Vaidyanath Prasad Sinha vs State of Bihar and Others

N.L. Untwalia and B.N. Jha, JJ.—The facts which are necessary to be stated for the disposal of this writ application are these. The petitioner was appointed in April, 1955 by the the Dist. Magistrate and Collector of Gaya (respondent no. 2) as a lower division assistant on a temporary basis and was subsequently confirmed in that post. The petitioner was temporarily promoted to the post of an upper division clerk by order of the Collector of Gaya dated the 14th February, 1960. He was confirmed to the post of the lower division clerk in November, 1960 and was eventually confirmed as an upper division clerk with effect from the 16th October, 1962. The petitioner''s place was 11th in the list of those who were confirmed to that post with effect from the 16th October, 1962, while that of respondent 3 was the 13th. Respondents 4 and 5 were also confirmed subsequently with effect from the 16th October, 1962, and respondent 6 was confirmed in the post of an upper division clerk with effect from the 28th August, 1963. According to the gradation list of the upper division clerks in the district of Gaya, the petitioner has got the 75th place. Respondents 3, 5 and 6 have got, respectively, 76th, 78th and 79th places. Respondent 4, being junior in rank to the petitioner, has not got his gradation fixed as yet. According to the petitioner''s case, he, being the senior most upper division assistant in the Land Reforms section, officiated as Head Assistant from the 1st July, 1968 to 18th August, 1968 and got officiating allowance for the same. On the 30th August, 1968, however, respondent 2 passed the impugned order, a copy of which is Annexure "6" to the writ application, promoting respondents 3 to 6 to work as selection grade assistants in the scale of Rs. 200-10-300. It may be stated here that the scale of pay of upper division clerks is Rs. 150-5-200. It is the definite case of the petitioner in the 12th paragraph of the writ application that "the claim of the petitioner to promotion to the next higher rank of selection grade assistant was bypassed and not considered at all, though, admittedly, he was senior to respondent nos. 3 to 6, and was fully qualified and competent to be so promoted." To the knowledge of the petitioner, there was no adverse remark against him in his service records and, even if there was any, it was never communicated to him. He, therefore, makes a grievance that he has been denied equal opportunity in the matter relating to his employment, inasmuch as at the time of promotion to the next higher grade, his case has not been considered and discrimination has been made against him. The prayer of the petitioner, therefore, is to quash the impugned order of the District Magistrate of Gaya contained in Annexure "6" and to issue a writ of mandamus to him to consider the case of the petitioner for promotion on merits and in accordance with law. Notice of the application was directed to be issued to all the respondents and was served on them. Learned Government Advocate has appeared to show cause on behalf of respondent 1, the State of Bihar and respondent 2, the District Magistrate and Collector of Gaya. Mr. G.S. Prasad has appeared on behalf of respondent 5, and none has appeared on behalf of respondents 3, 4 and 6, A counter-affidavit has been put in on behalf of the State by an assistant in the establishment section of the Gaya Collectorate. It is not disputed in this counter-affidavit that the petitioner ranked senior to respondents 3 to 6 as an upper division clerk. It is, however, asserted in Paragraph 11 of the counter-affidavit that "the remarks earned by the applicant in the P.C.R. (Permanent Character Roll) are self-sufficient to disclose that his remarks for 1964-65, 1965-66 and 1966-67 were damaging and so his claim that he was quite fit for promotion to the next higher cadre of Selection Grade is unfounded, because, according to the existing circular of Government, seniority is not the only criteria for promotion of Government servants from lower post to higher post." The deponent then asserts in the 14th paragraph of the counter-affidavit, in reply to the statement of the petitioner made in Paragraph 12 of the writ application, that "the case of the applicant-petitioner was duly considered along with others but he was not found fit for promotion, because of the remarks available in the P.C.R. and also because of the fact that a departmental proceeding was pending against him."

The fifth respondent in his counter-affidavit has made a grievance of his own instead of challenging the fact asserted by the petitioner. After stating some facts, his case is that he ought to have ranked senior to all, including the petitioner, and the gradation list prepared was wrong. He has filed a representation against that which is still pending. We may only observe that we are not concerned with his grievances in regard to the gradation list in this case. He may pursue his matter before the proper authorities as it may be open to him under the law. Nothing substantial is stated in his counter-affidavit to merit any discussion here in so far as it relates to the rule issued on the petitioner''s writ application.

