Judgment:
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 1009 of 2011 ….. Parmanand Paswan …. Petitioner Versus 1. The State of Jharkhand, through the Chief Secretary, Government of Jharkhand, Project Building, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi.
2. The Finance Secretary Government of Jharkhand, Project Building, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi.
3. The Principal Secretary, Water Resources Department, Government of Jharkhand, Project Building, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi.
4. The Secretary, Rural Development, Government of Jharkhand, Project Building, P.O. Dhurwa, P.S. Jagarnathpur, District Ranchi.
5. The Accountant General (A&E), Jharkhand, P.O. & P.S. Doranda, District Ranchi …. Respondents CORAM: HON'BLE MR. JUSTICE DR. S.N. PATHAK3. For the Petitioner : Mr. Birendra Kumar, Advocate For the Respondents : Mrs. Richa Sanchita, S.C. V th 16 / Dated 7 September, 2017 The petitioner has approached this court with a prayer for quashing the notification as contained in memo no. 4601/Ranchi, Dated 22.11.2010 issued by Under Secretary, Department of Water Resources, Government of Jharkhand, whereby promotion granted to petitioner and several others by the State of Bihar, Department of Water Resources, with effect from 01.01.1998 vide notification no. 2525, dated 17.06.05, issued by Deputy Secretary, Department of Water Resources, Government of Bihar, has been canceled. Factual Matrix: The petitioner was appointed on 03.08.1989 as a Junior Engineer, water Resources Department in Government of Bihar. It has been stated that the petitioner having unblemished service record has been considered and granted promotion in the year 1998 much before the bifurcation of the State of Jharkhand f3.rom the erstwhile State of Bihar but the final allocation of the cadre of the staff of Water Resources Department took place between Jharkhand and 2 Bihar in the month of October, 2004 and the petitioner was allocated Jharkhand Cadre. It has been further stated that Government of Bihar, Department of Water Resources vide notification no. 654/Patna, dated 25.01.2002, promoted altogether 63 Diploma holder Junior Engineer (Civil), independent charge and posted with effect from 25.01.2002, and the copy of said notification has also been sent to Secretary, Water Resources Department, Government of Jharkhand with a direction to post all such diploma holder Junior Engineer as all such 19 as Assistant Engineer (Civil) as Independent charge. Department of Water Resources, Government of Jharkhand vide notification no. 2286, dated 200502, the petitioner and several other Diploma Holder Junior Engineers (Civil), have been given independent current charge and posted as Assistant Engineer (civil) in their own pay scale. The name of petitioner was at Serial No. 16, who has also been posted as Assistant Engineer. The petitioner along with other Junior Engineers were considered for promotion to the post of Assistant Engineer with effect from 01.01.1998 vide notification no. 2525/Patna, dated 17.06.05 issued by Water Resources Department, Government of Bihar in which the name of petitioner finds place at serial no. 56 out of 70 Junior Engineers who were promoted to the post of Assistant Engineer with effect from 01.01.1998. The counterpart of the petitioner in Water Resources Department, Government of Bihar were all granted promotion to Junior Engineers and monetary benefits was granted with effect from 01.01.1998. It is specific case of the petitioner that though the promotion was granted legally by the State of Bihar, the State of Jharkhand canceled the said promotion vide notification no. 4601/Ranchi dated 22.11.2010 issued by Water Resources Department, Government of Jharkhand and the name of petitioner finds place at serial no. 18. The petitioner represented before the authorities regarding the cancellation of the order of promotion but no heed was paid to the representation and hence this writ petition has been preferred. 3 Mr. Birendra Kumar, learned counsel for the petitioner emphatically argues that petitioner is legitimately entitled to the same treatment like his counter part in the state of Bihar after bifurcation of the State. There is no illegality in the impugned order and the petitioner was rightly considered for promotion along with other similarly situated persons even the Assistant Engineers posted in the state of Bihar have been granted monetary benefits from 01.01.1998, the date on which the promotion was given effect to the similarly situated persons. Learned counsel further submits that taking into consideration Section 72 and 73 of the Bihar Reorganization Act, 2000, persons serving in connection with the affairs of the Union or the State provides that the conditions of service applicable immediately before the appointed date in the case of any person deemed to have been allocated to the State of Jharkhand under section 72 shall not be varied to his disadvantage and as such taking into consideration the aforesaid settled rules the promotion of the petitioner is fully justified and the cancellation order is not tenable in the eyes of law. Learned counsel further argues that even assuming that the promotion was illegally granted the provisions of natural justice was not followed in cancellation of the promotion order and as such on this score also the order of cancellation is illegal in the eye of law. Per contra, counteraffidavit has been filed. Mrs. Richa Sanchita, S.C. V argues that there is no illegality in the impugned order, after the cadre division and after bifurcation of the state of Bihar it has no jurisdiction to issue order of promotion to the persons working in the jurisdiction of State of Jharkhand. For all purposes the services of the petitioner were allocated to the state of Jharkhand. State of Jharkhand was the only competent authority to consider the promotion of the petitioner and wrongly it was considered and granted by erstwhile State of Bihar which is against the provisions of Reorganization Act. Learned counsel argues that section 72 and 73 is not attracted in the case of petitioner and as such the impugned order is fully justified. 4 Be that as it may having gone through the rival submissions of the parties, this court is of the considered view that the impugned order has been issued without following the cardinal principles of natural justice. Rightly after the bifurcation, the state of Bihar has no jurisdiction to consider and pass orders for promotion but to the promotion which was already granted w.e.f 1998 and the petitioner continued working on the said post for five long years, it was requirement of the service conditions that at least a show cause has to be issued to the petitioner so that he could have justified the promotion order. As no show cause was issued and the provisions of natural justice was given a complete go by, the order as contained in memo no. 4601/Ranchi, dated 22.11.2010 is not sustainable in the eyes of law and as such is hereby quashed and set aside. However since the order of promotion was without jurisdiction the matter is remanded to the respondentsauthorities to consider the case of petitioner for promotion in accordance with law. In view of that already a press release was issued (AnnexureA) to the counter affidavit dated 01.03.2011 for consideration of those persons who were granted promotion by the State of Bihar. In view of the Press release and in view of the candid submission of the counsel for the respondents that already a process has been initiated for considering the case of petitioner for granting promotion to the post of Assistant Engineer I hereby direct the respondents to constitute a D.P.C., giving special consideration to these persons in view of the press release and consider their case for promotion in accordance with law. The entire exercise should be completed within a period of 8 weeks from the date of receipt of a copy of this order. Let it be made clear that consideration of promotion of other persons and holding of D.P.C. for other persons will not come in way of consideration of promotion of the petitioner. With the aforesaid observations writ petition stands allowed. (Dr. S.N. Pathak, J.) Pallavi/