Patna High Court - Orders
Bijay Kumar Thakur vs The State Of Bihar & Ors on 17 January, 2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12431 of 2006
Bijay Kumar Thakur S/O SRI ANIRUDH THAKUR
RESIDENT OF VILLAGE OF RANGRA P.S.
GOPALPUR DISTRICT BHAGALPUR
Versus
1. The State Of Bihar THROUGH THE CHIEF SECRETARY,
GOVT. OF BIHAR, PATNA.
2. THE MEMBER, BOARD OF REVENUE CUM
CHAIRMAN, DEPARTMENTAL PROMOTION
COMMITTEE FOR DEPARTMENT OF PERSONNEL
AND ADMINISTRATIVE REFORMS, GOVT. OF
BIHAR, PATNA.
3. THE DEPARTMENTAL ENQUIRY COMMISSION,
DEPARTMENT OF PERSONNEL & ADMINISTRATIVE
REFORMS, GOVT. OF BIHAR, PATNA.
4. THE SECRETARY, DEPARTMENT OF PERSONNEL
AND ADMINSTRATIVE REFORMS, GOVT. OF BIHAR,
PATNA.
5. DEPUTY SECRETARY, DEPARTMENT OF
PERSONNEL AND ADMINSITRATIVE REFORMS,
GOVT. OF BIHAR, PATNA.
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3 17/01/2012Petitioner, a member of the Bihar Administrative Service, has now superannuated. When he filed the present writ application in October, 2006, cause of action was the decision of the respondent State Government not to grant him benefit of promotion which he was looking for in the background of a direction given by a writ Court to consider his claim. Annexure-16 dated 29.04.2006 is the order under challenge.
Petitioner entered into service as far back as on 17.11.1977. In 1991 he was granted Junior Selection -2- Grade on ad-hoc basis. He had the requisite seniority which could beget him the benefit of senior selection grade but it did not materialise for him for one reason or the other.
At one point of time the Departmental Promotion Committee (D.P.C.) headed by a Member, Board of Revenue held a meeting on 10.02.1994 to consider the case of the petitioner for regular promotion in junior selection grade but since the relevant entry of character roll relating to the petitioner was not received by the department, the D.P.C. left it to the Chief Secretary to take a decision on the issue after seeking approval of the departmental Minister once the character roll was received. There was no reflection of any allegation or reports against the petitioner. Juniors to the petitioner were promoted whose records were in place. Till 7.7.1994, when the Juniors were promoted, there was nothing adverse against him.
Thereafter, however, a proceeding was initiated against the petitioner for certain acts of omission and commission when the petitioner was posted at Dhanbad as Assistant Settlement Officer. That was between -3- October, 1986 and April 1989. It is, however, the stand of the petitioner that despite absence of a substantive initiation of proceeding i.e. by issuance of a memo of charge, for a long period of time the issue of promotion both in the junior as well as senior selection grade remained in abeyance. In the meantime, State of Jharkhand was created. State of Bihar opined that the issue may now be looked into by the State of Jharkhand under section 89 of the Bihar Reorganisation Act, 2000 as the matter related to the period when petitioner was posted in Dhanbad.
Petitioner approached the High Court by filing a writ application for a direction to grant him regular promotion in junior selection grade, to confirm the ad- hoc promotion granted to him in the junior selection grade with effect from 17.11.2001 as also to give a direction for promotion in senior selection grade under the Bihar Administrative Service.
When the D.P.C. met in the year 1998 for taking up issue of promotion of Officers of 24th Batch of the Bihar Administrative Service, many persons including juniors were granted benefit but against the name of the -4- petitioner an endorsement was made that he did not have the requisite eligibility (Aharta Aprapta/Avicharniya).
C.W.J.C. No. 5583 was finally heard and disposed of on 11.01.2005. This order is annexure-11 to the writ application. The Court disposed of the writ application with a direction to the respondent authorities to conclude the departmental proceeding which was pending against the petitioner since 1998 within the time frame of six months. If it was not done, the case of the petitioner for promotion would be considered, for which one post would be kept reserved and sealed cover procedure would be adopted.
