Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3556 of 2013 ====================================================== Kaushal Kishore Kumar S/O Late Triveni Kumar Resident Of Mohalla- Rajendra Nagar, P.O- Koshi College, Khagaria, P.S- Chitragupta Nagar, District- Khagaria. Versus .... .... Petitioner 1. The State Of Bihar 2. The Principal Secretary, Departmnt Of Road Construction Government Of Bihar, Patna. 3. The Chief Engineer (Mechanical Division), Department Of Raod Construction, Government Of Bihar, Patna. 4. The Superintending Engineer, Engineer (Mechanical Circle), Department Of Road Construction, Darbhanga. 5. The Executive Engineer (Mechanical) Workshop, Mechanical Division, Department Of Road Construction, Khagaria. .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Pramod Kumar, Adv. For the Respondent/s : Mr. Ashok Kumar Verma, AC to SC 8 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 26-02-2013 Having heard counsel for the parties in respect of the following relief:- "(i) A certiorari setting aside the reasoned order passed from the level of Respondent Chief Engineer (Respondent no. 3) contained in memo no. 337 dated 6.07.2011 in the light of a direction of this Hon'ble Court passed in C.W.J.C. no. 4402/10 dated 05.10.2010, whereby and whereunder the Respondent concerned has in a very casual and illegal manner rejected the claim of the petitioner for promotion on the ground that he has subsequently been regularized from work charge establishment and as such the period of work charge cannot be taken into account for consideration in promotion, which is very erroneous, illegal and arbitrary
Legal Reasoning
Patna High Court CWJC No.3556 of 2013 (2) dt.26-02-2013 2 stand and only to eye-wash the instant order has been passed. (ii) A Mandamus commanding and directing the Respondents concerned to consider the case of this petitioner for promotion to the post of Welder Grade-I from post of Mechanical Helper in the light of recommendation in this regard from the level of Respondent No. 5 taking into account the whole service period of the petitioner as once an work charge employee gets regularized his whole service is deemed to be a regular service and more so the several similar employees have given such promotion and in view of Article 14 and 16 of the Constitution the petitioner is entitled for such promotion along with all its consequential benefits." this Court would not find any error in the impugned order passed by the Chief Engineer (Mechanical), as contained in Annexure 11, the relevant portion whereof reads as follows: ^^vkosnu ds vuqlkj oknh Jh dks S’ky fd’kksj dqekj dh izFke fu;qfDr dk;ZHkkfjr LFkkiuk esa ;kaf=d lgk;d ds in ij v/kh{k.k vfHk;ark …;ka0‰ i0 fu0 fo0 iVuk es i=kad&1157 fnukad 19-4-1979 }kjk dh xbZA rFkk bUgksaus bl in ij fnukad 20-04-1979 ds iwokZg~u esa viuk ;ksxnku fn;k gSA Jh dqekj dks v/kh{k.k vfHk;ark …;ka0‰ i0 fu0 fo0 iVuk ds dk;kZy; vkns’k la0&06 fnukad 02-01-90 }kjk dk;ZHkkfjr LFkkiuk ls fu;fer LFkkiuk eas fnukad 20-04-89 ds izHkko ls ?kksf"kr fd;k x;kA fnuakd 20-04-89 ds izHkko ls fu;fer LFkkiuk esa fd;s tkus ds dkj.k oknh us csYMj dksfV&1 ds in ij izksUufr gsrq dk;Zikyd vfHk;ark …;ka0‰ ;kaf=d izeaMy] [kxfM+;k ls vuqjks/k fd;k x;k] ftldks dk;Zikyd vfHk;ark …;ka0‰ dks iz sf"kr fd;k x;k] tks eq[; vfHk;ark Patna High Court CWJC No.3556 of 2013 (2) dt.26-02-2013 3 …;ka0‰ ds ;gkaa fopkjk/khu gSA …5-‰ dk;ZHkkfjr dfeZ;ksa ds izksUur ds laca/k esa miyC/k vfHkys[k ds voyksdu ls Li"V gksrk gS fd ,d ln‘’; ekeys esa Jh jke cgknqj ikloku gsYij …dk;ZHkkfjr LFkkiuk‰ ds duh; ;kaf=d in ij izksUufr ds fo"k; esa foRr foHkkx us Li"V fd;k gS fd dk;ZHkkfjr LFkkiuk esa izksUufr dks dksbZ in lksiku ugha gS vkSj u dksbZ fu;e ifji= gSa mi;qZDr lanHkZ esa Jh dqekj }kjk dk;ZHkkfjr LFkkiuk esa ftudh lsok ckn esa fu;fer dh xbZ] izksUufr dk nkok fu;ekuqdqy ugha gSA** As would be apparent the authority has held that in a work charge establishment there would be no concept of giving a regular promotion. Such view in fact is well recognized in the eye of law because the work charge establishment continues on year to year basis in which there would be no concept of permanent post. Promotion to be given in any cadre must have the sanctioned permanent post. The petitioner, therefore, would not be entitled for promotion on a regular basis as he has yet to become a regular employee. The work charge employee is not a regular employee. The reliance placed by the learned counsel for the petitioner on an order of promotion dated 15.10.1996 in the case of Suresh Prasad Thakur Azad and Sajalendu Kumar Deo holding the post of Mechanical Assistant would be of no avail because there is nothing in the said order to show that they were working in work charge establishment. That apart this Court must make it clear that even if it is assumed that these two petitioners were Patna High Court CWJC No.3556 of 2013 (2) dt.26-02-2013 4 earlier working in the work charge establishment and were given promotion, such promotion being illegal and in the teeth of settled law that cannot form the precedent for giving promotion to the petitioner, especially when the authority has found that the petitioner’s continuation in work charge establishment would not enable him to earn a regular promotion. The reliance placed by the learned counsel for the petitioner on an order of this Court in the case of Ram Bachan Tiwari v. the State of Bihar & ors., reported in 2011(2) PLJR 812, is equally misconceived. In that case whatever was held was with regard to grant of time bound promotion even to a work charge employee. It has to be kept in mind that the Finance Department in the resolution dated 31.12.1981 had initially laid down that the work charge employee shall not be entitled for giving promotion as time bound promotion. That decision, however, was later on modified by the State Government on the basis that since there was no prospect for giving promotion to a work charge employee, they may at least be given the higher scale on the same post so by way of time bound promotion that their grievance against stagnation in the same pay scale could be redressed. This Court however fails to appreciate as to how the order in the case of Ram Bachan Tiwari (supra) involving the issue of time bound Patna High Court CWJC No.3556 of 2013 (2) dt.26-02-2013 5 promotion would be of any help to the present case of the petitioner, concerning his regular promotion. That being so, this application is wholly misconceived and is accordingly dismissed. (Mihir Kumar Jha, J) surendra/-