistant Director. As such, according to the learned Counsel for the petitioner, the respondents have tried to raise the same issue in the counter-affidavit with respect to equivalence of the post of Assistant Director, and the Market Secretaries, which now stand settled by the judgment contained in Annexure-6, against which the Board never filed any appeal. On the contrary, the said judgment had gone before the Apex Court also in S.L.P. (Civil) No. 16016 of 1999, though not directly but arising out of M.J.C. filed by the petitioner for violation of the same. As such, according to the learned Counsel for the petitioner, the respondent-Board is not legally justified in advancing any contention contrary to the said judgment of this Court inter parties.
8. Mr. Ojha, learned Counsel appearing for the respondent-Board, on the other hand, has submitted that no regulation was framed by the competent-authority upon which this Court placed reliance in the earlier case and held that the post of Assistant-Director is supervisory Class I post and several Market Secretaries have been placed under the supervision and control of the Assistant Director. According to him, the power to frame regulation is in the Board, but unless approved by the State Government, such regulation cannot have any legal force. It has been submitted by Mr. Ojha, that the earlier judgment in C.W.J.C. No. 524 of 1987 was passed in ignorance of the relevant provisions of law and thus being sub-silentio cannot be relied upon or followed by any Court. It has also been submitted that the said judgment is in direct conflict with and in ignorance of Section 33L(2)(c) of the Bihar Agricultural Produce Markets Act, 1960 (hereinafter referred to as 'the Act') which mandates that the regulation may be made with the previous approval of the State Government, He also placed reliance on the order of the Division Bench of this Court dated 7-3-1990, passed in CW.J.C. No. 7735 of 1989, in which on the question whether Recruitment Regulations framed by the Board but not approved by the State Government had come into force or not, this Court only prime facie held that the regulations framed by the Board shall come into force if it is approved by the State Government in view of Sub-section (1) of Section 33L of the Act.
9. This Court does not find any force in the submissions of Mr. Ojha, learned Counsel for the Board. In the said case, the Division Bench of this Court was not dealing with the question as to whether the post of Assistant Director is defined in Section 2(1)(k)(ii) of the Act, and in terms of Section 33E of the Act, the Board is competent to appoint officers and servants on such terms and conditions as provided for in the regulation, which aspect has been considered in the judgment given in C.W.J.C. No. 524 of 1987 (Annexure-6) between inter party. In the counter-affidavit filed in the said case, it was quoted that in the meeting of the Board of Directors held on 3-1-1984, a decision was taken for increase of the pay-scale of Rs. 1,000-1,820 of the Assistant Directors to the pay scale of Rs. 1,350 to Rs. 2,000/- in Junior Selection Grade. The Managing Director of the Board pursuant to the decision sent a proposal to the Joint Secretary, Agriculture Department, vide letter dated 24-4-1984, for approval and also sent reminders, but as yet no approval was granted, it was also pleaded that pursuant to the recommendation of the 4th Pay Revision Committee and in the light of the Finance Department letter dated 26-8-1982, a proposal was also sent for conversion of 20% post in Junior Selection Grade and 10% post in Senior Selection Grade to the Agriculture Department vide letter dated 26-9-1987, but as yet no approval was granted and hence promotion could not be granted in Junior Selection Grade/Senior Selection Grade. However, it was contended that, vide letter dated 7-12-1980, provisional promotion was granted to Board's Assistant Director in the pay scale of Rs. 1,350 to Rs. 2,000/-. According to the case of the Respondent-Board in the said case, an objection was raised by the Finance (bureau of Public Enterprises) Department, which was clarified by the Board vide letter dated 21-7-1992, and a request was made for order of conversion but nothing was done. It was pleaded that the post of Assistant Director is not a promotional post for a Market Secretary. The posts are separate and independent and the pay-scale of both the posts are different from each other. It was also pleaded that the posting of the petitioner on the post of Assistant Director was not a case of promotion. It was thus contended that the petitioner was not entitled to the pay scale of the post unless a decision is taken in accordance with law by an appropriate authority. It was also pleaded that the formation of cadre is pending for consideration and the Board may consider for giving regular promotion after formation of cadre.
