Jharkhand High Court
Sinu Ram Jarika Son Of Late Mujia Jarika vs The State Of Jharkhand on 19 January, 2018
Author: Pramath Patnaik
Bench: Pramath Patnaik
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (S) No. 464 of 2008
...
Sinu Ram Jarika son of Late Mujia Jarika, resident of Kendu Lota, P.S.
Chaibasa Mufassil, P.O. Pandra Sali, District Singhbhum West at Chaibasa
... ... Petitioner
-V e r s u s-
1. The State of Jharkhand
2.The Secretary, Department of Co-operative, Government of Jharkhand,
Ranchi;
3. Secretary, Department of Finance, Government of Jharkhand, Ranchi;
4. The State of Bihar through the Secretary, Department of Co-operative,
Government of Bihar, Patna. ... Respondents
...
CORAM: - HON'BLE MR. JUSTICE PRAMATH PATNAIK.
...
For the Petitioner : - Mr. Afaque Ahmad, Advocate.
For the Respondent-State: - Mr. Srijit Chaudhary, Sr. S.C.
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C.A.V. On: - 02.08.2017 Delivered On: - 19/01/2018
...
Per Pramath Patnaik, J.
In the instant writ application, prayer has been made for quashing the order dated 31.10.2007, issued by the Secretary to the Government, Department of Co-operative, Government of Jharkhand, Ranchi rejecting the representation of the petitioner pertaining to grant of promotion in super time scale with effect from 29.12.1991 vide Annexure-11 and further for direction to the respondents for promotion in the super time scale with effect from 29.12.1991 for having completed 33 years on the post of the senior selection grade with all consequential service benefits.
2. The brief facts, as has been depicted in the writ application, are that the petitioner being the member of the Scheduled Tribe, was initially appointed as the Assistant Registrar, Co-operative Societies by the Government of Bihar in the year 1975. Petitioner was granted first time bound promotion in Junior Selection Grade with effect from 29.12.1985 on completion of ten years of satisfactory service. Thereafter, the petitioner was given regular promotion in Junior Selection Grade along with others with effect from the same date i.e. 29.12.1985. The petitioner, thereafter, was promoted to the Senior Selection Grade with effect from the date of issuance of Notification dated 06.09.1989 and the said Grade has been approved with effect from 29.12.1988 vide Notification dated 11.01.1991. Thereafter, five senior selection grade officers of the 2 Co-operative Department were promoted to Super-time scale with effect from the date of issuance of the Notification i.e. dated 06.09.1991 through the Government Notification. Thereafter, seven senior selection grade officers of the co-operative Department were promoted/granted supertime scale through Notification dated 13.12.2000. In the said Notification, not a single scheduled tribe Officer has been promoted in the supertime scale. It has been averred in the writ application that for the promotional 10 per cent posts are reserved for scheduled tribe candidates vide appointment department letter dated 29.05.1971 as per Annexure-4 to the writ application. It has further been averred that for the purpose of promotion standard roster has also been issued by the Personnel Department of the Government, dated 08.11.1975 according to which vacancy at point no. 4 and 13 are reserved for the Scheduled Tribe Officers as per Annexure-5 to the writ petition. It has been averred that when the first Notification dated 06.09.1991 was issued, the petitioner did not complete the required three years minimum period (Kalawadhi) in senior selection grade post, but, he completed the required 'Kalawadhi' in the senior selection post on 29.12.1991, thus, his promotion in the supertime scale (Additional Registrar, Co-operative Societies) was due with effect from 29.12.1991, against the post at point no. 4, reserved for the scheduled tribe candidates/officers, in view of the letter of the Personnel & Administrative Reforms Department of the State Government dated 31.03.1979 vide Annexure-6 to the writ petition. It has further been stated that for granting promotion in the vacancies prior to 10.02.1995, the same has to be filled up according to the old running roster as per the administrative & personnel reforms department's letter dated 30.04.1997. Being aggrieved by the injustice meted out to the petitioner, the petitioner submitted representations to the authorities, but, since the representations did not evoke any response from the respondents, the petitioner was compelled to file W.P. (S) No. 5620 of 2002, which was disposed of vide order dated 24.07.2007 with liberty to the petitioner to file fresh representation before the respondent no. 2, which would be disposed of by a reasoned order in accordance with law and in deference to the order dated 24.07.2007, the petitioner filed fresh representation on 22.08.2007 vide Annexure-10 to the writ petition and the same has been rejected vide order dated 31.10.2007 vide Annexure-
311, which is impugned in this writ petition. It has further been averred that one Shri Bhola Prasad Mandal was considered against the reserved post of scheduled tribe officers on roster point no. 4 and therefore, the petitioner has a right to be considered for promotion against the reserved post of roster point no. 13, but, being aggrieved by the non-consideration of promotion of the petitioner to the super time scale against the reserved post at roster point no. 13, the petitioner has knocked the door of this Court by filing the present writ application under Article 226 of the Constitution of India.
