Kamleshwar Kishore Sinha v. The State Of Bihar

Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 3 service by an order dated 3.11.1989 which again was assailed by him in his 3rd writ petition, C.W.J.C. No. 765/1990 and that writ application was allowed by an order dated 9.1.1991 setting aside the order of punishment of the petitioner with a liberty to proceed afresh against the petitioner. In terms of the aforementioned order of this Court dated 9.1.1991 the petitioner was again placed under suspension with effect from 3.11.1989 and was subjected to a fresh proceeding under order dated 7.10.1991. That order of retrospective suspension, however, was later on modified but the departmental proceeding against him was continued as would be apparent from the order of the Additional Registrar dated

28.4.1992.

6. The petitioner’s next writ application, C.W.J.C. No. 4774/1995 assailing the aforementioned order dated

28.4.1992 was again disposed of by an order dated 11.9.1995 directing the respondents to conclude the departmental proceeding against the petitioner and if the proceeding was not concluded he would be entitled for reinstatement as also current salary. Thereafter the departmental proceeding against the petitioner was concluded by inflicting him punishment of stoppage of three increments with cumulative effect as also withholding of payment of salary beyond subsistence allowance vide an order dated

10.1.1996. When the petitioner had preferred his appeal against Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 4 the aforementioned order of punishment dated 10.1.1996 the appellate authority had held that the punishment against the petitioner to be quite lenient in keeping with grave allegation of financial irregularity committed by him and therefore, the matter was remitted back to the disciplinary authority whereafter he was subjected to another order of punishment dated 5.3.1998 by way reduction rank as also recovery of the amount misappropriated by him (petitioner) in addition to non-payment of salary for the period of suspension.

7. Such order of punishment of the petitioner dated

5.3.1998 was subsequently interfered and partly modified by the appellate authority who by this order dated 7.2.2004 had inflicted stoppage of three increments without any cumulative effect as also recovery of the amount for the financial loss caused to the Co- operative society. This order dated 7.2.2004 as well as an order dated 10.6.2005 rejecting the claim of 2nd time bound promotion were made subject matter of C.W.J.C. No. 904/2005 wherein this Court by an order dated 15.9.2006 had observed as follows:- “In compliance of the orders of this Court dated

8.9.2005, learned counsel for the petitioners states that in C.W.J.C. No. 1815 of 1997 he has challenged the appellate order bearing Memo No. 381 dated 7.2.2004 passed in Appeal No. 6 of 2003, whereunder punishment have been imposed upon the petitioner and relying on the said order, second time bound promotion was refused to him. Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 5 In the circumstances, this writ petition is, accordingly, disposed of with observation that once the appellate order bearing Memo No. 381 dated 7.2.2004 referred to above is set aside, case of the petitioner should be favourably considered for grant of second time bound promotion in accordance with law.”

8. From reading of the aforesaid order, it would be clear that leave was only accorded to the petitioner that after his punishment dated 7.2.2004 would be set aside in CWJC No. 1815 of 1997 in which the said order was assailed by filing of the interlocutory application, the case of the petitioner would be fafourably considered for grant of second time bound promotion in accordance with law. The fact however remains subsequently when the CWJC No. 1815 of 1997 was taken up and disposed of on 20.7.2011, this Court did not interfere in the impugned order of punishment as would be evident from the extract of the order dated 20.7.2011 quoted hereinbelow:- “In this case earlier order was passed on 12.7.2011 but before it could be signed Mr. Kishore Kumar Thakur had appeared and had requested rehearing case. Accordingly, the matter has been reheard and this Court would find that if during the pendency of this writ application the petitioner had filed an appeal before the authority against the same order which was impugned herein, any resultant order passed can be made subject matter of a fresh writ Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 6 petition, inasmuch as the relief sought in this writ application confined to quashing of an order dated

10.1.1996, 13.6.1996 and 5.3.1998 which no longer exist in view of the subsequent events taking place during the pendency of this writ application. That so, application has become infructuous and is, accordingly, disposed of with a liberty to the petitioner to file a advised.” application,

9. From the foregoing events, it is apparent that the petitioner has been subjected to repeated orders of suspension and punishment and ultimately his order of punishment dated

