Jharkhand High Court
Uday Narayan Ojha vs The State Of Jharkhand Through The ... on 12 July, 2022
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (S) No. 2737 of 2010
Uday Narayan Ojha, Son of Sri Narayan Ojha, resident of V.I.P.
Chowk (Shaheb Pokhar Co-operative Colony), P.O. + P.S. and
District - Deoghar ... ... Petitioner
Versus
1. The State of Jharkhand through the Secretary, Water Resource
Department, Government of Jharkhand, Nepal House, P.O. + P.S.
- Doranda, Ranchi.
2. The Deputy Secretary, Water Resource Department, Government
of Jharkhand, Nepal House, P.O. + P.S. - Doranda, Ranchi.
3. The Chief Engineer, Water Resource Department, P.O. + P.S. and
District-Deoghar.
4. The Superintending Engineer, Irrigation Circle, Jasidih, Water
Resource Department, Deoghar.
5. The Executive Engineer, Punashi Dam Division, Punashi Camp
Deoghar, Water Resource Department, Deoghar.
... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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07/12.07.2022
1. Learned counsel for the parties are present.
2. This writ petition has been filed for the following reliefs: -
"(i) For quashing the order dated 10.2.2010 issued from the office of Chief Engineer, Water Resource Department, Deoghar by which the promotion in the scale of 1400-2600 (Head Clerk, Senior Selection Grade) from 1.4.89 granted to the petitioner vide order dated 20.3.09 had been cancelled and also directed to recover the excess amount received by the petitioner pursuant to the aforesaid promotion.
(ii) For direction upon the respondents to confirm the promotion Granted to the petitioner in the scale of 1400-2600 (Head Clerk Senior Selection Grade) from 1.4.89 as the petitioner is legally entitled for the aforesaid promotion as per the standing order and rules of the respondent authorities and further direction upon the respondents not to recover the amount received by the petitioner in pursuance to letter dated 20.3.2009 And For any other relief/relief's to which the petitioner may be found to be entitled for in the facts and circumstances of this case."
Arguments of the Petitioner
3. Learned counsel for the petitioner submits that the petitioner was working as correspondence clerk at Punashi Dam Division, 2 Punashi Camp, Deoghar and was granted promotion in the scale of 1400-2600 (Health Clerk Senior Selection Grade) from 01.04.1989 vide Memo No. 2877 dated 31.10.2007 (Annexure-1) issued from the office of Chief Engineer, Water Resources Department, Deoghar. Subsequently, the order of promotion of the present petitioner and three others was cancelled vide Memo No. 1611 dated 11.07.2008. Thereafter, the petitioner represented against the order of cancellation of promotion and was again granted promotion vide Memo dated 20.03.2009 (Annexure-4) in the scale of 1400-2600 from 01.04.1989. Subsequently, the promotion granted vide Annexure-4 was cancelled by the impugned order as contained in Memo No. 242 dated 10.02.2010 (Annexure-7) and an order has been passed for excess recovery.
4. During the course of argument, learned counsel for the petitioner has submitted that the petitioner belongs to general category and the initial promotion to the petitioner which was granted vide Memo 31.10.2007 was under general category. But, subsequently, the respondents have wrongly granted the promotion to the petitioner under ST category vide Annexure-4 dated 20.03.2009 and Annexure-4 has been again superseded vide impugned order dated 10.02.2010 by stating that the petitioner has been wrongly granted promotion under ST Category.
5. The learned counsel submits that even if the impugned order is sustain on the ground that the promotion was given under ST Category vide Annexure-4 and was subsequently withdrawn on account of giving promotion to the petitioner under wrong category, but the grievance of the petitioner in connection with withdrawal of the earlier promotion vide Annexure-2 still survives. He submits that Annexure-2 has not been specifically challenged in the present writ petition before the petitioner was given promotion vide Annexure-4 dated 20.03.2009.
6. The learned counsel submits that the respondents while cancelling the promotion given to the petitioner vide Memo dated 31.10.2007 and while issuing the Memo dated 11.07.2008 had failed to taken into account that the benefit of promotion was available only 3 to those employees who had joined in the division before 31.12.1995, but the Chief Engineer had granted benefit even to those persons who had joined subsequent to 31.12.1995. The learned counsel has also submitted that the petitioner is governed by the ordinance dated 13 th November, 1997 annexed along with the supplementary-affidavit being filed today, which is dated 11.07.2022 and if the respondents would apply the said ordinance in letter and spirit, it would come in light that the promotion of the petitioner has been wrongly cancelled.
