Dr. Nand Kishore Prasad Vs. State of Bihar and ors. - Court Judgment

Excerpt:
service law - notional promotion--departmental proceedings against petitioner quashed--exonerated from the criminal charges--no departmental proceeding or criminal charge pending--entitled for notional promotion--direction to state authorities to consider the case of petitioner for promotion and to pay all consequential monetary benefits--application allowed. - narayan roy, j.1. heard counsel for the parties.2. substantially, the petitioner prays for issuance of a writ of mandamus commanding upon the respondents to promote the petitioner notionally (i) to junior selection grade with effect from 1.4.1974, (ii) to senior selection grade with effect from 1.4.1980 and (iii) to super selection grade with effect from 3.6.1984.3. it appears that initially, the petitioner had prayed for issuance of direction to the respondents to promote him on the aforesaid scales and also pay him the retrial dues, as he superannuated on 31.1.1988.4. during the pendency of this application, as it appears, the retiral dues were paid to the petitioner, and, therefore, the petitioner confined this application only so far grant of notional promotion, as, referred to above, is concerned.5. according to the case of the petitioner, the petitioner was entitled for promotion for junior selection grade, senior selection grade under and super selection grade with effect from 1.4.1974, 1.4.1980 and 3.6.1984, respectively, but due to pendency of a departmental proceeding and also a criminal charge, benefits of promotions were not given to the petitioner despite the fact that the departmental proceeding initiated against him was quashed by this court in cwjc no. 4444 of 1992 vide order dated 27.9.1993, as contained in annexure-2 and in criminal case final form was submitted and he was discharged from the liabilities of bail bonds by the learned magistrate vide order dated 10.11.1998 in maharajganj police station case no. 91 of 1986.6. according to the case of the respondents, as disclosed in the counter affidavit, it appears that the petitioner was made an accused in maharajganj police station case no. 91 of 1986 and a departmental proceeding was initiated against him and he was put under suspension vide order dated 11th september 1986.7. however, the case of the petitioner for grant of junior selection grade was considered by the departmental promotion committee on 19.5.1988, but the petitioner was not found eligible, as he was facing a criminal charge for committing forgery and defalcation of government money.8. the plea of the respondent state, as, disclosed in the counter affidavit, for denial of notional promotion, as claimed by the petitioner, appears to be mainly on the ground of pendency of a criminal charge against the petitioner pertaining to maharajganj police station case no. 91 of 1986. in paragraph 23 of the counter affidavit, it is, however, submitted that all the legal dues of the petitioner have been paid, but so far as his claim for promotion and benefit is concerned, he would not be entitled till the final decision of the criminal case pending against the petitioner.9. it is contended on behalf of the petitioner that since the departmental proceeding pending against the petitioner has been quashed and has been exonerated from the criminal charge, as referred to above, the petitioner now is entitled for notional promotion in junior selection grade, senior selection grade and super selection grade scales, as claimed by him in view of the ratio laid down by the apex court in the case of union of india and ors. v. k. v. janakiraman and ors., air 1991 supreme court, 2010.10. learned standing counsel no. 3 appearing for the state, faced with this situation, where neither a departmental proceeding nor criminal charge is pending against the petitioner, submitted that the case of the petitioner would be considered for notional promotion, as claimed by the petitioner, in light of the ratio laid down by this court in the case of state of bihar and ors. v. bateshwar sharma, 1997 (2) patna law journal reports (supreme court) 39.11. from the pleadings of the parties, it appears to me that the case of the petitioner at one point of time on 19.5.1988 was considered for grant of junior selection grade, but the same, however, was denied to him in view of the pendency of the criminal charge.12. since the petitioner is legally entitled for the notional promotion, as claimed by him, his case now should be considered by the state authorities in accordance with law for grant of junior selection grade, senior selection grade and super selection grade as claimed by him,'13. this aspect of the matter, however, is not disputed by learned counsel appearing on behalf of the state.14. for the reasons and discussions aforementioned, this application is allowed and the state authorities are directed to consider the case of the petitioner for grant of junior selection grade, senior selection grade and super selection grade scales with effect from 1.4.1974, 1.4.1980 and 3.6.1984, respectively and to pay all consequential monetary benefits to the petitioner on account of notional promotion within a period of three months from the date of receipt/production of a copy of this order.15. no order as to costs.