20.4.2007 has still remained in force. In such a situation this Court would find that the petitioner was never eligible for grant of promotion in the period the Time Bound Promotion Scheme of the Government had remained in force i.e. from 30.12.1981. The Time Bound Promotion Scheme of the Government as notified in the resolution of the Finance Department dated 30.12.1981 which in fact came to an end on 31.12.1995 had itself envisaged that a person in order to be granted time bound promotion must be eligible for grant of regular promotion. In this regard it would be useful to quote relevant provision being paragraph no. 11 of the Government Resolution dated 30.12.1981, which reads as follows:- Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 7 “11. With regard to time-bound promotion, the Fourth Pay Revision Committee have made the following recommendations:- (viii) management should Personnel envisage providing at promotions employee in Government service, the first by the end of ten years of service and the second by the end of 25 years of service. each and (ii) If an employee who is otherwise fit for promotion and has not been able to get a single promotion by 10 years of service notwithstanding the fact that a specified percentage of the cadre is already provided in the different levels of promotion inclusive of the selection grade, he should be promoted to the junior selection grade at the end of the tenth year. (iii) If an employee, although otherwise found fit for a second promotion, has not been able to secure a second promotion by the 25th year of his service notwithstanding the fact that a specified percentage of the cadre is already provided in the different levels of promotion inclusive of the selection grade, he should be promoted to the senior selection grade at the end of the 25th year. (iv) The aforesaid facilities should be extended to all employees whether they belong to any formally constituted service or cadre, or not and including employees holding isolated posts. In their case, the pay scale immediately higher than the pay scale prescribed for the basic post should be considered as the pay scale for the junior selection grade, and the pay scale immediately higher to that of the aforesaid junior selection grade should be deemed to be the pay scale for the senior selection grade. The aforesaid scheme of time bound promotion will not be applicable services, cadres and posts of which the maximum of the pay scale of the basic grade exceeds Rs.2,000. (vi) The other conditions, the rules and procedures meant for usual promotion should be followed in case of the aforesaid time bound system also. (viii) (viii) Since the aforesaid scheme is meant as an anti-stagnation measure, it should be applicable in case of only such employees who have not been able to get the first or the second promotion, as the case may be. In other words, the benefit of the time bound system should those who are be extended stagnating in the same pay scale to corresponding revised pay scale. The they were appointed or Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 8 benefit should not be made applicable to such employees who, after once joining Government service have, for any reason, been elevated to a higher pay scale, by promotion, merger or even upgradation. This should require issue of specific orders in case of every employee which should obviously be done only after a careful examination of his service record. The aforesaid scheme is obviously not intended to deny any employee earlier promotion that comes in his favour in the usual course. (viii) The above recommendations have been accepted by Government subject to the condition that the benefit of time bound promotion over and above the selection grade quota of posts as envisaged in paragraph 10, will be allowed the possibility of accommodating such exhausting employees against the vacancies available selection grade.” to eligible employees only after (underlining for emphasis) As noted above, the petitioner in the relevant period on or after 1.8.1991 when he had completed 25 years of his service or even till 31.12.1995 (till when the scheme of time bound promotion remained in force) was already reeling under the order of suspension and punishment and even today his modified punishment of stoppage of three increments with non-cumulative effect as explained above still remains in force. The petitioner thus cannot be said to be eligible for grant of regular promotion till the currency of the order of punishment. A question, therefore, would arise whether a person like the petitioner already subjected to orders of suspension and departmental proceeding followed by punishment could be held to be eligible for promotion including Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 9 Time Bound Promotion. The Resolution of the State Government dated 30.12.1981 specially its underlined portion laying down the norms of Time Bound Promotion had itself envisaged that a person in order to be given such promotion must be eligible in all respect for grant of regular promotion.

11. The petitioner as noted above was not eligible for grant of promotion as on 1.8.1991, the date on which he had completed 25 years of service because on that day, he was under order of suspension pending departmental proceeding in view of the order dated 29.6.1988. It has to be noted that the order of suspension despite being assailed on two occasions by the petitioner in this Court was not revoked and in the departmental proceeding, he was punished by an order of punishment dated

3.11.1989. In fact, that order of punishment of dismissal from service dated 3.11.1989 has been modified by the order of punishment dated 7.2.2004 withholding three increments of the petitioner.

