Baikunth Prasad Chaudhary v. State of Bihar and others) wherein protection of seniority to the persons p
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15180 of 2012 ====================================================== 1. Binay Kumar Singh S/O Sri Din Dayal Singh R/O Vill.- Abhaypura, P.S.- Sandesh, Distt.- Bhojpur 2. Rajesh Kumar Srivastava S/O Late Gupteshwar Prasad R/O Vill. + P.O.+P.S.- Dumraon, Distt.- Buxar .... .... Petitioner/s 1. The State Of Bihar 2. Secretary, Deptt. Of Agri., Bihar, Patna 3. Director, Agri., Bihar, Patna Versus .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Vipin Kumar For the Respondent/s : Mr. Neelu Agrwal GA6 ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 2 08-02-2013 Heard learned counsel for the petitioners and learned counsel for the State. The prayer of the petitioners in this writ application reads as follows :- the commanding to consider and grant “That in this writ application the petitioners pray for issuance of an appropriate writ/order/direction resp. regular authorities promotion to the petitioners from their due dates or at least from the date the junior to the petitioners has been given i.e. 30.06.2011 with all consequential monetary benefit from the post of pest and Disease reporter to the post of Junior Plant Protection officer (class 2) in category -5 (plant protection). ” Learned counsel for the petitioners submitted that in view of the settled proposition in law that when a junior person
Legal Reasoning
Patna High Court CWJC No.15180 of 2012 (2) dt.08-02-2013 2 in the cadre is promoted, the senior in the same cadre gets a right of being considered for promotion from the date such promotion is given to the juniors. Elaborating this aspect, he has also submitted that in the case of the petitioners, they have been now ranked in the gradation list dated 26.06.2012 at serial nos. 16 and 17 whereas person at serial no. 18, namely, Awadhesh Prasad Gupta has already been promoted. He has submitted that though this gradation list is not final in the sense that it may be affected by the judgment of L.P.A. No. 511 of 2009 and Review Petition No. 112 of 2009 pending in Jharkhand High Court but the department has already accepted the said gradation list dated 26.06.2012 for other persons and as such the petitioners could not be deprived of the promotion only on the ground of pendency of some cases in the Court. He has also relied on an interim order of this Court dated 18.08.2011 passed in C.W.J.C. No. 2039 of 2009 (Baikunth Prasad Chaudhary Vs. State of Bihar and others) wherein protection of seniority to the persons posted in the State of Bihar have been given. He has submitted that on the basis of the interim order promotion of two persons who were otherwise made junior, has now been given on conditional basis.
Legal Reasoning
Learned counsel for the State, on the other hand, in absence of any counter affidavit, has submitted that such Patna High Court CWJC No.15180 of 2012 (2) dt.08-02-2013 3 provisional promotion on the basis of provisional seniority list would only cause impediment because it will be difficult for the State to recover the amount of excess salary drawn in case promotion given to the persons like the petitioners is over turned on account of revision of seniority. In the considered opinion of this Court, there is Catch-22 situation. The petitioners were allocated the cadre of State of Jharkhand and they were under obligation to join the State of Jharkhand. They did so. Thereafter they made a request for their transfer to the Bihar under the specific condition imposed in order of the Government of India that any one seeking mutual transfer after the cut off date will have to forgo his earlier seniority. As a matter of fact, the petitioners were aware of this restriction and yet had opted to go back to Bihar. There was nothing wrong, therefore, in stripping of their seniority. The difficulty, however, is that when their counterpart who had sought their mutual transfer and had gone to Jharkhand in place of the petitioners, their seniority had been restored under the judgment of Jharkhand High Court and L.P.A. and Review application filed by the State is pending over there. In that view of the matter, it may be wholly iniquitous to deprive the petitioners from getting promoted on the Patna High Court CWJC No.15180 of 2012 (2) dt.08-02-2013 4 basis of the revised seniority list dated 26.06.2012, as contained in annexure-4 to this writ application. There is no denial of the fact that junior to the petitioners in the revised gradation list being Awadhesh Prasad Gupta has already been promoted and, therefore, if there is only one vacancy or only one junior person promoted, both the petitioners cannot be promoted for the present But Mr. Awadhesh Prasad Gupta will have to give way for one of the petitioners, namely, Rajesh Kumar Shrivastava, petitioner no. 2 in this case. All these aspects, therefore, will have to be carefully gone into by the Agriculture Production Commissioner, who is the cadre controlling authority and Head of the Department. From annexure-5 series it would appear that the petitioners have already filed their representation but no final decision has been taken on them. In that view of the matter, this Court would dispose of the writ application with a direction to the petitioners to file their separate and individual representation to the Agriculture Production Commissioner, Bihar within a period of one month from today; whereafter the Agriculture Production Commissioner shall pass his reasoned order as with regard to grant of promotion to the petitioners. Such promotion given to the petitioners will Patna High Court CWJC No.15180 of 2012 (2) dt.08-02-2013 5 contain a condition that in case their seniority is reversed and they are placed at the bottom, they would not stake any claim for monetary benefit for their higher post which will be given to them on account of promotion; in other words, if it is found that the seniority of the petitioners was not fit to be restored and had been restored provisionally in the seniority list dated 26.06.2012 and the same gets reversed, the petitioners will not be only reverted back to their original post but would also be liable to refund the amount which they would withdraw on the promoted post. The Agriculture Production Commissioner may take his final decision in light of the observation/direction made above within a period of four months from the date of receipt of the representation and a copy of this order. With the aforementioned observation, this writ
Decision
application is disposed of. Amin/- (Mihir Kumar Jha, J)