IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6243 of 2002 Sanaur Rahman, S/o Late Nazir Ali, President Non-Conventional Energy Biogas Technicians Association, Bihar, Bihar Renewable Energy Development Agency, Son Bhavan, R. Block, Patna. ……………………….. Petitioner Versus 1. The State of Bihar through Ex-Officio, Chairman, BREDA, Cum Secretary Department of Energy, Sinchai Bhavan, Patna. 2. Joint Secretary, Department of Energy, Sinchai Bhavan, Patna. 3. Bihar Renewable Energy Development Agency, Sone Bhawan, R. Block, Patna through its Director. ………………………. Respondents ----------- 7 30/6/2009 Heard Mr. M.P.Shukla, learned counsel for the petitioner, Mr. Mannu Shanker Mishra, learned counsel appearing for the Bihar Renewable Energy Development Agency and Mr. Shyam Kishore Sharma, the learned G.P.5. In this writ application the petitioner, an employee and also an office bearer of the Association of the Workers of Bihar Renewable Energy Development Agency ( hereinafter referred to as the ‘BREDA’) has made a prayer for the following relief:- “That this is an application for issuance of a writ in the nature of mandamus or any other writ/writs, order/orders commanding and directing the respondent to consider/grant the regular promotion to the post of Senior Biogas Technicians (Rs.4500-7000) Assistant Bio Gas Officer (Rs.5000-8000) and Project Officer (Rs.6500- 10500) for which 8,5 and 1 post respectively are sanctioned and the case promotion to the available sanction post has not been considered ever since the appointment of the members of the petitioner’s Association after 1984 in the light of the Personal Policy as laid down by the Hon’ble court is reported in the SCC 1988) Supp) SCC 519 (Raghunath Prasad Singh Versus The State of Bihar and as for providing at least two promotion for generating afficiency in service and forstering appropriate attitude to 2 grow for achieving excellance.” It appears from the earlier order sheet of this writ application filed in the year 2002 that a stand was taken by the respondents in the counter affidavit that the decision for notifying the promotion by Breda cannot be taken in absence of rules and service conditions. This Court thereafter on the prayer made by the parties had adjourned the matter from time to time on a number of occasions to facilitate framing and production of rules, but even from the last affidavit filed by the parties it appears that framing of such rules for laying down service conditions of the employees of Breda is still pending. The stand taken by counsel for the BREDA in this regard is that such service conditions and the rules have been framed and sent for approval its in the Energy Department of the State Government. Counsel for the State, on the other hand, would take a plea that the Energy Department has sent the matter to the Finance Department and the Finance Department after recording certain objection has returned the same for making necessary changes and amendments in the proposed rules., Mr. Mishra infact has taken a plea that as BREDA is working as a State Government undertaking it cannot take any decision for promotion on higher posts as prayed by the petitioner when such Rules laying down the number of promotional posts and its manner of filling by a codified Rule inform of service conditions of the employees of BREDA is approved and laid down by the State Government which is meeting the entire expenditure on the establishment of the BREDA in the opinion of this Court, the petitioner and other Bio Gas technicians claiming promotion on the higher post of Senior Bio Gas Technician or its further promotional post namely Assistant Bio-Gas 3 Officer and Project Officer, cannot be kept for an endless indefinite period on the ground of absence of Rules. BREDA infact being a society registered under Society Regulations Act under Clause 12.7 of the Articles of Association is fully competent to lay down norms for such promotion in as much the BREDA on its own has been empowered to lay down the service conditions and pay structure of its employees. The financial aspects of such promotion may depend on approval of number of posts for BREDA by the State Government but then it would be real camaflouge of the concept of autonomy vested in a Board/Corporation/Society owned and controlled by the State Government if they have to depend the State Government for every routine matter including grant of promotion to its employees within sanctioned strength. Fortunately, for the petitioner the recent decision of the State Government in the meeting held on 19.5.2009, approving expenditure of establishment of BREDA under the non plan head for specified number of posts would itself clear the deck for avibility of finance and funds and the BREDA even without approval of the Rules and Service Conditions by the State Government can take its decision for filling up such posts either by way of appointment or promotion. The aforesaid decision dated 19.5.2009 circulated by Planning and Development of the Govt. of Bihar in memo no. 139 dated 22.5.2009 reads as follows : - fnukad 19-5-09 dks fodkl vk;qDr dh v/;{krk esa vk;ksftr ;kstuk ls xSj ;kstuk en esa LFkkukUrj.k ls lacaf/kr cSBd dh dk;Zokgh- mifLFkr- 1-Jh ,l0 fot;jk/kou-fodkl vk;qDr fcgkj 2-Jh lh ds feJk-iz/kku lfpo mtkZ foHkkx fcgkj 3-Jh jfoUnz iokj-lfpo lalk/ku for foHkkx fcgkj 4-Jh jkes’oj flag-iz/kku