Jharkhand High Court
Mathura Pan vs The State Of Jharkhand Through The ... on 2 November, 2022
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2437 of 2018
1. Mathura Pan, aged about, 32 years, son of Late Bhola Nath Pan,
resident of Village- Pasubera, P.O.- Tantnagar, P.S.- Manjhari,
District- West Singhbhum.
2. Bhairab Mandi, aged about 39 years, son of Late Baidya Nath
Mandi, resident of village- Bardih, P.O.-Aashna, P.S.- Ghatshila,
District- East Singhbhum.
3. Shashi Bhushan Kumhar, aged about 32 years, son of Late
Kailash Kumhar, resident of Village- Vankatti, P.O.- Jaitgarh,
P.S.- Jagannathpur, District- West Singhbhum. (deleted)
... ... Petitioners
Versus
1. The State of Jharkhand through the Principal Secretary,
Department of Personnel, Administrative Reforms and Rajbhasha,
having office at Project Building, Dhurwa, P.O. & P.S.- Dhurwa,
Town and District- Ranchi
2. The Secretary/Principal Secretary, School Education and Literacy
Department, Government of Jharkhand, having office at MDI
Building, Dhurwa, P.O. & P.S.- Dhurwa, Town and District-
Ranchi.
3. The Deputy Commissioner-cum-Chairman, District Education
Establishment Committee, West Singhbhum, having office at P.O.
& P.S.- Chaibasa, District- West Singhbhum.
4. The Regional Deputy Director of Education, Kolhan Division,
having office at P.O. & P.S.- Chaibasa, District- West Singhbhum.
5. Deputy Commissioner, Saraikella-Kharsawan, having office at
P.O., P.S. & District- Saraikella-Kharsawan.
... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Manoj Tandon, Advocate
Ms. Sneha Kumari, Advocate
For the Respondents : Mr. Rohit, Advocate
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07/02.11.2022 Heard Mr. Manoj Tandon, learned counsel for the petitioners
along with Ms. Sneha Kumari, learned counsel appearing on behalf of the petitioners.
2. Heard Mr. Rohit, learned counsel appearing on behalf of the respondents.
3. This writ petition has been filed for the following reliefs:
"(i) To quash and set aside the office order contained in Memo No. 1171 dated 12.12.2017 (Annexure- 10) issued under the pen and signature of respondent no. 4, whereby and whereunder, the claim of the petitioners for promotion from Class-IV posts to Class-III posts has been rejected.2
(ii) To direct the respondents to consider the case of the petitioners for promotion from Class-IV posts to Class-III posts in accordance with law."
Arguments of the Petitioners
4. Learned counsel for the petitioners submits that the petitioners had moved this Court earlier in W.P.(S) No. 2470 of 2014 seeking a direction upon the respondents to consider their case for promotion on the post of Clerk in Regional Office, Department of Human Resource Development with effect from the date they were entitled with all consequential benefits. He submits that although no counter-affidavit was filed in the said writ petition, but it was disposed of in the light of resolution dated 16.09.1992 with a liberty to the petitioners to file a fresh detailed representation before the respondent no. 4 who was to pass a reasoned order in accordance with law.
5. The learned counsel submits that a reasoned order has been passed at Annexure- 10 dated 12.12.2017 wherein three circulars have been mentioned; (i) memo no. 13293 dated 05.10.1991 (Clause 9A),
(ii) resolution no. 335 dated 16.09.1992, and (iii) notification no. 1749 dated 27.03.2010. He submits that reliance on memo dated 05.10.1991 is totally misplaced. The learned counsel submits that the petitioners are not claiming any special privilege being an appointee under compassionate appointment, rather once a person is appointed under compassionate appointment, he has to be treated at par with other employees as per service rules. So far as other two circulars are concerned, the learned counsel submits that the consideration of the same in the impugned order is ex-facie non-speaking, inasmuch as, it does not indicate as to which clauses or provisions of the circulars dated 16.09.1992 and 27.03.2010 are not being fulfilled by the petitioners.
6. The learned counsel submits that as per the petitioners, they fulfill all the required criteria for consideration for promotion. The learned counsel has further submitted that the petitioners were appointed as back as in the year, 2001 and 2006 respectively and much time has elapsed. It has been specifically mentioned in para 28 that since their appointment, no departmental examination for appointment from Class -IV post to Class-III post was held and 3 consequently, the channel for promotion of the petitioners has been blocked on account of non-action on the part of the respondents.
7. The learned counsel has also referred to Notification dated 27.03.2010 and has tried to draw the attention of this Court to clause 4(ka) of the said notification which provides that the vacancy position will be calculated by taking into account the 1 st January of every year and the process is to commence. He submits that the respondents having issued notification dated 27.03.2010, are themselves not following it and consequently, the petitioners have not been promoted. He also submits that he has brought on record instances of certain districts where the promotion has been granted which fall under the same division.
8. The learned counsel for the petitioners has also relied upon a judgement passed by the Hon'ble Supreme Court reported in (2008) 5 SCC 100 (Food Corporation of India and Others Vs. Parashotam Das Bansal and Others) and has referred to paragraphs 9, 12, 21 and 23 of the said judgement to submit that although there is no fundamental right of promotion, but the incumbent has a right to be considered for promotion and what is necessary is to provide an opportunity of advancement, promotion being a normal incidence of service. The learned counsel submits that non-action on the part of the respondents has practically blocked advancement of the petitioners and therefore, the impugned order be set-aside and appropriate direction be passed. Arguments on behalf of the Respondents
9. The learned counsel appearing on behalf of the respondents, on the other hand, has opposed the prayer and has submitted that in paragraph 5 of the impugned order, there is a reference of Memo dated 05.10.1991 only to say that no second benefit can be granted to the petitioners on account of having been appointed on compassionate ground. However, he submits that once a person is appointed on compassionate ground, he has to be treated at par with other employees as per service rules. The learned counsel further submits that he is not in a position to apprise this Court as to whether Clause 4 of the circular dated 27.03.2010 regarding calculation of vacancy as on 1st January every year has been done by the respondents or not and 4 he is not in a position to dispute that the respondents are bound by their own circular.