12. This aspect of the matter as to what would be the effect of the order of punishment while considering the case of promotion of an employee undergoing the effect of such punishment was considered by the Apex Court in the case of Union of India Vs. K.V. Jankiraman reported in AIR 1991(4) SCC 109 wherein it was held as follows:- Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 10 “According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalized in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and denies him the promotion, such denial is not illegal and Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 11 unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date the authority considers the promotion. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion the second sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal.”

13. Considering this very aspect, the Apex Court in the case of State of T.N. Vs. Thiru K.S. Murugesan & Ors. reported in 1995(3)SCC 273 had held as follows:- “7. It would thus be clear that when promotion is under consideration, the previous record forms the basis and when the promotion is on merit and ability, the currency of punishment based on previous record stands as an impediment. Unless the period of punishment gets expired by efflux of time, the claim for consideration during the said period cannot be taken up. Otherwise, it would amount to retrospective promotion which is impermissible under the Rules and it would be a premium on misconduct. Under these circumstances, we are of the opinion that the doctrine of double jeopardy has no application and non- consideration is neither violative of Article 21 nor Article 14 read with Article 16 of the Constitution.”

14. The issue as to whether a person would be qualified/eligible for promotion during currency/continuance of the effect of the order of punishment is well settled and reference Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 12 in this connection may be usefully made to the judgment of the Apex Court in the case of Union of India & Ors. Vs. K. Krishnan reported in AIR 1992 SC 1898 wherein it was held as follows:- “We have considered the matter closely and in our opinion the view taken by the Tribunal both in the impugned judgment and in the earlier decisions holding that as a result of the provisions of Rule 157 forbidding the promotion of a State employee during the currency of the penalty results in a second punishment, is not correct. There is only one punishment visiting the respondent as a result of the conclusion reached in the disciplinary proceeding leading to the withholding of increment, and the denial of promotion during the currency of the penalty is merely a consequential result thereof. The view that a Government servant for the reason that he is suffering a penalty or a disciplinary proceeding cannot at the same time be promoted to a higher cadre is a logical one and no exception can be taken to Rule 157. It is not correct to assume that Rule 157 by including the aforementioned provision is subjecting the government servant concerned to double jeopardy. We do not find any merit in the argument that there is no justification or rationale behind the policy; nor do we see any reason to condemn it as unjustified, arbitrary land violative of Articles 14 and 16 of the Constitution of India. On the other hand, to punish a servant and at the same time to promote him during the currency of the punishment may justifiably be termed as self-contradictory. The impugned judgment is, therefore, set aside.

15. The same view was also taken by the Apex Court in the case of Oriental Insurance Co. Ltd. & Anr. Vs. Gokulprasad Maniklal Agarwal & Anr. reported in 1999(7)SCC 578 wherein it was Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 13 held as follows:- “8. As departmental proceedings for a major penalty were started against the respondent, the appellant was justified in not promoting him till the enquiry was over. The learned counsel for the appellant pointed out to us that soon after the order of punishment was passed, the case of respondent was again considered by Promotion Committee. He was considered for the succeeding years also but was not found fit for promotion on merits.-----”

16. The position is no different in the case of time bound promotion, inasmuch as, firstly this Court has already extracted the relevant provision of such time bound promotion laid down in the government resolution dated 30.12.1981 clearly envisaging that the first and/or second time bound promotion would be given to a person who is otherwise eligible for promotion. It is well settled that a person in order to be eligible for promotion must have a clear service record and the condition of such time bound promotion being eligibility for promotion, no one can claim even time bound promotion without fulfilling all the requisite conditions of being eligible for promotion.

17. The issue of time bound promotion also being governed by condition of suitability was also examined by the Apex Court in the case of Patna University & Ors. Vs. Awadh Kishore Pd. Yadav & Ors. reported in 1994 Suppl. (2) SCC 250 wherein it was Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 14 held that even in time bound promotion, there can be no automatic promotion on completion of the period and the service record will have to be screened for grant of time bound promotion. In this regard, the Apex Court had held as follows:- “Although, the statute has been framed to give time-bound promotion to lecturers to the post of Reader after they complete at least ten years of continuous service as lecturer in one or more Universities, the same statute says that promotions shall not be automatic. It shall be made on the basis of recommendation of the Commission (College Service Commission) on consideration of experience and C.C. Roll of teacher concerned.”

