IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.151 of 2007 Rajendra Singh, Son of Shri Nagdeo Singh, resident of village- Nageshwar, P.O. & P.S.-Patan, District-Palamu (Jharkhand), at present working as Assistant Secretary in Bihar State Credit & Investment Corporation Ltd., Indira Bhawan, 4th Floor, Ram Charitra Singh Path, Patna-1. -Petitioner. VERSUS 1. The State of Bihar through Industrial Development Commissioner, Department of Industries, Government of Bihar, Patna. 2. Bihar State Credit & Investment Corporation Ltd., Indira Bhawan, 4th Floor, Ram Charitra Singh Path, Patna. 3. The Managing Director, Bihar State Credit & Investment Corporation Ltd., Indira Bhawan, 4th Floor, Ram Charitra Singh Path, Patna. 4. The Chairman, Bihar State Credit & Investment Corporation Ltd., Indira Bhawan, 4th Floor, Ram Charitra Singh Path, Patna. -Respondents. ***** For the Petitioner : Mr. Raj Kishore Prasad, Adv. For the BICICO : Mr. Nirmal Kumar, Adv. For the State : GA-2. ***** 07 16.09.2009 The petitioner had joined the Bihar State Credit & Investment Corporation Limited (for short BICICO), which is a statutory Corporation in terms of the Station Financial Corporation Act and is incorporated as a Company. It is a Corporation fully owned by the State Government. Petitioner joined the Corporation in the year 1977. While in service and about to superannuate he filed this writ petition for grant of promotion which was long over due. While the writ petition was pending petitioner superannuated. He filed applications before this Court for payment of full retiral dues including after taking into account the promotion that was not given to him. On the whole as of now petitioner’s grievance is basically two fold. First, as per the resolution of the Departmental Promotion - 2 - Committee and the Board itself, petitioner was entitled to promotion to the post of Assistant Manager as far back as in 1991. On one pretext or the other or on one pretence or the other the same was not given to the petitioner. The second is apart from giving effect to promotion and a consequential benefit, his earned leave of 132 days to which he was entitled, though sanctioned, has not been paid. His Group Insurance and Employees Provident Fund (EPF) deposits have not been paid. Petitioner superannuated in the month of October 2008. Several counter affidavits have been filed by BICICO taking all possible objections to defeat the claim of the petitioner. In respect of promotion the petitioner first relies to the decision dated 19.01.1988 (Annexure-B) of the Departmental Promotion Committee, which consisted of the Managing Director, BICICO, the Director, Industry Department, Government of Bihar and the Joint Director, Bureau of Public Enterprises. In para-7 of the counter affidavit in which Annexure-B is referred by the respondent-BICICO itself, it is stated that the petitioner was promoted by the High Level Promotion Committee (here referred to as the Departmental Promotion Committee). This resolution itself clearly shows that it provided for promotion of petitioner to the post of Assistant Manager while another was not found fit. Petitioner then refers to office order issued by the Managing Director of BICICO itself dated 10.03.1988 (Annexure-1) by which petitioner was promoted to the post of Assistant Secretary in the pay-scale of Rs.940-1500 with a rider, as contained in paragraph-2 of the said order, that the above officers which included petitioner would - 3 - be considered for promotion to the post of Assistant Manager after a period of 3 years as Assistant Secretary. Thus, it is clear that the right of petitioner to be considered for promotion as Assistant Manager from the current post of Assistant Secretary crystallized and had to be done after 3 years. It may also be mentioned that the Board of BICICO then decided that so far as the post of Assistant Manager is concerned, 50% posts would be filled up by direct recruits, having special qualifications, balance 50% posts would be filled up by promotion from Assistant Secretaries. Petitioner, thus, has a promotional avenue to which he was declared entitled, in view of the orders as referred to above, but has been denied that promotion. Now, it is stated that petitioner though Post Graduate did not hold educational qualifications for the promotional post. For this, learned counsel for the BICICO submits that recently when posts were advertised for filling up from direct recruits certain educational qualifications like either Law Graduate or Cost Accountant or an Engineer being the basic qualification and the petitioner being simply a Post Graduate is made the ground to deny promotion. In my view, the contention is to be noted only for the purpose of to be rejected. Providing qualifications for direct recruit is one matter, providing promotional avenue with in the house experience is another. If a person was fit for initial appointment with a promotional avenue his promotional avenue cannot be subsequently shut up because a direct recruit to higher post is to have qualification as prescribed. They are two different sources. One having no in house experience and the other having prior in house experience in that line. The two sources have - 4 - different educational qualification. One cannot automatically apply to the other. It is, therefore, misconceived and wrong to state that petitioner was not liable to be considered for promotion because he was not educationally qualified. I must also note that not a chit of paper has been brought on record by BICICO to show that at any point of time petitioner was considered for promotion and finding that he lacked educational qualification, he was denied promotion. Such a stand is now being taken only by way of submission in the counter affidavit. In absence of any record in support thereof, the plea cannot be entertained much less sustained. It is next submitted by BICICO that from time to time there were series of departmental proceedings against the petitioner including one in which petitioner was dismissed and as such petitioner could not be considered for promotion. In the same counter affidavit in the same breath it is submitted that all those proceedings