IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6742 of 2007 NAND KISHORE JHA son of Late Ganesh Jha, resident of Bishunpur P.S. Balia District Begusrai At present working as Excise Constable C/O Superintendent of Excise, Chapra. Versus 1.THE STATE OF BIHAR through its Chief Secretary, Bihar Patna. 2.The Secretary, Department of Excise, Bihar Patna. 3.The Commissioner, Department of Excise, Bihar, Patna. 4.The Joint Commissioner, Department of Excise, Bihar, Patna. 5.The Collector, Darbhanga. 6.The Superintendent of Excise, Darbhanga. 7.The Superintendent of Excise, Chapra. ----------- 3 7/7/2009 Heard counsel for the petitioner and counsel for the State. The prayer in this writ application of the petitioner reads as follows:- “(i) For issuance of an appropriate writ/writs Rule/direction to the respondent authorities to consider the case of the petitioner for promotion to the post of Assistant Sub-Inspector of Excise, against the vacancies occurred between 1994 to 2001. (ii) And also for a direction to the respondents that crossing of the age of 50 years will not come in the way for being considered the case of the petitioner for promotion to the post of Assistant Sub-Inspector of Excise.” It has to be noted that during pendency of this writ application which was filed on 22.5.2007, the petitioner had also filed 2 I.A. No. 4334 of 2008 for assailing an order dated 27.10.2004 (Annexure-10) rejecting his claim for promotion on the post of Assistant Sub-Inspector of Excise and the said interlocutory application was also directed to be considered along with this writ application by an order of this Court dated 24.7.2008. In view of the fact that the order dated 27.10.2004 passed by the Excise Commissioner is only an incidental order directly related to the relief claimed by the petitioner in this writ application and the respondents have also filed their supplementary counter affidavit to the I.A. No. 4334 of 2008, the prayer made for the additional relief of quashing the said order dated 27.10.2004 is allowed. Counsel for the petitioner has submitted that the case of the petitioner for promotion on the post of Assistant Sub- Inspector of Excise (A.S.I.) has been considered in a discriminatory manner and the respondents have rejected the case of the petitioner on a wholly arbitrary ground by choosing to make on artificial 3 distinction in his case while allowing similar promotion in the case of several others including one, namely, Md. Zahir. From the materials available on record, it is not in doubt that the petitioner was appointed as a Constable in the Department of Excise in the year 1975 and had a complete satisfactory service record which led to his confirmation on the post of Constable on 28.7.1989 and since he was not given any promotion in a span of ten years of his service, he was also given time bound promotion with effect from 1.12.1987. It is the case of the petitioner and not controverted by the respondents in their counter affidavit that the Excise Commissioner by his letter dated 28.5.1994 had called for the names of all such Excise Constables who were eligible for being considered for promotion on the post of Assistant Sub-Inspector, Excise and the controlling authority of the petitioner, namely, Superintendent Excise, Darbhanga by his letter dated 22.9.1994 had recommended names of 11 eligible Excise Constables including that of the petitioner for their 4 promotion. It has to be noted that in the same list sent by the Superintendent Excise, Darbhanga the name of one Md. Zahir, who was substantively appointed on the post of Excise Constable on 7.12.1978 and was confirmed on the said post of Constable with effect from 16.10.1979, was also recommended along with the petitioner whose date of appointment on the post of Excise Constable as noted above is 3.1.1977. It appears that Md. Zahir as also the petitioner were not promoted on the post of Assistant Sub-Inspector and both of them had separately moved this Court for promotion. In the case of the petitioner, this Court by an order dated 21.5.2004 in CWJC No. 13668 of 2000 having noted the grievance of the petitioner that his name had already been sent for consideration of his promotion on the post of Excise Constable on 22.9.1994 and that the age of 50 years was completed by the petitioner not only in the year 2001 but during pendency of the writ application (CWJC No. 13668 of 2000) had held as follows:- “As per the requirement of Clause 5 45 of the instruction aforesaid, issued by the Member, Board of Revenue, the vacancies are required to be identified each year and eligible persons are required to be considered either for direct recruitment to the post of Assistant Sub-Inspector of Excise or to fill up the post by way of promotion. Admittedly, the cases of the petitioner vis-à-vis other eligible persons have not been considered irrespective of the vacancies in the cadre. From the statement made in paragraph 10 of the counter affidavit, however, it appears that certain vacancies of Sub-Inspector of Excise have been filled up by virtue of direction of this Court. If this was the situation, then the authorities were required under Clause 45 of the instruction aforesaid to consider the cases of the eligible persons also and the questions of appointment should not be left to be decided by this Court when it is to be done by the Department itself. From