An affidavit-in-reply has been put in by the petitioner. He has given two annexures to this affidavit-in-reply which are Annexures "9" and "9/1". Annexure "9" is a circular letter dated the 11th August, 1962, issued by Shri S.J. Majumdar, the then Chief Secretary to the Government of Bihar, directing all departments of Government to communicate adverse remarks made against the Government servants to the persons concerned. The same thing is reiterated by Shri S.N. Singh, the then Additional Chief Secretary to the Govt. of Bihar, in his letter dated the 24th May, 1966 (Annexure "9/1"). It is further stated in this letter that nobody should be made to suffer because of uncommunicated adverse remarks. The important thing, however, to be pointed out from the affidavit-in-reply filed by the petitioner is that, the departmental proceeding was started against him on the 8th September, 1958, and not before the 30th August, 1968, on which date the impugned order (Annexure "6") was passed. It may be stated here that the writ application was actually filed in this court or the 9th September, 1968. It is neither necessary nor expedient for us to make any observation one way or the other as to whether, having learnt about the starting of a departmental proceeding, the petitioner rushed to this Court and filed the writ application, or whether the departmental proceeding was started against him because the petitioner had decided to come to this Court to file a writ application. Be that as it may, on the statements made in the affidavit-in-reply, it has to be pointed out that the statement in the counter-affidavit that a departmental proceeding was pending against the petitioner on the date of the impugned order is not quite accurate. But, apart from the fact that, only a few days before the passing of the impugned order, the petitioner was allowed to officiate as Head Assistant from the 1st July, 1968 to the 18th August, 1968, as stated by him in his writ application a fact which is not controverted in the counter-affidavit - it is important to note the statement in the affidavit-in-reply that, even after the passing of the impugned order, Sri J.C. Jetli, the same District Magistrate who had passed the said order, recommended the case of the petitioner in his letter dated the 4th/9th September, 1968, written to the Food Commissioner, Bihar, for being appointed as Junior Accounts Inspector, a post which is even higher in grade than the post of the selection grade assistant, A copy of the said letter is Annexure "10" to the affidavit-in-reply.

The original entries in the permanent Character Roll of the petitioner were produced before us by the learned Govt. Advocate for our perusal in respect of the years 1961-65, 1965-66 and 1966-67. We do not propose to quote in extenso the confidential remarks made in the Character Roll of the petitioner in our judgment. What we want to emphasise, however, is that we do not find any damaging remark made against the petitioner by the Sub-divisional Officer or by the District Magistrate, whose remarks only are to count for consideration. The remarks entered by some other junior officers, no doubt, seem to be a bit damaging but also, at times, unintelligible and inconsistent. Reading all the columns of the entries, we, however, are not satisfied that the remarks of the higher authorities, namely, the Sub-divisional Officer or the District Magistrate, were such as can be said to be damaging to the case of the petitioner. We should not be understood to make these observations of ours with reference to the entries in the Permanent Character Roll of the petitioner to judge the merit of the petitioner, or his suitability for promotion to the higher grade. The remarks, as stated above, were not communicated to the petitioner, as is his case in the petition. It is not asserted in the counter/affidavit that they were communicated to the petitioner. Viewed in the background of these facts and in the circumstances of this case, as stated and discussed from the various affidavits, we are inclined to accept the case of the petitioner that, at the time of the passing of the impugned order (Annexure "6"), his case was not considered by the District Magistrate at all. Had it been considered, the facts would not have stood as they are. The counter/affidavit filed on behalf of the State is very much defective and insufficient to controvert the assertion of the petitioner that his case was not considered. Even in regard to the statement in Paragraph 14 of the counter/affidavit that the case of the petitioner was considered, the deponent says that the fact is true to his knowledge derived from the records of the case: it could not be so. Apart from the affidavit being defective in form, it does not inspire confidence either; especially when viewed in the light of the other circumstances of the case.

Reliance was placed on behalf of the state on the decisions of the Supreme Court in (1) Sant Ram Sharma Vs. State of Rajasthan and Another, and (2) the State of Mysore and Another Vs. P. Narasing Rao, . We do not dispute that promotion to the higher grade in Government service does not depend merely on seniority; merit is also a vital consideration in the matter of promotion, as held by the Supreme court in Sant Ram Sharma Vs. State of Rajasthan and Another, . The material fact of distinction, however, is that in that case there was no statement by the petitioner before the Supreme Court writ application that his case had not been considered at the time officers junior to him were promoted to higher rank in the Police service, and a vague statement, which was not accepted by the Supreme Court, was made in the affidavit-in-reply. Here, we have come to the conclusion that the petitioner''s case was not considered at all, The other case decided by the Supreme Court (2) ( State of Mysore and Another Vs. P. Narasing Rao, ) was of two different grades of tracers in the engineering department. One grade was of matriculates and the other was of non-matriculates. A non-matriculate tracer was not equally placed with a matriculate tracer and could not claim, as was laid by the Supreme Court, a denial of equal opportunity in matters relating to appointment under Article 14 or 16 of the Constitution as the two grades were different, based upon a reasonable classification. In our opinion, the case of (2) State of Mysore and Another Vs. P. Narasing Rao, is not relevant at all to the point at issue. In the result, we allow the application, quash the impugned order of respondent 2 dated the 30th August, 1968 and direct him to consider the case of the petitioner, along with respondents 3 to 6, in the matter of promotion to the post of selection grade assistants and then pass a fresh order, as he may deem fit and proper, in accordance with law. We shall make no order as to costs.