3. Learned counsel for the petitioner has strenuously urged that the action of the respondents in not considering the case of the petitioner for promotion to the super time scale is not only illegal, but amounts to arbitrary exercise of power. Learned counsel further submits that the respondents are duty bound to consider the case of promotion of the petitioner with effect from 29.12.1991 in super time scale against the reserved post meant for the scheduled tribe candidates and the non- consideration of the same has subjected the petitioner to discrimination being violative of Articles 14 and 16 of the Constitution of India.
4. Repudiating the averments made in the writ application, a counter affidavit has been filed by the respondent no. 2, wherein, it has been stated and submitted that since the period in question is related to the State of Bihar, advice was sought for from the State of Bihar as to why the petitioner has not been granted junior selection grade and senior selection grade from the dates sought for. The State of Bihar vide letter bearing No. 3652, dated 16.10.2007, has sent information that in view of the orders of the Hon'ble Supreme Court rendered from time to time, it has been made clear that for grant of junior selection grade/senior selection grade/super time scale, which fell due during the period 01.04.1981 to 31.12.1995, the reservation policy is not applicable. It has further been submitted that the State of Bihar vide letter dated 04.12.2007, has shifted the date of promotion of the officers of the Cooperative service. However, by that time, the decision to shift the date of promotion was taken, various officers had been posted in the State of Jharkhand and hence, recommendations with regard to such officers was sent to the State of Jharkhand for necessary action as per Annexure-B to the counter affidavit. From perusal of Annexure-B, it shall appear that the 4 petitioner has been held entitled to junior selection grade with effect from 29.12.1985 and senior selection grade with effect from 29.12.1988. It has further been submitted that though five members of the Scheduled Tribe may have been promoted in the reserved category it is not on account of their belonging to the reserved category, rather, it is on account of their promotion in the said grade, having fallen due.
5. A counter affidavit has been filed by the respondent no. 4-State of Bihar, wherein, it has been submitted that on the point of implementation of reservation policy and roster clearance, the Personnel & Administrative Reforms Department, Bihar has given advice that reservation policy is not applicable to junior selection grade/senior selection grade/super time scale promotion from 01.04.1981 to 31.12.1995 in the light of various judgment of the Hon'ble Apex Court as well as High Court, such as, (2001) 10 SCC 165, All India Non-SC/ST Employees Association (Railway)-versus-A.K. Agarwal & Ors., C.W.J.C. No. 3973 of 1981, Lal Mani Prasad-versus-Chairman, Bihar Public Service Commission, (1999) 9 SCC 271, State of Punjab-versus-Surjit Singh.
6. Learned counsel for the Respondent-State submits that the opinion at Annexure-B to the counter affidavit, would reveal that in view of the letter dated 04.12.2007, the claim of the petitioner was not considered. Moreover, the opinion of the State of Bihar is in view of the decision of the Hon'ble Apex Court rendered in All India Non-SC/ST Employees Association (Railway)-versus-A.K. Agarwal & Ors. reported in (2001) 10 SCC 165.
7. After hearing the learned counsel for the respective parties and on perusal of the records, this Court is of the considered view that the impugned order dated 31.10.2007, rejecting the claim of the petitioner for promotion in the super time scale against the reserved post for the Schedule Tribe with effect from 29.12.1991, is liable to be quashed and set aside due to the following facts and reasons : -
As has been disclosed in the counter affidavit, the petitioner has been held entitled to the junior selection grade with effect from 29.12.1985 and senior selection grade with effect from 29.12.1988. On accepting the aforesaid contention, then the petitioner after completion of 3 years in service, in the 5 selection grade, is entitled to be considered for promotion with effect from 29.12.1991 but the rejection of the representation vide Annexure-11 to the writ application for consideration of promotion to the super time scale is thoroughly misconceived and is not legally sustainable.
8. In view of the aforesaid reasons stated in the foregoing paragraphs, the impugned order dated 31.10.2007 vide Annexure-11 to the writ application is quashed and set aside and the respondents are directed to consider the case of promotion of the petitioner to the post of super time scale with effect from 29.12.1991 by convening a special DPC within a period of 3 months from the date of communication of the order. It is needless to mention that if the petitioner is found suitable for promotion from the said date, he shall be granted all notional service benefits.
9. With the aforesaid direction, the writ petition stands allowed.
(Pramath Patnaik, J.) APK