Ram Darshan Choudhary vs The State of Bihar and Others

Mihir Kr. Jha, J.—Heard counsel for the parties. In both these writ applications the two petitioners have prayed for an identical relief which is quoted hereinbelow:--

That this is an application for issuance of an appropriate writ/order/direction to the respondents for considering the name of the petitioner for inclusion in the seniority list of Graduate Panchayat Secretaries being prepared for promotion on the post of Block Panchayat Officer under 25% quota as per the provisions made under Rule (ii) of Rule 6 of the Bihar Panchayat Service Rules, 2010 (hereinafter referred to a "2010 Rules") under which the process was initially initiated by the letter issued vide memo No. 3212 dated 22.4.2010 but the same could not be completed and later on again vide letter No. 4575 dated 30.7.2012, the process has been initiated but without fixing the cut-off date for counting the 50 years of age in absence of that the District Authorities are not sending the name of the petitioner for inclusion in the seniority list of Graduate Panchayat Secretaries and be further give direction in absence of cut-off date fixed under 2010 Rules for counting the maximum age 50 years, the letter of Department of Personnel and Administrative Reforms (now General Administration Department) on this point issued vide Memo No. 212 dated 23.1.2006. Paragraph 3 of the said letter be given effect to and as on the date of vacancy of the post, the cut-off date for counting maximum age be fixed for consideration of name of Graduate Panchayat Secretaries to be promoted on the post of Block Panchayat Officer.

Mr. Jetendra Kumar Rai, learned counsel appearing on behalf of the petitioner in both the cases has submitted that the petitioners have a right to be considered for promotion on the post of Block Gram Panchayati Officer in terms of Rule 7 of Bihar Panchayat Sewa Niyamawali, 2010 hereinafter referred to as 2010 Rules and as such the decision of their controlling authority namely, the Collector of Rohtas at Sasaram and District Panchayati Raj Officer, Rohtas at Sasaram of not including the name of the petitioners for their being included in the State level seniority list is per se illegal.

In this regard, he has also explained that after the said rule was notified on 12.3.2010, the State Government in Panchayat Raj Department by letter dated 22.4.2010 had started the process of collecting details of the working Panchayat Secretary having qualification of graduation with 10 years of experience on the post of Panchayat Sachiv and if such an exercise was abandoned in the midway, the petitioners could not have been deprived of such consideration only on account of their completion of 50 years of age as on 30.7.2012, specially when the petitioners also had a right of being considered for such promotion under the earlier executive instruction dated 7.3.1983 envisaging promotion of 50 per cent of Panchayat Sevak on the post of Gram Panchayat Supervisor.

He in his submission has also emphasized on the aspect that there has to be a cut-off date for such consideration and in absence thereof the Government decision dated 23.1.2006 as with regard to recruitment in the Government service, on the recommendation of Bihar Public Service Commission, has to be followed.

Mrs. Vinita Singh, learned A.C. to A.A.G.I. on the other hand has submitted that the petitioner cannot claim for being included in the combined gradation list on the post of Graduate Panchayat Secretaries because as on 30.7.2012 they had already crossed the age of 50 years whereas one of the requirement under 2010 Rules for promotion on the post of Block Panchayat Raj Officer is that the Panchayat Secretary must not have completed 50 years of age as on the date of promotion. She has further submitted that the earlier Government Letter dated 22.4.2010 was not with regard to the Panchayat Secretaries of Rohtas district so as to enable the petitioner to claim consideration for promotion by treating the date of issuance of the letter dated 22.4.2010 as the cut-off date. In this regard, she has submitted that as a matter of fact by letter dated 22.4.2010 the Government had not even envisaged the preparation of joint gradation list for giving such promotion.

