Jitendra Kumar Singh v. 1. State of Jharkhand 2. The Secretary, Road Construction Department, Govt. of Jharkhand, having
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 4880 of 2024 -- Jitendra Kumar Singh .......Petitioner. Versus 1. State of Jharkhand 2. The Secretary, Road Construction Department, Govt. of Jharkhand, having its office, Project Building, Dhurwa, P.O. & P.S.-Dhurwa, District-Ranchi (Jharkhand) 3. The Engineer-in-Chief cum Additional Commissioner cum Special Secretary, Road Construction Department, Govt. of Jharkhand, having its office, Project Building, Dhurwa, P.O. & P.S.-Dhurwa, District-Ranchi (Jharkhand) ......Respondents CORAM : HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner : Mr. Saurabh Shekhar, Advocate For the Respondents : Mr. Anil Kumar Singh, A.C to G.P.-I -- -- 02/06.09.2024 The instant writ petition has been filed by the petitioner for the following reliefs: (i) For issuance of appropriate writ(s), order(s), direction(s), specifically a writ in the nature of certiorari for quashing and setting-aside of the order as contained in Memo No. 02. -03/2021- 4856(1) Ranchi, dated 17.10.2023 (Annexure-19), issued by the respondent no.2, whereby, the claim of the petitioner for grant of promotion and financial benefit, w.e.f. 10.07.2006 on the post of Assistant Engineer, on the basis of In-charge posting, has been denied and rejected; (ii) For issuance of appropriate writ(s), order(s), direction(s), specifically a writ in the nature of mandamus, for shifting the date of regular promotion of the petitioner to the post of Assistant Engineer, from 22.03.2023 to 10.07.2006, and further to grant all consequential benefits, including financial and monetary benefits, and to that limited extent, alter the order of promotion, issued vide notification dated 22.03.2023 (Annexure-7), 1 in order to make it effective, from the date of In-charge posting, i.e. 10.07.2006, so far as the case of the petitioner is concerned; 2.
Facts
The brief facts of the case as per the pleadings lie in a narrow compass. The petitioner was appointed in the Road Construction Department, as Junior Engineer, on 30.03.1999. He has been discharging his duties to the satisfaction of his superiors, without any complaint from any corner and there is no departmental proceeding or criminal case pending against him. The petitioner completed his AMIE degree on 22.03.2000. The petitioner completed five years of service and was also having requisite qualifications, and hence, he was posted as Assistant Engineer on In-charge capacity, in pursuance to office order, as contained in Memo No.126, dated 10.07.2006. Thereafter, has regularly rendered his services as Assistant Engineer in In-charge capacity. The State of Jharkhand through its Department issued one office order, dated 30.10.2007; whereby, final seniority list of the Junior Engineers eligible to be promoted to the post of Assistant Engineer against 10% AMIE degree quota was published. The final seniority list dated 30.10.2007, containing name of the petitioner was thereafter confirmed by the Department in pursuance to order dated 26.11.2019. Thereafter, the petitioner preferred a writ application being W.P.(S) No.998 of 2021, for grant of regular promotion to the petitioner against AMIE degree 10% quota with retrospective effect. During the pendency of the writ application, the State of Jharkhand had come up with a resolution dated 07.03.2022, whereby, decision was taken that the earlier promotional rules, i.e. containing the provisions of promotion to the post of Assistant Engineer against 10% AMIE degree quota will become effective. 2 The petitioner was thereafter granted regular promotion to the post of Assistant Engineer, during the pendency of that writ petition, in pursuance to the Govt. notification dated 22.03.2023, but the same was made effective from the date of joining. As such, it was stated that no benefit of past services will be granted. As such, the petitioner filed Interlocutory Application being I.A. No.3942 of 2023, in the writ application being W.P.(S) No.998 of 2021. In the I.A., it was prayed that benefit of regular promotion should be given w.e.f. the date of In-charge posting - Assistant Engineer, i.e. 10.07.2006. Therefore, it was prayed that the date of regular promotion on the post of Assistant Engineer should be shifted from 22.03.2023 to 10.07.2006. The matter was heard by this Court and the case was remanded for re- consideration, vide order dated 10.08.2023, on the point of shifting of date of regular promotion from 22.03.2023 to 10.07.2006 - Assistant Engineer. The matter was directed to be considered in view of similar matter already decided by the Court. The case of the Petitioner, however, was rejected, vide impugned order dated 17.10.2023. The ground of rejection was simplicitor that since the similar matters referred to are of different department, therefore, they cannot be referred to in the present matter. 3.