18. Considering the scope of time bound promotion, the Apex Court again in the case of Dr. B.P. Yadav & Anr. Vs. Dr. Ratneshwar Prasad Singh & Ors. reported in 1996(8)SCC 494 while approving the judgment of the Apex Court in the case of Awadh Kishore Prasad Yadav (supra) had held as follows:- “20. This Court indicated that such time-bound promotion was not a matter of course or a routine matter on completion of required length of service and possession of requisites qualification, but even for recommending for such time-bound promotion, service records were required to be screened by a Committee to be formed in the manner indicated hereinbefore. As without considering service records, recommendations were made for giving promotion under the time- bound promotion scheme, the College Service Commission withdrew the recommendations for temporary promotions. This Court allowed the said appeals by setting aside the impugned Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 15 judgment of the High Court and gave various directions for screening the records.

21. It is, therefore, quite evident that the time-bound promotion under the said statute is not automatic and as a matter of course. Even for provisional promotion under the said scheme, the service records of the eligible teacher are required to be properly assessed by the competent Committee for recommendation for provisional promotion. Such provisional promotion thereafter requires to be considered and recommended by the College Service Commission recommendation, the time-bound promotion by way of personal promotion of teacher concerned becomes permanent.”

19. In view of the aforesaid provision in clause no.11 of the time bound promotion policy notified by the Government in its resolution dated 30.12.1981 as also the law laid down by the Apex Court, there would be no difficulty in holding that the person during currency of the order of punishment shall not be eligible for grant of time bound promotion as he is not eligible for promotion.

20. The petitioner as a matter of fact cannot claim Time Bound Promotion even on the strength of an order of this Court dated 20.7.2011 in C.W.J.C. No. 8415/1997. It has to be noted that in the C.W.J.C. No. 8415/1997 the petitioner had assailed his order of punishment dated 10.1.1996, 13.6.1996 and

5.3.1998 which orders had already merged into the subsequent Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 16 order of his punishment dated 7.2.2004. The order dated 7.2.2004 was never interfered by this Court much less quashed by any court and in fact leave was only granted by an order dated 20.7.2011 to assail the said order dated 7.2.2004. The petitioner definitely cannot claim that the order dated 7.2.2004 was, therefore, quashed by this Court in any writ petition much less in CWJC No. 8415 of 1997 or CWJC No. 904 of 2005. The order of this Court dated

15.9.2006 in C.W.J.C. No. 904/2005 already quoted above also does not in any way improve the case of the petitioner, inasmuch as whatever leave was given in that case was not availed by the petitioner as would be apparent from reading of the order dated

20.7.2011 in CWJC No. 8415 of 1997, inasmuch as, in the order dated 20.7.2011 in CWJC No. 8415 of 1997 had only given liberty to the petitioner to assail his order of punishment dated 7.2.2004 but, there is nothing on record to show that the aforesaid order of punishment of the petitioner dated 7.2.2004 has ever been assailed much less set aside.

21. The position, therefore, which on examining of the facts of this case emerges that the petitioner who has already retired from service some time in the year 2006 till date continues to reel under the order of punishment. Once this aspect becomes clear that the petitioner’s service record is chequered and he had subsisting punishment to his name for the period in question in Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 17 which he has claimed the benefit of time bound promotion, he was/is not entitled for grant of Time Bound Promotion only because he had completed 25 years of service in only the year

1991. It has to be however taken note of the fact that even when the order of punishment dated 7.2.2004 was not set aside, he had moved the authority, namely, the Secretary cum Registrar of the Cooperative Society by creating an impression that in terms of the order of this Court dated 15.9.2006 his case for second time bound promotion was required to be reconsidered.

22. As noted above, this Court had not interfered with the order dated 7.2.2004, inasmuch as, his writ application in which the said order was assailed by filing of interlocutory application, as noted above in the order dated 15.9.2006 in CWJC No. 904 of 2005 was still pending before this Court, he, by creating a confusion, had sought to nullify the order dated