the pleadings of the parties, it does not appear to be a case that the petitioner is not eligible to be considered for promotion to the post of Assistant Sub-Inspector of Excise. Under the circumstances, the respondent authorities were duty bound to consider the cases of eligible persons each year to fill up the vacant posts of Assistant Sub-Inspector of 6 Excise. Considering the facts and circumstances of the case, the respondent authorities are directed to consider the case of the petitioner for promotion to the post of Assistant Sub- Inspector of Excise in case he is found eligible and within the zone of consideration for promotion. This exercise, however, must be completed within three months from the date of receipt/production of a copy of this order and the decision, if any, taken by the authorities must be speaking one.” It has to be noted that the impugned order dated 27.10.2004 was passed by the Excise Commissioner on remand by this Court and the claim of the petitioner rejected only on the ground that when the case of the petitioner was placed for promotion before the Departmental Promotion Committee on 27.10.2004, he had already crossed the age of 50 years on 4.1.2001 itself. In the impugned order, it was stated that as the petitioner had already crossed the maximum age prescribed for promotion on the post of Assistant Sub-Inspector, Excise, he could not be given such promotion and therefore, his case can be considered for grant of ACP 7 with effect from 9.8.1999. It has to be, however, noted that Md. Zahir whose name was recommended along with the petitioner for his promotion on 22.9.1994 had filed his separate writ application and in his case, this Court by an order dated 27.2.2006 had held as follows:- “As would be evidenced from Annexure-8 to the writ petition that on 22nd September, 1994 itself, the petitioner had been recommended to be promoted to the next higher post. By that Annexure eleven Constables were found suitable to be promoted to the post of Assistant Sub Inspector of Excise. The petitioner was listed against Serial No. 3 amongst those eleven. Again by Annexure-9, on 14th June, 1995, the petitioner was recommended for being considered for appointment to the said promotional post. Again by that Annexure, four persons were recommended of them the petitioner was listed against Serial No.1. By Annexure-16, 56 Constables have been granted promotions. Annexure-16 was brought into existence only on 27th October, 2004. The petitioner is not one of those who have been promoted by Anenxure-16 to the writ petition. The reason for not promoting the petitioner is that the petitioner crossed the age of 50 years as on the date the D.P.C. 8 considered the cases of the candidates for promotion. There is no dispute that the rules do show that in order to be promoted to the said post one must be within 50 years. It is also not disputed that the rules do not permit waiver of the said age bar. Of these 56 persons, so promoted by Annexure-16, at least two have been promoted, who admittedly crossed the age of 50 years as on the date the D.P.C. considered the cases for promotion. This has been specifically stated in paragraph-27 of the writ petition. In the counter affidavit, it has been stated that necessary information from the Districts could not be ascertained earlier and accordingly, there was delay in finalizing the promotions. It has then being contended that the State was bifurcated and accordingly, it took time to clear the roster and that also added to the delay. In the meantime, as has been contended in the counter affidavit, it was found necessary to engage a few people to discharge the duties of the promotional post and accordingly, those two persons had been asked to officiate in those posts and since those persons were officiating in those posts, the D.P.C. recommended that their age be relaxed. This power the D.P.C. assumed despite there being no such power to relax in the rules. The D.P.C. relaxed the age bar in the case of those two and other persons because they were asked by the State to officiate in the promotional post. At the same time, the D.P.C. has 9 failed altogether to take note of the fact that for no fault on the part of the petitioner and other similarly situated persons but because of the latches on the part of the officers of the State and their incapacity, no D.P.C. was constituted admittedly for 10 years and as a result, the fate of those people, who reached 50 years within those 10 years had been sealed but the fate of those fortunate people, who had been had picked for the purpose of giving officiating duty, had been kept open and they have been given the promotions. The way, the matter has been dealt with is such that it smacks the conscience of the nation. In those circumstances, the writ petition is allowed and the matter is remitted back to the D.P.C. for reconsideration of the case of promotion of the petitioner within one month from the date of service of a copy of this order upon respondent no.3 after waiving the age bar of the petitioner on the ground that for the latches on the part of the officers of the State and not for any fault on the part of the petitioner the D.P.C. was not constituted for more than 10 years.” It is also not in doubt that the aforesaid order of the learned Single Judge in the case of Md. Zahir was affirmed by the Division Bench by an order dated 