Legal Reasoning
Similar issue came up for consideration before this Court in the matter of matter of Sushil Kumar Vs. State of Jharkhand & Ors, W.P.(S) No. 994 of 2014, and this Court vide order dated 24.07.2019, has granted the benefit of regular promotion from the date of In-charge posting. There, the facts were same and similar as in the present case. The petitioner in that case had got the benefit of ACP, and was kept on In-charge posting for fairly long period of time. The Court, having considered all these aspects, granted him the benefit of regular promotion on the post of Assistant Engineer, w.e.f. the date of In-charge posting. In passing the order, the Court had relied upon the judgment passed in the case of Kedarnath Vs. State of Jharkhand & Ors., W.P.(S) No.1100 of 2007, which was confirmed in L.P.A. No.471 of 2012. In the case of Sushil Kumar (supra), the State Govt. went in appeal before the Division Bench, in L.P.A. No.781 of 2019, which was dismissed. Even the S.L.P. (Civil) No.45108 of 2023 preferred by the State Govt. before the Hon’ble Supreme Court, was dismissed. Thus, the verdict of the Single Judge was confirmed, that the benefit of regular promotion has to be granted from the date of In-charge posting Pursuant to these decisions of the Court, the Cabinet of the Government of Jharkhand has approved and implemented to grant the benefit of regular promotion, w.e.f. the date of In- charge posting, in its decision dated 01.08.2024. The case of the petitioner is similarly placed. 6 8. In yet another case, similar issue arose in the case of Baneshwar Rabidas Vs. State of Jharkhand & Ors., W.P.(S) No.5196 of 2018, in which, order was passed on 07.08.2019. In the said case it was also contested by the State that the petitioner, therein, was not entitled to have been promoted w.e.f. 10.07.2006, back date, since there was a clause prohibiting to claim any benefit of regular promotion from that order. This plea was rejected by the Court, directing to grant past benefits, even if such clause was mentioned in the order of In- charge posting. The matter went in appeal in L.P.A. No.735 of 2019 and the same has been set at rest by the Division Bench. Though, the State Govt. preferred appeal before the Hon’ble Supreme Court, however, the appeal was dismissed as withdrawn. Thereafter, the decision of the Division Bench has been implemented by the State. Several other matters were also decided by the Writ Court on the same line, being W.P.(S) No.6799 of 2018, in the case of David Kujur vs. State of Jharkhand & Ors. and Chanda Hembram Vs. State of Jharkhand & Ors, in WP(S) No.6618 of 2013; and the order passed by the writ Court attained finality uptill Hon’ble Apex Court, and the State has followed the directions in both the matters, and has implemented the directions of the Division Bench in the respective LPAs, vide notification as contained in Memo No.1801, dated 29.03.2023. 9. In view of the above facts and circumstances especially when similar matter have already been decided in several cases, by this Court, which have attained finality and not interfered up to Hon’ble Apex Court, coupled with the fact that the State Govt. has admitted this position, in granting the relief to the litigants, arising out of those cases, the case of the present petitioner must also needs to be considered and accordingly, it is held that the petitioner should get all the benefit of the regular 7 post of Assistant Engineer, w.e.f. the date of In-charge posting, i.e. 10.07.2006. 10. The objection raised by the respondents that the judgments of the Court, are in respect of other departments is not sound, particularly for the reason that the judgments have been rendered in the cases of other Engineering Works department of the government of Jharkhand, which are governed by the same set of rules, as that of the case of the Department of Road Construction, government of Jharkhand, related to the present petitioner. 11. Having regard to the aforesaid discussions, the impugned order dated 17.10.2023, is hereby, quashed and set aside. Further, the promotion order notification dated 22.03.2023 so far as it relates to this petitioner is concerned; is modified to the extent that the regular promotion of the petitioner from the post of Junior Engineer to the post of Assistant Engineer be shifted from 22.03.2023 to 10.07.2006 and the Respondents are directed to extend all consequential benefits, including seniority to this petitioner. Let necessary order be issued in this regard within a period of eight weeks from the date of receipt/production of copy of this order. 12. As a result, the instant writ application is allowed in the manner indicated hereinabove. Jk (Deepak Roshan, J.) 8
