IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.630 of 2001 UMA SHANKAR MISHRA, SON OF LATE KRISHNADEO NARAIN MISHRA, RESIDENT OF QUARTER NO. B 3/55, BAILEY ROAD, PATNA, PRESENTLY POSTED AS CHIEF ENGINEER, SOUTH BIHAR WING, BUILDING CONSTRUCTION AND HOUSING DEPARTMENT, BIHAR, PATNA. ……….. PETITIONER. Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, BIHAR, PATNA. 2. THE SECRETARY, DEPARTMENT OF ROAD CONSTRUCTION, BIHAR, PATNA. 3. THE BIHAR PUBLIC SERVICE COMMISSION THROUGH ITS SECRETARY, BIHAR, PATNA. 4. RAJA RAM PRASAD, CHAIRMAN, BIHAR PUBLIC SERVICE COMMISSION, BIHAR, PATNA AND CHAIRMAN OF THE DEPARTMENTAL PROMOTION COMMITTEE. 5. MISHRI PRASAD PASWAN, ADDITIONAL SECRETARY, WELFARE DEPARTMENT, BIHAR, PATNA AND MEMBER OF THE DEPARTMENTAL PROMOTION COMMITTEE. 6. MADAN PRATAP SINGH, ENGINEER-IN-CHIEF –CUM- SPECIAL SECRETARY, ROAD CONSTRUCTION DEPARTMENT, BIHAR, PATNA AND MEMBER, DEPARTMENTAL PROMOTION COMMITTEE. 7. LALIT KUMAR SHRIVASTAVA, ENGINEER-IN-CHIEF –CUM- SPECIAL SECRETARY, WATER RESOURCES DEPARTMENT, BIHAR, PATNA AND MEMBER, DEPARTMENTAL PROMOTION COMMITTEE. ………….. RESPONDENTS. ----------- For the petitioner : - Mr. Raghav Prasad I, Advocate For the State : - Mr. Ansul, AC to SC 25. For the BPSC : - Mr. Mithilesh Kumar Singh, Advocate. 12/ 05.04.2011 This matter was listed on 28.3.2011 but by mistake 26.3.2011 has been mentioned. It is corrected as 28.3.2011. Heard counsel for the petitioner, the State and the BPSC. Counter affidavits, supplementary counter affidavits and rejoinder to these affidavits have been filed by the respondents and the petitioner. Initially the petitioner has filed this application 2 for quashing of recommendation dated 15.12.2000 made by the Departmental Promotion Committee for promotion from the post of Superintending Engineer to the post of Chief Engineer in the Road Construction Department and also for a direction to the respondents for considering his case for such promotion relaxing the resolution regarding Kalawadhi. The plea taken by the petitioner regarding relaxing Kalawadhi was that it is not a mandatory provision rather an executive resolution and as per the judgment of Hon’ble High Court in L.P.A. No. 1162 of 1996, the circular relating to Kalawadhi is a statutory provision framed under Article 309 of the Constitution. It is a mere Government circular, which Govt. itself has chosen not to follow at times, and in this respect Government has asked for amendment. So this circular cannot be construed in a manner, which can defeat the rights of the employees for being considered for promotion on the basis of their seniority. Right to be considered for promotion on the correct basis of seniority is part of the fundamental right under Article 16 and that right cannot be whittled, on the basis of mere administrative circular. In support of 3 this contention, petitioner has placed reliance on a decision reported in 2000 (2) B.L.J. 462 (Indradeo Narain Singh and Jhapsi Ram Vs. The State of Bihar and others). During the pendecny of the writ application, petitioner superannuated on 31.12.2011, as such he filed supplementary affidavit for modification of the relief, earlier prayed in the writ application, stating that on account of his superannuation the petitioner be granted notional promotion with retrospective effect from the date on which he assumed charge as Chief Engineer i.e. with effect from 13.7.2000, with all consequential benefits. Petitioner’s case is that after being appointed as Engineer Assistant on 8.7.1964 he was promoted as Assistant Engineer in December, 1971, as Executive Engineer in August, 1985 and as Superintending Engineer in April, 1999. His position in the gradation list of Executive Engineers prepared on 24.6.1997, was at serial no. 61 and in the gradation list of Superintending Engineer dated 15.7.2000 at serial no. 11. He was made incharge Chief Engineer in the 4 Building Construction Department on 13.7.2000, following all formalities of a regular promotion, such as vigilance clearance, favourable annual confidential reports, roaster clearance, availability of vacancy and seniority. He continued to discharge the duties of Incharge Chief Engineer since 13.7.2000 till the date of his superannuation. In the year, 2000 there were 17 sanctioned posts of Chief Engineer in the Road Construction Department. Out of those 17 posts, 12 were vacant, 9 for general category and 3 for reserved category. Requisition was sent by the Road Construction Department to BPSC for seeking recommendations for promotion to the post of Chief Engineer. The D.P.C. was held on 5.8.2000 and the recommendation was made on 15.12.2000. Five names were recommended in general category. One of the recommendee retired on 31.12.2000, as such effectively there was only 4 recommendations, still 5 posts remain vacant. Name of the petitioner was not considered for promotion for two reasons; (i) pending