Arguments of the respondents
7. The learned counsel appearing on behalf of the respondents, on the other hand, has submitted that so far as the impugned order is concerned, the same has been rightly passed as the petitioner was wrongly given promotion vide Annexure-4 while treating him as ST Category candidate. The learned counsel has further submitted that considering the further grievance of the petitioner in connection with the promotion given on 31.10.2007 and its cancellation dated 11.07.2008, the petitioner still have the opportunity to represent before the Chief Engineer, Water Resources Department (Respondent No.-3), in as much as, as per the paragraph-17 of the counter-affidavit, the Establishment Committee in its meeting on 27.09.2010 has decided unanimously to publish seniority list of correspondence clerk afresh to review the whole matter and as per the counter-affidavit, the case of all the persons including the petitioner who fulfill the requisite qualification and eligibility shall be given benefit of promotion.
Findings of this Court
8. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, it is not in dispute that the petitioner was given promotion in the scale of 1400-2600 (Head Clerk Senior Selection Grade) from 01.04.1989 vide Memo dated 31.10.2007 (Annexure-1) and subsequently, his promotion was cancelled vide Memo dated 11.07.2008 (Annexure-2). However, the petitioner had filed a representation against cancellation of his promotion and subsequently vide Memo dated 20.03.2009 (Annexure-
4), promotion was given to the petitioner by treating him as a ST 4 Category candidate. Admittedly, the petitioner does not belong to ST Category. Subsequently, when it came to light that the petitioner does not belong to ST Category, the promotion given to the petitioner was cancelled by the impugned order dated 10.02.2010 (Annexure-7).
9. Considering the fact that admittedly, the petitioner does not belong to ST Category, grant of promotion to the petitioner by treating the petitioner in ST Category vide Annexure-4 is apparently illegal, which has been rightly withdrawn vide impugned order dated 10.02.2010 and therefore, the impugned order dated 10.02.2010 does not call for any interference.
10. However, the grievance of the petitioner in connection with cancellation of his promotion vide order dated 11.07.2008 (Annexure-
2) still survives and as per the counter-affidavit, the entire matter was to be considered in the Establishment Committee Meeting on 27.09.2010. Paragrah-17 of the counter-affidavit reads as under: -
"That however, it is pertinent to state here that the establishment committee in its meeting on 27.09.2010 has decided unanimously to publish seniority list of correspondence clerk afresh to review the whole matter and on that basis after consideration whoever including the petitioner will fulfill the requisite qualification and eligibility shall be given the benefit of promotion."
11. The learned counsel for the petitioner has submitted that till date, no decision has been taken in connection with seniority as contemplated in counter affidavit.
12. Accordingly, this writ petition is disposed of enabling the petitioner to approach the respondent No.-3 within a period of two months from today by filing a detailed representation along with writ records including the supplementary-affidavit which has been filed by the petitioner today during the course of hearing.
13. Upon filing of such representation, the respondent No.-3 is directed to pass a reasoned order in accordance with law within a period of three months from the date of filing of the representation and/or place the matter before the Establishment Committee as contemplated in paragraph-17 of the counter-affidavit, so that the dispute in connection with the seniority/promotion of the petitioner is taken to a logical end. It will be open to the respondent No.-3/the 5 Establishment Committee to pass orders in accordance with law after taking into consideration the various circulars, guidelines, decisions of the State Government etc., which may be relied upon by the petitioner as well as which may be available with the respondents and also to consider the case of other similarly situated persons as para 17 of the counter affidavit reflects intention to review the whole matter and on that basis after consideration whoever including the petitioner will fulfill the requisite qualification and eligibility shall be given the benefit of promotion.
14. The reasoned order to be passed by the Respondent No.-3/the Establishment Committee should be communicated to the petitioner through speed-post at the address which may be provided by him in the representation. If any final decision, in connection with promotion in terms of para 17 of the counter affidavit has already been taken, then a copy of the same be forwarded to the petitioner immediately and no fresh decision is required to be taken. If the petitioner is found entitled to any relief including any monetary benefit arising out of the reasoned order to be passed or any order already passed, the respondent No.-3 shall also take steps, so that the monetary benefits of the reasoned order is extended to the petitioner as admittedly the petitioner has retired from service. So far as recovery of excess amount paid is concerned, the same will certainly depend upon the final outcome of the aforesaid exercise regarding entitlement of the petitioner for promotion and this court has neither entered into the merits of the claim of the petitioner for promotion nor has entered into the legality and validity of the order of recovery arising out of the order dated 10.2.2010.
15. This writ petition is accordingly disposed of with the aforesaid directions and observations.
16. Pending interlocutory application, if any, is closed.
(Anubha Rawat Choudhary, J.) Mukul