Jharkhand High Court
Gopal Singh vs State Of Bihar And Ors. on 28 September, 2001
Equivalent citations: 2002 LAB IC (NOC) 148 (JHA), 2002 AIR - JHAR. H. C. R. 113, (2002) 1 JLJR 24, (2002) 1 BLJ 71
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. In this writ application, besides other relief's, the petitioner has prayed for quashing the order dated 17.4.1992 whereby the representation of the petitioner filed in compliance of the direction of this Court issued in CWJC No. 1640/9KR1. has been rejected by the Secretary, Department of Mines and Geology, Government of Bihar.
2. Since the petitioner has been fighting the legal battle right from 1974, the facts of the case have been discussed in various writ petitions filed by the petitioner and it has a chequered history.
3. The petitioner was appointed as Assistant Chemist in 1967 in the chemical wing of the Department of Geology. Earlier, in the Department of Mines & Geology, Government of Bihar, there were two wings, namely. Geological wing and Chemical wing. In 1973 the petitioner was informed about some adverse entries made in his character roll in the years, 1970-72. However, in 1974 he was informed that the said adverse entry had been expunged. In 1974 it was decided by the Government that the post of Chemist would be tilled up by promotion of Assistant Chemists/Laboratory assistants. In view of the said decision the petitioner made representation in which he prayed that he being the senior most Assistant in the Chemical wing be promoted to the post of Chemist. When the petitioner did not get any promotion, he filed CWJC No. 1548/74 at Patna. By order dated 27.9.1974 the petitioner was permitted to withdraw the said writ application with observation that the Government would take a policy decision in the matter of promotion. Subsequently by a decision of the Government the designation of Lab Assistant and Assistant Chemist were changed as Geological Analyst. On 12.5.1975 the first draft provisional seniority list of all persons was published. The petitioner filed a fresh representation. By order dated 2.3.1978 the petitioner was informed that it was not possible to promote him to the post of Chemist-cum-Analyst. On 5.4.1979 the petitioner filed representation against the order refusing to promote him to the aforesaid post. The petitioner then filed CWJC No. 3223/79 and in that case it was submitted on behalf of the respondents that the post of Chemist had been wrongly created and the matter of filling up the said posts was under consideration before the Departmental Promotion Committee and the post will be filled up considering the recommendations of the Committee. The writ application was again permitted to be withdrawn with the observation of the Court that the recommendation of DPC would be made at an early date and preferably within four months keeping in view all relevant considerations. When the petitioner did not hear anything, he filed another representation on 30.1.1980 before the DPC. On 2.5.1980 a separate joint seniority list was published wherein the petitioner was shown below than that of shown in the first provisional seniority list.
4. The petitioner, therefore, filed objection but no order was passed on the said representation and the provisional seniority list was made final by publishing the same on 13.1.1980. The petitioner then filed CWJC No. 793/80 challenging the various orders of the respondents by which adverse entry was made in his confidential character roll, the order by which the designation of Lab-Assistant/Assistant Chemist in the Chemical wing of the Deptt. of Geology was changed as Geological Analyst and also the order by which the petitioner was informed that it was not possible to promote him to the post of Chemist-cum-Analyst. The writ application was heard and allowed by the Court in terms of judgment dated 6.2.1986. By the said judgment this Court quashed the final seniority list and directed the respondents to call for objections from the petitioner and the persons at serial Nos. 2 to 6 and. Thereafter, finalise the seniority list of the petitioner vis-a-vis those persons. It was further observed that if any person whose name appears at serial Nos. 2 to 6 have been promoted ignoring the case of the petitioner, then they shall be placed at the place where they were promoted. It was further directed that the case of the petitioner and the persons who were eligible i.e. who were working atleast for five years as Assistant Chemist or Lab-Assistant and had requisite qualification, shall be considered for filling up the superior posts to which they were entitled to be promoted.
5. It appears that in compliance of the judgment passed in CWJC No. 793/80, an office order was issued on 8.3.1990 whereby the petitioner was promoted to the post of Chemist-cum-Analyst (non- gazetted) with effect from 22.2.1972. However, the Government subsequently took a decision to cancel the earlier office order dated 8.3.1990 whereby the petitioner was given promotion to the post of Chemist-cum-Analyst and further directed for recovery of any amount paid to the petitioner pursuant to the order of promotion. The petitioner then challenged the said order of cancellation by filing CWJC No. 1640/91 (R) besides filing representation against the said decision of the Government a Division Bench of this Court disposed of the writ application on 3.12.1991 with a direction to respondent No. 2, the Secretary, Department of Mines and Geology, Government of Bihar to consider and dispose of the representation of the petitioner after giving him opportunity of hearing. Accordingly the petitioner's representation was considered and finally rejected by the impugned order.
