IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5592 of 2005 DEVENDRA KUMAR, SON OF SRI BAJRANGI SHARMA, RESIDENT OF VILLAGE AND P.O. KASHMA, BLOCK – RATNI FARIDPUR, P.S. PARASBIGHA, DISTRICT – JEHANABAD AT PRESENT WORKING ON THE POST OF PANCHAYAT SEWAK AND POSTED AT SADAR BLOCK JEHANABAD, DISTRICT – JEHANABAD. …………. PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE DIRECTOR, DIRECTORATE OF PANCHAYATI RAJ, GOVT.OF BIHAR, PATNA. 3. THE DEPUTY DIRECTOR (PANCHAYATI RAJ), DIRECTORATE OF (PANCHAYATI RAJ), GOVT. OF BIHAR, PATNA. 4. THE UNDER SECRETARY (PANCHAYATI RAJ) DIRECTOR OF (PANCHAYATI RAJ), GOVT. OF BIHAR, PATNA. 5. THE DISTRICT MAGISTRATE, JEHANABAD. 6. THE DISTRICT MAGISTRATE, ARWAL. 7. THE DISTRICT PANCHAYAT OFFICER, JEHANABAD. 8. THE BLOCK DEVELOPMENT OFFICER, SADAR, DISTRICT – JEHANABAD. ……. RESPONDENTS. For the petitioner : - Mr. JItendra Kumar Roy, Advocate. For the State-Respondents : - Mr. Pushkar Narain Shahi, AAG-14. Mr. Mritunjay Kumar, AC to AAG-14. ----------- 07/ 02.05.2011 Heard counsel for the petitioner and the counsel appearing for the State. Petitioner’s prayer in the main writ application was for a direction to Directorate, Panchayati Raj, Govt. of Bihar (Respondent No. 2) to consider his name for promotion to the post of Gram Panchayat Supervisor vide Memo No. 1574 dated 2.3.1983 (Annexure-2) against the vacancies existing on the post. During the pendency of the writ application Bihar Panchayat Service Rule, 2010 came into force, as such I.A. No. 675 of 2011 was filed with a prayer to amend the relief 2 in the main writ application. The amended prayer was for a direction, for not giving retrospective effect to the Rule 6 of Bihar Panchayat Service Rule, 2010, in respect to the vacancies to the post of Panchayat Supervisor (now Block Panchayat Officer), existing prior to 12.3.2010, for the promotional quota of Panchayat Sewak. The amended prayer was made on the ground that the matter relating to promotion to the post of Panchayat Supervisor was pending before the department, process almost completed prior to 12.3.2010, following the procedure under the old Rule, as such final decision on promotion, against vacancies prior to 12.3.2010, should be completed as per the old Rule. Petitioner was appointed as Graduate Panchayat Sewak vide Memo No. 524 dated 22.7.1985. The petitioner worked on the post of Panchayat Sewak at different places after joining the post. The State Govt. Department of Rural Development and Panchayati Raj vide resolution contained in Memo No. 1574 dated 2.3.1983 published in extra-ordinary gazette on 7th March, 1983 framed the Rule relating to the 3 appointment on the post of Panchayat Supervisor. As per the said Rule 50% post of the Panchayat Supervisors has to be filled up giving promotion to the Panchayat Sewaks and rest of the 50% post by the direct recruitment. 50% post to be filled up by promotion were divided in two categories as per Rule IV (ka), 25% posts were to be filled up by giving promotion to Panchayat Sewaks having graduation degree and 10 years continuous service. Rest 25% posts were to be filled up by giving promotion to Panchayat Sewaks having degree of Matriculation/Intermediate on the basis of selection. The petitioner completed 10 years of continuous service in 1995 and became eligible for promotion to the post of Panchayat Supervisor against 25% promotional quota in the category of graduate Panchayat Sewaks. A seniority list of Panchayat Sewaks completing 10 years of service was prepared. Petitioner’s name was also recommended for promotion on the post of Panchayat Supervisor by the Block Development Officer, Kurtha vide letter No. 496 dated 24.7.2003. The process for giving promotion to the post of Panchayat Supervisor was initiated in the year, 2003 4 itself but no order could be passed. More than 103 posts of Panchayat Supervisor under 25% quota of graduate Panchayat Sewak promotional categories were vacant, but the respondent-authorities were not taking any final decision. The matter remained pending, in the meantime, in the year, 2010 Bihar Panchayat Service Rule, 2010 (hereinafter referred as Rules, 2010) was introduced by the Govt. notification contained in Memo No. 1939 dated 12.3.2010. Rule 6 provided for promotion of Panchayat Sewak to the post of Block Panchayat Officer earlier known as Panchayat Supervisor. Rule 6(1) provided that 75% of vacancies on the post of Block Panchayat Officer will be filled up by way of direct recruitment on requisition of the commission. Rule 6(2) provided for 25% of vacancies to the post of Block Panchayat Officer will be filled up by promoting graduate Panchayat Secretaries as per their merit and seniority, provided