10. In the supplementary counter-affidavit filed in the said case (C.W.J.C. No. 254 of 1987), it was stated that no policy decision for posting on the post of Assistant Director had been taken and Market Secretary is being posted as Assistant Director. Their further case was that previously Market Secretaries were getting different pay-scales i.e. Market Secretaries Category-A were getting pay-scale of Rs. 2,200 to Rs. 4,000, and Market Secretary Category-B were getting pay-scale of Rs. 1,640 to Rs. 2,900, but in view of the decision in C.W.J.C. No. 6261 of 1986, the pay scale of th Market Secretary Category-B has been equated with Market Secretary Category-A and due to the aforesaid reason, the claim of aforesaid promotion of the petitioner has not been considered.
11. According to the case of the Board in the aforesaid case, the bureau of Public Enterprises had determined the pay-scale of Assistant Director at Rs. 2,000 to Rs. 3,800/-, which is less than the pay scale of Market Secretary, which had been implemented by the Board. If a decision is taken by the Board and the State Government to pay higher pay-scale to the Assistant Director, the Board shall consider the posting of Senior Market Secretary to the post of Assistant Director. In reply, it was submitted by the petitioner that the respondent-Board was taking work from the petitioner of higher post and grade for at least ten years, but was not giving benefits of promotion. It was claimed that the petitioner being a Member of the Scheduled Caste was entitled to get promotion in reserved category. It was also pleaded that the respondent-Board is a statutory body and has power to make appointment, and to take disciplinary action against the employees. Reliance was placed on the Division Bench judgment of this Court in C.W.J.C. No. 2036 of 1989(R) in which it was held that the State Government had nothing to do with the appointment of the employees and no permission from the State Government is required, to be taken for making appointment. It was also held that the Marketing-Board is not a public undertaking of the State of Bihar.
12. This Court having taken notice of the said stand and also the fact that the Division Bench judgment was upheld by dismissal of special leave petition by the Supreme Court and on consideration of the provisions of Section 2(i)(k)(ii) and 33-E of the Act held that the Board is competent to appoint officers and servants on such terms and conditions as provided in the Regulation. The Court also took notice of the Recruitment Regulation which defined the post of Assistant Director as Class I post and the post of Market Secretary, as Class II post and also Appendix-I of the organisational set-up of the Board which indicates cadre staffing pattern and promotional avenue and found that the post of Assistant Director is supervisory Class-I post and several Market Secretaries have been placed under the supervision and control of the Assistant-Director. It was never pleaded that the Recruitment Regulation cannot be relied upon, as it was not,approved by the State Government.
13. Even in the present case, though counter-affidavit has been filed but it is not pleaded that the Recruitment Regulation has not been approved by the State Government. However, in course of argument, learned Counsel for the Board has ventured to submit that the regulation on which the writ petitioner relies was never approved by the State Government and, as such, it has no force of law and that the judgment passed in the earlier case was in ignorance of the relevant provision of law and this fuffers from the vice of being sub-silentio and cannot be relied upon and followed by any Court. In the absence of any pleading of the Board in the earlier writ petition or even in the present writ petition that the Recruitment Regulation has no force as it has not been approved by the State Government, this Court fails to appreciate the said submission of the learned Counsel for the Board. It is not open to the learned Counsel for the Board to advance such submission more so when no appeal was preferred against the judgment in the earlier writ-petition filed on behalf of the petitioner which attained the finality inter party. The principle of sub-silentio has got no application to the facts and circumstances of the present case, specially in the absence of any pleading on behalf of the Board that the Recruitment Regulation has no force in law as the same was not approved by the State Government. Even otherwise, this Court finds it difficult to accept the said submission of the learned Counsel for the Board.