6. The stand of the respondents in the counter-affidavit is that the Secretary. Department of Mines and Geology vide order No. 9 dated 17.2.1992 made it clear that the judgment and order passed in CWJC No. 793/80 (R) is a general order to the effect that the persons who have worked atleast for five years as Assistant Chemist or Laboratory Assistant and have a degree of B.Sc. In Chemistry shall be considered for filling up of the higher post for which they are entitled. It is stated that the vacancy was caused on 22.2.1972 due to promotion of Sri Gopal Chandra Gupta which vacancy was already filled up by direct recruitment of Sri Afsar Ali an outsider by Government Order No. 4903 dated 8.8.1974. Hence, the promotion of the petitioner earlier granted by order No. 159 dated 8.3.1990 with effect from 22.2.1972, was quite illegal and it was rightly cancelled. Respondents also denied the allegation that the Commissioner, North Chhotanagpur in his roster clearance vide letter No. 757 dated 11.6.1991 has never indicated 7th vacancy to fall on 22.2.1972. He had only indicated the 7th point vacancy to be unreserved and he had not indicated the date of vacancy. According to the respondents 5th vacancy caused on 22.2.1972 due to promotion of Sri G.C. Gupta, was falling on 5th point of roster and so it was filled up by direct recruitment of Sri Afsar Ali and 6th point vacancy created on 6.11.1972 due to promotion of Sri Sewalia Gin was kept reserved according to the reservation policy of the Government adopted after 15.6.1971 which was carried forward and later filled up on 4.8.1983 by direct recruitment of S.T. candidate. Sri D.D. Oraon. Accordingly. 5th and 6th vacancy caused in the year 1972, where filled up long back in 1974 and 1983 respectively. The 7th vacancy was created on 17.9.1996 due to promotion of Sri S.G. Mujtaba for which for the first time roster clearance was obtained on divisional basis from the commissioner, North Chhotanagpur Division. Since this roster clearance was not taken at the time of promotion of the petitioner with retrospective effect i.e. 22.2.1972. the said order of promotion was cancelled.
7. I have heard Mr. Rajesh Kumar, learned counsel for the petitioner and Mr. R.N. Sahay, learned standing counsel at length. The only question that arises for consideration is whether the concerned respondent was justified in cancelling the office order dated 10.6.1999 by which the petitioner was promoted to the post of Chemist-cum-Analyst.
8. From perusal of the order of promotion dated 8.3.1990 it appears that the said office order was issued by the Deputy Director, Geology whereby the petitioner was given promotion in compliance of the order passed by the High Court in CWJC No. 793/80.
9. As noticed above, aforementioned CWJC No. 793/80 was filed by the petitioner challenging, inter alia, the provisional seniority list dated 12.5.1975 and 2.5.1990 whereby the petitioner was shown junior to respondent Nos. 2 to 6 and also the order dated 2.3.1978 by which the petitioner was informed that it was not possible to promote him to the post of Chemist-cum-Analyst. The writ application was disposed of by judgment dated 6th May, 1986. The High Court set aside the seniority list and directed the respondents to call for objections from the petitioner and the persons at serial Nos. 2 to 6 and, thereafter, finalise the seniority list. So far the claim for promotion is concerned, the High Court, in para 8 of the judgment, observed as follows :--
"It was submitted on behalf of the petitioner that during the pendency of the writ petition a number of persons who were senior in the seniority list but were actually junior to the petitioner were promoted ignoring the case of the petitioner as he was shown junior to them in the seniority list. On 18.12.1981, this Court ordered that any promotion, if made by the respondents, would be subject to the result of this application. In view of the fact that the seniority list of the petitioner and the persons at serial Nos. 2 to 6 of Annexure 19, finally published in Annexure 21, has been quashed, if any person whose name appear at serial Nos. 2 to 6 have been promoted ignoring the case of the petitioner, they shall be placed back to the position from where they were promoted. The case of the petitioner and the persons who are eligible meaning thereby who have worked for at least five years as Assistant Chemist or Laboratory Assistant and have requisite qualification i.e. B.Sc. in Chemistry shall be considered for filling up the superior post for which they are entitled to be promoted. It is also made clear that the seniority of the persons who have been appointed directly to the post of Chemist-cum-Analyst after filing of this writ application, shall be subject to the finalisation of the seniority list in terms of the direction stated hereinabove."
10. It is, therefore, clear that no direction was issued by the High Court to promote the petitioner with retrospective effect, rather, only direction was to consider the case of the petitioner and the persons who are eligible for promotion to the post of Chemist-cum-Analyst. It has been categorically stated by the respondents that the Deputy Director of Geology was delegated power for appointment and promotions of Class III and IV employees. So far the promotion with retrospective effect is concerned, it involves financial benefits besides implementation of reservation policy. Admittedly the Deputy Director did not obtain clearance of roster for giving promotion to the petitioner with effect from 1972. According to the Government circular any promotion for drawing financial benefits with retrospective effect can be given only after consultation with the Finance Department by the concerned Administrative Department and that too after following certain procedures. This Court is therefore, of the view that the impugned order cancelling the office order giving retrospective promotion to the petitioner was justified.
11. Be that as it may, before filing of the writ application the petitioner has been given promotion in junior selection grade (Sr. Geological Analyst) in the pay scale of Rs.
1500-2750/- with effect from 1981.
12. Having regard to the entire facts and circumstances of the case, I am of the view that the action of the respondents in cancelling the order of promotion was in accordance with law and consequently there is no reason to interfere with the order dated 17.2.1992 passed by the respondents rejecting the representation of the petitioner. Hence there is no merit in this writ application which is, accordingly, dismissed.
13. Application dismissed.