She has also gone to explain that the Government decision dated 23.1.2006 as with regard to fixing the cut-off date cannot be made applicable in the case of promotion on Block Panchayat Officer because the same is only with regard to fixation of age for direct recruitment in the different service of the State Government. She has summed up her submissions that in any event the right of consideration of promotion of the petitioner could be crystallized if the Government had already earmarked the posts in the respective categories of direct recruitment quota and promotion quota and had also taken steps for considering for filling up such posts of Block Panchayat Officer but in reality there is nothing on record brought by the petitioners which could show that the Government had already started such process of consideration for grant of promotion to the working Graduate Panchayat Secretary, inasmuch as, the joint seniority list of the eligible Panchayat Secretary having qualification of graduation with 10 years of experience on the post of. Panchayat Secretary was yet to be completed.

In the considered opinion of this Court, the petitioners have somewhat misconception that their right of promotion under the earlier executive instruction dated 2.3.1983 was being sought to be nullified by issuance of the order dated 30.7.2012. First of all it has to be noted that in the Government resolution dated 2.3.1983 there was no concept of the post of Block Gram Panchayat Officer. The said executive instruction in fact was in relation to appointment on the post of Panchayat Supervisor, wherein, all that was envisaged that 50 per cent of the post of Panchayat Supervisor shall be filled up by direct recruitment and remaining 50 per cent shall be filled up by promotion by Panchayat Sevak out of whom 25 per cent post of Panchayat Supervisor shall be allocated to such Panchayat Sevak who had the qualification of graduation while rest 25 per cent of the post of Supervisor in the promotion quota of the 50 per cent shall be filled up from amongst the Matriculate/Intermediate Panchayat Sewak. Thus, the Government resolution dated 2.3.1983 as contained in Annexure-2 would itself go to show that at that point of time neither there was post of Panchayat Secretary nor there was the post of Block Gram Panchayat Officer and in absence thereof it would be difficult for this Court to hold that 1983 Government resolution by way of executive instruction was actually in relation to giving promotion on the post of Block Gram Panchayat Officer.

It has to be also kept in mind that the concept of Panchayat Sachiv itself came into existence under Gram Panchayat Act, 2005 and merely because the Panchayat Sevak were also assigned the work of the post of Panchayat Sachiv that by itself would not make them to also claim enforcement of 1983 Resolution for the purposes of promotional avenue on the post of Block Gram Panchayat Officer. There is nothing on record to substantiate that the post of Panchayat Supervisor as envisaged in the Government Resolution dated 2.3.1983 is the same post as that of Block Gram Panchayat Officer which came into existence only by virtue of Rules framed under proviso to Rule 309 of the Constitution of India vide notification No. 1939 dated 12.3.2010. There is also nothing on record to show that the case of the petitioners was ever considered for promotion on the post of Panchayat Supervisor under the old executive instruction dated 2.3.1983 so as to claim continuity with regard to their vested right of promotion on the post of Bihar Panchayat Raj Officer in terms of 2010 Rules.

Once this aspect becomes clear that neither the post of Panchayat Supervisor is comparable to the post of Block Gram Panchayat Officer nor the post of Panchayat Secretary is the same as that of Panchayat Sewak, it would be difficult to envisage any right of the petitioner for preparation of a joint gradation list of the graduate Panchayat Secretaries having 10 years of experience for the purposes of promotion on the post of Block Gram Panchayat Officer.

The things in fact becomes more clear from the Government notification No. 1939 dated 12.3.2010, notifying the rules under proviso 309 of the Constitution of India, wherein, a new service under the name and style of Bihar Panchayat Seva for the first time was notified. Under Bihar Panchayat Seva Rules, 2010, the Bihar Panchayat Service has been constituted with 528 post of Block Panchayat Raj Officer, with Its 46 post of first promotional post of Lecturer in the District Panchayat Raj Training Institute/Mukhiya Sarpanch Training Institute, 38 post for second promotional avenue on the post of District Panchayat Raj Officer as well as 23 post of Principal of District Panchayat Raj Training Institute/Mukhiya, Sarpanch Training Institute.

