IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.2759 of 2011 Prem Kumar Sinha, s/o- Late Yugal Kishore Prasad Sinha, r/o- village/mohalla- Ashok Nagar, Kankarbagh, Patna-20. ……………. Petitioner Versus 1. The State Of Bihar through the Principal Secretary, Welfare Department, Government of Bihar, Patna. 2. The Managing Director, Bihar State Schedule Caste Cooperative Development Corporation Ltd. Malyanil Bhawan, Budha Colony, Patna. 3. The Secretary, Bihar State Schedule Caste Cooperative Development Corporation Ltd. Malyanil Bhawan, Budha Colony, Patna. 4. The District Executive Officer, Bihar State Schedule Caste Cooperative Development Corporation Ltd., Divisional Office, Munger. ……….. Respondents For the petitioner : Mr. Rajeev Kumar Verma, Sr. Advocate For the State ; Mr. Rakesh Kumar Sharma, A.C. to G.P. 23 For the Corporation : Mr. Priya Ranjan, Advocate. ---------------------------------- 5 23.08.2011 Heard learned counsel for the petitioner and the learned counsel for the respondent Bihar State Schedule Caste Cooperative Development Corporation Ltd. (for short “the Corporation”). Petitioner has approached this Court assailing the order dated 22.10.2010 (Annexure-1) whereby the petitioner has been removed from functioning as Incharge Regional Organiser (a Class-III post). Setting of facts giving rise to the present application are as under: Petitioner was appointed on the post of Anusewak/Peon in the Corporation on 26.4.1984. At the time of joining the post, he was a matriculate. In the month of October, 1984, an order was passed by the Managing Director of the respondent Corporation that all Peons/Anusewaks who had 2 passed the matriculation examination were allowed to discharge the duties of Incharge Regional Organiser in their own pay scale but shall draw additional pay of Rs. 100/-. It is the case of the petitioner that since then he has been working as the Incharge Regional Organiser. It is the case of the petitioner that from time to time, his case for regular promotion on Class-III post was recommended by the Subordinate Officers. Reliance in this regard, has been placed on Annexures- 3, 4 and 5. In the year 1989, a seniority list (Annexure-10) of Anusewak/Peon employed in the Corporation was prepared and circulated. The petitioner figured at Sl. No. 86. It is his case that several persons who were appointed as Anusewak after him and were thus juniors to him in the said seniority list were considered and promoted as Regional Organiser on substantive basis whereas the petitioner was denied such consideration. It is the stand of the petitioner that he sought information under the Right to Information Act whereafter the respondent supplied the list of Peons/Anusewaks who were considered and promoted to Class- III post of Regional Organiser. Relying on Annexure-11, learned counsel for the petitioner has asserted that several persons junior to him in the cadre of Anusewak, such as M/s Sundar Lal (Sl. No. 87), Ram Babu (Sl. No. 92), Pradeep Kumar (Sl. No. 94), Rajendra Prasad (Sl. No. 95), Bhudeo Mohali (Sl. No. 104, Mrigendra Kumar Singh (Sl. No. 105), Sheikh Jalaluddin (Sl. No. 107), Satyadeo Choudhary (Sl. No. 108) and Hazarilal Choudhary (Sl. No. 111) were promoted to class-III posts. It is 3 contended that some of them were having lesser educational qualification than the petitioner yet the respondents considered and promoted them to Class-III post whereas the petitioner was declined the aforesaid consideration. It is submitted that such discrimination, in the matter of grant of promotion, is wholly impermissible in law. Reliance in this regard has been placed on a judgment of this Court since reported in 2011 (1) P.L.J.R. 555. It is contended that in passing the order contained in Annexure- 1, the respondents have acted in gross disregard to the aforesaid position in law. The matter was considered and by order dated 14.2.2011, this Court, noticing the said submission of the petitioner, directed the respondents to file counter affidavit. A counter affidavit has been filed on behalf of the respondent Corporation. Learned counsel for the respondent Corporation states that the stand of the petitioner that persons junior to him in the cadre of Peon have been considered and promoted to Class-III post are not under dispute. Petitioner was allowed to function on Incharge basis as Regional Organiser continuously since 1991. This factum is also not under dispute. It is contended that the materials on record are inadequate to show or demonstrate that those claimed to be junior to petitioner were considered and promoted under the category to which the petitioner belongs (unreserved). It is also submitted that considering the fact that he was not granted any promotion since the date of his engagement/appointment as Peon, the 4 respondents have already considered and granted him two promotions/upgradations of scale in terms of Assured Career Progression Scheme implemented in the respondent Corporation. It is also contended that the persons who are said to have been considered and promoted do not belong to the category to which the petitioner belongs. Having heard the parties and on perusal of the materials on record, it appears that there is no dispute with regard to following facts: (i) Petitioner was appointed as Anusewak/Peon on 26.4.1984. (ii) At the time of his appointment, he was matriculate. (iii) Under the orders of the respondent Corporation, petitioner had been continuously discharging duties of Regional Organiser on Incharge basis since 1991. (iv) The respondents came out with a gradation list in 1989 (Annexure-10) wherein the name of the petitioner figures at Sl. No. 86. (v) Persons such as Sundar Lal (Sl. No. 87), Ram Babu (Sl. No. 92), Pradeep Kumar (Sl. No. 94), Rajendra Prasad (Sl. No. 95), Bhudeo Mohali (Sl. No. 104, Mrigendra Kumar Singh (Sl. No. 105), Sheikh Jalaluddin (Sl. No. 107), Satyadeo Choudhary (Sl. No. 108) and Hazarilal 5 Choudhary (Sll. No. 111) are junior to the petitioner in the said gradation list. (vi) Some of those persons who were considered and promoted in Class-III post had lesser educational qualification than the petitioner. (vii) Annexure-11 is another document emanating from the respondents which confirm that those persons whose names figure in the gradation list after the petitioner have already been considered and promoted to the post of Regional Organiser (a Class-III post) under respondent Corporation. If the aforesaid facts are not in dispute, then the claim of the petitioner for consideration and promotion to the post of Regional Organiser (a Class III post) seems to be wholly justified. In the case at hand, admittedly persons who joined the service subsequent to the petitioner and some of them having lesser educational qualification have already been considered and promoted to Class-III posts. The respondents were wholly unjustified in ignoring consideration of the case of the petitioner for promotion to the post of Regional Organiser (a Class-III post) under the respondent Corporation. Grant of benefits under ACP, in my view, would not change the legal position. What matters in the service is the status. In case petitioner is granted promotion on substantive basis then the respondents can modify grant of those benefits in accordance with the scheme. An employee has 6 a constitutional right of his consideration for grant of promotion, particularly, when persons junior to him have already been considered and promoted. The respondents in place of considering him for grant of regular promotion to the post of Regional Organiser (a Class-III post), by the impugned order, sought to revert him to the post of Peon. In view of the facts emerging on perusal of the records and the position in law, the said order as contained in Annexure-1 is held not sustainable in law and is, accordingly, quashed. The writ application is disposed of by the following order: Let the respondents consider the case of the petitioner for grant of regular promotion on the post of Regional Organiser (Class III post) considering his position in the gradation list as also the fact that the persons junior to him have already been considered to Class-III post. The respondent shall complete the consideration within three (03) months from the date of receipt/production of a copy of this order. pkj ( Kishore K. Mandal, J.)