IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10649 of 2002 SHOBHA KANT CHAUDHARY Versus THE STATE OF BIHAR & ORS ----------- 03 03.03.2009 Heard learned counsel for the petitioner and learned counsel for the State. Counter affidavit has been filed on behalf of respondents, sworn by an Officer of the rank of Deputy Secretary. This court, therefore, proceeds to dispose off this application at the stage of admission. The petitioner was appointed as an Overseer, came to be absorbed as a Junior Engineer on 7.1.1967. After long years of service, he came to be considered for promotion to the post of Assistant Engineer. The departmental promotion committee, at its meeting on 31.1.2001 made recommendation for promotion to the post of Assistant Engineer, which includes the name of the petitioner. It is his grievance that notwithstanding the same his name was struck off from the recommendation, when persons junior to him came to be promoted, but he remained deprived of the same. It is his further case, that a person junior to him in this recommendation came to this Court in C.W.J.C. No. 9756 of 2001 and only after the directions of this Court, to give effect to - 2 - the recommendation of the departmental promotion committee, the junior came to be promoted and the petitioner continued to be deprived only because he had not approached the Court. It is the specific case of the petitioner in paragraph-25 of the writ application, that he was found fit for promotion, that he had favourable character roll and that he had not been inflicted any major or minor punishment at any stage of his service career. The writ application encloses as Annexure-5, a copy of the order in C.W.J.C. No. 9756 of 2001, referred to above. It also encloses another order of this Court in C.W.J.C. No. 13561 of 2001 and 13638 of 2001 as Annexure-7. In C.W.J.C. No. 9756 of 2001, the respondents in their counter affidavit, admitted that the petitioner was fit for promotion, subject to vigilance clearance which was still awaited, that certain objections have been received from the Office of the Comptroller and Auditor General, regarding the illegal purchase and utilization of bitumen in various road divisions being investigated by the C.B.I. The Court framed the question as follows:- “ the question for consideration is whether on the ground of pendency of the general - 3 - enquiry/investigation in respect of the division at large promotion of the Officer can be withheld even though he has been found fit for promotion by the D.P.C..” The Court then referred to certain other orders in C.W.J.C. No. 5660 of 2000 and C.W.J.C. No. 5567 of 2001, where in identical circumstances the court observed that “unless a prima facie case is found against a person on general allegations, he should not be denied the promotion” and directions were given for consideration accordingly. The Court then observed that it was unable to appreciate while when similarly situated persons had been granted relief by the Court, the department should insist the rest to approach this Court with individual orders for similar relief. Directions were then issued to consider the case of the petitioner for promotion to the post of Assistant Engineer with effect from the date that his juniors may have been promoted from the due date. In C.W.J.C. No. 1356 of 2001 and C.W.J.C. No. 13638 of 2001, the Court again was considering the claim for promotion as Superintending Engineer and Assistant Engineer in the Road Construction Department to which the petitioner also belongs. The Court noticed that the - 4 - petitioners had been found fit for promotion by the D.P.C. and were being denied benefit of the same for alleged investigation with regard to the Bitumen scam. The Court noticed the earlier order that on general allegations consideration for promotion could not be denied. This Court noticed that the respondents had accepted the earlier decision of this Court on the issue and, therefore, there was no difficulty in granting similar treatment to those covered thereby. The defence of the vigilance clearance was taken by the State which did not find favour with the court, attributable to the lapses of the respondents themselves. The Court held that non-receipt of vigilance clearance could not stand in the way of promotion. Directions to consider the promotion of the petitioners within two weeks were then given, subject to vigilance clearance, with liberty that in the event vigilance clearance was refused the promotion may be withdrawn. The judgment concluded with the following extract “ It is expected that the department will consider other pending cases in accordance with its general stand, as indicated hereinabove, thus saving them of the harassment in coming to this Court and avoiding endless litigations”. This order was passed on - 5 - 28.11.2001. The counter affidavit of the respondents has been filed on 