The constitution of Bihar Panchayat Service therefore, being itself the concept of rule framed under proviso to Rule 309 of the Constitution of India notified on 12.3.2010, the petitioner cannot be heard to say that merely because they came to be appointed as Panchayat Sevak on 7.12.1996 they also became entitled for promotion on the date the said 2010 Rules were notified. In this regard, it would be also relevant to refer to Rule 3(2) of 2010 Rules, wherein, it was clarified that the persons working earlier on the post of Block Panchayat Officer, Lecturer, District Panchayat Raj Officer and Principal would be deemed to have been absorbed in the District Panchayat Service. Obviously, the Government after notifying 2010 Rules had to undertake an exercise of the vacant post of Block Panchayat Officer so as to apportion them into 75 per cent for direct recruitment and 25 per cent for promotion. Nothing of this sort has been actually claimed to be done by the State Government inasmuch as such exercise was started for the first time only by the letter of the State Government dated 30.7.2012 which reads as follows:--

The petitioners who had already completed 50 years of age as on 30.7.2012 in view of their date of birth being 9.7.1962, Ram Darshan Choudhary (petitioner in C.W.J.C. No. 281 of 2013) and 5.3.1962 of Radhe Shyam Singh (petitioner in C.W.J.C. No. 319 of 2013), both of them could not have claimed for inclusion of their names in State level gradation list for considering the promotion of 25 per cent post of Block Gram Panchayat Officer. The prescription of age under 2010 Rules being itself a qualification, the petitioners without challenging the rationale thereof cannot claim their promotion by ignoring the qualification of age of 50 years.

In any event all that the Government letter dated 30.7.2012 envisages the preparation of a joint gradation list at the State level for post of Panchayat Secretary who are not only graduate but have completed continuous 10 years of service on the post of Panchayat Secretary. Such letter seeking relevant information including the date of birth, date of appointment, educational qualification, reservation, category and date of confirmation with remarks by 30.8.2012 cannot be indirectly assailed by filing this writ application on 7.1.2013, inasmuch as, if the petitioners were aggrieved by the said order they had to assail the same in between 30.7.2012 to 30.8.2012.

This Court is also not aware as to the present stage of preparation of joint gradation list of the eligible Panchayat Secretary as envisaged in the Government letter dated 30.7.2012 and therefore, any direction to include the name of the petitioners in fact would not only be contrary to the provisions of 2010 Rules but would also amount to opening of flood gate by ignoring the mandatory qualification of age of 50 years. In this regard, it would be relevant to also take into account the provision of Rules 3, 4, 5, 6 and 7 of 2010 Rules reading as follows:--

From the reading of the aforementioned 20 Rules, it would be clear that the post of Block Panchayat Raj Officer is the basic feeder post from which the promotion has to be given on the higher post and the qualification for both direct recruitment and promotion on the post of Block Gram Panchayat Officer is graduation. For the direct recruitment the age of the candidate has been fixed separately being the maximum age as prescribed for the Government service i.e. 37 years for general candidates and 40 and 42 years for backward and S.C./S.T. categories whereas the same has been fixed as 50 years for promotion in any category. The whole concept of fixation of age as with regard to Block Gram Panchayat Officer being the feeder post has an object to achieve, keeping in view that there are three higher promotional post including that of Bihar Panchayat Raj Officer, which has to be filled up by 100 per cent promotion.

The submission that there must be a cut-off date for preparation of the gradation list and in absence thereof the Government order dated 30.7.2012 becomes arbitrary has to be also only noted for its being rejected. The first exercise for entire state having been stated by the government letter dated 30.7.2012 by way of preparation of gradation list at the State level cases of consideration of eligible Panchayat Secretary cannot be faulted only because of absence of any year-wise allocation of post for such promotion inasmuch as the principle of quota and rota amongst the direct recruits and the promotees can also not be invoked in this case, inasmuch as, there is nothing on record to show that process for filling up 75 per cent post of direct recruitment quota on the post of Block Gram Panchayat Officer has already commenced so as to create handicap to the eligible Panchayat Secretary for promotion on the post of Block Gram Panchayat Officer.