vigilance enquiry; and (ii) Kalawadhi. Counsel for the petitioner submits that as per 5 the government policy, for making recommendation for promotion, a list of anticipated vacancies has to be prepared and a list of candidates should be prepared for consideration, at least three times of the number of vacancies. Petitioner’s case is that this was not done. So far non-consideration of petitioner’s name on account of vigilance enquiry is concerned, the date on which considering was being made by the D.P.C. for promotion, petitioner was not charge sheeted in the vigilance case. In support of his contention, he has annexed the vigilance report dated 9.11.2000 as Annexure-1 to the rejoinder. This report indicates that prima facie there is no allegation against the petitioner, however, enquiry is going on. Counsel for the petitioner submits that it is well settled that commencement of the criminal proceeding will be with effect from the date of issuance of charge sheet and similarly in the departmental proceeding, the date on which the charge sheet is furnished to the delinquent. Simply because a vigilance enquiry was pending, this could not have been any presumption regarding pending of criminal case against the petitioner 6 and any reason for non-consideration of his name for promotion to the post of Chief Engineer. In support of his contention, petitioner has placed reliance on a decision reported in 1998(2) P.L.J.R. 440 (Shri Krishna Ram Vs. State of Bihar and others). On the point of non-completion of Kalawadhi, being one of the reason for non-consideration of his name for promotion, petitioner has made specific statement in para 19 of his writ application, giving reference of a judgment of this Court in L.P.A. No. 1162 of 1996, reproducing the finding recorded in this judgment, which is as follows:- “This Court further holds that in the matter of promotion to the post of Chief Engineer, the cases of eligible candidates must be considered on the basis of their seniority in the initial grade of service namely in the grade of the Executive Engineer. In the matter of considering the cases of eligible candidates for such promotion the respondents authorities need not take into consideration the principle of Kalawadhi which the respondents have not followed in many cases and in respect of which the respondents have written to the authorities for altering the period of Kalawadhi. The circular relating to Kalawadhi is not under any statute nor is framed under Article 309 of the Constitution. It is a mere Government circular which even the Government does not choose to follow and in respect of which Government has asked for amendment. So this circular cannot be construed in a manner which can defeat 7 the rights of the employees for being considered for promotion on the basis of their seniority as determined by Supreme Court Judgment. Right to be considered for promotion on the correct basis of seniority is part of the fundamental right under Article 16. That right cannot be whittled down on the basis of mere administrative circular”. Further the petitioner has also placed reliance on a reported decision in B.L.J. 2000(2) page 462 (Indradeo Narain Singh and Jhapsi Ram Vs. The State of Bihar and others). In this judgment, what should be the mode of consideration, in case officer’s with requisite Kalawadhi are not available for filling up the promotional posts, has been discussed in para 23 and 24 of the Judgment. Para 23 and 24 of the judgment are quoted as follows;- “23. There remains one other matter to be considered. Questions arise as to the procedure to be followed in cases where sufficient number of officers with the requisite Kalwadhi are not available for filling up the promotional posts. So far as the State of Bihar is concerned, several resolutions of the Government on this subject were published from time to time but the resolution of the Government of Bihar in the Department of Personnel and Administrative Reforms dated 20th October, 1982 is applicable to the parties before us. By the said resolution several earlier resolutions enumerated in the resolution were superseded and in accordance with the decision taken by the Cabinet on 19th 8 October, 1982 a procedure was prescribed. According to the Notification dated 20th October 1982 while considering promotion at any level, the cases of those officers who have requisite minimum prescribed working experience (Kalawadhi) at the level just below the post to which they are sought to be promoted, shall be considered first. After doing so, the first transaction shall be considered to be closed. 