Ram Padarath Singh v. Chief Executive Officer Having Office at Budh Marg, Patna

Patna High Court CWJC No.20766 of 2012 (7) dt.16-01-2013 In the aforesaid background, the counter affidavit filed on behalf of the respondents is taken on record. The petitioner has filed the present writ petition questioning the correctness and legality of the order dated

23.09.2012 (Annexure-1) passed by respondent Commissioner of Patna Municipal Commissioner, whereby the claim of promotion made by the petitioner from the post of Routine Clerk to the post of Assistant has been rejected. Learned counsel for the petitioner submits that the petitioner was in the service of respondent- Corporation and he was working on the post of Routine Clerk. It is the case of the petitioner that the Establishment Committee of the Municipal Corporation passed a resolution on 09.08.1993 (Annexure-6) for granting promotion to the petitioner and nine other routine clerks on the post of Assistants. It is pleaded that despite the aforesaid resolution the petitioner was not granted promotion and in the meantime he has superannuated from service on 31.01.2012. A grievance is being raised on behalf of the petitioner that the persons junior to him working on the post of routine clerk have already been granted promotion on the higher post, yet similar benefit has been denied to the petitioner on one pretext or the other. The petitioner further claims to have filed several representations for redressal of his grievances, but that did not bring any fruit to the petitioner. As a result thereof, he was compelled to approach this Court under Article 226 of the Constitution by filing CWJC No. 13323 of 2008. Admittedly, aforesaid writ petition filed on behalf of the petitioner and one more employee was finally disposed of by a Bench of this Court by order dated 12.04.2010 (Annexure-7). The operative part of the Patna High Court CWJC No.20766 of 2012 (7) dt.16-01-2013 order dated 12.04.2010 is reproduced herein below:- “Let the petitioners file a fresh representation along with a copy of this order requesting the Municipal Corporation to consider their case for promotion in the light of the decision of the Establishment Committee dated 9.8.1993, Annexure-2, which should be considered and disposed of by passing a reasoned order in accordance with law, as early as possible, in any case within one month from the date of receipt/ production of a copy of this order.” Learned counsel appearing on behalf of the petitioner submits that despite aforesaid specific order passed by this Court, the claim of the petitioner has been mechanically rejected without application of mind and without considering the facts that the persons junior to the petitioner have already been granted similar benefits. Learned counsel appearing on behalf of respondents by referring to paragraph no. 4 and 5 of the counter- affidavit submits that while the petitioner was in service he was granted the benefits of Assured Career Progression (ACP), therefore, he is not entitled to get promotion on the higher post. She has further pointed out that there was no roster clearance for the post of Assistants of Patna Municipal Corporation, therefore, the claim of the petitioner could not have been considered. After having heard the parties and on consideration of the materials available on record, this Court is of the opinion that the matter requires reconsideration by the respondent no.2. Apparently, the impugned order dated 23.09.2012 (Annexure-1) cannot be said to be a reasoned and speaking order. The issue raised on behalf of the petitioner has not been answered by the respondent Commissioner impugned order dated Patna High Court CWJC No.20766 of 2012 (7) dt.16-01-2013

23.09.2012 (Annexure-1). If the persons junior to the petitioner have been granted promotion to the higher posts, then the petitioner was also entitled to be considered for grant of promotion on such higher post, but that does not appear to have been considered at all by the respondent Commissioner. Plea raised on behalf of the respondents that since the petitioner has been granted the benefits of ACP, he could not have been granted promotion to the higher post, is apparently misconceived and not tenable in the eye of law. The benefits under ACP scheme are anti stagnation measure. If any employee is allowed to remain on a particular post for a long period, then under the ACP Rules he is entitled to the benefits of higher pay scale, but by virtue of benefits under the ACP Rules, employee does not get the higher post. The grant of promotion on the higher post and grant of benefits under ACP Rules cannot be intermingled for denying the legitimate right of the petitioner. Admittedly, the petitioner has now, superannuated from service. If he succeeds, he will get the monetary benefits only. For the reasons recorded above, the impugned order dated 23.09.2012 (Annexure-1) passed by the respondent Commissioner is hereby set aside and the matter is remitted back to the respondent no.2 for passing a fresh order in accordance with law and as per the observations made above. The respondent no.2 shall be obliged to apply his independent mind to the facts of the case and shall be required to answer the plea raised on behalf of the petitioner with respect to his claim of promotion. To facilitate expeditious disposal of the matter by the respondent no.2, the petitioner shall file a detailed representation along with all supporting documents before respondent no. 2 within a period Patna High Court CWJC No.20766 of 2012 (7) dt.16-01-2013 of one month from today. Respondent no.2 shall consider his claim by looking into all the materials and shall decide his claim by a speaking and reasoned order. If, on consideration, the petitioner is found entitled for his promotion and consequential reliefs, then respondent no.2 shall further be obliged to pass a consequential order for granting such reliefs, which is found admissible to him. Entire exercise must be completed by respondent no.2 within a period of six months from the date of filing the representation by the petitioner, as indicated above. It is clarified that if the respondent no.2 does not carry out the order of this Court in its letters and spirit and if the matter is brought to the notice of this Court once again, then the Court shall be compelled to take serious view against the guilty personnel including the respondents. In the result, the application stands finally disposed of with the observation and direction made above. The parties are left to bear their own costs. (Birendra Prasad Verma, J) BTiwary/-