Patna High Court
Akhileshwar Prasad Roy & Anr vs The State Of Bihar & Ors on 22 March, 2018
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14528 of 2007
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1. Akhileshwar Prasad Roy, son of late Jangi Roy, Resident of Village
Naraw Tola, Dharam Baghi, P.S. Sautar Nagar, Dist. Saran at Chapra.
2. Md. Moinuddin, son of Md. Animuddin, Resident of Village Punpun
Bazar, P.S. Punpun Bazar, Dist. Patna.
... ... Petitioner/s
Versus
1. The State of Bihar.
2. The Director, the Information Public Relation Department, Bihar, Patna.
3. The Joint Director, the Information Public Relation Department, Bihar,
Patna.
4. The Secretary, the Information Public Relation Department, Bihar,
Patna.
5. The Registrar, the Information Public Relation Department, Bihar,
Patna.
... ... Respondent/s
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Appearance :
For the Petitioner/s : None
For the Respondent/s : Ms. Nutan Kumari Sharma, AC to GA1
For the A.G. : Mr. Anjani Kumar Sharan, Adv.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL JUDGMENT
Date : 22-03-2018
No one appears for the petitioners. Counsel for the State is
present. On the last day also, counsel for the petitioners was
absent.
In the earlier order dated 20.3.2018, it has specifically been
mentioned, if the parties will remain absent, this Court will decide
the case on merit. In that view of the matter, on the basis of
assistance given by the counsel for the State as well as the material
available on record, this Court is disposing of the present case on
its merit.
Basically, the petitioners have made a prayer that they should
be granted relief of promotion on the post of Chalchitra Chalak
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with effect from November, 1995 along with monetary benefit
whereas they have been granted benefit from the date of issuance
of the order no. 28 dated 8.2.2007 (Annexure-A to the counter
affidavit).
The petitioners were initially appointed as Peon cum Khalasi
on 10.7.1973 and 11.4.1977 respectively. In the year 1995, a
Committee was constituted for giving promotion to the post of
Chalchitra Chalak and, accordingly, the Committee recommended
the name of these petitioners and some other persons by
conducting their interview on different dates for promotion from
Class IV post to Chalchitra Chalak, a Class-III post in the category
of 50% which was to be filled up by promotion by holding
competitive examination by the Public Service Commission except
technical post. Even after recommendation, when the petitioners
were not granted the benefit of higher scale of Chalchitra Chalak,
they were compelled to approach this Court in C.W.J.C. No. 11203
of 2001 and the same was disposed of on 29.8.2001 with a
direction to consider the grievance and pass order within a period
of six weeks. Chalchitra Chalak is a post attached to the Director,
Information Public Relation Department and the petitioners were
holding the technical post and without license of operator of
Chalchitra Chalak, no one can handle the machine such as
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Projector and, as such, the post of Chalchitra Chalak is a technical
post, not a non-technical post. In terms of the order passed by this
Court, the petitioners filed representation and the same was
rejected on the ground that their recommendation to the post of
Chalchitra Chalak has been made without there being any
recommendation of the B.P.S.C. and, as such, a claim of promotion
substantially to the said post is not entertainable and the same was
communicated through Memo No. 2375 dated 23.11.2001 which
was challenged before the Writ Court in C.W.J.C. No. 7795 of
2002 and the same vide order dated 18.7.2005 has been allowed,
relevant portion whereof reads as follows:-
"I am unable to appreciate the submission of
the learned counsel for the State. The appointment of
petitioners vide Annexure-3 was on probation of one
year on temporary basis and until further orders. It is
admitted by the learned counsel for the State that no
order was ever issued either canceling or terminating
the appointment of the petitioners. It is true that the
said order mentions that after completion of
probationary period necessary steps shall be taken
for their regularization and in case they are not
found fit for promotion or there is any irregularity in
reservation, they will be reverted back in the original
cadre during the probationary period itself. There is
no such case of Respondents that there was any
irregularity in the reservation or that the petitioners
were not fit for promotion. However, no such order
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reverting them back to the original cadre has been
issued till date as has been admitted by the learned
counsel for the State. Moreover, I find substance in
the submission of the learned counsel for the
petitioners that Annexure-A to the counter affidavit is
not applicable to the present case as it is not denied
by the Respondents that post of 'Chalchitra Chalak'
are in the wing of Secretariat office, which is also
obvious from the fact that the said posts are under
Director, Information and Public Relation
Department (Respondent no.2). Learned counsel for
the State has not been able to show from any of the
counter affidavit that according to Respondents the
posts in question belong to the office other than
Secretariat and allied office. Thus, in my opinion,
rejection of the claim of the petitioners on the ground
mentioned in impugned order is not tenable. As per
the order of the appointment (Annexure-3) the
petitioners were entitled for consideration of their
cases for regularization on the posts in question.
Under such circumstances, in my opinion, the
impugned order contained in Annexure-7 cannot be
sustained and it is, accordingly, quashed. Writ
application is allowed. The Respondents are directed
to consider the case of the petitioners for their
regularization in the light of their order of
appointment, contained in Annexure-3 within four
weeks of the receipt/production of a copy of this
order."
In the aforesaid order, it has been recorded that the plea of the
State that the recommendation was made without there being any
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approval of the B.P.S.C. does not carry any weight for its
implementation but, the Court rejected the submission and held
that there is not dispute that all through the petitioners were
working and still they were working on the post and the plea for
approval from the B.P.S.C. does not carry any substance and
directed to consider the case of the petitioners for grant of
promotion to the post of Chalchitra Chalak but, the State
challenged the aforesaid order before the L.P.A. unsuccessfully
and the same was again challenged before the Hon'ble Apex Court
in S.L.P. (Civil) No. 8105 of 2006 whereafter the petitioners have
filed an application for implementation of the order. Ultimately,
the State has passed the order on 8.2.2007 vide Memo No. 28
dated 8.2.2007 thereby the granted benefit of promotion to the post
of Chalchitra Chalak from the date of issuance of the letter. A plea
has been taken by the petitioners that the Committee was
constituted in the year 1995 itself, the petitioners were
recommended for promotion to the post of Chalchiltra chalak and
they all through have discharged the duty of Chalchitra Chalak,
depriving the petitioners their salary for the said period and giving
the benefit from the date they were recommended is completely
negation of the justice.
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Learned counsel for the State has submitted that the State has
rightly given the benefit from 2007 when finally the case has been
adjudicated and decided in favour of the petitioners. In the present
case, admittedly, the recommendation of the committee has been
given in the year 1995 whereafter the petitioners were working on
such post and they were never demoted or terminated from
service. In such circumstances, granting relief after a long delay is
completely against the rules of natural justice and equality.
In that view of the matter, this Court directs the respondent
authority to make necessary correction in the order dated 8.2.2007
and make it applicable with effect from the date the first order has
been passed by this Court in C.W.J.C. No. 11203 of 2001 dated
29.8.2001.
If the petitioners have already been given the benefit, there is no question of granting the same relief again to the petitioner.
With the aforementioned observation and direction, this writ application is allowed to the extent indicated above.
(Shivaji Pandey, J) rishi/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 29.03.2018 Transmission Date NA