20.2.2007 in LPA No. 355 of 2006 which had not only 10 affirmed the aforementioned order dated 27.2.2006 in the case of Md. Zahir but had additionally held that the Excise Commissioner in terms of Clause-10 of Rule 45 of the Rules can make departure from these rules in special cases on recommendation of Collector pertaining to the recruitment of Assistant Sub-Inspector in Excise. It has to be noted that such reasoning of the learned Single Judge/Division Bench also stood affirmed by way of dismissal on merit of the Special Leave Petition filed by the State of Bihar before the Apex Court in Special Leave Petition (Civil) No. 23005 of 2007 and ultimately, the promotion of Md. Zahir was notified on 26th March, 2007. Learned counsel for the petitioner, therefore, would submit that the case of the petitioner is squarely covered by the case of Md. Zahir who not only was recommended for promotion by the same authority and by the same letter dated 22.9.1994 but who alike the petitioner had exceeded the maximum age limit of 50 years and yet was found fit to be given promotion by giving 11 him relaxation of age. Learned counsel for the State could not controvert these facts but then he has tried to draw a line of distinction between the case of Md. Zahir and the petitioner by taking a plea that in the case of Md. Zahir, he was assigned the duty of higher post and to that extent, paragraph no.8 of the supplementary counter affidavit reads as follows:- “8. That the ratio decided by the Hon’ble Court on 27.02.2006 in C.W.J.C. No. 14908/2004 Md. Zahir Vs. The State of Bihar is not applicable in this case as much as Md. Zahir Excise Constable was recommended for promotion on 22nd September 1994 and he discharged the duty of the higher post.” The first reason that the case of Md. Zahir was recommended for promotion on 22nd September, 1994 in fact would apply with full force also in the case of petitioner, inasmuch as, it may be noted that the same authority, namely, Collector-cum- Superintendent of Excise, Darbhanga in his recommendation (Annexure-8) had recommended for promotion of 11 constables including Md. Zahir and the petitioner. The first reason 12 therefore for not giving promotion to the petitioner and giving promotion to Md. Zahir must be held to be out and out a blatant case of discrimination. Both Md. Zahir and the petitioner were recommended for the promotion much before completing 50 years of their age, the age of Md. Zahir being the date of birth 3.1.1952 and date of birth of the petitioner being 4.1.1951 and therefore, if the department did not hold meeting of Departmental Promotion Committee for 10 years, the petitioner cannot be penalized for the same. In fact, that was the reason that this Court in the case of Md. Zahir had held such plea of the respondents to be wholly untenable in law and had directed for considering his case of promotion even by giving relaxation of age. Thus, once the respondents have followed the said ratio of the judgment in the case of Md. Zahir, they cannot take a separate stand in the case of the petitioner. The second reason that Md. Zahir was given charge of the higher post on officiating basis, first of all, is not substantiated by any document and even if 13 there be any such order in favour of Md. Zahir the question would still be as to what had deprived the respondents in giving similar officiating charge of the higher post to the petitioner?. It has to be noted that if Md. Zahir was given a State award for his exemplary service so was the petitioner as would be apparent from the recommendation of the Collector of Darbhanga district dated 22.9.1994 (Annexure-4). In any event, an officiating arrangement made on the higher post of Md. Zahir cannot deprive the petitioner whose date of birth and date of appointment as also date of confirmation on the post of Excise Constable being 4.1.1951, 1.12.1977 and 12.7.1989 is earlier to Md. Zahir whose date of birth is 3.1.1952, entry in service is 7.12.1978 and confirmation on the post of Excise Constable is 16.10.1989. The respondents, therefore, cannot choose to discriminate the petitioner as against Md. Zahir specially when their cases are absolutely identical on all four corners. This Court, therefore, is satisfied that the case of the petitioner is squarely covered by the judgment referred in the case 14 of Md. Zahir and consequently the petitioner would be also entitled for the same treatment as was given in the case of Md. Zahir. This being so, this Court would direct the Excise Commissioner to consider the case of the petitioner for promotion on the post of Assistant Sub-Inspector, Excise on the same wavelength and same parameter as that of Md. Zahir and pass necessary order for his promotion by giving same relaxation of age as was given in the case of Md. Zahir. Such exercise must be completed by the Excise Commissioner within a period of three months from the date of receipt/production of a copy of this order and if any adverse decision is still taken, the Excise Commissioner will be required to record specific reasons, which must not be contrary to the law laid down by this Court in the case of Md. Zahir and also stands affirmed by the dismissal of the Special Leave Petition filed by the State of Bihar “on merits”. With the aforementioned observations and direction, this application is disposed 15 of. Abhay Kumar (Mihir Kumar Jha, J.)