The Secretary, Cabinet Coordination Department, Government of v. Bihar, Patna
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.16294 of 2012 ====================================================== Devendra Prasad Sahi, son of Late Rajo Sahi, resident of village- Meenapur, P.S. Aurai, District- Muzaffarpur .... .... Petitioner 1. The State of Bihar 2. The Secretary, Cabinet Coordination Department, Government of Versus Bihar, Patna 3. The Principal Secretary, General Administration Department, Government of Bihar, Patna 4. The Principal Secretary, Department of Finance, Govt. of Bihar, Patna 5. The Principal Secretary, Department of Water Resources, Govt. of Bihar, Patna 6. The Deputy Secretary-cum- Chief Vigilance Officer, Water Resources Department, Govt. of Bihar, Patna .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr.( Dr.) Krishna Nandan Singh, Sr. Adv. Mr. ( Dr.) Kamal Deo Sharma, Adv. Mr. Ram Krishna, Adv. Mr. Shivji Prasad, Adv. For the Respondent/s : Mr. P.K. Verma (Sr. Advocate), AAG-5 Mr. Saroj Kumar Sharma ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER ------------------ 5 10-12-2013
Legal Reasoning
Heard Sri (Dr.) Krishna Nandan Singh, learned Senior Counsel, who was assisted by Sri (Dr.) Kamaldeo Sharma, learned counsel for the petitioner and Sri P.K.Verma, learned Addl. Advocate General no.5, who has appeared on behalf of all the Respondents. The petitioner, while invoking writ jurisdiction of this Court under Article-226 of the Constitution of India, has made a limited prayer for shifting the date of grant of 1st A.C.P. from 01.08.2004 to 09.08.1999. He has prayed for quashing of 2 Patna High Court CWJC No.16294 of 2012 (5) dt.10-12-2013 2 / 7
Decision
Annexure-8 to the writ petition i.e. Government Order contained in Memo No.3045 dated 01.11.2006 to the extent of Serial no.26, whereby the petitioner has been given first A.C.P. with effect from 10.08.2004 due to the order of punishment. Short fact of the case is that the petitioner was earlier departmentally proceeded and after the departmental proceeding , he was imposed two punishment i.e. (i) Censure for the year 1992-93, which was subsequently corrected as 1993-94 and (ii) he was restrained from granting promotion for further five years. The said order was passed in the year 2001. The order of punishment was assailed by the petitioner firstly by filing a writ petition i.e. C.W.J.C.No.10920 of 2001, which was disposed of on 22nd September, 2008 with a direction to the authority concerned to re- consider the same. In compliance of the aforesaid order, the appeal of the petitioner was considered and having found no substance the same was rejected. Even thereafter, the petitioner approached this Court by filing C.W.J.C. No.16235 of 2011, wherein he had prayed for quashing of order of the appellate authority, by which his appeal against punishment order was rejected. This Court dismissed the writ petition vide order dated 14.11.2011 passed in C.W.J.C.No.16235 of 2011 affirming the order of punishment. Learned counsel for the petitioner, while claiming for 3 Patna High Court CWJC No.16294 of 2012 (5) dt.10-12-2013 3 / 7 shifting the date of grant of 1st A.C.P., has firstly argued that A.C.P. is not considered as promotion and, as such, the order of punishment was not enough for debarring the petitioner to get 1st A.C.P. from the date, on which A.C.P. was made available to other with effect from the year 1999. Learned counsel for the petitioner has claimed that the persons, who were junior to the petitioner vide Annexure-8 to the writ petition, have been given the benefit of 1st A.C.P. with effect from the year 1999 and, as such, it was a fit case for grant of 1st A.C.P. to the petitioner with effect from 1999 and not from 10.08.2004 . In support of his argument, learned counsel for the petitioner has heavily relied on a Single Bench Judgment of this Court reported in 2011 (3) PLJR 474; Shashi Shekhar Ambasta & Anr Vs. The State of Bihar & Ors. He submits that this point was considered by a Bench of this Court and it was held that A.C.P. may not be equated as grant of promotion and, as such, he has claimed for grant of 1st A.C.P. to the petitioner with effect from the year 1999. Sri K.N.Singh, learned Senior Counsel appearing on behalf of the petitioner has further argued that in any event, as per Bihar State Employees Conditions of Service Conditions (“Assured Career Progression Scheme”) Rules-2003 ( hereinafter referred to as the “Rules-2003”), the petitioner cannot be denied 4 Patna High Court CWJC No.16294 of 2012 (5) dt.10-12-2013 4 / 7 the benefit of A.C.P. from the date, on which juniors were granted the same relief. Sri P.K.Verma, learned A.A.G. no.5 has vehemently opposed the prayer of the petitioner. He submits that Rule 4 (5) of Rules 2003 makes it clear that requirements and mode of sanction of Financial Progression under the Scheme shall be the same as per requirement in granting regular promotion. He has specifically referred to Rule 4(5) of Rules 2003. While distinguishing the case of Shashi Shekhar Ambasta (supra), he submits that while