3.12.2002. Paragraph-3 of the same states that the deponent has gone through the contents of the writ application under reply. This obviously includes the orders of this Court in C.W.J.C. No. 9756 of 2001, C.W.J.C. No. 13561 of 2001 and C.W.J.C. No. 16638 of 2001. The deponent has also gone through the pleadings in paragraph-25 of the writ application. The counter affidavit implicitly acknowledges that the departmental promotion committee, on 31.12.2005 recommended his name for promotion, subject to vigilance clearance. At paragraph-7 of the counter affidavit the same rhetorical incantation of the respondents is made as noticed by this Court in the earlier orders, referred to above. However, the respondents have kept a safety valve for themselves, that he was being promoted notionally in view of the report of his involvement regarding bitumen scam and steps were being taken. The respondents in paragraph-13 of the counter- affidavit have not denied the specific assertion of the petitioner of his clean service record made in paragraph-25 of the writ application. - 6 - The petitioner is stated to have superannuated on 31.1.2002. Mr. Manglam, appearing on behalf of the petitioner submits that notwithstanding the statement made in paragraph-7 of the counter affidavit that the case of the petitioner was being conditionally considered for notional promotion, no promotion was given to the petitioner during his service tenure. The facts that emerge are that the petitioner was considered and found fit for promotion. There are no proceedings, minor or major pending against him on the date of such consideration. The counter affidavit is absolutely defenceless and urges nothing better than what has already been noticed in the earlier orders of this Court referred in more than one case referred to above. In fact, in the latter case this Court had observed that the department shall look into the cases of all those similarly covered without requiring individual cases to be filed. This Court has no hesitation in holding that the respondents have indulged in luxury litigation at the tax payers expense. It is, as if the respondents do not wish to accept responsibility for their statements in a proceeding before this court - 7 - but take it very casually. They do not answer the claims in the writ petition supported by orders of this Court and yet seek to deny the relief. The hapless petitioner came to this Court in 2002 by way of the present writ application. The respondents preferred to bask in the shadow of the protection of the pendency of the writ application not to wake up from their stupor even after the filing of the writ petition with supporting materials. The petitioner was denied promotion to the post of Assistant Engineer. He has not worked on the promotional post. The question arises of the relief to be given. If he has not worked on the higher post, this Court may find it difficult to grant him salary of that post from the Government coffers. But the petitioner has clearly been wronged. Someone has wronged him. Someone has to be accountable. Those who took the petitioner casually are answerable for this. This Court, therefore, issues a direction to the respondent, the State of Bihar, to pay the entire arrears of salary of the post of Assistant Engineer to the petitioner from the date that his junior has been promoted in pursuance of the recommendation of the departmental promotion - 8 - committee till the date of his superannuation less what may have already been paid. The respondent State is also obliged to re-fix his pension treating him to have retired from the post of Assistant Engineer assessing his last pay drawn on that basis and giving the mandatory benefits of the same in accordance with law. Insofar as, arrears of the difference of salary for the post of Assistant Engineer is concerned, naturally, the State of Bihar is not liable to pay the same. However, to expedite matters, the State shall pay the same to the petitioner when the amount shall be recovered from the salary of the auther of the counter affidavit who adopted such casual approach to the entire matter notwithstanding adequate materials annexed to the writ petition and chose not to answer any of them. The order has been dictated in open Court in presence of the counsels for the parties. This Court considers it proper to also record that a suitable accommodation was given to the State to obtain fresh instructions unsuccessfully. Learned counsel for the State submits that in pursuance of such accommodation he did send a written communication dated 27.2.2009 to the respondents, but has received no response. - 9 - Let the respondents comply the present order, both on the issue of promotion and payment of full salary for the post of Assistant Engineer within a maximum period of six weeks from the date of receipt and represent of a copy of this order. P.K. (Navin Sinha, J.)