IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11571 of 2007 SAHJA NAND SHARMA, son of late Hardeo Singh, resident of village – Nagar Bihta, P S – Bihta, District – Patna, at present posted as Excise Constable at Arrah(Bhojpur) Versus 1. THE STATE OF BIHAR. 2. The Commissioner cum Secretary, Department of Excise, Government of Bihar, Patna. 3. The Deputy Commissioner, Department of Excise, Excise Investigation Bureau, Bihar, Patna. 4. The Assistant Commissioner of Excise, New Secretariat, Bihar, Patna. ----------- For the petitioner: M/S. Khurshid Alam and Arun Kumar Bhagat. ------ 03. 1/9/2010 Petitioner was compelled to file the present writ application when his juniors were considered for promotion to the post of ASI (Excise) and his claim was given a go-by without any substantive reason. Last of the promotion granted on the basis of the recommendation of the DPC was passed in the year 2004. Petitioner has indicated in the writ application the names of such persons who were junior to him but had been given promotion. He pleads discrimination on the face of record. In the counter affidavit which has come to be filed on behalf of the respondents, stand has been taken that since the service of the petitioner was not confirmed, therefore, his case could not be taken up by the DPC in the year 2004. The other reason indicated in the counter affidavit is that because of age or the date of birth of the petitioner, even though petitioner joined the service on the same date as some of those other persons who were granted promotion, they had to figure higher in the so-called seniority list vis-à-vis the petitioner. In the rejoinder which has come to be filed, the petitioner 2 has rubbished the claim of the respondents with regard to seniority. He has categorically stated in para 6 of the rejoinder that the gradation list published by the Department of Excise as constables shows the name of the petitioner at serial no. 605 whereas the name of Chandrashekhar Prasad and Umesh Prasad Srivastava stood at serial nos. 620 and 622. If that is so, then the innovation in giving so-called seniority to atleast these two persons seems to be motivated. Petitioner has also brought on record the order dated 19.11.2008 by virtue of which the service of the petitioner has been confirmed. The said notification No. 867 is annexed as Annexure-5 to the rejoinder application. Petitioner contends that despite this confirmation of service, two other DPC was held in 2009 and 2010 and promotions have been granted to other persons, admittedly juniors but case of the petitioner was not considered again. The facts by themselves demonstrate that even though there is no impediment in the way of the petitioner’s promotion, respondents are giving a go-by to his claim by non-consideration. Confirmation of service is a proceeding or procedure which has to be carried out by the employer and an employee has no role to play. There is nothing in the counter affidavit to show that there was any special circumstance because of which there was delay in confirmation of service of the petitioner on the post. In most of the cases, it is apathy or lethargy on the part of the officials that order of confirmation is not issued even though employee completes the probation successfully and there is nothing recorded or pending against 3 him in this regard. From the stand taken by the respondents and the materials brought on record, it is a clear case of discrimination meted out against the petitioner rather than any rule or service condition coming in the way of the petitioner’s promotion. These facts stand fortified by the fact that even when the service of the petitioner got confirmed in the year 2008, his case was not taken up by the DPC either in 2009 or in 2010. If the stand of the State is accepted to be correct then the impediment in his promotion did not stand in his way atleast in the year 2009 and 2010. In the totality of the circumstances the Court is convinced that it is a case of discrimination and sheer apathy on the part of the respondents for which the petitioner cannot suffer. The writ application is allowed with a direction upon the Principal Secretary cum Commissioner, Department of Excise, Government of Bihar that the case of the petitioner should be put before the DPC for consideration of promotion within reasonable time frame. The DPC would be well advised to consider the claim of the petitioner for promotion from 2004 when his juniors were promoted and consequence thereof will flow. The writ application stands allowed in terms of the order passed above. rkp ( Ajay Kumar Tripathi, J.)