Annexure-15 dated 18.10.2005 is the order of punishment which came to be passed against the petitioner on conclusion of the departmental proceeding. Annexure-16 which is impugned in this writ application has now been communicated to the petitioner in terms of the direction contained in annexure-11. This order talks about various proceedings which were initiated against the petitioner during his period of posting at various stations and the consequential punishment orders which came to be recorded in his service book. The impugned -5- order shows that the petitioner had been given punishment of censure thrice over. The D.P.C. considered the case of the petitioner by adopting a sealed cover procedure. Since the effect of the punishment orders subsisted, any claim for promotion could only be considered after expiry of that period. Case of the petitioner was to be considered for promotion on 1.4.2005 when his service book was looked into for the last five years. On the basis of the confidential entry and taking into consideration resolution No. 2475 dated 28.02.1986 the government did not find the petitioner fit for promotion. Claim was, therefore, rejected and communicated and, therefore, this writ application was filed challenging annexure-16.
One submission or contention on behalf of the petitioner is that the petitioner had a rightful claim for promotion in a substantive capacity in junior selection grade from the year 1994. There was no departmental proceeding as such pending against the petitioner because in absence of service of charge memo it could not be deemed that there was a proceeding which was alive, initiated or pending. This aspect even emerged -6- during the deliberations made in the earlier writ application. The sealed cover procedure could be adopted only when a departmental proceeding was initiated or a criminal case was pending on the date the D.P.C. assembled to consider such issue, as has been laid down by the Apex Court in the case of 'Janki Raman'. Just because the proceeding got expedited after the petitioner approached the High Court, then in the garb of pendency of a disciplinary proceeding the claim of the petitioner cannot be legitimately denied.
The stand of the State in their counter affidavit is that there were certain serious charges against the petitioner of having settled government land with private persons while being posted as a Settlement Officer at Dhanbad. Decision to initiate departmental proceeding was taken against the petitioner vide resolution no. 2976 dated 21.03.1998. Petitioner was directed to obtain one copy of the charge from the Enquiry Commissioner as well as furnish his written statement. Petitioner challenged the legality of the said resolution on the technicality of the charges not being properly framed in form 'Ka'. In the meantime, the State of Bihar got -7- bifurcated and legitimate doubt arose whether the proceeding relating to the conduct of the petitioner while he was posted at Dhanbad could be continued in the State of Bihar but finally the issue proceeded culminating into the order of punishment. It is also the stand of the State that there are other cases of departmental proceeding adding up to orders of punishment and adverse entries in the character roll of the petitioner for his indiscretion and this was the reason which came in the way of the petitioner's claim for promotion.
The State has also indicated in the counter affidavit that the petitioner has deliberately tried to confuse the issue of time bound promotion in junior selection grade or senior selection grade with substantive promotion. Time bound promotions are one which accrues to the persons after completion of 10 or 25 years of service, as the case may be, but that cannot form the basis for grant of substantive promotion Substantive promotion falls altogether under a definite genera and what the petitioner is actually looking for is a substantive promotion. Since substantive promotions are based on a candidate fulfilling all the eligibility criteria including -8- clean A.C.R. which the petitioner lacked, the government was not bound to grant him promotion. Charges against the petitioner were pending all those years which finally culminated in punishment. In addition to that the respondents are bound to consider the claim of all the persons who were eligible along with the petitioner depending further on the vacancy position. When the claim of the petitioner was considered in light of annexure-11 order, the authorities came to a considered opinion that the service record of the petitioner did not reflect the eligibility to entitle him the benefit of promotion as a matter of course.
The past dispute and pendency of departmental proceeding and its non-conclusion was raked up in the previous writ application. All submissions were considered by the learned Single Judge when he passed order in the year 2005 in terms of annexure-11. Learned Single Judge after considering all the aspects disposed of the writ application for a time bound conclusion of the departmental proceeding and thereafter consideration of claim of promotion of the petitioner on its merit on conclusion. All told, therefore, vide the judicial order, -9- the issue was kept alive and only after conclusion of the departmental proceeding and the outcome thereof could the petitioner claim right for consideration.
Since the issue of promotion in the substantive capacity could not be granted to the petitioner due to adverse entries as well as pendency of departmental proceeding, while the petitioner was in service, coupled with the fact that the respondent authorities by virtue of the impugned order has decided to reject the claim of the petitioner on the basis of ineligibility, which the Court finds are based on cogent reasons, annexure-16 does not require any interference.
No case, therefore, is made out for quashing annexure-16 or giving a direction upon the respondents to grant substantive promotion to the petitioner. So far as quashing of the orders of punishment are concerned, that is yet another issue which is not required to be gone into by this Court in the present writ application as that is a separate cause of action altogether.
This writ application is dismissed.
AMIN/ (Ajay Kumar Tripathi, J.) - 10 -