Arguments
Mr. Saurav Shekhar learned counsel for the petitioner submits that the impugned order dated 17.10.2023 is not maintainable particularly in view of the fact that the Road Construction Department is one of the works departments and is governed by the same set of rules and guidelines, as that of other departments. Same recruitment and promotional rules are followed. All the works departments have some service conditions. Therefore, no distinction can be made carving out the ground that the matter has been settled by the Court on a point in one department, the Road Construction Department, is not 3 dutifully under obligation to follow the same. This ground is Non- Est in the eyes of law. Moreover, the decision has come in the case of Water Resources Department and Drinking Water and Sanitation Department, which are governed by the same rules as that of the present Road Construction Department. He further submits that the petitioner was granted the benefit of ACP/MACP. This additionally certifies that the petitioner was eligible and meritorious in all respect to be promoted to the post of Assistant Engineer. The name of the petitioner was cleared, in pursuance to the office order dated 23.06.2011. He further contended that it has been clearly laid down in the Govt. Notification dated 01.09.2009 that the benefit of MACP will be granted to an employee, only when he is eligible for promotion, in accordance with the provisions of promotional rules. The petitioner was eligible to be promoted as Assistant Engineer, as would appear from the Govt. circular/ letter dated 18.12.2006, whereby, it has been made clear that only those employees who are eligible for promotion, can be placed on Ad- hoc basis, and therefore, the petitioner would also fall in the same category. He further relied upon a judgment passed in the case of Sushil Kumar Vs. State of Jharkhand & Ors, W.P.(S) No. 994 of 2014, whereby, this Court vide order dated 24.07.2019, has granted the benefit of regular promotion from the date of In- charge posting which is upheld up till Hon’ble Apex court and it attains finality. In the said case, the facts is same and similar as in the present case; as such the petitioner is entitled for the same relief. 4. Learned counsel for the respondent though opposes the prayer but could not dispute the applicability of aforesaid case in the instant case. 4 5. Having heard learned counsel for the parties and after going through the documents available on record it appears that the petitioner has been working on In-charge capacity, on the post of Assistant Engineer, w.e.f. 10.07.2006; however, his case for regular promotion was considered belatedly on 22.03.2023 and the service of the petitioner on In-charge capacity, as Assistant Engineer for more than 15 years, cannot be considered as to be a stop gap arrangement, and the petitioner has rendered his services regularly until the date of his regular promotion, on 22.03.2023; further, he had rendered his services on In-charge capacity - Assistant Engineer exclusively, and during that period, he was not holding it as additional charge. 6. It further transpires from the pleadings of this case that the petitioner was totally eligible for promotion on 10.07.2006 and there was also vacancy available and the respondents were in need of work on the regular post of Assistant Engineer, despite that the petitioner was forced to work on In-charge capacity, instead of having him granted the regular promotion, as Assistant Engineer. It further appears from the fact of the case that the petitioner was fit to be considered to be promoted as Assistant Engineer w.e.f. 10.07.2006 since he had already been tested, as far as fitness and eligibility is concerned, by the Screening Committee, for the purpose of grant of higher scale, in the first MACP, since his name was cleared and qualified for grant of first MACP in the higher scale of Assistant Engineer; accordingly, it can be safely assumed that he was totally fit to be promoted as Assistant Engineer on regular basis, inasmuch as, it has been clearly laid down in the Govt. Notification dated 01.09.2009 that the benefit of MACP will be granted to an employee, only when he is eligible for promotion, in accordance with the provisions of promotional rules. 5 7. What further attracts attention is that all the cases which were decided by this Court was under the umbrella of same Rules of PWD and Service Code that are applicable in the present case and binds the Department of Road Construction, Govt. of Jharkhand, like other Works Department of the State,