IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1360 of 1997 RAM CHANDRA CHAUBEY, son of Keshaw Chaubey, resident of village and Post Mangra, Via Nasriganj, District Rohtas (Sasaram) … Petitioner Versus 1. THE STATE OF BIHAR 2. The Secretary cum Commissioner, Home (Jail) Department, Old Secretariat, Patna-800 001 3. The Inspector General of Prison, Bihar, Old Secretariat, Patna-800 001 4. The A.I.G. Prisons, Old Secretariat, Patna- 800 001 5. The Superintendent, Central Jail, Buxar 6. Ghurul Dusadh through Superintendent, Patna Central Jail, Patna 7. Kailash Yadav through Superintendent, Buxar Central Jail, Buxar 8. Lal Bachan through Superintendent, Chapra, District Jai, Chapra … Respondents ----------- 5. 19.5.2011 Heard learned counsel for the petitioner. No one appears for the respondents. In this writ application the petitioner has prayed for the following relief: “That the present writ application has been preferred for issuance of an appropriate writ or writs for quashing the promotion list Gyapank 3647 dated 10.12.1996 prepared by the Superintendent Central Jail, Buxar as contained in Annexure 3 for the promotion of Jail warders to the post of Head Warders and for a direction to the respondents concerned to constitute a fresh 2 Board for promotion and the further prayer is for a direction to give second time bound promotion.” Learned counsel for the petitioner with regard to the aforementioned relief would submit that the entire exercise of promotion on the post of Warder to Head Warder is vitiated on account of violation of the Government circular dated 23.10.1981, inasmuch as the same had required constitution of a Selection Committee of three Central Jail Superintendents, whereas promotion order has been issued on the basis of selection and recommendation made by the Committee of only one Central Jail Superintendent and two other Jail Superintendents. This submission of the learned counsel for the petitioner has to be only noted for its being rejected. Annexure 2, the circular dated 23.10.1981 being an executive instruction issued by the Home Police Department was capable of being modified by the Home Police Department and from Annexure „A‟ to the counter affidavit it would transpire that the said circular dated 23.10.1981 was superseded replacing 3 the earlier Committee of three Central Jail Superintendents by a Committee of one Central Jail Superintendent and two other Jail Superintendents. In that view of the matter, this Court would not find any infirmity in the selection process undertaken for considering the promotion of all eligible Warders. It has to be also noted that the constitution of Selection Committee in which the petitioner also had participated by appearing in the selection test cannot be challenged by him. As a law on this respect is well settled that a person having taking chance to appear before a Selection Committee cannot be subsequently turned around and cannot be challenged the constitution of Selection Committee. Reference in this connection may be made to the case of Apex Court in the case of Madan Lal & ors. vs. State of Jammu and Kashmir & ors., reported in AIR 1995 S.C. 1088, wherein it was held as follows: “8. … … The petitioners also appeared at the oral interview conducted by the concerned Members of the Commission who interviewed 4 the petitioners as well as the concerned contesting respondents. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, that they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview then, only because the result of the interview is not palatable to him he cannot turn round and subsequently contend that the process of interview was unfair or Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, AIR 1986 SC 1043, it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared a the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner. 9. Therefore, the result of the interview test on merits cannot be successfully challenged by a 5 candidate who takes a chance to get selected at the said interview and who ultimately finds himself to be unsuccessful.” The next submission of the learned counsel for the petitioner as with regard to individual consideration of respondents no. 6, 7 and 8 would also not inspire any confidence, inasmuch as what has been said about respondent no.6 in paragraph 11 to the following extent: “That the petitioner humbly submits that a Warder not within the command of Central Jail Buxar namely Ghurul Dusadh has also been selected for promotion who is at present working as Warder in Central Jail, Patna. It is relevant to mention here that the Central Jail, Patna is not within the command of Central Jail, Buxar rather being a Central Jail the Patna Central Jail has its own defined command other than the area within the command of Central Jail, Buxar which clearly shows that irregularity has been committed in considering the promotion matter.” has been answered suitably in the counter affidavit in paragraph 17 which reads as follows: 6 “ That the statement made in paragraph no.11 of the writ petition is misconceived. It is stated that the petitioner has created a dim and confused picture regarding Warder Ghurul Dusadh. Actually, warder Ghurul Dusadh joined as Jail Warder in Buxar Circle on 29.10.1966. The said Ghurul Dusadh has been drawing his salary and other allowance from Central Jail, Buxar. The aforesaid Warder has been transferred time to time lawfully in other jails of Buxar Circle. The submission of the petitioner that Ghurul Dusadh is at present working as Warder at Central Jail, Patna is fabricated and concocted and there is no weight and force in this submission. It is relevant to mention here that Ghurul Dusadh was elected Treasurer of Bihar Jail Mens Association the Inspector General of Prison, Bihar ordered him to join at Central Jail, Patna for looking after the affairs of Union. Thereafter, Warder, Ghurul Dusadh requested and prayed to the Inspector General, Prison, Bihar to continue at Central Jail, Buxar due to complicated problem of his family. The said petition has been pending before the Inspector General, Prison and the Warder 7 Ghurul Dusadh has been working at Central Jail, Buxar. He was promoted legally to the post of Head Warder without any irregularity. Therefore, the petitioner has put an imaginary and contradictory picture to make his aforesaid claim meaningful and bonafide.” From the reading of the