10.6.2005 by which his second time bound promotion was specifically rejected. This order dated 10.6.2005 still remains a valid order and, therefore, it would be also necessary to quote the order that had been passed on 20.4.2007, which reads as follows:- ^^fjV ;kfpdk l[;k 904@05 …Jh deys’oj fd’kksj flUgk cuke fcgkj ljdkj ,oa vU;‰ esa ekuuh; U;k;ky; }kjk fnukad 15-9-2006 dks ikfjr vkns’k ds vkyksd esa ekeys dh lquokbZ dh xbZA blds fy, fHkUu &fHkUu frfFk;ksa dks vkosnd Jh deys’oj fd’kksj flUgk dks lwfpr fd;k x;k rFkk fnukad 23-3-2007 dks mudh mifLFkfr esa lquokbZ dh xbZA mDr fjV ;kfpdk esa ekuuh; U;k;ky; ds Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 18 vkns’k dk lUnfHkZr va’k fuEu izdkj gS %& “In the above circumstances, this writ is, accordingly disposed off with petition observation that once the appellate order bearing Memo No. 381, dated 7.2.2004 referred to above is set aside, case of the petitioner should be favorably considered for grant of second time bound promotion in accordance with law”. fjV ;kfpdk la[;k 904@05 esa vkosnd ds }kjk f}rh; dkyc) izksUufr dh ekWx dh xbZ Fkh] ftlds vkyksd esa vkosnd ds lsok bfrgkl dks ns[krs gq, foHkkxh; vkns’k la[;k 2317] fnukad 10-6-2005 }kjk Jh flUgk dks fnukad 1-8-91 ls f}rh; dkyc) izksUufr nsus ds nkok dks vLohd‘r dj fn;k x;k gSaA Jh flUgk ds }kjk mDr vkns’k dks fujLr djus gsrq o"kZ 2005 esa gh nk;j fd;k x;k FkkA ekuuh; U;k;ky; dks mijksDr vkns’k es a vafdr gS fd vkosnd ds fo}ku vf/koDrk }kjk cryk;k x;k fd fjV ;kfpdk la[;k 1815@2005 ds }kjk vihy la[;k 6@2003 esa ikfjr foHkkxh; vkns’k la[;k 381] fnukad 7-2-04 dks jn~n dj fn;k x;k gSA mDr vkns’k }kjk vkosnd dks fuEufyf[kr n.M fn, x, Fks %& …d‰ rhu okf"kZd osru o‘f) vlap;kRed izHkko ls jksdk tk,A …[k‰ iw.kZ fuyEcu vof/k ds izFke nks o"kkZsa ds fy, ek= thou fuokZg Hk(cid:217)kk Hkqxrs; gksxk rFkk ’ks"k vof/k dk iw.kZ osru Hkqxrs; gksxkA fuyEcu vof/k dh x.kuk is a’ku vkfn ykHk ds fy, dh tk,xh …foHkkxh; ’kqf)i= Kkikad 618] fnukad 1-3-04‰A …x‰ O;kikj e.Myksa esa gqbZ gkfu ds fy, vihyd(cid:217)kkZ dh ftEesokjh fu/kkZfjr gksrh gS rks mDr jkf’k ds fy, lgdkfjrk vf/kfu;e ds vUrxZr laxr /kkjkvksa esa vyx ls dkjZokbZ dh tk,A okLrfod fLFkfr ;g gS fd fjV ;kfpdk la[;k 904@05 esa fnukad 15-9-06 dks ikfjr vkns’k es a vfYyf[kr fjV ;kfpdk la[;k 1815@1997 lgdkfjrk foHkkx ls lEc) ugha vkosnd ds }kjk Hkh fnukad 20-2-07 dks nk;j vius vkosnu es a ;g crk;k x;k fd muds }kjk n.Mkns’k la[;k 381 fnukad 7-2-2004 dks fujLr djus gsrq nk;j fjV ;kfpdk la[;k 8415@1997 vHkh ekuuh; U;k;ky; esa yfEcr gS ,oa bl ;kfpdk es a muds }kjk vihyh; izkf/kdkj ds vkns’k la[;k 381] fnukad 7-2-04 dks jn~n djus ds Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 19 fy, fy, dksbZ Interlocutory petition nk;j ugha fd;k x;k gSA mijksDr fLFkfr esa ;g Li"V gksrk gS fd foHkkxh; vkns’k la[;k 381 fnukad 7-2-04 vHkh cjdjkj gS vkSj bls ekuuh; U;k;ky; }kjk jn~n ugha fd;k x;k gSA vr,o vkosnd Jh flUgk dh izksUufr ds lEcU/k esa fuxZr foHkkxh; vkns’k la[;k 2317] fnukad 10-6-05] tks fd vihyh; izkf/kdkj ds mijksDr vkns’k fnukad 7-2-04 ds vk/kkj ij fuxZr gqvk gS] esa la’kks/ku dh vko’;drk ugha gSA lkFk gh Jh flUgk ds lsok bfrgkl ,oa buds fo:) v|ru izHkkoh n.Mkns’k ds rF;ksa ls Li"V gS fd budh fuyEcu @ c[kkZLrxh vof/k vFkkZ o"kZ 1988 ls 1996 rd d(cid:217)kZO; vof/k ds :I esa fu/kkZfjr ugha dh xbZ gSA Jh flUgk dh lsok dh mDr vof/k vLoPN gS ,oa izksUufr ;ksX; ugha ekuh tk ldrh gS vr% ,slh fLFkfr esa Jh flUgk dks fnukad 1-8-91 ls ns; f}rh; dkyc) izksUufr fuyEcu @ c[kkZLrxh vof/k dh lekfIr vFkkZr~ o"kZ 1996 rd fopkj;ksX; ugha gSa pw¡fd] fo(cid:217)k foHkkx ds ladYi la[;k 660 fo-…2‰ fnukad 8-12-99 }kjk fnukad 31-12-95 ds izHkko ls dkyc) izksUufr;ksa dh O;oLFkk dks lekIr dj fn;k x;k gS] vr,o] Jh flUgk dh fuyEcu vof/k dh lekfIr ds mijkUr o"kZ 1996 es a buds f}rh; dkyc) izksUufr ij fopkj fu;ekuqlkj vuqekU; ugh gksxkA mijksDr fLFkfr esa Jh flUgk dks fnukad 1-8-91 ls ns; f}rh; dkyc) izksUufr ds nkos dks vLohd‘r fd;k tkrk gSA**