were individually quashed by this Court and matter remanded for reconsideration which never fructified. The result is that neither there was pending departmental proceeding nor any concluded proceedings which could be taken note of to deny promotion to the petitioner. Again, at the cost of repetition, it must be stated that not a chit of paper brought on record by BICICO to show that any point of time the Departmental Promotion Committee considered the case of petitioner for promotion but denied the same because of pendency of any departmental proceeding. Even otherwise mere pendency of a departmental proceeding could not have denied the petitioner promotion as he was entitled to be considered and - 5 - what is commonly known as the sealed cover process had to be adopted. Nothing has been brought on record to show that any of these steps were taken. It is then submitted that as the Corporation was running in loss the policy was not to grant promotion to any person. I have my grave doubt whether such a decision can at all be taken and if taken can it at all be sustained. If the Management or the Corporation cannot conduct its business in a profitable manner it cannot deny the promotion of its employees. Employees have little or no right to take policy decision in matters of Board. They cannot be made to suffer on that count. Apart from repeated statements in the counter affidavit in this regard not a chit of paper has been brought on record either referring to any Board’s decision or any governmental decision binding on the Board to show that the Board was prohibited from giving promotion to any employee on any such ground. Thus, this last desperate attempt to deny promotion to the petitioner also fails. I am, therefore, constrained to hold that even though petitioner has now retired he is required to be considered for promotion in light of Annexure-1 and Annexure-B, as referred to above, with all consequential benefits. The same shall be done by the Board of BICICO within one month of the presentation of the order of this Court before the concerned Managing Director. The next grievance of the petitioner is with regard to unpaid retiral dues. Here, once again after superannuation controversies are being raised by the Board. Gratuity has been paid but when it came to - 6 - payment of earned leave of 132 days the same has been sanctioned but withheld. Letters of the Life Insurance Corporation of India (LIC) annexed showing that they have also decided to withhold payment of Group Insurance and EPF. The common thread that runs across these three counts is alleged mis-declaration of date of birth of the petitioner. This issue of date of birth is now for the first time being raised by the Corporation after more than 30 years. How this date of birth is relevant at this stage is not specified, except so far as earned leave is concerned, it is said that the BICICO is holding back that amount to be adjusted against any possible recovery that it may made from the petitioner. The reason is, petitioner at the time when he joined service allegedly gave a hand written Bio-data in the year 1977, in which he showed his date of birth as 01.08.1949. When he got the job, he submitted papers along with the matriculation certificate granted in the year 1965, showing his date of birth as 01.08.1950. All parties in the last 30 years acted upon this later date of birth. BICICO now takes stand that by wrong declaration made in the year 1977, petitioner has worked one extra year. He should have superannuated in September 2007 in stead he continued to work and superannuated in September 2008. Therefore, the emoluments paid to him for the year 2007-08 are recoverable. BICICO has annexed the papers of LIC, which only raises the issue of date of birth, but how at all it is relevant for calculating or paying the Group Insurance or EPF is not known. No claims by virtue of pre matured death or otherwise are being raised. For computation of period of contribution, the payments made they have absolutely no relevance to - 7 - difference of date of birth. Payments are in proportion to deductions made and deposited. There are no disputes in that regard. Then on what basis the Group Insurance or EPF is being denied and BICICO being a silent spectator to this Tamasha is not explained. How that dispute is at all relevant is not explained nor does BICICO care to question LIC in that regards. LIC is only an agent of BICICO in this regard. The primary responsibility is of BICICO. LIC acts on behalf of the BICICO. Thus, so far as payment of Group Insurance and EPF are concerned, I have no option but to direct BICICO to take steps to get the sum from LIC immediately and ensure payment of the same to the petitioner within one month, failing which petitioner would be entitled to payment thereof with interest @ 18% from the time it was due. So far as earned leave is concerned, BICICO is holding back the same for a liability that may arise for adjustment. The first answer to this is, at present there is no liability to be adjusted. Secondly, at this distant point of time after superannuation no such liability can be created. Thirdly, petitioner admittedly having worked cannot be denied his wages for the period he worked for BICICO. It is not that petitioner did not work and is claiming wages. It is not in dispute that he worked. No work is gratuitous. If BICICO had taken work, it had to make payment. Thus, there is no question of any adjustment or recovery. Further, the alleged two dates of birth i.e. 01.08.1949 and 01.08.1950 were concerned, both were with BICICO at the time when petitioner joined over 32 years back. For the past 32 years BICICO took no steps to verify and/or reconcile the same. It was open to BICICO but it slept - 8 - over the matter. Now, to reopen the matter after petitioner has superannuated, in my view, cannot be permitted. Thus, withholding 132 days earned leave is not justified. It is already sanctioned for payment, as per the counter affidavit itself, it should accordingly be paid to the petitioner within one month from today. With the aforesaid observations and directions, the writ petition stands disposed of. Trivedi/ (Navaniti Prasad Singh, J.)