IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2665 of 2008 DINESH KUMAR NIKHIL, SON OF LATE SUNDER MAHTO, RESIDENT OF VILLAGE ISHWAR TOLA, MOKAMA GHAT, P.S. MOKAMA, DISTRICT PATNA. --- PETITIONER Versus 1. THE STATE OF BIHAR. 2. THE DIRECTOR GENERAL-CUM-INSPECTOR GENERAL OF POLICE, BIHAR, PATNA. 3. THE INSPECTOR GENERAL OF POLICE (HEAD QUARTER), BIHAR, PATNA. 4. THE DEPUTY INSPECTOR GENERAL OF POLICE (PERSONNEL), BIHAR, PATNA. 5. THE DEPUTY INSPECTOR GENERAL OF POLICE (HEAD QUARTER), BIHAR, PATNA. 6. THE SUPERINTENDENT OF POLICE (B), SPECIAL BRANCH, BIHAR, PATNA. For the petitioner :- Mr. Chitranjan Sinha, Senior Advocate For the State :- Mr. Sunil Kumar Mandal , S.C. 24 Mr. Bipin Kumar, A.C. to S.C. 24 ----------- 2 6.4.2011 The petitioner is aggrieved by Annexure-12, an order passed in compliance with the directions given in CWJC No. 1033 of 2005, disposed of on 12.10.2006 (Annexure-10). By the impugned order the petitioner’s representation to be considered for promotion to the post of A.S.I. (Typist) has been rejected on the ground that after the petitioner qualified in the preliminary examination held in 1998 for the purpose of promotion to the post of A.S.I. (Typist) in the Vigilance Department, the final test was not conducted and as such the petitioner was not promoted to the post of A.S.I. The petitioner has been posted and is working regularly as a Typist from the year 2000. The petitioner is aggrieved by the fact that his promotion was denied and others who were juniors to him namely Rajesh Kumar Sinha, Sakil Ahmad and Nilima Sahay were granted promotion. Although they too had not qualified in the preliminary examination. 2 Appendix 42 of the Bihar Police Manual Volume 3 deals with the rules for recruitment, training, examination and posting of Steno Sub-Inspectors, Steno Assistant Sub-Inspectors and Typist Assistants Sub-Inspectors of Police. A stand has been taken that the aforesaid persons namely Rajesh Kumar Sinha, Sakil Ahmad and Nilima Sahay were selected for the post of Assistant Sub-Inspectors (Typist) after they were given exemption under Appendix 42. Apparently the State is utilizing its powers as mentioned at paragraph 5 of the Appendix which reads as follows: “……………. However, suitable candidates may be exempted from these tests. The candidates shall be appointed by the Central Selection Board [Appendix 72 (2)]. They will serve as Stenographers for a period of 5 years, after which they will ordinarily revert to district work but before that they shall undergo the usual course of training at the Police Training College for ordinary Police duties. The Inspector General shall be at liberty to retain them as Stenographers for a longer period where necessary.” The appointment letters of Nilima Sahay and Rajesh Kumar Sinha are annexed as Annexures 6 and 8 to the writ application which indicate that these two persons were appointed as Assistant Sub-Inspectors (Typist) after giving them an exemption under Appendix 42 referred to and quoted above. While disposing of the representation as directed by this Court in its earlier order dated 12.10.2006, the D.I.G., Personnel has taken into consideration that Rajesh Kumar Sinha, Sakil Ahmad and Nilima Sahay were appointed on the said posts 3 and had worked for a long time as A.S.Is. It is said that they had proper educational qualification and since the Government had spent money in according them police training it was not expedient to revert them back to the post of Literate Constable. It is not in dispute that the petitioner is senior to the aforesaid three persons and he was also appointed as a Constable. The additional facts worth noting, which is also apparent from Annexure-12, is that the petitioner had passed the preliminary examination in the year 1998. He was also recommended for the post of A.S.I. (Typist). The petitioner had to undergo a typing examination to be finally declared to have been promoted to the said post. In the circumstances, I cannot understand how it would be justifiable in permitting juniors to work on the said post, after granting them exemption from appearing in any examination, whereas the petitioner’s claim was rejected, although he would stand on a better footing, since he did appear for the examination and pass the said examination. The fact that the typing examination was not held by the department is not the fault of the petitioner. It has been specifically stated at paragraph 6 that the petitioner is duly qualified and is efficient in Hindi and English typing. It is also stated that he has a good career and has received several letters of appreciation from his seniors. I, therefore, do not think that the reasons set out in Annexure-12 are sufficient to deprive the petitioner from being granted promotion. I accordingly, direct that the respondent no. 2 should consider the case of the petitioner for promotion on the post of 4 A.S.I. (Typist) from the date on which juniors to the petitioner have been granted promotion by making the said appointment himself or referring the case to the competent authority for consideration of the petitioner’s case. It has been stated in the counter affidavit that the respondents could not hold the examination because the new State of Jharkhand was created w.e.f. 15.11.2000. In reply to the aforesaid submissions it has been stated, that till this date vacancies exist, the stand of the State of Bihar that vacancies could not be determined because of bifurcation of the State is unfounded. The stand of the State that there is no provision for promotion to the post of A.S.I. (typist) stands vitiated in view of the provisions of Appendix 42, which indicates that the appointments of A.S.I. (typist) are made by way of promotion and holding of examination of those persons who are duly qualified to take the examination. I accordingly direct the respondents to consider the case of the petitioner and treat him at par with the juniors who were granted promotion, in accordance with law within a period of two months on receipt of this order. It is also made clear that although the petitioner would not be paid salary from the date on which he is making his claim i.e. in the year 1989 (date of promotion of the juniors), the services of the petitioner would be calculated on the said promotional post for the purposes of calculating his retiral benefits and other increments due on the said post. This writ application is thus, allowed. Sanjay ( Sheema Ali Khan, J.)