Umesh Chandra Jha vs The State of Bihar

Navin Sinha, J.—Heard learned Counsel for the petitioner and the learned Counsel for the State. The petitioner originally came to this Court with a prayer for a direction for issuance of notification granting him promotion to the next higher post of Superintending Engineer for which necessary recommendations had been made by the Departmental Promotion Committee and approved by the Cabinet. During pendency of the writ application the respondents have issued notification No. 6716 dated 5.9.2002 granting him ad hoc promotion to the post of Superintending Engineer from the date that he assumes charge in the scale of Executive Engineer held by him. The petitioner superannuated on 31.12.2002.

Learned Counsel for the petitioner submits that his case was recommended by the Departmental Promotion Committee on 23.12.2000 to the Bihar Public Service Commission. It has also been approved by the Cabinet and Vigilance. There was thus no justification for the respondents to grant him ad hoc promotion in the pay scale of Executive Engineer and that he was entitled to promotion on the post of Superintending Engineer from the date of recommendation of the Bihar Public Service Commission i.e. 23.12.2000.

Learned counsel for the State relied upon the statements made in the counter affidavit to urge that the petitioner is entitled to such promotion from due date and not from the date claimed by him and therefore the order of promotion dated 5.9.2002 requires no interference.

To this Court, the counter affidavit of the respondents is nothing but bureaucratic rigmarole. The name of the petitioner was recommended by the Departmental Promotion Committee. It is nobody''s case that vacancies for promotion were not available. Thereafter the matter awaits vigilance clearance. The vigilance clearance is delayed by the act of the respondents. Then it is urged that by time the vigilance clearance has come the recommendation of the Departmental Promotion Committee has lapsed. This is an act again attributable to the respondents. Be that as it may, the position stands today that there is vigilance clearance and there is cabinet approval to the Departmental Promotion Committee''s recommendation.

The order of promotion dated 5.9.2002 is difficult to appreciate. If there was no vacancy in the rank of Superintending Engineer the question of granting ad hoc promotion to the petitioner did not arise. If there was vacancy, he was entitled to a substantive promotion. To grant him ad hoc promotion on the post of Superintending Engineer while holding the substantive rank of Executive Engineer, on the face of it is mala fide and an attempt to. browbeat the petitioner with Government prowess.

In the facts and circumstances of the case, this Court holds that the petitioner shall be deemed to be promoted on the post of Superintending Engineer with effect from 23.12.2000 as all statutory necessary clearances have been given by the State Government. He shall therefore be entitled to full salary of the post of Superintending Engineer less what may have been paid to him till the date of his retirement i.e. 31.12.2002. The respondents shall also be obliged to refix his pension and other retrial benefits accordingly and make the same available to him.

Let the arrears of salary and the differences of pension and retiral benefits be paid to the petitioner within a maximum period of six months from the date of receipt and/or presentation of a copy of this order.

It shall remain open to the respondents to hold enquiry, fix responsibility for the reasons into the delay of promotion of the petitioner in due time, the manner in which the impugned order dated 5.9.2002 came to be passed and proceed appropriately in the disciplinary jurisdiction against the delinquent concerned. The writ application stands allowed.