Arjun Prasad Sharma vs State of Jharkhand

Pramath Patnaik, J.

In the instant writ application, the petitioner has inter alia prayed for following reliefs:

(a).For direction upon the respondents to give effect to the recommendation of ‘Departmental Promotion Committee’ for promotion of the

petitioner w.e.f 01.08.2004 instead of 18.05.2005;

(b).For direction upon the respondents to fix the inter-se- seniority of petitioner as Assistant Electrical Engineer (General Cadre) in accordance with

the provision made under Bihar State Electricity Board (General) Cadre, Rules 1976 w.e.f 01.08.2004.

The facts, as delineated in the writ application, in brief, is that the petitioner was initially appointed as Junior Electrical Engineer by the erstwhile

Bihar State Electricity Board, Patna and he joined the post on 18.07.1975. After bifurcation of the State, the petitioner continued to work in the

territorial jurisdiction of Jharkhand State Electricity Board. Even after bifurcation of State and constitution of Jharkhand State Electricity Board,

promotion in the cadre of Junior Electrical Engineer/Asst. Electrical Engineer/Elect. Executive Engineers and above were used to be given as per the

recommendation of Departmental Promotion Committee, Bihar State Electricity Board in pursuance to order dated 02.03.2001 issued by the Ministry

of Power, Government of India wherein it has been stated that pending formal division of staff between the two Board, the existing staff will continue

to work on as it where is basis. It has further been averred that on the basis of above arrangement, DPC of the Bihar State Electricity Board was held

on 15th October, 2004 for consideration of promotion of Junior Electrical Engineer (General Cadre) to the rank of Assistant Electrical Engineer,

wherein the petitioner was found fit for promotion and was recommended for promotion w.e.f 1. 08.2004 vice Shri Umeshwar Prasad Singh, Asst.

Electrical Engineer (retired). On the basis of recommendation of Departmental Promotion Committee, the notification of promotion of junior Electrical

Engineers working in the territorial jurisdiction of Bihar State Electricity Board was issued on 16.12.2004 with retrospective effect, as per the

recommendation of Departmental Promotion Committee. But, the authorities of Jharkhand State Electricity Board sat tight over the matter and

delayed the issuance of notification of promotion and lastly vide notification dated 18.05.2005 issued promotion order with immediate effect. Being

aggrieved by the notional date of promotion, the petitioner has approached this Court.

Heard Mr. Ashok Kumar Jha, learned counsel for the petitioner and Mr. Mukesh Kumar Sinha, learned counsel being assisted by Mr. Dheeraj

Kumar, learned counsel for the respondents-JSEB.

Learned counsel for the petitioner submitted that notification dated 18.05.2005 issued by Jharkhand State Electricity Board has been issued ignoring

the recommendation made vide notification dated 15.10.2004 wherein promotion was granted with retrospective effect i.e. w.e.f. 01.08.2004. Learned

counsel for the petitioner submitted with vehemence that one Shri Chhote Lal Din, who is junior to petitioner has been promoted w.e.f 01.08.2004 vide

notification dated 16.12.2004 by the BSEB, as per recommendation made by DPC. Similarly Shambhu Kumar Chakraborty, who was junior to

petitioner and was subsequently transferred in the JSEB due to cadre division was promoted as Asst. Electrical Engineer w.e.f 01.09.2004 but the

legitimate claim of the petitioner has been denied in a most arbitrary and discriminatory manner and this adversely affects the inter se seniority of the

petitioner as Assistant Electrical Engineer.

Learned counsel for the respondents-Board submitted that in the ‘DPC’ held on 15.10.2004, the Departmental Promotion Committee has

stated that those who are posted in the territorial jurisdiction of JSEB, their matter of promotion would be considered by JSEB after considering ACR,

allegations etc. Accordingly, the Board after considering the vacancy under JSEB, Ranchi promoted the petitioner w.e.f 18.05.2005. Learned counsel

for the JSEB further submitted that since on the alleged date i.e. on 01.08.2004, there was no vacancy under the earmarked quota, the claim of the

petitioner could not be considered. So far Sri Shambhu Kumar Chakarvorty, who was posted under BSEB was considered fit for promotion in the light

of DPC meeting held on 15.10.2004 vide notification dated 16.12.2004 of BSEB but in due course of cadre division, the services of Sri Chakarvorty

was placed under JSEB, Ranchi from BSEB, Patna; thereby, the services of the junior was placed to JSEB after promotion under cadre division. So

far other three persons, who are stated to be junior to the petitioner are concerned, they are now superannuated.

From the pleadings available on record, there is no iota of doubt that the recommendation made by ‘DPC’ held on 15.10.2004 has a binding

effect upon the respondents-Board, while issuing order of promotion by the JSEB vide notification dated 18.05.2005 ought to have taken care of

recommendation made by the DPC held on 15.10.2004. Furthermore, the DPC found him fit after fulfilling all criteria and so far vacancy position is

concerned as agitated by respondent-JSEB, it has specifically been averred in the proceeding of DPC dated 15.10.2004 that he has been promoted on

account of retirement of Sri U. Pd. Singh. From the minutes of proceeding of Departmental Promotion Committee held on 15.10.2004, it does appear

that the DPC found the petitioner fit for promotion w.e.f 01.08.2004 and a formal order was to be passed by the JSEB to this effect. In the minutes of

proceeding, the DPC was not oblivious of these facts and the same has been discussed at paragraph of the proceeding, which is reproduced herein

below:

2… … it was observed by the Committee that division of employees in respect of Bihar State Electricity Board and Jharkhand State Electricity Board

has not been finalized and as such, the Committee considered the cases of promotion in respect of Junior Elec. Engineer (General Cadre) even posted

under the jurisdiction of Jharkhand State Electricity board as they still belong to continue in the cadre of undivided Board. On this analogy, promotion in

different cadres have been used to be given in post also. In the order dated 02.03.2001, issued by the Ministry of Power, Govt. of India, it has been

indicated that pending formal division of Staff between the two Board, the existing staff will continue to work on as is where is basis and transfer and

posting will be frozen with the consent of the two Government.â€​

In the case at hand, it further appears that the persons junior to the petitioner has been promoted for the one reason or the other; hence on the

ground of discrimination also, the petitioner has succeeded in persuading this Court to get relief.

For the reasons aforesaid, the respondents-JSEB is directed to pass appropriate order with regard to effective date of promotion or from the date

his junior has been promoted and accordingly fix his inter se seniority after affording opportunity to the affected person, if any.

With the aforesaid observations and directions, the writ petition stands allowed.