23. The aforementioned order dated 20.4.2007, therefore, has to be read an additional order in the light of the earlier order passed on 10.6.2005 and when the petitioner has not assailed the said order dated 10.6.2005 and when the petitioner has not assailed the said order dated 10.6.2005, he cannot get the relief of second time bound promotion. As a matter of fact, even if this writ application is allowed by quashing the two impugned Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 20 orders dated 20.4.2007 (Annexure-6) and the appellate order dated

12.1.2011 (Annexure-7), the order dated 10.6.2005, which has not been even enclosed with the writ application, would still remain in operation. This aspect of the matter in fact has been fully noticed by the Secretary of the Cooperative Society in his order dated

20.4.2007.

24. The petitioner in fact appears to be a shrewd and veteran litigant and in fact after three years of the order of the Secretary cum Registrar of the Cooperative Society, he had filed an appeal against the order dated 20.4.2007 before the Principal Secretary of the Cooperative Department. Let it be noted that the petitioner in such appeal had also not assailed the earlier order dated 10.6.2005 in appeal and that order dated 10.6.2005 has become final. In fact, the appellate authority had once again dealt with the whole case of the petitioner in his order dated 12.1.2011 which for the sake of clarity and removal of confusion is again quoted herein below:- ^^;g vihyokn Jh deys’oj fd’kksj flUgk] lsokfuo‘r lgdkfjrk izlkj inkf/kdkjh }kjk fuca/kd] lgk;ksx lfefr;k¡ ds vkns’k Kkikad 2064 fnukad 20-4-07 ls fuxZr vkns’k ds fo:) nk;j fd;k x;k gSA fuca/kd] lg;ksx lfefr;k¡ ds mi;qZDr vkns’k fnukad 20-4-07 tks ekuuh; mPp U;k;ky;] iVuk }kjk jhV ;kfpdk la[;k 904@05 deys’oj fd’kksj flUgk cuke ljdkj ,oa vU; esa fnukad 15-9-06 dks ikfjr vkns’k ds vkyksd es a fuxZr gS ds }kjk Jh flUgk ds f}rh; dkyc) izksUufr ds nkos dks vLohd‘r fd;k x;k gSA 2- fuca/kd] lg;ksx lfefr;k¡ dh vksj ls rF; Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 21 fooj.kh izkIr gSA vihykFkhZ ,oa fuca/kd] lg;ksx lfefr;k¡ ds izfrfuf/k mifLFkr gq,A nksuksa i{kksa dks lquk x;kA fuca/kd lgk;ksx lfefr;k¡ ds Lrj ij vihykFkhZ ls lacaf/kr vfHkys[k ,oa vihykFkhZ }kjk vihy vkosnu esa j[ks x, i{k dh leh{kk Hkh dh xbZA 3- mi;qZDr lquokbZ ,oa vfHkys[kksa dh leh{kk ds mijkar ik;k x;k fd Jh flUgk dks vkns’kksYya?ku] xcu] fo(cid:217)krh; nqfoZfu;ksx vkfn ekeys es a o"kz 1988 esa fuyafcr djrs gq, le:i vkjksiksa ds lkis{k foHkkxh; dk;Zokgh lapkfyr dh xbZ FkhA vkyksP; dk;Zokgh esa vihykFkhZ dks nks"kh ikrs gq, foHkkxh; vkns’k la[;k 11339] fnukad 3-11- 89 }kjk mUgsa lsok ls c[kkZLr dj fn;k x;k FkkA vihykFkhZ }kjk mi;qZDr c[kkZLrxh vkns’k ds fo:) ekuuh; mPp a ;kfpdk nk;j dh xbZ ,oa mDr ;kfpdk U;k;ky;] iVuk es esa ekuuh; U;k;ky; ds vkns’kkuqlkj vihykFkhZ ds fo:) lapkfyr foHkkxh; dk;Zokgh esa tk¡p izfrosnu dks fujLr fd;k x;kA bl izdkj iquthZfor ,oa jhekUMsM