As with regard to the reliance placed on an earlier order dated 22.4.2010 issued by the Deputy Secretary of the State Government seeking information from the Collector of few districts is also wholly misplaced, inasmuch as, the same did not at all relate to either preparation of joint gradation list at the State level on the post of eligible Panchayat Sachiv which is the subject matter of the letter dated 30.7.2012 nor the same was in any way related to the district of Rohtas in which the petitioners are working on the post of Panchayat Secretary. Moreover, when the said letter dated 22.4.2010 was issued in continuation with the earlier departmental letters dated 23.7.2009 and 20.10.2009, it has to be necessarily held that the exercise undertaken under the said letter was not for giving effect to Rules 6 and 7 of 2010 Rules which came to be notified only on 12.3.2010 and came into force only after its publication in the Official Gazette. This Court however has not been even made aware as to whether the said notification dated 12.3.2010 was published in the official gazette on or before 22.4.2010, when the service records of Panchayat Secretary of certain district were summoned or whether the exercise undertaken on 22.4.2010 was only by way of making some ad hoc arrangement on the post of Block Gram Panchayat Officer. Admittedly, in pursuance of the Government letter dated 22.4.2010 nothing more was done and at least the names of the petitioners were not sent and in fact could not have been sent to the Directorate of the Panchayat Raj in absence of its non-applicability for the district of Rohtas. The petitioners cannot derive any right only on the basis of compilation of service records of Panchayat Secretary in few districts other than the district of posting of the petitioner i.e. Rohtas sought to be made by the Government letter dated 22.4.2010. In any event no promotion on a single post of Block Gram Panchayat Office in anywhere in the State of Bihar was made in furtherance to the letter dated 22.4.2010.

The reliance placed by learned counsel for the petitioner on Government letter dated 23.1.2006 as with regard to fixation of cut-off date for promotion is wholly misconceived. The said Government circular was issued with regard to fixation of age for direct recruitment in the different services as would be evident from its content which is quoted hereinbelow:--

From the reading of the aforementioned circular, it would be clear that not only it was confined to fixation of age in respect of direct recruitment but it has also envisaged situation of annual requisitioning of vacancy to the Commission for its being filled up. From the reading of the aforementioned circular it is also clear that all the Departmental heads were directed to fix the maximum age of direct recruitment for its being acted upon by Bihar Public Service Commission on the basis of last examination held as is clear from its elucidation in paragraph No. 4. This Court fails to understand as to how the said circular confined to direct recruitment can be made applicable in the cases of promotion.

The aforesaid discussion would however remain incomplete if the actual concept of promotion in service jurisprudence is not explained by this Court in its true perspective. In service jurisprudence there is a concept of both regular promotion and time bound promotion. While in time bound promotion whenever it is given it has to date back on completion of the period as specified but the regular promotion can only be given after completion of all the requirements from a prospective date. Mere existence of a vacancy therefore would never entitle a person to claim promotion from the date such vacancy/vacancies arise. As a matter of fact the Government employees are also not, in absence of grant of regular promotion, loser in any manner, inasmuch as, even if such regular promotion is not given he or she becomes entitled for grant of time bound promotion which now has been modified by way of initiation and implementation of ACP (Accelerated Career Progression) scheme.

From year 1981 to 1995 the employees in the State of Bihar were entitled for getting two time bound promotion one at the end of 10 years of service and the other at the end of 25 years of service if they were not given regular promotion and now under the ACP Scheme and modified ACP scheme such grant of time bound promotion in higher pay scale by itself takes care of the financial loss which one may suffer due to non-grant of regular promotion. Thus, even if the petitioners have become disqualified for their regular promotion on the post of Block Gram Panchayat Officer in the pay scale of Rs. 5000-8000/-, they are still enjoying the same or higher pay scale in view of their having already completed more than 16 years of service and also earned A.C.P. in 2011.