Judgment:

Narayan Roy, J.

1. Heard counsel for the parties.

2. Substantially, the petitioner prays for issuance of a writ of mandamus commanding upon the respondents to promote the petitioner notionally (i) to junior selection grade with effect from 1.4.1974, (ii) to senior selection grade with effect from 1.4.1980 and (iii) to super selection grade with effect from 3.6.1984.

3. It appears that initially, the petitioner had prayed for issuance of direction to the respondents to promote him on the aforesaid scales and also pay him the retrial dues, as he superannuated on 31.1.1988.

4. During the pendency of this application, as it appears, the retiral dues were paid to the petitioner, and, therefore, the petitioner confined this application only so far grant of notional promotion, as, referred to above, is concerned.

5. According to the case of the petitioner, the petitioner was entitled for promotion for junior selection grade, senior selection grade under and super selection grade with effect from 1.4.1974, 1.4.1980 and 3.6.1984, respectively, but due to pendency of a departmental proceeding and also a criminal charge, benefits of promotions were not given to the petitioner despite the fact that the departmental proceeding initiated against him was quashed by this Court in CWJC No. 4444 of 1992 vide order dated 27.9.1993, as contained in Annexure-2 and in criminal case final form was submitted and he was discharged from the liabilities of bail bonds by the learned Magistrate vide order dated 10.11.1998 in Maharajganj Police Station Case No. 91 of 1986.

6. According to the case of the respondents, as disclosed in the counter affidavit, it appears that the petitioner was made an accused in Maharajganj Police Station Case No. 91 of 1986 and a departmental proceeding was initiated against him and he was put under suspension vide order dated 11th September 1986.

7. However, the case of the petitioner for grant of junior selection grade was considered by the Departmental Promotion Committee on 19.5.1988, but the petitioner was not found eligible, as he was facing a criminal charge for committing forgery and defalcation of Government money.

8. The plea of the respondent State, as, disclosed in the counter affidavit, for denial of notional promotion, as claimed by the petitioner, appears to be mainly on the ground of pendency of a criminal charge against the petitioner pertaining to Maharajganj Police Station Case No. 91 of 1986. In paragraph 23 of the counter affidavit, it is, however, submitted that all the legal dues of the petitioner have been paid, but so far as his claim for promotion and benefit is concerned, he would not be entitled till the final decision of the criminal case pending against the petitioner.

9. It is contended on behalf of the petitioner that since the departmental proceeding pending against the petitioner has been quashed and has been exonerated from the criminal charge, as referred to above, the petitioner now is entitled for notional promotion in junior selection grade, senior selection grade and super selection grade scales, as claimed by him in view of the ratio laid down by the Apex Court in the case of Union of India and Ors. v. K. V. Janakiraman and Ors., AIR 1991 Supreme court, 2010.

10. Learned Standing Counsel No. 3 appearing for the State, faced with this situation, where neither a departmental proceeding nor criminal charge is pending against the petitioner, submitted that the case of the petitioner would be considered for notional promotion, as claimed by the petitioner, in light of the ratio laid down by this Court in the case of State of Bihar and Ors. v. Bateshwar Sharma, 1997 (2) Patna Law Journal Reports (Supreme Court) 39.

11. From the pleadings of the parties, it appears to me that the case of the petitioner at one point of time on 19.5.1988 was considered for grant of junior selection grade, but the same, however, was denied to him in view of the pendency of the criminal charge.

12. Since the petitioner is legally entitled for the notional promotion, as claimed by him, his case now should be considered by the State authorities in accordance with law for grant of junior selection grade, senior selection grade and super selection grade as claimed by him,'

13. This aspect of the matter, however, is not disputed by learned counsel appearing on behalf of the State.

14. For the reasons and discussions aforementioned, this application is allowed and the State authorities are directed to consider the case of the petitioner for grant of junior selection grade, senior selection grade and super selection grade scales with effect from 1.4.1974, 1.4.1980 and 3.6.1984, respectively and to pay all consequential monetary benefits to the petitioner on account of notional promotion within a period of three months from the date of receipt/production of a copy of this order.

15. No order as to costs.