foHkkxh; dk;Zokgh esa iqu% lapkyu inkf/kdkjh fu;qDr djrs gq, tk¡p dk;Z iwjk fd;k x;k ,oa ;g dk;Zokgh foHkkxh; vkns’k la[;k 304] fnukad 10-1-96 }kjk mUgsa fuyacu eqDr djrs gq, fuEukafdr vkns’k ds lkFk lekIr dh xbZA …d‰ lap;kRed izHkko ls rhu osru o‘f) ij jksd …[k‰ fuyacu vof/k gsrq ek= thou fuokZg Hk(cid:217)kk …x‰ fuyacu vof/k dh x.kuk isa’ku iz;kstukFkZ ugha fd;k tk ldsxkA Jh flUgk }kjk mDr naMkns’k ds fo:) lfpo ds le{k vihy nk;j fd;k x;kA mDr a lfpo }kjk fuca/kd ds }kjk vf/kjksfir naM dks vihy es vlekuqikfrd ikrs gq, iqufoZpkj dj vkjksiksa ds vuqikr esa naM nsus dk vkns’k fn;k x;kA mDr ds vkyksd esa fuca/kd }kjk iqu% lquokbZ djrs gq, vihykFkhZ dks fuEukafdr naM vf/kjksfir fd, x,& …d‰ fjMD’ku bu jS …[k‰ fuyacu vof/k esa ek= thou fuokZg Hk(cid:217)kk …x‰ Hkfo"; esa O;kikj eaMy esa inLFkkiu ij jksd …?k‰ xcuxzLr@{kfrxzLr jkf’k dh lgdkjh vf/kfu;e ds rgr olwyh dh dkjZokbZA vihykFkhZ }kjk mi;qZDr naMkns’k ds fo:) lfpo lgdkfjrk ds le{k iqu% vihy …vihy dsl la0 06@03‰ nk;j fd;k x;kA bl vihy esa lfpo lgdkfjrk }kjk fuca/kd lgk;ksx lfefr;k¡ ds naMkns’k esa la’kks/ku djrs Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 22 gq, fuEukafdr naM fn, x, & …d‰ vlap;kRed izHkko ls rhu osru o‘f) ij …[k‰ dqy fuyacu vof/k esa izFke nks o"kksZ ds fy, thou fuokZg Hk(cid:217)kk ,oa ’ks"k vof/k gsrq iw.kZ osru Hkqxrs; gksxkA fuyacu vof/k dh x.kuk isa’kukfn ykHkksa ds fy, dh tk ldsxhA …x‰ O;kikj eaMyksa esa gq, gkfu ds fy, vihykFkhZ dh ftEesokjh fu/kkZfjr gksrh gS rks mDr jkf’k ds fy, lgdkjh vf/kfu;e vUrxZr vyx ls dkjZokbZA 4- fuca/kd] lg;ksx lfefr;k¡ ds vihyk/khu vkns’k fnukad 20-4-07 esa Li"V fd;k x;k gS fd lfpo lgdkfjrk }kjk mi;qZDr vihy ds la0 6@03 esa ikfjr vkns’kkuqlkj fn, x, naM vHkh rd cjdjkj gSA vihykFkhZ }kjk Hkh o(cid:217)kZeku vihy vkosnu es a bl naMkns’k dks cjdjkj ekuk gSA bl lanHkZ esa vihykFkhZ dk dguk gS fd dqy fuyacu vof/k esa izFke nks o"kZ ds fy, gh thou fuokZg Hk(cid:217)kk vuqekU; fd;k x;k gS ,oa ’ks"k vof/k ds fy, iwjk osru fn;k x;k gS vr% o"kZ 1991 esa f}rh; dkyc) izksUufr ns; gSA lfpo lgdkfjrk ds }kjk vihy dsl la0 6@03 esa ikfjr vkns’kkuqlkj vihykFkhZ ds fo:) vn~;ru izHkkoh naMkns’k ls Li"V gS fd buds o"kZ 1988 ls 1996 rd iwjh fuyacu vof/k gS ftlesa izFke nks o"kksZa ds fy, thou fuokZg Hk(cid:217)kk vFkkZr v)ZoSrfud vodk’k ds lerqY; jkf’k …vk/kk osru‰ ,oa ’s"k vof/k gsrq iwjk osru vuqekU; gSA mDr vihyh; vkns’k esa fuyacu vof/k ds izFke nks o"kksZ ds i’pkr ’ks"k vof/k gsrq iwjs osru dks vuqekU; fd, tkus dk vFkZ ;g ugha gS fd iwj osru dh vof/k d(cid:217)kZO; vof/k gS ,oa fuyacu vof/k ugha gSA Li"V gS fd vihykFkhZ dh o"kZ 1988 ls 1996 rd dh vof/k fuyacu@ c[kkZLrxh dh vof/k jgh gS ,oa ;g vof/k d(cid:217)kZO; vof/k vFkok izksUufr ;ksX; vof/k ugha ekuh tk ldrh gSA mi;qZDr dkj.kksa ls Li"V gS fd vihykFkhZ f}rh; dkyc) izksUufr ds ;ksX; ugha ,oa fuca/kd] lg;ksx lfefr;k¡ ds vkns’k la[;k 2064] fnukad 20-4-07 esa la’kks/ku ds dksbZ vk/kkj ugha gSA rn~uqlkj vihykFkhZ dk ;g vihy vkosnu vLod‘r fd;k tkrk gSA lHkh lacaf/krksa dks lwfpr djsa**

