Ramchandra Prasad vs The State of Bihar and Others

Honourable Mr. Justice S.N. Hussain

Heard Learned Counsel for the petitioner and Learned Counsel for the State of Bihar and its authorities (respondent nos. 1-3). No one appears for the remaining respondents. Respondent nos. 4 to 8 are authorities of Sitamarhi Zila Parishad, out of whom respondent no. 4 the Chief Executive Officer-cum-Secretary of Sitamarhi Zila Parishad appeared and filed a counter affidavit on 12.10.1998 through his Learned Counsel Sri Abhimanyu Sharma. Hence, vide order dated 02.11.1998, notices were directed to be issued on the remaining respondent nos. 5 to 8. It transpires that after the year 1999 respondent nos. 4 to 8 remained unrepresented and hence when this case was taken up again by this Court on 27.04.2012, fresh notices were directed to be sent to respondent nos. 4 to 8 by both the processes and vide order dated 10.07.2012, notices were held to have been validly served. However, when the case was again listed on 14.09.2012 it was adjourned to enable Learned Counsel for the said respondents to appear.

In spite of the aforesaid steps taken by the Court and in spite of the fact that the name of Mr. Abhimanyu Sharma, Advocate along with other lawyers are appearing on the daily cause list, no one has appeared on behalf of respondent nos. 4 to 8. In the said circumstances, this Court is constrained to presume that the said authorities of the Sitamarhi Zila Parishad (respondent nos. 4 to 8) have nothing to say about the statements of facts made in the writ petition.

Learned Counsel for the State of Bihar and its authorities (respondent nos. 1 to 3) submits that this matter is directly concerned with Sitamarhi Zila Parishad. Hence, the State of Bihar and its authorities have no role to play in the instant case and in that view of the matter no counter affidavit has been filed by the said respondent nos. 1 to 3.

This writ petition has been filed by the petitioner for the following reliefs:-

(a) To consider the case of the petitioner for grant of promotion to the post of Assistant Engineer lying vacant in the Zila Parishad, Sitamarhi.

(b) To make necessary modifications in the orders (Annexure-1) of the respondent granting first time bound promotion to the petitioner.

(c) To ensure payment of up-to-date salary, including House Rent, vehicle allowance etc. to the petitioner in pursuance of the aforesaid time bound promotion, for which the petitioner is legally entitled.

(d) To grant second time bound promotion with effect from 15.09.1989 for which the petitioner is entitled.

Learned Counsel for the petitioner submits that after due process of law the petitioner was appointed in the year 1964 on the post of Junior Engineer in the Sitamarhi Zila Parishad (District Board) on the pay scale of Rs. 100-250/- per month and he joined the said post on 15.09.1964 and since then he continuously worked on the said post for a long time without any promotion, due to which he filed CWJC No. 698 of 1978 but it was withdrawn on 19.05.1980 in the light of statement of respondents that the claim of the petitioner will be considered on merit. But the case of petitioner''s promotion was not considered and much later only memo no. 297 dated 29.07.1991 (Annexure-1) was issued by the Deputy Development Officer-cum-Chief Executive Officer-cum-Secretary of the Zila Parishad, as per 4th Pay Revision, revising his previous pay scale to the scale of Rs. 785-1210/- per month with effect from 01.04.1981.

Learned Counsel for the petitioner states that although the petitioner was entitled to first time bound promotion after 15 years of service, but it was given to him by the authorities vide memo no. 296 dated 29.07.1991 (Annexure-1) with effect from 01.04.1981 to the scale of Rs. 850 to Rs. 1360/-. The second time bound promotion was due after 25 years of petitioner''s joining service, i.e. 15.09.1989 and the post of Assistant Engineer to which the petitioner was to be promoted was also vacant at least from 31.01.1997 (Annexure-2) due to superannuation of the then Assistant Engineer Radhey Shyam Pandey, but in spite of that the petitioner was not given second time bound promotion to that post although another Junior Engineer, namely Ramjee Sharma who was much junior to the petitioner was promoted to post of the Assistant Engineer as far back as on 20.03.1992 (Annexure-3).

Learned Counsel for the petitioner avers that in the said circumstances, petitioner filed several representations, including the representations dated 16.01.1997 and 28.01.1997 (Annexure-5 series) before the authorities concerned, but when no heed was paid to the said representations, the petitioner was constrained to file the instant writ petition on 31.08.1997 after serving copies thereof upon Learned Counsel for the respondents.

It is also argued by Learned Counsel for the petitioner that during the pendency of this writ petition, the authorities issued letter dated 30.01.1998 promoting one Mahesh Kumar Choudhary to the post of Assistant Engineer although he was junior to the petitioner and hence petitioner was constrained to file I.A. No. 1757 of 1998 for adding the relief challenging the said letter dated 03.01.1998. The said interlocutory application was allowed, the relief sought was added and the said Mahesh Pd. Choudhary was added as respondent no. 5 to the writ petition to whom notices were sent repeatedly, but he never appeared nor contested the claim of the petitioner.

However, a counter affidavit was filed by the Deputy Development Commissioner-cum-Chief Executive Officer-cum-Secretary Zila Parishad, Sitamarhi (respondent no. 4) in which the claims of the petitioner had been denied and it was stated that the petitioner was earlier suspended, but his suspension was revoked with effect from 01.09.1988 and after conclusion of the departmental proceeding the petitioner was exonerated from the charges leveled against him and it was ordered to make full payment of salary of the petitioner from 23.07.1988 to 31.8.1988 during period he was kept under suspension.

From the aforesaid statement made in the aforesaid counter affidavit of respondent no. 4, it does not appear that the claim of the petitioner has been denied in any manner whatsoever as it cannot be legally denied that after petitioner''s appointment on 15.09.1964 he was entitled to first time bound promotion on 15.09.1979, but no such promotion was given to him within the said period and much later first time bound promotion was given to the petitioner only vide letter dated 29.07.1991 with effect from 01.04.1981. Furthermore, the revision of pay in accordance with the recommendations of the 4th Pay Revision cannot be legally termed as promotion and the said point has already been well settled by various judicial pronouncements.

In the said circumstances, the petitioner was definitely entitled to the second time bound promotion on completion of 25 years of service on 15.09.1989, but the same was denied by the authorities concerned which in my view is against the specific provision of law and the petitioner has been deprived of the benefits of salary to which he was legally entitled.

The petitioner has also annexed order of respondent no. 4 dated 09.01.2004 as Annexure-15 attached to the petitioner''s reply to the respondents'' counter affidavit, according to which second time bound promotion was subsequently given to the petitioner during the pendency of this writ petition, but no amount was paid to the petitioner and the said order was made subject to the approval of the Director of Panchayati Raj, which has never happened. This order appears to be not convincing because if the petitioner was entitled to second time bound promotion from the aforesaid date, there was no occasion for making it conditional and the authorities should have given all the benefits of the second time bound promotion to the petitioner immediately after the said order. In the said circumstances, this writ petition is allowed and the respondents-authorities especially the Chief Executive officer-cum-Secretary of Sitamarhi Zila Parishad is directed to grant second time bound promotion to the petitioner with effect from 15.09.1989 within two months from the date of receipt/production of a copy of this order. The said authority is also directed to pay to the petitioner within two months thereafter all the emoluments of salary and other benefits to the petitioner from 15.09.1989 till the date of petitioner''s superannuation on 31.03.1998 deducting the amount which has already been paid to the petitioner.