Shri Anirudh Prasad Mandal Vs. Water Resources Department - Court Judgment

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 3879 of 2014 … Shri Anirudh Prasad Mandal, S/o Shri Jagdish Mandal, resident of Village – Kewaldih, P.S. - Samukhiya More, District – Banka, presently posted as Assistant Engineer (Current Charge), Irrigation Division, P.O. & District – Dumka, State – Jharkhand. … Petitioner -V e r s u s- 1. The State of Jharkhand through its Chief Secretary, Project Building, P.O.- Dhurwa, P.S.-Jagannathpur, Town & District - Ranchi.

2. The Secretary, Water Resources Department, Government of Jharkhand.

3. The State of Bihar, through its Chief Secretary, Government of Bihar, Patna.

4. The Principal Secretary, Water Resources Department, Government of Bihar, Patna … Respondents … CORAM: HON’BLE MR. JUSTICE PRASHANT KUMAR. … For the Petitioner : - Mr. Sachin Kumar, Advocate. For the Respondents : - J.C. to G.P.-VI. Mr. Ranjit Kumar, Advocate. … 02/20.04.2016 This application has been filed for quashing the order contained in memo no. 967 dated 03.02.2014 passed by respondent no. 2, whereby and whereunder he kept the petitioner's promotion in abeyance till the availability of post in unreserved category under AMIE quota. Petitioner further prayed for issuance of a writ commanding the respondents to promote him on the post of Assistant Engineer from the date his junior has been promoted. It appears that the petitioner was initially appointed in the year 1987 as Junior Engineer in the Water Resources Department and working on the said post. However, a departmental proceeding initiated against the petitioner on 19.09.2001 and he was put under suspension. During the pendency of aforesaid departmental proceeding, meeting of DPC took place on 14.06.2003. The proceeding of the DPC annexed in this case as Annexure-6. From perusal of same, it appears that the name of the petitioner find place at serial no.

37. It is worth mentioning that against the name of petitioner, it is stated that the decision regarding his promotion had been kept in a sealed cover. It further appears from the record -2- that the departmental proceeding concluded vide order dated 23.09.2005, whereby the petitioner was exonerated from all the charges and his suspension revoked. Thereafter, petitioner filed a representation for promotion as his junior promoted w.e.f. 31.10.2002. When the respondents had not given any heed to the representation of the petitioner, petitioner filed a writ application in this Court vide W.P. (S) No. 2584 of 2007. The aforesaid writ application was disposed of by order dated 17.06.2013 and following direction given:- “In such circumstances, the petitioner shall file a detailed representation containing all necessary facts and supporting documents in support of his claim within a period of two weeks before the respondent no. 2, the Secretary, Water Resources Department, Government of Jharkhand. On receipt of such representation, the respondent no. 2, the Secretary, Water Resources Department, Government of Jharkhand shall consider the case of the petitioner in accordance with law and pass a speaking and reasoned order within a period of 12 weeks thereafter, which shall be communicated to the petitioner. Needless to say that if the petitioner is found to be entitled to promotion from retrospective date after opening of the sealed cover upon his exoneration in the departmental proceedings as stated by him, the same should also be granted to him with all consequential benefits within four weeks thereafter.” It further appears that thereafter respondent no. 2 has passed the reasoned order by Annexure-14, wherein he quoted the opinion of Advocate General and ultimately ordered that till the vacancy arose in the general category under AMIE quota, the promotion of petitioner will be kept in abeyance. It is submitted by Sri Sachin Kumar, learned counsel for the petitioner that the aforesaid order passed by the -3- respondent no.2 is against the law laid down by the Hon'ble Supreme Court in the case of Union of India V. K.V. Jankiraman & Others reported in 1991 (4) SCC109 He submits that the respondent no.2 has acted on a legal advice which is against the law. He submits that if the decision of DPC is kept in a sealed cover, then in that case the department ought to have kept one post vacant for the petitioner or if administrative exigency demands then promote the junior on the said post in officiating capacity. It is submitted that since the petitioner has already been exonerated from all the charges levelled against him, he is entitled for promotion and if there is no vacancy then junior to the petitioner, who has already been promoted, is required to be reverted back to his original post, but in no case respondent can deny promotion to the petitioner. Sri Sachin Kumar further submits that the petitioner is working on the post of Assistant Engineer as In-charge from 14.09.2007, which shows that a post of Assistant Engineer is vacant since 2007. Accordingly, it is prayed that the impugned order may be quashed and the respondents be directed to pass the order of promotion in favour of petitioner with all consequential benefits. Learned counsel appearing for the State submits that since there is no vacancy as per roaster, therefore, petitioner has not been promoted at present. However, he submits that the petitioner will be promoted as and when vacancy will arise. Having heard the submissions, I have gone through the record of the case. Admittedly, DPC considered the case of the petitioner and kept the decision relating to the promotion of petitioner under sealed cover. It is also an admitted position that the petitioner has been exonerated from all the charges levelled against him by order dated 23.09.2005 and his suspension revoked w.e.f. 19.09.2001. Thus, it is clear that on the date of DPC, no charge pending against the petitioner, because he has been exonerated from such charge w.e.f. 19.09.2001. -4- It is well settled that if on the recommendation of the DPC the case of promotion of any employee kept in sealed cover then it is incumbent upon the employer to keep one post vacant or promote any junior to that post on officiating basis. It is equally well settled that if ultimately the employee whose case was kept in sealed cover exonerated from all the charges levelled against him, then in that case he shall be promoted against the vacancy kept reserved for him or after reverting the junior most, who has been promoted on officiating basis, reference may be made to Janki Raman Case (supra). In the instant case, I find that one Ashish Kumar, who is junior to the petitioner, has been promoted to the post on substantive basis of Assistant Engineer. It further appears from Annexure-14 that the respondent no. 2 has not rejected the case of promotion of the petitioner outrightly, rather the same has been kept in abeyance. This shows that the petitioner was found fit for promotion by the DPC. Under the said circumstance, I allow this writ application and direct respondent no. 2 to promote the petitioner on the post of Assistant Engineer as per the aforesaid decision of DPC with all consequential benefits from the date he has been exonerated from all the charges levelled against him. The respondent is further directed to pass the aforesaid order within two months from today. ( Prashant Kumar, J.) sunil/