25. For the completion of record, it has to be also noted that thereafter the petitioner had filed another appeal dated Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 23

11.2.2011 before the Minister of Cooperative Department which was also dismissed by an order dated 4.5.2011 as contained in Annexure-8.

26. From the order of the Secretary cum Registrar of the Cooperative Society dated 20.4.2007, it is clear that the petitioner had remained under suspension from 1988 to 1996 and had a chequered service record on the basis of which the Secretary had come to a finding that he was not eligible for grant of promotion. The Secretary also has correctly recorded that since the scheme of time bound promotion was itself scrapped and/or abolished by the State Government with effect from 31.12.1995 in which already the petitioner continued under suspension and thus his being allowed salary for the period of suspension after a period of two years of his suspension will also make no difference so far his eligibility of promotion is concerned.

27. This aspect of the matter in fact which has been fully dealt by the Principal Secretary in his order dated 12.11.2011 in the last paragraph of the order wherein it has been held that the period of 1988 to 1996 being the period of suspension/dismissal of the petitioner from service cannot be treated to be duty period making him eligible for promotion. This Court would therefore concur with the findings and the conclusions arrived in the impugned order as contained in Annexure 6, 7 & 8 which are not Patna High Court CWJC No.1280 of 2012 (3) dt.10-01-2013 24 only the correct on fact but also in law keeping in view the scope of the time bound promotion scheme of the State Government contained in Resolution of the Finance Department dated

30.12.1981.

28. In the result, this Court does not find any merit and the same is, accordingly, dismissed. (Mihir Kumar Jha, J) Rishi/-