Ram Vinay Sharma v. The State Of Bihar

Patna High Court CWJC No.14084 of 2012 (4) dt.21-01-2013 2 ensuring concerned respondents competent to launch and to conclude an appropriate enquiry against the erring respondents for deliberating harassing the petitioner and causing financial hardship to the petitioner for officiating allowance and the same being contrary to the provisions of Rule 103 of the Bihar Service Code and to pay the cost of litigation to the petitioner for coercing the petitioner to move before the Hon’ble High Court for ensuring officiating allowances." 20 Learned counsel for the petitioner inviting the attention towards paragraph no. 11 of the writ application reading as follows:- "That relevant to mention here that on the strength of completion of Kalawadhi prescribed for promotion, petitioner becomes eligible with effect from 11.05.1994 but the vacancy is available from 01.08.1998 against which the petitioner is entitled to promotion on the post of Deputy Director but instead ensuring the promotion to the petitioner along with others, the authorities have granted promotion to certain persons similarly situated with retrospective effect, the order passed to this effect vide letter contained in Memo No. 1665 dated 14.08.2008, letter contained in Memo NO. 2259 dated 12.04.2008, and letter No. 985-987 dated 10.06.2009, which are being brought on record for easy perusal by the Hon’ble Court to appreciate that the promotion are being Patna High Court CWJC No.14084 of 2012 (4) dt.21-01-2013 3 given on pick and choose basis on ad-hoc basis for the reason best known to the authorities and pleading discrimination, the petitioner is not being given promotion and ignoring his seniority juniors have been given promotion namely, Sri Akhilesh Prasad and Sri Jai Prakash Singh vide letter No. 719 and 720 dated 28.05.2009 and at least from the date of vacancy available for the post of Deputy Director, Geology from 01.08.1998." has submitted that since the two juniors to the petitioner namely, Sri Akhilesh Prasad and Sri Jai Prakash Singh were given promotion w.e.f.01.08.1998 by a notification dated

28.05.2009, the petitioner cannot be deprived the benefit of such promotion only on the ground that in the State of Bihar a decision has been taken for now merging the cadre of officers in the department of Mines and Geology. In this regard he has also submitted that the petitioner was earlier also allocated the State of Jharkhand but his final allocation has been made by the Central Government in the State of Bihar and therefore, whatever determined as with regard to the promotion of the petitioner were referable to a date prior to the date the two states came into existence Patna High Court CWJC No.14084 of 2012 (4) dt.21-01-2013 4 in terms of Bihar Reorganization Act-2000 which came into force w.e.f 15.11.2000. Counsel for the State has filed his counter affidavit controverted the statements made in paragraph no. 11 of the writ application in the following terms:- promotion "That with regard to Para 11 of the writ petition, it is stated that the Mines and Geology Department Government of Bihar has Sri Akhilesh Prasad and Jai Prakash Singh on the post of Deputy Director. The mines Department, State of Jharkhand has given the promotion of both persons on the post of Deputy Director, Geology vide notification No. 719 and 720/M, dated 28.05.2009." but has also explained that whenever final allocation of officers by the Central Government would be made in terms of Bihar Reorganization Act 2000 which came into force on 15.11.2000 the position of cadre which could emerge in the State of Bihar would be only determining factor for the officers who have been allocated the State of Bihar. In that context, he is of the view that since the right of promotion of the petitioner in the State of Bihar would emerge only on the date on which his any junior has been given such Patna High Court CWJC No.14084 of 2012 (4) dt.21-01-2013 5 promotion and the two persons namely, Sri Akhilesh Prasad and Sri Jai Prakash Singh has been allocated the State of Jharkhand and in fact their order of promotion dated 28.05.2009 has also notified by the State of Jharkhand, the same in no way could confer any right on the petitioner to claim his promotion on the basis of the earlier gradation list issued by the Department of Mines and Geology prior to

15.11.2000. In this regard he has also referred to paragraph no. 9 of the counter affidavit which reads as follows:- "That with regard to para 10 of the writ petition, it requires no comment. However, it is stated that promotion of the petitioner on the post of Deputy Director implementation of Bihar Mines and Geology Service Rules, 2008 and in accordance with joint seniority list." considered In the considered opinion of this Court, the contention of learned counsel for the State must be accepted for more than one reason. The petitioner was not given promotion till 15.11.2000 nor were his two alleged juniors namely Sri Akhilesh Prasad and Sri Jai Prakash Singh in the erstwhile State of Bihar. The Bihar Reorganization Act which came into Patna High Court CWJC No.14084 of 2012 (4) dt.21-01-2013 6 force w.e.f 15.11.2000 had notified initially the provisional allocation followed by final allocation by the Central Government being the final deciding authority in terms of Section- 72 of the Bihar Reorganization Act. Thus when the services of the petitioner has finally been allocated in the State of Bihar, he has to seek his promotion only in the cadre of officers of the State of Bihar. A chance of promotion that the petitioner may have prior to 15.11.2000 is not a part of his service condition. He has at best a right to be considered in the existing State of Bihar and no person junior to the petitioner has been given for such promotion in the present State of Bihar. This Court therefore cannot direct for his out of turn promotion promotion notification issued by the State of Jharkhand as with regard to Sri Akhilesh Prasad and Sri Jai Prakash Singh. These two officials having been finally allocated the State of Jharkhand notified by the Government of Jharkhand can in no way vest any right in the petitioner to claim his promotion in the State of Bihar, inasmuch as, these persons are no longer in Patna High Court CWJC No.14084 of 2012 (4) dt.21-01-2013 7 the cadre of officers of Bihar. There is no denial that vacancies exist on higher post in the State of Bihar but the only impediment as per the counter affidavit for considering the case of promotion of the petitioner seems to be preparation of Joint Seniority List in terms of Bihar Mines and Geology Service Rules,

2008. Paragraph no. 9 of the counter affidavit in fact also gives clear impression that the case of the petitioner is fit to be considered implementation of the service Rules-2008 and in fact in accordance with joint seniority list. Keeping in view that at least persons of the same cadre prior to 2000 in the State of Jharkhand has already been given promotion and the petitioner is nearing the age of retirement being 59 years of age, it would be necessary for the State of Bihar to initiate the process of promotion of the petitioner at an early date. In this regard, it has to be kept in mind that the petitioner has been working on the higher post on current charge basis and if regular promotion is given, he Patna High Court CWJC No.14084 of 2012 (4) dt.21-01-2013 8 may be entitled for regular pay scale with all other benefits. In that view of the matter, this Court would direct the Principal Secretary of the department of Mines and Geology to ensure that the case of the petitioner for his promotion is considered and necessary order in this regard is passed within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observations and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J)