hearing of the said writ petition, the rule in question was not brought to the notice of the Court. He further submits that if the rule prescribes grant of A.C.P. in a particular manner, then that rule has to be followed. He further submits that even in a case of grant of time bound promotion, the matter was examined by the Hon’ble Apex Court in a case reported in (2010) 8 SCC 701; Bhakra Beas Management Board Vs. Krishan Kumar VIJ & Anr. He has specifically referred to paragraph-25 of the said Judgment. He submits that in the said case, it was considered that even time bound promotion may not be claimed as a matter of right and if against an employee there is departmental proceeding, he may be debarred from getting time bound promotion. He has also relied on a Judgment reported in 2010 (3) PLJR 220; Daya Shankar Singh 5 Patna High Court CWJC No.16294 of 2012 (5) dt.10-12-2013 5 / 7 Vs. State of Bihar & Ors. He submits that in the said case, earlier time bound promotion granted to an employee was re-considered and it was subsequently withdrawn since the petitioner of the said case had not passed required examination for such promotion. In Daya Shankar Singh’s case the Court had approved cancellation of time bound promotion on the ground of lack of requisites. He further submits that in the present case punishment order was passed in the year 2001 and he was debarred from getting promotion for five years and, as such, considering the punishment imposed against the petitioner in the departmental proceeding, which had attained its finality due to the reason that it was finally approved by this Court in C.W.J.C.No.16235 of 2011, the authority concerned has committed no error, while granting 1st A.C.P. to the petitioner with effect from 10.08.2004 i.e. after expiry in the light of punishment order. Besides hearing the parties I have also perused the materials available on record. The question regarding punishment, which was imposed against the petitioner, is not issue in the present case. Moreover, same has already been approved by this Court. So far as grant of A.C.P. with effect from 10.08.2004 is concerned, the Court is of the opinion that since the petitioner had not fulfilled the conditions as prescribed in Rule 4 (5) of the 6 Patna High Court CWJC No.16294 of 2012 (5) dt.10-12-2013 6 / 7 Rules 2003,he was not entitled to get 1st A.C.P. prior to the date, during which he was debarred from any promotion. It would be better to quote Rule 4(5) of Rules 2003 , which is as follows: 4. Eligibility and Condition: The eligibility under this Scheme shall be Regulated by the following conditions:- --------- --------- (5) The prescribed requirements and mode of sanction of financial progression under the scheme shall be the same which are prescribed under the Recruitment/ Service Rules for regular promotion against vacancies. If the Rules/Resolutions prescribe passing of the departmental examination or any qualification for promotion that shall also be a essential condition for sanction of benefit under the scheme, provided that after completion of 12/24 years of service, the financial progression shall become due and for this, there shall be no bar of period prescribed for regular promotion. Explanation: (i) Notwithstanding any provision for relaxation in the period of service for regular promotion to certain categories of employees contained in any Rules, no relaxation of conditions in the period of 12/24 to eligibility years shall be granted for the benefits of financial progression under the Scheme. (ii) If the first financial progression, granted to a Govt. Servant , is delayed beyond 12 years of regular service due to disciplinary proceedings etc. or due to the government servant being found unfit for promotion, then the second financial progression under the Scheme shall be granted after 12 years for the first financial the date of progression.” On perusal of the aforesaid Rule, it is evident that same principle, which is applied for granting promotion, is to be applied for grant of benefit under the Scheme of A.C.P. So far Single Bench Judgment of this Court i.e. Shashi Shekher Ambasta’s case 7 Patna High Court CWJC No.16294 of 2012 (5) dt.10-12-2013 7 / 7 ( supra) is concerned, fact remains that the rule in question was not brought to the notice of this Court, while deciding the issue. Once the Statute suggests to do a thing in a particular manner as settled same is to be done in not any other way. Obviously, the punishment order, which was imposed against the petitioner, was enough for disentitling the petitioner to get the benefit of A.C.P. during the period, while he was debarred from getting any promotion in view of statutory Rule i.e. Rules 2003. Accordingly, the petitioner may not get any benefit from Shashi Shekhar Ambasta’s case ( supra). Accordingly, the Court is of the opinion that while granting A.C.P. to the petitioner with effect from 2004, the authority has not committed any error. I do not find any ground for passing positive order in favour of the petitioner. The writ petition stands dismissed. NKS/- (Rakesh Kumar, J)