In this regard it has to be also taken note of that both Radhe Shyam Singh (petitioner in C.W.J.C. No. 319 of 2013) and Ram Darshan Choudhary (petitioner in C.W.J.C. No. 281 of 2013) have been already granted ACP by order dated 23.7.2011 in the pay scale of Rs. 5000-8000/- w.e.f. 7.12.2008 and 12.12.2006 respectively and as on date are in the pay scale of Rs. 9300-34800/- with G.P. (Grade Pay) 4200. This is what at best the petitioner could have got even if they could have been promoted on the post of Block Panchayat Raj Officer, inasmuch as, the pay scale of the post of Block Panchayat Raj Officer is Rs. 5000-8000/- which the petitioners have already been given much earlier as indicated above. Thus in reality also the petitioners do not suffer in any manner on account of their names being not included in the joint gradation list for being considered for promotion on the post of Block Gram Panchayat Officer.

This Court therefore does not find any error in the Government decision of including the names of only such graduate Panchayat Secretary having 10 years of experience who on the date of issuance of the order dated 30.7.2012 were below 50 years of age. In any event the petitioners have not assailed the age clause of the aforementioned letter dated 30.7.2012 and therefore, they cannot now indirectly assail the same in any manner so as to become stumbling block for other eligible Panchayat Secretaries qualified under Rules 6 and 7 of 2010 Rules from earning their promotion. Any direction of this Court for including the persons alike the petitioners in the gradation list for their promotion on the post of Block Gram Panchayat Officer therefore, would not only be against the provisions made in 2010 Rules but would also open flood gate where large number of Panchayat Secretaries alike the petitioners who have already completed 50 years of age as on date 2010 Rules were notified i.e. 12.3.2010 would also stake their claim for both inclusion of their names in the gradation list as also grant of promotion on the post of Block Gram Panchayat Officer.

It is well settled that laying qualification for promotion etc., is within the domain of the executive. The qualification which an aspirant must possess to be eligible for being considered for promotion therefore cannot be made the subject matter of judicial review as was held by the Apex Court in the case of All India State Bank Officers'' Federation and Others Vs. Union of India (UOI) and Others, . It is in fact for the Government to prescribe proper qualification for a particular post keeping in view the job requirement, nature of work to be handled and other relevant factors. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of P.S.N. Rao Vs. State of Orissa and Others, , and in the case of Andhra Bank Vs. B. Satyanarayana and Others, .

In the light of the aforementioned settled position in law backed by the aforementioned Supreme Court judgments, it cannot be held that fixation of age of 50 years for promotion is bad and that each and every Panchayat Secretary irrespective of age must be considered for promotion. A question would also arise as with regard to the date of qualification for grant of promotion and in this respect law again has been settled by the Apex Court in the case of Dr. Rajinder Singh Vs. The State of Punjab and Others, , wherein, it has been held that the candidate for promotion must possess the requisite qualification on the date of recommendation by the Departmental Promotion Committee.

Admittedly, in the present case after the gradation list of the Panchayat Secretary at the State level would be prepared, the Departmental Promotion Committee, in terms of Rule 12 of 2010 Rules reading as follows:--

will have to consider the cases of eligible persons. The petitioners who have already attained the age of 50 years even on the date of initiation of process of preparation of State level seniority list therefore cannot claim any right of being considered for promotion when they have already become disqualified on account of attaining 50 years of age even before 30.7.2012. It has to be borne in mind that though there is always open to an eligible person to claim a right for consideration of his promotion but mere chance of promotion is not a condition of service and the same cannot be enforced by filing the writ petition under Article 226 of the constitution of India. The Apex court in this regard has repeatedly held that though the right of being considered for promotion is a condition of service but a mere chance of promotion is not condition of service. Reference in this connection may be usefully made to the judgment of the apex court in the case of State of Maharashtra and another Vs. Chandrakant Anant Kulkarni and others, , and in the case of Union of India and others Vs. S.L. Dutta and another, .

Thus in the light of the discussions made above, this Court would not find any merit in either of these two writ petitions. They are, accordingly, dismissed.