IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8673 of 1996 -------- In the matter of an application under Article 226 of the Constitution of India. -------- KAPILESHWAR JHA SON OF LATE RAMESHWAR JHA RESIDENT OF VILLAGE SABOUR, P.S. KOTWALI, DISTRICT BHAGALPUR. __________ PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, AGRICULTURE DEPARTMENT, NEW SECRETARIAT, VIKASH BHAWAN, PATNA. 2. THE ADDITIONAL SECRETARY, AGRICULTURE DEPARTMENT, GOVT. OF BIHAR, PATNA. 3. THE DEPUTY SECRETARY, AGRICULTURE DEPARTMENT, GOVT. OF BIHAR, PATNA. 4. THE DIRECTOR, HORTICULTURE, DIRECTORATE OF HORTICULTURE, AGRICULTURE DEPARTMENT, GOVT. OF BIHAR, OFFICE AT BARRACK NO. 13, MAIN SECRETARIAT, PATNA. 5. THE COMMISSIONER AND SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVT. OF BIHAR, PATNA. 6. SHRI YUGAL KISHORE CHOUDHARY (NAME OF FATHER NOT KNOWN TO THE PETITIONER) REGISTRAR, AT PRESENT POSTED AS ACCOUNTS OFFICER, DIRECTORATE OF AGRICULTURE, NEW SECRETARIAT, PATNA. _________ RESPONDENTS ----------- For the Petitioner :- M/S. Yogendra Mishra, Sr. Advocate & Ramesh Kumar Chaudhary For the State :- Mr. G. P. IV. ------ P R E S E N T THE HON’BLE MR. JUSTICE AJAY KUMAR TRIPATHI. - 2 - A.K.Tripathi,J. Annexure-6 dated 25.06.1996 is the order under challenge in the present writ application. Petitioner wants quashing of the same with a direction upon the respondents to promote him to the post of Accounts Officer-cum-Administrative Officer with effect from 22.09.1981. 2. Annexure-6 is the order passed by the Secretary, Agriculture Department which is a speaking order passed on the direction of the High Court issued in C.W.J.C. No. 8224 of 1994. Petitioner had earlier approached the High Curt in the aforesaid writ application and the writ application was disposed of with a direction upon the Secretary, Agriculture Department to decide the claim of the petitioner which has been decided and rejected for the reasons indicated in Annexure-6. This is the background under which present writ application has come to be filed seeking quashing of the said decision. 3. The background facts are that the department of Horticulture was a wing of the Agriculture Department before bifurcation and its - 3 - creation as a separate wing. The pay scale attached to such post was that of a Mufassil level. Petitioner was working in the department when in the year 1981 post of Accounts Officer-cum-Administrative Officer in the pay scale of Rs.2200-4000 was created and the said post was required to be filled up by promotion from the Head Clerk. Petitioner was the senior most Head Clerk and, therefore, vide notification dated 22.09.1981 he was deputed to act and perform the duty of the post of Accounts Officer-cum-Administrative Officer with a stipulation that petitioner will draw his own scale of pay. The said notification has been annexed as annexure-2. Since the petitioner continued to work on that post for a long time, he made a claim for being promoted and posted in substantive capacity but it was not done. 4. Vide notification dated 07.11.1989 State Government established a separate directorate for Horticulture. A Joint Cadre Act was enacted for the Assistants of the Secretariat and other attached offices but the Assistants of the directorate of Horticulture were not included in the list as they were being treated - 4 - as a Mufassil office. Later on respondent no. 6 who was promoted to the post of Registrar carrying the pay scale of Rs.2000-3800 was transferred to the Agriculture Department. He came to be notified on the post of Accounts Officer-cum-Administrative Officer in the pay scale of Rs.2200-4000 by notification dated 22.04.1994 which is annexure-4 to the writ application. Since the said private respondent came to be posted in a substantive capacity, the petitioner was reverted to the substantive post of Head Clerk. This led to filing of the earlier writ application which came to be disposed of with a direction upon the respondents to take a decision by passing a speaking order. Annexure-6 is the outcome of the said decision. 5. Submission of the learned Senior Counsel for the petitioner is that while passing speaking order, contained in annexure-6, the Secretary overlooked the observation of the High Court given in the earlier writ application and because of the same serious prejudice has been caused to the petitioner to his claim of being promoted on the post of Accounts Officer-cum- Administrative Officer in a substantive capacity. - 5 - According to him the vacancy related to the year 1981. His claim also related to the year 1981 and since separate directorate of Horticulture Department was not created in the year 1981, therefore, the subsequent bifurcation and creation of separate cadre in Horticulture will have no effect on the right of the petitioner to claim benefit of promotion in a substantive capacity. 6. Counter affidavit on behalf of the State is in support of the decision taken by the Secretary. According to them not only the service history of the petitioner has been rightly traced but the reason for rejection of the claim of the petitioner has also been indicated therein. It is the stand of the State that due to exigencies of service petitioner was posted in the post on an officiating basis in the year concerned with a clear stipulation that he will continue to draw the same pay scale as that of the Head Clerk. Pay scale of the petitioner as Head Clerk was Rs.1500-2750, whereas that of Accounts Officer-cum-Administrative Officer was Rs.2200-4000. There are many a posts in between the two posts and the petitioner cannot be given the - 6 - benefit of jumps to the post of Accounts Officer-cum- Administrative Officer without promotions having been granted to other posts. That was the reason why in the notification issued by the respondents petitioner was asked to officiate on the said post with clear stipulation that the petitioner will draw the same pay scale as that of a Head Clerk, which he continued to do. These facts cannot be disputed in light of the orders passed by the State in this regard. In addition, the stand of the petitioner that the Horticulture Department was created as a separate Directorate and, therefore, persons of the Agriculture Department could not be brought into that place and posted ignoring the claim of the petitioner is misplaced. There is a clear and categorical finding that at the relevant period necessary notification had not been issued with separate budgetary allocation and Heads when the Department of Horticulture had been created. Therefore, it continued to be the part and parcel of the Agriculture Department of Bihar. 7. The facts being what they are, even otherwise the petitioner did not have a substantive claim for promotion as a matter of right. He could at - 7 - best be considered for promotion on the post, if he was eligible along with other persons to get that post in a substantive capacity. There is no denial by the petitioner that there are other posts as well between the post of Head Clerk and the Accounts Officer-cum- Administrative Officer and those ladders of promotion have also to be climbed before jumping to the post of Accounts Officer-cum-Administrative Officer. There is no foundation in the argument of the petitioner that there was bifurcation of the department or a separate Directorate was created at the relevant time and more so the Secretary of the Department has given a clear finding that there was no bifurcation and there has to be some weightage given as he is expected to know the affairs of his department best. 8. In absence of any substantive right having been created except the fact that the petitioner was made to officiate for exigencies of service, petitioner cannot be directed to be promoted on the post of Accounts Officer-cum- Administrative Officer in a substantive capacity in relation to the vacancy created in the year 1981. - 8 - 9. The impugned order contained in Annexure- 6 is based on sound and cogent reasons and does not warrant interference. This writ application is dismissed as such but without any cost. (Ajay Kumar Tripathi, J.) Patna High Court, The 17th January, 2011. AMIN / (N.A.F.R.)