aforementioned clear and categorical averment of the respondents it becomes clear that respondent no.6 Ghurul Dusadh was actually in the cadre of Jail Warder of Central Jail, Buxar and he had been only posted at Patna after he had become the office bearer of Bihar Jail Association. Such posting of respondent no.6 would not change his cadre and therefore, he had been correctly allowed to appear with all other Warders of the Central Jail, Buxar. In that view of the matter this Court does not find any error in promotion of respondent no.6. Counsel next has contended as with regard to respondent no.7 that his order of promotion was also bad because he did not know reading and writing. The averment made by the petitioner to this extent in 8 paragraph 12 of the writ application has been categorically denied by the official respondent in paragraph 18 wherein it has been stated that respondent no.7 was well versed with reading and writing. Counsel for the petitioner, however, would submit that the respondents in support of this stand ought to have produced the answer book of respondent no.7 which he had written in the departmental examination for earning his promotion as has been done by producing the answer books of the petitioner. In the considered opinion of this Court the said submission of the learned counsel for the petitioner does not merit acceptance for the simple reason that it was for the Selection Committee to examine the capability of all the Warders and if on over all consideration the Selection Committee had found the respondent no.7 to have fulfilled the terms and conditions of such promotion, the same cannot be interfered on mere ipsi dixit of the petitioner that respondent no.7 was not having any knowledge of reading and writing. Be that as it may, respondent no.3 9 will verify this aspect by looking into the answer book of respondent no.7 and if it is found that there is an answer book written by respondent no.7 he will pass an order reiterating the promotion of respondent no.7 but he finds that respondent no.7 is not at all aware of reading and writing his such promotion has definitely to be cancelled. This Court, however, must indicate that before taking any adverse decision against respondent no.7 he must be given notice and/or opportunity of personal hearing. Learned counsel for the petitioner next contended about illegality in the promotion of respondent no.8 as with regard to whom it has been stated that he (respondent no.8) was having a chequered service record and in fact was having an order of punishment against him but ignoring the same he was given such promotion. It has to be noted that such statement of the petitioner in paragraph 15 of the writ application is itself tentative, inasmuch as it has been mentioned therein that after respondent no.8 was inflicted such an order 10 of punishment, he was later on reinstated. If the effect of such reinstatement was taking away the impact of earlier order of suspension which had led to punishment, the same could not have adversely affected in considering his case for promotion, inasmuch as he will be deemed to be free from any blemish. To that extent the respondents also have explained in paragraph 20 of the counter affidavit that respondent no.8 had appeared in the examination and had fulfilled all the prescribed requirements in the examination and in consideration of his case he was placed in the waiting list alongwith three others in anticipation of future vacancy. Normally this aspect should have ended here but then the petitioner has a grievance that the same treatment was not given to him while considering his second time bound promotion. The grievance of the petitioner as with regard to second time bound promotion in fact surfaces mostly by a pleading made in reply to the counter affidavit, wherein it has been claimed that alike respondent no.8 his order of 11 punishment also has been set aside and therefore, his service record had also become free from any blemish. The respondents in fact in the counter affidavit have taken a specific stand that the service record of the petitioner was not clean, inasmuch as the order of punishment against him of withholding 15 days salary as a disciplinary measure, therefore, was still there which disentitled him for being considered for promotion. In fact this aspect of the matter would require further investigation at the level of respondent no.3 and if it is found by the authority that respondent no.8 despite having some adverse service record including the order of punishment was given a regular promotion and the petitioner‟s order of punishment having been set aside/ recalled had still been used against him in denying his second time bound promotion, he would pass necessary order both with regard to the petitioner as also respondent no.8 but again only after giving an opportunity of hearing to respondent no.8. It has, however, to be made clear 12 that the respondents have treated the date of entry of the petitioner in the cadre of Warder as 10.4.1971 which according to the learned counsel for the petitioner is by omitting his earlier services from the year 1963. The respondents, therefore, would look into this aspect whether the petitioner was entitled for counting his service on the post of Warder from 1963 or from 10.4.1971 and if it is found that the petitioner‟s entry in the cadre was 8.4.1963, the respondents would consider the case of the petitioner for grant of second time bound promotion as has been also indicated in the counter affidavit but if it is found that the petitioner‟s entry in the cadre of Warder was only on 10.4.1971 then he will be automatically ruled out for grant of second time bound promotion, inasmuch as the period of twenty five years being compulsory for such promotion, had come on 10.4.1996, whereas the scheme of time bound promotion has been abolished with effect from 1.1.1996. It has to be however kept in mind that the respondents themselves have taken a 13 stand in the counter affidavit that the case of the petitioner for grant of second time bound promotion was under consideration and therefore, the respondents would be under obligation to consider the case of the petitioner strictly in accordance with law and in the light of the observations made above in this order. In the result, this application is allowed in part to the extent indicated above. (Mihir Kumar Jha,J.) Surendra/