IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7394 of 2005 CHANDRA DEO SHARMA, SON OF LATE JAMUNA SHARMA, RESIDENT OF P.O. PARIYARI P.S. KINGER, DISTRICT – ARWAL, PRESENTLY WORKING AS JOINT COMISSIONER OF COMMERCIAL TAXES (APPEAL), PATNA DIVISION, PATNA. ………….. PETITIONER. Versus 1. THE STATE OF BIHAR, THROUGH CHIEF SECRETARY, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA. 2. THE SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF BIHAR, OLD SECRETARIAT, PATNA. 3. THE COMMISSIONER & SECRETARY, FINANCE (COMMERCIAL TAXES) DEPARTMENT, GOVT. OF BIHAR, VIKAS BHAWAN, PATNA. 4. THE CHAIRMAN, BIHAR PUBLIC SERVICE COMMISSION, BAILEY ROAD, PATNA. ………… RESPONDENTS. For the Petitioner : - Mr. Chittaranjan Sinha, Sr. Advocate Mr. Jayant Roy Choudhary, Advocate Mrs. Manju Jha, Advocate For the BPSC : - Mr. Ranjit Sinha, Advocate For the State : - Mr. Ajit Kumar, JC to Advocate General ----------- 03/ 19.05.2011 Heard counsels for the petitioner, the State and the Bihar Public Service Commission. Prayer of the petitioner is for a direction to the respondents to issue notification, giving him promotion on the post of Joint Commissioner, Commercial Taxes with effect from 23.3.2005 i.e. the date on which two officers junior to him, in the general category have been promoted. Petitioner joined the cadre of Bihar Finance Service and after final cadre division of the State of Bihar, was allotted the Bihar cadre. After final cadre division, the strength of the cared of Joint Commissioner of Commercial Taxes, in the State of Bihar came to 16 only. 2 Out of 16 posts, three Officers were working on the post of Joint Commissioner, Commercial Taxes but 13 posts were vacant. A decision was taken to fill up post of Joint Commissioners in the department with the approval of Govt. A list of officers eligible to be promoted, was prepared and observing the reservation rules the matter of promotion was considered by the Departmental Promotion Committee. Petitioner’s case is that as per the reservation roaster, out of 13 posts, 3 posts were reserved for the Scheduled Caste candidate and 10 posts were to be filled by general category candidates. Despite this fact, out of 10 posts, only five posts, available in the unreserved category were filled up giving promotion to Officers in the general category, though, there was no obvious reason for leaving five posts unfilled. Petitioner, whose name had also been considered and recommended for promotion by the Departmental Promotion Committee, was not promoted to the post of Joint Commissioner, Commercial Taxes. In the first counter affidavit filed on behalf of Respondent No. 3 it has been stated that the Personnel and Administrative Reforms Department had approved the 3 roaster clearance for 13 posts, in which 5 posts were for Scheduled Caste, 3 posts for Scheduled Tribe and rest 5 posts for general category. The D.P.C., accordingly, recommended for giving promotion. So far general category candidates were concerned, only 5 posts were available. Petitioner being beyond the purview of those 5 posts was not given promotion. This statement was controverted by the petitioner by filing Interlocutory application through which several documents have been brought on record; one of such document is Annexure-14, on perusal of which it transpires that the reservation roaster clearance was erroneous, as such it was reconsidered. It was found that quota in the reserved category posts had been filled in excess in the past. Due to this error 5 additional posts included in the reserved quota, should have been included in the unreserved category. Considering everything, a final decision was taken to revise the reservation roaster. The revised reservation roaster cleared, total 10 vacancies in the unreserved category. This statement is reiterated in the supplementary counter affidavit filed on behalf of Respondent No. 8. Paragraph 5 of the supplementary counter affidavit 4 indicates that the Cabinet Secretariat and Co-ordination Department had directed to get the reservation roaster re- examined and seeking clearance from the Department of Personnel and Administrative Reforms. The Personnel and Administrative Reforms Department returned back the file to the Department seeking their opinion regarding validity of the recommendation of the D.P.C. The B.P.S.C. was requested to revalidate the proceeding of the D.P.C. recommending for promotion. Re-validation was required as period of its’ validity had expired. Supplementary counter affidavit filed on behalf of Respondents indicated that matter relating to giving promotion to the petitioner is being reconsidered at the Government level and it is in progress. Counsel for the petitioner submits that there was no requirement for revalidation of the proceeding of the Departmental Promotion Committee for the reason that the petitioner had immediately filed writ application raising objection to the promotion given to his juniors, despite being recommended by the D.P.C. Other wise also since, reservation matter was still under consideration, and process of promotion still going on, recommendation of 5 Departmental Promotion Committee in favour of petitioner cannot be considered to have lost its’ force. In such circumstances, issue relating to revalidation of recommendation was irrelevant as process of promotion initiated in the year 2005 has still going on. Vacancies were still existing and promotion order could have been passed, on the basis of recommendation of D.P.C. Fact is that the petitioner, despite being recommended by the D.P.C., could not get it’s benefit, as he retired during the pendency of the writ application. However, the petitioner had been made Incharge Joint Commissioner, and continuously he discharged duty on the promotional post and finally retired from that post. In that view of the matter and considering the resolution of Finance Department dated 24.12.2005 (Annexure-19), petitioner is entitled for regular promotion to the post of Joint Commissioner, Commercial Taxes, with retrospective effect. Finance Department’s resolution under Clause 4 (ka) provides that in case despite eligibility, for some reason if promotion could not be given to a senior employee, but allowed to discharge his duties on the promotional post, he can be given regular 6 promotion with effect from the date he started discharging the duties of the promotional post. In case of the petitioner there was recommendation in his favour but on account of some ambiguity in the matters of reservation, he could not be promoted to the post with effect from the date, juniors to him were promoted. The reservation matter was subsequently clarified and the Personnel and Administrative Reforms Department’s comment is also there, now there is no reason for not giving promotion to him, with effect from the date, juniors to the petitioner were given promotion i.e., with effect from 25.3.2005. Respondents are directed to issue similar notification in favour of the petitioner, giving him promotion with effect from the date, on which juniors to him were promoted to the post of Joint Commissioner, Commercial Taxes. Petitioner will also entitle for all consequential benefits, with retrospective effect. This application is allowed. DKS/ (Mridula Mishra, J.)