10. The learned counsel for the respondents has further submitted that no para-wise reply has been filed in the present case. He is not in a position to deny the statements made by the petitioners at paragraph 28 of the writ petition. However, the learned counsel has submitted that for promotion to Class -III, the petitioners are to be subjected to limited departmental examination.
11. In response, the learned counsel for the petitioners has submitted that the promotion of the petitioners is to be considered not only in the light of circular/notification dated 27.03.2010, but also in the light of the earlier circular/resolution dated 16.09.1992. Findings of this Court
12. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, it is not in dispute that the petitioners were appointed by way of compassionate appointment as back as in the year 2001 and 2006 respectively. It is further not in dispute that the petitioners are entitled for consideration for promotion in terms of the circular/resolution no. 335 dated 16.09.1992 read with the circular/notification dated 27.03.2010. It is further not in dispute from the writ records that a specific statement has been made in para 28 of the writ petition as follows:
"28. That the petitioners submit that when the petitioners were appointed in the year 2001, 2006 and 2008 and since then no departmental examination for appointment from Class-IV post to Class-III post was held; the petitioners cannot be denied promotion to higher post for all the times to come despite lapse of almost 17, 11 and 9 years of their services from the date of their appointment."
13. Although the aforesaid statement made by the petitioners in paragraph 28 of the writ petition has not been specifically denied in the counter-affidavit, but the same is subject to further verification from the side of the respondents as no para-wise reply has been filed in the counter-affidavit. However, the fact remains that in spite of working for more than 21 and 14 years respectively, the petitioners have not been promoted. The petitioners are not seeking any additional benefit out of the fact that they were given compassionate appointment, rather the petitioners are claiming their right of being 5 considered for promotion as applicable under the service rules for the other employees belonging to class-IV post.
14. Admittedly, the petitioners had moved this Court in W.P.(S) No. 2470 of 2014 seeking redressal of their grievance. The said writ petition was disposed of on 10.10.2017. It further appears that at the time of disposal of the writ petition, the circular/notification dated 27.03.2010 was not placed before this Court. However, this court had directed the Regional Deputy Director of Education, to pass a reasoned order pursuant to a representation in the light of resolution dated 16.09.1992.
15. Upon perusal of the order passed pursuant to the decision in the aforesaid writ petition as contained in Annexure- 10 dated 12.12.2007, this Court finds that the order is completely silent as to whether any limited departmental examination for promotion from Class IV to Class III post was conducted after the petitioners were recruited. The impugned order is also silent as to whether the respondents have followed their own circular/notification dated 27.03.2010 particularly Clause-4 thereof wherein it has been specifically mentioned that the vacancy position is to be notified every year as on 1st of January. The impugned order simply says that the petitioners do not comply with the requisite conditions for grant of promotion in terms of circular/resolution dated 16.09.1992 and also notification dated 27.03.2010, although no particulars have been mentioned as to which clause and which provisions of those circular/notification are not being satisfied by the petitioners.
16. The impugned order also refers to Memo dated 05.10.1991 [Clause-9(ka)] to state that the persons who have been appointed under compassionate appointment will not be entitled for a 2nd benefit arising out of compassionate appointment, although the petitioners are not seeking any additional benefit arising out of compassionate appointment. Therefore, reliance upon the circular/memo dated 05.10.1991, as mentioned in the impugned order, is completely misplaced.
17. So far as the applicability of the resolution dated 16.09.1992 and the notification dated 27.03.2010 are concerned, the same have not been properly considered in the impugned order and the impugned 6 order is completely vague as to which conditions under the said circular/notification for grant of promotion are not being satisfied by the petitioners. It is also not clear from the impugned order as to whether the respondents have themselves been following their own notification/circular dated 27.03.2010 particularly Clause 4 thereof.
18. As a cumulative effect of the aforesaid findings, the impugned order dated 12.12.2017 (Annexure-10) cannot be sustained in the eyes of law, which is hereby set-aside.
19. The matter is remitted back to the respondent no. 4 to take fresh decision in accordance with law after verifying the records as to whether the limited departmental examination were held and also verify as to whether the mandate of circular/notification dated 27.03.2010 particularly clause-4 thereof, has been followed by the respondents or not and to take a fresh decision with regard to claim of the petitioners in accordance with law. There cannot be any dispute that the respondents are bound to follow their own circulars issued from time to time.
20. The fresh decision be taken by the respondent no. 4 with regard to the entitlement of the petitioners in terms of the resolution of 1992 read with other applicable notifications/circulars including the circular/notification dated 27.03.2010 within a period of one month from the date of receipt of the representation along with copy of the writ records after giving an opportunity of hearing to the petitioners or their authorized representative.
21. The reasoned order be communicated to the petitioners through email at the email ID of each petitioner to be provided in the representation itself.
22. This writ petition is disposed of with the aforesaid observations and directions.
(Anubha Rawat Choudhary, J.) Pankaj