IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1440 of 2011 Dr. Jai Prakash Jha, S/o Sri S.D. Jha, resident of A/20, Police Colony, Anisabad, P.S. Gardanibagh, district Patna, presently posted and working as Deputy Chief, Cliams in the Office Bihar State Food & Civil Supplies Corporation Ltd. Sone Bhawan, Patna-800001. …Petitioner Versus 1. The State Of Bihar through Principal Secretary, Department of Food and Consumer Affairs, Govt. of Bihar, Old Secretariat, Patna. 2. The Principal Secretary, Department of Finance, Govt. of Bihar 3. The Managing Director, Bihar State Food & Civil Supplies Corporation Ltd. 5th Floor, Sone Bhawan,Patna 4. The Chief of Administration, Bihar State Food & Civil Supplies Corporation Ltd 5th Floor, Sone Bhawan,Patna 5. The Chief of Finance, Bihar State Food & Civil Supplies Corporation Ltd 5th Floor, Sone Bhawan,Patna 6. The Chief of Procurement, Bihar State Food & Civil Supplies Corporation Ltd 5th Floor, Sone Bhawan, Patna …Respondents For the petitioner :Mr. B.K.Kanth, Sr. Advocate, :Mr. Ranjeet Chaubey & Mr. J.P.Shaha For Res. Corporation :Mr.R.S.Pradhan, Sr. Adv. & Mr. A.N.Rai For the State :Mr.Digvijay Narayan Singh, AC to SC 9 ----------- 03. 01.07.2011 Heard learned counsel for the parties. Petitioner has filed the present application for quashment of resolution of the Selection Committee dated 26.10. 2009 (Annexure-7) and its communication to the petitioner by the Managing Director of the Bihar State Food & Civil Supplies Corporation Ltd.(for short ‘the Corporation’) as contained in annexure-8, whereby respondent(s) rejected the claim of promotion of the petitioner to the post of Chief in the Corporation. Background facts are as follows: Petitioner along with others are serving the Corporation on different posts and ultimately promoted to the post 2 of Deputy Chief. It is the case of the petitioner that he had acquired Master of Business Administration(MCA)degree from a recognized institution. Since there was stagnation in promotion of such officers who were serving the Corporation on senior post for long time, a writ application was filed in this Court by Bihar State Food Corporation Employees Union, Bihar & Jharkhand, vide CWJC No. 16210 of 2006. It was contended that several officers are/were stagnating on senior posts for a long period/time which had demotivating effects. This Court directed the petitioner-Union to furnish the list of such officers and thereafter the respondent Managing Director and Secretary of the Department of Food and Consumer Protection was/were directed to hold a joint meeting to resolve all issues and take appropriate decision within a stipulated time. Said order was passed on 31.03.2009 which is part of annexure-6/1. In the light of said direction of this Court, the matter was considered in the meeting of the officers of the Corporation and the Government. The claim of promotion of officers said to be stagnating at the level of Deputy Chief was/were rejected referring to and relying upon three circulars/notification(s) of the Government dated 14.3.1999, 31.3.99 and 19.12.2001 as well as the resolution of the government dated 13.2.2002. A perusal of the said consideration (Annexure-7) which was duly communicated to the petitioner by annexure-8, it appears that consideration for promotion of officers stagnating at the level of Deputy Chief to the post(s) of Chief was negated on the ground that three posts of Chief existing 3 in the Corporation was/were currently occupied by deputation of the officers belonging to Bihar Administrative Service. The consideration was thus denied on the ground that these three posts of Chief available in the Corporation was/were not vacant. The Committee also noted that the resolution of the government dated 10.04.1981 (Annexure-1) was an old resolution which was superseded by subsequent notification/resolution of the government. Let it be recorded that as per the resolution dated 10.04.1981 (Annexure-1), Class 1 and Class 2 posts were required to be filled up by eligible officers holding MBA degree from amongst the management pool itself to be prepared by the Bureau of Public Enterprises. Learned counsel for the petitioner has strenuously argued that the petitioner holds MBA degree. He is stagnating on the post of Deputy Chief since last ten years. As per the resolution of the government dated 10.04.1981, in the light of the circular/notification of the Bureau of Public Enterprises dated 18.3.1982 and 11.1.1990, his case was required to be considered for promotion to the next higher post of Chief. It has been contended relying on judgment of the Supreme Court in the case of Ajit Singh-II