24. After the first transaction, if vacancies still remains to be filled up by promotion, then the prescribed minimum working experience maybe relaxed to such an extent that the number of candidates who come within the zone of consideration are not more than three times the number of posts which remain vacant. While granting such relaxation in work experience, candidates belonging to Scheduled Caste, Scheduled Tribe category shall be granted relaxation which shall be one year more than the relaxation granted to members of general category. For granting such relaxation so as to bring the candidates within the zone of consideration in the second transaction, the concerned Department shall first get the approval of the Minister of the Department and thereafter obtain the consent of the Chief Minister through the Personnel Department.” In sum and substance the contention of the petitioner is that on both the grounds due to which his name was not recommended by the D.P.C. were non- existent grounds as per the decisions relied upon by the petitioner. 9 Supplementary counter affidavits have been filed on behalf of BPSC as well as the State. In both the supplementary counter affidavits the reason for not considering the petitioner’s case is that the petitioner was not exonerated from the charges of the Vigilance case as informed by the Department vide letter no. 3247 dated 20.4.1990. It seems that the subsequent letter which has been annexed by the petitioner dated 9.11.2000 annexed as Annexure-1 to the rejoinder, was not also referred by the Department to the D.P.C. In the supplementary counter affidavit filed by the Respondents 3 and 4, only reference is of Department’s Letter No. 3247 dated 20.4.1990 due to which the Committee did not find the petitioner fit for promotion to the post of Chief Engineer. Subsequent to that vigilance report was there in favour of the petitioner showing that till 2000 in the vigilance enquiry no prima facie charge was found against the petitioner. The statement made in this affidavit indicates that the case of petitioner has not been considered properly, mainly due to the reason of non-furnishing of relevant documents, as well as non-observance of Government 10 resolution in respect of Kalawadhi. In the supplementary counter affidavit filed by the State, it has been admitted that the State Govt. has reconsider the period of Kalawadhi for promotion in Govt. services and issued directions through the resolutions vide Memo No. 280 dated 5.7.2002 and also Memo No. 2129 dated 19.6.2007, but these resolutions of the Govt. relaxing the observance of Kalawadhi has not been beneficial to the petitioner for the reason that the petitioner had already retired on 31.12.2001 and there is no provision for retrospectively in these resolutions. Counsel for the petitioner has drawn my attention towards the Govt. resolution relating to the minimum Kalawadhi contained in resolution no. 1160 dated 20th October, 1982 issued by the Personnel and Administrative Reforms Department, Govt. of Bihar. Clause 4(ka) of this resolution indicates that in case sufficient number of officers with requisite Kalawadhi are not available for filling up the promotional post in that case the prescribed minimum working experience should be relaxed to such an extent that the number of candidates are within the zone of consideration more 11 than three times, the number of vacancies, so that the post should not remain vacant. This resolution of Personnel and Administrative Reforms Department has been considered in the decision reported in B.L.J. 2000(2) page 462 in para 23 and 24 of the judgment. I find that the supplementary counter affidavits filed on behalf of the State as well as BPSC are not proper in the sense that Government’s own resolutions regarding Kalawadhi has not been properly dealt with in these counter affidavits. The provisions relating to relaxation of Kalawadhi was already there, much earlier to the superannuation of the petitioner in the year, 2001, but these were not taken into consideration. In case the resolution of Personnel and Administrative Reforms Department dated 20th October, 1982 would have been considered the case of petitioner, as well as other persons would have come within the consideration zone and they would have been recommended for promotion on the post of Chief Engineer. Now the petitioner superannuated and he can get benefit of only notional promotion, with all consequential financial benefits. Accordingly, this writ application is disposed 12 of, directing the Departmental Promotion Committee to consider petitioner’s case for promotion to the post of Chief Engineer. Since the petitioner has already retired from service, he shall be granted notional promotion and consequential monetary benefits thereof. The BPSC will consider the case of the petitioner and other similarly situated persons within a period of two months from the date of production/communication of the order and will make recommendation to the Govt. on which the Respondents-authorities of Road Construction Department will take decision within two months from the date of recommendation. DKS/ (Mridula Mishra, J.)