lfpo ;kstuk ,oa fodkl foHkkx fcgkj 4 mtkZ foHkkx ls izkIr izLrko ij fopkjksijkUr fuEu fu.kZ; fy;s x;s- foHkkx dk uke fo"k; ,oa izLrko lfefr dk fu.kZ; 2 3 4 mtkZ foHkkx@ fcgkj fjU;q,oqy buthZ MsoyiesaUV ,tsalh iz0A@;ks0m0- LFkkiuk ds ;kstuk en esa Lohd`r 10@2006 fuEukafdr inks dks xSj ;kstuk en esa LFkukUrfjr djus ds laca/k esa A Dze la0 inuke osrueku Lohd`r inks dh la0 1-funs”d 12000&16500 1 2&mi funs”d 10]000&15200 1 3&duh; vfHk;ark 5]000&8]000 4 4&ys[kkiky 4]000&6000 1 5&fyfid lg Vadd 4000&6000 2 6&vk”qfyfid 4000&6000 1 7&rdfuf”;u jkT;Lrj 3200&4900 3 8&pkyd 3050&4590 1 9&pijklh 2]550&3200 2 jkT; Lrj 1&la;qDr funs”d ok;ksxSl 10]000&15]200 1 2&lgk;d funs”d 6]500&10]500 2 3&lgk;d 4000&6000 1 4&lgk;d lg Vadd 4000&6000 1 5&vk”qfyfid 4000&6000 2 6&pkyd 3050&4590 2 7&ok;ksxSl rdfuf”;u eq[;ky; 4500&7000 4 8&HkaMkjiky 4000&6000 1 9&pijklh pkSdhnkj 2550&3200 2 10&Vzstjh ljdkj 2750&4400 1 ftyk Lrj 1&lgk;d ok;ksxSl inkf/kdkjh 5000&8000 7 2&duh; vfHk;ark 5000&8000 7 3&rduh”;u 3200&4900 94 Dqy in ij okf"Zkd O;;u 133-3 yk[k : g0@&vLi"V g0@&vLi"V g0@&vLi"V g0@&vLi"V 5 lfpo mtkZ foHkkx lfpo lalk/ku foRr] iz/kku lfpo ;kstuk ,oa fodkl] fodkl vk;qDr dks lqpukFkZ ,oa vko’;d dkjZokbZ gsrq izsf"kr A In view of the aforesaid standard staffing pattern approved with the financial sanctioned, the petitioner now has to only bring his case for promotion within the number of posts so sanctioned because it is an admitted case that BREDA, an Association registered under the Societies Registration Act, is wholly dependent on the financial support of the State Government. In fact the order passed by the authorities as contained in Annexure-B to the counter affidavit will also go to show that 70% of grant was being given by the State Government, 2% thereof was met from the revenue of BREDA and balance 28% remains as a gap which at all time point of time in past was being managed by the BREDA by restricting the expenditure including curtailment of expenses on sanctioned posts. In such a situation, it will be now for the BREDA to reconsider the grievance of the petitioner as with regard to giving promotion to the post which has been brought within the aforementioned non plan head and if for giving such promotion certain guidelines will have to be fixed the same may also be done by the BREDA in terms of Clause 12.7 of the Articles of Association, giving it power to decide service condition, pay structure of an employee of the agency on the same terms and conditions as has been prevailing in the State Government. This Court, in fact, having been informed that the service condition as also the rules governing the employees of BREDA as a whole is being framed in view of order passed in C.W.J.C. No. 2118 of 2007, would confine its consideration to the limited grievance of the petitioner for 6 considering promotion on seven sanctioned posts of Assistant Bio-Gas Officer at the State Govt. by the aforesaid decision has not sanctioned any post of senior Bio-Gas Technician or Project Officer. Thus now it open for BREDA to frame Rules/Issue Circular laying down the eligibility conditions of qualification and experience for the post Assistant Bio-Gas Officer as also mode of selection for giving promotion on post of Assistant Bio-Gas Officer so that the employees of BREDA entitled to get such promotional post of Assistant Bio-Gas Officer are not deprived of their right of consideration for such promotion. This Court, however, must note that on two earlier occasions this Court had directed the authorities of BREDA and the State Govt. to take a decision with regard to grant of time bound promotion to the employees of BREDA, whereafter by two orders dated 24.2.2000 and 25.10.2006 the same was rejected. Since those orders are not under challenge in this writ application, this Court would not like to make any comment on the correctness of those orders, but then if anything can be found from those orders one thing becomes noticeable that the BREDA had taken the plea of financial crunch for not giving time bound promotion. Resources gap of 28% has been explained in the order dated 25.10.2006 as the main reason for the BREDA in not even allowing time bound promotion. Such financial constraints for denial of regular promotion on the post of Assistant Bio-Gas Officer cannot be pressed into action in view of the letter of the State Government dated 22.5.2009 sanctioning the expenditure of seven posts of Assistant Bio-Gas Officer in the pay scale of Rs. 5000-6000 and covered by the amount of Rs. 133.13 lakh per year in non-plan head and therefore irrespective of the decision refusing to 7 grant time bound promotion of the employees represented by the petitioner the employees of BREDA must be considered for grant of regular promotion within the post now brought under the non plan head by the State Government in the decision taken on 19.5.2009 and circulated by its letter dated 22.5.2009.. That being so, this Court would direct the Respondent no. 3 to consider the grievance of the petitioner for grant of promotion to the eligible employees of BREDA on the posts of Assistant Bio-Gas Officer sanctioned by the State Government in its order dated 22.5.2009 within a period of six months from the date of receipt/production of a copy of this order. With the aforementioned observations/directions this application is finally disposed of. Abhay Kumar (Mihir Kumar Jha, J.)