14. Mr. Ojha has produced Bihar State Agriculture Marketing-Board Employees Service Regulation, 1978 and not a copy of the Recruitment Regulation, which was considered in the earlier judgment. Moreover, bare perusal of the said 1978, Regulation shows that it came into force on 1st October, 1978, whereas the provision contained in Section 33-L of the Act was introduced by Act 60 of 1982. Nothing has been brought to the notice of this Court by the learned Counsel for the Board that at the time of passing of the said Regulation in the year 1978, the Board did not have authority to frame it or to frame the Recruitment Regulation or that by introduction of Section 33-L by Act 60 of 1982, 1978 Regulation or Recruitment Regulation, was repealed and thus was not enforceable, when the respondent-Board and its authorities vide earlier judgment of this Court were directed to consider the case of the petitioner for promotion granting benefits of the post of Assistant-Director on which he had been working for the last ten years in the light of the observations and directions indicated therein and to pass necessary 15. Moreover, in the impugned order also, it is not the stand that Recruitment Regulation and/or 1978, Regulation has no force as the same has not been approved by the State Government. On the contrary, the Managing Director has dealt with the provisions of 1978 Regulation in the impugned order and besides explaining other practical difficulties in fixing higher pay-scale in the Assistant Director as-well as for promoting the petitioner to that rank rejected the claim of the petitioner on the ground, that he, who was appointed as Market Secretary, is already in higher pay-scale than that of the Assistant-Director. It is not disputed that the post of Assistant-Director carries higher responsibilities and control over Market Secretaries and Market Committees. In fact, one of the practical difficulties explained in the order is that by fixation of higher scale in the replacement-scale of Assistant Director, which is junior to the post of Deputy Director, which carries lesser pay scale, will definitely create anomaly among different cadres nor it is possible to fix a lower pay-scale for the petitioner than the present pay-scale, which he has been getting for so many years. The other difficulty referred to in the impugned order is that the petitioner cannot be given promotion superseding the claim of other Senior Market Secretaries. According to the Managing Director, no criterion has been followed by the Board in deciding the postings of Assistant-Directors so far and this is the reason that any category of officer has been posted as Assistant-Director. According to the Managing Director, previously the Market Secretaries "Category B", who were on deputation from the Government to the Board in the pay-scale of Rs. 1,640 to Rs. 2,900/- had always been posted as Assistant Directors and, as such, the posting of the petitioner as Assistant Director does not confer right on him to be appointed on the said post. Lastly, it is also pleaded that Rule 6 of the Recruitment Regulation provides for creation of cadre for the officers of the Board to widen their scope of promotion and to remove the bottleneck, a Committee was constituted which submitted its report. The Board through its resolution No. 21 dated 3-12-1997, has agreed for the formation of cadre in principle and, therefore, the formation of cadre is underway. As such, no fresh reason has been found to consider the case of the petitioner favourably either for promotion or upgradation of pay scale of Assistant-Director.
16. This Court fails to appreciate the said reasoning in the impugned order of the Managing Director. In my opinion, any anomaly in the matter of fixation of pay-scale of Assistant Director in the replacement scale cannot be a ground to deny the promotion to the petitioner. If grant of replacement scale creates any anomaly, then the anomaly is to be removed with respect to the higher post and not that the person entitled for grant of benefits of replacement scale can be denied of the promotion on that account. This Court fails to appreciate as to how the Respondent Board can deny the benefit of regular promotion to the post of Assistant Director to the petitioner or at least the benefit of the said post from 25-8-1986, since when the work has admittedly been taken from him on the said post now for the last 14 years. As per the judgment of this Court in the earlier writ petition, filed by the petitioner which inter party attained finality, the post of Assistant Director is Supervisory, Class I post and Market Secretaries and Market Committees are under his supervision and control and as such denial of regular promotion to the said post of Assistant Director with all consequential benefits after having taken work from him now for over 14 years is wholly arbitrary and also in violation of the judgment of this Court in the said earlier writ petition filed by the petitioner.
17. As regards creation of cadre, this Court in the earlier case dealt with it and on consideration of the plea taken by the respondents that unless cadre is created, the petitioner's claim for promotion/granting benefits of the post cannot be allowed, held that the said plea has no leg to stand. The Court also took notice of the fact, that the petitioner was appointed as Market Secretary, and is in service for about 22 years, yet he is drawing the salary of Market Secretary, and no promotion has been granted nor the benefits of the post of Assistant Director have been allowed to him and, accordingly, directed for consideration of his case for promotion and grant of the benefits of the post of Assistant Director in the light of the observations and directions made therein. Despite that, the respondent-Managing Director, in the impugned order has ventured to repeat the same plea which were earlier not accepted by this Court.
18. In the circumstances aforementioned, the writ petition is allowed and the impugned order, contained in Annexure-7, is quashed. The respondents are directed to pass necessary order in compliance of the earlier direction of this Court within two weeks of the receipt/production of a copy of this order, failing which the Managing Director shall not draw his salary and other allowances till the order is complied. In the facts and circumstances of the case, a cost of Rs. 2,000/- (two thousand) is awarded to be paid to the petitioner by the Board within the said time.