reported in 1999 Vol.7 SCC page 209 that right to be considered for promotion is now a constitutional right. An officer who is stagnating at the level of Deputy Chief for ten years has legitimate expectation of being considered for promotion in the light of the resolution of the government contained in annexure-1 and/or the Public Enterprises Bureau as contained in 4 annexure-2. Two sets of affidavits in reply have been filed by the respondent Corporation. No counter affidavit on behalf of respondents 1 & 2 has been filed. Paragraphs 5 & 6 of the supplementary counter affidavit read as under: 5. That, it is further stated and submitted that the aforesaid circulars find mentioned in the impugned order as contained at Annexure-8 which have been made basis for rejection of the claim of the petitioner for promotion to the post of Chief from Deputy Chief in the Corporation. 6. That, from perusal of the aforesaid circular, it transpires that aforesaid circulars were issued on different dates but, it does not appears that by succeeding circular, the earlier circulars has been repealed hence, while considering the claim of the petitioner, the reference of the four circulars have been made.” It is seen therefrom that the circular(s) contained in annexures-A, B & C to the supplementary counter affidavit was/were made foundation of the consideration. Bare perusal of the contents of the supplementary counter affidavit would show that the resolution of the government dated 10.04.1981 (Annexure- 1) was never superseded and/or modified/repealed. If that be the position, then the case of the petitioner requires to be considered afresh since the said resolution of the government will hold the field. There is force in the submission of the petitioner that the Committee constituted under orders of this Court committed apparent error in refusing to consider the case of the petitioner referring to the circular(s) which do not modify/repeal/alter the 5 resolution of the government dated 10.04.1981 (Annexure-1). Stand of the respondent-Corporation is also that there are three posts of Chief and presently all the posts are occupied by the deputationists belonging to the Bihar Administrative Service. The case of the petitioner would be considered once the post falls vacant and/or the incumbents are repatriated to their parent cadre/department. Having considered the submissions made on behalf of the parties and on perusal of materials on record, it appears that personnel like the petitioner are serving the Corporation for long period/time on the posts of Deputy Chief. They are stagnant on those posts/positions for long time. It further appears that seven (07) posts of Deputy Chief and three (03) posts of Chief exist in the Corporation. If all the three posts of Chief are allowed to be occupied by the officers of the government on deputation, then the same will have the effect of blocking avenues of promotion of the officers of the Corporation to the post(s) of Chief for all time to come. Obviously, this will have adverse impact on those officers of the Corporation who are holding post below the posts of Chief. A model employer, therefore, is required to provide adequate promotional avenue(s) for such officers of the Corporation. That apart, non consideration of their case would also be contrary to the resolution of the government dated 10.04.1981 (Annexure-1). The respondents, are therefore, required to take an appropriate decision in the matter so that the officers serving the Corporation and stagnating in the position next below to the post 6 of Chief get avenue of promotion to the post of Chief. Respondents may while taking such decision earmark adequate number of post(s) for in house officers like the petitioner. This will be in the interest of the Corporation and the officers like the petitioner. This will also be in line with the resolution of the government dated 10.04.1981 (Annexure-1). Mr. Pradhan, learned counsel of the Corporation assures the Court that the matter shall be considered by the Corporation and appropriate decision shall be taken in this regard. In view of aforesaid discussions and the fair stand taken by Mr. Pradhan, this Court disposes of this writ application by the following order: The minutes of the Selection Committee (Annexure-7) and communication thereof as contained in Annexure-8 are quashed and set aside. The case of the petitioner shall be considered afresh by the respondents in the light of observation(s) made hereinabove. The respondents shall complete the process of consideration within eight (08) weeks from the date of receipt/production of a copy of this order. hr ( Kishore K. Mandal )