Patna High Court
Bharat Deo Pathak And Anil Kumar vs Bihar State Food And Civil Supplies ... on 9 November, 2006
Equivalent citations: 2007(1)BLJR295
Author: Chandramauli Kr. Prasad
Bench: Chandramauli Kr. Prasad
JUDGMENT Chandramauli Kr. Prasad, J.
Page 0296
1. Petitioners besides Nand Kishore Ram and Rajendra Prasad, aggrieved by the order dated 31.3.2003 cancelling their promotions to the post of Assistant Account Officer Grade II with effect from 8.6.1980 preferred C.W.J.C. No. 4286 of 2003 (Bharat Deo Pathak and Anr. v. Bihar State Food & Civil Supplies Corporation and Ors.) and C.W.J.C. No. 5618 of 2003 (Nand Kishore Ram and Anr. v. Bihar State Food & Civil Supplies Corporation and Anr.) before this Court.
2.Both the writ applications were heard and disposed of by order dated 10th of September, 2003. While disposing of the aforesaid writ application, this Court directed as follows:
I have found the promotion of the petitioners to be illegal only on the ground that the recommendation of the Bureau of Public Enterprises has not been obtained. Keeping in mind the equity I direct that the case of the petitioners for promotion be sent to the Bureau of Public Enterprises for its post facto approval within two weeks from the date of receipt/production of a copy of this order. The Bureau of pubic Enterprises shall take a decision on this issue within two months from the date of receipt of communication seeking post facto approval. In case the Bureau of Public Enterprises grants post facto approval, petitioners shall be allowed to continue on the promoted post and in that case promotion of the petitioners shall be deemed to be from the date it was granted to them unless and until the Bureau of Public Enterprises specifies any other date for promotion. The order impugned shall be kept in abeyance till the decision by the Bureau of Public Enterprises.
3. In the light of the aforesaid order the Bihar State Food & Civil Supplies Corporation forwarded the case of the petitioners as also other employees to the Bureau of Public Enterprises. The Bureau of Public Enterprises by communication dated 27.11.2003 (Annexure-6) declined to grant post facto approval to the promotion of the petitioners. In the light of the aforesaid the Bihar State Food & Civil Supplies Corporation reverted the petitioners in the light of its earlier order by memo dated 8.12.2003 (Annexure-7).
4. In the present application prayer of the petitioners is to quash the communication dated 27.11.2003 of the Bureau of Public Enterprises to the Bihar State Page 0297 Food & Civil Supplies Corporation declining to grant post facto approval to the promotion of the petitioners and the consequential order dated 8.12.2003.
5. Mr. Chittaranjan Sinha, Senior Advocate, appearing on behalf of the petitioners contends that in view of the order of this Court, the Bureau of Public Enterprises was under an obligation to consider the case of the petitioners for promotion on merit and it could not have rejected it only on the ground that post facto approval was sought.
6. Mr. J.P. Shukla, Senior Advocate, appears on behalf of Bihar State Food and Civil Supplies Corporation.
7. Junior Counsel to Government Advocate No. VII appearing on behalf of the Bureau of Public Enterprises contends that Bureau of Public Enterprises cannot be directed to grant post facto approval to the promotion of the petitioners and in support of his submission he has placed reliance on a judgment of the Supreme Court in the case of state of W.B. and Anr.` Alpana Roy and Ors. (2006) 8 Supreme Court Cases 296 and my attention has been drawn to paragraph 6 of the judgment which reads as follows:
We find that both learned Single Judge and the Division Bench have overlooked the basic features of the case and have proceeded to grant relief to the writ petitioner. The Board, on examination of all relevant documents, came to hold that the document which was claimed to be the order of appointment was a fabricated one. Further, no resolution of the Managing Committee was produced. Leared Single Judge set aside the report even without indicating any reasons and directed that approval of writ petitioner's appointment should be accorded. It is the function of the body granting approval to examine whether in a particular case, approval is to be accorded. The approving authority's function is not a formal one. It has a duty to decide whether approval is to be accorded, taking into account governing statutes. The High Court has proceeded as if approval is an empty formality. On according of the approval certain financial implications of the State come into operation. Without pointing out as to how the decision of the Board was wrong, the High Court should not have set aside the order. The Division Bench even did not consider these aspects and held that even if there was no document, the appellants cannot take advantage of the legal principles after such a long lapse of time. The conclusion is clearly confusing.
8. However when confronted as to whether in fact direction for according approval for appointment has been issued or not by this Court in its earlier order, he is unable to point out any such direction.
9. The direction given by this Court has been quoted in extenso in the preceding paragraph of the judgment. This Court had directed the Bureau of Public Enterprises to consider the grant of post facto approval to the promotion of the petitioners and in fact it had not directed to grant post facto approval. In that view of the matter the Bureau of Public Enterprises was under an obligation, to consider the case of the petitioners on merit and then make its recommendations but it has failed to do so. Accordingly, submission of the Counsel of the Bureau of Public Enterprises has no legs to stand and the authority relied has no bearing on the facts of the present case.
Page 0298
10. As the Bureau of Public Enterprises has declined to grant approval only on the ground that the Bihar State Food & Civil Supplies Corporation had asked for its post facto approval, its communication dated 27.11.2006 (Annexure 6) and consequential order dated 8.12.2003 (Annexure-7) cannot be allowed to stand.
11. The Bureau of Public Enterprises shall consider the recommendation of the Bihar State Food and Civil Supplies Corporation within six weeks from the date of receipt/production of a copy of this order and communicate its decision to the Bihar State Food & Civil Supplies Corporation.
12. Needless to state that the Bureau of Public Enterprises shall consider the case of all those employees whose cases have been recommended by the Bihar State Food & Civil Supplies Corporation.
13. It is further needless to state that while doing so nothing shall preclude it to got into the merit of the case.
14. In the result, the application is allowed, impugned orders are quashed with the direction aforesaid. No cost.