only those Panchayat Secretaries (Panchayat Sewaks) will be eligible for such promotion, who have completed 10 years of continuous service and are less than 50 years of age and will fulfill other requisite criteria for being promoted to the post. 5 Petitioner’s grievance is that his case for promotion to the post of Panchayat Supervisor (now Block Panchayat Officer) was pending since 1995. In the year, 2003 a panel, as per the seniority had been prepared in which petitioner was placed at serial no. 135. Vacancies were also there, but simply on account of latches on the part of the respondents, the process for promotion was not completed, though it was initiated much earlier. As per the new Rule, besides there being 10 years of continuous service on the post of Panchayat Sewak/ Panchayat Secretary, a new criteria has been fixed regarding age, only those Panchayat Sewaks/Secretaries who are below 50 years of age could be considered for promotion against 25% quota, fixed for promoting Panchayat Sewaks/ Panchayat Secretaries. The prayer of the petitioner is that all those vacancies, which were existing prior to 12.3.2010 i.e. the date on which Bihar Panchayat Service Rules, 2010 was notified, should be filled up as per Annexure-2 i.e. old Rule. Lawfully 2010 Rule cannot be made applicable retrospectively as there is no specific stipulation in the notification that the Rules will be 6 retrospective in its effect. In absence of any such stipulation, any provision under the Rule can be made applicable prospectively. So far vacancies in respect of which process for promotion had initiated much earlier to 12.3.2010, the old Rule of 1983 (Annexure-2) will have application. Petitioner is fulfilling the criteria of 10 years continuous service on the post of Panchayat Sewak but on account of keeping his matter for promotion pending for such a long time, he has already completed 50 years of age. This should not be considered as ineligibility for promoting him to the post of Block Panchayat Officer. In para 7 of the counter affidavit there is an admission that the matter of promotion to the Graduate Panchayat Secretary had been taken up for consideration by the Departmental Promotion Committee in the year, 2008 and at that time the total vacancies as per provision under the then prevalent statute was 144 against which 25 Graduate Panchayat Secretaries were promoted. The promotions were given to the Graduate Panchayat Secretaries at different points of time and by the end of 2009, remaining unfilled posts were reduced to 39. The 7 petitioner was at serial no. 138 in the gradation list, as such, he was not coming in the zone of consideration for promotion under the then prevalent statute prior to coming into force of 2010 Rules. Petitioner, as such, cannot claim for promotion to the post of Panchayat Supervisor or Block Panchayat Officer as per the old Rule. In sum and substance the stand of the State Govt. is that all those vacancies, which existed prior to coming into force of 2010 Rules, were filled up prior to enforcement of 2010 Rules. Till that date petitioner was not within the consideration zone, as per the number of vacancies vis-à-vis his position in the gradation list. After enactment of 2010 Rules, total vacancies of Block Panchayat Officer is 189 and posts falling under 25% quota for Graduate Panchayat Secretaries comes to 47. The department has taken initiative to fill up those 47 posts, letters in this regard have been issued to the District Magistrates for furnishing details of those Graduate Panchayat Secretaries, who are eligible for giving promotion. Petitioner’s name is in this list is at serial no. 13 and under active consideration for giving 8 promotion, in accordance with law. In the counter affidavit there is no denial so far petitioner’s claim for promotion. The law is settled that vacancies, with regard to which process for appointment/promotion has been initiated under the old Rules, must be filled in terms of existing Rules under which the process had been started. Petitioner’s name, thus, must be considered for promotion under the old Rules against the vacancies existing prior to 12.3.2010. The decision with regard to the final order of promotion, pending for consideration, must be passed within 12 weeks from the date of production/communication of this order. Petitioner being eligible for promotion since, 1995, cannot be denied promotion, in the light of 2010 Rules, giving effect to Rule 6, retrospectively. All vacancies, existing prior to 12.3.2010, must be filled, following 1983 Rules (Annexure-2), as new Rule cannot be made applicable, retrospectively. This application stands, allowed. DKS/ (Mridula Mishra, J.)