IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15122 of 2009 1. KRISHNA RAM S/O LATE DOMAN RAM R/OMOH MALI DALTENGANJ, P.S. DALTENGANJ, DISTT- PALAMU, PRESENTLY RESIDING AT 503-B. BANSAL PLAZA, STATION ROAD , RANCHI(JHARKHAND), AT PRESENT POSTED AS IN CHARGE JOINT DIRECTOR , TRAINING HEADQUARTER, RANCHI Versus 1. THE STATE OF BIHAR 2. THE CHIEF SECRETARY GOVERNMENT OF BIHAR, PATNA 3. THE PRINCIPAL SECRETARY, DEPARTMENT OF LABOUR EMPLOYMENT AND TRAINING GOVERNMENT OF BIHAR, PATNA 4. THE PRINCIPAL SECRETARY, DEPARTMENT OF FINANCE GOVERNMENT OF BIHAR, PATNA 5. THE STATE OF JHARKHAND 6. THE CHIEF SECRETARY GOVERNMENT OF JHARKHAND , RANCHI 7. THE PRINCIPAL SECRETARY, DEPARTMENT OF LABOUR EMPLOYMENT AND TRAINING GOVERNMENT OF JHARKHAND , RANCHI 8. THE PRINCIPAL SECRETARY , DEPARTMENT OF FINANCE GOVERNMENT OF JHARKHAND , RANCHI For the Petitioner: Mr. Bishnu Kant Dubey, Adv. Mr. Nagendra Prasad Yadav, Adv. ----------- 5/ 09/08/2010 Heard learned counsel for the petitioner and learned counsel for the State as also for the State of Jharkhand. The petitioner is aggrieved by order dated 1.1.2009, Memo.No.10 which rejects his claim for promotion to Selection Grade Principal with effect from 4.7.1984 and grants it from 4.7.1988. He is further aggrieved by the next promotion to the post of Deputy Director, Training, which he claims from 1.9.1988 but it has been granted from 21.7.2000. He stakes his claim on the aforesaid basis to the next promotional post of Joint Director with effect from 1.9.1997. 2 The petitioner belongs to the reserved category of Scheduled Caste and was appointed as a Principal, I.T.I. on 19.5.1978 against the 25% quota for direct recruits. The promotion to Selection Grade Principal is done 100% from the promotional quota. The time duration for such promotion to Selection Grade Principal was six years subject to was six years subject to reduction of one year in respect of a reserved category candidate. Likewise, the time duration for promotion from Selection Grade Principal to Deputy Director is four years for a reserved category candidate. Pursuing his claim for promotion the petitioner came to this Court first in C.W.J.C. No.5163/96 which was disposed on 8.9.1997 with directions to consider his representation. The petitioner was compelled to file C.W.J.C. No.7169/2000 when the respondents paid no heed to his claim. The writ petition was dismissed on 22.2.2007 on grounds of a delayed and stale claim. L.P.A. No.263/07 preferred by the petitioner came to be allowed with a direction to consider the representation of the petitioner and grant him appropriate promotion. In the meantime, consequent to the re-organization of the State of Bihar the petitioner was allocated and joined the State of Jharkhand on 15.3.2005. 3 A supplementary counter affidavit has been filed on behalf of the State of Jharkhand. It states that the case of the petitioner for promotion to the post of Joint Director was under consideration and vigilance clearance had also been received in respect of him. Learned counsel for the petitioner has strenuously urged that the dates from which the petitioner has been granted promotion to Selection Grade Principal and Deputy Director, Training, are wrong. They are required to be re-worked. If it is so done the petitioner becomes eligible to be promoted to the post of Selection Grade Principal from 4.7.1984, Deputy Director, Training, from 1.9.1988 and is consequently eligible for the post of Joint Director from 1.9.1991. Pursuant to the order in L.P.A. No.263/07 the respondents have rejected the claim of the petitioner by the impugned order dated 1.10.2009 at Annexure-13 on the only premise that the dates from which the petitioner claims promotion to the post of Selection Grade Principal and Deputy Director, Training, there was no vacancy available. His eligibility from the dates claimed by him is not being disputed. He strongly relies upon the pleadings in paragraph-17 of the writ application supported by Annexure-10. Placing Anexure-10 it is submitted that the proposal for promotion dated 21.6.2003 notices his due 4 date of promotion to Selection Grade Principal as 4.7.1984. Vigilance clearance had been received and there was no impediment to the promotion which had been approved by the Departmental Minister. The Departmental Promotion Committee had on 12.5.2003 considered the matter and noticed that the petitioner fulfilled the requirement for promotion from 4.7.1984 to the post of Selection Grade Principal. A Memorandum was prepared to be presented before the Cabinet to the same effect when matters have remained at that stage. Learned counsel for the State of Bihar urged that the documents sought to be relied upon by the petitioner were merely proposals. There was no vested right to promotion but only a right to be considered for promotion. Dealing with the assertions of the petitioner in paragraph-17 supported by Annexure-10 there is no denial to the same in paragraph-17 of the counter affidavit of State of Bihar. While the petitioner may have no right to promotion, he certainly has a right to be considered for promotion in accordance with law which includes a timely consideration. If there was no vacancy, as is sought to be contended in the impugned order, this Court finds it difficult to appreciate and understand as to how 5 deliberations including by the Departmental Promotion Committee were being done fixing the date of promotion etc. Even if the deliberations had been done, the proceedings should have contained a note that he could not be promoted in absence of vacancy though he was eligible. No such comments are contained in the notings referred to above. The inevitable presumption in law is that a Government order is in consonance with law unless it is shown otherwise under Section-114(e) of the Indian Evidence Act. The presumption is that when the Departmental Promotion Committee obtained vigilance clearance and recommended his name, there was a vacancy. It was for the respondents to rebut this presumption. They have failed to do so. The impugned order dated 1.10.2009 acknowledges the eligibility of the petitioner from the dates claimed by him, but denies the same on the ground of non-availability of vacancy. On the discussion contained hereinabove, this court is satisfied that from the documents of the respondents themselves the grounds urged to deny consideration from the due dates claimed are non est. The impugned order makes no reference to explain why vigilance clearance was obtained, why the Departmental Promotion Committee considered the case of the petitioner for promotion to the 6 post of Selection Grade Principal and made recommendatory proposals. While there may be no right to promotion and only a right to be considered, simultaneously there cannot be an arbitrary denial of promotion when other factors for promotion are being met and fulfilled. The petitioner is held entitled for promotion to the post of Selection Grade Principal from 4.7.1984 and consequently to the post of Deputy Director, Training, with effect from 1.9.1988. As a logical corollary he is entitled to be considered for promotion to the post of Joint Director from 1.9.1991 before bifurcation of the State of Bihar. The impugned order dated 1.1.2009 is therefore held to be not sustainable and is accordingly set aside. Learned counsel for the State of Jharkhand submits that the State of Jharkhand shall have to receive the petitioner in the category and status that he may have been deemed to hold under the State of Bihar. At this stage learned counsel for the petitioner fairly concedes that if consequent to the present order his cadre allocation has to be re-worked he has no objection in coming to the State of Bihar. Let the respondent State of Bihar pass 7 necessary appropriate orders of the due dates for promotion to the petitioner on the three posts as as aforesaid within a maximum period of six months from the date of receipt/presentation of a copy of this order. The writ application stands allowed. KC ( Navin Sinha, J.)